The Mixed Court: who judged the Chinese of the International Settlement, 1864–1927

The short answer. From 1864 the Chinese residents of the Settlement, who were the great majority, answered to a Chinese magistrate who sat beside a foreign consular assessor. That arrangement, the Mixed Court (会审公廨, Huìshěn Gōngxiè), ran for sixty-three years, from a room in the British consulate to a courthouse that tried 80,000 criminal cases a year and sent its convicts to a gaol of 2,000. The assessor’s growing power made it the most resented institution in the Settlement: the cause of a riot in 1905, seized outright by the consuls in 1911, and the first thing Chinese negotiators asked back after 1925. It went back to Chinese judges on 1 January 1927. The court’s own rules, a Russian émigré’s history of 1925, and the Council’s reports show how it actually worked, which is a stranger story than either side’s version.

Why a mixed court

The Settlement’s rules of 1845 had assumed that only foreigners would live there, each under his own consul’s court. The refugees of 1853 ended that. By the mid-1850s the British consul was a magistrate for Chinese offenders by default: in 1856 he heard at least 500 cases, four of them for murder. Men arrested by the Settlement’s police, “frequently to the number of 20 a day”, were committed to the city magistrate inside the walls, who released most of them. Harry Parkes, consul from 1864, proposed the obvious compromise: a Chinese court inside the Settlement, under a Chinese official, with a foreign assessor sitting whenever a foreigner’s interests were touched.

The court opened on 1 May 1864 in rooms at the British consulate. Its first magistrate was an “expectant” official with a wooden seal, and its title, “the Yamen of the Official North of the Yangjingbang”, gave its address rather than its powers. It had no constitution. The draft of eleven rules, one of them on a gaol, was never published and burned with the consulate in December 1871. The vice-consul Chaloner Alabaster sat as assessor, “co-judge” in the early papers, four mornings a week, the American consul or his interpreter the other two. The court could inflict a hundred blows of the bamboo, the cangue or hard labour for up to fourteen days, imprisonment, fines or deportation, and it brought Western courtroom habits in from the first day: the accused could cross-examine, and “the case was decided according to the weight of the evidence”. Civil jurisdiction was added in October 1864, a sub-prefect sitting two afternoons a week.

The first eight months’ figures survive. Between 2 May and 31 December 1864 the court dealt with 2,178 arrested persons; 557 were acquitted, 1,326 convicted, 295 sent on to the city magistrate for graver offences. Of the convicted, 612 were warned, 363 flogged, 55 put in the cangue, 104 sent to hard labour and 192 fined. Hard labour was the Settlement’s innovation. “There is no such punishment in the Chinese code as hard labour”, the daotai protested in November 1865 after a prisoner named Tae Jun Chei died on the chain-gang; the gang was used until 1868 regardless. Twice in those years the daotai threatened to close the court, once over a wrongly served summons, and the consuls pressed for a permanent footing. The first lawyer appeared in 1866, defending a Chinese litigant in a civil suit.

1869: the rules, and the gap in them

The footing came in the provisional rules the British consul Medhurst promulgated in April 1869, for a year, which lasted fifty-eight. An official with the rank of sub-prefect would reside in the Settlement; “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”; purely Chinese cases were the sub-prefect’s alone; capital and banishment cases went to the Shanghai magistrate; a new trial could be sought from the daotai or the consul; the daotai paid the staff. The ministers in Beijing struck out every provision on court fees, which is why the court ran for decades on fees nobody had authorised. Kotenev, the émigré lawyer who wrote the court’s history for the North-China Daily News in 1925, put his finger on the flaw: the rules said the consul “shall sit” and never said as what. Out of that silence “the assessor gradually usurped the power” of a judge. Pott, writing for the Settlement, said the same thing more gently: the assessor “became a party to the judgment in every case”.

A morning in court

What that meant in practice is recorded in two memoranda of 1910 to 1912 by British and American assessors, which Kotenev reproduces. The criminal court sat every morning at 9.15, a Chinese magistrate and the assessor of the day, British, American or German by rota. Warrants and summonses were issued by the magistrate, countersigned “always by the Senior Consul or one of the Assessors representing him”, and served by the court’s runners “accompanied by the Municipal Police”. The rule was that “no sentence was valid unless concurred in by both Magistrate and Assessor”, and the American assessor Hadley described how that worked: the assessor proposes a year, the magistrate six months, and “both ‘faces’ are saved by a compromise of nine months”. There was no appeal in criminal cases, only a rehearing on fresh evidence.

The assessors had a tariff of their own. For theft, imprisonment ran to “about one-fifth more in days than the value in Mexican dollars of the goods stolen”; theft from an employer doubled it; a third conviction meant expulsion from the Settlement, and each return added three months. Boys under eighteen went to the reformatory, women and girls from the brothels to the Door of Hope mission. The bamboo and the cangue were still in use in 1910, and the sentence on four men after the riots of that December was “500 blows, five years’ imprisonment and expulsion”; since blows were not allowed inside the Settlement, “the four men were taken to the City and flogged”.

The civil court sat every afternoon at 2.30 for cases with a foreign party; the purely Chinese branch “started at 6 p.m. and sometimes lasted until 2 a.m.” A civil defendant, once summoned, was in practice “taken into custody” unless he found security, and held in the House of Detention until he did; the printed rules say it plainly: “The defendant shall be held in custody by the Court until he gives bail or security.” Civil appeals went on the record to the daotai and the consuls-general sitting together. Judgments were hard to enforce once a debtor crossed the boundary, and “the number of compromised or unsatisfied judgments was unduly large”. The one procedure that worked briskly was the landlords’: a summary rent process devised by the British assessor Barton in 1907 sealed the premises six hours after the order and auctioned the contents after fourteen days.

The rules of procedure, codified in 1914 and 1919 and reprinted in 1927, read like any colonial police court’s. A criminal complaint was filed in writing with the registrar, who by 1925 was a second assistant commissioner of the Settlement’s police; a warrant “before being executed shall be countersigned by the Senior Consul”; remand was limited to fourteen days; an accused without counsel “shall, at the close of the examination of each witness for the prosecution, be asked” whether he wished to cross-examine; civil petitions were filed in three copies in English and Chinese, with fees paid at filing. Appeal lay only in civil cases of $500 or more, by leave sought within seven days, and “shall consist of a revision of the case by argument of the parties or their Counsel upon the existing record”; by consent it could be heard by the court that had tried the case, since there was no court of appeal to send it to. Fees, which the ministers had struck from the rules, were set by the consuls: from 1912 a Chinese civil case paid 1½ per cent of the claim on filing and the same at hearing, between $2.50 and $100 each, $200 in all, with paupers admitted free.

What it cost, and what it did

The court was a large business by the 1920s. In 1925 it dealt with 80,529 criminal cases, down 11,167 on the year before, in 575 ordinary and 357 special criminal sessions; the foreign civil court sat 493 times and the Chinese civil court 657; there were 144 inquests. Chinese litigants filed 1,496 civil petitions and the court heard 2,831 cases; rent cases rose from 818 to 1,081; 2,056 people were ordered to find security. The police charge sheet shows what filled the mornings: 35,930 rickshaw offences, 17,555 nuisances, 3,264 opium cases. It also shows the year’s violence: kidnapping charges up from 24 to 178, robbery from 243 to 450, and 479 persons handed over to the Chinese authorities for trial, against 254 in 1924. Of 343 “unrecognised foreigners” charged, people with no consul to try them, 285 were Russians, émigrés who had lost their extraterritorial rights with their empire and were now tried by the court like Chinese. Nine foreign and twenty-six Chinese lawyers were admitted to practise that year. The trials that followed the shooting of 30 May, the report noted, “entirely upset” the calendar.

The convicts went to the Council’s gaol, which was the other half of the system. Until the 1890s most of them served in the city gaol inside the walls, and an assessor complained in 1887 that overcrowding there “prevented the Court inflicting adequate sentences in grave cases”. In 1897 the Council leased the north wing of the British consular prison, 42 cells for 400 prisoners, and on 1 May 1903 completed its own gaol of 480 cells at Ward Road in Hongkou. By 1905 it held an average of 450 convicts a day. In 1909 remission by marks was introduced, six marks a day and a quarter off at most. Ward Road Gaol held 2,066 prisoners on 1 January 1925 and 2,256 on 31 December, a daily average of 2,145; by 1928 the average was 3,460, and 7,103 prisoners passed through in the year. The Settlement’s gaol was by then the largest in China, and its prisoners were the Mixed Court’s. One line in the 1925 report shows the limit of the court’s power: 120 men it had sentenced to death “have been detained in Gaol until they could be handed over to a competent authority”, since the Settlement could not execute anyone; in September 47 were handed to the military at Longhua, and twelve were shot.

1905: the riot

The quarrel that produced the riot was about custody and the police. From 9 April 1905 the Council stationed a municipal constable inside the court, and drew up a list of the court’s “irregularities”, among them “Failure to administer blows” and “The levy of squeeze from the prisoners”. The magistrate answered that he alone had charge of the court “from the front door inwards”. The American assessor, Julean Arnold, took the Chinese side on the custody of women, who were held in the court’s own cells because the municipal gaol had “no accommodation for women”, and who, the Council said, were beaten and chained there.

On 8 December 1905 an official’s widow, charged with kidnapping girls, “fifteen of their victims being in Court”, came before the British assessor Twyman, the magistrate Kuan Jiongzhi (关炯之, Guān Jiǒngzhī) and his assistant King. Kotenev calls her Li Wang-chih; the Chinese gazetteer, Li Huang-shih (黎黄氏); Pott says her husband had been a Sichuan official. Twyman directed the police to take the girls and the accused to the Door of Hope. The magistrate ordered them to the court’s cells. The runners and the police fought in the courtroom, the runners locked the courtyard gate, and the magistrate told the police they “could break down the gate, break up the whole Court, and kill him if they chose”. Beijing ordered the woman released without trial, the daotai closed the court, and the news that a Chinese magistrate’s authority had been overridden in his own court ran through the city.

On 18 December crowds attacked the Council’s offices and police stations. The Louza station on Nanking Road, whose constables had been told not to use firearms, was overpowered and burned from about ten in the morning. At the Town Hall the police fired on the crowd, “killing three men in the crowd” and two shop assistants across the road, and the police report Pott quotes counted seven Chinese dead in all, “but it is believed that others died from wounds received”; “the total number of wounded could never be ascertained”. The Shanghai Concessions Gazetteer, drawing on Chinese sources, counts eighteen dead and dozens wounded by the police and the Volunteer Corps. Order was restored by the police, the Volunteers and landing parties from the warships.

The daotai refused to reopen the court “unless the British Assessor and the Police Inspector were dismissed”. On 19 December the Council’s chairman went to see him and conceded that women prisoners would stay in the court’s prison, inspected by the Council’s health officer. The court reopened on 23 December only after the viceroy at Nanjing, Zhou Fu (周馥, Zhōu Fù), came to Shanghai by imperial decree and settled the terms: municipal police could remain in the court, and the custody of women stayed Chinese. The Council wanted the police’s conduct arbitrated by a British judge; the magistrates declined and blamed the Council for the riot. In Beijing the ministers cut the court’s powers, in April 1906 to a ceiling of five years’ imprisonment, and told the consuls to keep strictly to the rules of 1869, which had the effect that serious offenders sent on to the city magistrate were, as one case that month showed, “already at liberty” within days.

1911: the court changes hands

When Shanghai went over to the revolution on 3 November 1911 the court closed, and two of its magistrates fled “taking with them all the funds deposited by the litigants”. The consuls moved fast. The American assessor Hadley drafted six points on 7 November, among them that the civil cells and women’s ward be “guarded—hence controlled—by the Municipal Police”; the consular body approved a draft unanimously on the 9th, forwarded it to the Council on the 10th, and on 11 November 1911 a proclamation was posted at the court’s front gate confirming, “as a temporary measure of expediency”, the magistrates Kuan Chun, Wang Chiah-hai and Nieh Tsung-yi in their posts, with the police taking charge of the prisons and serving summonses and warrants under consular seals. “The Police immediately entered the Women’s Prison and the House of Detention and took over the control of all Court premises.” The Chinese city had no government to object. When the Chinese Chamber of Commerce met the assessors at the Belgian consulate on 15 December, its spokesman told them the court “was rapidly in process of becoming a foreign Court in the popular imagination”; the Chamber proposed juries, and the assessors declined.

The court that reopened was, as Kotenev says, a thing without precedent: independent of the Chinese judicial system, with assessors sitting even in purely Chinese civil suits, from 5 January 1912, to “sit and watch the case, and shall not interfere”, and a judgment “counter-signed by the foreign Assessor”. Litigants came. In the first eighteen months 1,400 Chinese civil cases went to the hearing list, against an average of 500 a year filed “under the old régime”; a court with foreign assessors and a police registrar was, whatever its legitimacy, a court whose judgments were enforced. Kuan Chun stayed as senior magistrate until at least 1925, by which time he sat with six colleagues accepted, not appointed, by the consular body; the assessors were by then official appointments too, the senior British and American and a Portuguese for Chinese civil cases, an Italian and a Japanese for Saturday police cases, and a rule of 1921 required every decision to be unanimous or the case to be heard again before a differently constituted bench. In 1918 the senior consul decorated Kuan and his assistant with a Medal of Justice. For sixteen years the main court for a million Chinese residents was run, in substance, by foreign consuls and the Council’s police.

1919–1927: rendition

The Republican government never accepted it. At Versailles the Chinese delegation’s memorandum complained that “a foreign Assessor not only watches the proceedings but virtually tries and decides the case”, and demanded that no assessor sit in cases between Chinese. The Chinese Supreme Court ruled in an explanation that the court “cannot be recognized as a special judicial tribunal”. In 1924 the former minister of justice Dong Kang (董康, Dǒng Kāng) objected that “the Mixed Court has only one trial, and has no appellate system”, and that the foreign lawyers who practised in it charged “expenses beyond the financial capacity of the ordinary individual”. A Chinese note of 9 August 1924 proposed a “Special Court of Shanghai” under Chinese judges, with “sentences of 10 years and upwards” approved by the minister of justice and the gaols left under the municipal police; the American minister Schurman was ready to return civil jurisdiction but “reluctant in the case of litigation involving the interests of foreigners”; the Shanghai American bar wanted foreign judges and a court of appeal. Kotenev, finishing his book in 1925, thought the problem “for the time being at a deadlock”.

The shooting on Nanking Road on 30 May 1925 broke it. Every list of Chinese demands that summer included “Rendition of Mixed Court”, and the Council’s own report prints the phrase. In April 1926 the consular body undertook to settle the question with the local authorities under the warlord Sun Chuanfang (孙传芳, Sūn Chuánfāng), through the geologist V. K. Ting (丁文江, Dīng Wénjiāng) and the commissioner Xu Yuan; a provisional agreement signed on 31 August 1926 put the court under Chinese judges, with a consular official sitting jointly only where an extraterritorial plaintiff or the Council was concerned, and sentences of ten years or more going to the Jiangsu provincial government. On 1 January 1927 the Norwegian consul-general N. Aall, senior consul for the month, “handed over to the Commissioner of Foreign Affairs the official seal of the Mixed Court”. The Shanghai Provisional Court that replaced it had a hard first two years, by the Council’s account: its first president, who had tried “to keep the judiciary independent of political control or influence”, resigned under pressure in 1928; its appeal court dealt with 152 cases in 1927 and 332 in 1928; and the Council’s chairman complained that of “some 58 criminals” sentenced to death since September 1927 “so far only one has been executed”. In 1930 a further agreement replaced the Provisional Court with Chinese courts of ordinary jurisdiction, and the Settlement’s Chinese residents were, at last, tried by their own state in their own city.

Where it was

The court began at the British consulate at the north end of the Bund, whose 1873 building stands in the Waitanyuan compound. From the 1900s it sat in Hongkou, on Zhejiang Road North at Qipu Road, on the ground now covered by the clothing market; nothing of the building remains. The Louza police station that burned in 1905 stood on the north side of Nanking Road near Zhejiang Road, on the stretch that is now the pedestrian street; it is the same station whose constables fired on the crowd of 30 May 1925. Ward Road Gaol, where the court’s convicts served, is Tilanqiao prison in Hongkou, still the largest building the Council ever put up.