Part 3 of the Chinese report deals in continuation with the condition of the prison and of the efforts made to relieve it, as above stated. Part 4. Grave criminal cases should be tried by the district magistrate, conjointly with the mixed-court magistrate.

Our proposal was not that this procedure should be decided upon, but rather that all references to the district magistrate should be done away with, the mixed-court magistrate sitting in all criminal cases as the magistrate of first instance. We did propose, however, that if this could not be granted, the district magistrate, in all cases when his interference might be necessary, should go to the mixed court and sit upon the trial with the mixed-court magistrate, and in accordance with the rules for the mixed court.

The Shanghai report seems to advise that the alternative request so presented should be complied with. It will be as well, in my opinion, to raise no further question upon the subject and to proceed with the Yamên to frame a rule which will be clear in terms, setting forth the conclusion which has been reached.

It will be noticed that the Shanghai report, after dealing with the matters submitted by the foreign representatives, proceeds to propose additional rules, which are in effect as follows:

1st. That in cases in which foreigners are defendants and natives prosecutors, the trial shall be held at the mixed court, the foreign officer going there to conduct the trial, and the native magistrate sitting to watch proceedings; more serious cases to be heard by the chief judicial officer of the defendant, and those of less importance by an assistant. 2d. In mixed cases no attorneys shall be employed.

It is to be remarked regarding these proposals that the first is inad missible and the second of doubtful propriety. So long as the rule holds that all cases are to be heard in the defendant's court, it is right and appropriate that the trials should be held at the office of the defendant's magistrate, Chinese cases at the native Yamên, and foreign cases at the foreign consulate or court. Any other rule would be inconvenient and in derogation of the dignity of the given court. It is not likely that any stress will be laid by the foreign office on this proposal, but it is likely that they will be urgent in regard to the admission of lawyers. No lawyers are admitted into ordinary Chinese courts, and it can be understood that the presence of foreign attorneys in mixed cases, particularly those against Chinese, which are heard by the native magistrate, must be considered out of order by him and irksome to a marked degree. Yet it would be difficult to deny to our people the privilege of presenting their matters by men skilled in law, in the examination of witnesses, and the presentation of cases to courts. The position of a foreign assessor is certainly a more dignified one when he sits with the native judge, not as an active assistant of his national who is before the court, but to consult with the magistrate as to the pertinency of the evidence offered, its admissibility, &c. The prospect of a case being made fit to go before appellate judges must be considered far greater, too, when lawyers are employed. Yet undoubtedly the presence of lawyers under the circumstances must be subject to regulation. It may be that they should be allowed only to prepare pleadings, to suggest questions to the magistrates in the examination of witnesses, and to prepare arguments, the pleadings and arguments to be submited in English and Chinese.

Altogether I do not consider the response of the foreign office to our representation as very unsatisfactory. It assents to, or, rather, asserts broadly, the doctrine that all cases are to be tried in the defendant's

court, an officer of the complainant sitting in the court to watch proceedings. I attach great importance to this principle and to its recog. nition by the Chinese. It grants one of the proposals of the foreign representatives, that asking that references to the district magistrate shall be done away with, and that the district magistrate shall sit in the mixed court when his intervention becomes necessary. It deals with all our representations in a courteous way, and leaves the whole subject open for further discussion. I do not at all despair of our being able to work out the main purpose which we set before us last fall, under these circumstances.

I presume that a meeting of the diplomatic body will be held at an early day to take the letter into consideration.

I have, &c.,

GEORGE F. SEWARD.

[Inclosure in No. 650.]

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

In the matter of the mixed court at Shanghai, I had some time since the honor to receive a dispatch from the diplomatic body setting forth certain considerations affectIng the administration of justice by it, to which my attention was invited. Thereupon I transmitted a copy of the changes proposed to the southern superintendent of foreign trade, asking him to take cognizance of the circumstances of the case and make report, and I so informed the diplomatic body at that time.

I am now in receipt of a response from the southern superintendent of trade, covering a report submitted by the customs intendant at Shanghai, upon the four changes proposed in the mixed-court rules and an additional article suggested by him.

This report appears to the prince and ministers to be fair, and meets with their approval. I have the honor to append a copy of it hereto, for which I beg your excellency's consideration and the favor of a reply.

Peking, March 22, 1880.

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

[Appendix to the foregoing.]

1. The Chinese deputy should have a commissson and an official seal.

The deputy appointed to the mixed court has a letter of authority from the viceroy and governor, which is the same as a commission, and he is provided with a seal for his use, which is the same as a seal from the board.

In the administration of public business his powers differ in no respect from those of a regularly commissioned officer.

In the matter of arrests and summoning witnesses, if the parties be within the foreign concessions, he has the power to secure their attendance. If the parties are without the concessions, he can only secure them by representation to the official of the locality in which the parties reside, and with the concurrence of that official.

In regard to debts due by Chinese to foreign firms, the debtors in a majority of the cases are poor, and although the court may have given judgment against them, still time must be given them in which to secure funds and make payment. In the case of a literary graduate, who is a debtor, it would be difficult to punish him for failure to make payment until he has been stripped of his degree. The only course is to give him time and press him for payment.

The foregoing difficulties all result from the statutes of the empire and the rights of the parties, and not from lack of authority. The mixed court rules now in force are just and satisfactory. There would seem to be no way to add to the authority of the Chinese deputy.

It is submitted that the rules be continued in force as heretofore, and that there need be no further consideration given to the subject.

2. That the pay and allowances of the court are inadequate, and that additional sums should be granted.

In 1858, after the establishment of the mixed court, all of the expenditures were provided for by the intendant of circuit, who paid the sums needed upon a detailed

statement made each month by the deputy of the amount actually required. The allowances made to the deputy are more in amount than the salary of a regularly commissioned officer, and fully adequate to his needs. There would appear to be no occasion for increasing them.

In regard to accommodations for the persons under sentence to the cangue, and the lack of a prison, the amount of food required for each person is reported. As to the court fees, Western powers have statutes which require these to be paid by the plaintiff or defendant, as the case may be. China has no such rule, and hence such fees cannot be received. Further, at the establishment of the mixed court in 1868, this subject of the expenses was discussed and a procedure adopted. It would not be convenient to increase them at this time.

3. The lack of proper room in the prison, and the consequent sickness and suffering among prisoners.

The accommodations for persons under confinement are not large, and crowding cannot be avoided. The deputy has been repeatedly directed to take more care and pains, and in case a prisoner was ill to report the facts and take steps for his cure. But in the case of persons in the cangue, as their crime is below that for which the penalty of banishment is awarded, they can, in cases of illness, by giving security for their return, be released and themselves seek medical treatment.

In the cases of persons in confinement because of disputes as to the ownership of goods, the intervention of middlemen is invited to arrange matters, and hence much going and coming of friends cannot be avoided. The deputy being well aware of this fact, does not interfere simply with the desire to facilitate the settlement of cases by arbitration, and with the hope that they may be disposed of without delay. In a mixed population of Chinese and foreigners, as is found in the concessions, there are constantly Chinese who, oppressed by hunger, pick up articles belonging to others and make use of them to satisfy their appetite. When brought into court they must, of course, be cangued. But upon examination it appears that they are without means of support or homes, and, the prisons being full, some suffer as a result of overcrowding.

A means of relief ought to be devised, lest this class fall still lower and become criminals. It has been thought wise to erect a refuge for such persons. A spot at Hsin Cha has been selected and buildings capable of holding 100 persons. They will be furnished with food daily, clothing and medicine for those who may be ill. It is to be called the "Yang-ho Tang."

The regulations for its management have been fixed, and it is to be hoped that it will be a permanent establishment. The expenses connected with it are to be met by subscription. Thus the suffering and sickness occasioned by overcrowding the prison of the mixed court will hereafter not occur.

4. Graver cases tried by the district magistrate conjointly with the deputy of the mixed court.

Inasmuch as the mixed court has no prison and no power to inflict the heavier class of punishments in offenses of a sort calling for banishment, or severer penalties, the laws of China require that the cases of this class should be tried before the district magistrate. In grave cases in which foreign matters are concerned, the district magistrate may sit as co-judge at the mixed court, but after the trial at the mixed court the Chinese prisoner must still be taken by the district magistrate to his Yamên and there be dealt with. It is suggested that to the phrase "the local officer may not judge," of section 4 of the mixed court rules, the following be added:

In cases where the criminal and witnesses are all at the mixed court, the district magistrate shall sit there as co-judge to hear and decide the case, and shall take the Chinese criminal to his own Yamen to be dealt with."

PROPOSED ADDITIONAL RULE.

In suits brought by Chinese subjects against foreigners, the plaintiff may bring his complaint to the mixed court, and the British judge or the consul-general of the defendant shall be requested by the deputy to summon the defendant and to depute the assistant judge, or the vice-consul and an interpreter, to appear at the mixed court and try the case, the Chinese deputy being present to watch the proceedings.

In cases of a serious character, which cannot be decided by the deputed foreign of ficial, the British judge, or the consul-general of the defendant, shall be requested to preside at the trial.

In suits brought by foreigners against Chinese subjects, the plaintiff may bring bis complaint to his consul-general, requesting him to notify the deputy of the mixed court to summon the defendant, and requesting him to depute a vice-consul or an interpreter to investigate the case with the deputy at the mixed court. Thereafter the Cheefoo convention rules shall be followed, the Chinese subject being tried by the Chinese deputy, the foreign official watching the proceedings. In order to avoid court and other expenses, out of consideration to the parties and in the interest of justice and fairness, neither party shall employ Western attorneys.

No. 654.]

No. 161.

Mr. Seward to Mr. Evarts.

LEGATION OF THE UNITED STATES, Peking, April 7, 1880. (Received June 8.) SIR: Recurring to my dispatch No. 643, in regard to the proposed tax on cargo-boats, I have now the honor to inform you that the subject was considered at a meeting of the diplomatic body held yesterday, and that the several officers present agreed to write to the Yamên, in terms of the note which I inclose herewith.

Sir Thomas Wade has communicated to me the note which their excellencies the ministers of the Yamên did him the honor to address to him upon the subject of imposing tonnage dues upon cargo-boats.

In the note referred to, their excellencies appear to imply that boats attending on sea-going foreign vessels for the purpose of landing and shipping cargo within the port are liable to tonnage dues.

The writer has consulted his colleagues, and it has been agreed between them that they should at once inform the Yamên of their inability to admit the claim of the Chinese Government to levy tonnage dues upon boats engaged simply in shipping, landing, or transshipping cargo.

The writer and his colleagues will, of course, be most willing to consider any rule regarding the registration of cargo-boats that the ministers of the Yamên may communicate to them.

No. 162.

Mr. Seward to Mr. Evarts.

GEORGE F. SEWARD.

No. 661.]

LEGATION OF THE UNITED STATES, Peking, April 19, 1880. (Received June 8.) SIR: Referring to my dispatch, No. 650, of the 1st instant, transmitting to you the response of the Tsung-li Yamên to the joint note of the foreign representatives of November last, in regard to the mixed court at Shanghai, and to my No. 653, stating that I had been requested by my colleagues to place the subject before the Yamên personally, with a view to secure the further and more favorable consideration of the matter, I have now the honor to inform you that I visited the Yamên on the 14th instant, and to hand to you a memorandum of my remarks to the ministers, and a minute prepared by me for my colleagues, stating the views put forward by the Chinese, and the general results of the interview.

You will see from these papers that, in speaking with the ministers, I traversed the whole matter with much care, and that they promised to write again to the provincial authorities, forwarding my memorandum and asking for a further report. It is by no means impossible that this report will be more favorable than the one which has been sent to us.

My colleagues have approved my course at the Yamên, but they have not yet agreed upon instructions to be sent to the consuls at Shanghai. I am not sure that they will not think it better to leave the matter to be passed upon in view of my memorandum, as there are some divergencies of views and interests among the consuls at Shanghai, and it may be desirable to avoid rousing their susceptibilities unnecessarily. I allude more particularly to the fact that the French have a kind of special mixed court at Shanghai, and that different opinions prevail there as to whether foreign lawyers should be admitted into the mixed court, and whether the rule that the court of the defendant shall try given cases as the right one.

I shall refrain from writing to Mr. Denny on the subject until the matter has been considered further.

I have, &c.,

GEORGE F. SEWARD.

[Inclosure 1 in No. 661.]

Memorandum of Mr. Seward's statements to the ministers of the Tsung-li Yamên, regarding the mixed court at Shanghai, on Wednesday, April 14, 1880.

The ministers present were Shen, Tung, Wang, and Chung-lin.

Mr. Seward said that he appeared on behalf of the diplomatic body to speak abont the mixed court at Shanghai, and thanked the ministers for having accorded him an early interview.

He then proceeded to say that the subject is one in which the diplomatic body take much interest. Shanghai is the center of foreign commercial interests in China, and as many mixed cases arise there, perhaps, as at all the open ports taken together. It is of much concern that the procedure in mixed cases at Shanghai, under the circumstances, shall be such as to give confidence to suitors.

The establishment of the mixed court by the local authorities, acting in consultation with the consuls, in 1834, was a step of importance. The imperial approval of the action thus taken in 1833, and the provision of a code of rules for the court, was in particular the occasion of much satisfaction to foreign merchants and officials.

Since its establishment the court has served an excellent purpose. Very many cases, civil and criminal, some of which have been of great importance, have been heard and determined in it, and while the action of the court has not always commanded approval, its decisions have been in the main such as to give no reasonable ground for complaint. While this is the fact, there have been repeated complaints that the court has not always acted with independence and vigor, and in particular that it has frequently failed to enforce its judgments.

This part of the matter, as the ministers will remember, was the subject of consideration between the English Minister and Li-Chung-Tang, at Chefoo, in 1876, and it was mentioned in the agreement concluded between them, as follows:

"The Chinese Government has established at Shanghai a mixed court, but the officer presiding over it, either from lack of power or dread of unpopularity, constantly fails to enforce his judgments. It is now understood that the Tsung-li Yamên will write a circular letter to the legations, inviting the foreign representatives at once to consider with the Tsung-li Yamen the measures needed for the more effective administration of justice at the ports open to trade.”

The matter has seemed to the foreign representatives for a long time one which demands attention, but owing to the pressure of other matters and to other reasons no communication on the subject was made to the Yamên until the month of November

last.

The statement then submitted to the Yamên was very carefully considered by the whole number of representatives in China, eleven in all. It was put forward with perfect consideration for the sovereign rights of the Chinese Government in the most courteous manner and with the one object and end, to remove, so far as possible, all grounds of complaint and distrust.

The judicial question is, undoubtedly, one of some embarrassment. The ministers are well aware that in western countries all persons who reside upon the soil are subject in all matters, civil and criminal, to the jurisdiction of the national sovereignty, But in China the laws and the procedure of the courts and the punishments inflicted by them are radically different from those of western countries. As a consequence,