Sacred Books of the East/Volume 3/The Shu/Part 5/Book 27

 

Book XXVII.
The Marquis of Lü on Punishments.

 

The charge or charges recorded in this Book were given in the hundredth year of the king's age. The king, it is again understood, was Mû; and the hundredth year of his age would be B.C. 952. The title of the Book in Chinese is simply 'Lü's Punishments,' and I conclude that Lü, or the marquis of Lü, was a high minister who prepared, by the king's orders, a code of punishments for the regulation of the kingdom, in connexion with the undertaking, or the completion, of which the king delivered to his princes and judges the sentiments that are here preserved.

The common view is that Lü is the name of a principality, the marquis of which was Mû's Minister of Crime. Where it was is not well known, and as the Book is quoted in the Lî Kî several times under the title of 'Fû on Punishments,' it is supposed that Lü and Fû (a small marquisate in the present Ho-nan) were the same.

The whole Book is divided into seven chapters. The first is merely a brief introduction, the historiographer's account of the circumstances in which king Mû delivered his lessons. Each of the other chapters begins with the words, 'The king said.' The first two of them are an historical resumé of the lessons of antiquity on the subject of punishments, and an inculcation on the princes and officers of justice to give heed to them, and learn from them. The next two tell the princes of the diligence and carefulness to be employed in the use of punishments, and how they can make punishments a blessing. The fourth chapter treats principally of the commutation or redemption of punishments, and has been very strongly condemned by critics and moralists. They express their surprise that such a document should be in the Shû, and, holding that the collection was made by Confucius, venture to ask what the sage meant by admitting it. There is, in fact, no evidence that the redemption of punishments on the scale here laid down, existed in China before Mû's time. It has entered, however, into the penal code of every subsequent dynasty. Great official corruption and depravation of the general morality would seem to be inseparable from such a system. The fifth chapter returns again to the reverence with which punishments should be employed; and the sixth and last is addressed to future generations, and directs them to the ancient models, in order that punishments may never be but a blessing to the kingdom.

A Chinese critic says that throughout the Book 'virtue' and 'exact adaptation' are the terms that carry the weight of the meaning. Virtue must underlie the use of punishments, of which their exact adaptation will be the manifestation.

1. In reference to the charge to (the marquis of) Lü:—When the king had occupied the throne till he reached the age of a hundred years, he gave great consideration to the appointment of punishments, in order to deal with (the people of) the four quarters.

2. The king said, 'According to the teachings of ancient times, Khih Yû was the first to produce disorder, which spread among the quiet, orderly people, till all became robbers and murderers, owl-like and yet self-complacent in their conduct, traitors and villains, snatching and filching, dissemblers and oppressors^[1].'

'Among the people of Miâo, they did not use the power of goodness, but the restraint of punishments. They made the five punishments engines of oppression^[2], calling them the laws. They slaughtered the innocent, and were the first also to go to excess in cutting off the nose, cutting off the ears, castration, and branding. All who became liable to those punishments were dealt with without distinction, no difference being made in favour of those who could offer some excuse. The people were gradually affected by this state of things, and became dark and disorderly. Their hearts were no more set on good faith, but they violated their oaths and covenants. The multitudes who suffered from the oppressive terrors, and were (in danger of) being murdered, declared their innocence to Heaven. God surveyed the people, and there was no fragrance of virtue arising from them, but the rank odour of their (cruel) punishments.*

'The great Tî^[3] compassionated the innocent multitudes that were (in danger of) being murdered, and made the oppressors feel the terrors of his majesty. He restrained and (finally) extinguished the people of Miâo, so that they should not continue to future generations. Then he commissioned Khung and Lî^[4] to make an end of the communications between earth and heaven; and the descents (of spirits) ceased^[4]. From the princes down to the inferior officers, all helped with clear intelligence (the spread of) the regular principles of duty, and the solitary and widows were no longer overlooked. The great Tî with an unprejudiced mind carried his enquiries low down among the people, and the solitary and widows laid before him their complaints against the Miâo. He awed the people by the majesty of his virtue, and enlightened them by its brightness. He thereupon charged the three princely (ministers)^[5] to labour with compassionate anxiety in the people's behalf. Po-î delivered his statutes to prevent the people from rendering themselves obnoxious to punishment; Yü reduced to order the water and the land, and presided over the naming of the hills and rivers; Kî spread abroad a knowledge of agriculture, and (the people) extensively cultivated the admirable grains. When the three princes had accomplished their work, it was abundantly well with the people. The Minister of Crime^[6] exercised among them the restraint of punishment in exact adaptation to each offence, and taught them to reverence virtue. The greatest gravity and harmony in the sovereign, and the greatest intelligence in those below him, thus shining forth to all quarters (of the land), all were rendered diligent in cultivating their virtue. Hence, (if anything more were wanted), the clear adjudication of punishments effected the regulation of the people, and helped them to observe the regular duties of life. The officers who presided over criminal cases executed the law (fearlessly) against the powerful, and (faithfully) against the wealthy. They were reverent and cautious. They had no occasion to make choice of words to vindicate their conduct. The virtue of Heaven was attained to by them; from them was the determination of so great a matter as the lives (of men). In their low sphere they yet corresponded (to Heaven) and enjoyed (its favour).'*

3. The king said, 'Ah! you who direct the government and preside over criminal cases through all the land, are you not constituted the shepherds of Heaven?* To whom ought you now to look as your pattern? Is it not to Po-î, spreading among the people his lessons to avert punishments? And from whom ought you now to take warning? Is it not from the people of Miâo, who would not examine into the circumstances of criminal cases, and did not make choice of good officers that should see to the right apportioning of the five punishments, but chose the violent and bribe-snatchers, who determined and administered them, so as to oppress the innocent, until God would no longer hold them guiltless, and sent down calamity of Miâo, when the people had no plea to allege in mitigation of their punishment, and their name was cut off from the world?'*

4. The king said, 'Oh! lay it to heart. My uncles, and all ye, my brethren and cousins, my sons and my grandsons^[7], listen all of you to my words, in which, it may be, you will receive a most important charge. You will only tread the path of satisfaction by being daily diligent;—do not have occasion to beware of the want of diligence. Heaven, in its wish to regulate the people, allows us for a day to make use of punishments.* Whether crimes have been premeditated, or are unpremeditated, depends on the parties concerned;—do you (deal with them so as to) accord with the mind of Heaven, and thus serve me, the One man. Though I would put them to death, do not you therefore put them to death; though I would spare them, do not you therefore spare them. Reverently apportion the five punishments, so as fully to exhibit the three virtues^[8]. Then shall I, the One man, enjoy felicity; the people will look to you as their sure dependance; the repose of such a state will be perpetual.'

5. The king said, 'Ho! come, ye rulers of states and territories^[9], I will tell you how to make punishments a blessing. It is yours now to give repose to the people;—what should you be most concerned about the choosing of? Should it not be the proper men? What should you deal with the most reverently? Should it not be punishments? What should you calculate the most carefully? Should it not be to whom these will reach?

'When both parties are present, (with their documents and witnesses) all complete, let the judges listen to the fivefold statements that may be made^[10]. When they have examined and fully made up their minds on those, let them adjust the case to one of the five punishments. If the five punishments do not meet it, let them adjust it to one of the five redemption-fines; and if these, again, are not sufficient for it, let them reckon it among the five cases of error^[11].

'In (settling) the five cases of error there are evils (to be guarded against);—being warped by the influence of power, or by private grudge, or by female solicitation, or by bribes, or by applications. Any one of these things should be held equal to the crime (before the judges). Do you carefully examine, and prove yourselves equal to (every difficulty).

'When there are doubts as to the infliction of any of the five punishments, that infliction should be forborne. When there are doubts as to the infliction of any of the five fines, it should be forborne. Do you carefully examine, and prove yourselves equal to overcome (every difficulty). When you have examined and many things are clear, yet form a judgment from studying the appearance of the parties. If you find nothing out on examination, do not listen (to the case any more). In everything stand in awe of the dread majesty of Heaven.*

'When, in a doubtful case, the punishment of branding is forborne, the fine to be laid on instead is 600 ounces (of copper); but you must first have satisfied yourselves as to the crime. When the case would require the cutting off the nose, the fine must be double this;—with the same careful determination of the crime. When the punishment would be the cutting off the feet, the fine must be 3000 ounces;—with the same careful determination of the crime. When the punishment would be castration^[12], the fine must be 3600 ounces;—with the same determination. When the punishment would be death, the fine must be 6000 ounces;—with the same determination. Of crimes that may be redeemed by the fine in lieu of branding there are 1000; and the same number of those that would otherwise incur cutting off the nose. The fine in lieu of cutting off the feet extends to 500 cases; that in lieu of castration, to 300; and that in lieu of death, to 200. Altogether, set against the five punishments, there are 3000 crimes. (In the case of others not exactly defined), you must class them with the (next) higher or (next) lower offences, not admitting assumptive and disorderly pleadings, and not using obsolete laws. Examine and act lawfully, judging carefully, and proving yourselves equal (to every difficulty).

'Where the crime should incur one of the higher punishments, but there are mitigating circumstances, apply to it the next lower. Where it should incur one of the lower punishments, but there are aggravating circumstances, apply to it the next higher. The light and heavy fines are to be apportioned (in the same way) by the balance of circumstances. Punishments and fines should (also) be light in one age, and heavy in another. To secure uniformity in this (seeming) irregularity, there are certain relations of things (to be considered), and the essential principle (to be observed).

'The chastisement of fines is short of death, yet it will produce extreme distress. They are not (therefore) persons of artful tongues who should determine criminal cases, but really good persons, whose awards will hit the right mean. Examine carefully where there are any discrepancies in the statements; the view which you were resolved not to follow, you may see occasion to follow; with compassion and reverence settle the cases; examine carefully the penal code, and deliberate with all about it, that your decisions may be likely to hit the proper mean and be correct;—whether it be the infliction of a punishment or a fine, examining carefully and mastering every difficulty. When the case is thus concluded, all parties will acknowledge the justice of the sentence; and when it is reported, the sovereign will do the same. In sending up reports of cases, they must be full and complete. If a man have been tried on two counts, his two punishments (must be recorded).'

6. The king said, 'Oh! let there be a feeling of reverence. Ye judges and princes, of the same surname with me, and of other surnames, (know all) that I speak in much fear. I think with reverence of the subject of punishment, for the end of it is to promote virtue. Now Heaven, wishing to help the people, has made us its representatives here below.* Be intelligent and pure in hearing (each) side of a case. The right ordering of the people depends on the impartial hearing of the pleas on both sides;—do not seek for private advantage to yourselves by means of those pleas. Gain (so) got by the decision of cases is no precious acquisition; it is an accumulation of guilt, and will be recompensed with many judgments:—you should ever stand in awe of the punishment of Heaven.* It is not Heaven that does not deal impartially with men, but men ruin themselves. If the punishment of Heaven were not so extreme, nowhere under the sky would the people have good government.'

7. The king said, 'Oh! ye who shall hereafter inherit (the dignities and offices of) the present time, to whom are ye to look for your models? Must it not be to those who promoted the virtue belonging to the unbiassed nature of the people? I pray you give attention to my words. The wise men (of antiquity) by their use of punishments obtained boundless fame. Everything relating to the five punishments exactly hit with them the due mean, and hence came their excellence. Receiving from your sovereigns the good multitudes, behold in the case of those men punishments made felicitous!'

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1. Khih Yû, as has been observed in the Introduction, p. 27, is the most ancient name mentioned in the Shû, and carries us back, according to the Chinese chronologists, nearly to the beginning of the twenty-seventh century B.C. P. Gaubil translates the characters which appear in the English text here as 'According to the teachings of ancient times' by 'Selon les anciens documents,' which is more than the Chinese text says.—It is remarkable that at the commencement of Chinese history, Chinese tradition placed a period of innocence, a season when order and virtue ruled in men's affairs.
2. I do not think it is intended to say here that 'the five punishments' were invented by the chiefs of the Miâo; but only that these used them excessively and barbarously. From two passages in the Canon of Shun, we conclude that that monarch was acquainted with 'the five great inflictions or punishments,' and gave instructions to his minister Kâo-yâo as to their use.
3. Here is the name—Hwang Tî—by which the sovereigns of China have been styled from B.C. 221, since the emperor of Khin, on his extinction of the feudal states, enacted that it should be borne by himself and his descendants. I have spoken of the meaning of Tî and of the title Hwang Tî in the note on the translation of the Shû appended to the Preface. There can be no doubt that it was Shun whom king Mû intended by the name. A few sentences further on, the mention of Po-î and Yü leads us to the time subsequent to Yâo, and there does not appear to be any change of subject in the paragraph. We get from this Book a higher idea of the power of the Miâo than from the Books of Part II.
4. Khung and Lî are nowhere met with in the previous parts of the Shû, nor in any other reliable documents of history, as officers of Shun. Zhai Khăn and others would identify them with the Hsî and Ho of the Canon of Yâo, and hold those to have been descended from a Khung and a Lî, supposed to belong to the time of Shâo Hâo in the twenty-sixth century B.C.
   Whoever they were, the duty with which they were charged was remarkable. In the Narratives of the States (a book of the Kâu dynasty), we find a conversation on it, during the lifetime of Confucius, between king Khâo of Khû (B.C. 515–489) and one of his ministers, called Kwan Yî-fû. 'What is meant,' asked the king, 'by what is said in one of the Books of Kâu about Khung and Lî, that they really brought it about that there was no intercourse between heaven and earth? If they had not done so, would people have been able to ascend to heaven?' The minister replied that that was not the meaning at all, and gave his own view of it at great length, to the following effect.—Anciently, the people attended to the discharge of their duties to one another, and left the worship of spiritual beings—the seeking intercourse with them, and invoking and effecting their descent on earth—to the officers who were appointed for that purpose. In this way things proceeded with great regularity. The people minded their own affairs, and the spirits minded theirs. Tranquillity and prosperity were the consequence. But in the time of Shâo Hâo, through the lawlessness of Kiû-lî, a change took place. The people intruded into the functions of the regulators of the spirits and their worship. They abandoned their duties to their fellow men, and tried to bring down spirits from above. The spirits themselves, no longer kept in check and subjected to rule, made their appearance irregularly and disastrously. All was confusion and calamity, when Kwan Hsü (B.C. 2510–2433) took the case in hand. He appointed Khung, the Minister of the South, to the superintendency of heavenly things, to prescribe the laws for the spirits, and Lî, the Minister of Fire, to the superintendency of earthly things, to prescribe the rules for the people. In this way both spirits and people were brought back to their former regular courses, and there was no unhallowed interference of the one with the other. This was the work described in the text. But subsequently the chief of San-miâo showed himself a Kiû-lî redivivus, till Yâo called forth the descendants of Khung and Lî, who had not forgotten the virtue and functions of their fathers, and made them take the case in hand again.
   According to Yî-fu's statements Khung's functions were those of the Minister of Religion, and Lî's those of the Minister of Instruction; but Hsî and Ho were simply Ministers of Astronomy and the Calendar, and their descendants continue to appear as such in the Shû to the reign of Kung Khang, long after we know that men of other families were appointed to the important ministries of Khung and Lî.
5. Those immediately mentioned,—Po-î, Yü, and Kî. See the Canon of Shun and other Books of Part II.
6. Kâo-yâo.
7. Meaning all the princes of the same surname as himself. As he was a hundred years old, there might well be among them those who were really his sons and grandsons.
8. 'The three virtues' are those of the Great Plan; those of 'correctness and straightforwardness,' of 'strong government,' and of 'mild government.'
9. Meaning all the princes;—of the king's own and other surnames.
10. That is, the statements, with the evidence on both sides, whether incriminating or exculpating. They are called fivefold, as the case might have to be dealt with by one or other of 'the five punishments.'
11. That is, the offences of inadvertence. What should ensue on the adjudication of any case to be so ranked does not appear. It would be very leniently dealt with, and perhaps pardoned. In 'the Counsels of Yü,' Kâo-yâo says to Shun, 'You pardon inadvertent offences however great.'
12. Or solitary confinement in the case of a female.