In deciding a case Ike this, the first question for the Court to' con sider, is whether China is under any treaty obligation to hand over to the Hongkong authorities a person who is alleged to have committed an offence there, and this Court, by virtue of the Criminal Procedure Act, article 21, has jurisdiction. AL present, there is hot in existence any. extrad treaty between this country' and Great Britain. The "only treaty provision concerning this matter is Found in the Treaty of Tients 1858, which, inter alia, tan in criminals, subjects of hina found in her-territory on charges brought by a foreign government, So far, there is no law in Ching either authorizing or forbidding the Executive Government to surrender to a foreign court, a citizen of China who commits a crime abroad. The absence of legal provision may be construed in two ways:
On the one hand, it is held by many jurists, notably in Ameriet that, in the absence of law authoriing "extradition, no such action can be taken. Secretary Jefferson, writing to the President in 1791, says:
"The laws of the United States, ike those of England, receive every, fugitive, and mo. authority, has eon given to, cur executives to deliver them' up."
Attorney-General Wirt thought also in 1821: that "the President of the United States has no power to make the delivery unless under treaty or Act of Congress.
In 1834, Secretary Forsyth, in reply to the British Minister, said, that ""in the absence of a treaty, thority of. the executive to exercise an act of such important effect upon the rights of personal security is more: than questionable."
Matter of Personal Liberty Mr. J.C.B. Davis expressed his opinion in 1873, that "the authority. of the executive to abridge personal liberty within the jurisdiction of the United States and to surrender fugitive from justice in order that he may be taken away from thely jurisdiction, is derived from the Statutes of Congress." Similarly, Secretary Frelinghuysen clared in the ease of Trimble, 1884, that "by the opinion of several torneys-General, by the decisions of cur Courts, and by the rulings of the Department of State, the President has mot, independent of treaty provi he power of exe traditing an American citizen,"
Again, Secretary Gresham, in his note to Portugal in 1895, intimated that "in the absence of a treaty or an Act of Congress authorising it, the President has.no authority to cause the arrest and extradition to another country of an alleged the criminal found within th gull, be manner, If Chinese offer fers take refuge in the houses, ume way, Secretary Day, answer ing a note from the Argentino in 1808, made it clear that, in' the ts United States, "the general opinion practice has-been that in the absence of a convention or legislative provision, there is mo authrity in the Government to deliver up & fugitive criminal to a foreign Than Real Poet Sel onl The same view is held in England and Belgium, although some reuction has been noticeable in the former country since 1827, when the Royal Commission was appointed to inquire into the question of extradition. On-the other hand, the contrary view ig maintained' in France, Argentine, and Brazil, Tei, ale air ea me in China having jurisdiction over aa coins tate a Satay Gt arse Sat fie'Taite en rae ey wanterer dant
Text read from the printed page and cleaned; old type leaves the occasional error.