Inclosure 5 in No. 1.
Prince Ching to Mr. Carnegie.
(Translation.)
Peking, 32nd year, 5th month, 12th day (July 3, 1906).
Sir,
WITH reference to the joint note of the 5th March from the then doyen, Baron von Mumin, and other Ministers, transmitting a revised draft of the Supplementary Rules for the Mixed Court at Shanghae, I have the honour to inform you that the Board communicated a copy both of the joint note and its inclosure to the High Commissioner for Southern Ports for his consideration, and that on the 25th June we received his Excellency's reply.
His Excellency states that on all points where he could give way he had given favourable consideration to the draft, but in Articles 1, 4, 5, 6, and 9 he had either added to the wording or altered it somewhat in order to avoid future difficulties. These modifications his Excellency considered essential for the satisfactory maintenance of peaceful administration.
This Board have given their further consideration to his Excellency's modifications, and find them to be drawn up with a view to insuring the peaceful administration of the Settlement. These amendments are in our view entirely satisfactory, and we consider that the matter should be settled on these lines, and that the Rules should be first given a trial for two years. If in this period of time difficulties present themselves, alterations could still be made as occasion demands after due discussion. I therefore have the honour to inclose a revised draft, and to request you to be good enough to instruct His Majesty's Consul-General at Shanghae to comply with the provisions therein detailed.
Awaiting the honour of a reply, I avail, &c.
Inclosure 6 in No. 1.
Revised Draft of Supplementary Rules.
1.--(a.) NO alteration.
(b.) The Mixed Court shall have power to deal with all criminal cases in the Foreign Settlement of Shanghae punishable by cangue or beating with bamboo, or by imprisonment (sentences of imprisonment being subject to the limitations noted below), 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 month of the 31st year of Kuang Hsü.
i. The Court shall have power to try and sentence to terms of imprisonment all lawless characters or highway robbers for acts of disorder, together with all persons guilty of robbery or theft, provided that the crime is not one punishable by death.
ii. When the decision of the Court involves the punishment of imprisonment, provided that such penalty does not exceed sixty days, the Magistrate shall be empowered to pronounce such sentence on his own authority. Should the penalty involved exceed sixty days and not exceed three years' imprisonment, he shall report the case to the Shanghae Taotai, and await the sanction of the latter authority. Should the penalty involved not exceed ten years' imprisonment, he shall report the case to the Governor and Provincial Judge, and await the sanction of those authorities before the case can be settled, provided always that ten years shall be the maximum term of imprisonment.
iii. Cases of robbery involving the death penalty shall be tried and dealt with by the Shanghae District Magistrate. The Mixed Court Magistrate cannot deal with them.
iv. Besides dealing with cases of lawlessness, highway robbery, robbery with violence and theft, all cases of Chinese litigation involving a penalty of and below the degree of beating shall be tried and decided by the Mixed Court Magistrate; provided that all cases involving a penalty of banishment in the "tu" degree and upwards shall be tried by the Shanghae District Magistrate, and be referred by him to the higher judicial authorities. The Mixed Court Magistrate cannot deal with such cases.
7
These provisions shall apply until a Penal Reformatory has been instituted. When a Penal Reformatory has been established, offenders sentenced to imprisonment shall, in accordance with the term of such sentence, whether it be a period of days or years, be transferred to such Penal Reformatory, and be there employed in labour as provided by the Regulations of the Board of Punishments.
(c) No alteration.
2. No alteration.
3. The post of Magistrate of the Mixed Court shall carry with it all the rights, powers, and privileges of a Sub-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, and shall be made on the recommendation of the Shanghae Taotai, who shall address a request to the Governor-General to approve the nomination and to depute the official named.
Assistant Magistrates of the Mixed Court shall be selected from among the expectant Sub-Prefects, Assistant Sub-Prefects, Department 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.
Whereas the Commissioners for the Revision of Laws have submitted proposals to the Throne involving the introduction of trial with official Assessors (or by jury?) and the use of counsel, which recommendations have been referred to the provinces for consideration, the Mixed Court in the Settlement shall comply with all such provisions when they have been finally determined. It being now proposed to convert the post of the Mixed Court Magistrate into a substantive Sub-Prefectship, investigation shall be made, when this step has been determined upon, among the Sub-Prefects holding easy posts, with a view to finding one to fill the post at the Mixed Court, and the Throne will thereupon be memorialized. All the powers of such official shall still be exercised in conformity with these rules.
After the words, "shall sit as Assessor," add, the expression “cases in which no foreign interest is involved,” is explained below.
Otherwise no alteration down to "Chefoo Convention." There add:-
Where all the parties in a case are Chinese, and the charge which has to be tried affects the Regulations of the Settlement, a foreign official shall sit as Assessor; but the Magistrate, in deciding the case, shall do so in conformity with Chinese law and such Settlement Regulations as China has agreed to, basing his decision always upon a given Article of Chinese law, and adducing the penalty to be inflicted from the Statute or Ordinance applicable to the case.
Where both parties in a case, together with the witnesses, are all Chinese, and the question in issue only affects Chinese and does not affect the Settlement Regulations, such case shall be tried and decided by the Chinese official himself, in accordance with the existing Rule, and the Consular official shall not interfere therewith.
(b.) No alteration.
5. The lock-up of the Mixed Court under the original Rules was known as the "Fan Hsieh Ch'u" (Rice and Salt House). It is now intended to organize it as a gaol, and to divide it into various classes. In accordance also with the best foreign conditions, the Court will itself engage experienced and qualified medical practitioners, one Chinese and one foreign, to co-operate in giving effect to sanitary and hygienic measures. The necessary funds will be provided by the Shanghao Taotai.
6. As in original, with addition after the words "within twenty-four hours after his arrest," of the words, respecting this time-limit of twenty-four hours see the following note:
At the end of Article 6 add:-
NOTE--The limitation of twenty-four hours means that this is the longest permissible delay, and does not mean that this period must elapse (before bringing the party to Court). Whenever an arrest is effected, the person arrested must not be first taken to the police station, but must be taken direct to the Court to await trial. If it is too late, and the case cannot be then heard, he shall either be admitted to bail by the Court or be kept in confinement at the Court, or be handed over to the police to hold in custody, as the Court decide.
Page 99
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6
Inclosure 5 in No. 1.
•
Prince Ching to Mr. Carnegie.
(Translation.)
Peking, 32nd year, 5th month, 12th day Sir,
(July 3, 1906). WITH reference to the joint note of the 5th March from the then doyen, Baron von Mumin, and other Ministers, transmitting a revised draft of the Supplementary Rules for the Mixed Court at Shanghae, I have the honour to inform you that the Board communicated a copy both of the joint note and its inclosure to the High Commissioner for Southern Ports for his consideration, and that on the 25th June we received his Excellency's reply.
His Excellency states that on all points where he could give way he had given favourable consideration to the draft, but in Articles 1, 4, 5, 6, and 9 he had either added to the wording or altered it somewhat in order to avoid future difficulties. These modifications his Excellency considered essential for the satisfactory maintenance of peaceful administration.
This Board have given their further consideration to his Excellency's modifications, and find them to be drawn up with a view to insuring the peaceful administration of the Settlement. These amendments are in our view entirely satisfactory, and we consider that the matter should be settled on these lines, and that the Rules should be first given a trial for two years. If in this period of time difficulties present them- selves, alterations could still be made as occasion demands after due discussion. I therefore have the honour to inclose a revised draft, and to request you to be good enough to instruct His Majesty's Consul-General at Shanghae to comply with the provisions therein detailed.
Awaiting the honour of a reply, I avail, &c.
Inclosure 6 in No. 1.
Revised Draft of Supplementary Rules.
1.--(a.) NO alteration.
(b.) The Mixed Court shall have power to deal with all criminal cases in the Foreign Settlement of Shanghae punishable by cangue or beating with bamboo, or by imprisonment (sentences of imprisonment being subject to the limitations noted below), 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 month of the 31st year of Kuang Hsü,
i. The Court shall have power to try and sentence to terms of imprisonment all lawless characters or highway rebbers for acts of disurder, together with all persons guilty of robbery or theft, provided that the crime is not one punishable by death.
ii. When the decision of the Court involves the punishment of imprisonment, provided that such penalty does not exceed sixty days, the Magistrate shall be empowered to pronounce such sentence on his own authority. Should the penalty involved exceed sixty days and not exceed three years' imprisonment, he shall report the case to the Shanghae Taotai, and await the sanction of the latter authority. Should the penalty involved not exceed ten years' imprisonment, he shall report the case to the Governor and Provincial Judge, and await the sanction of those authorities before the case can be settled, provided always that ten years shall be the maximum term of imprisonment.
iii. Cases of robbery involving the death penalty shall be tried and dealt with by the Shanghae District Magistrate. The Mixed Court Magistrate cannot deal with them.
iv. Besides dealing with cases of lawlessness, highway robbery, robbery with violence and theft, all cases of Chinese litigation involving a penalty of and below the degree of beating shall be tried and decided by the Mixed Court Magistrate; provided that all cases involving a penalty of banishment in the "tu" degree and upwards shall be tried by the Shanghae District Magistrate, and be referred by him to the higher judicial authorities, The Mixed Court Magistrate cannot deal with such cases.
7
‹. These provisions shall apply until a Penal Reformatory has been instituted. When a Penal Reformatory has been established, offenders sentenced to imprisonment shall in accordance with the term of such sentence, whether it be a period of days or years, be transferred to such Penal Reformatory, and be there employed in labour as provided by the Regulations of the Board of Punishments.
(c) No alteration.
2. No alteration.
3. The post of Magistrate of the Mixed Court shall carry with it all the rights, powers, and privileges of a Sub-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, and shall be made on the recommendation of the Shanghae Taotai, who shall address a request to the Governor- General to approve the nomination and to depute the official named.
Assistant Magistrates of the Mixed Court shall be selected from among the expectant Sub-Prefects, Assistant Sub-Prefects, Department 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.
Whereas the Commissioners for the Revision of Laws have submitted proposals to the Throne involving the introduction of trial with official Assessors (or by jury ?) and the use of counsel, which recommendations have been referred to the provinces for consideration, the Mixed Court in the Settlement shall comply with all such provisions when they have been finally determined. It being now proposed to convert the post of the Mixed Court Magistrate into a substantive Sub-Prefedship, investigation shall be made, when this step" has been determined upon, among the Sub-Prefects holding easy posts, with a view to finding one to fill the post at the Mixed Court, and the Throne will thereupon be memorialized. All the powers of such official shall still be exercised in conformity with these rules.
After the words, "shall sit as Assessor," add, the expression “cases in which no foreign interest is involved,” is explained below.
Otherwise no alteration down to "Chefoo Convention." There add :-
Where all the parties in a case are Chinese, and the charge which has to be tried affects the Regulations of the Settlement, a foreign official shall sit as Assessor; but the Magistrate, in deciding the case, shall do so in conformity with Chinese law and such Settlement Regulations as China has agreed to, basing his decision always upon a given Article of Chinesc law, and adducing the penalty to be inflicted from the Statute or Ordinance applicable to the case.
Where both parties in a case, together with the witnesses, are all Chinese, and the question in issue only affects Chinese and does not affect the Settlement Regulations, such case shall be tried and decided by the Chinese official himself, in accordance with the existing Rule, and the Consular official shall not interfere therewith.
(b.) No alteration.
5. The lock-up of the Mixed Court under the original Rules was known as the "Fan Hsieh Ch'u" So" (Rice and Best House). It is now intended to organize it as a gaol, and to divide it into various classes. In accordance also with the best foreign conditions, the Court will itself engage experienced and qualified medical practitioners, one Chinese and one foreign, to co-operate in giving effect to sanitary and hygienic measures. The necessary funds will be provided by the Shanghao Taolai.
6. As in original, with addition after the words "within twenty-four hours after his arrest," of the words, respecting this time-limit of twenty-four hours see the following note :---
At the end of Article 6 add :-
NOTE--The limitation of twenty-four hours means that this is the longest permissible delay, and does not mean that this period must elapse (before bringing the party to Court). Whenever an arrest is effected, the person arrested must not be first taken to the police station, but must be taken direct to the Court to await trial. If it is too late, and the case cannot be then heard, he shall either be admitted to ball by the Court or be kept in confinement at the Court, or be handed over to the police to hold in custody, as the Court decide.
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