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Herald attributed the anti-American feeling, which was a partial cause of the crime, to the failure of justice in the case of the murder at Canton.23

An examination of the adjudicated cases compels the conclusion that oftentimes offenses committed by foreigners against the Chinese have not been rigorously punished. In a British case, reported in 1897, it was alleged that the accused, the quartermaster of an English steamer, had pushed a Chinese coolie from a pontoon alongside the steamer into the river, with the result that he was drowned. Two Chinese witnesses swore positively that they had seen the crime committed, and one Englishman swore that he had seen the Chinese slip and fall into the river. It took the British jury five minutes to reach a verdict of not guilty.24 The North-China Herald in commenting upon the case said: "The philanthropist who cannot allow that the value of a man's evidence in a court of law is affected by his colour, his race or his education might be inclined to express some surprise at the issue of the trial.

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The failure to apply the law strictly in cases of crimes against the Chinese is most to be noted in cases coming before the consular courts. Consuls are political officials and more apt than the ordinary judge to be influenced by a regard for their own nationals. A few instances of cases arising in the United States consular courts will serve to illustrate this point.

In one case the accused was found guilty of entering a Chinese tailor shop, knocking down a Chinese boy and attempting to make away with some clothing. When the tailor tried to restrain him the accused fired a revolver at him. The accused was sentenced to pay five dollars to the tailor and was told to leave town. If he returned he would be sentenced heavily.26 Two American sailors, who broke into a Chinese house and assaulted the occupants, were fined fifteen dollars each. The Consul said: "American sailors must plainly understand that when they come ashore in Shanghai they must behave themselves."27 An American serving as constable of the river police at Shanghai, in compelling certain Chinese to move their boat, kicked and struck one of them, causing his death. He was sentenced by the American Consul to eighteen months' imprisonment.28 It is difficult to conceive of a case more pregnant with possibilities of international hatred than this that a police officer of an alien nationality should so brutally mistreat a Chinese subject, and that there should be no recourse but submission to the infliction of a comparatively slight penalty upon the slayer by a foreign tribunal.

23 North-China Herald, Vol. 77, p. 373.

24 Regina vs. Ryan, North-China Herald, Vol. 59, p. 280.

25 North-China Herald, Vol. 59, p. 245.

26U. S. People vs. Nash, North-China Herald, May 14, 1903, p. 948.

27U. S. People vs. McCoy and Taylor, North-China Herald, July 14, 1905, p. 100.

28U. S. People vs. J. G. Munz, North-China Herald, Nov. 4, 1904, p. 1043.

Undoubtedly the creation of the United States Court for China in 1906 had a very beneficial effect upon this situation. The trained judge is ostensibly more apt to make a just and impartial application of the law than a non-judicial officer. Shortly after this court was established a great deal of favorable comment was excited by the prosecutions which were instituted in it and which resulted in cleaning out certain disreputables from among the American element at Shanghai. There is no doubt that so far as the cases which come within the jurisdiction of the United States Court are concerned there has been little cause for complaint. Nevertheless shortly after the opening of this court a case arose which brought forth a protest on the part of the Chinese.

The facts were: In May of 1907 Henry N. Demenil, an American citizen, was traveling in the Province of Yunnan along the Tibetan frontier, contrary to the terms of his passport. The Viceroy of Szechwan had sent with him two Chinese soldiers to act as an escort for his protection. Becoming angry with one of the soldiers for his delay while at a small village, the American obtained possession of the rifle of the soldier and sought to frighten him by firing in his direction. The second shot struck a Tibetan lama, who was travelling along the road a short distance away, and killed him instantly. The prisoner was acquitted on the grounds that there was not the least criminal intent in his act.29

The Prince of Ch'ing of the Chinese Foreign Office wrote the United States Minister, Mr. Rockhill, as follows: "The decision of the judge that the affair was accidental and that no punishment should be inflicted, nor even a fine assessed for the lama's death, how can this satisfy the minds of men or display justice? After thus taking human life he is not

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convicted of any crime, and is not even fined. murdered man is not in the least atoned for.

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chwan and Yunnan hear of this the hair will rise on their heads. In this case justice does not shine and the good name of America suffers.''30

It was explained to him in reply that a fair trial had been accorded the accused, and that according to the Constitution of the United States he could not be retried. Furthermore, the American Government was unable to furnish compensation to the relatives of the deceased, as had been requested; but it was suggested that a civil suit for damages for the death of the lama could be brought against Demenil if he could be found within the jurisdiction of a competent court.31

In commenting on the general situation, W. W. Willoughby, an eminent political scientist with experience in China, remarks: "One cannot shut his eyes to the fact that there is usually a strong bias in favor of his own nationals upon the part of the Consul or other foreign official who 29U. S. vs. Henry N. Demenil, North-China Herald, Dec. 6, 1907, p. 606. 30U. S. Foreign Relations, 1909, p. 56.

31Ibid., p. 62.

tries the case in which the Chinese are plaintiffs or petitioners. ''32 And 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. 7734 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 purHence 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.""

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.41

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.2 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.

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

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