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 Rockhill to the Secretary of State.
Peking, China, March 9, 1906.
Sir: Continuing the subject of my dispatches No. 178 of December 23 last, and No. 213 of February 5, with regard to the affairs of the mixed court at Shanghai, I have the honor to report that on March 5 the foreign representatives concerned in the revision of the rules sent a joint note in reply to Prince Ch’ing’s note of December 4, 1905, which presented the Chinese counter amendments. (Inclosure No. 5 in dispatch No. 178.) This joint note was accompanied by a new draft made after consideration of the Chinese counter amendments. (Inclosure No. 1.) I am in hopes that an agreement will be reached before long.
I also inclose a translation of the reply of the consular corps at Shanghai to the note of January 6 from the diplomatic corps (inclosure No. 13 in dispatch No. 178, as corrected in dispatch No. 188), commenting on their action at the consular meeting of July 26, 1905, when, according to the minutes of the meeting, they directed that female prisoners in mixed-court cases should be imprisoned in the jail of the municipal council. This reply (inclosure No. 2) is, I regret to say, unconvincing.
On February 7, Mr. Rodgers wrote to me (inclosure No. 3) in a manner which seemed to indicate that the consular corps and the municipal council did not, even at this late date, in spite of all that has been written on the subject, realize that it does not lie with them to make changes in the conditions of the mixed court, and once more I have endeavored to make this clear to him. (Inclosure No. 4.)
I have the honor, etc.,
The diplomatic corps to the Prince of Ch’ing.
Your Imperial Highness: On December 4 of last year your imperial highness addressed a note to the doyen of the diplomatic body on the subject of the supplementary rules for the mixed court at Shanghai, transmitting the amendments proposed by the high commissioner for southern trade to the draft which we had the honor to place before your highness on January 5, 1905.
These amendments have now been carefully considered, and we have the honor to inclose herewith a revised draft respecting the alterations, in which we desire to make the following observations:
Article I deals with the court records, and it has seemed to us injurious to the reputation of the court that while in police cases and in mixed civil cases there should be a complete record open to the inspection of the parties materially interested, for the remaining civil cases brought directly to the court no record should be kept. We have therefore omitted the word “mixed” in clause (a) of this article, and submitted the wording of the original draft for clause (c). As regards clause (b), which defines the class of crimes with which the court has competence to deal, we have added a note explaining that the punishment of beating must now be commuted to a fine, and we have omitted the words “not exceeding three years,” as it seems to us that they unduly limit the powers of the court.
In Article II we accept the emendation of the board.
Article III, dealing with the rank of the magistrate, is of great importance. Ever since the foundation of the court one of its principal difficulties has been the subordinate position of the magistrate, and in considering the proposal now made, we trust it may be borne in mind that the magistrate’s functions differ from those of territorial officials in being purely judicial, and it is essential that he should have a rank which will command respect to exercise these functions in a proper manner. It is with the object of assuring this result that we propose this change in the wording of the article. In deference to the wishes of the Chinese Government, we have, however, for the present given way with regard to our original proposition that the court should have power to try civil cases against all Chinese, no matter of what rank.
In Article IV we have changed the words “no foreigner” into “no foreign interest” for the sake of greater clearness, but with this exception we have accepted the board’s text, with the addition of the words “last paragraph” at the end of clause (a), since certain other portions of section 2 of the Chefoo convention do not appear applicable to the matter in hand, as may be seen by reference to the whole of that section.
The first paragraph of Article V has been slightly amended, the provision as to the municipal health authorities cooperating in keeping the court jail in a sanitary condition having already been agreed upon locally.
As regards the final paragraph of this article, it appears to us invidious to say: “If in the future the court gets a proper jail,” as this clearly implies that after existing for more than thirty years the court jail is still in an unsatisfactory condition. We have therefore considered that this sentence should be omitted.
We accept the board’s amendment of Article VI, with the addition of a clause providing that prisoners be brought up for trial within twenty-four hours of their arrest, and with the insertion of the date of the imperial decrees abolishing the use of torture in hearing cases.
In Articles VII and XI slight verbal alterations have been made in order to render the meaning more clear. In Article IX we think it is advisable to omit the word “Chinese” before “commercial custom and equity,” because it seems probable that local usages have grown up at Shanghai which are not universally recognized in China, and that the insertion of the word “Chinese” might act, therefore, as a limitation not in correspondence with actual practice.
Articles VIII and X remain unchanged.
Your highness will thus observe that for the most part we have agreed to the emendations proposed by the high commissioner for southern trade. We now trust that those points upon which we have not been able to agree may receive the board’s serious consideration.[Page 396]
We avail ourselves of this opportunity, your highness, to renew to you the assurance of our highest consideration.
- A. v. Mumm.
- Ernest Satow.
- Y. Uchida.
- C. Baroli.
- M. de Carcer.
- W. W. Rockhill.
- D. Pokotilow.
- G. d’Almeida.
- A. Rosthorn.
- Edm. de Prelle.
- Ignacio Altamira.
- W. J. Oudenduk.
Mixed court rules.—Foreign draft, after consideration of the Chinese counter amendments.
I. (a) The mixed court at Shanghai shall keep separate dockets in Chinese of all police and civil cases, 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 dates of all orders, decrees, continuances, appeals, and proceedings until final judgment, and a sufficient minute of the final judgment.
(b) The mixed court shall have power to deal with all criminal cases punishable by cangue or beating with the bamboo or by imprisonment, and shall keep a separate docket thereof as above provided.
Note.—Beating with bamboo is to be commuted into a fine by the imperial decree of the 21st day of the 3d moon of the 31st year of Kuanghsü.
(c) The dockets shall be open at all times for inspection by parties materially interested.
II. All trials and proceedings in the mixed court at Shanghai shall be open to the public, unless the assessor and magistrate agree that for confidential reasons and for public morals the case should be private.
III. The post of magistrate of the mixed court shall carry with it all the rights, powers, and privileges of a prefect. He shall be eligible from among the prefects, subprefects, or independent departmental magistrates of the Province of Kiangsu, or from officials of the same rank from other provinces, if none can be found qualified for the position in the Province of Kiangsu.
In all cases the appointment and removal of the magistrate of the mixed court shall be made by the governor-general at Nanking.
Assistant magistrates of the mixed court shall be selected from among the above-mentioned classes of officials of the Province of Kiangsu, or of other provinces, and shall be appointed and removed likewise by the governor-general at Nanking.
The date of the magistrate’s taking over and handing over charge shall be reported to the board of civil office.
IV. (a) In all cases, except where both parties are Chinese and in which no foreign interest is involved, a foreign official shall sit as assessor. The powers of these foreign assessors who shall be appointed by the respective consular representatives, subject to the treaty rights of each nationality of foreigners, shall be exercised in accordance with the provisions of the last paragraph of section 2 of the Chefoo convention.
(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.
V. The mixed-court jail shall be kept under the best foreign sanitary conditions, with the cooperation of the health authorities of the municipality. An experienced and capable Chinese medical officer shall be engaged by the court itself to carry out this work, and the Shanghai taotai shall set aside funds for this purpose.
VI. No warrants and summons 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. In the case of respectable persons, and when the circumstances of the case are not really grave, a summons should only be issued, and warrants must not be used unnecessarily. If a party fails to appear when summoned more than once, he may then be arrested under a warrant.
If the defendant is in the employ of a foreigner, such warrants must be also countersigned by the consul of the nationality of the employer of the defendant.[Page 397]
Every person arrested shall be brought before the court within twenty-four hours of his arrest, and if the case is not disposed of he shall be remanded until the next sitting of the court, and so de die in diem until the case is finally decided.
In Chinese cases where the parties are summoned by the Chinese magistrate, they are to be released on bail if the hearing of the case is not at once impending, so as to avoid detention in custody.
Now that no torture is employed in hearing cases, the new regulations sanctioned by the imperial decree of the 21st day of the 3d moon of the 31st year of Kuanghsii shall be followed.
VII. In all cases civil or criminal which come before the court where a foreign assessor is sitting, and either party is represented by counsel, before an attorney or counsel is admitted to practice in the mixed court he must satisfy the court that he is admitted to practice in the consular court of his own nationality at Shanghai.
VIII. Should an attorney in any case be adjudged by the Chinese magistrate 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, or, with the consent of the consul of the nationality of the attorney concerned, for a time not to exceed six months.
IX. In all cases involving principles where no precedents exist in Chinese law, the court shall be governed by commercial custom and equity.
X. 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.
XI. All parts of the present rules and regulations for the mixed court of Shanghai not in conflict with these supplementary amendments are hereby continued in full force, and the Chinese and foreign officials shall faithfully carry out the same.
Senior Consul, Shanghai, to Baron Mumm.
Your Excellency: I have the honor to acknowledge the receipt of your letter of January 6, 1906, concerning the resolution of the consular body, erroneously represented as (definitive) in the minutes of the meeting of July 26 last, with regard to Chinese women sentenced by the international mixed court. The consular corps was not ignorant of the fact that this resolution, which had but a provisional and temporary bearing, was contrary to the letter of the regulations of 1869, but it was adopted to cover the initiative taken without our approval by the municipal council of the international concession and because it was of common knowledge that the mixed-court jail had no suitable cells for female prisoners.
Furthermore, in the 11 articles which were submitted to your deliberation some four years ago and which have remained without definite answer to this day, the consular corps had already touched upon the principle underlying this question.
By a letter dated December 11, 1905, his excellency the tao’tai informed the doyen of the consular corps at Shanghai that the mixed-court prison for Chinese women was completed. By a telegram dated December 13, 1905, you notified us that Chinese women were no longer to be sent to the municipal jail, and instructions to this effect were given to the assessors.
The resolution of the 26th of July of the consular corps was thus virtually repealed on the latter date.
It is clear from the correspondence exchanged between the consular corps and the tao’tai, and between the consular corps and the municipal council, that the attention of the Chinese authorities has been called to the point that it is for the immediate interest of foreigners and of Chinese residing in the international concession that prisoners, male or female, who are to appear or have appeared before the mixed court, should be lodged in prisons which are suitable from a sanitary and consequently from a humane point of view. The consular body, having this object in view, unless prevented by formal instructions to the contrary from the diplomatic corps, will take the necessary steps with the tao’tai in order that a certain control over the woman’s prison may be left to the [Page 398]foreign assessors at the mixed court and to the doctor of the international municipality.
It is to be noted that this is not the first time that the consular body, even by direction of the diplomatic corps, has been constrained to depart in a certain measure from the mixed court rules of 1869 in the interests of the good administration of this international concession.
I beg your excellencies to accept the renewed assurance of my high consideration and profound respect.
Mr. Rodgers to Mr. Rockhill.
Sir: I have the honor to inform you that Mr. Kleimenow, consul-general for Russia, has relinquished the senior consulship of the consular body at Shanghai in favor of Mr. Siffert, consul-general from Belgium, who stood next in seniority. The succession to the senior consulship after Mr. Siffert lies with Sir Pelham Warren, consul-general for Great Britain.
Since Mr. Siffert assumed the duties of senior consul, the consular body has had several meetings at which various matters, left undone by reason of the confusion attending the riots, etc., were taken up and disposed of. There has been a good deal of discussion of mixed-court affairs, but the majority has maintained that nothing should be done in this matter until the diplomatic body reached its conclusions upon the new rules of the court. The municipal council has been urging and advocating reforms for the maintenance of the conditions which were largely responsible for the trouble, but no new action upon such matters has been agreed to. If there should be any divergence from this policy in favor of the municipal council, it would take very little to cause a repetition of the conditions in the mixed court which obtained in the week subsequent to December 8.
I will greatly appreciate any information which you may be able to give me as to the consideration of these mixed-court questions by the diplomatic body.
Mr. Rockhill to Mr. Rodgers.
Sir: I have to acknowledge the receipt of your No. 200 of February 7, and in reply to state that the diplomatic body will submit to the Chinese Government, within the next few days, a series of amendments to the mixed-court rules, based on the provisional draft accepted by the governments interested, as stated to you in my No. 504 of January 10 last, and on the recent suggestions submitted by the Chinese Government. It is hoped that an early agreement will be concluded with the Chinese foreign office. I will forward you copies of the notes exchanged between the diplomatic body and the Wai-wu Pu as soon as they are received by me.
* * * * * * *
I am, sir, your obedient servant,