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less severity than ordinary stealing; and Sir George Staunton explains this, by its being the violation of a right not perfectly exclusive, since the thief, according to the Chinese system of clubbing in families, being part owner of the thing stolen, infringes only that qualified interest which each individual has in his share of the family property. Consistently enough with this principle, we may add that the thief seems to be more severely punished, in proportion as the relationship becomes more distant, as having a smaller share of the property, and therefore violating a more exclusive right. But then it must be remarked, that the rule does not apply to servants stealing from their masters, a crime which in China is also punished less severely than ordinary theft. The case is quite different among us in England, and with apparent reason, on the principle of its being a violation of necessary confidence, in addition to the violation of property.
The Chinese law of homicide derives additional interest from the circumstance of British subjects having on several occasions become obnoxious to it at Canton, and from its forming a very important subject of consideration in the establishment of our novel relations with the local government at that place. With its characteristic love of order, and horror of tumults, the national code treats affrays with unusual severity. Killing in an affray, and killing with a regular weapon, without reference to any intent either expressed or implied, are punished with strangling. Killing by pure accident, that is, not in an affray, nor with a weapon, and where there was no previous knowledge of probable consequences, is redeemable by a fine of about 41. to the relations of the deceased.
With regard to affrays, it must however be observed, that a limit is allowed to the period of responsibility, in all cases where the homicide was evidently not
preconcerted. When a person is wounded with only the hands, or a stick, twenty days constitute the term of responsibility, after which the death of the sufferer does not make the offence capital. With a sharp instrument, fire, or scalding water, the term is extended to thirty days. In case of gun-shot wounds, to forty days; of broken bones or very violent wounds, fifty days. As the translator of the Leu-lee observes, the judicious application of the knowledge of this particular law once contributed to extricate the Company's servants in China from very serious difficulties in the case of a native killed by a sailor. The situation of the English at Canton in respect to homicides will be particularly noticed in another place.
Fathers have virtually the power of life and death over their children, for even if they kill them designedly, they are subject to only the chastisement of the bamboo, and a year's banishment; if struck by them, to no punishment at all. The penalty for striking parents, or for cursing them, is death as among the Hebrews. (Exod. xxi.) In practice it does not appear that this absolute power bestowed on fathers is productive of evil, the natural feeling being, upon the whole, a sufficient security against its abuse.
The law of China is so tenacious of order, and so anxious to prevent the chance of homicide from quarrels, that some punishment is attached to the mere act of striking another with the hand or foot ;not as a private, but as a public offence. Though of course this cannot, in the generality of cases, be acted upon, it may account partly for the common spectacle of two Chinese jumping about and vociferating their mutual reproaches for an incredible time, without coming to blows. This noisy gesticulation seems to answer the purpose of a moral safety-valve, and is certainly more harmless than actual hostilities, though perhaps more disagreeable to the neighbours, inas
CHARACTER OF CODE.
much as it lasts longer. The responsible elder of the village or district (divided always into tithings and hundreds) often interposes on these occasions, and restores quiet. The law also provides some punishment for opprobrious language, on the ground of its having“ a tendency to produce quarrels and affrays;" or, as assumed by the English law in the criminal prosecution for libel, tending to a breach of the King's peace.
That portion of the Chinese code which relates to fiscal or statistical matters, to the tenure of lands and to inheritance, will be noticed elsewhere: but we may mention the subject of debts in this place. A period is allowed by law, on the expiration of which the debtor becomes liable to the bamboo if his obligations are not discharged. A creditor sometimes quarters himself and his family on his debtor, and, provided that this is done without violence and tumult, the civil authority does not interfere. One of the insolvent Hong merchants had in this manner to entertain some of his Chinese creditors, until the representations to the Government of those Europeans who had claims against him, occasioned his banishment into Tartary; it being a much greater offence to owe money to a foreigner than to a native. The true reason of this is, the anxiety of that cautious Government to prevent the recurrence of the trouble which it has in former times experienced, from the embarrassing claims and demands of strangers, and no real sense of justice towards them.
The able critique on the code, which we have aiready quoted, proceeds to say, “When we turn from the ravings of the Zendavesta, or the Puranas, to the tone of sense and of business of this Chinese collection, we seem to be passing from darkness to light; from the drivellings of dotage to the exercise of an improvedl understanding: and redundant and minute as
these laws are, in many particulars, we scarcely know any European code that is at once so copious and so consistent, or that is nearly so free from intricacy, bigotry, and fiction. In every thing relating to political freedom, or individual independence, it is indeed wofully defective; but for the repression of disorder, and the gentle coercion of a vast population, it appears to us to be, in general, equally mild and efficacious.” The defects are of course inherent in all despotisms, under which the legislator is not embarrassed by those considerations which in free states render every new law a problem, involving the greatest quantity of good to the public at the least expense of liberty to the individual; and which in countries where there is more liberty than moral instruction, or where men are better acquainted with their rights than with their duties, must always render the business of government a difficult task.
It has been reasonably proposed by Sir George Staunton, to estimate the Chinese legislation by its results, to judge of the tree by its fruits, some of which (he observes) we shall find to be wholly inconsistent with the hypothesis of a very bad Government, or a very vicious state of society.” On this subject he quotes his colleague* in the commission of the last British embassy, 66 whose extensive acquaintance with Persia and India rendered him a peculiarly competent judge of comparative merit in this case.
He pronounces China superior to the other countries of Asia, both in the arts of government, and the general aspect of society; and adds, that the laws are more generally known, and more equally administered; that those examples of oppression, accompanied with infliction of barbarous punishment,
* Mr. Ellis, now ambassador to Persia, with whom the writer of this travelled through China, and always heard him express the same sentiments.
which offend the eye and distress the feelings of the most hurried traveller in other Asiatic countries, are scarcely to be met with in China; that the proportion which the middling orders bear to the other classes of the community appeared considerable; that compared with Turkey, Persia, and parts of India, an impression was produced highly favourable to the comparative situation of the lower orders.”
“These statements," adds Sir George, "proceeding from a writer whose general opinions are certainly not very favourable to the Government or people of China, have the greater weight. I should be disposed to add my own testimony to the same facts, and in the same spirit. In the course of our journey through the Chinese empire, on the occasion of that embassy, I can recall to my recollection (the sea-port of Canton, of course excepted) but very few instances of beggary or abject misery among the lower classes, or of splendid extravagance among the higher; and I conceived myself enabled to trace almost universally throughout China the unequivocal signs of an industrious, thriving, and contented people."
Chinese law, with all its faults, is comparative perfection when contrasted with that of Japan as described by Kompfer. “I have often wondered," says he," at the brief and laconic style of those tablets which are hung up on the roads to notify the Emperor's pleasure. There is no reason given how it came about that such a law was made; no mention of the lawgiver's view and intention; nor any graduated penalty put upon the violation thereof. The bare transgression of the law is capital, without any regard to the degree or heinousness of the crime, or the favourable circumstances the offender's case may be attended with.” Some such comparison, perhaps, suggested the complacent reflections of Tienkeeshě, a Chinese, who thus wrote:—“I felicitate myself that I