Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 5, 1905
Chargé Coolidge to the Secretary of State.
Peking, April 26, 1905.
Sir: I have the honor to transmit herewith translations of two Imperial edicts which appeared in the Peking Gazette of April 24 and 25, by which the more cruel forms of punishment now in use are abolished or modified.
These edicts were in response to a memorial of His Excellency Wu T’ing-fang. Mr. Williams’s explanatory note is appended.
I have, etc.,
Imperial edict issued in response to a memorial of His Excellency Wu T’ing-fang, abolishing cruel forms of punishment.
Wu T’ing-fang, Shêng Chia-pên, and others, having been appointed to revise the criminal code, have submitted a memorial, praying that first of all certain severe forms of punishment may be modified.
When our dynasty first came through the great wall, decapitation was the severest form of punishment used, but in the reign of Shun-chih (1644–1662 A. D.), when the laws were being revised, following the long-established practice of the Ming Dynasty, dismemberment and other severe forms of punishment were adopted, and although these were intended to serve as warning to the criminal and the stupid, yet investigation shows that they are not in harmony with the original intention of the Imperial House to temper justice with mercy. Now that the laws are being revised, we decree that henceforth the severest form of punishment for capital offenses shall be immediate decapitation. The three forms of punishment known as “dismemberment,” “exposure of the head,” and “beheading the corpse,” are hereby abolished forever. The sentences of “dismemberment” and “exposure of the head” provided for in the present laws are hereby changed to “immediate decapitation.” Crimes to be punished by “immediate decapitation” under the present laws shall be punished by “immediate strangling.” Those punished by “immediate strangling” shall receive sentence of “strangling after the autumn assize,” provided the investigation at the autumn assize shall show the facts to be as alleged. Sentences to “decapitation after the autumn assize” are changed to “strangulation after the autumn assize,” and criminals sentenced to strangulation after the autumn assize are still to be allowed an investigation at the said assize and to have sentence carried out or commuted, as the facts shall show. As to the provisions for the punishment of accessories in crime, while punishment is still to be inflicted according to the circumstances of the case, such persons are entirely relieved from the penalty of “branding,” which is hereby abolished.
In addition to the foregoing we command the aforesaid vice-president (Wu T’ing-fang) and those associated with him to carefully consider what further changes and excisions may be necessary and without delay to suggest modifications, make selections (from other codes) and prepare a code for the promulgation of which they shall ask an edict. And we earnestly hope that their deliberations may result in the adjustment of the law to present conditions, the avoidance of extremes and the adoption of that which is most suitable, thus fulfilling the purpose of the court to instruct the people in their duties by making” plain the system of punishments.
Let this be published throughout the Empire for general information.
Imperial edict abolishing torture in court of law, and authorizing inspection of jails.
We received yesterday the memorial of Wu T’ing-fang and Shên Chia-pên, recommending a modification of the penal code and more considerate treatment of prisoners, praying that orders might be issued forbidding the use of torture to secure evidence, which involves [Page 177] innocent persons in trouble, and asking for a reform of the system of whipping with the light and heavy bamboo, praying also for an inspection of prisons and houses of detention, to which we have already responded with an edict granting the requests made.
But although the very best laws may be enacted, they can not execute themselves. What is required is that all the officials, both high and low, shall conscientiously discharge their duties and exert themselves to get rid of evil practices, so that to some extent we may have a just government and the settlement of litigation by clear and well-defined principles, and thus get rid of long-standing abuses.
We constantly hear from the various provinces that the department and district magistrates either tyrannically or following their own caprice employ torture in examination, or get a lot of persons implicated in a case and summon them to court, but do not make prompt investigation, allowing the yamen underlings to confuse the case so that they may illicitly profit by it, implicating (innocent) persons whom they detain and oppress in a hundred ways, all of which practices are most abominable.
Now, since we have approved the regulations submitted in the memorial above mentioned, let them be published abroad and let all observe them. We repeat the announcement and warning that our desire is to show compassion upon all who are imprisoned, that justice shall be shown, and the sentiments of the people satisfied. Let all the viceroys and governors concerned issue strict orders to their subordinates to conscientiously and with due regard to all the circumstances exert themselves to carry this edict into effect and from time to time to make careful investigation. Should any be found who, while outwardly observing, are secretly disobeying, the edict, treading the old path of malpractice, let them be at once impeached. There must be no shielding of them nor any attempt to save their faces. Let each be diligent in seeking the welfare of the people, and give earnest attention to the settlement of litigation, and so fulfill the purpose of the Throne to have compassion upon the lowly and to lighten their punishments.
Let this edict be published for the information of all.
Notes upon edict abolishing cruel punishments.
The punishment which I have called “dismemberment” is called “ling ch’ih,” and sometimes translated “death by slicing,” sometimes “lingering death.” Originally the sentence required the dismemberment of the body by 24 cuts. As has been practiced in modern times, it consists in tying the offender to a cross or stake, and gradually slicing the body beyond all recognition. As Alabaster says:a
It is not a lingering death, for it is all over in a few seconds, and the coup de grace is generally given the third cut.
The purpose of such a sentence is not the torture of the criminal in this world, but to make his fate more dreadful in the world to come. As his body is unrecognizable here, so his spirit will be unrecognizable in the lower world, unless the fragments of his body can be brought together again. This form of punishment has been reserved for such serious crimes as high treason, parricide, and the murder of a husband.
The punishment referred to as “exposure of the head” is in full “decapitation with exposure of the head,” which is one degree more severe than simple decapitation. In the latter case, the body is delivered to the relatives, who are permitted to have the head sewn on, so that the deceased may not wander headless in the land of shades.
“Beheading the corpse” refers to the practice of carrying into execution the sentence of decapitation even if the condemned shall have died in prison. Even in the case of sentence to dismemberment, the corpse of the criminal has heretofore been subjected to this greatest indignity, if death occurs while awaiting execution, and in at least one case, where the guilty man was killed by his brother, the body was exhumed and cut to pieces.
“Strangling after the autumn assize” is a much lighter sentence than “immediate strangulation,” inasmuch as the postponement carries with it the right to revision by the board of punishment in Peking, such revision being made at the autumn assize. As a rule all death sentences are sent to Peking for approval, but sometimes authority is given the local officials to execute without waiting for such approval. But, while other death sentences are referred to Peking for approval, the facts as reported are not called in question and the court has merely to decide whether or not the sentence is in accordance with law. In the case under consideration, “strangling after the autumn assize,” the whole case is reviewed and the accused may have his sentence commuted or may be pronounced innocent and released.
[Page 178]The various forms of capital punishment in the order of their severity are as follows: (a) Dismemberment of the body and extinction of family; (b) dismemberment; (c) decapitation and exposure of the head; (d) simple decapitation; (e) decapitation subject to revision at the autumn assize; (f) strangulation; (g) strangulation subject to revision at the autumn assize; (h) self-execution.
“Branding” has heretofore been employed for the identification of old offenders, sometimes on the arm or back, but in the case of hardened criminals, on the face.
The unwritten constitution of China requires that some responsible minister shall first submit in a memorial any legislation which it is desired to enact. The Emperor is not expected to act upon his own initiative. In the present instance the commission for the revision of the penal code has been at work for about two years. It has recently submitted three memorials praying for the reforms mentioned in those two edicts and for others, which have also been granted, though the Gazette has not as yet announced the fact. Among the measures not yet mentioned is one requiring the provincial authorities to establish a school of law in each province in which candidates for civil offices must prepare themselves to pass a proper examination before appointment, and another abolishing the practice of punishing the relatives of a criminal as well as the criminal himself for his crime, as has been customary in the case of certain serious offenses. This is a very radical change, as Chinese law has heretofore proceeded upon the assumption of the responsibility of the family for the acts of each member thereof.
It has been the common practice in Chinese courts to examine the accused and sometimes the witnesses as well with the aid of torture. This is commonly by beating with the bamboo, but somtimes by beating the face with the hand, or requiring the unfortunate prisoner to kneel on chains, at other times by suspending him by the thumbs, or breaking his legs with bars of iron. Many ingenious methods have been devised unknown to the law. The abuse is a very serious one, but is based upon the theory that the prisoner must acknowledge his guilt before he can be punished. When he has confessed, he places his thumb-mark as a seal to the written confession. Innocent persons are sometimes implicated in the charge by testimony thus extorted, and in turn put to the torture or compelled to pay the underlings blackmail to escape, a practice hinted at in the edict.
The five legal punishments under the present dynasty are: (a) Beating with the light bamboo; (b) beating with the heavy bamboo; (c) transportation for a certain time; (d) banishment to a certain distance; (e) death—by strangling or decapitation or by dismemberment or suicide.
Corporal punishment is not abolished by this edict, but is to be modified. The regulations which are yet to be published will show in what manner.
The word for “prison” in Chinese also means “hell.” The law does not prescribe imprisonment as a penalty, but accused persons are confined in jail simply to await trial or the execution of the sentence imposed. Many languish for years without judgment being given. This is a crying evil in civil cases where a debtor is deprived of his liberty until some settlement can be forced out of his relatives. Even witnesses are sometimes kept in the houses of detention until wanted, and suffer there great hardship and injustice.
The inspection of the prisons therefore by authorized persons under definite regulations will do much to correct these evils and will constitute a great reform.
- Notes and Commentaries on Chinese Criminal Law.↩