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United States Department of State / The executive documents of the House of Representatives for the second session of the fifty-second Congress. 1892-'93

China,   pp. 69-161 PDF (40.4 MB)

Page 69

                      31r. Denby to Mir. Blaine.
No. 1401.]                 LEcGATION OF TEIE UNITED STATEIS,
                Peking, October 10, 1891. (Received November 28.)
  SIR: I have the honor to inform you that I consider it desirable that
you should instruct me as to a question of extradition which has never
been determined by the Department, and is not treated in the recent
excellent work on extradition by Hon. John Bassett Moore. In section
109, page 140. volume 1, and section 89, page 100, same voluime, this
author holds that the consuls in China have not the power of extradi-
ti)on from their territorial consular districts.
  The question that I present is whether a consul can direct an abscond-
ing criminal, found on an American ship in a Chinese port, to be deliv-
ered up to a nation with which w e have an extradition treaty.
  It is familiar law that merchant vessels on the high seas are construc-
tively regarded as a part of the territory of the nation to which they
belong. (See section 101, page 135, volume I, of the book cited.) This
principle, as between Great Britain and the United States, has been
extended so as to make the flag the test of jurisdiction in the ports of
eastern countries where extraterritoriality prevails.
  In exceptional cases the judicial authority of consuls over persons
serving on American vessels in China and Japan has been construed
as authorizing consular officers to assume jurisdiction where offenses
are committed on shore by foreigners serving" on board AVmerican mer-
chant vessels. See treaties, 1776 -8S7. 1).1284. _1. then, an American
ship lying in a Chinese port is thus to all intents and purposes held to
be American territory, can a consul exercise the right of extradition as
to a person aboard thereof where a proper case arises ?
  I fear that the answer may be that he can not, because no United
States statute vests this power in him, and the regulations in force for
the consular courts are silent on the subject. The difficulty would then
have to be met by an act of Congress, or, if that be possible, by a new
regulation decreed by the minister.
  I respectfully call your attention to my dispatch, No. 906, of June 8,
1889, in which the identical case mentioned is reported. A convict
escaped from the Manila penitentiary and embarked on an American
ship bound for Amoy. As we have an extradition treaty with Spain, I
directed the consul to surrender him to the Spanish authorities upon
proper proof being made. The man escaped before arrest and nothing
was done.
  The Department simply acknowledged my dispatch and made no
comment thereon. The recent riots in China anddthe smuggling of arms
by a foreigner for insurrectionary purposes and rumors wide-spread that
foreigners were about to seize the Foochow arcenal-which are without
foundation-have directed inv attention again to this question of extra-
dition, among other questions touching the criminal jurisdiction of the

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