893.05/170: Telegram

The Minister in China ( MacMurray ) to the Secretary of State

876. Supplementing my 875, October 9, 8 p.m. Following is the text referred to:

It is proposed to establish in the International Settlement in place of the Provisional Court a Chinese court of justice composed of two divisions, namely, a Court of First Instance and a Court of Appeal.

[Page 704]
1.
The court shall be composed of an adequate number of judges (the number to be decided upon in negotiation) one third of whom shall be of foreign nationality. All judges both Chinese and foreign to be appointed and maintained by the Chinese Government.
2.
The court shall have jurisdiction over all cases both criminal and civil arising in the International Settlement in which a Chinese citizen or a foreign national subject to Chinese jurisdiction is a defendant.
3.
Each panel of the court shall be composed of two Chinese judges and one foreign judge and no judgment, summons, warrant, order, application or other judicial process or action of the court shall be binding and valid without the unanimous consent as evidenced by the signature thereon of all of the three judges composing the panel who shall have equal rights and functions in the operation of the court from the inception to the termination of each case, it being further understood that all proceedings, testimony, and legal argument as well as the records of the court will be officially translated into English to enable the foreign judge sitting in each panel to carry out his duties.
4.
The appeal division as well as the Court of First Instance referred to in the preamble shall be composed in an identic manner as described in paragraphs 1 and 3 above, each panel consisting of two of the Chinese judges and one of the foreign judges referred to therein. The appellate division shall be the final judicial organ having jurisdiction in any cause arising within the International Settlement in which Chinese or foreign nationals subject to Chinese jurisdiction are defendants.
5.
The judges of the court both Chinese and foreign shall be appointed for a definite period and shall not be dismissed from office unless and until definite charges of malfeasance in office shall have been publicly proved against them; and further the Chinese Government and the Governments of the nationals concerned will guarantee that no external pressure of any character whatsoever will be brought to bear upon the judges of the court either officially or unofficially. The Chinese Government will guarantee the judges a fixed minimum annual salary.
6.
The Chinese Government shall immediately upon the conclusion of the new agreement place at the order of the court in a bank or banks to be decided upon in negotiations a sum that will be sufficient to defray the expenses of the court including the salaries of the judges for one year; and an equal sum shall subsequently be placed in such bank or banks at the order of the court at the beginning of each fiscal year.
7.
Any surplus which may accrue from the ordinary income of the court and from the yearly deposit subscribed by the Chinese Government shall be placed in a sinking fund to be used for the extension of the court including necessary buildings and repairs, such fund not to be drawn upon without the authorization of the Ministry of Finance, it being definitely agreed that this sum or any part of it can be used only for the purposes stated above.
8.
The names of the foreign judges appointed by the Chinese Government shall be selected from a list presented to the Chinese Government by the Permanent Court of International Justice at The Hague.
9.
Provision should be made in the negotiations for the following points:
(a)
The jurisdiction referred to in paragraph 2 above should extend to vessels in the harbor and to extra-Settlement areas in which the municipal police of the Settlement function and foreigners reside.
(b)
The prisons used for offenders convicted in the court should remain under the chargé of the foreign municipal authorities; exception being made in the case of Chinese female prisoners who might be handed over to the extra-Settlement Chinese authorities.
(c)
The decisions of the court where they concern action to be taken in the foreign-controlled areas will be carried out by the foreign municipal police who will also furnish the judicial police for the court itself.
(d)
The land regulations and bylaws of the International Settlement should be specifically included amongst the laws and ordinances applicable in the courts.
(e)
Duly qualified foreign lawyers should be permitted to appear in cases in which there is a foreign interest including that of the Municipal Council.
(f)
It should further be provided that the respective jurisdictions of the courts of the French and International Settlements remain as defined in the agreement of June 28th, 1902.94
(g)
The present experienced foreign staff shall be retained to look after and be responsible for the finances of the court and its satisfactory and efficient operation, with particular reference to the keeping of the records of the setting of cases and applications for hearing and other matters of a routine character.

The following notes are submitted as additional suggestions for possible use in the negotiation of a new agreement with the Chinese authorities:

  • Note 1. It is understood that there are at present approximately twenty-five courts sitting each day in the Provisional Court and it may be necessary to discuss some means whereby the hearing of cases can be expedited and the number of daily courts decreased.
  • Note 2. The Ministers concerned may find it desirable to insist that foreign nationals subject to Chinese jurisdiction should be limited entirely to those foreign nationals whose governments have never exercised extraterritorial jurisdiction in China or have surrendered such jurisdiction by treaty.
  • Note 3. In order to expedite the hearing of cases of a minor character which it is estimated will constitute more than 75 percent of the volume of work of the Court of First Instance, it is suggested that it might be desirable to institute a summary division of the Court of First Instance which shall be made up of panels consisting of one foreign judge and one Chinese judge or of the foreign judge sitting [Page 706] alone, as desired by the Chinese authorities, such court to have jurisdiction in all cases of infractions of the municipal bylaws, police offenses, code, and over all minor criminal cases under the criminal code where the maximum penalty is a fine of $100, or detention for a maximum period of 60 days, this division also to have jurisdiction in civil cases where the amount involved does not exceed $500. Such summary division also to hear applications for summons, warrants, et cetera, other than those connected with the execution of judgments which should in each case be heard by the panel trying the case.
  • Note 4. It should be provided for that in all cases in which a deadlock occurs and continues to exist for 3 months after the date of the final hearing, such case should automatically be placed before another panel of the particular division concerned.
  • Note 5. It is suggested that no mention be made of the institution in the court of the procurator system, in the event that this point is not raised by the Chinese authorities. Should it, however, be insisted upon by such authorities, it is suggested that the negotiators should proceed along the following lines: In the event of the Chinese Government desiring to introduce the procurator system, due consideration will be given in the negotiation as to how this may be effected without conflicting with the machinery of municipal administration in the Settlement, whether by arranging that the office procurator will be composed of one of the panels of the court as prescribed in paragraph 3 or by some other system under which the office of procurator will be composed of Chinese and foreign officers sitting jointly or by arranging that the police authorities of the Settlement will form part of the procuratorial panel of the court in the manner indicated in article 233 of the criminal procedure regulations of 1921 (see paragraph 135 of the Commission on Extraterritoriality95).
  • Note 6. The negotiators might find it desirable to point out to the Chinese authorities, in the event a necessity therefor arises, that the present court buildings are totally inadequate for the purposes contemplated and that the negotiators would welcome the agreement of the Chinese authorities for the erection of new buildings for the new court.
  • Note 7. In the selection of the foreign judges for the court, whether this is made by nomination by the Permanent Court of International Justice at The Hague or by some other method, it is suggested that; means should be found to ensure that the nations with preponderate; vested interests in the Settlement should be adequately represented.
  • Note 8. The Ministers concerned might desire to suggest to the Chinese authorities that the jurisdiction of the court should be extended to all foreigners subject to Chinese jurisdiction residing in the municipality of Greater Shanghai.
  • Note 9. It might be suggested that male prisoners in the municipal prisons may be employed in prison factories and/or on public roads in order to relieve the congestion in the prisons, at least in the day time.
  • Note 10. It should be definitely insisted upon by the negotiators that all judgments, decisions and orders of the court shall be recognized by the Chinese authorities, valid everywhere in China and that they will be executed when necessary.
  • Note 11. It may be possible for the negotiators to suggest that any duly qualified lawyer Chinese or foreign shall be entitled to appear in all cases coming before the court in the event that the parties to the action desire his presence provided that foreign lawyers must be accompanied in each case by suitable interpreters and further that all such lawyers foreign and Chinese shall be subject to all proper discipline of the court.
  • Note 12. It is suggested that provision should be made for the holding of inquests by a panel of the summary division of the courts.

MacMurray
  1. Telegram in eleven sections.
  2. For text of “provisional rules defining the respective jurisdiction of the Mixed Courts of the International and French Settlements at Shanghae,” as drawn up on June 10, 1902, see British and Foreign State Papers, vol. xciv, pp. 793 ff. (footnote to text of original rules dated April 20, 1869).
  3. Department of State, Report of the Commission on Extraterritoriality in China, Peking September 16, 1926, etc. (Washington, Government Printing; Office, 1926), p. 63.