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Colonial Cases

Mixed Court, establishment

The North-China Herald, 20 February 1864

WE anticipate that whatever difficulty may be found in inducing the Chinese to concede the right of jurisdiction over Chinese criminals caught committing offences in the foreign settlements, will lie in the conditions they will insist on as to the manner in which that jurisdiction shall be exercised.  They will not, we suspect, confer on the Municipal Council unlimited power of punishment; though, at first glance, that body, possessing the executive power, might seem the most appropriate to deal with criminals after they have been arrested.  The local authorities, however, will probably yield their right if jurisdiction only to a responsible and accredited officer of a foreign government.  In that case, the Consul or Vice-Consul of the settlement in which the crime was committed, would of course be the person on whom the duty would devolve. 

   But, as we have before urged, the consuls have already more judicial business on their hands than they can well attend to, besides looking after their other consular duties.  If the Vice-consular court is every morning to be flooded with a host of Chinese culprits, of different degrees of guilt, in addition to the drunken rowdies and deserting seamen whom it already has to dispose of, it will be utterly impossible that the Vice-consul should attend to anything else than judicial business for the entire day.  We believe, however, that, when Sir Harry Parkes arrives, two Vice-consuls will remain at Shanghai under him; and it is possible that this increase to the staff may render it possible for one to employ the whole, or greater portion of his time, in the manner stated.  Such an arrangement, however, by absorbing the time of one individual, would destroy the advantage from the additional officer, and leave the staff, as it is now, unquestionably overworked.

   We would suggest, therefore, the creation of an office similar to that of the Registrar of Chinese at Hongkong, though with much more extended powers.  The person appointed must necessarily be a Consular officer, in order to satisfy the scruples of the Chinese, about surrendering the right of jurisdiction to any other, which we have before mentioned.  To him might be entrusted, besides the mere duty of adjudicating on criminals, the conduct of all matters relating to the Chinese, except of course diplomatic intercourse, which now falls on the Consulate. Such a task as that of register ding the Cantonese residents, which it is now purposed to carry out, would be performed far more easily by such an officer, having the privilege of consular appointment to assist him, than it can be under present circumstances.

    He would come to be looked on as the de jure governor of the Chinese in the settlement. Influential Chinese merchants would willingly render assistance where they would, now, not take the trouble;; and heads of guilds would feel that, since his entire efforts would be directed to maintain order among the Chinese, it would be almost hopeless for them to endeavour to evade, as they are now sure to do, the responsibility for the misdemeanors of their inferiors which it is purposed to cast on them.  They would feel that, sooner or later, they must inevitably be brought to book; that the persistent investigation of an affair by an officer specially appointed to look after it, would eventually succeed, whereas at present only one effort would be made to find as culprit; every guild would repudiate the responsibility, would protest against it being  divided equally among them, and after performing a number of the moral antics at which Chinamen are such adepts, would have the satisfaction of seeing the matter fall through, simply because no one could afford the time to look further into it.

   We believe then that, apart from the desirable object of relieving the Consulate of work which now appears likely to fall on it, the creation of a registrar-ship of Chinese would be effectual in maintaining better order in the settlement, by increasing the probability of the discovery of crime.  At present, the Chinese are controlled, or rather control themselves, in a happy-go-lucky manner which, though very pleasant to the burglars who have lately given so many proofs of their existence, is far less satisfactory to the sufferers by their exploits.  The police are almost powerless to deal with them, inasmuch as they neither understand their language, recognise their faces, nor know their haunts; and have no one better acquainted with the matter than themselves, to direct their efforts.  It is the last want which we would see supplied, and therefore we suggest the appointment of a Registrar for Chinese who shall have the control of the Chinese in the three settlements.

The North-China Herald, 20 February 1864

(Daily 17th Feb.)

THE most valuable results may confidently be expected from the united action of the consuls of the treaty powers.  The minutes of each Consular meeting furnish us with discussions on subjects of general interest, which could not be satisfactorily treated of by any Consul acting in perfect independence of his colleagues.  The Chinese authorities are thus led to understand that no purely selfish element enters into the claims made upon them; but that the rights demanded will, if granted, conduce to the general welfare of the foreign mercantile community, and will indirectly trend to the aggrandizement of the port, , and to an increase in the importance of the local officials. 

   At the last Meeting, held on the 15th instant, that matters which came under consideration were of the greatest importance and demanded perfect unanimity in the gentlemen who assembled to consult upon them.  It will be seen that the subjects deliberated upon were - first, the cession to the Municipal Council of the right to exercise jurisdiction over unrepresented foreigners, - secondly, the establishment of a Court for the trial of Chinese suspected of having committed minor criminal offences within the settlements, - and thirdly, the right of foreigners to purchase land at Foochow.

   With regard to the first of these subjects, the Chairman announced that the native officials had granted to the Municipal Council the right of trying nationals of unrepresented powers who may bring themselves within the grasp of the law.  This concession is a matter for congratulation, as the requirements of justice will thus be strictly enforced, while the possibility of Europeans being subjected to the inhuman tortures practiced by the Chinese, will be diminished. In order, however, to carry out this design in a satisfactory manner, it will be necessary to secure the services of a properly qualified public magistrate.  Such an officer should be possessed of sufficient legal knowledge to guide him in delicate cases, while at the same time he ought to possess considerable experience in dealing with criminals of the class likely to be brought before him.  An incompetent or inexperienced magistrate would, to a certainty, involve the Municipal Council in an inextricable maze of judicial confusion, and render the important step now taken utterly worthless.

   We are, as yet, in the dark as to the arrangements contemplated by the Consuls when handing over this right of trial to the Municipal Council.  We know not over how large a district surrounding Shanghai the jurisdiction thus granted may extent.  The dispatch from the Consuls to the Futai does not specify with any distinctness whether subjects of unrepresented powers arrested in the interior while in the act of committing outrages are to be transmitted to the foreign authorities.  It simply provides that such men arrested for crime in Shanghai, or found travelling without passports in the country at a distance of more than one hundred li from a recognized port, are to be given up to the Municipal Council. Foreigners do not generally, so far as we can discover, travel much into the interior.  It might, therefore, be as well to demand that all subjects whether of treaty or non-treaty powers, found either travelling without passports, or in the act of committing outrages, should be transmitted to Shanghai for trial and punishment.  We notice that the Futai provides that

The honorable Consuls should transit to the Municipal Council the power (on behalf of the Chinese Government) of holding jurisdiction on such persons; supervision being at the same time maintained by the Consular body.

It would seem from this that the police Court, should such be constituted, is in no respect to be independent of the Consulates, or rather of the congress of Treaty Consuls.  The number of arrests made within a month is very small.  We would therefore imagine that the ends of justice would be attained with more certainty, were unrepresented offenders to be brought before the monthly Consular meeting, and summarily dealt with.  The Consuls are of course competent to deal with such cases.  Their professional education has fitted them to sit in judgment on offenders of every class.  But it would be absurd to invest any man, except one properly qualified by education and experience, with the power of pronouncing a decision from which there should be no appeal.  In order that the system which it is proposed to adopt should work well, it would be necessary that all cases should be summarily dealt with, and this power could not with propriety be granted to any but competent men.  It would seem therefore that the alternative is either that the services of a well qualified magistrate, who ought to be possessed of a legal education, be obtained, or that the Consuls consider their monthly meeting as a Petty Sessions Court for adjudication in criminal cases wherein subjects of unrepresented powers appear as defendants.

 

The North-China Herald, 20 February 1864

Daily 18th February

We were glad to observe among the subjects discussed at the last meeting of Consuls, the question as to jurisdiction over Chinese residents within the foreign settlements.  As usual, Messrs. Seward and Markham are to be the active agents in the negociations with the local authorities; but are to be "careful not to commit the Consuls or the Land Renters to ant definite policy."What may be the meaning of this reservation we do not pretend to fathom.  The subject is not a very abstruse one, nor are any grave political complications likely to arise in the course of its discussion, which would render the above caution necessary.

   The object, we presume, is to induce the Futai to cede, either to the Consuls or to the municipal Council, the right of jurisdiction over Chinese residents in the foreign settlements, in criminal matters.  What "definite policy" the consuls are afraid of being committed to with regard to these criminals, is, we repeat, beyond our comprehension.  However, Messrs. Seward and Markham are not likely to feel themselves much hampered by the restriction; inasmuch as it is difficult to conceive how the negociation can assume a form to which it will be applicable.    

   We have already several times taken occasion to point out the advisability of securing from the Chinese, if possible, the cession of the right to adjudicate on Chinese criminals, and to inflict the punishments awarded.  There is not doubt that, at present, a number of natives sent in to the Taotai, either never reach him, or are set at liberty without proper trial or punishment.  They are residents in the foreign settlement, and not likely to annoy the districts in the tranquility of which the Taotai is specially interested; therefore, he cares little whether they be in prison or at large.  The question as to their guilt or innocence is oftenest settled by some of his subordinates, who are guided in their decisions by the extent of the bribe offered for an acquittal.

   Thus, the actual supervision over the Chinese criminals is nearly as lax as that over the rowdy portion of the foreign population.  In the case of the one, the nominal right of jurisdiction exists, but the native exercise is both weak and unwilling; while in the latter, the officials who alone have power to intervene have no means of doing so, and the Municipal Council, which has the executive force, has not the right. An important step has been taken to remedy one of these evils by procuring from the Futai the cession of the right to adjudicate over subjects of foreign nations who have no consular representative; though we fail to gather from the correspondence published, to which Municipal Council the right has been ceded. [Continues with discussion of the forms of punishment.]

 

The North-China Herald, 29 April 1865.

THE MIXED COURT. [Extract]

THE CHAIRMAN would trouble the meeting with a few remarks in reference to the constitution of the Mixed Court.  The chairman of the Municipal Council had, at the last meeting, said that this Court had been established by the Municipal Council, with the assistance of then American and English Consular representatives, but at the instance of H. B. M. Consul, a consular interpreter had been associated in it with the Chinese magistrate, ands the object of the council had this to a certain extent been frustrated. 

   The object of a Mixed Court was to supply the want of some means of jurisdiction over the large humblers of Chinese who were residing in the foreign settlements.  Previous to its establishment, native offenders could only be brought before the Consuls and committed by them to the Chinese authorities inside the city for trial and punishment.  The difficulty of sending in witnesses and of prosecuting was so great, and the whole proceeding so tedious that in many cases trhe end of justice were unattainable.

   In common witrh his colleagues he had then thought it desirable that the Chinese authorities should be brought nearer, to enable justice to be dealt out on the spot; and he believed the experiment had succeeded.  Latterly, the Court had been vested with civil powers and authorized to deal with cases in which subjects of non-treaty powers were concerned.  Her thought therefore that it was hardy within the province of the Council to say that they had established the Court.  It was another inaccuracy to say that he had interfered and defeated the object by introducing a Chinese interpreter.  Whatever had been done had been done in concert with the U.S.A. Consul-general, the two acting not only in virtue of the respective positions, but as a committee of those Consular Representatives who had met on several occasions during the past year, to consider this and other subjects connected with the order of the place.    

   It must be remembered that it did not rest with the foreign autjorities to establish such a Court; they could only recommend the measure for adoption by the Chinese.  It was not unnatural to find that the latter also had views of their own and one of these views was that it would be unsuitable  for them and not in keeping with the treaties to act with any foreigner unless he were a Consular Officer.   With every respect for the Municipal authorities they looked upon them as, politically speaking, irresponsible.  There was no appeal from any decision at which they might arrive.  On consulting higher foreign authorities, higher than any at present resident in Shanghai, he (the Chairman) had found that the Chinese were not singular in these views.

   It had therefore been found necessary that the foreign assessors should be Consular and not Municipal officers, and that the nation interested in the proceedings of the Court should be represented by an assessor whenever this was practicable.  That was the present constitution of the Mixed Court, and as by that arrangement the community had been saved Tls. 4,000 a year by reduction in salaries, he thought the Land Renters would not endorse the objections which had been erroneously raised to his individual action in the matter, in the report of the retiring Council and the speech of the Chairman. ... [continues.]

 

Source: The North-China Herald, 7 July 1866

THE MIXED COURT.

AMONG the institutions peculiar to Shanghai, and called into existence by special local conditions, is the tribunal known as the Mixed Court.  A court of justice within the foreign concession jointly presided over by a Chinese magistrate and a Consular official as assessor or co-judge, with local jurisdiction, in both civil and criminal cases over natives, as well as foreigners without Consular protection, was a desideratum soon developed by the rapid increase of the foreign population, and the extension of commercial intercourse between foreigners and natives.  The system followed in the infancy of our settlement, of remitting cases to be tried by the native Courts in the city, was most unsatisfactory in its working and open to the gravest objections.  It was always inconvenient, and often impossible, to follow such legal proceedings where foreign interests were concerned, with the consular surveillance necessary for their protection.  When Chinese were sent into the city under specific charges, there was no satisfactory assurance that the due course of justice would not be opposed by some of the many corrupt practices known to prevail; or, on the other hand, that the prisoner would be tried without evidence simply with the bias of the committal acting on the mind of the native magistrate as a kind of recommendation for punishment.  The evils of such an irregular and imperfect system so pregnant with abuses were, so long as the limited extent of our relations with the Chinese permitted, mitigated if not controlled by the efforts of the various Consular Authorities.  But with the rapid increase of the foreign community, and the development of the Municipal administration, with its police, it became absolutely necessary to institute a special Court within the foreign quarter, to deal with a class of criminal and civil cases which had multiplied with the changes referred to, beyond the means of dealing with them successfully.  This led to the establishment of the Mixed Court by arrangement with the Taotai, during the consulship of Sir Harry Parkes.  It was decided that the Mixed Court should be.

1st. - A Police Court presided over alone by a deputy of the District Magistrate, to try purely native cases brought before him by the municipal police.

2nd. - A Criminal Court for the trial of Chinese charged by foreigners; and for foreigners having no Consular representatives.  In this Court the Chinese Magistrate was alone authorized to deliver judgment, but a Consular assessor was to be associated with him, having the power of staying proceedings, and with the right of appeal; and when a non-represented foreigner was on trial, two assessors were required.

3rd. - A civil Court constituted like the latter, but as the cases usually brought before it were of great importance, the place of the deputy was in such taken by his principal.

4th. - A Court of Appeal or Reference - presided over by the Taotai, assisted by one or more of the Consuls, according to what foreign interests were concerned.

   A set of regulations of an avowedly tentative character were drawn up and published, under which its proceedings up to the present time have been conducted.

   The Court has now been a sufficient time in existence to prove its merits and utility, as well as to expose any deficiencies in its constitution and working.  While we may congratulate the public on the great benefits which it has undoubtedly derived from what must strictly be regarded as a judicial experiment, it yet appears that there are points in its constitution which unnecessarily limit its powers, and prevent their full exercise for the public weal.  A great deal of the success which has attended the operations of the Mixed Court, is certainly due to the ability and earnestness with which the Consular Assessor, Mr. Alabaster, has entered upon and conducted his share of the judicial functions with the Deputy Magistrate; and we believe that to him we are to look for those suggestions, derived from his intimate and ample acquaintance with the subject, which will remove its disabilities and extend the sphere of its utility.  It seems to us that the presiding native Magistrate would be more independent and less liable as a deputy to have his decisions overruled and reversed; till this is done the authority of the Court will always be imperfect and circumscribed.  Another improvement would be a participation by the Consular Assessor in the power of jurisdiction, particularly in cases where foreign interests are involved.  In what must be regarded as the most important function conceded to the Court, namely the power of trying extra-consular foreigners, it would be a great improvement if the number of Consular Assessors were increased or fixed, and their nationality defined, as difficulties of an international nature might arise in important cases, from the want of some clearly stated rule on this subject.  As a Court of Civil appeal it ha seldom been called upon to act - in such cases the Taotai would act with the consul - but in criminal cases this is open to grave objections, as the Taotai, who is completely overwhelmed with the onus of his many functions, has properly no criminal jurisdiction; it would therefore be an immense relief to him and vastly facilitate the whole criminal procedure of the department, if the prefect were to preside in such cases, or a special criminal judge were appointed with authority direct from Pekin.  The jurisdiction of the Court also might with great benefit be extended to a higher grade of both criminal ands civil cases.  Where these extended powers are possessed by it, the very best proof of its successful operation has been seen in the clearing out of so many of those social pests, the low caste non-represented foreigners, who have become amenable to the law they were formerly able to set at defiance.  Still, more extended jurisdiction would be beneficial in this latter class of cases, particularly were its jurisdiction extended to the foreign plaintiff in all mixed cases, and especially in cross actions, and with power to enforce the payment of the costs.  This difficulty is principally met with in British cases since the establishment of the Supreme Court - previous to which the Vice-Consul sitting as assessor, could fall back on hjis consular power.  Another extension of the jurisdiction of the Court had also been pointed out as desirable, that is, to have the right of enforcing the payment of the Imperial, as well as the Municipal taxes with which it has already power to deal.  As the beneficial working of this tribunal becomes more apparent to the Chinese Authorizes with extended experience, they will more readily embrace, if not suggest, proposals for the increase of its jurisdiction; and it is possible that it may, in time, exercise a powerful influence on the whole native judicial system, at present so redundant with abuse and error.

  • -

   WE would now further consider how far the powers at present possessed by the Mixed Court, with respect to the penalties in its right to inflict, and the means for their enforcement, are competent to meet the exigencies of its judicial functions.  As at present constituted, the power of the Court in this direction is unnecessarily and inconveniently limited.  Except in the infliction of the penalty of Hard Labour, the Court, having decided as to the guilt of the culprit, can only express an opinion as to the nature and extent of punishment to be inflicted - not being itself empowered to enforce its penalties.  This can only be done by the Che-hien or District Magistrate, who has therefore always the power to control and interfere with the course of justice indicated by the decisions of his deputy and the Consular Assessor.  In civil cases particularly, this somewhat anomalous separation of jurisdiction and power is open to the gravest objections - for in any competent legal system, the power of enforcing the claim should invariably accompany the power to establish its right by decision.  An authority states with reference to this question:

There are now cases before the Court in which the satisfaction of claims decided by it in favour of the foreign claimant is so far off as ever, and until the power of confinement and seizure of property is given the Court, no remedy can be looked for.  The Hai-fung does occasionally confine a debtor in his Yamen, but if the defaulter be the possessor of official rank, he declares he has no power to act, and the enforcement of a civil claim by an officer unconnected with the Court seems in the peculiar state of Chinese Civil Law to be practically impossible.  The utmost that is ever done is the nominal confinement of as debtor in a sponging house, by which he is put to expense in the way of fees or squeezes, but otherwise suffers no inconvenience, his personal liberty being unmolested so long as his fees are paid.

The punishments in the power of the Court to award are:

The Cangue

The Bamboo up to 100 blows

Hard Labour up to 14 days

Deportation

Fine.

Of these punishments, the Cangue and Bamboo are of the native order.  They are repugnant to European notions, from their physical violence as well as from the discretionary cruelty with which the sentence can be carried out, according to the ability of the prisoner to procure, by influence or purchase, mitigation of the infliction.  The cangue, if inflicted without the necessary cruelty which is so often seen in connection with its use, so as merely to expose the culprit to public shame on the scene of his offence, is perhaps the best form of punishment for a certain class of prisoners, such ass domestic and office servants who have betrayed their trust, and who are keenly sensitive to "loss of face" among their fellows.  Of all the modes of punishment in the power of the Court to award, Hard Labour is the most effectual.  It is not that it is, by any means, physically more severe, for it really is much less so than either the cangue or bamboo, which avenge the crime more than they reform the criminal; but that, so a much greater extent than the others, its dispensations are carried out under the more immediate control of the Court passing the sentence.  Its publicity is quite equal to that of the cangue, while manual labour, than which nothing is more repugnant to the inclinations of the criminal classes, is demanded as a primary condition of the sentence, and is carried out with profit to the community, the order of which has been violated.  As we should have expected, the good effects of the punishment as a preventative of crime have been most satisfactorily established by the experience of the Court.  Offenders wealthy with the wages of vice, able to avail themselves of the almost openly recognized system of venality existing among the native officials here, find themselves in a position from which they can look for no mitigation or escape.  A carefully considered body of rules for the administration of this punishment has been drawn up, under the joint care of both foreign and native authorities, by which all abuses of the system have been as much as possible avoided, and the objection to it urged by the Chinese officials, really because it took a lucrative charge out of their hands, have been so far overcome.  In one respect, this matter calls for improvement, and that is in extending the period in the power of the Court to inflict.  The fourteen days to which the Court is limited is manifestly insufficient in the majority of trhe cases demanding punishment of this nature, and we think the power could, with gthe greatest advantage, be extended to a sentence of 60 days.  This we think demands the earliest attention of the authorities.

   Deportation, another punishment, is of course confined in its application to a comparatively small number of cases, and is, except in the case of extra-consular subjects, from the defective nature of native police, necessarily imperfect and uncertain in its effect, while its expense is a still more potent objection.  Fines, as a penalty, are too much allied in principle to the abuses prevalent under the native administration of justice, to be adopted in any but merely venal offences - and in such it has, we believe, been wisely the custom to apportion the amount of the fine according to the circumstances of the individual, rather than to the nature of the offence.

   But in connection with the power of imprisonment, one of the most urgent wants of the judicial system of the Mixed Court is a jail in the concession, directly under its administration. With extended powers such as we have referred to, judiciously exercised, still more beneficial results from the operations of the Mixed Court may be looked for, and we trust their inauguration is not far distant. We think the institution should receive more attention from the community.  The residents ought individually to take more interest in its working, for such would greatly tend to its increased recognition as a means for good by the natives.  It must be confessed that little hope of good results from the reformatory effect of penal measures on Chinese, can be entertained.  They may to some extent deter individuals from a repetition of their offence, but any means short of an entire change of the moral nature, will rarely if ever effect the higher aim of thorough reformation in the convicted criminal.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School