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Colonial Cases

Japanese Spies, 1896


Source: North China Herald, 2 September, 1896


24th Sept.

THE reference in our correspondence from Nanking, published in another column, to the removal to Shanghai of the coffins of the two Japanese who were beheaded in Nanking two years ago on the charge of being spies, brings again to view the case which has caused much diplomatic correspondence and some dispute as to the interpretation of international law. 

   On the 13th of August,1894, two Japanese names Kusuwuchi and Sukuhara were arrested at the instance of the Shanghai magistrate. It has been supposed by some that the Chinese were allowed to make the arrest themselves, but this is a gross mistake, for the men were taken into custody by the French Municipal Police on a warrant issued by the French Consul-General.  At that time war had already been declared, and on the request of the Japanese and Chinese Governments the United States' Secretary of State, under date of the 26th of July, had instructed the American Charge, Mr. Denby, to "afford friendly offices for the protection of Japanese subjects in China, either directly or through consuls acting under your instructions."

   Although the despatch had been published in all the local papers and had become a subject of general discussion, the French Consul-General signed the warrant for the arrest of the men and detained them in gaol for twenty-four hours before he made the U.S. Consul-General officially aware of his action. This was an unintentional error for which M. Dubail afterwards expressed his regret, but it made the quiet escape of the young men impossible.  After having been sheltered in the U.S. Consular Gaol for more than two weeks, and the importance of due deliberation being thus impressed upon the Chinese Government, on the 1st of September the men were delivered to the Taotai by the U.S. Consul-General under the special instructions of his Government. Thus, it is clear that in this case there was no breach of the extraterritoriality clause of the Treaties, since the men were arrested and were also delivered in the usual manner by the orders of foreign offices, China having no authority whatever in the matter. In the event of any future war this incident cannot be quoted as a precedent for invading the rights of concessions which are not under Chinese domain.

   The action of the American Government in delivering the men to the Taotai has been severely criticised.  This is a just criticism in some respects, but fairness to Secretary Graham demands that it should be stated that he did not give the order to deliver the two Japanese until he had consulted with the Japanese Legation in Washington and received the answer from the Japanese Minister that there was nothing else to do. Even then he received a promise from the Chinese Minister at Washington that there would be no final disposition of the case until the arrival at Peking of Col. Denby, who was at the time absent.

   However, it ought also to have been stipulated as the U.S. Consul-General, Mr. Jernigan advised, when the men were delivered to the Chinese authorities, that the U.S., which was exercising "friendly offices" would expect to have a representative present at the trial of the men, and in this it would have been acting within reasonable interpretation of this term. Such a right is plainly given in the Treaties in cases where the citizen of a foreign country is concerned and ought always to be insisted upon in dealing with China, which is not recognised by Western nations as a civilised Power, and has no jurisdiction over foreign citizens resident in her country.

   The case would have been different if the friendly mediation had been between two civilised Powers. During the Franco-German War of 1870 the American Minister at Paris received instructions similar to those sent to Mr. Denby. But the case was entirely different, as pointed out by the New York Sun, between delivering a suspected spy to China which has no judicial procedures approved by Treaty Powers, and delivering one during 1870-71 to Germany, "whose courts are known to treat accused or convicted persons in a just, equitable and humane way." This is the very reason why the treaties provide for representation in Chinese Courts which are trying a case in which foreign citizens are involved, and it ought not to have been lost sight of by the United States' Secretary of State. 

   The proceedings of Chinese Courts are often secret and their doings are only known to the pitying heavens. This unfortunate case ought to make every foreign nation having dealings with China in future insist upon a representative being present at all important trials where his nationals are concerned.  Only in this way can the truth be known. If a representative had been present at the trial of these two Japanese subjects, the final verdict might not have been changed, but the confidence of all nations in its justice would have been greatly strengthened.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School