add much to the educational resources of the Empire. All mission colleges will be brought directly into the service of the Government and will work hand in hand with the government schools to supply the Government with thoroughly trained men.

If, on the other hand, the Government does not recognize this work in some such way as suggested above, students will be drawn from the mission colleges by the superior attractions in the way of degrees and government employment offered by the government schools. This will not only hurt the effectiveness of the mission schools, drawing away their students before graduation, but, as for the present at least, these mission schools are better equipped, better governed, and are really doing better work than the government schools. The cause of true education will also suffer.

What the government needs is thoroughly educated men. The training is important, more important than the place where the training is gained. The Government has hitherto recognized this, in that for years past it has been sending young men indifferently either to the United States or to Europe to be trained for her service. Would it not be well for the new board of education, in the reorganization of China's educational methods, to plan to recognize the educated young man of China, even though he does not get his training in a government school and at government expense? And to this end would it not be well for this board to fix definite requirements—that is, mark out a definite course of study for the degrees of B. A., M. A., etc., and then arrange to recognize the student who has completed the course, no matter in what school? Such action on the part of the board of education will certainly be of great advantage to the cause of true education throughout the Empire. It would also enable China to recognize among her educational resources the long list of mission schools.

There is no competition whatever between the mission schools and the government schools. In every case the mission school charges full tuition fees, etc., while the government schools are not only free, but make contributions for the support of the student. Very probably the course of study in the mission schools will, for some years at least, be broader than that of the government schools, the teaching more thorough, the graduation more difficult. Hence the student who is simply after his degree," his "button," will find easier and

shorter road in the government school.

Mission colleges need, under the new régime, recognition as educational institutions. While some of us are duly incorporated in the United States, and hence are competent to give degrees, etc., yet, after all, recognition of our work through the bestowal of degrees on our graduates will enable our students to win the only degrees really valuable in Chinese eyes. This recognition will also enable us to retain our students to graduation, and thus do more thorough work. Mission schools ask nothing but this recognition of their work. They seek no government funds nor favors.

Now, that the plans are being formed for the new educational system, I have presumed to trouble you with this, trusting that you will both approve the suggestions made and that you will be able to influence the proper authorities so as to secure the needed recognition for our schools, which will be a practical incorporation. Could this be secured, not only will your effort be highly appreciated by the various schools, but it will also add greatly to American influence in China, since the schools are largely American. Again begging your pardon for troubling you, I remain,

[Inclosure 2.]

(Signed)

D. L. ANDERSON.

Mr. Young J. Allen to Mr. Rockhill.

SHANGHAI, December 12, 1905.

DEAR SIR: At a recent meeting of the board of trustees of our Soochow University I was requested as their chairman to call your excellency's attention to the attitude of the Chinese Government toward our educational institutions. In general, the Government recognizes the treaty right of toleration, and the Chinese are not debarred membership in the Christian Church, but as Christians, educated in our institutions, irrespective of their qualifications, they are counted

and treated as ineligible to any, even the most inferior, offices. Thus showing that the limited toleration they enjoy has reference only to their relation to foreigners, and by no means implies that the Government is disposed to recognize what it is supposed to grant. Now, while we are averse to recognizing the right claimed by the Chinese to inspect our higher institutions and dictate what their curricula shall be, thus attempting to substitute a Confucian for a Christian curriculum, we would by no means object to recognizing any curriculum the government schools may adopt, and undertake, in connection with our own system and courses of study, to prepare men to stand the requisite examinations for the respective degrees, if by so doing our graduates are made equally eligible, according to qualification and merit, for appointment to office in the government service.

The point, then, to which we desire particularly to call your attention resolves itself into this, to wit, that the measure of toleration granted in the treaties is not sufficient to cover existing conditions, and that unless we insist on a wider recognition on the part of the Government, we may expect to find our schools ignored and their great value to China depreciated and lost. We, therefore would urge that while China is projecting and adopting reforms, no reform is more urgent or would be more appropriate and timely than to grant once and for all entire religious liberty. It would be in harmony with the present aspirations of the Chinese for a constitutional government, and nothing could commend it more fully to the comity of nations.

Believing this to be so, we would most earnestly commend this subject of religious liberty to your attention and anything you can do toward achieving such a reform will greatly relieve our Christian work, and, we are sure, will not a little influence and improve the relations of China with all Christian nations. YOUNG J. ALLEN.

(Signed)

[Inclosure 3.]

Mr. Rockhill to Mr. Y. J. Allen.

PEKING, January 3, 1906.

SIR: I have to acknowledge the receipt of your letter of December 12 last, in which you inform me that at the request of your board you have to call my attention to the attitude of the Chinese Government toward Christian educational institutions in China.

This very important subject was brought to my attention in September of last year by Dr. D. L. Anderson, president of the Soochow University. In reply to Doctor Anderson's letter I assured him that I would have much pleasure in doing all that I possibly could to secure just recognition by the Chinese Government for your institution and all American educational institutions in China.

I have since then talked the matter over repeatedly with some of my diplomatic colleagues whose nationals maintain educational establishments in China, and quite recently with Dr. D. Z. Sheffield, president of the Peking University. While I quite agree with your board in thinking that nothing would be more beneficial to China than entire religious liberty, I greatly doubt whether the Government is prepared to take so far-reaching a step at the present moment. I think that we must and can attempt with a fair chance of success something to remove, at least in a measure, the disqualifications under which you state native Christians educated in your institution labor as regards admission into the service of the Chinese state.

The point is well set forth by Doctor Anderson in his letter to me to which I have previously referred. If the Chinese Government," he says, "will recognize the work done by the mission colleges by conferring on their graduates the same literary degrees that are granted to graduates from the government schools-also having obtained their degrees by giving them the same opportunities of government employment or of being selected to go abroad for further study-such action will not only greatly advance the interests of the mission institutions, but will also add much to the educational resources of the Empire. All mission colleges will be brought into the service of the Government and will work hand in hand with the government schools to supply the Government with thoroughly trained men."

It seems to me that if we could secure acceptance by the Chinese Government of your suggestion to "undertake in connection with [your] own system and course of study to prepare men to stand the requisite examinations for the respective degrees "-subject probably to inspection by government officials-with permission to compete at such examinations as may be required for entry into governmental service, we would already be making a very big step in the direction of ultimately bringing about that complete religious liberty which we all hope to see insured in China.

It has occurred to me that it would perhaps be a good plan for a small committee representing the various educational institutions conducted by Americans in China to come to Peking and discuss this matter with the newly established board of education. I would be delighted to give any committee which may be chosen such assistance as I can to further its object.

Should this suggestion not commend itself to you, I shall be much pleased to address the Wai-wu Pu in the matter and urge its favorable consideration of such requests as we may deem practicable and likely to prove acceptable without too protracted discussion.

Trusting that you will favor me with an early reply,
I remain,

No. 326.]

Minister Rockhill to the Secretary of State.

AMERICAN LEGATION, Peking, China, June 13, 1906.

SIR: I have the honor to inclose herewith a translation of the memorial prepared by Wu T'ing Fang and Shen Chia-fen, the commissioners charged with revision of the code, announcing the completion of the court procedure in criminal and civil cases.

It is interesting to note the reference therein made to "the ancient precedents of the T'ang and Ming dynasties" and the explanation that the present rules merely follow those of the old dynasties.

The imperial edict of April 24, 1905, "abolishing cruel forms of torture," forwarded to the department in Mr. Coolidge's No. 1870 of April 26, 1905, is another illustration of the principle of reversion to antiquity as a legitimate excuse for adopting a change of system. The inclosed memorial dwells on two important recommendations— (1) establishment of trial by jury, (2) recognition of a legal profession. W. W. ROCKHILL.

I have, etc.,

[Inclosure.]

Memorial of the commissioners charged with the revision of the code, reporting procedure in criminal and civil cases.

Your ministers reverently submit to the inspection of Your Majesties this memorial, announcing the completion of the court procedure in criminal and civil cases, and pray that an imperial edict may be issued, putting the same in force, that it may meet with observance and that the authority of the law may be maintained.

It is the opinion of your ministers that the whole system of laws and statutes should be adjusted to the exigencies of the times. Generally speaking, we may consider the Criminal Code as a body (of fundamental principles), and the

a Foreign Relations, 1905, p. 176.

The Chinese Code of Laws has to do almost entirely with crime and its punishment. Hence the Chinese conception of law as a body of principles is that of a system of punishments and the department of justice of the Imperial

Rules of Court Procedure as determining the manner of the body's action. If the body (of principles) be defective, there is nothing upon which we may depend for guidance in determining the intent of the law; and if the manner of applying the principles be not arranged (beforehand), it will be impossible to make the operation of the law really effective. The two things are mutually dependent, and neither one should be despised. Last year, therefore, your ministers, when reporting upon the recommendation of the censor, Liu P'engnien, that interrogation by torture should be abolished, requested that they might be permitted first of all to compile a set of rules for court procedure. This request was submitted in memorial, as the records will show.

Now China includes her (rules for) court procedure and the decision of cases in her laws and statutes. They follow the ancient precedents of the T'ang and Ming dynasties, the manner of executing the law being carefully provided for in the text of the statutes. Considering all the circumstances of to-day, it is most urgently necessary to enlarge these provisions so as to make them more detailed. In all western countries the rules of court procedure are published in a separate volume, and they are further arranged under two divisions; those for civil and those for criminal cases. All cases having to do with debts, houses, lands, title deeds, and claims for damages are placed under the jurisdiction of the civil courts. All that have to do with rebellion, counterfeiting the currency or official seals, plots to murder, robbery with violence, larceny, swindling, seizing property under threats, and others of the sort, must be tried as criminal cases and decided according to the criminal law. As the rules for the decision of these cases are all carefully arranged, the work of properly disposing of them proceeds uniformly in accordance with such rules. Japan formerly pursued the Chinese practice, but since the revolution she has followed in the footsteps of the west, and in the XXIII year of Ming-chih she published in succession rules of procedure for civil and criminal cases, with the result that citizens of all nations settled there have all become subject to her jurisdiction, as she has availed herself of the change to recover her legal jurisdiction. On looking for the cause of this we find that it is because no longer as formerly does anyone fail in the settlement of suits at law to obtain his rights.

In China mixed Chinese-foreign cases are daily increasing in number and complexity. Foreigners consider our manner of judgment different from theirs, and there constantly arises a difference of views. Chinese merchants, too, are not familiar with foreign regulations and constantly suspect bias, and as such suspicions accumulate harmony becomes impossible. Every lawsuit growing out of some ordinary trifling dispute becomes a question for international investigation. There have been innumerable cases of this sort in recent years. Unless the rules of court procedure be revised, with changes of all kinds being permitted and their adoption even being urged, although the real body (of the law) may be perfect, its general operation will not be a success, and the judicial administration will not be improved. The ancient rule in China has been for the board of punishments to have special jurisdiction of criminal cases, and the board of revenue in cases concerned with debt or with real estate transactions, so that some slight distinction has been made between civil and criminal cases.

As to the department and district magistrates in the provinces, each unites in himself in one person both administrative and judicial authority. It is impossible to make any sudden change affecting official functions, but civil and criminal cases differ one from the other in their character, and although they may be under the jurisdiction of the same court, it is important to make a distinction in the methods of dealing with them. Your ministers, in the discharge of their duties as compilers, have exercised great care in comparing and selecting. We found on examining the regulations of Europe and America that they were grouped under many headings, and that some of them were not entirely suited to conditions in China. We have taken into joint consideration only those which approach somewhat nearer to the measure of China's present Government is called "the board of punishments." It is the aim of the code to provide an appropriate punishment for every possible variety of offense under any possible combination of circumstances, leaving nothing to the judge but the determination of the category to which the case in hand belongs. Hence the memorialists reason that if the body of principles be incomplete-i. e., if any specific case be unprovided for in the system of punishments-there can be no guidance as to the intent of the law.

needs, and have prepared brief rules of court procedure, making a distinction between criminal and civil cases. Our inquiries have occupied a long time, and we are able only now to report the completion of the rules. Among them are some regulations which are common to all countries, and of these there are two which our country ought to adopt. The first is trial by jury. An examination of the "Rites of the Chou dynasty" shows that the officials having jurisdiction in capital cases had three methods of deciding upon a capital sentence." The third is called "Taking the opinion of the people," [which means] that all the people must approve of the proposed execution, after which the punishment, acquiesced in both by the officials above and the people below, is inflicted. Mencius's statement about killing by decree of the people fits in with this; and this indeed is the origin of trial by jury. This method of deciding upon a capital sentence has been unheard of since the time of the Ch'in and Han dynasties. The present practice of other nations, east and west, is nearly identical with the ancient custom of China.

Certainly the institution of criminal statutes by the Imperial Government originally grew out of the desire to protect the good and virtuous and reform the wicked and cruel. It is the disposition of men to deceive by misstatements, and a single administrator of the law being limited in his powers of discernment it is not easy for him to get at the facts; but when a number of men are depended upon for the hearing and investigation, it is easy to distinguish between truth and falsehood. If an unworthy criminal magistrate takes bribes and engages in crooked practices, deciding cases according to his own feelings, and resorts to fine writing to cover up his offenses or makes malicious misstatements to implicate others or is guilty of other such malpractices, it becomes more than ever necessary to investigate his conduct. We have to request therefore that hereafter in all the provincial capitals, as well as all large ports of international trade, and in the mixed court(s) members of the gentry, wealthy merchants and others shall be invited to lend their services and a list of jurors prepared, and that in any case in the trial of which a jury ought to be employed, an experiment be made of the practice at the proper time in accordance with the plan submitted herewith.

If the place be a small one, and wanting any persons properly qualified to act as jurors, the adoption of the practice may be temporarily postponed, until education shall have become more general (in the district) when the plan may be put into operation, and we may hope that judgment will be administered more justly, that the severity of the punishment by mutual discussion (of the jurors) will be determined in accordance with public opinion, and that, as a matter of course, the miscarriage of justice by favoritism as well as the willful infliction of punishments unduly severe will be avoided.

The second recommendation is that lawyers ought to be employed. As to the term "lawyer," we mean by it "an advocate." The Japanese use the term "one who argues in defense." When the parties to a lawsuit are brought in fear and trembling into the presence of the court, if they say much, they talk in a confused way. Hence they employ lawyers to talk for them. The work of examining witnesses, confronting them, one with another, and cross-examining them is performed in the various countries by men who have completed the course in the law school and received their diplomas. The Government, too, appoints a lawyer to conduct any important case which it may have on hand. In the case of poor persons an association to secure legal assistance appoints attorneys to act in their behalf, and takes no pay for this service. The effect

a The "Rites of Chou' says: "The officers having jurisdiction in capital cases had three ways of determining a sentence of death, three reasons for the exercise of clemency, and three for bestowal of pardon, by the use of which the minister of crime was assisted in hearing criminal cases. The first method of arriving at a sentence of death was by taking the opinion of the whole body of ministers, the second by taking the opinion of the inferior officials, and the third by taking that of the people."

The statement of Mencius, to which reference is made, is found in the conversation with the prince, Liang Hui. Mencius is represented as saying: "When the royal councilors say you may put them to death, do not listen to them. When all the high officers say you may put them to death, do not listen to them. When the people of the state say you may put to death, after you have investigated and found the criminal worthy of death, you may execute him, wherefor it is said the people put him to death."