_She-fo-pao_, on hearing a rustling noise among the corn, and perceiving

the shadow of a person through the obscurity of the night, immediately

hailed him, but the wind blowing very fresh, he did not hear any reply.

_She-fo-pao_ then took alarm, on the suspicion that the sound proceeded

from thieves, or else from wild beasts, and lighting the match-lock,

which he held in his hand, fired it off, in order to repel the invaders

whoever they might be.

_Vang-yung-man_ was wounded by the shot in the head, cheeks, neck, and

shoulder, and instantly fell to the ground. _Vang-ky-hao_ hearing the

explosion, hastened forward, and called aloud to enquire who had fired

the gun. The other heard the voice, and going to the place from whence

it proceeded, then learned whom he had wounded by the mischance. The

wounds of _Vang-yung-man_ being mortal, he expired after a very short

interval of time had elapsed.

_She-fo-pao_, being repeatedly examined by the magistrate, acknowledged

the fact without reserve, and, upon the strictest investigation and

enquiry being entered upon, deposed, That it was really during the

obscurity of the night that he had ascended the hill, in order to watch

the corn, and on hearing a noise proceed from a quarter of the field

that was extremely dark, and in which the shadow of some person was

discernable, he had called out, but received no answer:--That the

suspicion then arose in his mind, that they were either thieves or wild

beasts, and alarmed him for the security of his person, being then

entirely alone, he therefore fired the gun to repel the danger, and

wounded _Vang-yung-man_ by mischance, so that he afterwards died.

That he, the deponent, was not actuated by any other motive or intention

on this occasion, nor desirous of causing the death of an individual.

The relations of the deceased being then examined, give a corresponding

evidence, and raised no doubts in other respects to the truth of the

above deposition. In consideration, therefore, hereof it appears that,

although _She-fo-pao_ is guilty of homicide by gun-firing, yet, since he

was upon the watch over the fields, in the darkness of the night, and

perceived the shadow of a man, whom he hailed, and from whom he received

no answer, and had in consequence apprehended the approach of thieves or

wild beasts, to prevent which, he fired the gun that occasioned the

wounds whereof the man is now dead--It follows, that there did not exist

any premeditated intention of murder.--The act of which _She-fo-pao_

stands convicted may be, therefore, ranked under the article of homicide

committed in an affray, and the sentence accordingly is, to be strangled

upon the next ensuing general execution or gaol delivery.

The above report being transmitted to the supreme criminal tribunal at

Pekin,--They rejoin,

That, on investigation of the laws we find it ordained, that homicide by

gun-firing shall receive a sentence conformable to the law against

intentional murder; and that the law against intentional murder gives a

sentence of decapitation on the next ensuing public execution, or gaol

delivery. It is likewise found to be ordained by law, that whoever shall

unwarily draw a bow, and shoot an arrow towards fields or tenements, so

that any person unperceived therein shall be wounded, and die therefrom,

the offender shall receive a hundred blows with the bamboo, and be

banished to the distance of three thousands lys (near a thousand miles).

In the case now before us, _She-fo-pao_, being armed with a musquet,

goes to watch the corn, hears a noise in the fields, and calls aloud,

but, receiving no answer, suspects it to proceed from thieves or wild

beasts, and fires the gun, by which _Vang-yung-man_ was wounded, and is

now dead. But in the deposition given in by the defendant, the

declaration that he saw the shadow of some person does not accord with

the suspicion afterwards expressed, that the noise arose from wild

beasts. If, in truth, he distinguished traces of a man, at the time of

his calling out, notwithstanding that the violence of the wind prevented

his hearing the reply, _She-fo-pao_ had ocular proof of the reality of

the person from the shadow he had seen. Continuing our investigation, we

have further to notice, that when _She-fo-pao_ took his station in order

to guard the middle ground, _Vang-yung-man_ was engaged in watching his

fields in a similar manner, and would have occasion to go near the

limits of the middle ground in his way to his own farm, and which could

not be far removed from the path leading to the middle ground; on which

account it behoved _She-fo-pao_ to hail the person repeatedly, previous

to the firing of the gun, whose effect would be instantaneous, and

occasion the death of the unknown person from whom the sound proceeded.

_She-fo-pao_ not having repeatedly hailed the person from whom the noise

had arisen to disturb him, and proceeding to the last extremity upon the

first impulse or alarm, are grounds for suspecting that there exists a

fallacy and disguise in the testimony given in this affair, in which

case, a sentence conformable to the law against homicide, committed in

an affray, would afford a punishment unequal and inadequate to the

possible aggravation of the offence.

On the other hand, it would appear, in confirmation of his statement,

that these fields were, according to the custom of the neighbouring

villages, understood to be guarded at that time in a the manner

aforesaid, and that circumstance proving true, the accident that

followed might still be considered solely as the effect of apprehension

of wild beasts by night, inducing the accused to fire towards fields or

tenements, so as to wound a man mortally by the mischance.

Should a strict examination admit of this interpretation of the offence,

the sentence may be awarded according to the law, immediately applicable

to the subject, and not in conformity with the law against homicide

committed in an affray. As the life or death of the offender rests on

the preference to be shewn towards either of those expositions of the

case, it is resolved to hold any immediate decision as premature, and we

issue our directions to the said sub-viceroy to revise the prior

decision; and, with the assistance of a renewed investigation, finally

to determine and report to us the sentence which he may conceive most

agreeable to the spirit of our laws.

After a second investigation, and reconsideration of the affair, the

sub-viceroy sent in the following report to the supreme tribunal:

Pursuant to the order for revisal issued by the supreme criminal

tribunal, _She-fo-pao_ has been again examined at the bar, and deposes,

That on hearing a noise in the corn fields, he conceived it to proceed

from thieves, and called out in consequence, but, receiving no answer,

and finding the noise gradually to approach him, he then suspected it to

have arisen from a wolf or tyger; and, in the alarm thus excited for his

personal safety, had fired the gun, by which _Vang-yung-man_ had been

mortally wounded; That, since the event happened in the second watch of

the night, after the moon had set, and while clouds obscured the faint

light of the stars, it was really a moment of impenetrable darkness; and

that it was only at the distance of a few paces that he distinguished

the approach of the sound that had alarmed him, but, in fact, had never

seen any shadow or traces whatsoever; That he had perceived any traces

or shadow of that description, he would not have ceased to call out,

though he had failed to receive an answer the first time, nor would he

have had the temerity to fire the gun, and render himself guilty of

murder.

That, on the preceding examination, the severity and rigour of the

enquiry regarding the grounds upon which he suspected the approach of

thieves, so as to induce him to fire, had overcome him with fear, being

a countryman unused to similar proceedings, and produced the apparent

incongruity in his deposition, but that the true meaning and intent was

to express his absolute uncertainty whether the alarm arose from thieves

or wild beasts and nothing farther, and that from such deposition he had

never intentionally swerved in the course of the investigation.

According, therefore, to the amendment suggested by the supreme

tribunal, it appears indeed, that when the noise was first perceived in

the fields, _She-fo-pao_ had called out, and on being prevented by the

wind from hearing a reply, had taken alarm as aforesaid.

And whereas it was likewise deposed by _She-fo-pao_, That the grain

being ripe at that season, the stems were exceeding high and strong, so

as to render it difficult to walk amongst them, it seems that

_Vang-yung-man_, in walking through the corn, had produced a rustling

noise very audible to _She-fo-pao_, who was sitting on the declivity of

the hill, and in a direction in which the wind favoured the progress of

the sound; but when the latter called out, the wind, on the contrary,

prevented him from being heard, and consequently from receiving an

answer; this mischance, therefore, gave rise to his suspicion of the

approach of wild beasts, which appears to have been the sole and

undisguised motive for firing the gun.

This statement of facts being narrowly investigated, in compliance with

the supreme tribunal's order for revisal, may be confided in as

accurate, and worthy of credit; the result, therefore, is that the

offender during the darkness of the night, and under the apprehension of

the approach of a wolf or tyger, had fired a musquet in a spot

frequented by men, and had mortally wounded a man by the mischance,

which corresponds with the law suggested in the order for revisal issued

by the supreme tribunal; namely, that law against an offender who should

unwarily draw a bow and shoot an arrow towards fields or tenements, so

that any person unperceived therein should be wounded and die therefrom.

The prior decision, conformably to the law against homicide committed in

an affray, subsequent investigation does not confirm; and _She-fo-pao_

is, therefore, only punishable with banishment.

This second report being received by the supreme criminal tribunal, they

declare that,

The sentence having been altered on a revision by the sub-viceroy, and

rendered conformable to the law, which ordains that, whoever shall

unwarily draw a bow and shoot an arrow towards fields or tenements, so

that any person unperceived therein may be wounded, and die therefrom,

the offender shall receive a hundred blows with the bamboo, and suffer

banishment to the distance of 3000 lys.

We confirm the sentence of a hundred blows of the bamboo, and banishment

to the distance of 3000 lys; and further prescribe, that ten ounces of

silver (3_l._ 6_s._ 3_d._) shall be paid by the offender to the

relations of the deceased for the expences of burial.

The sentence, being thus pronounced on the 19th day of the 5th moon, of

the 27th year of _Kien-Long_, received the Imperial sanction on the 21st

day of the same moon, in the following words: Pursuant to sentence be

this obeyed.

KHIN-TSE.

[26] Each watch is two hours, and the second watch begins at eleven

o'clock.

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]."

[27] A debtor is released when it appears that the whole of his property

has been given up for the use of his creditors.

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 it is impossible, at the same time, to suppress a glow of

indignation, in witnessing so mean and obsequious a degradation of the

human mind, which can bring itself, under any circumstances, patiently

to submit to a vile corporal punishment, administered by the hand of a

slave, or by a common soldier; and when this is done, to undergo the

still more vile and humiliating act of kissing the rod that corrects

him. But the policy of the government has taken good care to remove any

scruples that might arise on this score. Where paternal regard was the

sole motive, such a chastisement could not possibly be followed with

dishonour or disgrace. It was a wonderful point gained by the

government, to subject every individual, the Emperor only excepted, to

the same corporal correction; but it must have required great address,

and men's minds must have been completely subdued, or completely

convinced, before such a system of universal obedience could have been

accomplished, the consequence of which, it was obvious, could be no

other than universal servility. It could not fail to establish a most

effectual check against the complaints of the multitude, by shewing

them that the same man, who had the power of punishing them, was equally

liable to be corrected in his turn, and in the same manner, by another.

The punishment of the bamboo must, I suspect, be one of the most ancient

institutions of China. Indeed we can scarcely conceive it ever to have

been introduced into a society already civilized; but rather to have

been coeval with the origin of that society.

A similar kind of personal chastisement for light offences, or

misconduct, was inflicted in Russia on persons of all ranks, but with

this difference, that the correction was private and by order of the

Sovereign alone. The Czar Peter, indeed, generally bestowed a drubbing

on his courtiers with his own hand; who, instead of being dishonoured or

disgraced by such a castigation, were supposed, from that very

circumstance, to be his particular favourites, and to stand high in his

confidence. The great Mentzikoff is said to have frequently left his

closet with a black eye or a bloody nose; and seemed to derive

encreasing importance from the unequivocal marks of his master's

friendship. Even at the present day, or till very lately, little

disgrace was attached to the punishment of the _knout_, which was a

private flagellation by order of the court; but this abominable practice

either is altogether discontinued, or in its last stage of existence.

Such arbitrary proceedings could not long remain in force among an

enlightened people.

Travels in China, Containing Descriptions, Observations, and Comparisons, Made and Collected in the Course of a Short Residence at the Imperial Palace of Yuen-Min-Yuen, and on a Subsequent Journey through the Country from Pekin to Canton · 第 25 / 43 段