304
Extract from Despatch No. 3 of
the 26th December, 1885, from The Right Honorable Edward Cardwell, M.P.
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5th Point.--There has been no complaint, information or communication by any officer of the Chinese Government made or forwarded to the Committing Magistrate or to his Court desiring the arrest of any Preson being a Chinese subject and alleging, &c., &c., to give the Magistrate Jurisdiction under Sec- tion 1 of Ordinance 2 of 1850, and no Warrant or Order from the Governor to the Magtstrate under Section IV.
The Prisoner was already in custody upon a charge then under Investigation. Section I of Ordinance 2 of 1850 therefore applies and no Warrant from the Governor under Section IV was required.
The letter from the Colonial Secretary to the Magistrate informing him of the Demand for Extradition is annexed to the depositions. The practice in England is similar. (See Report of Select Committee on Extradition page 18.)
Evidence of Sir Thomas Henry.
Question 319.-Do you get all the London Cases? Answer.-The Secretary of State for Foreign Affairs examines the papers, and if he sees that the offence is one of those named in the Treaty, he sends the papers on to Home Secretary. The papers are examined at the Home Office again, and if the Home Secretary is satisfied that it is a Case within the Treaty, he then sends to the Chief Magistrate at Bow-street a letter, signifying that requisition has been made in the proper manner by the Ambassador or the Minister of the Foreign Country to have the accused delivered up. Question 320.-That letter sets you in motion? Answer.-That sets me in
motion.
The Practice to be followed in Hongkong is prescribed in a Despatch from the Secretary of State, of which the following is an extract:
"Questions have been raised both as to the forms in which the extradition shall "be demanded and to the cases to which it shall apply, on both of which I am "desirous that you should be fully informed of the views of Her Majesty's Govern-
"ment.
"On the first head I am to instruct you that the Consular or other Diplo "matic Officer is in all cases the recognized Channel of communication between "Chinese and British functionaries. That all ordinary communications should be "carried on through that Officer and that without his concurrence direct commu- "nications should not take place between Colonial Officers and the Chinese Govern- ment. Requisitions for the delivery of Criminals should therefore be conveyed to "the Colonial Government through the Consular or Diplomatic Officer or with his "authority."
Under 6 & 7 Vic. cc. 75 & 76, the Statutes passed to carry out the Treaties with France and the United States, the communication to the Magistrate must be by Warrant under Seal. Under Ordinance No. 2 of 1850, it is not even required to be in writing. The Writ of Habeas Corpus in this case is a Writ at Common Law and the Return cannot be traversed (3 Chitty's Stat. 3d. Ed. p. 69 note)
6th Point.--There is no evidence whatever before the Court, nor was there before the Magistrate to show that the offence charged against the Prismer is an offence against the Laws of China. The alleged offence having been committed on board a French ship on the high seas, the presump tion is the Chinese Courts have no jurisdiction, and the evidence shows that Chinese Mandarins having the opportunity to arrest and try the Coolies from the "Nouvelle Penelope," took no steps to punish them, (Phil. 377, 413) and no right to claim Extradition.
There is nothing in the Treaty of Tientsin or in Ordinance No. 2 of 1850 which imposes upon the Magistrate the duty of ascertaining that the crime charged is a crime against the Laws of China;-but in any Case the Court will assume that Murder being a crime malum in se as distinguished from malum prohibitum, is a crime against the Laws of all civilized nations.
If the Description of Crimes for which Chinese may be surrendered under the Treaty of Tientsin is to be limited at all, it is submitted that it should be limited to such crimes as by our Statute or Common Law would, if committed by a British subject, be justiciable by the Courts of this Colony. This Rule was adopted in the Ashburton Treaty. (See In re Windsor, 10, Cox C. C.), and is also adopted in the Imperial Extradition Act of 1870, in which the following heading to the Schedule of Crimes is prefixed:--
[5]
"The following List of Crimes is to be construed according to the Law exist- ing in England, or in a British Possession (as the case may be) at the date of the alleged crime, whether by Common Law or by Statute made before or after the passing of this Act."
If the Murder charged in this Case had been committed by a British subject, it would have been justiciable by the Courts of this Colony. (Reg. v. Azzopardi. 2 Moody, C. C. 288.)
7th Point. The depositions disclose no offence whatever. The conduct of the Coolies in getting possession of the ship being justifiable, they being illegally restrained of their liberty and there being no excess. Unless the acts charg- ed against the Prisoner are such as English Laws attach criminal respon- sibility to, the Extradition Treaty does not apply.
The depositions disclose the Murder of nine persons.
All homicide is prima facie Murder subject to be reduced to justifiable homicide by the particular facts proved in defence. (1 Russell on Crimes, p. 668.) The Prisoner is identified as being one who actually took part in the Murder of the Captain and was an accomplice in the general inassacre of the other victims. There is no evidence of his having been illegally coerced and much less of his having been reduced to slavery by the Master of the ship, Captain Le Vigoureux, whom he murdered, or by any one connected with the ship. In Anderson's case See Wheaton's Int. Law, Sti (that of the fugitive slave) it was admitted that the case was one of Slavery. Edition, Note 75. Here the question whether the homicide was Murder or excusable homicide on the plea of self defence is not raised on behalf of the Prisoner in the depositions. One of the witnesses states that he was kidnapped by a Barber, Chea Afook, but nevertheless that he told the Macao Authorities he was willing to go and did con- tract to go to Peru. He likewise says that he heard others say they had been kidnapped. But he does not accuse the Master of the ship or any of the crew of the kidnapping but on the contrary describes their conduct to have been most kind. The "proof of guilt" required to justify the Surrender under the Treaty of Tientsin is thus stated in a Despatch of the Duke of Newcastle:
"It is at the same time quite clear in the letter of the Tientsin "Treaty that it is only on proof of their guilt' that Chinese Criminals can be "demanded by Chinese Officers and the proof intended can of course be no other "than proof satisfying the minds of those,--the British Officers--who have to "determine the question at this preliminary stage. On this head I have to in- "struct you that as a general rule reasonable evidence ought to be accepted as "sufficient, such for example as would lead a Grand Jury, in this Country to find "a true bill where the evidence is ex parte only, or such as with evidence ou "ajicunt evidence "both sides, would induce a Magistrate to commit for Trial."
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The Expression " Proof of Guilt" in the Treaty of Tientsin has had legislative pen onstrued to Interpretation, so far as our Courts are concerned, by Section III of Ordinance No. 2 of 1850, which directs the Magistate to commit on "probable cause
"mean "bi nä- jacic", of guilt. There is abundant "probable cause' within the meaning of Section III of Ordinance No. 2 of 1850, to warrant the Committal. (Wheaton's International Law, Section CXVII, Note 75, by Professor Dana, 8th Edition.)
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Terian's case. 9 Cox, C. C.
Ternan's Case shows that a Court or a Judge, upon such a Proceeding as the present, is not to weigh the effect of the evidence; that is a matter for the Magistrate. The Court can only consider whether there is enough evidence to See per Crompton 1. in justify a Committal, and it is unnecessary to add that in the present case no Magis- trate could hesitate to commit the Prisoner for Trial if the case were cognizable by the Supreme Court.
It has been doubted in the United States whether evidence of Justification of killing can be received at all under the Extradition Treaty with Great Britain. (See In re John Bennett, Southern District Court of New York, reported in 11 Law Tunes N. S. page 488.)
The King v. Marks (3 East) shows that if there be a corpus delicti on the depositions, the Prisoner must be remanded, and the cases collected by Mr. Forsyth at page 451 of his work on Constitutional Law show that the Return (if necessary) may be amended. Finally it is again submitted that all Decisions upon other Extradition Treaties are inapplicable so far as the nature of the crime charged is concerned, inasmuch as the Treaty of Tientsin embraces all crimes. The facts alleged in the Return cannot be traversed. [The Writ of Habeas Corpus taken out in this case is a Writ at common Law. As to contradicting the Return,
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