Popular Science Monthly/Volume 80/June 1912/The Practical Basis for Republican Institutions for China
|THE PRACTICAL BASIS FOR REPUBLICAN INSTITUTIONS FOR CHINA|
By GUSTAVUS OHLINGER, A.B., LL.B.
RECENT issue of a Chinese daily published in Shanghai records this incident: The venerable teacher Chang, a man well known and respected in his community, was stricken with a mortal disease. Three days before his death he requested his eldest son to shear off his queue, explaining that "though he had worn this badge of servitude to the Manchu usurpers for over three score years, now that the day of freedom was at hand, he desired to appear in the other world, not as a slave, but as a free son of Han." The native press, which is almost entirely revolutionary in its sympathies, refers to the contending armies as the "patriots of Han" and the "Manchu slaves." The revolutionary run in the name of the "People of Han," and some bear date from the "founding of the Han Dynasty."
These references all hark back to the golden age of Chinese history, when the house of Han, of pure Chinese blood, wielded the vermilion pencil in the ancient capital of Nankin. Their pertinency in the present struggle for constitutional liberty is further emphasized by the fact that under this dynasty the Chinese received their first charter of rights. In 206 B.C. the emperor Han Kao Ti, as wise, far-seeing and gracious as our own King John was stubborn and recalcitrant, made what is known in Chinese chronicles as "the Tripartite Bargain with the Elders of the People." This oriental Magna Charta is summarized in the terse Chinese ideographs as follows: "(1) Death for homicide; (2) compensation and imprisonment for wounds and robbery; (3) all else left to the people."
From that day to this the "bargain," particularly the "all else left to the people," has epitomized the Chinese conception of the functions of government. There have been many codifications of the laws of the empire, nearly every dynasty having signalized its accession by a new code. One feature, however, characterizes all this legislation—the entire body of the law is criminal. What concerns the people in their business and social relations has, in the words of the charter, been left to the people. Search the "Ta Tsing Leu Lee," or the "General Laws of the Imperial Dynasty of Tsing," as the present code is known, and there will be found a most careful classification of crimes, one, moreover, which faithfully reflects the ethical standards of the people. In fact, much of it reads like a paraphrase into legal terms of the moral teachings of Confucius. To this is added a minute gradation of punishments. But in all the thirty-six volumes in which the code is usually published there is hardly a reference to contracts, and no mention whatever of negotiable instruments, partnerships, or to any of the other branches of civil law.
It is in this broad field of private rights and liabilities that the genius of the people for organization and regulation displays itself. Aside from literary pursuits, the absorbing interest of the Chinese is trade, and in this department they brook no interference from governments or authorities. Commerce is closely organized. In a large commercial center the traders in every staple have their association, the visible evidences of which are the large, substantial guildhalls. In Shanghai, for instance, will be found a piece-goods guild, an opium guild, a silk guild, a bankers' guild and numerous others of lesser importance—in fact, no class in China seems to be so ignorant or so poor as to be wanting in some organization for the protection of its members. There is even a beggars' guild.
The guilds are something more than we might infer from the term. They have an overshadowing prestige. Some years ago the viceroy of one of the coast provinces attempted to levy an additional impost on salt. The merchants protested. The viceroy was obdurate. Not a catty was sold until the distress was such that he was compelled to yield, and shortly after memorialized the throne to be relieved of his official duties "in order that he might visit his parents." Negotiable paper has been in use in China for many centuries. The well-defined usage on this subject is the outgrowth of the regulations of the bankers' guild. More recently, the law of insurance has been provided by the underwriters' guild, that of transportation by the shippers' guild, and so on. In fact, it has been said by an authority on Chinese business customs that if the by-laws of all the various guilds could be gathered together, the collection would constitute not only a logical, consistent commercial code, but one far better adapted to its purpose than any that could be produced by the ordinary processes of legislation.
Commercial disputes very rarely come before any court for adjudication. Between members of the same guild such matters are decided promptly, finally and satisfactorily by the guild itself. Differences between members of independent guilds are referred either to a joint committee, or to a third body for arbitration. If a point involving commercial usage comes before a magistrate it is usual for him to call for a ruling from the proper guild.
The aloofness of the government is further illustrated by the laws covering marriage and divorce. The code defines with exactitude the relationships in which marriage is unlawful, but no such thing as a license or a public ceremony is required. It is left to the individual to make his matrimonial choice within the limits provided by law, and then to celebrate his in his own way. Should he mistake his rights and marry within one of the prohibited degrees he is subject to punishment. The same attitude is maintained towards divorce. The code specifies the grounds for such a separation, enumerating besides those recognized by us, such delinquencies as "talkativeness," "envious and suspicious temper," "disregard of the husband's parents." Upon any of these the husband may give his wife a bill of divorce. Should he, however, perchance misjudge his own case, he is subject to eighty blows of the bamboo.
An interesting feature of the Chinese ethical system which the code brings into prominence is the idea of mutual responsibility. It is provided that "when the parties to an offense are members of one family, the senior and chief member of that family shall alone be punishable; but if he be upwards of eighty years of age, or totally disabled by his infirmities, the punishment shall fall upon the next in succession," By virtue of this principle, the burden of criminal responsibility has been known to descend from father to son for generations while a litigation was taking its leisurely way through the courts to the Board of Punishments in Peking, and finally to the Emperor, until in the end the penalty fell upon some person born long after the event. Of the same character is the mutual responsibility of persons residing in the same neighborhood. A typical case is where a parricide having been committed, all the houses in the vicinity are demolished, the theory being that the residents have been culpable in failing to exert a better moral influence over the criminal.
A feature of Chinese society which makes for democracy is the almost total absence of such a thing as a hereditary nobility. For over two thousand years the descendants of Confucius have been honored with the title of "Dukes of Kung," and in the same manner the descendants of the famous sea-fighter Koxinga have been distinguished with a hereditary title. But with these exceptions, and with the exception of the imperial family, the only aristocracy recognized generally in China is based on learning, and this is open to the humblest and most powerful upon like terms. The tourist in the provincial capitals is usually shown the examination halls—rows upon rows of tile-roofed sheds divided into cells not more than six feet square. Here every three years the candidates for literary degrees gather from all parts of the province.
Until recently the Chinese classics have been the subject of all examinations. The chancellors selected at random a phrase from the works of some ancient moralist which the students were required to expand into an essay framed on the stilted canons of Chinese literary style. In 1898 the late Emperor, Kuang Hsu, realizing the futility of such exercises, abolished the "eight-legged examination essay" and substituted modern sciences. This measure found its reaction in the Boxer uprising two years later. The disasters of the frenzy, however, convinced all of the inadequacy of ancient literary lore, and the result is seen in the marvellous intellectual awakening which followed it. Western learning was snatched up with avidity; students were sent abroad; scientific works were translated and published; modern methods were introduced into government schools, whence they are now invading the examination halls.
From the literary class recruited through the examination system the positions in the government are filled. The man with a degree at once becomes one of the "headmen" of his village, and usually, by common consent, holds the office of ti-pao, which corresponds to that of our justice of the peace and notary combined. He authenticates deeds, settles disputes among his neighbors, and acts as their spokesman and representative in all that concerns the higher officials. Or he can attach himself to some official in a clerical capacity, his subsequent rise to the highest positions in the government being dependent upon his industry, diplomacy and political acumen. Such statesmen as Li Hung Chang, Chang Chih Tung, and the present Yuan Shih K'ai, rose from humble stations.
To the advocate of a republican China, the examination system is the strongest argument that can be advanced for his cause. It so intimately reveals the Chinese character. The man who is successful in an examination covers not only himself, but his family and community with glory. The Chinaman is not attracted by the demagogue, but he has a profound respect for the opinions of those who by assiduous toil and severe test have won their way to intellectual honors. He has for centuries been accustomed to look upon these men as the logical repositories of political power.
The provincial assemblies, which have been held in the last two years, proved a revelation to all observers. The discussions were intelligent and revealed a sincere purpose on the part of the members to promote the general welfare. They have proved that the hopes of the revolutionary leaders are far from chimerical. The basis for republican institutions in China is broader and safer than in many other countries that enjoy self-government. The people are by nature and habit industrious, peace-loving and accustomed to self-restraint. In the aggregate of relations and transactions which make up social and commercial life they have suffered less interference than the average American citizen. The great mass of rules governing the relations of men they have formulated themselves, and they have learned, moreover, the sobering lesson of submission to law as the best guaranty of the rights of all.