LITIGATION
The entire absence of both branches of the legal profession is perhaps
(be it said without disrespect to the majesty of the law) a matter on
which the people of Weihaiwei are to be congratulated, for it enables
them to enjoy their favourite pastime of litigation at a minimum of
cost. The cheapness of litigation in Weihaiwei is indeed in the eyes
of many of the people one of the most attractive features of British
rule: though, if only they could be brought to realise the fact, it is
also one of the most dangerous, for it tends to diminish the authority
of village elders and clan-patriarchs and so to weaken the whole social
structure upon which village life in China is based. The people have
discovered that even their most trifling disputes are more easily,
quickly and cheaply settled by going to law than by resorting to the
traditional Chinese plan of invoking the assistance of "peace-talkers";
for these peace-talkers are usually elderly relatives, village headmen
or friendly neighbours, who must at least be hospitably entertained,
during their lengthy deliberations, with pork and vegetables and sundry
pots of wine, whereas the British magistrate is understood to hanker
after no such delicacies. Thus while the people recognise, with more
or less gratitude, the purity of the British courts and the readiness
of the officials to listen to all complaints, some of the wiser among
them contemplate with some anxiety a system which is almost necessarily
productive of excessive litigation and of protracted family feuds.
There can be no part of the British Empire where litigation costs less
than it does here, and indeed there is probably no part where it costs
so little. There are no court fees, and the magistrate himself not only
takes the place of counsel for both plaintiff and defendant, thereby
saving the parties all legal costs, but also assumes the troublesome
burden of the collection and investigation of evidence.
Until recently there existed a class of licensed petition-writers who
charged litigants a small fee for drawing up petitions addressed to the
court. After several of these petition-writers had been convicted of
bribery and extortion and other malpractices, it was found necessary to
withdraw all their licences and abolish the system. At present every
litigant who cannot write and has no literary relative who will oblige
him by drawing up a petition for him, simply comes into the court when
and how he likes and makes his statement by word of mouth. Unlettered
peasant-folk are garrulous and inconsequential all the world over, and
those of Weihaiwei are not exceptional: so it may be easily understood
that the necessity of taking down long rambling statements made in
rustic Chinese by deaf old men and noisy and unreasonable women adds
no slight burden to the labours of an English magistrate. Unnecessary
litigation is indeed becoming so common a feature of daily life that
the Government is at present contemplating the introduction of a system
of court fees which, while not preventing the people from making just
complaints before the magistrates, will tend to discourage them from
running to the courts before they have made the least attempt to settle
their quarrels in a manner more consistent with the traditional usages
of their country. That something of this kind must be done to check
the present rush of litigants to the courts is daily becoming more
apparent.
In the South Division court[65] the proceedings are carried on entirely
in the Chinese language. The speech of the people, it may be said, is
a form of Mandarin (so called) which after a little practice is easily
intelligible to a speaker of Pekingese. Colloquialisms are naturally
numerous among so remote and isolated a community as the inhabitants of
north-eastern Shantung, and in some respects the dialect approximates
to that of Nanking rather than to the soft speech of the northern
capital.
The absence of Counsel is no hardship to the people, for in China
professional lawyers--as we understand the term--are unknown. "A man
who attempted to appear for another in a Court of Justice," as Sir
Robert Douglas says, "would probably render himself liable to a penalty
under the clause in the Penal Code which orders a flogging for any
person who excites or promotes litigation."[66] In Weihaiwei only
once has a native--in this case a Christian convert--made the least
attempt to conduct a case for and on behalf of another individual,
and he, though it was impossible under British methods to have him
flogged, was duly punished for this as well as for other offences.
In the courts of Weihaiwei, then, as in those of China, each of the
parties to a suit argues out his own case in his own way, though it
is upon the magistrate himself that the duty devolves of separating
the wheat from the chaff and selecting such parts of the litigant's
argument as appear to have a real bearing on the points at issue. In
all essentials, therefore, cases are heard and dealt with in Weihaiwei
very much as they are heard and dealt with in China; thus a man from
the Chinese side of the frontier who comes into court as plaintiff in
Weihaiwei finds himself--especially if he is used to litigation in his
own country--quite at home. As may be easily imagined, lawsuits are
not conducted with the frigid decorum that usually marks the hearing
of a civil case in England; the facts that plaintiff and defendant
appear in person, each to conduct his own case, and that each enjoys
practically unlimited freedom to say what he likes about his opponent
and about things in general, introduce a dramatic element which is
lacking in the more stately procedure of Western law-courts. Instead of
the patient discussion of minute points of law and the careful citation
of precedents and authorities, there are clamorous recitals of real or
imaginary woes, bitter denunciations, passionate appeals for justice.
A rather remarkable feature of all this, however, is the absence of
gesturing. Hands are not clasped or raised to heaven, the movements of
the body show no signs of deep feeling, even the features--though their
owner is inwardly seething with emotion--seem to remain almost passive.
Is this a sign of remoteness from savagery? The people of England
have been singled out as examples of those who make a minimum use of
gesture: but Englishmen cannot be compared in this respect with the
Chinese.
The side-lights that legal proceedings throw upon the moral and
intellectual qualities of the people are inexhaustible in their
variety. Under the stress of a burning sense of wrong or dread of
disaster, or in the intensity of his anxiety to win a lawsuit on which
he has staked his happiness, the Chinese, though he still refrains from
what he considers the vulgarity of gesturing, casts to the winds the
reserve and ceremonious decorum of speech that on more placid occasions
often seem to be part of his personality. He can tell lies with
audacity, though his lies indeed are not always rightly so called, and
he has the most extraordinary aptitude for simulating strong emotions
with the object of enlisting judicial sympathy; but, in spite of these
drawbacks, it is during the prosecution of a lawsuit that the strong
and weak elements in his character stand out in strongest relief.
If the litigant can write (though comparatively few of the people
of Weihaiwei can do so) he is allowed to state his case in the form
of a written petition. A typical Chinese petition may be said to be
divided into three parts: firstly, the "case" of the petitioner is
stated in full, strong emphasis being laid on his innate love of right
and his horror of people who disobey the law; secondly, his opponent,
the defendant, is held up to obloquy as a rogue and a hatcher of
villainies; thirdly, the magistrate himself, to whom the petition is
addressed, is cunningly described as having a marvellous faculty for
separating right from wrong, a highly developed sense of justice, and
a peculiarly strong love for law-abiding people. The defendant, when
summoned, will of course adopt similar tactics. If his case is weak and
he has nothing very definite to urge in his own favour, he will try
to prejudice the magistrate against the plaintiff by describing him
as quarrelsome and fond of lawsuits--no small offence in China. His
petition may then run somewhat in these words, which I translate from a
petition recently received: "Plaintiff is an audacious fellow and cares
not how often he goes to law. He is not afraid of officials and loves
litigation. When he comes home from the courts he uses boastful words
and says, 'What fun it is to go to law.'"[67]
Both plaintiff and defendant consider it a good plan to assume an
attitude of weakness, docility, and a constitutional inability to
contend with the woes thrust upon them by a wicked world. "For several
years," says one, "I bore my miseries in silence and dared not take
action, but now things are different, for I have heard the glad news
that the Great Man[68] settles cases as if he were a Spirit."[69] One
of the commonest expressions in a Chinese petition has an odd look when
it is literally translated: "I the Little Man am the Great Man's baby."
When a lawsuit arises out of complicated family disputes, such as
those concerned with inheritance and adoption, there are sometimes
representatives of four generations in the court at the same time.
Babes and small children, if their rights or interests are in any way
involved, are brought into court by their mothers, not with any idea
that the evidence of infants would be accepted, even if it could be
intelligibly given, but merely in order that the magistrate may see
that the children really exist and have not been invented for the
occasion. Sometimes they appear in the court for the practical reason
that all the adults of the family have come to prosecute their lawsuit
and that no one is left at home to take care of them. The presence of
young boys of twelve or fourteen is very useful, as they are often
able to express themselves and even to state the material points of a
case far more briefly and intelligibly than their garrulous elders. If
the case is an important one the court is often filled by cousins and
aunts and interested neighbours of the litigants, and these people are
all ready to swear that plaintiff or defendant, as the case may be, is
a man of pre-eminent virtue who has never committed a wrong action or
entertained an unrighteous thought in his life, while his opponent is a
noted scoundrel who is the terror and bully of the whole countryside.
These exaggerations are merely resorted to as a method of emphasising
one view of the matter in dispute, and are not, as a rule, seriously
intended to mislead the magistrate so much as to give a gentle bias to
his mind. If, as very frequently happens, the magistrate has occasion
to ask a witness why he has made a number of obvious and unnecessary
misstatements, he merely replies with childlike blandness: _Ta_ _jên
mien-ch'ien hsiao-ti pu kan sa huang_--"In the Great Man's presence the
Little One would not dare to tell a lie."
When arguing out their cases in court litigants seldom lose their
temper--always a sign of very "bad form" in China--but they often
assail each other in very vigorous language. Men of some education
often make a show of leaving it to the magistrate to unmask the evil
nature of their opponent. "If the magistrate will only look at that
man's face," they say, "he will see that the fellow is a rogue." The
remark of course implies, and is intended to imply, that the magistrate
is a man of consummate perspicacity who cannot be deceived.
What constitutes one of the gravest difficulties from a European point
of view in settling civil disputes between Chinese is that the plain
unvarnished truth is seldom presented, even when a recital of the bare
facts would be strong enough to ensure a favourable judgment. Yet I
am far from wishing to imply that the Chinese are naturally liars. An
inaccurate statement unaccompanied by an intention to deceive does not
constitute a lie; and many such statements habitually made by Chinese
do not and are not intended to deceive other Chinese to whom they are
addressed. That they often deceive a European is no doubt a fact; but
the fault lies with the European's want of knowledge and experience of
the Chinese character, not with the Chinese, who are merely using forms
of speech customary in their country. Why should a Chinese be expected
to alter his traditional way of saying things merely because it differs
from the foreign way? I am not convinced that a Chinese intentionally
deceives or tries to deceive his own countrymen--that is, lies to
them--much oftener than the average European deceives or tells a lie
to his neighbour. Before we say of a Chinese, "This man has told me a
lie," it would perhaps be well to ask ourselves, "Is the statement made
by this man intended to deceive me? Is it such that it would deceive
one of his own people?"
Perhaps it should not be necessary to labour this point, but there is
no doubt that missionaries and others who feel irresistibly impelled
to emphasise the darker sides of the Chinese character are apt to make
the most of the supposed national predisposition to falsehood. For
instance, the Rev. J. Macgowan in _Sidelights on Chinese Life_[70]
says, much too strongly, "It may be laid down as a general and
axiomatic truth, that it is impossible from hearing what a Chinaman
says to be quite certain of what he actually means." On the other
hand, I have known missionaries accept the word of their own Chinese
converts, as against that of non-Christians, with a most astonishing
and sometimes unjustifiable readiness. Some go so far as to imply
that a non-Christian Chinese who speaks the truth is a person to be
marvelled at. "_Albeit he is a Confucianist_," wrote a missionary to
me, "this man may be relied on to speak the truth."
The foreigner who wished to prove that the Chinese are liars might
find abundant proof ready to his hand in the false evidence that is
given every day in the Weihaiwei courts. Yet the longer and oftener
he watched and listened to Chinese litigants and witnesses, the less
satisfied would he become as to the reliability of his "proof." The
English magistrate finds that as time goes on he becomes less and less
likely to be deceived or led astray about any material point owing to
the direct misstatements of witnesses. It is not so much that he "sees
through" them as that he understands their points of view. To say that
in due time he will be totally free from any liability to be misled
would, of course, be to claim for him infallibility or omniscience;
but there is no doubt that as his knowledge and experience of Chinese
character grows, the less ready will he be to label the Chinese crudely
as "liars." For the native magistrate, who knows without special
training his countrymen's character and their peculiarities of thought
and speech, it is, of course, much easier than it is for the European
to detect the element of truth that lies embedded in the absurd and
inaccurate statements made before him in court. To say that even a
Chinese magistrate can always be sure when a man is speaking the truth
would certainly be ridiculous; there are accomplished liars in China as
in Europe, just as there are forgers so skilful that they can deceive
experts in handwriting; but he is at least able to make allowances for
inaccuracy and hyperbole which, though they may deceive the foreigner,
will not deceive the native, and should not therefore be condemned as
deliberate falsehood.
Instances of these exaggerations and misstatements occur every day
throughout China and in Weihaiwei. If A wants redress against B, who
has removed a landmark and encroached upon his land, he will probably
add, in his petition, that B is the author of deep villainies, a
truculent and masterful dare-devil, and a plotter of conspiracies
against the public welfare. One such petition contained remarks which
I translate almost word for word. "After I had discovered that he had
stolen some of my land I went to his house and tried to reason with
him in a persuasive manner. He refused to listen, and reviled me in
the most shocking terms. He then seized my mother and my children and
beat them too. They are covered with wounds and unable to stand; in
fact, they are barely alive. So I had no resort but to approach the
magistrate and ask him to enquire into the matter so that the water may
fall and the rocks appear (that is, the truth will be made manifest),
justice will be done to the afflicted and the cause of the humble
vindicated, and the gratitude of your petitioner and his descendants
will be without limit." The real point at issue was the disputed
ownership of the land. No physical wounds had been inflicted upon any
member of the family, and no fighting had taken place; but hard words
had been freely bandied about, and the female members of the family,
as so very frequently occurs in China, had shrieked themselves into a
paroxysm of rage which had left them exhausted and voiceless. To have
taken the good man at his word with regard to the assault, and to have
called upon him to produce evidence thereof, would have caused him pain
and astonishment. All he wanted to do was to make out that his opponent
was a rascal, and was therefore the kind of person who might naturally
be expected to filch people's land.
But how, it may be asked, is the magistrate to know which is the true
accusation and which is the false one? There are many indications to
guide him, and a short cross-examination should elicit the true facts
very quickly, even if the wording of the petition itself were not
sufficient. In this particular instance it need only be pointed out
that had a murderous assault really taken place, the victims would
certainly have been brought to the court for a magisterial inspection
of their wounds. Had they been unable to move they would have been
carried in litters. That the wounds in an assault case should be shown
to the magistrate as soon as possible after the occurrence is regarded
as very necessary--and naturally so, considering how little value could
be attached, in the present state of medical and surgical knowledge
in China, to the evidence of a native doctor. Sometimes the court is
invaded by a wild-looking creature with torn clothes and matted hair,
who, judging from the blood on his face and head, must be covered with
hideous gashes and gaping wounds. He begins to blurt out accusations of
brutal assault against his neighbour; but before allowing him to pour
forth his tale of woe, a wise magistrate will require him to be removed
and well combed and washed. In all probability he will come back a new
man, the picture of good health, and free from stain or bruise; and if
he is asked to show his wounds, he will point to a long-healed scar,
or a birth-mark, or some slight scratch that might have been, and quite
possibly was, inflicted by his neighbour's wife's finger-nails. Then,
not in the least degree abashed, he will proceed to tell the tale of
his real woes, and will make no further reference to the little matter
of his physical ill-treatment.
The causes of litigation in Weihaiwei are endless, but a large
proportion of the cases are the results of more or less trivial family
quarrels. When a father has resigned the family property into his sons'
hands and becomes dependent on them for support, he ceases to be the
active head of the family. He must of course continue to be treated
with obedience and respect, and very few fathers in China have any real
cause to accuse a son of unfilial behaviour. But very old men, in China
and elsewhere, often become petulant and hard to please, and it is they
who, perhaps in a fit of temper, are the most likely to bring actions
against their sons and daughters-in-law. An apparently crazy old man
came to me with this story. "I am ninety-two years old. My son Li Kuei
is undutiful. He won't feed me. I have no teeth, and therefore have
to eat soft things, and his wife won't cook them for me." The facts
(easily ascertained by the court) were that the old man's digestive
powers were failing, and that being unable to assimilate even the
softest of food, he erroneously fancied himself to be ill-treated.
Having discovered that he had several nephews who were ready to protect
him in the case of any real grievance, I informed him that out of
consideration for extreme old age the court could not allow people of
over ninety years old to prosecute their suits in person when they had
relatives to do it for them. But if the poor man had lost his teeth, it
was clear that the court had erred in supposing that he had also lost
his wits; for after acquiescing in the ninety-year rule and going away
without a murmur, he reappeared two days later and explained that he
had made a stupid mistake about his age: he was not ninety-two, but
only eighty-eight.
The next case chosen as typical of Weihaiwei deals with a quarrel
between a woman and her male cousin. "I have two houses," said the
man. "I mortgaged one of them to my cousin (a woman), but subsequently
redeemed it. Then I went to sea for several years. On coming home this
year I found that she had treated the house as if it were her own,
though I had long since redeemed it. She had also annexed some of my
furniture. I told the headman. The headman said I had better let my
cousin have her own way for the sake of keeping the peace. I agreed.
But I have a nephew to whom I want to give the house. My cousin refuses
to let him take possession." The difficulty about the house was duly
settled by the court, but a few days later the plaintiff returned with
further complaints. "I have now nothing to say against my cousin,"
he said, "except that she has stolen some more of my furniture--my
cooking-pot, to be precise--and has torn down some of the thatch of
my roof to light her fire with. She also reviles me in public and in
private. I do not want her to be severely punished, but I should like
her to be admonished by the magistrate."
Serious cases very frequently arise out of the most trumpery quarrels
and differences of opinion between one villager and another. If men
only are concerned in such a quarrel their own good sense, or that of
their neighbours, usually prevents the matter from going to extremes,
but if women are concerned, cases of homicide or suicide are sometimes
the outcome. The question of the ownership of a few blocks of stone was
the origin of a quarrel that might easily have had a tragic ending.
The plaintiff's statement in court was as follows: "I accuse Chiang
Tê-jang of beating my wife and myself. At sunset I went home and found
that defendant had beaten my wife. I went to his house, and he met me
at the door. I reasoned with him, and said that if my wife had given
any cause of complaint he should have told me about it. He replied that
my wife deserved a beating. I asked him why he didn't beat me instead,
whereupon he at once took me at my word and thrashed me soundly."
In reply to questions he went on: "I did not strike him back, as I
would not be guilty of a breach of the peace, and thereby appear to
be holding the law in contempt. After I had been beaten I went home.
My wife told me the defendant had beaten her because she refused to
let him take away some stone from our backyard. The stone belonged to
me." In answer to this the defendant stated: "I never struck plaintiff
or his wife. The stone is my own. Plaintiff's wife was fighting with
my mother, and my mother scratched her face. My mother got the worst
of the fight. She is lying in a basket outside the court, as she is
unable to move. I brought her here to have her wounds inspected by the
magistrate."
The more intelligent members of the Chinese community of Weihaiwei
soon discovered, after the arrival of the foreigners, that the British
system of administration and of dealing with civil suits in the Courts
differed from that of China in nothing so conspicuously as in the
absence of "squeezes" and the ease with which the magistrate could
be directly approached by the poorest litigant. There are always
large numbers, however, who are afraid to bring their plaints direct
to the court, either from a fear that they will be prevented by the
police or other native employees of the Government from gaining the
foreign magistrate's ear, or because they dare not openly bring a
lawsuit or make accusations against some influential person or family
in their own village. For the benefit of such timid individuals I
long ago set up, on the roadside in the neighbourhood of the South
Division court, a locked letter-box for the reception of any and
every description of petition or memorial which the writers for some
reason or other preferred not to bring openly to the court. Into this
box, the contents of which are examined by myself alone, petitions of
various kinds are dropped almost daily: and though a large majority
are anonymous denunciations of the private enemies of the writers,
and are immediately destroyed, a considerable number have led to some
discoveries of great value from the administrative point of view,
and have sometimes greatly facilitated the labours of the court in
ascertaining the rights and wrongs of pending cases.
If the petition-box served no other good purpose it would still be
useful as throwing interesting lights on certain aspects of the
character of the people. The petitions received through this medium
are so heterogeneous that it is difficult to select a typical specimen
for purposes of illustration; but the following translation of a
document recently found in the petition-box may give some idea of the
characteristic features of a large class.
"Your Honour's nameless petitioner humbly exposes the evil deeds
of a brutal robber who is headman of the village of ----. He and
his son ill-treat the people shamelessly. At ploughing time he
continually encroaches upon his neighbours' lands, and if they
question him on the matter his mouth pours forth a torrent of evil
words and he reviles them without ceasing. He says, 'I am the
headman of this village and a person of importance. As for this
trifling matter of your boundaries, I will treat you exactly as I
please, for you are all my inferiors.' On other occasions he says,
'My family is wealthy; I have one hundred and thirty odd _mu_ of
land. In my house I have silver heaped up like a mountain.' In our
village there is a right-of-way to the well, which is situated on
a slope at the edge of his land; but he has forbidden us to use
this path any longer. In our village there is also an old temple
called the T'ai-p'ing An, and there is an ancient right-of-way to
it for the use of people who wish to burn incense at the shrines.
This path also he has blocked up. He declares that the spirits of
the dead may use this road, but he will not allow living men to use
it. Further, he says, 'If any one in the village refuses to obey
me, let him beware! I am headman and have great influence, and if I
were to fall upon you it would be as though the sacred mountain of
T'ai were to fall and crush you.'
"Sometimes, also, he tells us that he will have us taken to the
Magistrate's yamên for punishment. Thus we poor petitioners are
afraid to put our names to this memorial. But we earnestly beg
the Clear-as-Heaven Magistrate to enquire into this man's conduct
and have him severely punished. Degrade him from the position of
headman; lock him up in gaol for several years; inflict a fine
of several thousand dollars upon him--he has plenty of money in
his house. Thus will the people be made happy at last, and your
petitioners' gratitude will endure through all ages to come. We
implore the Clear-as-Heaven venerable Magistrate quickly to make
investigations and to inflict punishment, and thus save the people
and release them from their woes. Then not only through Weihaiwei
will his fame roll like thunder, but the people who live in Chinese
territory will all come to know how god-like are his judgments, and
his reputation will shine with the combined brilliance of sun, moon
and stars."
The magistrate is supposed to be a kind of living embodiment of all
the Confucian virtues, and therefore to look with extreme favour on
any one whose words or conduct show him to be dutiful to his father,
punctilious in serving the spirits of the dead, respectful to old
age, a wise and good parent, industrious, honest in his dealings with
his neighbours, and law-abiding. No litigant neglects an opportunity
of showing that he possesses each and all of these qualities; and
sometimes it is done cleverly and with an appearance of artlessness. A
man brought an action against another for debt. In the course of his
statement he said: "Whenever I demand the money from him he reviles
me. (Cross-examined). I never reviled him in return. I didn't dare to
do so because he had a beard and I had none. How could I dare to revile
a man with a beard?" This of course means in plain language, "He was my
elder, and therefore I with my well-known regard for the proprieties
could not presume to answer him back." It is not usual in China for a
man to grow a beard or moustache until he has reached middle age.
A litigant also tries to ingratiate himself with the magistrate by
an affectation of extreme humility. A villager is asked if he can
write. He says no. When it is subsequently discovered that he can read
and write with fluency and he is taxed with his falsehood, he merely
explains that he did not dare to boast of his accomplishments in the
presence of the magistrate. The meaning is that the magistrate's
scholarly attainments are (theoretically) so overwhelmingly brilliant
that the litigant's own poor scraps of learning sink into utter
nothingness by comparison. In other words, it is politeness and
humility that impel the man to say he cannot write.
Among the cases that cause the greatest difficulty and sometimes
embarrassment to an English magistrate are those that turn on some
foolish old custom or deeply-rooted superstition. Sometimes it happens
that by deciding the case one way the magistrate may be upholding a
popular view at the cost of doing violence to his own feelings of what
is right and proper; by deciding it in another way he may provoke a
strong local feeling of resentment against the ignorant judgments of
foreigners who do not understand the ways of the people. As a rule
it is best to ascertain the views of the oldest and most respectable
members of the village or district concerned, and give judgment
accordingly. It is interesting to observe that the old folks will not
in all cases give their vote for the pro-superstition view. A lawsuit
of the kind referred to arose recently out of a dispute in a village
as to the digging of a well. The plaintiffs petition ran as follows:
"Near our village there is a well which supplies good water. As it
was a long way to this well from the further end of the village it
was decided some years ago to sink a new well opposite the house of
Wang Lien-tsêng. This was done, and unfortunately soon afterwards
a man was drowned in the new well. Then the elders discussed the
matter and agreed that as the spot was evidently an unpropitious
one for a well it must be abandoned. A new well was sunk near my
house. Soon after this well was opened for public use my eldest boy
took ill. He spat blood for seven months and then died. This was
not the only piece of bad luck that befell me: I got into trouble
somehow and was sent to gaol. This second well was then also filled
up and abandoned. No more well-boring was undertaken for a long
time, but recently there has been a fresh agitation among some of
the villagers who say they must have a second well. I and the best
people in the village think matters had much better be left as they
are, as well-boring has been proved to be highly dangerous in our
village. Wang Ming-hu is the principal agitator, and he declares
that the well which started my misfortunes may be safely reopened,
as three years have passed since the last time it caused death."
In this case the agitator--perhaps a trifle less superstitious than his
neighbours--got his way, and the results do not seem to have caused any
rise in the local death-rate.
No one who has lived in China requires to be reminded of the strange
pseudo-science of _fêng-shui_, which includes among its various
branches and subdivisions a method of divination whereby lucky sites
are chosen for buildings of all kinds and especially for graves.
A master-in-fêng-shui, as one might render the term _fêng-shui
hsien-shêng_, is one who gives his services, not gratuitously, to
persons who wish to find a propitious spot for the erection of a new
dwelling-house or (as in the case just quoted) the boring of a well
or the burial of a deceased relative. The richer and more patient the
client, the longer, as a rule, will the _hsien-shêng_ take to complete
his calculations, and the larger will be his fee.
A very important point to remember with regard to the selection
of lucky sites for graves is that the solicitude is not only for
the deceased but for the present generation and its descendants as
well.[71] A carefully-selected burial-ground brings, it is believed,
peace to the ancestors down in the Yellow Springs of the Underworld and
also ensures an endless progeny of descendants who will enjoy wealth,
distinction and longevity. The two words _fêng-shui_ mean nothing
more than "wind and water," but their esoteric connotation, if we
were to do it justice, could hardly be elucidated in a whole chapter.
Fêng-shui that was originally good may be ruined through a change in
the course of a river, the erection of new buildings in the immediate
neighbourhood, the opening-up of virgin soil, and through an endless
variety of other causes.
The well-known Chinese dragon often plays a conspicuous part in matters
relating to fêng-shui. To the true believer, indeed, the hills and
rocks are not dead things, but animated with a mysterious kind of life
which is apart from and yet has strange influences over the lives of
men. Threatened disturbances of fêng-shui have frequently been the real
or pretended cause of Chinese opposition to the opening of mines and
the building of railways: and the popular feelings in the matter are so
strong (though they are gradually weakening) that the official classes
are obliged to treat the superstition with an outward respect which
it is fair to say is on their part generally simulated. Yet it is by
no means ignored by the highest in the land: the tombs of the Chinese
imperial family are always selected after a most careful scrutiny of
the spots favoured by the best fêng-shui. The case to which I am about
to allude arose out of a quarrel concerning the proposed opening of a
stone-quarry in the vicinity of an ancestral graveyard. The dialogue
that took place in court proceeded somewhat as follows, though the
speeches are much abbreviated.
_Plaintiffs._--We object to the quarry. The land is defendants'
own and we do not claim any rights over it, but it is close to
our ancestors' graves, and is certain to injure the fêng-shui. We
should not object to a quarry on the far side of the hill, which
cannot be seen from the graveyard. Our ancestors left word that if
a quarry were opened on the far side it would not matter. Why don't
the defendants go to that side?
_Defendants._--The land belongs to us and our deeds are in order.
We assert that plaintiffs have no right to interfere with our
quarry, and we do not see how the fêng-shui of their graves can be
affected. We don't go to the other side of the hill because there
is no stone there.
_Plaintiffs._--There is a dragon in the hill and it lives under the
graveyard, and it extends to the place where the defendants have
wickedly started to quarry. If the hill is cut into, the dragon
will be hurt.
_The Magistrate._--I do not think the dragon would raise any
objections to the quarry. In fact he would no doubt feel much more
comfortable if the stone were moved away. He probably finds it very
heavy. In that case your fêng-shui would be immensely improved by
the opening of the quarry.
_Plaintiffs (with perhaps the least suspicion of scorn at the
foreign magistrate's ignorance)._--The stones in the quarry are the
dragon's bones.
Hardly less important than the choice of a well-situated grave is the
_ante-mortem_ provision for a becoming funeral. It is well known that
among the poorest classes the most acceptable present a dutiful son can
give his father is a handsome coffin; and it is a real satisfaction
to a humble labourer or farmer to know that, however poor he and
his family may be, there will be no doubt about his being laid to
rest in a thoroughly respectable manner. The coffin--a large and most
cumbersome article--is sometimes deposited during the owner's lifetime
in a Buddhist temple, but this costs money; so it is frequently allowed
to occupy an honourable corner in the family living-room, where it
becomes the pride of the household and the envy of less fortunate
neighbours. The presentation of a coffin to the head of a family by
his dutiful and affectionate sons is sometimes made the occasion of
an "At Home," to which are invited all relatives and friends who live
in the neighbourhood. The visitors are expected to congratulate the
proud father on his new piece of furniture and on his good fortune in
possessing exemplary sons, to express unbounded admiration for the
coffin, and to compliment the sons on the filial devotion of which they
have just given so admirable a proof.
In Weihaiwei, litigation arising directly or indirectly out of disputes
concerning coffins is fairly common, owing to the fact that timber
is scarce and good coffins correspondingly expensive. The rights
of ownership over a single tree or a group of trees are for this
reason hotly contested, though the intention of using the timber for
coffin-making is not always mentioned in the pleadings. One T'sung
P'ei-yü made his complaint thus: "I was one of three sons. When the
family property was divided between the three of us by our father's
instructions, my eldest brother was given the house in which we had
been brought up. But in the garden there was a fir-tree, and our
father, before he died, specially declared that this tree was to be
regarded as mine, in order that I might make myself a coffin out of it.
The village headman can bear witness to this, and all the neighbours
know that what 1 say is true. This happened seven years ago, and no one
contested my claim to the tree until the tenth day of this moon, when I
went to the garden to cut it down. To my surprise I was stopped by my
elder brother's wife, Ts'ung Liu Shih, who refused to let me touch it.
I am a man of peace and dared not take the law into my own hands, so I
appeal to the court for help." The end of the case was that some of the
neighbours--doubtless sympathising with the plaintiff in his laudable
and natural longing for a good coffin--offered to "talk peace," and
there was an amicable settlement out of court. The plaintiff got his
tree but had to spend the amount that a good coffin would have cost in
entertaining his genial neighbours at a feast. What became of the elder
brother's wife did not transpire.
From coffins to ancestral worship the transition is easy. Very numerous
cases might be cited in which the magistrate is called upon to decide
subtle questions--such as could seldom arise outside China--connected
with adoption, inheritance, the guardianship of lands devoted to
sacrificial purposes, and the custody of ancestral tablets. During a
journey in western China I had some conversation with a missionary on
this and allied topics. When I mentioned that the ancestral tablets
were frequently produced in court as part of the evidence in a lawsuit
and sometimes remained in the magistrate's custody for several days,
the missionary remarked that he presumed I took advantage of such
occasions to talk seriously to the "heathen" on the wickedness and
folly of "idolatry." The fact that the people of Weihaiwei are still in
the habit of appealing to the British courts for judgments in cases of
this kind, is sufficient to show that the missionary's assumption was
incorrect.
The Chinese magistrate being in theory the father of his district, he
must not merely hold the balance between his people when they come to
him with their quarrels; he must not merely punish the offender and
vindicate the cause of the oppressed: he must also instil into the
minds of his "children," by word and example, a submissive reverence
for the doctrines of the ancient sages, which include proper respect
for tradition, a dutiful obedience to all properly-constituted
authority, whether in family or in State, and the practice of courtesy
and forbearance in all dealings with neighbours and strangers. Some
of the most valuable of the Confucian maxims are summed up in the
"Sacred Edict," which, though it only dates from the time of K'ang Hsi
(seventeenth century), is entirely based on the Confucian teachings
and is very well known--by name if not by its contents--to the vast
majority of the Chinese people. Whether Chinese magistrates always
fulfil their functions either as models or as teachers of virtue is a
matter which does not concern us.
In Weihaiwei, where the King's Order-in-Council justifies a magistrate
in giving effect to Chinese customs and practices, I have frequently,
in delivering judgments in both civil and criminal cases, used
appropriate texts taken either from the Confucian classics themselves
or from the Sacred Edict, for the purpose of giving my hearers little
moral discourses on points suggested by the cases before me. If, for
example, two neighbours have quarrelled over some trifling matter I
tell them of the wise words used by K'ang Hsi and his commentators
with reference to the observance of harmonious relations among people
who inhabit the same village. I remind them, perhaps, that "if
fellow-villagers quarrel with one another and neither is willing to
forgive, then the result will be a state of enmity which may not only
last all their own lives, but may embitter the lives of their sons and
grandsons, and even then peace may not ensue."
On one occasion on which I had quoted a passage from the Sacred Edict a
local missionary pointed out to me that I could have found a far more
appropriate text for my purpose by turning to a certain passage in the
Bible to which he referred me. He was very probably quite right, though
I did not verify his Biblical reference: but it would no more occur
to me, in addressing a crowd of Chinese from the magisterial bench in
Weihaiwei, to read them passages from the Bible than it would occur to
a judge in England to entertain the jury or the prisoner at the bar
with quotations from the Zend Avesta or the Institutes of Vishnu. Is
it not probable that an ordinary Chinese peasant will think more of
his magistrate's ethical views and be more likely to profit by them if
the magistrate bases his discourses on teachings which the Chinese and
his ancestors have always been taught to hold sacred, rather than on
strange-sounding quotations from a book he has never heard of?
From the examples given of some of the questions that come up for
decision in the courts of Weihaiwei it may be seen that in this
outlying part of the British Empire, no less than in India and the
rest of our Asiatic possessions, the chief qualifications necessary
for a judge or magistrate are not so much a knowledge of law and legal
procedure as a ready acquaintance with the language, customs, religious
ideas and ordinary mode of life of the people and an ability to
sympathise with or at least to understand their prejudices and points
of view. Perhaps no Englishman, no European or American, can hope to
administer justice or exercise executive functions among Asiatics in
a manner that will win universal approval. If he becomes too fond of
the natives he runs the risk of becoming de-occidentalised. Morally
and intellectually he becomes a Eurasian. He is distrusted by his own
countrymen, he is not respected--perhaps regarded as rather a bore--by
the natives over whom he is placed. But let the European who applies
to another the epithet of "pro-native" enquire rigorously of himself
whether his real ground of complaint is not this: that the person whom
he criticises does not in all cases support the European against the
Asiatic when the interests of the two are at variance, that he does
not necessarily accept the European point of view as the only possible
or the only just one.
"How is it that you Government officials, as soon as you have learned
the language and studied the customs of the country, become either mad
or hopelessly pro-Chinese?" This is a question which in one form or
another is frequently asked by unofficial European residents in China.
It may be that there is something in the nature of Chinese studies
that makes men mad, and indeed I have heard this soberly maintained
by persons who themselves are careful to avoid all risk of contagion.
But it never seems to occur to such questioners that there may be
some solid reasons for the apparently pro-Chinese tendencies (they
are generally only apparent) of their official friends: reasons based
on the fact that the latter have discovered--perhaps much to their
own astonishment--how much there is truly admirable and worthy of
preservation not only in Chinese art and literature and even religion,
but also in the social organisation of the Chinese people. If there is
one statement about China that can be made with perfect assurance it
is this: that if in the long process of reform she learns to despise
and throw aside all the supports she has leaned upon for thousands
of years, if she exchanges for Western substitutes all her ideals,
her philosophy of life, her ethics, her social system, she may indeed
become rich, progressive, powerful in peace and war, perhaps a terror
to the nations, but she will have left behind her very much that was
good and great, she will have parted with much that was essential to
her happiness and even to her self-respect, she will be a stranger to
herself. And what will be the outward aspect of the China of those
days? Great industrial cities there may be; harbours thronged with
ocean-liners and with great battleships flying the Dragon flag; miles
of factories, barracks, arsenals and shipping-yards; railway trains,
motor-cars and airships coming and going incessantly from province
to province; warehouses, banks and stock-exchanges full of myriads of
buyers and sellers, each straining every nerve to excel his neighbour
in the race for wealth. And where, in this picture of China's possible
future, are the thousands of ancestral temples where to-day the members
of every family meet to do homage to their honoured dead and to renew
the bonds of kinship one with another? They are to be seen no more. In
their place stand thousands of village police-stations.
FOOTNOTES:
[65] See p. 98.
[66] _Society in China_, p. 107.
[67] _Kuei chia shih shih yang yen i ta kuan ssŭ wei lo shih._
[68] _Ta-jên._ The term _Ta Lao-yeh_ (see p. 15) is more correct for a
"father-and-mother" official, but _Ta-jên_ implies higher rank, and the
Chinese finding from experience that nearly all European officials are
foolish enough to prefer the loftier form of address, wisely make use
of it in addressing a foreigner whom they desire to propitiate.
[69] _Ta-jên tuan shih ju shên._
[70] See p. 2.
[71] See below, pp. 264 _seq._