article of the code the facts agree with so that the penalty may fit the circumstances 情罪相符.

Where there is no special provision exactly applying, the case is to be brought under the clause in the code providing for similar offences, a provisional sentence submitted for the approval of the Higher Authorities, and the penalty adjusted according to circumstances. Thus, there being no special statutes relating to the traffic in paddy at the capital, but merely a general provision that the traffic is contrary to law, the special provisions in regard of the traffic in cleaned rice are to serve as a guide in determining between one case and another. Cases such as these are leading cases, and the ipsissima verba of the legal definition hereon may be interesting i. e.

俔係例無專條援引比附加減定擬 "leading cases are leading cases to which "no existing statute exactly applies, and which are "decided on the lines of some clause more or "less applicable, with increase or diminution of "the established penalty."

Where the offence is unprovided for in the Code, its last provision states that the offender shall be

treated as a misdemeanant, and suffer one hundred blows from the heavy bamboo a provision not infrequently made use of in cases of doubt as to the proper treatment for a given case.

Circonstances attenuantes are taken into consideration, but not by the lower court they must await the Autumn Revision. The lower court has simply to decide on the facts, and the clause they come under, while the Supreme Court at Peking decides on the character and circumstances of the offence. (H. A. H. L. vol. XXIV. p. 30).

PRECEDENT

This is an important consideration in dealing with a case, and the reverence that the Chinese have for it, is well shown in the following instance the Emperor himself giving way (though not readily) to the Board, where the latter was in opposition. A man set fire to a farmer's ricks, and the fire spreading, some thirty-seven houses were burnt down. Naturally thinking simple transportation for life too light a sentence, the Emperor suggested trying the

offender as a pest to society, and sending him to military servitude. The Board, however, showed that the year before, in the case of a beggar who had burnt down some thirty-three houses, it had been laid down by the Shengking Board that the man could not be tried under any law but that of arson. His Majesty remarked "Very "well, then still there is a difference between "thirty-three and thirty-seven." (v. case of Huo Kuei-ssu, H. A. H. L. vol. LIV. p. 1).

The determination of the punishment due to a particular offence announced, as occasion arises, by special edict, is in respect of that offence only, and is not to be considered a precedent.

Although a sentence has been approved by the Board, it cannot be quoted as a precedent, unless it has been ordered to be circulated 雖有照覆成案並非通行定例不得 #6 (P. A. S. P. vol. III. p. 83), 遠年未經通行之案不得引以爲據 (P. A. S. P. vol. III. p. 28).

It is interesting to notice the constant clashing of precedents. In one instance the Board reproved

the Governor for allowing a man to plead that he had surrendered himself, seeing that to allow the plea was not only directly contrary to the wording of the Statute, but also contrary to a precedent they quoted. In his reply, the Governor fully admitted the justice of the reproof, but mildly justified himself for having fallen into error, by quoting cases approved by the Board in which the plea had been allowed. The Board, however, remarked that a precedent which has been once upset must not again be quoted. (P. A. S. P. vol. VII. p. 1).

EVIDENCE

Chinese Courts pay little regard to direct statements; the witnesses are not reliable indeed often 'dangerous': and the duty of the judge is to wring the truth fout of those brought before him - not simply accept their statements, and decide according as what we call the weight of evidence seems to incline to this side or to that. Chinese Courts do not weigh evidence but, after a careful cross-examination

, narrowly scrutinize it, and decide according

to the conviction of the judges. (v. case of Li Li Ch'i-chuan, wherein the evidence was simply set aside, P. A. S. P. vol. XIV. p. 53). ‘A 'plausible defence'

little chance, and the 'made 'accused'

has comparatively

up stories of the

are valued accordingly.

In serious cases as e. g. homicide — a regular enquiry may be held, and by way of checking the statements of the witnesses the wounds in a corpse will be carefully examined to ascertain if there are any 'undisclosed circumstances'. But such an enquiry must be carefully distinguished from a postmortem (q. v.).

Persons allowed to keep silent by reason of their relationship to the accused, persons eighty years of age or over, children ten years of age or under, and idiots, are not to be allowed to testify, for they have no penalty to fear if they commit perjury. Every other person, male or female, may testify; nor is the prisoner himself excluded for in Chinese Courts he is considered not only a good witness, but a most important one and in this connection, if the prisoner be ignorant of letters and has aught to depose, it