Edward Harper Parker.

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

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ing, testamentary dispositions, division and
transfer of property, joint ownership, mortgages,
sanitation, medicine, midwifery, sobriety, or
morals. These were, and to a large extent still
are, all questions for the family council, and it
is only on the comparatively rare occasions when
the council actively and spontaneously seeks
the assistance of a court that the officials take
cognisance : even a murder might be quietly
ignored if the clan concerned decides not to
complain. In the same way, commercial juris-
prudence lay within the private ken of the
different trading guilds ; banking questions were
decided by the marvellously close and effective
organisation of private bankers ; junkmen,
fishermen, paAvnbrokers, post-offices, squatters,



812 LAW [chap. XVI

money-lenders, doctors — in short, all industries
— managed their own affairs and paid the fees
with the minimum of government interference,
if any ; and even then the official action was
taken in the interests of public order rather
than to assert a legal principle : and although
a few laws concerning marriages, inheritance,
land transfer, usury, brokerage, etc., were laid
down in the codes, these rather expressed what
was the universal custom than imposed any
fresh " command." Many of these matters, how-
ever, were already in the latest Manchu times
being gradually brought under the cognisance of
newly constituted Boards — Agriculture, Trade,
Communications, etc., or Bureaus' — Customs,
Fisheries, Post Office, and so on ; meanwhile the
Republic has not yet found its feet sufficiently
to enable us to declare finality on any given
point. There is, strictly speaking, under the
unreformed regime, no contract law at all except
as touches the supreme contract of marriage.
Thus, take the rate of interest that pawnbrokers
might charge, and their licences ; or the permits
to sail in and out of port : in the one case the
needy classes are protected from extortion ; in
the other travellers are protected from pirates.
Should it happen that any family or any industry
saw fit to claim the sanction of a court of justice,
it did not at all follow that such court would
announce, still less create, a law for itself : on
the contrary, it would do exactly what our
courts do, and what they did to a greater extent
before statute law largely replaced common
law^ — it would declare the law, or adopt the cus-
tomary law, local or general, as ascertained on
evidence. This is only another way of saying
that in most matters China was and still largely
is governed by the customs of ancestors, or
common law ; that the common law was adminis-



B.C. 2000-200] THE PHILOSOPHY OF LAW 313

tered by the people themselves ; and that the
State (unless when specially invited) only stepped
in to prevent a breach of the peace.

According to cherished tradition — which,
however, the best-informed Chinese do not
take too seriously — the most ancient monarchs
maintained order by inculcating the principles
of propriety, only introducing punishments
occasionally ; even then it was usually found
sufficient to " imagine " the punishment, and
to attire prisoners in a singular garb supposed
to correspond with this or that penalty : thus
those by way of being branded wore black
hats ; those to be deprived of their noses, red
trousers; those condemned to sliced knee-caps,
black coats; those to be castrated, coloured shoes ;
those to be decapitated, petticoats and no collar ;
and so on. From the very earliest times banish-
ment was resorted to. Under extenuating cir-
cumstances the principle of ransomiing punish-
ment for a money payment was admitted ; and
up to our own day the same thing was allowed,
at least in theory, though in practice it had a
good deal fallen off. But even so far back as
230 B.C. the Chinese philosopher Siin-tsz, who
took a pessimistic view of human nature, ex-
posed in his chapter on Law the fallacy of this
view of ancient leniency : he said :■ —

" It is evident crime went on then as now, else
there would have been no prisoners liable to these
severe nominal punishments. The principle is
a false one, moreover. If you are going to
abolish death for murder, and mutilation for
injuries done, how are you going to make the
people dread ? The great thing is to prevent
crime ; to condone it is to nourish wrong-doing.
All this nonsense about pictorial or imaginary
punishments is but a latter-day protest against



314 LAW [chap. XVI

the cruel and capricious excesses of modern
times. Rewards for good, punishments for evil
— the principle is the same ; uncertainty and
inconsistency are the only bane. Consequently
a good government is always a strict one, and a
bad government is always a lax one. The real
meaning of the much-quoted ancient tradition
about pictorial chastisements is that punish-
ments were always figured or pictured after the
tao or method of Heaven."

Here we have a Chinese philosopher, whose
works are still extant, laying down 2,200 years
ago what is practically Jeremy Bentham's
doctrine of pleasures and pains. He also alludes
to the principles of justice recommended by the
great democratic apostle liao-tsz who lived
three centviries before him, and in such a way as
to suggest that he must have been familiar with
Lao-tsz' writings, or even with those of Kwan-tsz,
from whom Lao-tsz seems to have copied, con-
sciously or unconsciously.

Although competent critics are agreed that
precise dates in Chinese history cannot be ascer-
tained further back than 841 B.C., there is no
reason to doubt the main facts first handed down
by oral tradition, and later recorded in their
chronicles ; especially when these same facts are
persistently cited in various connections, in
works of different classes, and by each suc-
cessive dynasty. Thus about 950 B.C., 150
years after the establishment of a new dynasty,
but when times had become degenerate once
more, the King or Emperor decided that law
reform was necessary in order to maintain
proper order amongst "the hundred families"
• — as the Chinese people are still in 1917 col-
lectively termed. Dr. Legge gives a full trans-
lation of this ancient code in the fifth section



B.C. 550-500] EARLY CHINESE CODES 315

of his Chinese Classics. As to the second
historical code, during the lifetime of the rival
philosophers Lao-tsz and Confucius, that is
towards the end of the sixth century before
Christ, at a time when imperial and vassal
China was about to break up into a collection
of warring independent states, the prime min-
ister of one of these vassal states, who was
a near relative of the reigning duke, and also
an acquaintance of Confucius, for the first
time in history had the laws cast in metal for
the information of the people. The premier
of a neighbouring state disapproved of this
action as a dangerous innovation calculated to
make the ignorant people look to the fixed letter
of the law instead of abiding by the ancient prin-
ciples of propriety, as declared on the merits of
each case after each case had occurred ; in
other words, instead of accepting the themisy
dike, or inspired judgment of the magistrate.
Even the radical philosopher Lao-tsz had always
preached the doctrine of keeping the machinery
or " implements " of State concealed from the
vulgar eye ; and in this particular instance
he was supported by Confucius, who argued
that the standard of right and wrong would
henceforth infallibly be transferred from the
ruler's conscience to the written law. He was
full of admiration for the innovator on other
grounds, but not on this one ; and he outlived
him seventeen years. This event of defining
the law publicly was considered so important
that dates were at that time occasionally calcu-
lated from the " year of the casting of the laws " ;
just as the Romans used to count juridically
from the " year of the Twelve Tables," which
were cast or engraved upon metal about eighty
years later than their Chinese prototype. These
laconic Western laws, the written foundation of



316 LAW [chap. XVI

Roman jurisprudence, just as the Chinese tripod
laws may be termed the remote basis of existing
Eastern codes, exemphfy very plainly the two
different casts of mind in East and West. The
Roman laws dealt with proceedings in a civil
suit ; action by wager ; slavery for debt ; the
absolute power of fathers over children and
slaves; inheritances, testaments, women's posi-
tion, and tutorships ; ownership, prescription,
and transfer ; easements ; crimes against person
and property, the lex talionis, lampoons, the rate
of interest, and false witness; appeal from the
judge to the people ; cost of funerals ; caste
marriages ; pledges for sacrificial debts, and
so on. Nearly all these matters were either
abandoned to the jurisdiction of the family, or
were ignored by the earliest Chinese legislators,
though several of them find a place in later
codes. So far as we can judge by more modern
categories of the quality of ancient Chinese
offences, they seem to have been in the great
majority of cases treason, robbery, theft, arson ;
or official pilfering and bribery ; and the only
questions for the judge were whether to execute,
mutilate, or flog ; for the ruler how to secure
justice, see that the punishment fit the crime,
and stave off Nature's wrath by making it the
interest of his judges to be just. In those days
there was a popular saying that " coffin-makers
always like a plague," meaning that "the police-
man likes a good case " ; and in the same way
it was argued that if the central government,
in its anxiety for tranquillity, encouraged those
local authorities who exhibited the greatest zeal in
securing convictions, the inevitable result would
be to discourage the upright men who worked
honestly for the people's interest. As with our
own law, no child under seven years of age could
be held guilty of, or be punished for, a felony :



B.C. 400-300] WHP:N lawyers disagreed 317

this merciful provision was extended by the
ancient Chinese legislators to old persons of
eighty and upwards.

There were two other prime ministers of the
fourth century before Christ who made fpr them-
selves lasting reputations as legislators. One,
Li-k'wei, instituted a new land system, very
like that proposed for China by Sir Robert Hart
a dozen years ago, under which every available
acre was worked out for adequate but fair
taxation. He also collected into six books or
main heads all that was best in the laws of the
different feudal states, and composed therefrom
a work styled the " Legal Classic," which
may be compared (very humbly) with the
Roman Institutes of Gains. Most of these
Chinese laws were connected with robbery; the
lighter offences being roguery, getting over
city walls, gambling, borrowing, dishonesty,
lewdness and extravagance, transgressing the
king's commands, etc. This work was car-
ried to the powerful kingdom which 150 years
later conquered the whole of China by a young
man (Wei Yang) who reorganised, developed, and
became premier in that kingdom, where it was
adopted as a kind of code, but with considerable
additions in the direction of cruelty. It is
really this code which, in a modified form, is at
the root of all later Chinese law of the positive
kind. In spite of his great services to this rising
state, the chancellor in question made enemies
by his unrelenting thoroughness, and was in the
end put to death on the accession of a new king
he had offended whilst yet a mere prince or
heir-apparent. The other man, Shen Puh-hai, is
often called the " Chinese Draco," on account of
the extreme severity of his laws ; in addition
to which he was a philosopher of the Taoist
school : and, indeed, at this time there can be



318 LAW [chap. XVI

no doubt that such precise philosophical notions
as the Chinese were beginning to have upon the
political branch of law were drawn from the
stern and radical Lao-tsz rather than from the
courtly ^nd conservative Confucius : but that
does not mean very much, for it was then the
complaint of both these philosophers that men
went on fighting for power and personal in-
terest, totally oblivious of the prophets who
were crying out in the wilderness for man's
salvation through propriety and right. Yet
another Taoist philosopher and severe lawyer
(who has left some of his works behind him),
Han Fei-tsz, sought office under the same
powerful revolutionary state one century later
than the above two events : this v/as just when
the conquest of China was beginning ; but the
jealousy of the then chancellor (Li Sz) of that
rising kingdom, who poisoned his guest and
rival, prevented the lawyer in question from
having any permanent practical influence upon
China's destinies. It is curious to notice, how-
ever, that most prime ministers of minor king-
doms were introduced from other states ; and
this fact may possibly have something to do
with the evolution of a comparatively modern
rule (cf. p. 261) that no civilian can serve in his
own province.

All that has preceded refers to the period
anterior to the great revolution of the third
century before Christ, to the destruction of
literature in 213 B.C., and to the founding of cen-
tralised absolutism much as it existed until 1911.
In those good old days, though the punishments
were cruel, there were none of the more modern
lingering tortures ; nor were relatives of a
criminal punished with him, though it appears
that in very ancient times at least a threat of this
kind had been m.ade. Doubtful cases were tried



B.C. 550] MAXIMS ON THE LAW'S MERCY 319

in public, and the benefit of doubt was conceded.
Moreover, even mutilations were coupled with, or
excused by, a kind of compassionate utility : thus
{cf. p. 313) the branded were made gate-keepers ;
those deprived of a nose sent to serve as frontier
pickets ; those without feet, and therefore un-
able to chase, looked after valuable wild game
as park-keepers ; those v/hose virility was cut
off tended the female apartments ; whilst the
unmutilated convicts performed gang-work. It
was one of Sir James F. Stephen's favourite say-
ings that, as material civilisation advanced and
we became " more comfortable," men grew less
and less inclined to make their fellow-creatures,
and even their animals, more miserable than
was absolutely necessary.

But there are abundant maxims and sayings,
notwithstanding, that prove the existence of
merciful feeling in the ancient rulers. One,
quoted century by century to this day, was :
" Rather let a rogue escape than risk killing an
innocent man." Whilst moderate justice was
considered appropriate for a normal political
condition, it was held on the other hand a wise
precaution to be exceptionally severe when the
State showed signs of anarchy. Perhaps the
oldest maxim of all is : " In punishment be
intelligently compassionate." In hopelessly de-
generate times the radical philosopher Lao-tsz
was in favour of the fewest and simplest laws ;
but he insisted on prompt, secret, and effective
application of punishment by properly qualified
officials. Confucius (a little later) has left
several striking remarks on record. He says :
"As to convicts, I go with the rest ; we must
necessarily condemn, if only in order to avoid
condemning still more of them later on." Again,
" The ancients understood better than our-
selves the art of preventing crime ; now the best



320 LAW [chap, xvi

we can do is to avoid punishing crime unjustly.
The ancient magistrates always lioped to save
a prisoner's life : now we seek to prove it
forfeit. Better let a real criminal go free, how-
ever, than slay an innocent man." Once more :
" I allow one generation to a new dynasty for
the gradual introduction of benevolent rule,
and I allow a hundred years to abolish killing
and mutilation altogether." " A benevolent
ruler must have courage too ; his rectitude
manifests itself in preventing crime." " Unjust
punishment damages the administration, and a
bad administration touches each man's person."
" Government must strictly execute its own
terms." Kwan-tsz, however, had said nearly
all this two centuries earlier. Two centuries
later than Confucius, Mencius has a few re-
marks to make : he allows considerable lati-
tude, and even indulgence, to a ruler so long
as that ruler keeps in sympathetic touch with
the people ; but he says : " No truly benevolent
ruler will slay an innocent man, even to make
secure his own rule."

The great Chinese conquest revolution of
2,150 years ago introduced several new crimes
as well as many m^onstrous punishments. The
chief intellectual agent in it was the chancellor,
mentioned above, who poisoned his visitor. It
was, at his recommendation, made an offence
punishable with death to conceal books, or to
own any except the few agricultural and scien-
tific works which were not on the '' Index
Prohibitory " ; fearful tortures were introduced,
and three generations of relatives were involved
in one man's political crime. The name for
*' Emperor" (originally written "self-ruler," but
later "white ruler"), up to 1911 still in use, was
then first introduced, and a homogeneous system
of administration in all important matters was



B.C. 200] VOX POPULI LEX SUPREMA 321

effectively established all over China. But
though this powerful innovator was an able man,
his methods were altogether too tyrannical, and
after his death in 210 B.C., and then after eight
more years of very chivalrous and picturesque
fighting, a new and permanent dynasty was
founded on practically the same lines : ever
since that things have remained very much in
statu quo, even down to our own days.

In accordance with one of the ancient politico-
legal maxims just mentioned, the new dispen-
sation began by abolishing the whole network of
harassing law, and by enacting three simple
rules for the orderly government of the Empire ;
to wit, deatli for homicide ; compensation and
imprisonment for wounds and robbery; all else
being left to the people themselves. This
was called the " Tripartite Bargain with the
Elders of the People," and the "all else left
to the people" still holds good, whether inten-
tionally or no, in great measure to this day.
The frank and tactful geniality of the new
ruler's personality has probably more to do
with the credit his memory still enjoys than the
intrinsic wisdom of his summary legal methods ;
but, however that may be, his " three short
rules " have established a reputation in China
little short of that achieved by King John's
Magna Charta amongst ourselves. But the
Chinese are and always have been very grateful
to their rulers for small mercies, and they have
always been found ready to idealise any gracious
sovereign acts. The Emperor, under the guid-
ance of an astute chancellor, rightly refrained
from introducing new measures, and was prob-
ably only giving fuller effect to ancient laws
and customs v/hen he granted this short charter ;
and this was apparently all that King John
did, except that, unlike the Chinese ruler, the



322 LAW [chap, xvi

English king had only the grace to do it under
compulsion. The vicarious punishment of rela-
tives was abolished, but official superiors and
witnesses were obliged to denounce offenders.
However, the much-vaunted three simple rules
were soon found insufficient for practical use
when things quieted down ; when the sword
gave way to the ploughshare ; and when the new
dynasty felt secure in its power. The next
chancellor, who (as also his successor in office)
professed the " masterly inactivity " principles
preached 300 years before that by the philosopher
Lao-tsz, found it necessary to reintroduce vi-
carious punishment for treason, and to select as
many of the general laws of the revolutionary
and conquering dynasty but recently ousted as
were suited to the people's old traditions, and
also to their changed position ; he proceeded
to construct therefrom a code in nine heads
(being in effect the six heads of the " Legal
Classic" plus three new ones), which code, sub-
ject of course to extensive alterations, has from
dynasty to dynasty always served as the basis
of Chinese law ; just as the Corpus Juris of the
Christian Emperor Justinian forms in a way the
practical basis of European law as a whole,
affecting indirectly even the English and Scotch
statutory laws, and in some instances the
decisions under our common law. We have
already seen that revolutionary China had
borrowed its Institutes of Law from an active
legal author in one of the feudal states ; and thus
we have an unbroken historical chain extending
back from our own time for about 3,000 years,
with no admixture whatever of foreign notions,
or, at all events, of foreign law. The preceding
dynasty's revolutionary law against concealing
books was abolished by the new dynasty
founder's son, and literature was soon restored



B.C. 200-130] A CHINESE ANTONINUS 823

to its former influence, after a quarter of a
century of extinction. jU

Now we come to a very prominent turning-
point in Chinese legal history. The founder, his
usurping empress-widow, and his strictly legiti-
mate son by her had all passed away; the
obnoxious law against concealing books had, as
we have said, been repealed, and another son, born
in less honourable wedlock, sat on the imperial
throne. On account of his calm, philosophic,
and humane temperament, Han Wen Ti is
occasionally styled by Europeans the Marcus
Aurelius of China. His first act was to issue
the following edict : " Enforcements of the law
are executive acts, the object of which is to
prevent violence and assist the well-disposed :
to visit the sins of convicted criminals on inno-
cent parents, spouses, brothers, sisters and
children seems to me most unreasonable. I wish
for a report." His counsellors, after due de-
liberation, advised that it had hitherto been
found good policy to make people feel uncom-
fortable in anticipation by visiting upon them
the sins of their kinsmen after crimes committed,
and that it would be better not to make any
change. A second decree ran : " When the
law is meet, the people are honest ; when punish-
ment is appropriate, the people accept it without
murmur. Moreover, officials are supposed to
act as guides : if, instead of guiding the people,
they punish them irregularly, they become
tyrants. I wish for a further report." On this
the counsellors gave way : " Your Majesty's
merciful will covers far more ground than we
can presume to understand the necessity for."
To illustrate the continuity of Chinese history,
it may be mentioned that this edict of over
2,100 years ago is still on record ; is quite intel-
ligible to modern ears ; and still forms part of
23



324 LAW [chap, xvi

the stock legal diction, just as does the celebrated
declaration of the English barons upon the sub-
ject of legitimacy : " We will not change the laws
of England which have hitherto been accepted
and approved by our ancestors" {cf. p. 288).

But, if we inquire closer into Chinese history,
we find that this picturesque event is only
another case of idealising ; not to mention his
grandson and most illustrious successor, whose
financial straits and palace intrigues led him to
enact many hasty and cruel laws, that very
"Marcus Aurelius" himself was, during a sub-
sequent rebellion, unfortunately induced to de-
part' from his own noble principles. There was,
however, one other cause celebre during the reign
of this hum.ane Emperor : it happened after he
had been on the throne for nearly twenty-five
years, and the anecdote is as well known in
China as the story of Brutus and his condemned
sons Titus and Tiberius is known in Europe.
A Chinese physician and local official was sum-
moned to court for peculation, a crime which
rendered him liable, under the new code as
under the older ones, to the penalty of mutila-
tion : having five daughters, but no son, he
bewailed the luckless fate which deprived him
of a representative capable of sacrificing him-
self upon the altar of filial duty in accordance
with the maxim " A father's debt the son
repays." The youngest daughter, stung by
these reproaches, and knowing that her father
was the victim of private spite, insisted on
accompanying her parent to the imperial courts
where she pleaded his case before the Emperor
with such eloquence and effect that his Majesty
at once decided to abolish as barbarous the
punishment of mutilation. Hard labour at the
Great Wall, shaving the head, wearing the heavy



Online LibraryEdward Harper ParkerChina, her history, diplomacy, and commerce, from the earliest times to the present day → online text (page 26 of 35)