4.
On the complaint being filed at Kiukiang, formal evidence of the arrest of the accused was taken on the 31st July, when Mr. Fleming, counsel for the complainant, suggested that the judge of the court, Mr. Consul Werner, was, through previous knowledge of the case, disqualified to act as judge. This protest was overruled, ✰ counsel for the complainant did not apply in the matter to the Supreme Court, and the judge of the court did not report the case to the Supreme Court under article 25 of the order in council.
That a protest would be made by counsel for the prosecution was expected by the undersigned, who, in a letter to Mr. Werner of the 20th July, advised as follows:-
As to who should hold the preliminary hearing.
I think questions might be raised by the Chinese if you were to hold the enquiry; but, on the other hand, it is evident from the Minister's telegram to me that he contemplates your doing so. If, however, you feel that it will be impossible for you to take the enquiry, or if the American lawyers respectfully suggest that someone else should take the enquiry, then I think the consul-general at Hankow, who is available, might be made an extra assistant judge of the Supreme Court for the occasion, under article 9 or 10, order in council, 1904, or the police magistrate might be sent up from here for the purpose.
The undersigned was in error in thinking that His Majesty's Minister in any way departed from his desire expressed in previous telegrams that the case should be dealt with by the Supreme Court when in telegraphing on the 7th July:-
"If charge legally filed, case must take its course and a preliminary hearing held. Be guided by the advice of the Crown Advocate.”
Acting, however, on the latter part of these instructions and on general grounds, the undersigned advised Mr. Werner not to hear the case himself.
Although rule 24 of the rules of court, 1904, provides for the exclusion of the public from a preliminary hearing at the discretion of the court, the exclusion of anyone wishing to attend was in this case specially unfortunate, and appears to have heen without good cause.
A provincial court has power to try cases of manslaughter, and in this case, on the conclusion of the evidence for the prosecution, the court, in finding that it was not sufficient to put the accused on his trial before jury, exercised a jurisdiction which it had to deal summarily with the case, and, as has been stated in a separate memorandum, no further proceedings can, or I think should, be taken against Mr. Mears.
Peking, September 22, 1909.
(C.)
Death of Yu Fa Ch'eng.
Interview at Wai-wu Pu on Saturday, September 25, 1909.
[Unsigned.]
Present. Their Excellencies Natung, Tiang Tun-yen, the vice-presidents of the
board; and Taotai Liu Yuk Yin; Mr. Campbell and the undersigned. Subject of Discussion.-Death of Yu Fah Cheng, medical evidence, difference
between British and Chinese law as to accidental homicide.
Board asked for retrial and removal of Mears. After discussion they recognise that retrial impossible, but press for removal, "even on promotion," of Mears, and reopen question of compensation to relatives of deceased.
Board express inability to explain British law, and facts of case, to local guilds and populace. It is pointed out that they could explain the fact that, apart from admittedly unfortunate wording of decision of judge, who as consul had also, with the taotai, held joint enquiry, this decision was the same as that arrived at by the undersigned, who had, after communication between His Majesty's Minister and the board, gone to Kiukiang to consider evidence available, and determine whether he should and could prosecute officially as Crown Advocate.
5
After further discussion, his Excellency Liang Tun-yen, who spoke in English, asked whether, giving up any claim for a retrial of Mr. Mears, the British authorities or the municipality of the concession at Kiukiang would not take steps to withdraw Mears from Kiukiang, even on promotion.
The board were informed that His Majesty's Minister cannot order or countenance the removal of Mears, who is a free mau, but that the question of his being himself willing to go elsewhere and of its expediency will doubtless be thought of by the parties concerned, but that the British authorities cannot act in the matter.
The board say that they have already issued a strongly worded proclamation against the Kiukiang boycott, but they fear that it will continue if Mears remains at Kiukiang.
Peking, September 27, 1909.
(Translation.)
Inclosure 2 in No. 1.
Prince Ching to Sir J. Jordan,
Sir,
September 28, 1909. WITH reference to the killing of Yu Fa Ch'eng by Constable Mears at Kiukiang, the board addressed a memorandum to your Excellency on the 27th August last, and on the 15th September a further despatch and letters were forwarded, but up to the present no reply has been received. Moreover, in the recent interviews which your Excellency has had with the board the Yu Fa Ch'eng case has been entirely ignored, your Excellency only referring to the boycott of British ships, and urging that instructions should be telegraphed for its suppression.
The board, in view of the friendly relations which have so long existed between our two countries, spared no efforts in sending repeated telegrams to the Nanking Viceroy and the Governor of Kiangsi to put out strong proclamations for the suppression of the boycott, and no less than three proclamations have been issued. Yesterday (27th September) Mr. Campbell called on the board and asked that instructions should again be sent to the Shanghae taotai to issue a strong proclama- tion in clear terms, and the board accordingly again sent instructions in that sense. Your Excellency must therefore be well aware that the board and the provincial authorities have taken all possible steps to deal with this case.
But if the British consul and the Kiukiang Municipal Council persist in their former attitude of compelling Mears to continue in his post as inspector of police, and do not send him to Shanghae for trial, I very much fear that people's minds will be inflamed and trouble ensue. In the event of any further trouble arising, the British consul and the council must bear the responsibility, and the board has no option but to state this clearly in advance to your Excellency. In view of your impartiality in dealing with affairs, your Excellency should surely be able to instruct the consul and the council to find a solution of the difficulty in order to avoid stirring up trouble and injury to our friendly relations,
have the honour to request your Excellency to take note accordingly, and as the matter is very important, I beg that a reply may be sent to this despatch, as well as to my previous one.
Your Highness,
Inclosure 3 in No. 1.
Sir J. Jordan to Prince Ch'ing,
I avail, &c.
Prince CHING.
Peking, October 1, 1909. I HAVE the honour to acknowledge the receipt of your Highness's note of the 28th September on the Yu Fa Cheng case, in which the steps taken by the Chinese Government to suppress the boycott of British shipping at Kiukiang are set forth, and a complaint is made against the attitude of the British cousul and the Kiukiang Municipal Council in retaining Mr. Mears in his post as inspector of police. Your Highness states that, if as a consequence of this action disturbances should arise, the consul and the council must bear the responsibility.
Regarding the Yu Fa Ch'eng case your Highness will remember that as far back
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