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 審察之, ＇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, 一三言何者, 設為間辭, 以致其疑,三言非者, 設為答辭, 以致其決.
何度非及=當何所謀度乎, 豈非刑之所當及者乎, ＇what ought you to deliberate about and calculate? Should itnot be as to those to whom punishments should reach?＇
[K?ang Shing, professing to follow the text of Mih Teih, reads—在今而安百姓, 何擇非人,何敬非刑, 何度不及. But Wih has—女何挥言人, 何敬不刑, 何度不及. 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—何度不及， however, is plain from the comment which he subjoins,—能擇人而敬為刑, 堯, 舜, 禹, 湯, 文武之道可及也. 何度不及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=詞證皆在, ＇具備means that the representations and witnesses are all there.＇ 師聽五辭,—師is defined in the集傳by眾, ＇all＇. K?ang 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-kw? 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.
五辭,—＇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:—五辭, 麗於五刑之辭也.
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.
五辭簡孚,—簡=核其實, ＇being searched out to the very truth of them＇; 孚=無可疑, ＇with no room for doubt＇. 正于五刑,—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(非便用五刑, 只以此情辭質正于刑, 書當於何等刑加之也). 五刑不簡,—the meaning is, no doubt, what appears in the translation; but the exact force of the簡does not readily appear. K?ang 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. —＇五罰,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. 五罰不服,—＇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 inadvertence. What should ensue on the adjudication of any charge to be so ranked, does not appear. Ts＇ae, after Gan-kw?, says the result would be pardon and dismissal (質于過而宥免之). 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.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, 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—畏他人之權勢而不敢争執; for 反, 報復已之恩怨, 而不本公平; for 內,聽受女謁之言; for 货, 廣開貨賄之門; for 来, 凡有千求請囑, 不能謝絕. 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＇. 其審克之,—＇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:—審克謂審之, 而能得其審也.
P. 17. The care which should be exercised in coming to a conclusion in doubtful cases. 五刑之疑有赦,—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, 五刑不簡, 正于五罰, and the direction moreover would be against all reason. With Gan-kw?, 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:—五刑之疑, 尚不免於罰, 而謂之赦者, 蓋雖以金自贖, 而幸其不至殘潰其肌體, 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-kw?,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, 苟無情實, 在所不聽. [K?ang Shing, on the authority of the 說文, instead of 貌 reads 緢, which hemakes out to mean ＇carefully＇, ＇minutely＇ (微細). This leads him to construe the clauses 其審克之, 簡孚有眾, and 惟緢有稽, 無簡不聽. But 其審克之 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, 謂上所言, 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. K?ang 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-kw? 黄鐵, ＇yellow iron＇. Ying-t? observes that＇anciently, gold, silver, copper, and iron, all went by the general name of kin (金). Gan-kw? calls the metal spoken of here 黄鐵, 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=倍而又差. 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 (倍者倍二百為四百, 差, 又加四百之三分一, 凡五百三十三鍰, 三分鍰一也). K?ang Shing thinks this estimate excessive, and reduces it to 333 hwan and a third (倍差者于倍百鍰為二百之外, 又差出二百之三分二, 凡三百三十三鍰三分鍰之一). 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 **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). 五刑之屬三千,—＇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. 上下比罪,—＇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:—法之所定有限, 而人之所犯無窮, 其有犯無正律者, 則以上下刑而比附其罪, 如罪疑于重, 則以上刑比之, 罪疑于輕, 則以下刑比之. In such cases special caution was necessary, and thereforeit is added—無僭亂辭, 勿用不行. Ts＇ae says he does not understand these clauses, but they will admit the interpretation which appears in the translation. 不行=已革之法, ＇annulled laws＇ (舊有是法而今不行者). 惟察, 云云一,Even K?ang Shing reads其審克之 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. —上刑至有權,上刑 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. K?ang Shing＇s exposition of the meaning is here terse and perspicuous:—本在上刑之科, 而情適輕, 则減一等治之, 本在下刑之科, 而情適重一, 則加等治之,宜輕宜重, 有權焉, 不可執一也. 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-t? 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, 平國, 用中典, 亂國，用重典).K?ung 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 先後之序, ＇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. 罰懲至在中,—良, as opposed to 佞, evidently denotes what we mean by ＇good and honest＇. 罔非在中 may be understood either of the awards of such men (輕重出入, 不失乎中), or of their character in judging (公正不偏,無不在中). K?ang Shing takes the latter view, but the former in to be preferred. 察辭于差,—＇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-kw? connected this clause closely with the preceding, as does K?ang 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＇) 而孚=獄輸於上而君信之, ＇when the case is reported, the sovereign will believe—have confidence in—the judgment.＇ K?ang Shing, after Gan-kw?, takes the second 而 as=汝, and interprets the whole:—獄成而信矣乃輸汝信于上, ＇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.
其刑上備, 有并兩刑,—the ＇Daily Explanation＇expounds this:—獄辭又不可遺漏, 當其上奏,須載其情辭, 或一人而犯兩刑, 雖從重問擬, 亦必將輕罪開列, 取自上裁, 方見精詳謹慎之意.
[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-t? 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, 左傳,哭諸侯之例云, 異姓臨于外, 同族于禰廟, 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 左傳 itself bears out this view .有德惟刑,—the ＇Daily Explanation＇paraphrases this by—刑為不得已而用, 先王所以教民祗德者, 是有德惟刑, 而不當以刑親刑也.
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-kw?, for instance, interprets from 联言,—＇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,＇ 今天至在下,—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, 作配在下). The meaning which I have given requires less of supplement, and equallylays a foundation for the advices that follow. See Wang K?ng-yay, in loc. 單辭 is supposed by Ts＇ae to mean ＇statements unsupported by witnesses＇ (無證之辭). 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=兩造者之辭,＇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 私家于獄之兩辭. 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. 惟人在命,— from the relation of this clause to that which precedes,—非天不中, 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 Gan-kw? and K?ang Shing, that 命=教命,＇instructions and commands＇. The paraphrase of the latter is:—夫天之罰人, 非天道不中也, 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 hisown fate, and brings the punishment of Heaven on him＇, So says K?ng-yay, but he throws no light on在. Woo Ch＇ing 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 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-kw?, K?ang 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. 非德于民之中,—it is difficult to tell exactly what Gan-kw? understood by this. He says:—非當立德於民, 為之中正乎. He then connects尙明聽之哉 with this,—＇If you do so, you will perhaps listen to my words.＇ K?ang 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 尚明聽之 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 非德于民之中, with Ts＇ae, as=非用刑成德, 而能全民所受之中者乎. 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, ＇punishments,＇ but it must denote more than that,—＇punishments rightly inflicted and duly apportioned＇(五刑之施, 皆中正之極也). The editors of YungChing＇s Shoo, without condemning Ts＇ae＇s view, direct attention to a construction proposed by Seu K＇?aou(徐僑) and some other critics, who understand 無疆之辭 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, 雖情辭之來, 紛然無有疆界, 而以理燭之, 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 民之中 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.