Flay the Plaintiff, Fleece the Defendant – Law in Old China

Old China had a draconian solution for reducing litigation – torture everyone concerned, plaintiff or defendant, or extort silver from the litigants in place of torture. Rather than have their toes and fingers squeezed between blocks of hard wood, or kneel on chains for hours, Chinese did their best to avoid courts entirely, and relied instead on arbitration, by family or village elders, or clan elders.


Still, many cases of crime came to Chinese courts and, in the last dynasty, there was an elaborate body of laws to guide the mandarins in their legal decisions. The magistrates and judges, too, were motivated to make the right decision, because they might be punished – fined, beaten, or dismissed – if a decision was reversed at the provincial level or, Heaven help them, the capital.

As Yankee Mandarin is engrossed, as usual, in the arcana of the historical portrayal of China in 1860, Chinese mandarins in the novel pass some of their time rendering judgments and reviewing cases. One such passage begins in the District Magistrate’s yamen, his official office.

        Magistrate Liu conducted the taotai to an office that opened off the Great Hall, offered his Excellency a comfortable seat beside a large desk stacked with scrolls, called in his clerk to assist with the review, and ordered a servant to bring tea.
        One by one, the magistrate opened a scroll and presented the details of a legal case for the taotai‘s consideration. The clerk handed a copy of each scroll to the taotai, who slowly unrolled the scroll as he listened.
        “The first case is about possession by ghosts,” said the magistrate, watching closely for any changes in the taotai‘s expression.

First case: The Tomb Violator
A woodcutter named Chang Hai found his wife raving as one deranged. Believing the ghost of a distant cousin Chang Wen-po had entered his wife, Chang Hai went to the house where the coffin of Chang Wen-po was awaiting a geomancer to declare a propitious day for burial. Chang Hai pried open the coffin to drive away the ghost and restore his wife’s health. Chang Hai beat a gong and chanted spells but did not expose the corpse. The owner of the house complained to the local constable and Chang Hai was arrested. The judge in the case cites the statute for violation of tombs 發塚, sub-statute for opening the coffin of a dead person not permanently buried, with the intention of robbery, and sentences Chang Hai to one hundred strokes of the heavy bamboo and three years penal servitude.

        “Ghosts,” the taotai said. “Will we never suppress these superstitions?”
        “We cannot easily take away their ghosts, Excellency. How else will the old-hundred-names explain strange happenings that beset the lives of common people?”
        “That view is unorthodox, Sung-yen. Much human mischief is attributed to ghosts, I think. What do you suppose his wife was raving about? Did she discover his misdeeds, or was she covering her own, perhaps with the dead cousin?”
        “If so, she didn’t tell the judge.”
        “How did this Chang-hai know where the ghost came from?”
        “Coincidence?” Liu said. “No one else has died in that place for months.”
        “Why not hire a priest to cast out the demon, why violate a coffin himself?”
        “Cost?” Liu said. “A woodcutter’s family would be very poor.”
        “Well,” the taotai said, sighing, “no tomb was violated, so we proceed by analogy.”
        “There was no intent to rob,” Liu said, “however a coffin was forced open.”
        “Again the relationship is outside of the five degrees of mourning,” Wu Hsü said. “Had Chang Hai desecrated the coffin of a closer relative, the penalty would be increased. Had he exposed the corpse in this coffin, the penalty would be increased to military exile at a distant frontier.”
          “As it is,” Liu said, “the punishment appears to fit the crime.”

The source for these cases at law is Derk Bodde and Clarence Morris, 1973 Law in Imperial China, a seminal work in the study of Chinese law which presents 190 cases documented in original Chinese sources. This extraordinary book describes at length the administration and conduct of Chinese courts, the context of the Ch’ing legal code, and presents a comparison of the interpretation of statutes in China and the West. The three cases adapted for review by Wu Hsü and Liu Hsün-kao in Yankee Mandarin are based on the cases in Bodde and Morris

Second case: Criminal Excused to Care for Aged Parents
A man fired a pistol in defense of his mother and by chance, the bullet struck and killed his elder first cousin, a relationship of the third degree 大功, of the five degrees of mourning. Consequently, the man was sentenced to immediate decapitation. Upon review by the Emperor, the sentence was changed to decapitation after the assizes, because the criminal was his mother’s only son. Upon further consideration, the status of the case was further reduced to that of having circumstances deserving of capital punishment 情實. Subsequently, the case was reviewed at two autumn assizes without execution of sentence, and so was transferred to the category of deferred execution 緩決. A petition was thereafter approved to allow the criminal to return home to care for his aged mother, according to the statute for wrongdoers permitted to remain at home to care for parents 犯罪存留養親.

         “It was determined that the killing was accidental?” the taotai said.
        “Yes, Excellency. It was not an intentional murder.”
        “And since then, the criminal has been in gaol at his native place?”
        “For over two years now, but here at Shanghai.”
        “How has the mother gotten on while he has been imprisoned?”
        “This we do not know. However, she signed the petition for release.”
        “And the death sentence has been commuted?”
        “Yes, Excellency, to one hundred strokes of the heavy bamboo, and wearing the cangue for two months.”
        “Administer the beating here at Shanghai to be sure it is done properly.”
        “Then deliver him to the authorities of his native place for the rest?”
        “Yes, I suppose that can be allowed. They can apply the cangue. Better his mother feed him, rather than have him starve on the streets of Shanghai because he cannot put hand to mouth.”
        “The mother will be caring for son, then, at least for the first two months.”
        “He will learn gratitude.”
        “If he does not already know it. Next case.”

The Ch’ing legal code incorporated degrees of mourning into its statues by determining severity of punishment for crimes according to mourning relationship. Thus, crimes committed against parents were punished more harshly than crimes against cousins, or people more distantly related. The five degrees of mourning, wu-fu 五服, are discussed at length on p. 35-38 of Bodde and Morris. The first degree of mourning, chan-ts’ui 斬衰, required a son mourning his father to wear garb of unhemmed sackcloth and mourn for three years. The other degrees of mourning are set forth in the table below.

Third case: The Murdered Businessmen
Two businessmen, both named Wang, traveling together on a business trip, engaged a porter to carry their luggage. When the party stopped for the night at a tavern, the porter stole their money and ran away. The two businessmen pursued and captured the porter, returned him to the tavern, and tied him up in their room, planning to send the porter to the magistrate the following morning. The two businessmen sealed the room and slept in front of the door. The porter got loose and put poison in soup left from dinner and the next morning the two businessmen drank the soup and died. The judge in the case cites the statute for a “criminal who resists capture and kills a person attempting to make the capture,” finds the porter guilty by analogy of violating this statute, and orders decapitation after the assizes.

        The taotai quickly read the remaining particulars of the names and places of the persons involved. Then he laid the scroll in his lap and gazed out into the Great Hall. Both men were silent. Clearly, thought Wu Hsü, there is no question of the porter’s guilt. He has upset the cosmic order of the universe and must be executed to restore harmony. However, it is crucial that the manner of his death be appropriate and, of course, that there be no error in assigning punishment that could be reversed by higher authority when the case is sent to Pei-ching for review. Are there mitigating factors? The porter was not related to the businessmen, so relationship is not a consideration that would increase the penalty of death. Wait – what does this say?
        “The two men traveling on business were first cousins several times removed, is that right?”
        “Yes,” Liu said. “Both victims were surnamed Wang and related by family.”
        “Have your clerk look up the statute for homicide of three persons in one family 殺一家三人罪.”
        “Ah,” sighed Liu, “the judge neglected to consider the victims were family, probably because they were outside the five degrees of mourning 五服.”
        “The commentary on the statute should say that all persons who live together and share food and lodging are considered as one family 一家人, even servants and persons beyond the five degrees of mourning. See if there is a sub-statute regarding the murder of two persons.”
        “But could the victims be said to have been living together?”
        “They traveled together, stayed under the same roof, ate at the same table. The porter carried the luggage of both men, stole the money belonging to them both.”
        “Murdered them both, too. Even that was done to them together.”
        The clerk opened a book for the magistrate and pointed to a column of characters.
        “For the murder of two persons in the same family, the sub-statute specifies immediate decapitation and exposure of the head.”
        “Yes, a heavier penalty, as I thought,” Wu Hsü said.
        The clerk whispered a question to the magistrate. Liu waved him away.
        “What’s that?” Wu Hsü said.
        “My clerk is new to legal reviews. He wonders why immediate decapitation is a heavier punishment, considering the porter dies either way.”
        “That’s all right. You can explain it to him,” Wu Hsü said, interested in hearing how his magistrate would elucidate death, and if Liu might not be a little discomforted by the nuisance.
        “The assizes,” Liu said, “are the judicial reviews held in the autumn at the capital. Not only would the execution be delayed five months, but criminals often are treated leniently and have their sentences reduced to strangulation, exile, or penal servitude. The homicide of multiple members of a single family is far too great a disturbance to allow the disharmony caused to linger on over months.”
        “Immediate decapitation and exposure should be the sentence submitted to higher authority for this porter, so there is no delay of execution, and so that the old-hundred-names 老百姓 – the common folk – will see the murderer’s head exposed in the streets and understand the evil of killing members of a single family.” 

The Confucian concept called li 理 refers to principles intended to direct proper behavior in society. Five relationships were the basis of proper behavior: father and son, ruler and subject, husband and wife, elder and younger, and friend and friend. Laws derived from Confucian belief recognized these five relationships in the legal code. Rules for mourning, derived from the five relationships, prescribed the manner and length of time for mourning according to degree of relationship.

The next two cases were removed in editing and do not appear in the published novels.

Fourth case: Disobedient Son Buried Alive
An older son demanded his younger brother lend him money and, when the demand was spurned, the older son became furious, took up a knife, and chased his younger brother. Their father intervened, subdued his older son, tied his hands with rope, and reproached him for his bad behavior. The older son then cursed his father, which so angered the father that he buried the older son alive, ordering the younger son to assist. Upon hearing of the incident, the local constable took the father in charge, but the younger son escaped. The judge in this case has sentenced the father to one hundred strokes of the heavy bamboo for the intentional killing, ku sha 故殺, of a disobedient son.

        “So, the judge,” said the taotai, “has cited the statute against parents or grandparents unreasonably killing a son or grandson who has been disobedient, for which the penalty is beating. However, the killing was intentional rather than by mischance, for which the penalty should be sixty strokes of the heavy bamboo and a year of penal servitude.”
        “Even so,” said Liu, “the older son was guilty of assault by offspring on grandparents or parents, ou tzu-fu-mu fu-mu 毆組父母父母, when he dared to revile his own father. It seems to me that this fact mitigates any culpability of the father. The older son deserved to die at the hand of his father, and his father would have been remiss if he had allowed so heinous an offense to go unpunished.”
        “Yes,” said Wu Hsü, “the killing by his father of the disobedient older son was perfectly reasonable, intentional or not.”
        “Therefore the judge was mistaken and the father should not have been convicted at all?”
        “The younger son, of course, is guilty of killing his older brother and would normally be decapitated, except that his father ordered him to assist with the burial.”
        “If he turns himself in to the authorities,” said Wu Hsü, “a petition for clemency can be submitted with the case for the Emperor’s consideration. If the younger son remains a fugitive, however, anything can happen.”
        “He may resist arrest and injure someone. That would compromise the character of mercy.”
        “Being young,” said the taotai, “he is likely to seek refuge with family in the countryside.”
        “I will have the father send word telling his son to submit to authority.”
        “The father may not thus lose both sons.”

The harshness of the Imperial Chinese legal system was intended to keep down the number of cases brought to court, following the moot assumption that fear of the courts would help to keep society under control. In the 19th century the authoritarian control of the Manchu certainly did not prevent rampant rebellion throughout the country. The courtrooms may have been empty, but the countryside was crowded with rebels completely out of control.

        “The next case is the last for today. It is a final disposition returned from the capital ordering punishment in a matter that has been held over for two years.

Fifth case: Concoction of Magical Writing or Words
Licentiate [a degree holder] Yang became drunk and disorderly with friends in a tavern and concocted a story saying that the Taoist Goddess-of-the-Blue-and-Red Sky, Pi Hsia Yuan Chün 碧霞元君, appeared to him from her temple, niang-niang miao 娘娘廟, and offered to help him find himself a concubine. Others overheard him and reported his words. Yang and his friends were arrested and brought before the magistrate, who determined that only Yang was guilty, of irresponsibly spreading supernatural doctrine and magical ravings. Yang’s literary degree was revoked for setting a bad example by his drunkenness. Further, he was sentenced to deportation, fa ch’ien 發遷, and lifetime slavery at a frontier military post.

        Wu Hsü took a moment to read through the statements of the other persons involved. Foolish person, he thought. Awarded his licentiate for passing the first-level examination and was destined for further advancement, then threw away that great opportunity by drinking too much in public and talking crazy. Then again, perhaps it is best to winnow this husk now, before undertaking the responsibility of office and causing real harm.
        “An important point here,” said Wu Hsü, “is how many people heard Yang talking crazy.”
        “His friends insist that Yang was joking with them alone.”
        “But he was overheard by other persons, perhaps with large ears, probably pious Taoists.”
        “The statute says that if published to large numbers of people, the wild words merit decapitation after the assizes. However, the statute merely says ‘crowd,’ chung 眾, and does not amplify.”
        “So, how many is a crowd?” asked Wu Hsü.
        “Not a few oafs carousing in a tavern, I would say,” said the magistrate.
        “And his group was only bantering among themselves, without any intent to corrupt the public mind with wild tales about the supernatural.”
        “Do you think this sentence would be reduced at the capital?” asked Liu.
        “Yes. The circumstances merit. This is not heresy or sedition, just stupidity.”
        “A one-degree reduction would make the sentence one-hundred strokes of the heavy bamboo and three years penal servitude.”
        “I approve. Next case.”

An interesting and concise summary of Law in Imperial China, prepared by David D. Friedman, a professor of law at Santa Clara University (Santa Clara, California), can be found online; it is entitled Chinese Law.

Degrees of Mourning in Old China

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3 Responses to Flay the Plaintiff, Fleece the Defendant – Law in Old China

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  2. James Lande says:

    David D. Friedland emailed his response to the excerpt of three cases from Law in Imperial China presented in Yankee Mandarin: “My only reservation is the bit with the clerk at the end [Third case: The Murdered Businessmen]. I would think the distinction between immediate decapitation and decapitation after the assizes would be common knowledge, and especially likely to be known to someone working for a magistrate, even if new to the job. …Is it worth having someone comment on why decapitation is more serious than strangulation–not as a question, but an observation?”

    I must agree that in the light of reader comment, this bit of stage business does seem somewhat contrived. I could make excuses (most commoners, lao-bai-xing, could not be expected to know such distinctions; the clerk could easily have been some other clerk’s brother-in-law and had just paid a huge bribe to get the job and could not yet be expected to be up to it all) but there’s no point in quibbling when it is clear that instead of inventing an improbable walk-on part I might have done better simply to have the two mandarins, as David suggests, make an observation about the difference in punishment and its meaning.

  3. jdgarner says:

    I find this an interesting article. I read somewhere that the China legal system executes more people than any other country, but you have to take into account the size of the population. Still, the per capita is extremely high anyway.
    I read an interesting paragraph in Wikipedia that I would like to share. If anyone wants the sources of the information, Wikipedia provides the information at the end of the article on China.

    ” The Chinese government has responded to foreign criticism by arguing that the notion of human rights should take into account a country’s present level of economic development, and focus more on the people’s rights to subsistence and development in poorer countries. The rise in the standard of living, literacy, and life expectancy for the average Chinese since the 1970s is seen by the government as tangible progress made in human rights. Improvements in workplace safety, and efforts to combat natural disasters such as the perennial Yangtze River floods, are also portrayed in China as progress in human rights for a still largely poor country.”

    As you can derive, China is less concerned than smaller foreign countries about sharing our views of freedom and rights; probably due to the fact that smaller and more dependent foreign countries need our financial help, so they bend to our pressure. China is not so vulnerable to the wishes of the West concerning how they run their own country.

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