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against the state and the international relations of the state concerning which the offence charged is punishable by imprisonment for three or more years or by more severe penalties. Between 1912 and 1918 this court handled 16,244 cases and gave 819 opinions to lower courts and administrative departments.68 During 1924 it decided 5,961 cases, 3,095 of them civil, 1,637 criminal and 229 mixed cases.69 In 1923 Judge W. Y. Hu, a member of the court of long standing, informed the writer that the court was receiving appeals from every province in China except Kuangtung. Distinct from the ordinary courts is the administrative court, the duties of which "are to try all illegal acts of public officials," with certain exceptions.70

In connection with the abolition of the extraterritorial rights of Russians and Germans special arrangements were entered into respecting the treatment of cases in which they might be concerned. In 1920 regulations were issued establishing Chinese district and high courts in the Chinese Eastern Railway zone and authorizing the employment of foreign advisers and investigators by such courts in a consultative capacity, except in cases between Russians, where they might be employed as assistants." The sixth declaration attached to the Sino-Soviet treaty of May 31, 1924, stipulated the future creation of "equitable provisions for the regulation of the situation created" by the relinquishment of extraterritoriality.72 The Sino-German exchange of notes of May 20, 1921, goes further, providing that German nationals shall be subject to the jurisdiction of "the modern courts, according to the modern codes, with the right of appeal, and in accordance with the regular legal procedure," and shall be entitled to "the assistance of German lawyers and interpreters." 73 The nationals of all other states not possessing extraterritorial jurisdiction are subject to whatever Chinese courts the law of China may determine.

Respecting the feasibility of Chinese administration of the new legal and judicial system, some facts are available from the experience of the Russians and the Germans under it. The most remarkable of these facts is that there has been no special protest against ill-treatment by the government of either, a fact which may be interpreted in more than one way. The Russians have fared worse than the Germans, which has been due largely to the congestion of dockets in the new courts of the railway zone. Five thousand cases were pending in the Russian courts in that area at the date their functions were taken over. Inexperience with the new codes and laws, which even the more skeptical foreign observers admit the majority of the Chinese judges sought 68 Chang, Y. W. "The Chinese Supreme Court," Chinese Social and Political Science Review, Vol. VIII, Jan., 1924, pp. 59–60.

69 China Year Book, 1925, p. 600.

70 For the laws of its organization, jurisdiction and procedure, see China Year Book, 1925, pp. 609-614.

71 Chinese Social and Political Science Review, Vol. V, (a), Dec., 1920, pp. 309–313.

72 China Year Book, 1924, pp. 880-883.

73 China Year Book, 1921-2, pp. 740-741.

faithfully to apply, lack of competent men for judgeships, and lack of funds to secure a sufficient number of good interpreters, were responsible for delay and confusion.74

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On the other hand, the legal adviser of the Soviet Embassy at Peking has stated to the writer that on the whole "The fact of the Union's (S. S. R.) lack of extraterritorial jurisdiction has not been a disadvantage from the standpoint of the legal protection of her nationals in China," that "the new codes for criminal law and procedure" have been applied "and the old civil law,' that "It is understood that the 'Rules for the Application of Foreign Law' have been applied in practice," that citizens of the U. S. S. R. have been confined in new prisons where they have not received preferential treatment nor "suffered very much," that lawyers of the U. S. S. R. have been granted admission to practice in the Chinese courts, that the courts taking jurisdiction "have been in the great majority of cases new courts" and that "the results of appeal to the Supreme Court at Peking are satisfactory in most cases." 75 There is some evidence to suggest that Chinese courts outside the zone of the Chinese Eastern Railway have been too lenient with Russian offenders turned over to them by police in foreign residence areas.76

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The official attitude of the German Legation at Peking is that German nationals have in the majority of cases received substantial justice in Chinese courts. The testimony is not wholly favorable, nor is the satisfaction expressed by the majority complete. One investigator quotes the German sentiment thus: "It is a case of appendicitis. We have all had it. We Germans have had our operation and we are feeling very nicely after it. We hope the others will feel equally well when they have had theirs." Another quotation is evidently from an official representative of Germany, who said: "There have been no serious complaints. Certainly you can find strange things in the Chinese judicial procedure, but not in the judgments. There has not been any case of unjust treatment. The Chinese judges have given the greatest care to the consideration of all cases. In that regard they have acted as fairly as the judges in any other country."77 German objections have been raised effectively, however, against the trial of cases between Germans and either Chinese or foreigners in the Shanghai Mixed Court, in which a non-German foreign assessor decides the issue. The views expressed by Germans indicate a realization in the Chinese courts that they are under observation and that good administration in the treatment of German cases will ensure a less apprehensive attitude from other Powers.

A necessary feature of any judicial system is a proper number of decent jails and penitentiaries. Chinese jails until recently have been filthy, un

74 China Year Book, 1921-2, pp. 638-644.

"Letter of M. Pergament, professor of civil law at the University of Leningrad, temporary legal adviser to the Soviet Embassy, Oct. 7, 1925. "Peking Leader, May 12, 1925, p. 2.

77 Japan Weekly Chronicle, Aug. 20, 1925, p. 230.

lighted wallows, and many of them still are, even where a hopeful magistrate has had the characters for "model prison" written or chiseled over the entrance. There are, however, a number of modern prisons now available, assuredly more than enough for the foreign criminals that will require them. The Peking model prison well deserves its title, since in addition to being well-lighted and clean and providing excellent food and opportunities for exercise, it employs the convicts in a variety of trades.78

An important change that is necessitated by the reform of China's law and courts is the development of a very considerable body of able judges. It will take many years to train a competent corps for the hundreds of district judgeships that are contemplated by the law. Not that the older type magistrates are always unacquainted with the new legislation, but their tradition is that of the old law. From the Chinese point of view, it is essential that such men should be retained in the great majority of communities, where Western ideas and agencies have not yet found an influence. That means that the provincial high courts and the supreme court, which no doubt would deal with cases involving foreigners, should extraterritoriality be abolished, will not find keen competition in obtaining men of modern training but will have difficulty in employing men of experience and mature judgment who are well-versed in the new laws. China also lacks a strong bar. Lawyers have been unknown in China until the last two decades and a tradition of their usefulness and worthiness of hire is still in embryo, so that there exists no reservoir of able lawyers from which to staff the courts. Some would say that this would not be wholly unfortunate as a permanent situation. At any rate it does not affect the foreigner except to increase the business of foreign lawyers.

A great deal less is said today than formerly regarding corruption in the courts. Twenty years ago the view was common, as expressed by one writer, that: "The Chinese are a people who for centuries have become impregnated with chicanery, the practice of deception and dishonesty," "9 but today they are better understood as a people, and their judges of the modern type have proved themselves to be honest, with exceptions, as in all countries. No system of courts could stand wholly upright under the intimidating influence of the military governors and their subordinates, but such causes of malfeasance are not regarded as other than temporary. Adjustments there will have to be, on the part of judges as well as lawyers, to such new temptations as are presented by the corporate form of business concern, but they will be made because, otherwise, as many Chinese already have discovered, the whole economic structure will fall to pieces.

It has been suggested above that the present political condition of China is temporary. That appears to be a fair statement as applying to civil

78 The Chinese delegation to the Versailles Conference gave the number of modern prisons then in operation as 41, distributed throughout all the provinces.

79 Ohlinger, G., article cited, p. 348.

strife and militarism. But in a sense that is more important to the question of extraterritoriality the present situation is the continuance of what has been and it is likely to be permanent. China lacks a strong central government. That is obvious. But she never has had a strong central government, if by that is meant a government able to declare and enforce its will in provincial and local affairs. And she is prospering today under a weak one. Federalism of a very loose type has distinguished Chinese political organization throughout its history. China's governmental institutions have been national in name and her people have thought of the "Son of Heaven" as their common father. But the provinces, the districts and the villages have governed themselves. Wherefore their ability at present to carry on, not simply social and economic, but also political, functions quite as effectively as though the Peking Government did not exist. In the presence of this fundamental fact, any country whose policy it is to assist China in attaining release from extraterritoriality would do well not to set up as the inevitable condition the establishment of a strong central government. Foreigners will have to depend upon the goodwill of the people in the provinces for the effectuation of judicial decisions and the impartial administration of the laws. And it may be anticipated that in no very distant future a recognized constitutional system on a federal basis will have disposed of the issue of national and provincial powers.

CONCLUSION

The important change in the Chinese situation between the eighteenth and twentieth centuries is that in the attitude of the government and the people toward foreigners. From an earlier tolerance the Chinese had turned, under the insults and arbitrary interferences of foreign sailors and foreign priests, to an intense suspicion and dislike of foreigners and a desire to be rid of them. It was this attitude rather than the law and its administrators against which foreigners wished protection. At present the Chinese attitude is one of tolerance mixed with the hope that foreigners will soon take to minding their own business. It is true that there is a great deal of rancorous sentiment being distributed for the benefit of the "imperialistic powers," but it is not directed against individuals, and its purpose is not to “drive the foreigner into the sea," but to obtain from him a continuance of mutually profitable relations upon an equalitarian basis.

Along with the change of attitude has come a sincere, possibly too sincere, effort to reorganize the Chinese Government and reform Chinese law in accordance with the standards which the West has set up for the world and which the West itself is still somewhat below in practice. There is too great a tendency to think of China as a battle-ground of military factions and nothing more. For a generation there has been in process a genuine democratic movement, which has left its mark upon the whole structure of the government, but upon no other portion of it so permanently as upon the

judiciary. In view of the special regard enjoyed by the courts in the West, this parallel development in China is not unnatural. The record of the courts in dealing with German, Russian and other cases has been satisfactory, considering all the circumstances. And the judicial system has functioned as a single organization throughout practically all China, as the mass of appeals entertained by the Supreme Court testifies, in spite of tuchunism. Moreover, not all tuchuns are as bad as some. But regarding them all as rascals, they have no importance in the matter now under consideration, since if they wished to play mah jong with a foreigner's property they would not be deterred by his consuls. Their eyes would be upon his country's gunboats.

Considering these factors, and apart from the political influences urging such a step, it is submitted that there is good ground for the relinquishment of extraterritorial jurisdiction. Not only that, but for going the whole way and making no hard conditions. With such a civilization as the Chinese to assure the elaboration of regular legal principles, with such a problem of adaptation as will have to be met, it would seem to be essential that as early as possible the development of Chinese jurisprudence and of practical rules for its application should be allowed unlimited scope. On the other hand, in view of the comparative growth of republican institutions in China, of the complexity of the newly-adopted Western business methods and of the inexperience and scarcity of judicial timber, it would seem that China would be making a mistake if she failed to employ in her courts eminent legal minds from Western countries, such as might be appointed by her, having no relationship to a foreign government and simply serving as highly qualified advisers without authority other than that which the government might think it advisable to confer. Such a mistake it seems unlikely, from the utterances of her statesmen, that China will make.

Finally, it may well be asked, what is the real issue in the matter of the relinquishment of extraterritorial rights. Is it the apprehension of foreigners that they will be mulcted by Chinese judges and refused the execution of judgments by officials? Is it mistrust of Chinese law and the fear of Chinese prisons? Or is it the vision of losing a very much larger body of privileges which have indeed developed as parasites upon extraterritoriality but which are not essential parts of it, viz., the special position occupied by foreigners in the occupation and government of settlements and concessions, the freedom from taxation, etc.? The question of the relinquishment of extraterritoriality is entitled to be considered on its own merits, unclouded by considerations of a non-juridical character.

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