'let the Li Fan Yuan (the Mongolian 'Superintendency) decide.'

Nor is the difficulty an imaginary one. If the not an imaginary

Tartars claimed that Tartar Law should hold in Tartary, while Chinese Law was permitted in China, then things might, it is true, be accommodated: but mixed up in both countries as the Chinese and Tartars now are, it is inconvenient, to say the least, to have (as in fact often happens) to apply two Codes to the same case with the result, that of two criminals equally guilty of the offence charged, the one escapes with a whipping, and the other, besides being bambooed, is transported for life. The Chinese insist on even justice; and with unequal laws, it is impossible to

obtain it.

one.

as to

to Eighteen

§ 13. There seems, however, some doubt as Doubt applicability of to the applicability of Tartar Law to cases Tartar Law which occur within the Eighteen Provinces (as Provinces. distinct from the rest of the Empire). Thus in the case of Pao Chih-chia, where the parties were Mongols, the Board laid down the principle, that the question as to

Special

homedan laws

homedans only.

which law was applicable depended depended upon whether the offence was committed in Mongolia or within the Eighteen Provinces (Chihli being the province in the case in point). In the same Ma- case, the Board also ruled that the special laws relate to Ma-relating to Mahomedans applied to Mahomedans only, and not to Chinese concerned with them. So if two Mahomedans and a Chinese commit robbery, the Mahomedans, under the Mahomedan law 'where three or more 'etc.', incur the penalty of military servitude, and the Chinese, under the Chinese law 'where several persons are concerned . . . . etc.', incur transportation only (P. A. S. P. vol. XVI. p. 35; v. also the case of Ch'ang Hsiu P. A. S. P. vol. XIX. p. 1).

Predominance of the Law.

a

* *

§ 14. As here the law prevails. Every Chinese is within the law, and though it is true that certain classes and individuals are for different reasons treated more tenderly or, it

may be, more severely, than others, this is a perfectly legal treatment prescribed by and incorporated in the system. Furthermore, in regard of the

Code itself, because one part is entitled ritual laws, another military laws, and so forth, it must not be supposed otherwise than that this is a more classification which has gradually arisen for the sake of convenience. Common principles of Chinese law e. g. relationship apply throughout the system, and though special circumstances have of course in numberless instances gradually compelled the alteration or modification of principles, this natural issue has been attained through the ordinary legal

channels.

*

§ 15. There is a special practical phase of Law intolerant of interference. the subject deserving attention - i. e. the absolute sovereignty of the Law within its own realm, and its instant repression of encroachment. The question most often arises in connection with the military military interference is not tolerated. Military interThus a sergeant one day, while on his rounds, caught a gambler, and instead of handing him over to the magistrate for punishment, he ordered his captive to be flogged on the spot - and the latter, being in a poor state of health, died in

not

ference tolerated, for

example.

consequence. For this, the sergeant was sentenced to one hundred blows and three years' transportation; and which seems harder the soldiers by whom the flogging was administered were sentenced to ninety blows and two years' transportation (H. A. H. L. vol. LX. p. 7). And in another somewhat similar case, another sergeant was sentenced to the same penalty as the former although the man beaten hanged himself, and did not die directly from the flogging. It was most clearly stated in this latter instance that the sergeant was a military officer, and had no jurisdiction in a civil case (H. A. H. L. vol. LX. p. 8). The ground of the grievance, though remaining the same, may find a different expression. So in a case where a corporal received one hundred blows and three years' penal servitude for beating a sleeping sentry with his watchman's pole whereby the sentry died. The grievance he did the act himself

herein was twofold:

自用巡夜鈎桿叠毆,and

a thief

'catcher's pole is not a legal instrument with

which to inflict punishment' 而鈎桿究非

P. 44).

H. A. H. L. Supp. vol. XVI.

*

*

§ 16. Some attempt at the substitution of Special concur martial for the ordinary legal tribunals may perhaps

be discovered in that section of the Code which
provides that in the case of certain offences by
military individuals and under certain circumstances
a military officer may exercise a a concurrent
jurisdiction with his civil comrade (v. Part. I
p. 9). For the legal archaeologist this is an
interesting enquiry: the practical lawyer will see
that the treatment is a perfectly legal one,
prescribed by and incorporated in the Code,
and subject to all the ordinary rules of

rent military jurisdiction is no exception to rule.

§ 17. There is, however, a characteristic The Chinese family and feature of the Chinese polity, which might, at clan system. first sight, be considered to be antagonistic to this legal sway.

As is well-known, there is a considerable amount of local self-government in China. In its simplest form, there is the self-government exercised