This Document is the Property of His Britannic Majesty's Government.j
AFFAIRS OF CHINA,
CONFIDENTIAL.
[12748)
No. 1.
76
[April 20.]
SECTION 3.
Sir J. Jordan to Sir Edward Grey.-(Received April 20.)
(No. 117.) Sir,
Peking, March 5, 1907. I HAVE the honour to inclose copies of a correspondence which has passed between the United States' Minister and myself respecting the amendments to the Mixed Court Rules. The United States' Government, you will observe, are prepared to agree to the amendments as they stand, and consider that it would be unwise to insist on the retention of the custody of the male prisoners if such insistence might defeat the entire revision. They would, however, be glad to see the provision incorporated in the amendments if we can make sure of its acceptance by the Chinese Government.
I have, in frequent conversations with Mr. Rockhill, explained to him our difficulties in accepting the amendments in their present form, and have assured him of my readi- ness to do all in my power to obtain the supplementary safeguards which seem necessary to secure the continued maintenance of the established practice of the Court. Mr. Rock- hill very naturally holds that the amendments having been drawn up and settled after prolonged consideration are no longer open to revision, and he feels, as I myself do, that an awkward situation may be created if we endeavour to recede from our position at this late stage of the negotiations.
On the other hand, the acceptance of the amendments may, it is admitted, be con- strued by the Chinese as a tacit abandonment of the right of the Municipal Council to have the custody of the male prisoners and of some other equally important rights which rest upon the established practice of the Court.
Of these latter, far the most important is the system under which the warrants and summons of the Court are executed and served by the runners with the assistance of the Municipal police. This practice can be traced back as far as 1880, when it appears to have received formal recognition by the Shanghac Taotai of the time, and although infringements of it have frequently taken place in the interval, they have always been made the subject of a protest, and the Mixed Court itself has given satisfaction when specific cases have been brought to its notice by punishing the offending runners.
As pointed out by the Assessors in the Memorandum which formed Inclosure No. 2 in Sir P. Warren's despatch No. 190 of the 29th December, this principle has been embodied in the Provisional Rules of 1902 defining the respective jurisdictions of the Mixed Courts of the International and French Settlements. This arrangement, how- ever, was merely a modus rivendi arrived at between the Consuls at Shanghae, and although it was approved by the Diplomatic Body here, and subsequently recognized and adopted by the Taotai, there is nothing to show that it was ever submitted to the Wai-wu Pu for their approval.
When the letter from the Shanghae Branch of the China Association, copy of which I inclose for convenience of reference,* reaches you, you will be in possession of the views of all the parties who are entitled to express an opinion, and be in a position to decide as to the instructions which should be issued to me.
My own views have been communicated to you in my telegram No. 37 of the 3rd March. I hold with the Judge of the Supreme Court that the amendments as framed are calculated to give the Chinese a claim to the control of the male prisoners, and on this point the reasoning of the Judge and of the Shanghae Branch of the China Asso- ciation, seems to me the only conclusion that can be drawn from the 1869 Rules and the present amendments, construed alone and apart from established practice. The moment the letter was signed, the Chinese may reasonably contend that in framing them we must be taken to have provided for all the requirements that had been found necessary in the working of the Court since 1869, and that the amendments and the 1869 Rules are consequently the sole charter of the Court.
It would, I think, be quite impossible at this stage of the negotiations to introduce the numerous alterations which have been suggested by the Judge, the Assessor, and the China Associations in London and Shanghae into the amendments
* Not printed.
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