[2]
The word "Treaties" being in the plural can have no other interpretation. The Extradition Clause of the Supplemental Treaty of Nanking was only abrogated to be re-enacted in substance in the Treaty of Tientsin as appears by the recital in Article I. (See per the Lord Chancellor in Regina v. Wideman, 14, Law Times N. S., as to the French Treaty and the Imperial Act passed to carry it out.)
Ordinance No. 2 of 1850, is moreover impliedly declared to be still in force by Ordinance No. 7 of 1864.
4th Point. The offence for which the Frisoner stands committed is if anything Piracy on the high Seas, and, on the authority of "re Terman" 33° L. J. M. C. 201 is not within the Treaty and Ordinance No. 2 of 1850, being justiciable here. Phil. 379, 391.
33 L. J. M. C. 201.
The offence for which the Prisoner stands committed is the one for which his rendition was claimed, namely Murder. Murder is a distinct crime from Piracy though too frequently coupled with it.
The Prisoner after the commission of the crime returned to China. Afterwards and while a Chinese Tribunal was sitting for the Trial of some of his accomplices, he was found in this Colony. He therefore, "took refuge" in Hongkong, within the meaning of Art. 21 of the Treaty of Tientsin.
The Point here raised involves three Questions.
A. Is the crime disclosed by the Depositions Piracy jure gentium and cogni-
zable by the Hongkong Courts?
B. If it be so, is Piracy jure gentium a crime within the intent of the Treaty
of Tientsin?
C. If not within the Treaty, may the Prisoner be surrendered for the crime of Murder in respect of which crime alone the application for his rendi- tion and his commitment are limited, though the facts may also disclose the crime of Piracy jure gentium?
Firstly as to A.-The opinion of the Law officers of the Crown in England in 1852 will be found at page 229 of Mr. Forsyth's Work on Constitutional Law, and is to the effect that in a Case precisely similar to the present one (the sole difference being that the Foreign Coolie Emigrant ship in which the Murder was committed was an American ship instead of a French one) the crime was not cognizable by the Tribunals of Hongkong, and consequently was not Piracy jure gentium. Since In re Ternan, 9 Cox C. C., P. the date of that Opinion the Case of the Joseph Gerrity was decided, in which the Judges held that upon the construction of the word "Piracy" in the Schedule of the Treaty between Great Britain and the United States, Piracy jure gentium was not included in the List of Crimes for which Extradition could be demanded.
Naylor. Falmer, 22 L. J. Ex. 331.
In that Case the Judges were of opinion that the crime committed on board the Joseph Gerrity was if anything, Piracy jure gentium; but the facts were not the same as in the present Case. From the Report of it (nomine, in re Ternan) in 9 Cox. C. C., Crompton J. seems to base his opinion that the crime was Piracy jure gentium on the ground that the Prisoners had surreptitiously embarked in the Joseph Gerrity in the disguise of Passengers.
In the present Case the depositions show that the vessel carried Emigrants See per Bramwell Arguendo for Peru under Contracts of Service, and that the Coolies seized the ship for the purpose of getting rid of their contracts and returning to their own country. The element of universal hostility" is here wanting to constitute Piracy jure gentium. The seizure was made animo revertendi and not animo furandi though the ship was afterwards plundered. It cannot be said that the Coolies who were engaged in the seizure, were outlaws recognizing no Flag and no Government.
It is submitted, therefore, that notwithstanding Ternan's Case, the opinion of Sir John Harding, Sir Frederic Thesiger, and Sir FitzRoy Kelly, given in 1852 upon precisely similar facts as those appearing in the depositions before the Court, is still a correct exposition of the Law. Mr. Forsyth has published that Opinion in his recent work on Constitutional Law without any remark, although be fre- quently refers to Ternan's Case. (As to the Elements of Piracy jure gentium, see note 81 to Wheaton's International Law by Prof. Dana (8th Edition), Kent's Comm. by Abdy p. 428, 1 Wildinan's International Law p. 208.)
Secondly as to B.-It must be borne in mind that in the Treaty of Tientsin no particular crimes are named and that our Government has stipulated to deliver to the Chinese Authorities "Criminals, subjects of China, who shall take refuge in Hongkong," without any limitation as to the nature of the crime.
[3]
Therefore as far as concerns the nature of the crime charged, it is again submitted that on the face of the Treaty and of the Ordinance, No. 2 of 1850, a Court of Law has no power to release a Chinese Prisoner committed by the Magis trate under that Ordinance if the depositions show that there is any Evidence of the commission by him of a crime known to British Law. On this point the evidence of Mr. H. T. Holland (Legal adviser to the Colonial Office) before the Special Committee of the House of Commons on Extradition which sat in 1867, is as follows (p. 49 of Report) :-
A
M. Layard, Question 985.-Have you a list of the various crimes for which we should give people up under the Treaties and Agreements which exist in China? Answer. -We have only the Treaty of Tientsin. Question 987.-Is there no definition of the crime? Answer.---No, none at all. Consequently, two questions arose upon that Article 21; first, whether the Treaty required the extradition of all Chinese Criminals, including Political Offen- ders; and secondly, whether we were bound to give up Offenders when we knew they were going to be tortured. I believe there has been some difference of opinion here upon that Second Point; but instructions have at all events been given both by Lord Russell and Mr. Cardwell, that Political Offenders should not be given up, and that Persons should not be given up in case where we knew that torture would be applied.
Question 988.--Then in fact the definition of the crime under the Treaty is left entirely to the Colonial Government? Answer. Yes. Upon the face of the Treaty we ought to give up every one who is claimed for any crime at all, because it says simply "if Criminals, subjects of China, shall take refuge in Hongkong, or in British vessels, they shall be given
up."
It cannot be argued that Piracy jure gentium is not a crime which may be included in extradition Treaties, for the Imperial Extradition Act of 1870, expressly includes it, and it was inserted in the Schedules of Crimes of our recent Hongkong and Macao Extradition Ordinance (No. 13 of 1870) by order of the Secretary of State.
Therefore if the terms of the Treaty of Tientsin are large enough to include that crime, and it is contended that they are, as they include all crimes, there is no legal objection to the commitment, on the ground that the depositions disclose a erime of Piracy jure gentium. The decision in Ternan's Case is not in point, as it turns upon the construction of the limited Schedule of Crimes annexed to the Treaty with the United States, whereas there is no limit to the description of crimes for which the surrender of a Chinese may be demanded of the British Government by the Chinese Authorities under the Treaty of Tientsin.
Thirdly as to C-May the Prisoner be surrendered on the charge of Murder though the evidence supporting it is sufficient also to support a charge of Piracy?
This question has been answered in the affirmative by the Law Officers of the Crown in England, as may be seen by reference to the Report of the Select Committee on Extradition, p. 54:
Examination of the Right Honorable E. Hammond.
Question 1052.-What is the next point you wish to refer to? Answer.-
In question 73 a question was raised as to giving up a man claimed by the United States on a charge of piracy. A person named Locke was charged in the Bahamas with conspiracy and forgery in connection with the destruction by a Confederate privateer the Chesapeake of an Ameri- can Merchant Vessel the Hanover. That was in 1864 and 1865. His extradition was also deraanded by the United States, on charges of Piracy and Murder. In that case it was held, that if the Piracy had been committed on the high seas, though on board an American vessel, it would be triable in a British Court, but if the charge was confined to Murder, though on the high seas, the vessel being an American vessel, over which the United States would have exclusive jurisdiction on the high seas, the man might be given up. The case of the Joseph Gerrity (10 Law Times Reports New Series, page 499) was cited by the Law Officers in support of this Doctrine as regards Piracy, but not as appli- cable as regards Murder.
303