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As regards the extradition of the Emperor's subjects, the question arises whether in strictness a nation is bound under an extradition treaty to give up one of its own subjects. In this country no objection is made on that ground, but it is believed that France would not surrender a French subject.
Mr. Hammond was also pleased to state that your Lordship is prepared, with our concurrence, to instruct Her Majesty's Minister at Pekin to endeavour to come to some understanding with the Chinese Government on this matter, and to record that under- standing either in the shape of a treaty or otherwise as may be found practicable, but that your Lordship would be glad to receive from us any suggestion as to the exnot propósition which it would be expedient to place before the Chinese Government.
Mr. Hammond was also pleased to state that we should observe another question, respecting Chinese witnesses whose evidence is required in cases pending before the Colonial courts. That the Chinese authorities do not seem indisposed to allow their attendance; but in cases when the witnesses are themselves accused of crimes they require a guarantee for their safe return in custody to China to be dealt with by Chinese law for the crimes laid to their charge.
Mr. Hammond was also pleased to state that as many considerations on this point might occur to us your Lordship wishes to have our opinion upon it.
And that other points might occur to us on the perusal of this correspondence as deserving our attention, as to which your Lordship desired him to invite a full expression of our opinion.
Mr. Hammond was further directed by your Lordship to state that in dealing with questions of this kind with the Chinese Government it will be necessary to take into account the feelings and prejudices of a peculiar people, and to be satisfied with obtaining an end without too much insisting on formalities.
In obedience to your Lordship's commands we have taken this matter into our consideration, and have the honour to
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the purpose of extradition which would not be so in the place where extradition is demanded if the act had been done in that place. It is difficult to see how the authorities of Hong Kong can try the question of guilt by the rules of Chinese and not of their own law.
It applies only to those who "shall take refuge," &c., which would not extend to pirates or others captured and taken to Hong Kong by British authorities; who would be justiciable there by British law.
It cannot, we think, be extended to mere political offenders, and it would be a just ground of complaint on our part if advantage were taken of extradition on one ground to try and punish a man upon a different charge and not on that upon which extradition was demanded.
These suggestions, together with the manifest insufficiency of Article 16 to meet the requirements of a due reciprocity in our own favour (as to which we concur in the views suggested by your Lordship), may, we think, well be made the basis of a negotiation for the revision of those articles of the treaty.
As to witnesses sent to Hong Kong from. China, local legislation will be necessary to secure their return.
The Earl of Clarendon, K.G.,
&c.
&c.
&c.
We have, &c. (Signed)
ROUNDELL PALMER.
R. P. COLLIER.
ROBERT PHILLIMORE.
Report
The Attorney and Solicitor General That we are not entirely agreed upon this case. feel unable to say that upon recognised principles of international law Her Majesty's Government would be entitled to refuse performance of the 21st Article of the Treaty of Tientsin unless the Chinese Government would agree, in cases of extradition under that article, to renounce the execution of their own laws in points as to which those laws do violence to the usages and feelings of Christian and civilised nations. They do not see how the article can be read as containing any implied condition that the criminal law of China shall in these cases be administered in a manner conformable to Christian views of humanity; and they think it would be difficult in principle to maintain that ground, having regard to the fact that this is a treaty not between two Christian Powers but between a heathen and a Christian Power.
The Queen's Advocate, on the other hand, is of opinion that a Christian Power in a treaty of extradition with a heathen State made in the 19th century must in fairness be understood to have attached to the obligation of extradition in certain cases the implied condition that whatever be the extent of the punishment to be inflicted on the criminal to be delivered up it shall not be attended with torture. For instance, he deems it to be inconceivable that any authority acting under Her Majesty should deliver up a Chinese subject guilty of felony, with the knowledge that he would be burnt alive or subjected to any torture by the Chinese authorities; and he thinks that the Chinese Government should be distinctly apprised, if not so already, that no Chinese criminal will be delivered up for the future without a sufficient guarantee in each case that he will be fairly tried, and that his punishment, if he be found guilty, be unaccompanied by any kind of physical torture.
But we all agree in thinking that it will be very expedient to endeavour to obtain, by a supplementary treaty or convention, some modification or explanation of this article which may provide against the delivery up of criminals liable by Chinese law to such punishments as we justly deem inhuman without a security against the infliction of those punishments. And for this purpose we think full advantage may properly be taken of all the uncertainties and doubtful questions which may fairly be represented as making this article, as it now stands, scarcely susceptible of any clear or satisfactory construction.
It applies only to "criminals" whose "guilt" may be "proved" in Hong Kong. But it does not define what shall be considered crimes or what guilt for this purpose. The rule in all our other extradition treaties is not to regard anything as a crime for
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