The following report (selected and transcribed by Peter Bullock) does not concern colonial courts. Peter found it when looking for material about the colonial case law of China and Japan. This newspaper account may be as valuable for what it says about western attitudes to Asia as what it reveals about Mongol attitudes to law.
The North China Herald, 1 January 1877
A MONGOL COURT OF JUSTICE.
ONE evening after sunset, a Mongol came furtively into my tent, and after a few commonplace remarks asked in an earnest whisper, if I had any medicine good for wounds. I said I would like to see the wounds before giving medicine for them, and asked what sort of wounds they were and who had inflicted them. It turned out that the wounds were not yet inflicted, - that the visitor was to be tried for theft next day, and as part of his examination was by scourging, he wanted to be prepared for the worst. In his own name, and that of a friend, he also preferred a very earnest request, that I would give him some medicine to make his flesh able to endure scourging without feeling pain! If I could not furnish him with this, perhaps I might give him something to tighten up his mind, so that he would not confess under torture! After a long and confidential conversation as to his guilt and prospects for the morrow, he rose to go, asking me to tell no one of his visit, because he was in custody, and allowed to go about only by the kindness of his keeper. Next morning early, I had another visitor on the same errand; like his neighbour he wanted something to heal his possible wounds, to harden his flesh, and to brace up his mind.
In the early morning a large tent of blue cloth fluttered gaily in the breeze. It was pitched just beyond the temple limits. The whole half-year's secular business of the tribe had been transacted in the temple buildings, but criminal proceedings could not be taken against culprits within the hallowed ground. Within the boundary it is not lawful to beat and whip men; so the thieves had to be examined outside the little footpath made by devout Mongols who travel round and round the sacred temple by way of religious duty. No one appeared to know exactly when the court would begin; but after a while stragglers seemed to converge towards the conspicuous tent, and the rumour got abroad that the mandarins had gone out to commence business.
The tent was open at both ends, and with the exception of a contracted space down the centre, was packed full of mandarins of various ranks. Around the mouth of the tent was the disorderly crowd of spectators, who pushed each other about, and talked away among themselves without any seeming restraint. At the tail of the tent was another smaller crowd, kept in a little better order by the angry commands of "stand back," shouted at short intervals by one or other of the dignitaries sweating under the heat that found its way through the cloth of the tent. The tail of the tent had been opened to secure coolness by the circulation of air, but blocked up by a sweltering crowd at both ends, the circulation amounted to little; and the discomfort of the judges within, was only exceeded by that of the trembling culprits who were led up and made to kneel before them. Behind the little table, on which were laid official papers, sat two or three mandarins with buttons of various kinds, and no one was seen to be specially presiding. Anyone that liked seemed to say anything he liked, and frequently more than one spoke at once; and on more than one occasion a prisoner had to attend to the different sets of remarks made to him by two different mandarins at one and the same time. The noise of the two crowds of spectators outside, and the free and easy way of contemporaneous speaking inside, made it difficult to keep track of what was going on. It is hardly possible both to see and hear; so a good many of those really interested in the proceedings, did not attempt to see, but knelt down outside the tent, and with bended head listened attentively through the cloth. Beyond the crowd in front of the tent, sat a row of laymen and lamas all looking very solemn and sedate. These were the prisoners waiting to be tried. No one seemed to watch them, and they were not handcuffed or bound in any way. They simply sat and waited till an attendant came and called them forward.
One case tried was that of two lamas. The reading of some charge or evidence or other could be heard indistinctly amid the hum and bustle, and then the elder lama was led out in front of the tent and lay down in full view of the crowd. As the crowd fell back a whip, a couple of rods, and the leather sole of a shoe became apparent. The lector asked which he was to use, and on being told to take the whip, proceeded to administer thirty lashes. The whip was really a formidable weapon and looked alarming; but the whipper stood so close to the culprit that almost all the force of the thing was spent on the grass. This was farce enough, but this was not all. One, two, three, five, eight, nine, ten, eleven, thirteen, seventeen, twenty - counted the sturdy lictor, bringing up his whip with great display and letting it gently down - twenty he counted, and as he counter twenty-one, an official standing near by shouted thirty. THIRTY, with tremendous emphasis shouted the lictor, and then rested his whip, as if his arm had been quite worn out with the great exertion. "Oi yoi yoi," sighed the victim as he got up, and the whole crowd of spectators laughed aloud; the sufferer joining in the laugh as soon as he got his face turned away from the court. Everybody seemed pleased, and what seemed to please them most was the counting - twenty, twenty-one, thirty. The turn of the younger priest came next, but his was a more serious affair. He was uncovered and his infliction was with a rod that left a mark at each stroke. The count too was carefully looked to, and when it jumped from three to five, the lictor was ordered to stop and be careful how he counted. This lama got his full complement of thirty strokes and good strokes too.
Another case was that of cattle-stealing. Several men were implicated, but the din and bustle made it impossible to hear whether the accused confessed and were punished for the deed, or did not confess and were whipped to make them tell the truth. Doubtless Mongols accustomed to the proceedings knew all about what was going on, but an unaccustomed spectator, hustled about, could only guess. One of the culprits was an old man with a decent dress and respectable look; and one of the buttons inside the tent could be heard shouting to him: - "You are an old man, more than sixty, your life is almost past, you should know better by this time than to steal; if you are poor and hungry, beg; begging is better than stealing; if you beg, people will give you food." Then after a little: - "After this will you be deterred (from stealing? Will you be careful? Will you amend your ways?" He was then led forth and had thirty slight lashes with the ship, without being deprived of the protection of his trousers. Concerned in the same case was a young lama who came next in turn, and was punished severely with the rod. No miscounting, - no laying it on light for him. He was about twenty years of age, and, according to the expressed verdict of the unofficial mob, just the sort of fellow to steal. Then officials were evidently of the same mind, and took care that the scourging was no sham. Once they stopped the lictor, and threatened to have him whipped if he did not hurt the prisoner more. The young lama got fifty good ones, and seemed to get up with difficulty. Perhaps too he was tenderer than his neighbours, for he manifestly suffered severely.
Then came a complicated business of a single horse. Four or five prisoners were called up, and a long examination ensued. Several persons were beaten, among them the well-dressed respectable-looking son of a man of official rank. H had his thirty lashes by way of examination, and might have had more, if another man had not confessed under his torture, that he alone was the thief, and that the decent-looking young man was falsely accused. The man who confessed was the same who had come to me by night for medicine. His confession admitted that he had stolen the horse, and tied it up in the mountains till he should be able to convey it away secretly; but in his absence the wolves had come and devoured it, so he was none the better for the theft! His unsuccessful experiment was the cause of no little mirth to the official and unofficial spectators.
Another case was peculiarly Mongolian. A young lama was brought up accused of casing a prairie fire, which ran for miles and scorched a caravan of Halhas, encamped with their camels and loads of tea in the long dry grass. The accused admitted the charge, but pleaded that it was not intentional; and appealed to the mercy of the court, reminding them that he was a quiet and orderly subject, and as the sole support of his father, an old man aged eighty years. The court was evidently satisfied with the explanation, but the law must be magnified, which was supposed ton be done when thirty nominal lashed were laid on lightly, not even his coat being removed; and the count being so cooked that though thirty was counted, hardly more than fifteen were administered.
Another case elicited rather a curious confession. An elderly man under examination said, that if his two companions in accusation would not own up, he would take the responsibility of the loss. Then judges seemed well satisfied with the arrangement, asked if he had means sufficient to make good the loss, and dismissed him without corporal punishment.
A few more cases followed, and then the greater part of the spectators dispersed, remarking that what was to come next was a civil suit, at which they evidently did not expect to see such beating and whipping, which seemed to form the main attraction to most.
In connection with the above-mentioned criminal proceedings, probably the natives knew pretty well all that happened; but to the eye of an unaccustomed spectator, nothing very definite appeared, and it was hardly possible to make out whether the various flagellations were given as punishment for crimes or inducements to confess. Indeed the language that accompanied them sometimes seemed to indicate, that both purposes were aimed at.
It must not be supposed that these beatings constituted the sole punishment of the thieves. Their sentences of imprisonment, &c., were passed afterwards; and some of the cases were said to be those of men who were undergoing sentences previously passed on them; and who were now brought forth merely to be presented to the court.
During the course of the proceedings, I had been endeavouring to distinguish the governor-general of the tribe; but in the crowd of mandarins in the tent, no one seemed to claim much higher rank than his neighbours. Returning to my tent, a fat Mongol in a greasy old dress called me to him, passed salutations, conversed a little, then let me go. He had a couple of attendants hanging around near him, and an old lama came up as we were speaking. Two days afterwards meeting the old lama, I asked who that mandarin was who had been talking to me. It had been the governor-general incog. He had deputed his duties to the inferior mandarins; and while they were sweating in the crowded tent, bullying thieves. And speaking down each other, he had been enjoying himself lounging around.
A day or two afterwards, in my tent, I happened to ask an aged lama of some small rank in the temple, if he had been to see the trial of the thieves. Hitching himself round, and looking at me as of he thought I was taking some undue liberty with his dignity, he replied "No, no, no; do you think a respectable man like me would go to see thieves tried?" This seemed to be the universal feeling on the matter, that it was an exhibition fit only for the eye of boys and menials.
There seemed to be a very prevalent idea, that the court on this occasion had been altogether too merciful and gentle; or as the Mongols expressed it, that the Mandarins had only been amusing themselves. Perhaps though, they only said so to me from a desire to make Mongolian law more imposing in my foreign eyes. The prisoners themselves did not think it much fun. One man on being taxed with confessing altogether too easily under slight torture, said that he really could not help it, and that his questioner must be no better than an ox, if he did not know that when the fatal time came, to refrain from confessing was an impossibility. Perhaps after all the court served its purpose. Merciful and amusing as it might seem, most of the prisoners appeared to stand in no small awe of its decisions, and if it had the effect of punishing criminals and deterring from crime, it could not be said to have been a failure.
Towards sunset I had another visit from the prisoner who, the night before wanted medicine for the wounds and bracing for his mind. How changed he seemed. He had had sixty strokes and was sentenced to something or other, he did not know as yet what; but he seemed happy and radiant, and smiled all over. The anxiety and uncertainty had gone, he had confessed and been condemned; but though acquitted he could not have seemed much more relived. Though severely beaten he had not received wounds, his mind did not now want any bracing, and it was evident that his confession had been an excellent tonic for his mental constitution.
A good many cases of theft were left untried at the close of the day, and how they were settled does not appear. The tent was not pitched again, and next morning early the governor-general took his departure, conspicuous in his two-horse cart guided by a mounted driver, and preceded by a horseman carrying the deals of office in a box strapped on between his shoulders. This was the signal for a general scattering. Many Mongols returned to their homes before; those that were left now disappeared, and the traders, from Peking and other places who had come for the occasion, departed to travel round the country; and the temple, which for a week had swarmed with men, and had its pastures adorned with scores of hobbled horses, resumed its normal deserted appearance, not ton be again disturbed till the summer sacred festival would attract its crowds of traders and worshippers from the four quarters.
In travelling round the country afterwards, we met several of the prisoners at their homes, and every two or three days were reminded of the court of justice by hearing our Mongol servant counting, in a mock official tone of voice, ten, eleven, fourteen, nineteen, twenty-one, THIRTY, as he hammered the tent pins into the hard ground.
It turned out too that one of the prisoners at least did not get off so easily, as the trial we had seen might have led a spectator to suppose. Another prisoner had taken the whole guilt upon himself, and thus freed his neighbour, who, at that time, was allowed to get off rather easily. Some time after, the man thus freed was sent for by the governor-general, and subjected to another examination. The accused was a man of means, and he was now charged with bribing his conferred ate to confess and take the blame. A severe castigation was administered to make him reveal the truth; but the man stood firm, not to be made to confess and had to be dismissed. The story goes, that after he had received the severe infliction of over a hundred strokes, and the examination was ended, he got up with the bearing of an innocent man, shewing his unbroken skin as proof of his innocence. "You have broken several rods on me," said he; "see how I have stood it, are you satisfied now?" The Mongols have great admiration for a man who will thus dare and endure without confessing; and however objectionable the examination by torture of witnesses may be, it affords good opportunity for inflicting severe punishment under pretence of questioning men who are pretty well known to be guilty, but who cannot be convicted for want of conclusive evidence.