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 ont 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 ont 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 judgmentdebtor 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 consulate-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— I. To secure for the magistrate an imperial commission as Tung Chih (sub-prefect). II. 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. III. 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. IV. 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. V. 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. VI. To bear in mind the occasion which exists to frame a code for commercial issues, and to direct our respective officers, as a preliminary step, to report the precedents already established by the court. PEKING, October 14, 1879. GEORGE F. SEWARD. Rules for the mixed court at Shanghai, instituted April 20, 1869. NOTIFICATION. The undersigned is instructed by Her Britannic Majesty's minister plenipotentiary and envoy extraordinary, &c., &c., &c., to declare the following rules for the mixed court to be in force for a period of one year from this date unless otherwise ordered. W. H. MED HURST, Her Britannic Majesty's Consul. HER BRITANNIC MAJESTY'S CONSULATE, Shanghai, April 20, 1869. An official having the rank of sub-prefect will be deputed to reside within the foreign settlement. He will have a jurisdiction in commercial suits, and in civil and criminal cases, generally, within the foreign settlements. He will have an official residence, and will be furnished with the cangue, the bamboo, and the minor means of punishment. He will provide food and lodging [for prisoners]. He will decide all civil and commercial suits between Chinese residents within the settlements, and also between Chinese and foreign residents in cases where Chinese are defendants, by Chinese law. He will be authorized to examine Chinese judicially; to detain them in custody, and to punish them by putting them in the cangue, by flogging, and by other minor punishments. 2. Where a foreigner is concerned in a cause to be tried a consul or his deputy shall sit with the sub-prefect at the trial; but where Chinese only are concerned the subprefect shall adjudicate independently-the consuls shall not interfere. 3. Where defendant is a native in foreign employ, the sub-prefect will first communicate particulars to the consul (of the nationality concerned), who will be bound to place the parties before the court without attempting to screen or conceal them. A consul or his deputy may attend the hearing, but he shall not interfere if no foreign interest is involved. The servants of non-trading consuls shall not be arrested unless with the sanction of their masters. 4. In cases where Chinese subjects are charged with grave offenses, punishable by death and the various degrees of banishment, where by Chinese law a local officer with an independent seal would send up the case for revision by the provincial judge, who would submit it to the high authorities, to be by them referred to His Majesty or the board of punishment, it will still be for the district magistrate of Shanghai to take action. Inquests, when needed, are to be held by the district magistrate of Shanghai inderendently of the sub-prefect. 5. A Chinese criminal escaping to the foreign settlements can be summarily arrested by the sub-prefect without warrant from the district magistrate or aid from the municipal police. 6. Suits between natives and foreigners shall be decided equitably and impartially, and in accordance with treaties. The treaty provision is to be followed in cases where the foreigner has a consul. When the foreigner has no consul, the sub-prefect sitting with a foreign (consular) assessor shall try the case, submitting the decision for the consideration of the Taotai. Should either party to a case be dissatisfied with the sub-prefect's decision, application for a new trial can be made to the Taotai or to proper consul. 7. Foreigners who may be charged with any offense, if represented by consul on the spot, shall be dealt with by them as the treaties provide. Unrepresented foreign offenders will be tried and sentenced by the sub-prefect, the finding being submitted for the Taotai's approval, who will consult with some treaty-power consul on the subject. Where the offenders are Chinese the sub-prefect will inflict the proper legal punishment. 8. The necessary staff of translators, linguists, writers, and servants will be engaged by the sub-prefect, as also a foreigner or two for general purposes, by whom also foreign. offenders having no consul will be brought to trial or kept in custody when necessary. All expenses are to be drawn from the Taotai monthly. Acts of extortion or annoyance on the part of any of the employés shall be severely punished. 9. The sub-prefect shall keep a daily certified record of arrests made and cases tried, giving the names of the parties arrested and recording the grounds of decision in each case. This shall be open to the inspection of the superior authorities. Should the sub-prefect be inefficient or notorious, he will be denounced and removed from office, another being appointed in his place. 10. When the sub-prefect has tried a case, should it be ascertained that plaintiff's charge was false or exaggerated, said plaintiff, whether native or foreigner, shall on conviction be mulcted by the sub-prefect in accordance with rules which will be jointly drawn up by the sub-prefect and consuls and submitted for the Taotai's approval, and in the interest of justice native and foreigner must in this respect be treated with perfect impartiality. [Inclosure 3 in No. 505.] 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: 1st. 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. 24. The right of the complainants to appear and to produce witnesses in court without being subject to any indignity. 3d. The enforcement of th attendance of native witnesses. 4th. 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. 5th. 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 6th. The declaration of the rules of procedure which are to govern in the trial of mixed cases against the Chinese. 7th. The declaration of the laws of China in commercial matters, or, in default of such laws, the preparation of a code to be used in cases in which Chinese are defend ants. 8th. 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 repres ntatives, 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 be denied that the general influence and working of the court have been not unsatis factory, 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 Government1st. To grant to the magistrate an imperial commission of sub-prefect. 2d. 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. 3d. 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: 1st. To use their best endeavors to assure the most careful procedure possible, and, to this end, to urge the adoption of rules of procedure. 2d. 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. 3d. 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 these several suggestions to the attention of their colleagues, your committee begs at the same time to lay 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 less degree to the other representatives. Peking, October 31, 1879. Seen and agreed to. THOMAS FRANCIS WADE. M. v. BRANDT. GEORGE F. SEWARD. J. F. ELMORE. A. KOYANDER. J. H. FERGUSON. [Inclosure 4 in No. 505.] PROTOCOL. The report of the committee upon the administration of justice having been this day read before a general meeting of the representatives of treaty powers assembled in Peking, it was agreed that the attention of the Chinese Government should be immediately invited to the propositions therein contained relating to the mixed court at Shanghai, and that Mr. Seward, minister of the United States, should be requested to prepare the draft of a collective note to the Tsung-li Yamên for the purpose. It was further agreed that those propositions which concern the larger question of the administration of justice in general would be submitted to the several governments represented at the conference, and that their instructions should be solicited. JOINT NOTE OF THE FOREIGN REPRESENTATIVES TO THE TSUNG-LI YAMÊN. PEKING, November 10, 1879. 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 1868 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 |