Chapter IV (2)

The power of the sovereign is absolute; but the patriarchal system, making it a point of indispensable duty for a son to bring offerings to the spirit of his deceased parent in the most public manner, operates as some check upon the exercise of this power. By this civil institution, the duties of which are observed with more than a religious strictness, he is constantly put in mind that the memory of his private conduct, as well as of his public acts, will long survive his natural life; that his name will, at certain times in every year, be pronounced with a kind of sacred and reverential awe, from one extremity of the extensive empire to the other, provided he may have filled his station to the satisfaction of his subjects; and that, on the contrary, public execrations will rescue from oblivion any arbitrary act of injustice and oppression, of which he may have been guilty. It may also operate as a motive for being nice and circumspect in the nomination of a successor, which the law has left entirely to his choice.

The consideration, however, of posthumous fame, would operate only as a slender restraint on the caprices of a tyrant, as the history of this, as well as other countries, furnishes abundant examples. It has, therefore, been thought necessary to add another, and perhaps a more effectual check, to curb any disposition to licentiousness or tyranny that might arise in the breast of the monarch. This is the appointment of the Censorate, an office filled by two persons, who have the power of remonstrating freely against any illegal or unconstitutional act about to be committed, or sanctioned by the Emperor. And although it may well be supposed, that these men are extremely cautious in the exercise of the power delegated to them, by virtue of their office, and in the discharge of this disagreeable part of their duty, yet they have another task to perform, on which their own posthumous fame is not less involved than that of their master, and in the execution of which they run less risk of giving offence. They are the historiographers of the empire; or, more correctly speaking, the biographers of the Emperor. Their employment, in this capacity, consists chiefly in collecting the sentiments of the monarch, in recording his speeches and memorable sayings, and in noting down the most prominent of his private actions, and the remarkable occurrences of his reign. These records are lodged in a large chest, which is kept in that part of the palace where the tribunals of government are held, and which is supposed not to be opened until the decease of the Emperor; and, if any thing material to the injury of his character and reputation is found to be recorded, the publication of it is delayed, out of delicacy to his family, till two or three generations have passed away, and sometimes till the expiration of the dynasty; by that indulgence they pretend, that a more faithful relation is likely to be obtained, in which neither fear nor flattery could have operated to disguise the truth.

An institution, so remarkable and singular in its kind in an arbitrary government, could not fail to carry with it a very powerful influence upon the decisions of the monarch, and to make him solicitous to act, on all occasions, in such a manner, as would be most likely to secure a good name, and to transmit his character unsullied and sacred to posterity. The records of their history are said to mention a story of an Emperor, of the dynasty or family of _Tang_, who, from a consciousness of having, in several instances, transgressed the bounds of his authority, was determined to take a peep into the historical chest, where he knew he should find all his actions recorded. Having made use of a variety of arguments, in order to convince the two censors that there could be nothing improper in the step he was about to take, as, among other things, he assured them, he was actuated with the desire only of being made acquainted with his greatest faults, as the first step to amendment, one of these gentlemen is said to have answered him very nobly, to this effect: "It is true your Majesty has committed a number of errors, and it has been the painful duly of our employment to take notice of them; a duty," continued he, "which further obliges us to inform posterity of the conversation which your Majesty has this day, very improperly, held with us."

To assist the Emperor in the weighty affairs of state, and in the arduous task of governing an empire of so great an extent, and such immense population, the constitution has assigned him two councils, one ordinary, and the other extraordinary; the ordinary council is composed of his principal ministers, under the name of Collao, of which there are six. The extraordinary council consists entirely of the princes of the blood.

For the administration of the affairs of government, there are six boards or departments, consisting of,

1. The Court of Appointments to vacancies in the offices of government, being composed of the minister and learned men, qualified to judge of the merits of candidates.

2. The Court of Finance.

3. The Court of Ceremonies, presiding over the direction of ancient customs, and treating with foreign Embassadors.

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 constitution established in the different provinces and great cities of the empire, each of which corresponds with its principal 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 mass 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 institutes under
the dynasty _Ta-tchin_, which is the name assumed by the present family
on the throne.

I have been assured, 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 God 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 circumstantial 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 constitute 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 circumstances 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 principals 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
class 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 circumstances 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 circumstances 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
circumstances 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 entitled 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 circumstance 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 assistance 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 pronounced 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.

[26] Each watch is two hours, and the second watch begins at eleven
o'clock.

As in some of the Grecian states, and other nations of modern times, the punishment of treason was extended to the relations of the criminal, so in China, even to the ninth generation, a traitor's blood is supposed to be tainted, though they usually satisfy the law by including only the nearest male relations, then living, in the guilt of the culprit, and by mitigating their punishment to that of exile. Nothing can be more unjust and absurd, however politic, than such a law, absurd, because it considers a non-entity capable of committing a crime; and unjust, because it punishes an innocent person. The lawgiver of Israel, in order to intimidate his stiff-necked and rebellious subjects, found it expedient to threaten the visitation of God on the children, for the sins of the fathers, unto the third and fourth generation, a sentiment however which, it would seem, lapse of time had rendered less expedient, for the prophet Ezekiel, who on this subject had more elevated notions of moral right than either the Greeks or the Chinese, spurns it with great indignation. In allusion to such an idea, which it seems had become a proverb among the Jews, he breaks out into this sublime exclamation: "What mean ye that ye use this proverb concerning the land of Israel, saying, The fathers have eaten sour grapes, and the children's teeth are set on edge? As I live, saith the Lord, ye shall not have occasion any more to use this proverb in Israel. Behold all souls are mine; as the soul of the father, so also the soul of the son, is mine. The soul that sinneth, _it_ shall die. The son shall not bear the iniquity of the father, neither shall the father bear the iniquity of the son: the righteousness of the righteous shall be upon _him_, and the wickedness of the wicked shall be upon _him_."

In most causes, except those of high treason, it may be presumed, the high tribunal of Pekin will act with strict impartiality. And it is greatly to be lamented, that all civil causes have not been made subject to a similar revision as those of a criminal nature, which would strike at the root of an evil that is most grievously felt in China, where the officers of justice are known, in most cases, to be corrupted by bribery. They have, however, wisely separated the office of judge from that of the legislator. The former, having found the fact, has only to refer to the code of laws, in which he is supplied with a scale of crimes and their punishments. Such a mode of distributing justice is not however without its inconveniences. Tender as the government has shewn itself, where the life of a subject is concerned, having once established the proportion of punishment to the offence it has supposed an appeal, in civil causes and misdemeanors, to be unnecessary. The sentence in such causes being thus left in the breast of a single judge, how great soever may be the nicety by which the penalty is adapted to the offence, the exclusion from appeal is in itself a bar to the just and impartial administration of the laws. The subject being refused the benefit of carrying his cause into a higher, and on that account more likely to be a more impartial, court, has no security against the caprice, malice, or corruption of his judge.

It may not perhaps be thought unworthy of notice that the legislators of China, among the various punishments devised for the commission of crimes, have given the criminal no opportunity, either by labouring at any of the public works, or in solitary confinement, to make some reparation for the injury he has committed against society. Confinement in prison, as a punishment, is not known. Exile or personal chastisement are decreed for all irregularities not approaching to capital offences.

Executions for capital crimes are not frequently exhibited; when found guilty the criminals are remanded to prison till a general gaol delivery, which happens once a year, about the autumnal equinox. In adopting such a measure government may perhaps have considered, how little benefit the morals of the people were likely to derive from being the frequent spectators of the momentary pain that is required to take away the existence of a fellow mortal. All other punishments, however, that do not affect the life of man, are made as public as possible, and branded with the greatest degree of notoriety. The beating with the bamboo, in their ideas, scarcely ranks under the name of punishment, being more properly considered as a gentle correction, to which no disgrace is attached, but the cangue or, as they term it, the _tcha_, a kind of walking pillory, is a heavy tablet of wood, to which they are fastened by the neck and hands, and which they are sometimes obliged to drag about for weeks and months; this is a terrible punishment, and well calculated to deter others from the commission of those crimes of which it is the consequence, and the nature of which is always inscribed in large characters upon it.

The order that is kept in their jails is said to be excellent, and the debtor and the felon are always confined in separate places; as indeed one should suppose every where to be the case, for, as Sir George Staunton has observed, "To associate guilt with imprudence, and confound wickedness with misfortune, is impolitic, immoral, and cruel[27]."

[27] A debtor is released when it appears that the whole of his property
has been given up for the use of his creditors.

The abominable practice of extorting confession by the application of the torture is the worst part of the criminal laws of China; but they pretend to say this mode is seldom recurred to, unless in cases where the guilt of the accused has been made to appear by strong circumstantial evidence. It is however a common punishment to squeeze the fingers in cases of misdemeanour, and is particularly practised as a punishment of those females who purchase licences for breaking through the rules of chastity.

By the laws relating to property, women in China, as in ancient Rome, are excluded from inheriting, where there are children, and from disposing of property; but where there are no male children a man may leave, by will, the whole of his property to the widow. The reason they assign for women not inheriting is, that a woman can make no offering to deceased relations in the hall of ancestors; and it is deemed one of the first ideal blessings of life for a man to have some one to look up to, who will transmit his name to future ages, by performing, at certain fixed periods, the duties of this important ceremony. All their laws indeed respecting property, as I have already observed, are insufficient to give it that security and stability which alone can constitute the pleasure of accumulating wealth. The avarice of men in power may overlook those who are in moderate circumstances, but the affluent rarely escape their rapacious grasp. In a word, although the laws are not so perfect as to procure for the subject general good, yet neither are they so defective as to reduce him to that state of general misery, which could only be terminated in a revolution. The executive administration is so faulty, that the man in office generally has it in his power to govern the laws, which makes the measure of good or evil depend greatly on his moral character.

Such are indeed the disposition and the habits of the people, that so long as the multitude can procure their bowl of rice and a few savory sauces, that cost only a mere trifle, there will be less danger of a revolt; and the government is so well convinced of this, that one of its first concerns is to lay up, in the public magazines erected in every part of the empire, a provision of grain, to serve as a supply for the poor in times of famine or scarcity. In this age of revolutions, a change, however, seems to be taking place in the minds of the people, which I shall presently notice.

The system of universal and implicit obedience towards superiors pervades every branch of the public service. The officers of the several departments of government, from the first to the ninth degree, acting upon the same broad basis of paternal authority, are invested with the power of inflicting the summary punishment of the bamboo, on all occasions where they may judge it proper, which, under the denomination of a fatherly correction, they administer without any previous trial, or form of inquiry. The slightest offence is punishable in this manner, at the will or the caprice of the lowest magistrate. Such a summary proceeding of the powerful against the weak naturally creates in the latter a dread and distrust of the former; and the common people, accordingly, regard the approach of a man in office, just as schoolboys observe the motions of a severe master; but the fatherly kindness of the Emperor is recognised even in punishment; the culprit may claim the exemption of every fifth blow as the Emperor's _coup-de-grace_; but in all probability he gains little by such remission, as the deficiency in number may easily be made up in weight.

This practical method of evincing a fatherly affection is not confined to the multitude alone, but is extended to every rank and description of persons, ceasing only at the foot of the throne. Each officer of state, from the ninth degree upwards to the fourth, can, at any time, administer a gentle correction to his inferior; and the Emperor orders the bamboo to his ministers, and to the other four classes, whenever he may think it necessary for the good of their morals. It is well known that the late _Kien Long_ caused two of his sons to be bambooed long after they had arrived at the age of maturity, one of which, I believe, is the present reigning Emperor.

In travelling through the country, a day seldom escaped without our witnessing the application of the _Pan-tsé_ or bamboo, and generally in such a manner that it might be called by any other name except a _gentle_ correction. A Chinese suffering under this punishment cries out in the most piteous manner; a Tartar bears it in silence. A Chinese, after receiving a certain number of strokes, falls down on his knees, as a matter of course, before him who ordered the punishment, thanking him, in the most humble manner, for the fatherly kindness he has testified towards his son, in thus putting him in mind of his errors; a Tartar grumbles, and disputes the point as to the right that a Chinese may have to flog him; or he turns away in sullen silence.

Ridiculous as it may appear to a foreigner, in observing an officer of state stretching himself along the ground for the purpose of being flogged by order of another who happens to rank one degree above him; yet it is impossible, at the same time, to suppress a glow of indignation, in witnessing so mean and obsequious a degradation of the human mind, which can bring itself, under any circumstances, patiently to submit to a vile corporal punishment, administered by the hand of a slave, or by a common soldier; and when this is done, to undergo the still more vile and humiliating act of kissing the rod that corrects him. But the policy of the government has taken good care to remove any scruples that might arise on this score. Where paternal regard was the sole motive, such a chastisement could not possibly be followed with dishonour or disgrace. It was a wonderful point gained by the government, to subject every individual, the Emperor only excepted, to the same corporal correction; but it must have required great address, and men's minds must have been completely subdued, or completely convinced, before such a system of universal obedience could have been accomplished, the consequence of which, it was obvious, could be no other than universal servility. It could not fail to establish a most effectual check against the complaints of the multitude, by shewing them that the same man, who had the power of punishing them, was equally liable to be corrected in his turn, and in the same manner, by another. The punishment of the bamboo must, I suspect, be one of the most ancient institutions of China. Indeed we can scarcely conceive it ever to have been introduced into a society already civilized; but rather to have been coeval with the origin of that society.

A similar kind of personal chastisement for light offences, or misconduct, was inflicted in Russia on persons of all ranks, but with this difference, that the correction was private and by order of the Sovereign alone. The Czar Peter, indeed, generally bestowed a drubbing on his courtiers with his own hand; who, instead of being dishonoured or disgraced by such a castigation, were supposed, from that very circumstance, to be his particular favourites, and to stand high in his confidence. The great Mentzikoff is said to have frequently left his closet with a black eye or a bloody nose; and seemed to derive encreasing importance from the unequivocal marks of his master's friendship. Even at the present day, or till very lately, little disgrace was attached to the punishment of the _knout_, which was a private flagellation by order of the court; but this abominable practice either is altogether discontinued, or in its last stage of existence. Such arbitrary proceedings could not long remain in force among an enlightened people.

These two great empires, the greatest indeed that exist in the world, dividing between them nearly a fifth part of the whole habitable globe, each about a tenth, exhibit a singular difference with regard to political circumstances. One century ago Russia was but just emerging from a state of barbarism, and in a century hence, in all human probability, she will make a conspicuous figure among European nations, both in arts and arms. Two thousand years ago China was civilized to the same degree, or nearly so, that she is at present. The governments were both arbitrary, and the people were slaves. The natural genius of the Russian, cramped perhaps in some degree by his frozen climate, is less susceptible of improvement than that of the Chinese. Whence then, it may be asked, proceeds the very great difference in the progressive improvement of the two nations? principally, I should suppose, from the two following reasons. Russia invites and encourages foreigners to instruct her subjects in arts, sciences, and manufactures. China, from a spirit of pride and self-importance, as well as from jealousy, rejects and expels them. The language of Russia is easily acquired, and her subjects as easily learn those of other countries, whilst that of China is so difficult, or their method of learning it so defective, as to require the study of half the life of man to fit him for any of the ordinary employments of the state, and they have no knowledge of any language but their own. The one is in a state of youthful vigour, advancing daily in strength and knowledge; the other is worn out with old age and disease, and under its present state of existence is not likely to advance in any kind of improvement.

To the principle of universal obedience the Chinese government has added another, which is well calculated to satisfy the public mind: the first honours and the highest offices are open to the very lowest of the people. It admits of no hereditary nobility; at least none with exclusive privileges. As a mark of the Sovereign's favour a distinction will sometimes descend in a family, but, as it confers no power nor privilege nor emolument, it soon wears out. All dignities may be considered as merely personal; the princes of the blood, even, sink gradually into the common mass, unless their talents and their application be sufficient to qualify them for office, independent of which there can be neither rank nor honours, and very little if any distinction, not even in the imperial family, beyond the third generation. On public days the Emperor, at a single glance, can distinguish the rank of each of the many thousand courtiers that are assembled on such occasions by their dress of ceremony. The civilians have a bird, and the military a tyger, embroidered on the breast and back of their upper robe; and their several ranks are pointed out by different coloured globes, mounted on a pivot on the top of the cap or bonnet. The Emperor has also two orders of distinction, which are conferred by him alone, as marks of particular favour; the order of the yellow vest and of the peacock's feather.

The influence that, in nations of Europe, is derived from birth, fortune, and character, is of no weight in the Chinese government. The most learned, and I have already explained how far the term extends, provided he be not of notorious bad character, is sure to be employed; though under the present Tartar government, the Chinese complain that they never arrive at the highest rank till they are advanced in years. Learning alone, by the strict maxims of state, leads to office, and office to distinction. Property, without learning, has little weight, and confers no distinction, except in some corrupt provincial governments, where the external marks of office are sold, as in Canton. Hence property is not so much an object of the laws in China as elsewhere, and consequently has not the same security. In the governments of Europe, property seldom fails to command influence and to force dependence: in China, the man of property is afraid to own it, and all the enjoyments it procures him are stolen.

Sometimes, indeed, the highest appointments in the state are conferred, as it happens elsewhere, by some favourable accident, or by the caprice of the monarch. A striking instance of this kind was displayed in the person of _Ho-tchung-tang_, the last prime minister of the late _Kien-long_. This man, a Tartar, happened to be placed on guard in the palace, where his youth and comely countenance struck the Emperor so forcibly in passing, that he sent for him to the presence; and finding him equally agreeable in his conversation and manners, he raised him rapidly, but gradually, from the situation of a common soldier, to the highest station in the empire. Such sudden changes, from a state of nothingness to the summit of power, have frequently been observed to be attended with consequences no less fatal to the man so elevated, than pernicious to the public: and thus it happened to this favourite minister. During the life of his old master, over whom, in his later years, he is said to have possessed an unbounded influence, he availed himself of the means that offered, by every species of fraud and extortion, by tyranny and oppression, to amass such immense wealth in gold, silver, pearls, and immoveable property, that his acquisitions were generally allowed to have exceeded those of any single individual, that the history of the country had made known. His pride and haughty demeanour had rendered him so obnoxious to the royal family that, at the time we were in Pekin, it was generally supposed, he had made up his mind to die with the old Emperor, for which event he had always at hand a dose of poison, not chusing to stand the severe investigation which he was well aware the succeeding prince would direct to be made into his ministerial conduct. It seems, however, when that event actually happened, the love of life, and the hope of escaping, prevailed on him to change his purpose and to stand the hazard of a trial. Of the crimes and enormities laid to his charge he was found, or rather he was said to have pleaded, guilty. The vast wealth he had extorted from others was confiscated to the crown, and he was condemned to suffer an ignominious death[28].

[28] The circumstances attending the downfal of this minister are
curious, and shew, in its true light, the despotic nature of the Chinese
government, notwithstanding their salutary laws. The new Emperor,
determined on his ruin, makes a public declaration wherein, after
apologizing for not abstaining agreeably to the laws of the empire from
all acts of innovation, for the space of three years after his father's
death, he observes, that the crimes and excesses of _Ho-tchung-tang_ are
of so horrid a nature, as to preclude him from acting towards him with
any pity or indulgence. He then exhibits about twenty articles of
accusation against him, the principal of which are,

_Contumacy_ towards his father (the late Emperor) by riding on horseback
to the very door of the hall of audience at _Yuen-min-yuen_.

_Audacity_, under pretence of lameness, in causing himself to be carried
to and from the palace through the door set apart for the Emperor.

_Scandalous behaviour_, in taking away the virgins of the palace, and
appropriating them to his own use.

_Pride and insolence_, in countermanding his (the new Emperor's) order,
for all the princes of Tartary to be summoned to Pekin, those who had
not had the small-pox excepted, to assist at the funeral of his father,
and by issuing a new one, in which _none_ were excepted.

_Bribery and partiality_, in selling and giving away appointments of
weight to persons totally unqualified to fill them.

_Arrogance_, in making use of the wood _Nan-moo_ (cedar) in his house,
which is destined exclusively for royal palaces; and in building a house
and gardens in the style and manner of those belonging to the Emperor.

For having in his possession more than two hundred strings of pearls,
and an immense quantity of jewels and precious stones, which his rank
did not allow him to wear, and among which was a pearl of such wonderful
magnitude, that the Emperor himself had no equal to it.

For having in gold and silver alone, which has been already discovered
and confiscated, the amount, at least, of ten million taels (about
3,300,000_l._ sterling).

One article is singularly curious. For having been guilty of the deepest
treachery in informing him (the new Emperor) of his father's intention
to abdicate the government in his (the new Emperor's) favour, _one day_
before his father made it public, thinking by such means to gain his
favour and affection!

After enumerating the several articles of accusation, the Emperor
states, that this minister being interrogated by a Tartar prince on
several points, had confessed the whole to be true, and, therefore,
without further evidence, he commands the presidents and members of the
several courts in Pekin, the viceroys of provinces, and governors of
cities, on these articles of accusation being laid before them, to pass
a proper sentence on the said _Ho-tchung-tang_. According to the
majority, he was condemned to be beheaded; but as a peculiar act of
grace and benevolence on the part of the Emperor, this sentence was
mitigated to that of his being allowed to be his own executioner. A
silken cord being sent as an intimation of this mark of the Emperor's
favour, he caused himself to be strangled by some of his attendants.

Who could escape when the Emperor of China is himself the accuser? It
will readily occur, from the fate of _Ho-tchung-tang_, that there is not
that line of independence drawn between the executive and juridical
authority, which the ingenious author of the Spirit of Laws has clearly
proved to be the grand foundation of a just, legal, and efficient
security of the life and property of the subject. In fact, in all state
crimes, the Emperor becomes both the accuser and the judge. In the case
of _Ho-tchung-tang_ he may likewise be said to have been the only
evidence.