Edward Harper Parker.

China, her history, diplomacy, and commerce, from the earliest times to the present day online

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intellect now, and so are priests as professors of
it ; but the true and simple teaching of Shakya-
muni survives ; and, as priests possess glebes ;
are independent ; and are usually travelled and
sometimes even well-read men, with a leisured
taste for calligraphy and antiquity; they often
enjoy the respect and companionship of the
learned. The Republic, having begun rather
summarily with priests, gradually reconsidered
their vested rights, and things do not seem to be
quite settled yet. Both they and their temples
are more popular with women than men like
to see, and in some provinces there is moral
laxity ; just as in Brazil, Manila, or Hungary
the Catholic priests are less strict than they are
in England, Germany, or France. When men
die, the families, and especially the women,
like to have a few priests in, and they are not
particular as to doctrine, or even as to religion,
so long as chaunting and processions of some
sort go on. Just as distinguished French scoffers
are reported to send for a priest at the last
moment, so even a Chinese mandarin thinks
it good form to summon a Taoist or a bonze
when a calamity takes place. It is only another


form of " church parade." In Singapore there
is a Roman Cathohc church in which a figure of
the Blessed Virgin has somehow acquired a
repute amongst the pagans ; and, as the Portu-
guese priest in charge himself told me, there is
a sort of annual pagan " wake " held every year
there. The fact is that, politics apart, the
Chinese take an easy and broad-minded view
of all religions, and would never persecute any-
one so long as no gross immorality or inter-
ference with administration, custom, and liberty
took place. The Mussulmans in North China
are never in the least interfered vv^ith, because
they have the good sense (like the early Jesuits
had) to fall in with popidar feeling, and " let
things be," The Chinese, in turn, give them a
free hand in circumcision, pork, wine, and
other specialities. It is only in. Yiin Nan and
Kan Suh, where Mahometans have at times
become rather aggressive, that wars and perse-
cutions have taken place, the faults, as usual,
being on both sides.

Such was the state of affairs when Christianity
first appeared. I say *' first " advisedly, for
though Nestorians, Mazdeans, Manichaeans, Jews,
and other Western sectarians had been alter-
nately tolerated and suppressed at various times
between the seventh and the thirteenth century,
they had never been clearly separated, in the
popular mind at least, from Buddhists and
Mussulmans, of which they were considered
perverted forms. At first there was no hostility
to speak of ; but the attitude of the less prudent
Roman Catholics in the seventeenth century
towards the time-honoured custom of " ancestor-
worship " (which is really much the same as the
annual visits to cemeteries in vogue in France
and Italy) sowed the germs of future trouble.
The disputes of the Jesuits, Dominicans, the


Franciscans involved the Pope and the Manchu
Emperor in antagonistic polemics ; persecution
was the result ; and for two centuries Chris-
tianity only existed in the provinces by stealth.
The treaty of Nanking (in 1842), and still more
that of Tientsin (in 1858), gave a fillip to propa-
gandism ; and now perhaps there are a million
or more of nominal Christians in the empire,
i.e. about two or three for every thousand souls,
and it must cost quite a million pounds a year
to give them spiritual comfort. It is quite a
mistake to suppose that the Chinese masses
entertain any hostile sentiments towards re-
ligious feeling as such : they respect it, in
whatever form ; and the gentle doctrines of
true, simple Buddhism, which possess so much
that is (externally at least) similar to those of
true, simple Christianity, have, as already
stated, on the whole, exercised a lasting effect
for good on the Chinese mind : so do medical
missionaries and really charitable school teachers
exercise a decidedly good effect upon the Celestial
mind of to-day : but by reasoning kindness, not
by dogma. What causes trouble is the clashing
of militant doctrine with the village customs
and social habits naturally dear to the rustic
mind. I will just enumerate a few instances to
illustrate my meaning. Roman Catholic and
Protestant missionaries alike inveigh against
foot-binding. This is not unreasonable, and
even the Chinese themselves are beginning to see
that it is an evil custom. The old Dowager
explicitly condemned it some years ago, and
now it is distinctly on the decline, besides being
presidentially denounced ; but prudence is still re-
quired, otherwise it is manifest that hostility and
jealousy must arise between conservative and pro-
gressive females, just as with us a too energetic
display of the Bloomer costume or a divided skirt


is apt, as a mere novelty, to cause a " row." Both
Roman Catholics and Protestants rightly inveigh
against the use of opium ; and happily there is
no longer any risk of hostility on this ground,
as both the Republican and the British govern-
ments are whole-heartedly doing their best.
The Protestants, but not tlie Roman Catholics,
usually make an unnecessary fuss about the use
of spirituous liquors. Coming as they do from
drunken countries where liquor too often means
vice, they have not the discrimination to see that
their exhortations are quite unnecessary in a land
where intemperance is practically unknovv n. It is
to be hoped that the suppression of opium smok-
ing will not bring dram-drinking into vogue ;
and it is also to be hoped that the Japanese
will be generous enough to discourage the profit-
able trade in morphia and its apparatus. The
questions of slavery and concubinage are more
serious ; but here again Europeans are misled
by their own words. Slavery in China has never
at any time savoured of the brutality the black
variety assumed in European or Arab hands :
in denouncing Chinese slavery— which, though
admitted by the Chinese themselves to be ob-
jectionable, is really more a social caste distinc-
tion, or diminutio capitis, than a heartless traffic
in human flesh- — the missionaries are unjustly
censuring the Chinese in principle for the past
abominable crimes of their ovvm ancestors. Since
the recent legal reforms, slavery has been nomin-
ally abolished throughout the Empire, but no
doubt old customs still persist in parts inacces-
sible to new influences ; as, for instance, in remote
Kwei Chou province, where " official sales" of
poor children were disclosed in 1908. So, again,
the word "concubinage" connotes with us de-
grading ideas which the corresponding Chinese
word in no way expresses. Apart from the fact


that polygamy was universal at one time both
with our own religious ancestors the JeAvs and
with our own political ancestors the Romans, it
is still the rule rather than the exception all over
Asia, and there seems to be nothing inherently or
naturally evil in it; in fact, the devastating results
of the great war are now suggesting a Kultunxl
revival of it in order to restore the already un-
favourable balance of sexes. We have no right
to force on other peoples rites and ceremonies
when the sanctions and grounds do not exist
which render those forms incumbent on us.
Then there are the village temple feasts, the
prayers for rain, the exorcising of demons, in
Manchu times the obeisance to Imperial tablets,
even under the Republic to Confucius' shrine,
and so on. These last are the points where the
narrow-minded views and actions of some mis-
sionaries have been apt to give most trouble.
If it is the custom for all to subscribe to a temple
or other " superstitious " feast, it is monstrous
for a too strait-laced missionary to back up the
protest of a more or less genuine convert who
may simply want to escape paying his scot :
in fact, the missionary himself ought to subscribe
to anything in the shape of local rates which
has the approval of authority. Anyway, he has
no business whatever to question an official
decision touching the incidence of rates or
popular levies upon a Chinese. Our own church
rates, though not now compulsory, have been
so at times. Even admitting that the Chinese
customary levies are absurd and unjust, we
must allow they are not so much so that we are
entitled to condemn them more severely than
many of our own follies committed in the name
of religion, ancient custom, or local tradition.

So far from being irreligious, the Chinese
are decidedly religiously inclined, though their


religious feelings may not take that gloomy,
Anglo-Dutch form which is the peculiarity of
" dissenting " coimtries. In the first place, all
Chinese have a deep veneration for the idea of
a soul, or the continuity of life ; this idea is
derived partly from the old Shamanistic or
natural religion, and partly from the Buddhist
notion of transmigration. Hence the great
care of the dead, the love of funeral ceremonies,
the readiness to spend money upon graves, the
desire to propitiate the ghosts of ancestors, the
yearning for a son, the strong family sentiment
of unity, and the strict subordination of younger
to elder, the chief rock upon which law reforms
partly came to grief. Hair-splitting doctrine has
no charms for the Chinese mind, which, however
ill-trained, is essentially intellectual and liberal.
The most militant and aggressive religion on
earth, that of Mahomet, has learnt to live in
peace everywhere in China except on the borders
where foreign races complicate the situation ;
and a Mussulman might be and occasionally was
a Chinese (i.e. Manchu time) Viceroy ; as, indeed,
even a Christian might be if he would only make
reasonable concessions, and give us a little more
bright, cheery, tolerant human nature, instead
of seeking to condemn those whose consciences
do not permit them to accept his views of what
is right and true. Under the Republic all
religions have been declared free, and, as the
American traveller Rodney Gilbert has this
year shown us, a powerful Mussulman general
has accepted Chinese rank and is virtually ruling
Islam on the Tibetan frontiers as an independent

The above being the general feeling of the
Chinese, we may now go on to describe them as
exactly the contrary of what they are usually
supposed to be ; that is, they are religious-


minded, tolerant, and non-militant ; but neither
the educated nor the ignorant classes will have
what they honestly believe to be humbug thrust
down their throats, and such religious animosity
as exists^ — which has never been exercised in
one single instance against the Russian Orthodox
Church — has often had to thank the mistaken
zeal of Roman Catholic and Protestant mission-
aries for its own birth and growth ; or, as in the
" Boxer " case, is indirectly owing to the
" blood of the martyrs " having been used (as
was done by Prussia) for political gain. This
brings us to the germane subject of Chinese
rebellions and secret societies, which have in-
variably been provoked by religious sectaries.

In the beginning of the year 1308, immediately
after John of Monte-Corvino had been conse-
crated Archbishop of Cambalu (Peking), Chris-
tian priests, Buddhist bonzes, and Taoist monks
were ordered to " pay taxes in future like any
one else," and steps were taken to put a stop to
the " exacting claims of Buddhist priests."
The evident connection of religion with rebel-
lion is apparent from the following : " Princes
and Tibetan priests in the imperial cortege
having oppressed the people on the roads, such
things are now prohibited. Prohibited is also
the White Lily Sect ; and their buildings will
be destroyed : their sectaries will once more be
made common people." Again, in 1322 : " Pro-
hibition of White Lily Buddhist business." And
in 1349 there was a red-turban revolt in the
north of modern An Hwei, once more under the
segis of the White Lily Society. It was given
out in this connection that Maitraya (the Bud-
dhist Messiah) was coming to earth. Shortly
after this a Buddhist priest turned the Mongols
out, and founded the Ming dynasty. In 1622
a White Lily revolt broke out in the exact spot


where the madcap "Boxer" rebelhon of 1900
had its birth. The Jesuits, then estabhshing
themselves in China, were not unnaturally con-
nected with this rebellion in the Chinese mind,
and for some years the Prime Minister severely
persecuted them. Meanwhile the White Lily
leader gained headway, sacked Peking, and put
an end to the Ming dynasty, which was replaced
by the very Manchus whose assistance the Ming
statesmen had sought. During the greater
part of the two first centuries of Manchu rule
there were not many serious popular rebellions ;
but, such as they were, religion was always at
the bottom of the trouble. In 1778 a revolt in
South Shan Si brought the White Lily Society
once more under review. In speaking of a
Mussulman schism of the same date, the Emperor
says : " It is similar in principle to the White
Lily faith amongst bonzes." Rebellions were
then spreading rapidly all over the Empire,
which was really in a very parlous state when
the aged K'ien-lung abdicated in 1795 to his son,
after a splendid reign of sixty years. In that
year the leading White Lily chief was taken and
executed ; the services of General Nayench'eng
(grandson of Akwei, the Manchu sent to conquer
Burma) are now first mentioned. In 1813 a
" Boxer " revolt broke out once more in the old
spot (South Shan Tung), and some of its sec-
taries even gained admission to the Peking
Palace. The Emperor Kia-k'ing's life was only
saved by the bravery of his second son, after-
wards the Emperor Tao-kwang. Though the
term " Boxer " is used by General Nayench'eng
in connection with this rising, its lineal descent
from the White Lily sect is amply attested by
him, though the official name at the time was
T'ien-li, or " Heavenly Order " Faith. Its
indirect connection with Christianity, or at

A.D. 1850-1900] HOW THE HEATHEN RAGE 305

least with Christian ideas, is possible from the
fact that the term " White Ocean Faith " is
also vaguely used by some of the conspirators.

At last, in 1850, the direct connection of Chris-
tianity with rebellion was made perfectly clear
when the standard of revolt was raised in Kwang
Si by a student of the Christian doctrine named
Hung Siu-ts'iian : he styled his sect the Shang-ti
Hwei, or " Society of God," and reigned for ten
years as " King of Heaven " at Nanking, claim-
ing blood relationship with Jesus Christ. It was
not until 1864 that the late Marquess Tseng's ^
father succeeded in retaking the city ; and mean-
while half China had been ravaged. I have
already referred to the Great Rebellion in the
chapter on " Population."

It is unnecessary to inquire into the exact
religious or anti-religious motives which inspired
the present " Boxer " revolt : matters of opinion
in religion and superstition alike are of no
scientific importance to anyone but the holder,
so far at least as they are unsupported by evi-
dence of truth : but, so far as those opinions
bear upon practical human affairs, it is interest-
ing to note several indisputable facts : (1) the
" Boxers " were inspired by the tenets of the old
White Lily Society — i.e. they were a protest
made by the spirit of Buddhism against the
spirit of militant Christianity ; (2) the mili-
tancy against which the " Boxers " protest is
the evident connection in their minds between
the land-acquisitiveness of Europeans and the
supposed alliance between European militant
missionaries and European political aims. As
usual in human affairs, the pretests of ignorant
men assume a violent form, and passion feeds
upon itself as it rages.

The " Boxer " rebellion had two most impor-

^ Minister to Great Britain a generation ago.


tant literary consequences. The great library
of the Han-lin Academy, and that of the
Russian College at Pei Kwan, were both utterly
destroyed : most of the " Albazins," or Russi-
fied Chinese, also perished. In retaliation, the
Russians carted o^ to Europe the whole of the
vast manuscript collection from the Mukden
Palace : this included manuscript copies of the
Greek and Roman classics, which must have
been brought from Europe either by the early
missionaries, or by the Mongols after their con-
quests in Hungary.



After the excitement caused by the Russo-
Japanese war, a Chinese imperial decree dated
April 24, 1905, recited hov>^ the Throne had been
advised to recast some of the laws in accordance
with the spirit of the age, and how it had been
resolved to abolish at once the cruel lingering
punishment of hacking the body. It is apolo-
getically explained that the Manchus, previously
to their assuming control of the Chinese Empire
260 years previously, knew no punishment severer
than simple death ; but that, " contrary to
their own merciful inclinations," they had been
induced to take over this and other exaggerated
forms from the laws of the preceding dynasty.
In future, therefore, decapitation and strangu-
lation, either immediate or after a period of
revision and delay, were to be the only death
punishments ; the branding of criminals on the
face, the exposure of decapitated heads, and the
decapitating of dead bodies in the case of
criminals not taken alive, were also abolished.
A later decree foreshadowed the abolition of
torture during trial ; and shortly afterwards
one of the stipendiary magistrates at Peking
was dismissed from his post by the Emperor for
disobeying the new law in a civil case brought
before him. However, even under the Republic,
22 307

308 LAW [chap. XVI

it is unquestionable that, although nominally
abolished, the practice occasionally survives.
In pursuance of the 1905 decree, the Board of
Punishments Throne at once set to work, and
the laws of England, France, Germany, and
Belgium were compared with the Chinese code
laws which prevailed 500 and 1,000 years ago.
The matter was still in a transition state Vv^hen
the Dowager and the Emperor died in 1908.

The fact that Chinese law is in need of prac-
tical reform in no way involves the admission
that China is devoid of a legal history and
equitable principles ; nor must it be forgotten,
Avhen v\^e criticise Cliinese severity, that until a
hundred years ago Englishmen guilty of treason
were cut down from the gallows whilst alive,
and had their entrails taken out and burnt
before their eyes : women were burnt alive for
tr'eason until 1790 ; and even until 1870 men
convicted of treason were supposed to be
quartered after execution. Until William the
Fourth's reign, highwaymen and other notorious
criminals were gibbeted in chains and handed
over to surgeons for dissection ; and the late
Sir James Fitzjames Stephen, in his Digest of
our Criminal Law, himself alludes to the atrocious
severity of our former larceny laws : hanging
for sheep-stealing, for instance, was common
enough in Dr. Johnson's time. I believe I am
correct in saying that up to the beginning of the
late Queen Victoria's reign there were 200
offences for which a man might be hanged. We
must therefore make reasonable allowances for
other nations ; and in any case it must be con-
ceded that a peaceful industrious civilisation,
containing within it such enormous powers of
passive resistance to foreign aggression as China
does, necessarily possesses many an occult virtue.

As a matter of fact China possesses a very

B.C. 2000-A.D. 1900] CHINESE THEORY OF LAW 309

extensive and perfectly consecutive legal his-
tory : throughout all the changes of dynasty
appeal has been made unswervingly to the same
ancient principles, and there has been almost no
borrowing at all from foreign sources. Tlie
foundations of existing legal principle are nearly
all to be found in the old classical literature, —
the same literature which suggested to Con-
fucius, and to the other Chinese philosophers
and legists, both before and after him, the various
types of political religion : in fact, ritual, law,
and religion are simply different expressions of
the single all-pervading principle of imtria
potestas or filial piety, which is the kernel or
root-motive of all Chinese ethics.

Even in our own time, the conception of the
word Law as meaning nothing more than a series
of sovereign commands is only gaining ground
very slowly, after having been laboriously worked
out by the great jurist Austin. This idea is
clearly brought out from the very beginning of
Chinese legal history, except that the automatic
sanction and the command of nature seem to
form at first one indivisible unit. Sir Henry
Maine, in his Ancient Law, has pointed out
that Austin fails to provide us with a motive
for command ; but the Chinese view that all
government must accord with the smooth work-
ings of nature supplies the missing motive.
" Punishment laws " rather than " laws and
their punishments " is the idea as conceived by
the Chinese mind, including the inseparable con-
nection between making war and enforcing the
law : under the head of the " greatest punish-
ments " com.e making war and putting to death ;
the " secondary punishments " included cas-
tration, cutting off the feet, slicing off the knee-
cap, and branding ; the " minor punishments "
flogging and the bastinado. The object of law

310 LAW [chap. XVI

was to keep the feudal states in order, to make
officials do their duty, and to restrain the people
from excess. Thus it will be seen that tlie
Chinese conception of law is pre-eminently
criminal law. The Emperor as sole lawgiver
was the Vicegerent of Heaven, and it is his
duty to govern directly and tlu'ough his agents
in accordance with the harmonious order of
nature : if he fails to do so, and persists, he is
liable to be overthrown.

Unjust judgments shock the smooth workings
of nature, and call down various disasters. So
far as man is concerned, his five natural rela-
tions are those of subject, father, husband,
brother and friend. But, so long as the Emperor
governed with reasonable integrity, he was
entitled to the absolute obedience of all his
lieges. The Emperor was to • the State on a
large Scale exactly what the paterfamilias is to
the family on a small scale, the function in either
case being that of maintaining order; as the
ancient Chinese said : — " The lash may not be
relaxed in the family, nor punishments in the
State, nor arms in the Empire." The laws are
like the stings used by insects for self-protec-
tion ; beginning with war and ending with rules
of propriety ; instruments for maintaining an
even level ; and so on. The government in no
way interferes with the management of the
family ; on the contrary, the Avhole resources
of the State are placed at tiie service of each
family-head, on condition of his being politically
responsible in return for the loyalty and order
of his family. The whole Chinese administrative
system is based on the doctrine of filial piety,
in its most extended signification of duty to
natural parents and also to political parents.
China has thus always been one vast republic
of innumerable private families, or petty imperiaf

A.D. 1905] CUSTOMARY LAW 311

within one public family, or general imperium ;
the organisation consists of a number of self-
producing and ever-multiplying independent
cells, each maintaining a complete administra-
tive existence apart from the central power.
Doubtless it is this fact that in a large mea-
sure accounts for China's elastic indestructi-
bility in the face of so many conquests and

The Chinese idea of law thus being castiga-
tory, it is not to be wondered at that, apart
from recent discussions and reforms, there is no
science of civil jurisprudence in the European
sense. Moreover the executive and the judicial
powers have always been wielded by the sam.e
hand, and the distinction between the two
was not even clearly perceived or provided v/ith
distinctive names until 1905. All matters of
what we should call Family Law were left entirely
to the family or clan ; the governm.ent in no way
concerned itself — at least so far as taking the
initiative goes — with births, marriages, deaths,
burials, adoption, legitimacy, divorce, mourn-

Online LibraryEdward Harper ParkerChina, her history, diplomacy, and commerce, from the earliest times to the present day → online text (page 25 of 35)