Edward Harper Parker.

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

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of the law clerkships in all Chinese courts, were
up to 1911 the real persons who manipulated the
latest decrees, fashioned the judgments, and held
a balance between the Emperor and his judicial
officers. By them the judge-made law was really
created and applied. It is another instance of
a trade worked with the utmost secrecy. Even
so far back as 800 years ago, it was complained
that " all law now depended on the clerks'


The legal records of the purely native dynasty
of Ming, which occupied the throne during the
reigns of our Houses of Lancaster, York, Tudor,
and Stuart, distinctly state that all jurisprudence
to their date is based upon the Nine Chapters
of 200 B.C. (Han dynasty), as subsequently
expanded and codified in a.d. 630 (T'ang
dynasty). In 1373 this Ming dynasty published
its code, which is confessedly based on that of
630, and has exactly the same twelve divisions.^
The Mongol dynasty, which practically began,
so far as China was concerned, with Kublai
Khan in 1260, is much better spoken of by the
historians than one would expect, considering
that it was a completely foreign government
ruling China by pure force. Kublai is spoken
of as quite a benevolent prince from a juridical
point of view, and even his less capable successors
are charged rather with a certain slipshod care-
lessness than with wanton injustice. Special

1 p. 331.

A.D. 900-1200] UNDER THE TARTARS 839

features of this dynasty were the abolition of
strangulation, and the creation of legislative
privileges in favour of Buddhists, and at times
of other priests. Christian included. The Chinese
both in the north and south seem to have had
nearly all the benefits of old Chinese law ; but
the Mongols, mostly of course military men or
officials, were under a special dispensation. For
three centuries previous to the Mongol conquest,
China was under two concurrent governments,
that of first the Kitan and then the Niichen
Tartars in the north, and that of the pure Chinese
dynasty in the south : the space at our disposal
will not permit of our saying more than this :
the whole legal history is on record ; progress
can be traced step by step ; and no considerable
departure was at any time made from the
accepted principles handed down from ancient

On the whole it may be said, continuing our
way backwards, that the southern dynasty was
as shifty and as merciful in laws as it was literary
and unusually weak in arms. But officials were
now obliged to study the law, and scholars
began for the first time to hold judicial posts.
For fifty years previous to this north and south
rule, China had been split up into innumerable
contending local dynasties, and it need hardly
be repeated that during this welter of anarchy no
startling advance was made : yet each dynasty
' — at least each of the five successive central
ones, which are the only ones usually recog-
nised by standard historians — naturally took
for granted the possibility that it might endure
for ever ; and thus the very first step taken by
each founder was to issue a code of his own,
based, of course, upon the old codes already
described {cf. p. 326).

Previous to that the great T'ang dynasty, to

340 LAW [chap. XVI

whiph we now return, ruled the whole of China
with great glory for 300 years, these 300 years
roughly covering the period of our Saxon kings :
the legal history is very minute, and the special
decisions are both amusing and interesting : as
already stated, some of them are cited at this
day, just as mediaeval authorities may be quoted
in England. So great was the reputation of the
T'ang dynasty, that in the south of China the
Cantonese even now invariably describe them-
selves in colloquial speech as " men of T'ang."
On the other hand (c/. p. 30), the general name for
Chinese in the north is " men of Han," " language
or writing of Han," and so on, having reference to
the glorious period described in the earlier part
of this chapter, that is from 200 B.C. to a.d. 200,
when three successive branches of the Han
family sat upon the Chinese throne. During the
300 years between a.d. 280 and 580 China was
ruled by Tartars in the north and native houses
in the south : there is plenty to say^ about legal
development in both, but this is not the place
for saying it.

To sum up, the two great law dynasties of
China are the Han (200 B.C. to a.d. 200) and the
T'ang (600 to 900), and they alone of all purely
Chinese dynasties {i.e. not counting the Mongols
and the Manchus) succeeded in extending
Chinese influence to Persia and India : hence to
this day the pure Chinese are proud to call them-
selves " men of Han," and " men of T'ang."

After the collapse of China that followed upon
the Japanese and "Boxer" wars, the question
of legal reform was seriously taken up, one of
the chief motives being to imitate Japanese
success and get rid of extraterritorial jurisdic-
tions. The numerous memorials presented to
the Emperor by the most distinguished Manchu
and Chinese statesmen and viceroys, central

A.D. 1905-16] MR. ' NG CHOY ' OF HONGKONG 341

or in the provinces, are all recorded in full, and
amply prove the literary, logical, and even
legal capacity of the writers, if only their col-
leagues intrusted with the carrying out of excel-
lent laws could honestly and fairly administer
the laws so well understood and approved.

The first point vv^as to expose clearly the differ-
ence between executive and legislative functions,
and to lay' stress upon the unwisdom of continu-
ing these two separate functions in the hands of
one and the sam.e man or group of men. The
second reform of supreme importance was to
secure the independence of judges and to estab-
lish proper courts of first and second instance,
appeal, and so on, both in the capital and in the
provinces. The precise legislative and executive
rights of Parliament on the one hand and the
Boards and Supreme Law Courts on the other,
were shrewdly discussed. This useful work
began in 1905, and was proceeding apace when
the Empress-Dowager and the Emperor died in
1908. Meanwhile Wu T'ing-fang, the present
(end of 1916) Secretary of State for Foreign
Affairs, was commissioned to draw up a code.
With him was associated one Shen Kia-pen, a
native of the region that for centuries has had
a monopoly of law-clerk business, and very
learned in native law. 'Mr. Wu" himself is a
British barrister, well known for his eminence
as Minister to the United States. After some
elaboration the Code was drawn up largely after
Japanese model, and from a European point of
view a very fair code it was, apart from the fact
that it got rid of many anachronisms. But it
met with serious viceregal opposition on account
of the novelty, not to say coarseness of its style,
its use of ill-understood semi-foreign definitions,
and its failure to recognise the ethical principle of
Chinese Law, based on hiao, or the natural family

342 LAW [chap, xvi

rights, duties, and responsibilities as defined in
the Confucian classics.

Things are in such a state of flux under the
Republic that it is hardly safe to say what law
is actually followed by Chinese judges ; what is
the juridical capacity of those judges ; and what
is the ratio decidendi. So far as I can judge,
whatever the law and the judge may theoreti-
cally be, justice to the average claimant is as
far off as in past times, and the Chinese courts
are as unfitted to replace the extraterritorial
consular courts as ever they were.



As to the most ancient Chinese writings, within
the past few years a mass of entirely new
evidence has been discovered in the shape of
numerous bone inscriptions, unearthed chiefly
in the true " Central Kingdom " of Old China.
The meaning of these bone inscriptions is plain
in some instances ; in others it is as uncertain
as their date ; but, whether connected with
divination, dynastic successions, or fansily
records, it seems clear that they exhibit little
or nothing in the direction of sustained thought
or connected history. A large number of the
rude characters can be easily identified with the
modern forms as evolved through the improve-
ments of centuries. Tliose which have not been
identified manifestly run " on the same lines "
as modern characters ; but in the absence of
inscriptions on old bronzes wherewith to compare
them, we must fain leave such unsolved for the
present. However that may be, this most
ancient period of about a hundred pictographic
signs, gradually reinforced by perhaps four hun-
dred more ideographic characters, endured with-
out much local variation down to the year
827 B.C. or thereabout ; and really we do not
seem to possess a single trustworthy specimen
of even the most primitive Chinese script older
than, say, another 827 years before that. That



the 827 B.C. script reform was the "articulate"
expression of genuine pubhc opinion budding
for the first time seems evident from the fact
that the interregnum period (841-828) was
characterised as Kung-ho, or "together har-
monising," a term freely used within the past
five years to denote the " Republic." During the
restoration reign of 827 to 782 B.C., a court
annalist introduced a new phonetic system of
writing, a great improvement upon the sprawling
old hieroglyphs and pictographs, which were
only called and considered as " names," with-
out any suggestion of grouping similar sounding
names, still less of splitting up such sounds
into initials and finals, tones and rhymes. His
" book " or vocabulary, consisting of fifteen
bamboo or wooden " chapters," cannot have
exceeded about one thousand characters in all,
and this estimate is made from the number used
in the actual or recorded documents that have
come down to us written in that character, many
specimens of which still survive in the shape of
vases, drinking-vessels, sacrificial tripods, bricks,
tiles, and commemorative bronze bowls, one
especially fine instance of the last-named being
at this moment visible to the public in the
Victoria and Albert Museum, together with
translation, history, and arguments as to its

It is now only that real history, accompanied
by effective connected thoughts and expressive if
limited writing, really begins, and with it the
period of material progress and local autonomy.
Writing was a laborious and clum.sy art even in
its improved and tentatively phonetic form, and
"books" were rare and heavy objects made up
of strips strung together at one end like (and
probably the indirect origin of) bamboo fans ;
ordinary business was conducted by one or more


wooden or bamboo slips like our tallies, each
containing a dozen or so of characters, the form
of which was apt to differ slightly in each semi-
independent state. Confucius' s celebrated Annals
(c. 480 B.C.), the first real definite history ever
attempted in China, was a laconic record of
events in his own state so far as they led him
to observations on and relations with other
states, including the decaying imperial state or
extremely limited area under direct imperial rule.
There is reason to believe that most if not all
the other states kept similar annals, and portions
of the same, in fact, have been dug up from
graves at various comparatively modern times.
Confucius and his contemporaries probably did
not make use of 2,500 separate characters be-
tween them. Confucius' s history, which covers
a retrospective period of about 250 years, is
scarcely literature, though the three largely
amplified commentaries upon it (published
several centuries later) which are usually meant
when people speak of Confucius' s celebrated
Annals, are decidedly interesting and readable.

There can be no doubt that during the period
820-220 B.C. the total number of written char-
acters had increased from 1,000 to over 3,000,
for 3,300 were at the latter date collected in a
vocabulary or book. Education was widely
spread ; that is, the limited ruling classes had
broadened their base, cultivated literary trea-
sures, used to consult the oracles, a.nd saw to it
that the mercantile, industrial, and agricultural
commons possessed at least a knowledge of written
character sufficient for the ordinary business
purposes of Hfe, including the learning off by
heart of moral maxims and principles of decency.
If no current everyday specimens have come
down to us as (only in very recent years) in the
cases of the Egyptian papyri and Babylonian


clay, it must be largely because wood and bamboo
are so perishable by fire and rot.

After the uniting of the contending feudatories
and imperial appanage into one centralised state
in 213 B.C., the conqueror and his ministers
naturally inclined to favour the use of their own
variety of script when it became a question of
deciding which variant had best claim to be
the standard. Weights and measures, cart-
wheel axles, and political ideas were all thence-
forward to be organised and standardised. It
is highly probable that (as with the Egyptian
demotic writing) scribes, whose routine business
led them to deal with numerous oracular, ad-
ministrative, or mercantile matters, had for long
quietly and empirically indulged in a kind of
short-hand among themselves and their clerical
colleagues of other states, which process would
lead naturally to a general simplification of the
more formal and laborious mode of writing dis-
covered or codified in 827 B.C., in the elaboration
of which simplification, we are told, two of the
conqueror's ministers and a private scholar took
independent parts : shortly after that an anony-
mous individual unified these three collections in
a single book of 3,300, as just stated. In his
eagerness to begin things afresh, this imperial
founder proceeded to call in and destroy not
only so much of the ancient literature as he
could lay his hands on, but also to summon
and destroy the philosophers, scholars, and
politicians who opposed his innovations on the,
to him, most irritating ground that the sages of
antiquity had taught wiser and better things.
Thus it comes about that even those portions of
genuine old classical writings rummaged for and
patched up from memory several generations
after the tyrant's death, and of course after the
total collapse of his short-lived dynasty, are

B.C. 200-A.D. 200] SIR A. STEIN ONCE MORE 347

open to suspicion as to their genuineness and
accuracy, as few persons could after that interval
even decipher, let alone explain, the old texts
found, whilst a large number of the 827 B.C.
characters had disappeared for ever. If this
seem incredible, then how many of us can make
out even Queen Elizabeth's writing in the British
Museum ?

The Han dynasty in its western and eastern
divisions we have seen covered a period of 400
years, i.e., the first 200 years before and the
second 200 years after the beginning of our
Christian era' — exactly the same periods of time
as those covered by the Hiung-nu dominators,
who used Chinese just as (Caesar tells us) the
Gauls and Germans used Greek script. These
400 years were exceedingly active in a military
as well as in a literary sense. The first diction-
ary (as distinct from mere vocabularies) was
published about a.d. 220, and contained over
9,000 words. Not only was the written character
further developed and made easier to write,
but the hair ink-brush had come into general
use instead of the scratcher or style and the
rough bamboo paint-brush ; paper was invented ;
various special guide-books and vocabularies
were made; distant military posts were estab-
lished, and expresses conveyed despatches
rapidly from one end of the empire to the other —
Dr. Aurel Stein has unearthed hundreds of them
from the dry desert sand, and the original speci-
mens may now be seen in the British Museum :
the dominions of China were enlarged by dis-
covery ; but at no period does the Chinese literary
taste seem to have been in the remotest degree
affected by foreign importations, nor have the
Chinese writers ever given the smallest hint that
the form of their script owed anything in the way
of inception, change, or improvement to examples


or suggestions from abroad : in fact, they nev^r
even heard of any rival writing system or con-
ceived the possible existence of any except their
own until they were brought into political con-
tact with the Indo-Scythians (whence India)
and the Syrians (whence Rome). Thus any sup-
posed Babylonian effect, say, in 600 B.C. (even
if it had existed at all) could only in any case
be looked for now in connection with the forms
that have largely perished, and not with the forms
now in use. The Japanese (as admitted in the
Times by Baron Kikuchi) had no letters of any
kind previous to the seventh century a.d.

But as to the specific point of invention, is
there any real necessity for persisting in or
even assuming that writing was in remote and
"prehistoric" times the exclusive invention of
any one nation or tribe ? Nay, further ; the
attempts to prove that the Chinese derived their
primitive pictographs from the Akkadians or
Sumerians of Babylonia seem to defeat them-
selves when we read in the British Museum
guide-book that both these ruling peoples are
" believed to have come from Central Asia, and
to have belonged to the Turanian family of
nations " ; i.e., of necessity either to the Chinese,
or Tibetans, or the Hiung-nu and Scythians ;
to wit, the Turks. What scientific ground is
there for assuming that any nation or race is
older than any other ? Every existing man and
woman must have had a father and mother, and
they also must have had parents ; and so on
ad infinitum, or at any rate until at least pleis-
tocene and even pleiocene times. In any case
it seems rash to assume connection or borrow-
ings on the ground that the primitive sounds
uttered, or scratched on a tree, show some
similarity. There are only one pair of legs
and one pair of arms to clothe, whether we elect

B.C. 250,000] A MAN'S A MAN FOR A' THAT 349

for petticoat, clout, or breeches ; and there is,
and for, say, 250,000 years has been, only one
kind of throat and nose to speak out of, whether,
living remote from each other, we incline
towards clicks, tones, grunts, sniffs, labials,
sonants, nasals, surds, or gutturals. Not to
speak of the Neanderthal man, the Heidelberg
jaw, and the Ipswich skeleton, still more recent
discoveries — and in point of time we must not
overlook the fossil " fabulous " dragons found
personally by a genuine British Consul in China
only last year (1916), — the most recent human
" finds " distinctly point to complete man,
brain-power included, even in pleiocene times.
History is nothing but events, and events dis-
appear for ever unless they are recorded ;
hence for untold generations man's doings are
lost in oblivion, and leave not a wrack behind.
Primitive man probably made one of his
greatest discoveries when he began to conceive
definite numbers. As to the mere act of think-
ing, he must have been, for he still is, on the
same plane as other animals, and it is quite
manifest that thinking cannot possibly connote
speech of necessity, inasmuch as those persons
born deaf and dumb can not only think, but read,
and "get along" in matters generally as well as
ordinary folk. Man's next step would probably
be the development of speech, which is merely
a " short-distance " record of our thoughts.
Primitive man, having at last grasped the idea
that his own tree hole and his own wife were
only one set of many similar, would be led to
'' record " this and other simple facts more per-
manently with his nails, with shells, or with
sticks, on his wife's skin, or on a tree ; if there
were no trees handy, he might make a shift with
other suitable material ; for instance, clay ; and he
would advance a step further when he found that


the sun, later fire, made the clay durable. The
Chinese have plenty of loess. Possibly because it
is too friable to convert into viscous mud, they
never seem to have imagined the virtues of clay
" paper," though numerous very hard-baked
bricks and tiles, probably not made of loess^
contain valuable ancient "inscriptions" of a
terse and limited kind. It was Chinese ill-luck
to choose the most perishable of materials —
wood, bamboos, silk, and paper — and (unless
many more bone or tortoise-shell inscriptions
and tomb treasures turn up) one of the conse-
quences now is that we shall have few literary
antiquities in China except in stone, brick, or
bronze. But that circumstance is far from
proving that the Chinese owed any culture to
other nations, or that their mental capacity
needed foreign stimulus.

By the commencement of our era the Chinese
had written two genuine " world " histories as
they knew the world. Take, for instance, the
chapters on the Hiung-nu in both these histories,
about as long as the " Caesar " and " Tacitus "
used in our schools. The Chinese descriptions
of the Hiung-nu are in general grasp marvellously
like the Roman descriptions of the Gauls and
Germans. The language and flow of thought
are not only as precise and intelligent, but each
sentence may be translated almost word for
word into good Latin of similar terseness and
grip ; and conversely, the Latin will go quite com-
fortably into Chinese of 90 B.C. and 90 a.d. style.
Although the first dictionary of 9,000 words pub-
lished about A.D. 220 contains fewer than half
the character»used by first-class schoolmen after
the perfect and refined polish of 1,000 years
later, and only one quarter or one fifth of the
characters given in the imperial dictionaries of
to-day, the clear and simple style of 90 B.C. to


A.D. 100 has never been excelled, and it is
excellent reading even to-day, without greater
need for a glossary than we ourselves require
for, say, the Shakespearean plays. The Chinese
have never shown any capacity for " applied
history," but as recorders of bare facts and
describers of definite events they are unequalled
for trustworthiness. Have the Egyptians or
the Babylonians ever written anything that one
can sit down to read by the hour consecutively
and conscientiously, and enjoy like a novel ?
The thousands of clay and papyrus documents
indirectly describing conquests, family dealings,
and so on are of course when pieced together
intensely interesting to our curiosity. But are
they literature ? Is there any " style," or
philosophic, logical thought about them ?
Above all, have they any " art " or beauty to
the imagination, as approached through the eye ?
If a nation can struggle during a total period of
500 years out of its bald annals scratched on
laconic slips, create an argumentative philo-
sophy worth destroying, repair that destruction,
rise " like a phoenix from the ashes," and achieve
the highest degree of artistic calligraphic and
literary taste, charming to the eye, unfettered
by " grammar," and good for any spoken lan-
guage, what need is there to charge upon its
mental capacity an imaginary debt to the
Egyptians and Babylonians ?

From a general point of view no language
can be postulated more difficult than another,
for every language is the easiest expression by
the native speaker thereof of his sentiments ;
specifically, Chinese is provably as easy to speak
as English, for any English child born in China,
and given a free hand to grow up amongst native


servants and friends, speaks the local dialect
with absolute perfection along with his mother's
English. The difficulty of a language cannot
therefore be inherent, but must lie in the differ-
ence between the language already spoken and
that which is to be learnt ; it is only the differ-
ence between braying and neighing in another
degree, the aims being identical. Chinese, ac-
cordingly, is so different from English, that it
becomes increasingly difficult in the ratio of
the learner's established custom : hence — given
equal natural intelligence — a youth of 18 in-
variably progresses more rapidly than an adult
of 40.

These sententiosities apart, however, Chinese
is, by reason of its seemingly grotesque differ-
ences, apparently very hard to learn at all ;
and, by reason of its innumerable and confusing

Online LibraryEdward Harper ParkerChina, her history, diplomacy, and commerce, from the earliest times to the present day → online text (page 28 of 35)