memorandum on the mixed court at shanghai., October 14, 1879

memorandum on the mixed court at shanghai.

In considering what may be done to improve the mixed court (so-called) at Shanghai, reference may be made to the following printed papers:

• To a memorandum by Mr. Alabaster, Her Majesty’s vice-consul, not dated, but prepared in 1866. With this memorandum, as printed at Shanghai, will be found the rules originally adopted by the Taotai and consular body, and a set of rules for hard-labor prisoners.
• The regulations of the court framed by the Tsung-li Yamên (foreign office) in 1868, and published, as approved by the foreign legations, in Mr. Mayer’s compilation of the Treaties, &c., at page 222.
• The report of Mr. Davenport, Her Majesty’s vice-consul, published in the commercial reports of Her Majesty’s consuls for 1872. (China No. 2.)
• The reports of Mr. Yates, United States vice-consul-general; Mr. Haas, Austro-Hungarian vice-consul; and Mr. Alabaster, Her Majesty’s vice-consul, published in the commercial reports of Her Majesty’s consuls for 1875. (China No. 5, Part II.)
• The report of Mr. Gardner, Her Majesty’s vice-consul, published in the commercial reports of Her Majesty’s consuls for 1879. (China No. 1.)

The several officers named have all acted as assessors in the mixed court, and have spoken of its defects from personal experience of the working of the court.

Reference to the mixed court is made also in the Chefoo agreement (Mr. Mayer’s Treaties, page 46), and in the protocol signed by the foreign representatives at Peking in 1876.

The mixed court at Shanghai might be styled, with more exactness, a Chinese court for the foreign settlements at Shanghai.

In earlier years, Chinese offenders, arrested by the police of the English and American settlements, were sent to the district magistrate by the English or American consul, with a written statement of the offense committee. Criminal charges other than those brought forward by the police and all civil complaints were laid before the Taotai or magistrate by the consul concerned, by letter, and decided by the native official, usually after an ex-parte examination of the persons complained of.

This condition of things proved to be intolerable, and the consular body at Shanghai, in 1864, moved for a reform. It seemed to the consuls of that date, of whom the writer was one, that it was desirable to secure:

• The appointment of a native officer to act as magistrate of first instance in all minor cases, civil and criminal, brought forward by our people against Chinese at the port, including police cases reported by the foreign police force.
• Recognition of the right to delegate officers to sit with the native magistrate so appointed in order to watch proceedings, and to assist complainants in the presentation of their matters.
• An understanding with the intendant of circuit, under which he would hear person ally graver matters, assisted by the chief consular officer of the foreigner concerned, and appeals from the decision of the magistrate of the court above mentioned.

These proposals having been thrown into the form of rules by Sir Harry Parkes and myself, acting as a committee of the consular body, were laid before the intendant of circuit, who approved them, and appointed a wei-yuen, or deputy, to act as magistrate, in accordance with their provisions.

Various attempts were made during the ensuing three or four years to place the court upon a more satisfactory basis; and, more particularly, to secure for it the recognition of the Imperial Government. These culminated in the acceptance by the foreign office here, in 1868, of the rules published in Mr. Mayer’s book.

It will be noticed, on reference to the rules so agreed upon, that an officer of the rank of subprefect is deputed to reside within the settlement, and has jurisdiction in grave criminal cases, which are to be dealt with by the magistrate of the district.

An appeal to the Taotai may be taken when a foreigner is concerned, and he is dissatisfied with the judgment of the court of first instance.

In practice, however, criminal cases of less importance than those contemplated by the rules, particularly those in which foreigners are not directly concerned, are referred to the district magistrate.

More important civil cases have sometimes been heard by the Taotai, assisted by the mixed court magistrate, and sometimes by the magistrate alone.

The failures of the mixed court, as stated by the different foreign officers who have acted in it, are as follows:

Mr. Davenport (report of 1870) declares:

• That the jurisdiction of the court is “too circumscribed;” that the magistrates’ warrants, &c., run only within the limits of the settlements, and that difficulty has been found in reaching the property of defendants when situated in the interior.
• “That the rank of the magistrate is too low;” that the subprefect, so-called, is considered merely a “deputed officer,” and does not enjoy the authority which would belong of right to an officer of independent functions. He points out, in this connection, that the magistrate can use the “bamboo” and “cangue,” but cannot inflict the other punishments laid down in the penal code; that his seal is a wooden one, provided by the provincial government, and not of brass supplied from Peking; that many defendants are superior to him in rank, over whom he can exercise jurisdiction, and that his pay and allowances are inadequate.
• That the magistrate meets with difficulties growing out of the fact that there is no reciprocity between his court and the supreme court; that is to say, that while a consular officer sits with the magistrate for the trial of complaints against Chinese, Chinese officials have no functions in the supreme court.
• “That the inadequacy of punishments inflicted encourages crime.”
• “That British subjects are reckless in their dealings with the natives,” making advances without security and contracts without regard to formalities.

Mr. Davenport recommends—

• That the mixed court should be placed under the direct authority of the intendant, and all writs should be issued in his name.
• Under this system he believes that conflicts of authority between the mixed court and the district magistrate would be avoided; that the court would enjoy greater consideration in the eyes of the natives, &c.
• That all cases between Chinese and British subjects should be tried by the consul and intendant of circuit.
• That a system of hard labor would have a deterrent effect upon criminals, and might be instituted by the municipal council.

Mr. Yates (report of 1875) states briefly:

• That the magistrate is a wei-yuen, or deputy, and, as such, disinclined to deal with graver criminal cases. Such cases are referred to the district magistrate, and in his court there is no provision for the appearance of prosecutors or the presence of consular officers.
• That the magistrate appears to be unable, or to fear, to bring to bear in important civil cases any means to enforce his judgments excepting persuasion, the promotion of composition between the parties, and the imprisonment of the judgment debtor.

Mr. Yates believes that the mixed court should be made a Foo Min Tung Chih Yamên, and states that this would give the magistrate “the judicial authority of a district magistrate for the district comprised within the settlements.” He thinks that the system of punishment is essentially Chinese, and while he fails to see how it can he changed, believes that it answers very well.

Mr. Haas (report of 1875) is of opinion—

• “That the regulations of the court are vague, and give nearly no power to the magistrate.”
• That the actual position of the Chinese magistrate is not that of a real magistrate, but that of a delegate of the Taotai.

He advises—

• That the magistrate should be styled Tung-Chih, which would give him powers “adequate to the position.”
• That he should have a more liberal salary and sufficient allowances.
• That the prison and other accommodations of the Yamên should be improved.
• That the practice of sending offenders to the district magistrate should be abandoned.
• That the inspector of police should know the Chinese language.

Mr. Alabaster (report of 1875) declares that “the mixed court has been productive of immense advantages,” but that it is far from perfect, chiefly for the following reasons:

• “The absence of a definite code of law.”
• “The unsatisfactory nature of the punishments.”
• “The want of permanence in the officer attached to it, and the dependent position of the magistrate.”

In regard to a code of law, Mr. Alabaster alleges that the penal code of China, while “suited to the conditions of ordinary Chinese life, must fail utterly in a mixed community like that of the settlement,” and instances the facts that “wrecking is considered by the Chinese quite justifiable;” “forgery is only venial;” “receiving stolen property is no offense at all:” while “petty assault” is visited almost as aggravated manslaughter.

In regard to the punishments, he declares that “it is scarcely too strong language to say that they reflect discredit on all concerned, whether the authorities who authorize them, the officers who inflict them, or the public who permit them.”

In regard to the want of permanence, he alleges that the foreign assessors are frequently changed, and that the officer who so acts should “look forward to it as his career in life.” He advises:

• That the Chinese should be urged to adopt the “Code Napoleon,” or, better still, the “Indian criminal code,” as the basis of the classification of crime and the measure of its punishment; or, at least, that “graver cases should be tried more formally and deliberately, the prisoner being committed for trial as in European countries, and the exact nature of the charge to be brought carefully considered before the trial.”
• That a jail be established on the model of those used at Alipore and elsewhere in India, in which “the criminal is considered simply as a subject for a course of treatment under which the energies which are ruining him and injuring society may be so directed that he becomes a valuable member of society.”
• That a permanent assessor be appointed by concerted action of the Chinese and foreign governments interested.
• That it is very desirable “to make the magistrate more independent,” and that “the conflict of jurisdiction between him and the district magistrate should be set at rest, and to this end that the settlements should be erected into a distinct Chinese jurisdiction.”

The report of Mr. Gardner (1878) is the fullest of the series (some of the others deal, in fact, only with special points), and is very interesting indeed.

It is divided, on the criminal side, into three parts, in which are considered—

• The police system at Shanghai, as established and controlled by the foreign municipal body, to which Mr. Gardner gives merited commendation.
• The code of laws enforced, in which connection he declares that the penal code is taken as “a guide, the sentences being carefully proportioned to the offenses;” and—
• The penal discipline used, which, like Mr. Alabaster, he pronounces “very unsatisfactory indeed.” He urges at great length the establishment of a general prison.

On the civil side, Mr. Gardner states that the magistrate is “not a commissioned officer; he is simply a servant of the Taotai; his rank is inferior to that of many merchants and some shopkeepers; defendants and witnesses of wealth and position coolly ignore his summonses.” A second defect, in his opinion, “is the absence of fees, which results not only in a great deal of vexatious litigation and contumacy, but throws upon the court the labor of discovering the issues to be adjudicated upon.”

Scattered through the various reports are allegations that offenders who are sent to the district magistrate for trial generally appear upon the streets in a day or two, and that those who are sentenced by the mixed court magistrate to the bamboo, the cangue, or confinement, frequently evade the punishment to which they have been sentenced. In civil matters, the payment of judgments is generally sought to be enforced by imprisonment, but judgment-debtors are not held if they fall ill, and, whether as the result of the very bad sanitary condition of the prison or of “mild poisons taken for the purpose,” they often fall ill and escape further difficulty.

Notwithstanding the very unsatisfactory exhibit which is thus made of the mixed court, it is due to the magistrate who has presided over it since its inception in 1864 to say that not only the various officers whose reports have been quoted from, but the public generally give him credit for great industry and a large measure of honesty, and that, in particular, he has given abundant proofs of his good disposition by the enforcement of municipal ordinances. I think that he has never failed to sustain efforts to suppress gambling, &c., to promote sanitary conditions, and to enforce taxation, while upon more than one occasion he has rendered valuable assistance in promoting the opening of streets and other works of an extraordinary nature. His patience, too, has sometimes exceeded that of his foreign coadjutors, while if he has ever appealed to native prejudices in order to win popularity, the instances have never been so marked as to attract public notice. Considering his origin, which was very humble, and the great difficulties which he has had to encounter, he has done very well, and enabled us to declare in a very positive way that the so-called mixed court has been a very useful institution, and that it should be sustained and strengthened.

Upon the several points advanced, I remark as follows:

The grade of subprefect, provided for in the mixed court rules as established by the foreign office, in 1868, appears to be satisfactory. A subprefect (Tung Chi), duly qualified, is an officer of the fifth grade, while a district magistrate (Chih Hsien) is an officer of the seventh grade. (Mayer’s Chinese Government, sections 282–289.) It “is to officials of the grade of prefect, subprefect, and magistrate, but notably to the latter, that the primary dispensation of justice in China is committed.

It would seem, however, that a subprefect may be commissioned from Peking or in the provinces; that his status is greatly affected accordingly, and that the magistrate of the mixed court, holding, as he does, a seal issued by the provincial government, is not regarded altogether as the equal even of his colleague, the district magistrate.

The foreign office, in making the rules of 1868, intended, no doubt, that this should be the fact, for in the fourth rule they have distinctly declared that all grave offenses “punishable by death or the various degrees of banishment, where by law a local officer with an independent seal would send up the case for revision to the provincial judge,” shall be reserved for the jurisdiction of the district magistrate.

While it is not possible for the writer to know what administrative difficulties may lie in the way of commissioning the mixed court magistrate directly from the capital and of placing in his hands, as an officer of greater rank than the district magistrate, the jurisdiction now reserved to the latter by the rules, it would appear to be the measure best adapted to improve the condition of the court, and the one which would meet with the least resistance on the part of the government.

I should propose, then, that our efforts be directed in the first instance to secure for the mixed court magistrate the actual rank and authority of a Tung Chih, or subprefect.

The abolition of the fourth rule would follow, I suppose, as a matter of course, but as an alternative it might very well be asked, at least, that in the graver cases contemplated the district magistrate and the mixed court magistrate should act together, the latter as senior member of the court, and that all trials should take place in the yamên of the latter, and in accordance with the rules already prescribed by the foreign office.

The rank and authority accorded to the magistrate by granting him a proper commission would probably remove many of the difficulties which have been encountered on the civil side of his court, and it does not seem necessary to ask for any amendment of the rules in that direction, unless it he to abrogate the clause of the sixth rule, which provides that all civil decisions shall be submitted to the Taotai. A provision under which either side may appeal to the Taotai the case on appeal, to be heard by the Taotai and consul sitting together, would appear to be more practical.

It is always to be remembered that the intendant of circuit (Taotai) resides at Shanghai; that his jurisdiction is far broader than that of a prefect or magistrate, and that he can always be called upon to issue writs of an extraordinary sort, or to take any action which may be outside the authority of the magistrate.

As to the failures of the penal code, it is to be said, I think, that we cannot well appeal to the government to undertake the general revision of that ancient and much revered body of laws. It is the less necessary to do so, because, however high may be its place in the Chinese system, the local magistracy do not appear to observe its provisions with any very great degree of care; each magistrate, in point of fact, seems to proceed according to his own ideas of justice, doubtless with some general regard for the code, but with no great pains to measure his punishments by a strict adherence to its provisions. Mr. Gardner says that the code “is studied only as a guide,” and that “its severe enactments are never carried out in their entirety by any Chinese court.” Mr. Alabaster, while complaining that “receiving stolen property is no offense at all by the code,” points out that “it is not the common offense it was before some of the chief offenders were sentenced to the chain-gang.”

The penal code may fail in many instances, therefore, but the fact may not interfere with justice. Should it prove to do so, there is no reason why we should not point out the given failure to the government, and we should probably accomplish more in this way than by questioning the merit of the whole system.

An essential feature of the code is the penal discipline laid down in it, and I feel no surprise in this connection at the strictures so freely indulged in by Messrs. Alabaster and Gardner. The cruelties which it sanctions are known to all of us, but it has fallen to the assessors who have sat in the mixed court to witness them. The effect so produced will be indicated when I state that in one instance where a countryman of my own complained that the bambooing administered to some persons who had committed an almost deadly assault upon him was a farce, I urged him to attend at the court himself in order to witness the punishments, and the result was that he begged the court to remit some part of the sentences.

It is nevertheless true that the system is, in the language of Dr. Yates, “essentially Chinese,” and that we cannot hope to work out the reform of it by any representations which we may make to this government. Change will come about in the course of time, doubtless, as the result of the better education of the members of the official and literary classes, and the special efforts of individuals of their own race. The Chinese must tread the paths which we have trod, and we need not despair of their doing so, when we go back even a few scores of years in the experience of our own governments and remember the barbarities which were practiced in the name of justice, and the neglect of all better ideas of administration which characterized the prisons on both sides of the Atlantic.

The foreign community at Shanghai deserves great credit for much that it has done to instill favorable impression of Western administration into the minds of the Chinese of that great emporium. No native city of the empire can compare with it; whether we have regard to the condition of its streets and sewers, to its regard for sanitary measures, or to its police establishment. Justice has been dealt out impartially by the courts of the several foreign nations represented there.

Her Majesty’s Government has established a prison, which, in extent and in completeness of its appointments, leaves nothing to be desired. The community, acting by its municipal council, has a prison also, intended, primarily, for the safe-keeping of offenders while detained for examination, and to be presented to their respective courts. In this, however, room has been found to confine native offenders under sentence, and in connection with it a hain-gang has been provided for. Further proof of the elastic nature of the Chinese administration is afforded by the fact that the magistrate of the mixed court sentences his countrymen to hard labor in this gang with as much freedom, apparently, as to the cangue or bamboo.

Mr. Gardner says: “There is room for about 80 prisoners” (from the mixed court). “Their maintenance is paid for out of the municipal rates. They are put to labor on the roads. Their health is remarkably good. The fact of having regular work to do is highly deterrent to the class of swindlers, and as to habitual criminals, the habit of steady labor acquired often lasts a long time, and sometimes effects a complete reformation of character.

There is, perhaps, a degree of danger to the municipality created in this way. The death of a man while at work might cause some expression of public ill-will. The system ought, therefore, to be managed with much caution, and in concert with the native officials; but carefully managed and adequately developed it would seem to offer a very ready means of improving the penal discipline of China so far as the given locality is concerned.

I see no reason why, as the result of careful management, men of the judgment-debtor class might not be committed to a municipal prison for safe custody, and under such control as to assure creditors against the frequent failures of health which characterize the class.

The occasion which exists for the preparation of a commercial code has been spoken of in the general memorandum already submitted. For whatever reason, no one of the persons whose reports I have quoted alludes to this important matter. Are we to conclude that the results given in the court in civil cases have been so satisfactory that nothing is to be desired in that direction? If so, no work which our officers at Shanghai could do would be more useful than the preparation of a series of reports based upon the decisions of the court.

The suggestion of Mr. Gardner that a tariff of fees should be provided, in order, as I understand him, to prevent the presentation of unimportant and vexatious matters, and to secure a more careful procedure; and the remarks of Mr. Alabaster that a more careful and deliberate procedure is desirable, should receive attention upon the spot. The practice at the United States consul ate-general has been to require a written statement of the matter in issue, criminal or civil, excepting in petty cases, to be submitted to the consul-general, and to be by him referred to the court on behalf of his countryman. It was seldom found possible, however, to secure a rejoinder or plea in answer until the parties were actually before the court, and it may be said, generally, that carefulness of procedure will be promoted not so much by the establishment of rules as by carefulness and attention on the part of the so-called assessors who sit in the court.

The suggestion—which recurs more than once in the reports—that the pay and allowances of the magistrate are inadequate, is, no doubt, well founded, and it may be possible to mention this, matter to the government here. In such case it is desirable to keep in mind the fact that the magistrate should not be paid a gross sum to cover his salary and the cost of maintaining prisoners, &c. His salary and the pay of his secretaries, &c., as a matter of course, should be determined in advance, and the allowances for the prison, &c., should be sufficient to meet the necessary expenses actually incurred.

To recapitulate: In order to make the mixed court more efficient, to accomplish, in fact, all that we can reasonably hope for at the moment and to pave the way for still greater results in the future, it appears desirable—

• To secure for the magistrate an imperial commission as Tung Chih (sub-prefect).
• To secure 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 grave criminal matters, the latter sitting in the mixed court in such cases.
• To urge the government to make suitable provision for the court, the various native members of it to be paid regular stipends, and an allowance made sufficient to cover other actual expenses.
• To advise our officers to use their best endeavors to secure the most careful procedure possible, and to this end to urge the adoption of rules of procedure.
• To encourage the efforts of the assessors in the court and the community of Shanghai 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 direct our respective officers, as a preliminary stei, to report the precedents already established by the court.