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ཨཽ་
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2. The first rule of the Code of 1869 states that the Magistrate will provide food and lodging for prisoners. The inference from No. 5 of the proposed amendments is that criminals sentenced to imprisonment will be housed in the Court gaol. There is no provision for the custody of male prisoners by the Municipal Council, and this omission cannot fail to furnish a strong point in the Chinese claim to intervention in the control of prisoners, which will follow.
3. There is no provision in the proposed amendments for police function in the serving of warrants and summonses, and the clear inference, apart from local arrange- ments made since 1898, is that the servants of the Court are the proper executants of warrants and servers of summonses. This important omission is analogous to the form these documents now take, wherein the Magistrate directs bis runners to arrest, and makes no allusion to the municipal police, who in reality perform the work.
4. There is elaborate provision for a Chinese docket, and no provision for a foreign docket, which will give colour to the claim frequently made by the Chinese that the Court is a Chinese Court, whereas its very name signifies the contrary. As a matter of fact, the police register is a foreign docket for Police cases, but a register or docket of the Mixed Civil cases for purpose of reference is urgently required.
5. The amendments perpetuate and add to the inextricable confusion of terms which continues to give rise to difficulty and discussion in the description of cases as--
(a.) Police.
(b.) Civil.
(e.) Criminal.
(d.) Chinese.
(e.) Punishable in such a way.
(f) Involving principles.
6. There is no reference to the Provincial Rules of 1902 (China No. 2, 1903) either as to their confirmation, supercession or revision; moreover while this unfortunate definition of the Court's jurisdiction stands, the French merchant remains in a position of special advantage vis-à-vis his British or foreign neighbour, and the Chinese Resident in this Settlement remains liable to arbitary arrest upon a stroke of the pen of the Assessor of the French Court.
The earnest desire of this community is that a thorough revision take place, and this branch has received assurances from the German and American Associations of their co-operation in any movement directed to this end. The question is primarily not one of jeopardized British interests, but of the interests of the whole of the foreign Settlement, fittingly given utterance to by Great Britain whose influence in Shanghae is still predominent.
A code of Rules is required:-
(a.) Instead of, and not in addition to, the obsolete and inadequate Rules of 1869. (b.) In supercession of the Provisional Rules of 1902.
(c) Embodying at least the arrangements made by the local Consular Body during
the past thirty years.
(d.) Securing to this Settlement rights at least equal to those enjoyed by the French adjoining.
(e.) Providing means for the impartial hearing of commercial suits and securing execution of judgments delivered therein,
(f.) Giving the Court unfettered authority in all criminal prosecutions except where the death penalty is necessitated.
I have, &c. (Signed)
Inclosure 2 in No. 1.
C. A. SCOTTOWE, Chairman.
SHANGHAE MIXED COURT RULES.
Draft of proposed Amendments.
1 (a.). The Mixed Court at Shanghae shall keep separate dockets in Chinese of all police and civil cases, entering each case separately, numbering it consecutively, with the
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date of filing, the names of the parties in full, their nationality, the thing claimed, with the Minutes and dates of all orders. Decrees, continuances, appeals, and proceedings until final judgment, and a sufficient Minute of the final judgment,
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(4) The Mixed Court shall have power to deal with all criminal cases in the foreign Settlement at Shanghae punishable by cangue, or beating with bamboo, or by imprisonment not exceeding five years, and shall keep a separate docket thereof as above provided. All cases involving a penalty of more than five years' imprisonment shall be dealt with by the higher judicial authorities, after preliminary inquiry by the Mixed Court.
NoteBeating with bamboo is to be commuted into a fine by the Imperial Decree of the 21st day of the 3rd moon of the 31st year of Kuang IIsü.
(c.) The dockets shall be open at all times for inspection by parties materially interested.
2. All trials and proceedings in the Mixed Court at Shanghae shall be open to the public, unless the Assessor and Magistrate agree that for confidential reasons and for public morals the case should be private.
3. The post of Magistrate of the Mixed Court shall carry with it all the rights, powers, and privileges of a Prefect. He shall be eligible from among the Prefects, Sub- Prefects, Assistant Sub-Prefects, or Independent Departmental Magistrates of the Province of Kiangsu, or from officials or expectant officials of the same rank from other provinces if none can be found qualified for the position in the Province of Kiangsu.
In all cases the appointment and removal of the Magistrate of the Mixed Court shall be made by the Governor-General at Nanking.
Assistant Magistrates of the Mixed Court shall be selected from among the substantive or expectant Sub-Prefects, Assistant Sub-Prefects, Departmental and District Magistrates of the Province of Kiangsu or of other provinces, and shall be appointed and removed likewise by the Governor-General at Nanking.
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 representatives, 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.
5. The Mixed Court gaol shall be kept under the best foreign sanitary conditions, [with] the co-operation of the health authorities of the municipality.
An 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 Yangkingpang shall be inforced 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 countersigned 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 Hsü shall be followed.
* November 6, 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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