No. 141.
Mr. Angell to Mr. Evarts.
Legation of
the United States,
Peking, November 30, 1880.
(Received January 17, 1881.)
No. 60.]
Sir: On receiving your instruction No. 27 of August
16, 1880, calling attention to certain allegations found in a circular
issued by Mr. Francis Parry, of England, of inhuman proceedings in the mixed
court of Shanghai, for which he intimated the foreign consuls are in some
degree responsible, I at once called the attention of Consul-General Denny
to the matter.
I have received a reply from him, a copy of which I inclose. It is so full
that I need say but little on the subject.
Mr. Parry has probably given the impression that the foreign consuls have a
larger responsibility for the procedure in the mixed court than that which
they can really exercise. The court is a purely Chinese court, which
administers Chinese law.
Neither the consuls nor their representatives, the assessors, can perform any
other function in the court than to be present and watch the proceedings and
question witnesses in order to see that justice is done to the citizens of
the nation they represent, or to protest if injustice is done to such
citizens. In all cases between Chinese and foreigners the case is tried in
the courts of the defendant’s nationality, the proper official representing
the plaintiff’s nationality being permitted to be present to watch the
proceedings in the interest of the plaintiff, but having no direct voice in
the judgment.
It has been thought, and I believe justly, that the frequent presence of
foreign assessors in the mixed court of Shanghai has done much to ameliorate
its procedure, and that in respect to humanity it presents a most favorable
contrast to most Chinese courts.
Unhappily the penal code of China does sanction the torture of witnesses and
corporal punishments, which seem to us barbarous. And we cannot indulge very
sanguine hopes that the most vigorous representations foreigners can make of
their repugnance to such usages will speedily work a radical change.
But our consul-general has instructed our assessor to protest against the use
of the cangue and of the bamboo in cases in which he appears. It is true
that in the past, punishments in excess of the hundred blows allowed by law
have been inflicted; but none such have been administered since Mr. Denny
has been at Shanghai. It is perhaps justifiable to infer that an improvement
in this respect has taken place. It is to be observed, also, that the
magistrate of the court asserts that owing to the objections of foreigners
to the use of the bamboo it is now usually resorted to when the assessors
are not in attendance, and in the opinion of the consul-general it is now
rarely employed by the mixed court magistrate.
[Page 214]
It would seem that there is some error m respect to the report of the case
which is described as a particularly shocking one of torturing a prisoner in
the presence of a United States assessor, the case of Shun-chi sze, charged
with abduction. The consul-general reports that there is no such case on the
official records.
I think then that, so far is it from being true, that the foreign consuls and
particularly that the American consul-general and assessor are implicated by
acts of commission or of omission in countenancing or tolerating inhuman
punishments ordered by the mixed court of Shanghai; the fact really is that
by their efforts and by the presence of the assessors in that court, the
procedure in it has been ameliorated and improved as it has been in no other
purely Chinese court in the Empire.
I have, &c.,
[Inclosure 1 in No. 60.]
Mr. Angell to Mr.
Denny.
October 12,
1880.
No. 12.]
Sir: A Mr. Francis Parry has issued, in London,
a circular, dated July, 1880, concerning alleged inhuman proceedings in
the mixed court at Shanghai. The State Department has directed my
attention to the subject, and informed me that the circular has called
out a considerable amount of unfavorable comment from the English press
upon the action of the mixed court. If I rightly understand Mr. Parry,
he aims to convey the idea more or less clearly that inhuman practices
are sanctioned by the foreign assessors who sit with the Chinese
magistrate, and that at any rate the foreign consuls or ministers might
do more than they have done to mitigate the punishments or improve the
penal code of China.
I quote the important part of his circular:
* * * “As to the sentences of the court; those in excess of 100 blows
are, according to the Chinese code, illegal, the punishment of the
cangue or huge wooden collar is a torture; beating on the face is a
mutilation; the most severe is the remission of persons convicted of
capital and heinous crimes to be judged, tortured during examination,
and imprisoned by the higher court of the district magistrate in the
native city. This remission is not the ordinary “extradition” provided
for in the treaty of Tientsin, Article XXI; the criminal is not demanded
by the city authorities, the rendition is a matter of convenience.
“These matters demand rectification. The association of the foreign
consul with the Chinese mandarin is a point of contact capable of being
made the inlet for that regard for humanity common to civilization, the
base of all the humanities.
“Japan has abolished judicial torture. Turkey no longer legalizes the
mutilation of offenders. China has yet to gain a good name by repressing
the cruelty which is the marked characteristic of her judicial system.”
* * *
Of course it is well understood here that the mixed court is a Chinese
court, administering Chinese law, and also that, any attempts to reform
the penal code of China can be rewarded with only slow progress. But all
the consular and diplomatic representatives of western nations certainly
desire to do what they may to improve the judicial proceedings,
especially in a court in which foreign assessors sit, and to set forth
the facts to their own governments with such distinctness as to relieve
themselves from the suspicion of encouraging inhumanity, or even of
tolerating it when they can prevent it.
As the mixed court at Shanghai necessarily falls under your personal
observation, I think it my duty to invite from you any statements or
suggestions, which the above extract from Mr. Parry’s circular may
prompt you to make. I would especially ask you—
- 1st.
- Whether punishment in excess of 100 blows is, according to the
Chinese code, illegal. Mr. Parry names eleven cases in which,
during 1879—the United States assessor sitting—more than 100
blows were given.
- 2nd.
- Is beating to extort confession ordered by the court. Mr.
Parry cites a case, March 20, Dr. Macgowan, assessor, in which
it is stated that 50 blows were given for this purpose, and that
these failing of the result, 50 more. It is called the Shun-che
sze abduction case.
I have, &c.,
[Page 215]
[Inclosure 2 in No. 60.]
Mr. Denny to Mr.
Angell.
November 11,
1880.
No. 35.]
Sir: Complying with the request contained in
your No. 12, relating to a circular issued by one Francis Parry, calling
attention to certain alleged inhuman proceedings in the so-called mixed
court at Shanghai, I beg to submit the following comments:
I may say in the beginning that, perhaps, there is no institution in
China which foreigners are supposed to know of whose organization,
powers, and duties are so little understood as the so-called “mixed
court” here. It, perhaps, takes its name from this fact, for certainly
it is not “mixed” in any other sense.
It was organized in 1864 by local officials, and approved of by the
Tsung-li Yamên, who issued a limited, and imperfect set of rules for it
in 1869.
This court is presided over by a Chinese judge, who administers Chinese
law according to the rules and precedents which have governed in Chinese
courts for centuries past, the only difference between it and other
native courts being a court designated by the Chinese authorities in
which may be tried suits between natives residing within the foreign
settlement and where the wrongs committed by Chinese against the rights
of foreigners, either of person or property, may be redressed without
their consuls being compelled to go to the taotai, and then the case
referred by him to the district magistrate—that is to say, a kind of
deputy court of the district magistrate.
As it would neither be advisable nor practical for the consuls to attend
in person such a court, it has been so arranged that interpreters of the
different consulates may appear for the consuls, to sit with the native
judge to watch the proceedings in the character of assessors, but who in
reality are not assessors at all, as they cannot interfere in the least
with the proceedings or judgments of the court, even when their own
nationals are concerned. For this reason I have instructed the
interpreter of this consulate to appear in the so-called “mixed court”
only when citizens of the United States are in some way interested in
its judicial business, and this for the purpose of watching and
reporting the proceedings to me; when, in my opinion, justice is not
done, I shall continue, as heretofore, to apply to the customs taotai
(superintendent of trade) to correct the injustice.
The treaties provide that cases arising between subjects of China and
citizens of the United States shall be tried in the court of the
defendant, and the one in question has been established by the Chinese
authorities for convenience sake, for the trial of suits when the
defendant is a Chinese subject, just as the United States consular
courts have been designated for the trial of cases when the defendant is
a citizen of the United States, and one is just as much a mixed court as
the other; one administers the laws of China, the other those of the
United States, and, under the treaties, Chinese officials have the same
right to appear and take part in the proceedings in our consular courts,
when the rights of their people are involved, as our officials have to
appear in a Chinese court and take part when the rights of our citizens
are concerned.
The use of the bamboo and cangue as means of punishment is certainly
objectionable in the extreme, even revolting to Western ideas in the
administration of justice. But so long as it remains a part of the penal
code of China and continues to be enforced by the Chinese authorities as
the most popular punishment inflicted upon offenders in minor cases, it
is useless for foreigners to enter their protests before petty
officials.
There is not an assessor perhaps who visits the so-called “mixed court”
who would not abolish the use of the bamboo and cangue if he could. But
as the assessors have no power in this direction, the only thing they
can do is to protest against such practices, which has been done
repeatedly, a course I have instructed the interpreter of this consulate
to invariably pursue when it is necessary for him to appear in cases
when such punishments are ordered.
The magistrate of the court in question informs me that as foreigners
object to the use of the bamboo, such punishments are usually inflicted
in the afternoon when assessors are not in attendance, and that never,
except in one case, has a witness been tortured
in the presence of a foreign assessor. He also informs me that no such case as “the Shun-che sze abduction case”
ever occurred in the “mixed court” wherein torture for confession was
resorted to as alleged by Mr. Parry. In addition to this, I have
examined the records of this consulate, wherein is recorded the title,
history in brief, and judgment of every case tried in the so-called
“mixed court” when the United States assessor has appeared, and I can
find no such case as the one referred to, neither have I been able to
discover from this record that torture for confession has ever been
resorted to. This fact should exonorate the assessor from complicity in
such punishments. There are, however, many judgments recorded wherein
bambooing and the cangue were ordered as punishments, and some of these
exceed one hundred blows, the number authorized by the penal code. The
record, however, does not show that
[Page 216]
any such excessive punishment has been given since
I assumed charge of this consulate-general.
If Mr. Parry desires to make his pamphlet eminently sensational by
recounting the cruel and unhuman treatment imposed by Chinese officials
upon their criminal classes, he should have resorted to the records of
other native courts and to the almost daily reports contained in the
native press, rather than to the record of the so-called mixed court, as
instance the following case tried before the Shanghai magistrate of the
native city a few days ago, and reported in one of the native
newspapers:
“A Chinaman charged a fellow countryman with having stolen some musical
instruments at the wedding of one of his relatives. It appeared that
another relative of the complainant, a Taoist priest, employed some of
his colleagues to play at the marriage feast, whereupon a musician of
the district, together with others, stole their musical instruments.
The accused admitted the charge and stated that the complainant had
violated the rules and customs prevailing among the Chinese, that none
other than musicians of the ward or district in which the wedding took
place should have been employed, and that the complainant had interfered
with his business in allowing the priest and his colleagues to perform
the musical part of the ceremony at the wedding. The magistrate summoned
the tepao (head man) of the ward in which the
wedding took place, and after asking him some questions, ordered him to
be bambooed 800 blows. The punishment was inflicted on account of his
not attending to his business properly. A Yamên runner was also punished
with 600 blows for dereliction of duty, while the magistrate ordered the
complainant to be bambooed 50 times for bringing the case into court,
and the accused to receive 400 blows.”
In answering your questions specifically, I have to say:
- 1st.
- The punishment in excess of 100 blows is, according to the
Chinese code, illegal.
- 2d.
- Beating to extort confession has been resorted to under the
order of the court in the past, and the barbarous practice will
no doubt be continued in the future, but, as before stated, this
beating takes place at the session of the court held in the
afternoon, when assessors are not present, but even then, I may
add that my investigations show that such punishments are rarely
inflicted by the mixed court magistrate.
I have, &c.,
