The Rule of Laws, page 9
The documents indicate that order was supposed to be maintained through an extensive system of criminal punishments. When problems arose, someone would generally charge another with misconduct and the case would go to one of the scribes, who acted as an investigator. The scribe then sent a report to the magistrate, who was supposed to apply the correct punishment according to the severity of the crime. In their ranking system, the lowest penalties were fines.16 Next was banishment, then light penal labour as a guard, watchman, or servant. In these cases the criminal’s beard would be shaved off as a stigmatizing mark. Following banishment was more severe penal labour as a ‘firewood-gatherer’ or ‘rice-sifter’, for men and women, respectively. After that was the most severe form of penal labour, as an ‘earth-’ or ‘grain-pounder’, accompanied by visible mutilation, which could involve cutting the nose, although this penalty could be transmuted into a fine for people of higher rank. Finally, there was the death penalty. In practice, the magistrates often reduced the penalties because of the offender’s rank, particularly when it came to mutilation. But they had to navigate a sophisticated system for determining the correct punishment according to the different categories of crime and depending on factors such as the circumstances of a killing, with lesser punishments for those who had only assisted or conspired to commit an offence. They also had to reduce the penalty if the offender had reported his or her own crime, and there were rules about the minimum age at which children could be prosecuted. On the advice of Lord Shang, the Qin had introduced a system of collective responsibility, which meant that family members, or those who lived in the same five-family unit, could be punished as well, albeit more leniently than the principal offender.
In all their activities, officials had to follow correct procedures, from receiving and considering reports, to arresting suspects, to confiscating and evaluating the property of the most severe offenders. Further rules applied when they interrogated a suspect, and they had to be particularly careful in applying torture, so as not to extract a false confession. When the magistrates were unsure about the correct procedure, the assessment of the evidence, or the appropriate crime or penalty, they could refer the case to higher authorities. Many of these cases are recorded on the bamboo slips in Xi’s tomb. Each time, the magistrate had first consulted a number of his colleagues, and where opinions were split he reported the facts, the evidence, and the different views to officers at the provincial level. But this was a risky process, as the provincial officials could decide that the decision of the magistrate was wrong and fine him for an error of judgement. None of the legal officials was an independent professional. They were all civil servants, whose primary duties were to the higher government authorities. There was no separation of powers between the government and the judiciary.
Most striking, at least to modern eyes, was that the whole legal system was based on crime and punishment. Although some of the cases involved what we might call ‘civil’ disputes—for example, over inheritance or the ownership of property—in the hands of the Chinese authorities they were assessed as crimes. In one case, a wealthy merchant of very high rank in a childless marriage had fathered two children by one of his female slaves, presumably a common occurrence in these times.17 When his wife died, he freed the slave and treated her as his wife, after consulting members of his ancestral lineage, who accepted the situation. When the merchant died, however, she failed to report all his property to the authorities, apparently trying to hide some of his money for the benefit of her children. She later decided to confess, possibly fearing that someone would report her. The question faced by the legal officials was how to punish her. The crime of failing to report was serious, and a released slave would normally be sentenced to the most serious form of penal labour, as a grain-pounder. But the wife of a merchant of the fifth rank could receive a reduced conviction as a rice-sifter. Her confession reduced the penalty by another degree again. The question over which the officials hesitated was whether they should treat her as a wife, given that the merchant had not properly reported his marriage. While the government assumed responsibility for authorizing marriages, many people still looked to their lineage for confirmation instead. And this was not the end of the difficulties. Another servant claimed that the merchant had promised him a share of his property but had failed to record this in his will. The wife, meanwhile, claimed that the servant had tried to blackmail her into transferring the property to him. After the first round of interviews, the officials, faced with conflicting evidence, interrogated the servant again, presenting him with evidence of the merchant’s wishes. Now the servant dropped his claim. The officials were still not sure that the evidence was clear enough to amount to blackmail, so they sent the case to the province for a ruling. The dispute in this case was between the wife and the servant of the merchant about who was entitled to his property. However, within the Qin legal system, it became a criminal case about reporting and bribery, in which both parties received punishments.
All Chinese litigants, including merchants with commercial disputes and peasants arguing about land use, had to squeeze their claims into the categories of the criminal laws. For those who took their cases to court, there must always have been a risk that they would find themselves being punished for a wrong, so most disputes probably never reached the magistrates. Disagreements over property, debts, contracts, and cases of minor fighting and assault were probably dealt with locally in the villages or in neighbourhoods, or by members of an ancestral lineage, in a pattern that continued into the modern era. But when they reached the courts, they were assessed against the extensive lists of crimes and punishments.
The cases buried with Xi and other Qin officials demonstrate meticulous control of public affairs. Officials managed not just armies, borders, roads, and waterways but also public granaries, storehouses, and markets. They pursued vagrants and those who absconded from proper employment as well as controlling systems of marriage and inheritance. The long arm of the government reached far into the everyday lives of most Chinese people. The Qin are now mostly remembered for the stupendous army of terracotta warriors they buried in a tomb complex at Xian, but they undertook other public works, building a large wall to the north of their empire and an elaborate system of roads. All this required considerable amounts of forced labour. This put a great strain on the peasantry and explains many of the laws concerning conscription, penal labour, and the offences of vagrancy and absconding. The emperors systematically centralized power in the hands of a small elite, which undermined the status and authority of local aristocrats. Eventually a few nobles were able to incite large numbers of discontented peasants to rebel against their rulers. In 207 BCE, less than two decades after the Qin established their empire, rebels took the opportunity presented by the death of the emperor to launch an attack on the capital and bring down the government.
THE REBELS’ AMBITIOUS leader styled himself the emperor Gaozu and established what became the Han dynasty.18 Although he strongly criticized the Qin and their system of government, not least for the harshness of their laws, Gaozu continued the former dynasty’s policy of unifying China, expanding the structures of its government and maintaining many of its legal institutions. He founded a new capital near modern Xian, established markets, developed trade along the silk roads, and instituted examinations for the recruitment of officials. Drawn to the philosophy of Confucius, Gaozu and his successors styled themselves ‘Sons of Heaven’ and ‘Leaders of the East’, and they performed sacrifices and divination and continued the ancestral cults. Now free of persecution, Confucian scholars wrote extensive commentaries on the classics and persuaded the emperors that good education was essential for election to any government position. These ideas conflicted with legalistic institutions and practices of the bureaucracy, however, which most officials saw no reason to change. Throughout the rest of the Han period, debates continued between those sympathetic to Confucian ideas, who warned of corruption and growing disparities between rich and poor and who advocated leadership through moral example, and those who sought to strengthen government monopolies, control the population, and impose strict laws.
The Han emperors made much of the fact that their regime and its laws were more merciful and less complicated than those of their predecessors, but they only gradually relaxed the harshest Qin laws. They kept or copied Qin statutes on agriculture, the auditing of official records, transmission of orders, provision of services, establishment of offices, food rations, and markets. Like their predecessors, they used the legal system to manage the economy, control officials, maintain the flow of important information, requisition labour, control ideology and religious practices, monitor family structures, and manage inheritance and property relations. Individuals who wished to resist the control of the state were reduced to absconding, smuggling, conducting illicit affairs, organizing revolts, or using the legal system itself.
Under the Han, legal officials at quite low levels continued to exercise considerable power. They began their training at an early age and became familiar with a mass of statutes, difficult legal terminology, and types of documents. If someone made a complaint, they would conduct the initial investigation, record accusations, interrogate and cross-examine parties and witnesses, and even administer or supervise torture, if they thought it necessary to extract a confession. They then collated the evidence, assembled it into a case, and sent it to the magistrate for a decision. As in Qin times, the magistrates followed precise procedures and kept records of past cases, particularly those they referred to their superiors. Carefully recorded on bamboo strips, these established a system of precedent not unlike the English common law. About half of the cases discovered in one tomb at Hubei concerned officials who had failed in their duties, falsified books, committed theft or bribery, or obtained a wrongful conviction through torture.19 Others had to do with captives and convicts who had absconded, been freed, or been beaten to death. One case involved a woman from the ruling family of a newly conquered territory who had eloped with her official escort on her way to the capital. In another, a man had unwittingly married an absconding slave. Generally, the cases raised questions about the correct degree of punishment when several finely defined crimes could have applied to the facts in question.
Four of the cases found in the tomb at Hubei offer graphic tales of courtroom drama, and these may have had literary, as well as legal, purposes. One document dating to the Qin period records how, in 241 BCE, a plague of locusts had devastated crops in the capital, and all able-bodied men were sent to the fields to beat off the pests, leaving the streets and markets empty.20 An opportunistic robber chose the moment to attack a woman and snatch a large amount of cash, but he dropped a fragment of a silk merchant’s contract at the scene. According to the record, this violent crime, committed in broad daylight, terrified the inhabitants of the city, and the officials sent scribes to investigate. Initial work produced no leads, so the magistrate called upon the hero of the case, a scribe named Julü, to investigate. Careful questioning among the silk merchants who might know something about the contract fragment was inconclusive, so Julü moved on to ‘lower elements of society’, including juvenile delinquents, servants of market traders, male slaves, bond servants, and foreign wage labourers, observing their behaviour and looking for signs of suspicious activity. Eventually he sought out even more shadowy characters—black market traders, the homeless, the destitute, and male prostitutes. He finally found a pitiful suspect, a man named Kong whose contradictory and implausible statements he destroyed in cross-examination. His final triumph was to match the assault weapon with a scabbard that Kong had once owned. Now the suspect confessed, and Julü was nominated for promotion as a ‘highly competent, incorrupt, conscientious, and dutiful’ official. The scribe seems to have been more concerned to record, and possibly embellish, his heroics than the legal niceties of the case.
Another set of bamboo strips describes the case of a widow who was prosecuted for having illicit intercourse with a lover.21 To add insult to injury, the two had been discovered in the house of her mother-in-law, next to the coffin of her deceased husband. The magistrates charged her with filial impiety towards her mother-in-law, on apparently incontrovertible grounds, and they were just about to pronounce sentence when a junior scribe returned to confront his superiors. Challenging the sentence, he proceeded to demolish the case against the widow and the magistrates’ logic, demonstrating that the widow no longer owed any filial duty to her former mother-in-law. The scribes who compiled these cases almost certainly embellished the narratives to increase the drama and celebrate the heroism of their colleagues.
Other texts found in the Hubei tomb record dialogues between a ruler and one of his senior judges about the cases he presented for approval. The judge always starts with excerpts from the statutes and the facts of the case leading to his decision, and the ruler in each case initially expresses consternation and disapproval. The judge bravely persists, offering a detailed and persuasive account of the reasons for his verdict, which finally leaves the ruler with no choice but to approve his decision. Scribes may have compiled these records to serve as instructive precedents or to educate trainee officials, but some do look more like literary works because of the manner in which they cast legal officials as heroes. By burying them in a tomb, the bereaved were perhaps hoping they would continue to provide a source of amusement and satisfaction for a scribe in the afterlife.
Over the next four hundred years, the Han governments alternated between policies inspired by Confucian thought and the stricter laws that seemed more appropriate at times of unrest and disorder.22 And all the while they passed new statutes and regulations. By 94 CE, there were 610 capital offences, 1,698 offences punishable by penal servitude, and 2,681 other offences. One emperor complained of the ‘vexatiously numerous’ laws and prolix system.23 Still, perhaps troubled by Confucian criticisms, they never produced a streamlined and coordinated legal code, and the laws became more disorganized as they multiplied.
The later centuries of Han rule, in the first and second centuries of the common era, were marred by court intrigues, corruption, and the machinations of imperial regents, wives, mothers, and eunuchs. Literature continued to flourish, along with philosophy, the arts, and scientific and technological innovations, but social order disintegrated, and many lost their faith in the promises of Confucianism. It seemed unable to create stability. Some turned to Daoism, others to Buddhism, which had entered China in the second century BCE, and the Han regime eventually fell in 220 CE. Now China divided into three kingdoms, and there followed several centuries of political chaos. Despite the political turmoil, many of the Han statutes survived; rulers continued to create, amend, and repeal them to suit their own administrative needs; and several brave scholars attempted to organize them into more coherent groups.
IN 581 CE, Yang Jian, a general in the northern kingdom, ousted the heir apparent to the ruling family, killed fifty-nine of its princes, and proclaimed himself founder of a new dynasty, the Sui. Within a few years, he had conquered the southern kingdom and consolidated his rule over the whole of China. To mark the reunification of the country, he proclaimed a new legal code. Like earlier rulers, he declared that his intention was to introduce a more just system and abolish the most cruel punishments of his predecessors. But, in practice, his scribes simply copied out many of the 1,735 articles from the Han, several of which had their roots in Zhou and Qin times 700 or 800 years earlier. The basic shape of the system also continued to be overwhelmingly penal, demanding serious punishments for many crimes, albeit mitigated by possibilities for remission. But Yang Jian’s ambitious plans to reunite the Chinese state and construct a grand canal to link north and south, along with his continuous military campaigns, demanded excessive labour and military conscription, which his people struggled to provide. Exhausted and oppressed, they staged a series of rebellions just a few decades later and overthrew the regime.
Among the contenders for power, one nobleman emerged to establish what became the Tang dynasty in 618. His son, Taizong, then secured the succession in 626 by killing his two brothers and all ten of their sons. Despite these violent beginnings, the later Tang emperors were careful rulers, selecting good advisers, and under their governance China prospered. Over the next 150 years, the capital, Chang’an (modern Xian), became the greatest city in the Far East and the largest in the world, with some one million inhabitants. Embassies arrived bringing tributes to the rulers, now styled Sons of Heaven, while students flocked to the Buddhist monasteries and Chinese pilgrims journeyed throughout Central Asia as far as India. Merchants and goods from Java and Iran flowed into Chang’an’s markets and streets, which jostled with foreigners. Brilliant poets and artists flocked to the court and sought patronage from the wealthy, while artisans turned out delicate ceramics and porcelain. The first printed books appeared in this era, originally to reproduce scriptures for Buddhist monks.
