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The Rendition of the International Mixed Court at Shanghai

Published online by Cambridge University Press:  04 May 2017

Manley O. Hudson
Manley O. Hudson*
Affiliation:
Harvard Law School
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Type
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Information
American Journal of International Law , Volume 21 , Issue 3 , July 1927 , pp. 451 - 471
Copyright
Copyright © American Society of International Law 1927

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References

1 These districts comprise what is frequently called Greater-Shanghai, or the Shanghai area.

2 Shanghai Municipal Council, Annual Report, 1926, p. 138

3 Cornell d'Administration Municipale de la Coneeinan FransaUe, Compte-Rendu, 1925, p. 185.

4 Shanghai Municipal Council, Annual Report, 1926, p. 52.

5 Ibid., 1925, p. 176

6 Ibid., 1899, p. 262. The history of the Land Regulations and the Mixed Court may now be traced in two useful volumes by Anatoi M. Kotenev, Shanghai: Its Mixed Court and Council (1925), herein referred to as Volume I, and Shanghai: Its Municipality and the Chinese (1927), herein referred to as Volume II. Both were published by the North China Daily News and Herald, Ltd., Shangha

7 At a rate-payers' meeting on April 13, 1927, the Chairman of the Municipal Council spoke of the Land Regulations as “ a solemn and inviolable compact between sovereign nations,” possessing “ all the sanctity of a treaty.” He added that “ in substance andeffect, although not in form, it is a treaty of the highest class being as it is not merely a bilateral agreement between two sovereign Powers, but an agreement to which many sovereign Powers are parties.” Shanghai Municipal Gazette, April 14, 1927.

8 Article 28 of the Land Regulations. A useful edition of the Land Regulations is included in a Handbook of Local Regulations, published by the Shanghai Municipal Council, 1918. The text may also be found in Kotenev, I, pp. 557 and in Hertslet, China Treaties, II, p. 664.

9 Article 11 of the Land Regulations

10 Participation of Chinese members was approved by the rate-payers on April 14, 1926, but it has not yet been negotiated. See the Council's Annual Report, 1926, p. 60.

11 See, for example, Hsia, Studies in Chinese Diplomatic History (1924), p. 20.

12 The judgments are occasionally printed in the Annual Report of the Municipal Council.The Annual Report, 1925, p. 185, reports an interesting case in which the Republic of China sought an injunction to prevent the destruction of certain arms and ammunition, which had been ordered by the Mixed Court. See also the Annual Report, 1914, p. 107B.

13 Republished in pamphlet form in 1907. The text is to be found in Hinokley, American Consular Jurisdiction in the Orient (1906), p. 244; Kotenev, I, p. 556.

14 See Shanghai Municipal Council, Annual Report, 1926, p. 64.

15 See Sir Sydney Barton's paper on “ The Shanghai Mixed Court,” 4 Chinese Social and Political Science Review (1919), p. 31.

16 The text may be found in Hinckley, American Consular Jurisdiction in the Orient, p. 245; Kotener, I, p. 70; Hertslet, China Treaties, II, p. 062.

17 Kotenev, I, p. 94.

18 Shanghai Municipal Council, Annual Report, 1898, p. 69.

19 See Hinckley, American Consular Jurisdiction in the Orient, p. 247.

20 Shanghai Municipal Council, Annual Report, 1909, p. 57.

21 Kotenev, I, p. 168.

22 For the text of the proclamation, see the Shanghai Municipal Gazette, November 16, 1911.

23 Shanghai Municipal Gazette, January 18, 1912.

24 See, for example, 1 China Law Review, 43, 346, 446, 447.

25 Kotenev, I, p. 174.

26 See 1 China Law Review, 42.

27 See Kotenev, I, p. 321

28 Published by the court on a single sheet.

29 Shanghai Municipal Gazette, February 28, 1924

30 Ibid., April 1, 1926.

31 Shanghai Municipal Council, Annual Report, 1925, pp. 39-41.

32 Ibid., 1926, p. 37

33 Ibid., 1917, p. 134a

34 See Kotenev, I, p. 198.

35 Ibid., p. 381.

36 For example, the alleged abuse of registration by the Brazilian Consulate-General, reported in the Shanghai Municipal Gazette, March 11,1926, p. 69.

37 Opinion given on appeal from Kiangsi, 11th day, 3d month, 6th year of the Chinese Republic, No. 592.

38 2 China Law Review, p. 207.

39 3 China Law Review, p. 48.

40 See 5 Chinese Social and Political Science Review, pp. 148-152.

41 Report of the Commission on Extraterritoriality in China, as published in Washington by the Department of State, p. 108.

42 See the separate report of E. Finley Johnson, Acting Chief Justice of the Supreme Courtof the Philippine Islands, in the China Year-Book, 1926-7, pp. 946, 950.

43 China Year Book, 1926-27, p. 928.

44 Ibid., p. 929.

45 See 3 China Law Review, p. 48.

46 Germany, Finland, Austria, and the Union of Socialist Soviet Republics are also represented at Shanghai, but as none of these Powers now enjoys exterritoriality in China, their representatives did not sign the provisional agreement. The Consul-General of France signed, as he customarily cooperates with the Shanghai Consular Body, though France has a separate concession. The Sino-Belgian treaty was still in force at the date of signature, though it is now regarded as having been terminated by the Chinese Government.

47 The text of the provisional agreement is reprinted in the Supplement to this Journal. It was officially published in the Shanghai Municipal Gazette, February 18, 1927, p. 46, and is reprinted in the Shanghai Municipal Council, Annual Report, 1926, p. 63 jf. It is published also in 3 China Law Review, p. 49 Jf. One of the preliminary drafts was published in 3 China Law Review, p. 1 ff. '

48 These understandings were published in part in the Shanghai Municipal Gazette, February 18, 1927. The Joint Legal Commission consisted of F. E. H. Groenman, N. F. Allman and A. D. Blackburn representing the Consular Body, and Hsu Yuan, Chen Dingsai,and Y. S. Ziar representing the Chinese authorities.

49 The treaty between China and the United States of November 17, 1880, made this privilege reciprocal. It provided (Article 4) that “ when controversies arise in the Chinese Empire between citizens of the United States and subjects of His Imperial Majesty . . . such cases shall be tried by the proper official of the nationality of the defendant. The properly authorized official of the plaintiff's nationality shall be freely permitted to attend the trial, and shall be treated with the courtesy due to his position. He shall be granted all proper facilities for watching the proceedings in the interests of justice. If he so desires, he shall have the right to present, to examine, and to cross-examine witnesses. If he is dissatisfied, he shall be permitted to protest against them in detail. . . .” In recent years, cases seem to have been infrequent in which either Chinese officials or American consular officials have exercised this privilege. The Commission on Extraterritoriality in China recommended that “ as a general rule mixed cases between nationals of the Powers concerned as plaintiffs and persons under Chinese jurisdiction as defendants should be tried before the modem Chinese courts (Shan P'an T 'ing) without the presence of a foreign assessor to watch the proceedings or otherwise participate.” Report of the Commission on Extraterritoriality in China, p. 108. In line with this recommendation, on March 16,1927, the Consul-General of the United States at Shanghai notified the various Chinese authorities at Ningpo, Wenchow, Soochow, Hangchow and Shanghai that he would not “ except in unusual circumstances exercise the rights set forth in Article 4 of the Sino-American treaty of 1880, in so far as relates to an American official watching cases brought by Americans against Chinese in the Chinese courts.” But he added that cases brought in the Shanghai Provisional Court and in the International Mixed Court at Kulangsu, Amoy, are not affected by this notice.

50 Maritime Customs, Treaties Between China and Foreign States, 2d ed., I, p. 831.

51 Copies of these sheets were supplied to the writer by an officer of the court.

52 These rules are published in MacMurray, Treaties and Agreements with and concerning China, 1894-1919,1, p. 338. See also Kotenev, I, p. 114.

53 See the chapter entitled “ The International Bar,” Kotenev, I, pp. 202-212. On December 27, 1913, the Ministry of Justice at Peking issued Provisional Rules governing the Commission for the Disciplinary Punishment of Lawyers. See Kotenev, II, p. 498.

54 On December 24, 1920, special rules were issued by the Ministry of Justice at Peking, governing the appearance in court of lawyers of non-extraterritorial Powers. Kotenev, II, p. 503.

55 See a list of these laws in the Report of the Commission on Extraterritoriality in China, pp. 45-47. See also, George W. Keeton, “The New Chinese Codes,” 8 Journal of Comparative Legislation and International Law (3d ser.), p. 225.

56 For an illuminating comment on this formula, by Judge John C. Wu and others, see 2 China Law Review, p. 209.

57 Shanghai Municipal Council, Annual Report, 1898, p. 273. On the history of the Land Regulations, see the Mixed Court's judgment in Municipal Council v. Sinnekev, ibid., 1917, p. 135A; and ibid., 1917, p. 120A.

58 Ibid., 1899, p. 262.

59 Originally, it was doubted whether foreigners were bound by the Land Regulations. The British Supreme Court held that they were binding in the famous Wills case in 1865. See the Shanghai Municipal Council's Annual Report, 1866 (no paging). The local French consular court gave judgment to the same effect soon afterward. See ibid. And a somewhat similar judgment was given by the American consular court in Municipal Council v. Reid. Ibid., 1881, p. 20. See also 2 Moore, Digest of International Law, p. 648.

60 See Kotenev, II, p. 481. The writer was informed by a judge of the court that prior to May 1, 1927, foreigners paid no fees, but that the court was at the expense of paying the carriage hire of officials and deputies in attendance.

61 Shanghai Municipal Gazette, April 22, 1927, p. 153.

62 A Kuomintang manifesto of January 1, 1927, quoted in Kotenev, II, p. 188.

63 Mr. Rodney Gilbert, in the North China Daily News, April 15, 1927.

64 The North China Daily News, April 18, 1927. For a more moderate view of the work of the court during the first four months, see Samuel H. Chang, “ The Chinese Side of the Court Issue,” China Weekly Review, April 30, 1927