joint note of the foreign representatives to the tsung-li yamên, November 10, 1879

joint note of the foreign representatives to the tsung-li yamên.

The undersigned, comprising all the representatives of foreign powers now in China and interested in the subject, desire to place before Your Imperial Highness and your excellencies certain considerations affecting the administration of justice at the port of Shanghai which have enlisted their attention.

Your Imperial Highness and your excellencies are aware that districts exist at Shanghai which are known as the English and American settlements, and that they contain a considerable population of foreigners of different nationalities, and more than a hundred thousand Chinese,

Your Imperial Highness and your excellencies are aware also that this important community has grown up since the port was opened to trade, and that its existence has called for action on the part of the local authorities intended to enable your own people and the foreigners resident there to live together in comfort and safety, and to provide the means for the speedy determination of all cases of complaint arising between them.

One of the most important steps so taken was the creation in 1864 of a Chinese court for the settlements having jurisdiction over all natives offending against the persons and property of foreigners or against one another, or against whom civil reclamations were to be made.

Your Imperial Highness and your excellencies are aware, further, that the rules devised for this court by the provincial authorities were examined by the Yamên in 1868, and that a code of regulations based upon the old ones was prepared by the Tsung-li Yamên and communicated by the local officers for their guidance.

These rules have been in operation for more than ten years, and while they have failed, as the undersigned believe, to secure perfectly the results which were expected, it is only candid to admit that they have conduced largely to the advantage of the interests involved.

In point of fact, the undersigned are not disposed to indulge in any complaints whatever, although it becomes unavoidable, in asking Your Imperial Highness and your excellencies to consider the necessity of some reform, to point out the evils which have fallen under their notice.

The undersigned feel that it is no part of their duty to speak of the court so far as it relates to issues between subjects of your own empire. It was established, however, to deal more particularly with complaints, civil and criminal, brought forward as against your people by our own, and the undersigned, in speaking of its defects, therefore, do no more than second the purposes which your government had in view in creating it.

The undersigned recognizing, then, the efforts which have been made by your government and by the provincial officers to supply a court which would be competent to deal with such matters promptly and effectively, and the merit of the services rendered by the officers who have acted as judges of the court, desire to call the attention of Your Imperial Highness and your excellencies to those matters which deserve a special notice.

The first of these is the fact that the grade of the officer who presides over the court is lower, apparently, than was intended by the government, and insufficient to enable him to perform efficiently the very important labors devolving upon him.

The rules of 1808 provide that “an official having the rank of sub-prefect will be deputed to reside within, the foreign settlements” as judge of the court. In fact, the officers who have presided in the court have been deputed by the provincial anthorities, and whatever may have been their grade they have not possessed the authority which an imperial commission and seal would have conferred.

Your Imperial Highness and your excellencies will be able to determine with greater certainty than ourselves the extent of the disability thus imposed upon the magistrate of the foreign settlements court. It is represented to us, however, that the magistrate is sometimes unable, in consequence of this disability, to secure the arrest of offenders and to enforce the attendance of defendants in civil matters and of witnesses. It is said even that sometimes the magistrate is unable or afraid to enforce the execution of his own judgments.

Your Imperial Highness and your excellencies will doubtless agree with the undersigned that the failures of the court so indicated are very grave indeed, that they are in fact of fundamental importance, and that the remedy should be applied as soon as possible.

The undersigned are aware that there may be administrative difficulties in the way of granting an imperial commission to the magistrate, but they are confident that your government will be disposed to remove these when you remember the vast importance of the international interests which center at Shanghai, and the annoyances which result when complaints and reclamations are made here.

The undersigned are informed further that the magistrate “is not well provided for, that the support of the establishment is a direct charge upon an allowance made to him in gross, and that in particular the prison attached to the court is insufficient in size and otherwise defective.

The undersigned are prepared to believe that the matter of the manner in which the given officer is compensated and his necessary outlays met is one upon which there may possibly exist some misconceptions, and to admit that they concern more immediately your own system of administration. It seems unnecessary for them to go further in this connection, then, than to say that they are strongly of opinion that the magistrate should receive a stated stipend; that the clerks and bailiffs attached to the office should receive their pay in the same way, but independently of the magistrate, and that allowances for the other expenses of the Yamên, including the prison, should be determined in view of actual necessities and paid upon accounts rendered.

The defects of the prison call, however, tor further remark. It results naturally from its insufficient size that it is defective from a sanitary point of view. It is true, moreover, that it is not well devised, and that even when there are but a few prisoners to be cared for, their condition is such that many fall ill and have to be released. It happens in this way that some persons escape due punishment, while others suffer consequences from their imprisonment far more grave than their offenses would call for.

Imprisonment, again, is frequently used to force the payment of judgments given by the court. The defective condition of the prison makes a further hardship then, not only as respects prisoners, but also as respects creditors. For it happens very often that judgment-debtors fall ill, whether as a result of the badness of the prison or of drugs taken, and are released; thus securing at one and the same time freedom from arrest and the opportunity to still further avoid their just obligations.

There is, moreover, no perfect segregation of prisoners, and they can be communicated with at all times by persons not connected with the Yamên, and for any purpose.

The third matter which calls for attention is the provision of the rules under which graver criminal cases are referred to the district magistrate. It is not understood why such reference, would be necessary or desirable if the magistrate of the foreign settlements court should be clothed with the proper authority of a sub-prefect, for his rank would then be superior to that of the district magistrate. But, however this may be, great inconvenience has been found to attend such references. The Yamên of the district magistrate is in the native city at a considerable distance from the settlements.

The incumbents of that office have many important duties and functions of their own; they are changed frequently in the usual course of official employment, and they are not often acquainted with the peculiar matters which arise in foreign intercourse. It happens, moreover, for whatever reasons, that the district magistrates assume to judge cases in which foreigners are concerned in their absence, in the absence of their witnesses, and without communication with the consular officer concerned. The result is the miscarriage of justice and the encouragement of crime.

The undersigned desire, then, to express the hope that the rules will be so amended as to do away with such references to the district magistrate, or, if there be administrative difficulties of such a sort as to render this impossible, that the magistrate be directed to hear all cases in which foreigners are concerned in concert with his colleague, the magistrate of the foreign settlements court, at the Yamên of the latter, and in the manner prescribed by the rules for the trial of cases when the latter sits alone.

In submitting their views to Your Imperial Highness and your excellencies the undersigned desire to remark further that they recognize fully the difficulties which attend the administration of justice in all countries, and the necessary divergencies between systems adopted by each in view of peculiar wants and circumstances. It is the earnest hope that further consideration of the whole question of judicial relief as between foreigners, and natives will lead to results mutually satisfactory to China and to foreign, states, and to that more perfect harmony in the progress of relations which all desire.

The present communication has reference only to the foreign settlements court at Shanghai. There are other questions relating to judicial relief and embracing all the ports to which the undersigned may hereafter call your attention.

The undersigned avail of this opportunity to renew to Your Imperial Highness and your excellencies the expression of their high consideration.