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

No. 162.
Mr. Seward to Mr. Evarts.

Legation of the United States,
Peking, April 19, 1880. (Received June 8.)

No. 661.]

Sir: Referring to my dispatch, No. 650, of the 1st instant, transmitting to you the response of the Tsung-li Yamên to the joint note of the foreign representatives of November last, in regard to the mixed court at Shanghai, and to my No. 653, stating that I had been requested by my colleagues to place the subject before the Yamên personally, with a view to secure the further and more favorable consideration of the matter, I have now the honor to inform you that I visited the Yamên on the 14th instant, and to hand to you a memorandum of my remarks to the ministers, and a minute prepared by me for my colleagues, stating the views put forward by the Chinese, and the general results of the interview.

You will see from these papers that, in speaking with the ministers, I traversed the whole matter with much care, and that they promised to write again to the provincial authorities, forwarding my memorandum and asking for a further report. It is by no means impossible that this report will be more favorable than the one which has been sent to us.

My colleagues have approved my course at the Yamên, but they have not yet agreed upon instructions to be sent to the consuls at Shanghai. I am not sure that they will not think it better to leave the matter to be passed upon in view of my memorandum, as there are some divergencies of views and interests among the consuls at Shanghai, and it may be desirable to avoid rousing their susceptibilities unnecessarily. I allude more particularly to the fact that the French have a kind of special mixed court at Shanghai, and that different opinions prevail there as to whether foreign lawyers should be admitted into the mixed court, and whether the rule that the court of the defendant shall try given cases as the right one.

I shall refrain from writing to Mr. Denny on the subject until the matter has been considered further.

I have, &c.,

GEORGE F. SEWAED.

[Inclosure 1 in No. 661.]

Memorandum of Mr. Seward’s statements to the ministers of the Tsung-li Yamên, regarding the mixed court at Shanghai, on Wednesday, April 14, 1880.

The ministers present were Shen, Tung, Wang, and Chung-lin.

Mr. Seward said that he appeared on behalf of the diplomatic body to speak about the mixed court at Shanghai, and thanked the ministers for having accorded him an early interview.

He then proceeded to say that the subject is one in which the diplomatic body take much interest. Shanghai is the center of foreign commercial interests in China, and as many mixed cases arise there, perhaps, as at all the open ports taken together.

It is of much concern that the procedure in mixed cases at Shanghai, under the circumstances, shall be such as to give confidence to suitors.

The establishment of the mixed court by the local authorities, acting in consultation with the consuls, in 1834, was a step of importance. The imperial approval of the action thus taken in 1833, and the provision of a code of rules for the court, was in particular the occasion of much satisfaction to foreign merchants and officials.

Since its establishment the court has served an excellent purpose. Very many eases, civil and criminal, some of which have been of great importance, have been heard and determined in it, and while the action of the court has not always commanded approval, its decisions have been in the main such as to give no reasonable ground for complaint. While this is the fact, there have been repeated complaints that the court has not always acted with independence and vigor, and in particular that it has frequently failed to enforce its judgments.

This part of the matter, as the ministers will remember, was the subject of consideration between the English Minister and Li-Chung-Tang, at Chefoo, in 1876, and it was mentioned in the agreement concluded between them, as follows:

“The Chinese Government has established at Shanghai a mixed court, but the officer presiding over it, either from lack of power or dread of unpopularity, constantly fails to enforce his judgments. It is now understood that the Tsung-li Yamên will write a circular letter to the legations, inviting the foreign representatives at once to consider with the Tsung-li Yamên thei measures needed for the more effective administration of justice at the ports open to trade.”

The matter has seemed to the foreign representatives for a long time one which demands attention, but owing to the pressure of other matters and to other reasons no communication on the subject was made to the Yamên until the month of November last.

The statement then submitted to the Yamên was very carefully considered by the whole number of representatives in China, eleven in all. It was put forward with perfect consideration for the sovereign rights of the Chinese Government in the most courteous manner and with the one object and end, to remove, so far as possible, all grounds of complaint and distrust.

The judicial question is, undoubtedly, one of some embarrassment. The ministers are well aware that in western countries all persons who reside upon the soil are subject in all matters, civil and criminal, to the jurisdiction of the national sovereignty. But in China the laws and the procedure of the courts and the punishments inflicted by them are radically different from those of western countries. As a consequence, western states and China have agreed together that foreigners shall he subject to the jurisdiction of their own authorities, and dealt with in accordance with their own laws.

In cases where the subjects of foreign powers are the only ones concerned, no occasions for disputes have arisen. China has not found it necessary to take any notice of the procedure in such cases, just as foreign powers do not find it necessary or desirable to interfere where the parties concerned are Chinese only.

But there are many difficulties arising when the parties complaining are foreigners and the defendants are Chinese, or vice versa. How are such cases to be heard? To whom is the complaint to be presented? Who is to preside at the trial! What rules of procedure shall be followed? What law shall be enforced, that of the complainant or that of the defendant? If it is not the law of the plaintiff or of the defendant which is to be applied, and decisions are to follow broad lines of justice and equity, whose ideas of justice and equity shall they be? For there may be as great differences in these as in the laws.

So far as the mixed court at Shanghai is concerned, these questions have been resolved by the rules which were decided upon in 1868. Under these, all cases brought forward at Shanghai by foreigners against natives are to be heard and determined, in the first instance, by the magistrate of the court, according to the laws of China. A foreign officer sits with him, however, to assist him, and to watch the proceedings on behalf of the complainant.

The foreign representatives do not raise any questions as to the merit of this procedure. If necessary, they will discuss that part of the subject hereafter. They desire at the moment to do no more than they did in their letter of November, to point out that the mixed court is defective in some respects, and to call your attention to those defects in detail.

The first point to which they allude in that letter was the status of the magistrate as a Chinese official. They desired to say, in this connection, that, in their opinion, he should hold an imperial seal and be recognized as a member of the regular administration of your government. To this you have rejoined that he bears a letter of authority from the viceroy and governor, and that his powers are the same as if he were appointed from the capital.

The foreign representatives do not dispute the proposition that his powers may be the same under provincial commission as they would be under an imperial commission. But, in their opinion, the independence and vigor of the magistrate are seriously affected by the fact that he is a deputed officer only.

This opinion has been expressed by all of the gentlemen who have acted as assistants in the court, and it appears reasonable on its face.

This magistrate, as a deputed officer, may be removed by the provincial authorities; if he bore an imperial commission, he could be displaced only with the concurrence of the government here. The provincial authorities know this, the magistrate knows it, the people know it, and foreigners know it. The fact cannot fail to affect the magistrate in a variety of ways, adversely to his independence and influence.

It may be pointed out that the scope of the authority of the magistrate is very broad. He is the sole judge of first instance in all cases, grave criminal cases only excepted, in which natives who live in the foreign settlements at Shanghai are concerned. This embraces a population of about 160,000 souls. He is the sole judge of first instance, with the same exception, in all cases in which foreigners residing at the port are complainants, and Chinese, whether in or out of the port, are defendants. He is the officer who sits in the foreign courts to watch cases in which natives are complainants and foreigners are defendants.

The foreign representatives do not think that they are going far under such circumstances when they ask that the magistrate of the mixed court be recognized as a regular officer of the government. They think this is due to a man who discharges functions of such gravity, and also to the great foreign interests which are affected. The foreign representatives would remind you in this connection that the consuls general and consuls at Shanghai feel obliged often to sit with The magistrate upon the trial of more important cases, and that his position as a deputy renders it irksome for them to meet him in this way.

Consuls rank with intendants of circuit, and it might reasonably be asked that an officer of the grade of intendant should preside over the court.

The foreign representatives, while urging these views upon you in this way, have no desire to interfere with the course of your administration. The magistrate is now charged with judicial duties only. They do not ask or wish that he be given general administrative duties. They understand that an officer may have judicial authority only for a certain district. The given magistrate has already judicial authority for the district in question. It is the more perfect confirmation of this authority for which they ask. It is conceded that the administrative measures needed to carry out this proposal cannot be difficult.

Having gone so far, the government can certainly go a step further and make the court in fact, what it is in name, an imperial establishment.

It is to be said in this connection that the authority of the court over natives is primarily and mainly over those resident in the foreign settlements. The peace of those settlements is a matter of concern to foreigners, and in this way they came to have an interest in the administration of justice in a class of cases which seem at first to concern your people only.

What precedes has relation to the status of the magistrate. The next matter to speak of is the authority of district magistrate.

Under the rules of the court graver criminal cases are to be heard by the district magistrate. The foreign representatives have thought that it would be better to have all criminal cases to be heard and determined by the mixed court magistrate, but they are prepared to agree to the assent accorded to their alternative proposal that the district magistrate shall sit at the mixed court when foreigners are concerned and his intervention is necessary, and that in such case his procedure should be conformed to the mixed court rules. It will be necessary for the Yamên to frame a rule accordingly and to communicate it to the legations.

The pay and allowances of the magistrate.

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, and for the prison in particular, are inadequate, and that the prison is too small and otherwise defective.

The foreign representatives do not wish to dwell upon the question of the amount paid to the magistrate and his subordinates. That is properly a matter of your concern, and of which you are the best judges. In their opinion officers who are well paid are more to be relied upon than those who are underpaid, and distrust of those who are underpaid is only a natural thing. They believe, also, that you know that the given magistrate is a very hard worked man, and that his duties are particularly responsible. The hearing of the ordinary police cases which come before him would tax his strength, but beyond these he has to hear and decide many very difficult international cases. Individual cases of this kind sometimes occupy the court for a half dozen sittings. A foreigner engaged in such duties would expect to be paid very liberally indeed, and it appears only just to compensate the magistrate in proportion to the responsibility of the duties which devolve upon him.

In this connection the foreign representatives pointed out to you in particular the defects of the prison, and in its management.

They are aware that different ideas of the conduct of penal institutions prevail in western countries from those entertained in China. In our idea a prison should be a perfectly secure place. In certain cases the absolute segregation of prisoners is thought to be necessary. Beyond this, in our view, a prison should be as well ventilated and as perfect in a sanitary point of view as any establishment of the sort can be. We find, however, that the prison of the mixed court is such that the inmates cannot be perfectly segregated, and that they are very liable to fall ill. The response of the viceroy, shows that it is small and overcrowded. An effort has been made to relieve the pressure upon it, but we doubt whether the result will be sufficient. The foreign representatives think that this part of the subject should not be lost sight of. It may be mentioned in this connection that the court-room of the Yamên is small, and that all matters, police and other, are heard in it. It is very warm in summer and very cold in winter. As foreign merchants and officials have to attend at the court, and as they suffer much more from extremes of heat and cold than your people, it becomes desirable to consider whether a larger room cannot be provided, with thick walls and suitable arrangements for ventilation and heating.

The viceroy has proposed two additional rules:

1st. That all mixed cases shall be heard at the mixed court, the foreign magistrate going there when the defendant is a foreigner.

2d. That no lawyers shall be admitted in mixed cases.

The foreign representatives are not prepared to assent to the first proposal. Foreign officers go to the mixed court when Chinese are defendants, and there appears to be no reason why native officers should not go to the foreign courts when foreigners are defendants. It is dignified and right that the magistrate who presides, shall sit in his own Yamên. It is more convenient, too, for the records of the case must be kept there, the secretaries and bailiffs are all there, and prisoners are confined there. This has been the rule in the past, and no good reason is alleged for making a change.

It is very true that it must often be inconvenient for the mixed court magistrate to attend at the foreign court. His duties are such as to occupy his time very fully. In this connection it may be said that the magistrate is engaged for a quarter or less time every day at his Yamên in the hearing of police cases, and that many inconveniences are met with when civil or criminal cases of importance are on trial in his court, or in the foreign court, and his presence is needed. There should be at least two persons connected with the Yamên having official authority. In such case the less important and the more important cases could be moving forward simultaneously.

Regarding the admission of attorneys, it should he said that foreigners of most countries have found their assistance in their own courts indispensable, and that it would be a hardship for them to frego the benefit of their assistance when matters are to be presented to native courts. Your own people would find it a hardship to be denied their services in our courts, and the result would be unfavorable to them, for no one is competent to present cases in our courts who is not acquainted with our laws and procedure. But it is not to be denied that lawyers in all courts must be subject to regulation and control. It may be well to ask the Taotai at Shanghai, and the magistrate of the mixed court to frame rules regulating the admission and conduct of lawyers, acting for this purpose in concert with the consuls, and to submit such rules for approval.

[Inclosure 2 in No. 661.]

Mr. Seward to Sir Thomas Wade.

Peking, April 15, 1880.

His Excellency Sir Thomas Wade, K. C. B., &c., &c., &c.:

Dear Sir and Colleague: I have already informed you, as doyen of the diplomatic body, that I visited the Tsung-li Yamên yesterday, and spoke with the ministers present, as requested by you and my colleagues generally, in regard to the mixed court at Shanghai, and I have now to hand to you a minute of my remarks.

I was asked by the ministers to submit such a minute to them, in order that they may send it to the viceroy at Nanking, with instructions to report further upon the business.

If you, and my colleagues generally, approve the minute I shall have it translated and transmitted to the Yamên at once.

I have already informed you that while the ministers listened to me with attention, and in an appreciative way, our proposal that an imperial commission and seal be “conferred upon the magistrate of the mixed court was stoutly contested by them. The burden of their argument was that it would be difficult to give him a seal, and that it would be useless. When I pressed them to state the difficulties, they appeared to me to be unable to define with any exactness the conditions which render the action desired by us embarrassing to them. They answered in a very general way, that the district within which the magistrate would act is very small, and that it would occasion jealousy on the part of the regular officers of the locality. Their most significant statement, perhaps, was, that an officer of the regular administration might feel bound to manage the court in more perfect accordance with Chinese ideas than the present deputy does.

As the proposal to give the magistrate imperial authority was the most important one of those which we put forward, and as I learned nothing from the ministers which seemed to me to invalidate the merit of our position, I urged our proposal as strongly as I could with courtesy, and took all possible pains to indicate that we are not disposed to accept a refusal as a satisfactory conclusion of the business.

At the last the ministers said that we must be aware of the evils which result frequently from attempting to change established institutions, and I was led to infer that the opposition exhibited had its origin in this conservative feeling rather than in any practical administrative difficulties. I shall not be surprised if the viceroy yields the point graciously.

You will see from the minute the line of argument which I followed in dealing with the question of the seal and otherwise. You will see in particular that I presented to them some details in regard to the court which were not advanced in our letter of November last.

I may say in this connection that I found it desirable to do this in order to impress upon the ministers more perfectly the merit of the proposals which we did advance in our letter of November, and because the matters so advanced do seem worthy of attention. It appeared tome moreover that a further reference to Nanking would be unavoidable, and that it would be a mistake to lose the opportunity to impress upon the ministers the fact that their court falls far short of being perfect in its constitution and details, and the chance of securing all possible ameliorations. The ministers were especially appreciative of the statements which I made in this connection, and said that if the magistrate is really overworked, or his duties are such that he cannot deal promptly with all matters demanding his attention, and if the Yamên is defective, measures may be taken to give him assistance and to provide suitable accommodations.

I am sure that reforms in these directions would be much appreciated at Shanghai, where the difficulties of bringing cases to trial, owing to the pressure of work upon the magistrate, and the almost intolerable discomfort of the court-room in the winter more especially, have been evils to which attention would have been called in urgent manner, if it had not appeared hopeless to attempt to improve matters.

It was not possible to avoid speaking of the proposals sent up by the viceroy. The ministers fully assented to my statement of the reasons why our officers cannot go to the mixed court to hear cases in which our nationals are concerned as defendants, and they did not seem to have any settled opinion in regard to the admission of lawyers in mixed cases. My statement that it would be a hardship to their countrymen to refuse to allow them to employ lawyers when they appear as complainants in our courts seemed to be appreciated by them, and to give force to my intimation that to some at least of the foreign representatives, their refusal to allow our countrymen to use lawyers would seem almost a denial of justice. I thought I could not do better in this connection than to say that the subject is one which may be so regulated as to do away with undoubted evils, and to preserve the benefits to be derived from the assistance of a class whose efforts have done much to make the course of law in western countries better than it is in China, and that the best plan is to ask the authorities at Shanghai to consult with the consuls on the subject. This will leave each representative here free to give his officer at Shanghai such instructions as may seem appropriate. I hope, however, that we may be able to agree upon an instruction to be sent to them which will avert the consequences of what appears to me a movement of a retrograde sort.

While thanking you and my colleagues for allowing me the opportunity to urge upon the Yamên the importance of the matters in hand, I beg leave to express the hope that my course will meet with general approval.

I am handing to each of my colleagues a copy of this note and of the minute prepared for the Yamên, and I beg leave to ask you to consider whether a meeting of our body should be held in order to consider the minute, and whether any instructions, and if so, what instructions, should be sent to our officers at Shanghai.

I am, my dear colleague, yours very truly.

GEOEGE F. SEWAED.