American endeavor. The Japanese sphere, Tientsin, etc., are provided
for, and the Chicago Y. M. C. A. raised a large sum of money for a
Y. M. C. A. in Hongkong. The sailors in Hongkong contribute the third
largest amount to their missions (being exceeded only by Wellington
and Liverpool) of any port in the world. I am not referring to amounts
collected from passengers on steamers, but the support given by the
sailors themselves. This shows that Jack Tar and John Celestial
recognize the manly and godly worth of the “sky pilot”, even if they
pivot many of their jokes on his solemn patience.
Since Morrison’s translation, there have been quite a number of
translations into the official Mandarin, and even into Romanized
letters expressing the dialects of the southern provinces. This latter
Bible can only be understood by mission school pupils. In 1890 the
missionary bodies met at Peking and determined to translate the whole
Bible into approved characters which idiomatized better certain words
which had been improperly understood in former translations. The
committee meets once a year at different cities in China. By 1910 the
New Testament and the Psalms had been completed, and the whole Bible
will probably be completed by 1918. The head translator is the American
Presbyterian educator, Doctor Mateer, the founder of Shangtung Union
University at Wei Hsien and Tsinan, and the noted Doctor W. A. P.
Martin, the author and educator of Peking, is another translator.
Shintoism (the Japanese adaptation of Confucianism) has been found
lacking in Japan, as it raises no positive God-fearing sentiment in
the masses, no national morality, no individual conscientiousness
which can be relied on when the letter of the law fails. This is the
rock strength which Christianity has given the West, and the Chinese
republicans see what they have missed in not adopting Christianity.
On February 9, 1912, the Japanese home minister called a conference
of the Buddhist, Confucian (Shinto), and Christian religions, to see
what could be done to strengthen Japan’s creeds, so that the state
would benefit in that moral and God-fearing power which Christianity
has given to the western masses. Christianity makes but one answer to
China, and that is to take Christianity and the Bible as a religion
and a revelation, and reduce Buddhism, Confucianism and Taoism to the
ethical and literary place which Socrates, Plato, Homer, Virgil, etc.,
occupy in western thought and practise. President Sun Yat Sen, of the
Nanking Confederated Assemblies of South China, appreciates this, and
has promised the Chinese Christians that he will do all he can in time
to form a Chinese Christian church; not a Roman or Greek or American
or British church, but a free Chinese Christian church. When China
takes the Bible nearest of all books to her heart, and has her own
head bishop in each denomination absolutely free, she will then have
achieved greatness and glory, and found joy and truth.
The troublesome temperance question of the military canteen has been
solved, I think, under severest tropical conditions at Hongkong,
where there is a large garrison, and despite well meaning W. C. T.
U’s. at home under different conditions, the canteen, where “vice is
regulated”, has, I believe, come to stay for a while. At one time the
soldier drifted into the slums. He sighed for company as only an alien
among the heathen can sigh. He drank bad liquor and was robbed when
drugged thereby. That he will drink liquor must be accepted, as he is
the rougher sort of man, although worthy for all that. He committed
offenses before the tender eye of the public, brought the service into
ill repute, and cost the municipality money for trials and police. He
endangered international peace, for in his “cups” he was always seeing
differences instead of amenities when he met a soldier of another
nation. He made himself unfit for real war. The Army and Navy Canteen,
or Club, was adopted, I think, largely on Lord Roberts’ suggestion (and
who will question “Bob’s” wisdom). The soldier was put on his honor
and he rose fully to his opportunity. The sergeants on guard permitted
sufficient indulgence, but regulated rows. Most of the men drank less,
because they felt that they were drinking in “their own home”, but
if they over-drank, their fellows were on hand to see that they were
taken to barracks without being dragged through the public streets.
Good liquor was supplied. Disease decreased, as the men were contented
in barracks. Authority was respected, for it comes as second nature
for even a drunken soldier to obey a soldier. The soldier is now never
robbed; his life is safe; he saves money, and he drinks less because
he drinks “as a gentleman what ’as ’is Club wi’ the best on ’em.” The
W. C. T. U. is a necessary theory; the Soldiers’ Canteen of Hongkong,
Manila, and Delhi, is a brilliant compromise which should be accepted
as a solution until the world is so good that the brave and perhaps
rough soldier is needed no more. Candy is sold to the soldiers, as it
is found that the absorption of carbohydrates greatly decreases the
appetite for alcohol. The Officers’ Army and Navy Cooperative Stores
sell goods to men and their families at cost, and the American army
is to adopt this method to reduce the cost of living at foreign army
posts.
XXIV
LEGAL PRACTISE AND CRIME IN CHINA
Books and articles that have thrown light on this dark question include
those of Wu Ting Fang, once minister to America; Mr. Jernigan’s _China
in Law_; Sir G. T. Staunton’s _Penal Code_; Sir C. Alabaster’s _Chinese
Criminal and Property Law_; Parker’s _Chinese Family Law_; Mayer’s
_Chinese Government_; lengthy notes in the _Middle Kingdom_, by the
learned American, S. Wells Williams; Dyer Ball’s _Things Chinese_;
Professor Giles’ _Historic China_; Sir Henry Maine’s commentaries; and
the old _Chinese Repository_. The Hebrew penal code, _Leviticus_, is
antedated by the Chinese penal code of Shun’s reign nearly a thousand
years. It can not compare, of course, in extent or in lofty principle
with the Levitican code. Brutal punishments, such as branding,
amputation of members, linchee, bambooing and torture made these early
reigns so peaceful that it is said “money lost on the road would be
left there until the owner returned to find it”. The truth probably
is that this referred to the prince’s money, and that if injustice
was done the common man, the inferior serf or slave, by the prince or
the powerful, the weaker had to whistle for his judgment as long then
as he has had to do in subsequent periods of history. Each change of
dynasty brought in a revision of the code, not that it was made more
humane, but that there were necessary items of _lèse majesté_ to add.
For instance, the Manchus required that when the emperor passed at
night, every onlooker (all except the soldiers were kept indoors) was
required to turn _volte-face_ on pain of death. There was no procedure
for revoking a statute. The judge could unexpectedly spring on the
victim some precedent or law that was followed in the “year one”, and
the prisoner could plead in vain that another law of the “year two”
gave him a better chance. In other words, the mandarin practically said
with one of Louis Fourteenth’s judges, to litigants: “_La loi, c’est
moi_”, and he interpreted the code as he wished! United protest to the
Peking censors, mobbing and refusal to pay taxes were in reality the
only reprisals that the people could exert against the exactions of an
unjust judge. Confucius, in rendering service as a ruler in two states,
interpreted codes. One of the states, the Tsin (B. C. 246), shortly
after Confucius, put in effect the Li Kwai code in six books. Codes of
the following important dynasties exist: Han, Tsin, Tang, Sung, Yuan,
Ming and Tsing (Manchu).
The Grecian Thebes, of which Sophocles wrote, was notorious for its
torture of suspected criminals, and Herodotus relates that the ancient
Medes exercised similar practises. The “third degree” is outrageously
developed in China as in no other country, the law requiring
confessions in every case before penalty is inflicted. “_More Sinico_”,
the pepper is rubbed in the eyes, and the confession is forced out
of whomsoever is made the victim. Crimes are often “planted”, and
blackmail of the weaker by the stronger runs riot. The laws themselves
have been noted for their conciseness and simplicity, the number of
volumes signifying little as the Chinese ideograph-text is expansive.
“It is prohibited to murder”; “It is prohibited to trespass”, etc.
There is imperfect codification of precedents and decisions, so that
the prisoner must rely on himself (or on money!) to explain that the
homicide was in self-defense; the trespass to escape from a mad dog.
The spirit is always above the letter; it alone makes perfect law
possible. Where there is a will to do right, right generally prevails,
and it may be said that many of the Chinese judges try to do right,
get at the truth, and give a common-sense judgment, for they are not
iron-bound as the Occident is under appeal, precedent, quibble and
evasion; the letter above the spirit. If the case is an action within
a clan, the “hsiang lao” (old man of the village) generally assists
the judge in getting at the truth. If the action is between two clans
of two villages, or between competing guilds, God help the judges in
sifting the truth from the lies! Such situations arouse the sympathy
of disinterested foreigners for Chinese judges. Sometimes the native
is not at fault, as the Chinese viceroys and Foreign Boards have often
complained that some of the Romanists and one legation have interfered
to a greater or lesser degree when a nominal Christian, who had a suit
at law, was trying to evade justice by enrolling himself as a “rice
Christian”.
The frequent edicts of the throne, published in the Peking _Gazette_,
at once became laws, such as: “It is prohibited to smoke opium;”
“It is prohibited to bind feet,” etc. Law will now be enunciated as
in America, by the central and provincial legislatures of the new
republic. A sort of martial law now prevails, and the provinces,
after a quick drum-head trial, are shooting or lopping off the heads
of pirates and mutinous soldiers in great numbers. Decapitation,
flogging, torture, strangling, stocks, cangue, etc., will all probably
be retained, as the Chinese are stolid when it comes to bearing pain,
and the criminal classes must be treated with severity. Linchee,
or Ling Chih (cutting into a thousand pieces) may be discontinued
and shooting substituted. If, however, Confucianism remains as the
leading religion, decapitation will be continued. The Confucians
loathe the severing of the head, and this punishment is a powerful
deterrent of crime. Imprisonment in a modern jail is no punishment for
a hard-working Chinese, and something else must be substituted, such as
the state impressing the convict’s free labor, to offset the convict’s
family becoming a charge on the clan or state. It has been found in
Yunnan City, Kweilin City and elsewhere that a modern jail, with good
food and sanitary conditions, induces the poor wretches to commit
crimes so as to achieve permanent incarceration as quickly as possible!
As in the French system, the old-style Chinese judge is also often
the prosecutor, and witnesses and accused are made to fight it out in
the hearing of the judge, so that as the frequent “lie” is passed,
the truth may jump from the tossed bag! (_Confronter les témoins à
l’accusé._) The twenty-eight volumes of the Manchu code cover general,
civil, finance, military, criminal and public works law.
The following, taken from the Shanghai _Shen Pao_, of August 29 and
30, 1911, the oldest and most reliable native paper of China, will
illustrate the “third degree” methods used by the old literati judges
of the Manchus, and incidentally the astonishing endurance of the
Chinese, who from time immemorial have lived outdoor lives and whose
hearts have incredible powers of recovery. “The murderer, Hsu, was
brought before the assistant magistrate Chung on August 27th for a
final trial. The magistrate ordered the clerk to read the confession
of the murderer (procured by torture in the native walled city of
Shanghai), who said it was incorrect in one statement. The assistant
magistrate consented to the correction. When City Magistrate Tien
learned of this, he ordered Hsu to be whipped. Up to three hundred
strokes no groan escaped from Hsu. At this Tien was angered and called
to the torturers to strike heavily. Hsu was now whipped so cruelly that
his flesh was cut from his back, and some muffled groans were heard.
When five hundred strokes had been administered, he was again asked
to confess or suffer pain. As he was still obstinate the magistrate
ordered him to receive eight hundred strokes of the bamboo. He was
now subjected to the most inhuman kind of torture, that in which the
prisoner kneels on an iron chain, while two yamen runners stand upon a
wooden beam laid across the back of his legs. As Hsu stood even this
torture, he was strung up by his fingers and queue on a scaffold. Hsu
cried out that he would not be kicked by the runners. The magistrate
was now very angry. He ordered Hsu to be stretched upon the weighing
machine (which gradually pulls the victim apart). The man fainted,
but when he recovered he would not confess. The scaffold was again
requisitioned, and he was strung up again by fingers and queue. He
struggled and his queue of hair parted from his head. Next day, he was
made to kneel on the iron chain under two men for two hours. When he
was about to faint, the two runners picked him up and ran him about to
restore his heart action. Alternately they put him upon the chain and
restored his circulation. He then cried out: ‘Why should I sign two
confessions; I have but to die.’ He was ordered to receive four hundred
strokes of the bamboo. The magistrate Tien threatened to persecute the
victim’s wife and son. Hsu now relapsed into a fever which has been
running two days.”
The Chinese when in a rage (chih) is not a knife-user as are the
southern races of Europe, but a hair or queue-puller. Now that the
queue is being severed in China, he will probably take to kicking or
boxing, in the French and Anglo-Saxon methods, in expressing his temper.
The social adjuster, or peace-talker, is a well-known institution, more
generally employed within the hsiang (village) and guild, than the
law. “To go to law is to put one’s estate in the ditch and one’s soul
in hell,” is one of their sayings. Therefore, the importance of first
engaging the services of the adjuster, or second, to meet the second
of the offender, rather than to enter suit, and get into the hands of
lawyers, court runners, grasping judges, etc. This heathen adjuster
answers to the work that the lay deacon may have done in the early
Christian church, in settling cases out of court. It is an institution
that might well be copied from China in these days of criticism of
the bench and bar by such authorities as Ex-presidents Roosevelt and
Taft, and Mr. Bryan. The Chinese adjuster puts the case before, and
settles it in accord with, public opinion, without any idea of fee;
and certainly public opinion is a better judge than the law whose
justice is built too much on fees, appeals and the maintenance of a
large set of pettifoggers who live on the woes and ill temper of the
unfortunate. In the revision of the Chinese code by Wu Ting Fang, Wang
Chung Wei (educated at Yale), etc., long life to the social adjuster,
the village Solon, whose ways are ways of peace, but whose path is not
one of pleasantness! We have said that authorities have castigated the
bar in China and America. Here is what Cicero said of Rome (the mother
of laws) in the “Murena” oration: “For though many things have been
settled excellently by the laws, yet most of them have been depraved
and corrupted by the talkatively litigious genius of lawyers.”
The method of “planting” forged evidence is met with in China where a
powerful enemy wishes to ruin some victim. The Yuen Fung Yuen Bank, of
Bonham Strand, is one of the largest native banks in Hongkong, in which
colony it is illegal to import opium except through the Farm, which
pays the government a large royalty. This valuable drug passes almost
at bullion value. Anonymous information was sent to the Farm contractor
that at 8:00 P. M. the bank would receive illicit opium. Detectives
were put in ambuscade. At the hour mentioned a coolie bearing a basket
rapped at the bank’s door and shouted: “A letter for you.” Then he ran,
but was caught. An examination revealed a tin of opium at the bottom
of a basket of eggs. Investigation disclosed the whole thing as a
“plant” prepared by an old enemy of the Yuen Fung Bank. In the same way
bodies of the dead and murdered are often secretly placed at the doors
of innocent victims, and as much motive as possible is prepared so as
to get them in trouble with law and popular indignation. In years now
happily passed missionaries have been bothered in this way by “Boxer”
conspirators.
The Chinese code provides that all deeds shall bear the stipulation
that “the land was first offered to the seller’s kinsmen, who refused
to buy.” When a deed is lost, the Mandarin can issue a duplicate deed
on presentation of the last tax receipt and tax receipts themselves are
transferred in place of lost deeds.
In 313 B. C. the state of Tsi (present Shangtung Province) broke up its
half of a wooden tablet containing part of the agreement with the state
of Tsu (present Hupeh Province). These halves fitted into each other,
and beyond any possibility of substitution proved the genuineness
of the record. An old book called the _Si Yuen_ (washing the pit),
used in connection with the criminal code, prescribes the method of
ascertaining whether death was caused by blows or was natural. A clay
pit is heated white, the ashes are dug out, and wine is poured in.
The body is then placed on a cradle in the pit, and a roof of tiles is
placed over the pit’s mouth. If the fumes of the rice alcohol bring out
the marks, even on a partly decayed body, the murderer is searched for.
Other books relate that if a body is thrown into the water after death,
it will not show distended stomach, hair stuck to head, or foam in
mouth; the hands and feet will not be stiff, or the soles of the feet
white. Their criminologists also write that if a body is thrown into a
fire after death, there will be no burning or ashes in the throat and
nostrils. The Chinese of the old time were rather clever investigators
of crime.
This scene was presented outside the west gate of Tientsin one
October day in 1870 after the massacre at the French convent. The
French compelled Li Hung Chang to give them satisfaction. Li held the
execution at dawn so that a mob might not gather. The criminals were
flattered as martyrs. None of them was bound. New silk clothes, fine
shoes and the ornaments of females were put upon them. Arriving at the
execution ground, they were given opium. They shouted to the crowd,
“Are we showing a shamed face?” And the answer came back: “No.” “Call
us brave lads for being given to the foreigners as a sacrifice,” they
cried again. A shout of approval came back. Then they sang a war song,
and while their relatives cried, they knelt and stretched out their
own necks before the blow of the heavy, short, mercury-loaded Taifo
sword of the executioner. The shedding of a cock’s blood, even in the
British courts of Hongkong, when an oath is taken, is a survival of
the ancient Chinese custom, practised in Confucius’ day (550 B. C.),
when the ministers of the various states of Lu, Wu, Tsin, etc., had
a criminal killed, and wetting their lips with his blood, took oath
to keep the treaty, which was inscribed on wood, each party taking a
broken portion. The following incident will throw a flashlight on a
section of Chinese legal practise, just previous to the revolution of
1911. It is well known that Wu Ting Fang, two and a half years before
the revolution, had revised and modernized the Chinese code, but it was
not even in part put in practise before the revolution. In Tungkadoo, a
town of Kiangsu province, a bonze (priest) murdered a fellow-bonze and
confessed under third-degree torture. The native authorities brought
him to Shanghai to be strangled, but the chief bonze, with headquarters
at Chingkiang, requested that the criminal should be turned over to him
to be burned to death according to the code of the Order. Cremation of
dead bodies was more common in China when Marco Polo visited the land
than it is now, though it is practised in the Honan Island section of
Canton.
It is probable that not for some years will the punishments of
flogging, neck cangue and stocks be removed from the revised Chinese
code. These punishments, involving public “loss of face,” are abhorred
by the Chinese, and while they are somewhat barbaric, they are
effective deterrents of crime in China. They were both revived by the
British government of Hongkong in dealing with native offenders during
the turbulent times of the 1911–12 revolution, when it was found that
hard labor, jail sentences and fines were laughed at by the immense
Chinese population of the island colony. Greece, as long ago as 330
B. C., had borrowed the cangue from China, and Demosthenes, in the
_Oration On the Crown_, can think of no way so effective to damage his
accuser, Aeschines, than to mention that the latter’s father had to
wear a zulon (cangue) as a punishment for thievery. Chien Shao Cheng,
of the Justice Department, Peking, has visited American prisons and
studied foreign penal methods.
An “Investigating and Arresting Department” is the name by which one
of the Manchu courts at Canton went. It employed detectives, and the
taotai (mayor) did not disguise the fact that the court resorted to
“third degree” tortures. This was one of the many things which made
followers for the reformers. Banishment cases are constantly coming
up. The prisoner who will not or can not depart to another country or
province is put in the stocks for four hours a day for a year, and the
remainder of the day he spends at hard labor. Strangling in cages was
in vogue at Canton in the last days of the Manchu reign, orders having
come from Peking in September, 1911, that the coolie who attempted to
assassinate Admiral Li should be suspended by the neck in a bottomless
cage. In the yamen at Chingtu City stands a stone tablet bearing the
word Sha (kill), erected by the Shansi marauder, Chang Hien Chung, who
massacred the Szechuenese, who supported the native Ming emperors. The
stone remained as a threat to be used by the Manchu mandarins on behalf
of the Ta Ching dynasty. The Ministry of Justice under the Manchu
régime ordered the viceroys and governors to prohibit foreigners from
unnecessarily being present in court.
On account of the scarcity of foreign population, the Hongkong jury
consists of seven and the Shanghai jury of five. There is constant
argument between the Chinese press and the English press of the treaty
ports in China on the subject of “mixed” courts in which foreigners
sit. China is writing a reformed code in which Wu Ting Fang had a hand,
and in which the new minister, Wong Chun Hui, is interested, and is
pressing forward to the day when at least she will try all Chinese,
including those who have injured foreigners in settlements. The
newspaper argument will do good instead of harm. In 1899 Japan ceased
to allow her citizens to be tried under foreign law, and even began
to try foreigners under Japanese law. On the subject of trusts and
directorial responsibility, I have seen in the Tientsin _Ching Wei Pao_
a plea that employés be not fined and imprisoned for corporate faults,
but that those who make the money (directors and shareholders) bear the
responsibility. China is, and has always been, a frank sociological
thinker.