CO885-(10-11) — Page 493

587.

SIR,

No. 382.

(Hong Kong.)

LAW OFFICERS to COLONIAL OFFICE.

Lincoln's Inn, January 13, 1866. We are honoured with your commands signified in Sir Frederic Rogers' letter of the 5th of January instant, stating that he was directed by you to request that w would take the enclosed Ordinance into our consideration, and favour you with our opinion, whether the mode provided for the rendition to the Chinese Government of Chinese pirates captured beyond the jurisdiction of the Colony is open to any objection.

In obedience to the commands contained in Sir Frederic Rogers' letter we have taken this matter into our consideration, and have the honour to

Report

That we entertain serious doubts as to the propriety and expediency of this Ordi- nance with respect both to the general principle involved in it, and to the actual state of the engagements now subsisting between this country and China on the subject of extradition, and the questions which have arisen out of those engagements.

With respect, first, to the general principle. Piracy wherever and by whomsoever committed (unless within the proper territorial jurisdiction of some foreign country) is an offence justiciable by British law and before British courts, and it is by virtue alone of this general authority belonging to all nations to deal with piracy, that officers of Her Majesty's Navy are justified in bringing Chinese pirates, in the manner con- templated by the preamble of this Ordinance, within the jurisdiction of the Supreme Court of Hong Kong. It is a thing unprecedented so far as we are aware for one nation to hand over to another nation offenders over whose offences it has itself proper jurisdiction, and over whom it has so far asserted that jurisdiction as to take them into the actual custody of its own officers, on the ground, merely, that such offenders are subjects and citizens of such other nation.

But, secondly, if such a practice were less questionable on general principles, that it seems to us to be, we should still hesitate to think that it ought to be adopted under. the circumstances of the actual relations between Great Britain and China. The extradition of Chinese subjects to the Chinese Government for piracies not committed within Chinese territory, is certainly not required by the present treaty engagements between the two countries; and considering that no reciprocal obligations of ex- tradition whatever have been undertaken by the Chinese Government towards ourselves, it scarcely seems prudent to enlarge by voluntary legislation our practice of extradition to China, unless the Chinese Government are at least prepared to make some concession in return by revising the provisions of the treaties in this respect, and placing them upon a basis more satisfactory to this country. Furthermore, the crime of piracy being one of those which are punishable according to Chinese law by cutting to pieces (a mode of capital punishment so opposed to our feelings of humanity as to have suggested the question whether even the clearest requirements of the treaties, when they might involve this consequence, ought to be complied with), it seems extraordinary that legislation of this kind should be now proposed, especially if we are right in believing that the latest advices from Pekin hold out no prospect of any miti- gation, either of the letter, or of the practical administration, of Chinese criminal law in this respect.

It would, no doubt, under this Ordinance be altogether within the discretion of the "'of any pirate to the Governor of Hong Kong to grant, or to refuse," rendition Chinese authorities, and we take it for granted that the Governor would in no case, whatever, order any such "rendition" without first receiving a positive assurance that the barbarous mode of punishment above referred to should not be inflicted. It is not, however, too much to assume that the same policy which has caused such an Ordinance to be proposed, might probably also cause it to be generally acted upon, and, however positive might be any assurances given that barbarous punishments should not be inflicted, we are unable to see what security there would be for the fulfilment of those assurances after the criminal had been moved beyond all oppor-

British authorities. tunities of observation by any

We have, &c. (Signed) ROUNDELL PALMER.

R. P. COLLIER.

The Right Hon. Edward Cardwell, M.P.

&c.

&c.

&c.

o16978-88.

25.-5/86.

PUBLIC RECORD OFFICE

Reference :-

C.O. 885

11 PUBLIC RECORD OFFICE, LONDON

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

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