Constitutional Government in China

Front matter

Pamphlet Series of the Carnegie Endowment for International Peace Division of International Law No. 47

Present Conditions and Prospects

BY

Note

NOTE

A Conference on the Limitation of Armament was called on August 11, 1921, by the Government of the United States, to meet in Washington on November 11, 1921, the third anniversary of the signing of the armistice between the victorious Allied and Associated Powers and Germany. It met on November 12, 1921, and adjourned on February 6, 1922, having successfully concluded its labors.

The representatives of the Powers originally invited to the Conference were the British Empire, France, Italy and Japan, for the consideration of the question of the limitation of armament, and China for the discussion of Pacific and Far Eastern Questions. Later, representatives of Belgium, the Netherlands and Portugal were invited to take part in the discussion of questions concerning the Pacific.

The tentative program agreed upon embraced the following subjects:

Limitation of Armament

Pacific and Far Eastern Questions

Under the heading of "Status of Existing Commitments" it is expected that opportunity will be afforded to consider and to reach an understanding with respect to unsettled questions involving the nature and scope of commitments under which claims of rights may hereafter be asserted.

In the belief that the dissemination of information regarding the status of armaments, the collection of official documents throwing light upon the situation in the Pacific, and the furnishing of accurate accounts of the issues involved in some of the more important problems confronting the Conference, would be a useful service, the Carnegie Endowment for International Peace undertook the preparation of a series of pamphlets of which the present pamphlet is one.

The meeting of so many nations in conference, following upon the close of a great war, was in itself an event of no mean importance. The holding of a conference upon the limitation of armament in succession to the First Hague Peace Conference called to consider the burden of armaments and the means for its decrease, with the possibility of an agree ment in conference upon some of the questions of international import in addition to armaments, is an indication that the world is returning to "normalcy" and turning to the experience of The Hague.

James Brown Scott, Director.

Washington D. C. April 15, 1922.

Present Conditions and Prospects

CONSTITUTIONAL GOVERNMENT IN CHINA Present Conditions and Prospects

Two lines of effort are open to those who would promote the cause of peace between the nations of the world. The one is the establishment of agencies for the peaceful and orderly settlement of international controversies as they arise; the other is the bringing of national policies into substantial harmony with one another, so that occasions for disputes, serious enough to endanger peace, will not be likely to arise. Could this second purpose be fully achieved, the institutions called for by the first program would become unnecessary. But, until such a complete international concord is created, the two lines of effort need to be both pursued.

The matter of securing mutual agreements between nations for limiting their military preparedness for war is based primarily, perhaps, upon a common desire to reduce, so far as is possible, the heavy economic burdens imposed upon those peoples who, under existing conditions, deem it necessary to maintain large military and naval establishments. But the movement has also its direct relation to the maintenance of international peace, for experience has conclusively shown, as, indeed, general reasoning was sufficient to indicate, that the maintenance of large standing armies and powerful navies is an incitement to war, either by creating in the minds of those peoples who possess them a conviction of power that tempts them to employ their might for the increase of their national prestige and dominion, without due regard for the rights and interests of other nations, or by causing such a burden of public taxation that, to escape from it, or at least to obtain from it some substantial political return, recourse to war, when military success is considered probable, is regarded as justified.

All of the foregoing considerations were recognized in the invitation extended to the nations by the American Government for the Conference on the Limitation of Armament, to meet at Washington November 12, 1921. Thus, President Harding, in his letter of invitation of August 11, said:

Productive labor is staggering under an economic burden too heavy to be borne unless the present vast public expenditures are greatly reduced…

It is, however, quite clear that there can be no final assurance of the peace of the world in the absence of the desire for peace, and the prospect of reduced armaments is not a hopeful one unless this desire finds expression in a practical effort to remove causes of misunderstanding and to seek ground for agreement as to principles and their application. It is the earnest wish of this Government that, through an interchange of views with the facilities afforded by a conference, it may be possible to find a solution of Pacific and Far Eastern problems, of unquestioned importance at this time; that is, such common understandings with respect to matters which have been and are of international concern as may serve to promote enduring friendship among our peoples.

Political and economic development in Europe since the termination of the World War has taught the world many lessons, but none more important than that political stability and economic prosperity, or their opposites, in one country, have unescapable effects in all other states which have dealings with that country. This truth, which has been so conspicuously manifested in Europe with reference to the dealings of France, Great Britain, Italy and Belgium with Germany, is equally exemplified in the Far East, where China, from this point of view, occupies the center of the stage. With its future is indissolubly bound up the political and commercial interests of all the Western powers which trade in the Pacific or have political interests or ambitions in that occan.

Far Eastern Factors

The general political situation in the Far East may best be envisaged as one of three factors: of China, of Japan and of the interests of the Western powers; of China, with its vast size and population, its great natural but undeveloped resources, its potentiality as a market for the trade of the other nations, but, united with military weakness for defense against attacks from outside its borders, and administrative disorganization within its own limits; of Japan, with its relatively restricted area, its numerous population, its expanding industrial and commercial activities and corresponding need for raw materials, and its eager and intense political imperialism; of the Western powers, with their many vested commercial and financial interests, which they desire not only to protect, but, if possible, to increase.

Here we have operating interests that are conflicting if judged from individualistic national points of view and therefore surely productive of international strife unless all the nations concerned can be persuaded either to abandon their points of view, or, retaining them, to agree upon working compromises just to all. It is, therefore, of great importance that those who influence or control the policies of these powers should have an intelligent understanding of the political and commercial conditions existing in China and the currents of thought and other forces in that country which may be counted upon to direct its future development.

To make more easily possible such an understanding, the present study is published. The effort will be to penetrate somewhat beneath the surface of constitutional events in order to ascertain what have been the forces which have operated to render less successful than could have been wished the experiment of republican government in China, and thus to determine what prospect, there is that the Chinese will be able, with or without foreign assistance, to maintain a stable and efficient government constitutional in character and controlled by the will of the governed.

China the Central Problem

This question as to the outlook for constitutional and republican institutions in China, it is hardly an exaggeration to say, is the most important question which confronts those who frame the international policies relating to the Far East. There seems to be a general agreement upon the part of the Western powers that it is highly desirable, from the point of view of their own interests, as well as from that of the rights of the Chinese people, that China should remain a sovereign state and continue its development along Western commercial and political lines. Certainly this is the conviction of the American people and the consistently avowed policy of the American Government. And the same would seem to be true of the British and French peoples and their governments even if it be admitted that the British have certain territorial ambitions in Tibet and along the Chinese-Tibetan border. As regards Japan, if we may judge by certain of her acts, and the statements of some of her public men, the matter is by no means so clear. Still, even in her case, her government has repeatedly stated, in the most unqualified and official manner, that it is its desire that China should preserve its sovereignty and territorial integrity, and obtain a government that will be efficient to promote and protect the welfare of its citizens. This matter of the interests of Japan in and her attitude toward China is one to which we shall later return.

If, then, it be granted that China should remain a great power, that its sovereignty should be recognized, its territorial integrity respected and its autonomous control of its own domestic affairs so far as possible conceded, it is seen how important is the question of the present political outlook in China. For, unless an efficient central government can be obtained in China, it can not be expected that other nations will find it feasible to respect its territorial sovereignty or its autonomy in domestic affairs. It is, indeed, one of the accepted doctrines of international law, and one that finds full justification in reason, that no nation can expect to have its status as an independent member of the family of nations respected unless it is able to maintain a government that has de facto power to maintain a general obedience to its commands throughout its own territory, and thus be able to fulfil the obligations which it owes, under accepted international law, to other states and to their citizens.

The Government of China Prior to 1912

The Government of China Prior to 1912 The Old Régime

In order to understand the difficulties which have beset the republican government established in China in 1912, it is necessary that one should have at least a general knowledge of the character of the government which it replaced. This is true for the double reason that not only are old political ideas and practices necessarily carried over in considerable measure into a new régime, but old administrative methods are retained. In France, as is well known, the administrative system built up under the absolute monarchy was largely preserved by the revolutionists, and, as later perfected by Napoleon I, continued in force during all the constitutional changes which France has since experienced. The same has been true in China. Representative assemblies with advisory powers were established in the provinces shortly prior to the revolution of 1911, and have since been continued, but this did not change the general relation of the provinces to the Empire, nor alter the general character of the administrative system within the provinces. Furthermore, as will presently be referred to, the appointment of military governors or tuchuns in the provinces has profoundly altered the position and influence of the civil governors, and in general the control which the Central Government under the republican régime, has been able to exercise over provincial authorities. It still remains true, however, that, in general, the administrative system of the Republic of China is substantially the same as that which had been built up, and which had for so long persisted, under the Empire.

The Emperor

At the head of the old Imperial system was the Emperor, in theory with unlimited powers of government, and believed by himself and conceded by his people to possess a mandate from Heaven to issue such orders as he might see fit, and which his subjects were "tremblingly to obey." He had his chief or court officials or boards which he appointed or dismissed at will. His was the final authority in matters judicial, and no representative or otherwise constituted legislative chamber divided with him the right to issue legally binding orders. In practice, however, he seldom attempted to issue general rules in the nature of private laws—civil or criminal—his orders almost always being either administrative directions to officials, or decrees in determination of specific matters.

The Provinces

The Empire itself was made up of twenty-two vast provinces, with populations ranging from five to fifty millions. In each province was a governor, appointed by the Emperor, who was assisted by a few chief officials such as a judge, salt comptroller, grain intendant, etc. In some cases viceroys were appointed who had authority over two or more provinces, each of which until 1905 might or might not have its own governor. After 1905 there was no governor in the province in which the viceroy resided.

The distinction between provincial governors and viceroys is one not easy to state in definite terms. The chief official in the metropolitan province of Chihli was always termed a viceroy, and there was no governor of the province. The provinces of Shantung, Shansi and Honan were under no viceroyalty. The other provinces were grouped in twos and threes under viceroys, some of them having governors, others not. Of the viceroy, Hosea B. Morse, in his authoritative work The Trade and Administration of China, writes:

He is the highest in rank of the civilian officials of the provincial administration, but in theory ranks after, though he is not subordinated to, the Tartar General, when one is stationed within his viceroyalty; and he has control over the military forces, other than the Manchu garrison, within his jurisdiction. In some cases he is actually Governor, though with the power and rank of Governor-General, of one province only; in others he has jurisdiction over two or three provinces, each of which has (by the old theory) its own Governor; and still other provinces, each with its Governor, are subordinated to no Governor-General… The Viceroy, though of higher rank and looming larger in the eyes of the world, is in the provincial administration a superior colleague to the Governor, and in all matters, orders to subordinates or memorials to the Throne, the two act conjointly.

Functions of the Central Government

Free as were the provincial authorities from continuous control by the Central Government, there was in China no approach to a federal system of government under which the member bodies politic have clearly worked out constitutional limits of independent action. There are not now, and never have been, constitutional limitations upon the range of functions which the Central Government may legally exercise. In practice, however, it has not attempted, until recently, to do much more than maintain its own nominal existence. It has controlled the appointments of the higher provincial, prefectural and district officials, it has collected certain general taxes and caused more or less definite contributions of money or grain or other produce to be remitted to it from the provinces, and it has maintained armies and has operated a system of state examinations from among the successful candidates to which appointments to its civil service have been made. It has also made provision for appellate tribunals in the provinces and at Peking to which appeals from the lower courts may be taken. During very recent years it has also established a certain number of higher schools and colleges and concerned itself with the construction and operation of railways and the working of mines. But this is as far as its activities have extended. It is thus seen how small a part the Central Government has played in the everyday life of the Chinese people. There was no real need for a central lawmaking body, executive mandates or ordinances being all that were needed.

A well-known authority, describing the old Imperial system, declared:

The Central Government of China is arranged with the object rather of registering and checking the action of the various provincial administrations, than with that of assuming a direct initiative in the conduct of affairs. Regulations, indeed, of the most minute and comprehensive character, are on record for the guidance of every conceivable act of administration; and the principal function of the Central Government consists in watching over the execution of this system of rules. The bestowal of the higher appointments of the civil and military services, and the distribution of the superior literary degrees as rewards for proficiency in the studies upon which the entire polity of the Empire is based, comprise the remainder of the attributes reserved to the government established at Peking. The Central Government may be said to criticize rather than to control the action of the twenty-one provin cial administrations, wielding, however, at all times the power of immediate removal from his post of any official whose conduct may be found irregular, or considered dangerous to the stability of the State.

Commenting on these words, written in 1877, Morse says:

They take too little account of the centralizing policy forced upon the government by the importance of its foreign relations, and facilitated by the improvement in the means of communication.

More conspicuous even than the paucity of functions exercised by the Central Government in China has been its impotence to control the provincial and other local authorities. The very size of China, coupled with the absence of means of quick transportation or communication, has made impossible any executive centralized control. The result has been that under the Empire this control never was really attempted. Thus, a viceroy or provincial governor always had almost complete freedom to do what he would within the area placed under his jurisdiction so long as he made to Peking the proper provincial remittances and kept his people reasonably contented.

Local Governments

Each province, for administrative purposes, was divided into prefectures (Fu), each with its prefect; and these areas, in turn, divided into districts (Hsien), in charge of district magistrates. These prefects and district magistrates, like the viceroys and governors, also owed their appointment to the Emperor, and were subject to his direct orders and were removable from office at any time at his will.

The administrative importance of the Hsien and its magistrate was and is of sufficient importance to deserve a rather long quotation from Morse:

The Hsien is the civic, political, judicial and fiscal unit of Chinese life: it comprises one walled city, or in the case of many of the provincial capitals the half of a walled city (in the case of Soochow the third of the city), with the country immediately around it. In it every Chinese subject is inscribed, and this inscription he does not willingly forfeit or abandon, no matter to what part of the Empire or of the outer world his vocation may call him. Here is his ancestral temple if he is of the gentry, his ancestral home in any case; here he will return, if permitted, in the evening of his life, and here will his bones be sent should he die abroad…

The Hsien is duly equipped with Treasurers, Collectors, Secretaries, Clerks, Jailers, Runners, Constables, etc., many of whom hold their positions by hereditary right or custom; but an official in China, though he may delegate his functions, can never delegate or absolve himself from responsibility, and the Hsien [District Magistrate] is personally responsible for every act of what one may call the municipal government. He is everything in the municipality… He is Police Magistrate, and decides ordinary police cases. He is Court of First Instance in all civil cases… The Hsien is also coroner; he is also prosecuting attorney… He is also sheriff to execute all judgments of his own or a superior court; and is jail warden… The Hsien is the agent of the provincial and of the Imperial administrations in collecting the land tax and the grain tribute, but he has no concern with the special tributes or with the salt gabelle or likin; with them his sole connection is the duty of protecting the collectors. Ile is also Registrar of Lands… He is Famine Commissioner… He is the local representative of the Kung Pu [Imperial Board of Works] and the Provincial Treasurer in the custody of official buildings, and sees to the maintenance in order of city walls, prisons, official temples, and all other public buildings; and must maintain the efficiency and provide for the expenses of the Government courier service from border to border of his district. From his own funds he must execute such repairs as are ever effected to bridges and the things called roads, must see that schools are maintained, and must call upon the wealthy to contribute for public and philanthropic purposes. He maintains order, sees to the physical well-being of his District, and is the guardian of the people's morals.

Down to and including the Hsien was as far as the Imperial hierarchical centralized, administrative system went. Within the Hsien were and are the countless Chinese villages. These are units, without official or legal status, not parts, that is, of the general administrative system of the whole country, but self-governing communities so far as their own purely local affairs are concerned. Though having no formal official warrant, this control is exercised by the village elders or fathers, from among whom is nominated by the district magistrate an official known as the tipao, who represents the villagers in such relations as they may have with the Hsien and other administrative authorities. Of the village elders, Arthur Smith in his Village Life in China writes:

The theory in regard to these persons is that they are chosen, or rather nominated, by their fellow-townsmen, and confirmed in their position by the District Magistrate. In some regions this is actually done. The designation "Village Elders" might be understood to denote that the persons who bear it are the oldest men in the village, but this is not necessarily the case. Neither are they necessarily the wealthiest men, although it is probable that every family of property will be in some way represented among them. They are not necessarily men of literary attainments, although this may be the case with a few. In those regions where the method of selection is most loose, the number of headmen has no necessary relation to the size of the village; the position is not hereditary, and neither is there any fixed time of service. A man may act in this capacity at one time, and refuse or neglect to do so at another time. Where this plan prevails, the headmen are not formally chosen, nor formally deposed. They drop into their places—or perhaps climb into them—by a kind of natural selection.

In truth, if we follow the old Chinese Government down to the Hsien, and even to the villages, we find governmental control of the lives of its citizens conspicuous only by its absence. The Chinese, being still in the agricultural or handicraft stage of economic development, needed, in fact, little more than police protection, and even as regards this one function, which is usually deemed essential to every government, the Chinese have been content to ask governmental assistance only upon occasions of especial need. In other words, the Chinese have not been accustomed to look to their local political rulers and much less to the superior authorities to supply them with elementary schools, to construct bridges and roads, to establish hospitals or libraries, to supply water or light or fire protection, or to promulgate and enforce regulations in the interest of the public health. The sum result of the practices is that outside of the larger cities there is very little government in China, at least in the strictly political sense of the word. If we except the collection of taxes, and the occasional recording of land transfers, many of the villages, which in thousands dot the country, go for years at a time without the performance in them of a single act that may properly be termed governmental. This means that the Chinese people have not so much practiced democracy in their local governments as that they lived without any real political government at all. Thus, in the sense that they are not, in their everyday affairs, subject to regulations created and enforced by law, the Chinese are one of the freest peoples on earth.

Not only had the Chinese, until the time of the Revolution, failed to see the necessity of endowing the Central Government with extensive powers of control over the authorities of the provinces and other subdivisions of the Republic, they had not learned to give to it their primary allegiance. The Chinese people had an extravagant pride in their own race, its achievements and its civilization, but their patriotism as a force demanding obedience and self-sacrifice attached only to the family or at the most to the village or district. Indeed, it was the objection upon the part of the provinces to the attempt upon the part of the Central Government to monopolize the financial rewards from railway construction and operation that was one of the proximate causes of the revolution of 1911, which, beginning only as a revolt against the Manchu rulers, soon became a movement to abolish the Imperial system itself and to replace it with a republican rule.

Mr. J. O. P. Bland, one of the best known writers upon conditions in China, has the following to say with regard to the mental attitude of the great mass of the Chinese towards their Central Government and as to the relation of that government to the provinces:

The governments which came and went, the dynasties that won and lost the Dragon Throne, were passively accepted as part of the established order of the universe, but their functions of government, except at crises of rebellion or famine, rarely disturbed the even tenor of the people's way. Soldiers and police alike remained unknown to most of the inhabitants of the interior; no agent or official of the Government, except the gatherers of the annual land tax, required anything of them. In this sense, Professor Giles is justified in describing China as "a great democracy, living in the greatest Republic the world has ever seen." But when he invests these localized self-governing Chinese communities with a keen sense and jealous regard of national (as distinct from local) liberties, he ignores the fact that the physical conditions hitherto prevailing throughout the interior of China, have effectively prevented the formation and propagation of that public opinion by which alone national sentiments can be evoked and maintained. This error is common to many recent writers, who assume for the inarticulate impassive masses a definite share and sympathy in the political activities of Young China, and who believe them capable, because of their ancient local independence, of adopting representative institutions and a Republican form of government. But it must, I think, be evident that such forms of democratic self-government as have obtained in China for many centuries, have been primarily due to the fact that no administrative authority of the Throne could possibly have been made effective throughout so vast an Empire under the physical conditions then existing. Local autonomy ensued naturally from the inability of successive dynasties to exercise anything approaching to an organized public administration. The Throne ruled, but did not assume to govern. Beyond the bounds of the city and village communities, there could be nothing in the nature of regulated popular government. The Throne's authority rested in the last resort upon moral force; owing to physical obstacles, it never possessed the machinery for the collection of taxes sufficient to maintain armed forces and to assert a supreme authority of administration. Such powers and revenues as the central and provincial authorities enjoyed were the result of voluntary obedience of the people to an order long established, and to indirect taxation along the lines of least resistance. That China has held together so long and, on the whole, so well, as a homogeneous Empire must be attributed to the inherent strength of the moral foundations, laid by the Sages, of those teachings which have formed the innermost soul of the people. More effectively than by the loose ties of feudalism which bound together locally autonomous communities under European monarchs in the Middle Ages, the unity of the Chinese nation has been preserved. first by the "Three Relations" of the Confucian philosophy, and, later, by the statecraft which instituted the system of public service examinations as a permanently cohesive agent. By this means, the eighteen provinces were educated and maintained in a common heritage of national philosophy, ethics, literature, laws and history, and, through it, they attained to a common interest in the provision of national legislators and officials. Their rights and opportunities of local self-government formed an essential part of the Confucian system, arising directly from the principle of parental authority. These local rights are fiscal as well as penal and administrative, and from their exercise have arisen, in all parts of the country, the capacity to combine for common ends and instinctive respect for law and order. But it is precisely in the strength of the local autonomy thus created and perfected, that lies the unsuperable obstacle to the imposition on the nation of representative government of the modern European type. From the same cause springs an atavistic local antagonism to every innovation—such as Railways, or the opening of mines, or the appointment of Imperial officers to supervise the working of self-government Regulations which threatens State interference with existing ways, or new burdens of responsibility and taxation.