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Article LI. Judges shall be independent and shall not be subject to the interference of higher officials.

Article LII. Judges, during their continuance in office, shall not have their emoluments decreased and shall not be transferred to other offices, nor shall they be removed from office except when they are convicted of crimes, or of offenses punishable according to law by removal from office.

43

A thorough legal education is necessary for judges and professional attorneys. Undoubtedly such a system will in time do much to awaken a scientific spirit in the application of the law which would have been impossible when the courts were controlled by the executive. In fact, already in at least two important cases has the Supreme Court maintained its independence against the President in one instance and Parliament in the other.44

1945

Procedure Is More Humane

The old system of torture to extort testimony and confessions has been discarded according to the terms of the new law. It is provided that in the trial "nobody may thereby be unlawfully subjected to any degrading treatment. As to the general rights of the accused during the trial, it appears that the procedure follows the continental rather than the AngloSaxon system. There is a secret preliminary examination with no provision for habeas corpus. The jury trial, which was used in the early stages of reform, was abandoned after an unsatisfactory experience. No provision is made for cross-examination. The procedure during the trial, being left to the discretion of the judge, will depend for its fairness largely upon the character of the new Chinese judiciary.46

The New Courts

The Law for the organization of the Judiciary provides for three grades of courts: (1) the District Court or the court of first instance; (2) the High Court or appellate court, established in the provincial capitals and at Peking; (3) the Supreme Court at Peking. According to the statement made by the Chinese representatives at the Peace Conference

43''Law of the Organization of the Judiciary," Chap. XII; "Brief Survey of the Chinese Judiciary," by W. Y. H., Chinese Social and Political Science Review, Vol. V, No. 2, p. 169; "Law Reform in China," by Wang Chung-hui, Chinese Social and Political Science Review, Vol. II, No. 2, p. 13.

44 For an account of these two cases see "The Supreme Court in China," by F. T. Cheng, Millard's Review of the Far East, May 28, 1921, p. 673.

45 Provisional Regulations of the High Courts and Their Subordinate Courts, Article 33.

46''The procedure of a trial shall be determined by the judge in accordance with the circumstances of the case, without any restrictions." Article 33, above cited; see also "Reform in Criminal Procedure," by Wang Chung-hui, Chinese Social and Political Science Review, Vol. V, No. 1, p. 1.

the Supreme Court and the High Courts have been established and the District Courts are in operation in forty-six districts, these being located at the more important centers of population." To each of the courts are attached procurators or prosecuting attorneys.

In by far the greater number of districts the old system of courts prevails, the new courts not having been established.48 In these districts the magistrates or administrative officers retain control of judicial matters. These officials are not part of the independent judiciary; but according to the plans of the Chinese Government this system will eventually be displaced by the establishment of the new courts all over China."

49

From the above description of the different phases of Chinese legal reform it can be seen that thorough and scientific plans have been laid to replace the former antiquated system with one which is fully equal to those existing in western countries. A judicial system, however, involves considerations that lie deeper than the outward form as expressed in the written statute, and there is some evidence that the Chinese Government has not been able to put the reforms into full operation.

Owing to the lack of control of the central government and the failure to execute its will throughout the provinces, the new statutes, especially as to procedure, have in many cases been disregarded. Dr. W. W. Willoughby says on this point:

Indeed, so far as the control by the central government of China of the courts in the provinces is concerned, the situation is not as satisfactory under the Republic as it was under the Empire. This lack of control was illustrated while the writer was in China. The Governor of the Province of Chekiang, as an exercise of his own personal judgment, abolished certain courts of justice which the Peking Government had established. Upon being criticized for so doing, he replied that the act had already been done and could not be corrected. He was then admonished in the future to let the central government know his intentions when he had in contemplation acts of the kind complained of. The Governor thereupon wrote his superiors at Peking that he did not wish to hear anything more about the matter since it was his opinion that the central government should never have established the courts in question.50

Although the code prohibits the use of torture, yet it has by no means been done away with, according to the testimony of a number of missionaries and newspaper correspondents in the interior of China. For example, the correspondent of the North-China Daily News for East Szechwan has written concerning the disturbed conditions in that province, stating that

47 Pamphlet of Chinese Welfare Society, cited above, p. 188.

48 According to Morse, op. cit., Vol. I, p. 14, there were in 1906, 1470 districts in the Chinese provinces and Manchuria.

49 For a description of the courts see "The Chinese Judiciary," by Yu Chüanchang, Chinese Social and Political Science Review, Vol. III, No. 1, p. 1.

50 Willoughby, op. cit., p. 69.

there have been instances in which Chinese have been executed without trial and that torture has often been applied to obtain evidence.51 Rev. G. G. Warren, an experienced missionary in that country, tells of several instances in the Province of Hunan in which torture has been used as in the former days.52 And Rodney Gilbert, in an article on Russians under Chinese Jurisdiction, has set forth a number of instances of cases arising since the withdrawal of recognition from the Russian Government in which the enlightened criminal procedure above described has not been adhered to.53

It must be admitted that some of the evidence on this point comes from persons who are interested in the maintenance of extraterritoriality in China, and their statements must be taken with due allowance for partisanship. Nevertheless there is sufficient testimony of this sort to raise a serious question as to whether the Chinese administration of justice is, or will be in the near future, of such a quality to warrant the relinquishment of extraterritorial rights. The burden of proof is upon China. When that country is able to show affirmatively that the new system of laws has been established and is working satisfactorily and normally, then the United States should be willing and anxious to abide by her treaty promise and, in conjunction with the other powers concerned, relinquish our exceptional jurisdiction.

51In the issue of Jan. 5, 1920, quoted in the article, "Has Extraterritoriality Outlived Its Usefulness," American Bar Association Journal, Vol. VI, p. 224.

52 The Foreigners' Safeguard in China," North-China Herald, April 2, 1921, p. 45. 53 North-China Herald, April 16, 1921, and April 23, 1921. See also North-China Herald, Vol. 115, pp. 131, 449, 826; Vol. 118, p. 426; Vol. 122, p. 678.

EDITORIAL COMMENT

THE SECOND ASSEMBLY OF THE LEAGUE OF NATIONS

Convened on September 5, and adjourned on October 5, the Second Assembly of the League of Nations was in session exactly one calendar month. Thirty-nine nations were represented when the session opened; three were added during the first few days; and three others, Esthonia, Latvia, and Lithuania, were admitted during the session. Thus, forty-five representatives of the fifty-one members of the League, were present. Argentina, Honduras, Guatemala, Nicaragua, Peru, and Salvador were not represented.

Dr. Wellington Koo, as Acting President of the Council, delivered the opening address, summarizing the achievements of the League since the last session, and was warmly applauded by the Assembly, the two hundred journalists, and the invited spectators in the galleries. At the afternoon session Jonkheer van Karnebeek, Minister of Foreign Affairs of the Netherlands, was elected President, and made an address in which he emphasized the substitution of law for armed force in international affairs.

On the following day, six committees were appointed, dealing with (1) Constitutional and Legal Questions; (2) Transit, Health, and Economic Matters; (3) Reduction of Armaments and Blockade; (4) Finances and Internal Organization of the League; (5) Humanitarian and Social Questions; (6) Political Questions. Thus organized, the Assembly was able at the end of the second day to take up the work of its agenda.

The first few days of the session were devoted to the discussion of the Report of the Council in a general debate, in which seventeen different nations were represented. The discussion developed very wide differences of opinion, but was characterized by much frankness of expression and in general by a spirit of toleration. The broad interval between the Council, ruled by the will and interests of the Great Powers, and the Assembly, composed largely of small States, was made evident in the course of the debate, which developed evidence of the sensitiveness of the Council to the criticisms of Members of the Assembly. This was conspicuously manifested in the rebuke administered by the First British Delegate, Mr. Balfour, to the sentiments expressed by Mr. Branting, the First Delegate of Sweden, who expressed the conviction that the Council had not risen to the height of its opportunity. It was evident throughout the meeting that the reservation to itself by the Council of exclusive authority to make certain deci

sions is not agreeable to the representatives of the smaller States, the influence of which, even in its aggregate, where it would be reasonable that it should count, does not have its due effect. As time goes on, there promises to be an urgent endeavor to determine whether four Great Powers, one of them Asiatic and three European, shall be able with the assent of one of the temporary Members of the Council to lay down the law to the Assembly, composed of over fifty States, yet unable to share in important decisions affecting their interests.

The one great triumph of the meeting of 1921 was the success of the plan for the election of a Permanent Court of International Justice. It had been feared that, since the Council and the Assembly were to vote separately in the election of candidates, already nominated by the Hague Tribunal, it might require many days to complete the election. To the gratification of all the result was accomplished without long delay and without friction between the two electoral bodies, although their ballots differed somewhat persistently. The Committee of Mediation provided for in the Court Statute was necessary to break a deadlock, but its good offices were adequate, and fifteen eminent men were chosen to constitute the Court. Among the nine judges who obtained an absolute majority in both bodies was our fellow-countryman, the Honorable John Bassett Moore.

Regret was expressed by representatives of other countries that the American members of the Hague Tribunal had not participated in the nomination of candidates, and that the United States was not represented in the electoral bodies. It was understood that this abstention not only reaffirmed the decision of the United States not to become a Member of the League but that it went far toward emphasizing the fact that the Court, although representing so many States, is not, and is not likely to be, recognized as an international tribunal in the full sense, since representation in it is, by the Statute of the Court, primarily confined to members of the League, with permission to outsiders to appeal to the Court only on conditions to be laid down by the Council. It is, therefore, open to the observation that it is not a universal court but the private court of the League.

The failure to accept the full jurisdiction of the Court, without the consent of both parties, even in justiciable cases, does not advance judicial resort beyond individual option, and thus, although a tribunal is created, it is accessible only as between those nations who mutually agree in each case to submit to its judgments. Happily, eighteen States have now accepted complete jurisdiction in all justiciable cases.

Turning now to some of the more vital matters discussed by the Assembly, but without attempting an exhaustive treatment of the conclusions reached, one of the most important was the reduction of armaments. The fact that the cost of military establishments in Europe is now, notwithstanding the conventional disarmament of Germany, more than three

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