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17: 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?"