[62] See Weihaiwei Order-in-Council, Clause 21 (3).
[63] See Weihaiwei Order-in-Council, Clause 18.
[64] Ibid., Clause 18 (1).
CHAPTER VI
LITIGATION
The entire absence of both branches of the legal profession is perhaps (be it said without disrespect to the majesty of the law) a matter on which the people of Weihaiwei are to be congratulated, for it enables them to enjoy their favourite pastime of litigation at a minimum of cost. The cheapness of litigation in Weihaiwei is indeed in the eyes of many of the people one of the most attractive features of British rule: though, if only they could be brought to realise the fact, it is also one of the most dangerous, for it tends to diminish the authority of village elders and clan-patriarchs and so to weaken the whole social structure upon which village life in China is based. The people have discovered that even their most trifling disputes are more easily, quickly and cheaply settled by going to law than by resorting to the traditional Chinese plan of invoking the assistance of "peace-talkers"; for these peace-talkers are usually elderly relatives, village headmen or friendly neighbours, who must at least be hospitably entertained, during their lengthy deliberations, with pork and vegetables and sundry pots of wine, whereas the British magistrate is understood to hanker after no such delicacies. Thus while the people recognise, with more or less gratitude, the purity of the British courts and the readiness of the officials to listen to all complaints, some of the wiser among them contemplate with some anxiety a system which is almost necessarily productive of excessive litigation and of protracted family feuds. There can be no part of the British Empire where litigation costs less than it does here, and indeed there is probably no part where it costs so little. There are no court fees, and the magistrate himself not only takes the place of counsel for both plaintiff and defendant, thereby saving the parties all legal costs, but also assumes the troublesome burden of the collection and investigation of evidence.
Until recently there existed a class of licensed petition-writers who charged litigants a small fee for drawing up petitions addressed to the court. After several of these petition-writers had been convicted of bribery and extortion and other malpractices, it was found necessary to withdraw all their licences and abolish the system. At present every litigant who cannot write and has no literary relative who will oblige him by drawing up a petition for him, simply comes into the court when and how he likes and makes his statement by word of mouth. Unlettered peasant-folk are garrulous and inconsequential all the world over, and those of Weihaiwei are not exceptional: so it may be easily understood that the necessity of taking down long rambling statements made in rustic Chinese by deaf old men and noisy and unreasonable women adds no slight burden to the labours of an English magistrate. Unnecessary litigation is indeed becoming so common a feature of daily life that the Government is at present contemplating the introduction of a system of court fees which, while not preventing the people from making just complaints before the magistrates, will tend to discourage them from running to the courts before they have made the least attempt to settle their quarrels in a manner more consistent with the traditional usages of their country. That something of this kind must be done to check the present rush of litigants to the courts is daily becoming more apparent.
In the South Division court[65] the proceedings are carried on entirely in the Chinese language. The speech of the people, it may be said, is a form of Mandarin (so called) which after a little practice is easily intelligible to a speaker of Pekingese. Colloquialisms are naturally numerous among so remote and isolated a community as the inhabitants of north-eastern Shantung, and in some respects the dialect approximates to that of Nanking rather than to the soft speech of the northern capital.
The absence of Counsel is no hardship to the people, for in China professional lawyers—as we understand the term—are unknown. "A man who attempted to appear for another in a Court of Justice," as Sir Robert Douglas says, "would probably render himself liable to a penalty under the clause in the Penal Code which orders a flogging for any person who excites or promotes litigation."[66] In Weihaiwei only once has a native—in this case a Christian convert—made the least attempt to conduct a case for and on behalf of another individual, and he, though it was impossible under British methods to have him flogged, was duly punished for this as well as for other offences. In the courts of Weihaiwei, then, as in those of China, each of the parties to a suit argues out his own case in his own way, though it is upon the magistrate himself that the duty devolves of separating the wheat from the chaff and selecting such parts of the litigant's argument as appear to have a real bearing on the points at issue. In all essentials, therefore, cases are heard and dealt with in Weihaiwei very much as they are heard and dealt with in China; thus a man from the Chinese side of the frontier who comes into court as plaintiff in Weihaiwei finds himself—especially if he is used to litigation in his own country—quite at home. As may be easily imagined, lawsuits are not conducted with the frigid decorum that usually marks the hearing of a civil case in England; the facts that plaintiff and defendant appear in person, each to conduct his own case, and that each enjoys practically unlimited freedom to say what he likes about his opponent and about things in general, introduce a dramatic element which is lacking in the more stately procedure of Western law-courts. Instead of the patient discussion of minute points of law and the careful citation of precedents and authorities, there are clamorous recitals of real or imaginary woes, bitter denunciations, passionate appeals for justice. A rather remarkable feature of all this, however, is the absence of gesturing. Hands are not clasped or raised to heaven, the movements of the body show no signs of deep feeling, even the features—though their owner is inwardly seething with emotion—seem to remain almost passive. Is this a sign of remoteness from savagery? The people of England have been singled out as examples of those who make a minimum use of gesture: but Englishmen cannot be compared in this respect with the Chinese.