Although the Emperor is regarded as the head of this great organization, as the fly-wheel which sets other wheels of the machine in motion, he is still considered as bound to rule according to the code of the land; and when there is a well-known law, though the source of law, he is expected to follow it in his decrees. The statutes of China form an edifice, the foundations of which were laid by Lí Kwei twenty centuries ago. Successive dynasties have been building thereon ever since, adding, altering, pulling down, and putting together as circumstances seemed to require. The people have a high regard for the code, “and all they seem to desire is its just and impartial execution, independent of caprice and uninfluenced by corruption. That the laws of China are, on the contrary, very frequently violated by those who are their administrators and constitutional guardians, there can, unfortunately, be no question; but to what extent, comparatively with the laws of other countries, must at present be very much a matter of conjecture: at the same time it may be observed, as something in favor of the Chinese system, that there are substantial grounds for believing that neither flagrant nor repeated acts of injustice do, in point of fact, often, in any rank or station, ultimately escape with impunity.”[218] Sir George Staunton is well qualified to speak on this point, and his opinion has been corroborated by most of those who have had similar opportunities of judging; while his translation of the Code has given all persons interested in the question the means of ascertaining the principles on which the government ostensibly acts.
This body of laws is called Ta Tsing Liuh Lí, i.e., ‘Statutes and Rescripts of the Great Pure Dynasty,’ and contains all the laws of the Empire. They are arranged under seven leading heads, viz.: General, Civil, Fiscal, Ritual, Military, and Criminal laws, and those relating to Public Works; and subdivided into four hundred and thirty-six sections, called liuh, or ‘statutes,’ to which the lí, or modern clauses, to limit, explain or alter them, are added; these are now much more numerous than the original statutes. A new edition is published by authority every five years; in the reprint of 1830 the Emperor ordered that the Supreme Court should make but few alterations, lest wily litigants might take advantage of the discrepancies between the new and old law to suit their own purposes. This edition is in twenty-eight volumes, and is one of the most frequently seen books in the shops of any city. The clauses are attached to each statute, and have the same force. No authorized reports of cases and decisions, either of the provincial or supreme courts, are published for general use, though their record is kept in the court where they are decided; the publication of such adjudged cases, as a guide to officers, is not unknown. An extensive collection of notes, comments, and cases, illustrating the practice and theory of the laws, was appended to the edition of 1799.
THE PENAL CODE OF CHINA.
A short extract from the original preface of the Code, published in 1647, only three years after the Manchu Emperors took the throne, will explain the principles on which it was drawn up. After remarking upon the inconveniences arising from the necessity of aggravating or mitigating the sentences of the magistrates, who, previous to the re-establishment of an authentic code of penal laws, were not in possession of any fixed rules upon which they could build a just decision, the Emperor Shunchí goes on to describe the manner of revising the code:
“A numerous body of magistrates was assembled at the capital, at our command, for the purpose of revising the penal code formerly in force under the late dynasty of Ming, and of digesting the same into a new code, by the exclusion of such parts as were exceptionable and the introduction of others which were likely to contribute to the attainment of justice and the general perfection of the work. The result of their labors having been submitted to our examination, we maturely weighed and considered the various matters it contained, and then instructed a select number of our great officers of state carefully to revise the whole, for the purpose of making such alterations and emendations as might still be found requisite. Wherefore, it being now published, let it be your great care, officers and magistrates of the interior and exterior departments of our Empire, diligently to observe the same, and to forbear in future to give any decision, or to pass any sentence, according to your private sentiments, or upon your unsupported authority. Thus shall the magistrates and people look up with awe and submission to the justice of these institutions, as they find themselves respectively concerned in them; the transgressor will not fail to suffer a strict expiation of his crimes, and will be the instrument of deterring others from similar misconduct; and finally both officers and people will be equally secured for endless generations in the enjoyment of the happy effects of the great and noble virtues of our illustrious progenitors.”
GENERAL, CIVIL, AND FISCAL LAWS.
Under the head of General Laws are forty-seven sections, comprising principles and definitions applicable to the whole, and containing some singular notions on equity and criminality. The description of the five ordinary punishments, definition of the ten treasonable offences, regulations for the eight privileged classes, and general directions regarding the conduct of officers of government, are the matters treated of under this head. The title of Section XLIV. is “On the decision of cases not provided for by law;” and the rule is that “such cases may then be determined by an accurate comparison with others which are already provided for, and which approach most nearly to those under investigation, in order to ascertain afterward to what extent an aggravation or mitigation of the punishment would be equitable. A provisional sentence conformable thereto shall be laid before the superior magistrates, and, after receiving their approbation, be submitted to the Emperor’s final decision. Any erroneous judgment which may be pronounced, in consequence of adopting a more summary mode of proceeding in cases of a doubtful nature, shall be punished as wilful deviation from justice.” This, of course, gives great latitude to the magistrate, and as he is thus allowed to decide and act before the new law can be confirmed or annulled, the chief restraints to his injustice in such cases (which, however, are not numerous) lie in the fear of an appeal and its consequences, or of summary reprisals from the suffering parties.
The six remaining divisions pertain to the six administrative boards of the government. The second contains Civil Laws, under twenty-eight sections, divided into two books, one of them referring to the system of government, and the other to the conduct of magistrates, etc. The hereditary succession of rank and titles is regulated, and punishments laid down for those who illegally assume these honors. Most of the nobility of China are Manchus, and none of the hereditary dignities existing previous to the conquest were recognized, except those attached to the family of Confucius. Improperly recommending unfit persons as deserving high honors, appointing and removing officers without the Emperor’s sanction, and leaving stations without due permission, are the principal subjects regulated in the first book. The second book contains rules regarding the interference of superior magistrates with the proceedings of the lower courts, and prohibitions against cabals and treasonable combinations among officers, which are of course capital crimes; all persons in the employ of the state are required to make themselves acquainted with the laws, and even private individuals “who are found capable of explaining the nature and comprehending the objects of the laws, shall receive pardon in all offences resulting purely from accident, or imputable to them only from the guilt of others, provided it be the first offence.”
The third division, of Fiscal Laws, under eighty-two sections, contains rules for enrolling the people, and of succession and inheritance; also laws for regulating marriages between various classes of society, for guarding granaries and treasuries, for preventing and punishing smuggling, for restraining usury, and for overseeing shops. Section LXXVI. orders that persons and families truly represent their profession in life, and restrains them from indulging in a change of occupation; “generation after generation they must not vary or alter it.” This rule is, however, constantly violated. Section XC. exempts the buildings of literary and religious institutions from taxation. The general aim of the laws relating to holding real estate is to secure the cultivation of all the land taken up, and the regular payment of the tax. The proprietor, in some cases, can be deprived of his lands because he does not till them, and though in fact owner in fee simple, he is restricted in the disposition of them by will in many ways, and forfeits them if the taxes are not paid.
RITUAL, MILITARY, AND CRIMINAL LAWS.