From the previous sketch it may readily be gathered that the state of
Chinese law, both civil[*] and criminal, is a very important item in
the sum of those obstacles which bar so effectually the admission of
China--not into the cold and uncongenial atmosphere euphuistically
known as the "comity of nations"--but into closer ties of
international intercourse and friendship on a free and equal footing.
For as long as we have ex-territorial rights, and are compelled to
avail ourselves thereof, we can regard the Chinese nation only _de
haut en bas_; while, on the other hand, our very presence under such,
to them abnormal conditions, will continue to be neither more or less
than a humiliating eye-sore. Till foreigners in China can look with
confidence for an equitable administration of justice on the part of
the mandarins, we fear that even science, with all its resources, will
be powerless to do more than pave the way for that wished-for moment
when China and the West will shake hands over all the defeats
sustained by the one, and all the insults offered to the other.
[*] That is, local custom.
It is in the happily unfrequent cases of homicide where a native and a
foreigner play the principal parts, that certain discrepancies between
Chinese and Western law, rules of procedure and evidence, besides
several other minor points, stand out in the boldest and most
irreconcilable relief. To begin with, the Penal Code and all its
modifications of murder, answering in some respects to our distinction
between murder and manslaughter, is but little known to the people at
large. Nay, the very officials who administer these laws are generally
as grossly ignorant of them as it is possible to be, and in every
judge's yamen in the Empire there are one or two "law experts," who
are always prepared to give chapter and verse at a moment's
notice,--in fact, to guide the judge in delivering a proper verdict,
and one such as must meet with the approbation of his superiors. The
people, on the other hand, know but one leading principle in cases of
murder--a life for a life. Under extenuating circumstances cases of
homicide are compromised frequently enough by money payments, but if
the relatives should steadily refuse to forego their revenge, few
officials would risk their own position by failing to fix the guilt
somewhere. As a rule, it is not difficult to obtain the conviction and
capital punishment of any native, or his substitute, who has murdered
a foreigner, and we might succeed equally well in many instances of
justifiable homicide or manslaughter: it is when the case is reversed
that we call down upon our devoted heads all the indignation of the
Celestial Empire. Of course any European who could be proved to have
murdered a native would be hanged for it; but he may kill him in
self-defence or by accident, in both of which instances the Chinese
would clamour for the extreme penalty of the law. Further, _hearsay_
is evidence in a Chinese court of justice, and if several witnesses
appeared who could only say that some one else told them that the
accused had committed the murder, it would go just as far to
strangling or beheading him, as if they had said they saw the deed
themselves. The accused is, moreover, not only allowed to criminate
himself, but no case being complete without a full confession on the
part of the guilty man, torture might be brought into play to extort
from him the necessary acknowledgment. It is plain, therefore, that
Chinese officials prosecuting on behalf of their injured countrymen,
are quite at sea in an English court, and their case often falling
through for want of proper evidence, they return home cursing the
injustice done to them by the hated barbarians, and longing for the
day which will dawn upon their extermination from the Flowery Land.
On the other hand, the examination of Chinese witnesses, either in a
civil or criminal case, is one of the most trying tests to which the
forbearance of foreign officials is exposed in all the length and
breadth of their intercourse with the slippery denizens of the middle
kingdom. Leaving out of the question the extreme difficulty of the
language, now gradually yielding to methodical and persevering study,
the peculiar bent of the Chinese mind, with all its prejudices and
superstitions, is quite as much an obstacle in the way of eliciting
truth as any offered by the fantastic, but still amenable, varieties
of Chinese syntax. We believe that native officials have the power,
though it does not always harmonise with their interests to exercise
it, of arriving at as just and equitable decisions in the majority of
cases brought before them, as any English magistrate who knows
"Taylor's Law of Evidence" from beginning to end. They accomplish this
by a knowledge of character, unparalleled perhaps in any country on
the globe, which enables them to distinguish readily, and without such
constant recourse to torture as is generally supposed, between the
false and honest witness. The study of mankind in China is, beyond all
doubt--man and his motives for action on every possible occasion, and
under every possible condition. Thus it is, we may remark, that the
Chinese fail to appreciate the efforts made for their good by
missionaries and others, because the motives of such a course are
utterly beyond the reach of native investigation and thought. They are
consequently suspicious of the Greeks--_et dona ferentes_. The
self-denial of missionaries who come out to China to all the hardships
of Oriental life--though, as a facetious writer in the _Shanghai
Courier_ lately remarked, they live in the best houses, and seem to
lead as jolly lives as anybody else out here--to say nothing of
gratuitous medical advice and the free distribution of all kinds of
medicine--all this is entirely incomprehensible to the narrow mind of
the calculating native. Their observations have been confined to
the characters and habits of thought which distinguish their
fellow-countrymen, and with the result above-mentioned; of the
European mind they know absolutely nothing.
As regards the evidence of Chinese taken in a foreign court of
justice, the first difficulty consists generally in swearing the
witnesses. Old books on China, which told great lies without much
danger of conviction, mention cock-killing and saucer-breaking as
among the most binding forms of Chinese oaths. The common formula,
however, which we consider should be adopted in preference to any
hybrid expression invented for the occasion, is an invocation to
heaven and earth to listen to the statements about to be made, and to
punish the witness for any deviation from the truth. This is sensible
enough, and is moreover not without weight among a superstitious
people like the Chinese. The witness then expects the magistrate to
ask him the name of his native district, his own name, his age, the
age of his father and mother (if alive), the maiden name of his wife,
her age, the number and the ages of his children, and many more
questions of similar relevancy and importance, before a single effort
is made towards eliciting any one fact bearing upon the subject under
investigation. With a stereotyped people like the Chinese, it does not
do to ignore these trifles of form and custom; on the contrary, the
witness should rather be allowed to wander at will through such
useless details until he has collected his scattered thoughts, and may
be safely coaxed on to divulge something which partakes more of the
nature of evidence. Under proper treatment, a Chinese witness is by no
means doggedly stubborn or doltishly stupid; he may be either or both
if he has previously been tampered with by native officials, but even
then it is not absolutely impossible to defeat his dishonesty.
Occasionally a question will be put by a foreigner to an
unsophisticated boor, never dreamt of in the philosophy of the latter,
and such as would never have fallen from the lips of one of his own
officials; the answers given under such circumstances are usually
unique of their kind. We know of an instance where a boatman was
asked, in reference to a collision case, at what rate he thought the
tide was running. The witness hesitated, looked up, down, on either
side, and behind him; finally he replied:--"I am a poor boatman; I
only earn one hundred and fifty cash a day, and how can you expect me
to know at what rate the tide was running?"