393.1141 W 58/5
The Minister in China (MacMurray) to the Secretary of State
[Received December 2.]
Sir: I have the honor to acknowledge the receipt of the Department’s instruction No. 869, of March 24, 192510 relative to the suit of Mr. T. C. White against the Wah Chang Mining and Smelting Company, Ltd., in the International Mixed Court at Shanghai. A copy of this instruction, with the exception of the last sentence, was transmitted to the American Consul at Shanghai, under date of May 11, 1925.
The Department’s views that the relation of an assessor functioning in the International Mixed Court at Shanghai towards his own national authorities is the same as in other parts of China, that is, that he attends court as the representative of the Consul-General and is amenable to the latter’s instructions, have been noted with great interest. The general impression in China seems to be that the International Mixed Court in Shanghai is a survival of the earlier procedure provided by the treaties for the settlement of “mixed [Page 1024] cases”, as, for instance, in the last sentence of Article XXIV of the Chinese-American Treaty of 1848 13 and in Article XXVIII of the Treaty of 1858,14 which stipulate that such controversies “shall be examined and decided conformably to justice and equity by the public officers of the two nations acting in conjunction”. It is true that the same treaties provide that criminal jurisdiction shall be vested in the courts of the offender’s nationality, but it was not until Article IV of the Chinese-American Treaty of 188015 came into effect that the present status of the “Assessor” as an official who is merely “permitted to attend the trial” was inaugurated. It may here be observed that the French Government has not yet acceded to this alteration of the status of the French judicial officer. The French position in this connection was explained by the French Minister in a letter transmitted with Diplomatic Circular No. 41, of February 16, 1925, a copy of which was sent to the Department on March 19, 1925, without covering despatch.16
Those persons who hold the view that the Mixed Court at Shanghai has always been conducted on the earlier rather than the later principle are not without certain arguments to support their contention. They point to the early formation of the Court (1869) and to the Chinese name it has always borne (which the Chinese Government now proposes to change) “hui shen kung t’ang” which may be translated “Court of Joint Adjudication”. They point, also, to the presence of the Assessor on the bench and the power he wields, in practice superior to that of the Chinese Magistrate, in the formulation of the judgment. They contrast these prerogatives and power with the strictly defined and limited powers of the foreign assessor in the trial of mixed cases under the procedure prescribed by the Treaty of 1880, which obtains elsewhere than at Shanghai.
I would respectfully point out, therefore, that while the powers of the foreign Assessors in the International Mixed Court at Shanghai are undoubtedly greater than the powers of Assessors elsewhere, those powers are actually exercised in a judicial capacity and must on that account be wielded with the strictest impartiality.
Further to illustrate the difference in practice between the functions of the American Assessor in other ports and at Shanghai I have the honor to recall that the Treaty of 1880 authorizes the Assessor to “present witnesses”. Since he appears on behalf of the American [Page 1025] plaintiff it follows that he concerns himself solely with securing the attendance of witnesses who support the plaintiff’s pleading. He also demands the production of evidence for a similar purpose. American lawyers are not permitted to practice in Chinese courts and the Assessor consequently appears as the plaintiff’s advocate. Were the American Assessor in the Mixed Court at Shanghai to concern himself solely with witnesses and evidence favorable to the American plaintiff he would at once afford solid ground for the complaint now made by Chinese and non-extraterritorial foreigners that the “interested Assessor” is not an impartial judge, and the result of his one-sided interest in the case would be highly damaging to American prestige. In the Shanghai Mixed Court, as contrasted with mixed courts elsewhere, litigants are represented by lawyers, and the sole ‘duty of the Chinese Magistrate and the Assessor is to render a just verdict on the pleadings and the evidence presented.
I would not venture to discuss at such length the special position of the American and other foreign Assessors in the International Mixed Court at Shanghai were it not for the fact that negotiations for the rendition of the Court to the Chinese authorities are now in progress. I have heard of no proposal, even by the Chinese, that the powers of foreign assessors in relation to those of the Chinese Magistrate shall be diminished in those cases jointly tried by them, nor am I of the opinion that such a diminution would be advisable. However, in view of the Department’s opinion already referred to that the American Assessor at Shanghai “attends Court as the representative of the Consul-General and is amenable to the latter’s instructions”, it is clearly advisable that the point should be brought to the Department’s attention. It is to be feared that if the Chinese public were to learn that the American Assessors are controlled in the rendering of their judgments by the American Consul-General, who does not attend the trials, nor hear the evidence, a great deal of indignation would be aroused. One of the aspirations toward which the Chinese have been spurred by foreign opinion has been the creation of an independent judiciary free from administrative interference and control.
I have [etc.]