Page:The Green Bag (1889–1914), Volume 03.pdf/466

 Chinese Courts.

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CHINESE COURTS. THE course of American politics, we usually'acknowledge, is like a stream flowing over shifting sands, — liable to get a little muddy and sometimes to change its channel; but in contrast to this we point to our courts of justice, apart from turmoil, in accessible to bribes, unswerved by the stress of party conflict. The Chinese have studied these courts, and though they can hardly pretend to have mastered the mysteries of their intricate apparatus, it strikes our critics that no system could be more skilfully de signed for the purpose of defeating justice. A court consists of three elements, — bench, bar, and jury, — the second and third appar ently serving no other ends than to prevent law and to screen the guilty. In China, where there is neither bar nor jury, the processes of law are not only more expeditious, but, as the Chinese assert, more certain. In their eyes the jury is open to three objections: (i) while the weighing of evidence requires a trained mind, the jurors are chosen at ran dom and are chiefly uneducated men; (2) their verdict is required to be unanimous, making conviction next to impossible in cases that admit of a difference of opinion; to secure impartiality, they are required to de clare beforehand that they have formed no opinion on the subject; they are accordingly men who either do not read or do not reflect. In addition to these objections, much time is lost in impanelling a jury; and then the judge has to instruct them how to under stand the evidence. Why not permit the judge and a couple of assessors to pass on the facts in the first place? It is amusing to an Oriental to learn that these jurors are locked up and deprived of food in order to compel them to agree, and that one man who can endure hunger longer than the others may thereby procure the release of a prisoner. Such is the palladium of our liber ties, — an institution which ranks among the noblest privileges of Magna Charta I As for

the bar, in the estimation of the Chinese its theory is thoroughly immoral, and the prac tice founded on it is a game of trickery and deceit. One of our great writers gives a comical picture of a judge who averred, when he had heard one side, that he could understand the case, but who always suffered from a confusion of ideas when he came to hear the other. The function of a lawyer is to compel a judge to hear the other side. The lawyer, however, is by the rules of his profession permitted to present only a one sided view of the case. He seeks not the triumph of right, but the success of his client. The opposing counsel strives to determine the court in a contrary direction, and between these contending winds the arrow of justice will not fail to go straight to the mark! Each advocate browbeats the other's wit nesses; he lays snares for the unwary; and to weaken their testimony he does his best to ruin their reputations. One who has the gift of eloquence appeals to the sympathies or prejudices of the jurors, who, being unso phisticated men, are liable to be carried away by his oratory. He acquires a name for power over a jury, and the litigant who can offer him the heaviest fee is almost sure to win his suit. What an original scheme for the promotion of even-handed justice! In some of our courts our visitors see a statue representing a blindfolded goddess holding aloft a pair of scales. That emblem expresses perfectly the Chinese ideal of the character of a judge; but to express ours it ought to exhibit the counsel for the litigants as doing their best by surreptitious means each to turn the scale in his own favor. The task of weighing rival claims in such circumstances must transcend even the powers of a goddess. By means of these aids to justice rogues are set free to prey on society; wills of honest testators are broken; creditors are defrauded of their dues; and more than all, through this cumbrous machinery the processes of law