Minister Conger to the Secretary of State.

No. 938.]

Sir: Referring to department’s instruction No. 382 of September 23, 1901, I have the honor to inclose herewith a copy of the amendments to the rules of the mixed court at Shanghai, as agreed upon by all the members of the consular body except His British Majesty’s consul-general, Mr. Warren, who was absent from the meeting at which they were considered on account of indisposition.

I inclose also Consul-General Goodnow’s dispatch transmitting the above.

Should these amendments meet the approval of the department, I respectfully request to be notified of the fact at an early date.

I have the honor, etc.,

E. H. Conger.
[Inclosure 1.]

suggested amendments to the mixed court rules.

(a) The mixed court of Shanghai shall keep a regular docket in Chinese and English of all civil actions and proceedings, entering each case separately, [Page 370]numbering it consecutively, with the date of filing, the names of the parties in full, their nationality, the thing claimed, with minutes and dates of all orders, decrees, continuances, appeals, and proceedings until final judgment, and a sufficient minute of the final judgment.
(b) Another regular docket shall be kept for all criminal cases, with similar minutes.
(c) Such docket shall be open at all times for inspection by parties interested.
All trials and proceedings in the mixed court of Shanghai shall be open to the public, unless the assessor and Chinese judge agree that for public morals the case should be heard in private.
The Chinese judge of the mixed court in Shanghai shall be a substantive subprefect, and authorized to try all cases against Chinese in the foreign settlements north of the Yang-king-pang.
(a) A foreign assessor, as agreed upon by the consular body of Shanghai, and subject to the treaty rights of each nationality of foreigners, shall sit with the Chinese judge in every case.
(b) When the Chinese judge and the foreign assessor shall agree as to the judgment in any case involving less than 1,000 taels or six months’ imprisonment, their joint judgment shall be final. Should they not agree in any case, then no decision in that case shall be rendered by them, and the case shall be referred to the taotai and the consul concerned. Where any case involves over 1,000 taels, or to exceed six months’ imprisonment is given, either party may appeal to the taotai and consul concerned. Should the taotai and the consul concerned agree in any case, their joint decision in such case shall be final. Should they disagree, the case shall be sent to the viceroy at Nanking and the consul concerned on the record.
The mixed court jail shall be subject to the sanitary regulations and the supervision of the head authorities of the municipality north of the Yang-king-pang.
All warrants of the mixed court against Chinese in the foreign settlement north of the Yang-king-pang shall not be enforced unless countersigned by the senior consul of the consular body at Shanghai. If the defendant is in the employ of a foreigner, such warrant must be countersigned by the consul of the nationality of the employer of the defendant.
Should the attorney in any case be adjudged by the Chinese assessor sitting in that case to be guilty of any contempt committed in their presence or of any refusal to obey their lawful summons or order, he may be suspended by them from practice in that court for a period not exceeding one month or, with the consent of the consul of the nationality of the attorney concerned, for not to exceed six months.
In cases involving principles where no precedents exist in Chinese law, the mixed court shall be governed by commercial customs and equity.
All parts of the present rules and regulations for the mixed court of Shanghai, not in conflict with these amendments, are hereby continued in full force.
[Inclosure 2.]

Mr. Goodnow to Mr. Conger.

Sir: I hand you herewith a copy of the amendments to the rules of the mixed court of the foreign settlements north of the Yang-king-pang, as drawn by Doctor Knappe (German consul-general) and myself, and as agreed to by all the members of the consular body at Shanghai, except Mr. Warren, who was absent from the meeting on account of indisposition.

The matter has been thoroughly discussed by all the consuls and they instructed me as senior consul to send it to the doyen of the diplomatic corps, as considered by them to be suitable for adoption and its adoption recommended.

These amendments cover all that I think is desirable at the present time to ask, and I would recommend that in the interests of American trade you urge the consent of the Chinese Government to them.

I note your 1334 and the inclosure from Sir Ernest Satow where he quotes Sir James Mackaye as saying: “When this is done I have little doubt that I [Page 371]shall be able to put something before Sheng which shall have the support of the consular body here.” You see by this that Sir James Mackaye still contends for the point to which all the consuls object; viz, that he, as representing one nation, shall treat with the Chinese authorities as to the rule of this court, which represents all nations vis-a-vis the Chinese.

The consular body (with the exception of Mr. Warren, who, of course, can take no part in the discussion) are unanimously opposed to that assumption. As a consequence, Dr. Knappe and myself, to be consistent, have consulted with the entire consular body instead of sending up recommendations solely to our own ministers as was at first contemplated. The feeling in the matter is very strong. This is a cosmopolitan city, under the direction of all the nations, and, we think, great care should be taken to keep it so. We therefore think, and I hope for your approval of this, that the matter should be taken up by the diplomatic body with the Chinese.

I am, sir, etc.,

John Goodnow, Consul-General.