both in China and Japan has given him practical acquaintance with the subject, I sent to him, unofficially, copies of the memoranda on procedure in mixed cases between our people and subjects of China, and asked his views. He has responded under date of December 10, and I have now the honor to place his letter before you.

I have, &c.,

[Inclosure in No. 561.]

GEORGE F. SEWARD.

Mr. Stahel to Mr. Seward.

HIOGO, December 10, 1879.

MY DEAR MR. SEWARD: I have received your two memoranda, and I congratulate you on the able manner in which yon deal with the subject. You have clearly shown that by the treaties ample provision is made for a kind of "mixed court," where an official assessor of plaintiff's nationality shall sit and have a voice, judgment, however, to be finally given by the presiding officer, who must be of defendant's nationality. If this arrangement were carried out in practice it would undoubtedly accomplish much toward alleviating the natural apprehensions of a plaintiff when suing in the court not of his nationality, toward a careful, dignified, and impartial trial, and toward a cordial acceptance of the principle of extraterritoriality, and I think it would generally insure right decisions, and go far to mitigate the bitterness of feeling which frequently, and sometimes with apparent good reason, regards decisions against the plaintiff by the court of the opposite nationality as foregone conclusions and denials of justice.

But to carry out this very desirable arrangement effectively, both nations ought to appoint official assessors for this special purpose, whose qualifications and integrity should be unquestionable. It is impossible that consuls, however irreproachable, should fulfill this duty in addition to their ordinary duties.

Any other kind of mixed court than these (I agree with you) is impracticable. For the first thing courts involve is a code of laws, and mixed courts would involve a mixed code, the successful and intelligent construction of which, in our present condition of knowledge as to Chinese and Japanese methods and principles of justice, or in any knowledge we are likely to gain of them during this generation, would be a task which would fail even our ablest men, and is probably impracticable.

Far better than any such attempt would be a suitable provision for carrying out the treaty stipulations now existing, and securing the presence, at every trial, of an official assessor of plaintiff's nationality with rights and powers to make his presence effective toward securing an equitable decision according to the laws of defendant's nation; and the importance of this is at least as great in civil as in criminal matters, for it is in the adjudication of civil cases that injustice is now more frequent.

I think the proposals which you make are very appropriate and entirely practicable. But permit me to suggest that No. 3, on page 11 of your memorandum of date the 4th of October, should make it imperative on the consul (at plaintiff's demand) to sit as assessor.

Any interference of the consul with the magistrate's procedure (except, of course, in protection of his own national) would probably work only harm, and should not be allowed. In practice, and with the exercise of the tact you urge, repulsive measures for exacting truth would rarely be resorted to in presence of the foreign official.

The general rule that justice should be done according to the law or practice of the court sitting should be scrupulously adhered to, otherwise advantage of the interference will surely be taken to defeat justice. It must not be forgotten that Asiatic ideas on these points radically differ from ours; that we cannot change these ideas during a sitting of court, and that there undoubtedly exists a strong and perfectly natural prejudice on the part of the Chinese and Japanese officials of all classes in favor of their own nationals and against foreigners, which tends against the obtainment of justice, even under favorable circumstances.

Yours, &c.,

J. STAHEL.

No. 563.]

No. 144.

Mr. Seward to Mr. Evarts.

LEGATION OF THE UNITED STATES,

Peking, January 16, 1880. (Received March 15.) SIR Recurring to my various letters in regard to the Shanghai har⚫ bor rules, and more particularly to my dispatch No. 544, with which I sent to you a copy of a code of sixteen rules for thåt part of the harbor which is above the foreign anchorage, I have now the honor to hand to you a note which Prince Kung has addressed to the several foreign representatives, stating that the rules of 1878 will be put in operation at once for the district opposite the foreign settlements (the foreign anchorage) and the new rules for the district above the settlements (the native anchorage).

This adjustment of the matter appears to me entirely satisfactory, and I have no doubt that it will meet the views of other members of the diplomatic body.

In the matter of the control of harbors our troubles arise, not because the authorities endanger our interests by discriminations in favor of their own people, nor by cutting off privileges necessary for the free use of their harbors, but because no adequate measures have been adopted for their conservancy. At Shanghai any one owning a front lot has been able to make a pier or wharf or to fill up the foreshore almost uncontrolled. The serious deterioration of the harbor has resulted as a matter of course.

It has been my object, in view of such facts, to impress upon the administration, both at Shanghai and here, the fact that it is their interests which are mainly involved, and that responsibility for the care of the harbor devolves properly upon them.

*

I shall request the consul general to give the local authorities cordial support in the administration of the harbor rules, new and old, so soon as I learn that my colleagues will take the same course.

I have, &c,

Inclosure in No. 563.1

GEORGE F. SEWARD.

Prince Kung to Mr. Seward.

Prince Kung, chief secretary of state for foreign affairs, herewith makes a communication.

In the matter of the rules for the conservation of the harbor at Shanghai, Mr. Holcombe, secretary of the legation of the United States, came to this office December 7, 1879, to inquire of the ministers whether they had anything to propose regarding the enforcement of the rules adopted in January, 1878, or anything to suggest which they might desire to communicate to the diplomatic body, &c.

The ministers handed to Mr. Holcombe a draft of sixteen new rules which provide for the conservancy of the Upper Whangpoo River, above the foreign concessions, and place this part of the river under the jurisdiction of a harbor office and a deputy, requesting Mr. Holcombe to communicate them to the diplomatic body for its information.

I beg leave now to remark that the Whangpoo is a river under the sovereignty of China. Lying beside the foreign concessions, it must still be held to be outside of those concessions. In reference to section II of the rules adopted in January, 1878, which stipulates that "the authority and control of the harbor master, as hereinafter defined, extend to that part of the river opposite to the city, the suburbs, and the foreign settlements, and to that part of Loochow Creek between the settlements, &c,"

it would appear that the provision of the sixteen new rules which places the Whangpoo River above the foreign concessions under the control of a deputy and a harbor office is a modification for the better.

With this exception, the necessary instructions will be given by me to put into operation all the stipulations of the rules of January, 1878.

Although the harbor deputy and the harbor master have separate areas of jurisdiction, they will still consult together and act in concert as occasion may require.

I have reached a decision in this business as indicated above. But as these matters affect the interests of both Chinese and foreign merchants and people, I have thought it my duty to furnish your excellency with a copy of the sixteen rules for your information, and request the favor of a response.

Peking, January 12, 1880.

His Excellency GEORGE F. SEWARD, &c., &c., &c.

No. 564.]

No. 145.

Mr. Seward to Mr. Evarts.

LEGATION OF THE UNITED STATES,

Peking, January 20, 1880. (Received April 2.) SIR: Referring to my note No. 563, of the 16th instant, I have now the honor to inform you that the several foreign representatives have agreed together to inform the foreign office that they will instruct their several officers at Shanghai to give the local authorities at that port cordial support in their enforcement of the harbor rules recently communicated to us, and to inclose to you a copy of the response which I am sending to the foreign office, and a copy of my note of instructions to Mr. Bailey.

I have, &c.,

GEORGE F. SEWARD.

[Inclosure 1 in No. 564.1

Mr. Seward to Prince Kung.

PEKING, January 19, 1880.

SIR: I do myself the honor to acknowledge your imperial highness's note of the 12th instant, including copy of regulations for the anchorage of native shipping at Shanghai, and acquainting me with a modification of the rules of 1878 regarding the foreign anchorage.

I have considered the matter of the note with my colleagues-the representatives of the treaty powers now in Peking-and I understand it to be agreed that each of us should instruct the consul of his government at Shanghai to co-operate cordially with the Chinese authorities in giving effect to the rules in question.

I avail, &c.,

His Imperial Highness, the PRINCE OF KUNG.

GEORGE F. SEWARD.

[Inclosure 2 in No. 564.]

Mr. Seward to Mr. Bailey.

PEKING, January 20, 1880.

SIR: The Chinese Government has decided to put into execution at once the rules for the harbor at your port which were transmitted by me to your predecessor, General Stahel, in February, 1878, dispatch No. 113, excepting from their operation, however, the district south of the Little East Gate Creek, over which another set of rulesa copy of which I inclose-will be enforced.

Please be so good as to extend to the local authorities your cordial co-operation in all appropriate ways in their administration of the two sets of rules, and to report to me from time to time whether the objects in view in providing the rules are being attained.

You may communicate a copy of this note and of the sixteen rules to the chamber of commerce.

SIR: Your dispatch No. 505, of the 18th of November last, concerning the judicial system and mixed courts in China, has been received and read with satisfaction.

In reply, I have to state that the main proposition advanced in the memorandum submitted by you at the conference of the foreign representatives at Peking, and accepted by your colleagues, that mixed cases, civil and criminal, in which foreigners and Chinese are concerned, should be heard and determined in the proper court of the defendant and in accordance with the laws of his country, appears to agree with the position which has uniformly been held by the department, and is therefore approved.

You are instructed to proceed, in concert with your colleagues, as suggested in the report of the committee upon the administration of justice.

I am, &c.,

No. 147.

WM. M. EVARTS.

No. 567;]

Mr. Seward to Mr. Evarts.

LEGATION OF THE UNITED STATES, Peking, January 23, 1880. (Received April 2.) SIR: I had the honor to transmit to you on the 18th of November last, with my dispatch No. 505, the conclusions of the conference of foreign representatives, held in this city in the months of September, October, and November, in regard to certain questions affecting the administration of justice which had attracted their attention. Recurring to that dispatch and its inclosures, and more particularly to the joint note addressed by the representatives to the foreign office in regard to the mixed court at Shanghai, I have now to place before you the response which has been sent to us by the Yamên.

You will see that it is entirely courteous in tone and substance; that it states that the subject has been referred to the southern superintendent of trade for a report, and that a further letter will be addressed to us upon the receipt of his response.

As that officer will undoubtedly refer the matter to the officials at Shanghai, it may be some time before his report will be received.

I have, &c.,

GEORGE F. SEWARD.

[Inclosure in No. 567.]

Prince Kung to the foreign representatives.

Prince Kung, chief secretary of state for foreign affairs, herewith makes a communication in reply:

Upon the 26th of November I had the honor to receive a note from your excellen cies, placing before me certain considerations affecting the administration of justice at the port of Shanghai, which had enlisted your joint attention, &c., &c.

The ministers and myself have carefully considered what your excellencies have placed before us, and fully recognize your earnest desire to place the administration of justice between Chinese and foreigners upon a satisfactory basis.

The port of Shanghai having a mixed population of Chinese and foreigners, and the number of cases being very large, a set of ruleswas prepared by the superintendent of trade in 1868, considered and approved by this Yamên, and communicated to the several representatives for their action in the premises, with the distinct statement that the given deputy is a Chinese official and must be guided by Chinese law and usage.

Since these rules were put into operation there have been no cases of complaint by foreigners against Chinese which have not been speedily decided. The graver cases have from time to time been determined by the customs intendant, acting in conjunction with the consul concerned.

Having now received your excellency's statement of the several changes desired in the court in question, I have to remark that, as the former ten rules of procedure were prepared by a former superintendent of trade, it will be necessary to transmit a copy of the statement of modifications proposed to the southern superintendent of trade for his consideration in view of present circumstances, and for a report from him. Thereafter this Yamên will give the subject further attention and address your excellency again.

It is much to be desired that the forms of procedure may conform to Chinese usages, and that the administration of law in mixed cases may be made more perfect. Thus the rules can be permanently enforced.

I am writing to the southern superintendent of trade, and upon receipt of his response shall address your excellency further.

Peking, January 20, 1880.

His Excellency GEORGE F. SEWARD, &c., &c., &c.

No. 575.]

No. 148.

Mr. Seward to Mr. Evarts.

LEGATION OF THE UNITED STATES, Peking, January 29, 1880. (Received April 2.) SIR: I have the honor to recur to my dispatch, No. 557, and to hand to you, herewith, translations of two imperial decrees which have relation to it and to the charge against Chung How.

It is not positively known whether the tenor of the discussions which have been going forward are favorable to the ratification of the treaty or the reverse, but it is persistently rumored that the tone of the larger part of the official class in Peking is very hostile to the treaty, and credence is given to this by the fact that Chung How is being dealt with very harshly.

What the fate of this well-known officer is to be, cannot now be told. It is believed, however, that his estates will be confiscated, and that he will be banished to a remote part of the empire.

The very greatest sympathy is felt for him by the foreign representatives, and they would not hesitate to speak in his behalf if they could see the way to do him any good whatever.

I have, &c.,

GEORGE F. SEWARD.