Opinion of the advocate-general., May 17, 1879

Opinion of the advocate-general.

My opinion is asked for on the following case: Empress vs. John Anderson.

A British subject serving on board an American merchant ship is accused of committing murder on board that ship, when on the high seas. The ship comes to Calcutta, and the prisoner is handed over for safe custody to the police. The American consul claims to have the man delivered to him for trial in America. Does the case come within the provisions of the extradition law, or should the man be tried here?

The Indian act of 1872 as to extradition, gives me no help in this case. The act, in my opinion, applicable to the case, is the English extradition statute of 1870. Although there has been no order of Her Majesty’s council extending that act to the American treaty of extradition (and which, although stated by the American President as one that the United States are not inclined to continue to recognize, has never been formally revoked, and has in fact been since that speech acted upon by England), still, section 27 of that act does not seem to require an order in council in the case of America.

The sixteenth section of that act provides for crimes committed at sea, and the interpretation clause as to the words “fugitive criminal of a foreign state,” would at first sight seem in the case of crimes committed on board an American ship, that being a place in the “jurisdiction “of America, to include crimes committed by British subjects as well as others.

The decision in the Queen vs. Wilson (32 B. Div. 42), would also appear to make it necessary, unless the treaty expressly excludes the British subject to give up to the foreign nation a British subject who has committed a crime in the foreign jurisdiction.

But my opinion is that the case in question would not apply where the English or Indian courts also have jurisdiction, but only to cases where the foreign court has exclusively jurisdiction.

If a British subject commits a murder on American soil he cannot be tried in England, and I read the acts as intended to prevent a criminal from escaping from justice. But if he commit a crime, such as murder, on the high seas, even in a foreign vessel, he offends against the English law as well as the law of the ship on which he sails, and he can be tried by the high court here in its admiralty jurisdiction.

The point might be considered to have been settled by the opinion of the law-officers in England of the 25th of October, 1887 (1868 For Dep. Political A. proceeding’ January, No. 100), but as that opinion was given before the new statute and the decision of the Queen vs. Wilson, I have stated my reasons at length.

The man should, if the evidence be sufficient, be sent for trial before the high court, and he ought not to be delivered to the American consul.