Ancient China Simplified
by Edward Harper Parker
Chapter XX - Law
Let us now consider the notions of law as they existed in the primitive Chinese mind. As all government was supposed to be based on the natural laws of the universe, of which universal law or order of things, the Emperor, as “Son of Heaven,” was (subject to his own obedience to it) the supreme mouthpiece or expression, there lay upon him no duty to define that manifest law; when it was broken, it was for him to say that it was broken, and to punish the breach. Nature’s bounty is the spring, and therefore rewards are conferred in spring; nature’s fall is in the autumn, which is the time for decreeing punishments; these are carried out in winter, when death steals over nature. A generous table accompanies the dispensing of rewards, a frugal table and no music accompanies the allotment of punishments; hence the imperial feasts and fasts. Thus punishment rather than command is what was first understood by Law, and it is interesting to observe that “making war” and “putting to death” head the list of imperial chastisements, war being thus regarded as the Emperor’s rod in the shape of a posse of punitory police, rather than as an expression of statecraft, ambitious greed, or vainglorious self-assertion. Then followed, in order of severity, castration, cutting off the feet or the knee-cap, branding, and flogging. The Emperor, or his vassals, or the executive officers of each in the ruler’s name, declared the law, i.e. they declared the punishment in each case of breach as it occurred. Thus from the very beginning the legislative, judicial, and executive functions have never been clearly separated in the Chinese system of thought; new words have had to be coined within the last two years in order to express this distinction for purposes of law reform. Mercantile Law, Family Law, Fishery Laws–in a word, all the mass of what we call Commercial and Civil Jurisprudence,–no more concerned the Government, so far as individual rights were concerned, than Agricultural Custom, Bankers’ Custom, Butchers’ Weights, and such like petty matters; whenever these, or analogous matters, were touched by the State, it was for commonwealth purposes, and not for the maintenance of private rights. Each paterfamilias was absolutely master of his own family; merchants managed their own business freely; and so on with the rest. It was only when public safety, Government interests, or the general weal was involved that punishment-law stepped in and said,–always with tao, “propriety,” or nature’s law in ultimate view: “you merchants may not wear silk clothes"; “you usurers must not ruin the agriculturalists"; “you butchers must not irritate the gods of grain by killing cattle”:– these are mere examples taken at random from much later times.
The Emperor Muh, whose energies we have already seen displayed in Tartar conquests and exploring excursions nearly a millennium before our era, was the first of the Chou dynasty to decide that law reform was necessary in order to maintain order among the “hundred families” (still one of the expressions meaning “the Chinese people”). A full translation of this code is given in Dr. Legge’s Chinese classics, where a special Chapter of The Book is devoted to it: in charging his officer to prepare it, the Emperor only uses the words “revise the punishments,” and the code itself is only known as the “Punishments” (of the marquess who drew it up); although it also prescribes many judicial forms, and lays down precepts which are by no means all castigatory. The mere fact of its doing so is illustrative of reformed ideas in the embryo. There is good ground to suppose that the Chinese Emperor’s “laws," such as they were at any given time, were solemnly and periodically proclaimed, in each vassal kingdom; but, subject to these general imperial directions, the themis, dike or inspired decision of the magistrate, was the sole deciding factor; and, of course, the ruler’s arbitrary pleasure, whether that ruler were supreme or vassal, often ran riot when he found himself strong enough to be unjust. For instance, in 894 B.C., the Emperor boiled alive one of the Ts’i rulers, an act that was revenged by Ts’i 200 years later, as has been mentioned in previous Chapters.
In 796 B.C. a ruler of Lu was selected, or rather recommended to the Emperor for selection, in preference to his elder brother, because “when he inflicted chastisement he never failed to ascertain the exact instructions left by the ancient emperors." This same Emperor had already, in 817, nominated one younger brother to the throne of Lu, because he was considered the most attractive in appearance on an occasion when the brethren did homage at the imperial court. For this caprice the Emperor’s counsellor had censured him, saying: “If orders be not executed, there is no government; if they be executed, but contrary to established rule, the people begin to despise their superiors.”
In 746 B.C. the state of Ts’in, which had just then recently emerged from Tartar barbarism, and had settled down permanently in the old imperial domain, first introduced the “three stock” law, under which the three generations, or the three family connections of a criminal were executed for his crime as well as himself. In 596 and 550 Tsin (which thus seems to have taken the hint from Ts’in) exterminated the families of two political refugees who had fled to the Tartars and to Ts’i respectively. Even in Ts’u the relatives of the man who first taught war to Wu were massacred in 585, and any one succouring the fugitive King of Ts’u was threatened with “three clan penalties"; this last case was in the year 529. The laws of Ts’u seem to have been particularly harsh; in 55 the premier was cut into four for corruption, and one quarter was sent in each direction, as a warning to the local districts. About 650 B.C. a distinguished Lu statesman, named Tsang Wen-chung, seems to have drawn up a special code, for one of Confucius’ pupils (two centuries later) denounced it as being too severe when compared with Tsz-ch’an’s mild laws–to be soon mentioned. Confucius himself also described the man as being “too showy.” This Lu statesman, about twenty years later, made some significant and informing observations to the ruler of Lu when report came that Tsin (the Second Protector) was endeavouring to get the Emperor to poison a federal refugee from Wei, about whose succession the powers were at the moment quarrelling. He said: “There are only five recognized punishments: warlike arms, the axe, the knife or the saw, the branding instruments, the whip or the bastinado; there are no surreptitious ones like this now proposed.” The result was that Lu, being of the same clan as the Emperor, easily succeeded in bribing the imperial officials to let the refugee prince go. The grateful prince eagerly offered Tsang W&n-chung a reward; but the statesman declined to receive it, on the ground that “a subject’s sayings are not supposed to be known beyond his own master’s frontier.” About, a century later a distinguished Tsin statesman, asking what “immortality” meant, was told: “When a man dies, but when his words live; like the words of this distinguished man, Tsang W&n-chung, of Lu state.” This same Tsin statesman is said to have engraved some laws on iron (513), an act highly disapproved by Confucius. It is only by thus piecing together fragmentary allusions that we can arrive at the conclusion that “there were judges in those days.” Mention has been several times made in previous Chapters of Tsz-ch’an, whose consummate diplomacy maintained the independence and even the federal influence of the otherwise obscure state of Cheng during a whole generation. In the year 536 B.C. he decided to cast the laws in metal for the information of the people: this course was bitterly distasteful to his colleague, Shuh Hiang of Tsin (see Appendix I.), and possibly the Tsin “laws on iron” just mentioned were suggested by this experiment, for it must be remembered that Tsin, Lu, Wei, and Cheng were all of the same imperial clan. Confucius, who had otherwise a genuine admiration for Tsz-ch’an, disapproved of this particular feature in his career. In a minor degree the same question of definition and publication has also caused differences of opinion between English lawyers, so far as the so-called “judge-made law” is concerned; it is still considered to be better practice to have it declared as circumstances arise, than to have it set forth beforehand in a code. The arguments are the same; in both cases the judges profess to “interpret” the law as it already exists; that is, the Chinese judge interprets the law of nature, and the English judge the common and statute laws; but neither wishes to hamper himself by trying to publish in advance a scheme contrived to fit all future hypothetical cases.
About 680 B.C. the King of Ts’u is recorded to have passed a law against harbouring criminals, under which the harbourer was liable to the same penalty as the thief; and at the same time reference is made by his advisers to an ancient law or command of the imperial dynasty, made before it came to power in 1122 B.C.-"If any of your men takes to flight, let every effort be made to find him.” Thus it would seem that other ruling classes, besides those of the Chou clan, accepted the general imperial laws, Chou- ordained or otherwise. Although it is thus manifest that the vassal states, at least after imperial decadence set in, in 771 B.C., drew up and published laws of their own, yet, at the great durbar of princes held by the First Protector in 651 B.C., it is recorded that the “Son of Heaven’s Prohibitions” were read over the sacrificial victim. They are quite patriarchal in their laconic style, and for that reason recall that of the Roman Twelve Tables. They run: “Do not block springs!” “Do not hoard grain!" “Do not displace legitimate heirs!” “Do not make wives of your concubines!” “Do not let women meddle with State affairs!” From the Chinese point of view, all these are merely assertions of what is Nature’s law. In the year 640, the state of Lu applied the term “Law Gate” to the South Gate, “because both Emperor and vassal princes face south when they rule, and because that is, accordingly, the gate through which all commands and laws do pass.” It is always possible, however, that this “facing south” of the ancient ruler points to the direction whence some of his people came, and towards which, as their guide and leader, he had to look in order to govern them.
In the year 594 there is an instance cited where two dignitaries were killed by direct specific order of the Emperor. In explaining this exceptional case, the commentator says: “The lord of all below Heaven is Heaven, and Heaven’s continuer or successor is the Prince; whilst that which the Prince holds fast is the Sanction, which no subject can resist.”
Not very long after Confucius’ death in 479 B.C., the powerful and orthodox state of Tsin, which had so long held its own against Ts’in, Ts’i, and Ts’u, tottered visibly under the disintegrating effects of the “great family” intrigues: of the six great families which had, as representatives of the earlier eleven, latterly monopolized power, three only survived internecine conflicts, and at last the surviving three split up into the independent states of Han, Wei, and Chao, those names being eponymous, as being their sub-fiefs, and, therefore, their “surnames,” or family names. In the year 403 the Emperor formally recognized them as separate, independent vassaldoms. Wei is otherwise known as Liang, owing to the capital city having borne that name, and the kings of Liang are celebrated for their conversations with the peripatetic philosopher, Mencius, in the fourth century B.C. In order to distinguish this state from that of Wei (imperial clan) adjoining Lu and Sung, we shall henceforth call it Ngwei, as, in fact, it originally was pronounced, and as it still is in some modern dialects. The first of the Ngwei sovereigns had in his employ a statesman named Li K’wei, who introduced, for taxation purposes, a new system of land laws, and also new penal laws. These last were in six books, or main heads, and, it is said, represented all that was best in the laws of the different feudal states, mostly in reference to robbery: the minor offences were roguery, getting over city walls, gambling, borrowing, dishonesty, lewdness, extravagance, and transgressing the ruler’s commands–their exact terms are now unknown. This code was afterwards styled the “Law Classic,” and its influence can be plainly traced, dynasty by dynasty, down to modern times; in fact, until a year or two ago, the principles of Chinese law have never radically changed; each successive ruling family has simply taken what it found; modifying what existed, in its own supposed interest, according to time, place, and circumstance. Li K’wei’s land laws singularly resembled those recommended to the Manchu Government by Sir Robert Hart four years ago.
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