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Enclosure 3 in No. 1.
Senior Consul to Municipal Council, Shanghai.
Shanghai, July 1, 1902, Sir,
I AM instructed by my colleagues to hand you herewith a copy of "Provisional Rules defining the Jurisdiction of the Mixed Courts of the French and International Settlements of Shanghai." These were agreed to by the consular body and the taotai on the 10th June, 1902, and received the approval of the diplomatic body in Peking on the 28th June, 1902; and therefore have the force of law in the foreign settlements of Shanghai.
Enclosure 4 in No. 1.
I am, &c.
JOHN GOODNOW.
Provisional Rules for defining the respective Jurisdictions of the Mixed Courts of the International and French Settlements, adopted by the Consular Body of Shanghai, June 10, 1902, for reference to the Diplomatic Body at Peking.
IN all civil cases between Chinese the plaintiff will follow the defendant, and will sue him before the mixed court of his, the defendant's residence.
2. In all criminal cases where foreigners are not concerned and in all police cases against Chinese residents in the settlements, the mixed court of the settlement in which the crime or contravention has been committed, is alone competent.
N.B.-The above two clauses include cases where the defendant or accused is in the employ of a foreigner, the counter-signature of the consular representative of the national concerned being as heretofore to be obtained.
3. In mixed civil cases :-
(2.) If the plaintiff is a foreigner-not of French nationality-and the Chinese defendant is a resident of the international settlement, he is to be sued before the mixed court of the international settlement.
(6.) If the plaintiff is French and the Chinese defendant is a resident of the French settlement he is to be sued before the mixed court of the French settlement.
(c.) If the plaintiff is a foreigner-not of French nationality-and the Chinese defendant is a resident of the French settlement, the latter shall be sued before the mixed court of the international settlement whose warrant or summons for his appearance after counter-signature by the French consul-general will be executed or served by the runners of the international mixed court with the assistance of the police of the French settlement, without previous bearing in the mixed court of the French settlement.
(d.) If the plaintiff is French and the Chinese defendant is a resident of the international settlement the latter shall be sued before the mixed court of the French settlement whose warrant or summous for his appearance after counter-signature by the senior cousul will be executed or served by the runners of the French mixed court with the assistance of the police of the international settlement, without previous hearing in the mixed court of the international settlement.
4. In criminal cases where a foreigner-not of French nationality-is complainant, the mixed court of the international settlement is competent; if a Frenchman is the complainant, the mixed court of the French settlement is competent.
The provisions under clause 3 (c) and (d) as to executing warrants also apply under this clause.
JOHN GOODNOW, Senior Consul,
P.S.-This does not affect or change in any way the present system whereby all warrants of the mixed court of the international settlements are to be countersigned by the senior consul before their execution by the yamên runners with the assistance of the police.
J. G.
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Enclosure 5 in No. 1.
Consul-General Sir P. Warren to Mr. Max Müller,
(Confidential.) Sir,
Shanghai, March 21, 1910. I HAVE the honour to enclose copy of a despatch from the senior consul at Shanghai to the doyen of the diplomatic body, dated 17th March, asking advice on a certain point in connection with the constitution of the mixed court.
I am strongly of opinion that any alteration of the constitution of the court as at present existing is inadvisable.
The practice for many years has been that the British assessor sits three mornings in the week to hear criminal cases while the American assessor sits twice and the German once during the week.
Some of my colleagues are of opinion that in any criminal case in which one of their nationals is interested, even where both parties are Chinese, the assessor of the consulate concerned is entitled to displace the assessor of the day and take the case, a course which would lead to endless confusion and interference with business. The regular assessors are as a rule trained men with a good knowledge of the Chinese language while the occasional assessors of the other consulates are with few if any exceptions quite unqualified for the post.
There is great difference of opinion amongst the members of the consular body as to the precise interpretation to be put upon the expression "in all the criminal cases where a foreign interest is involved."
In a criminal case in which there is no doubt that a foreign interest is really involved, ie, where the complainant is himself a foreigner, it seems right that the assessor of the consulate concerned should be allowed to take his seat on the bench to watch the case, or it might even be desirable that a special day should be fixed for the hearing and that the said assessor should sit with the magistrate. I do not think that in any case the assessor of the day should be displaced.
The definition of a "foreign interest" should be clearly laid down. I hold that the mere fact of a Chinese subject accused of a criminal offence being in the employ of a foreigner does not entitle that foreigner to claim that his interests are involved. An extreme case of such a claim occurred some short time ago. Two Chinese employed in a silk spinning mill were charged before the mixed court with brawling. The filature is a purely Chinese business but, because the manager is an Italian subject, the consul-general for Italy claimed that his assessor ought to hear the case instead of the assessor of the day. Several members of the consular body were of the same opinion. I naturally demurred to this view, and the Italian consul-general finally admitted that his assessor could only claim to watch the case while it was heard by the assessor of the day (the British) and this course was followed. This is only one amongst several similar cases.
The correct interpretation of "foreign interest" is defined in a letter dated the 1st July, 1902, from the then senior consul to the chairman of the municipal council, a copy of which I enclose, and I am strongly of opinion that the consular body of to-day is bound by its decision of 1902, which in the note to rule 2 lays down clearly the principle that foreign employment does not necessarily constitute a "foreign interest," which principle has been acted on for years with advantage.
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Moreover, this question of interpretation is not merely "unc question connexe as described by the senior consul, but it lies at the root of the whole matter in dispute.
As regards the contention that the regular assessors should be considered as discharging international functions, I think this is a point that might be conceded, provided always that it is clearly understood that the assessor is responsible to his consul-general, not to the consular body.
Some of my colleagues are prepared to carry the idea of international assessors so far that they have suggested that the three assessors should be elected annually in the same way as in the case of the court of consuls, where the three judges are elected by the consular body.
The question as to the right of every consul to insist that his assessor shall sit in his turn, and that the duties of assessor shall not be confined to the three nationalities, as at present, is one which the consular body does not at the moment wish to open.
I may add that from inquiries made I learn that the Chinese authorities are quite satisfied with the present system under which trained and competent assessors sit with the magistrates, and that they would be strongly opposed to any change.
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