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by some Chinese publicists that the President who has
been impeached should be tried by the Senate, is in con-
formity with the procedure adopted in France and in the
United States, but these countries both based their laws of
procedure on that of England, where the House of Lords
is the Court of Final Appeal. In China, trial by the Senate
would give the Legislature too much power over the
Executive, and, if the Senate is nominated by the
President, it is hardly suitable for the function. More-
over, trial in a case of impeachment requires judicial skill
which it will be difficult to expect many members of the
Chinese Senate to possess. It will be a safer course to entrust
the trial to a special court. But it may again be objected
that a special court necessarily consists of judges chosen



io8 Constitution-making

from ordinary courts, and that the judges of these courts, as
they now exist, are equally incompetent to try cases of
State importance. This charge against the judges is doubt-
ful, but, at all events, judges have far more opportunities
of gaining legal experience than senators, and in time the
former will prove themselves far more competent than the
latter in judging cases of impeachment.

Both the law of 1912 and that of 1918 provide that the
Senate shall be elected for six years with one-third of its
members retiring every two years ; and that members of
the lower House shall be elected for three years. Both
of these laws are silent as to the dissolution of either House.
It has already been said in the section on ' President ' that
he should possess an absolute power of dissolution, and it
is hoped that when the Permanent Constitution is drafted,
the omission will be made good.

According to the law of 191 2, no meeting can be held
unless more than half of the total number of members are
present. This is intended to be a safeguard against the
liasty transaction of important business by a small number
of members. But in the Chinese Parliament there arc no
whips to secure the attendance of members ; and if the
minority in opposition to a bill are not strong enough to
destroy it by voting, they will often abstain from attending
the meeting at which the bill is discussed. The ' filibuster-
ing ' which is a recognized mode of procedure in American
Congress has assumed a negative character in China, and
the result is that whenever a bill is unacceptable to a
minority and does not interest all the members of other
parties who combined to form the majority, it can be so
long delayed merely by the deliberate absence of the
minority members that it is finally dropped. Moreover, at



Legislature log

the present time, when the party organization is imperfect,
the so-called majority shifts from day to day, and a handful
of active members can always get hold of a number of fol-
lowers and induce them not to attend meetings, with the
result that the bill is lost through the absence of the
necessary quorum. It is hoped that the quorum will be
lowered down to a much smaller proportion, say one-
fourth of the total number of members, and this will
facilitate the passage of bills through the House, Measures
should be taken to compel the attendance of members,
and they should be made liable to be unseated by the
Speaker, if they abstain from attendance without good
reasons.

In conclusion, it is necessary to make one remark.
Throughout this chapter T have maintained that the powers
of the Legislature should be restricted and that the
Executive should be secure. The restriction is not only
necessary to make the Executive stable and secure, but also
to prevent legislators from taking advantage of their mandate
to promote their own ends. Tyranny by representatives
can be easily developed in a country where public opinion
exercises no control over members of Parliament. But it
will be grossly misleading, if the reader derives from this
chapter the impression that Parliament may be dispensed
with in China. In fact, it should be most firmly established
so as to check the Cabinet. Tyranny by representatives
may be undesirable, but despotism by the President and
the Cabinet is equally unwholesome. Not long ago, the
Government mortgaged many resources of the country for
loans contracted with Japan. The ostensible object was to
finance military expeditions against the South, but the
actual result was to enrich the private purses of military



no Constitution-making

leaders and political adventurers. Such jobbery was
resented by all the thinking Chinese, and if a ParHament
properly elected had then been in existence, it would prob-
ably not have occurred. The stability and efficiency of
a Government depends on the balance and co-operation
between the Legislature and the Executive, and not on the
-overwhelming of one by the other.

§ 4. "Judiciary

China, as pointed out in the section on the Cabinet, has
had an executive department of Justice since ancient times,
but, till recently, she never had a Judiciary separated from
the Executive. All her public servants with a so-called
' independent seal ' were at once administrators and judges.

The magistrate, in addition to his duty of maintaining
order and collecting taxes, exercised jurisdiction over all
civil and criminal cases within his district ; and the appeal
cases from his court were tried by the prefect, who was also
an administrative official. The prefect, in the event of
being unable to satisfy the litigants, referred the case to the
provincial Judge, who, notwithstanding his title, was always
called upon to perform executive duties. Moreover, he was
not independent, and his judicial decisions were subject to
the veto of the Governor or Viceroy. In fact, in criminal
cases of importance, the trial was not held before him, alone
"or together with his assistants, but under the presidency of
a tripartite bench, consisting of the Governor or Viceroy,
the Provincial T'reasurer, and the Judge. Military com-
manders had, of course, courts martial to try cases involving
persons under their discipline, and even Superintendents of
' Grain Tributes ' to Peking and of Salt Districts exercised
jurisdiction over cases affecting their administration.



Judiciary iii

In Peking there was a Supreme Court of Final Appeal,
but, by Imperial Ordinance, the Ministry of Justice might
also be constituted as a court to try cases of high treason
and appeal cases of serious consequence. Throughout the
whole country there were no separate benches or different
procedures for civil and criminal cases.

In 1906 an attempt was made to reorganize the law courts
on the European model, but it is only since the establishment
of the Republic in 191 2 that the Judiciary has been kept
distinct from the Executive and the distinction been main-
tained by the appointment of two different sets of officials.
The Supreme Court in Peking has been reorganized and is
now divided into civil and criminal courts, each of which
is presided over by a bench of five judges. As under the
old regime, it is the Court of Final Appeal for the whole
of China ; bitt it also exercises original jurisdiction over
cases of high treason or those affecting the safety of the
State. Up to the present, the Judiciary in China is powerless
and the Executive omnipotent ; and, consequently, the
disputes between provincial governments are not adjudicated
by the Supreme Court, as is the rule in the United States,
but by the Minister of the Interior. Over criminal offences
committed on the high seas and cases affecting foreign
Ambassadors and treaties with other countries which, in
the United States, come under the jurisdiction of the
Federal Court at Washington, the Supreme Court at Peking
is competent to deliver a judgement, but so far no such case
has ever come before it.

The Supreme Court of the United States has established
its fame mainly by its work of interpreting the Federal
Constitution. In China the Provisional Constitution is
silent as to the competent authority of interpretation, but



112 Constitution-making

it has been proposed that it should be entrusted to the
National Assembly composed of the members of the two
Houses of Parliament. This proposal would not only deprive
the Supreme Court of an important function, but it would
also give the Legislature an overwhelming power in govern-
ment, as it would then combine in itself the functions of
making and interpreting, and in fact, according to the same
proposal, of amending the Constitution. Throughout this
volume I have asserted that the powers of Parliament
should be restricted, and it would be destructive of the
' Separation of Powers ' if the Legislature were allowed to
interpret the fundamental law of its own creation. More-
over, for many years to come, there are sure to be disputes
between the Legislature and the Executive over their
respective constitutional powers, and it is only in a powerful
Judiciary, with full authority to interpret all laws of the
land, fundamental or otherwise, that we may hope to find
an adequate solution of these disputes. Throughout the
history of China, executive officials have never been accus-
tomed to expect censure and inquest from an assembly
whose function is to talk, but they are not unfamiliar with
the notion of subjecting themselves to the decisions of law
courts, as the Penal Codes of the old China are elaborate
in their provisions for punishing Government officials who
neglect their duty or commit inappropriate acts. It is
therefore hoped that when the Permanent Constitution is
drafted, the Supreme Court will be granted the authority
to interpret the Constitution so as to enforce respect for
the acts of the Executive and to prevent the Legislature
from abusing its power.

In every province there has now been established a High
Court which adjudicates on important civil and criminal cases



Judiciary 113

belonging to the province, and also appeal cases from the
Metropolitan Courts. It is divided into civil and criminal
courts, and its bench is occupied by from three to five
judges.

The Metropolitan Court is established in every ' fu ' area,
or the prefecture, comprising a group of districts. It decides
ordinary civil and criminal cases and appeal cases from courts
of First Instance. Like the provincial High Courts, it is
divided into civil and criminal courts ; and its bench consists
of three judges for appeal cases and of one judge for cases
of first instance.'^

The Court of First Instance is established in the district
and exercises jurisdiction over minor civil and criminal cases.
It is divided into civil and criminal courts, but there is
only one judge to preside over each.

To every one of the Courts so far described, including
the Supreme Court at Peking, there is attached a Court of
Public Prosecution independent of the Court of trial. In
the interest of justice, it is legally bound to submit all
offences to the tribunal irrespective of the wishes of the
injured parties ; but in practice it does not initiate any
prosecution except at their request. The Chinese have the
habit of settling their disputes among themselves, and the
creation of public prosecution has so far not succeeded in
inducing or compelling them to submit all their cases to
public authorities. Although it is now a rule that all cases
that are to be tried in a Court must be undertaken by a
Public Prosecutor, there is nothing to ensure that offenders
against the law shall be prosecuted, so long as the injured

' Only in a few provinces have these Courts been opened. In the rest

the District Magistrate is temporarily authorized to act as judge, pending

the establishment of Courts

18^2.1;! . ■



114 Constitution-making

party consents not to put his case before the tribunal. In
all cases that are to be tried, the preliminary examination
is conducted by the Public Prosecutor.

At the present time, Government officials are not subject
to the jurisdiction of ordinary law courts for offences com-
mitted in connexion with the execution of their official
duties. Against these offences the Administrative Court in
Peking enforces laws, orders, and ordinances. The immunity
of Government officials from the jurisdiction of ordinary
tribunals is believed to be a guarantee against the inter-
ference of the Judiciary with the Executive. It is necessary in
China, in view of the traditional distinction of officials from
persons of other professions, and of the incompetence oi
ordinary law courts (at present) to try cases involving
administrative details ; but it would be no adequate
guarantee for the liberty of the people against the tyranny
of Government agents if administrators of all ranks through-
out the whole country could only be sued and tried by
a single tribunal in Peking, as is the case at present. It is
therefore essential that administrative courts should be
established all over the country (say one for each province),
so as to give the people ready means of settling their
grievances against Government employees. These courts,
while they are competent to try all officials except the
impeached President, should not be permitted to interfere
with cases affecting the Constitution, which, as already
noted, should be reserved for the Supreme Court of Final
Appeal.

All the judges in China, including the Chief Justice of
the Supreme Court, are appointed by the President, though
in the case of judges of inferior courts the appointment is
usually made on the recommendation of the Minister of



Judiciary 115

Justice. According to the Provisional Constitution ' judges
shall be independent and shall not be subject to the inter-
ference of higher officials ', but it is natural that, in a country
where the Judiciary is only recently separated from the
Executive, the independence cannot be established all at
once. Moreover, it is difficult to expect all the judges to
be free from the interference of the Executive, as most of
them owe their appointments to the Minister of Justice,
who by virtue of his membership of the Cabinet is an
executive official. It is true that in England and France,
where the independence of the Judiciary is well main-
tained, the power of judicial appointment is vested in the
Lord Chancellor in one case and in the Minister of the
Interior in the other, who are both Cabinet Ministers.
But the integrity and the reputation of the English and
the French judges are built up on the traditions of centuries
which are lacking in Chinese courts. To maintain the
independence, much depends on the personal character
and training of judges ; and the long practice at the Bar
which English and French judges have had before they are
appointed to the bench gives them the necessary experience
and ability to defend their rights against any attempt, on
the part of the Executive or the Legislature, to interfere
with their functions. In China there is, as yet, no such
thing as an organized Bar, and the judges in all courts arc
mostly graduates of a law school (Chinese or foreign),
equipped with some book-knowledge but without the experi-
ence that can only be acquired by practice. No doubi,
with the advance of time, the Bar will be organized and the
judges will be chosen from the legal profession ; and it may
then be hoped that judicial independence will not only
be asserted on paper but established as a fact.

1 2



ri6 Constitution-making

To maintain independence, judges should be made secure
in their tenure of office. In most Western States, judges
hold office during good behaviour, and in England they
can only be removed on the presentation of an address to
the King by the two Houses of Parliament. In China,
according to the Provisional Constitution, ' 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 offences punishable according to
law by removal from office ', This clause, like that relating
to judicial independence, is at present ineffective. It has
often happened during the past five years that judges have
been removed for no reason except the personal dislike of
the Minister of Justice, or the need of room for some other
nominee.

It is true that at the present moment, when judges in
China are not always well qualified, there are good reasons
for removing them on the ground of incompetence. But
the charge of incompetence is too flexible and may be
pleaded by the Minister of Justice to cover mere personal
considerations. It is then important to enact that a judge,
once appointed, should always be allowed to retain office
foj a minimum period of, say, three years. It will give
him time to prove his capacity for the post ; and, if it turns
out that his achievements do not come up to the expectation
on which his appointment was based, he may then be
removed. To ensure that the charge against himi is not
unfounded, it should be examined by a legal Commission
consisting of a few judges and representatives of the Ministry
of Justice. Such a commission would be similar to those
established in Italy by the decree of January 4, 1880,



Judiciary 117

which authorized them to exdminc cases of transfer of
judges.i

China is in a state of flux, so far as her codes are concerned.
Towards the end of the Manchn reign, new civil and criminal
codes drafted on the model of Japan were promulgated, and
they are now adopted by the Republic as temporary laws
with some modifications necessitated by the change in the
form of government. They have to be recodified and do
not contain any item of special interest, as they are almost
an indiscriminate importation from Japan. It will, there-
fore, be more valuable to know something of the laws of
the old China (before the recodification of 1908) than to
examine the codes which will soon be replaced by others
more carefully drafted and better suited to the customs and
beliefs of the Chinese.

As already stated, the family in China is an integral part
of the government - and is in charge of the multifarious
activities which in the West would be the functions of the
municipal or the national Government. It is the chief of
the family who is responsible for the registration of births
and deaths, for the sanction of marriage and divorce, and
for the recognition of legitimacy and adoption. He main-
tains discipline among the members of his household and
denies them the right to hold separate property on their
own account. He is therefore the only authority that
initiates and authorizes the division and transfer of pioperty,
the establishment of mortgage and joint-ownership, and all
kinds of testamentary disposition. Even a murder or

^ According to the Provisional Constitution, ' the trial of cases in the
law Courts shall be conducted publicly, but those affecting public safety
and order may be in camera '. ' Jury ' has not yet been introduced
into China.

- Supra, ch. i, p. ii.



1 1 8 Constitution-making

homicide, committed by one member against another of
the same family, may be quietly settled by the chief ; and
crimes committed between members of different families
may also be settled by a mutual agreement of the heads of
the clans concerned.

In commerce, different trading guilds have elaborate rules
to take the place of a modern commercial code. The
banking laws provided by the bankers' guilds are enforced
by their executive councils. Caterers and grocers, fishermen
and butchers, doctors and midwives — all have their guilds
and rules to protect the interest of the trade and to decide
all disputes that may arise between the members of a single
trade or of different trades. These guilds have no power
to inflict criminal punishments, which are reserved for the
district magistrate, but they are fully entitled to impose
a fine to almost any amount on the defeated litigant in
order to compensate the injured party.

It is only on rare occasions, when the guild or the family
finds itself unable to pass a judgement on the dispute,
or the parties concerned refuse to abide by its decisions,
that the district magistrate is approached for a judicial
examination. The magistrate, in deciding the case, would
not be guided by any family rule or guild convention, which
is generally unwritten, but by the local customs of the
district or the precedents of similar cases. In modern
judicial terminology, he would apply Common or Case Law.
But in China, local customs differ in different districts, and
cases have never been systematically reported. The con-
sequence is that the magistrate, in applying these unwritten
laws, would rely to a very great extent on personal knowledge
of the district and his memory of cases — a memory assisted
by that of his legal clerks.



Judiciaiy 119

In criminal cases, which were, as a rule, brought up to
the courts for trial, we find that the magistrate was bound
to apply the Penal Law, which was the only written code
of China (before 1908), and the history of which dated back
from the time of the Chou dynasty. The preventive idea
of a criminal law was much emphasized in China, as can
be seen from the words of an Imperial Edict issued in 1878
that ' the chief ends proposed by the institution of punish-
ments in the Empire have been to guard against violence
and injury, to repress inordinate desires, and to secure the
peace and tranquillity of an honest and unoffending com-
munity ', ' The great thing is to prevent crime ; and to
consider it is to encourage wrong-doing.'

The castigatory idea being dominant, it was not surprising
to find that punishments inflicted were harsh and severe.
The five punishments inflictable in China were (i) whipping,
(2) flogging, (3) bastinado, (4) strangling, and (5) decapita-
tion. During the Manchu reign, it was found that even
these punishments failed to prevent crimes, and lynching
after death was added in the case of treason or murder of
parents or grandparents. This new method of punishment
of the dead was abolished in 1906, and the other five kinds
of punishment have since then been abolished and replaced
by fine, imprisonment, and shooting to death.

I have already said that there is no organized Bar in
China. Under the old regime, magistrates were mostly not
conversant with the law, in spite of the provision of the
Criminal Code that they ' ought to study diligently, and
make themselves perfect in the knowledge of these (criminal)
laws, so as to be able to explain clearly their meaning and
intent, and to superintend and ensure their execution '. In
criminal cases they were assisted by law-clerks, who did not



120 Constitiition-making

occupy an enviable social position, as they were accused of
trying to encourage and instigate crimes so as to make profit
at the expense of litigants. These clerks were mostly natives
of the Shao-Shin district, in the province of Chekiang, who
received their education from their elderly relatives. Their
legal training might be sound, but they were not qualified
or certified by any public or professional authority. They
advised the magistrate and prepared statements for him.
They also wrote petitions and mem_oranda for the litigants,
but they were not allowed to appear in the court to plead for
the plaintiff or to defend the accused. There had never been
such an institution in China as a Counsel for the Defence,
and whipping and flogging were sometimes employed to
exact confessions.

With this mode of irregular procedure, unqualified judges,
and severe punishment, the Chinese have acquired the habit
of avoiding litigation, and taking it as a misfortune when
they are compelled to attend a court. In the eyes of the
modern jurist, the Judiciary in the old China was objec-
tionable and the punishments were monstrous, but it should
be remembered that torture was practised in France before
her Revolution of 1789, and that as late as 18 14 an English-
man guilty of treason might be cut down from the gallows
while alive, and have his entrails taken out and burnt before
his eyes. China may be a century behind the Western
States in her legal reforms, but she is traversing the same
path which England and France have already trodden.



4

Provincial Government

§ I . Relation of the Ce^itral to the Provincial Governments

In the section on ' North and South ', chapter 2,
I have stated that the North differs from the South in
temperament and in army organization ; that, in this time
of their armed conflict, they are each divided into governor-
ships, which are virtually independent ; and that the



Online LibrarySih-Gung ChengModern China, a political study → online text (page 9 of 28)