London, 19th June.
The Artonsey-(iexeRat of Hongkong The first question which their Lordships will consider is whether that there was sufficient prima facie evidence against Kwok-a-Sing to prove that he was guilty of the murder of the French captain, and that hho was guilty of piracy jure gentium in running away with the French vessel, these acts constitute crimes and offences against the law of China within the meaning of the Ist sect of Ordinance No. 2 of 1850, or crimes offences against the Government of China within the preamble of the same Ordinance. There is no doubt that the extreme generality of the words "crimes and offences against the Jaw of China" makes their construction very difficult. They cannot be intended to mean that every Chinese subject who is proved to ave done something which the law of China makes a crime or offence is to be given up to the Chinese Government. If this were the meaning of the words, every Chinese who had done something which the law of China treats as a political offence, or who had done anything thatthe law of Chinatreatsaseriminal, though the law of all European countries treats it as innocent, might be given up. Some limitation, therefore, must be put upon the meaning of the words, and their Lordships think that, in determining what this limitation is to be, they ought to bear in mind the sition of the colony of Hong Kong with reference to China. There was, when th Treaty was made, a manifest risk that the colony of He ong might become the refuge of the criminal classes of the city of Canton and other Chinese towns, and it was impossible that the Colonial ' Government could punish Chinese subjects for acts com mitted within the territory of China, Having regard to this object, their Lordships th that the words "crimes and offences" ought, to be confined to those ordinary crimes and offences which are punishable by the laws of all nations, and which are not peculiar to the Jaws of China. In the Treaty of Tientsin the persons to be delivered up are described erally ws criminals. All ordinary crimes—such as murder, robbery, theft, arson—com-nitted by a Chinese within Chinese territory Chinese ships in the high seas would be within the meaning of the ordinance. Their Lordships are also of opinion that piracy, at least in circumstances, would be within the ordinance. They think it may be properly assumed, without proof, that China has laws to punish piracy on her own coast, and if it was proved that a subject of China who had taken refuge in Hongkong was a pirate in th sense—that he was a person who went from the Chinese coast to plunder ships at sea, returning with his plunder again to China they. are of opinion that guelt'a person might be given up under the ordinance. On a claim for the rendition of such criminals as these, it would not, in their Lordships' opinion, be necessary to produce the evidence of experts to prove what is the law of China. Their Lordships have now to consider whether there was evidence that Kwok-a-Sing had been guilty of crimes against the laws of China. He is accused of two crimes, murder and piracy. The alleged murder was the murder Frenchman on hoard a French ship, in which Kwok-a-Sing was a passenger, on the high seas. They have, therefore, to consider whether marder by a subject of China of a person who is not a subject of China, com.
ted outside the Chinese territory, is a crime against the laws of China within the ing of the ordinance; and they' are of opinion that it is not. Their Lordships cannot assume, without evidence, that China has lass Ly which a Chinese subject can be punished for murdering beyond the boundary of the territory a person not a subject of China. Up toa comparatively late period England had no such laws. Moreover, although any nation may make laws to punish its own jects for offences committed outside its own territory, still, in their Lordships' opinion, the general principle of criminal jurisprudence is that the quality of the act done depends on the law of the place where it is done, Now, the law as to what constitutes murder differs in different places. Suppose that a subject of China kills an Englishman within English territory, or on board an English ship, under circumstances which, according to English law, might amount' to manslaughter only, could it possibly be right for the English Go-yernment to surrender such a person to the Chinese Government to be tried according to Chinese law, to which the distinctions between murder and manslaughter may be wholly unknown? On the whole, therefore, on these tivo grounds—first, that it cannot be assumed without -evidence' that there is any law in China to punish a Chinese subject for a murder committed upon a foreigner within foreign territory; and secondly, because oven if it could be assumed there was such a law, still, this offence having been committed within French territory ought to be treated offence against French law, and not as an offence against Chinese Jaw. Their Lordships were of opinion that there was no evidence before the magistrate that Kwok-a-Sing, in murdering the French captain, committed an offence against the laws of China according to the true construction of the ordinance, Their Lordships have next to consider when ther there was sufficient evidence before the magistrate that Kwok-assing had committed an act of piracy jure gentiem, and if there was such evidlenice, whether that would make his imprisonment, for the purpose of being delivered to the Chinese authorities, Iawfal. Now, thei Lordships are of opinion that there was before the magistrate sufliciont primd facie evidence that Kwok-a-Sing had committed an act of piracy jure gentium to justify his committal for trial for tat offence at Hongkong. They see no reason to doubt that the charge of Sir Charles Hedges, Judge of the Admiralty, to the Grand Jury, a8 reported in the ease of "Nix v. Dawson," thirteen State Trials, G54, and which was mace in the presence and with the approval of Chief Justice Holt and several other Common Law Judges, contains a correct exposition of the Law as to what constitutes piracy jure gentium, Wie there says, Piracy is only 'a sea term for robbery, piracy being a robber; within the jurisdiction of the Admiralty. if the mariners of any ship shall violently' dispossess the master, and afterwards carry away the ship itself or any of the goods with a felonious intention in any place where the Lord Admiral hath jurisdiction, this is robbery and piracy." Of course there can be no difference between mariners and passengers, and there was unquestionably evidence that Kiwok-a-Sing was a party to violently. dispose sessing the master and carrying away the ship itself and the goods therein; and the only question can be whether there was sullicient evidence that the act was done with a felouious—that is, a piratical intention. In their Lordships' opinion, there was evidence of such an intention on the part of Kwok.a-Sing fit to be left to a jury, though we wish to he understood as giving no opinion which way a jury ought to lind on this question, Next we aust consider what was the legal duty of the ma-ate when he had received the evidence ought he to have signed a warrant enabling the Governor to deliver Kwok-a-Sing to the Chinese authorities to be tried fur both murder and piro ut he to have committed him to be tried for the piracy at Hongkong? In their opinion, he ought to have conimitted him to be tried for the piracy at They th racy plainly distinguished from those acts ut piracy which they have before stated to te, in their inion, within the ordinance and the treaties, ubjects starting from and retnrning to Chinese territory attack a ship of some other nation, whether in harbour or at sea, they, making that territory as it were the base of their operations, must be held to commit offence ayainst the municipal law of China and against the Chinese Goverment, whether they commit an act of piracy jure geutiam or not; hut if Kwok-a-Sing committed an offence against the municipal Jaw of any' nation he committed an offence against the municipal law of France, to which he was subject at the and not against the municipal Taw of ud if he is punishable by the law of eis only so punishable because he
Text read from the printed page and cleaned; old type leaves the occasional error.