})
in the Provincial Government of Kwangtung, or was the property ousted by the alleged de facto government?
(2.) If the property was in the Provincial Government is it necessary for the Crown to prove in a criminal proceeding what tha Province and the Provincial Government is? Well, then, what is the evidence as to thes usurpation of power by the alleged de facto Government? It appears that on 21st July, Chan Kwing-ming, who was then Governor- General of the Kwangtung Province, issued a proclamation-Exhibit 21-which states inter alia that Yuan Shih-kai is contriving to rebel against the Republic and to break; up the Federation and that the present Tutuh is "entristed by the elders and brethren of the whole province with the task of raising an army to impeach and punish the said Yuan Shih-kaï He then declares himself responsible for peace of the province and for protection of lives and pro- perty and prescribes certain rules to be in force in pursuance of the proclamation. It appears, then, that the "President pro tem." Yuan Shih-kai issued an order Exhibit 17) five days afterwards dismissing Chan from the post of Tutuh of Kwangtung. and directing his arrest. The order stated that "Chan Kwing-ming coerced the mem- bers of the Provincial Assembly to declare independence at the assembly" and that he bad raised a rebellion,'
"and a Prociama. tion (Exhibit 24) was subsequently issued by order of Commander So Shun-cho, who had temporarily and after the departure of Chan assumed the duties of Tutuh, stating that "the declaration of Independence of this Province is hereby withdrawn."
It appears that Chan Kwing-ming ded from Canton probably on the 4th August, and he arrived in Hongkong on the 5th August. It was stated in evidence by one of the Canton Treasury officials, Chung Siu-lam, that he (the witness) continued in the service after the Proclamation of Independence by Chan Kwing-ming, that he worked for the Government, that the Trea- sury worked as usual during Chan's régime. that after his proclamation he recognised his orders on the Treasury, that some Government notes were issued a few of which bore a special mark "To Un" (Perish Yuan). It was also in evidence that the rebellion affected many provinces.
It was argued by the learned Counsel for the fugitive, stated briefly, that these facts coupled with Yuan Shih-kai's Proclamation, which was an act of State, established a de facto Government in the rebel party and that the seizure of power was actual and effective. That with the cancellation of Independence the authority of the Central Government revived and any rights which are consequent are in the Central Govern- ment.
Numerous authorities were cited in argu- ment. Hall on International Law (1880 Ed.), p. 27, states, As soon, it is said, as a considerable population is arrayed in arms with the professed object of attaining political ends, it resembles a state too nearly for it to be possible to treat individuals belonging to such population as criminals; it would be inhuman for the enemy to execute his prisoners; it would be still more inhuman for foreign States to capture and bang the crews of warships as pirates; humanity requires that the members of such a community shall be treated as belligerents, and if so there must be a point at which they have a right to demand what con- fessedly must be granted.
AB
belligerent community is not itself a legal person, a society claiming only to be belligerent, and not to have permanently established its independencer can have au rights under that law. It cannot therefore demand to be recognised upon legal grounds, and recognition, when it takes place, either on the part of a foreign government, or of that against which the revolt is directed, is; from the legal point of view, a concession We were referred to of pure grace. Historicus, where Sir William Harcourt states
in
to the Civil War P
75
No comments yet.
Private notes are available after approval.