Edward Harper Parker.

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

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yoke, bastinado and flogging, ^ — these were sub-



B.C. 150-A.D. 150] THE QUALITY OF MERCY 325

stituted for mutilation, and really form the
nucleus of the modern system.

The above and similar imperial orders were,
it must be confessed, often rather symptoms of
growing change than definite registrations of
permanent radical improvements ; for, owing to
China's enormous size, and to the apathy of
local rulers, satraps, and magistrates, the imperial
decrees, unless repeated and persisted with, seem
often to have remained a dead letter, especially
where only the interests of the masses were con-
cerned, and where no povv^erful influence was at
work to insist on following up the order. The
first of Chinese true historians was him.self
cruelly deprived of his manhood by the grandson
just mentioned of this humane Emperor, and
this for the purely technical offence of remon-
strating with the monarch in favour of a defeated
general ; and he leaves on record a pathetic
letter to a friend bewailing in resigned terms his
miserable fate, and characterising himself as
" what's left from the knife and the saw." It
was this Emperor who encouraged informers and
delators, and developed the idea of forcing out
confessions under torture, a process which I
cannot find to have existed in more ancient times.
Still, notwithstanding the caprice or weakness
of this or that ruler, the progress in the direction
of reason and mercy was now fairly steady :
doubtful cases were reheard at the capital ; the
local authorities were urged to use prompt dis-
patch, and not to confine people too long upon
mere suspicion ; steps were taken to check the
bribery of officials and the corruption of clerks
and police ; a growing disinclination to extort
confessions under the lash or rack was mani-
fested ; fasting and solemn formalities were
enjoined when the time for carrying out death
sentences approached ; the number of bastinado



326 LAW [chap, xvi

strokes administered was more than once re-
duced along the whole line of offences ; in spite
of the evergrowing additions to the law cate-
gories, earnest endeavours were made to simplify
the law as much as possible : and generally, it
may be stated that during the 400 years of Han
dynasty rule (200 B.C. to a.d. 200) a steady
advance took place in the direction of mildness.
For many centuries after that the question
of reintroducing the mutilation punishments
came up for discussion ; dynasty after dynasty
"secured the stag" (as the Chinese poets say
when they refer to the contests for empire) ;
and each reigning house naturally had its own
special code, but always based on the samiC old
general principles, modified to suit the exigencies
of the times. There never were any surprises or
rival doctrines in China, such as our Gavelkind
in Kent, and Borough-English in other parts of
England, which flatly contradict the ordinary
laws of descent and inheritance.* Referring
back now for light, we may be disposed to ignore
the codes of the minor dynasties that only
reigned for a generation, in favour of those of
renowned houses which maintained the throne
for centuries ; but that would be a mistake :
each new dynasty of course assumed (and hoped)
that it would continue, so to speak, for ever.
Consequently we find that many of the most
far-reaching and even best improvements were
often introduced by short-lived reigning houses
that only endured a lifetime or two. The
general tendency of change ran in the direction
of sparing life, facilitating appeals in doubtful
cases, lightening the load of fetters, flogging on

^ Local rules of inheritance, etc., belong to private and patri-
archal family customs, which very rarely come before the
imperial jurisdiction. See the present writer's Comparative
Chinese Family Law, 1878 (out of print), originally published in
the China Review for 1878.



A.D. 200-500] OLD LINES OF LAW FOLLOWED 327

parts of the body less susceptible of vital injury,
and sparing the modesty of females. The
principle was laid down, moreover, that women
were only responsible for the crimes of the
family into which they married, and not of that
which they had quitted. In the middle of the
third century of our era there were thirty-seven
groups of punishment for ordinary offences
ranged under the following heads : death three,
shaving four, corporal without mutilation three,
hard labour three, ransomable eleven, fines six,
miscellaneous satisfaction seven ; and the chief
heads under which offences were arranged were,
as of old, robbery (not including terrorising or
trafficking in human beings), thefts, cheating,
defrauding, trespassing, falsifying royal acts of
state, etc. Treason was still punished by cutting
in two at the waist, but responsibility did not
extend to grandparents and grandchildren ; for
rebellion the whole three generations suffered ;
their bodies were pickled for exposure in the
market-place, and their dwellings rased to the
ground. In homicides the principle was recog-
nised that relatives might take vengeance, but
not after an imperial amnesty had been granted
to the murderer. In the whole history of China
I have not come across a single case of civil
jurisprudence in the strict sense, i.e. where any
abstract rights between individuals have been
threshed out with considerations touching rele-
vancy of evidence, damage to character, equit-
able set-off, nice definitions in contract, and so
on. All cases brought before the Crown are,
so to speak, brought up by special reference,
because the official judge, or the family, or the
commercial court below cannot settle them, and
applies for assistance.

For three centuries, 280-580, North China
was under Tartar rule, and the native dynasties



328 LAW [chap, xvi

for the first time had to cross the Great River
(or Yang-tsze Kiang, as we usually call it) and
fashion the best empire they could out of Chinese
colonists and southern races only half Chinese.
The march of law and order was about the same
in both halves of China : for if the literary
classes had carried part of their civilisation over
the river with them, the Tartars remained in
possession of the old civilised soil and docu-
ments ; and thus both empires based their
legal principles and humane improvements upon
the same old classics and unshakable ideals.
Strangling is now heard of for the first time
as a death penalty ; less grave than decapita-
tion, because the body remains undivided for
reappearance in the next world ; the ancient
punishment of tearing the body to pieces by
means of horses is formally revived by both
dynastic groups. No new legal principle of any
kind is introduced by the Tartars, but one or
two droll punishments certainly suggest foreign
origin ; for instance, wizards were condemned
to carry a ram on the back, embrace a dog, and
jump into a pond. In China proper, though the
laws against inciting the people with baseless
talk are severe, I have never discovered any law
against wizardry or religion. Both in the north
and south the " grievance drum " was intro-
duced, so that persons having a grievance could
call forcible attention of the Emperor and his
officers to an unredressed wrong. The native
procedure of the Tartar dynasties was of course
quite summary, the tribe chiefs disposing of
causes in a rough-and-ready way in front of
the Khan's or sub-Khan's tent ; as nomads
they possessed no fetters or prisons, and being
destitute of any native system of writing (un-
less they kept a Chinese scribe), they made
arrests and recorded judgments by means of



A.D. 800-500] LATER CODIFICATION 329

wooden tallies : most homicides could be ran-
somed with cattle and horses, as by our own
weregild ; but all treasons were punished with
pitiless extermination of the family. Yet just
as the rude Goths at exactly the same date
carved kingdoms and made excellent codes out
of the debris of Roman civilisation and law, so
did the Tartars rapidly acquire at least a veneer
of Chinese refinement ; and some of their
adapted Chinese codes are as much entitled
to respect, when compared with the codes
of the pure Chinese dynasties, as the Edict of
Theodoric the Eastern Goth or the Breviary of
Alaric the Western Goth, which did excellent
duty in North Italy, France, and Spain. Curi-
ously enough, a great Chinese statesman named
Ts'ui Hao, who acted as premier and historian to
the Tartars of the fifth century, was put to death
with his three generations for telling the plain
truth about the Tartar origin in his history.
It is now that we first begin to hear of the
characteristic Chinese punishment known to us
as the cangue, or wooden collar, a kind of yoke
or portable stocks. A good deal of the legisla-
tion consists in defining the weight and size of
this instrument, the thickness and smoothness
of the whip and bastinado, ameliorating the
lot of prisoners, arranging the rate of ransom in
copper and silk, and so on. Flogging on the
back was abolished because one Emperor had
chanced to see a picture of the human anatomy,
and had discovered that the bowels were peril-
ously near the spine. There is even one solitary
instance in which the Buddhist desire to save
life is coupled with an appeal to old classical
principles as a reason for extending the system
of ransoming crimes.

The second great turning period in Chinese
legal history was the seventh century of our



880 LAW [chap, xvi

era, when, after many centuries of interminable
civil strife and foreign war, China was once
more permanently reunited under a vigorous
native dynasty. Even before the sixth century
was out, China had been reconquered by a
native house of great intelligence and energy ;
but excessive ambition soon led to its premature
supersession. Judgments had now (seventh
century) to be written ; law students were for
the first time trained ; the punishment of
family members was abolished ; the triple recon-
sideration of death sentences was introduced ;
and, generally, some far-reaching reforms were
ordered, if not actually made. The principles
of Buddhism had by this time been thoroughly
examined; and moreover Christianity, the Per-
sian religions, the teaching of Mahomet, had
all been introduced into China : therefore there
was some opportunity to compare notes, and to
soften away the asperities of the old punitory
codes, though it must be confessed that none
of the foreign systems is officially honoured by
the least mention ; a little later the Manichean
disciplines seem to have attracted attention.
Amongst the distinguished officers who received
a commission to reform the laws on the basis
of the improvements introduced by the short
dynasty (580-620) just mentioned, but minus its
severities, was a strong supporter of Buddhism ;
and yet curiously enough he was one of those
who pleaded for the retention of mutilation as
a merciful respite from death. But the Emperor
was firm, and from this date the ancient Five
Punishments, as they have been above ^ described,
were theoretically re-established almost exactly
as they now are ; that is to say, death (decapi-
tation and strangling) ; three degrees of banish-
ment with or without flogging and hard labour to
remote provinces ; five degrees of penal servitude

1 p. 313.



A.D. 600-700] THE MESHES OF THE LAW 831

with or without flogging to places in one's native
province ; eight degrees of tlie greater bastinado,
and five of the lesser bastinado ; twenty punish-
ments in all — although even so late as 1078 the
question of re-introducing literal nose and foot
cutting was unsuccessfully mooted again. Per-
mission to commit suicide at home now appears
for the first time amongst the favoured official
classes. Offences were grouped under twelve
heads : statutory definitions, or qualifications of
the ancient statutes ; protection of the Emperor ;
questions of official duty ; marriages ; imperial
mews and stores ; independent political action ;
theft and robbery ; litigiousness ; cheating and
falsifying ; miscellaneous statutory offences ;
deserters and escaped prisoners ; trials. There
were, as in ancient times, eight grounds upon
which special privileges might be claimed after
sentence, but not in the case of the " ten odious
crimes," of which we now first hear. Nothing
could be more unsatisfactory or indefinite from
our juridical point of view than this clumsy
classification, which with slight variation seems
to have remained almost unchanged for 1,400
years : of course it can only be made even par-
tially intelligible to us by examining one by
one the specific crimes ranged under each head-
ing ; but even on the face of it as it stands, it
will be apparent, in spite of vagueness, that
political offences occupy the chief place in the
Chinese legislator's imagination; and perhaps
that may be the reason why the Chinese, as a
people, have always been obstinately inclined
to leave politics to those whose business it is to
run the machine of state, and have invariably
managed their own private affairs with the
minimum of application for state assistance : so
far as I am aware, there has never been asserted
a claim for popular rights beyond the mere



332 LAW [chap, xvi

right of being left with a bare competence
for wife and family. The people of China
have never " cornered," still less executed their
sovereigns.

It is to the seventh century that belongs
the definite establishment of another great
principle which has possessed great vitality,
and that is what we have called the triple ap-
plications for a death-warrant. The Emperor
having had reason to regret the fact that he
had hastily ordered the execution of certain
offending courtiers or statesmen, gave peremp-
tory instructions that in future his commands
were to be ignored until he had repeated them
three times at decent intervals extending over at
least two days ; so that, to use our English ex-
pression, his Majesty could sleep upon his wrath ;
moreover, warrants for execution were not to be
forwarded any longer by express messenger,
the idea being that the prisoner should enjoy
every possible surviving chance of a reprieve.
There are some grounds for supposing that in
very ancient times this triple appeal to con-
science existed in the form of a thrice-repeated
pardon, the last cry of which was by a legal
fiction supposed to be too late to overtake the
prisoner.

A few special instances of Crown Cases Re-
served may be mentioned as illustrating the con-
current effect of scriptural injunction and ever-
changing legal precept in evolving the principle
of a judgment, or what our lawyers call, in
imitation of the Roman jurisconsults, the ratio
decidendi. A youth deliberately murdered his
father's enemy, and was, on the face of it, liable
to 'execution. But, it was argued, the ancient
Book of Rites says that a son cannot live under
the same sky with his father's enemy ; whilst
Confucius' s annotated history asserts in general



A.D. 630] AVENGING ONE'S FATHER 333

terms the duty of a son to avenge his father's
wrong. The law nowhere actually lays down
that such homicide is specifically excusable ; if
it did, it would appear to encourage murder and
family feuds : still, the law is confessedly based
on the general principles of the classics ; hence
in this case there is apparent conflict between
general legal principle and specific law. It was
decided that each such case must be separately
reported and judged upon its merits. Another
case occurred of a youth kiUing a man whom he
saw in the act of attacking his father, and then
voluntarily giving himself up to justice. It was
argued from Confucius' s history that the motive
of an act should be taken into account in pro-
portioning a sentence ; here the youth gave
himself up, so that escape or concealment was
not in question : he therefore received a reduced
punishment. In one case the Emperor had not
the heart to execute a corrupt official at Canton,
who at an earlier stage in his career had done
him good service. The Emperor said : " I am
supposed to carry out impartially on behalf of
Heaven the rewards and punishments that may
be due. In this case I am afraid I am manipu-
lating the law to the discredit of Heaven. Put
up a matshed in the southern suburb for three
days so that I may do penance at the Altar of
Heaven there." (This singular compromise with
Heaven recalls the expression colpo di stato di
Domeniddio used apologetically by His Holiness
Pope Pius IX to excuse his appointm.ent to
Westminster of Archbishop Manning.) The same
romantic Emperor once in a fit of generosity
sent to their homes 390 prisoners whose names
were down for execution, ordering them to come
up for judgment after the autumn. Not a man
failed, and so all vv^ere pardoned.

In another instance the T'ang Emperor de-



384 LAW [chap, xvi

clined to sanction the death of an elder brother
serving at a distance when the younger brother
was found guilty of rebellion : eleven hundred
years later a Manchu Emperor took exactly the
same step. Another Manchu Emperor had a
father's enemy case on appeal brought before
him, and reversed the decision of the T'ang
dynasty. But in the later case the circumstances
differed ; a son killed the son of the convicted
murderer of his own father ; the murderer being
in the hands of the law, the son had no vengeance
to satisfy, for the murderer was legally dead :
moreover, by killing the murderer's son, two
lives were taken from one family in satisfaction
of one life in the other. Hence the murdering
son was sentenced to decapitation, subject to
the chance of a general amnesty taking place
before his name should be finally ticked off for
execution. In the case of an escaped murderer,
who delivered himself up on hearing that his
father had been arrested, a conflict of opinions
arose : it was argued that at no period of Chinese
law had murderers been let off death ; however,
the Manchu Emperor considered the man's
behaviour " closely approaching nobleness," and
respited the decapitation for banishment and
a flogging. But to go back. After the wars
and revolution which accompanied the fall of
the great T'ang dynasty there was only one copy
of the laws to be found ; but this was enough,
and it formed the basis from which the next
group of short-lived dynasties fashioned their
codes. To this period belongs the abolition of
confiscation of property and of the responsibility
of relatives in all cases but treason ; the cleansing
of prisons, medical treatment of prisoners, de-
cent conduct towards mere witnesses, and regular
tabulation of the rates of ransom : but the
anarchy was too great for these important



A.D. 970-1650] THE MANCHU LAWS 335

reforms to be properly consolidated ; however
that may be, in any case they were symptoms
of healthy progress.

A law of the year 977 (native Chinese Sung
dynasty) made the murder by a stepmother of
her husband's earlier son punishable as an
ordinary homicide. In 1729 the Manchu Em-
peror made the offence punishable as before by
strangulation if the murder deprived the hus-
band of heirs. If the husband was dead, the
stepmother must not have the privilege of ransom
accorded to women, but her own favourite son,
if any, must be strangled. If no son, then she
must quit the family and go back to her own
family, her husband's property being given to
the murdered son's brothers and sons in equal
shares. It is about 900 years ago that the linger-
ing death punishm-cnt (abolished in 1905) first
appears both in South China and amongst the
Kitan Tartars ruling North China : it seems to
have been reserved for the Mongols (1260-1368)
in North China to introduce it on a regular
scale.

Instead of plodding on from this point with
the somewhat monotonous history of Chinese
legal changes, it may be more interesting to start
back from the position of to-day, and to work
our way in a reverse direction to the point where
we have broken off. The present Manchu
dynasty reigned without a break for over 267
years, and the very first thing the new Emperor
did on his accession in 1644 was to ordain that
the laws of the native Chinese Ming dynasty —
which had governed China for nearly 300 years
(1368-1643)- — should be modified so as to include
Manchu customs, and should be reissued as the
Laws of the Manchu Dynasty. In dealing with
the question of general amnesties on joyful
occasions, the responsible statesmen of the day



336 LAW [chap, xvi

gave signal proof of the continuity of legal
history by quoting the dictum of a codifier
1,050 years before them : he had asserted that
" the states which find pardons unnecessary are
the states vfhich have just laws " : he also cited
a second codifier of 600 years back, who had
quoted the classical saying that " appeal to
principle Vv^as sufficient for the good, even though
chastisement might be the sole effective appeal
to the bad man." The Emperor, in justifying
what may be styled "benefit of clergy," or
special trials in favour of officials, and the exemp-
tion of Manchus from certain punitory degrada-
tions, referred back to the eight privileges intro-
duced about 1200 B.C., i.e. the privileges of
blood, friendship, virtue, abilitj^, service, rank,
zeal, and hospitality (the last referring to am-
bassadors). In another instance reference was
made to the plea used by the girl who tramped
after her father to the court of the Chinese Marcus
Aurelius, namely, that " a man once judicially
slain can never come to life again, however inno-
cent he may be."

The second Emperor, the famous K'ang-hi,
likewise made many appeals to classical prin-
ciples, and, like his successor, laid down very
definite rules exempting women from the neces-
sity of appearing before the courts : all female
witnesses and persons concerned in a case
(provided they were not themselves accused)
were to be examined on commission in their
own houses. The treason laws of the expelled
dynasty, it must be confessed, are as ferocious
as they have ever been in China at the worst
of times : all the odious punishments abolished
by the decree of April 1905 were in full swing
when the Manchus took over their predecessors'
code, and have remained so ; that is to say,
slicing to pieces, and decapitating the dead ;



A.D. 1000-1800] THE MANCHU LAWS 337

besides responsibility of relatives to the third
generation both ways, slavery of the women and
young boys, and so on. The fourth Emperor in
1740 issued a new edition of the Manchu Code,
alluding in his preface to the supposed pictorial
punishments of extreme antiquity, and to the
first real code of 960 B.C., mentioned above as
translated by Dr. Legge. In addition to justify-
ing several of his specific decisions in Crown
Cases Reserved by referring back to the classics,
the Emperor cites two cases a thousand years
old, specially named in the Chinese legal records,
in order to amend two decisions connected Vv^ith
the justifiable murder of a father's enemy by
that father's son. These two cases have already
been alluded to under the T'ang dynasty (p. 333).
The same principle is repeatedly laid down by
the Manchu Emperor that was asserted by one
of the Roman Emperors, namely, that " though
above the law, they considered themselves bound
to live within the law."

The punishing of mandarins ex i^ost jacto for
not having foreseen, or for not having punished,
a crime is also an extension of the responsibility
theory which seem^s to have grown up under the
Manchu dynasty.

Legal activity at headquarters in China seem^s
to have fallen off with the advent of Europeans :
of course ordinary routine business was sub-
mitted to the Throne and disposed of in the
usual way ; and of course special legislation —
as for instance in the matter of opium — has been
sometimes found necessary. Curiously enough,
the falling off in Manchu jurisprudence coincides
in date with the translation of the Manchu Code
by Sir George Staunton, v/ho was with the Lord
Macartney mission of 1793. At present our
knowledge of Chinese law, as presented to us
in its most recent or Manchu form, must be in a



538 LAW [chap, xvi

large measure gathered from that work, which
is now quite out of print ; but it must be men-
tioned that Staunton only translated the original
kernel or ancient " statute " part of the law,
much of which is obsolete ; he left entirely un-
translated what may be termed the judge-made
or case-law, which really forms the most impor-
tant part of the work. The close corporation of
law secretaries, who have had quite a monopoly



Online LibraryEdward Harper ParkerChina, her history, diplomacy, and commerce, from the earliest times to the present day → online text (page 27 of 35)