out that in primitive conditions it is difficult to make wrongdoers more uncomfortable than ordinary folk without causing pain or shame. A naked savage cannot be deprived of anything but the means of gratifying his appetites. Only twenty-five years ago the Foreign Office called upon His Majesty's Consul at Canton for some remarks about torture, and these remarks are still on record in the China Department. They were in effect:

'When a free man lives in a putrid atmosphere on repulsive food, eaten up by vermin, his body notched and distorted by painful labour, without comforts, pleasures, or distractions of any kind, as indeed from our point of view actually do the majority of the Chinese poor, it is difficult to make a prison more uncomfortable for the convict than is his own house, except by imposing still greater discomforts than he is born to upon his person and freedom of movement.'

But there are abundant maxims and sayings, notwithstanding, that prove the existence of merciful feeling in the ancient rulers. One, quoted century by century to this day, was: Rather let a rogue escape than risk killing an innocent man.' Whilst moderate justice was considered appropriate for a normal political condition, it was held a good political maxim to apply the law in a simpler and easier way when new systems of rule were being introduced; and, on the other hand, it was a wise precaution to be exceptionally severe when the State showed signs of anarchy. Perhaps the oldest maxim of all is: 'In punishment be intelligently compassionate.' In hopelessly degenerate times the radical philosopher Lao-tsz was in favour of the fewest and simplest laws; but he insisted on prompt, secret, and effective application of punishment by properly qualified officials. Confucius (a little later) has left several striking remarks on record. He says: As to convicts, I go with the rest; we must necessarily condemn, if only in order to avoid condemning still more of them later on.' Again, 'The ancients understood better than ourselves the art of preventing crime; now the best we can do is to avoid punishing crime unjustly. The ancient magistrates always hoped to save a prisoner's life now we seek to prove it forfeit. Better let a real criminal go free, however, than slay an innocent man.' 'I allow one generation to a new dynasty for the gradual introduction of benevolent rule, and I allow a hundred years to abolish killing and mutilation altogether.' 'A benevolent ruler must have courage too; his rectitude manifests itself in preventing crime.' 'Unjust punishment damages the administration, and a bad administration touches each man's person.' 'Government must strictly execute its own terms.' Two centuries later than Confucius, Mencius has a few

remarks to make: he allows considerable latitude, and even indulgence, to a ruler so long as that ruler keeps in sympathetic touch with his people; but he says, 'No truly benevolent ruler will slay an innocent man, even to make secure his own rule.'

The great Chinese revolution of 2,100 years ago introduced several new crimes as well as many monstrous punishments. The chief intellectual agent in it was the chancellor, mentioned above, who poisoned his visitor. It was at his recommendation made an offence punishable with death to conceal books, or to own any except the few agricultural and scientific works which were not on the 'Index Prohibitory'; fearful tortures were introduced, and three generations of relatives were involved in one man's political crime. The name for 'Emperor,' now still in use, was then first introduced, and a homogeneous system of administration in all Ts'in Shi important matters was effectively established all over China. But Hwang-ti. though this powerful innovator was an able man, his methods were altogether too tyrannical, and after his death in 210 B.C., and then after eight more years of very chivalrous and picturesque fighting, a new and permanent dynasty was founded on practically the same lines: ever since that things have remained very much. in statu quo, even down to our own days.

Ti.

In accordance with one of the ancient politico-legal maxims just mentioned, the new dispensation began by abolishing the whole network of harassing law, and by enacting three simple rules for the orderly government of the Empire; to wit, death for homicide; compensation and imprisonment for wounds and robbery; all else being left to the people themselves. This was called the Tripartite Bargain with the Elders of the People,' and the 'all else left to the people' still holds good, whether intentionally Han Kao or no, in a measure to this day. The frank and tactful geniality of the new ruler's personality has probably more to do with the credit his memory still enjoys than the intrinsic wisdom of his summary legal methods; but, however that may be, his three short rules' have established a reputation in China little short of that achieved by King John's Magna Charta amongst ourselves. But the Chinese are and always have been very grateful to their rulers for small mercies, and they have always been found ready to idealize any gracious sovereign acts. The Emperor, under the Siao Ho. guidance of an astute chancellor, rightly refrained from introducing new measures, and was probably only giving fuller effect to ancient laws and customs when he granted this short charter; which was apparently all that King John did, except that, unlike the Chinese ruler, the English king had only the grace to do it under compulsion. The vicarious punishment of relatives

Ts'an.

was abolished, but official superiors and witnesses were obliged to denounce offenders. But the much-vaunted three simple rules were soon found insufficient for practical use when things quieted down; when the sword gave way to the ploughshare; and when the new dynasty felt secure in its power. The chancellor in question, who (as also his successor in office) professed the 'masterly Ts'ao inactivity' principles preached 300 years before that by the great Taoist philosopher Lao-tsz, found it necessary to re-introduce vicarious punishments for treason, and to select as many of the general laws of the revolutionary dynasty just ousted as were suited to the people's old traditions, and also to their changed position; he proceeded to construct therefrom a code in nine heads (being in effect the six heads of the 'Legal Classic' plus three new ones), which code, subject of course to extensive alterations, has from dynasty to dynasty always served as the basis of Chinese law; just as the Corpus Juris of the Christian Emperor Justinian forms in a way the practical basis of European law as a whole, affecting indirectly even the English and Scotch statutory laws, and in some instances the decisions under our common law. We have already seen that revolutionary China had borrowed its Institutes of Law from an active legal author in one of the feudal states; and thus we have an unbroken historical chain extending back from our own time for about 3,000 years, with no admixture whatever of foreign notions, or, at all events, of foreign law. The revolutionary law against concealing books was abolished by the founder's son, and literature was soon restored to its former influence, after a quarter of a century of extinction.

Now we come to a very prominent turning-point in Chinese legal history. The founder, his usurping empress, and his strictly legitimate son by her had all passed away; the obnoxious law against concealing books had, as we have said, been repealed, and another son, born in less honourable wedlock, sat on the imperial throne. On account of his calm, philosophic, and humane temperament, he Han Wên is often styled by Europeans the Marcus Aurelius of China. His Ti. first act was to issue the following edict: Enforcements of the law are executive acts the object of which is to prevent violence and assist the well-disposed: to visit the sins of convicted criminals on innocent parents, spouses, brothers, sisters, and children seems to me most unreasonable. I wish for a report.' His counsellors, after due deliberation, advised that it had hitherto been found good policy to make people feel uncomfortable in advance, by visiting upon them the sins of their kinsmen after crimes committed, and that it would be better not to make any change. A second decree ran: When the law is meet, the people are honest;

Ti.

when punishment is appropriate, the people accept it without murmur. Moreover, officials are supposed to act as guides: if, instead of guiding the people, they punish them irregularly, they become tyrants. I wish for a further report.' On this the counsellors gave way: 'Your Majesty's merciful will covers far more ground than we can presume to understand the necessity for.' To illustrate the continuity of Chinese history, it may be mentioned that this edict of 2,100 years ago is still on record; is quite intelligible to modern ears; and still forms part of the stock legal diction, just as does the celebrated declaration of the English barons upon the subject of legitimacy: We will not change the laws of England which have hitherto been accepted and approved by our ancestors.'

6

But, if we inquire closer into Chinese history, we find that this picturesque event is another case of idealizing: not to mention his grandson and most illustrious successor, whose financial straits and palace intrigues led him to enact many hasty and cruel laws, that very Marcus Aurelius' himself was, during a subsequent rebellion, unfortunately induced to depart from his own noble Han Wu principles. There was, however, one other cause célèbre during the reign of this humane Emperor: it happened after he had been on the throne for nearly twenty-five years, and the anecdote is as well known in China as the story of Brutus and his condemned sons Titus and Tiberius is known in Europe. A Chinese physician and local official was summoned to court for peculation, a crime which rendered him liable, under the new code as under the older ones, to the penalty of mutilation: having five daughters, but no son, he bewailed the luckless fate which deprived him of a representative capable of sacrificing himself upon the altar of filial duty in accordance with the maxim 'A father's debt the son repays.' His youngest daughter, stung by these reproaches, and knowing that her father was the victim of private spite, insisted on accompanying her parent to the imperial court, where she pleaded his case before the Emperor with such eloquence and effect that his Majesty at once decided to abolish as barbarous the punishment of mutilation. Hard labour at the Great Wall, shaving the head, the collar or yoke, bastinado and flogging,—these were substituted for mutilation, and really form the nucleus of the modern system.

These and similar imperial orders were, it must be confessed, often rather symptoms of growing change than definite registrations of permanent radical improvements; for, owing to China's enormous size, and to the apathy of local rulers, satraps, and magistrates, the imperial decrees, unless repeated and persisted with, seem often to have remained a dead letter, especially where only the interests of

the masses were concerned, and where no powerful influence was at work to insist on following up the order. The first of Chinese Sz-ma true historians (whose great work has recently been translated into Ts'ien. French by Professor Chavannes) was himself cruelly deprived of his manhood by the grandson just mentioned of this humane Emperor, and this for the purely technical offence of remonstrating with the monarch in favour of a defeated general; and he leaves on record a pathetic letter to a friend bewailing in resigned terms his miserable fate, and characterizing himself as 'what's left from the knife and the saw.' It was this Emperor, Han Wu too, who encouraged informers and delators and developed the idea Ti. of forcing out confessions under torture, a process which I cannot find to have existed in more ancient times. Still, notwithstanding the caprice or weakness of this or that ruler, the progress in the direction of reason and mercy was now fairly steady: doubtful cases were reheard at the capital; the local authorities were urged to use prompt dispatch, and not to confine people too long upon mere suspicion; steps were taken to check the bribery of officials and the corruption of clerks and police; a growing disinclination to extort confessions under the lash or rack was manifested; fasting and solemn formalities were enjoined when the time for carrying out death sentences approached; the number of bastinado strokes administered was more than once reduced along the whole line of offences; in spite of the ever-growing additions to the law categories, earnest endeavours were made to simplify the law as much as possible; and generally, it may be stated that during the 400 years of Han dynasty rule (200 B. C. to A.D. 200) a steady advance took place in the direction of mildness. For many centuries after that the question of reintroducing the mutilation punishments came up for discussion; dynasty after dynasty secured the stag' (as the Chinese poets say when they refer to the contests for empire); and each reigning house naturally had its own special code, but always based on the same old general principles, modified to suit the exigencies of the times. There never were any surprises or rival doctrines in China, such as our Gavelkind in Kent, and BoroughEnglish in other parts of England, which flatly contradict the ordinary laws of descent and inheritance 1. Referring back now for light, we may be disposed to ignore the codes of the minor dynasties which only reigned for a generation, in favour of those of renowned houses which maintained the throne for centuries; but that would be a mistake each new dynasty of course assumed (and hoped)

1 Local rules of inheritance, &c. belong to private and patriarchal family customs which very rarely come before the imperial jurisdiction. See the present writer's 'Comparative Chinese Family Law,' 1878 (out of print).