It is interesting to note the reference therein made to “the ancient
precedents of the T’ang and Ming dynasties” and the explanation that the
present rules merely follow those of the old dynasties.
The imperial edict of April 24, 1905, “abolishing cruel forms of
torture,” forwarded to the department in Mr. Coolidge’s No. 1870 of
April 26, 1905,a is another illustration of the principle of
reversion to antiquity as a legitimate excuse for adopting a change of
system.
The inclosed memorial dwells on two important recommendations—(1)
establishment of trial by jury, (2) recognition of a legal
profession.
[Inclosure.]
Memorial of the commissioners charged with the
revision of the code, reporting procedure in criminal and civil
cases.
Your ministers reverently submit to the inspection of Your Majesties
this memorial, announcing the completion of the court procedure in
criminal and civil cases, and pray that an imperial edict may be
issued, putting the same in force, that it may meet with observance
and that the authority of the law may be maintained.
It is the opinion of your ministers that the whole system of laws and
statutes should be adjusted to the exigencies of the times.
Generally speaking, we may consider the Criminal Codeb as a body (of fundamental principles), and
the [Page 346] Rules of Court
Procedure as determining the manner of the body’s action. If the
body (of principles) be defective, there is nothing upon which we
may depend for guidance in determining the intent of the law; and if
the manner of applying the principles be not arranged (beforehand),
it will be impossible to make the operation of the law really
effective. The two things are mutually dependent, and neither one
should be despised. Last year, therefore, your ministers, when
reporting upon the recommendation of the censor, Liu P’engnien, that
interrogation by torture should be abolished, requested that they
might be permitted first of all to compile a set of rules for court
procedure. This request was submitted in memorial, as the records
will show.
Now China includes her (rules for) court procedure and the decision
of cases in her laws and statutes. They follow the ancient
precedents of the T’ang and Ming dynasties, the manner of executing
the law being carefully provided for in the text of the statutes.
Considering all the circumstances of to-day, it is most urgently
necessary to enlarge these provisions so as to make them more
detailed. In all western countries the rules of court procedure are
published in a separate volume, and they are further arranged under
two divisions; those for civil and those for criminal cases. All
cases having to do with debts, houses, lands, title deeds, and
claims for damages are placed under the jurisdiction of the civil
courts. All that have to do with rebellion, counterfeiting the
currency or official seals, plots to murder, robbery with violence,
larceny, swindling, seizing property under threats, and others of
the sort, must be tried, as criminal cases and decided according to
the criminal law. As the rules for the decision of these cases are
all carefully arranged, the work of properly disposing of them
proceeds uniformly in accordance with such rules. Japan formerly
pursued the Chinese practice, but since the revolution she has
followed in the footsteps of the west, and in the XXIII year of
Ming-chin she published in succession rules of procedure for civil
and criminal cases, with the result that citizens of all nations
settled there have all become subject to her jurisdiction, as she
has availed herself of the change to recover her legal jurisdiction.
On looking for the cause of this we find that it is because no
longer as formerly does anyone fail in the settlement of suits at
law to obtain his rights.
In China mixed Chinese-foreign cases are daily increasing in number
and complexity. Foreigners consider our manner of judgment different
from theirs, and there constantly arises a difference of views.
Chinese merchants, too, are not familiar with foreign regulations
and constantly suspect bias, and as such suspicions accumulate
harmony becomes impossible. Every lawsuit growing out of some
ordinary trifling dispute becomes a question for international
investigation. There have been innumerable cases of this sort in
recent years. Unless the rules of court procedure be revised, with
changes of all kinds being permitted and their adoption even being
urged, although the real body (of the law) may be perfect, its
general operation will not be a success, and the judicial
administration will not be improved. The ancient rule in China has
been for the board of punishments to have special jurisdiction of
criminal cases, and the board of revenue in cases concerned with
debt or with real estate transactions, so that some slight
distinction has been made between civil and criminal cases.
As to the department and district magistrates in the provinces, each
unites in himself in one person both administrative and judicial
authority. It is impossible to make any sudden change affecting
official functions, but civil and criminal cases differ one from the
other in their character, and although they may be under the
jurisdiction of the same court, it is important to make a
distinction in the methods of dealing with them. Your ministers, in
the discharge of their duties as compilers, have exercised great
care in comparing and selecting. We found on examining the
regulations of Europe and America that they were grouped under many
headings, and that some of them were not entirely suited to
conditions in China. We have taken into joint consideration only
those which approach somewhat nearer to the measure of China’s
present [Page 347] needs, and have
prepared brief rules of court procedure, making a distinction
between criminal and civil cases. Our inquiries have occupied a long
time, and we are able only now to report the completion of the
rules. Among them are some regulations which are common to all
countries, and of these there are two which our country ought to
adopt. The first is trial by jury. An examination of the “Rites of
the Chou dynasty” shows that the officials having jurisdiction in
capital cases had three methods of deciding upon a capital
sentence.a The third is
called “Taking the opinion of the people,” [which means] that all
the people must approve of the proposed execution, after which the
punishment, acquiesced in both by the officials above and the people
below, is inflicted. Mencius’s statementb about killing by decree of the people fits in
with this; and this indeed is the origin of trial by jury. This
method of deciding upon a capital sentence has been unheard of since
the time of the Ch’in and Han dynasties. The present practice of
other nations, east and west, is nearly identical with the ancient
custom of China.
Certainly the institution of criminal statutes by the Imperial
Government originally grew out of the desire to protect the good and
virtuous and reform the wicked and cruel. It is the disposition of
men to deceive by misstatements, and a single administrator of the
law being limited in his powers of discernment it is not easy for
him to get at the facts; but when a number of men are depended upon
for the hearing and investigation, it is easy to distinguish between
truth and falsehood. If an unworthy criminal magistrate takes bribes
and engages in crooked practices, deciding cases according to his
own feelings, and resorts to fine writing to cover up his offenses
or makes malicious misstatements to implicate others or is guilty of
other such malpractices, it becomes more than ever necessary to
investigate his conduct. We have to request therefore that hereafter
in all the provincial capitals, as well as all large ports of
international trade, and in the mixed court(s) members of the
gentry, wealthy merchants and others shall be invited to lend their
services and a list of jurors prepared, and that in any case in the
trial of which a jury ought to be employed, an experiment be made of
the practice at the proper time in accordance with the plan
submitted herewith.
If the place be a small one, and wanting any persons properly
qualified to act as jurors, the adoption of the practice may be
temporarily postponed, until education shall have become more
general (in the district) when the plan may be put into operation,
and we may hope that judgment will be administered more justly, that
the severity of the punishment by mutual discussion (of the jurors)
will be determined in accordance with public opinion, and that, as a
matter of course, the miscarriage of justice by favoritism as well
as the willful infliction of punishments unduly severe will be
avoided.
The second recommendation is that lawyers ought to be employed. As to
the term “lawyer,” we mean by it “an advocate.” The Japanese use the
term “one who argues in defense.” When the parties to a lawsuit are
brought in fear and trembling into the presence of the court, if
they say much, they talk in a confused way. Hence they employ
lawyers to talk for them. The work of examining witnesses,
confronting them, one with another, and cross-examining them is
performed in the various countries by men who have completed the
course in the law school and received their diplomas. The
Government, too, appoints a lawyer to conduct any important case
which it may have on hand. In the case of poor persons an
association to secure legal assistance appoints attorneys to act in
their behalf, and takes no pay for this service. The effect [Page 348] upon the intercourse
between officials and private persons is certainly not slight.
Heretofore at the various ports of international trade in China
foreign lawyers have already been permitted to practice in the
courts. Worst of all, even the yamens, following the custom of
employing advisers, have depended upon foreigners for defense in
Chinese suits, with the result that much obstruction has been
experienced. For instance, when a case of international concern has
arisen, they have invited such an attorney to conduct the case,
although there is certainly no right principle of action requiring a
man to assist others to the detriment of his own people. On this
account the extraterritorial powers of the consuls grow and extend
themselves. How can one bear to think of the evils that must
afterwards result! We propose to ask, therefore, that henceforth in
each of the provincial law schools, where men are being trained in
the law, a definite number of students of good character,
serious-minded, and well versed in the law, shall be selected, who,
after they shall have completed their courses, shall be examined,
and, if found qualified, shall be given diplomas; after which they
shall be apportioned among the provinces and employed in arguing
cases before the courts.a
If the various schools find it difficult to provide the men needed on
short notice, then each of the said provinces shall select the best
qualified of its legal secretariesb and distribute them among
the schools, with special object of making them more skilled in
their profession, and after they shall have passed their
examinations their assignment for employment shall be taken into
consideration. They shall also be given official rank as an
encouragement. In a word, for every additional upright lawyer the
Government may have there will be in time one more experienced
judge.
The two recommendations made above suggest practices for which our
law makes no provision, but which are of the utmost importance for
the recovery of legal jurisdiction (i. e., for the abolition of
exterritoriality), and we have therefore introduced them both into
our compilation. The whole is divided into five chapters, containing
altogether 260 regulations. We have had a careful copy of this
document made, which we now reverently present for Your Majesties’
inspection. If it shall receive the imperial approval, we further
pray that a special edict may be issued, publishing it to all in the
capital and the provinces for universal observance. As to the two
codes, criminal and civil, we pray that we may be allowed to wait
until we shall have completely arranged our compilations, when we
shall submit a memorial presenting both in full detail.
This memorial of your ministers, submitting rules of court procedure,
and asking that experimental trial of the same be made, is
reverently presented, with a prayer that Your Imperial Majesties,
Empress Dowager and Emperor, will inspect the same and issue
instructions.
(Translated from the Pei Yang Kuan
Pao of May 13,
1906.)