dom h
110
Amy diplomatic representation to the Spanish Government upon the subject.
The original indroure, in four letter under reply, are returne & herewith.
I am,
Sir
Four most obedient
humble servant. Jtt Sanderson
C
C
SPAIN.
No.
RECO
C.C.
6365
[REC 19. APR 93]
The Law Officers of the Crown to the Earl of Rosebery-(Received April 7.)
My Lord,
Royal Courts of Justice, April 5, 1893. WE were honoured with your Lordship's commands (relative to a question of Jurisdiction jurisdiction over a foreign merchant-ship in British waters) signified in Sir Thomas Sanderson's letter of the 18th March last, stating:
That on Fernel, Spanish subject, at Hong Kong.
Arrest of
That a Spanish subject named Fernel had absconded from the Spanish Colony of Manila, having been accused of the embezzlement there of 12,000 dollars. the request of the Spanish Consul at Hong Kong, a provisional warrant had been issued for Fernel's arrest in the event of his arriving at Hong Kong, with the view to his extradition.
That Fernel had arrived in the harbour of Hong Kong on board a Spanish vessel, the "Don Juan," and that whilst the British police were searching that vessel, an officer and boat's crew from the Spanish man-of-war "Reina Christina," which happened to be in port, had boarded the "Don Juan," seized the man Fernel, and had him taken on board the Spanish man-of-war, refusing to give him up to the police.
That the Governor of Hong Kong had requested that the man should be handed over to the territorial authorities, and that this request appeared to have been eventually complied with, after some correspondence between the Governor and the Spanish Consul, who maintained that the "Don Juan" retained, in regard to this circumstance, immunity from the jurisdiction of such territorial authorities.
That Fernel was subsequently brought before the Magistrate at Hong Kong upon extradition process in the ordinary manner, and after having been committed to gaol for the statutory period of fifteen days, which must elapse before a surrender by way of extradition, he had doubtless since been handed over to the Spanish Government, although that fact was not actually stated in the correspondence.
That this particular incident had thus been closed satisfactorily, but that the Governor of Hong Kong had suggested that the matter should be represented diplomatically to the Spanish Government with the view to the prevention of similar incidents in the future.
That no case involving considerations of an exactly analogous nature had, so far as was known to the Foreign Office or to the Admiralty, to whom special reference had been made, yet arisen.
That in 1891, however, a case, certain aspects of which it might be useful to consider in connection with the present inquiry, had arisen. That on that occasion the United States' Government had claimed the extradition of T. W. Holt, a fugitive from the justice of the United States, who was on board a German mail-steamer within British territorial waters off Southampton, and our attention was called to the reports given upon this case by our predecessors and dated the 26th June and the 7th November, 1891, respectively, from the latter of which it appeared that Sir R. Webster had differed in opinion upon the subject from Sir Edward Clarke, who had considered that an extradition warrant could only be executed upon a foreign vessel in British waters when such vessel belonged to the Power claiming extradition, and the fugitive was either a British subject or a subject of such Power.
That it appeared to your Lordship that all questions regarding the apprehension of persons in British territorial waters must primarily be governed purely by considerations of English municipal law, and that in such case the question whether a particular person was or was not wrongfully arrested was a question which would have to be decided (either on habeas corpus or otherwise) by a British Court administering English or British colonial law, according to the circumstances of the particular case.
[221-17]