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MERITS AND DEFECTS.
The Chinese carry their care beyond this life; for any person who is convicted of neglecting his occasional visits to the tombs of his ancestors is subject to punishment. A second defect which we may notice is that minute attention to trifles, and that excessive care to provide for every possible shade of difference that may arise between one case and another, which is so opposed to the European maxim, “de minimis non curat lex." The Chinese, however, still stop short of the Hindoo institutes of Menu, which provide for some rare and singular contingencies. For instance, the inheritance of a son being a whole, and that of a daughter a half, there is a peculiar sagacity and foresight in directing that the portion of a hermaphrodite shall be half of the one, and half of the other, or threefourths! A third defect is the occasional manifestation of a jealous fear, on the part of the Government, lest in the execution of its enactments the judge should ever find himself impeded or hampered by too great clearness of definition, or the subject derive too much protection from the distinct statement of crime and punishment. Hence those vague generalities by which the benefits of a written code are in a great measure annulled. The following enactment is a specimen :“Whoever is guilty of improper conduct, and such as is contrary to the spirit of the laws, though not a breach of any specific article, shall be punished at the least with forty blows; and when the impropriety is of a serious nature, with eighty blows." The Chinese may justly say that it is “difficult to escape from the net of the law,” when its meshes are thus closed against the exit of the minutest of the fry.
One feature of the criminal code, inseparable from the nature of the Government from which it sprung, is the remorseless and unrelenting cruelty and injustice which mark all its provisions against the crime of treason. Nothing perhaps could more strongly
show the different tempers of despotism and freedom, than the contrast between the Chinese law of high treason and our own. In China, every species of advantage and protection afforded to the criminal, in ordinary cases of a capital nature, is taken away from the traitor; in England, every possible safeguard is afforded him. It is well known that, with us, the prisoner must be furnished, at least ten days before his trial, with a copy of his indictment, a list of witnesses, and a list of the panel, or those from whom the jury are to be chosen. Then, again, he may challenge or object to as many as thirty-five of the panel in making up the jury; he cannot be convicted with less than two legal witnesses; and he may employ counsel in his defence.
Now in China, not a single circumstance of indulgence or safety to the criminal, in capital cases, is ever stated throughout the whole code, without this addition, “except in cases of high treason.” The slenderness of the protection is only to be paralleled by the barbarity of the punishment, and, as in other absolute despotisms, the innocent family of the offender is consigned to destruction. In 1803, an attempt was made on the life of the Emperor by a single assassin. He was condemned to a lingering death, and his sons, “ being of a tender age,” to be strangled! Going back to the patriarchal origin of the Government, the Chinese derive a sanction for their law of treason from their sacred books. These enjoin it on a son to pursue the author of his father's death to extremity; and Confucius himself tells him, “not to live under the same heaven with the slayer of his father.” The extension of this rule to the Sovereign is, in the mind of every Chinese, a matter of course.
The arrangement of the penal code is extremely methodical and lucid. The first head is composed principally of general definitions and explanations in
ARRANGEMENT OF THE CODE.
reference to the whole code; and the six following, which constitute the body of the work, correspond exactly to the Six supreme Boards or Tribunals at Peking, being in fact the best illustrations of the respective duties and functions of those councils. In that light they may be briefly presented to the reader.
The division concerning the Administration of civil offices corresponds to the first of the Supreme Tribunals before noticed, whose title may be expressed by “the Board of Civil Appointments.” Its two books treat, 1. Of the System of Government. 2. Of the Conduct of Officers.
The next comprehends Fiscal and Statistical Laws, and answers to the Board of Revenue at Peking. Its seven books comprise, 1. The Enrolment of the People. 2. Lands and Tenements. 3. Marriage (in its statistical relations). 4. Public Property. 5. Duties and Customs. 6. Private Property. 7. Sales and Markets.
The third treats of the Ritual Laws, and comes of course under the Tribunals of Rites and Ceremonies. The two books of this division treat, 1. Of Sacred Rites. 2. Miscellaneous Observances.
The division concerning Military Laws belongs to the Tribunal of War, or Military Board, and contains five books. 1. The Protection of the Palace. The Regulation of the Army. 3. The Protection of the Frontier. 4. Military Horses and Cattle. 5. Expresses and Public Posts.
The next comprehends Criminal Laws, and pertains to the “ Tribunal of Punishments,” being by far the most considerable portion, and comprising eleven books. The principal heads are, Treason, Robbery and Theft, Murder and Homicide of various kinds, Criminal Intercourse, Disturbing Graves, Quarrelling and Fighting, and Incendiarism.
The last division of the code, treating of Public
Works, and coming under the appropriate Board at Peking, contains only two books. 1. Public Buildings. 2. Public Ways.
With regard to the punishments by which these laws are enforced, it is important to observe that very unfounded notions have been prevalent as to the caprice or cruelty which can be exercised towards criminals. Some vulgar daubs, commonly sold at Canton, and representing the punishment of the damned in the Budhist hell, have been absurdly styled
“ Chinese punishments,” and confounded with the true ones. There is in the first division of the code a very strict definition of all the legal pains and penalties to which the subject is liable, and even the application of torture in forcing evidence is strictly limited in its extent and application. History indeed relates the extraordinary contrivances of cruelty adopted by different tyrants previous to the formation of a distinct and written code; but this is common to nearly all countries.
The most general instrument of punishment is the bamboo, whose dimensions are exactly defined. The number of blows, attached gradatim with such precision to every individual offence, answers the purpose of a scale or measurement of the degrees of crime, and this punishment being often commutable for fine or otherwise, the apparent quantity of flagellation is of course greater than the real. A small hollow cylinder, full of tallies or slips of wood, stands before the judge, and according to the nature of the offence he takes out a certain number, and throws them on the floor of the court. These are taken up by the attendants, and five blows nominally, but in reality only four, inflicted for each*. This mitigation goes to the Emperor's credit, being called “imperial favour," and
* The ceremony of the bamboo is described in the “Fortunate Union," vol. ii. p. 62.