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the Governor of Hong Kong that the sentence that must be passed on those accused persons, if they are convicted, is that of being put to death by the "slow and painful process," a form of Chinese torture better known in Europe under the name of slicing into a thousand pieces." He also stated that the use of torture being prescribed by the Chinese Penal Code, no promise not to torture, even when given by so high an authority as a Viceroy, could be held to be binding. (Consul Howlett, No. 14 of the 29th April, 1881; Colonial Office letter of the 2nd March, 1882, Inclosure, pp. 35 and 153.)
The Governor of Hong Kong then appealed to Her Majesty's Minister at Peking, and I am to invite your attention to Sir T. Wade's letter to Governor Sir J. Pope Hennessy of the 8th November, 1881 (Colonial Office letter of the 2nd March, 1882, Inclosure, p. 287), which is confirmatory of the opinion expressed by Consul Hewlett.
The thirteen prisoners were eventually released by the Supreme Court of Hong Kong on a writ of habeas corpus, by reason of some informalities in their committal by the magistrate, under Ordinance No. 2 of 1850, and in the return to the writ. (Ibid., pp. 301 and 347.)
It appears, however, that another case is now pending in IIong Kong, that of two fugitives whose surrender is claimed by the Chinese Officer Commanding at Kowloon, near Hong Kong, on a charge of piracy.
In the opinion of the Colonial Attorney-General, the piracy was committed in Chinese waters, and is not justiciable, therefore, by the Supreme Court of Hong Kong as piracy jure gentium. (Colonial Office letter of the 19th May, 1882, Inclosure, p. 37.)
The crime, therefore, is within the Treaty. (Attorney-General of Hong Kong Kwok-Asing, 5 Law Rep., Priv. Co., 198.) But Consul Hewlett has again reported, with reference to this particular case, that the prisoners, if surrendered, will certainly be tortured (Colonial Office, May 8, 1862), and it has become necessary to decide what action shall be taken with regard to the demand for their surrender of these fugitives, and also what course should be followed in future by Her Majesty's Government with respect to extradition under the Treaty of Tien-tsin.
In the despatch of the Secretary of State for the Colonies to the Acting Governor of Hong Kong of the 10th August, 1865 (Parliamentary Paper, p. 1), reference is made to a previous despatch, in which it had been laid down that the humane administration of justice was an indispensable condition of handing over captured pirates to the Chinese Government for trial and punishment, and, as before stated, it has been the invariable practice, since the
"Mo-Wong case, to require, as a condition of the surrender of a fugitive under the Treaty, an assu- rance in writing that no torture will be inflicted.
This promise, however, is not claimable as of right under the Treaty, and the Viceroy, in his letter of the 12th April, 1881, to Consul Hewlett, respecting the case of the thirteen fugitives (Inclosure in Colonial Office letter of the 2nd March, 1882, p. 207), observes that "British officials are, bound by unmistakable Treaty provisions to take steps for delivering up Chinese criminals who have taken refuge in Hong Kong" and that, "as regards the non-employment of torture at the trial and investigation held subsequently to their rendition, this form of procedure was first yielded by the former Viceroy, Jui, by way of concession, and in deference to the wishes of British officials."
The Viceroy, in a further letter, dated the 19th December last, to Her Majesty's Acting Consul at Canton (Colonial Office letter of the 19th May, 1882, Inclosure, p. 5), expressed his astonishment at the release of the thirteen prisoners by the Supreme Court of Hong Kong.
The reply to this communication will be found in the Colonial Office letter of the 27th May, 1882.
In view of Sir T. Wade's Report, and especially of the statement therein recorded of one of the Ministers of the Yawen, that he could not understand how a Governor- General (meaning the Viceroy) should have given a promise not to do what he must have known Chinese law would require him to do, Lord Granville is disposed to think
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that unless and until Her Majesty's Minister at Peking shall be able to annoncé the conclusion of a satisfactory arrangement with the Chinese Government which will relieve Her Majesty's Government from all apprehension as to the risk of fugitives who may be surrendered by the Hong Kong Government being subjected to torture for any purpose, whether of evidence, confession, or punishment, the Extradition Clause of the Treaty of Tien-tsin should be suspended in its operation, and Chinese criminals taking refuge in Hong Kong should be expelled from the island as persons dangerous to the peace and good order of the Colony. (See Foreign Office to Colonial Office of the 18th April, and reply of Colonial Office of the 5th May.)
But before sending instructions in this sense to Sir T. Wado, I am to state that Lord Granville would be glad to be favoured with your opinion as to whether a refusal on the part of Her Majesty's Government to carry out Article XXI of the Treaty of Tien-tsin, pending such an arrangement between the two Governments as above suggested, would give the Chinese Government the right to denounce the whole Treaty. On this point I am to refer you to the following passage in 1 Calvo, p. 734, § 613
"En thèse générale, si l'on considère la Convention comme un ensemble indi- visible, il faut admettre qu'un semblable refus, ne porta-t-il que sur un seul point, rend caduc le Traité tout entier, et cela en vertu de l'axiome que le principal emporte l'accessoire.
"La non-exécution pout, d'ailleurs, ne porter que sur une clause relativement secondaire et ne pas impliquer l'intention de se soustraire des autres obligations qui découlent du Traité. Dans ce cas il n'y a pas nécessairement rupture complète et définitive, mais seulement matière à pourparlers et à négociations, en d'autres termes, un effet suspensif jusqu'à ce que les motifs de refus aient pu être appréciés on due forme."
In the event of your being of opinion that the proposed suspension of extradition under Article XXI would imperil the whole Treaty, I am to request that you will favour Lord Granville with any suggestions that may occur to you to meet the difficulty which has arisen in the present case, and as regards the course to be pursued in future with reference to this question.-
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