Travels in China Part 19

4. The Court for regulating military affairs.

5. The Tribunal of Justice.

6. The Board of Works.

These public functionaries resolve upon, recommend, and report to the Emperor, all matters belonging to their separate jurisdictions, who, with the advice of his ordinary and, if considered to be necessary, of his extraordinary council, affirms, amends, or rejects their decrees.

For this purpose, the late Emperor never omitted to give regular audience in the great hall of the palace every morning at the hours of four or five o'clock. Subordinate to these supreme courts held in the capital, are others of similar const.i.tution established in the different provinces and great cities of the empire, each of which corresponds with its princ.i.p.al in Pekin.

It would far exceed the limits of the present work, were I to enter into a detail of their code of laws, which indeed I am not sufficiently prepared to do. They are published for the use of the subject, in the plainest characters that the language will admit, making sixteen small volumes, a copy of which is now in England; and I am encouraged to hold out a reasonable hope, that this compendium of the laws of China may, ere long, appear in an able and faithful English translation, which will explain, more than all the volumes that have hitherto been written on the subject of China, in what manner a ma.s.s of people, more than the double of that which is found in all Europe, has been kept together through so many ages in one bond of union. This work[23] on the laws of China, for perspicuity and method, may justly be compared with Blackstone's Commentaries on the Laws of England. It not only contains the laws arranged under their respective heads, but to every law is added a short commentary and a case.

[23] It is called the _Ta-tchin Leu-Lee_, the laws and inst.i.tutes under the dynasty _Ta-tchin_, which is the name a.s.sumed by the present family on the throne.

I have been a.s.sured, on the best authority, that the laws of China define, in the most distinct and perspicuous manner, almost every shade of criminal offences, and the punishment awarded to each crime: that the greatest care appears to have been taken in constructing this scale of crimes and punishments; that they are very far from being sanguinary: and that if the practice was equal to the theory, few nations could boast of a more mild, and, at the same time, a more efficacious dispensation of justice. Of all the despotic governments existing, there is certainly none where the life of man is held so sacred as in the laws of China. A murder is never overlooked, except in the horrid practice of exposing infants: nor dares the Emperor himself, all-powerful as he is, to take away the life of the meanest subject, without the formality at least of a regular process, though, as will be seen in the case of the late prime minister of _Kien-Long_, the chance of escaping must be very slender, where he himself becomes the accuser. So tenaciously however do they adhere to that solemn declaration of G.o.d delivered to Noah--"At the hand of every man's brother will I require the life of man. Whoso sheddeth man's blood, by man shall his blood be shed,"--that the good intention is oftentimes defeated by requiring, as I have elsewhere observed, from the person last seen in company with one who may have received a mortal wound, or who may have died suddenly, a circ.u.mstantial account, supported by evidence, in what manner his death was occasioned.

In attempting to proportion punishments to the degrees of crimes, indeed of awarding the same punishment for stealing a loaf of bread and taking away the life of man, the Chinese legislators, according to our notions, seem to have made too little distinction between accidental manslaughter and premeditated murder. To const.i.tute the crime, it is not necessary to prove the intention or malice aforethought; for though want of intention palliates the offence, and consequently mitigates the punishment, yet it never entirely excuses the offender. If a man should kill another by an unforeseen and unavoidable accident, his life is forfeited by the law, and however favourable the circ.u.mstances may appear in behalf of the criminal, the Emperor alone is invested with the power of remitting the sentence, a power which he very rarely if ever exercises to the extent of a full pardon but, on many occasions, to a mitigation of the punishment awarded by law. Strictly speaking, no sentence of death can be carried into execution until it has been ratified by the monarch. Yet in state crimes, or in acts of great atrocity, the viceroy of a province sometimes takes upon himself to order summary punishment, and prompt execution has been inflicted on foreign criminals at Canton when guilty only of homicide. Thus, about the beginning of the last century, a man belonging to Captain Shelvocke had the misfortune to kill a Chinese on the river. The corpse was laid before the door of the English factory, and the first person that came out, who happened to be one of the supercargoes, was seized and carried as a prisoner into the city, nor would they consent to his release till the criminal was given up, whom, after a short inquiry, they strangled. The recent affair of the unfortunate gunner is well known. An affray happened in Macao a few years ago, in which a Chinese was killed by the Portuguese. A peremptory demand was made for one of the latter, to expiate the death of the former. The government of this place, either unable or unwilling to fix on the delinquent, proposed terms of compromise, which were rejected and force was threatened to be used. There happened to be a merchant from Manilla then residing at Macao, a man of excellent character, who had long carried on a commerce between the two ports. This unfortunate man was selected to be the innocent victim to appease the rigour of Chinese justice, and he was immediately strangled[24].

[24] Various accidents having happened at different times to Chinese subjects in the port of Canton, which have generally led to disagreeable discussions with the Chinese government, the supercargoes of the East India Company thought proper, on a late occasion of a person being wounded by a shot from a British ship of war, to make application for an extract from the criminal code of laws relating to homicide, in order to have the same translated into English, and made public. This extract consisted of the following articles:

1. A man who kills another on the supposition of theft, shall be strangled, according to the law of homicide committed in an affray.

2. A man who fires at another with a musquet, and kills him thereby, shall be beheaded, as in cases of wilful murder. If the sufferer be wounded, but not mortally, the offender shall be sent into exile.

3. A man who puts to death a criminal who had been apprehended, and made no resistance, shall be strangled, according to the law against homicide committed in an affray.

4. A man who falsely accuses an innocent person of theft (in cases of greatest criminality) is guilty of a capital offence; in all other cases the offenders, whether princ.i.p.als or accessaries, shall be sent into exile.

5. A man who wounds another unintentionally shall be tried according to the law respecting blows given in an affray, and the punishment rendered more or less severe, according to the degree of injury sustained.

6. A man who, intoxicated with liquor, commits outrages against the laws, shall be exiled to a desert country, there to remain in a state of servitude.

In this clear and decisive manner are punishments awarded for every cla.s.s of crimes committed in society; and it was communicated to the English factory from the viceroy, that on no consideration was it left in the breast of the judge to extenuate or to exaggerate the sentence, whatever might be the rank, character, or station of the delinquent.

The process of every trial for criminal offences, of which the punishment is capital, must be transmitted to Pekin, and submitted to the impartial eye of the supreme tribunal of justice, which affirms or alters, according to the nature of the case. And where any peculiar circ.u.mstances appear in favour of the accused, an order for revising the sentence is recommended to the Emperor, who, in such cases, either amends it himself, or directs the proceedings to be returned to the provincial court, with the sentiments of the supreme tribunal on the case. The proceedings are then revised, and if the circ.u.mstances are found to apply to the suggestions of the high court, they alter or modify their former sentence accordingly[25].

[25] The following law case, which is literally translated, from a volume of reports of trials, published in the present reign of _Kia-King_, and with which I have been favoured by a friend (who was himself the translator), will serve to shew the mode of proceeding in criminal matters of the provincial courts of judicature. The circ.u.mstances of the transaction appear to have been enquired into fairly and impartially, and no pains spared to ascertain the exact degree of criminality. Being given to me about the time when the trial took place of Smith, for the murder of the supposed _Hammersmith ghost_, I was forcibly struck with the remarkable coincidence of the two cases, and with the almost identical defence set up by the Chinese and the English prisoners, and on that account it excited more interest than perhaps it might otherwise be considered to be ent.i.tled to.

_Translation of an Extract from a Collection of Chinese Law Reports, being the Trial, Appeal, and Sentence upon an Indictment for Homicide by Gun firing._

At a criminal court held in the province of Fo-kien, upon an indictment for shooting, and mortally wounding a relation; setting forth, that _She-fo-pao_, native of the city of _Fo-ngan-sien_, did fire a gun, and by mischance, wound _Vang-yung-man_, so that he died thereof.

The case was originally reported, as follows, by _Vu-se-Kung_, sub-viceroy of the province of Fo-kien:

The accused _She-fo-pao_, and the deceased _Vang-yung-man_, were of different families, but connected by marriage, were well known to each other, and there had always been a good understanding between them.

In the course of the first moon, of the 25th year of _Kien-long_, _She-fo-pao_ cultivated a farm on the brow of a hill belonging to _Chin-se-kien_, and which lay in the vicinity of certain lands cultivated by _Vang-yung-man_ and _Vang-ky-hao_, inasmuch as that the fields of _Vang-yung-man_ lay on the left of those of _She-fo-pao_, which were in the center, and those of _Vang-ky-hao_ on the right side of the declivity of the hill. It occurred that on the 7th day of the 9th moon of the same year, _She-fo-pao_ observing the corn in his fields to be nearly ripe, was apprehensive that thieves might find an opportunity of stealing the grain; and being aware, at the same time, of the danger which existed on those hills from wolves and tygers, armed himself with a musquet, and went that night alone to the spot, in order to watch the corn, and seated himself in a convenient place on the side of the hill.

It happened that _Vang-ky-hao_ went that day to the house of _Vang-yung-man_, in order that they might go together to keep watch over the corn in their respective fields. However _Vang-yung-tong_ the elder brother of _Vang-yung-man_, conceiving it to be yet early, detained them to drink tea, and smoke tobacco until the second watch[26] of the night, when they parted from him, and proceeded on their expedition, provided with large sticks for defence.

_Vang-ky-hao_ having occasion to stop for a short time upon the road, the other _Vang-yung-man_ went on before, until he reached the boundary of the fields watched by _She-fo-pao_.

_She-fo-pao_, on hearing a rustling noise among the corn, and perceiving the shadow of a person through the obscurity of the night, immediately hailed him, but the wind blowing very fresh, he did not hear any reply.

_She-fo-pao_ then took alarm, on the suspicion that the sound proceeded from thieves, or else from wild beasts, and lighting the match-lock, which he held in his hand, fired it off, in order to repel the invaders whoever they might be.

_Vang-yung-man_ was wounded by the shot in the head, cheeks, neck, and shoulder, and instantly fell to the ground. _Vang-ky-hao_ hearing the explosion, hastened forward, and called aloud to enquire who had fired the gun. The other heard the voice, and going to the place from whence it proceeded, then learned whom he had wounded by the mischance. The wounds of _Vang-yung-man_ being mortal, he expired after a very short interval of time had elapsed.

_She-fo-pao_, being repeatedly examined by the magistrate, acknowledged the fact without reserve, and, upon the strictest investigation and enquiry being entered upon, deposed, That it was really during the obscurity of the night that he had ascended the hill, in order to watch the corn, and on hearing a noise proceed from a quarter of the field that was extremely dark, and in which the shadow of some person was discernable, he had called out, but received no answer:--That the suspicion then arose in his mind, that they were either thieves or wild beasts, and alarmed him for the security of his person, being then entirely alone, he therefore fired the gun to repel the danger, and wounded _Vang-yung-man_ by mischance, so that he afterwards died.

That he, the deponent, was not actuated by any other motive or intention on this occasion, nor desirous of causing the death of an individual.

The relations of the deceased being then examined, give a corresponding evidence, and raised no doubts in other respects to the truth of the above deposition. In consideration, therefore, hereof it appears that, although _She-fo-pao_ is guilty of homicide by gun-firing, yet, since he was upon the watch over the fields, in the darkness of the night, and perceived the shadow of a man, whom he hailed, and from whom he received no answer, and had in consequence apprehended the approach of thieves or wild beasts, to prevent which, he fired the gun that occasioned the wounds whereof the man is now dead--It follows, that there did not exist any premeditated intention of murder.--The act of which _She-fo-pao_ stands convicted may be, therefore, ranked under the article of homicide committed in an affray, and the sentence accordingly is, to be strangled upon the next ensuing general execution or gaol delivery.

The above report being transmitted to the supreme criminal tribunal at Pekin,--They rejoin,

That, on investigation of the laws we find it ordained, that homicide by gun-firing shall receive a sentence conformable to the law against intentional murder; and that the law against intentional murder gives a sentence of decapitation on the next ensuing public execution, or gaol delivery. It is likewise found to be ordained by law, that whoever shall unwarily draw a bow, and shoot an arrow towards fields or tenements, so that any person unperceived therein shall be wounded, and die therefrom, the offender shall receive a hundred blows with the bamboo, and be banished to the distance of three thousands lys (near a thousand miles).

In the case now before us, _She-fo-pao_, being armed with a musquet, goes to watch the corn, hears a noise in the fields, and calls aloud, but, receiving no answer, suspects it to proceed from thieves or wild beasts, and fires the gun, by which _Vang-yung-man_ was wounded, and is now dead. But in the deposition given in by the defendant, the declaration that he saw the shadow of some person does not accord with the suspicion afterwards expressed, that the noise arose from wild beasts. If, in truth, he distinguished traces of a man, at the time of his calling out, notwithstanding that the violence of the wind prevented his hearing the reply, _She-fo-pao_ had ocular proof of the reality of the person from the shadow he had seen. Continuing our investigation, we have further to notice, that when _She-fo-pao_ took his station in order to guard the middle ground, _Vang-yung-man_ was engaged in watching his fields in a similar manner, and would have occasion to go near the limits of the middle ground in his way to his own farm, and which could not be far removed from the path leading to the middle ground; on which account it behoved _She-fo-pao_ to hail the person repeatedly, previous to the firing of the gun, whose effect would be instantaneous, and occasion the death of the unknown person from whom the sound proceeded.

_She-fo-pao_ not having repeatedly hailed the person from whom the noise had arisen to disturb him, and proceeding to the last extremity upon the first impulse or alarm, are grounds for suspecting that there exists a fallacy and disguise in the testimony given in this affair, in which case, a sentence conformable to the law against homicide, committed in an affray, would afford a punishment unequal and inadequate to the possible aggravation of the offence.

On the other hand, it would appear, in confirmation of his statement, that these fields were, according to the custom of the neighbouring villages, understood to be guarded at that time in a the manner aforesaid, and that circ.u.mstance proving true, the accident that followed might still be considered solely as the effect of apprehension of wild beasts by night, inducing the accused to fire towards fields or tenements, so as to wound a man mortally by the mischance.

Should a strict examination admit of this interpretation of the offence, the sentence may be awarded according to the law, immediately applicable to the subject, and not in conformity with the law against homicide committed in an affray. As the life or death of the offender rests on the preference to be shewn towards either of those expositions of the case, it is resolved to hold any immediate decision as premature, and we issue our directions to the said sub-viceroy to revise the prior decision; and, with the a.s.sistance of a renewed investigation, finally to determine and report to us the sentence which he may conceive most agreeable to the spirit of our laws.

After a second investigation, and reconsideration of the affair, the sub-viceroy sent in the following report to the supreme tribunal: Pursuant to the order for revisal issued by the supreme criminal tribunal, _She-fo-pao_ has been again examined at the bar, and deposes, That on hearing a noise in the corn fields, he conceived it to proceed from thieves, and called out in consequence, but, receiving no answer, and finding the noise gradually to approach him, he then suspected it to have arisen from a wolf or tyger; and, in the alarm thus excited for his personal safety, had fired the gun, by which _Vang-yung-man_ had been mortally wounded; That, since the event happened in the second watch of the night, after the moon had set, and while clouds obscured the faint light of the stars, it was really a moment of impenetrable darkness; and that it was only at the distance of a few paces that he distinguished the approach of the sound that had alarmed him, but, in fact, had never seen any shadow or traces whatsoever; That he had perceived any traces or shadow of that description, he would not have ceased to call out, though he had failed to receive an answer the first time, nor would he have had the temerity to fire the gun, and render himself guilty of murder.

That, on the preceding examination, the severity and rigour of the enquiry regarding the grounds upon which he suspected the approach of thieves, so as to induce him to fire, had overcome him with fear, being a countryman unused to similar proceedings, and produced the apparent incongruity in his deposition, but that the true meaning and intent was to express his absolute uncertainty whether the alarm arose from thieves or wild beasts and nothing farther, and that from such deposition he had never intentionally swerved in the course of the investigation.

According, therefore, to the amendment suggested by the supreme tribunal, it appears indeed, that when the noise was first perceived in the fields, _She-fo-pao_ had called out, and on being prevented by the wind from hearing a reply, had taken alarm as aforesaid.

And whereas it was likewise deposed by _She-fo-pao_, That the grain being ripe at that season, the stems were exceeding high and strong, so as to render it difficult to walk amongst them, it seems that _Vang-yung-man_, in walking through the corn, had produced a rustling noise very audible to _She-fo-pao_, who was sitting on the declivity of the hill, and in a direction in which the wind favoured the progress of the sound; but when the latter called out, the wind, on the contrary, prevented him from being heard, and consequently from receiving an answer; this mischance, therefore, gave rise to his suspicion of the approach of wild beasts, which appears to have been the sole and undisguised motive for firing the gun.

This statement of facts being narrowly investigated, in compliance with the supreme tribunal's order for revisal, may be confided in as accurate, and worthy of credit; the result, therefore, is that the offender during the darkness of the night, and under the apprehension of the approach of a wolf or tyger, had fired a musquet in a spot frequented by men, and had mortally wounded a man by the mischance, which corresponds with the law suggested in the order for revisal issued by the supreme tribunal; namely, that law against an offender who should unwarily draw a bow and shoot an arrow towards fields or tenements, so that any person unperceived therein should be wounded and die therefrom.

The prior decision, conformably to the law against homicide committed in an affray, subsequent investigation does not confirm; and _She-fo-pao_ is, therefore, only punishable with banishment.

This second report being received by the supreme criminal tribunal, they declare that,

The sentence having been altered on a revision by the sub-viceroy, and rendered conformable to the law, which ordains that, whoever shall unwarily draw a bow and shoot an arrow towards fields or tenements, so that any person unperceived therein may be wounded, and die therefrom, the offender shall receive a hundred blows with the bamboo, and suffer banishment to the distance of 3000 lys.

We confirm the sentence of a hundred blows of the bamboo, and banishment to the distance of 3000 lys; and further prescribe, that ten ounces of silver (3_l._ 6_s._ 3_d._) shall be paid by the offender to the relations of the deceased for the expences of burial.

The sentence, being thus p.r.o.nounced on the 19th day of the 5th moon, of the 27th year of _Kien-Long_, received the Imperial sanction on the 21st day of the same moon, in the following words: Pursuant to sentence be this obeyed.

KHIN-TSE.