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doyen that the diplomatic body recognised the right of the consul cencerned to, send his assessor to sit with the Chinese magistrate, but held that the fact that a Chinese is in the employment of a foreigner does not in itself constitute "a foreign interest" sufficient to justify the exercise of that right. The German Minister, however, refused to admit even the principle, and after rather an acrimonious discussion with the Spanish Minister, said that he must refer home to his Govern- ment for instructions, and the matter had therefore to be dropped for the time. As the Spanish Minister has now circulated among his colleagues a letter explaining his views, the question is sure to come up for discussion again at a meeting of the heads of missions, and I shall, unless instructed to the contrary, support the views which I have expounded in this despatch.
I have, &c.
Enclosure 1 in No. 1.
W. G. MAX MÜLLER.
Report on the International Mixed Court at Shanghai.
IN the following report an attempt is made to set forth the established practice and procedure in the international mixed court at Shanghai, to define the limits of its jurisdiction, and to describe the practical working of the court.
Criminal Jurisdiction and Procedure.
The mixed court exercises criminal jurisdiction in all cases of crime committed by Chinese within the limits of the international foreign settlement at Shanghai, or outside the settlement, but on roads owned and policed by the municipal council. The court sits for the hearing of criminal cases every morning at 915, and is constituted of a Chinese magistrate sitting with an assessor of either British, American, or German nationality. The British assessor sits on Monday, Wednesday, and Friday mornings; the American on Tuesday and Thursday, and the German on Saturday. It is, however, competent for any of these assessors to arrange for a special sitting on some day other than the allotted day, and this is frequently done when for lack of time a case cannot conveniently be taken in the ordinary morning session.
The assessors of nationalities other than British, American, on German have no locus standi in the mixed court, so far as criminal work is concerned, unless a national of the assessor in question is directly concerned as complainant. For example, if an Italian subject is assaulted by a Chinese, the Italian assessor would have the right to displace the assessor of the day at the hearing of the case. Though in practice this right has rarely been claimed, attempts have frequently been made to obtain recognition of the principle that the fact of a Chinese defendant being in foreign employment constitutes à sufficient foreign interest to enable the assessor of the nationality concerned to displace the assessor of the day. These attempts have hitherto been successfully resisted.
It is hardly necessary to point out that the admission of any such principle- With would render impossible the administration of justice in the settlement. eighteen nationalities to choose from, a Chinese defendant would have little difficulty in finding one or other of the consular authorities of Shanghai to stand sponsor for him, with the result that the work of the court would be disorganised, and a very large proportion of serious crime would go unpunished. The present practice, based on rule 3 of the rules of 1869, is to allow a foreign consular representative to watch the case from the bench when one of his nationals is the employer of, or otherwise interested in, the Chinese defendant. This privilege, however, is rarely used. It should be noted in this connection that the British, American, and German assessors as a matter of courtesy adopt inter se a different attitude to that assumed towards the assessors of other Powers. Thus the fact that a defendant was, say, in German employ would be sufficient to give to the German assessor the conduct of the trial. were brought before the court on any other but the German assessor's day he would on application be remanded over for the German assessor, and the British or American assessor, as the case may be, would only hear the case on being assured that the German employer had no objection.
If he
The mixed court cannot impose a greater penalty than one of five years'
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imprisonment. In cases where the magistrate and the assessor are satisfied that a crime has been committed which merits a greater punishment, the defendant is sent into the native city and is tried and punished by the Shanghai city magistrate. In some cases where it is considered essential that an assessor should be present at such a trial, the defendant is sometimes tried in the mixed court by the city magistrate sitting with an assessor. No precedent appears to exist for the presence of an assessor at a trial in the city, but an assessor has sometimes attended at the city court when sentence has been passed.
The question of sending prisoners into the native city is the chief source of friction between the native and settlement authorities. The rules which apply all flow from the principle that the plaintiff follows the defendant, and are as follows: If a Chinese is arrested inside the settlement he must be brought in the first instance before the mixed court. If the crime with which he is charged has been committed inside the settlement he is tried and sentenced by the mixed court. The single exception to this procedure is the case noted above, where the court is of opinion that five years' imprisonment is not a sufficient penalty, and accordingly sends the prisoner to the city magistrate for trial and sentence. Where the crime with which the prisoner is charged has been committed outside the settlement the court enquires into the facts of the case, and, on being satisfied that a prima facie case of guilt has been made out, sends the prisoner for trial and punishment to the native authorities having jurisdiction in the place where the crime was committed. The single exception to this rule arises out of the rules governing the relations between the French and international mixed courts (see Appendix 2). In practice a considerable distinction
is drawn between permanent residents of the settlement and persons residing elsewhere who happen to have been arrested within the settlement. The latter are handed over to the native authorities on merely slight evidence of participation in the crime, thus minimising the danger of the settlement becoming an Alsatia for evildoers. But very clear proof is required before a resident of the settlement is so handed
over.
The native authorities, jealous of the exclusive rights of the settlement, make constant efforts to obtain the rendition of residents on various pretexts, often very trivial, such as non-payment of land tax, &c., and a rigid application of the above rules is necessary to repel such attempts at encroachment. Their commonest and most plausible contention is that all cases of homicide must be sent into the city for trial. It is well established, however, that the mixed court is competent to try homicide cases where the circumstances of the case permit of the infliction of a penalty of five years' imprisonment or less.
When a prisoner is brought up for trial the Chinese witnesses, including the accused, are examined by the magistrate, who generally displays considerable skill in elucidating the real facts out of a maze of perjuries. Beyond suggesting questions or lines of cross-examination and interpreting foreign evidence to the magistrate, the assessor generally finds it unnecessary to take any very active part in the proceedings. On the conclusion of the evidence the assessor and magistrate consult as to the verdict and sentence, for no sentence is valid unless concurred in by both magistrate and The majority of cases are of course of a trivial nature, and present no features of difficulty. Petty thefts, for example, are punished by inflicting a penalty of, roughly, one day's imprisonment for each dollar stolen. Cases arising out of family disputes, offences against morality, and offences against Chinese family law will be left by a wise assessor to the untrammelled discretion of the magistrate, who Certain classes may generally be relied upon to do substantial justice in such cases.
assessor.
of cases, however, present great difficulties. When the magistrate is swayed by racial prejudice, political considerations, or pressure from above, the asscssor must exercise all the tact and determination of which he is possessed in order that justice may be done. A good example of the class of case referred to occurred recently when the Shanghai Municipal Council instituted a prosecution against a Chinese newspaper controlled by the taotai for publishing a series of seditious libels on the Indian community of Shanghai. Difficulties of a different kind arise out of the fundamental differences between Eastern and Western systems of jurisprudence. The Chinese consider that offences against the person are infinitely more serious than offences against property. Crimes in the latter category are treated far more leniently than in Western countries, and the divergence is aggravated by the low standard of commercial integrity among the Chinese. Thus, while the magistrate is always willing to impose an exemplary sentence in cases of robbery with violence, snatching, &c., it is very difficult to secure an adequate penalty for crimes such as burglary or forgery. There
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