Wednesday, December 10, 2008

The U,S, Consul on Xiamen Law (1893)

Bill Brown ... Xiamen University
When D.C. Judge Roy Pearson, the fearless crusader against frivolous lawsuits, sued a Chinese laundry for $65.5 million after they lost their pants, the Chinese proprietors probably wished they were back in China where, according to Xiamen's U.S. Consul Mr. Edward Bedloe, Chinese are not a litigious society. At least they weren't in 1893, when Bedloe made his report--but times may be changing.

As Xiamen University's Law Department takes off, we have foreign lawyers crawling out of the woodwork, coming to learn and, scarier yet, to teach... I hope you enjoy this excerpt from Amoy U.S. Consul Bedloe's report in “Reports from the Consuls of the United States, Commerce, Manufactures, Etc., Vol. XLII, May, June, July and August, 1893”...

“To an American newcomer in China the laws respecting debt seem at first to be a labyrinth without a clew. Even a lawyer finds it difficult to determine the principles upon which Chinese jurisprudence is based. When, however, the student applies the touchstone of history and public policy, a system is disclosed which, thought it is at utter variance with any that prevails in countries that follow the common law or that employ a code, possesses great wisdom and practical merit. Time and space forbid a detailed account of the juridical development of China, but a brief synopsis may be of benefit to the reader.

In the first place, all Chinese law is customary law…. The law books (so called) of the country are hardly commentaries. They profess to be statements of what is considered right and proper by the community at large.

In the second place, the Chinese regard litigation as an evil and try to reduce it to a minimum. There are no lawyers, no costs, fees, or allowances. There are no calendars, rules of practice, judgment rolls, nor any of the machinery which makes the attorney so prominent a feature of civilized life. A magistrate hears and determines a case very much as a father does a dispute between to children, or, better still, as an arbitrator does a difficulty between two friendly merchants. In the main, justice is done in the premises and, it must be added, is done more speedily, cheaply, and thoroughly than by the tribunals of our own race.

In the third place, litigation being an evil, public policy has increased to a very large extent the number of obligations which have no legal or binding nature except the honor of the debtor. Many of these “debts of honor” will seem monstrous to the legal mind……

…Professional services at Chinese law have in the main no legal value. In practice a physician keeps a memorandum of his services, but seldom, if ever, sends a bill. When his work is done, the patient usually hands him an amount of money equal to what would have been charged under the American system. For this no receipt is given. The same principle applies to scribes, mediums, priests, and other professionals. As a heck upon non-paying customers shrewd professional men insist upon a note, I O U, or bond before doing any work. The document, no matter what its form, is as binding as ordinary business paper. It may be well to add at this point that a creditor has means of collecting debts which seem ridiculous to the Western mind. He depends upon the profound love of peace and tranquility so characteristic of the Chinese race. When a patron or client shows a disinclination toward payment, he visits the latter’s house, sits upon the threshold, and weeps and harangues until his bill is paid. It seldom requires more than an hour of lamentation to collect any reasonable claim.

In cases of insolvency legal debts and those of honor are almost invariably paid by the debtor if he retrieves his position. In very many cases the obligations of bankrupt have been assumed by his children and even grandchildren. This is a legal duty when the debt is legal in character. When it is a debt of honor, its payment by a second generation is considered an act of high filial piety.

A custom, probably peculiar to china, is that of mutual forgetfulness. Business men who have advanced moneys or sold goods on credit and find it impossible to collect their capital or to obtain payment in full of the amount due them, but who are on friendly terms with their debtors, will, after several years, call upon the latter and agree to “forget everything to date.” This is equivalent to a mutual release under seal and is highly favored by the great magistrates and priests of China. In conclusion, it may be stated that commercial litigation and insolvency are much rarer in China than in Europe or the United States. The number of tribunals, magistrates, and court officers is scarcely one-third, and the amount involved not a tenth, of what is at stake in the courts of Christendom.

Beyond the fear of going to law is the greater fear and disgrace of being a delinquent debtor. A Chinaman who becomes financially embarrassed will sell himself for a plantation coolie, go into exile for twenty years, or even commit suicide. It is part of his religion to pay off all he owes in the last week of the year, in order that he may begin the next one free from care and oblitatoin….

….The matter may be summed up in the remark that the expression “a debt of honor” in China is “a debt of duty,” and that one of their great maxims is “the highest good is the performance of every duty, even the humblest.”

Edward Bedloe, U.S. Consul, “Reports from the Consuls of the United States, Commerce, Manufactures, Etc., Vol. XLII, May, June, July and August, 1893”, U.S. Bureau of Foreign Commerce, Government Printing Office, Washington, 1893. pp. 500-503

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