CO129-290 - Governor Sir Blake - 1899 [1-4] — Page 88

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27. It will be noticed that Rule 71 of the said Regulations is relied upon by the Consul General and Vice Consul, such Rule is as follows :--

71. "Prosecutor may be required to give security."" Any complainant informant or prosecutor may be required to give security for all costs of the prosecution including those of the accused; and every complainant &c not a citizen of the United States shall be so required, unless, in the Consul's opinion justice will be better promoted otherwise; and when such security is refused the prosecution shall abate.

28. This rule provides that every complainant informant or prosecutor who is not a citizen of the United States shall be required to give security for all costs unless in the Consuls opinion justice will be better promoted otherwise; and when such security is refused the prosecution shall abate.

29. Now in this case security was never asked for, had it been demanded it would have been given, for it is submitted that this Rule 71 must be read with Rules 72 and 73 of the said Regulations which are as follows:--

72. "Honourable acquittal "When the innocence of the accused, both in law and in intention, is manifest, the Consul shall add to the usual judgment of acquittal the word "honourable.'

73. "Costs"-In such case judgment may be given and execution issued sum- marily against any informer complainant or prosecutor for the whole costs of the trial, including those of the accused or for any part of either or both, if the proceed- ing appears to have been groundless and vexatious, originating in corrupt, malicious, or vindictive motives.

30. The security, therefore, is given to provide for the costs of the prosecution and of the accused in the event of the accused being honourably acquitted and the proceedings appear to have been groundless or vexatious originating in corrupt malicious or vindictive motives. In this case the accused Richard Toulmin was convicted of murder and sentenced to imprisonment for life with hard labour. Therefore the complainant, it is submitted, cannot be required to pay the costs of the I trial.

31. Again Rule 62 of the Regulations states.

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62. "American witnesses compelled to attend."--The Government and the accused are equally entitled to compulsory process for witnesses within their jurisdiction and if the Consul believes the accused to be unable to advance the fees his necessary witnesses shall be summoned at the expense of the United States.'

32. By this Rule it is clear that the complainant cannot be compelled to pay the fees of the witnesses for the accused in the event of the accused himself being unable to pay, but such fees are to be defrayed by the United States.

33. In the order quoted in paragraph 24 hereof the following words will be noticed "it having been shown to the satisfaction of this Court that the Defendant is without means the costs of this trial shall be paid by the Prosecutor who intervened in this case on his own motion." Under Rule 62 the United States must bear the the witnesses of the accused for the words in that Rule" shall be summoned at the expense of expense of the United States

are explicit and definite.

34. It will also be noticed from this Rule No. 62 that the words "The Govern- ment and the accused" are used, these words distinctly show that it was the intention of the Framers of these Regulations that the U. S. Government should prosecute in criminal cases and bear the expenses of the prosecution and consequently the expenses

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of the witnesses for the prosecution and should also bear the expenses of the wit- nesses for the accused if the accused be without means.

35. And again by Rule 73 quoted in paragraph 29 hereof the words “for the whole costs of the trial" clearly show that it was not contemplated by the Framers of these Regulations that a criminal prosecution should be conducted by a private person but that the United States Government should prosecute in all criminal cases even though the complaint or information was sworn to by a private individual in the first instance, as in the case now before us; the words" for the whole costs of the trial" show this, for the Framers of the Regulations clearly drafted this rule 73 in order to cover a case in which the Government should prosecute on an information or complaint sworn to by a private person and the prisoner should be honourably acquitted and the proceedings should appear to have been groundless and vexatious &c., then in such case the costs of the prosecution and of the acensed are to be paid out of the security provided for by Rule 71 quoted in paragraph 27 hereof.

36. If it was the intention that a private complainant prosecutor or informant should bear the expenses of the prosecution it would have been so stated in Rule 62 or Rule 73.

37. It is submitted therefore that it was the duty of the United States Gover- ment to prosecute in this case but that Goverment not having any official attached to its Consular Court in China whose duty it would be to prosecute on their behalf it is submitted that I was entitled to assume that although I appeared on behalf of the brother of the murdered man yet I was in fact prosecuting on behalf of the United States Government.

38. It has been seen that by Rules 71, 72 and 73 special provision was made for the United States Government prosecuting on the complaint or information of a private person.

39. In such case security for costs if demanded and given shall be applied as provided for in Rules 72 and 78 only, but if security for costs, is asked for and refused the prosecution shall abate.

40. In this case security was never asked for and this I 'submit is proved by the fact that the prosecution did not abate but the accused was convicted and sentenced. The only power the Consul had was to demand security for costs and if such security was refused to abate the prosecution.

41. There is nothing in the regulations whatever which empowers the Court or the Consul to demand from any complainant the payment of any fees or expenses in a criminal case, neither is the Consul empowered to make an order that all the costs of a trial are to be paid by a complainant except as provided for in Rule 73 of the Regulations, and in the case of a complainant not a citizen of the United States he is not so empowered unless security has been demanded and provided, in which case the security can only be applied as provided for in Rules 72 and 37.

42. Even supposing that the order for payment of the costs of the trial which includes that of the prosecution and of the accused be upheld, it is submitted that the order prohibiting my firm from practising before any American Consular Court in China, must be reversed, as there is nothing in the Regulations for the Consular Courts of the United States of America in China which empowers or can be inter- preted to empower any of its Consuls or Consul General to make such order as to future practice before a Consular Court.

Hongkong 30th January, 1899.

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