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of these considerations which the Committee desire to make, and that is that the extent of punishment exercisable by the Mixed Court, which by the draft amendments is fixed at five years, should be made ten years.
The jurisdiction of the Mixed Court has hitherto been vague, and it is no doubt desirable it should be defined; but it has, in point of fact, imposed sentences of imprisonment up to ten, and in one case at least up to twenty, years. No exception in It is therefore a any of these cases has been taken to the validity of the sentences. serious curtailment, which, it is submitted, on the experience of the past working of the Court is quite uncalled for, and in present circumstances is peculiarly to be deprecated. This is a suggestion which the Committee would respectfully but earnestly press on the consideration of Sir Edward Grey. Power to give sentences up to ten years with hard labour would practically make it unnecessary to send any cases out of the Settlement for trial except cases involving the death penalty; and it would also insure the speedy and certain trial of nearly all offenders, which is a better deterrent of crime than a possibly longer sentence by the city Magistrate, coupled with a fair chance of escaping altogether. No question of principle is involved in raising the limit from five to ten years, and only sentimental objections can be urged against it by the Chinese-a plea which, it is submitted, is surely entitled to little weight in view of the notorious fact that for more than forty years, since the Mixed Court was first instituted, they have not taken one single step towards the reform of the native city Courts.
To summarize the position briefly. The points on which the Association lay stress equally with the Shanghae community are the following :—
1. The insertion of the word “practice" in clause 11.
2. The raising of the limit of powers of imprisonment from five to ten years.
3. The insertion of the words "in civil cases" after the word "except" in line 1 of clause 4 (a).
4. The omission of the words "for confidential reasons" in clause 2.
5. The omission of the note to clause ; or, in the alternative, the omission of the words in (b) “punishable by cangue or beating with bamboo," and the substitution of the following: "for which the punishment according to Chinese law does not exceed ten years' imprisonment." In the latter case the note would not be required, and the use of the words," according to Chinese law," might make the change more palatable to the Chinese authorities.
A Memorandum by Mr. R. S. Gundry, on certain points not touched upon in this letter, is inclosed herewith.
I have, &c.
(Telegraphic.)
(Signed)
Inclosure 1 in No. 1,
J. H. SCOTT, Chairman.
China Association, Shanghae, to China Association, London.
March 9, 1907. Learn through Sir Pelham Warren, Foreign Office consent await receipt this Branch letter 8th February. Committee appreciate value word "practice"; willing acquiesce provided reserve right press later on compreheusive definite code.
Inclosure 2 in No. 1.
Memorandum respecting proposed New Rules for the Mixed Court.
THE Foreign Office have courteously awaited a letter from the Shanghae Branch of the Association, explaining more fully the objections to the proposed new Rules for the Mixed Court conveyed in their telegram of the 7th February.
That letter has now been received, as well as a subsequent telegram dated the 9th instant, acquiescing in the alterations recommended by the General Committee, pro- vided that a right be reserved to press for a more comprehensive and definite revision later on.
The points raised in paragraphs 2 and 3 of the Shanghae note were foreseen and
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con-
dealt with in the Memorandum by the Sub-Committee, which was considered at the Com- It will be sufficient to reaffirm the absolute mittee Meeting of the 6th instant. necessity of including the word "practice" in Rule 11. The letter makes it abundantly clear that any ambiguity, any expression less definite, any attempt to convey the meaning in terms less precise, would be regarded with extreme disappointment.
The letter advances, besides, certain general reflections which demand sideration.
Fear is expressed by the Shanghae Committee lest the acceptance by foreign Powers of these Rules should "indefinitely postpone the establishment of an adequate Tribunal, for the hearing of commercial suits, of the competence and impartiality which It may be answered, of course, that the commerce of Shanghae involves and demands.” the object in question is precisely contemplated by Article XII of the Treaty of 1902; that when China has "reformed her judicial system and brought it into accord with that of Western nations," the establishment of such a Tribunal will naturally follow. But the Committee--bearing in mind that five years have elapsed since that Treaty was signed, and that similar promises of reform were held out to Sir Rutherford Alcock in 1868, and to Sir Thomas Wade in 1876-are naturally auxious to make the best of existing machinery pending the uncertain evolution of a larger scheme.
The grave inconveniences that have arisen, and that are likely to arise to a con- tinually increasing extent in China, from the want of a code of commercial law and Courts competent to administer it were emphasized by the Association in a communica- tion to the Foreign Office dated the 17th March, 1899; and the General Committee will enter fully into the anxiety of the Shanghae Branch that no opportunity of intro- ducing even local and partial remedies should be lost.
For the Mixed Court was intended to deal with civil as well as with criminal cases. The Rules under which it was brought into existence were admittedly meagre in the extreme. The need for a judicial authority of some sort to deal with the Chinese who had flocked into the Settlement was urgent. To admit the direct exercise of jurisdiction by the city Magistrate was to admit all the evils of Chinese administration, which continue anamended to the present. The Mixed Court was devised as admitting Chinese jurisdic tion under measurable control, the anticipation being that a code of precedent and practice would be gradually built up. That was done. Agreements were made from time to time with the local authorities to meet new developments, and repeated appeals have been made to Peking that new Rules, based on established practice and agreements, should be framed.
Disappointment is felt evidently that the draft under consideration fails to satisfy these conditions. It threatened, even in its original form, to annul, by omission, much that had been attained. That danger would be lessened materially by the contem- plated amendments. But the uncertainty of the future in regard to judicial reform dictates the reasonable expression of a hope that the door will be left open for further revision as occasion may arise.
Similar considerations were brought by the American Association of China to the notice of the United States' Minister, Mr. Rockhill, a few months ago. Pointing out that the administration of the Mixed Court was of vital importance to all who reside within the limits of the international Settlements, the President (writing in the name of the Association) went on to remark:--
"The difficulty is especially with Chinese cases; but the impression made in the minds of some is that the law and procedure concerning such cases within the Settle- ment limits cannot be the same as with similar cases outside these limits. The Chinese themselves should be willing to acknowledge this if they intend to bring the law and judicial administration of China in harmony with those of Western natious."
To which Mr. Rockhill replied (on the 21st December) that a series of amend. ments to the 1869 Rules had been under discussion for several years past, adding :
"While these amendments, if agreed to, will certainly greatly facilitate the administration of justice in the Mixed Court, they do not purport to provide definitely and completely for its government. They as should be all rules and regulations for such a rapidly changing and developing place as Shanghae-are tentative, conceived only to further two ends to facilitate the administration of justice, and harmonize the various interests involved.
Here appears to be an admission of the probable need for further revision, which the Shanghae Committee desire to see placed on record.
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