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following effect: "In all cases the warrants, summons, or "order of the Court shall be executed or served by the runners with the assistance of the Municipal Police."
This is a matter of great importance and the principle has already been recognized by the Chinese authorities, when in June 1902 they approved the "Provisional rules defining the Respective Jurisdiction of the Mixed Courts of the International and French Settlements at Shanghae," vide Rule 3 (c).
The Assessors consider that the proposed rules would be improved by the adoption of the amendments and addition above suggested, and they further suggest that in view of the fact that the successful working of the Court under these or any other rules depends largely upon the adequacy of the funds at the disposal of the Magistrate, a hope may be expressed by the Diplomatic Body to the Chinese Government that the latter will ensure a sufficient supply of funds to meet the needs of the Court.
It may also be observed, though not with a view to modification, for this would probably be held radical," that the provision under Rule 6 for remands would be quite unworkable if literally adhered to. It is impossible to remand cases de die in diem, because the same Magistrate seldom and the same Assessor never sits two days running.
Probably no Magistrate would ever wish to interpret the Rule literally, and the next sitting of the Court" will have to be interpreted to mean "the next sitting of same Magistrate and Assessor."
Inclosure 4 in No. 1.
Chairman of Municipul Council to Consul-General Sir P. Warren,
My dear Sir Pelham,
Shanghae, December 26, 1906. I HAVE discussed the draft of the proposed amendments to the Shanghae Mixed Court Rules with other members of the Council, and find that the general feeling is one of disappointment and even alarm. Clause B of section 1 limits the punishment which it is in the power of the Mixed Court to give to five years, which is inadequate for dealing with the large amount of serious crime in the settlement. It will, of course, be said that the Chinese Courts will deal with such offenders as deserve more than five years, but we are, from past experience, sceptical with regard to the procedure of the Chinese Courts and the carrying out of their sentences.
As a note: What differentiates an offender within the Settlement from another outside, to the extent that the outsider is effectually admonished with the bamboo, whereas the inside clogs our gaol with a not unpleasant and short term of residence ?
Sections 2 and 3 are satisfactory, especially the provision that the Mixed Court Magistrate shall be of higher rank.
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Clause (b) of section 4 is the really good one in the whole draft.
Section 5 alludes to the "Mixed Court gaol." We do not admit its existence as a gaol." There is a house of detention for defendants in civil cases and a ward for female prisoners.
The ratepayers will not on any account suffer a "gaol" under Chinese control within the limits of the Settlement.
Section 6: It is regrettable, and will give opportunity for delaying and eluding justice that a party must be summoned more than once before a warrant can be issued for his arrest.
The allusion to the recent abolition of torture in hearing cases emphasizes our suspicion as to the motives which led in the case of the Shanghae Mixed Court only to the abolition of the bamboo in punishing proved offenders.
Sections 7, 8, 9, and 10 do not call for particular comment.
I now come to the point omitted, and the omission of which we all regard with serious alarm.
1. There is no provision whatever that sentenced prisoners shall serve their tim in the Municipal gaol and under Municipal control; on the other hand, a Mixed Court gaol is mentioned. With Chinese of the Mandarin upbringing, whose slimness in the interpretation of words and turning of phrases is notorious, this is a point which
5
calls for the utmost care and precaution. Is there reason why it should not be definitely stated that sentenced prisoners shall serve their time in the Municipal
gaol ?
2. Again, there is no provision whatever with regard to the serving of summonses and execution of warrants. It would be (to use a strong phrase, but the mildest for the occasion), intolerable to us that the Chinese Magistrate's runners should officiate within the boundaries of the Settlement, and it is absolutely essential that the orders of the Court (which, it must be remembered, is a Mixed Court) shall be carried out by our Municipal police. To those who are lost in the comfortable contemplation of Oriental philosophy this may not be apparent, but we are traders existing for purposes of the trade which has been built up here in a Concession or Settlement (call it what you will), where the Chinese traders have met us on equal terms, and profited by the immunity from mis-government by their own people to such an extent that not only have they settled permanently in large and wealthy numbers, but even members of the Mandarin class, busy to retain their gains, have appreciated the law, good order, and security which Shanghae under municipal rule offers and are found to be large property-owners within the Settlement.
To write such things to you, Sir Pelham, is superfluous, but the framers of the draft rules must surely be blind to the facts of our existence here. Once let the Chinese Mandarin class establish a footing, however small, within the Settlement, and the whole prosperity of Shanghae, as we have made it, totters for its fall. When I say "have made it, I mean we British, and with the incursion of Mandarin authority into Shanghae, what remains to us of British prestige in the Far East will dwindle, not, I believe, owing to recognition of China's so-called sovereign rights, but owing to the machinations and petty jealousies of our continental neighbours and the superlative Chinese finesse in playing us off.
"we
There are many minor points; but the short, clear, and definite statement of what the ratepayers of this Settlement consider, after due deliberation and legal advice, the essentials for the governance of the Mixed Court was communicated through you to Peking in the early part of the year, and for your easy reference I inclose a further copy.
I wish very much, Sir Pelham, that the Council, as such, had the opportunity of again addressing His Britannic Majesty's Minister through you on the subject, but now I can only address you personally as you have so kindly asked me for an unofficial opinion, yet at the same time I believe that the above remarks embody what would be the official opinion of the majority of the Council (if not their unanimous opinion) were there occasion once more to record it.
Sir,
I am, &c.
(Signed)
HENRY KESWICK,
Inclosure 5 in No. 1.
Sir H. de Sausmarez to Sir J. Jordan.
Supreme Court, Shanghae, January 14, 1907.
I REGRET that owing to my recent illness I was unable to consult with Sir Pelham Warren before his despatch of the 29th ultimo was written. I have, however, now had an opportunity of reading the papers, and I have the honour to add one or two observations of my own.
Mr. Bourne's experience of the Chinese generally, and of the Mixed Court in particular, entitles his opinion to the greatest weight, and generally I agree with all he has said. There are, however, two points on which I have something to add.
I observe that the one point particularly referred to me has not been touched by Mr. Bourne, namely, the effect of the present Regulations on the control of male prisoners by the Council. Regulation 5 as drafted seems to me especially designed to exclude any but sanitary control on the part of the foreign Powers or the Municipal Council, The use of the Chinese term in reference to this gaol, to which Sir P. Warren has drawn attention, implies, I am informed, something much more than a house of detention. And the suggestion of the Wai-wu Pu, that the sanitary conditions shall be assured "by engaging" the co-operation of the health officers of the municipality, clearly indicated that even this sanitary control depends on the initiative of the Chinese authorities. The only control that the Municipal Council
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