File No. 7655/24–26.
In the second part of the letter Prince Ch’ing, referring to the
United States Court for China, to its creation and jurisdiction, to
the office of judge in said court, and to his position in relation
to the Chinese Government, concludes by saying the “so-called judge
is only an executive officer to be treated by the Chinese Government
and officials only as a consul of high rank with specialized
functions.” The Chinese Government, it is stated, proposes,
notwithstanding the fact that the judicial powers of the minister of
the United States to China have been transferred to the United
States Court in China, to consider the minister as “still having
ultimate appellate jurisdiction in all matters concerning the
exercise of judicial power over foreigners in Chinese territory,”
and will consequently only deal with the American minister when
cases arise in which Chinese inters ests are involved.
[Inclosure—Translation.]
The Prince of
Ch’ing to Minister Rockhill.
Foreign Office,
Peking, August 24,
1908.
F. O. No. 465.]
Your Excellency: On the 2d day of the
sixth moon (June 30) I received a dispatch from the
superintendent of southern trade stating that in the case of the
American traveler, De Menil, who shot and killed the lama, Pu
Keng-lung, at Wei-hsi-t’ing in Yunnan Province, the viceroy of
Ssu-ch’uan delivered the criminal to the American consul at
Chungking who forwarded him to Shanghai to be tried in the
United States Court. The Shanghai tao-t’ai deputed Li, the
district magistrate of Shanghai, on the 13th and following days
of the tenth moon of last year (November-December) to watch the
proceedings of the court, but had not time to insist upon the
fulfillment of treaty rights, and the judge of the United States
Court set De Menil free. The decision of the American judge was
that the criminal did not premeditate the killing of Pu
Keng-lung, and he called it accidental killing, ignoring the
fact that De Menil discharged his gun twice with the undoubted
intention of killing his guard, Li Yu-shan, but that
unexpectedly he missed the guard, Li Yu-shan, and accidentally
killed the lama, Pu Keng-lung. So, although the killing of
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Pu Keng-lung was
accidental, yet in firing twice lie had the purpose to kill some
one. The decision of the American judge, that the killing was
accidental, and that the man should, therefore, be released was
exceedingly unjust and did not satisfy the demands of the case.
The superintendent of southern trade has copied fully all the
proceedings in this case and forwarded them to the board of
foreign affairs, and the board has very carefully scrutinized
them. In these records, under the date of December, 1907, 25th
case, folio 10, we find the statement that the defendant being
angry with his guard, Li, for loitering abused him, then
snatching Li’s gun pointed it at Li, who ran off in fear. The
defendant then fired the gun, the bullet passing over Li’s head.
The defendant then reloaded and fired again, killing the lama.
Li and Ch’en again testified that the defendant threatened Li
with the gun, that Li ran away, and that the defendant fired in
the direction in which Li ran. This was all brought out clearly
by the judge, so that it is evident that the criminal De Menil
intended to kill the soldier Li. Although he failed to kill the
soldier, Li, and accidentally did kill the lama, he had murder
in his heart. The testimony was clear and unmistakable. The
decision of the judge that the affair was accidental and that no
punishment should be inflicted nor even a fine assessed for the
lama’s death, how can this satisfy the minds of men or display
justice?
Our board also observes that the criminal De Menil was traveling
in Ssu-ch’uan Province, and that he passed into Yunnan Province
contrary to the terms of his passport. The viceroy of Ssu-ch’uan
treated him with great kindness, sending guards for his
protection. The said criminal fell into a passion with his guard
and fired at him, and thus killed an outside party. After thus
taking human life he is not convicted of any crime and is not
even fined. The great wrong done the murdered man is not in the
least atoned for. When the people of Ssu-ch’uan and Yunnan hear
of this the hair will rise on their heads. Their anger will grow
and the consequences will be serious for travelers. In this case
justice does not shine, and the good name of America suffers. It
is our duty to refer this case to your excellency that your
excellency may think of a way to straighten this affair out,
determining the crime of which the aforesaid criminal is guilty,
or the fine which he ought to pay, so that angry passions may be
calmed and justice displayed. Furthermore, in the eleventh moon
of the thirty-second year of Kuanghsu (December-January, 1906–7)
a note was received from your excellency stating that the United
States Congress had passed an act to establish a United States
court in China, and the regulations of the court were inclosed.
In the first section of the said act the following words appear:
“which shall have exclusive jurisdiction in all cases and
judicial proceedings whereof jurisdiction may now be exercised
by the United States consuls and ministers.” The board of
foreign affairs understands these regulations to mean that the
judicial powers of the American judge are the same as those
formerly exercised by the American minister and consuls, which
derived their existence from the grant of judicial powers over
foreigners made in the treaties.
The United States has the undoubted right to establish
independently courts of law in its own territory, but the
circumstances are very different in this case. The seventh
section of the act states that the tenure of office of the judge
of the said court shall be at the pleasure of the President.
From this it appears that the status of this court is different
from that of an independent judiciary. Although the term “judge”
is employed it is evident that he is only an official of the
executive department appointed for the conduct of foreign
relations. So, in the estimation of the Chinese Government and
officials, the American judge is to be treated only as a consul
of high rank with specialized functions. In any legal case the
provincial authorities will deal with him according to the rules
for dealing with a consul. Therefore, although the American
judge exercised part of the official functions of the American
minister, yet the minister is the sole representative of
America, and as long as China has not recalled the
extraterritorial judicial powers the American minister at Peking
will be regarded as having ultimate appellate jurisdiction in
all matters concerning the exercise of judicial power over
foreigners within Chinese territory. In all legal cases the
board of foreign affairs will, as formerly, deal with the
American minister. It is proper to state our position
clearly.
A necessary dispatch.
