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Court against Tsao Ah Ch'uan for refusing to let him redeem a land deed. The former Magistrate, Chang, had defendant arrested, and heard the case. Chiao wanted to redeem the deed, but the brothers Tsao absolutely refused to agree.
Each adhered to his own, and the case was sent to the city to be dealt with. In the intercalary 4th moon of this year the City Magistrate asked to have arrested one Ts'ao Mao Mao on the charge of conspiring to fabricate a false deed. The police brought him up in due course, and, it being shown that he was arrested at the instance of the City Magistrate, he was taken away and sent to the city, and this procedure was in accordance with regula- tion. Six years ago, when the case was sent to the city, the British Consul agreed to the procedure, and it is a contradiction for that objection to be raised now. As to the cases relating to land in the Settlement heard and decided in this Court, those mentioned, namely, Chien Chang Shih v. Chiao Shen Shih, Hsu Sung Lin v. Yao Kuei Hai, Asi Yu Fu v. Jen P'u Jen-these did, as a matter of fact, arise out of land-deed complications, and they were heard in this Court because the plaintiffs came to this Court to prosecute. It is improper to say that the City Magistrate ought not to receive such Petitions. The Mixed Court Regulations say only that the Mixed Court may hear suits affecting commercial matters, but there is no fixed regulation that the City Magistrate may not hear Settlement cases. The Settlement is in the Shanghae district jurisdiction, and the City Magistrate is the territorial authority with seal; he has to bear cases involving loss of human life and robbery cases, and he should be allowed to try also other cases, civil and criminal, in which foreigners are not concerned. Why should there be any distinction of outside or inside the Settlement, or any question of ultra vires?
"Ma Tzu Fang v. Wang Chen Shih. I cannot find this case on record; there is, however, one of the 5th moon of this year-Mao Tzu Fang v. Wang Ch'en Shih, mother of Ho Shang Mafoo, a charge of abduction of the woman Liu, and adultery with Liu Lung Fei and conspiracy to inflict bodily harm, and of the woman eloping, taking away her child. The circumstances were all clearly and distinctly set forth in the warrant, and the counterfoil of the warrant is on record. Besides, Wang Ch'en Shih and Liu Lung Fei are now in my custody; they were not sent to the city, nor were they released on security, because they are required to be produced for examination. I do not know how the British Consul came to be informed that they had been sent to the city. Both these cases are purely Chinese, and no foreigner is concerned in them, so that, by the Regulations, no Consul should interfere."
A further report states :--
"There is no such person as Chin Hsi Pao; perhaps it is a mistake for Chien Hsi Pao; he is also called Chien Hsi Kuei. A rescript was received on the 12th day of the 6th moon respecting the appeal case of the widow Ch'ien Wang Shih v. Chien Hu Shih, the latter being accused of bringing a false charge against the former's sou, Chien Hsi Kuei, of taking advantage of a period of mourning to steal a deed. The particulars of the case, and those of the disturbance made in Court by the woman Chien Wang Shib, and her refusal to submit to judgment, together with the witnesses and record, have been sent to the City Magistrate, and a reply has already been received from that official. When this case was brought up before Mr. Sun, Ch'ien Wang Shih, cunningly sheltering herself behind her sex, made a disturbance in Court and refused to subrait to the judgment of the Court, and it is true that it was necessary to intimidate her by an empty threat; but there was no use of corporal punishment, and it can hardly be said that there was any breach of the new rule. Besides, the case in question is Chinese, and does not concern foreigners, and belongs to the evening Court, where the Chinese authorities have sole discretion in giving judgment, and it does not call for consultation with Consular authorities. What the British Consul says is quite right-the Rules of 1869 should be applied without any infraction whatever. Now the second of those Rules states that, if all the parties to a case are Chinese, the Chinese Magistrate will hear the case and decide it without Consular intervention. The third Rule says: Foreigners are not to interfere in a case where foreign interests are not involved.' All this is very clear."
From the above it appears that the Magistrate has not infringed the Mixed Court Regulations.
I have, &c.
(Seal of Jui Taotai.)
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Inclosure 6 in No. 1.
Municipal Council, Shanghae, to Consul-General Sir P. Warren.
Council Room, Shanghae, November 2, 1906.
Sir.
I HAVE the honour to refer to the Council's letter to yourself of the 2nd August last on the subject of an incident which took place in the Mixed Court on the 30th July, and to inquire whether any steps have been taken to bring the irregular proceedings there recounted to the notice of the authorities concerned,
I have, &c. (Signed)
H. KESWICK, Chairman.
Inclosure 7 in No. 1.
Consul-General Sir P. Warren to Shanghae Taotai.
Sir,
Shanghae, November 13, 1906. I HAVE the honour to refer to your despatch of the 11th September, in which you state that the action of Mr. Sun, Assistant Mixed Court Magistrate, in the cases of Chien Hsi Pao (civil claim) and Ch'u Mei Lang . Ts'ao Mao Mac, as reported by him (Mr. Sun) was quite in accordance with Mixed Court Rules, and was in no way improper. You furnished me with copies of the reports of Mr. Sun and Mr. Kuan on these cases.
It is not necessary for me to repeat here the details given in my two former despatches of the manner in which the Assistant Magistrate took action in these cases, in contravention both of the new rule of punishment instituted by the Board of Punish- ments and of the Mixed Court Rules.
I would now refer particularly to one part of Mr. Sun's report. He says:- "The rule in the past has been for persons required by district authorities outside the Settlement to be arrested by runners and police acting conjointly upon warrants issued by this Court. They are kept with the police until next morning, when they are brought before the Court. Persons prosecuted in this Court, and those arrested at the instance of authorities outside the Settlement, are by regulation left to Court' and sent away for trial,"
Now, in the cases thus referred to by Mr. Sun there is a very wide distinction; but he has neglected to point out this distinction, which is between those cases which should he heard at the Mixed Court and those which fall under the jurisdiction of districts outside. Thus civil claims and land cases of which the matter is in the Settlement should be dealt with in the Settlement; those of which the matter is without the Settlement, and in which warrants are issued at the instance of external Magistrates, have first to be heard in the Mixed Court, and an understanding has to be arrived at with the Assessor, after which the parties can be sent away. This is the long-standing practice.
Further, the Magistrate, Mr. Kuan, in his report, states :--
"The Mixed Court Regulations say only that the Mixed Court may hear suits affecting commercial matters, but there is no fixed regulation that the City Magistrate may not hear Settlement cases."
There is, of course, a proper place for each suit to be dealt with, and it is unheard of that parties should bring suits wherever they please. Any such indiscriminate prosecution might result in one case being heard in two Courts, and how then could it be dealt with The first of the Mixed Court Regulations says: "Cases of Chinese against Chinese, or foreigners against Chinese, whether for debt or other business matters, may be dealt with by bim" (the Mixed Court Magistrate) by the processes of arrest, hearing, and judgment." That is, there being thus established a judicial authority in the Settlement, all cases arising therein are outside the jurisdiction of the City Magistrate. The special provision of the Regulations for dealing with grave offences punishable by death and banishment where, by Chinese law, an officer with zeal would
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