Koyander to Seen And Agreed To. J. H. Ferguson. Ferd. de Luca. Hub. Serruys. R. G. Y Ossa. Hoffer de Hoffenfels. Patenotre, October 31, 1879

report of the committee on judicial questions.

The result your committee has arrived at, after examining most carefully the existing treaties as well as the practice of the different consular and other courts in China, is, that while there can be no doubt that as far as criminal jurisdiction is concerned the authorities of the accused alone are entitled to take cognizance of the case, the text of some of the treaties is far from authorizing the adoption of the same view with regard to civil cases. In practice, however, many if not all of the foreign courts established in China have been leaning more or less toward the principle that even in civil cases the court and the laws of the defendant alone are to be appealed to.

This state of things is the more unsatisfactory as while it exists de facto it is based more upon the convenience of foreigners than upon their clearly expressed treaty rights, and it opens the way to recriminations from the Chinese side which it would be difficult, in many instances at least, to meet fairly.

Your committee is therefore of opinion that it would be desirable for all the governments having treaties with China to agree to and act upon the same principle in civil as well as in criminal cases, viz, the general adoption of the rule that the legally constituted court of the defendant, respectively, of the nationality to which the accused belongs is to be considered as the one to be applied to

This principle would involve, of course, the recognition of the fact that the laws applied should be those of the nationality of the defendant or accused.

This principle once universally recognized and there can hardly be any doubt but it will work satisfactorily, at least in the open ports: it would become the duty of the representatives of the treaty powers to obtain the consent of the Chinese Government to it, and subsequently to propose measures which, the principle of reciprocity in China admitted, would work so as to present no difficulty on the part of the Chinese, while on our own side the action of the foreign courts would be left unhampered.

Of such measures, the adoption of which would have to be recommended to the Chinese Government and more or less earnestly to be insisted upon, your committee would consider the most important to be the following:

• The designation of the courts in which, at the several ports, the complaints of our people, criminal and civil, are to be heard and determined.
• The right of the complainants to appear and to produce witnesses in court without being subject to any indignity.
• The enforcement of the attendance of native witnesses.
• The publicity of all trials; the consul of the complainant being entitled to be present, to sit with the magistrate, and to assist in placing evidence before the court.
• The keeping of a full and accurate record in all graver cases and whenever it should be demanded.
• And after these more urgently needed reforms have been obtained—
• The declaration of the rules of procedure which are to govern in the trial of mixed cases against the Chinese.
• The declaration of the laws of China iii commercial matters, or, in default of such laws, the preparation of a code to be used in cases in which Chinese are defendants.
• The establishment of a court of appeal for the revision of all proceedings of the courts of first instance.

While action on the part of foreign representatives with regard to these questions will depend more or less on the sanction to be obtained from their governments of the principle that the court of the nationality to which the defendant or accused belongs, is alone to be considered as the one to be appealed to, there is one question at one of the open ports which calls urgently for immediate action on the part of the foreign representatives, and which, in the belief of your committee, can be taken up without waiting for further instruction.

This question concerns the so-called mixed court at Shanghai. While it cannot he denied that the general influence and working of the court have been not unsatisfactory, the want of power on the part of the magistrate as well as some other defects has been seriously felt.

Your committee propose, therefore, to move the Chinese Government—

• To grant to the magistrate an imperial commission of sub-prefect.
• To agree to the amendment of the mixed court rules so as to avoid the reference of any matters to the district magistrate; or, failing this, to provide for joint action of the mixed court and district magistrate in graver criminal matters, the latter sitting in the mixed court for such cases.
• To make suitable provision for the court; the various native members of it to be paid regular stipends, and an allowance to be made sufficient to cover all actual expenses.

Your committee would at the same time recommend that, in view of a further amelioration of the mixed court, the foreign officials sitting as assessors with the Chinese magistrate should be instructed:

• To use their best endeavors to assure the most careful procedure possible, and, to this end, to urge the adoption of rules of procedure.
• To continue in their own endeavors, as well as to encourage the community at Shanghai in theirs, to provide for the more satisfactory penal discipline of offenders.
• To bear in mind the occasion which exists to frame a code for commercial issues and to report, as a preliminary step toward this end, the precedents already established by the court or elsewhere.

While recommending thee several suggestions to the attention of their colleagues, your committee begs at the same time today before you two memoranda, drawn up by Mr. Seward, on the general question of jurisdiction and on the mixed court, which memoranda have proved of the greatest interest and usefulness to the committee itself, and are, therefore, likely to be so in no Jess degree to the other representatives.