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.