careful, well-supported statement of actual defects and abuses under the categories above outlined. It is instructive to notice that the criticisms of the system as it has worked out in China generally coincide with those that were directed against it in Japan and in Turkey. The items set down appear not to require elaboration, but it may be of interest to quote briefly from statements that embody certain of them.

One of China's best-informed and most astute young publicists, Dr. M. T. Z. Tyau, said in 1920:

At present the Chinese merchants who are anxious to do business with foreigners do not know where they stand legally. They may have a law-suit with a British firm and the case is tried in the British court. The decision may be given in their favor. In the future they may have another law-suit with an Italian or French firm and the second case is tried in the Italian or French court and the decision is diametrically opposite. The Chinese merchants are confounded.49

Mr. C. M. Bishop, a former American assessor of the Mixed Court at Shanghai, has written:

The strongest plea for the abolition of extraterritoriality lies in the abuse of this privilege on the part of subjects of foreign Powers who use it as a cloak for illegal acts. The continued smuggling of opium and morphine into China is but a single example, although the most striking, of the wrong that is being done to China under the cloak of a foreign extraterritorial jurisdiction.50

Another statement by an American lawyer, formerly resident in Shanghai, illustrates the difficulty of apprehending foreign offenders when the consular courts, as is usually the case, are acting in good faith:

A man need only conceal his nationality to be immune from prosecution. This fact was amusingly illustrated not long ago in Shanghai in the case of the proprietor of a notorious gambling resort. This gentleman exhibited a protean skill in acquiring and shedding his national status. Haled before the American consular court he pleaded that he was a German subject, whereupon the prosecution ended. Taken into the German court, he pleaded American citizenship, and again justice failed. When brought a second time before the American consul he professed to be an Argentinian under Spanish protection. In this way he kept up an interesting game of hide and seek with the servants of the law, and when he had exhausted his changes, quietly slipped away to parts unknown.51

In a number of instances foreign courts have imposed comparatively light sentences upon criminals, greatly to the resentment of the injured Chinese or their survivors and townspeople.52 The evidence of Chinese witnesses " Quoted by Bishop: "Extraterritoriality in China," Chinese Social and Political Science Review, Vol. V (a), Sept., 1920, p. 175.

50 Article cited, p. 177.

51 Ohlinger, G. "Extraterritorial Jurisdiction in China," 4 Mich. Law Rev., p. 348. 62 Williams, B. H. "The Protection of American Citizens in China: Extraterritoriality," this JOURNAL, Vol. 16, Jan. 1922, pp. 48–52.

has been heavily discounted in the absence of any certain gauge to separate the true from the false. It is doubtful whether a Chinese litigant or witness has any greater tendency to lie than a foreigner. But it is undoubted that it takes a Chinese to tell when another Chinese is giving way to that universal tendency. There appears to be considerable justification for alleging that the extraterritorial courts have been on occasion indifferent to justice, while illustrations are many that the nature of the courts and the anomaly of their situation have tended to place Chinese parties at a disadvantage.

11. CHINESE LAW AND COURTS PRIOR TO THE REPUBLIC

The second of the two subjects of inquiry before the international commission on extraterritoriality is "the laws and the judicial system and the methods of judicial administration of China."

China must be regarded as essentially a country of law,-of the genuine application of moral precepts inculcated by Confucius and other classical teachers. These precepts composed her constitution, impregnated her institutes, motivated the judgments of her officials from the emperor to the village council of elders. In the sense of the principles underlying it, all Chinese law was and is universal. That dominant fact is the assurance of her continued unity today, in spite of tuchün and regional civil strife. And the principles of Confucian ethics closely coincide with those of Christianity." The point previously was noted that civil cases have as a rule been left to private intermediaries. A good deal of capital has been made out of this fact as supporting the contention that there is no civil law in China. This assumption overlooks the practice of ultimate reference of civil disputes to the courts and of carrying appeals from the district magistrate to the board of revenue at the national capital, which constituted the final court in all civil matters. No formal distinction was recognized between civil and criminal cases, but in practice a distinction was made. There was always in action the process of checking general against local interpretations of principles. The first rule enunciated by the new Supreme Court of China was: "Civil cases are decided first according to express provisions of law; in the absence of express provisions according to custom; and in the absence of custom according to legal principles." 55

The Chinese state recognized its interest in criminal cases, which were dealt with regularly by the courts, of which there was an elaborate hierarchy culminating in the emperor.56 Reference has already been made to the de

53 Mr. Y. K. Kuo quotes James Lorimer's quotation from Professor Flint: "There is probably not a single moral precept in the Christian Scriptures which is not substantially also in the Chinese classics." Article on "Some Observations on Chinese Legal History," in Chinese Social and Political Science Review, Vol. V (a), Dec. 1920, p. 258.

54 Chang, Y. C., "The Chinese Judiciary," in Chinese Social and Political Science Review, Vol. II, Dec. 1917, p. 82.

65 Chinese Supreme Court Decisions (Peking, 1920), p. 1.

56 Chang, Y. C., "The Chinese Judiciary," p. 78.

veloped character of criminal law in the eighteenth century and to the positive attitude of the Chinese Government toward its prerogative in criminal cases. The criminal law was codified in that century and was translated by Sir George Staunton in 1810.57 It was applied by the officials, who were, as was usual in Europe prior to Montesquieu's work, all-embracing legislators, judges and administrators. Save in Shanghai, Amoy and Hankow, it has been the practice for the regular Chinese courts to hear cases involving foreigners in which Chinese were defendants. In those cities, as above explained, "mixed courts" have handled such cases.

12. LEGAL REFORM

The concept of the relativity of values has begun to creep over from its psychological cradle into other intellectual fields. It gives pause to the ruthless exponent of Western civilization as the pattern for reform in the East. But it has made little headway, as yet, in governmental and business circles. Hence the unvarying condition which the Powers have imposed upon states seeking release from extraterritorial jurisdiction has been the reform of their governmental and legal systems along Western lines. To a degree such lines of reform are the logical consequences of the adoption of Western principles of business, industry, commerce and government. The problem lies in the question of how far Western principles will require modification in adaptation to China and of the ultimate value of principles accepted without full understanding in the effort to meet the terms laid down as conditional to freedom.

Deporta

Law reform began in China in the later years of the Manchus. tion, torture and the use of the "cangue" were abolished. A "Bureau for Law Reform" was created. This bureau completed the first draft of a new criminal code in 1907 and a revised draft in 1910, which was promulgated in 1912 as a provisional code and is still in force. It has been characterized as an adaptation of Japanese law to local conditions and needs. Chinese conditions, like the Japanese, led to the imitation of European rather than Anglo-American law. European law emphasizes the family, Anglo-American the individual; the laws of European countries are codified, those of England and the United States exist in statutes and court and administrative decisions.58 A Draft Code of Criminal Procedure also was completed in 1910 and was promulgated in 1912.59 A draft civil code was framed but not promulgated.

7 Ta Tsing Lu Li (Laws of the Tsing Dynasty). Largely but not wholly penal law. ♪ Wang, Chung-hui, "Revision of the Chinese Criminal Code," 13 Ill. Law Rev., 219–33. The Provisional Criminal Code was published in English in 1919. It may be found in the China Year Book, 1921-2, pp. 372-420. The Second Revised Draft of 1919, published in English in the Chinese Social and Political Science Review, Vol. V (1919), pp. 144–168, and 220-295, has not been placed in effect.

5 Published in English at Peking in 1919.

Since 1914 the business of legal reform has been continuous. In this work some of China's ablest jurists have participated, as members of the Law Codification Commission, among them Tung Kang, the last living authority on ancient Chinese law; Wang Chung-hui, graduate of Yale and of the Inns of Court, who performed the marvelous feat of translating the German civil code into English and is now a deputy-judge of the Permanent Court of International Justice; and Lo Wen-kan, an Oxford M.A. They have been advised by French and Japanese legal authorities. They have investigated local customs in their search for common legal principles. Naturally the most difficult portion of their work has been the preparation of a civil code, and that task has not been completed. They have, however, drafted a considerable body of new law, much of which has been promulgated by the executive, in the absence of a working parliament, and is being applied by the courts. A large part of this law deals with procedure. Another group of laws is supplementary to the criminal code. A third concerns trade and commerce. An effective mining law has been promulgated, also laws regulating copyrights and trademarks and the administration of prisons. A number of laws have to do with the special problems involved in cases affecting foreigners.60

In the revision of the criminal law Chinese jurists do not appear to have eliminated all the features of the old law of homicide which led foreigners to insist upon extraterritoriality. The code recognizes the crime of homicide in Article 311: "Whoever commits the offence of homicide shall be punished with death or imprisonment for life or for a period in the first degree," the last-named involving not less than ten or more than fifteen years. It does not divide homicide into classes and degrees. The mitigations of this harsh principle are not sufficiently numerous or definite, and they appear in articles widely removed from those dealing specifically with homicide. By Article 13 criminal intent is made an essential element of every offence, except where negligence specifically is made punishable by law. And Articles 15 and 16 declare that acts in self-defence are not offences unless the means employed in defence were excessive or caused disproportionate injury. The principal change from the old law is the incorporation of the principle of individualization of responsibility and punishment. The second revised draft, which remains unpromulgated, is more lenient than the first. What is termed manslaughter in American law, therein is distinguished from murder and is made punishable by imprisonment of from one to seven years.61 Causing the death of another person through negligence also is made a separate crime." On August 5, 1918, a body of Rules for the Application of Foreign Laws was promulgated. This declares, inter alia, that "the capacity of a person

63

60 China Year Book, 1925, pp. 596-8.

61 Art. 283.

62 Art. 286.

"China Year Book, 1921-2, pp. 654–7.

is governed by his national law, that the essentials of a marriage are governed by the respective national laws of the parties," that divorces may be granted under "the national law of the husband and the law of China," that "succession is governed by the national law of the deceased," that "real rights are governed by the law of the place where the things are situate," and that "the proper law governing the essentials and effect of juristic acts giving rise to obligations is determined by the intention of the parties. When the intention of the parties is uncertain, their national law governs if they are of the same nationality, but the law of the place of transaction governs if they are of different nationalities."

13. ADMINISTRATION OF THE LAW

Mr. Balfour said at the Washington Conference that he "understood that the difficulty lay not so much in Chinese law itself, as in the administration of this law." Here, without doubt, is the crux of the problem, from the foreign point of view. It involves not only the judiciary but the whole governmental organization. China has been a republic since 1911. Her constitutions have been of two types, "provisional" and "permanent," and at present no constitution exists. They have contained bills of rights but the rights contained in them were those of Chinese citizens. Her presidents have been military men of the clique dominant at the time. Her parliament has been a romantic one, a series of clashes between the "politicians" and the clique-representing presidents. Her provinces have been disjointed units ruling themselves. Their governors have been mandarins turned militarists because force meant power. No one would assert that China has yet found herself as a republic, but that is not remarkable. If there is a natural right of revolution, it would seem to follow that there is also a right to work out the new order of things.65

The courts of the republic are national and are of three grades, district, high and supreme.66 The judges are appointive upon bases of training and experience or of ability shown by examination. Up to date the district courts have been differentiated in only a few localities from the old office of the district magistrate." The high courts are established in the provincial capitals, and in some provinces there are branch high courts. Their jurisdiction is almost wholly appellate. The supreme court sits at Peking in six divisions, four civil and two criminal, and is made up of thirty judges. Its jurisdiction is principally appellate, but it deals originally with offences "Conference, etc., p. 938.

"Quigley, H. S., "Some Aspects of China's Constitutional Problem," in Political Science Quarterly, Vol. 39, Jan. 1924, pp. 189-200; also "The New Break-up of China," in North American Review, Vol. 222, Sept.-Nov. 1925, pp. 102–112.

"The Law of the Organization of the Judiciary was published in English in Peking, and is available in China Year Book, 1912, pp. 326–344. It was promulgated in 1910. It provided for four grades of courts, the lowest of which was abolished in 1914.

"The number given in the China Year Book, 1925, is 58 (p. 602).