The Green Bag (1889–1914)/Volume 9/Number 7/The Criminal Code of China
THE CRIMINAL CODE OF CHINA.
By Albert Swindlehurst.
IT has been well said that the criminal code of a nation forms the true index of its civilization, and the Ta-Tsing-Leu-Lee, or Chinese Code, is a notable illustration of this fact. Each one of its 2095 octavo pages bears impress of the peculiar character and genius of the people.
The Chinese always talk of their Code with pride, but most of its provisions, when viewed from a Western standpoint, appear cruel and barbarous in the extreme. Torture is freely made use of to obtain evidence, and we look in vain for those excellent principles of Anglo-Saxon justice by which every man is presumed innocent until he is proven guilty, and no man is required to incriminate himself.
The growth of a spirit of equality and freedom, upon which all true justice is based, is prevented by the division of the people into privileged and non-privileged classes, and the respect required to be shown towards government officials and per sons of rank.
Amidst so much that is repugnant to our civilization, the enforcement of filial duty and respect, and the consideration and lenity shown to old age, are worthy the greatest admiration.
The first regular code of Chinese penal laws, Lee-Tuee-Fa-King, was put in force under the dynasty of Tsin, which succeeded to the throne of China, В. С. 249, and enlargements and alterations took place under the several dynasties of Han, Wee, Tsin, Tse, Swee, Tang, Sung, Yuen, and Ming, until, in 1647, Emperor Shun Chee, the first of the Tartar dynasty of Tsing, now reigning, conquered the Chinese Empire, and promulgated the Code which is at present observed.
Each emperor, on his accession, issues a prefatory edict, stating the amendments to the Code which will be acted upon during his reign; the custom bearing a striking similarity to that adopted by the Roman praetors with reference to the Jus Honorarium.
From the earliest of the edicts issued by the present dynasty we gather that the chief ends proposed to be gained by the adoption of a fixed code of penal laws were to "secure uniformity of punishment throughout the empire; to guard against violence and injury; to repress inordinate desires, and to preserve the peace and tranquillity of an honest and unoffending community."
To bring about these ends the Code contains articles and tables which, in their complexity, are like so many mathematical problems; it being necessary to take into consideration, not only the nature and degree of the crime and particular circumstances of the case, but also the social class, age, and physical condition of the offender.
The severity of the law is always relaxed in favor of the privileged classes, of which there are eight, viz.: The privilege of the Imperial blood and connections; of long service; of illustrious actions; of extraordinary wisdom; of great abilities; of zeal and assiduity; of nobility and of birth. The fathers, mothers, paternal grandfather or grandmother, wife, son or grandson of any person belonging to one of these eight classes are also privileged.
Almost all penalties may be commuted on payment of a money indemnity, and the law is further mitigated by the granting of indulgences to offenders disabled by the loss of an eye or limb, or who are the sole support of sick, infirm or aged persons, and to persons over seventy or not more than fifteen years of age.
Timely confession; the restoration of stolen goods, or assistance in bringing accomplices to justice, always secure to the offender a mitigation of punishment and, in many cases, a full pardon.
Children under seven years of age and accused persons over ninety are deemed incapable of committing any crimes but those of rebellion and high treason.
The crimes most severely punished are those known as the "Ten Abominations," viz.: rebellion, disloyalty, desertion, parricide, massacre, sacrilege, impiety, discord in families, insubordination, and incest. These crimes, when the offense is capital, are excepted from the benefit of privilege or any act of general pardon "in order that people may learn to dread and avoid the same."
High treason is defined by the Code as "an unspeakable outrage and attempt to violate the divine order of things on earth." It is committed by any attempt to subvert the established government; to destroy or injure the person of the sovereign, the palace in which he resides, the temple in which his family is worshipped, or the tombs in which the remains of his ancestors are deposited. The punishment inflicted on traitors is extremely barbarous. All persons convicted of having been principals or accessories to any act of treason suffer death by a slow and painful execution. More over, all male relations in the first degree at or above the age of sixteen, without any regard to place of residence, are indiscriminately beheaded. The remaining male children, if proved to be totally innocent of and unacquainted with the commission of the offense, are suffered to live, but rendered eunuchs that they may be employed for the public service in the exterior buildings of the palace. Female relations in the first degree are distributed as slaves to the great officers of the state, and the property of every description belonging to such treason able offenders is confiscated for the use of the government.
Parricide is considered only one degree less culpable than treason, and is punished as a crime of the deepest dye; such a violation of the ties of nature being held to be evidence of the most unprincipled depravity. Any person convicted of a design to kill his or her parents or ancestors, whether a blow be struck or not, is liable to suffer death by being beheaded. If the murder is actually committed, all the parties concerned therein, whether principals or accessories, if related to the deceased as above mentioned, suffer death in a slow and painful manner, being cut into a thousand pieces. If the criminal dies in prison an execution similar in mode takes place on his body.
Murder, in all cases, is punished by decapitation. When committed with the design of afterwards mangling the body and distributing the limbs of the deceased for magical purposes, not only is the offender executed, but all the inmates of his house, although innocent of the crime, are perpetually banished. Persons giving information by which such offenders are brought to justice receive a reward of twenty ounces of silver from the government.
All persons rearing venomous animals, or preparing drugs of a poisonous nature, for the purpose of murder, are beheaded; their property confiscated, and family banished, even if no person is actually killed by such means.
The use of abusive language is very sternly repressed, especially if the offended person happens to be the husband or ancestor of the offender. The Code says: "Opprobrious and insulting language, having naturally a tendency to produce quarrels and affrays, this book of laws expressly provides for its prevention and punishment."
Robbery and theft are severely dealt with. If the individual plundered or stolen from is likewise wounded, the principal offender is beheaded, and if any organized band of robbers, in an attempt to secure booty, burn a house or violate a female, the criminals are beheaded immediately after conviction, and their heads, as soon as struck off, are fixed on pikes and exhibited as a public spectacle.
If accessories to a robbery or theft, when it is their first offense, surrender themselves before information has been given to any magistrate, they are pardoned.
In passing sentence on persons guilty of theft the magistrate always takes into consideration the rank of the person stolen from and the amount taken. In ordinary cases the guilty persons are branded in the lower part of the left arm with the words "Tsie tao," signifying "thief," as a warning to others and a reproach to themselves, in addition to receiving corporal punishment, and in some cases they are exiled perpetually.
As to what constitutes a theft or robbery, and what an attempt only, the rule is that an open and violent taking constitutes robbery, and a private and concealed taking a theft. An attempt is to be distinguished from the accomplishment of the criminal purpose in the following manner: In cases of strings of copper money, utensils and other easily movable articles of that description, possession must not only be obtained, but they must have been moved out of the place or apartment in which they were found; otherwise a theft or robbery of such articles is only to be considered as having been attempted. In case of pearls or other precious stones, and other small and valuable articles, it is sufficient that they are found on the person of the offender. On the contrary, in the case of large, heavy articles of wood or stone which the unassisted strength of man is not adequate to remove to any distance, they must not only have been displaced, but actually lifted upon the cart, or upon the animal provided for their removal. In respect to horses, asses, mules and cows, they must have been taken out of the stable, and some evidence must be adduced of exertion on the part of the offender to make himself master of them. Thus, if one horse is stolen and the rest follow, the thief is not responsible for the theft of more than one horse; but if he steals a mare, and the foal follows, his offense is to be deemed a theft of both the mare and the foal. In general, when there are circumstances to trace, and witnesses to give evidence of the overt act, but not of any actual possession of the goods, the offense is punished as an attempt only. When actual possession is proved the theft or robbery is considered to have been completely carried into effect, and punished accordingly.
Great care is taken to ensure the health and comfort of the emperor, and if any physician inadvertently prepares and mixes the medicines destined for the use of His Imperial Majesty in any manner that is not sanctioned by established usage, or does not accompany them with a proper description and direction, he is liable to a penalty of one hundred blows.
The cook who prepares the imperial repast must also be exceedingly careful, for if he introduces any prohibited ingredients into the dishes by inadvertence; uses articles of food not clean and skillfully selected, or neglects to taste their quality when cooked, punishment is administered.
Some of the provisions of the Chinese Code are of great merit, particularly the one guarding against monopolies of all kinds, which provides that if artful speculators, using undue influence in the market, oblige others to allow them an exorbitant profit, and by unjust contrivances raise the price of their goods far beyond their real value, they shall be severely punished.
There is also a humane section with regard to the care of the aged, infirm or destitute. Every magistrate is bound to maintain and protect all such people in his district, if they are without relatives, and should he fail to do this he renders himself liable to punishment.
The Code contains many other curious provisions, but sufficient has been quoted to show that while, for the most part, the criminal law of China favors the classes and is barbarously severe where the common people are concerned, there are some sections not unworthy the attention and imitation of the enlightened and progressive nations of the West.