« 前へ次へ »
judge to give effect to such circumstances of mitigation as may arise. To think of enumerating all those circumstances by anticipation in the law itself, and settling inflexibly the effect they shall have on the sentence, has always appeared to us to be mere foppery and childishness. In an arbitrary government, the judge is likely to be more merciful, as well as more just, than the legislator: and in a free state, the control of publick opinion has always been found sufficient to ensure his impartiality. It is not a little remarkable, however, that this exact adaptation of pains to offences, which, we have seen, is always attempted in ignorant, and abandoned in enlightened times, is very zealously recommended by no less a person than Mr.
Bentham, in his Princifies de Legis
dation, edited by M. Dumont; and that he even makes the want of it one of the most serious charges against the present system of jurisprudence in most of the European nations. We have formerly said a good deal upon this subject, in our review of that most ingenious publication; and shall only remark at present, that to determine exactly the point at which the danger of committing something to the discretion of the judge becomes less than that of tying him down by directions altogether inflexible, is one of the most difficult problems in the whole science of legislation, and which can only be resolved, in every particular country, by a thorough consideration of the character of the people, and the habits of their law officers. The third peculiarity which must strike a European, or at least the native of a free country, in perusing this Asiatick code, is the excessive and atrocious severity with which all offences against the government are avenged; and the keen and vindictive jealousy with which the most remote attack on the person or dignity of the emperour is repressed. Persons convicted of treasonable prac
tices, are to be put to death by slow and protracted torture, and all their male relations in the first degree indiscriminately beheaded; their female relations sold into slavery; and all their connexions residing in their family relentlessly put to death. All persons who at any time presume to walk, upon the roads set apart for the imperial journies, shall be seyerely punished If they intrude into the line of the imperial retinue, they shall suffer death; and the same if they enter any apartment of the palace set apart for the use of his majesty, or any of his near relations. Workmen employed in the palace shall receive a passport at entering, and deliver it back on their return. They shall be regularly counted as they pass out before sunset; and if any one remains behind, he shall be invariably put to death. Our attainder of blood is merciful and just, compared with these regulations. But the subjects of such a sovereign, are amply revenged by the fears in which such laws must originate. Another very remarkable feature in this code is the indiscriminate frequency of corporeal punishments. The bamboo is the great moral fianacea of China; and offences of all descriptions are punished, in every rank of society, by a certain quantity of flagellation. The highest officer in the state is whipped like a common pickpocket; and there are at least fifty clauses in this code, by which, for particular offences, a general officer is ordered to receive fifty lashes on his posteriors, and to continue in the command of the army. Those things sound strangely in our ears; and are, no doubt, aecompanied, in a certain degree, with that general debasement of character, which, according to our notions, must have existed to an enormous degree before they could be endured. The fact, however, probably is, that the degradation which attaches to a blow in modern Europe, is some
thing greater than its natural share of degradation; and that we are indebted to the peculiar institution of chivalry, for that generous and refined system of manners, which makes it worse than death for a gentleman either to receive a blow, or to be convicted of a falsehood. In China, they have no such delicacy. A blow is a bad thing in so far as it is painful, and no further; and, in a country where there seems to be absolutely no sense of honour, there is, perhaps, no punishment so equal and manageable. The truth is, that where the government is strong, and the police active and vigilant, it is a matter of no great consequence what be the character of punishment inflicted on individuals, so it be uniform and unvarying. Before we utterly despise the Chinese, however, for flogging their generals, it would be as well that we should cease to flog the brave men, who should share in the honour, as they do in the perils of our generals; and not aggravate the baseness of such a punishment by the inconsistency of confining it to that order of men, to whom it must be most intolerable. In some particular cases, the law of China allows the corporal punishment to be redeemed by a fine, at the rate of about 30s. for each blow. Such are the chief pecularitie that strike us on a general view of this code. We shall now proceed to make a brief and hasty abstract of such of its particular regulations as appear to us to be curious and important, either as affecting the general system of law, or as illustrating the character and condition of the people, There is no explanation given of the mode of originating prosecutions. All persons who come to the knowledge of a crime, are liable to severe punishment if they do not inform; and in all cases of theft and robbery, the soldiery and magistrates of the district are exposed to re
peated floggings, if they do not discover and convict the offenders. The accused person is committed to prison, apparently without any relief analagous to our bail; and is directed to be tortured to extort a confession, if the case appear suspicious; the torture, however, is not to be used to persons, privileged from their rank; nor to persons under 15, or above 70 years of age. It does not appear, whether the accused is allowed to be present at the examination of witnesses; but, after sentence is pronounced, he and his family are regularly brought into court to hear it; and may, if they please, appeal against it; in which case, the matter shall, in all cases, undergo a fresh examination by a higher tribunal. The merit of voluntary confession seems prodigiously overrated; for any one who comes to a magistrate, and freely confesses a crime before he has been charged with it, is entitled to a free pardon, provided it be a first offence. Persons under fifteen, or above seventy, or maimed, are allowed to redeem themselves from all but capital punishments, by a small fine. Under ten, and above eighty, even when capitally convicted, to be recommended to the clemency of the emperour. Under seven, and above ninety, to be punished for nothing but treason. By a merciful, but somewhat fantastick construction of these laws, it is enacted, that,
“Whoever is ascertained to be aged or infirm at the period of trial for any of. fence, shall be allowed the benefit of such plea, although he may not have attained the full age, or laboured under the alleged infirmity at the time the offence was committed.
“In any case of temporary banishment, the offender, on attaining the age, or becorning infirm as aforesaid, shall, in like manner, become, thereupon, entitled to the privilege of redeeming himself from further punishment. On the other hand, the privilege of youth may be pleaded when the age of the offender, at the time of committing the offence, did not exceed seven, ten, or fifteen years, whatever may be his age at the subsequent period of trial.” p. 25.
. All capital convicts to be execuoted at a particular period in the autumn; and not sooner than three days after the emperour has transmitted his ratification of the sentence. In certain rare cases, a person capitally convicted is allowed to redeem his life by payment of a sum, varying from about 4,000l. to *400l. according to his rank and ability. Women are allowed to wear two petticoats when bambooed, unless it be for adultery; and then they are only to have one. The wives of exiles must follow them to their place of banishment. * The following law, which is exemplified many times in the course of the work, seems to fix a very strange scale of ratio for official re‘sponsibility: * “In all cases of officers of government associated in one department or tribunal, and committing offences against the laws as a publick body, by false or erroneous decisions and investigations, the clerk of "the department or tribunal shall be punished as the principal offender; the puhishment of the several deputies, or exe•cutive officers, shall be less by one de-gree; that of the assessors less by another degree; and that of the presiding magistrate less by a third degree" p. 30.
* If the clerk be, as his name seems to imply, a proper ministerial officer, who is bound to obey the orders of his superiours, it is not easy to conceive any thing more unjust than such an enactment. * Accessaries shall suffer one degree less than principals. This is plain and rational: but the refining genius of the Chinese legislator has , thought it necessary to guard and perplex it by the following casuis'tical limitations. “when the relative situation of the parties engaged in the commission of one offence, creates a difference in their liability to punishment, the principals shall suffer as principals in the offence commit* VoI., v. - E.
ted by themselves; but the accessaries shall be punished as accessaries in the of. fence, of which they would themselves have been guilty, had they been in the place of the principal. As for instance; if a man engages a stranger to strike his elder brother, the younger brother shall be punished with ninety blows, and two years and a half banishment, for the of. fence of striking his elder; but the stranger shall be only punished with twenty blows, as in common cases of an assault. Also, if a younger relation induces a stranger to steal to the amount of ten leang or ounces of silver of the family property, he shall only be punished as wasting, or disposing of, without leave, the family property to that extent; whereas the stranger shall be punished as in common cases of theft.” p. 33.
Foreigners guilty of crimes within China, must answer for them according to the common law of the empire. There is no proper, hereditary nobility in China, except the descendants of some great Tartar princes, who still possess lands in Tartary. The emperour, however, can bestow nobility, with a remainder to heirs-male, to be resumed when he pleases: and, by law, those who have been exalted for rendering eminent services to the state, transmit their honours to the first three generations of their male descendants. In general, however, there is no nobility but that of office; and every magistrate, high or low, must be appointed by the emperour. Slavery is established by law; but a man, killing his slave intentionally, shall answer for it as for the death of a free man.
There is no proper priesthood in China, except the emperour and the magistrates, who perform all publick oblations The religion of Fo is tolerated; but no new convents can be established without the imperial li
cense; nor can any one become a
priest in that faith, without a similar permission Such priests are debar
-red from marrying; and are bound
to wear a particular habit. It is not quite clear whether the national religion is a species of deism, or whe
ther they worship different subordinate divinities under the name of the Spirits of Earth and Heaven, &c. Sir George Staunton is inclined to hold them vulgar polytheists; but admits that the missionaries always represent them as pure deists. The truth seems to be, that they have no religion, but a set of established solemnities. Degrees in literature are certainly granted to all persons pretending to publick offices, after examination by the magistrate and heads of tribunals; but there does not appear to be any establishment analagous to our universities. Sir George Staunton has printed, in the appendix, a curious edict of the present emperour, in answer to an application from some of his Tartar subjects, praying to have the means of obtaining literary degrees afforded them in Tartary, without putting them to the trouble of coming to Pekin for examination. His majesty, after a gracious preamble, is pleased to refuse the petition; and to recommend to the Tartar officers to “ instruct and exhort their sons to consider the art of riding and the vse of the bow as the most appropriate objects of their emulation, and which they cannot study and practise with too much assiduity.” In a country so extensive, and so extremely populous as China, it is natural to suppose that the government should be excessively jealous, both of any tumultuary movement among the people, and of any tendency to a usurpation of power on the part of its remote delegates. There is no part of the code, accordingly, more remarkable for severity, than that which treats of offences tending to excite any sort of commotion or assemblage, or of acts which might lead to the aggrandizement of any of its officers. The following affords a good specimen of the rigour which this jealousy has inspired. “If any officer belonging to any of the
departments of government, or any private individual, should address the emperour in praise of the virtues, abilities, or success. ful administration, of any of his majesty's confidential ministers of state, it is to be considered as an evidence of the existence of a treasonable combination, subversive of government, and shall therefore be investigated with the utmost strictness and accuracy. The cause and origin of these interested praises of persons high in rank and office being traced, the offending party shall suffer death, by being beheaded, after remaining in prison the usual period. His wives and children shall become slaves, and his property shall be confiscated.” p. 62, 63.
An accurate enrolment must be made of the people, and of the lands, in every district, each male child being registered when four years of age. The magistrates can call for the services of all males from 16 to 60, either for military or civil purposes. The common rate of wages seems to be about 7d. a day. All the land in the kingdom pays a tax; and it is disputed, with regard to this country as well as India, whether the sovereign is considered as the proprietor, and this tax as his rent, or whether it be a tax merely. It seems to favour the former supposition, that the possessor is liable to severe punishment for not cultivating, over and above being obliged to pay the tax. Certain assessors or valuators are chosen for each district, who become responsible for its quota.
The authority of a father in China is at least as great as it was in ancient Rome. Marriage is not only a mere civil contract, but it is a contract which is always concluded between the parents or elder relations of the parties, and totally independent of their consent. This, however, relates only to the first or chief wife: the others whom the man may choose for himself, seem to be merely concubines, though their children have some legal rights of succession. Almost every man is married as soon as he is of age; though, by some extraordinary omission, the legislator has neglected to order him to be whipped if he remain single. Persons bearing the same family name, though no way related, are, by a whimsical law, strictly prohibited from intermarrying; although there are wonderfully few family names in that vast empire, and though relations beyond the fourth degree may marry without"any censure. If the wife commit adultery, the man not only may, but must absolutely divorce her. If both parties are desirous of separation, the divorce may proceed; but, if the wife is not willing, the man shall not put her away, unless he can substantiate one of the following justifying causes against her:
“ (1) barrenness; (2) lasciviousness; (3) disregard of her husband's parents; (4) talkativeness; (5) thievish propensities; (6) envious and suspicious temper; and, lastly, (7) inveterate infirmity. Yet, if any of the three reasons against a divorce should exist, namely, (1) the wife’s having mourned three years for her husband’s parents; (2) the family’s having become rich after having been poor previous to, and at the time of, marriage; and (3) the wife’s having no parents living to receive her back again; in these cases, none of the seven aforementioned causes will justify a divorce; and the husband who puts away his wife upon such grounds, shall suffer punishment two degrees less than that last stated, and be obliged to receive her again.” p. 120.
every offence in proportion to the amount and value, according to the law concerning the embezzlement of the property of government.
“If any other person borrows for his own use, or lends the produce of the revenues as aforesaid, he shall be punished in proportion to the amount and value, according to the law for punishing thefts committed upon the property of the state.” p. 132.
There is nothing strikes the reader of this code with more surprise, than the astonishing resemblance which the revenue laws it contains bear, in all respects, to the most perfect and recent system which has been established on that subject in Europe. We find not only the old gabelle, or tax and monopoly of salt, but a regular excise upon tea, alum, and almost every sort of merchandise, with a system of fermits, excise-officers, inspectors, licenses to traders, and penalties upon smuggling, almost exactly as we have them at this day among ourselves. The Chinese laws, however, are, upon the whole, considerably more mild than the English. The smuggler forfeits only one half of the unlicensed goods, three tenths going to the informer; and the personal pains are moderate. The carriage and horses, however, or boat in which the goods are transported, are forfeited as with us. There is a duty on the sale of cattle; and no purchase of that kind can be accomplished without a stamped license from government. The coasting trade is also subjected to certain customs; and vessels having false manifests of their cargo are forfeited Lawful interest is fixed at the enormous rate of 3 per cent. per month, or 36 per cent. per annum. This appears to us altogether unaccountable. In a country so long fully peopled and so industrious as China, the accumulation of capital must be prodigious; and as there is scarcely any foreign commerce, the profits of trade must have been