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gaol (see Mr. Ker's despatch No. 7 of the 19th April, 1906; inclosure, note from Viceroy),
If, in addition to the provision that the Municipal Health Officer should assist in keeping the Mixed Court gaol under the best foreign sanitary regulations, a clause were added that a foreign female inspector should be allowed to visit the women's ward, the rule would meet all requirements. I have, in obedience to your instruc tions, consulted confidentially with certain British members of the Council, and have the honour to inclose copy of a letter which I have received from the Chairman, Mr. Henry Keswick, which he informs me embodies the views of the members consulted.
(Confidential.)
I have, &c.
(Signed) PELHAM WARREN.
Inclosure 2 in No. 1.
Memorandum by Mr. Bourne.
I HAVE read the proposed amendments of the Rules of the Mixed Court inclosed in Sir J. Jordan's despatch No. 103 of the 22nd November, 1906.
The provision 4 (6), that the Assessor must agree with the Magistrate before a prisoner can be released or execution can issue on a judgment-and this is, I conceive, the effect of the Rule--is a concession so valuable to British interests at Shanghae that the other provisions, excepting the question of charge of male prisoners dealt with below, are comparatively unimportant. The principle has been claimed in practice for some years, but never formally admitted by the Chinese higher authorities. It gives us nearly all we really need, or rather, nearly all that is to be got under the existing conditions, namely, that a case can be hung up until justice be done. However, I suggest below some small changes that would, in my opinion, be improvements.
1 (6). As the Court is to apply the general law of the Chinese Empire, it seems unnecessary to quote particular Edicts which may be repealed or amended at any time. In view of the abolition of bambooing here, while it is going on nearly all over the Empire, it may be necessary some day to point out to the Chinese Government that Rules applicable only to the Foreign Settlement are not laws at all, and must have the sanction of the Treaty Powers.
4 (a.) It is desirable, in the case of Chinese sent for trial to the higher Chinese Courts for crimes committed in the Settlement, that the Consuls should have the right to depute an officer to watch the case as provided by the last clause of section 11 of the Chefoo Convention. Foreign interests might be held to be involved because we are concerned to see that crimes committed in the Settlement are duly punished. The result would be, I believe, that the feeling of reluctance in committing prisoners for trial would gradually disappear as the foreign community saw that the Chinese Criminal Courts were doing their duty,
In regard to the attendance of an Assessor, I may add that I recently told the Taotai, in reply to his question whether he could send a deputy to watch a case in the Supreme Court, that he could come or send whenever he thought Chinese interests were involved; that if he came himself he would be invited to sit on the Bench, and that a suitable seat în Court would be reserved for his deputy. I afterwards informed Sir H. de Sausmarez of this, and he quite agreed.
4 (6.) I understand these words to imply the following: "The accused in a criminal and the defendant in a civil case being kept in custody until the appeal is heard, or, if bail be allowed, until such security is given for his appearance on appeal. or for satis- faction of judgment as the Magistrate and Assessor, or, on their disagreement, the Taotai and Consul, may agree to be necessary."
The object is to prevent a Chinese prisoner or defendant from using an appeal as a means of escape or of delaying payment. Perhaps it might be thought enough if the Assessors were instructed so to interpret the rule.
5. I think it is necessary to good order in the present state of Chinese administration that the Treaty Powers, by their agents, the Consuls, or by their grantees of certain powers by the Land Regulations; the Municipal Council should be in charge directly or by sufficient right of inspection of all male prisoners within the Settlement; although if the Chinese Government built a prison outside the Settlement, open at any time to the inspection of an officer deputed by the Consuls, long term
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prisoners might he moved there by the joint order of the Magistrate and the Assessor. We are now subject to be swamped with criminals as Hong Kong once was with (lepers and lunaties. It seems anomalous that an exterritorial truding city like Shanghae should be feeding hundreds of long-term convicts from all over China because they chance to have been once caught in crime here, as if we were an independent territorial State. All we really want is that crime committed here shall be surely and adequately punished--then the sooner the criminal leaves us the better. If some such means as above could be found it would be a great relief to the Settle- ment. In Canton the Viceroy used to undertake that the Magistrates of their native districts should be security that deportees from Hong Kong should not return. Meantime, if there is to be any detention of male prisoners at the Mixed Court, some officer deputed by the Consuls ought to have authority to inspect and report; without snch an inspection, a foreign-fitted prison will become a disease-trap, and a much more deadly place than one run in the native manner-corruptio optimi pessima. Besides, the principle would be broken that the Chinese Government has no direct executive power in the Settlement, but can only act through the Agents of the Treaty Powers, or their grantees--the Municipal Council.
6. I would omit "more than once" in the last line but one of the first paragraph, and add "without giving due explanation to the Court" after the words "fails."
The Court should have the power to issue a warrant at once if a criminal summons is disobeyed.
The last paragraph seems unnecessary, especially as torture never has been permitted in the Mixed Court.
8. In place of the words " any refusal to obey their lawful summons or order,” I would suggest "any wilful disrespect to the Court, that is to the Magistrate or to the Assessor, or any unprofessional conduct." This appears preferable, and if these words could be inserted they would go to include the Assessor in the Court-a point that has sometimes been disputed by recalcitrant attorneys.
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9. In place of "equity" I would suggest "equitable dealing," or better in place of "commercial customs and equity," by the law merchant and local customs of trade, and failing these, by natural justice and equitable dealing." It would be well to avoid the word "equity" standing alone, or it may be argued some day that the expression meant the equity doctrine of English or United States' law.
11. After "regulations" the words "and practice of" would strengthen the rule in our interest. It would legalize practice past, and, by analogy, future.
Several of these proposed changes could be made in the English version with scarcely any variation in the Chinese text. Yet the English version will, in fact, tend to govern the practice of the Court, because it is accessible to the Bar and the public, and some of the changes are really radical, e.g., "law merchant" is an old term of convenient elasticity which conveys the idea of international mercantile custom, exactly what the Mixed Court has often to apply.
I am sending a copy of this Memorandum to the Foreign Office.
(Signed) F. S. A. BOURNE, Acting Judge.
Supreme Court, December 10, 1906.
Inclosure 3 in No. 1.
Mixed Court Rules Amendments.
Memorandum by United States, German, and British Assessors.
Rule 6, paragraph 1 (a)-It is desirable that this should read "No warrants, summons, or orders of the Mixed Court, &c.," so as to include a class of document of which frequent use is made.
(b) If a party fails to appear when summoned more than once," the words more than" should be omitted. The practice is to serve a summons twice, but it is desirable that the Court should be free to issue a warrant after one service if necessary.
Rule 6, paragraph 2-After" warrants" insert the words "summons or orders" to correspond with paragraph 1. After paragraph 2, insert a paragraph to the
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