Travels in China - Sir John Barrow (drm ebook reader .TXT) 📗

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].

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]."

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