Ancient China Simplified
by Edward Harper Parker
Public Domain Books
Ancient Chinese Law
In the spring of the year 536 B.C., Tsz-ch’an, one of the leading statesmen in the Chinese Federal Union, decided to publish for popular information the Criminal Law which had hitherto been simply “declared” by the various rulers and their officers according to the circumstances of each case. At this time the different premiers and ministers used to visit each other freely, generally in the suite of the reigning prince who happened to be either receiving or paying a visit from or to some other vassal prince. The Emperor himself, now shorn of his power, was only primus inter pares amongst these princes. Shuh Hiang, one of the ministers at the neighbouring court of Tsin, addressed the following remarkable letter to the colleague above mentioned who had introduced the legal innovation. It is published in exteso in Confucius’ own history of the times, as expanded by one of his pupils:–
“At first I used to regard you as a guide, but now all this is at an end. Our monarchs in past times were wont to decide matters by specific ordinance, and had no prepared statutes, fearing lest the people should grow contentious. Yet even so it was impossible to suppress wrong-doing; for which reason they employed justice as a preventive, administration to bring things into line, external formality to secure respect, good faith as an abiding principle, and kindness in actual treatment. They appointed certain ranks and emoluments with a view to encouraging their officers to follow the course thus sketched out for them, and they fixed certain stern punishments and fines in order to fill these officers with a dread of arbitrariness, fearing that otherwise they might fail in their duty. Thus admonition was given with every loyalty; fear was inspired by personal example; instruction was conveyed as occasion required; employment in service was accompanied by suavity; contact with inferiors was marked by a respectful demeanour; the executive arm was firmly applied; and decisions were carried out with virility. Yet, with all this, it was never too easy to secure wise and saintly (vassal) princes, clever and discriminating ministers, loyal and trusty officials, or kind and affectionate instructors. Under these circumstances, however, it was possible to set the people going, and China was at least free from revolution and misery.
“But when the people themselves become cognizant of a written law, they will cease to fear their superiors, and, moreover, they will acquire a contentious spirit. Having book to refer to, they will employ every device to elude the letter of the law. This will not do at all. It was only in times of anarchical rule that the founders of the Hia and Shang dynasties (2200 B.C. and 1760 B.C.) found it necessary to issue (to their officers) the collections of laws which still bear their two respective names; and it was also only in anarchical times (1000 B.C.) that one Emperor of our present dynasty found it necessary to publish (for his officers) the so-called Nine Laws. In other words, the advent of written law has on all three occasions connoted a decay in government. You, sir, are the chief minister of CHENG state (part of modern Ho Nan); you made a few years ago some new regulations about the parcelling of land; next you placed the system of your taxation on a fresh basis; and you now proceed to embody the three special collections just cited in a new popular code, which you have had cast in metal characters. If you are doing it with a view to pacify the people, surely you will not find this an easy matter? The ’Book of Odes’ says: ’King Wen (the virtual founder, 2200 B.C., of the then reigning Chou dynasty) took virtue as his guide, and thus gradually pacified the four quarters of the world.’ It also says: ’The methods of King Wu (son of the virtual founder) secured the confidence of all the other countries.’ Where were the written laws in those times? When people begin to get the contentious spirit upon them, they will have done with the principles of propriety, and only stickle for the letter; they will haggle upon every tiny point accessible to knife’s edge or awl’s tip. We shall witness a flood of litigious accusations; bribery and corruption will be rampant. Do you think the state of Cheng will last out your life? I have heard it said: ’When a country is about to collapse, there are many conflicting administrative changes.’ Will this apply to present conditions?”
The reply returned was:-
“With regard to what my honourable friend has been pleased to say, I am afraid my humble capacities are not sufficiently great to take the interests of posterity; my action has been taken in the interests of the state as I find it, and as I have to govern it. Though, therefore, I cannot accept tour commands, I shall be careful not to forget your kindness in proffering advice.”
Though the exact words of the above-mentioned Code in Brass have not come down to us, they are (like the Twelve Tables of Rome, eighty years later in date, were in relation to Roman jurisprudence) the foundation of Chinese Criminal Law as it exists to-day, modified, of course, dynasty by dynasty. At this time Confucius was a mere youth; but later on, as minister of a third vassal state, that of Lu, he also expressed his disapproval of a written code, much though he respected the author, whom he knew personally. Shuh Hiang’s letter is of interest as showing the pitch of philosophy, common-sense, and international courtesy to which the statesmen of China had attained 2400 years ago.
In 539 B.C. the Ts’i statesman and philosopher Yen-tsz was sent on a mission to Tsin in order to negotiate a political marriage. At this period Han K’i, also called Han Suean-tsz, was the premier of Tsin, and he despatched the minister Shuh Hiang with a complimentary message to the Ts’i envoy, accepting the offer of a suitable wife. At this time the diplomatic relations of the Chinese states were particularly interesting, because, apart from the fact that intellectual premiers ruled all the great states, most of them were personal friends, acquaintances, or correspondents of Confucius, who has left on record his judgment upon each. After the official marriage negotiations were over, Shuh Hiang ordered refreshments, and he and Yen-tsz sat down to a nice quiet little chat by themselves.
Shuh Hiang. How is Ts’i going on?
Yen-tsz. These are bad times. I don’t know what I can say about Ts’i, except that it appears to be falling into the hands of the CH’EN family. The prince neglects his people, and consequently they turn to the CH’EN family for protection. In former times Ts’i had three grain measures, each a four multiple of the other–etc. four pints, sixteen pints, sixty-four pints–and finally there was a large measure containing ten times the last, or 640 pints (or litres); but the three measures of the CH’EN family have each been raised by one unit, so that three successive fives multiplied by ten give 800 pints, and their plan is to make loans of grain with their private 8oo-pint measure, and then to take back payments in the prince’s measure. The wood from the mountains is sold in the market-place as cheaply as on the mountains; fish, salt, clams, and cockles are sold in the market-place as cheaply as on the shore. On the other hand, two-thirds of the produce of the people’s labour go to the prince, whilst only one-third remains for the sustenance of the producers. The prince’s stores rot away, whilst our old men die of starvation. False feet are cheaper than shoes in the market-place (owing to the number of people punished with amputation of a foot); the people are smarting with a sense of wrong, and are longing for the advent (of the CH’EN family), whom they love as a parent, and towards whom they tend, just as water runs downhill. Under these circumstances, even if they did not want to gain the people over, how can they avoid it? The last surviving member of that branch of the CH’EN family who traced his descent to previous dynasties has still left his spirit in the land of Ts’i, though the representatives of the family are nominally subjects of Ts’i.
Shuh Hiang. Yes. And even our ruling house of Tsin has fallen on degenerate times. Armies are no longer equipped, and our statesmen are not ready for war. There is no one to lead the chariots, and our battalions have no competent commanders. The common people are utterly exhausted, whilst the extravagance of the palace is unbounded. The starving folk line the roads, whilst money is squandered upon female favourites. The commands of the prince are received by the people as though they longed to escape the clutches of a bandit. The representatives of the eight leading families who have served the state so long and faithfully are reduced to the most insignificant offices. Government is administered in certain private interests, and the people have no one to whom to appeal. The ruler shows no sign of amendment, and endeavours to drown his cares in excessive indulgence. When did the ruling house ever before reach the low depths of to-day? The warning oracle inscribed on the tripod says: “However early you may get to zealous work, your descendants may be lazy.” How much more, in the case of a man who will not reform, is disaster likely to be impending soon!
Yen-tsz. What do you propose to do?
Shuh Hiang. The ruling house of Tsin is about exhausted. I have heard it said that when a ruling house is about to fall, its family members drop off first, like the branches and leaves of a stricken tree; and the ruler himself, like the trunk, follows suit. Take my own stock, for instance, which formerly contained eleven family or clan names. The Sheepstongue (cf, English Sheepshanks) clan is my clan, and the only one now left; and I myself have no son fit to be my heir. The ruling house is arbitrary and capricious, so that, even if I am fortunate enough to die in my bed myself, I shall have no one to perform the sacra for me.
In 513 B.C. two generals of the Tsin state carried their arms into the Luh-hun reservation (in modern Ho Nan province), whither, in 638 B.C., the Tartar tribe of that name had been brought to settle by agreement between the two Chinese powers whose territories (Ts’in and Tsin) ran with the Tartars; “and then they drew upon Tsin state for four cwt. of iron, in order to cast a punishment tripod upon which to inscribe the law-book composed by Fan Suean- tsz (a minister).” Confucius said:–
“It looks as though Tsin were about to perish, as it has made a mistake in its calculations. The state of Tsin ought to govern its people by maintaining the ancient laws and ordinances received by their ancestor who was first enfeoffed there (in 1120 B.C.), when the officers of state would each observe the same in their degree. Thus the people would know how to respect their superiors, and the ruling classes would be in a position to maintain their patrimonies. The proper balance between superior classes and commoners is what we call ’ordinance.’ The ruling prince W&n (who assumed the Protectorship of China in 632 B.C.) for this reason established an official body of dignitaries, and organized the annual spring revision of the laws of his ancestors as Representative Federal Prince. Now Tsin abandons this system, and makes a tripod, which tripod–will henceforth govern the people’s acts. How can they now respect their superiors (having book to go by)? How can the superiors maintain their patrimonies? If superiors and commoners confuse degree, how can the state go on? Moreover, Suean-tsz’s punishments date from the spring revision (of 621 B.C.), when confusion and change was going on in Tsin state; how can they take this as a fit precedent?”
About twenty-five centuries ago–in 546 B.C., to be precise–the Chinese Powers had a “Hague Conference” with a view to the reduction of armaments. This is how Confucius’ pupil, Tso K’iu- ming, tells the story in the “Tso Chwan,” or expanded version of Confucius’ “Springs and Autumns” (for convenience the names of the ancient States are changed to those of the modern provinces corresponding with them):–
“A statesman of Ho Nan, being on friendly terms with his colleagues of Shan Si and Hu P&h, conceived the idea of making a name for himself by proposing a cessation of armaments. He went first to Shan Si, and interviewed the Premier there; the Premier consulted his colleagues in the Shan Si ministry, and one of them said: ’War is ruinous to the people, and a fearful waste of wealth; it is the curse of the smaller Powers. Although the idea will come to nothing, we must consent to a conference; otherwise Hu P&h will consent to it first, in order to gain favour with the Powers, and thus we shall lose the predominant position we now occupy.’ So Shan Si consented.
“Then (the narrative continues) Hu Peh was visited, and also consented. Then Shan Tung (the German sphere now). Shan Tung did not like the idea; but one of the Shan Tung Ministers said: ’Shan Si and Hu P&h have agreed, and we have no help for it. Besides, the world will say that there would be a cessation of armaments were it not for our refusal, and thus our own people will vote against us. What is the use of that?’ So Shan Tung consented. Next Shen Si was notified. Shen Si also consented. Then the whole four great Powers notified the minor States, and a great durbar (of fourteen States) was held at a minor court in Ho Nan.”
The curious part of it all is that the representative of the Emperor (whose political position was not unlike that of the Popes in Europe since 1870) did not appear at the Conference at all, though all the Great Powers maintained the fiction of granting precedence to the Emperor and his nuncios, and even went through the form of accepting investiture from him and taking tribute presents to the Imperial Court-when it suited them.
This celebrated Peace Conference closed the seventy-two years of almost incessant war that had been going on between Tsin and Ts’in (Shan Si and Shen Si), apart from the subsidiary war between Tsin and Ts’u (Hu Peh).