CO129-338 - Public Offices & Others - 1906 — Page 102

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territorial officials in being purely judicial, and it is essential that he should have a rank which will command respect to exercise these functions in a proper manner. with the object of assuring this result that we propose this change in the wording of the Article. In deference to the wishes of the Chinese Government, we have, however, for the present, given way with regard to our original proposition that the Court should have power to try civil cases against all Chinese, no matter of what rank.

In Article & we have changed the words "no foreigner" into "no foreign interest for the sake of greater clearness, but with this exception we have accepted the Board's text, with the addition of the words "last paragraph" at the end of clause (a), sinco certain other portions of section 2 of the Chefoo Convention do not appear applicable to the matter in hand, as may be seen by reference to the whole of that section.

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The first paragraph of Article 5 has been slightly amended, the provision as to the municipal health authorities co-operating in keeping the Court gaol in a sanitary condition having already been agreed upon locally.

As regards the final paragraph of this Article, it appears to us invidious to say, "If in the future the Court gets a proper gaol," as this clearly implies that after existing for more than thirty years the Court gaol is still in an unsatisfactory condition. We have therefore considered that this sentence should be omitted.

We accept the Board's amendment of Article 6, with the addition of a clause providing that prisoners be brought up for trial within twenty-four hours of their arrest, and with the insertion of the date of the Imperial Decree abolishing the use of torture in hearing cases.

In Articles 7 and 11 slight verbal alterations have been made in order to render the meaning more clear.

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In Article 9 we think it is advisable to omit the word "Chinese before "commercial custom and equity," because it seems probable that local

usages have grown up at Shanghae which are not universally recognized in China, and that the insertion of the word "Chinese" might act, therefore, as  limitation correspondence with actual practice.

Articles 8 and 10 remain unchanged.

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Your Highness will thus observe that for the most part we have agreed to the emendations proposed by the High Commissioner for Southern Trade. We now trust that those points upon which we have not been able to agree may receive the Board's serious consideration.

We avail, &c.

Inclosure 4 in No. 1.

SHANGHAE MIXED COURT RULES.

Foreign Draft, after consideration of the Chinese Counter-Amendments.

1.-(a.) THE Mixed Court at Shangbae shall keep separate dockets in Chinese of all police and civil cases, entering each case separately, numbering it consecutively, with the 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

(b.) The Mixed Court shall have power to deal with all criminal cases punishable by cangue or beating with bamboo or by imprisonment, and shall keep a separate docket thereof as above provided.

Note.-Beating 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 Hsil.

(c) The dockets shall be open at all time 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 Profect. He shall be eligible from among the Prefects,

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Sub-Prefects, or Independent Departmental Magistrates of the Province of Kiangsu, or from 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 above- mentioned classes of officials 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 Magistrates 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.

(b.) If the Magistrate and Assessor fail to agree after a 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 Shanghac 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 Yang-king-pang shall be enforced unless countersigned by the Senior Consul. In the case of respectable persons, and when the circumstances of the ense are not really grave, a summons should only be issued, and warrants must not he 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 be also 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.

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 practise in the Mixed Court he must satisfy the Court that he is admitted to practise in the Consular Court of his own nationality at Shanghae.

8. 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 may be suspended from practice in that Court 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 principle 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 of 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 same.

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