The chief division of the subject is into larceny committed by stealth, and larceny committed openly the former is theft, the latter robbery. What is meant is, that though in both cases it is essential that there should be a taking without justification 憑空將他人財物或搶或竊 , in theft the taking is by stealth , but in robbery the taking is done (H. A. H. L. vol. XVI.

openly P. 24).

Robbery is not of necessity punished more severely than theft, both equally depend for their gravity upon the attendant circumstances and conditions, and it is in consequence of this latter point that probably more space in a Chinese law book is given to robbery than theft for the former lends itself to special

circumstances.

It may be well to note that the word tsei usually translated robber or thief, does not mean merely this, but is applied "to all persons "who set the authorities at defiance by acquisitive "acts of violence" and inasmuch as "the

“object which it is sought to acquire may be a

C. E. G.

25

"bag of money or the Empire" it results that tsei implies "either robber, or bandit, or rebel". Tao is the generic term for larceny theft being ch'ich tao and robbery 竊盜 chiang tao 搶盜.

The taking. (a) That the full penalty for an act of larceny may be inflicted, the taking must be without any sort of justification or excuse; and reasonable, but sometimes trifling, and occasionally very questionable considerations, will create even in aggravated cases sometimes partial, and occasionally complete extenuation, so far as the larceny is concerned. Thus one person has a claim against another, and violently carries off the latter's cattle in satisfaction thereof penalty eighty blows only. Again if the aforesaid claimant chances to kill the cattle owner, the penalty will be that for killing in affray, or ordinary murder (v. Debt). On the other hand, if the taking be without any ground whatever, the mere taking will render the culprit liable to three years' transportation and one hundred blows; and if under similar conditions life is taken, the penalty will be

decapitation without appeal

or assuming

several are involved, decapitation without appeal for the principal, strangulation subject to. His Imperial Majesty's approval for those guilty in the second degree, and penal servitude for life on the remote frontiers for simple accessories or third parties. There is also another curious point in this connection, if the cattle or property carried off do not belong to the person against whom the carrier has a claim, it would seem that the case will not be considered as one of larceny. So in the case of Chêng Ch'ien-ts'ai

, where a creditor and some friends of his tried to carry off some cattle owned by a debtor jointly with his brother, and the latter being killed by one of the creditor's friends, the Board refused to allow the case to be dealt with as one of robbery and murder (H. A. H. L. vol. XVI. p. 4 and post Debt). And so also in the case of Li Hsing-t'ai 李興太 awarded a mitigated penalty (but not for larceny) under somewhat similar circumstances (H. A. H. L. vol. XVI. p. 6).

Occasionally the claimant, previous to his action,

has indulged in words or a struggle

merely as a mode of bringing his just demands before his debtor. So in the case of Ou P'êng-shun , a convict who first having words with his master, because he would not pay his wages, then proceeded to rob the latter the case being treated as simple theft, with penalty therefor increased by two degrees (H. A. H. L. vol. XVI. pp. 4—5). And in the case of Liu Lao-kung, the culprit was owed 300 cash by the man with whom he was struggling and though he killed his victim, and considered 7200 cash necessary to meet his claim, the case was considered as one of killing with intent merely (id.). And though the claim was a gambling one, similar actions would be similarly treated (H. A. H. L. vol. XVI. p. 6).

A person may even premises, and carry off his with transportation for life.

clear out another's

stock, and escape

if he has some

lame excuse like Li Chia, to the effect that "he refused to give me some money to "go in search of my wife, who had been in his

"service and had bolted" (id.). A mere grudge against an establishment for dismissing the culprit (though for a good enough cause) has saved the aforesaid culprit from the full penalty for simple larceny of some useful articles in the said establishment.

The reasoning is occasionally even more strained and far-fetched. For instance, it is not robbery to relieve a friend because he will not lend a 'fiver' (id.). And if two parties being on the same footing engage in a fight, and one of them despoils the other, the case will not be aggravated by being considered one of larceny also the preliminary fight is considered as explanatory of a desire for revenge, and the revenge took the form of openly taking another's property.

(6) Whether or not there was an asportation is a vital consideration in nearly every case (H. A. H. L. vol. XVI. p. 36). The offence may however be found, although there was no removal the attempt being punished but not (nota bene) with the full penalty. Thus if the offence be in a house, the offenders may be