No. 172.
Mr. Denby
to Mr. Bayard.
Peking May 23, 1887. (Received July 5.)
Sir: I have the honor to offer a few observations on the civil law of China. There is no written code applicable to civil proceedings. Nor is there any series of reports of cases. The administration of the law is moulded by the character of the Government. The Government is paternal. It is arbitrary, but it is based on the consent of the people, and it is encompassed by checks which serve to give it some of the elements of a democracy.
The courts do not seem to be bound by any technical rules. It has happened lately that in a civil case the plantiff has been punished corporally for bringing the suit, and the defendant has also been punished, though the plaintiff was adjudged to be in fault.
The villages, the clans, the neighborhood, and the guilds administer justice. The “gentry” are an important factor. They arc elders and men of influence. They sometimes become officials. They often control the officials and order them to do justice. They may be more accurately described as mediators between the people and the officials. The greater part of the administration of the law in China is in the hands of the district magistrates. They are called “the parents of the people.” The duties of this officer are by no means exclusively judicial. He administers the criminal and civil law, and he is responsible for the order of his bailiwick. He collects taxes. He has soldiers under him. He has charge of the literary examinations. Certain days in the month are fixed for the bringing of suits. There are no professional lawyers in China. I am tempted to express the idea that freedom cannot exist in a country which has no lawyers. But there is a class of persons who prepare law papers. They are accounted a shrewd and not very reputable class. The papers first go before the Tipao. This is the lowest of Chinese officials. There are several of them in the cities. He exercises direct and personal control over the people. He acts as constable, makes arrests, and hands the offenders over to the district magistrates. The Tipao puts his seal on the paper. It goes through several hands and is taxed with fees, which do not seem to be excessive. The defendant is summoned. He prepares his defense, which takes the same course as the complaint. Sometimes the defendant bribes the police not to arrest him. But ultimately the parties appear before the magistrates. An appeal lies from the district judge to the department judge, and from that officer to the provincial judge and up to the governor and governor-general, thence to the capital. There appeals are not unusual, and it sometimes happens that the inferior judges are punished by imperial rescript for not having discovered the truth, and for rendering erroneous judgments. There does not seem to be any independence in the judiciary as in other countries. The expense attending litigation, and the principles, above alluded to, that the plaintiff may be punished tor bringing a wrongful suit, cause the Chinese to avoid lawsuits.
The chief peculiarity of the Chinese system is the censorate. Censors represent every province in China. There are 56 in all, distributed over 15 circuits, embracing the eighteen provinces, besides the metropolitan circuit. The duty of these officers is to inform the sovereign upon all subjects connected with the welfare of the people and the conduct of the Government. The censors memorialize the Crown at pleasure, and find [Page 218] fault even with the Emperor. All abuses are brought to the attention of the Government. This institution takes the place of the press in other countries. But unrestrained license is not allowed. I have seen several cases in which the censors have been adjudged to have handed in trivial and unsupported charges and have been summoned before the board of punishments for the infliction of a penalty.
The basis of the civil and the commercial law in China seemed to do the same as that of the common-law custom. As to the commercial law, it seems to be regulated by the rules of the various guilds more than by any other factor. There are some general principles of law which prevail. In China the inspection of a sample is considered final, and the seller is only bound to give goods corresponding with the sample. The principle of caveat emptor prevails.
No contract is considered binding, even if written, unless earnest money is paid.
By Chinese custom the broker to whom goods are intrusted for sale is liable for their value. Brokers who sell goods to parties who fail to pay for them are held liable as principals to pay for the goods.
A servant may be dismissed at any time, being paid up to the time of dismissal. Verbal guaranties are binding. The law of partnership seems to be the same as in other countries. All active partners are held liable for debts of the firm, but sleeping or limited partners are not.
Among the probable reasons why the civil law has not had the same, recognition as the criminal law may be cited the following: The fact that nearly all business is done through compradores, the settlement of disputes by the guilds, the contempt with which the literati look down on trade, and a certain want of power in the Chinese to apply abstract principles to practical results. This is demonstrated in the little practical use that they have made of the various inventions with which they are credited, such as printing, gunpowder, and the compass.
Perhaps the residence of foreigners of all nationalities in China, and the numerous consular and British courts, administering all of the laws under the sun, have contributed to delay the preparation of a code of law.
I have, etc.