Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 6, 1880

No. 160.
Mr. Seward to Mr. Evarts.

Legation of the United States,
Peking, April 1, 1880. (Received June 8.)

No. 650.]

Sir: Recurring to my several dispatches regarding the administration of justice in mixed cases in China, and more particularly to my letters regarding the mixed court, so called, at Shanghai, I have now the honor to hand to you a note which I have received from Prince Kung, in rejoinder to the note addressed to him by the several foreign representatives in November last.

You will remember that the Prince wrote to us soon after our letter was sent to him, saying that he had referred it to the southern superintendent of trade (Viceroy at Nanking) for a report. The note now in hand shows that the Viceroy in turn referred the business to the intendant of circuit (Taotai) at Shanghai and that the Taotai’s views form the substance of the answer now made to us.

In commenting upon the answer I shall follow the divisions of the subject made in the Viceroy’s report.

1st. “The Chinese deputy (magistrate of the mixed court) should have an official seal.”

Our proposal, more clearly stated, was that the magistrate should be granted an Imperial commission and seal. It was based upon the simple proposition that it is usual in China to commission all officers from Peking, and that officers deputed by the provincial authorities could not be supposed to command the same respect as those appointed in due course of administration.

I see nothing in the response which invalidates our view. The report sets forth simply that “the deputy appointed to the mixed court has a letter of authority from the Viceroy and Governor, which is the same as a commission, and he is provided with a seal which is the same as a seal from the board (at Peking). In the administration of public business his powers differ in no respect from those of a regularly commissioned officer.”

Perhaps in one sense they do not. The letter of authority granted by the Viceroy and Governor may empower the deputy to do all that he could do if he bore a commission from Peking.

But that is not all of the case. The question is really whether the magistrate feels himself secure in his position, and able as a consequence to act with that degree of confidence, independence, and vigor which is desirable, and this question has been answered in the negative by the several consular officers who have acted as associates at the mixed courts, and who have had the opportunity to observe the temper and disposition of the magistrate. It is not reasonable to suppose that as a mere delegate he would be independent, and the facts sustain the theory.

It will be noticed, that the report gives no reason why an Imperial commission may not be bestowed on the magistrate.

There is no good reason existing, as I believe. I gave this part of the subject some study several years ago at Shanghai, and I was assured by competent Chinese that such action is not unknown to the Chinese system.

The effect of the proposed action would be to erect the foreign settlement at Shanghai into a separate judicial district. It would not otherwise disturb the existing order of things. This certainly is not a serious matter to bring about under any governmental system, much less under one which is so elastic as that of China. It has been done practically by the authority already granted to the mixed court. It is only the perfect confirmation of this action which is now called for. The mixed court magistrate himself is authority for the statement that his position as a deputed officer of the provincial authorities places him at a great disadvantage, not only before the people, who understand that his tenure is not that of an officer duly commissioned, but also before his colleagues, the other officers of the district, who are duly commissioned.

In point of fact the matter is too clear to need argument. The court, as at present constituted, bears the semblance of a temporary expedient outside of the regular administration. It can only be given the dignity which it should have as the court of first resort in all the affairs at Shanghai, in which foreigners are the complaining parties and natives are the defendants, by being recognized from the capital as a part of the Imperial system. Its dignity and efficiency are both at stake, and the great commercial interests of the port cannot be satisfied as matters stand.

While the provincial officers have reported against the proposals of the legations in this respect, and while the Tsung-li-Yamên has indorsed their conclusion, the question cannot be allowed thus to drop. In point of fact, the foreign representatives were very modest in what they proposed, and might be blamed rather for not going far enough than for asking too much, or what was unnecessary.

The response made to our representations will illustrate this. It shows, for instance, that all the labor attending the administration of justice at Shanghai, in cases where Chinese who are resident within the foreign settlements are concerned as defendants, whether as against natives or foreigners, must be heard and determined, in the first instance, in the so called mixed court. Now the population thus affected is not less than 160,000. It is evident that a magistrate who presides over such a district, and who has to hear all matters of disputes arising within it, from a police case up to an action in admiralty, will have more on his hands than he can be expected, in reason, to attend to. It is only because the judicial procedure of China is summary to a degree, that the present magistrate, who has presided over the court since its foundation seventeen years ago, has been able to keep abreast of his work. Such a mass of duties would give employment to several magistrates, each having his own department, and each sustained by a competent staff of clerks and bailiffs. I mention this one point only, at the moment, to illustrate my remark that the foreign ministers were modest in their representations. What I have to say further in comment upon the dispatch of the Yamên will afford other evidence to the same effect.

What is said further by the Yamên under this head is more or less perfectly true. It is a fact that, under the statutes of the empire, the writs of a given magistrate run only within his own district, and that it is difficult to punish a literary graduate for any delinquency until he has been stripped of the rank which belongs to him in virtue of his literary success.

No complaint whatever can be made upon the first point, but, clearly, the system which puts a large part of the population in a position of independence from prosecution in the courts is faulty in the extreme. It is this fact, imperfectly understood, which has given rise in great measure to the dissatisfaction of foreigners with the court, which they cannot respect when they find that it is not respected by the Chinese themselves. It is an evil, however, which we cannot do away with. An improved status of the magistrate would enable him to exercise more perfectly those arts of persuasion which must be resorted to in such cases, and this is about all which can be predicated in the matter.

It is not accurate, however, to put down all the failures of the court to enforce process against debtors to these two causes, and to the fact that many debtors are poor and must be allowed time. Our processes of attachments of property pending the trial of a cause and of the execution of judgments by seizure and sale do not seem to find analogies in the Chinese system, or, if they exist, do not appear to be used so freely as we use them. Their courts proceed, apparently, upon the plan of attaching the person of the debtor whenever practicable, and of forcing him in this way to find the means to discharge his debts, and it favors compositions, and the extension of time upon the security given by friends and clients to a degree not familiar with us. The consequence is a large measure of uncertainty in the processes of the law, and many opportunities on the part of magistrates to aid debtors in the avoidance of their obligations, the motives being those of a friendly, prudential, or other sort.

2d. That the pay and allowances of the magistrate are inadequate.

The complaint made was not so much that the magistrate is not adequately paid, as that the allowances for the support of the court generally are inadequate, and that the prison is too small and otherwise defective.

It would not be appropriate to raise any question with the Yamên in regard to the pay of the magistrate and of his subordinates. It was not intended by the foreign representatives to do this when they addressed themselves to the Tsung-li Yamên on the general subject of the allowances made to the court. It is by no means likely that the magistrate is adequately paid, for Chinese officials seldom, if ever, are. Neither is it likely that his clerks and bailiffs are paid enough to make them independent of the fees which are not the less demanded by such officers because they are not recognized as a part of the judicial system. It would be difficult, however, if not impossible to dwell upon this part of the subject without giving offense, and the facts are not so familiar to us that we could give evidence in support of our representations.

As respects the prison, the report from Shanghai acknowledges the merit of the complaints which we made. It says: “The accommodations for persons under confinement are not large, and crowding cannot be avoided.” This is exactly what we called attention to. The merit of our representation will be very evident to a person familiar with Chinese prisons and Chinese ideas of prisons in face of this frank acknowledgment. There is no such thing in China as a prison which has been erected with a reasonable regard to the comfort and health of the prisoners. Speaking of those at Canton, Dr. Williams says:

“The prisons are arranged somewhat on the plan of a large stable, having an open central court, occupying nearly one-fourth of the area, and small cribs or stalls, covered by a roof, extending nearly around it, so contrived that each company of prisoners shall be separated from each other night and day, though more by night than by day. The prisoners cook for themselves in the court, and are secured by manacles and gives, and a chain joining the hands to the neck; one hand is liberated in the daytime, in order to allow them to take care of themselves. Heinous criminals are more heavily ironed, and those in the prison attached to the judge’s office are worse treated than the others. Each criminal should receive a daily ration of two pounds of rice and about two cents to buy fuel, but the jailer starves them on half this allowance if they are unable to pay him; clothing is also scantily provided, but those who have money can procure almost every convenience. Each cribful of criminals is under the control of a turnkey, who, with a few old offenders, spends much time in torturing newly arrived persons to force money from them, by which many lose their lives, and all suffer far more than they do from the officers of government. Well may the people call their prisons hells, and say, when a man falls into the clutches of the jailer or police, ‘The flesh is under the cleaver.’”

I should not be willing to say that all Chinese prisons would answer to the foregoing description, and certainly I should not say that the prison of the mixed court at Shanghai has exhibited the abominations which are set forth in it. But there is no denying the fact that Chinese prisons at large are such as to reflect the greatest discredit upon this government, and that, bad as they are represented to be in the given instance, reports of Chinese officers could be quoted which would make out a worse case, even.

An effort, which deserves commendation, has been made by the mixed-court magistrate, some of the particulars of which are recited in the report before us. The drafting off of prisoners, who are, in fact, mainly vagrants and beggars, and the relief so afforded to the mixed-court prison, are steps worthy of commendation. But this does not alter the fact that the cells of the given prison are mere pens in which the prisoners cannot be adequately cared for or segregated.

Part 3 of the Chinese report deals in continuation with the condition of the prison and of the efforts made to relieve it, as above stated.

Part 4. Grave criminal cases should be tried by the district magistrate, conjointly with, the mixed-court magistrate,

Our proposal was not that this procedure should be decided upon, but rather that all references to the district magistrate should be done away with, the mixed-court magistrate sitting in all criminal cases as the magistrate of first instance. We did propose, however, that if this could not be granted, the district magistrate, in all cases when his interference might be necessary, should go to the mixed court and sit upon the trial with the mixed-court magistrate, and in accordance with the rules for the mixed court.

The Shanghai report seems to advise that the alternative request so presented should be complied with. It will be as well, in my opinion, to raise no further question upon the subject and to proceed with the Yamên to frame a rule which will be clear in terms, setting forth the conclusion which has been reached.

It will be noticed that the Shanghai report, after dealing with the matters submitted by the foreign representatives, proceeds to propose additional rules, which are in effect as follows:

1st. That in cases in which foreigners are defendants and natives prosecutors, the trial shall be held at the mixed court, the foreign officer going there to conduct the trial, and the native magistrate sitting to watch proceedings; more serious cases to be heard by the chief judicial officer of the defendant, and those of less importance by an assistant.

2d. In mixed cases no attorneys shall be employed.

It is to be remarked regarding these proposals that the first is inadmissible and the second of doubtful propriety. So long as the rule holds that all cases are to be heard in the defendant’s court, it is right and appropriate that the trials should be held at the office of the defendant’s magistrate, Chinese cases at the native Yamên, and foreign cases at the foreign consulate or court. Any other rule would be inconvenient and in derogation of the dignity of the given court. It is not likely that any stress will be laid by the foreign office on this proposal, but it is likely that they will be urgent in regard to the admission of lawyers. No lawyers are admitted into ordinary Chinese courts, and it can be understood that the presence of foreign attorneys in mixed cases, particularly those against Chinese, which are heard by the native magistrate, must be considered out of order by him and irksome to a marked degree. Yet it would be difficult to deny to our people the privilege of presenting their matters by men skilled in law, in the examination of witnesses, and the presentation of cases to courts. The position of a foreign assessor is certainly a more dignified one when he sits with the native judge, not as an active assistant of his national who is before the court, but to consult with the magistrate as to the pertinency of the evidence offered, its admissibility, &c. The prospect of a case being made fit to go before appellate judges must be considered far greater, too, when lawyers are employed. Yet undoubtedly the presence of lawyers under the circumstances must be subject to regulation. It may be that they should be allowed only to prepare pleadings, to suggest questions to the magistrates in the examination of witnesses, and to prepare arguments, the pleadings and arguments to be submited in English and Chinese.

Altogether I do not consider the response of the foreign office to our representation as very unsatisfactory. It assents to, or, rather, asserts broadly, the doctrine that all cases are to be tried in the defendant’s court, an officer of the complainant sitting in the court to watch proceedings. I attach great importance to this principle and to its recognition by the Chinese. It grants one of the proposals of the foreign representatives, that asking that references to the district magistrate shall be done away with, and that the district magistrate shall sit in the mixed court when his intervention becomes necessary. It deals with all our representations in a courteous way, and leaves the whole subject open for further discussion. I do not at all despair of our being able to work out the main purpose which we set before us last fall, under these circumstances.

I presume that a meeting of the diplomatic body will be held at an early day to take the letter into consideration.

I have, &c.,

GEORGE F. SEWAED.

[Inclosure in No. 650.]

Prince Kung, chief secretary of state for foreign affairs, herewith makes a communication:

In the matter of the mixed court at Shanghai, I had some time since the honor to receive a dispatch from the diplomatic body setting forth certain considerations affecting the administration of justice by it, to which my attention was invited. Thereupon I transmitted a copy of the changes proposed to the southern superintendent of foreign trade, asking him to take cognizance of the circumstances of the case and make report, and I so informed the diplomatic body at that time.

I am now in receipt of a response from the southern superintendent of trade, covering a report submitted by the customs intendant at Shanghai, upon the four changes proposed in the mixed-court rules and an additional article suggested by him.

This report appears to the prince and ministers to be fair, and meets with their approval. I have the honor to append a copy of it hereto, for which I beg your excellency’s consideration and the favor of a reply.

Peking, March 22, 1880.

His Excellency George F. Seward, &c., &c., &c.

[Appendix to the foregoing.]

1. The Chinese deputy should have a commissson and an official seal.

The deputy appointed to the mixed court has a letter of authority from the viceroy and governor, which is the same as a commission, and he is provided with a seal for his use, which is the same as a seal from the board.

In the administration of public business his powers differ in no respect from those of a regularly commissioned officer.

In the matter of arrests and summoning witnesses, if the parties be within the foreign concessions, he has the power to secure their attendance. If the parties are without the concessions, he can only secure them by representation to the official of the locality in which the parties reside, and with the concurrence of that official.

In regard to debts due by Chinese to foreign firms, the debtors in a majority of the cases are poor, and although the court may have given judgment against them, still time must be given them in which to secure funds and make payment. In the case of a literary graduate, who is a debtor, it would be difficult to punish him for failure to make payment until he has been stripped of his degree. The only course is to give him time and press him for payment.

The foregoing difficulties all result from the statutes of the empire and the rights of the parties, and not from lack of authority. The mixed court rules now in force are just and satisfactory. There would seem to be no way to add to the authority of the Chinese deputy.

It is submitted that the rules be continued in force as heretofore, and that there need be no further consideration given to the subject.

2. That the pay and allowances of the court are inadequate, and that additional sums should be granted.

In 1858, after the establishment of the mixed court, all of the expenditures were provided for by the intendant of circuit, who paid the sums needed upon a detailed statement made each month by the deputy of the amount actually required. The allowances made to the deputy are more in amount than the salary of a regularly commissioned officer, and fully adequate to his needs. There would appear to be no occasion for increasing them.

In regard to accommodations for the persons under sentence to the cangue, and the lack of a prison, the amount of food required for each person is reported. As to the court fees, Western powers have statutes which require these to be paid by the plaintiff or defendant, as the case may be. China has no such rule, and hence such fees cannot be received. Further, at the establishment of the mixed court in 1868, this subject of the expenses was discussed and a procedure adopted. It would not be convenient to increase them at this time.

3. The lack of proper room in the prison, and the consequent sickness and suffering among prisoners.

The accommodations for persons under confinement are not large, and crowding cannot be avoided. The deputy has been repeatedly directed to take more care and pains, and in case a prisoner was ill to report the facts and take steps for his cure. But in the case of persons in the cangue, as their crime is below that for which the penalty of banishment is awarded, they can, in cases of illness, by giving security for their return, be released and themselves seek medical treatment.

In the cases of persons in confinement because of disputes as to the ownership of goods, the intervention of middlemen is invited to arrange matters, and hence much going and coming of friends cannot be avoided. The deputy being well aware of this fact, does not interfere simply with the desire to facilitate the settlement of cases by arbitration, and with the hope that they may be disposed of without delay. In a mixed population of Chinese and foreigners, as is found in the concessions, there are constantly Chinese who, oppressed by hunger, pick up articles belonging to others and make use of them to satisfy their appetite. When brought into court they must, of course, be cangued. But upon examination it appears that they are without means of support or homes, and, the prisons being full, some suffer as a result of overcrowding.

A means of relief ought to be devised, lest this class fall still lower and become criminals. It has been thought wise to erect a refuge for such persons. A spot at Hsin Cha has been selected and buildings capable of holding 100 persons. They will be furnished with food daily, clothing and medicine for those who may be ill. It is to be called the “Yang-ho Tang.”

The regulations for its management have been fixed, and it is to be hoped that it will be a permanent establishment. The expenses connected with it are to be met by subscription. Thus the suffering and sickness occasioned by overcrowding the prison of the mixed court will hereafter not occur.

4. Graver cases tried by the district magistrate conjointly with the deputy of the mixed court.

Inasmuch as the mixed court has no prison and no power to inflict the heavier class of punishments in offenses of a sort calling for banishment, or severer penalties, the laws of China require that the cases of this class should be tried before the district magistrate. In grave cases in which foreign matters are concerned, the district magistrate may sit as co-judge at the mixed court, but after the trial at the mixed court the Chinese prisoner must still be taken by the district magistrate to his Yamên and there be dealt with. It is suggested that to the phrase “the local officer may not judge,” of section 4 of the mixed court rules, the following be added:

“In cases where the criminal and witnesses are all at the mixed court, the district magistrate shall sit there as co-judge to hear and decide the case, and shall take the Chinese criminal to his own Yamên to be dealt with.”

proposed additional rule.

In suits brought by Chinese subjects against foreigners, the plaintiff may bring his complaint to the mixed court, and the British judge or the consul-general of the defendant shall be requested by the deputy to summon the defendant and to depute the assistant judge, or the vice-consul and an interpreter, to appear at the mixed court and try the case, the Chinese deputy being present to watch the proceedings.

In cases of a serious character, which cannot be decided by the deputed foreign official, the British judge, or the consul-general of the defendant, shall be requested to preside at the trial.

In suits brought by foreigners against Chinese subjects, the plaintiff may bring his complaint to his consul-general, requesting him to notify the deputy of the mixed court to summon the defendant, and requesting him to depute a vice-consul or an interpreter to investigate the case with the deputy at the mixed court. Thereafter the Cheefoo convention rules shall be followed, the Chinese subject being tried by the Chinese deputy, the foreign official watching the proceedings. In order to avoid court and other expenses, out of consideration to the parties and in the interest of justice and fairness, neither party shall employ Western attorneys.