13th July. Iris unfortunate that just when foreign Powers are making claims on the Chinese, incidents should occur which lead the Chinese to think that they do not obtain from foreigners the same justice which they are called upon to render. We are not alluding now to the recent occurrences in the neighbouring settlement, of which enough has now been said, but to the recent affair in the Shanghai City. It should "be understood at once that the delay in making enquiry into this alleged murder is due to the Chinese authorities, who have had a difficulty in getting an inter-fated satisfactory to them. It is to be leid, we are informed, in about a week's time; but unfortunately Japanese criminal procedure is based on that of France, and at the preliminary enquiry which is necessary in what the Japat exe law classes as a major offence, ie., Fears? hard haboutF Meithiér laivyers, reters, nor the public can be present.
ith vs, a preliminary enquiry of this kind would be held publicly by the police magistrate, and both accusers and accused would be allowed counsel to represent them; the prisoner is presumed: innocent, and all doubts go in his favour, and he is not even committed for trial, unless there is strong prima facie evidence against him. Should the Japanese Consul find there is sufficient prima facie evidence to commit the three men who are charged with causing the recent death in the city, he has not, unfortunately, the power to try them here, but has to remit them to the higher court at Nagasaki, his power only extending to crimes punishable with five-years' hard labour or less. We cannot doubt that this will seem a hardship to the Chinese, who will have to send their witnesses to Ni disconcerting matter for the neighbours of the unfortunate pedlar. To them a sea-voyage of five hundred miles, followed by the necessity of appearing in as the Japanese are by the commonalty a foreign court, among 2 people feared of this partof China, is "no joke. court at Nagasaki will be open, however, and both sides will be allowed. legal assistance, and there is no reason to doubt that justice will be done.
In considering whether this is. right by treaty between the two countries, as well as being fair, we have. some difficulty. in coming to a conclusion. Article III of the ty of Tientsin between China.and Japan says: "The system of government and the penal enactments of the two governments being different from each other, each shall be allowed to act in entire independence. There shall be no- interference offered nor shall requests for innovations be obtruded." This might be construed to mean that one government is not to complain of the judicial system of the other, nor suggest its alteration. The Chinese then, if this article has any bearing on the matter cannot complain if the Tapanese judicial system requires a preliminary enquiry in private, and the removal of the prisonere to Nagasaki for trial. But this seems to conflict with Article XIII, which says: "If any subject of either Power connect himself at any of the open ports with lawless offenders for purposes of robbery or other wrong-doing... active measures for his apprehension shall be taken by the proper authority, and notice shall at the same time be given without delay to the Consul of the offender's nationality. Any offender who shall venture, with weapons of a murderous nature, to resist capture, may be slain in the act without farther consequence.
When arrested and brought. up for trial, the offender, if at a port, shall be tried by the local authority and the Consul together." 'Ihe whole tenour of this article points to the recognition. a very modified form of extraterritoriality: an' offender is nater-yr und 10¢al authority, nor, as in the case of a British subject committing a crime in China, is he to "be tried and punished by the Consul, or other public functionary authorised thereto" according to the laws of his own country; but he is to "be tried by the local authority and the Consul together." In a subsequent section the article says that if subjects of either Power assemble to the number of ten or more to foment disorder, ete., the local authorities may arrest them, and "if at a port, their Consul shall be informed, in order that he may take part in their trial, If in the interior, the local authority shall duly trythem, and shall officially communicate particulars to the Consul. In either case capital punishment shall be inflicted at the scene of commission of the offence." This is a most important clause, because it conflicts altogether with the Japanese regulation that offenders charged with a crime punishable with more than five years' hard labour, must be sent to Japan to be tried.' Here-is distinct provision made for Japanese offenders charged with a capital offence being tried by the Chi-'The nese. authorities and their Consul, and, if found guilty, executed at the scene of commission of the offence. The Japanese criminal code, it appears from this, con-fiots with the treaty made with China in 1871 and still in force; conflicts ix toto in a case of conspiracy to foment disorder, and almost as strongly in the case of serious crime of a non-political nature. The provision that "the offender, if at a port, shall be tried by the local authority and the Consul together" cannot be said to be satisfied by the offender's undergoing a private preliminary examination before the Con-oon ¥ the Chinese local, aucommitted for trial to Nagasaki.
ority is. also present—and bei generally understood, in international law, that municipal legislation cannot override treaty engagements; and when ther the Chinese authorities have urged this. treaty provision, or propose to acquiesce in. its being set aside in order not to raise trouble, we do not know; but we cannot help fearing that a bad impression will be left on the mind of the Chinese if the men accused of murdering the Chinaman in the City are sent away to Japan to be tried; in doing which, however, the Consul here will only be acting on his instructions, and for this course he is in no way personally responsible,
Text read from the printed page and cleaned; old type leaves the occasional error.