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Colonial Cases

Japanese Government v. Bethel, 1907

[sedition]

Japanese Government v. Bethel

Consular Court, Seoul
16 October 1907
Source: The Times, 17 October 1907

 

KOREA.

CHARGE AGAINST A BRITISH EDITOR.

SEOUL, OCT. 16.

 Mr. E. T. Bethell, a British subject, who is editor of the Korean Daily News and also of a journal printed in the Korean language and called the Dathan Shimpo, appeared before the British Consular Court to-day on a summons charging him with using the columns of his papers to incite the people of Korea to riot.  Articles were read in Court containing a bitter criticism of the preparations made for the reception of the Japanese Crown Prince.  The Consul bound over Mr. Bethell in heavy security to be of good conduct in future, and warned him that a repetition of the offence would result in the forfeiture of his security, and probably in deportation.

 

IN HIS BRITANNIC MAJESTY'S
SUPREME COURT FOR CHINA AND COREA

HOLDEN AT SEOUL

R v Betthel

Before FSA Bourne, Assistant Judge

Date of Judgment:  15 June 1907

Mr H.P. Wilkinson, Crown Advocate (Shanghai), appeared for the Prosecution

Mr C.N. Crosse of Kobe, appeared for the Defence

Original Report:  Seoul Press, reproduced in the North China Herald of 27 June 1908 [selected, edited and transcribed by Douglas Clark, barrister, Hong Kong]

Judgement:

Ernest Thomas Bethell, I find you guilty of the offence complained of.

Your counsel urged that you ought not to be tried summarily, but on a charge with a jury. Article 5 of the Order in Council, 1907, is silent as to the mode of trial. Articles 45 and 48 of the Principal Order, therefore, apply which provide that an offence such as be tried summarily, provided this may that no greater punishment shall be than imprisonment for three months or a fine of £20 or both awarded.  Article 5 makes sedition a grave offence against the Order punishable by a maximum imprisonment of two months and a fine of £1O. The offence complained of can, therefore, be tried summarily. In regard to deportation it appears that Article 83 (2) (3) of the Principal Order apply to a case tried summarily; but I think that if the Crown intended to press for "deportation on a further conviction for a like offence " (Article 5 (1)) the case would have to be tried with a jury, as this further penalty not authorized by Article 83 would bring the case under the proviso to Article 48. The Crown elected to proceed summarily, and I saw no special reason myself to order a jury under Article 45(3).

Now the offence complained of is that you published in your newspaper on April 17, April 29, and May 16 seditious matter contrary to Article 5, of the Order in Council, 1907, which provides that any person who prints seditious matter shall be guilty of a grave offence against the Order and defines seditious matter to be "Matter calculated no excite tumult or, disorder, or to excite enmity between the Government of Korea and its subjects."

Bearing that definition in mind I will turn to the papers complained of. The article of April 17, on the subject of the murder of Mr. Stevens, refers to his assassins as patriots and as loyal and righteous gentlemen because they murdered a man who supported the Japanese protectorate of Korea, and continues to talk about the freedom and independence of Korea.  One cannot read it as a whole without being convinced that it was intended to be a rallying cry to the Koreans to throw of the protectorate of Japan. In the article of April 29 on the subject of Metternich, Korea is palpably being compared to Italy in the middle of last century: the article ends:

"But at last patriotic sons of Italy rose up in great force and with banners of right flying and with bells of freedom ringing, opposed him. That Metternich who was like a devil, fox and badger had to put up the white flag and fleeing his native country to spend the rest of his life in a foreign land.  This should serve as a warning to such as may have the same barbarous mind as Metternich and like him plot against another country."

The article of May 16 about "the finger blood of the seventeen students" says:

"We will certainly recover our Korea. . . What heroes have left glorious monuments in history except through blood?"

I cannot doubt that these articles incite the Koreans to rise against the Japanese, looking to the present condition of the country. And I am bound to take judicial notice not only of the three Treaties by which the Korean Government has submitted itself to the Protectorate of the Japanese Government, but also of the actual political condition of Korea, because I am sitting in the place of a Korean judge and exercising powers which have been delegated by the Emperor of Korea to the King of England.  

I am not the King's Judge in virtue of his territorial sovereignty as a Judge in England is, but in virtue of the limited powers which Korea has granted to Great Britain.  I am to apply the law as laid down by the King in Council, but I am to take notice of Korean law and of Korean political conditions (Secretary of State v. Charlesworth, 1901, A. C. 373). In Regina v. Sullivan (Cox Criminal Cases, Volume Xl, p. 45) tried in Dublin in 1868, Fitzgerald J. in charging the Grand Jury said:  

"In dealing with the question whether the articles were published with the seditious intention charged in the indictment you will fairly consider the surrounding circumstance; coupled with the state of the country and of the public mind when the publication took place, for these may be most material in considering the offence. For example, if the country was free from political excitement and disaffection and was engaged in the peaceful pursuits of commerce and industry the publication of such articles as have been extracted from the American papers might be free from danger and comparatively innocent but in a time of political trouble and commotion when the country has just emerged from an attempt at armed insurrection and whilst it is still suffering from the machinations and overrun by the emissaries of a treasonable conspiracy . . . the systematic publication of articles advocating the views and objects of that conspiracy seems to admit but of one interpretation."

Now what is the actual political condition of Korea?   About half the country is in a condition of armed disturbance against the Japanese: the object being to get rid of them and of their protectorate. That being the condition of the country, how can one doubt that the articles in question are calculated to excite enmity between the Government of Korea and its subjects Mr. Crosse on your behalf, urged upon me that the Japanese Government was not the Government of Korea. But if the Government of the existing Emperor, protected by the Government of Japan, is not the Government of Korea, who is governing the country? Nations sometimes fall into the wretched state of organized rebellion when a de jure and a de facto government, are existing in the same national territory at the same time, for instance in England in 1645 when the King ruled at Oxford and the Parliament in London. Here there is no existing body that can be called a government but the Emperor under the protection of Japan. By Treaty and in fact, that is the only political body that can be called the Government of Korea: so far as appears here the insurgents have no organization and no responsible leaders. I have no doubt that the reigning Emperor, under the protection of Japan, constitutes the Government of Korea, and that matter exciting enmity between the Koreans and the Japanese protectorate as these writings do, falls within Article 5 of the Order.

In regard to the punishment that I ought to inflict, your counsel has been able to urge on your behalf some very strong arguments in mitigation; the weightiest being that your intentions were fair and honest, that you cannot read Korean and could not judge with your own mind of what you published but were dependent on your Korean editor. On the other hand, Mr. Wilkinson pointed out that the effect of you, an Englishman, espousing the cause of Korean independence is that under the shelter of our ex-territorial rights your newspaper escaped Japanese censorship and your staff the arm of the Japanese law; and that your paper has become a recognized mouthpiece of Korean disaffection. This was proved by the number of treasonable articles sent you by Koreans for insertion, of which the one put in called "Explosive Thunder,'" is an example; you rightly refused to insert these, but their being sent shows the state of the Korean mind in regard to your paper.  Now I think it would be monstrous neglect of duty if His Majesty's Government allowed such a state of things to continue: it comes to this, that you being a foreign guest in this country and owing a duty of quiet and orderly conduct to its Government in return for the protection they extend to you, set yourself up as paper leader of insurrection with this Court as a sanctuary to flee to in case of danger. In what respect can you be a real leader in the forefront of the battle with your life and family and property at stake? Suppose they follow the advice of your editor and take up the sword, where will you be when their blood is flowing? Without at all questioning your courage or disinterested motives.  I say you are in a false position and likely to do the most grievous harm to the people you wish to befriend. It is my duty to warn you that if you continue to preach rebellion you must be deported.

I think I ought to be much more concerned that you should take these words to heart and regulate your conduct accordingly, than that you should be severely punished. You will go to prison for three weeks as a misdemeamour of the first division, and you will be brought up after your imprisonment and required to give security to be of good behaviour for six months or be deported. Where you are to suffer imprisonment is not yet settled : meantime I am prepared to release you on bail to come up on summons - yourself in $1,000 and one surety in $1,000 - otherwise you must remain in the charge of the Marshal of the Court.

 

Source: The Times, 27 July 1908

JAPAN AND KOREA.

KOREAN EDITOR ARRESTED.

SEOUL, JULY 25      .

The Korean editor of the vernacular edition of the Korea Daily News has been arrested charged with complicity in the alleged disappearance of a portion of what is known as the Korean National Redemption Fund, which amounted to 250,000 yen (£25,000), and was originally collected partly by the aid of the Korean Daily News with the object of paying the Korean national debt to Japan.  The journal was formerly the property of Mr. E. T. Bethell, who was recently found guilty on the charge of spreading sedition, brought against him by the Japanese authorities.  Mr. Bethell's friends now allege that the arrest of the Korean editor was secured by the Japanese because he was the chief witness on Mr. Bethell's behalf before the British Consular Court.

The British Consul has protested against the arrest on the ground that the Korean editor was employed by a British subject.

 

Source: The Times, 29 August 1910

JAPAN AND KOREA.

THE POLICY OF ANNEXATION.

TOKYO, AUG. 28.

To-morrow the ancient empire of Korea will cease to exist and the Korean peninsula will become an integral part of Japanese territory. ...

The Imperial Government of Japan are ready to assent that the jurisdiction in respect of the cases actually pending in any foreign Consular Court in Korea at the time the Treaty of Annexation takes effect shall remain in such Court until final decision.

 

Source: The Times, 27 July 1983

CENTENARY OF ANGLO-KOREAN TREATY, 1883.

...

Much more vocal was Ernest Bethell, who had come to Korea to cover the Russo-Japanese War and founded the Daehan Maeil Shimbo (Korean Daily News), dedicated to opposing Japan.

   Under the treaty of 1883, which provided extra-territoriality for British citizens, the only way the Japanese could prosecute Bethell was in the British consular court.  In 1907, with a missionary as defence witness, Bethell was given a fine and a suspended sentence.  In 1908 he was imprisoned in Shanghai by the same court, but returned declaring: "My fight for Korea is heaven-ordained.  I will work regardless of my personal safety.  Bethell died in 1909 and his secretary, Manham, sold the paper. ...

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