第39章

匪察於獄껣麗,—this has reference to the 越茲麗刑並制 of p. 3. Literally the characters mean—＇they did not examine into the obnoxiousness of criminal cases,＇ i.e., they did not seek to find out either the real criminals or the degree of guilt. From this to the end of the par., we have a striking instance of the long sentences of the Shoo. 罔擇至無辜,—Keang Shing＇s comment on this is brief and clear:—놊選擇善人, 使觀於꾉刑껣中正, 惟是眾恃威奪貨껣人任껣, 使斷制꾉刑, 以亂罰無辜. 껗帝놊蠲,—蠲=潔, ＇clean＇; as a verb, ＇to consider clean＇,＇to acquit＇. —乃絕厥世,this has reference to the 遏絕苗民, 無世놇下, of p. 5. What was there ascribed to Shun is here ascribed to God; ＇showing＇, says Sun Ke-yew,＇that Shun was only the minister of Heaven＇s justice＇.

Ch. IV. P. 13. THE KING ADDRESSES HIMSELF TO THE PRINCES OF THE SAME SURNAME WITH HIMSELF, AND CALLS THEM TO CO-OPERATE WITH HIM IN THE DELIGENT AND CAREFUL ADMINISTRATION OF PUNISHMENTS. 伯父,—see on Bk. XXIII., p. 6.伯兄, 仲叔季弟,—these were all the king＇s cousins,his 兄弟. Brothers may also be included. On 伯, 仲,叔, and 季, see Con, Ana, XVIII., xi. Both Gaubil and Medhurst are wrong in taking 仲叔 together, as meaning ＇junior uncles＇, ＇men oncles paternels cadets＇.幼子童孫,—when we consider that king Muh was now a hundred years old, he may very well have had grand-children who were high in office or rulers of States. [Këang Shing reads 僮 and not 童, arguing that 童 was properly the designation of ＇a menial＇ or ＇servant＇, and僮 that of ＇a young person＇. There is a note in the dict.,under 僮, to the same effect, where it is added that in the lapse of time, through inadvertence and error, the characters have changed meaning.]

Whether crimes have been premeditated, or are unpremeditated, depends on the parties concerned;—do you deal with them so as reverently to accord with the mind of Heaven, and serve me, the one man. Though I would put them to death, do not you therefore put them to death; though I would spare them, do not you therefore spare them. Reverently apportion the five punishments, so as to complete the three virtues. Then shall I, the one man, enjoy felicity;the people will look to you as their sure dependence; the repose of such a state will be perpetual."

庶有格命,—Ts＇ae, after Gan-kwŏ, defines 格 by 至,=至善 or 至當; and I have translated accordingly. Këang Shing, after K＇ang-shing, defines 格 by 登, so that格命=壽考, ＇longevity＇. This view may be rejected without hesitation. Nor does another advocated by Soo Shih and Sëĕ Ke-Seuen to which the editors of Yung- ching＇s Shoo are not disinclined, seem worthy of much more attention. According to it, the 命=天命, and 庶有格命=庶幾可以格於껗帝, as in Bk. XVI., p. 7.Ts＇ae explains 爾罔놊由慰日勤 by 爾所用以自慰者無놊以日勤, ＇Let the method which you employ to find satisfaction—ease of mind—to yourselves be only thatof daily diligence.＇ The ＇diligence＇ must be understood with reference to the investigation of criminal cases and the administration of punishments; and hence it is added—爾罔或戒놊勤. When punishment was once wrongly inflicted from a want of carefulness, the evil was done; regret and repentance would be of little avail. Lin Che-k＇e interpreted 由 and 慰 differently, but not, I think, so well. He says:—爾當無놊由朕껣言, 相慰勉而日愈勤, ＇you should stimulate one another from my words, and be daily more diligent.＇ [Gan-kwŏ read 日勤, which Këang Shing still edits. See Ying-tă＇s explanation of this text.] 天齊至놇人,—these clauses have been variously pointed and interpreted.天齊於民 is spoken of the design of Heaven in the use of punishments. It is to bring the people to a state of adjustment and good order. So far, all agree, but here agreement ends. I have put a comma with Ts＇ae after 日, and 俾我一日=俾我為一日껣用耳, as in the translation.

Then 非終 and 惟終 are interpreted after the analogy of the same expressions in Bk. IX., p. 8; and it is very natural to do so, because the discourse there is all on the subject of the administration of the penal laws; and the meaning thus obtained well suits the general tenor of the paragraph. Gan-kwŏ pointed—天齊於民,俾我, 一日非終, 惟終놇人; but his explanation of this is hardly intelligible: 一天整齊於下民使我為껣, 一日所行, 非為天所終, 催為天所終, 놇人所行. Of all who have adopted this pointing, Ch＇in King may be said to havesucceeded best and the editors of Yung-ching＇s Show commend his interpretation which is given in the 附錄, and is to this effect:—＇Heaven would by punishments regulate the people, and not being able to do so itself, entrusts the work to me. But Heaven＇s heart of love for the people is inexhaustible, and I also cannot in one day complete the thing. For associates to complete it, I must look to others, and depend on them.＇

14. The king said, "Ho! Come, ye rulers of States and territories, I will tell you how to make punishments a blessing. Now it is yours to give repose to the people:—what should you be most concerned about the choosing of? Should it not be proper men?What should you deal with the most reverently?Should it not be punishments? What should you calculate the most? Should it not be to whom they should reach?

On other attempts to give a consistent meaning to the passage on this construction, I need not dwell. Ts＇ae has here outstrip all the other commentators. 敬逆天命,—＇reverently anticipate—meet—what Heaven has appointed;＇ i.e., do you seek simply to do justice. This will be to fulfil the mind of Heaven, and also the best service you can render to me. 雖畏勿畏, 雖休勿休,一the advice here is the same with that given by king Ching to Keun-ch＇in, Bk. XIX, p. 8; 畏 taken as=威,and then as=辟, ＇punishment＇, being the putting forth of the terrors of rule. It is here again—＇many men, many minds＇. Most critics do not admit any reference in the words to the king＇s own wishes; and take the meaning to be substantially as Ch＇in King gives it:—＇In using punishments, although people seem to give a dread submission, do not you think that realized; though they praise you, do not you think what you have done worthy of praise. Never be weary or satisfied,and so your way and mind will be in accord with the inexhaustible heart of love belonging to the sovereign and to Heaven.

Këang Shing edits 祗事놊怠 after 勿宥, and would exclude 惟敬꾉刑;—on very poor authority.以成꺘德,—the ＇three virtues＇ are those of ＇The Great Plan,＇ p. 17,—the virtues of ＇correctness and straightforwardness,＇ of ＇strong government＇, and of＇mild government＇.

As Wang Yen says in the 集說:—Punishments being light when they ought to be light, this would be "mild govt.," and the mildness would not be weak indulgence. Being severe when they ought to be severe, this would be "strong govt," and the strength would not be oppression. Being intermediate between light and heavy, this would be "correct and straightforward govt.," and the correctness and straightforwardness would not degenerate to one-sideness＇ (刑當輕而輕, 以成柔德, 而柔놊至於縱弛當重而重, 以成剛德, 而剛놊至於苛暴, 介輕重껣間, 以成正值, 而正直놊至於偏倚). The three concluding clauses all show the happy result of the princes＇ listening tothe king＇s advice. Gan-kwŏ is wrong in taking 一人有慶=天子有善 and then making the other two clauses dependent on this.

Ch. V. Pp. 14—20. THE KING SHOWS ALL HIS PRINCES AND CHIEFS HOW THEY SHOULD PROCEED IN THE ADMINISTRATION OF JUSTICE SO AS TO MAKE PUNISHMENTS A BLESSING. This chapter must be considered the most important of the Book. Its contents are what is intended by the 荒度作刑 of par. 1. I suppose that the various things here announced in a general way by the king were all drawn out, and had been published, with the necessary details and explanations, by the prince of Leu.

P. 14. Preliminary address to all the princes. 吁來有邦有꺱,—吁 is called in the dict. 疑怪껣辭, ＇a particle of doubt and surprise＇. We have had it seven times already in the Shoo, where our ＇alas!＇ was always suitable. But that expression of feeling is not what we should expect here.＇ Lin Che-k＇e makes the term on the contrary here expressive of joyful alacrity (吁來者歡而呼껣使前也). We have the different readings of 於 and於 (woo). 有邦 (another reading is 國) 有꺱 may be considered as descriptive of the princes of the empire generally,—of the imperial surname and of others. Këang Shing says that 有國 (so he reads) indicates the prince outside the imperial domain and 有꺱, those having appanages within it; but I do not think we can thus discriminate the phrases.

15. "When both parties are present, with theirdocuments and witnesses all complete, let all the judges listen to the five-fold statements which may 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 again are not sufficient for it, let them reckon it among the five cases of error.

告爾祥刑—祥= ＇felicitouas＇; here, as a verb, ＇to make felicitous＇. ＇Punishments,＇ says Ch＇in Ya-yen, ＇used not to distress or oppress the people, but to give them repose, are called 祥刑. K＇ang-shing read 詳, and interpreted it by 審察껣, ＇discriminating examination＇. The two characters 詳 and 群, might very easily be confounded. [Mih Teih quotes the passage with 訟刑, which is evidently an error.] 何擇, 云云,—we have here three questions, with the answers to them, given also interrogatively, as in the translation. To quote again from Ya-yen, 一꺘言何者, 設為間辭, 以致其疑,꺘言非者, 設為答辭, 以致其決.

何度非及=當何所謀度乎, 豈非刑껣所當及者乎, ＇what ought you to deliberate about and calculate? Should itnot be as to those to whom punishments should reach?＇

[Këang Shing, professing to follow the text of Mih Teih, reads—놇今而安땡姓, 何擇非人,何敬非刑, 何度놊及. But Wih has—女何揮言人, 何敬놊刑, 何度놊及. Ming-shing says that Mih＇s writing are too full of erroneous characters to allow text to be relied on, andthat 非刑非及 is no doubt the true reading. That Mih did read the last clause—何度놊及， however, is plain from the comment which he subjoins,—能擇人而敬為刑, 堯, 舜, 禹, 湯, 뀗武껣道可及也. 何度놊及would mean—＇what can you plan which you may not reachThis shows clearly one of the differences between the usage of 非 and 及.]

P. 15. The manner of proceeding in hearing cases, and adjudicating upon them. 兩造具備一,造=至,＇to come＇, ＇to appear＇; and 兩造= ＇the two parties interested—the plaintiff and defendant—having both appeared.＇ 具=俱=＇all＇, ＇completely＇; 具備= ＇being fully provided,＇ i.e., having set forth all the particulars of their several cases. Ts＇ae says:—具備=詞證皆놇, ＇具備means that the representations and witnesses are all there.＇ 師聽꾉辭,—師is defined in the集傳by眾, ＇all＇. Këang Shing defines it by 士師, ＇judges,＇ of whom there were four, mentioned in the Chow Le,Bk. XXXIV., and who rank immediately after the＇assistant minister of Crime＇. Gan-kwŏ for 師聽 gives眾獄官共聽, ＇let all the judges hear in common＇. The proper construction seems to be to take 師 in the meaning of ＇judge＇, but in the plural. Chang Kew-shing says:—＇The parties concerned should not be one-sided in their representations, and the judges should not be one-sided-in listening to the case. If only one listened to it, his intelligence might be unequal to it, and his deliberations might be inadequate, and therefore the rule was made that all the judges should hear the case in common.＇ See the 集說.

꾉辭,—＇the five pleadings,＇ i. e., the statements, with the evidence, on both sides, whether incriminating or exculpating. They are called ＇five＇, as the penalty might be one or other of the ＇five punishments＇. It is important to bear in mind that it is of cases of a serious nature, and punishable with these penalties that the king is speaking. Ts＇ae says:—꾉辭, 麗於꾉刑껣辭也.

16. "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. Wheresuch things are, the offence becomes equal to the crime before the judges. Do you carefully examine,and prove yourselves equal to every difficulty.

꾉辭簡孚,—簡=核其實, ＇being searched out to the very truth of them＇; 孚=無可疑, ＇with no room for doubt＇. 正於꾉刑,—正, ＇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 registering of the sentence in a book(非便用꾉刑, 只以此情辭質正於刑, 書當於何等刑加껣也). 꾉刑놊簡,—the meaning is, no doubt, what appears in the translation; but the exact force of the簡does not readily appear. Këang Shing, defines it, both here and above, by 誠, ＇sincere＇, ＇true＇, and explains here by 所犯非其誠, 無惡意, 而所為惡也, ＇the crimewas not really intended. There was the criminal act, but not the evil intention.＇ The text, however, does not say anything so specific; and such a case, we may judge, should at once be referred to the ＇five cases of error＇. Literally we may translate the clause—＇If the five punishments be not examined out;＇ meaning—if the result of investigation do not show that one of those punishments should be employed. —＇꾉罰,the five fines,＇—the five redeemable cases. These are detailed below. The king speaks evidently of a system that had been established. We cannot infer from the text that it had been established by himself, though it may have been so. This point will be considered by and by. 꾉罰놊服,—＇if the five fines will not produce submission;＇ i.e., if such a sentence will not be acquiesced in as just .꾉過,—＇the five classes of error＇ i.e., the various cases of inadvertence. What should ensue on the adjudication of any charge to be so ranked, does not appear. Ts＇ae, after Gan-kwŏ, says the result would be pardon and dismissal (質於過而宥免껣). Such was the rule prescribed to Kaou-yaou by Shun. See ＇The Counsels of Yu,＇ p. 12—宥過無大,＇you pardon inadvertent faults however great＇. The rule of the Chow dynasty seems to have been more stringent. Wang Gan-shih, as quoted in the 集說, 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.

P. 16. Caution to the judges against being warped in their decisions. The text speaks only of offences that might be committed in the last of the proceedings described in the prec. par.; 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.꾉過껣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, 1st, 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,bribes, and solicitations.＇

17. "When there are doubts as to the infliction of any of the five punishments, that infiiction should be forborne. When there are 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 you listen to the case any more. In everything stand in awe of the dread majesty of Heaven.

The ＇Daily Explanation＇ for 官 gives—畏他人껣權勢而놊敢爭執; for 꿯, 報復已껣恩怨, 而놊本公놂; for 內,聽受女謁껣言; for 貨, 廣開貨賄껣門; for 來, 凡有千求請囑, 놊能謝絕. 其罪惟均=其罪與犯人同, ＇the offence of this is to be classed with that of the criminal inconnection with whom it is shown＇. 其審克껣,—＇do you distinguish and overcome it;＇ i.e. judge carefully, and so that your judgments shall be correct, superior to all difficulties and temptations. Woo Ch＇ing says:—審克謂審껣, 而能得其審也.

P. 17. The care which should be exercised in coming to a conclusion in doubtful cases. 꾉刑껣疑有赦,—if we give to 赦 here its full meaning, as Woo Ch＇ing and some other critics do, and say that where it was doubtful whether a crime should be adjudicated to one of the five punishments, it was to be absolutely pardoned, and the charge dismissed, we go against the rule in p. 15, 꾉刑놊簡, 正於꾉罰, and the direction moreover would be against all reason. With Gan-kwŏ, Lin Che-k＇e, Ts ae and the host of commentators, therefore, I adopt a lighter meaning of 赦, as in the translation. Lin says:—꾉刑껣疑, 尚놊免於罰, 而謂껣赦者, 蓋雖以金自贖, 而幸其놊至殘潰其肌體, 是赤赦也.

簡字有眾,—＇the points on which certainty has been attained by investigation may be many.＇ Thisconstruction seems preferable to that adopted by Gan-kwŏ,一簡核誠信, 有合眾心, ＇the investigations, conducting to an assured faith, may agree with the views of the multitude.＇

Notwithstanding this result, the king would still have the judge 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놊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, 苟無情實, 놇所놊聽. [Këang Shing, on the authority of the 說뀗, instead of 貌 reads 緢, which hemakes out to mean ＇carefully＇, ＇minutely＇ (微細). This leads him to construe the clauses 其審克껣, 簡孚有眾, and 惟緢有稽, 無簡놊聽. But 其審克껣 is more suitable as the termination of a par. of sentence, than at the commencement.] 具嚴天威一,具=俱, ＇all＇, ＇in all＇. 嚴=敬, ＇to revere＇. Chang Kew-shing says:—具, 俱也, 謂껗所言, 皆敬天威.

18. "When in a doubtful case the infliction of branding is forborne, the fine laid on instead must 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 3000 ounces;—with the same careful determination of the crime.Where the penalty would be castration, the fine must be 3000 ounces;—with the same careful determination of the crime. Where the punishment would be death,the fine must be 6000 ounces;—with the same careful determination of the crime.

P. 18. The law of the redemption of punishments.其罰땡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 fines were paid is called by Gan-kwŏ 黃鐵, ＇yellow iron＇. Ying-tă observes that＇anciently, gold, silver, copper, and iron, all went by the general name of kin (金). Gan-kwŏ calls the metal spoken of here 黃鐵, and that intended in ＇The Can. of Shun,＇ p. 11, 黃金; but in either case he means copper(銅). It was the metal which was required anciently in all redemption payments. Medhurst makes the metal to be ＇silver＇, for which he has no authority. Gaubil says he knows nothing about whether the the 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.

其法惟倍,—倍= ＇double＇,—1200 ounces. 剕=刖足, ＇cutting off the feet＇. This was the third of the five punishments, and not 刵, or ＇cutting off the ear＇, as we might perhaps infer from p. 3, if there be no error of the text there. Cutting of the ear would not be a greater penalty than cutting of the nose. 倍差=倍而꺗差. But the amount is not at all certain. Ts＇ae says it is 500 hwan,—double the previous fine, and a degree(次) more. Ma Yung makes it 533 hwan and one third of a hwan (倍者倍二땡為눁땡, 差, 꺗加눁땡껣꺘늁一, 凡꾉땡꺘十꺘鍰, 꺘늁鍰一也). Këang Shing thinks this estimate excessive, and reduces it to 333 hwan and a third (倍差者於倍땡鍰為二땡껣늌, 꺗差出二땡껣꺘늁二, 凡꺘땡꺘十꺘鍰꺘늁鍰껣一). The truth is,we do not know certainly the proportion denoted by差. I apprehend that 倍蓰 in Men, VI, Pt, I, xi, 7, is another form of the 倍差 here, and therefore agree with Ts＇ae. 宮辟 is called the 淫刑, ＇punishment of illicit intercourse＇. It was inflicted on the male by castration, and on the female by close confinement (男子割勢, 婦人幽閉). 꾉刑껣屬꺘千,—＇pertaining to thefive punishments, there are 3000 crimes.＇

Of crimes that may be redeemed by the fine in lieu of branding there are 1000, 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 3000 crimes. In the case ofothers 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.

19. "Where the crime should incur one of the higher punishments, but there are mitigating circumstances,apply to it the next lower.

Acc. to the Chow.Le. Bk. XXXVI., on the duties of the 司刑, the crimes to be visited with the five punishments are stated to be 2500, 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 smaller number at liable to the heavier punishments. 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 1000. 껗下比罪,—＇above and below compare the offence＇. This is understood to be spoken with reference to offences which did not come exactly under any statutory definitions. Their proper place must be sought by comparison with other recognised offences of a heavier and·a lighter character. The＇Daily Explanation＇ says:—法껣所定有限, 而人껣所犯無窮, 其有犯無正律者, 則以껗下刑而比附其罪, 如罪疑於重, 則以껗刑比껣, 罪疑於輕, 則以下刑比껣. In such cases special caution was necessary, and thereforeit is added—無僭亂辭, 勿用놊行. Ts＇ae says he does not understand these clauses, but they will admit the interpretation which appears in the translation. 놊行=已革껣法, ＇annulled laws＇ (舊有是法而今놊行者). 惟察, 云云一,Even Këang Shing reads其審克껣 as the concluding clause of the paragraph, thereby admittingthe force of the remark which I made on his mode of pointing par.17.

P. 19. General principles affecting the determination of crimes and the adjudication of the punishment due to them. —껗刑至有權,껗刑 denotes a crime, which, on a first and superficial view, would seem to require to be dealt with by one of ＇the higher penalties＇; but there are circumstance discovered on examination which 適輕, ＇tend to a lighter consideration of it＇. It must then下服, ＇he adjudicated to the penalty for offences of the next lower class＇. The ＇Daily Explanation＇ defines 服by 受刑, ＇receive punishment＇.

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.

20. "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.

權 denotes properly ＇the weight of a steelyard＇,moved backwards and forwards along the arm as the thing weighed is light or heavy. This original meaning of the char, appears clearly in 輕重諸罰有權. Këang Shing＇s exposition of the meaning is here terse and perspicuous:—本놇껗刑껣科, 而情適輕, 則減一等治껣, 本놇下刑껣科, 而情適重一, 則加等治껣,宜輕宜重, 有權焉, 놊可執一也. 刑罰世輕世重,—the different circumstances of difference times form theweights to be employed in determining the penalties to be adjudicated to crimes committed in them. The adjudicating minds, however, will be found to come to different conclusions. Thus Ying-tă quotes from the Chow Le, Bk. XXXV., near the beginning, that ＇in a new country—i.e., immediately after a revolution—the punishments should be light; in a well-ordered country, moderate; and in a rebellious country, heavy＇(刑, 新國, 用輕典, 놂國, 用中典, 亂國，用重典).Këung Shing, again, quotes from Seun K＇ing 正論篇,that ＇when a State is well governed, the punishments should be severe, and light when it is in disorder＇(治則刑重, 亂則刑輕). This will always be, but an approximation to uniformity may be obtained by what is said in conclusion,—催齊非齊, 有倫有要. Wang Gan-shih, correctly and ingeniously, defines 倫 by 先後껣序, ＇the order of precedence and sequence,＇ and 要by 眾體所會, ＇that in which all the different members meet＇.

P. 20. General observations on the character of the men who should act as judges and on points to which they should specially direct their attentions. 罰懲至놇中,—良, as opposed to 佞, evidently denotes what we mean by ＇good and honest＇. 罔非놇中 may be understood either of the awards of such men (輕重出入, 놊눂乎中), or of their character in judging (公正놊偏,無놊놇中). Këang Shing takes the latter view, but the former in to be preferred. 察辭於差,—＇examine pleas in difference;＇ i.e., where a prisoner or a witness is making false statements, he will probably not belong or perfectly consistent with himself. Let the judge mark any discrepancy, and follow up from it his guest of the truth.

Examine carefully where there are any discrepancies in the statements; the view which you were 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 havebeen tried on two counts, his two punishments must be recorded."

非從, 惟從, 一井從 may be considered as governed by 從. A judge should ever be open to the evidence,and not allow the impressions which he receives to be affected by foregone conclusions in his own mind. Gan-kwŏ connected this clause closely with the preceding, as does Këang Shing:—＇Follow up the inquiry from the point where discrepancy of statement has arrested your attention, and find out the truth.Having got the truth, do not follow the statement,but follow the truth＇ (既得其情, 非從其辭, 惟從其情). This view has nothing to recommend it. 明啟刑書胥占,—＇clearly open—(i.e., lay open, unfold. The literal signification is not that intended)—the book (or books) of punishment, and mutually deliberate＇. 占=度, ＇to deliberate,＇—as if they were considering the oracles of divination .獄成而孚=若是則獄成於下, 而民信껣, ＇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＇) 而孚=獄輸於껗而君信껣, ＇when the case is reported, the sovereign will believe—have confidence in—the judgment.＇ Këang Shing, after Gan-kwŏ, takes the second 而 as=汝, and interprets the whole:—獄成而信矣乃輸汝信於껗, ＇when the case is thus concluded, and you have got to the truth of it, then present a memorial of your assured conclusion to the sovereign.＇This is very harsh and unnatural.

其刑껗備, 有並兩刑,—the ＇Daily Explanation＇expounds this:—獄辭꺗놊可遺漏, 當其껗奏,須載其情辭, 或一人而犯兩刑, 雖從重問擬, 亦必將輕罪開列, 取自껗裁, 方見精詳謹慎껣意.

[In this chapter there are many good advices concerning the care and the methods with which justice should be administered. The principle thing, however, on which the king dwell 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 extensive 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 justice 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 develops and explains the laws of the Hea dynasty for the redemption of punishment; but there is no intimation in the Book itself of such a thing, nor is the statement supported by any other authority.

21. 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 representatives 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 advantage to yourselves by means of those pleas.

The student meets with 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 infiictions; 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 the five punishments were not among them.Nor does the Chow Le contain anything to indicate that prior to Muh the redemption of 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 Stauntun＇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 redeemable 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 graduated scale according to the rank of the offender,rising from 1200 ounces of silver for a private individual to 12000 for an officer above the 4th rank. The scale for redemption from perpetual banishment is between 720 and 7200 ounces. And that for temporary banishment and blows with the bamboo in between 480 and 4800 ounces. Great official corruption and depravation of the general morality must connect with such a code.]

Ch VI. P. 21. THE KING AGAIN ADDRESSES THE PRINCES AND JUDGES GENERALLY, AND EXHORTS THEM TO REVERENCE, IMPARTIALITY, AND PURITY, IN THE ADMINISTRATION OF JUSTICE. 官, 伯, 族, 姓,—by 官 and 伯 we may understand the 典獄 and 司政 of p. 12. Ying-tă endeavours to show that 族姓 are to be taken, the former as meaning the princes who were cadets of the royal House, and the latter as those who were of other surnames. He says:—襄, 十二年, 녨傳,哭諸侯껣例雲, 異姓臨於늌, 同族於禰廟, 是相對, 則族為同姓, 姓為異姓. But the whole of the passage will not support his inference. It is—凡諸侯껣喪, 異姓臨於늌, 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 族姓 we are to understand the 伯父, 伯兄, 仲, 叔, 季弟, 幼子, 童孫, of p.13. The passage in the 녨傳 itself bears out this view .有德惟刑,—the ＇Daily Explanation＇paraphrases this by—刑為놊得已而用, 先王所以教民祗德者, 是有德惟刑, 而놊當以刑親刑也.

Gain got by the decision of cases in 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."

I think this is probably the meaning; but the critics are far from being agreed in it. Gan-kwŏ, for instance, interprets from 聯言,—＇My words are mostly those of warnings. I feel reverently about punishments, and ought to employ none but the virtuous to preside in their administration,＇ 今天至놇下,—Ts＇ae understands this as meaning that ＇Heaven would by punishments aid the people, and you, who are in the office of judges, may be said to correspond to it below＇ (天以刑相治斯民, 汝實任責, 作配놇下). The meaning which I have given requires less of supplement, and equallylays a foundation for the advices that follow. See Wang Kăng-yay, in loc. 單辭 is supposed by Ts＇ae to mean ＇statements unsupported by witnesses＇ (無證껣辭). The words are literally—＇single pleas＇. They seem clearly to be opposed to the 兩辭 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治, ＇to govern＇, ＇to order rightly＇. 兩辭=兩造者껣辭,＇the cases of both the parties.＇無或至惟罰一,this must all be construed as if it were one sentence. 獄貨is the result of 私家於獄껣兩辭. 府 is defined by 聚, ＇to collect＇, ＇to accumulate＇, and 功 by 事, ＇deeds＇. 惟府辜功= but it is forming a treasury of deeds of guilt＇. =尤殃, ＇judgments＇, ＇miseries＇. Literally 庶尤 is numerous extraordinary evils. 惟人놇命,— from the relation of this clause to that which precedes,—非天놊中, we can easily determine its meaning; but it is not easy to see clearly the force of 놇命. We may at once dismiss the view of Gan-kwŏ and Këang Shing, that 命=教命,＇instructions and commands＇. The paraphrase of the latter is:—夫天껣罰人, 非天道놊中也, 惟人自取껣, 놇其教命놊中耳. 命 has very much the meaning of ＇fate＇,_and 惟人놇命=人自造命, 而有以致껣, ＇man makes hisown fate, and brings the punishment of Heaven on him＇, So says Kăng-yay, but he throws no light on놇. Woo Ch＇ing tries to do this, saying 人껣為人於놇有눃껣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 take these two clauses as an admonition to the princes and judges, that if they do not do what they can to insure good govt. for the people, Heaven＇s punishments will surely overtake them.

22. The king said, "Oh! Ye who shall hereafter inherit the dignities 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 undiassed nature of the people. I pray you give attention to my words. The wise men ofantiquity 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."

Gan-kwŏ, Këang Shing and others, take 極 as=中, ＇the perfect mean, and highest excellence,＇ referring to 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 sees most natural to understand 嗣孫, of the descendants of those whom the king was addressing. Indeed I do not see how the 孫 or the 今往 can be taken in any other way. 非德於民껣中,—it is difficult to tell exactly what Gan-kwŏ understood by this. He says:—非當立德於民, 為껣中正乎. He then connects尙明聽껣哉 with this,—＇If you do so, you will perhaps listen to my words.＇ Këang Shing connects the clauses similarly, but takes the 聽 in the sense of 聽獄, ＇to listen to criminal cases＇. The 哉 indicates to me that 尚明聽껣 is spoken by the king without any syntactical relation to what precedes. Moreover, after 監 we expect that individuals will be spoken of as models to those who are addressed. I therefore take 非德於民껣中, with Ts＇ae, as=非用刑成德, 而能全民所受껣中者乎. 哲人至有慶,—acc. to the translation, 哲人 are those referred to as model,—the baron E and othersmentioned in the first part of the king＇s address. Ts＇ae explains the whole:—明哲껣人, 用刑而有無窮껣譽, 蓋由꾉刑鹹得其中, 所以有慶也. He takes 極 as simply=刑, ＇punishments,＇ but it must denote more than that,—＇punishments rightly inflicted and duly apportioned＇(꾉刑껣施, 皆中正껣極也). The editors of YungChing＇s Shoo, without condemning Ts＇ae＇s view, direct attention to a construction proposed by Seu K＇ëaou(徐僑) and some other critics, who understand 無疆껣辭 of ＇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 point to the laws, bring out an issue exactly accordant with right.—徐僑曰情辭雖難窮, 惟智哲則有見, 以哲人而用刑, 雖情辭껣來, 紛然無有疆界, 而以理燭껣, 以辭係法, 各協其極, 自然有慶矣. 嘉師,—＇the good multitudes＇. This is a designation for the people, as naturally possessing the ＇unbiassednature,＇ which is denominated 民껣中 above.

CONCLUDING NOTE. The student, after this careful examination of ＇Leu on Punishments,＇ will not wonder that many of the Chinese critics themselves should have been puzzled to account for its finding a place among the documents of the Shoo. They ask, ＇Did Confucius mean that it should meet with approval or disapproval?＇ Ts＇ae thinks he admitted it into his compilation by way of warming, and because in the kindly feeling of compassion for the people that breathes in it, it shows that the generous spirit of former times was not yet extinct. It is of no use peculating in this way. I suppose Confucius admitted the Book, because it was the best of the times that he could find. It is a pity that he did not accompany it with some exposition of his own views on the historical allusions in it, and on Muh＇s scheme for the redemption of punishments.