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2515.

PUBLIC RECORD OFFICE

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Reference :-

C.O. 885

10

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

PUBLIC RECORD OFFICE, LONDON

No. 163.

(HoNo Kowa.)

LAW OFFICERS to FOREIGN OFFICE.

Temple, February 24, 1863. Mr LORD,

We are honoured with your Lordship's commands, signified in Mr. Hammond's letter of the 29th January ultimo, stating that he was directed by your Lordship to transmit to us the accompanying letters and their enclosures from the Colonial Office, from which we would see that a question had been raised at Hong Kong whether, under the provisions of the regulations in force in that island and of the Treaty of Tientsin, the Chinese Government had the right to demand the extradition of persons accused of political offences against that Government.

Mr. Hammond was also pleased to enclose copies of the Treaty of 1843, referred to in these papers, and of the Treaty of Tientsin and Convention of Pekin, and to request that we would take the matter into our consideration, and favour your Lordship with our opinion as to the instructions which should be sent to the Governor of Hong Kong.

In obedience to your Lordship's commands we have taken this matter into considera- tion, and have the honour to

Report

"crimes or offences

That the crimes for the commission of which in China by Chinese subjects the Government of that country has the right to demand the extradition of the accused, being fugitive at Hong Kong, are, in our opinion, generally crimes against the muni- cipal law of China. In the Supplementary Treaty of 1844 (which, though abrogated by the 1st Article of the Treaty of Tientsin, may properly be referred to a question of the construction of the later treaty) this was expressed in terms, against their own Government" (Article 9), and the Regulation of 20th March 1850, made for carrying out that treaty, naturally adopts similar language, "crime or offence against the laws of China." It is true that the terms of the Treaty of Tientsin (Article 21) are more general, namely, "criminal subjects of China;" but, inasmuch as the crime supposed must have been committed in China, and the criminal must be "in Hong Kong in order to make a person fugitive from China and taking "refuge "extradition" applicable, it follows that, under the existing as well as under the former treaty, the "crime" must be a crime against Chinese law. When, therefore, a Chinese is accused at Hong Kong of crimes which in Europe would be described as "political offences," the only question as regards the nature of the accusation that appears to us properly to arise is this, Is the particular offence in its circumstances (if proved) an infraction of the municipal law of China? And this, of course, it may be, although ranging under the head of political offence.

"

In expressing this conclusion we must observe that in the extradition portions of the Chinese treaties a course has been pursued entirely opposite to that which has been followed in the framing of treaties of extradition entered into between Great Britain and various European and American States. In those treaties a very limited number of the most heinous crimes are enumerated as those to which alone extradition are ever to be found; is to apply; and in such enumeration no "political offences whereas (as it seems to us, unfortunately,) in the treaties with China the British Government undertake to deliver up fugitive Chinese criminals to the Chinese autho- rities whatever the nature of their crime may be, provided only it be a crime against the law of China, and the "guilt" of the accused be "proved." The explanation of this difference is probably to be found in the circumstance that the places in which Chinese criminals might take refuge from the laws of their own country, and from which they would be delivered up under these treaties, were not territories belonging, by any original and independent title, to the British Crown, but were either British ships, houses, or factories, within the Chinese territory itself, or British ships frequent- ing Chinese waters for trade, or portions of the former territory of China, ceded by these treaties themselves to Great Britain.

• 16978.-41. 95.-2/86.