Minister Rockhill to the Secretary of State.

No. 326.]

Sir: I have the honor to inclose herewith a translation of the memorial prepared by Wu T’ing Fang and Shen Chia-fen, the commissioners charged with revision of the code, announcing the completion of the court procedure in criminal and civil cases.

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.

I have, etc.,

W. W. Rockhill.
[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.

  1. Foreign Relations, 1905, p. 176.
  2. The Chinese Code of Laws has to do almost entirely with crime and its punishment. Hence the Chinese conception of law as a body of principles is that of a system of punishments and the department of justice of the Imperial Government is called “the board of punishments.” It is the aim of the code to provide an appropriate punishment for every possible variety of offense under any possible combination of circumstances, leaving nothing to the judge but the determination of the category to which the case in hand belongs. Hence the memorialists reason that if the body of principles be incomplete—i. e., if any specific case be unprovided for in the system of punishments—there can be no guidance as to the intent of the law.
  3. The “Rites of Chou” says: “The officers having jurisdiction in capital cases had three ways of determining a sentence of death, three reasons for the exercise of clemency, and three for bestowal of pardon, by the use of which the minister of crime was assisted in hearing criminal cases. The first method of arriving at a sentence of death was by taking the opinion of the whole body of ministers, the second by taking the opinion of the inferior officials, and the third by taking that of the people.”
  4. The statement of Mencius, to which reference is made, is found in the conversation with the prince, Liang Hui. Mencius is represented as saying: “When the royal councilors say you may put them to death, do not listen to them. When all the high officers say you may put them to death, do not listen to them. When the people of the state say you may put to death, after you have investigated and found the criminal worthy of death, you may execute him, wherefor it is said the people put him to death.”
  5. This provision for the employment of attorneys and counselors at law in the courts of China is a decidedly new departure, and places the practice of law in this Empire for the first time upon a respectable footing. The study of law as a profession has been frowned upon, and except recently in the ports where foreigners reside no attorney has been permitted to argue a case in court. There is a recognized class of scribes, however, versed in legal phraseology, authorized to draw up petitions and other legal documents.
  6. These legal secretaries are men more or less familiar with the code, employed as private secretaries by the magistrates to assist with their consul in difficult cases. Until quite recently they have had no official standing.