15 602 五箇五于簡辭師 及,何 罰正刑五孚五聽具○度 "When both parties are present, with their documents and witnesses all complete, let all the judges listen to the five-fold statements which may be made. be made. When they have examined and fully made up their minds on those, let them adjust the case to one of the five punishments. If the five punishments do not meet it, let them adjust it to one of the five redemption-fines; and if these 祥刑祥=‘felicitous'; here, as a verb, | one of the differences between the usages of to make felicitous' Punishments,' says Chin 非 and 及.] Ya-yen, ‘used not to distress or oppress the people, but to give them repose, are called 刑’K'ang-shing read 詳, and interpreted it by審察之,‘discriminating examination. The two characters, 祥 and詳, might very P. 15. The manner of proceeding in hearing cases, and adjudicating upon them. 兩造 具備造一至,‘to come,' ‘to appear;’ and 兩造‘the two parties interested→ the plaintiff and defendant-having both appear easily be confounded. [Mih Teih quotes the ed.' 具=俱='all'‘completely; 具 passage with, which is evidently an 備‘being fully provided,' ie, having set error.] 何擇云云, we have here forth all the particulars of their several cases, three questions, with the answers to then, given | Ts'ae says: -具備一詞證皆在 also interrogatively, as in the translation. To means that the representations and witnesses are all there.' 師聽五辭 一師 is defined in the 集傳by quote again from Ya-yen,-三言何者‘具備 calculate? Should it not be as to those to Këang Shing defines it by 士師, ‘judges,' of whom there were four, mentioned in the Chow after the ‘assistant minister of Crime.' Gan kwǒ for師聽 gives 衆獄官共聽 'let all the judges hear in common.' The pro per construction seems to be to take in the meaning of judge, but in the plural. Chang Kew-shing says: The parties concerned should [Këang Shing, professing to follow the text of Mih Teih, reads 在今而安百姓, 何擇非人何敬非刑何度 the judges should not be one-sided in listening 不及.But Mih hae-女何擇言人,telligence might be unequal to it, and his deli. 何敬不刑何度不及Ming-| berations might be inadequate, and therefore not be one-sided in their representations, and to If only one listened to it, his in• the rule was made that all the judges should shing says that Mih's writings are too full of hear the case in common. See the 集說 erroneous characters to allow his text to be relied on, and that 非刑非及 is no 五辭‘the five pleadings' ie, the doubt the true reading. That Mih did read the statements, with the evidence, on both sides, last clause-何度不及, however, is plain from the comment which he subjoins,— 能擇人而敬為刑堯舜禹 mean—what 16 審惟來惟反過過。正罰 均其貨惟官之◎于不 其罪惟內惟疵五五服 審克之 again are not sufficient for it, let them reckon it among the five cases of error. "In settling the five cases of error there are evils to be guarded against;-being warped by the influence of power, or by private grudge, or by female solicitation, or by bribes, or by applications. Where such things are, the offence becomes equal to the crime before the judges. Do you carefully examine, and prove yourselves equal to every difficulty. searched out to the very truth of them;'-vertence. What should ensue on the adjudication of any charge to be so ranked, does not 無可疑。 with no room for doubt.' E appear. Ts'ae, after Gan-kwo, says the result -E, 'to lay down straight,' here 'to determine or adjust correctly,' i.e., with reference to the penalty with which the particular crime should be visited. Fan Sze-lin observes that this does not intimate the ordering of the punishment to be inflicted forthwith, but the would be pardon and dismissal ( 而有免之 Such was the rule pre scribed to Kaou-yaou by Shun. See 'The Coun sels of Yu,' p. 12,-you pardon inadvertent faults however great.' The registering of the sentence in a book (rule of the Chow dynasty seems to have been meaning is, no doubt, what appears in the translation; but the exact force of the does more stringent. Wang Gan-shih, as quoted in the, says that various penalties mentioned in the Chow Le, such as the stocks, exposure on a public stone, labouring on public works, were the punishments for crimes of error, which were not freely pardoned. Some degree of criminality must have been supposed to attach to the cases which were thus punished. not readily appear. Këang Shing, defines it, both here and above, by, sincere,' 'true,' P. 16. Caution to the judges against being warped in their decisions. The text speaks only and explains here by Ff offences that might be committed in the last 無惡意而所為惡也‘the ¤¿☀LTA, the of the proceedings described in the prec. par. crime was not really intended. There was the 五罰 if the five fines will not produce submission;' i.e., if such a sentence will not be acquiesced in as just. 五過, the five classes of error,' i.e., the various cases of inad but the same influences might work their evil effect in the other measures as well. The judges might reduce crimes from any one grade to that beneath, or raise them, making them out greater than they really were, from the same improper motives. The warning is given with reference to the classing offences as cases of error merely ; but it was intended to be understood with a general application. 五過之疵 the maladies of the five cases of error. Evidently what is intended are the evil influences by which offences that were not cases of error were yet determined and registered as such. Gaubil mistook the meaning entirely, and rendered'Ces cinq sortes de fautes sont occasionnées, 1o, parcequ'on craint un homme en place,' &c. 惟官至惟來-the‘maladies' are here stated so concisely that it does not seem possible to give anything like a literal translation of the text. The nearest I can come to it would be "The maladies that may affect the determining of the five cases of error are the influence of authority, revenge, closet influence, 604 威。聽稽之赦罰疑C 之簡孚 惟 辛天不有有 赦、天 有五之 17 "When there are doubts as to the infliction of any of the five When there are punishments, that infliction should be forborne. doubts as to the infliction of any of the five fines, it should be forborne. Do you examine carefully, and overcome every difficulty. When you have examined, and many things are clear, yet form a judgment from studying the appearance of the parties. If you find nothing on examination, do not listen to the case any more. everything stand in awe of the dread majesty of Heaven. In bribes, and solicitations' The Daily Explana- | 蓋雖以金自贖而幸其不 tion' for 官gives 畏他人之權勢 至殘潰其肌體是亦徹也 不敢爭執;for反報復已 簡字有衆 the points on which 之恩怨而不本公平; for内,certainty has been attained by investigation 聽受女謁之言:for貨,廣開 may be many. This construction seems preferable to that adopted by Gan-kwǔ,一簡核 貸賄之門; for來凡有干求 誠信有合衆心, the investi 請囑不能謝絕其罪惟 atom conducting to an assured faith, may 均-其罪與犯人同, the offence agree with the views of the multitude., of this is to be classed with that of the criminal in connection with whom it is shown,' 審克之‘do you distinguish and over come it;' ie., judge carefully, and so that your judgments shall be correct, superior to all difficulties and temptations. Woo Ch'ing says:— 審克謂審之而能得其審 也 Notwithstanding this result, the king would still have the judges carefully study the countenance and demeanour of the accused. Those may convey an impression of innocence, which will outweigh contrary appearances and presumptions. 無簡不聽if there be no result from examination, there should be no more listening to the case.' As Ts'ae puts it 然聽獄以簡核為本苟 P.17. The care which should be exercised in 無情實在所不聽 [Kënng 五| Shing, on the authority of the 說文, instead coming to a conclusion in doubtful cases. 刑之疑有赦if we give to 赦 here of貌 reads which he makes out to mean its full meaning, as Woo Ch'ing and some other · carefully,' ' minutely'(微細). This leads critics do, and say that where it was doubtful whether a crime should be adjudicated to one him to construe the clauses 其審克之 of the five punishments, it was to be absolutely 簡字有衆, and 惟貓有 pardoned, and the charge dismissed, we go against the rule in p. 15, 五刑不簡正 于五罰, and the direction moreover would be against all reason. With Gan-kwŏ, Lin 無簡不聽 But 其審克之. more suitable as the termination of a par. or sentence, than at the commencement.] Che-k'e, Tsae, and the host of commentators, 嚴天威具俱‘all, 'in all. 嚴 therefore, I adopt a lighter meaning of 赦, as in =敬, to revere Chang Kew-shing says: the translation. Lin saye:五刑之疑一具俱也謂上所言皆敬 尙不免於罰而謂之赦者天威 鍰辟鍰疑閱疑閱疑問疑 閱疑閱赦實赦實赦實赦 實實其 其實其罰罰罪罰罪罰 舞罰罪六宮倍惟劓百 墨千大百辟差辟倍辟鍰 18 "When in a doubtful case the infliction of branding is forborne, the fine laid on instead inust be 600 ounces of copper; but you must first have satisfied yourselves as to the crime. When the case has reference to the cutting off the nose, the fine must be double this, the same care having been taken to determine the crime. Where the penalty would be cutting off the feet, the fine must be 3,000 ounces;-with the same careful determination of the crime. Where the penalty would be castration, the fine must be 3,000 ounces;-with the same careful determination of the crime. Where the punishment would be death, the fine must be 6,000 ounces;with the same careful determination of the crime. Of crimes that P. 18. The law of the redemption of punish- | would not be a greater penalty than cutting off the nose. ments. 其罰百鍰 the fine is a hundred hwan. The hwan was equal to six leang, i.e., six Chinese ounces. Some uncertainty attaches, however, to this estimate. Këang Shing inclines to the view that 100 hwan were equal only to 3 kin, or Chinese pounds. The coins or metal in which this and all the other 倍差一倍而又差 But the amount is not at all certain. Ts'ae says more. it is 500 hwan,–double the previous fine, and a degree (次) Ma Yung makes it 533 hwan and one third of a lean (倍者倍 hwan fines were paid is called by Gan-kwǒ 黃鐵 : 百為四百差又加四百 ‘yellow iron. Ying-tä observes that ancient- 之三分一凡五百三十三 the general name of kin (金). Gan-kwǒ Gan-kwò 鍰三分鍰一也). Kéang Shing thinke ly, gold, silver, copper, and iron, all went by this estimate excessive, and reduces it to 333 calls the metal spoken of here 黃鐵, and hean and a third (倍差者于倍百 that intended in 'The Can. of Shun,' p. 11, 黃金; but in either case he means copper' 鍰為 百之外又差出二 (銅). It was that metal which was required 百之三分二凡三百三十 鍰三分鍰之一) The truth anciently in all redemption payments. Med hurst makes the metal to be silver,' for which is, we do not know certainly the proportion dehe has no authority. Gaubil says he knows nothing about whether the fine was paid in copper or in some other metal. There has never been but one opinion on the subject, so far as I am aware, among the Chinese themselves. ounces. 其法惟倍倍‘double,'−1,200 一刖足,‘cutting off the feet' This was the third of the five punishments, and not HJ, or 'cutting off the ear,' as we might perhaps infer from p. 3, if there be no error of the text there. Cutting off the ear noted by 差 I apprehend that 倍 in Men., VI., Pt., I., xi., 7, is another form of the 倍差 here, and therefore agree with 宮辟 is called the 淫刑 Ts'ae. ' punishment of illicit intercourse. It was in ficted on the male by castration, and on the female by close confinement (男子割勢 婦人幽閉) 五刑之屬三 pertaining to the five punishments 百大 上推辭 上刑適輕下 惟法其審克之 辭勿用不行惟察 上下比罪無僭劇 百五刑之 大辟之罰其屬 百宮罰之屬 19 下 察亂: 百五之 may be redeemed by the fine in lieu of branding there are 1,000, and the same number of those that would otherwise incur cutting off the nose. The fine in lieu of cutting off the feet extends to 500 cases; that in lieu of castration to 300; and that in lieu of death to 200. Altogether, set against the five punishments there are 3,000 crimes. In the case of others not exactly defined, you must class them with the next higher or next lower offences, not admitting assumptive and disorderly pleadings, and not using obsolete laws. Examine; act lawfully:judging carefully, and proving yourselves equal to every difficulty. "Where the crime should incur one of the higher punishments, but there are mitigating circumstances, apply to it the next there are 3,000 crimes' Acc. to the Chow Le, 以下刑比之 In such cases special Bk. XXXVI., on the duties of the caution was necessary, and therefore it is added the crimes to be visited with the five punish ments are stated to be 2,500, 500 being assigned to each penalty. By king Muh's enactments the total number of crimes was increased, but at the same time a larger number were classed as liable to the lighter penalties and fines, and a 一無僭亂辭勿用不行. Tsae says he does not understand these clauses, but they will admit the interpretation which appears in the translation. 不行=已革之 smaller number as liable to the heavier punishe 法‘annulled laws' (舊有是法而 今不行者) 惟察云 ments. Thus the Chow Le makes 500 offences punishable with death; king Muh, only 200; against the 500 of the former, punishable with branding or cutting off the feet, he assigned in each case 1,000. 上下比罪,‘above and below compare the offence.' This is understood to be spoken with reference to offences which the concluding clause of the paragraph, thereby admitting the force of the remark which I made on his mode of pointing par. 17. P. 19. General principles affecting the deter did not come exactly under any statutory defini-mination of crimes and the adjudication of the tions. Their proper place must be sought by punishment due to them 上刑至有 權一上刑 denotes a crime, which, on a comparison with other recognised offences of a first and superficial view, would seem to require to be dealt with by one of the higher penalties;' heavier and a lighter character. The Daily Explanation'says: 法之所定有限 而人之所犯無窮其有犯 but there are circumstances discovered on examination which 適輕 ‘tend to a lighter 無正律者則以上下刑而 比附其罪如罪疑于重則 adjudicated to the penalty for offences of the consideration of it' It must then 下服, be 以上刑比之罪疑于輕則『 next lower class' The Daily Explanation, |