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Mr.Masujima's Memorandum.
PROPOSALS REGARDING CHINA "EXTRATERRITORIALITY" QUESTION
The proposal is advanced that the Shanghai Municipal Council be advised to take steps:
1.
To have it designated as a condition precedent for China's assumption of judicial autonomy that she organise her judiciary according to the practice and experience of Common Law Jurisprudence.
To have for that purpose a scheme inaugurated for sending Chinese gentlemen, possessing the necessary personal and educational qualifications, to be trained as law-students under the discipline of the Inns of Court in such annual numbers as should in time provide a full complement of barristers capable of being appointed as really qualified judges of the Chinese Judicature.
3.
To secure the assistance of the Inns of Court and the Council of Legal Education in the adoption of such measures as should further the carrying of the said proposals into effect and to have some scheme organised for instituting a corresponding Eastern Council of Legal Education, with its seat in Shanghai or Hongkong, in order to facilitate the study in the Orient of the principles and practice of the English Common Law.
REASONS.
The question known as that of "Extraterritoriality" really pivots on the judicature, and not on codes or any other bodies of law, as it has hitherto too often been the fashion of diplomacy to treat it. It involves not the mere possession of codes by China but the independence and the trained qualifications of the Chinese Bench and Bar. The so-called codes, however complete they may be regarded as the work of theorists, cannot fulfil the intended purpose of justifying the assumption by China of judicial autonomy. We must consider the question solely from the standpoint of judicial principle.
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I may quote some classic sentences of my friend Dr. Thomas
and Baty,LL.D.,D.C.L., Barrister at Law of the Inner Temple, adviser to the Japanese Foreign Office:
"It is hopeless, however attractive, to think of setting down in any code, regulations for the decision of all conceivable The real object to aim at is the inculcation of a spirit: a spirit of justice and fairness which shall conciliate to the maximum degree all competing interests, in due accordance with the tendencies of the age".
cases.
"The laws which govern human relations should not be dictated in rigid terms by a legislator, but should reside in the Common consciousness of the nation, and be expressed by those skilled persons who are competent to give them artistic and complete expression
viz: a capable and honourable Bar saturated with the traditions of justice and fairplay
The great
far superior to the Byzantine woodenness of cade makers. Code of Justinian, it is often forgotten, was the tomb, as well as the monument, of the Roman Law. At its best period, the Roman Law, like the Common Law of England, was elastic system of free