China also could appoint representatives stationed in London. See article 2. (SKHT Ying-kuo tang B no. 755 P • 623, Fa-kuo tang no. 26, p. 29)* On the other hand the American and Russian treaties only stipulated China’s recognition of their envoys
stationed in Peking yet have no mention about China’s stationing envoys in America and Russia. (Ibid., Mei-kuo tang no. 93 p. 142, E-kuo tang no. 7$5 P* 52).
Japan was an "equal treaty", which possessed a bilateral (reciprocal) character, in contrast to the unequal treaties concluded by both countries with Western powers» Only the stipulation that the two countries would exchange representa tives and establish consular missions in the open ports
(articles 4 and 8) were identical with treaties with western countries. For example articles 8, 9> and 13 laid down that each would recognise the consular jurisdiction of the other.^ The Trading Regulations too, although providing for mutual
treatment on the same level as that with Western countries, restricted the trading to the "treaty ports", and forbade Chinese and Japanese merchants to trade in the interior of each other's countries. (Trading Regulations Articles "14, "If?)« There was no "most favoured nation clause" in the Treaty.
Because of these provisions, the functions of Chinese missions to Japan (especially the consular missions) were different from Chinese missions to other countries. The missions to Japan had the following special functions and features stipulated in the Treaty of Friendship and
Trading Regulations of 1871. The consuls (of both countries) would enjoy consular jurisdiction and if there arose any case that concerned the subjects of both countries it would be tried by a joint tribunal presided over by local officers
3. For article 8,
9
, 13, see JFO Vol. 4, d.153* 206-208.4
.
For article 14; 15 of the Trade Regulations of 1871 see Ibid., 216.countries as an additional office. If any consul's behaviour was unsatisfactory and there was concrete evidence to prove it, then each country could request the other country's minister to investigate the case and recall the said consul, thus avoiding the possibility that relations would be harmed by one person.^
Since the mission to Japan possessed the special functions of consular jurisdiction, and could try Chinese
residents in Japan by Chinese law, the special rule concerning consuls resident in Japan handling criminal cases was drafted by the mission to Japan and approved by the Yamen. The rule was aimed at solving the special situation of cases which occurred overseas. Though ordinary minor offences could be dealt with by the consul and settled in Japan, felony were sent back to Shanghai to be dealt with. It was found too difficult to bring all the witnesses involved in criminal cases back to China for trial and especially unsuitable to carry on executions in foreign ports. There were detailed provisions on how the consul should investigate the defendant and witnesses, and how to send the culprit back to Shanghai to be dealt with. The consul was required to send all
CFMA-IV, Li Hung-chang to Yamen, July 2, 1871. See also p . 59 ,
judge merits on criminal cases back to the minister to be reche eked.^
The Chinese consuls in Japan were called
"Li Shih kuan,; indicated his function and consular jurisdic tion. It should also be noted that the consul was directly
7
appointed by the minister himself. This was a further difference from the Western system, in which the consular and diplomatic arms were entirely separate, the consul being concerned only with commercial matters. In the Chinese system the consul and the envoy were not strictly differen tiated and could be regarded as being part of a single
g
system. The consul was always appointed by the minister from his retinue. This interchange ability of function, and appointment by the minister, became an issue in the revision of the Sino-Japanese Commercial Treaty after the war. The Japanese attacked the Chinese system as not in keeping with international usage, intending to use this as an excuse to deny the Chinese the right to station a consul
Q
in Japan. But, although they had been deprived of consular
6. Special rule concerning consuls resident in Japan and the handling the criminal case in TSYC 4:12-14, seven articles for the handling the criminal cases are given in part in this source.
7. See the Regulation on the Chinese Foreign Service of 1876 in TSYC 3 :13-16i also see Ch'en T'i-ch'ang,
op. cit. 181-182; CKCJ no. 29. 8. Ch'en T'i-ch'iang, op. cit. 315«
9. JFQ Vol. 29, d.222 383b-384a Appendix: Notes concerning the fourth round of negotiations for the Sino-Japanese Commercial Treaty.
jurisdiction in 1896, the Chinese did not change the system until 1907.10
Following China's defeat in the war of 1094-5, Japan was in a position to demand the same privileges as the Western countries enjoyed in their treaties with China» The negotiation of the new Commercial Treaty commenced on the 29th December, 1895, and concluded on 21st July, 1896. During the negotiations, Chinese representatives Li Hung-chang and later Chang Yin-huan argued strongly for the insertion of an article guaranteeing favourable treatment of Chinese subjects in Japan, the most favoured nation treatment of Chinese nationals in Japan, and the most favoured nation treatment for the Chinese consul in Japan; that is, the same privileges as that of the Japanese consul in China
11
(enjoying consular jurisdiction). Chang Yin-huan was not successful as China signed a new treaty.
The position of the Chinese consul in Japan was stipulated in article three that as:
"His Majesty the Emperor of China may likewise appoint Consuls-General, Consuls, Vice-Consuls and Consular Agents to reside at any or all of those places in Japan where consular officers of other nations are now or may hereafter be
admitted, and saving in the matter of jurisdiction in respect of Chinese subjects and property in Japan which is reserved to the Japanese Judicial Courts, they shall enjoy the rights and privileges that are usually accorded to such officers".^
1 0
.
"Wai-wu-pu fu Liu tse" op. cit., Tung-fang tsa-chih Vol. 4, no. 2 (July 1907) 15.11. Six rounds of negotiations in JFO Vol. 29* 401-403* 1 2. JFO Vol. 29, d . 246. 473*- S-I 617-618, see article three.
Chinese representative Chang Yin-huan made a last minute intended effort to insert the sentence:
’’according to international law" under the wording "saving in the matter of jurisdiction in respect to the Japanese Judicial Courts",
1 3 but he was unsuccessful»
This new Treaty of Commerce and Navigation between China and Japan also provided most favoured nation treatment
14
to Japanese subjects in China. Yet despite repeated long drawn out discussions, Japan refused to allow reciprocal treatment to the Chinese subjects in Japan, and only agreed to exchange views with the Chinese government, (concerning the question as to "In what way the Chinese subjects and vessels in Japan will be treated"). The Chinese wished to have it expressed by some means in the treaty and proposed a diplomatic note stipulating fair and equitable treatment
16
to be granted to Chinese nationals in Japan. The Japanese government at first instructed their delegates to reject it, because they feared that the Chinese government might attempt to construe the words "fair and equitable treatment" to confer