1925-11-06 — Page 3

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EXTRATERRITORIAL

RIGHTS.

CHINA NOT YET READY FOR ABROGATION,

HARSH CRIMINAL LAWS

THE HONGKONG DAILY PRESS, FRIDAY, NOVEMBER 6TH, 1925

A short while ago, Mr.. E. T. › Bryan, well-known lawyer of Shanghai, broadenst over the China Press Kellogg Radiocasting Station a brief resumé of the extraterritorïài situation in China"The talk was the frat of a series which has been arranged in connection with the questions of extraterritoriality and the customs which are before the public at the present time. The reception of Mr. Bryan's speech was very favourable. The fall text is printed below.

MR. BRYAN'S, ADDRESS. Before one can milerstand the reasons why extraterritoriality should or should not be abolished, he should first have at least some "slight momprehension of what extraterritoriality is and the reason why it was granted to foreign nationals resiù ing in China.

>

: Extraterritoriality has been defined as ai exemption from the operation of the local law granted either has asage or treats on account of the differences as law.rus tom and social habits of civilised nations

Let us suppose that extraterritoriality Not only can ho not be put is jail but was abolished; an American citizen. might in most countries he is allowed certain come to China and acquire a Arst wife exemptions. I have personally known of and several moundary wires. As long as cases where a judgment debtor has stayed he lived in China he would be quits within in jail for two years because of failure the law, but if he returned to the United to pay a judgment I know of one case. States with his secondaty wives he would in which the judgment debtor was heldi le guilty of living illicitly with someone in jail so long that he died In criminal to whom he was not married. Of course cases the matter of bail is a question he could not be prosecuted for higany within the discretion of the Court De in the United States, for the crime would fendants are not entitled to bail as a not have been committed there, but never matter of right. Ordinarily they are not theless he could be imprisoned for violat allowed bail pending an appeal... A re- ing good morals. The marriage relation cent example of this is the ease of Dr. in Christian countries has always beca F. C. Tong, who was arrested at 2 o'clock held in very high regard, and for a for in the morning by men not in uniform eigner to be able to acquire more than and held without bail pending his trial." one wife is shocking to one's sense of After a sensational trial he was convicted and denied the right of bail pending ap- good morals.

LACK OF JURISTS.

A VICIOUS SYSTEM. The harsh and vicious provisions of the Chinese criminal law, would probably not have been objected to so strenuously by

Again, under Chinese law a divorce may peal. Under foreign law a defendant is aliens if justice had been properly abobinined by mutual consent by the in most cases entitled to bail as a matter ministered. Defendants in criminal mero signing of an agreement wherein the actions were presumed to be guilty, were parties mutually agree to be divorced ons of right, not pending trial but also pend-

from the other. China would becoming appeal. not entitled to the benent of counsel, nor Meces for married couples who desire to to summon witnesses to testify in their sever their matrimonial boads. There Denat. Confession was essential to con-

no term af residence required under Chi

In the six place, China has no class of nese law in order that a divorce may be viction, and often the prisoner though obtained, as is the case in most foreign men from which it may draw for judges. Under American law applieThe bar is as yet undeveloped. There innocent, was beaten, and tortured until countries.

able to China, an American citizen mat he confessed. Corruption was notorious reade in China at least two years before are no good law schools in China and very of uncivilized races. .. In

among the Chinese judiciary, and then be can eren institute divorce proceedings lew trained jurists. Most of the men who If extraterritoriality were abolished, have been trained in law have studied Mohammedan States extraterritoriality judgment..was at the disposal of the long couples desiring a divorce could come inte has been considered to have been granted purse. This principle was enforced more China in the morning ria Shanghai, sign abroad, and these are by usage, due to the fact that, in the strenuously against foreigners than an agreement agreeing to a divorce, and countries the maxims and usages of later-nese, for the fundamental maxim of Chi leave that afternoon. As to whether

not such divorce would be valid in foreign uational Law were not recognized. In.

countries is doubtful, for a divorce by China, however, the situation has always

mutual consent is contrary to all prin ciples of either the Common or Civil Law been different: From the first, China ubjected to extraterritoriality. She only granted it by treaty because she

urced to do so.

from those

WAS

nese intercourse with foreigners 'Was;

41

so few and far between that if called upon by the Govern ment to serve in an official capacity they are generally made judges of the Supreme Court or connected with the Department of Justice. Furthermore, the compensa- tion paid by China to its judges is so mall as not to interest a well educated

"The barbarians are like beasts, and not tout ruled on the same principles as citizens Were anyone to attempt controlling them by the great maxins of reason, it would tend to nothing but confusion. The ancient kings well inasnuch as extraterrituriality in China)

understood this, and accordingly ruled is founded on treaties and not on usage

harbarians, by misrule. Therefore to it will be interesting to examine the rea

rule barbarians by misrule is the true sons way foreign Powers found it neces

and the best way of ruling them. sary to lorce China to sign treaties grant In view of such a law of bomicide, such ing exemption from Chinese law to their nationals The principal reasons are three doctrine of responsibility and such an in number: (1) The Chinese Law cadministration of justice it is not strange Homicida; (2) The doctrine of extensive that foreiga Pawers forced China to grant responsibility; and (3) The mal-adminis to their nationals exemption from local tration of justice. The Law of Homicide law. The first treaty granting extra. as it existed in the 18th and 19th cen-territoriality was signed in 1842 with tries in most foreign countries was dividirent Britain. The United States follow ed into three kinds-justifiable, excusable ed in and other nations were graat and felonious. Felonious homicide was ed like privileges from time to time there-are ordinarily not entitled to any share provincial high courts obtains a salary again divided into nonlaughter and after.

Can these

murder. Manslaughter was the killing of The Chinese now claim that during the another without matice Murder was the eighty-three years in which extraterritori. xilling of another with malice nfore Lality nas existed they have, (1) enacted Lhought Justifiable and excusable homilaws, criminal, vivit and rernedial, which, cide was not punishable. The punishment are as benefeent as those of any civilized for manslaughter was a term of prison pation, and (2) that they have established ment, and for murder, death. The Chi- course presided over, by learned and nese Law of Homicide in the 19th century honest judges, who administer the law was somewhat different from that ahore currectly and impartially. outlined, and may be thus briefly stated: assertions made by the Chinese be sub- (1) Wilful and premeditated murder was

tantiated Are they true? Let us punishable by beheading: (9) for killing examine the facts. during no aftay" without malice, express

GOVERNMENT BY TUCHUNATE. or implied the penalty was strangula tion; (3) killing or wounding another In the first place, China at the present by an accident was punishable by time has no strong Central Government. fine; and (4) killing in inwful if Every tuchan is a lord into himself in the defence was justifiable and not punish-istrict over which he has control. The able. The foreign law distinguished be Peking Government is impotent to force Aween murder and manslaughter, and the tuchus to carry out its bidding. nesses. All examination of witnesses is mitigated the penalty accordingly. Ubi Even at the present moment when the sicse law, however, malle no distinction tariff and extraterritoriality conference between murder and masinaghter other are drawing near, the war drums of Alar than by making the first punishable by shat Chang Tao Lan and Marshal Feng are decapitation and the latter by strangula beating the call to arms, while Marshal Linn. Excusable bomicide ander foreign Sun and the Fengtien troops are prepar law was not punishable, while under Chi-ing themselves for conflict near Shang me law the penalty was a fine of Ts.bai. Tf China cannot control herself, 185-

tainly she cannot control others. FATE OF A GUNNER.

The

THE FAMILY SYSTEM. Under Chinese law a man may not make will. Property in China is not owned

local tribunal is not less by individuals separately, but by famiad competent man The salary of the les collectively. According to Interns president of tional Law real estate descends in accord than 8100nor more than $260, Chinese ance with the law of the place where is currency, per month. The salary of au is situated This would mean that an ordinary judge of a local court is not American citizen residing in the United more than $160 or less than $100 per States could not dispose of by will any month. The salary of a president of a real property that be might own in Chira district court, appointed by the President Such a law is absolutely contrary to for of China, is not more than 2600, Chinese eign ideas Under Chinese law only the currency, nor less than $20 per month. sons of an intestate are entitled to a share The salary of an ordinary district judge These divide the whale appointed by the President upon recom of the estate. estate equally among themselves grand-mendation is not more than 8060 nor less. sons getting a father's share. Daughters than $100 per month. The president of of the family property. Here again, Chi- of not more than 600 nor less than $260, nose law is so utterly at variance with Chinese currency, per path. The Presi the Common and Civil Law as to be abdent of the Supreme Court at Peking gots solutely incompatible with Christian ideas: $1,000, Chinese currency, per month, while the judges of that Court obtain a salary I might, if time allowed give many of about 8400 Chinese currency, per other instances similar to what I have month. These salaries are much less than already mentioned.

the salaries paid to judges by other coun- In the fifth place, the mal-administration tries. For instance, a District Judge of a of justice, which was one of the causes Federal Court in the United States re- leading to the granting of extraterritoireives a salary of $7,500 U.B. currency, ality, is as bad if not worse than it was per year, being about $1,500 U.S." cur- in when the first treaty was signed reney, more than the President of the Although China has reorganized its judi- Supreme Court at Peking gete ciary and established courts, these courts salary of a Jadge of the Circuit Court aro by no means capable of administer of Appeals is $8,500 U.S. currency, of a ing justice in accordance with foreign Judge of the Supreme Court, 814,500 U.S. ideas Jury trials are not permitted, and currency. The Lord High Chancellor in this would seem to be impossible in Chica England receives a salary amounting to The parties may not examine the it 850,000 U.S. currency, per year, and the Lord Chief Justice a salary amounting to made by the court, and if the litigant 840,000 U.S. currency, per year. A practi desire to ask questions they must, do so tiener of law in China can make so much through the Court. Under Chinese pro- more than a judge would make that very cedure the parties may give powers-of-few learned men are attracted to these attorney to their lawyers, who will go to positions. court and testify. The judge is then per The meagre salaries offered are quite mitted, in the absence of either or both often insufficient to defray living expenses. parties, to make private investigations. This caturally leads to corruption among In a recent Chinese criminal case tried the judiciary. A very sad case was that in the local Chinese District Court at of a judge of the Chinese District Court In the second place, China has at the Shanghai, Judge To held that the evidence of Shanghai, who absconded after having. An illustration will serve to demon- present time no constitution. During the of certain witnesses would not be neces embezzled the sum of $40,000. Later on strate. In the month of November, th last twenty years China has had no lessary because be, the judge, had made he confessed.

guaner on board the ship Ludy Hughes, tuan five constitutions. The so-called private investigations. Such procedure The facts which I have related to show ic was anchored at Hongkong, was Permanent Constitution that was put into could not take place in any Anglo-Saxon that China is not prepared for the abolish- ordered by his superiors to fire a salute, forco in 1923 has been declared to be null court, for the litigants are entitled to ment of extraterritoriality might bo the firing of which caused the death of a and void because it was enacted by examine or cross-examine all witnesses, greatly amplified if time permitted. An Chinese The Chinese authorities arrest bribery. Whether or not much declaration and the court cannot make personal i analysis of the facts clearly indicates that d the supercargo of the ship and carried makes it null and void is a moot ques vestigations without both parties being China is not as yet ready for the abolish- him into the city, where he was very well tion, as it would seem that constitution present.

ment of extraterritoriality. The Powers, 1reated and finally released upon the sur- can only be declared null and void by the

SUITS IN CHINESE COURTS. however, have agreed with China that It render of the gunner, who was strangled body that put it into force. At. the pre-

January 6th, 1783, under orders from

acat time there is a model.constitution.

A suit in a Chinese court is instituted they will assist her in this matter.

would seem, therefore, that some, scheme Peking. There is no doubt whatsoever being drafted, but it has not as yet gone by the filing of a petition and the issuance might be thought out whereby extraterri- The summons usually re-toriality might be abolished in some that under foreign law the gunner would into force. China in respect to her cou- of guminona. have been guilty of involuntary man stitutions would seem to bid for first cites that the defendant must appear sed qualified form. For instance, foreign law slaughter, if not excusable homicide, and honours with Mexico, whose constitutional answer the petition within a certain a relating to domestic relations, descent of would accordingly have been sentenced to career, to say the least, has been vacilber of days. If he answers the petition property and administration of estates,

tho case is set for trial and comes on in nothing more than a short term of imating

ete, might be applied as against foreign- due course. If judgment is rendered ers. Special curts presided over by priacament

In the third place, China has not en-

A dozen other different is perhaps the most pernicious, savage

an and money security plans might be worked satisfactorily. usually.cnilenl and cruel principle that has ever bera bang in the last eighty years. It is true put up a post-judgment bond, which is

that she has enacted. a Provisional If he is unable to supply this security be Extraterritoriality could then be gradually inculented into any system of jurispru-Criminal Code which compares well with goes to jail until the judgment is paid sholished without injury to business, as dence, hacient or podern. By this doc trine, every subject of the Chinese Em those of other countries, but outside of the jails and houses of detention in which would undoubtedly be the case if it were. this she has done nothing except ennct litiganta and judgment debtors are de pire was held responsible for everything a trademark Law and a few other that occurred, regardless of whether or statutes of anal consequence. Certain ained are generally filty, loathsome and handed back at the present time.~~~~China.

unsanitary holes. These places are well

1214

The doctrine of extensive responsibility acted any new laws to amount to any against the defendant he is required to spishe foreign judges might..be

| 1923, as follows

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Press

Seltona

at he was connected therewith or a draft codes, such as the civil code, the described in an article which appeared countable crefore. If larceny is co-code of civil procedure, regulations relat mitted in a township the whole villageing to commerce, ete, have been drafted in the N.G, Daily News Ch January 2ith, jointly and severally, together with its official bend is held responsible. The by the Commission on Extraterritoriality. wner or occupant of a house is held re- and in some cases have becu promulgated sponsible for a suicide committed on his by the Presidential Mandate. These laws doorstep. The father is held accountable however, cannot be considered to be in for the criminal acts of his children. If force at the present time because they have not been enacted and passed by man dies leaving an insolvent estate, Parliament. Chinese law at the present bis son is held responsible. A bankrupt time is very little different from what it absconds, his family is called upon to pay was at the time that extraterritoriality A mighty river overflows its banks, 140

was granted): Governor of the province is held respon sible for the deaths, thereby caused. A crime is committed, tho, magistrate of "" village is called upon to arrest the guilty party, procure evidence, prosecute the case and convict otherwise me a cashier. ed. In short, no erime can go inpurish always cristed. ed. If the guilty party cannot be appre-man many have only one first of principal nded the father, son, family, employer, wife. There is an exception to this rule, taipan, magistrate, and even viceroy, are however, which is where a young man may held responsible. Never has there been be given a first wife by his father and never existed in the United States ex- Erst wife by his uncle, in case the uncle Copt in cases of fraud, and even in those

At the present time, large numbers of people are detained for indefinits periods in connection with disputes about land mortgages and old debts, Iard times give the occasion for de- manding old forgotten debts of two or three generations ago, and when no Jiving man can possibly know whether fine sepia tones by faing only, Sand the liability was ever incurred, or how

a principle more searching and merciless

UNSUITABLE LAWS.

In the fourth place, China's laws are unsuitable to apply against foreigners. In China a qualified form of polygamy has Under Chinese law o

The ideal daylight printing median

many times the matter may previously card for free illustrated booklet have been settled, judgment goes to the

possessor of the most face. Hence Prints on Beltons."

for every debtor in these Chinese Bride- wells there is an adversary possessed of the requisite amount of face, hoping to extract the uttermost farthing,

SOLE MANUFACTUREBA:

Arrest for debt has been abolished in WELLINGTON & WARD,LTD., alf Christian countries for many years.

in its ultimuste results. has no heir, and the children by the wife cases the plaintif is generally required

given to him by his uncle become the to put up bond usually double the amount heirs of the uncle: After the espousal of of his claim before he can have the defen

already referred to, the supercargo of the first wife a Chinese citizen may law. daut arrested. In Christian countries ALLEN ON.

An application of this doctrine was made in the gunner's case, which I have

versel being arrested and held until the gunner, the guilty party was surrendered.

fully espouse av inany secondary wives or defendant cannot be put in jail for failure conqublucs as he desires or can afford to pay a judgment if he has no attets,

HANBURYS, LTD.,

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