Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 1, 1879
to Mr. Evarts.
Peking, October 7, 1879. (Received November 28.)
Sir: In further reference to the questions involved in the trial of mixed cases, civil and criminal, between our people and subjects of China, I have now the honor to hand to you copies of responses to my circular letter of July 26 from the consul-general, Mr. Bailey, and the vice-consul at Newchwang, Mr. Bandinel. I have prepared a memorandum on this very interesting subject to be submitted to my colleagues in conference here upon this and other matters, which I am having printed. I shall transmit you a number of copies as soon as they are completed.
I have, &c.,
Mr. Bailey to Mr. Seward.
Shanghai, September 15, 1879.
Sir: I have the honor to acknowledge the receipt of your dispatch No. 174, hearing date July 26, propounding certain questions to be answered at my very earliest convenience.
In compliance with your request I remark, first, that the entire staff of this consulate having been changed since I assumed charge, I am not at present fully advised as to the former practice under query A.
Since my incumbency civil cases by the Chinese against our people have been tried in the court for this consular district, the consul-general sitting alone as judge. Similar cases by our people against Chinese subjects have been tried in the mixed court of the foreign settlements, presided over by the Chinese magistrate, Cheu-Fu-shün, and the United States interpreter acting as American assessor.
No cases involving exceptional difficulties have occurred in either court, except that of Loo-Fung-Kwan, a Chinese subject, against the estate of the late Edwin Maurice Smith, a citizen of the United States. This was an action brought for a considreable sum of money, and was decided purely upon a question of law. The cases thus far disposed of in the mixed court of Shanghai by the magistrate Chen and the United States assessor have been reasonably satisfactory to all parties concerned. Should cases arise involving important questions or considerable interests which could not be amicably settled between our people and the Chinese, upon a demand made by the proper officer of either nationality, I apprehend that a joint court would be organized in accordance with the treaty, and presided over by the consul and the intendant of circuit, sitting with equal powers to decide “conformably to justice and equity.” That a decision in such a case by the public officers of the two nations acting in conjunction is to be the decision of a joint court appears to be made clear by Article XXVIII of the treaty of 1858. Article XXIV of the same treaty provides that Chinese subjects having claims against citizens of the United States may seek redress by representation through the consul or by suit in the consular courts. The plaintiff may elect which remedy he will pursue. Should he elect to proceed by suit in the consular court, in my opinion he is bound to accept that forum as to its organization, its law, and its decrees, subject only to appeal to the United States appellate courts at Peking or California, in accordance with the jurisdiction provided for by statute.
Subject to these remarks, it may be said that in Shanghai there are two mixed courts, the higher and the lower. The latter is held by a Chinese magistrate and the United States assessor appointed by the consul-general to act for him. The former is held by the consul-general and the intendant of circuit for the Soo, Sung, and Tai jurisdiction, and is either a court of appeal from the lower court, or for the hearing of cases that have never passed through the lower court.
I now proceed to answer the remaining interrogatories in the order in which they are named.[Page 230]
Interrogatory B.—Answer. A subprefect in the lower court, and the intendant of circuit for the Soo, Sung, and Tai jurisdiction in the higher court.
Interrogatory C.—Answer. Yes.
Interrogatory D.—Answer. The consul-general attends in the higher court only, he appointing the consular interpreter to act for him in the lower court. The consul-general sits on the right of the intendant of circuit and acts as one of the judges.
Interrogatory E.—Answer. The consul-general attends in the higher court only, the position of the consular interpreter being to his right.
Interrogatory F.—Answer. In the lower court the magistrate’s clerk of the court keeps a record of the pleadings and proceedings; the assessor also keeping a record in the English language of the proceedings. In the higher court the clerk of the consular court keeps a record of the pleadings and proceedings, the secretary of the intendant of circuit also keeping a record in the Chinese language.
Interrogatory G.—Answer. Records are kept, as shown under F. The position of the native writer of the consular interpreter is to the right of the interpreter.
Interrogatory H.—Answer. The records are kept both in English and Chinese. They are certified to in neither language, so far as I know.
Interrogatory I.—Answer. Appeals from the decision of the native magistrate in the lower court go to the higher court, and appeals thence to the United States minister and the Tsung-li-Yamên.
Interrogatory J.—Answer. In the lower court a “Tung chih” or subprefect acts, and in the higher court the intendant of circuit for the Soo, Sung, and Tai jurisdiction.
Interrogatory K.—Answer. The position assigned to the consul-general is to the right of the intendant of circuit, the consular interpreter sitting to the right of the consul-general, the native writer to the right of the consular interpreter, and the clerk of the consular court would be the subject of arrangement.
Interrogatory L.—Answer. The records of the proceedings are kept as shown under F.
Interrogatory M.—Answer. The only law prescribed by the treaty in such courts is that cases shall be “examined and decided conformably to justice and equity.”
I understand these words as applied to a joint court to be used in the treaty in their generic sense and not in their technical sense, as a legal distinction descriptive of our common law and equity courts and their refinements of rules and principles.
It was intended by the framers of the treaty, I apprehend, that the judges of this joint court should travel on the broad palpable highway of justice and equity in that large view which finds and administers the right.
To prescribe the absolute law of either country in such a court would almost surely lead to a disagreement of the judges in every case and make the court simply a nullity. There are certain fundamental principles in our system which we could never yield, and perhaps the same may be said of the Chinese system, and where the decision of a case depended upon giving away such a principle on either side, diplomacy must endeavor to adjust what the judges cannot reconcile. But it is reasonable to suppose that if the judges of this joint court are actuated by liberal and enlarged views of justice and equity, not simply as abstract principles, but essential agencies in adjusting the affairs of men and nations, the rule provided for by the treaty is not only to be observed as the law binding upon the court, but it is safe and ample for the administration of the usual course of justice.
But this presupposes a habit of thought of that high order which is rarely found in Chinese judges. Nevertheless, if justice and equity within the meaning of the treaty be approximately observed, there is a prescribed rule, which may by said to be a law recognized and binding upon the court.
Interrogatory N.—Answer. The mode of enforcing a judgment against a citizen of the United States would be the same as in the court for this consulate, but as against a Chinese subject it is difficult, if not impracticable, to define a rule.
The enforcement of such a judgment would depend more upon the good faith of the Chinese co-judge and his subordinate officers and underlings than upon regular, defined, and exact proceedings whereby judgments of courts are satisfied. Supposing a judgment agreed upon between the two officers constituting the court, it might not un-frequently happen that the foreign plaintiff would be as far from having his claim satisfied as before he began his proceedings, although it should be clear that the defendant had the means to satisfy it. The situation would then be so anomalous as that one of the judges of the court would feel compelled to bring no inconsiderable pressure to bear on his brother judge to secure the enforcement of their joint judgment.
Interrogatory O.—Answer. The mode of appeals is-shown under I.
Interrogatory P.—Answer. With the other consulates at Shanghai the practice is in general understood to be the same as in ours, at least so far as any practice has arisen. It is to be observed, however, that only three foreign assessors sit in the lower mixed court, viz, the British, American,, and Austrian; the British assessor sitting three days in each week, the American two days, and the Austrian one. The interpreter of the German consulate-general sits sometimes in the absence of either of the assessors named.[Page 231]
There seems to be an exception, however, in the practice of the British consulate so far as the higher court is concerned. By the thirty-fifth section of Her Britannic Majesty’s order in council for the government of Her Majesty’s subjects in China, all jurisdiction, civil and criminal, for and within the district of the consulate of Shanghai, is vested in Her Britannic Majesty’s supreme court for China and Japan.
The British consul, it appears, therefore, does not assume or exercise judicial authority in conjunction with the intendant of circuit. How such functions are exercised by the British vice-consul as assessor in the lower mixed court I am not advised.
In a recent case, reported in the Shanghai newspapers September 3, wherein T. W. Duff and D. M. Davids, British subjects, were plaintiffs and the committee of the Swatow Opium Guild, Chinese subjects, were defendants, the intendant of circuit sat as judge in the court-room of the lower mixed court, the British consul being present on the bench, but declared in open court that he appeared only as consul to watch British interests, and that the British vice-consul, who sat on the right of the taotai, was there in his ordinary capacity as assessor; that Chen, the subprefect, practically was also sitting in his ordinary capacity as magistrate of the court, but that “the chief officer was his excellency the Taotai,” who was sitting to decide the case. The proceedings had been pending for quite a while, and it is to be presumed that the organization of the court was well considered before it convened.
Pertinent to these questions concerning mixed courts, and indeed the whole system of jurisprudence for the settlements of Shanghai, is the subject of an international court, to which I beg casually to draw your attention.
The multiplicity of courts established in Shanghai may be fairly said to constitute the most cumbersome system of judicature known to exist in any considerable commercial center in the world.
The importance of Shanghai in its tradal relations, the extent of its commerce, the various-conflicting interests, the enormous foreign capital centered here, the large foreign population, the fact that the settlements are introducing western civilization into China, and therefore the education which China is to receive through Shanghai, all make it exceedingly desirable that there should be a court with full powers, having original and exclusive jurisdiction, civil and criminal, over all persons and property within the limits of the several foreign settlements of Shanghai. This should be an international court similar, perhaps, to the one organized in Egypt, January 1, 1875, in pursuance of a special convention entered into between the seven great powers. Such a judiciary must be instituted by the joint action of all the powers, for a tribunal established by any one nation cannot answer the requirements of all.
The effect of such a court upon the Chinese system would, no doubt, in time be vast and beneficial in the highest degree, for through Chinese judges who would constitute a part of the judicial organization, the educational process would be going on. This judicial system to be effective must necessarily be based upon a code, assimilating to the “Code Egyptian,” the code Napoleon, or perhaps the Indian code would be more suitable, but these are subsidiary questions which would grow naturally out of the major proposition, viz: that there shall be an international court. The tribunal once fairly established, the friction which now exists between the disjointed courts of Shanghai, often resulting in the defeat of justice, would disappear, and instead there would be a harmonious system with ample powers to adjudicate and enforce by the fixed and enlightened rules of a modern code, all questions of life, liberty, property, and demands arising between citizens and subjects of the different nationalities within the territorial limits of the settlements. Such a court must come sooner or lately and, in my opinion, they who identify themselves with its creation will confer a benefit on this people which shall not fail to endure; for, may we not reasonably anticipate that that system, that benefit, would widen and widen until it embraces the empire? I append a synopsis of some of the salient features of the international court of Egypt, extracted from a memorandum prepared and sent to Judge Folger by Judge George S. Batchelder, late of Saratoga Springs, one of the judges of the international court.
I have, &c.,
The international court of
There were established three chambers of mixed jurisdiction, styled tribunals of first instance, one at Cairo, the capital, one at Alexandria, the chief commercial city, and a third at Ismailia, on the Suez Canal, but since transferred to Mansourah, the chief agricultural city and center of the cotton trade of the Delta, also a court of appeals at Alexandria.[Page 232]
Each of the great powers, viz, United States, England, France, Germany, Austria, Italy, and Russia, were entitled to designate two members of the first instance (supreme court), and one member of the court of appeals. Should additional foreign judges be required by the necessities of service, they were to be selected from the minor powers. This necessity has already required magistrates from Holland, Belgium, Denmark, Sweden, Norway, and Greece, so that all the civilized governments are represented in the tribunals, except Spain and Portugal. There was also instituted a “parquet,” at the head of which is a “procureur général,” assisted by a suitable number of substitutes or deputies. He has the right in person or by deputy, to a seat in each tribunal, and is required by the code to deliver his opinion or “conclusions,” in a certain class of civil and commercial cases, which is done by an oral address to the court after the argument of counsel is closed.
The function of a procureur général, while resembling in some respects that of attorney-general in the United States, especially in criminal proceedings, is peculiar to the courts of continental Europe, and its characteristics and workings in connection with the tribunal are a subject of considerable interest, which may be hereafter described.
Each tribunal is composed of seven judges, four foreign and three natives.
Five judges constitute the quorum of a chamber, maintaining always the same proportion between natives and foreigners. The presiding judge or president, as he is designated, is by right accorded to the foreigners, and he is elected annually by a majority vote of his colleagues, and, aside from his duties as president of the public audiences, he is charged with the general discipline of the clerks, sheriffs, and other employés of the tribunal.
The judges are immovable, either by the power appointing them or by the Egyptian Government, during the five years for which they were designated, but may be impeached for causes compromising their honor or integrity, the court of appeals, or a composition of the different tribunals, forming the court for the trial of impeachment. It is stipulated that these tribunals shall be considered as an experiment for the first five years, after which the powers shall determine whether to continue, modify, or abandon the system.
The tribunals are essentially international mixed courts, and are the first regular establishment of the kind ever introduced into any country. The experiment has been watched with great interest throughout Europe, and their workings have already formed the subject of discussion in-numerous international gatherings, besides various European periodicals and journals.
The competence of the tribunals is defined by the treaty as follows:
- All contestations in civil and commercial transactions between foreigners and natives, and between foreigners of different nationalities.
- All contestations arising out of title or interest in real estate between all persons, even of the same nationality.
- The Egyptian Government, the administration of the Daira (the various private estates of the Khedive and his family) in all “processes” with foreigners.
- The tribunals, without power to adjudicate upon the public domain, or prevent the execution of an administrative measure of the government, may adjudge, under the civil code, all prejudices, wrongs, or injuries against an acquired or established right of a foreigner caused by or arising out of any administrative act.
- The tribunals, subject to the usual restrictions of nationality, have general maritime and bankruptcy jurisdiction. The “statut personelle,” or laws of succession, marriage, divorce, religious privileges, guardianships of persons and of property, &c., are excepted from the competency of the tribunals: this administration remaining in case of foreigners with their consuls, and in case of natives with their local code.
The penal competence is limited to offenses against the administration of justice, offenses against the judges, functionaries, and employés, opposition to process or any interference with the operations of the courts, in which instances the provisions of the penal code, transcribed almost literally from the French code, are applicable. It has been found necessary to apply this penal quality frequently.
The composition of the criminal code is novel and worthy of consideration elsewhere. It combines the jury and magistrate into a tribunal in which both elements are merged, at the same time maintaining the best qualities of each. Three judges and four “assessors” or jurors (selected from the resident notables) constitute the court. They hear the evidence and arguments, deliberate together, and fix the sentence, which is determined by a majority, and pronounced at once by the presiding judge.
It will be observed that the accused has the benefit of a “trial by his peers,” the four assessors constituting a majority of the court; and at the same lime the deliberations of the jury-room under the guidance of disciplined and experienced judges, are relieved from many of the anomalies and perversions which sometimes characterize the present jury system of the United States and England. The laws in use are styled the [Page 233] “Code Egyptien,” and are founded upon the “Code Napoleon “modified in many respects to adapt them to the local laws and customs.
These codes were submitted to and approved by the different powers, before being promulgated in this country.
The law is subdivided as foilows:
Code civil. Code of commerce. Code of commerce, maritime. Code of procedure, civil and commercial. Code penal. Code of criminal instruction (for the preliminary examination of criminals and the investigation of crimes).
The codes comprehend every department of affairs, defining clearly each profession or occupation and prescribing rules for their government.
The “statut personnelle,” which is excluded from the competence of the mixed courts, will be interesting to examine hereafter.
The code of procedure is very simple, and is followed in practice in the most literal manner; the interpretations of French jurisprudence which are adopted are all in favor of a strict construction which has the merit of rendering its meaning certain, but is, according to the light of the American system, narrow and illiberal, and often works serious hardships, and a denial rather than a giving of justice, especially in its restrictions in the department of parol evidence.
It would seem that the system of evidence prevalent in Europe, and followed here was founded upon the theory that all business transactions should be in writing; and that if parol proof be allowed it must come from other sources than those most likely to be cognizant of the facts.
Mr. Bandinel to Mr. Seward.
Sir: I have had the honor to receive your excellency’s dispatch, No, 49, containing a series of questions with regard to the practice at this and other consulates at this port in civil cases arising between Chinese and foreigners, and now beg leave to transmit my replies to the same as follows:
In reply to question A, I have to state: The only civil case in my time between Chinese and our people, was a claim for damages arising out of a collision, brought against the master of the “William Phillips.” This was tried by the vice-consul (defendant’s officer) only, to whose court the taotai had directed the plaintiff to apply. The taotai also furnished the vice-consul with some information requested by the latter; but, after judgment had been given in defendant’s favor, denied the validity of the proceedings, which, he maintained, ought to have been in the nature of a mixed court.
In reply to questions B to I, I have to state: No case in which a Chinese was defendant has been brought to an issue in my time.
In reply to questions J to O, I have to state: No trials in mixed courts have taken place in my time, nor, as I believe, previously.
In reply to question P, I have to state: It is not the practice of other consuls at this port to sit in mixed courts; the foreign defendant is tried by his consul; the foreign plaintiff applies to his consul, who generally investigates the facts and endeavors to arrange matters amicably, failing in which he reports to the taotai. The latter usually takes the consul’s dispatch as a statement of the plaintiff’s case, examines the defendant, and, generally speaking, grants the claim in a modified form; if there is anything in the case which he does not understand, or any suggestion for a compromise which he does not care to put on record until he knows that it will be agreed to, he calls, or more generally sends a deputy to call, on the consul and discuss the matter.
The Chinese defendant frequently puts in an appearance in the first place before the consul, with the hope of arranging matters amicably; and thus a sort of preliminary investigation is held, which results in the facts of the case being pretty thoroughly sifted before any representation is made to the taotai.
In reply to question Q, I have to state: I consider that the present mode of action, as stated under my reply to question P, has worked so very well that it is not desirable to disturb it, in the present condition of this port; but that some modification in the direction of a mixed court might be necessary in the events a large increase in the number of foreign residents, or the general adoption here of the transit-pass system, or the concession to foreigners of the right of inland navigation, or of residence in the interior.
I would recommend that in small ports like this the consul should be at liberty to take as associates, in cases of collision between Chinese and American vessels, captains of American vessels, or American captains of other vessels, who may happen to be in port at the time.
I have, &c.,