10th Nov.
Ir is customary to conclude the annual Report of the British Consul to the Foreign Office on the Trade of Shanghai with a separate memorandum on the working of the Mixed Court during the year, Mr. Jamieson's Report on the Trade of 1892 concludes accordingly with a report on the Mixed Court by Mr. Playfair, who commences by pointing out that he was under the disadvantage of being personally ncqnainted with the working of the Court during the December quarter only. "I am able, however," he adds, "to compare its present conditions with those existing seven years ago, during my tenure of the assessorship in 1886, and I find a gratifying decrease in the civil cases set down for hearing, and a similar falling-off on the criminal side, as far, at least, these concern the British _assesso1 The decrease in civil suits Mr. Playfair attributes to the greater tendency among native defendants to settle with the foreign plaintiffs without the formality of a hearing. It is satisfactory to know that it is now the native defendants who come to the conclusion that it is better to settle up than to face the Court; there was a time when it was the foreign plaintiffs who used to let their claims go by the board, because they despaired of getting a decision from the Mixed Court, or if they got a decision of having it put in force. That there is a falling-off on the criminal side too, may fairly be attributed to the superiority' of the police under the present regime, Mr. Playfair goes on to remark' that "in cases which eventually do come on for trial, it is becoming more and more customary for the Chinese defendant to call in the assistance "of European couusel,- and some of the resident lawyers have extensive practice among the native It might be added that in important cases the foreign plaintiff, too, sometimes entrusts his case to a lawyer, though it is more common for him to appear in person, and sometimes to considerably embarrass the foreign sssesser by expecting him to act as his advocate with the native magistrate. "Tu most civil causes," Mr. Playfair continues, "it is not infrequently an advantage to the Court to have the case presented to it by those skilled in such matters, even though the law by which the suit is to be decided is not that with which the counsel is most familiar. On the other hand, the European advocate is apt to arrange his defence on lines suggested by the procedure of his own national Courts, which is as often as not divergent from the system, such as it is, by which the Mixed Court is governed." There is another disadvantage in the employment of a European advocate; that he is too apt to undervalue the intelligence and the power of the native magistrate, and to address himself too exclusively, as is indeed natural, to convincing the foreign assessor; forgetting that the foreign occupant of the Bench is only an assessor, and that the decision rests with the native magistrate, and that it may be prejudicial to his client if the native magistrate should, with or without reason, imagine himself to be less considered that his position justifies.
"A treatise on Mixed Court Law," Mr. Playfair continues, "hus yet to be written, and the subject is one which deserves to be taken up by some legal writer of sufficient experience." After all, however, Mixed Court Law depends so much on the personalities of the magistrates and the assessors, that it is very early yet to write a treatise on it, as if it had begun to erystallise, It is neither purely Chinese nor purely Western; it is more Western when the foreign assessor is able to assert himself, it is more Chinese when the magistrate has more of his own way." Tt might perhaps be described as Chinese Statute Law modified to suit European prejudices and this is, no doubt, what it was hoped when the Mixed Court was founded that it would become. As.as instance of this mixture which it is sometimes erroneously supposed is indicated in the title " Mixed Court," Mr. Playfair points out that. "whereas by Chinese Law a criminal cannot be convicted unless he either admits his guilt, or, in the face of continued obstinacy, is confronted by absolutely overwhelming evidence, prisoners are frequently condemned at the Mixed Court on evidence which, though satisfactory from a European point of view, cannot be considered overwhelming," The fact is, that the prisoner in Chinese Court is too often made to admit his guilt by torture, which no foreign assessor will
Text read from the printed page and cleaned; old type leaves the occasional error.