Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 3, 1906, (In two parts), Part I

Minister Conger to the Secretary of State.

[Extract.]

American Legation,
Peking, China, December 29, 1904.

No. 1777.]

Sir: Referring to my dispatch No. 938 of March 7, 1902, and department instruction No. 518 of May 14, 1902, concerning amendments to the rules governing the mixed court at Shanghai, I have to report that the representatives of all the powers, except the French and the Mexican (who says he has no objections but can not join), have sent the proposed amendments, with a joint note, to the Chinese Government requesting their agreement thereto.

I inclose a copy of this note, and will report further on receipt of their reply.

I have the honor, etc.,

E. H. Conger.

[Inclosure—Translation.]

Joint note of the ministers to the Prince of Ch’ing in re rules of mixed court at Shanghai.

Peking, December 22, 1904.

The undersigned have the honor to address His Highness Prince Ch’ing, president of the council of foreign affairs, on the subject of the rules of the mixed court at Shanghai.

These rules were adopted in 1868 after consideration by the foreign representatives and the Tsungli yamen. Since that time the labors of the court have shown a constant tendency to increase, and their tendency have been especially noticeable since the extension, in 1898, of the foreign concessions, which has brought a much larger number of people within the jurisdiction of the court.

As the revision of the rules has consequently become a question of urgent necessity, the foreign consuls have not failed to take them under consideration, and have proposed amendments which they have transmitted to the undersigned, who, after prolonged deliberation, have the honor to communicate them to your highness. They beg your highness to have the kindness to examine them and to signify your approval, so that they may be published in the ordinary method, and put into operation within a short period of time.

The undersigned have the honor to renew to your highness the assurance of their highest consideration.

(Signatures.)

suggested amendments to mixed court rules.

[Alterations and additions by the committee are in italics.]

1. (a) The mixed court of Shanghai shall keep a regular docket in Chinese of all civil actions and proceedings, entering each case separately, numbering it consecutively, with the date of filing, the names of the parties in full, their nationality, the thing claimed, with the minutes and date of all orders, decrees, continuances, appeals, and proceedings until final judgment, and a sufficient minute of the final judgment.

(b) Another regular docket, in Chinese, shall be kept for all criminal cases, with similar minutes.

(c) Such docket shall be open at all times for inspection by parties materially interested.

2. All trials and proceedings in the mixed court of Shanghai shall be open to the public, unless the assessor and judge agree that, for public morals, the case should be private.

3. The Chinese judge of the mixed court of Shanghai shall be a substantative subprefect, and authorized to try all cases against Chinese, no matter of what rank, in the foreign settlements north of the Yang-king-pang. There shall be attached to the court one or more assistant magistrates of the rank of, at least, expectant subprefect, whose appointment and removal shall rest with the taotai, and loho shall try such cases as may be assigned to him by the magistrate.

4. (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 not purely Chinese.

(b) If the magistrate and assessor fail to agree, after consideration, upon the decision in any case, it shall be referred to the taotai and consul or consul-general concerned, as the case may be.

5. The mixed court gaol shall be subject to the sanitary regulations and supervisions of the health authorities of the municipality north of the Yang-king-pang.

6. No warrant of the mixed court against Chinese in the foreign settlement north of the Yang-king-pang shall 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.

7. In all cases, civil or criminal, which come before the court where a foreign assessor is sitting, either party may be represented by counsel.

Before an attorney or counsel is admitted to practice in the mixed court, he must satisfy the court that he has been admitted to practice in the consular court of his own nationality at Shanghai.

8. Should any attorney in any case be adjudged by the Chinese judge and foreign assessor sitting in that case guilty of any refusal to obey their lawful summons or order, he may be suspended from practice in that court for a period not exceeding one month, of, with the consent of the consul of the nationality of the attorney concerned, for a time not to exceed six months.

9. In cases involving principles where no precedents exist in Chinese law, the court shall be governed by commercial custom and equity.

10. All parties to proceedings before the mixed court shall observe such rules of procedure as the magistrate may from time to time prescribe, subject to the consent of the consular body.

11. 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.