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, August 15, 1906.
Sir: In continuation of my dispatch, No. 315, of May 25 last, with reference to the proposed regulations for the mixed court at Shanghai, I have the honor to inclose herewith a copy of Prince Ch’ing’s reply to the joint note of the foreign representatives of March 9, together with a copy of the regulations, with additions and changes proposed by his excellency the Nanking viceroy.
I also have the honor to inclose herewith a copy of the reply of the diplomatic representatives to the above note, sent under date of [Page 401] August 14, with a counter draft of regulations prepared by the British and German chargé d’affaires and myself and accepted by the representatives of the other powers.
A considerable time may elapse before an answer to our note of the 14th instant can be obtained, but I shall lose no opportunity to impress upon the foreign office the high importance of reaching an agreement concerning these regulations at the earliest possible moment.
I have the honor, etc.,
The Prince of Ch’ing to Mr. Rockhill.
On the eleventh of the second moon, XXXII Year of Kuanghsü,. I had the honor to receive from Baron de Mumm, German minister and dean of the diplomatic corps, a joint note saying: “As to the supplementary regulations for the mixed court at Shanghai, we have carefully considered them, and have the honor to propose in reply certain changes, the reasons for the changes being-given under each article (affected). We have agreed to most of the changes suggested by the Nan-yang viceroy, and we trust that those to which we can not consent will be taken into further consideration.”
My board in its turn copies the joint note received, together with the amended regulations and forwarded them with a dispatch to the Nan-yang viceroy for consideration.
On the fourth of the fifth moon (June 25, 1905) I received his reply as follows: “I have already consulted with those interested and made satisfactory arrangements to adopt all those changes to which it is possible to agree, but in respect to the Articles I, IV, V, VI, and IX, I have either added some clauses or changed some characters with the object of preventing future misunderstanding. As a matter of fact the changes are such as must give satisfactory assurance of the preservation of peace.”
My board has very carefully considered the additions and changes proposed by his excellency the viceroy, and is of the opinion that they are such as will promote the orderly government of the settlement, and as his proposals appear fair, it would seem that we might adopt them and at first put the regulations in force for a period of two years. If during that time their operation be attended with any difficulty, they may be taken up and amended as opportunity may offer.
As in duty bound, I send this dispatch to your excellency with a copy of the regulations, that you may examine the same and direct the American consular officers at Shanghai to comply therewith. I trust also that you will favor me with a reply.
supplementary regulations for the shanghai mixed court.
[Changes and additions, made by the Nanking viceroy, are indicated by italics; important omissions by the use of parentheses.]
Article 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.
[Page 402](b) The mixed court shall have power to deal with all criminal cases of the Shanghai settlement punishable by cangue, or beating with bamboo, or by imprisonment (restrictions as to the punishment of imprisonment are given in the appended note), and shall keep a separate docket thereof as above provided.
Beating with bamboo is to be commuted into a fine by the imperial decree of the 21st day of the third moon of the 31st year of Kuang-hsü.
- Note 1.—Rowdies and seditious persons who create disturbances, as well as thieves and robbers, provided they be not guilty of a capital offense, may be tried and sentenced to imprisonment by the mixed court.
- Note 2.—When the mixed court sentences a criminal to imprisonment, if the sentence be for sixty days or less, the magistrate may pass sentence on his own authority. If the sentence be for more than sixty days and for a term of three years or less, he must report the case to the Shanghai taot’ai and await his approval; and if for a term of ten years or less, he must report to the provincial judge and receive his approval before sentence may be passed. Ten years shall be the extreme limit of imprisonment; no sentence shall be passed for a longer term.
- Note 3.—Robbers and thieves liable to a capital sentence must be tried by the Shanghai district magistrate; the mixed court magistrate must not deal with them.
- Note 4.—Aside from cases of rowdyism, sedition, robbery, and stealing, all Chinese cases in which beating with the light or heavy bamboo or a lighter punishment is to be imposed may be tried by the mixed court magistrate, but cases in which transportation for a term or a heavier sentence is to be passed shall all be tried by the Shanghai district magistrate in accordance with case law and reported to his superiors. The mixed court magistrate must not deal with them.
- Note 5.—The foregoing refers to the punishment of criminals previous to the erection of a workhouse for criminals. As soon as a workhouse for criminals shall have been completed criminals sentenced to imprisonment shall be sent to the workhouse to serve their natural terms of days or years, in hard labor, in accordance with the regulations of the board of punishments.
(c) Dockets of the above-mentioned cases shall be open at all times for inspection by parties materially interested.
Art. 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.
Art. III. The post of magistrate of the mixed court shall carry with it alt the rights, powers, and privileges of a prefect. He shall be eligible from among the prefects, subprefects, assistant subprefects, or independent departmental magistrates of the Province of Kiangsu, or from officials of the same rank from other provinces, or unassigned, 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. (The taot’ai of Shanghai must report and request the governor-general and the governor to consult together and authorize the appointment.)
Assistant magistrates of the mixed court shall be selected from among the subprefects, assistant subprefects, departmental or district magistrates of the Province of Kiangsu, or of other provinces, or unassigned, 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 offices. (The commissioners engaged in revising the code have just memorialized, proposing regulations for the establishment of trial by jury, and rules for the admission of attorneys to practice before the courts, and an imperial edict has been issued directing the authorities of the several provinces to consider the matter, and it will be necessary for the mixed court, after the adoption of this recommendation, to comply in all cases with the said rules and regulations.)
(Note.—It is now proposed to change the rank of the presiding judge of the mixed court, making it that of a substantive subprefect; and it will be necessary upon the adoption of this regulation to select the incumbent of one of the less important subprefectures to fill the post, when a memorial will be submitted to the Throne. He shall nevertheless be equipped with the judicial powers provided for in these regulations.)
Art. IV. (a) In all cases except where both parties are Chinese and in which no foreign interest is involved (cases involving foreign interests are [Page 403] defined in a note appended to this article), 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.
- Note 1.—In cases where both parties are Chinese, but in which the matter to be decided is one affecting the regulations of the international settlement, a foreign assessor shall be allowed to sit, but the mixed court magistrate in deciding the case must do so in accordance with the fundamental laws and supplementary statutes of China and such regulations of the international settlement as shall have been recognized and approved by the Chinese Government; and in recording sentence he must also cite the article of the fundamental laws or supplementary statutes by which the penalty is determined, or the fundamental law or supplementary statute in analogy with whose provisions judgment is given.
- Note 2.—Cases in which both parties as well as the witnesses are all Chinese, and the matter to be decided is a purely Chinese affair, one which in no wise affects the regulations of the international settlement, must be dealt with by the Chinese magistrate himself, as provided in the old regulations. There is no necessity for consular interference.
(b) If the magistrate and assessor fail to agree after consideration upon the decision in any case it shall be referred to the Shanghai taot’ai and the consul or consul-general concerned, as the case may be.
Art. V. The place in the mixed court used for keeping criminals in custody according to the original regulations ivas called a “place of detention;” upon consultation it is noio decided that it shall be treated as a jail and divided into wards of different grades. In accordance with the best foreign methods the said court shall itself engage one Chinese and one foreign experienced and capable medical officer who shall cooperate to carry out sanitary measures, the expense of which shall be provided for annually by the Shanghai taot’ai.
Art. 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 only should 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 be in the employ of a foreigner, such warrants must be countersigned also by the consul of the nationality of the employer of the defendant.
Every person arrested shall be brought before the court within twenty-four hours of his arrest (restrictions as to the time within which he shall be sent for trial are provided in the note appended hereto), and, if his case is not disposed of at one sitting of the court, he shall be remanded until the next sitting and so se 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 imperial decree of the 21st day of the third moon of the 31st year of Kuang-hsu shall be followed.
Note.—Twenty-four hours is the extreme limit; there must be no longer delay than twenty-four hours; it is not required that the arrested person be held until twenty-four hours shall have elapsed. All persons to be arrested when seized must not first be sent to the police station, but taken at once to the court to await trial. If the time be too late so that they can not be tried at once, their release by the court on bail, or their detention in custody at the court, or their delivery to the police station for safe custody, shall be determined by the court.
Art. 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 a consular court at Shanghai.
Art. 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 [Page 404] 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.
Art. IX. In cases involving principles where no precedents exist in Chinese law, the court shall render an equitable decision in accordance with the commercial custom generally followed by the Chinese merchants of Shanghai.
Art. 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.
Art. XI. All parts of the present rules and regulations for the mixed court at Shanghai not in conflict with these suppelmentary amendments are hereby continued in full force, and the Chinese and foreign officials shall faithfully carry out the same.
The diplomatic body to the Prince of Ch’ing.
Your Imperial Highness: We have the honor to acknowledge the receipt of the communication which your imperial highness was pleased to send us on the 4th instant in reply to the note which a number of the diplomatic representatives sent to your highness on the 5th of March last, inclosing a revised draft of the amendments deemed necessary and indispensable to the regulations now in force in the mixed court of the international settlement of Shanghai.
Your imperial highness states that our note of March 5 and its inclosures had been forwarded by you to the superintendent of southern trade for his consideration, and that on June 25 last you received his reply, which was to the effect that he had adopted all the changes suggested by the diplomatic representatives to which it was possible to agree, but that in respect to Articles I, IV, V, VI, and IX he had added for greater clearness some clauses or changed some words, all in the interest of the preservation of peace.
Your imperial highness further states that the changes made by the superintendent of southern trade meet with your approval, and your highness suggests that after they shall have been examined by the diplomatic representatives they shall be put into operation experimentally for two years, when they may be amended again in the light of experience gained.
We have not failed to examine very carefully the additions and explanations made by the superintendent of southern trade to our draft of amendments, and have now the honor to offer the following observations on them:
Article I deals with the powers and records of the mixed court. While it seems particularly desirable to define these powers, it has been the earnest wish of the Governments concerned, including, it was thought, that of China, not to limit these powers unduly nor to hamper the court in their exercise. The amendment to this article proposed by the superintendent of southern trade has this effect, and is wholly unacceptable. It is neither in agreement with the general purpose of the revision of the regulations, which is to extend the powers of the court, nor with the practice of the court as established in the last thirty years or more without objection made by the Imperial Government. Being most desirous, however, of meeting the general views of the superintendent of southern trade on this subject the diplomatic representatives concerned have agreed to amend their draft of paragraph (b) of Article I so as to read: “(b) The mixed court shall have power to deal with all criminal cases punishable by cangue, or beating with bamboo, or by imprisonment not exceeding five years, and shall keep a separate docket thereof as above provided. All cases involving a penalty of more than five years’ imprisonment shall be dealt with by the higher judicial authorities, after preliminary inquiry by the mixed court. The additions I–V to Article I, in view of the wording of the said article which is now suggested, are entirely unnecessary. Their retention, moreover, could only be regarded as prejudicial to the attainment of the desired end.
As regards Article III, we have no objection to the amendment introduced by the superintendent of southern trade in the first paragraph, but can not agree to that which he makes in the second paragraph, as the practical effect would be to take the selection and appointment of the magistrate of the mixed court out of the hands of the governor-general at Nanking instead of placing it solely there. The amendment to the third paragraph of this article is acceptable.
As to the remarks of the superintendent of southern trade concerning the revision of the laws, the establishment of trial by jury, etc., they have been [Page 405] read with interest, but they can not find proper place in the present regulations.
Article IV, as submitted to your imperial highness by the diplomatic representatives in their draft of March 5 last, still appears to us much clearer than with the addition of the explanatory notes proposed by the superintendent of southern trade. Your imperial highness will also observe, by referring to the note of the diplomatic representatives of March 5, that the text of this article as submitted by your highness’s board in its earlier draft was then accepted by us with a slight verbal change only. It is impossible to accept the newly proposed change.
The same remark applies to the text of Article V. The first paragraph of this article in the text submitted by your imperial highness’s board was accepted with only a very slight amendment, and a provision was introduced for the cooperation of the municipal health authorities—an absolutely indispensable one—in keeping the court jail in sanitary condition, because it had been agreed to locally, and there could be no objection to it whatsoever. We must, for these reasons, decline to agree to any further amendment of this article.
Concerning the amendment to Article VI submitted by the superintendent of southern trade, the text of the draft sent to your imperial highness on March 5 is too clear to require any such explanation, and the suggestion made by the superintendent seems neither practicable nor for the best interests of the public. It can not be agreed to. We must adhere to the draft of the diplomatic representatives.
In Article VII the superintendent wishes to omit the words “of his nationality.” The effect of such omission would be that a foreign lawyer, unknown to his own people in Shanghai or not in good standing with them, could be admitted to practice in the mixed court, a most undesirable state of affairs and one highly prejudicial to the dignity of the mixed court. The omission can not be agreed to.
In Article IX in the draft of March 5 the word “Chinese” was omitted before “commercial custom and equity” because it seems probable that local usages had 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. Here also we must adhere to the text of the draft submitted to your imperial highness last March.
Your imperial highness will have observed, in comparing the draft regulations submitted on March 5 last with those communicated to the diplomatic representatives by your imperial highness at a previous date, that it has been our constant desire to meet the wishes of the Chinese Government wherever they appeared to be in the interest of the better administration of justice in the international settlement and the strengthening of the friendly relations between the foreign and the native elements of its population. Of the amendments now submitted by the superintendent of southern trade we are able to accept some while we must reject others, either as unfortunate or unnecessary or as changes in a text already accepted. Most, if not all, of these amendments, in our opinion, ought not to have been offered. The question before the superintendent of southern trade was whether or not he could agree to the amendments suggested by the diplomatic representatives. He ought either to have accepted these amendments or to have adhered to his original draft. If the present method be further pursued, the discussion may be continued indefinitely by the injection of new matter in each succeeding draft.
Should the present revised draft, which we now have the honor to inclose, unfortunately not meet with the approval of your imperial highness’s Government, nothing remains for us but to instruct our consular officers at Shanghai to adhere strictly to the regulations of 1869 and to the practice of the mixed court as established by mutual local consent during the last thirty years or more.
We avail, etc.,
Shanghai mixed court rules—Counter draft of diplomatic representatives.
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, [Page 406] 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 in the foreign settlement at Shanghai punishable by cangue or beating with bamboo or by imprisonment not exceeding five years, and shall keep a separate docket thereof, as above provided. All cases involving a penalty of more than five years’ imprisonment shall be dealt with by the higher judicial authorities, after preliminary inquiry by the mixed court.
Note.—Beating with bamboo is to be commuted into a fine by the imperial decree of the 21st day of the third moon of the thirty-first year of Kuanghsü.
(c) The dockets shall be kept 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, assistant subprefects, or independent departmental magistrates of the Province of Kiangsu or from officials or expectant 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 substantive or expectant subprefects, assistant subprefects, department and district magistrates 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 interests are 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 II 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 taot’ai 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 taot’ai 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 also be countersigned by the consul of the nationality of the employer of the defendant.
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 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 third moon of the thirty-first 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.
[Page 407]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 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 at 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.