20 中折佞人○齊世權輕刑 察獄折極罰有重刑重適 辭罔獄于懲倫罰諸重 于非惟病非有齊世罰上 差在良非死要非輕有服 lower. Where it should incur one of the lower punishments, but there are aggravating circumstances, apply to it the next higher. The light and heavy fines are to be apportioned in the same way by the balance of circumstances. Punishments and fines should also be light in one age and heavy in another. To secure uniformity in this seeming irregularity, there are certain relations of things to be considered, and the essential principle to be observed. "The chastisement of fines is short of death, yet it will produce extreme distress. They are not therefore persons of artful tongue who should determine criminal cases, but really good persons, whose awards will hit the right mean. Examine carefully where there are any discrepancies in the statements; the view which you were defines 服by受刑, ‘to receive punishment. | disorder' (治則刑重亂則刑輕)權 denotes properly ‘the weight of a This will always be; but an approximation to steelyard, moved backwards and forwards along uniformity may be obtained by what is said in conclusion,一惟齊非齊有倫有 the arm as the thing weighed is light or heavy. This original meaning of the char. appears. Wang Gan-shih, correctly and ingenious. clearly in 輕重諸罰有權 Kang ly, defines 偷by先後之序: the order of precedence and sequence,' and 要 by衆 Shing's exposition of the meaning is here terse and perepicuous:一本在上刑之科 體所會, that in which all the different 而情適輕則減一等治之體所會,(that members P. 20. General observations on the character of which they should specially direct their attentions. 本在下刑之科而情適重 則加一等治之宜輕宜重 the men who should act as judges, and on points to 有權焉,不可執一也刑罰 世輕世重,the different circumstances of different times form the weights to be employed in determining the penalties to be ad 罰懲至在中一良, as opposed to佞, evidently denotes what we mean by ‘good and honest.' 罔非在中 may be judicated to crimes committed in them. The understood either of the awards of such men adjudicating minds, however, will be found to come to different conclusions. Thus Ying-ta(輕重出入,不失乎中), or of quotes from the Chow Le, Bk. XXXV., near their character in judging (公正不偏 the beginning, that 'in a new country-i.e., im mediately after a revolution-the punishments | 無不在中). Këang Shing takes the latter should be light; in a well-ordered country, mo derate; and in' a rebellious country, heavy, view, but the former is to be preferred. 察 (刑新國用輕典平國中 辭于差'examine pleas in difference;" 典;亂國用重典) Kêang Shing, again, quotes from Seun King, E that when a State is well governed, the punishments should be severe, and light when it is in ze, where a prisoner or a witness is making false statements, he will probably not be long or perfectly consistent with himself. Let the judge mark any discrepancy, and follow up from it his quest of the truth. 非從 備孚而克 有 孚 輸獄 非 正占啟 咸刑折 土而成審刑庶書獄從 determined not to follow you may see occasion to follow; with compassion and reverence settle the cases; examine clearly the penal code and deliberate with all your assessors, that your decisions may be all likely to hit the proper mean and be correct :-whether it be the infliction of a punishment or a fine, examining carefully, and mastering every difficulty. When the case is thus concluded, all parties will acknowledge the justice of the sentence; and when it is reported, the sovereign will do the same. In sending up reports of cases, they must be full and complete. If a man have been tried on two counts, his two punishments must be recorded." 惟從一非從 may be considered as gov- | and you have got to the truth of it, then present erned by A judge should ever be open a memorial of your assured conclusion to the sovereign.' This is very harsh and unnatural. 其刑上備有兩刑 the to the evidence, and not allow the impressions which he receives to be affected by foregone conclusions in his own mind. Gan-kwo con nected this clause closely with the preceding, as - ‘Daily Explanation’expounds this:獄辭 does Këang Shing:'Follow up the inquiry 又不可遺漏當其上奏須 from the point where discrepancy of statement has arrested your attention, and find out the備載其情辭或一人而犯 truth. Having got the truth, do not follow the etatement, but follow the truth) (旣得其兩刑雖從重問擬亦必將 情非從其辭惟從其情) 輕罪 列取自上裁方見 This view has nothing to recommend it. 明 精詳謹慎之意 啟刑書胥占'clearly open(ie, lay open, unfold. The literal signification is not that intended)−the book (or books) of punishment, and mutually deliberate.’ ,'to deliberate,'—as if they were considering the oracles of divination.' 獄成而 -若是則獄成於下而 民信之‘in this way the case will be concluded below, and the people will believe have confidence in–the judgment.' 輸 奏 ( to report, send up a statement of the case') 而字獄輸於上而君信 'when the case is reported, the sovereign will believe-have confidence in-the judgment.’ Këang Shing, after Gan-kwo, takes the second 而 as= =汝, and interprets the :一獄成而信矣乃輸汝 信于上,‘whon the case is thus concluded, [In this chapter there are many good advices justice should be administered. The principal concerning the care and the methods with which thing, however, on which the king dwells is the redemption of punishments, and I fear he must be left with the obloquy generally attaching with Chinese writers to his memory, as having been the first to introduce, at least on an ex tensive scale, the system of accepting money as a compensation for the most heinous offences. He says, indeed, that the fine was to be exacted only where there was some doubt as to the jus tice of inflicting the punishment itself. China certainly, within the range of its history, was never the country where a government would, openly and without some glossing of the fact, take money as a satisfaction for transgressions of the law; but it is easy to see how grossly the regulations of king Muh were sure to be abused. I cannot conceive the scheme here set forth to have emanated save from a weak and needy monarch. The prefatory note says that this Book developes and explains the laws of the Hea dynasty for the redemption of punishment; but there is no intimation in the Book itself of any other authority. The student meete with such a thing, nor is the statement supported by 獄亂于配今刑多伯呼刑。 21. VI. The king said, " Oh! let there be a feeling of reverence. Ye judges and chiefs, and all ye who my relatives are of the royal House, know all that I speak in much fear. I think with reverence of the subject of punishment, for the end of it is to promote virtue. Now Heaven, wishing to help the people, has made us its represen tatives here below. Be intelligent and pure in hearing one side of a case. The right ordering of the people depends on the impartial hearing of the pleas on both sides;-do not seek for private the assertion continually; but there is really no evidence for it whatever; it rests merely on the dictum of that note, for which moreover it would not be difficult to find another explanation. The Book grounds itself in the history of Shun, and especially on his establishment of penal laws and the administration of them. Now, the redemption of punishments is mentioned by him. The notice is very brief. We are told that he gave delineations of the statutory punishments, and enacted banishment as a mitigation of the five great inflictions; with the whip to be employed for short-coming officers, and the stick for offending teachers, and money to be received for redeemable offences. (See (The Can. of Shun,' p. 11.) Whatever the offences were that might be redeemed with Shun, those deserving or seeming to deserve any of to be taken, the former as meaning the princes latter as those who were of other surnames. who were cadets of the royal House, and the He says:-襄十二年左傳哭諸 the five punishments were not among them.侯之例云異姓臨于外同 Nor does the Chow Le contain anything to indicate that prior to Muh the redemption of 族于禰廟是相對則族為同 punishments was recognised by the emperors of the dynasty. To him belongs the bad distinction of this legislation. Once Introduced into China, however, the redemption of punishments has entered into the penal code of every subsequent dynasty. Two tables will be found in the preliminary matter to Sir George Staunton's translation of the Penal Code of the present Mwan-chow rulers of the empire, pp. 72, 78, giving the scale, first, of the pecuniary redemption of necessary redeem able offences, and second, of the redemption of others not necessarily redeemable, but made so on petition. According to the latter, the punishment of death may be compounded for on a graduated scale, according to the rank of the offender, rising from 1,200 ounces of silver 姓,姓為異姓. But the whole of the passage will not support his inference. It is 凡諸侯之喪異姓臨於外 同姓於宗廟同宗於祖廟 同族禰廟 There is thus no opposition in the passage between 姓 and族 By族 we are to understand the 伯 伯 兄仲叔季弟幼子童孫 of p. 13. The passage in the itself bears out this view. 有德惟刑−the ‘Daily for a private individual to 12,000 for an officer Explanation' paraphrases this by 刑為不 above the 4th rank. The scale for redemption 得已而用先王所以教民 7,200 ounces. And that for temporary banish-| 祗德者是有德惟刑而不當 from perpetual banishment is between 720 and advantage to yourselves by means of those pleas. Gain got by the decision of cases is no precious acquisition; it is an accumulation of guilt, and will be recompensed with many evils:-you should ever stand in awe of the punishment of Heaven. It is not Heaven that does not deal impartially with men, but men ruin themselves. If the punishment of Heaven were not so extreme, the people would have no good government all under heaven." 以刑視刑也. I think this is probably | of guilt 尤=殃, judgments,' ‘miseries.” the meaning; but the critics are far from being Literally is 'numerous extraordinary agreed in it. Gan-kwǒ, for instance, interprets from朕言 ‘My words are mostly those of evils. 惟人在命-from the relation warning. I feel reverently about punishments, of this clause to that which precedes,非天 and ought to employ none but the virtuous to pre side in their administration.' 今天至在不中, 下,-Ts'ae understands this as meaning that "Heaven would by punishments aid the people, we can easily determine its meaning; but it is not easy to see clearly the force of 在命 We may at once dismiss the view of and you, who are in the office of judges, may be | Gan-kwǒand Këang Shing, that命=教命 said to correspond to it below’(天以刑 ‘instructions and commands' The paraphrase 相治斯民汝實任責作配 of the latter is:-夫天之罰人非 在下). The meaning which I have given 天道不中也惟人自取之 在其教命不中耳 命 has very much the meaning of fate,' and 惟人 在命人自造命而有以致 之‘man makes his own fate, and brings the requires less of supplement, and equally lays a foundation for the advices that follow. See Wang Kăng-yay, in loc. 單辭 is supposed by Tsae to mean ‘statements unsupported by witnesses'(無證之辭). The words are literally' single pleas.' They seem clearly to be opposed to the which follows, and *one side of a case," such as that which will first come before a magistrate. 亂 is to be taken in the sense of, 'to govern,' 'to order rightly.' 兩辭=兩造者之辭 ‘the cases of both the parties.’ 無或至 惟罰,this must all be construed as if it 獄貨 is the result of 私家于獄之兩辭 府i defined by聚 ‘to collect,' to accumulate, were one sentence. and 功by 事, deeds. 惟府辜 功: =‘but it is forming a treasury of deeds punishment of Heaven on him.’So says Kăng yay, but he throws no light on 在Woo Ching tries to do this, saying 人之為人 于在有生之命,‘man is man in having the fate of his life; i.e., men bring punishment on themselves, because it is their prerogative to be by their conduct the arbiters of their own fate. After all, the meaning must be taken a good deal on trust; the language cannot be satisfactorily explained. 天法至末 | --the simplest way is to talke these two clauses that if they do not do what they can to insure good govt. for the people, Heaven's punishments will surely overtake them. Gan-kwo, Keang as an admonition to the princes and judges, s 22 茲 王成辭惟聽民何呼下。 刑師 監慶 五 哲尙德今日 受極之人明于往嗚 VII. The king said, " Oh! ye who shall hereafter inherit the digmities and offices of the present time, to whom are ye to go for your models ? Must it not be to those who maintained and promoted the virtue belonging to the unbiassed nature of the people. I pray you give attention to my words. The wise men of antiquity by their use of punishments have obtained boundless fame. Everything relating to the five punishments exactly hit with them the due mean, and hence came their excellence. Receiving from your sovereigns the good multitudes, behold in the case of those men punishments made felicitous." 皇極 in (The Great Plan,'but I cannot construe the last clause on that view. Ch. VII. P. 22. CONCLUSION; THE KING WISHES TO IMPRESS HIS LESSONS ON THE JUDGES AND PRINCES OF FUTURE AGES. It seems most natural to understand, of the descend ants of those whom the king was addressing. | models, the baron E and others mentioned in the first part of the king's address. T's'ae explains the whole:明哲之人,用 刑而有無窮之譽蓋由五 刑咸得其中,所以有慶也 He takes 極 as simply =刑 ‘pun ishments,' but it must denote more than Indeed I do not see how the 孫 or the 4 that, punishments rightly inflicted and duly 往 can be taken in any other way. 非 apportioned’(五刑之施皆中 德于民之中,it is difficult to tell 正之極也) The editors of Yung exactly what Gan-kwǒ understood by this. He Ching's Shoo, without condemning Ts'ae's view, says: 非當立德於民為之 direct attention to a construction proposed 中正乎. He then connects 尙明聽 尙明聽 by Seu Kënou (徐僑) and some other 之哉 with this. If you do so, you will critics, who understand 無疆之辭 of perhaps listen to my words.' Keang Shing connects the clauses similarly, but takes the 'the numberless pleas, false and true, that might be advanced on any question before the judges.' The wise men spoken of could carry the light of principle and a clear understanding into all this confusion, and referring every nal cases.' The indicates to me that point to the laws, bring out an issue exactly 聽 in the sense of 聽獄, to listen to crimi 明聽之 is spoken by the king without accordant with right. 徐僑日情辭雖 any Byntactical relation to what precedes. 難窮惟智哲則有見以哲 Moreover, after 監 we expect that individuals 人而用刑雖情辭之來紛 will be spoken of as models to those who are addressed. I therefore take 非德于民 然無有疆界而以理燭之 之中,with Ts'ae, as = 非用刑成 以辭係法各協其極自然 德而能全民所受之中者有慶矣 哲人至有慶一 師‘the good multi tudes.' This is a designation for the people, as , –acc. to the | naturally possessing the unbiassed nature,' translation, 哲人 are those referred to as which is denominated民之中 above. |