CHAPTER XX. Law

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, diké 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