Books and articles that have thrown light on this dark question include those of Wu Ting Fang, once minister to America; Mr. Jernigan’s China in Law; Sir G.T. Staunton’s Penal Code; Sir C. Alabaster’s Chinese Criminal and Property Law; Parker’s Chinese Family Law; Mayer’s Chinese Government; lengthy notes in the Middle Kingdom, by the learned American, S. Wells Williams; Dyer Ball’s Things Chinese; Professor Giles’ Historic China; Sir Henry Maine’s commentaries; and the old Chinese Repository. The Hebrew penal code, Leviticus, is antedated by the Chinese penal code of Shun’s reign nearly a thousand years. It can not compare, of course, in extent or in lofty principle with the Levitican code. Brutal punishments, such as branding, amputation of members, linchee, bambooing and torture made these early reigns so peaceful that it is said “money lost on the road would be left there until the owner returned to find it”. The truth probably is that this referred to the prince’s money, and that if injustice was done the common man, the inferior serf or slave, by the prince or the powerful, the weaker had to whistle for his judgment as long then as he has had to do in subsequent periods of history. Each change of dynasty brought in a revision of the code, not that it was made more humane, but that there were necessary items of lÈse majestÉ to add. For instance, the Manchus required that when the emperor passed at night, every onlooker (all except the soldiers were kept indoors) was required to turn volte-face on pain of death. There was no procedure for revoking a statute. The judge could unexpectedly spring on the victim some precedent or law that was followed in the “year one”, and the prisoner could plead in vain that another law of the “year two” gave him a better chance. In other words, the mandarin practically said with one of Louis Fourteenth’s judges, to litigants: “La loi, c’est moi”, and he interpreted the code as he wished! United protest to the Peking censors, mobbing and refusal to pay taxes were in reality the only reprisals that the people could exert against the exactions of an unjust judge. Confucius, in rendering service as a ruler in two states, interpreted codes. One of the states, the Tsin (B.C. 246), shortly after Confucius, put in effect the Li Kwai code in six books. Codes of the following important dynasties exist: Han, Tsin, Tang, Sung, Yuan, Ming and Tsing (Manchu).

The Grecian Thebes, of which Sophocles wrote, was notorious for its torture of suspected criminals, and Herodotus relates that the ancient Medes exercised similar practises. The “third degree” is outrageously developed in China as in no other country, the law requiring confessions in every case before penalty is inflicted. “More Sinico”, the pepper is rubbed in the eyes, and the confession is forced out of whomsoever is made the victim. Crimes are often “planted”, and blackmail of the weaker by the stronger runs riot. The laws themselves have been noted for their conciseness and simplicity, the number of volumes signifying little as the Chinese ideograph-text is expansive. “It is prohibited to murder”; “It is prohibited to trespass”, etc. There is imperfect codification of precedents and decisions, so that the prisoner must rely on himself (or on money!) to explain that the homicide was in self-defense; the trespass to escape from a mad dog. The spirit is always above the letter; it alone makes perfect law possible. Where there is a will to do right, right generally prevails, and it may be said that many of the Chinese judges try to do right, get at the truth, and give a common-sense judgment, for they are not iron-bound as the Occident is under appeal, precedent, quibble and evasion; the letter above the spirit. If the case is an action within a clan, the “hsiang lao” (old man of the village) generally assists the judge in getting at the truth. If the action is between two clans of two villages, or between competing guilds, God help the judges in sifting the truth from the lies! Such situations arouse the sympathy of disinterested foreigners for Chinese judges. Sometimes the native is not at fault, as the Chinese viceroys and Foreign Boards have often complained that some of the Romanists and one legation have interfered to a greater or lesser degree when a nominal Christian, who had a suit at law, was trying to evade justice by enrolling himself as a “rice Christian”.

The frequent edicts of the throne, published in the Peking Gazette, at once became laws, such as: “It is prohibited to smoke opium;” “It is prohibited to bind feet,” etc. Law will now be enunciated as in America, by the central and provincial legislatures of the new republic. A sort of martial law now prevails, and the provinces, after a quick drum-head trial, are shooting or lopping off the heads of pirates and mutinous soldiers in great numbers. Decapitation, flogging, torture, strangling, stocks, cangue, etc., will all probably be retained, as the Chinese are stolid when it comes to bearing pain, and the criminal classes must be treated with severity. Linchee, or Ling Chih (cutting into a thousand pieces) may be discontinued and shooting substituted. If, however, Confucianism remains as the leading religion, decapitation will be continued. The Confucians loathe the severing of the head, and this punishment is a powerful deterrent of crime. Imprisonment in a modern jail is no punishment for a hard-working Chinese, and something else must be substituted, such as the state impressing the convict’s free labor, to offset the convict’s family becoming a charge on the clan or state. It has been found in Yunnan City, Kweilin City and elsewhere that a modern jail, with good food and sanitary conditions, induces the poor wretches to commit crimes so as to achieve permanent incarceration as quickly as possible! As in the French system, the old-style Chinese judge is also often the prosecutor, and witnesses and accused are made to fight it out in the hearing of the judge, so that as the frequent “lie” is passed, the truth may jump from the tossed bag! (Confronter les tÉmoins À l’accusÉ.) The twenty-eight volumes of the Manchu code cover general, civil, finance, military, criminal and public works law.

The following, taken from the Shanghai Shen Pao, of August 29 and 30, 1911, the oldest and most reliable native paper of China, will illustrate the “third degree” methods used by the old literati judges of the Manchus, and incidentally the astonishing endurance of the Chinese, who from time immemorial have lived outdoor lives and whose hearts have incredible powers of recovery. “The murderer, Hsu, was brought before the assistant magistrate Chung on August 27th for a final trial. The magistrate ordered the clerk to read the confession of the murderer (procured by torture in the native walled city of Shanghai), who said it was incorrect in one statement. The assistant magistrate consented to the correction. When City Magistrate Tien learned of this, he ordered Hsu to be whipped. Up to three hundred strokes no groan escaped from Hsu. At this Tien was angered and called to the torturers to strike heavily. Hsu was now whipped so cruelly that his flesh was cut from his back, and some muffled groans were heard. When five hundred strokes had been administered, he was again asked to confess or suffer pain. As he was still obstinate the magistrate ordered him to receive eight hundred strokes of the bamboo. He was now subjected to the most inhuman kind of torture, that in which the prisoner kneels on an iron chain, while two yamen runners stand upon a wooden beam laid across the back of his legs. As Hsu stood even this torture, he was strung up by his fingers and queue on a scaffold. Hsu cried out that he would not be kicked by the runners. The magistrate was now very angry. He ordered Hsu to be stretched upon the weighing machine (which gradually pulls the victim apart). The man fainted, but when he recovered he would not confess. The scaffold was again requisitioned, and he was strung up again by fingers and queue. He struggled and his queue of hair parted from his head. Next day, he was made to kneel on the iron chain under two men for two hours. When he was about to faint, the two runners picked him up and ran him about to restore his heart action. Alternately they put him upon the chain and restored his circulation. He then cried out: ‘Why should I sign two confessions; I have but to die.’ He was ordered to receive four hundred strokes of the bamboo. The magistrate Tien threatened to persecute the victim’s wife and son. Hsu now relapsed into a fever which has been running two days.”

The Chinese when in a rage (chih) is not a knife-user as are the southern races of Europe, but a hair or queue-puller. Now that the queue is being severed in China, he will probably take to kicking or boxing, in the French and Anglo-Saxon methods, in expressing his temper.

The social adjuster, or peace-talker, is a well-known institution, more generally employed within the hsiang (village) and guild, than the law. “To go to law is to put one’s estate in the ditch and one’s soul in hell,” is one of their sayings. Therefore, the importance of first engaging the services of the adjuster, or second, to meet the second of the offender, rather than to enter suit, and get into the hands of lawyers, court runners, grasping judges, etc. This heathen adjuster answers to the work that the lay deacon may have done in the early Christian church, in settling cases out of court. It is an institution that might well be copied from China in these days of criticism of the bench and bar by such authorities as Ex-presidents Roosevelt and Taft, and Mr. Bryan. The Chinese adjuster puts the case before, and settles it in accord with, public opinion, without any idea of fee; and certainly public opinion is a better judge than the law whose justice is built too much on fees, appeals and the maintenance of a large set of pettifoggers who live on the woes and ill temper of the unfortunate. In the revision of the Chinese code by Wu Ting Fang, Wang Chung Wei (educated at Yale), etc., long life to the social adjuster, the village Solon, whose ways are ways of peace, but whose path is not one of pleasantness! We have said that authorities have castigated the bar in China and America. Here is what Cicero said of Rome (the mother of laws) in the “Murena” oration: “For though many things have been settled excellently by the laws, yet most of them have been depraved and corrupted by the talkatively litigious genius of lawyers.”

The method of “planting” forged evidence is met with in China where a powerful enemy wishes to ruin some victim. The Yuen Fung Yuen Bank, of Bonham Strand, is one of the largest native banks in Hongkong, in which colony it is illegal to import opium except through the Farm, which pays the government a large royalty. This valuable drug passes almost at bullion value. Anonymous information was sent to the Farm contractor that at 8:00 P.M. the bank would receive illicit opium. Detectives were put in ambuscade. At the hour mentioned a coolie bearing a basket rapped at the bank’s door and shouted: “A letter for you.” Then he ran, but was caught. An examination revealed a tin of opium at the bottom of a basket of eggs. Investigation disclosed the whole thing as a “plant” prepared by an old enemy of the Yuen Fung Bank. In the same way bodies of the dead and murdered are often secretly placed at the doors of innocent victims, and as much motive as possible is prepared so as to get them in trouble with law and popular indignation. In years now happily passed missionaries have been bothered in this way by “Boxer” conspirators.

The Chinese code provides that all deeds shall bear the stipulation that “the land was first offered to the seller’s kinsmen, who refused to buy.” When a deed is lost, the Mandarin can issue a duplicate deed on presentation of the last tax receipt and tax receipts themselves are transferred in place of lost deeds.

In 313 B.C. the state of Tsi (present Shangtung Province) broke up its half of a wooden tablet containing part of the agreement with the state of Tsu (present Hupeh Province). These halves fitted into each other, and beyond any possibility of substitution proved the genuineness of the record. An old book called the Si Yuen (washing the pit), used in connection with the criminal code, prescribes the method of ascertaining whether death was caused by blows or was natural. A clay pit is heated white, the ashes are dug out, and wine is poured in. The body is then placed on a cradle in the pit, and a roof of tiles is placed over the pit’s mouth. If the fumes of the rice alcohol bring out the marks, even on a partly decayed body, the murderer is searched for. Other books relate that if a body is thrown into the water after death, it will not show distended stomach, hair stuck to head, or foam in mouth; the hands and feet will not be stiff, or the soles of the feet white. Their criminologists also write that if a body is thrown into a fire after death, there will be no burning or ashes in the throat and nostrils. The Chinese of the old time were rather clever investigators of crime.

This scene was presented outside the west gate of Tientsin one October day in 1870 after the massacre at the French convent. The French compelled Li Hung Chang to give them satisfaction. Li held the execution at dawn so that a mob might not gather. The criminals were flattered as martyrs. None of them was bound. New silk clothes, fine shoes and the ornaments of females were put upon them. Arriving at the execution ground, they were given opium. They shouted to the crowd, “Are we showing a shamed face?” And the answer came back: “No.” “Call us brave lads for being given to the foreigners as a sacrifice,” they cried again. A shout of approval came back. Then they sang a war song, and while their relatives cried, they knelt and stretched out their own necks before the blow of the heavy, short, mercury-loaded Taifo sword of the executioner. The shedding of a cock’s blood, even in the British courts of Hongkong, when an oath is taken, is a survival of the ancient Chinese custom, practised in Confucius’ day (550 B.C.), when the ministers of the various states of Lu, Wu, Tsin, etc., had a criminal killed, and wetting their lips with his blood, took oath to keep the treaty, which was inscribed on wood, each party taking a broken portion. The following incident will throw a flashlight on a section of Chinese legal practise, just previous to the revolution of 1911. It is well known that Wu Ting Fang, two and a half years before the revolution, had revised and modernized the Chinese code, but it was not even in part put in practise before the revolution. In Tungkadoo, a town of Kiangsu province, a bonze (priest) murdered a fellow-bonze and confessed under third-degree torture. The native authorities brought him to Shanghai to be strangled, but the chief bonze, with headquarters at Chingkiang, requested that the criminal should be turned over to him to be burned to death according to the code of the Order. Cremation of dead bodies was more common in China when Marco Polo visited the land than it is now, though it is practised in the Honan Island section of Canton.

It is probable that not for some years will the punishments of flogging, neck cangue and stocks be removed from the revised Chinese code. These punishments, involving public “loss of face,” are abhorred by the Chinese, and while they are somewhat barbaric, they are effective deterrents of crime in China. They were both revived by the British government of Hongkong in dealing with native offenders during the turbulent times of the 1911–12 revolution, when it was found that hard labor, jail sentences and fines were laughed at by the immense Chinese population of the island colony. Greece, as long ago as 330 B.C., had borrowed the cangue from China, and Demosthenes, in the Oration On the Crown, can think of no way so effective to damage his accuser, Aeschines, than to mention that the latter’s father had to wear a zulon (cangue) as a punishment for thievery. Chien Shao Cheng, of the Justice Department, Peking, has visited American prisons and studied foreign penal methods.

An “Investigating and Arresting Department” is the name by which one of the Manchu courts at Canton went. It employed detectives, and the taotai (mayor) did not disguise the fact that the court resorted to “third degree” tortures. This was one of the many things which made followers for the reformers. Banishment cases are constantly coming up. The prisoner who will not or can not depart to another country or province is put in the stocks for four hours a day for a year, and the remainder of the day he spends at hard labor. Strangling in cages was in vogue at Canton in the last days of the Manchu reign, orders having come from Peking in September, 1911, that the coolie who attempted to assassinate Admiral Li should be suspended by the neck in a bottomless cage. In the yamen at Chingtu City stands a stone tablet bearing the word Sha (kill), erected by the Shansi marauder, Chang Hien Chung, who massacred the Szechuenese, who supported the native Ming emperors. The stone remained as a threat to be used by the Manchu mandarins on behalf of the Ta Ching dynasty. The Ministry of Justice under the Manchu rÉgime ordered the viceroys and governors to prohibit foreigners from unnecessarily being present in court.

On account of the scarcity of foreign population, the Hongkong jury consists of seven and the Shanghai jury of five. There is constant argument between the Chinese press and the English press of the treaty ports in China on the subject of “mixed” courts in which foreigners sit. China is writing a reformed code in which Wu Ting Fang had a hand, and in which the new minister, Wong Chun Hui, is interested, and is pressing forward to the day when at least she will try all Chinese, including those who have injured foreigners in settlements. The newspaper argument will do good instead of harm. In 1899 Japan ceased to allow her citizens to be tried under foreign law, and even began to try foreigners under Japanese law. On the subject of trusts and directorial responsibility, I have seen in the Tientsin Ching Wei Pao a plea that employÉs be not fined and imprisoned for corporate faults, but that those who make the money (directors and shareholders) bear the responsibility. China is, and has always been, a frank sociological thinker.

A police system on the French gendarmerie plan has been put in vogue at Peking, and photographs are being generally used for identification. The Chinese have been very averse to photographs. The custom was broken down by Hongkong insisting for twenty years that emigrants should be photographed in duplicate so that their certificates might be identified. This gradually got the Chinese used to the custom, the returned emigrants spreading word that there was no ill-luck in the operation. The old-fashioned policeman who went his rounds beating a gong is becoming obsolete, and the new policeman, like our own, is supposed to bait himself with silence and skill, so as to be sugar in leading the burglar to the trap. Not long ago, however, I heard the old-fashioned Chinese Lukong beating his wooden drum as he went his rounds in the Portuguese colony of Macao, China. When the police recover lost goods, half only is returned to the owner, and half often goes to public charity which is organized in a guild. This is an old regulation in many parts of China. One of their wits said that the difference between a lower and a higher court is that one has the first and the other has the last “guess” at a case! The Chinese point out the delays in the execution of murderers as a most serious defect in justice, and the sentimentalism expressed by part of our press and pulpit as a most serious defect in our mentality. They show headings in our newspapers reading as follows: “Ministers Strive with Murderer Blank”; “Four Pastors Prepare Murderer Blank for Death,” etc. The laconic Chinese ask: “How long a time did the murderer give his victim to prepare for death.” The Chinese say that our levity in this terrific matter has run the average of murders in America up to the highest point in any nation, and that their average, with England’s, is the lowest because of swift and sure justice in those two countries.

In our month of August occurs the festival of the goddess of needlework. It is customary for the women to exhibit the wealth and ornaments of the family during this festival. In 1911, at Fatshan, near Canton, where Sunyacius was born, robbers disguised as women arrived in closed chairs before the yamen (compound) of the Li family, and pretending to be relatives, they broke past the doormen. When inside the home, they drew weapons, and with the inmates intimidated, ransacked the house of jewels and valuables, escaping to the river, where the pirate boats took them on board and made off for the reaches and canals. Owing to the paucity of maritime police, because of a limited revenue, piracy has swept over China’s waters since her Captain Kidd, Koxinga, operated from Amoy in 1657. The West River of Kwangtung province has been notorious in recent years, and in my former book, The Chinese, I have related the attacks upon Europeans in the steamers Sainam and Shui On.

The most startling attack in many years was upon the well-known Pacific Mail steamer Asia, in April, 1911. Known previously as the Coptic, this steamer sailed from San Francisco for twenty years in the trans-Pacific service, and she was therefore well known to many thousands of Americans. She was a graceful Belfast-built boat of low freeboard, and easily boarded. In a fog on April 23rd she ran against the precipitous Finger Rock Island, which rises off the coast of Chekiang province. Wireless was immediately sent out, and the Chinese Merchants’ S.S. Company’s vessel Shoa Shing started for the rescue. Before she could arrive and after her departure with the sixty rescued passengers, Chekiang pirates, in swift snake boats and sanpans, put off to the attack, and despite revolver defense, boarded the Asia and her boats. They even demanded under duress that passengers should sign “chits,” promising to pay sums of money for rescue. When the steamer was temporarily abandoned, they boarded and stripped her of almost everything except the smokestack paint. Fisherman and pirate are about as synonymous on some waters of China as Cornishman and farmer, Panamanian and placer miner are in some of our romantic novels! Thrilling engagements with pirates not infrequently occur almost under the windows of the fashionable Boa Vista and Hing Kee Hotels on romantic Macao’s Praya Granda.

On July 13, 1910, a party of Chinese students, women and children were kidnapped in Macao, by pirates led by the second of the swashbuckler Leungs, and by the leader Luk, and taken to Ko-Ho (Colowan) Island, where they were chained to the walls of caves and of a Portuguese fort, after the latter had been stormed, and the blue and white flag of the castles hauled down to be succeeded by the triangular red flag of the pirates. The governor of Macao sent the Portuguese gunboats Patria and Macao, and an expedition of artillery and infantry of the “Legionaries Coloniale.” The possession of this island by the Portuguese has long been disputed by China, and the Chinese gunboats, which now drew up only watched the engagement. Two thousand pirates fought with modern weapons and smokeless powder, which had been smuggled from Japan. The Portuguese bombarded with four-inch guns, and dropped so many shells into so many compartments of two pirate junks, as with skull and sail they made for rocky Wung Kum Island, that they sank with all on board. In an armistice, Commander Wu, of the Chinese navy, a brave commander of whom we shall hear more, disguised as a coolie, courageously spied on the pirates’ stronghold and ascertained where most of the women were imprisoned, so as to save these retreats from being bombarded. The pirates were smoked out of these caves with sulphur and the women resuscitated.

Not only South China, but North China also has experienced piratical attacks in recent times. In September, 1910, a large band of Hung-Hutz pirates, disguised as bean merchants, sailed down the Liao River to Newchwang and captured for ransom fifteen wealthy Chinese merchants under the walls of the foreign settlements. They safely made retreat with captured arms to their mountain stronghold, one hundred miles up the river, near Liaoyang, and settled down for a siege. The Chinese desire to build more railways through this section, but the Japanese and Russians have opposed American backing of another road and have hoodwinked Britain and Europe into a disinterested attitude, which is the status quo, but not the permanent settlement of the question.

The Chinese have a saying regarding courts, retainers and the animals outside, as follows: “When the mandarin swears, the dogs bark, and when the mandarin laughs the dogs grin, and the terrible tsai ren (yamen court runners, corresponding to our detectives) stroke their rough fingers.” Some of their legal proverbs are: “When two rascals differ, the truth is near; when they agree, the truth is hid.”

“Don’t jump to conclusions in evidence, for a grain of sand is not the seashore, nor a tree a forest.”

“It is hard to rise, but easy to fall.”

“No one would believe a blind man who tried to tell a ghost story.”

“It’s easier to twist the road than the mountain.”