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regards the working of foreign courts, the investigations of the commission will, for obvious reasons, be subject to a certain limitation; their object will be to suggest remedies for defects, if any, inherent in the working of all foreign courts alike, whatever their nationality; it will hardly be possible for them to fix their attention exclusively upon, much less to recommend remedies for, any abuses that may be presented by the courts of particular nationalities. But as regards Chinese courts, there is no analogous limitation that need confine either the attention or the recommendations of the commission to the working of any particular court or set of courts. Nor is there anything to prevent them from enquiring iuto and making recommendations as to the conditious and administration of Chinese prisons.
4. This observation suggests that as regards foreign courts, there is one general feature of the present system to which the commission will give their serious, if not their exclusive, attention. This is the inconveniences arising from the diversity of laws administered by courts of different nationalities in China. In principle it would seem that the remedy for these inconveniences lies in the gradual and progressive substitution, as regards particular subjects, of Chinese laws for foreign laws. But, in considering the practicability of any such substitution at any stage, the commission will be confronted with a practical difficulty that will no doubt seem especially acute to its British and American members-namely, the difficulty which British and American courts will find in applying, in any department, but especially in the domain of criminal law, a system which is understood to be mainly based upon continental models of jurisprudence.
5. Assuming, however, that this difficulty is not insuperable, the method of substitution just indicated seems to present considerable practical possibilities. Thus the Trade Mark Law recently enacted by the Chinese Government is an example of a law which might be so applied; other examples are the police and municipal regulations and the local licences and taxes of Chinese municipalities in the interior, game laws, laws prohibiting import of or dealing in arms or noxious drugs, &c. Other Chinese laws might be added to the category, until in time practically the whole body of Chinese law might be made binding on all foreigners in China to the exclusion of their own law. This would remove one of the greatest evils arising out of the present practice of extra-territoriality and at the same time pave the way towards the time when these laws would be administered not by foreign courts, but by Chinese courts, namely, the complete abolition of extra-territoriality.
6. The two immediately preceding paragraphis adumbrate a general method by which the commission may think it possible that the way might be paved for the eventual complete abolition of exterritorial jurisdiction when they approach the problem from the angle of simplifying the administration of justice by the existing foreign courts. When the problem is approached from the other side-that of the defects of the Chinese courts--a second, but not incompatible, method at once suggests itself. This is the method of what might be called gradually diminishing probation, beginning with the institution, at particular places or for particular purposes, of special mixed tribunals which would apply Chinese law to foreigners. Such a system of tribunals would entail a Central Mixed Court of Appeal.
7. The principles of probation involved in this second method seems susceptible of a variety of applications in practice. Thus the regulations and bye-laws of foreign municipalities might he applied to foreigners and Chinese alike not in a variety of different tribunals, but in one mixed tribunal presided over by Chinese and foreign judges sitting together. The Chinese would gain face by acquiring the right to appoint judges to such a tribunal, and the experience and training might prove of great value.
8. Here, again, however, it is apprehended that the commission will be confronted with a practical difficulty. The Chinese will presumably be reluctant to accept any period of probation, and there is some force in the view that an attempt to institute mixed tribunals would only produce increased friction. As against this it may be pointed out that the mere presence in a Chinese court of foreign judges, who might be the salaried servants of the Chinese Government, would not divest the court of its Chinese national character, and that any such system, if accepted by the Chinese, would, by its educational effect and by improving the standards of Chinese justice, accelerate the process of gradually abandoning extra-territorial jurisdiction more effectively than any other method. The analogy of Siam is instructive in these respects and suggests that this path deserves careful exploration
9. In this connection it is for consideration whether a fruitful source of friction could not in any case be removed by abandoning the treaty right to send a foreign
official observer to watch the trial of suits brought by foreigners against Chinese. An arrangement similar to that in the Sino-German Treaty (which admits German lawyers and interpreters, but not (erman officials) might place this matter on a
159 permanently satisfactory basis.
10. A further suggestion, on which again immediate action might be practicable, is that in certain minor classes of case, such as breach of Chinese municipal or police regulations, purely Chinese courts might be allowed immediately to assume jurisdiction over foreigners, and that the area of such jurisdiction might be gradually widenedl until it embraced the whole field. In considering any such suggestion, it would, of course, be necessary to bear in mind the objections to allowing foreigners to become liable to detention in Chinese prisons.
11. To sum up
Under this head, the transfer of jurisdiction to Chinese courts, there are two methods by which the Powers, without endangering the interests of their nationals, might conceivably co-operate with the Chinese towards the gradual abolition of jurisdictional privileges. One is the application of specially selected Chinese laws to foreigners by their own authorities. The other is the application of Chinese law to foreigners by Chinese and foreign judges in special mixed tribunals. It will be for the commission to consider to what extent these methods are applicable and in what combinations at what successive stages.
12. The complexity of the problem is increased by the fact that no progressive application of these two methods, whether singly or in combination, would be likely to be acceptable to the Powers, which would entail the transfer to Chinese jurisdiction of foreign personal status cases before criminal cases in which foreigners are involved had been so transferred, or which would involve the transfer of such criminal cases before civil cases in which foreigners are concerned had been transferred-in each case with satisfactory results. In other words, the recommendations of the commission should be framed in such a way that, whatever the administrative stages by which the surrender of exterritorial jurisdiction is to be completed, the surrender should be completed progressively as regards the three classes of case indicated. speaking, so long as foreign jurisdiction is even partially retained in civil cases, it Broadly should be wholly retained in criminal cases, and so long as it is even partially retained in criminal cases, it should be wholly retained in personal status cases. This need not exclude the possibility of the transfer of minor criminal cases, especially as regards the enforcement of municipal regulations or comparatively unimportant personal status questions, before the surrender of criminal or civil jurisdiction, as the case may be, has been completely effected.
(B.)-Features of the Present System of Extra-territoriality of which the modification need not necessarily be made dependent on Action on the part of the Chinese.
13.
It may be expected that the Chinese representative on the commission will urge that the commission should investigate certain matters which constitute grievances in the eyes of Chinese opinion, and which, although they do not directly come under the head of jurisdictional privileges, arise out of those privileges or are otherwise intimately connected with them. The British Commissioner's general attitude in such matters will be determined by the instructions contained in the Secretary of State's despatch of the 1st December, 1925; that is to say, he will bear in mind that His Majesty's Government would welcome any suitable opportunity to disarm Chinese dislike of the privileged position of foreigners by abandoning superfluous and irritating rights. A review of the sort of matters the Chinese are likely to raise on the commission suggests that this principle-the principle of shortening so far as possible the front which the foreign Powers expose to the attacks of Chinese national feeling--will receive at the hands of the British representative an application that will vary according to circumstances.
14. It may, in the first place, be urged that the commission should investigate the whole system of foreign concessions and settlements in China, the terms under which they are held and the conditions under which they are administerel, with a view to recommending fundamental modifications of the system, if out its total abolition.
15. If so, the British representative will bear in mind that Shanghai is the most prominent example of the system in question; that, if the retrocession of the Mixed Court and Chinese representation on the Shanghai Municipal Council can be arranged, an essential factor in Chinese discontent under this head will have been inet; that, if these reforms can be arranged, a precedent will be created which is
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