Mr. Denby, chargé, to Mr. Gresham.

Sir: I have the honor to confirm your telegram of the 31st ultimo, as follows:

Your telegram this date received. My instructions 29th clear.

Immediately upon receipt of this telegram I wired the consul-general to deliver the alleged Japanese spies held by him to the taotai, and I notified the Yamên that this had been done. I have now the honor to submit some remarks in explanation of my action and of the action of the consul-general in this matter.

To the first demand of the Yamên, made on the 16th ultimo, that these Japanese be given up, I replied that I would be compelled to await the consul-general’s report. This I telegraphed him to forward. Before Mr. Jernigan had reported the Yamên referred the case to you, and to [Page 109]their subsequent demands I replied that they had put the matter in your hands and that I could now only act as ordered by you. It would have been manifestly improper for me to order Mr. Jernigan to give up these Japanese without hearing from him the reasons which had induced him to detain them. Subsequently, when the case had been appealed to you, it would have been equally improper to give them up without your orders.

Mr. Jernigan has not acted in this matter under a misapprehension as to his authority. Neither he nor I imagine that lending good offices invests Japanese in China with extraterritoriality, nor that the legation or the consuls have the right to shield Japanese who commit crimes. No attempt has been made to harbor Japanese in other parts of China, though many occasions for doing so have presented themselves. The case of the two Japanese arrested at Shanghai is an exceptional one. On two grounds I felt justified in asking your instructions.

In the first place, the exclusive jurisdiction of the Chinese authorities over subjects of a power at war with China resident in the foreign settlements at Shanghai is sufficiently in doubt to justify the foreign authorities in demanding proof of guilt and stipulating for a fair trial before giving up such subjects when accused. The custom in time of peace is for foreigners residing at Shanghai, subjects of a power having no treaty with China and hence not enjoying the privileges of extraterritorialty, to be tried when arrested for crime, by the “mixed court,” that is, by a Chinese magistrate sitting with a foreign “assessor.” On the French concession this assessor is always a French consular officer. On the Anglo-American settlement an English assessor sits with the Chinese official on Mondays, Wednesdays, and Fridays; an American assessor on Tuesdays and Thursdays, and a German assessor on Saturdays. Before this tribunal are brought all Chinese charged with crimes or misdemeanors in the settlement, and all foreigners so charged not protected by treaty. They are heard and their punishment determined by the Chinese and foreign officials acting together.

The foreigners at Shanghai wish to establish the principle that this procedure shall be followed in time of war against subjects of a belligerent power. They are strongly averse to establishing the precedent that China shall have exclusive jurisdiction over such persons. This aversion is based on a desire to preserve the neutrality of the settlements and on an abhorrence of the cruel barbarities of Chinese criminal procedure. They justly argue that if Japanese are allowed to be taken from the concession and dealt with at the will of China, then, in case of war between the United States and China, Americans may be similarly treated. So far as any precedent already exists, it is adverse to such right of China. During the Franco-Chinese war Russia used her good offices for the protection of the French in China and French subjects arrested at Shanghai were actually brought before the Russian consul for hearing. China made no effort to interfere with them in any way.

The second reason for which deliberation and caution seemed justified is based upon humanity. The two Japanese seized at Shanghai are school boys. For three years they have resided in the French concession peacefully and openly. They give the name of the school, the teacher, and the place of their residence with a minuteness which raises doubts in their favor. They are probably innocent. The Chinese authorities assert that their wearing the Chinese costume is a proof of guilt. To this it is only necessary to reply that they had been wearing [Page 110]it for years. Japanese clad as Chinese have been living all over the Empire; I have met them in Peking. Though contrary to treaty no objection has been made thereto.

To give up these boys unconditionally is generally believed to be to, give them up to death. The viceroy at Nanking has, I am informed already demanded of the taotai of Shanghai why the heads of the two spies have not been sent to him. They are judged and condemned in advance. The governor of Formosa has posted a proclamation offering prizes for Japanese heads. In a country where such a thing is possible it is needless to inquire what chance a Japanese accused as a spy would have for his life.

It was never my intention to ultimately refuse to give up these Japanese. I only wished your authorization to stipulate for their examination in the presence of the consul-general, and an assurance that torture or excessive punishment should not be inflicted on them.

To demand from China these concessions from her legal rights seemed justifiable and if pressed she would have consented to them.

Such concessions would have been to her advantage. This case has attracted much attention in Japan. The American minister at Tokyo telegraphed this legation that these men were innocent. Should any harm befall them retaliation is inevitable. These young men have the fullest sympathy of all foreigners in China, and the advice of the high officials of all nationalities has been not to give them up without conditions. The knowledge of this fact may prevent their execution.

For the considerations above set forth, I did not presume to act without giving you the fullest information on the case and without your instructions. I have not acted with any partiality toward the Japanese, nor with any misapprehension as to my authority, but have tried, in a difficult emergency, to act as justice dictated.

I have, etc.,

Chas. Denby, Jr.,
Chargé d’Affaires ad interim.