No. 171.
Mr. Denby
to Mr. Bayard.
Peking, May 18, 1887. (Received. July 5.)
Sir: I have the honor to state that, in view of the discussion now being had in China touching the abolition of the extraterritorial jurisdiction [Page 213] of the foreign powers, it has occurred to me that some general observations on the Penal Code of China would not be out of place. The subject does not seem to have been handled by any of my predecessors.
The Chinese Penal Code is excessively minute. There are few conceivable offenses not embraced in its provisions.
The first monarch of the present family, Shunchi, ordered a revision of the code in 1647. A new edition is published every five years. It comprises seven divisions and four hundred and thirty-six sections under an equal number of separate heads. The first of these divisions is in forty-six sections, consisting of general laws comprising principles applicable to the whole code.
The punishments inflicted are the following: From ten to fifty blows with the lesser bamboo, from fifty to one hundred with the greater bamboo; transportation to any distance not exceeding 500 li (a li is one-third of a mile); perpetual transportation; death either by strangulation or decollation. The bamboo, the cangue or movable pillory, the iron chain, handcuffs, and letters are the common instruments of punishment. There is no banishment from the confines of China, but transportation is ordered to Mongolia or Manchuria. This punishment may also involve labor in public works.
The ten great offenses are rebellion, disloyalty, desertion, parricide, massacre, sacrilege, impiety, discord, insubordination, and incest.
Certain classes of offenders belonging to the imperial blood, or who have rendered valuable services, or are distinguished by wisdom, ability, zeal, nobility, or birth are entitled to commute these punishments by the payment of money.
Private offenses comprehend almost all cases of direct criminality; public offenses are cases of liability to punishment growing out of official responsibility.
New laws take effect from the date of their premulgation. Cases for which there are no specific laws must be decided from analogy.
Transportation varies from 500 li to 4,000 li in distance, and from a short period to life.
The second division covers offenses relating to violations of civil laws. The sections relate to appointments to office, to performance of official duty, to interference with magistrates, to non-execution of Imperial edicts, to the mutilation of official papers, to forming cabals and state intrigues, and other kindred subjects.
The third division covers violations of the fiscal laws. It concerns population and revenue. Fifteen sections relate to the enrollment of the people, adoption of heirs, building of temples without permission, evasion of public service by desertion, provision for the aged and bereaved. Eleven relate to lands and tenements, fraudulent misrepresentation of landed property, inspection of lands injured by calamity, usurpation of public or private lands and tenements, mortgaging land, private employment of public carriages and boats and the like. Seventeen sections relate to marriage, regulating marriage, mortgaging a wife or daughter, disregarding rank of ‘wife or concubine, ejecting son-in-law, marrying during period of mourning or imprisonment, marriage between persons of different ranks, or with relations, or with persons who have absconded; forcible marriage of freemen’s wives or daughters of freemen with slaves, holding go-between responsible.
Twenty-three sections relate to granaries and treasuries, coinage, receiving taxes, concealing revenue, monopolizing payment of taxes, giving false receipts, failing to make proper reports, clandestine use of revenue [Page 214] or use of public property, frauds in storehouses, thefts in granaries, detention of revenue, purity of gold and silver delivered to Government, confiscated property, and the like.
Eight sections relate to duties and customs, regulations of salt department, smuggling of tea, alum, evasion of duties, and the like.
Three sections relate to money loans, unlawful interest, breaches of trust, finding lost articles.
Five sections relate to markets and shops, valuation of goods by factors, combinations of traders, false weights, manufacturing utensils and silk contrary to usage.
The fourth division relates to ritual laws—sacrifices, destroying altars, dishonoring tombs or the gods, prohibiting magicians and depraved arts, preparing medicine for the Emperor, interdicted books, imperial presents, neglect of ceremonies, monuments, sumptuary laws, respect to parents, false predictions, concealment of deaths, funeral rites, interments, festivals, and the like.
The fifth division relates to military laws—wrongfully entering temples or the palace, neglect of duty, trespass on imperial roads, wrongfully employing substitutes, regulations as to intercourse with the palace, locking gates of cities, unfaithfulness of officers, plundering by soldiers, insubordination, selling war-horses, arms, or accouterments, improper management of herds and flocks of the Government or neglect of them, using Government horses, excessive rations. This division contains seventy sections, and provides for almost every conceivable offense by soldiers.
The sixth division relates to general crimes and misdemeanors. The criminal laws are 170 in number, and are comprised in eleven subdivisions. Twenty-eight refer to theft and robbery; twenty to loss of human life; twenty-two to quarreling and fighting; eight to abusive language; twelve to litigations; eleven to bribery; eleven to frauds and forgeries; ten to illicit intercourse; eleven to miscellaneous offenses; eight to arrests and escapes; twenty-nine to imprisonments.
In this list may be found punishments for defacing brands or marks, for causelessly entering houses at night, for killing three persons in one family, for cutting human beings to pieces, for killing a concubine by-excessive beating, for interference in cases of intended injury, for wives and concubines striking their husbands, for striking the children of a wife’s former husband, for abusing parents, for bringing forward false accusations, for illicit sexual intercourse, for frequenting brothels, for employing eunuchs, for hushing up crimes, for “doing what ought not to be done,” for accidental fires, for clerks writing confessions for others.
The other crimes are those known as mala in se in all systems of jurisprudence. Some of the special offenses above enumerated are novel, as the law which holds the master of the house criminally liable for an accidental fire, and punishes him with death should an Imperial temple be burned. But the penal legislation in general does not differ from that of other countries in the definition of crimes.
The law respecting theatrical representations prohibits the representation of empresses, famous princes, ministers, and generals of former ages.
Torture is prohibited to be applied to persons over the age of seventy and under the age of fifteen.
Females are not imprisoned except in capital cases and adultery. They are kept in custody by their husbands or kindred.
It is usual to compel the prisoner to confess his guilt before sentencing him. To this end torture is applied, but I am inclined to believe that [Page 215] torture is not applied until tuere is raised a strong presumptiou of guilt.
When a man is accused of a capital crime his kindred are summoned to be present at the trial.
Ordinarily the death sentence is not executed until the Imperial rescript has been had. But sometimes the execution is immediate. Execution by the slow process, that is by hacking the members off one by one, is not uncommon.
The seventh division of offenses relates to public works. It contains twelve sections, assuming to effect public works, waste of time and expenditure, building contrary to law, misapplication of public money or silks, weaving prohibited patterns, encroachments on streets, and the like.
In those cases in which the law allows commutation money to be paid, in lieu of suffering the punishment inflicted, the amount varies from 12,000 taels, in case of the death penalty in certain cases, to a nominal sum for blows.
It may be said generally that whoever is guilty of any species of pecuniary malversation to the extent of 20 taels of silver shall receive forty blows, and the greater the amount the heavier the punishment.
Having thus furnished an abstract of the Ta Tsing Leu Lee, or Penal Code of China, I beg leave to offer a few remarks thereon suggested by reading and observation.
It is to be noticed that the Penal Code discloses that the duty of submission to parental authority is treated as a fundamental principle of government.
This principle, indeed, is the foundation both of law and religion. The worship of ancestors is the one distinctive principle of religion. Submission to parental authority, or to the rulers who represent parents, is a general rule of action. Secluded as China was from the rest of, the world for many centuries, the patriarchal government which existed in the earliest ages in all countries, remained, and still remains, as the foundation of her system. This principle has served to unite as one people the vast population of China and to preserve for its Emperor the veneration of his subjects in spite of every convulsion.
It is also to be noticed that there are many provisions, not found in other codes, based on an exalted charity and respect for aged and honorable persons. There are also preventive measures, such as requiring any person who knows of an injury intended to another to endeavor to prevent it, and if unsuccessful to report the matter to the magistrates, which do not exist in other codes.
If we compare China with our own favored land we will not fail to conclude justly that the Chinese are inferior to our own people in social virtues. The chief cause, no doubt, of our superiority is the profession of the Christian religion. On the other hand we must admit that the Chinese possess certain moral and political advantages in a marked degree. Among these may be enumerated the regard paid to ties of kindred, the sobriety and industry of the lower classes, the absence of feudal privileges, the peaceful tendency of the Government and the people, the equable distribution of landed property, and the comprehensive, just, and equitable system of penal laws which I have herein sketched. It must be said also that there is considerable liberty of the press in China. Its influence and spread is not, of course, as great here as in western countries, but there seem to be no previous licenses required and few restrictive regulations. No country in the world so much encourages [Page 216] literary pursuits, nor rewards them with such honors and emoluments.
While there are other statutes besides the Penal Code, still it may be taken as a compendium of the laws of China. Each branch of the Government has its own particular code of laws, but the general laws of the Empire are found in this code and they are connected with every branch of the constitution. These laws are the product of the wisdom of the Tartar dynasty and date from the Tartar conquest.
We shall look in vain in the Penal Code for the ordinary safeguards that are thrown around the citizen in the courts of our own land or in England. No presumption of innocence is admitted, and men are required to criminate themselves. In our view these practices must be held to be indefensible. But in considering what laws are adapted to a people we must study the geography of the country, the climate, the quality of the soil, the ordinary life of the people, their religion, inclinations, wealth, numbers, commerce, morals, and manners.
Perhaps the western world is not even now sufficiently acquainted with China to pronounce authoritatively on the adaptation of its code to its people. It cannot be denied successfully, although some authors have disputed the assertion, that bambooing and bastinadoing are almost universally used in criminal procedure. My belief is, that they are very common procedures used as punishment and as torture.
There are no permanent prisons, and all punishment is corporeal. It is impossible to defend on any human theory the cruelty which is often practiced in the courts. Absolute necessity is the only shadow of defense.
It will be noticed that the laws take a wider range than those of other countries. This might have been expected in a patriarchal government. The minute interference with individual freedom may also be more necessary in the ruling of such a vast population.
It is claimed that the severity of the written law is condoned by leniency in its execution. But I am not prepared to concede this proposition. My reading of the Pekin Gazette induces me to believe that there is great rigor in the enforcement of even the heaviest penalties, which are not redeemable by money commutation.
It may be said also that however equitable the laws may appear to be the administration of justice is corrupt. It is notorious that money is demanded and received by the underlings of the various yamêns from prisoners and criminals. It is charged that the judges are susceptible to bribery in civil cases.
But I do not believe that the Imperial Government would lend its sanction to corruption or injustice, or fail to send the perpetrators to the board of punishments for the assessment of a penalty, where a plain case was brought to its notice. The body of the people take great pride in their laws and demand only their impartial execution.
The era of reform has not dawned for China. Her attention to-day is directed to material development only. Possibly she has commenced at the wrong end, but she will first provide for an army and navy for self-protection before looking into the wrongs prevalent in her governmental system.
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I have, etc.,