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tries the case in which the Chinese are plaintiffs or petitioners. ''32 with particular reference to the consular courts, A. M. Latter, barristerat-law at Shanghai, has the following to say: "The first duty of a Consul is to protect the interests of his sovereign's subjects; it is scarcely consistent to add to that duty the task of administering justice when a complaint is brought against that subject; and the duties of protection of a class and the administration of impartial justice between that class and others cannot but clash. Only too often is the verdict of the extraterritorial court a formula as of course 'judgment for the defendant,' and the defendant has then every reason to be satisfied that he has an efficient consular service. ''33

It is impossible for the powers to maintain a sufficient number of judicial tribunals in China to handle adequately the disputes that may arise throughout that country. In the early days Minister Reed wrote: "The foreigner who commits a rape or murder a thousand miles from the seaboard is to be gently restrained, and remitted to a Consul for trial, necessarily at a remote point, where testimony could hardly be obtained or ruled on. 9734 There are today not less than 107 cities and towns in China that are open to foreign trade and residence. The consular tribunals are necessarily limited to a very few of these places, the United States having consular representatives at fifteen. Some of the other nations have less than this, Italy, for example, having but five.35

Today China is bending every effort to secure her international position on the basis of equality with other nations. Extraterritoriality is a distinct impairment of sovereignty. It is a badge of subordination that can exist today only against the will of the nation within whose territory it is maintained; and it can be maintained there only on account of superior force. It thus stands directly in the way of China's growing ambitions.

There are also certain evident disadvantages to foreigners in the system of extraterritoriality. In the first place, as long as this system remains in force China must continue, to a great extent, closed to foreign residence. At present there are certain open ports at which foreigners may reside and trade. Outside of these ports, with the exception of missionaries, who have a greater latitude, foreigners cannot permanently reside. Extraterritoriality stands as an obstacle in the way of opening China to the residence of foreigners on account of their immunity from Chinese law and the improbability that the home government will be able to supply a

32W. W. Willoughby, Foreign Rights and Interests in China, Baltimore, 1920, p. 72. 33 Law Quarterly Review. XIX, 316, quoted in Willoughby, op. cit., p. 72. 34Quoted from the pamphlet of the Chinese National Welfare Society in America, The Shantung Question, A Statement of China's Claims together with Important Documents Submitted to the Peace Conference in Paris, 1919, p. 164.

35 Almanach de Gotha, 1921, p. 678.

sufficient number of consuls or other officials for adequate judicial purposes. Hence many business opportunities in the interior must be foregone as it is not possible to establish branch houses with resident foreigners in charge. Should extraterritoriality be abolished it is believed that the country could be opened to a much greater extent than at present.36 It may be noted, however, that Germany, which has been deprived of the rights of extraterritoriality, has not been granted any additional privileges of trade and residence. According to the Sino-German Trade Agreement of May 20, 1921, German citizens are given the same rights to trade and residence as are open to the nationals of third nations.

Other disadvantages to foreigners are that in their dealings with one another they must take into account a confusing difference in laws; there is a wasteful duplication of courts; there is a difficulty in dealing with certain foreigners because of the inaccessibility of their courts; and there are certain procedural disadvantages resulting from the fact that the court has jurisdiction over the person of the defendant only. The plaintiff cannot be committed for contempt of court; and should the defendant have a good counterclaim to the plaintiff's action he cannot file it in the same suit but must start a separate suit in a court of the plaintiff's nationality. This last is the cause of great inconvenience as the counterclaim is a useful device frequently used in actions of a commercial nature.37

It may be said, however, that these disadvantages to foreigners do not seem to have appealed with any great force to the foreign residents of China, who, as will be shown later, seem only too happy to remain under the system of extraterritoriality.

It has been the general policy of the western states to stipulate for a withdrawal of extraterritoriality upon condition that the oriental state shall bring its laws into accord with the occidental standards. This was the case in the withdrawal of extraterritoriality in Japan in 1899.38 This is the case in a number of treaties with Siam,39 and the stipulation is likewise found in a number of treaties with China, namely with Great Britain in 1902, with the United States and Japan in 1903, and with Sweden in 1908. The clause in the American treaty reads as follows: "The Government of China having expressed a strong desire to reform its judicial system and to bring it into accord with that of western nations, the United

36 See the article, "The Open Ports of China," by Edward T. Williams, in the Geographical Review, Vol. IX, No. 4, p. 306.

37 The Imperial Japanese Government vs. The Peninsular and Oriental Co., 1895, Appeal Cases 644; "The Government of Foreigners in China," A. M. Latter, Law Quarterly Review, Vol. XIX, p. 316.

38 See Hinckley, op. cit., p. 183; John W. Foster, American Diplomacy in the Orient, Boston, 1903, p. 344, et seq.

39 For the text of the American treaty, negotiated Dec. 16, 1920, see the Congressional Record, April 27, 1921, p. 663.

States agrees to give every assistance to such reform, and will also be prepared to relinquish extraterritorial rights when satisfied that the state of the Chinese laws, the arrangements for their administration, and other considerations warrant it in so doing."

THE CHINESE LEGAL REFORMS

Until the latter years of the Manchu dynasty the penal code existing in China was very antiquated, having been promulgated in 1647. In the period succeeding the Boxer outbreak a number of reforms were attempted, which finally, after the establishment of the Republic, resulted in the provisional criminal code of March 30, 1912. Parts of a provisional code for criminal procedure are in force, the judiciary has been reorganized and a partial codification of commercial law has been effected. The results of these enactments has been to remedy, so far as the written law is concerned, a great many of the defects of the former system. The important reforms may be summarized as follows:

Reform of the System of Punishments

The old objectionable penalties have been revised in accordance with modern standards. Capital punishment by strangulation is the only death penalty retained, and this is inflicted within the prison walls. Banishment, wearing of the cangue and whipping with the bamboo have been discarded and instead a system of imprisonment and fines in accordance with modern ideas has been substituted.40 A great many cases in which mitigation of punishment may be taken into consideration are also provided for.11

Prison Reforms

China has made much progress in the abolition of the wretched prison conditions which formerly existed. Forty-one modern prisons had been established in 1919 in the principal cities.42 The Rules for the Government and Administration of Prisons in China, issued by the Minister of Justice, December 1, 1913, are in harmony with modern regulations. They provide for prison labor upon useful work for which some remuneration shall be paid, rewards for good conduct and punishment for bad, proper sanitation, sufficient food and clothing for the prisoners, adequate heating at proper seasons, medical treatment and education of prisoners under eighteen years of age and for those above this age who desire it.

Separation and Independence of the Judiciary

Probably what will prove to be the most far-reaching and fundamental of these reforms is the provision for a separate, independent judiciary, trained in the law. The Constitution of Nanking provides as follows:

40 Provisional Criminal Code, Chapter VII.

41Ibid., Chapter II.

42Pamphlet of Chinese Welfare Society: The Shantung Question, etc., p. 190.

Article LI. Judges shall be independent and shall not be subject to the interference of higher officials.

Article LII. Judges, during their continuance in office, shall not have their emoluments decreased and shall not be transferred to other offices, nor shall they be removed from office except when they are convicted of crimes, or of offenses punishable according to law by removal from office.

A thorough legal education is necessary for judges and professional attorneys. Undoubtedly such a system will in time do much to awaken a scientific spirit in the application of the law which would have been impossible when the courts were controlled by the executive. In fact, already in at least two important cases has the Supreme Court maintained its independence against the President in one instance and Parliament in the other."4

Procedure Is More Humane

The old system of torture to extort testimony and confessions has been discarded according to the terms of the new law. It is provided that in the trial "nobody may thereby be unlawfully subjected to any degrading treatment. ''45 As to the general rights of the accused during the trial, it appears that the procedure follows the continental rather than the AngloSaxon system. There is a secret preliminary examination with no provision for habeas corpus. The jury trial, which was used in the early stages of reform, was abandoned after an unsatisfactory experience. No provision is made for cross-examination. The procedure during the trial, being left to the discretion of the judge, will depend for its fairness largely upon the character of the new Chinese judiciary.46

The New Courts

The Law for the organization of the Judiciary provides for three grades of courts: (1) the District Court or the court of first instance; (2) the High Court or appellate court, established in the provincial capitals and at Peking; (3) the Supreme Court at Peking. According to the statement made by the Chinese representatives at the Peace Conference

43''Law of the Organization of the Judiciary," Chap. XII; "Brief Survey of the Chinese Judiciary," by W. Y. H., Chinese Social and Political Science Review, Vol. V, No. 2, p. 169; "Law Reform in China," by Wang Chung-hui, Chinese Social and Political Science Review, Vol. II, No. 2, p. 13.

44 For an account of these two cases see "The Supreme Court in China,'' by F. T. Cheng, Millard's Review of the Far East, May 28, 1921, p. 673.

45 Provisional Regulations of the High Courts and Their Subordinate Courts, Article 33.

46 The procedure of a trial shall be determined by the judge in accordance with the circumstances of the case, without any restrictions.'' Article 33, above cited; see also "Reform in Criminal Procedure," by Wang Chung-hui, Chinese Social and Political Science Review, Vol. V, No. 1, p. 1.

the Supreme Court and the High Courts have been established and the District Courts are in operation in forty-six districts, these being located at the more important centers of population. To each of the courts are attached procurators or prosecuting attorneys.

47

In by far the greater number of districts the old system of courts prevails, the new courts not having been established.48 In these districts the magistrates or administrative officers retain control of judicial matters. These officials are not part of the independent judiciary; but according to the plans of the Chinese Government this system will eventually be displaced by the establishment of the new courts all over China.49

From the above description of the different phases of Chinese legal reform it can be seen that thorough and scientific plans have been laid to replace the former antiquated system with one which is fully equal to those existing in western countries. A judicial system, however, involves considerations that lie deeper than the outward form as expressed in the written statute, and there is some evidence that the Chinese Government has not been able to put the reforms into full operation.

Owing to the lack of control of the central government and the failure to execute its will throughout the provinces, the new statutes, especially as to procedure, have in many cases been disregarded. Dr. W. W. Willoughby says on this point:

Indeed, so far as the control by the central government of China of the courts in the provinces is concerned, the situation is not as satisfactory under the Republic as it was under the Empire. This lack of control was illustrated while the writer was in China. The Governor of the Province of Chekiang, as an exercise of his own personal judgment, abolished certain courts of justice which the Peking Government had established. Upon being criticized for so doing, he replied that the act had already been done and could not be corrected. He was then admonished in the future to let the central government know his intentions when he had in contemplation acts of the kind complained of. The Governor thereupon wrote his superiors at Peking that he did not wish to hear anything more about the matter since it was his opinion that the central government should never have established the courts in question.50

Although the code prohibits the use of torture, yet it has by no means been done away with, according to the testimony of a number of missionaries and newspaper correspondents in the interior of China. For example, the correspondent of the North-China Daily News for East Szechwan has written concerning the disturbed conditions in that province, stating that

47 Pamphlet of Chinese Welfare Society, cited above, p. 188.

48 According to Morse, op. cit., Vol. I, p. 14, there were in 1906, 1470 districts in the Chinese provinces and Manchuria.

49 For a description of the courts see "The Chinese Judiciary," by Yü Chüanchang, Chinese Social and Political Science Review, Vol. III, No. 1, p. 1.

50 Willoughby, op. cit., p. 69.

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