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Colonial Cases

Mixed Court operation and abolition

North China Herald, 3 February 1886
SCENE AT THE MIXED COURT.
  The growing evil of interference on the part of native officials with the good order of the Settlement, to which we alluded last Monday, received further confirmation in the Mixed Court on Saturday.  Five ill-looking men were brought up by the police charged with an aggravated assault on a native constable.  The constable had noticed them at a late hour on the previous night lounging in a suspicious manner along the Maloo. He addressed one of them who was conveying a bundle as to his intentions, and receiving no answer demanded to see its contents.  The whole party thereupon set on him; and it would probably have fared ill with the constable had not the relief coming from the station arrived at the moment on the scene, and taken the Party into custody.  The only defence was that the men were servants of the Grain Commissioner, and were therefore licensed to set the law at defiance.  Mr. Lo could not think of punishing the chair coolies of so exalted a personage, but was sure that if he asked the Commissioner he would himself see that they were flogged.  Much to Mr. Lo's surprise, this proposal did not satisfy the Assessor Mr. Haas, who said that, as he knew that imprisonment would be mad a farce by the contrivance of the Court, he would be content with fines amounting to $10. A scene ensued similar to those to which we became accustomed during the reign of the former magistrate, which ended in a dead-lock and the remand of the prisoners.
  The case of the assault on Mr. Tan Tung-hing then came before the Court.  The petty mandarin who had attempted to assume at the first appearance the role of director was present in force, and strutted about like a fully-fledged turkey-cock.  After an animated avalanche of invective hurled at the plaintiff, and being sharply called to silence by Mr. Haas, he consented to leave the Court.  After wasting the time of the Court with feeble remonstrances, Mr. Lo at last with gruesome countenance submitted to the inevitable, and consented to the sentence of 100 blows each to the actual committers of the assault, to be delivered in the presence of the police.  Mr. Lo then gave a sign to the runners, who were proceeding in the gentlest manner to escort out of court the ringleader, who had hired the others and arranged the attack, and had been standing by to direct operations.  Mr. Haas having demanded an explanation of this strange proceedings, Mr. Lo, like a schoolboy caught in the act of scaling a wall, protested that he only wanted to have a few minutes conversation and to punish the man severely himself.  Mr. Haas however pointed out that the man was still in custody of the police, and ordered him forward, when another scene ensued, Mr. Lo bargaining to be allowed to punish the prisoner himself, or at least to let him off with a nominal punishment. After further waste of time, the bargain was concluded by the sentence of six weeks' hard labour.
  The case being concluded, the Prosecutor was informed he could leave the court; but upon proceeding to do so, three of the runners, chagrined at the thought of so  fine a fish leaving their net, placed themselves in his way, one proceeding so far as to attempt to lay hands on him.  This was prevented by the by-standers, and the prosecutor was led out of Court.  At Mr. Haas's request he returned, while Mr. Haas demanded of the Magistrate the cause of this insult to himself.  Mr. Lo again assumed the part of the detected schoolboy, and replied that his people only wanted to assist the prosecutor, a statement in which Mr. Haas openly declared his disbelief, to the evidently increasing depression of M. Lo, whose hopes of a fine fish had been rudely dashed aside.
  Now if the issue were not of the greatest importance to residents, both foreign and native, in the Settlements, all this schoolboy's play might be passed over as simply beneath contempt.  Both civilly and criminally h Mixed Court is rotten to the core; and it is as impossible to obtain a judgment in a civil action as to procure the punishment of an offender in a criminal case, unless it should happen that the defendant had neglected to square matters in the usual channel.  In this respect one magistrate is as bad as another.  Huang was probably truculent, Lo is certainly weak; but the change is only from King Stork to King Log.  The real difficulty is in the composition of the Court, and the supposition that any native magistrate, however upright or well intentioned, could override the traditions of his surroundings.  The Court is really run by the secretaries and runners, who have their own ends in view, and given such a mass of corruption as a substratum we can readily perceive that the magistrate in his own interest will fall in with the current.  The true solution is to insist that all the constables and secretaries of the Court shall be appointed by the Board of Consuls and be paid regular salaries out of the municipal revenue, and that a permanent judge versed in Chinese as well as European practice, be appointed in like manner.  The Chinese magistrate may then well represent the dignity of the Emperor, and residents be spared the contemptible displays which bring discredit on the Government itself.
  We trust the Municipal Council will no fail to bring the matter forward at the approaching Ratepayers' Meeting, and will come prepared with some definite proposal.  The community will not grudge the means to purify this sink of corruption.

 

North China Herald, 5 September 1885
THE MIXED COURT MEMORIAL.
WE hope that the benevolent and instructive letter we publish elsewhere upon the Memorial sent by the Shanghai Community to the British Minister on the Mixed Court scandal will be received in a spirit of becoming meekness.  Our Correspondent no doubt represents with approximate accuracy the opinion that would most naturally prevail in a society nine-tenths of which are composed of persons directly or indirectly connected with the Legations or the Customs service, and so far his views are worth considering; for it would be manifestly  unwise of us here to ignore the plain act that the communities of Shanghai and Peking are essentially different in a variety of respects, and can scarcely be expected to take the same view of any subject under Heaven.  Where one set of opinions are based on practical considerations and everyday worldly experience, the other set are influenced by service-traditions; where, in one case, the paramount question is one of commercial interests, in the other it is one of settling vexatious disputes with as little trouble between the Yamen and the Ministers as may be.  Of course, then, where we see a public-spirited and energetic officer shelved, virtually for having fought the battle of even-handed justice against gross veniality rather too vigorously, the critics of Peking, smiling indifferently down upon our sordid struggles from their dusty Olympus, see only another frivolous attempt, on our part, to ride roughshod over the long-suffering Chinese, and thereby to disturb their own dignified and most diplomatic languor.  For this, we say, we must be prepared; and we thank our Correspondent, - the smartness of whose style however is scarcely consistent with strict Olympian etiquette, except in so far as it takes the place of logic and common-sense - for his good-naturedly intended warning.  Let us, therefore, accept the lesson he gives in a docile spirit and learn wisdom from his teachings.  In how many ways have we transgressed!
  First, we memorialized Her Majesty's Minister before we knew that His Excellency had assumed his ministerial functions.  The mere fact that his appointment had been gazetted is, of course, nothing to the pointy; we ought to have known that he only removed a portion of his furniture from the inspectorate-General to the British Legation, and given full weight to the consideration that such a process, owing to certain municipal peculiarities which distinguish the capital of China, cannot be completed under several weeks.  To borrow our Correspondent's admirable metaphor, "it has the look of tilting at the knight while he is changing horses," - a mean trick, which might no doubt have resulted in the knight's ignominiously falling between Rosinante and Bucephalus.  Secondly, we have been too magnanimous in attributing Mr. O'Connor's blunders to youth and inexperience.  We apologise and humbly, and acknowledge on the authority of our Correspondent, that he was at least old enough to know better.
  Then our Mentor tells us of a new and more excellent way of maintaining good relations with the Chinese; the employment of moral instead of physical force.  Nothing could be more admirable, more philosophical.  But our Correspondent is evidently in error about his facts.  We can assume that it was not Mr. Giles who used physical force on Mr. Huang, but Mr. Huang who used physical force on Mr. Giles; nor have we ever forgotten decorum so far as to advocate he application, to the person pf Mr. Huang, of that most useful vegetable without which no city, department, or district in China could be governed.  But passing over this trifling inaccuracy, which after al is a mere detail, we are now informed that moral force is to supersede not physical force only, but law. "For pure commercial transactions," we are told, "the Chinese do better without law. Where there is no law there is no transgression." The sacred words fall soothingly on our ears from the Olympian clouds.  Our Correspondent's real meaning becomes plain a little further on; at this stage being somewhat involved in mystery. The great truth he is seeking to inculcate is evidently this: "If there were no law-courts, you would not have transgressed as you have."  We have "debauched the commercial consciences of almost all Asiatics who have come within the influence of the English wig and gown. The Mixed Court had become a Mixed Curse, and we have committed the unpardonable sin of memorializing the British Minister to have it re-modelled.  We have been complaining for some years past that the Mixed Court is in a great measure incompetent and useless, that the whole system is radically imperfect and that until the late British Assessor came it was almost impossible to recover debs or secure the enforcement of decisions.  We have thus committed two transgressions, which we should have escaped had there been neither law nor law-court to tempt us.  First, we ae guilty of having such an evil institution in our midst; secondly we are guilty of having memorialised for its reform.  We are between two horns of a dilemma, and our Correspondent, seated comfortably on his dust-cloud in Olympus, cares not one jot which of them we select for our own perch.

 

Source: North China Herald, 15 October 1885


THE "JAPANESE MAIL" ON THE MIXED COURT AFFAIR.
IN his issue of the 29TH September the Editor of the Japan Daily Mail after commenting in some remarks on he Mixed Court affair goes on to say:-
  It is singular that the English press in China should persist in its ill-informed view of the Mixed Court affair.  Everybody knows now that the blow which the Chinese Magistrate was supposed to have struck Mr. Giles with his pen was purely accidental.  It was doubtless a very reckless and dangerous proceeding on Mr. Huang's pat to flourish such a weapon as a pen; especially an inky pen.  But even a Chinaman can become excited. After Mr. Huang's pen had been knocked out of his hand by his angry colleague, he gave the latter what has been gravely termed a blow, but what was in reality a push.  Possibly he apprehended that the process of violent disarming which he had undergone by the "knocking away" of his pen, was a prelude to something more serious. At all events he shoved himself away from his adversary, and then Mr. Gils, faute de mieux, knocked down a table.  It was an unseemly quarrel, which with a little more judgment and forbearance might easily have been avoided.
  We also regret that Sir Robert Hart did not assume the duties of British Minister for just so long as would have enabled him to unbosom himself to the Shanghai memorialists.  Of course he was a consenting party throughout to Mr. O'Connor's action.  And very much more than a consenting party, unless rumour is greatly mistaken.
  The peculiar position of the Mail in journalism prevents us from asking the Editor, as we should ask the conductor of any other newspaper on China or Japan, what good object he proposed to himself when he thus backed up a stupid and rude mandarin n at the expense of a British officer.  We should probably get no answer at great length, in which what we complain of would be repeated, with the addition of charges and insinuations against foreigners in his part of the world, and praise of Japanese and Chinese officials.  But the assertion that every one knows now that Huang's blow was accidental is a little too cool.  Nobody except he Editor of the Japan Mail knows anything of the kind; and so far as we are aware not even a Chinese official had put forward such an excuse.  In the columns of a Japan native paper, where assertions are made about foreigners so absurd that it is difficult to guess whether they are inspired by ignorance or impudence, we should have been surprised to meet with Mail's history of what occurred in the Mixed Court.  But in an English newspaper it is too much.  Sir Robert Hart will scarcely thank the Mail for saying that he was throughout a consenting party to Mr. O'Connor's action, for that would make him out to have laid a snare in a fiasco.  Sir Robert, when he takes a thing up, is not accustomed to allow it or himself to collapse.  And what happened in the Mixed Court affair was, that the Tsung-li Yamen being obstinate, Mr. O'Connor became helpless, and the final arrangement was made elsewhere than in Peking.

 

THE NATIONAL ARCHIVES,
FO 881/8794
December, 1906

CONFIDENTIAL
(8794)

Acting Consul-General Brenan to Sir E. Satow
(No. 48)

Sir,
   I HAVE the honour to inclose a Memorandum on the working of the Mixed Court, which has been prepared by Mr. Mayers.  It shows how by degrees the authority of the Chinese rulers over the native population within the Settlement area is passing into the hands of the foreigners.
  The prosperity of the Chinese who on account of their business relations with foreigners have to live within the foreign Settlement offers a great temptation to the authorities, and it is very necessary to protect them from unjust interference.  This partial immunity from official operation tends also to make Shanghae an asylum for persons whose political opinions bring them under the displeasure of the Chinese authorities.  To what extend protect shall be given to such persons could be exactly laid down.  The rule at present is for each case to be dealt with on its merits, and the question if one which must be left to the discretion of the consular Body.  It will, however, be seen by the inclosed report, that the Mixed Court has quite outgrown the rules originally laid down for its guidance in 1869, and with the development of Shanghae since that date this has been inevitable.
  I have the honour to suggest that the British, German, and United States' Assessors should draft a code of revised regulations for submission to the Diplomatic Body at Peking.
                               I have, &c.
                                                    (Signature of Consular Officer in charge of
                                                            Consulate-General at Shanghae),
B. BRENAN.

 

FO881/8794

Inclosure 1.
Report on the Mixed Court at Shanghae.

Introduction.

Nature of the Court:-
The Civil Court.
The Criminal or Police court.
Warrants, their issue and execution -
In criminal cases.
In civil cases: (a) purely Chinese; (b) Mixed.
In cases arising in the native city.

The question of Mixed Court reform -
The rank of the magistrate should be substantive Sub-Prefect, and he should be paid an adequate salary.
The Court runners should be done away with and their places taken by Municipal employees.
The procedure of the Court - (a) criminal, and (b) civil - should remain materially the same, but should be defined by revised rules.
Court fees and costs.
Counsel should accept the authority of the Court.
Recapitulation, 1, 2, and 3.

INTRODUCTION
  IN order that the points dealt with in this report may be intelligible without any intimate local knowledge of the complicated legal and political conditions which prevail at Shanghae, a brief historical summary may recall to mind the circumstances from which these conditions spring.
  After the occupation of Shanghae by British troops under Sir Hugh Gough in 1842 the port was opened to foreign trade by the treaty of Nanking.  British interests were left in the hands of Captain Balfour, the first British Consul at Shanghae, and he arranged with the Chinese authorities that a tract of land roughly a mile square, and situated some half-mile north of the native city walls, should be set aside as a Settlement for British merchants.  By 1849 this Settlement was populated by over 100 foreigners, mostly British.
  In this year the French also obtained a site for a French Settlement on the land between the city and the British Settlement, and the United States established a Settlement in the same way on the other side of the British Settlement.
  As the place developed I became necessary to have some common laws to which all living in the Settlement should be equally amenable, and local self-government was introduced in 1854 under a code of so-called "Land regulations," whereby the land-renters were authorized by the sanction of their home Governments to elect a Municipal Council with power to collect taxes for the purpose of carrying out public works, and, among other things, of establishing a municipal police force.
  This change relieved the three principal Consuls of all direct administrative work, which in future was delegated to the Municipal Council.
  In 1866 the Land Regulations were revised and augmented, but the French separated themselves from what had become already a cosmopolitan Settlement, and set up a Municipal Council of their own in their own Settlement, with a separate code of local Regulations.
  We are, however, only concerned in this Report with the Anglo-American, or, as it is now called, the foreign or cosmopolitan  Settlement.  The Municipal Council, holding the delegated authority of the Consuls of Powers having Treaties with China, were authorized, as has been stated, to maintain a police force for the preservation of order in the Settlement.  The foreigners coming under the notice of this department could, of course, by the principle of extra-territoriality already alluded to, only be tried by their own Consuls.  Chinese offenders in the same way could only be tried and punished by their own authorities.  Originally it was the practice to send such native offenders to the District Magistrate in the Chinese city for trial.  But this was soon found to be inefficacious, and the Taotai was moved to send a deputy into the Settlement to function as Magistrate. This officer used to hold his Court in the British Consulate, in co-operation with the Vice-Consul or other British Consular officer.
  In the latter sixties an attempt was made to place the Mixed Court on a sounder footing, and the regulations of 1869 were framed and sanctioned by Her Majesty's Minister and the Chinese Government.  It is upon these regulations that the Mixed Court of to-day stands.  Though they were only sanctioned by the British Minister and not by the other foreign Representatives in Peking, they have been accepted ever since by all nationalities.  Since that time the foreign Settlement of Shanghae, without losing its predominantly British characteristics, has nevertheless become more and more cosmopolitan.  Its area has been increased four-fold; its population has more then doubled; but the Mixed Court has passively withstood the many attempts which have been initiated locally during the last thirty tears with a view to make it, too, grow with the times.
  Note:- The Mixed Court Rules of 1869 are published in Mayers "Treaties with China," p. 236.

- Nature of the Court.
  The Mixed Court at Shanghae is composed of a Chinese magistrate of the rank of Sub-Prefect, who is not a commissioned officer, but a Wei-Yuen or deputy appointed by the provincial authorities at the nomination of the Shanghai Taotai, and of Consular Assessors, who are usually the Interpreters of their respective Consulates.
  The Magistrate has a large native staff of clerks and "runners,"  and his establishment forms a Chinese Yamen within the foreign Settlement.  Attached to the Court there is accommodation for some thirty prisoners, where debtors and female offenders are locked up.  All other prisoners are taken charge of by the municipality.
  The duty of the court is to take cognizance of, and decide, all civil and criminal suits and actions which arise in the Settlement, either between Chinese or between foreigners and Chinese, where the latter are the defendants.
The Civil Court.
Purely Chinese cases. - In civil actions between Chinese the magistrate adjudicates alone.  The plaintiff files his petition at the Court and the magistrate issues his summons or warrant for the defendant's appearance.  Neither the consulate nor the municipal police intervene in such cases, except in so far as concerns the execution of the summons or warrant (vide section on "Warrants").  When the parties are ready for hearing, the Magistrate deals with the case just as if he were a District magistrate in a native city.
Mixed Cases. - In civil actions between foreigners and Chinese (defendant) the foreigner files his petition with the Assessors of his Consecrate.  It is then forwarded to the magistrate, and when he has summoned, or arrested, the defendant, always under the condition set out ion section on "Warrants," the case is set down for hearing.  The Assessor notifies plaintiff, and at the appointed time sits with the Magistrate at the Court to adjudicate upon the case.
   (Civil cases are usually heard in the afternoon, as all the mornings in the week are taken up by the Criminal Court.)
  Both parties may be, and most frequently are, represented by Counsel, who provide their own interpreters.
Appeal.
  If the Assessor cannot agree with the Magistrate in deciding the case, an appeal may be instituted to the Taotai and Consul-General concerned.  Also, if either party is dissatisfied with the finding, he may appeal to the same higher authorities.
Records.
  Minutes of the case are recorded by the Court writer, while the Assessor makes notes on the evidence.  The Magistrate makes no notes.
No Court Fees or Costs.
There are no Court fees, and no costs are allowed.
Judgment, how enforced.
  When judgment is given for the plaintiff, the defendant is given so many days in which to settle in, and is released on security if he can find a guarantor satisfactory to the court.  Otherwise he is locked up and an order of the Court is issued against his property.  If he had no property he is liable to be imprisoned at the pleasure of the court, or if he has been guilty of fraud he may be sentenced without further process to a specified term of imprisonment.  In such cases the prisoner serves his sentence under the control of the municipal police, who enter the charge of fraud against him on their records.
Chinese the Language of the Court.
  The language of the Court is, of course, Chinese, and the Magistrate knows no other tongue.  If the foreign plaintiff has no counsel and no interpreter, the Assessor has to play the somewhat embarrassing part of Advocate and Judge at the same time.
The Criminal or Police Court.
  The foreign Settlement, which now has an area of 8 square miles and a native population of 300,000, is policed entirely by the municipality, which employs a highly efficient force of European, Indian, and native constables and detectives.  All cases involving breaches of the peace, breaches of local Regulations, or crime which may arise within the Settlement pass through the hands of this department.  The criminal Court sits daily to hear these cases.  Unlike the Civil Court, there is no division between purely native vases and cases in which "foreign interests" are at stake.  All cases coming under the cognizance of the police are presumed to possess a "foreign interest," and therefore the principle has grown up that the Magistrate cannot try such cases without the co-operation of a Consular Assessor.  This principle is a most necessary one, as it defends the municipal police from the danger of having their efforts minimized by a weak Magistrate, and it also checks all manner of abuses which the Magistrate might be tempted to indulge in if his foreign colleagues are not there to watch him.
  The Criminal Court is, then, essentially and entirely a Mixed Court.  The present arrangement, which has obtained for many years, is that the British Assessor sits three times a week, the American twice, and the German once.  The Magistrate sits every day, unless, as sometimes occurs, there is an Assistant magistrate, in which case he relive his chief von some of the days.
  The police present their various cases to the court on duplicate charge sheets, one in English for the Assessor, and one in Chinese for the magistrate.  The case is then conducted by the police inspector of the district in which it occurred.  He states his case, in English, to the Assessor and calls his witnesses, while his native detective does the same in Chinese to the magistrate.  The wiriness's for the prosecution are heard and examined by the Court, and then the defence follows with cross-examination.  The various charges brought before the Court extend from breaches of Municipal regulations to grave cases of burglary, arson, forgery, coining, series assaults, robbery with violence, &c.  The Court is only competent to deal with manslaughter or murder cases as a Court of First Instance, such cases being sent to the native city for further trial.  In all other cases the Court has, by practice and custom, power to inflect heavy punishment by flogging, canguing, fining, imprisonment with hard labour up to two years and occasionally for even longer terms, and also deportation from Shanghae.
  As has been stated, all sentences of imprisonment for criminal offences are served in the municipal gaol or police cells.  The former establishment, which has only existed for two years, had proved a great deterrent to crime, and the Council is doing a wised thing in making provision for a larger gaol which will accommodate all the prisoners sentenced by the Court, as detention in the police cells is not a deterrent punishment of sufficient severity.  Mere deprivation of liberty does not appear to afflict the Chinese delinquent; what he does object to is having to keep silent, to do work, and to be kept under strict gaol discipline.
  The Criminal Court operates, with regard to the punishments inflicted in each particular case, under no code.  By custom a certain scale of punishments exists, but it has never been reduced to writing, and varies with each Magistrate or Assessor.
Warrants.
  It remains to explain now the system by which warrants for the arrest of Cheese are executed in the Settlement:-
In Criminal Cases
Application is made by the Police Department to the Court in writing.  The magistrate then issues his warrant, which specifies the individual to be arrested, the prosecuting party, and the nature of the charge.  This the Magistrate hands to a runner, whose duty is to proceed to the Senior Consul and het the warrant countersigned.  Further, if the individual to be arrested is known to be in foreign employ, the runner has to get the warrant countersigned again by the Consulate of the foreigner's nationality.  Having fulfilled this formality, he takes the warrant to the municipal police, who register it, and depute a detective to co-operate with the runner in effecting the arrest.
  In Civil Cases.
Purely Chinese Cases
On the application of the plaintiff the Magistrate issues the warrant (or summons), and the runner has to fulfil the same routine and obtain the co-operation of the municipal police before the warrant can be legally executed.
Mixed Cases
The same principle obtains, only that the application emanates through the consulate of the plaintiff's nationality.
Extradition.
In cases arising in the Native City.
The city Magistrate or the Taotai applies to the magistrate to issue a warrant for the arrest required.  Their own warrants do not operate in the settlement.  When the Magistrate issues the Mixed Court warrant the same routine is gone through as in the previous cases, and the prisoner, when arrested, is brought before the Court when an Assessor is sitting.  If the latter is satisfied that the charge is a bona fide one, the prisoner is handed over to the native authorities.

The Question of Mixed Court Reform.
  The above sketch of the Mixed Court as it now is may serve to show that the development of years has wrought no essential change in the principles under which it operates, though certain ameliorations have gradually been introduced by the force of circumstances rather than by premeditated design, and which have carried the Court a long distance beyond the limitations of the Rules which still remain its actual charter.
  It is, however, strongly felt in Shanghae that the present time is opportune for revising these Rues, which now have by practice become inadequate and archaic.  As will have been seen, the Court is at best a clumsy machine, but its greatest recommendation is that, which much labour, it works.  How far it would be expedient, in the writer's opinion, to systematize and facilitate its working under a new code of rules is set forth below.
  The most recent agitation on the part of foreigners in Shanghae on this perennial question took place early in 1898, and certain suggestions were formulated by a Committee of lawyers who were invited by the Municipal Council to carry out this work.  Their Report is published in the Municipal Council report for that year and is, in the writer's opinion, rather too vague to be of operatically value, except as a general index of what was then desired in the way of change.
  Since that date the Mixed Court has been left in comparative peace.  In the Spring of 1899 the old Court building in the Maloo ceased to exist, and a move was made to the New Court in West Hongkew, which is a fine building of foreign design, spacious, though architecturally unsuited to its requirements, while its situation is far removed from the business quarter of the Settlement.
  The change of building made it easier to introduce superficial improvements in the Court procedure.  The changes which have been effected in the Criminal Court are principally that the municipal police have a stronger position in maintaining order during the proceedings and in preventing the confusion which the local press described in former years as having been its salient characteristic.  That order should be preserved in Court sounds such an obvious necessity that it need not be mentioned, but, as a matter of fact, it is a point which caused an infinity of trouble to insist upon, and which requires an Assessor's constant attention, as most Chinese Magistrates are callous to confusion and jealous of interference.
  A certain scale of punishments has also been arrived at, more by accident than by design, which equalizes sentences as far as is practicable in a Court which deals with cases in so summary a manner that old offenders are often sentenced to long terms of imprisonment within three minutes of a fresh charge being preferred against them.
  In conducting their cases the municipal police have also greatly improved, and pay more attention to the laws of evidence than they used to.
  Hardly a day passes  without several foreign plaintiffs or waitresses appearing in the Criminal Court, and, owing to the improvement in outward conditions and to the tractability of the magistrate in passing the sentence dictated to him by the Assessor, they have generally gone away satisfied.  The Municipal Council have generally got what they wanted also, and thus peace has outwardly prevailed.  But the Assessor has to fight many battles in secret, ands without advocating such a responsibility as would be entailed by reducing the Magistrate to a mere figurehead, a scheme which is favoured by many persons in Shanghae, the writer is of opinion, after three years' experience of the Court, that certain changes in the existing state of things are highly desirable.
The Rank of the Magistrate.
  The most important point which has been strongly urged by British Assessors in the various Reports on record regarding this subject is in respect to the official standing of the Chinese Magistrate.  Hitherto the Magistrate has been a deputy of the Shanghae Taotai with the brevet rank of a Sub-Prefect.  He is thus not in a position to be recognized locally or provincially as a substantive official; to the official classes in Shanghae as well as to the Shanghae Hsien and the neighbouring territorial authorities he is the Taotai's Wei-Yuen (deputy) and nothing more.  Brother officials do not feel that they need take him very seriously, and the difficulty which is from time to rime experienced in getting his judgments enforced when the defendant may happen to possess some official brevet rank is so well known that it need not be dealt with at length here.
  The remedy which has frequently been suggested is that the Chinese Government should be moved to appoint a substantive Sub-Prefect as Mixed Court magistrate.  It has also been suggested, unofficially, that the magistrate should be a Prefect or even a Taotai, but it appears to me that by making his rank higher than that of a Sub-Prefect the object in view would be defeated.  The object in view is, as has been implied, to invest him with sufficient authority to enforce his judgment upon all Chinese, irrespective of rank, within the settlement, and also to give him a substantive though particular position among the Chinese authorities of this Province.  While still being subordinate to the Taotai, he would, as a substantive Sub-Prefect, not be absolutely in the Taotai's hands as he now is, and his position vis-a-vis the Shanghae Hsien, would be superior rather than inferior.  If, on the other hand, his rank were that of a Prefect, it is to be anticipated that there would be friction with the Shanghae Hsien, who is already subordinate to the Prefect at Sungkiangfu.  If, further, he had a Taotai's rank, the frication would be with the Shanghae Taotai, who could disclaim all responsibility regarding the Magistrate's action which the Consul had anything to complain of.
  As a substantive Sub-Prefect, the Consuls would still have direct recourse to the Shanghae Taotai as the magistrate's judicial superior.  Appeals from the mixed Court could still be heard by the Shanghae Taotai and the Consul concerned.  Having substantive rank, an arrangement might also be made to invest the magistrate with the power to hold inquests in the Settlement.  At present the Shanghae Hsien has to be notified of any deaths under suspicious circumstances, and he then comes to the settlement to hold his inquest.  This could be done with less trouble by the Mixed Court Magistrate.
Salary of Magistrate.
  Analogous to the question of rank is that of pay.  The Magistrate now receives from the Taotai 750 taels per mensem for the whole upkeep of the Court, inclosing his own salary, pay of clerks, runner's wages, food of prisoners, debtors, and female offenders, coal, gas, &c.  He also received a very small percentage of the fines inflicted, viz., half of all fines amounting to 10 dollars and over.  The rest of the fines go to the police.  Last year the police got upwards of 15,000 dollars and the Magistrate only 2,650 dollars under this head.  This income doses not allow of saving.  The Magistrate's expenses are considerable.  He has to entertain the numerous officials passing through Shanghae, and provide them with hired carriages while in the Settlement, and generally pay them attentions which cost money.  At New Year and on birthdays he has to give presents to his superior officers, the Taotai and the Governor at Soochow.  The surplus required has to be squeezed out of litigants in "purely Chinese cases.
  Increase Suggested
  This condition of things is of course more or less inevitable, but it might be considerably bettered if the Chinese Government could be persuaded to pay the magistrate an adequate salary - say 1,000 dollars a month - and further allow him a sufficient amount for the pay of his clerks and the upkeep of the Court.  If at the same time it were clearly understood that his prescriptive right to squeeze was thereby cancelled, it would at least be an instructive side-light on the problem whether the Chinese officials would or would not cease to squeeze if they were properly paid.
The Court Runners
  Having proposed a means for strengthening the Magistrate's position as a Judge, I would next propose that his executive functions be largely decreased.
  As has been stated, the Mixed Court is a Chinese Yemen in our midst.  But while the Chinese residing in the Settlement must continue to be subjects of the Emperor and amenable to his jurisdiction, there is no reason why the executive work of his Court in the Settlement should not be largely carried out by the municipality, which acted performs such duties for the various Consular Courts in Shanghae.  When the British, or German, or American Court issues a warrant for the arrest of one of its nationals, the warrant is handed - for convenience sake - to the municipal police to execute.  Now the existence of the Mixed Court magistrates' multitudinous staff of runners is no more necessary to him that the upkeep of a fierce of constables is to the various Consulates.  The requisite establishment is supplied by the municipal police.  If the Chinese Government could be prevailed upon to do away with the Court runners, and if in their place the Municipal Council would agree to detach and pay a certain number of native constables and detectives to do duty at the Mixed Court - say for periods of three or six months, after which they would revert to the polite fore and be succeeded by others at the Court - we would hear less of "squeezing" by the myrmidons of the court, or irregular arrests, the suppression of warrants, &c.
  The present runners system is without suit a public nuisance.  They get very little pay and have to live by squeeze.  Their powers are so hedged in by the complicated and tedious routine which has to be observed before a warrant can be executed that it is small wonder that they occasionally break out into irregularities.  If this organization were done away with, the Magistrate would deal directly with the Police Department. Warrants would be handed to the municipal detectives to execute, the system of counter-signature by the Senior Consul might then be dispensed with; even that b y the Consul of the foreign employee (if any) might possibly disappear.  There would then be better chance of arresting criminals and defaulters expeditiously, and before they have had the chance to take the daily steamer to Ningpo.
  The magistrate, deprived of his runners, would have all their legitimate work done by the special duty men lent to the Court by the Municipal Council.  The remainder of the Court staff, viz., clerks, writers, recorders, and such like office employees, would continue to be on the old footing.
The Procedure of the Court.
  Having obtained a Magistrate of sufficient rank to enforce his own judgments and to inspire respect in the minds of the neighbouring territorial authorities, having seen that he gets a reasonable salary and is no longer driven to commit irregularities, whenever the foreign is not watching him, in order to keep out of debt, having substituted the municipal employee for the corrupt Yamen runner and thereby swept away one of the anomalies of Shanghae which is really a constant obstacle to the good government of the settlement, it now remains to consider the question of procedure in such a reformed institution.
  My strong conviction is that any  tendency to educate the Chinese up to the European idea in the matter of legal formalities and technicalities should be repressed, except in  so far as they make make proceedings more simple and more orderly.
The Criminal Court
I believe it is generally admitted that the Criminal Court works fairly well. That it has plenty to do is proved by the Municipal Council statistics for 1900, which show that the court deals with an average of 2,000 prisoners every month.  This means that on an average eighty prisoners have to be disposed of somehow between 10 a.m. and 1 o'clock on the six days a week that the Court sits.  If anything more than the barest formalities were introduced into the hearing of such a daily calendar things would come to a standstill; and, as long as the Chinese are satisfied that justice is done to themselves in the Court, it would be immature to disturb the existing summary nature of the Criminal Court.  It would, however, be advantageous to place on refried in a revised set of Rules the developments which have taken place since the original Rules were drawn up, and if the municipal police, with their increased powers, were given careful instructions and taught to act with firmness, tact, and respect in all their dealings with the magistrate, there is no reason why the court should not become a highly efficient machine for dealing with the 25,000 native prisoners who may be expected to come before it annually.
The Civil Court.
The procedure in this Court has already been described in the introductory pages.  Under the changes I have ventured to suggest, arrests could be effected expeditiously, and thus foreign plaintiffs would be spared the bitterness of finding that the very measures which they have themselves assisted in introducing, in order to safeguard the liberty of Chinese in the Settlement, react on occasion against themselves, by allowing the Chinese defaulter ample time to escape from the immediate clutches of the law.
  The system which is in vogue - for British plaintiffs at least - viz., of filing triplicate petitions in English and Chinese, is somewhat cumbrous in petty claims; but it is difficult to think out a simple plan. A standing rule might be made that claims fewer than 1000 dollars should be disposed of summarily without petitions being prepared, and simply on the written application of the Consulate concerned.  This is, in point of fact, frequently done now.
Court fees and Costs.
  There remains also the question of Court fees.  The changes suggested would demand an increase in expenditure, and it is only fair that a light and simple system of fees should be introduced, unless, on consideration, the trouble of collecting proves to be greater than the advantages to be derived by such a measure.  I would suggest that in all cases where the municipal police prosecute in the Criminal Court on behalf of any individual, whether fir feign or Chinese, they should be empowered to charge the party they represent a fee of two dollars for each warrant or summons they execute; while in the Civil Court a similar fee should be payable to the Court for each warrant or summons issued.
  With regard to legal costs - although it is often hard on a foreign plaintiff to be driven to prosecute a native debtor and to employ a lawyer - many difficulties would present themselves if cists were allowed.  There would be no basis upon which they could be taxed; and the advantages to be e derived by fir feign plaintiffs would not be many.
Counsel.
I have left to the last the point which seems to me to be the most important under this heading of Court procedure.  It is the question of the appearance of counsel before the Court.  As things are now, either side may employ legal advice in booth criminal and civil cases.  This principle is a good one, and it only requires to be regulated.  Its only objectionable feature is that the Court has no authority whatever over the advocate at its bar.  If he is guilty of any indiscretion the Court can, it is true, rise and refuse to hear him further, but this is not a particularly dignified position to be in; it is victory a la Chinoise.  The question is one which more intimately concerns the Assessors than the magistrate, and I think it is the general opinion among these officers that some system should be inaugurated whereby advocates practising in the Court should sign some form of roll, and thereby be admitted to practises so long as they comply with the conditions set forth in the declaration embodied in the roll.  Such conditions would sufficiently cover the necessary ground if they expressed the advocate's willingness and intention to treat the Court with the respect due to a properly constituted Court of Justice, and to comply with the directions of the Assessor in the same way as if he were a Magistrate in a Court of the Advocate's own nationality.  Such an engagement would in its observance prevent certain difficulties which have occurred in the past from time to time and which may always occur again.  The advocate would always have the right to appeal to the Assessor's Consul-General, and even to his Minister at Peking, if he considered he had been unjustly treated.
  The breach of the engagement should entail prohibition to practise in the Court for a specified time to be agreed upon by the Court.
Recapitulation.
To recapitulate the suggestions made:-
The Magistrate should be a substantive Sub-Prefect, furnished with a seal issued from Peking, and not as present by the Provincial Treasurer.
He should be paid a salary sufficient for his reasonable requirements personally, and a separate allowance for office expenses; both to be paid by the Chinese Government.
His existing staff of runners should be abolished and their place taken by police constables and detectives in the employ and pay of the municipality.
The procedure of the Court, without being materially altered from what it now is (subject to changes entailed by the above two suggestions), should be clearly set down in a revised set of Regulations.
(Signed)  D.  F. MAYERS.
Shanghae, June 27, 1901.

 

The Barrier Miner (Broken Hill), 3 January 1927

TROUBLED CHINA.

SHANGHAI MIXED COURT HANDED OVER TO CHINESE.

(A.P.A. Message.)

Shanghai, January 2.

   The handing over of Shanghai's international mixed court to virtual Chinese control which took place yesterday, marks an epoch-making change in foreign relations.  It is regarded by foreigners with concern, as amounting to a wedge thrust in for the abolition of their extra territorial rights and as yet another Chinese diplomatic victory over the Powers. It is feared that the courts will be used for political ends, and that foreign litigants will enter under prejudice from the beginning.  The outlook is gloomy, and foreigners are rapidly losing faith in Ministers who are fast stripping their nationals of the few remaining means of protection, without which residence ion China will be intolerable.

Note

On controversy in the Mixed Court, see Tsai Ah-Kao and Yin Yin Chuan, 1885.

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