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send the case to the Judge for reference to the Board and the Throne--namely, that it will still be for the District Magistrate to take action-leaves it quite clear that matters not specially mentioned in that provision do not concern the District Magistrate.
I have therefore the honour to request that you will be good enough to further consider this matter, and, in accordance with the request contained in my former despatches, instruct the Mixed Court Magistrate that the Regulations are to be observed, and are not subject to any modifications which he may be pleased to make.
I have, &c.
(Signed) PELHAM WARREN.
Inclosure 8 in No. 1.
Consul-General Sir P. Warren to Sir J. Jordan.
(No. 169.) Sir,
I HAVE the honour to inclose herewith copy of a document laid before the
Shanghae, November 19, 1906. Consular Body at their meeting on the 13th November, being the proposed draft, approved by myself and the Acting Consuls-General for the United States and Germany, of a despatch to the Shanghae Taotai on the subject of prisoners brought up in the Mixed Court and required, by reason of the gravity of their offences, in accordance with section 4 of the Rules of 1869, to be sent to the District Magistrate for trial and punishment.
Many of the prisoners who fall to be dealt with in this manner are charged with robbery with violence and similar crimes, and, if convicted, ought properly by Chinese law to be punished with great severity, some of them even with execution. It has always been felt, however, that there was no guarantee that the district authorities, to whom such cases ought to be transferred, would deal properly with them. Their severe punishment was a matter seriously affecting the peace and good order of the Settlement, yet there was a strong suspicion that, once the proceedings against them were relieved from foreign supervision, they became subject to improper influences or to gross neglect by the Magistrate, both in favour of the prisoners. This suspicion was confirmed by the cases of Su Ah Ju and of a gang of robbers of whom, after they had been sent to the city, one was released and two sentenced to one year's imprisonment.
For some years the difficulty was overcome in a large proportion of such cases by sentencing the criminals concerned to long periods of imprisonment, proportionate to their offences, in the municipal gaol. Since the definition at the beginning of this year of a limit to the Court's authority of five years' imprisonment, the question has again become prominent. Crimes for which the punishment by Chinese law is more severe than that of five years' imprisonment are of not infrequent occurrence-in particular, armed burglary by organized gangs has become increasingly common lately; and the public interest demands that such offenders should receive condign punishment, while the Mixed Court Regulations require that they should be dealt with by the District Magistrate.
In view of the unsatisfactory results in the past of transfer of such cases to the city for trial, it seems very necessary that, if possible, some guarantee should be obtained for their being properly dealt with in the future; and the plan now proposed, as embodied in the draft despatch to the Taotai, is an attempt to provide some such guarantee.
It will be seen that the demand for a Representative of the Consular Body, who would naturally and most conveniently be the Assessor before whom the case was brought in the Mixed Court, to attend the trial in the city would be based upon Treaty provisions as distinct from Mixed Court Regulations. There can, I submit, be no doubt that there is a genuine foreign interest in the manner in which such cases are dealt with. The police prosecute, in the first instance, in the interests of the community, and it would seem that when the matter passes out of their hands by transfer to the City Magistrate's yamên it should be for the Consular Representatives to protect the foreign interest in the case.
When the matter was brought to the notice of the Consular Body, the French Consul-General, M. Ratard, did not concur in the dispatch of this communication to the Taotai, on the ground that it was a variation of existing Regulations. This argument ! consider inapplicable, as the question is one of Treaty provisions, not of the Mixed
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Court Regulations. It was agreed that it could not go forward for the time being, but that individual Consuls-General should, if they saw fit, report the matter to their respective Ministers.
I have the honour to request your instructions as to whether I should be justified in taking separate action in this matter, vis-à-vis the Taotai, with a view to the adoption of the scheme so far as cases brought originally before the British Assessor are concerned.
As indicated in my despatch No. 52 of the 12th March (note inclosed therewith), the present position is one of compromise. The Assessor is often placed in the position of having to choose between agreeing to send a prisoner to the city, where he may be treated with improper leniency, and agreeing to a sentence of five years' imprisonment in the municipal gaol, which would itself be, properly speaking, insufficiently severe. It is inevitable that under these conditions points arise for consideration which lead to discussion and difficulty in agreement between the Magistrate and the Assessor. If it could be arranged that in such cases a Consular Representative should attend the hearing in the city, the Assessor could with greater confidence and more readily consent to their transfer, with the result that one principal cause of discussion, involving possibility of friction, between Magistrate and Assessor would be removed.
I have, &c. (Signed)
Inclosure 9 in No. 1.
PELHAM WARREN.
Draft of Despatch from Consuls-General at Shanghae to Shanghae Taotui.
1906. Sir,
Shanghae, October (? November) IN the Rules for the Mixed Court drawn up in 1869 it is laid down in Article 4 that "in cases when Chinese subjects are charged with grave offences punishable by death and the various degrees of banishment . . . . it will still be for the District Magistrate of Shanghae to take action,”
In accordance with this Rule, Chinese charged with the commission of grave offences within the International Settlement are from time to time handed over by the Mixed Court to the Shanghae District Magistrate for trial.
It will be within your knowledge that recently, owing to various causes, the number of bad characters in the Shanghae district has increased, and consequently the number of serious cases coming under the cognizance of the Mixed Court has risen pro- portionately.
Under these circumstances it becomes a matter of the highest import to Chinese and foreigners alike that there should be the fullest co-operation between the authorities within and without the Settlement, in order to secure the detection and adequate punishment of the criminals referred to.
The Consular Body have considered this matter, and are of opinion that the mutual interests of residents within the Settlement would be advanced if, when sending criminals charged with the commission of grave offences within the Settlement for trial to the Shanghae District Magistrate, the procedure provided for by section 1 (iii) of the Chefoo Agreement of 1876 were followed, and that when the Mixed Court Magistrate and an Assessor agree to send a case to the District Magistrate for trial, the latter should inform the Assessor concerned of the date of hearing, in order that he may be present at the investigation.
As you are aware, no doubt, this procedure is followed with mutual advantage at all Treaty ports when occasion requires, and, although it may not have been previously made use of in Shanghae to any great extent, it cannot be held to be an innovation.
The Assessor, when attending at the District Magistrate's Court, would of course confine himself to watching the proceedings as laid down in the Treaty, but his presence would be an assistance to the Magistrate in hearing the case, as he could, if required, bring police witnesses with him, and as these are often of great importance it is much better for the Magistrate to be able to confront them with the accused and hear their evidence viva voce than to have merely a written statement of their evidence such as is at present furnished to him by the Mixed Court Magistrate.
It has for many years been recognized that the punishment of Chinese offenders who commit offences within the Settlement, whether against other Chinese or against
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