Not so long ago the Chinese, as in most European countries, regarded torture as the best test of truth and the only sure mode of obtaining it from an unwilling witness. All evidence given without it in grave criminal cases involving life and death would be regarded in the Chinese judicature precisely in the same light as formal evidence in our courts without the formality of oath, and held inadmissible as grounds for conviction.
As I? Wade clearly indicated in his full memorandum enclosed in my despatch No. 4 of 85 of the 11th of May 1866, we have already, by the negotiations entered into at that time with the Prince of Kung for the withdrawal of all criminals surrendered by the operation of the law in cases of heinous crime overridden by the fundamental principles of our legislature on criminal cases, who decrees as necessary for the repression of crime in its worst form punishment proportioned to the enormity of the offence. We have at the same time undoubtedly violated a religious belief that it is displeasing to Heaven not to distinguish between greater crimes now punished by "ling chih" by a penalty eminently severe instead of by simple decapitation for a great number of lesser offences.
This attempt to impose our principles of legislation or procedure, however regarded as a particular class or limited number of crimes still claiming power, can hardly fail upon another independent and sovereign nation to bring with it anomalies and serious difficulties. However superior our ideas and principles may be, it is hardly possible to graft the Chinese system by a mere clause or to hope that they can be susceptible of assimilation by the Chinese mind.
Montesquieu, in his "Esprit des lois" observes, very truly, I believe, that "Les lois politiques et civiles de chaque nation doivent être tellement propres au peuple pour lequel elles sont faites que c'est un très grand hasard si celles d'une nation peuvent convenir à une autre. Il faut qu'elles soient...
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