JURISPRUDENCE, NO. II

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?"

Chinese Sketches · 第 24 / 50 题