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and transfer of property, joint ownership, mortgages, sanitation, medicine, midwifery, sobriety, or morals; so long as these matters proceed in a normal way, and do not infringe the interests of the Board of Revenue, the licence laws, the principle of ancestral continuity, the currency laws, the revenue laws, and, above all, the Five Cardinal Relations. These are all questions for the family council, and it is only on the comparatively rare occasions when the council actively and spontaneously seeks the assistance of a court that the officials take cognizance : even a murder may be quietly ignored if the clan concerned decides not to complain. In the same way, commercial jurisprudence lies within the private ken of the different trading guilds; banking questions are decided by the marvellously close and effective organization of bankers ; junkmen, fishermen, pawnbrokers, post-offices, squatters, moneylenders, doctors—in short, all industries—manage their own affairs and pay the fees with the minimum of government interference, if any; and even then the official action is taken in the interests of public order rather than to assert a legal principle : and although a few laws concerning marriages, inheritance, land transfer, usury, brokerage, &c., are laid down in the codes, these rather express what is the universal custom than impose any fresh command, There is, strictly speaking, no contract law at all except as touches the supreme contract of marriage. Thus, take the rate of interest that pawnbrokers may charge, and their licences ; or the permits to sail in and out of port': in the one case the needy classes are protected from extortion; in the other travellers are protected from pirates. Should it happen that any family or any industry see fit to claim the sanction of a court of justice, it does not at all follow that such court would announce, still less create, a law for itself: on the contrary, it would do exactly what our co rts do, and what they did to a greater extent before statute law largely replaced common law-it would declare the law, or adopt the customary law, local or general, as ascertained on evidence. This is only another way of saying that in most matters China is governed by the customs of ancestors, or common law; that the common law is administered by the people themselves; and that the State (unless when specially invited) only steps in to prevent a breach of the peace, such interferences rarely extending beyond persons holding official rank for any other reason than this last, It is a question whether liberty in any country, even in our own, has ever advanced beyond this stage. An eloquent prelate about twenty years ago created some sensation by his remark in the House of Lords that he would rather see England free than England sober': there is in the same way a certain free trade in

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morals and religion in China (except where the ancient filial and ancestral duties are concerned), and her rulers have always preferred to see China free than China educated,' so far as interference with family life is concerned.

According to cherished tradition—which, however, the bestinformed Chinese do not take too seriously-the most ancient monarchs maintained order by inculcating the principles of propriety, only introducing punishments occasionally: even then it was usually found sufficient to imagine the punishment, and to attire prisoners in a singular garb supposed to correspond with this or that penalty : thus those by way of being branded wore black hats ; those to be deprived of their noses red trousers ; those condemned to sliced knee-caps, black coats ; those to be castrated, coloured shoes; those to be decapitated, petticoats and no collar; and so on.

From the very earliest times banishment was resorted to. Under extenuating circumstances the principle of ransoming punishment for a money payment was admitted ; and to this day the same thing is allowed, at least in theory, though in practice it has a good deal fallen off. But even so far back as 230 B.C. a wellknown Chinese philosopher, who took a pessimistic view of human nature, exposed in his chapter on Law the fallacy of this view of ancient leniency: he said:

'It is evident crime went on then as now, else there would have been no prisoners liable to these severe nominal punishments. The principle is a false one, moreover. If you are going to abolish death for murder, and mutilation for injuries done, how are you going to make the people dread? The great thing is to prevent crime ; to condone it is to nourish wrong-doing. All this nonsense about pictorial punishments is but a latter-day protest against the cruel and capricious excesses of modern times. Rewards for good, punishments for evil, the principle is the same; uncertainty and inconsistency are the only bane. Consequently a good government is always a strict one, and a bad government is always a lax one. The real meaning of the much-quoted ancient tradition about pictorial chastisements is that punishments were always figured or pictured after the tao of Heaven.' Here we have a Chinese philosopher, whose works are still extant, laying down 2,200 years ago what is practically Jeremy Bentham's doctrine of pleasures and pains. He also alludes to the principles of justice recommended by the great Taoist apostle Lao-tsz who lived three centuries before him, and in such a way as to suggest that he must have been familiar with Lao-tsz' writings.

Although competent critics are agreed that precise dates in Chinese history cannot be ascertained further back than 841 B. C., there is no reason to doubt the main facts recorded in their chronicles,

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Tszch'an's Law Code.

Shuh

Tsin.

especially when these same facts are persistently cited in various connexions, in works of different classes, and by each successive dynasty. Thus about 950 B. C., 150 years after the establishment of a new dynasty, but when times had become degenerate once more, the Emperor decided that law reform was necessary in order to maintain proper order amongst the hundred families,' as the Chinese people are still collectively termed. Dr. Legge gives a full translation of this ancient code in the fifth section of his Chinese Classics (History Book, or Shu-King). As to the second historical code, during the lifetime of the rival philosophers Lao-tsz and Confucius, that is towards the end of the sixth century before Christ, at a time when imperial China was about to break up into a collection of warring vassal states, the prime minister of one of these states, who was a near relative of the reigning duke, and also an intimate friend of Confucius, for the first time in history had the laws cast in metal for the information of the people. The premier of a neighbouring state disapproved of this action as a dangerous innovation calculated to make the ignorant people look to the fixed letter of the law instead of abiding by the ancient principles of propriety, as declared on the merits of each case after each case had occurred; in other words, instead of accepting the themis, diké, or inspired judgment of the magistrate. Even the radical philosopher Lao-tsz had always preached the doctrine of keeping the machinery or 'implements of State concealed from the vulgar eye; and in this particular instance he was supported by Confucius, who argued that the standard of right and wrong would henceforth infallibly be transferred from the ruler's conscience to the written law. He was full of admiration for the innovator on other grounds, but not on this one ; and he outlived him seventeen years. This event of defining the law publicly was considered so important that dates were at that time occasionally calculated from the year of the casting of the laws '; just as the Romans used to count juridically from the ' year of the Twelve Tables,' which were cast or engraved upon metal about eighty years later than their Chinese prototype. These laconic Western laws, the written foundation of Roman jurisprudence, just as the Chinese tripod laws may be termed the remote basis of existing Eastern codes, exemplify very plainly the two different casts of mind in East and West. The Roman laws dealt with proceedings in a civil suit; action by wager; slavery for debt ; the absolute power of fathers over children and slaves; inheritances, testaments, women's position, and tutorships; ownership, prescription, and transfer ; easements; crimes against person and property, the lex talionis, lampoons, the rate of interest, and false witness; appeal from the judge to the people; cost of funerals; caste marriages; pledges for sacrificial debts, and so on. Nearly all these matters were either abandoned to the jurisdiction of the family, or were ignored by the earliest Chinese legislators, though several of them find a place in later codes. So far as we can judge by more modern categories of the quality of ancient Chinese offences, they seem to have been in the great majority of cases treason, robbery, theft, arson; or official pilfering and bribery; and the only questions for the judge were whether to execute, mutilate, or flog; for the ruler how to secure justice, see that the punishment fit the crime, and stave off Nature's wrath by making it the interest of his judges to be just. In those days there was a popular saying that 'coffin-makers always like a plague,' meaning that 'the policeman likes a good case'; and in the same way it was argued that if the central government, in its anxiety for tranquillity, encouraged those local authorities who exhibited the greatest zeal in securing convictions, the inevitable result would be to discourage the upright men who worked honestly for the people's interest. As with our own law, no child under seven years of age could be held guilty of or be punished for a felony: this merciful provision was extended by the ancient Chinese legislators to old persons of eighty and upwards.

There were two other prime ministers of the fourth century before Christ who made for themselves lasting reputations as legislators. One instituted a new land system, very like that Li K'wei proposed for China by Sir Robert Hart two years ago, under of Wei. which every available acre was worked out for adequate but fair taxation. He also collected into six books or main heads all that was best in the laws of the different feudal states, and composed therefrom a work styled the 'Legal Classic,' which may be compared with the Roman Institutes of Gaius discovered at Verona nearly a century ago by Niebuhr. Most of these Chinese laws were connected with robbery, the lighter offences being roguery, getting over city walls, gambling, borrowing, dishonesty, lewdness and extravagance, transgressing the king's commands, &c. This work was carried to the powerful kingdom which 150 years later conquered the whole of China by a young man who, like an ancient Bismarck, reorganized, developed,

', Wei Yang and became premier in that kingdom, where it was adopted as of Ts'in. a kind of code, but with considerable additions in the direction of cruelty. It is really this code which, in a modified form, is at the root of all later Chinese law of the positive kind. In spite of his great services to this rising State, the chancellor in question made enemies by his unrelenting thoroughness, and was in the end put

VOL. XXII.

P

Han Fei

tsz.

to death on the accession of a new king he had offended whilst yet Shen Pul- a mere prince or heir-apparent. The other man is often called the hai,

* Chinese Draco,' on account of the extreme severity of his laws; in addition to which he was a philosopher of the Taoist school ; and, indeed, at this time there can be no doubt that such precise philosophical notions as the Chinese were beginning to have upon the political branch of law were drawn from the stern and radical Lao-tsz rather than from the courtly and conservative Confucius: but that does not mean very much, for it was then the complaint of both these philosophers that men went on fighting for power and personal interest, totally oblivious of the prophets who were crying out in the wilderness for man's salvation through propriety and right.

Yet another Taoist philosopher and severe lawyer (who has left some of his works behind him) sought office under the same powerful revolutionary State one century later than the above two

events : this was just when the conquest of China was beginning; Li Sz. but the jealousy of the then chancellor of that rising kingdom,

who poisoned his guest and rival, prevented the lawyer in question from having any permanent practical influence upon China's destinies. It is curious to notice, however, that most prime ministers of minor kingdoms were introduced from other states; and this fact, may possibly have something to do with the modern rule that no civilian can serve in his own province.

All that bas preceded refers to the period anterior to the great revolution of the third century before Christ, to the destruction of literature in 213 B.C., and to the founding of centralized absolutism much as it exists to-day. In those good old days, though the punishments were cruel, there were none of the more modern lingering tortures; nor were relatives of a criminal punished with him, though it appears that in very ancient times at least a threat of this kind had been made. Doubtful cases were tried in public, and the benefit of doubt was conceded. Moreover, even mutilations were coupled with, or excused by, a kind of compassionate utility: thus the branded were made gate-keepers; those deprived of a nose sent to serve as frontier pickets; those without feet, and therefore unable to chase, looked after valuable wild game as park-keepers; those whose virility was cut off tended the female apartments; whilst the unmutilated convicts performed gang-work. It was one of Sir James Stephen's favourite sayings in 1876 that, as material civilization advanced and we became more comfortable, meu grew less and less inclined to make their fellow-creatures, and even their animals, more miserable than was absolutely necessary. Without in any way attempting to palliate cruelty, I may point

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