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The date of the Magistrate's taking over and handing over charge shall be reported to the Board of Civil Office.
4.-(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 representa- tives, 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.
(6.) 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.
3. The Mixed Court gaol shall be kept under the best foreign sanitary conditions? with the co-operation of the health authorities of the municipality. Au experienced and capable Chinese medical officer shall be engaged by the Court itself to carry out this work, and the Shanghae Taotai shall set aside funds for this purpose.
6. No warrants and summons of the Mixed Court against Chinese in the foreign Settlement north of the Yangking-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 countersigued 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 3rd moon of the 31st year of Kuang Hsu shall be followed.
7. 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 Shanghae.
S. 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 shall be 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.
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 at Shanghae, not in conflict with these supplementary amendments are hereby continued in full force, and the Chinese and foreign officials shall faithfully carry out the sume.
(Confidential.)
Inclosure 2 in No. 1.
Memorandum by Mr. Bourne.
I HAVE read the proposed amendments of the Rules of the Mixed Court inclosed in Sir J. Jordan's despatch No. 103 of the 22nd November, 1906.
The provision-4 (6)--that the Assessor must agree with the Magistrate before a prisoner can be released or execution can issue on a judgment--and this is, I conceive,
* November 5, 1906.--Wai-wu Pu proposed to omit.
+ Wai-wu Pu proposed that this should read "by engaging." The force of this is not quite clear, and will require explanation. They also proposed to add the word "also" after "shall be."
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the effect of the Rule-is a concession so valuable to British interests at Shanghae that the other provisions-excepting the question of charge of male prisoners dealt with below are comparatively unimportant. The principle has been claimed in practice for some years, but never formally adınitted by the Chinese higher authorities. It gives us nearly all we really need, or rather nearly all that is to be got under the existing conditions-namely, that a case can be hung up until justice be done. However, I suggest below some small changes that would, in my opinion, be improvements.
1 (b). As the Court is to apply the general law of the Chinese Empire, it seems unnecessary to quote particular edicts which may be repealed or amended at any time. In view of the abolition of bambooing here while it is going on nearly all over the Empire, it may be necessary some day to point out to the Chinese Government that Rules applicable only to the foreign Settlements are not laws at all, and must have the sanction of the Treaty Powers.
4 (a). It is desirable, in the case of Chinese sent for trial to the Higher Chinese Courts for crimes committed in the Settlement, that the Consuls should have the right to depute an officer to watch the case as provided by the last clause of section 2 of the Chefoo Convention. Foreign interests might be held to be involved, because we are concerned to see that crimes committed in the Settlement are duly punished. The result would be, I believe, that the feeling of reluctance in commiting prisoners for trial would gradually disappear, as the foreign community saw that the Chinese Criminal Courts were doing their duty.
In regard to the attendance of an Assessor, I may add that I recently told the Taotai, in reply to his question whether he could send a deputy to watch a case in the Supreme Court, that he could come or send whenever he thought Chinese interests were involved; that if he came himself he would be invited to sit on the Bench, and that a suitable seat in Court would be reserved for his deputy. I afterwards informed Sir H. de Sausmarez of this, and he quite agreed.
4 (b.) I understand these words to imply the following: "The accused in a criminal and the defendant in a civil case being kept in custody until the appeal is heard, or, if bail be allowed, until such security is given for his appearance on appeal or for satisfaction of judgment as the Magistrate and Assessor, or, on their disagree- ment, the Taotai and Consul, may agree to be necessary.
The object is to prevent a Chinese prisoner or defendant from using an appeal as a means of escape or of delaying payment. Perhaps it might be thought enough if the Assessors were instructed so to interpret the Rule.
5. I think it is necessary to good order in the present state of Chinese administration that the Treaty Powers by their Agents, the Consuls, or by their grantees of certain powers by the Land Regulations, the Municipal Council, should be in charge directly or by sufficient right of inspection of all male prisoners within the Settlement; although if the Chinese Government built a prison outside the Settlement, open at any time to the inspection of an officer deputed by the Consuls, long-term prisoners might be moved there by the joint order of the Magistrate and the Assessor. We are now subject to be swamped with criminals as Hong Kong once was with lepers and lunatics. It seems anomalous that an exterritorial trading city like Shanghae should be feeding hundreds of long-term convicts from all over China because they chance to have been once caught in crime here, as if we were an independent ierritorial State. All we really want is that crime committed here shall be surely and adequately punished, then the sooner the criminal leaves us the better. If some such means as the above could be found, it would be a great relief to the Settlement. In Canton the Viceroy used to undertake that the Magistrates of their native districts should take security that deportees from Hong Kong should not return. Meanwhile, if there is to be any detention of male prisoners at the Mixed Courts, some officer deputed by the Consuls ought to have authority to inspect and report; without such inspection a foreign-fitted prison will become a disease trap, and a much more deadly place than one run in the native manner-corruptio optimi pessima. Besides the principle would be broken that the Chinese Government has no direct executive power in the Settlement, but can only act through the Agents of the Treaty Powers, or their grantees, the Municipal Council.
6. would omit "more than once" in the last line but one of the first paragraph, and add "without giving due explanation to the Court" after the word fails.' The Court should have the power to issue a warrant at once if a criminal summons is disobeyed.
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