A Study of Criminal Proceeding Conventions in Tang Dynasty [1st ed. 2021] 9811630402, 9789811630408

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Xi Chen

A Study of Criminal Proceeding Conventions in Tang Dynasty

A Study of Criminal Proceeding Conventions in Tang Dynasty

Xi Chen

A Study of Criminal Proceeding Conventions in Tang Dynasty

Xi Chen Northwest University of Political Science and Law Xi’an, China Translated by Guang Shi Nanjing Normal University Nanjing, Jiangsu, China

Financial Support by the Chinese Fund for the Humanities and Social Sciences ISBN 978-981-16-3040-8 ISBN 978-981-16-3041-5 (eBook) https://doi.org/10.1007/978-981-16-3041-5 Jointly published with Science Press The print edition is not for sale in the Mainland of China. Customers from the Mainland of China please order the print book from Science Press. Translation from the Chinese language edition: 唐代刑事诉讼惯例研究 by Xi Chen, and Guang Shi, © Science Press 2017. Published by Science Press. All Rights Reserved. © Science Press 2021 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, express or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Singapore Pte Ltd. The registered company address is: 152 Beach Road, #21-01/04 Gateway East, Singapore 189721, Singapore

Acknowledgements

I have been paying attention to traditional Chinese litigation legal civilization for more than ten years. I presided over the 2010 National Social Science Fund Project “Research on Criminal Litigation Practices in the Tang Dynasty” (excellent level, certificate no.: 20151063) and 2016 National Society Science Fund Project “Research on Litigation Practices in the Song Dynasty” (Project no.: 16XFX002). This book is my second book on the study of the history of procedural law. It is also the final research result of the National Social Science Fund Project “Research on Criminal Litigation Practices in the Tang Dynasty.” With the deepening of legal history research, the study of the history of departmental laws and the history of dynasties has become increasingly important. Since ancient times, our intellectuals have had the ambition and tradition of “devoting ourselves for the sake of the world, for the sake of the people, for study and for peace.” Chinese traditional legal civilization, which is profound and well received, is an important part of China’s “lost knowledge.” The inheritance and promotion of the experience and wisdom of traditional Chinese legal civilization is the arduous and glorious historical mission of contemporary scholars. Here, first of all, I would like to thank my teachers for their care and cultivation, including Prof. Yang Yifan at the Institute of Law, Chinese Academy of Social Sciences; Prof. Li Jiaofa at Law School, Xiangtan University; Prof. Jia Erqiang at the School of History and Culture, Shaanxi Normal University; Prof. Wang Shirong at Northwest University of Political Science and Law; and Prof. Yan Xiaojun at Northwest University of Political Science and Law. In addition, I would like to thank the leaders and colleagues of Northwest University of Political Science and Law for their encouragement and care. I am grateful to Associate Professor Li Dingchu at Southwest University of Political Science and Law and Associate Professor Li Junqiang at Guizhou University of Finance and Economics for participating in the project research. We thank Prof. Song Haibin at Northwest University of Political Science and Law and Prof. Xiao Haiying at Guizhou University of Finance and Economics for providing foreign language materials and translation support. We thank the experts and professors who reviewed the report and provided valuable comments. Moreover, thanks to my wife Li Juanli and my daughter Chen Zixuan for their understanding and dedication. v

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Acknowledgements

Finally, I am especially grateful to Comrade Wang Yulan at the Scientific Research Department of Northwest University of Political Science and Law and Comrade Fan Pengwei of the Science Press for their strong support and selfless help.

Contents

Part I 1

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Origin and Significance of the Study . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1 Origin of the Study . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2 Related Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.3 Significance of the Study . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Cultural Basis of Litigation Practice . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1 “De Ben Xing Yong” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 “Yi Zhun Hu Li” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3 “De Gu Jin Zhi Ping” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Research Route and Innovation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1 Research Route . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 Innovation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Part II 2

Introduction 3 3 3 7 16 18 20 22 26 31 31 32

Special Subject and Litigation Practice

Women . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Functions of Proctor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Function of Appellant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Seizing Women Family Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1 The History of Seizing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 The Confiscation System of the Tang Dynasty . . . . . . . . . . . . . . 3.3 The Release of Confiscated Women . . . . . . . . . . . . . . . . . . . . . . . 4 Exile and Placement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1 Exile . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2 Placement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

37 38 42 47 47 49 53 55 55 59 62

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3

Servants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Legislative Evolution of Servants Accusing Masters . . . . . . . . . . . . . . 2 An Analysis of the Identity of Servants as Family Members . . . . . . . 3 Types of Crimes of Servants Accusing Masters . . . . . . . . . . . . . . . . . . 3.1 Rebellion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 Defection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3 Spy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4 Sorcery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.5 Corruption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.6 Murder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.7 Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Disposal of Cases of Servants Accusing Masters . . . . . . . . . . . . . . . . . 4.1 Pardoning Masters and Punishing Servants . . . . . . . . . . . . . . . . . 4.2 Pardoning Servants and Punishing Masters . . . . . . . . . . . . . . . . . 4.3 Killing Servants and Punishing Masters . . . . . . . . . . . . . . . . . . . 5 Causes of Servants Accusing Masters . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1 Servants Venting Anger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2 Monarch Casting Politics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3 Cliques Fighting with Each Other . . . . . . . . . . . . . . . . . . . . . . . . 6 Development of the Legislation of Servants Accusing Masters . . . . . 7 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

65 65 69 73 73 74 74 75 75 76 77 77 77 78 79 80 80 81 82 83 86

4

Neighbors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 The System of Mutual Guarantee of Neighbors . . . . . . . . . . . . . . . . . . 2 Salvage Obligation Between Neighbors . . . . . . . . . . . . . . . . . . . . . . . . 3 Reporting Obligations Among Neighbors . . . . . . . . . . . . . . . . . . . . . . . 4 Types of Litigation Among Neighbors . . . . . . . . . . . . . . . . . . . . . . . . . 4.1 Neighbors Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2 Neighbors Involved in Litigation . . . . . . . . . . . . . . . . . . . . . . . . . 5 Proof Obligation Among Neighbors . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Joint and Several Liability of Neighbors . . . . . . . . . . . . . . . . . . . . . . . . 7 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

87 88 90 92 97 97 101 102 105 110

Part III Research on Prosecution Practice 5

Prosecution Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Mandatory Prosecution Principle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1 Secret Report of Treason and Rebellion to the Nearby Government . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2 Prosecuting Within a Time Limit After Relatives Have Been Killed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.3 The Victims’ Family and Neighbors’ Prosecution . . . . . . . . . . .

115 115 115 116 117

Contents

2 Restrictions on Prosecution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1 Restrictions on Identity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 Restricting Domestic Servants and Slaves from Accusing Masters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3 Restricting the Old, Young and Disabled from Prosecuting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4 Restrictions on Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 The Principle of Prohibited Prosecution . . . . . . . . . . . . . . . . . . . . . . . . 3.1 Prohibiting Prisoners from Accusing Other Things . . . . . . . . . . 3.2 Prohibiting the Prosecution of Things Before Amnesty . . . . . . 3.3 Prohibiting Leapfrog Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4 Prohibiting False Accusations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Lawsuits Accepted Only When Prosecuted . . . . . . . . . . . . . . . . . . . . . 5 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

ix

118 118 119 120 120 122 122 123 124 125 125 126

Impeachment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Evolution of Impeachment Practices . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Changes of Impeachment Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . 2.1 Reporting to the Emperor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 Wearing Xie-Zhi Crowns and Putting on the Clothes of the Judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3 Opening the Impeachment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Impeachment Trial Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1 Held . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3 Multiple Trials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4 Sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

129 129 132 132 134 136 138 138 139 140 142 144

7

Prosecution at Yushi Tai . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Yushi Tai Acquiring the Power of Trial . . . . . . . . . . . . . . . . . . . . . . . . . 2 Improvement of the Yushi Tai Judicial System . . . . . . . . . . . . . . . . . . 3 Hosted by Envoys Trial System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 The Level of Yushi Tai in Tang Dynasty . . . . . . . . . . . . . . . . . . . . . . . . 5 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

147 147 150 151 154 156

8

Prosecution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 The Reason of Prosecution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1 Impeach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2 Hostility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.3 False Accusation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Proceeding of Prosecution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1 Prosecution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 Custody . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3 Judgement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

157 159 159 160 161 162 162 164 165

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3 Reward Standard for Prosecution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1 Financial Crime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 Fiscal and Taxation Crime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3 Other Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

167 169 172 173 175

Snitching . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Development of the System of Snitching . . . . . . . . . . . . . . . . . . . . . . . 2 Jurisdiction of Snitching Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 The Evolution of Snitching . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1 Snitching by Writing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 Oral Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Trial Procedure of Informers Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1 Custody and Interrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2 Interrogation and Joint Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Characteristics of Whistle Blowing Rules . . . . . . . . . . . . . . . . . . . . . . . 5.1 Allowing Direct Reports to the Emperor . . . . . . . . . . . . . . . . . . . 5.2 Accepting Servant-Against-Master Cases . . . . . . . . . . . . . . . . . . 5.3 Snitching Allowed in Violation of Regulations . . . . . . . . . . . . . 6 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

177 177 179 182 182 185 186 186 188 190 190 191 192 192

10 Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Step-by-Step Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Appeal Before Execution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Relative Agent Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1 Multiple Judicial Organs in Charge of Appeals Respectively . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 Appellant Agent Having the Privilege of Overstepping Indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3 No Limitations of Proxy Appeal and Final Trial . . . . . . . . . . . . 4 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

195 196 201 207

9

209 212 215 218

Part IV Research on Judgment Practice 11 Joint Hearing System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 The Development of Joint Hearing System . . . . . . . . . . . . . . . . . . . . . . 2 Status Change in Joint Hearing System . . . . . . . . . . . . . . . . . . . . . . . . . 3 Relationship Between Joint Hearing and San Si . . . . . . . . . . . . . . . . . 4 Characteristics of the Joint Hearing System . . . . . . . . . . . . . . . . . . . . . 4.1 Joint Hearing System Dominating Judgment in the Tang Dynasty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2 Yushi Tai Being Very Superior in the Joint Hearing System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3 The Gradual Decline of the Status of the Joint Hearing System in the Middle-Late Tang Dynasty . . . . . . . . . . . . . . . . . . 5 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

223 223 226 230 234 234 235 237 239

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12 Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Discussion of Difficult Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1 Crime and Non-crime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2 This Crime from that Crime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Discussion of Sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1 Death Penalty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 Implication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3 Forgiveness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4 Ba Yi . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Discussion About the Etiquette . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1 Changing Posthumous Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 No Marriage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3 Private Death Anniversary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4 Revenge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Discussion of Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1 Policy Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2 Law Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3 Case Dispute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Agenda . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1 Enablement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2 Participation in Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3 Rules of Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

241 242 242 244 245 245 248 249 251 254 254 254 255 256 261 261 263 264 265 265 267 269 272

13 Judicial Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 The Historical Development of Judicial Review . . . . . . . . . . . . . . . . . 2 Improvement of Judicial Review in Tang Dynasty . . . . . . . . . . . . . . . 3 The Dominating Status of Ministry of Punishments in Judicial Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1 Judicial Review According to the Law . . . . . . . . . . . . . . . . . . . . 3.2 Review According to Ethics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3 Review of Knotty Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Supervision Function of State Judicial Review . . . . . . . . . . . . . . . . . . 5 Supervision Function of Envoy Judicial Review . . . . . . . . . . . . . . . . . 5.1 Yu Shi Judicial Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2 San Si Judicial Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3 Special Envoy Judicial Review . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

275 275 278 281 283 284 286 287 290 290 291 292 294

14 Rehabilitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Development of Rehabilitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Actual Operation of Rehabilitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1 Rehabilitation in the Shenlong Period . . . . . . . . . . . . . . . . . . . . . 2.2 Operational Procedure of Rehabilitation . . . . . . . . . . . . . . . . . . . 2.3 System of Accountability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

297 297 302 302 304 309

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Contents

3 The Alienation of Rehabilitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 310 4 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 315 Part V

Executive Convention

15 Flogging . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Application Scope of Flogging . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Implementation Types of Flogging in Tang Dynasty . . . . . . . . . . . . . . 2.1 Formal Punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 Additional Punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3 Administrative Punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4 Flogging to Death . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Application Rules of Flogging Punishment . . . . . . . . . . . . . . . . . . . . . 4 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

319 319 324 324 326 329 329 331 334

16 Exile with Extra Servitude . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 The Establishment of Exile with Extra Servitude in the Tang Dynasty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Crimes Directly Sentenced to Exile with Extra Servitude . . . . . . . . . 2.1 Direct Sentence Based on Specific Crime . . . . . . . . . . . . . . . . . . 2.2 Measurement of Penalty Based on Specific Subjects with Way of Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Exile with Extra Servitude to Mitigate Death Penalty by Referring to Other Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1 Referring to Encroaching Upon Others’ Territory, the Sentence of Exile with Extra Servitude as the Abatement from the Death Penalty . . . . . . . . . . . . . . . . . . 3.2 Referring to Brawl Causing Homicide and Injury, the Sentence of Exile with Extra Servitude as the Abatement from the Death Penalty . . . . . . . . . . . . . . . . . . 3.3 Referring to Postal Official Delaying in Presenting Documents, the Sentence of Exile with Extra Servitude as the Abatement from the Death Penalty . . . . . . . . . . . . . . . . . . 3.4 Referring to Bending the Law, the Sentence of Exile with Extra Servitude as the Abatement from the Death Penalty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.5 Referring to Delay in the Military Operations or Collection of Military Materials, the Sentence of Exile with Extra Servitude as the Abatement from the Death Penalty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.6 Referring to Theft, the Sentence of Exile with Extra Servitude as the Abatement from the Death Penalty . . . . . . . . . 3.7 Referring to Robbery, the Sentence of Exile with Extra Servitude to Mitigate the Death Penalty . . . . . . . . . . . . . . . . . . .

337 337 341 342 343 344

345

346

349

349

351 352 353

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3.8 Referring to Accusing Others of a Crime Falsely, the Sentence of Exile with Extra Servitude to Mitigate the Death Penalty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 353 4 Changes in the Application Rules of Exile with Extra Servitude . . . . 355 5 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 359 17 Long-Term Exile . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Establishment of Long-Term Exiles in the Tang Dynasty . . . . . . . . . . 2 Regions of Long-Term Exile . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Execution Procedures of Long-Term Exile . . . . . . . . . . . . . . . . . . . . . . 3.1 Dismissing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 Bludgeon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3 Dispatching . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4 Constraining the Body . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.5 Food Supply . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.6 Household Register . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Disposal of Long-Term Exile Criminals . . . . . . . . . . . . . . . . . . . . . . . . 4.1 Changes of Long-Term Exile Policy . . . . . . . . . . . . . . . . . . . . . . 4.2 Employment and Migration of Long-Term Exile Criminals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3 Detention and Suicide Order on Exile Criminals . . . . . . . . . . . . 5 Influences of Long-Term Exiles in the Tang Dynasty . . . . . . . . . . . . . 6 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

361 362 364 368 369 370 371 372 373 374 375 375

18 Commit Suicide by Imperial Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Execution Procedures of Commit Suicide by Imperial Order in the Tang Dynasty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1 Issuing the Edict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 Announcing the Edict and Monitoring the Execution . . . . . . . . 2.3 The Ways of Execution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Essential Elements of Commit Suicide by Imperial Order . . . . . . . . . 3.1 The Place for Committing Suicide . . . . . . . . . . . . . . . . . . . . . . . . 3.2 Preferential Treatment Before the Punishment . . . . . . . . . . . . . . 3.3 Burial by Imperial Edict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Crimes for Commit Suicide by Imperial Order in the Tang Dynasty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1 Ten Categories of Major Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2 Economic Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3 Other Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Characteristics of the Rules of Suicide Order in the Tang Dynasty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1 Suicide Order was Closely Related to the Politics of the Tang Dynasty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

389 389

377 380 383 386

391 391 394 395 398 398 400 402 404 404 408 410 413 413

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5.2 Suicide Order Modified the Rules of the Death Penalty in Many Ways . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 415 5.3 The Suicide Order System of the Tang Dynasty Profoundly Influenced Later Generations . . . . . . . . . . . . . . . . . . 416 6 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 418 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 421 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 425

Part I

Introduction

Chapter 1

Introduction

1 Origin and Significance of the Study 1.1 Origin of the Study 1.1.1

Habit and Practice

In the history of legal system developments in countries of the world, legal practices were all prior to legal creations, while at the beginning when law were created, it adopted the main form of habit.1 Liang Qichao once said, “Most of the law (in various countries) was accumulations of habits, and came into effect after national recognition…During the early period of human society, there were sorts of habits for sanctions, which were the origin of law.”2 Habit was the product of longterm juridical practices, as well as the basis of codification of the later statute laws and codes. “In most of the developed societies, the general or widespread habits had always been an important historical origin of law because of their wide recognition and served as common law applied to other cases after judicial acceptance and adoption. Moreover, such customary practices had either been described as legally enforceable by some textbook authors or been adopted and at least recognized in legislation.”3 The aforementioned concepts about “habit” have the following three implications: First, habit (often referred to as habitus,4 practice,5 1

Selections of K. Marx and F. Engels, People’s Publishing House, 1972, 2, pp. 538–539. Liang Qichao’s Discussion on the History of Chinese Legal System, The Commercial Press, 2012, 3, p. 72. 3 [UK] Oxford Dictionary of Law, Law Press China, 2003, p. 295. 4 [Commentary on Dongjing Menghua Lu, Zhonghua Book Company, 2006, 6, p. 514], [Annotation on Yan Family Instructions, Zhonghua Book Company, 1993, 3, p. 143], [Collects of Huichang Yipin, The Commercial Press, 1936, 17, p. 142], [Collects of Liu Zongyuan, Zhonghua Book Company, 1979, 30, p. 798]. 5 Oxford Dictionary of Law, Law Press China, 2003, p. 1148. 2

© Science Press 2021 X. Chen, A Study of Criminal Proceeding Conventions in Tang Dynasty, https://doi.org/10.1007/978-981-16-3041-5_1

3

4

1 Introduction

antiqueness,6 etc. in indigenous law of China) had a historical relationship with the law and served as the foundation for it, as some practices could rose to law after national approval. Second, habits should be adopted by judiciary authorities or accepted by authoritative jurists in publications before they become arguably legitimate. Third, habit should be universally applicable and work as a medium of communication between legislation and justice. The legislator summarized a number of general rules in numerous lawsuits and trials and then applied them rapidly until such rules became conventions, which was how litigation practices were roughly formed. The so-called spontaneous development of law was suspended. Since then, its influencing factors...were all intentionally from the outside.”7 For causes of the revision of the law, in addition to the changes in social material living conditions (geographical environment, population factors, production methods, etc.), the promotion by judicial practice was certainly nonnegligible. “Habits have always been one of the important sources of law.”8 Since entering the “statutory law” era, although the written code has a dominant position within the framework of China’s national law, customary rules are deeply rooted in the source of litigation practice, and their rule-creating function and universal applicability cannot be annihilated. “The lack of customary law can be made up for by statute law, and the shortcomings of the immature statutory law can be made up for by customary law. Statutory law is adequate in complementing the shortness of customary law, and the complementation of customary law for deficiency of statute law is not inadequate as well. To use statute law and customary law simultaneously...is indeed a good and sound legislative policy.9

When discussing “practice”, “habit” and “customary law” at the legal sources level, the following points need to be paid attention to: First of all, “customary law” was originally one of the sources of Western law, and the late-created words such as “practice”, “habit” and “customary law” were all exotic vocabularies that were introduced to China at the period of legal reform in the late Qing Dynasty influenced by the Western jurisprudence. Such words were not intrinsic research objects of traditional litigation legal civilization, and people also regarded “practice”, “habit”, “customary law”, and so on as imported objects. The Criminal Law Draft in the Bureau of Law in late Qing abolished comparisons and said, “Currently only Britain regards customary law and statutory law as equally effective. In addition, countries in Europe, America and Japan have all banned comparisons and quotes”.10 Ji Tongjun, the official of the Ministry of Law, made a comparison between Chinese and Western law from the perspective of legal sources, and pointed out that “Law of the Qing Dynasty, a code passed down from generation to generation, was made considering natural justice and human feelings so as to govern the people with Chinese ethics, much like customary law and common law in foreign countries.”11 Secondly, the Draft Civil Law of Qing Dynasty formally established the status and effectiveness 6

Book of Han, Zhonghua Book Company, 1962, 80, pp. 3317–3318. [UK] Ancient Law, The Commercial Press, 1979, p. 13. 8 Habits in contemporary Chinese law—Perspective of a statute law, Law Review, 2001, 3: 19. 9 On the relations between habitus and law, Journals of Law and Political Science, 1911, 1, (7): 82. 10 Revised Memorials of Criminal Law Draft from Legal Minister Shen Jiaben et al., Shanghai Commercial Press Compilation: Guangxu New Act, The Commercial Press, 2010, p. 473. 11 Lesutang Collection, Law Press China, 2014, p. 131. 7

1 Origin and Significance of the Study

5

of “customary law”, which made it a direct legal source: “For civil affairs that are not specified in this law, judgement shall be made according to customary law, and if there is no customary law, legal principle is the last resort.”12 It can be seen that “customary law” aimed to make up for the deficiencies of statutory law, and its connotations and extensions were not clear at that time. As stated in Sect. 1012, “The barrier must use a seven-foot-high wall. But if the party have special convention or custom, he shall resort to them.”13 Third, laws of the late Qing Dynasty often used treaties, regulations and practices simultaneously, which generally referred to international practices. As in The Criminal Law Draft, “Articles Two, Three and Five to the provisions of the preceding article, if there are special treaties, regulations or practices in the international arena, shall still be handled according to these treaties, regulations or practices.”14

1.1.2

Generation of Practice

In terms of historical origin, the traditional Chinese procedural legal civilization can be traced back to antiquity. According to Xu Zhaoyang, “In the Yu and Shun era, criminal law had come into being with doubtlessly clear records. For the litigation regulations, there were no special clear records for them or in the Xia and Shang Dynasties, and whether the litigation regulations at that time were unwritten had no way to learn due to the passing of times and the lack of records. It was not until the Zhou Dynasty that clear records started to appear.”15 In addition, Cheng Shude traced the origin of traditional Chinese procedural law back to Shangshu·Lvxing.16 Studies of the pre-Qin classics, such as Liji, Yili, and Zhouli, all involved much judicial proceedings. The ancient Chinese procedural legal system started from the Western Zhou Dynasty, along with the formations of procedure rules such as “Five Observings”, “Three Interrogations” and “Three Commutations”, which were obeyed and passed down from generation to generation. To adapt to the multiform structure (institutions, practices, concepts, etc.) of procedural law civilization in China’s inherent law era, the “litigation system” is often understood as legal provisions at the national statute level. Therefore, the expression “litigation rules” is chosen here to cover related aspects such as institutions and practices. In the Spring and Autumn Period and the Warring States Period, the code of written law achieved absolute superiority among many legal sources, and Han Fei redefined “law” as “a written book, which was set in the government, and distributed to the

12

Draft Civil Law of Qing Dynasty, Jilin People’s Publishing House, 2002, p. 3. Draft Civil Law of Qing Dynasty, Jilin People’s Publishing House, 2002, p. 133. 14 Qing’s Continuation of Comprehensive Textual Research, The Commercial Press, 1935, 245, p. 9895. 15 Tracing to the Source of China’s Procedure, China University of Politic Science and Law Press, 2012, p. 127. 16 Guo Gu Tan Yuan, The Commercial Press, 1937, 6, p. 386. 13

6

1 Introduction

people”.17 Li Kui composed six articles of the Book of Law, including “Imprison” and “Arrest”, which was the beginning of the specialization in the codification of China’s litigation rules. Since the Qin and Han dynasties, although the traditional statutes were based on “law and the main principle of punishment”, the rules of litigation have always occupied an important position in the codification of successive dynasties. The “Feng Zhen Shi”, “Answers to Legal Questions” in the Bamboo Slips of Qin Dynasty of Shuihudi and “Accuse Decree”, “Arrest Decree” in the Laws of the Second Year were strong evidence of the considerable development of procedure law systems in the Qin and Han dynasties. In the Wei, Jin and Southern and Northern Dynasties, litigation rules became an indispensable element of codification at all ages; for example, the “Gao He”, “Xi Xun” and “Duan Yu” in the Law of Wei; “Gao He”, “Bu Lv”, “Xi Xun” and “Duan Yu” in the Law of Jin18 ; “Xi Xun”, “Bu Wang” and “Duan Yu” in the Law of Northern Wei; “Za Song”, “Gao Yan”, “Xi Xun” and “Duan Yu” in the Law of Northern Zhou. The creation of the Law of Northern Qi was the initiative of the Twelve Code Structures, “Ming Li”, “Dou Song”, “Bu Duan”, and other articles had become the direct historical origins of the Sui and Tang litigation systems. Laws and decrees of the Tang Dynasty were the essential basis for judicial trials. The procedural norms concerning litigation were scattered in the “Ming Li”, “Zei Dao”, “Dou Song”, “Duan Yu” and “Bu Wang” in the Comments on Laws of Tang Dynasty, as well as in the Judge Decree. Since the Tang Dynasty, the contradictions between judicial practice and the rules of law have occurred throughout all aspects of the judicial proceedings, and such a phenomenon cannot be simply attributed to the disconnections between judicial adjudication and the rules of law. It can be argued that in addition to the institutional rules represented by legal texts, there were a large number of customary rules governing litigation activities objectively, and such designs were fully compatible with ancient Chinese legislative procedures, judicial traditions and legal culture. The judicators in ancient times complied with the practice and invoked the “antiqueness”. Furthermore, it could also create a precedent, propose a new system, and even amend the law under certain conditions to achieve a benign interaction between the legislation and the judiciary and ensure the efficient and orderly operation of the legal rules. Therefore, research on litigation practices has extremely important value for the comprehensive and objective understanding of traditional Chinese judicial civilization. The “criminal litigation practice” studied in this book refers to all sorts of customary regulations that objectively exist in criminal proceedings and are generally accepted by the government and the public but not under explicit provisions in codes. The formation and application of litigation practices in the Tang Dynasty were based on the rules of the law and played important roles in correction, repair, and innovation in practice. In certain areas, such as impeachment, Yi Tai prosecution, joint hearing, and exiling to the most remote places, most of the litigation rules were in a customary state. The litigation system, litigation concept and litigation practice 17 18

Hanfeizi Gathered and Explained, Zhonghua Book Company, 1998, 16, p. 380. Jin Ling Ji Cun, Sanqin Publishing House, 1989, p. 168.

1 Origin and Significance of the Study

7

are three essential elements of traditional Chinese litigation legal civilization. The litigation system focuses on the macrostyle and basic structure of litigation legal culture at the official text level; the litigation concept is based on ideology, interpreting people’s understanding levels of the litigation legal system; and litigation practice is based on law, stemming from judicial practices and referring to institutions and antiqueness, with the purpose of improving the procedural legal system and promoting the judicial process by determining rules and filling gaps.19 The benign interaction of institutions, practices and concepts has shaped the basic pattern of the development of litigation rules in China’s inherent law era.

1.2 Related Terms 1.2.1

Precedent

Precedent refers to the pre-existing cases, which often have certain guiding significance in the handling of similar cases. For issues that were not documented in the ritual law, decisions were often made through searching and examining the precedents. If there was no precedent or law, then it was resolved and decided after the ministerial meeting. The practice of making decisions with reference to the precedent could be traced back to the Liu Song period. In May, the third year of the Xiaojian period (456 A.D.), the edict commanded the fourth prince to be adopted as the son of King Jiangxia, Prince Rui. The official asked, “There is no president for the worship of temples for the adoption of princes, should we order the official of etiquette and antiqueness to arrange the worship? If so, how many imperial clans shall we worship?” The imperial scholar Fu Xiu, Taichang minister Yu Liangzhi, and official of the Ministry of Sacrifice Zhu Yingzhi followed. The right prime minister in the court Xu Yuan proposed: “All significant affairs of the state must worship the ancestors. The adoption of the prince cannot be said insignificant. In the past, the fifth prince inherited the crown of Luling, and the seven temples were all worshiped.” The senators agreed with Yuan’s suggestion and issued the order.20

Xu Yuan insisted that the etiquette of the fourth prince’s adoption to King Jiangxia should compare with the precedent of the fifth prince’s inheritance of Luling and worship the seven temples. It was implemented after the discussion of the senators. In August of the year, the official reported, “Xie of the Du State said that Tan Hezhi born a king and requested to be granted Tai Furen (the grand madam). There has no precedent for the nobleman to be granted Tai Furen, nor the legal provisions.” Emperor Xiaowu commanded the officials of etiquette to discuss. Sun Huozhi, the 19

Study on “Antiqueness” of Han, Chinese History Papers, Taiwan Commercial Press, 1986, pp. 371–423. 20 Book of Song, Zhonghua Book Company, 1974, 17, p. 464.

8

1 Introduction

scholar of the Imperial College, and Zhu Yingzhi, the official of the Ministry of Sacrifice, participated in the discussion. Taichang minister Yu Weizhi suggested: “Mother is honored by the position of son.” Though it was stipulated in the Spring and Autumn Annals, changes must be made because of the differences between ancient times and now. In recent dynasties, only kings have had such honors. Since she is a concubine of the king, she shall be distinguished by the vassal states. If she has great contributions and a high position, she shall be granted the title of Tai Furen. All these are the grace of the state, but not out of requirement. There is no precedent for such issues as a nobleman and his concubine mother…The decision was made according to Weizhi’s suggestion, and the order was issued.21

The senators had great differences in the identification of meaning and the effect of “mother is honored by the position of son” in the Spring and Autumn Annals. Yu Weizhi suggested voting down the requirement of granting Tai Furen for the reason of differences in regimes of ancient times and this dynasty, which was approved by other senators. Therefore, we can see that even the precedent set up by the classics or codes can have different explanations in the following dynasties, and it does not have a constant effect. If there truly exists a precedent, then the later ages may follow it. In June, the eleventh year of Dade period (1307 A.D.), the senators were commanded to discuss the level of awards to the states. In Chengzong’s enthronement, the state was rich thanks to Shizu. “In accordance with the precedence, the former award of gold for fifty liang adds up to two hundred and fifty liang, and silver for fifty liang adds up to one hundred and fifty liang”. Wuzong followed this precedent, “Give award in line with the amount of Chengzong’s regulation”.22 In June Guiwei, the 15th year of the Zhizheng period (1355 A.D.), the assistant administrator Shi Limen said, “In the past, the Mongol Imperial Academy was set to teach the four Kheshigs and the officials’ children who were fond to horse riding. Now we’d better follow the precedent and set the academy and servants with the strict arrangement. The proposal was adopted.”23 In conclusion, there is a basic principle for the following precedents in ancient times: First, identify the precedents through the search procedure; if there is no precedent, it must be transferred to the relevant approaches such as assembly and ruling. Second, for the precedent that does exist, both the victim and the official can invoke it as an important argument. Third, the precedents referred to can be either the case of the same dynasty or the story of the former dynasties. It should be pointed out that the precedent has only reference value and is not necessarily binding. The precedent is the basic premise of generating conventions. In practice, it can also be called a “case”, and if an instance is cited and complied with, it may be upgraded to a practice.

21

Book of Song, Zhonghua Book Company, 1974, 15, p. 409. History of Yuan, Zhonghua Book Company, 1976, 22, pp. 480–481. 23 History of Yuan, Zhonghua Book Company, 1976, Volume 44, p. 925. 22

1 Origin and Significance of the Study

1.2.2

9

Precedent Case

The term “precedent case” first appeared in the Book of Jin·Du Yu, “Law is the regulation of precedent cases, but not a book of reasoning and arguing.”24 Here, it generally referred to the regulations and basis, which was much different from the meaning of “precedent case”. Until the Song Dynasty, the meaning of the case gradually evolved from the judicial precedent to the legal form. The law department “takes the prisoner as the priority, and then similar cases will be set as the precedent cases”.25 The preceding case gradually became one of the basic legal sources of the Song Dynasty and occupied an important position in the legal system. The History of Song-Yiwen Zhi recorded twelve volumes of Precedent Cases of Xiningfa Temple,26 which should be the beginning of the official compilation of the precedent cases in the Song Dynasty. Reading in Junzhai recorded six volumes of Precedent Cases in Yuanfeng Period, stating “this is a section of the case settled by Zhongfa Temple in the Right Yuanfeng period”.27 Later, the dynasties during the south and north Song periods practiced several compilations. In October Jiashen, the fourth year of the Chongning period (1105 A.D.), “Shaosheng and Yuanfu that compiled by the Left and Right Official are the leading precedent cases”.28 In November, the ninth year of the Shaoxing period (1139 A.D.), “The Dali official of the Ministry of Punishments is ordered to compile the precedent of the title of punishment”.29 In June Bingzi, the second year of the Qiandao period (1166 A.D.), “The Ministry of Punishments submitted the New Special Precedent Cases of Qiandao Period.”30 In August Bingyin, the second year of the Kaixi period (1206 A.D.), the official submitted the Precedent Cases of Punishment Title of Kaixi period.31 Routine editing was an important legal creation activity in the Song Dynasty. The government established a detailed inspection and revision system. In July, the second year of the Yuanfeng period (1079 A.D.), the Zhongshu settled cases with the grindhouse. There were five grindhouses located in Beijing, East and West Beijing, Shaanxi and Wufang of Hebei, which had different punishment levels. “Report to divide the records in the grindhouse in Beijing to other grindhouses, and select four people for the detailed examination.”32 In November, the first year of the Yuanyou period (1086 A.D.), the Zhongshu Ministry reported that the precedent cases compiled by Fubi and Hanqi “have insufficiencies, should command officials to check the sequel of precedent cases and the former cases, value 24

Book of Jin, Zhonghua Book Company, 1974, Volume 34, p. 1026. History of Song, Zhonghua Book Company, 1977, Volume 310, p. 10,186. 26 History of Song, Volume 204, p. 5143. 27 Revision of Junzhai Dushuzhi, Shanghai Classics Publishing House, 1990, Volume 8, p. 333. 28 History of Song, Volume 20, p. 375. 29 History of Song, Volume 39, p. 542. 30 History of Song, Volume 33, p. 634. 31 History of Song, Volume 38, p. 742. 32 Continuation of Zi Zhi Tong Jian, Shanghai Normal University Ancient Books Research Institute, East China Normal University Institute of Ancient Books, Zhonghua Book Company, 1995, 298, pp. 7260–7261. 25

10

1 Introduction

their significance and edit into volumes”.33 The cases edited in the Song Dynasty were composed of a mixture of “articles” and “examples”. “For those can be law, creating a new article; for those cannot be law, set as an example.”34 Criminal cases applicable to judicial trials were formed during the Song Dynasty’s restoration of the system of reexamination.35 The preceding cases of the Yuan Dynasty were equivalent to the old law of the Tang and Song Dynasties. Xu Yuanrui of the Yuan Dynasty cited the Book of Jin-Du Yu in his book Guidance of Bureaucratics and compared the precedent cases with “law” and “decree”.36 Derived from judicial practice, the preceding cases were one of the basic legal forms of the Yuan Dynasty and were often regarded as an important part of the code. Huang Shijian insisted that “to explain the “precedent cases” as “general precedent cases for lawsuit” is exactly a “unified method”, i.e., the law.37 Qian Daqun agreed, stating that the “precedent cases” in the General Governance of the Yuan Dynasty were “equivalent to law”.38 In February, the third year of the Yingzong Zhizhi period (1323 A.D.), the General Governance of Yuan Dynasty was compiled, there were two thousand five hundred and thirty-nine pieces, including seven hundred and seventeen precedent cases, one hundred and fifty-one Tiaogeqian, ninety-four absolution and five hundred and seventy-seven decrees”.39 In Institutions of Yuan, over thirty preceding cases were recorded in the Tai Gang, Hu Bu, Xing Bu and Gong Bu. For example, “precedent case for family property”, “precedent case for trade inflict”, “precedent case for dwarf’s Tiaochao”, “precedent case for trample crops”, “precedent case for burning husband and marring female corpse”, “precedent case for raping an eight-year-old girl”, “precedent case for borrowing government officials’ money”, “precedent case for the sentence of theft”, “precedent case for servants’ defamation of masters”, “precedent case for false of punishment title”, and “precedent case for killing a lamb”. From the perspective of legal sources, the preceding cases in the Yuan Dynasty were different from the judicial precedent. It was a formal legal document that had been drafted, reported, and reviewed. Here, citing the precedent cases in Institutions of Yuan and Zhizheng Tiaoge as examples: On April 21, the twenty-eighth year of the Zhiyuan period, the imperial edict ordered, “Do not kill a lamb and eat. For those who did so, flog him for seventeen times and confiscate his lambs.” Medao, Qinci.40 In June, the 4th year of the Zhida period, the Ministry of Official Personnel Affairs presented, “Women who are granted prefecture- or county-level titles because of their husbands and sons are different from the wives of common people. Since they are granted titles by the government, if their husbands or sons die, they should not remarry. If they don’t violate this, 33

Continuation of Zi Zhi Tong Jian, Volume 391, p. 9509. Continuation of Zi Zhi Tong Jian, Volume 307, p. 7471. 35 Li Dai Li Kao, Social Sciences Academic Press, 2012, p. 93. 36 Guide on Li Xue, Zhejiang Ancient Books Publishing House, 1988, p. 67. 37 Textual Research of Dayuan General System, Social Sciences in China, 1987 (2): 163. 38 Analysis on Tang Law, Nanjing University Press, 1989, p. 353. 39 History of Yuan, Volume 28, p. 629. 40 Institutions of Yuan, Tainjin Ancient Books Publishing House, 2011, Volume 57, p. 1896. 34

1 Origin and Significance of the Study

11

they would be deprived of the titles and judged to be divorced.” The Council of DecisionMaking approved the study.41 In February, the sixth year of the Zhiyuan period, the Ministry of Punishments discussed: “Wang Fobao and Deng Pucong contended for land, Wang bore the grudge and cut down half of the tongue of an ox with an axe, and led to its death, which was related to the case of intentional killing ox with a knife, and such crime was hard to commutation. In accordance with the precedent case, he shall be flogged one hundred times, since he has been convicted of being flogged by eighty-seven times, the lacking flogs could be made up by the compensation for the killed ox to its owner, according to the market price.” The Council of Decision-Making approved it.42

In institutions of Yuan, some expressions often appeared, such as “command the Ministry of Punishments to regulate the precedent cases and implement them throughout the country”,43 “There are approved precedent cases, which shall be followed”,44 “Dusheng transcribes the precedent case now, please implement accordingly”,45 etc. The “precedent cases” in the Yuan Dynasty had a general legal effect and could be cited and applied by the judicial authority. In ancient China, there were always conflicts and co-opetition problems between precedents and laws. For those preceding cases and absolutions that did not have the general legal effect, the quotations were forbidden. In August Bingchen, the thirtieth year of the Shaoxing period (1160 A.D.), it was ordered to revise the absolutions and difficult punishment titles of the Ministry of Official Personnel Affairs. Gaozong ordered, “Now since there are written laws, the quotation of precedent cases shall be abandoned.”46 In the fourth year of the Jinxuanzong Zhenyou period (1216 A.D.), the assistant administrator Li Ge reported, “The officials all quoted the precedent cases according to the situations, which were far-fetched. I suggested that all the approved obsolete precedent cases should not be quoted anymore, and the law should be made as the reference standard.” The suggestion was adopted.47 In conclusion, the preceding case derives from judicial practice, which is an important material for the compilation of the code. Often adopted by the legislature to revise and standardize the procedure, it becomes a universally applicable rule and ranks among legal systems. “Legal practices” and “precedent cases” of the judiciary may be generated in judicial practice and are observed by both the official and the private. However, the “precedent case” issued by the legislature is the official legal source of the current legal system in the Song and Yuan Dynasties. This is fundamentally different from the “practice” discussed in this book.

41

Zhi Zheng Tiao Ge, Volume 9, p. 242. Zhi Zheng Tiao Ge, Volume 9, p. 255. 43 Institutions of Yuan, Volume 45, p. 1519. 44 Institutions of Yuan, Volume 48, p. 1608. 45 Institutions of Yuan, Volume 49, p. 1625. 46 Zhong Xing Xiao Ji, The Commercial Press, 1999, Volume 39, p. 471. 47 History of Jin, Zhonghua Book Company, 1975, Volume 99, p. 2197. 42

12

1 Introduction

1.2.3

Legal Precedent

The application of legal precedents in ancient China has a long history. The Western Zhou Dynasty already had the judicial principle of “crime comparing up and down”.48 In the Western Zhou Dynasty, the legal precedent was called “statute” or “comparison”. In Liji-Wangzhi, “The suspected prison shall be discussed by the public. If the public is doubtful, then the criminal suspect is absolved. And the judgment shall determine the magnitude of the crime by comparing with the legal precedents.” Zheng noted, “Magnitude is severe, previous cases are called the comparison”,49 which corresponded “comparison” with “antiqueness”. In Zhouli-Qiuguan-Dasikou, governance is based on eight laws, and the fifth law is called Guancheng, which is state governance. “All the civilian lawsuits shall be judged by the states.” Jia Gongyan annotated, “The eight laws are norms of the precedents. For example, according to today’s law, the lawsuit shall be settled in accordance with precedents, if there was no such decree, then made the sentence with reference to the comparison. Thus, it was called the determining comparison.”50 In addition, the “statute” corresponded with the “determining comparison”. Both “statute” and “comparison” referred to legal precedents. In the Qin Dynasty, there was a legal form of “Ting Xing Shi”, i.e., the statute in court,51 which was evidence of Qin’s application of legal precedents. Wang Niansun commented, “Xing Shi means things that have been done, which is the statute of precedents.”52 The “Ting Xing Shi” of Qin has the judicial functions of supplementing or modifying the law. In Bamboo Slips of Qin of Shuihudi-Answers to Legal Questions, there is an example of judging by “Ting Xing Shi” when the “law” goes against it: The defendant stole one hundred and ten, in the precedent of stealing one hundred, how to sentence? The sentence was two Jia. The case was stealing one hundred with ten added, then how to sentence? The precedent was one Dun. Although it should be sentenced one Dun according to the law, the Ting Xing Shi judged as no interrogation and sentenced two Jia.53

In the Han Dynasty, there were four legal forms named law, decree, section and comparison. According to Yan Shigu, “Comparison was the contrast between examples and situations.”54 Comparison referred to a similar legal precedent consulted by the judge when there was no explicit provision in the judicial practice, and it had formed a regulation of the compiling of legal precedents as “categorizing similar precedents into sections, and gathering cases into chapters”, i.e., to compile the legal precedents in categories based on different areas of legal adjustments. The Bamboo 48

Shangshu Zhengyi, Peking University Press, 2000, Volume 19, p. 647. Liji Zhengyi, Peking University Press, 2000, Volume 13, p. 481. 50 Zhouli Zhushu, Peking University Press, 2000, Volume 34, p. 1067. 51 Bamboo Slips of Qin Dynasty Tombs of Shuihudi, Cultural Relics Publishing House, 2001, p. 102. 52 Reading Magazine, Jiangsu Classics Publishing House, 1985, Volume 6, p. 342. 53 Bamboo Slips of Qin Dynasty Tombs of Shuihudi, p. 102. 54 Book of Han, Volume 23, p. 1101. 49

1 Origin and Significance of the Study

13

Slips from Zhangjiashan Han Tomb-Book of Zouyan was the collection of discussed cases, which was the specific record of the judicial proceedings and the format of the proceedings at that time55 and was also a true reflection of the application of the jurisprudence in the Han Dynasty. In the Sui and Tang dynasties, the legal forms were Law, Decree, Ge and Shi, and the legal precedent did not have a direct legal origin. However, Tang Dynasty inherited the tradition in the previous dynasty of the chief executive taking an additional post in justice, set four laws in the imperial examination of the officer as Shen, Yan, Shu and Pan, and made it a custom to compile precedent collections, which led to the generation of a large number of legal precedents for the purpose of test-taking. General Annals, written by Zheng Qiao in the Song Dynasty, recorded preceding cases for twenty volumes and seventy-nine rolls. Here, we may refer to the sketch of the legal precedent code in the Tang and Song dynasties (Table 1). The above Baidao Precedent of Luo Binwang and Precedent Examples of Chen Ju were precedent collections in Tang Dynasty, and some of them were passed down, such as Longjin Fengsui Precedent, Bai Juyi Collection, Yuan Zhen Collection,56 Wenyuan Yinghua, etc. Over one thousand trial precedents of the Tang Dynasty were reserved. In addition, in the books of Dunhuang, several trial precedents were found, such as the Remains of Wenming Precedents (Backe of Bo 3813) and the Remains of Kaiyuan Precedents (Bo 2593). The legal precedents above were compiled according to laws, decrees and classics, and most of them were in four or six carcasses. Although they were not true cases, they provided an important reference for understanding the development of judgments in middle ancient times. Although there were similarities and differences in the format of the texts to be judged in the Tang Dynasty, for example, the Longjin Fengsui Precedent of Zhang and the Baidao Precedent of Bai Juyi were similar in style, starting with brief cases, while the preceding cases in Wenyuan Yinghua usually started with “someone’s precedent”, which should be added by the redactor. Here, we use three trial precedents of the Tang Dynasty to illustrate this point. In Longjin Fengsui Precedent, the Censor Officer Yan Xuan, who was formerly the magistrate of Hongdong County, was once beaten by Zhangshi Tian Shun. After Xuan became the censor officer, he reported that Tian Shun accepted 200 Guan of money, which was proven to be true after interrogation. Tian Shun sued that Yan Xuan’s impeach was out of his selfish revenge, and after another interrogation, Xuan confessed his revenge, while Shun’s acceptance of the levy was also a fact. Tian Shun once wrote an inscription on the bridge of Jinwang and gave away the jade pendant out of humility. He was the Banci in Erfen City, whose character was different from Zhuo Mao in the Han Dynasty, and the cruelty surpassed the Changlin in the Three Kingdoms. Whipping Ningqi to show his strength and humiliating He Youkui to parade his ability. Yan Xuan used to be a county magistrate whose position was inferior to Qiao Yuan. Now, his trample on the post of the censor was as vigorous as Du Lin. Qi Xi recommended talent without shunning relatives and enemies. Bao Yong corrected the faults without distinguishing noble and common people. Xu Yang was sentenced to rebellion, and he would not consider 55 Bamboo Slips from the Han Tombs of Zhangjia ft, (Revised Edition), Cultural Relics Publishing House, 2006, p. 91. 56 Yuanzhen Collection, Zhonghua Book Company, 1982, (3): 652–658.

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1 Introduction

Table 1 Legal precedents in the Tang and Song Dynasties in General Annals Names

Authors

Volumes

Notes

Baidao Precedent

(Tang) Luo Binwang

One

Yuhai, 60

Baidao Precedent (addition) (Tang) Zheng Kuan

One

Yuan He Ba Cui, New Book of Tang, 60, Yuhai, 54

Baidao Precedent (addition) (Tang) Bai Letian

One

Collection of Bai Juyi, 45–90

Baidao Precedent (addition) (Tang) Cui Rui

One

Da Li Zhong Ren, New Book of Tang, 60

Chuanyang Collection

(Tang) Ma Youchang

Four

Panmu, New Book of Tang, 60; Chongwen Zongmu, 3

Longjin Fengsui Precedent

(Tang) Zhang Wencheng

Ten

Abstract of precedents in Tang, classify, Yuhai, 117

Precedent Ge

(Tang) Zhang Pi

Three

New Book of Tang, 58; Chongwen Zongmu, 2 (missing)

Daigeng Xin Jian Jia Yi Precedent

(Tang) Nanhua Zhangji in Tang Dynasty

One

Chongwen Zongmu, 11 (missing)

Precedent Examples

(Tang) Chen Ju

One

Jiu Pan Miao Wei

Fang Zhongshu

One

History of Song, 210

Shu Pan You Zhu

Nameless

Forty

History of Song, 207; Chongwen Zongmu, 3 (missing)

Precedent of Five Classics

Zhou Mingbian

Six

Chongwen Zongmu, 3 (missing)

Wu Kangren Precedent

Nameless

One

Chongwen Zongmu, 12 (missing)

Zhang Yong Precedent

Zhang Yong

One

Ba Cui Precedent

Mao Xun

One

Baidao Precedent Pictures

Unknown

One

Yin Shilu Book Precedent

Yin Shilu

One

Jia Yi Equal Precedent

Unknown

Two

Trial Precedent of Persons in Tang

Unknown

One

Precedent of Persons in Tang

Unknown

One

Bacui Ke in the ninth year of Tiansheng, Yuhai, 116

1 Origin and Significance of the Study

15

the complaints of a small number of people. We should clear the dust after the egret flies over and correct the turbid politics such as the water after yellow croaker swims. Corruption and guilt do exist after review. This is to eradicate evil for the country but not selfish revenge to impeach this crime. For the two hundred consecutive crimes, the law has its provisions, and for the three thousand crime regulations, there was no absolution for crimes.57 Bai Juyi Collection recorded: When Jing was the county magistrate, the case had been completed and reported. Then, he thought it was a mistake and reported amending the judgment. The provincial governor refused and considered judging him guilty, while Jing said there were provisions on the stipulations that allowed for correction. Government affairs advocated great magnanimity and allowed people to correct the mistakes. One should be praised if he could understand his fault of yesterday and correct his mistake of the morning in the afternoon. Jing was the head of a county, and he had to hold paperwork. As the affairs were complicated, it was inevitable that there could be small mistakes, but his superior was so harsh that he did not allow him to correct the mistakes in the case file. Knowing the mistake and not concealing it will not lead to regrets. The county magistrate did not deceive the emperor, but the state official conducted a harsh abuse. He was confused at first and then repented his fault and promised no more mistakes anymore. Although he was not well thought of before the judgement, it shall be forgiven, as there are terms in the law. The state official’s attempt at a severe punishment could not be regarded as a just sentence.58 “Wenyuan Yinghua-Privately learning astronomy precedent” Dingzhou reported that Feng Wen, a native of Wangdu County, had learned astronomical knowledge in private, almost to a very high level, and was reported to the government by his neighbors. The order for arrest arrived, saying that Feng Wen did learn astronomical knowledge privately and wanted to gain the court’s offering. The governor intended to judge Feng Wen’s guilt. Feng Wen’s brother then begged the emperor to permit Feng Wen to take the examination of the national astronomical institution. The emperor ordered the Taishi official to examine Feng Wen. This practice was intelligent. The punishment was unknown. To (Cui Cui): Be careful and considerate. It is like using the spell to ask for water and using the sigil to communicate with heaven. I heard about his deeds in the past and now I meet him. Feng Wen, a scholar of Confucianism, whose knowledge was equal to Fangshi official. He was shameful for getting lost at night like a fly and appreciated getting up early in the morning like a cock. His observation was as keen as hollowing the stone and pointing the Cijing. He explored the details of Jiuxuan and the tracks of Wuwei. He observed the flood, saying that it was caused by the continuous rain at dusk, and watched the rapids, saying that it was caused by the melting of the autumn snow. The neighbor envied Feng Wen so much that he reported to the government, while friends cared about Feng Wen, so he begged the emperor. The emperor clearly observed the criminal law and did not meet the opinions of others. The sentence of this case shall be recorded in the book of the law. According to the crimes committed by Feng Wen, he should be severely sentenced in accordance with the law. However, since Feng Wen learned to master the knowledge of astronomical calendars, his aspiration was to serve national astronomical institutions. Although this matter was unconventional, the law should take the objections into account. In conclusion, the case should be immediately reported for his majesty’s decision.59

Since the Tang and Song dynasties, a great number of judgments have been reserved. For example, the Remanet of the Linde Anxi Precedent Collection (Bo 2754)

57

Long Jin Feng Sui Pan, Volume 1, The Commercial Press, 1939, Volume 1, pp. 8–9. Bai Juyi Ji Jian Jiao, Shanghai Classics Publishing House, 1988, Volume 66, pp. 3586–3587. 59 Wen Yuan Ying Hua, Zhonghua Book Company, 1966, Volume 503, p. 2583. 58

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1 Introduction

of Tang Dynasty unearthed from Dunhuang, the Fragment of Tang Xizhou Precedent Collection [73TAM222: 56(1)–(10)], and the Precedent Collection of Qizhou Meixianwei Xundie (Bo 2979); and Minggong Shupan Qingming Collection in Song Dynasty, the Zhe Yu Gui Jian by Zheng Ke, and the Tangyin Bi Shi by Gui Wanrong; and Yi Yu Jian by Chen Fangsheng in Qing Dynasty, Rudong Panyu by Dong Pei, Zhe Yu Xin Yu by Li Qing, Wu Zhong Pan Du by Kuai Demo, Bo An Xin Bian by Quan Shichao, Shi Jing Bian by Yang Jingren, Xing An Hu Zhu by Yang Lungqi, etc. Here, we use the example of Hexi Xunfushi Precedent Collection (Bo 2942) as an example to analyze the similarities and differences between draft judgment and judgment: (omitted) 111 Yang Yan, the Guazhou Biejia, who committed a crime and atoned for three hundred Dan grains. 112 Yang Yan had many crimes; although they were not added up, the punishment could not be reduced. Since he was willing to expiate by property. 113 In such a hard time, why bothered to suppress him? Although it went against the law, it was valuable as fitting the time. The crime happened in Guazhou, 114 and being expiated elsewhere. The sentence was made according to the current situation, but the law shall not be changed. As he had a guarantor, the expiation shall be accepted.60

This sentence followed the writing style and format of the draft judgement, with a relatively flat narration and fewer quotations of the allusions. In short, both draft judgment and judgment were derived from juridical practice, which reflected the objective situation of the litigation system, litigation concept and litigation culture in a certain period to some extent. As far as the legal effect was concerned, unlike the “precedent case”, the “legal precedent” of the Tang Dynasty did not have a direct legal effect because of its informal sources of law. In addition, there were related concepts to the “practice”, such as regulations, originals, additions, others, events, precedents, and examples. Most of the abovementioned rules are also derived from judicial precedents. After being elected and edited by the priests, they were approved by the emperor and then had the general legal effect.61

1.3 Significance of the Study First, in terms of academic value, the study of Criminal Litigation Practice in the Tang Dynasty is an inevitable choice for backtracking and inheriting China’s excellent traditional legal civilization. Confucianism has always emphasized, “Respect the thought of Yao and Shun, and follow the systems of King Wen and King Wu.” It 60

Annotation on Social Economic Authentic Literatures of Dunhuang, National Library Documentation Miniature Replication Center, 1990, (2), p. 624. 61 Li Dai Li Kao, Social Sciences Academic Press, 2012.

1 Origin and Significance of the Study

17

is Chinese people’s endowment temperament and thinking paradigm to look back at history and sum up the experience. The ancients finally summarized the legal experience of thousands of years into the integration of “natural justice, national law, and human feelings” and strictly adhered to it as a judicial creed and basic principle. “Emotion, reason and law” in litigation have been passed down from generation to generation through ethnic reproduction and cultural inheritance and are deeply rooted in the spirit and blood of the Chinese people. There are often amazing discoveries in history. In a certain sense, in addition to academic significance, the study of traditional Chinese legal history has the meaning of the game between Chinese and Western legal thinking modes. After a hundred years of emulating the Western system, it is not difficult to find that many major issues that contemporary Chinese legal participants need to solve are closely related to the material living conditions of Chinese society. The interpretation of many concepts related to law, such as reason, harmony, human nature, humanity, and people orientation, can be pluralistic. However, it is often the systems, concepts and practices that have been inherited or established by generations that can be widely recognized and accepted by the people at the level of rules. Therefore, research on criminal litigation practice in the Tang Dynasty is a reexamination and objective evaluation of traditional legal culture under the background of social transformation, which has important academic value for comprehensively understanding our inherent legal tradition. Second, in terms of application value, the study of criminal litigation practice in the Tang Dynasty is a realistic requirement to respond to and promote the current legislative and judicial reform in China. Since the introduction of Western law in the late Qing Dynasty, legal science has become one of the most prominent studies in contemporary humanities and social sciences after a hundred years of development and evolution. However, its subject categories, institutional principles, conceptual terms, and thinking paradigms are all deeply influenced by Western academic traditions. Since the twentieth century, the division of the disciplines of law has become more detailed, and the research methods of complementarity between different departments of legal science have become increasingly important to the academic community. In particular, thinking about various departmental laws from the historical perspective has become content that cannot be ignored in legislation and judicial practice. In recent years, there have been two things in the legal process of our country that deserve special attention from the circle of law and history. First, the Amendment to the Criminal Law of the People’s Republic of China (8) in 2011 recognizes the traditional Chinese principle of “aged respected”. Second, in 2012, the newly revised Criminal Procedure Law of the People’s Republic of China accepted the principle of traditional tolerance and exempts from forcing the accused’s close relatives to appear in court to testify. The significance of these two things is not limited to humanistic care and legal rationality itself. It can be regarded as the important turn of contemporary Chinese legislation and judicature backing to China’s excellent legal traditions and drawing on historical experience and wisdom. It takes an important turn of historical experience and wisdom. From the perspective of research and methods, it is an important symbol of the awakening and revival of the national legal spirit in China’s legal circles. Returning to China’s inherent culture and pursuing the

18

1 Introduction

source of Chinese legal civilization is bound to become the common mission of legal scholars in the twenty-first century. This book tries to contribute to the realization of the “Chinese Dream” and the great rejuvenation of the Chinese nation by deepening and promoting the excellent traditional legal culture. Finally, as far as the research scope is concerned, the study of criminal procedural practice in the Tang Dynasty has important theoretical value for the construction of the disciplinary history of procedural law. The construction of the modern procedural law department in China is based on the codification of the procedural code. In the 32nd year of the Guangxu period (1906 A.D.), Shen Jiaben and Wu Tingfang, the ministers of the law, presented the Criminal Law Draft to the Qing court, which was the beginning of modern procedural code in China. In line with this, research on procedural law itself has gradually developed, and this will inevitably involve a longitudinal investigation of the evolution of litigation rules in China. This book belongs to the research on procedural law history. It spans two branches of legal history and procedural law and is closely related to historical philology, inscription, Dunhuang Turfan, and Chinese classical literature. This book chooses the criminal litigation practice of the Tang Dynasty as a research profile and examines the development of traditional Chinese litigation legal culture. It can be regarded as a useful attempt to construct the history of procedural law.

2 Cultural Basis of Litigation Practice In this book, the discussion of “Criminal Litigation Practice in Tang Dynasty” is bound to take the following research path: discuss the civilization of legal system in Tang Dynasty from the perspective of legal civilization in Tang Dynasty. From this perspective, the focus is on the rules of criminal procedure in the Tang Dynasty, including the three major elements of the litigation system, litigation practice and litigation concept. Among them, litigation practice is the focus of this research. Obviously, the discussion on the practice of criminal procedures in the Tang Dynasty cannot be separated from the restriction of material living conditions and the influence of social and cultural elements in the Tang Dynasty. Therefore, to study the formation, evolution and development of litigation practices, we must take care of the cultural soil that generates and nourishes the traditional litigation legal civilization. Lv Chengzhi said, “Han and Tang Dynasties were called the flourishing age of China, people compared the governance of Zhenguan and Yonghui to Wenjing of Han Dynasty.”62 The Tang Dynasty was the heyday of ancient society and was also an important historical stage of social system reform and improvement in the Middle Ages. In Zhenguan, Yonghui, Kaiyuan, Yuanhe, Dazhong and other periods of the Tang Dynasty, the politics were clear and bright, the economy was developed, and the culture was strong. “Since the Zhou Dynasty, the cultural relics and etiquettes of all 62

History of Sui, Tang and Five Dynasties, Shanghai Chinese Classics Publishing House, 2005, p. 66.

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the dynasties were not as good as those of the Tang Dynasty.”63 The rule of internal politics was very stable, and the external military was very successful, showing a prosperous scene. At this stage, the “Silk Road” on both land and sea became an important path for the spread of legal civilization. Education, trade, religion, marriage and other social activities have spawned a large number of foreign-related legal relations, thus creating and applying the world’s oldest foreign-related conflict norms: Foreign immigrants of the same country who committed crimes in China should be dealt with in accordance with their own laws or customs, and foreigners from different countries who committed crimes in China should be punished in accordance with the laws of the Tang Dynasty.64

“The overlapped official doors were opened one after another, and ambassadors and officials from all over the world visited the emperor.”65 Chinese social civilization transcended national boundaries and had a profound impact on Japan, Ryukyu, Korea, Vietnam and other countries in the Western Regions. Confucianism, Buddhism, Chinese characters, laws and decrees have become important cultural carriers of communication with the East Asian world and even Chinese and Western civilizations.66 Niida Noboru once said, “The Confucian decrees not only affect the whole continent but also affect Japan by crossing the sea. Culturally, the East Sea is similar to the central pool of the Tang Dynasty, similar to the Mediterranean Sea in Rome. Those who are greatly influenced by China, especially the laws and decrees of the Tang Dynasty: Japan and Korea in the east, Annan in the South and Bohai, Liao and Jin in the north.”67 The influence of the laws of the Tang Dynasty on the East Asian world was strong and persistent, and the “Chinese legal system” that was praised by the world was born. The civilization of litigation law in the Tang Dynasty and the society of the Tang Dynasty have an inseparable realistic connection. Moreover, it has inheritance relations with the legal culture tradition, which has accumulated for several thousand years. Therefore, the discussion of litigation practices in the Tang Dynasty must clearly see the dominating spirit of the Tang Dynasty’s legal system from the perspective of legal culture to achieve an in-depth understanding of the Tang Dynasty litigation culture. In the period from the Qin, Han to Sui and Tang Dynasties, the legal pattern can be roughly summarized as the law system. The most direct reflection of litigation legal culture was the preservation of laws, decrees, rules and formulas. Among them, Comments on Laws of Tang Dynasty as an ancient code that has been passed on to this day is the basis for the study of the legal culture of the Tang Dynasty. Among them, there are three aspects concerning the creation of legal rules: first, “De Ben Xing Yong”; second, “Yi Zhun Hu Li”; third, “De Gu Jin Zhi Ping”. 63

Preface to Comments on Laws of Tang Dynasty, Comments on Laws of Tang Dynasty-Appendices, Zhonghua Book Company, 1983, p. 663. 64 Comments on Laws of Tang Dynasty, Zhonghua Book Company, 1983, Volume 6, p. 133. 65 Wang Youcheng Ji Jian Zhu, Shanghai Classics Publishing House, 1984, Volume 10, p. 177. 66 Theory of Formation History of the East Asian World, Fudan University Press, 2009, p. 280. 67 [Japan] Tang Order and East Asian Law, Public Opinion Weekly, 1937, (1), p. 22.

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1 Introduction

2.1 “De Ben Xing Yong” Its basic core can be attributed to “virtue”. Zhangsun Wuji mentioned in Jin Lv Shu Biao, “Morality is the basis of politics and culture, and punishment is the means, just as morning and evening, spring and autumn are interdependent.”68 It contains the concept of “virtue”, which also provides insight into the thousand-year Chinese jurisprudence. Since the three generations of ancient times, “virtue” has always been regarded as the theoretical basis of rectifying social order and law, commending enlightenment, and benevolence and harmony. Shang Shu-Yao Dian described the macroscopic conception of the governing mechanism of emperors. From virtue to harmony and from harmony to governance, the governing elements were all unified into “virtue”: One could carry forward his virtues to make his family close and harmonious. After that, he could identify the political affairs of other ethnic groups. Then, he could coordinate with the lords of all countries, and all the people in the world would gradually become friendly and harmonious.69

Afterwards, the standard position of “virtue” as a judgement of right and wrong was constantly emphasized. In Gao Tao Mo, “In order to truly fulfil the moral character of a dead emperor, we must make wise decisions and ministers unite together.”70 In the Imperial Mandate of Zhong Hui, “helping the sages, assisting the virtuous, praising the loyalists, and recommending good people.”71 In Pan Geng, “Punish those bad ones with punishment, and reward them with rewards.”72 “Virtue” was promoted to the sum of all good deeds and good governance. Because “virtue” played an important role in adjusting interpersonal relationships, regulating behavior and distinguishing right from wrong, it was regarded as the basic theoretical foundation of traditional litigation.73 “Only those who have virtue can bear the fate of heaven, and advocating virtue without arbitrary use of punishment” was a successive legal concept in the Yin and Zhou Dynasties. Tai Jia revealed that the reward and punishment of heaven were irregular, and we should be benevolent and moral: Heaven gives no favor, and it only loves those who do things respectfully. And people only love the monarch who promotes virtue. Ghosts and deities will only enjoy the sacrifice of those who are honest. It is difficult to keep the throne that the Heaven has given! The governance of those who have virtues will be peaceful, and the governance of those who do not have morals will be chaotic... The deceased emperor should therefore try his best to promote his virtue so that he could match Heaven.74

In the Shang Dynasty, “Those who are polite can take the throne”. In Jun Shi, “The courtesy of the Shang Dynasty could compete with the Heaven, and lasted for many 68

Jin Lv Shu Biao, Comments on Laws of Tang Dynasty, Zhonghua Book Company, 1983, p. 3. Shangshu Zhengyi, Volume 2, p. 31. 70 Shangshu Zhengyi, Volume 4, p. 122. 71 Shangshu Zhengyi, Volume 8, pp. 235–236. 72 Shangshu Zhengyi, Volume 9, p. 278. 73 History of Chinese Procedural Law, China People’s Procuratorate Press, 2002, pp. 243–247. 74 Shangshu Zhengyi, Volume 8, p. 254. 69

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years.”75 This was an important historical source for the later generation of “only virtuous people can take the throne”. With the Revolution of Shang Tang and Ji Fa, the legal concept of theocracy ordered by heaven was on the verge of collapse. In the early years of the Western Zhou Dynasty, the thought of “only virtuous people can take the throne” not only inherited the innate factors of “respecting heaven” and “respecting ancestors” but also emphasized the meaning of “people-orientation”. “Heaven is just and selfless, always helping people with noble moral character”,76 “not attaching importance to virtue, and prematurely losing their fate of enjoying good fortune”77 and so on, all repeatedly stressed the causal relationship of “virtue” and the change of fate, and the assertion “Heaven will certainly obey what people want”.78 Tai Shi even corresponded “people’s expectation” directly to “destiny”, thus making “peopleorientation” the basic way to manifest virtue and religion. “What Shang Tang and Ji Chang doing is advocating virtue without arbitrary use of punishment”,79 which was the concrete reflection of the thought of “rule by virtue” at the legal level, and it was also inherited by emperors of Zhou dynasties. Shang Shu-All Countries: Cheng Tang was then chosen by various states, so he replaced Xia Jie. He was careful to enforce the decree to encourage the people. He punished sinners and gave exhortations. From Cheng Tang to Emperor Yi, everyone declared moral education and used punishment prudently, which could also be used to encourage people.80

Zuo Zhuan mentioned, “‘advocate the rule of virtue and implement the penalty cautiously.’ That was how King Wen established the Zhou dynasty.”81 Furthermore, in the Western Zhou Dynasty, the thought of adding virtue into punishment was pointed out: “Shi sent the common people into punishment so as to carry out the moral education”.82 The basic legal principles of “Sheng” and “Not-Sheng”, “Final” and “Non-final”, and “penalty does not involve the descendants” gradually formed. To trace the source, the thought of the “rule of virtue” roughly went through the following historical stages: First, the Western Zhou Dynasty. Through Zhou Gong’s “making rite and music”, the traditional concept of “virtue” was carried forward in the Western Zhou Dynasty, and it was carried out in the form of “ritual” to all aspects of social life, resulting in the concept of “combination of rite and punishment”. The so-called “what is abandoned by rite is what is gained by punishment, and the behavior against the rite will be disposed through punishment, so that the rite and punishment are mutually combined”.83 This was the direct historical origin of the “De Ben Xing Yong” in the Tang Dynasty. Second, the Spring and Autumn 75

Shangshu Zhengyi, Volume 16, p. 522. Chun Qiu Zuo Zhuan Zheng Yi, Peking University Press, 2000, Volume 12, pp. 393–394. 77 Shangshu Zhengyi, Volume 15, p. 471. 78 Chun Qiu Zuo Zhuan Zheng Yi, Volume 40, p. 1293. 79 Dong Guan Han Ji Jiao Zhu, Zhongzhou Ancient Books Publishing House, 1983, Volume 2, p. 79. 80 Shangshu Zhengyi, Volume 17, p. 541. 81 Chun Qiu Zuo Zhuan Zheng Yi, Volume 25, p. 809. 82 Shangshu Zhengyi, Volume 19, p. 636. 83 Book of the Later Han, Zhonghua Book Company, 1965, Volume 46, p. 1554. 76

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Period. Confucius and Mencius summarized the traditional moral education ideology and systematically proposed the system of “governing the country with courtesy”, “making politics by virtue”, and “governing the people by good deeds”. “Worship rite to law, then the country runs smoothly”,84 the “worship rite” and “value law” proposed by Xun Qing were the standards that guided the legislation for thousands of years. Third, the Western Han Dynasty. The traditional concepts of “combination of rite and punishment” and “being lenient and being strict” were improved in the Han Dynasty. “The doctrine of saints is lenient and firm, strict and gentle, soft and straight, fierce and benevolent.”85 Dong Zhongshu, the confucianist in the Han Dynasty, used “heaven-human induction” and “Yin-Yang and Five Elements” to explain the doctrine of “morality given priority over penalty”. “Education, the fundamental of politics. Prison, the last of politics. They are different means under the same purpose.”86 The feudal orthodox legal thought was born, and it was practiced in the form of “beg the emperor for mercy”, “judge by the Spring and Autumn”, “shield relatives” and “execute in autumn and winter”, and eventually formed a direct source of legislation in the following generations of China. The Laws of Tang Dynasty strongly integrated the factor of “virtue” in the laws and annotations, such as setting “violate discipline and against the moral” as the standard of “high treason”; setting “high morality and integrity, behavior be true to one’s fame”87 as the standard of recommendation for officers; and setting “advocate virtue and rite and transform social traditions”88 as the norm of good government. “Virtue” transcended the ethical level and became an important factor that must be considered in judicial practice. Specific to the field of litigation rules, the creation and operation of many litigation practices were closely related to the guiding ideology of “virtue”. For example, acquiescence to women’s direct complaints, self-criminal practices, and the placement of sinner’s female family members as servants were embodiments of the concept of filial piety in litigation. The punishment procedure for the death penalty, collective punishment, absolution and eight-discussion was the response to the traditional concept of “cautious sentence and careful punishment”. Furthermore, in the rehabilitation procedure, giving propitiatory measures to the wronged people and their families reinstatement, posthumous title and mercy to their offspring were examples of demonstrating the value of virtue through the judiciary.

2.2 “Yi Zhun Hu Li” If “virtue” was the basic tenet of Laws of Tang Dynasty, then the “rite” should be the spiritual connotation of it. The laws of the Tang Dynasty set many norms for 84

Xun Zi Ji Jie, Zhonghua Book Company, 1988, Volume 8, p. 238. Huai Nan Hong Lie Ji Jie, Zhonghua Book Company, 1989, Volume 13, p. 432. 86 Chun Qiu Fan Lu Yi Zheng, Zhonghua Book Company, 1992, Volume 3, p. 94. 87 Comments on Laws of Tang Dynasty, Volume 9, p. 183. 88 Comments on Laws of Tang Dynasty, Volume 11, p. 217. 85

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adjusting rituals, and its ultimate goal was to maintain regular teachings. Therefore, “Yi Zhun Hu Li” became one of the basic characteristics of the Tang Dynasty law. Wan Sitong noted in History of Ming-Criminal Law: Since Han followed the institutions of Qin, the criminal code of the past dynasties has been inconsistent. Since the Kaihuang period in the Sui Dynasty, the institution of group discussion among officials has been established. The best of this has altered the decrees of five punishments and set up the three reports, which were followed by the Tang Dynasty. Gaozu ordered Pei Ji and others to compile the laws and decrees according to previous laws, so it was written as the unification of rites. The abandonment of the rite was exactly the collection of the law, so the Laws of Tang Dynasty was a universal code.89

“Rite” originated from the ceremony in the primitive society of worshiping ghosts and deities with food. Annotation of Characters, Rite, “lv, that serves for deity for mercy.”90 The three dynasties in ancient times valued the gains and losses to form the rites, as it was called “Yin followed Xia’s rite, and its gains and losses could be known. Zhou followed Yin’s rites, whose gains and losses were also known”.91 In the Western Zhou Dynasty, ritual and music were complete, and rite became the basic principle adjusting the national politics, economy, culture and even the individual thoughts and deeds. The “rite” had Ben and Wen. “Ben” was generally regarded as the spirit of “rite”, whose basic connotations were “love family” and “respect superior”; “Wen” was often referred to as the ceremony of “rite”, such as “five rituals”, “six rituals”, and “nine rituals”. According to Li Ji -Li Qi: The former emperors established rites with Ben and Wen. Allegiance and integrity were the fundamentals of rites. Righteousness was the expression of rites. Without the fundamentals, the rite could not be established; without the expression, it could not be practiced. Rite is the concept that combines favorable climatic, geographical and human conditions.92

Since “rite” has the powerful functions of “governing the state, maintaining the society, ordering the people and benefiting the offspring”,93 it was gradually regarded as the fundamental choice for governance in ancient societies, which was called “nothing is more useful in ruling the people than ritual”.94 As a basic criminal Book of Tang, Comments on Laws of Tang Dynasty attached great importance to the combination of rite and law, as Zhangsun Wuji said, “The law added the decree of Jia and Yi to standardize the custom and follow the rites of rise and fall to improve the ethos”. The compilation of ritual code was an important embodiment of the “combination of rituals and laws” in the Tang Dynasty. Comments on Laws of Tang Dynasty explored the in-depth meaning of the laws, often referred to the ceremony as metaphors, and explained the details of ceremonies with the proofs of laws and decrees. Thus, the system of rite has become an important factor in legal 89

History of Ming, Shanghai Classics Publishing House, 2002, Volume 126, p. 143. Annotation on Shuo Wen Jie Zi, Shanghai Classics Publishing House, 1981, Volume 1, p. 2. 91 Lunyu Ji Shi, Zhonghua Book Company, 1990, Volume 4, p. 127. 92 Liji Zhengyi, Volume 23, p. 836. 93 Chunqiu Zuozhuan Zhengyi, Volume 4, p. 146. 94 Liji Zhengy, Volume 49, p. 1570. 90

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operations. According to statistics, Comments on Laws of Tang Dynasty referred to “follow the rite” 17 times and quoted Li Ji, Zhou Li, Xiao Jing as well. For example, if a woman with an official title and nickname committed a crime, then “follow the rite: all women, take their husbands’ titles”,95 which could be known through the contrast with the decree of “follow the rite: all women, take their husbands’ title”96 in Li Ji-Za Zhi. Furthermore, in the Laws of Tang Dynasty, it was stipulated that the funeral arrangements would not be immediately held after death and should be held later on a certain day. “Follow the rite: The cry of Zhanshuai, goes away without return. The cry of Qishuai, like going away and returns back. The cry of Dagong, mourning for three times. For Xiaogong and Sima, a mourning expression is enough. Such are the cry of grief.”97 This could be proved by the record in Li Ji-Jian Zhuan, “Follow the rite: The cry of Zhanshuai, goes away without return. The cry of Qishuai, like going away and returns back. The cry of Dagong, mourning for three times. For Xiaogong and Sima, a mourning expression is enough, which were sound of grief.”98 It is worth pointing out that the “rites” in the Laws of Tang Dynasty were more precisely the “rites of Tang”,99 as the related classic contents and specific expressions in Li Ji and Zhou Li had been integrated into the rituals of the Tang Dynasty. In terms of its specific contents, there might be significant differences between the “Zhenguan Rite”, “Xianqing Rite” and “Kaiyuan Rite”. However, the rites of Zhenguan and Xianqing were not reserved, and now we have to refer to those ancient rites. The combined governance of rite and law was thoroughly implemented in the judiciary of the Tang Dynasty. For example, the ban on imprisonment and punishment for the day of the dissolution of the fasting was frequently seen in Tang Liu Dian, Tang’s Kaiyuan Rites, Tang’s Jiaosi Records, Tang Hui Yao, and other literature, which were typical examples of the combination of ritual code and the criminal book in Tang Dynasty. Tang Liu Dian, “On the day of the fasting, the actions of mourning the sickness, making the sentence of death, and punishing the sinners were banned.”100 Tang’s Kaiyuan Rites, “The fasting ceremony was as before, but without conducting funerals, seeing doctors, having fun, making sentences of death, doing punishment, etc. All ceremonies shall be banned except the sacrifice.”101 The notes in Tang’s Jiaosi Records102 and Old Book of Tang103 were roughly the same. At the same time, many specific ceremonies had also risen to the level of the code. The Decree of Sacrifice, Decree of Clothes and Decree of Ceremony were mostly legal provisions on the ritual system. For example, the large sacrifices to Haotian Shangdi, 95

Comments on Laws of Tang Dynasty, Volume 2, p. 38. Annotation on Shuo Wen Jie Zi, Volume 1, p. 2. 97 Comments on Laws of Tang Dynasty, Volume 10, p. 205. 98 Liji Zhengyi, Volume 57, p. 1807. 99 Tang Law “Yi Zhun Hu Li” Bian Zheng, Political and Legal Forum, 2006, (3): 122. 100 Tang Liu Dian, Zhonghua Book Company, 1992, Volume 4, p. 124. 101 Da Tang Kai Yuan Li, Nationalities Publishing House, 2000, Volume 27, p. 159. 102 Da Tang Jiao Si Lu, Nationalities Publishing House, 2000, Volume 1, p. 730. 103 Old Book of Tang, Zhonghua Book Company, 1975, Volume 21, p. 819. 96

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Wu Fang Di, Haung Di Qi, Shenzhou and other ceremonies were recorded into the codes as early in the period of Wude. A direct affiliation between the ritual etiquette of the winter solstice and the decree was established. According to Tang’s Jiaosi Records, “Sacrifice the Yuanqiu in the winter solstice, with nine sheep and nine pigs. Sacrifice the Fangqiu in the summer solstice, with five sheep and five pigs… In the Wude period, a decree was made to sacrifice nine sheep and pigs for officers under. Five sheep and pigs were sacrificed under Diqi and Yuezhen. In the Kaiyuan period, the decree was followed and never changed anymore.”104 According to the records in Wude in Tong Dian: On the winter solstice day every year, sacrifice the Haotian Shangdi in Huanqiu (Huanqiu was located outside of the Mingde Door in Beijing City, two li from the east of the road, with four floors, eight chi and one cun of each). The first floor was twenty zhang wide, the second fifteen, the third ten, and the fourth floor was five zhang wide.). In accordance with Emperor Jing’s standard, Wufang Shangdi and Tian Wen all followed this sacrifice. (All the stars including the sun and the moon, Neiguan, Zhongguan, Waiguan would follow this sacrifice, in which the seven of Wufang Di, the sun and the moon were set in the secondclass, the fifty-five that under the five stars of Neiguan were set in the third-class, the one hundred and thirty-five stars under the twenty-eight Su were ranked fourth. One hundred and twelve Waiguan were within the Waiwei, and three hundred and sixty stars were outside the Waiwei.) One old ox was used for Shangdi and Peidi, one calf for Wufang Di, the sun and the moon, and nine sheep and pigs for stars under Neiguan.105

People in the Tang Dynasty added rites into the law, made laws according to the rites and used laws to replace and protect the rites.106 In the field of ritual legalization, laws, orders, codes, and ceremonies were used together. Such as the specification of the tombstone, Comments on Laws of Tang Dynasty cited the Decree of Funeral, “For officers above five Pin, set the stele; for those above seven Pin, set the stone tablet, and set stone beasts within the graveyard.”107 In Tang Liu Dian, “For the specification of stele and stone tablet, those above five Pin shall use stele and those above seven Pin shall use stone tablet… For stone men and stone beasts, those above three Pin could use six of them, and those above five Pin could use four.”108 In the decree of “Fa Zhong” in Comments on Laws of Tang Dynasty, “Li recorded: funeral, shall be hidden, and did not let others see.”109 Li Ji-Tan Gong, “Funeral is concealed, not wanting others to see it.”110 Another record in Comments on Laws of Tang Dynasty, “The funeral in ancient times used firewood to hide the deceased, which was changed into coffin afterwards”, and this decree could also be compared with the records in Zhou Yi-Xi Ci, “In ancient times, the deceased was surrounded by firewood, and out in 104

Da Tang Jiao Si Lu, Volume 1, p. 732. Tong Dian, Zhonghua Book Company, 1988, Volume 43, p. 1192. [Japan] Tangling Shiyi·Siling Di Ba, Changchun Press, 1989, pp. 63–64. 106 From Comments on Laws of Tang Dynasty to Tang Li and Related Issues, Journal of Hunan University, 1999, (1): 51. 107 Comments on Laws of Tang Dynasty, Volume 27, p. 517. 108 Tang Liu Dian, Volume 4, p. 120. 109 Comments on Laws of Tang Dynasty, Volume 19, p. 354. 110 Liji Zhengyi, Volume 8, p. 279. 105

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the field without cover or tombstone, and the funeral had no end. At later ages, people changed it by the coffin with cover.”111 Such examples were numerous. Specific to the level of litigation rules, the practices formed in the change of the posthumous name, prohibition of marriage, private jealousy, and revenge, as well as customary rules such as the arrangement of the place of death and the prevailing privilege, could all be regarded as the ceremonial system in the field of litigation.

2.3 “De Gu Jin Zhi Ping” The officers in Siku Guan considered, “tracing to the system of the past, only Laws of Tang Dynasty is the most complete, which is able to trace the source and development context.”112 The reason why Ji Yun and others reached the above conclusions was directly related to the historical data that could be used in the compilation of the Siku Quanshu. Su Yigong pointed out, “If the upper limit of ‘ancient’ is Qin and Han dynasties, then ‘modern’ refers to the Qing Dynasty when the author of the Abstract lives.”113 Up to now, “Comments on Laws of Tang Dynasty” is still the oldest and most complete code, so the scholars that study the legal history all pay full attention to the laws of the Tang Dynasty. With the publication of unearthed documents such as oracle bone literature, Dunhuang volume, and border documents, the status of ancient legal research materials has changed considerably. Since the twentieth century, the excavation, arrangement, interpretation and research work of various historical materials, such as the sketches of Qin and Han dynasties, local archives, clerical contracts, inscriptions and tombstone epitaphs, have been vigorously promoted, and the study of legal history has made unprecedented achievements, with historical unsolved cases of many academic disputes gradually being solved. However, compared with traditional historical records and codes, the abovementioned materials are mostly broken; thus, they cannot reflect the overall development of law and operation in a specific period, nor can they incite the inherent status of the handed-down documents. For the above reasons, the relevant items of the Laws of Tang Dynasty are still the basis for discussing the legal changes of past dynasties. Comments on Laws of Tang Dynasty is the only ancient code that is listed along with the Great Qing Legal Code in the Siku Quanshu. “Recognizing the laws of the Tang Dynasty as a model of fair law is doubtlessly admitting the orthodox position of the law of the Qing Dynasty that established following it.”114 At the same time, as the building of the historical contribution of the Great Qing Legal Code to be “well-considered and unified in the day” by officers of Siku Gaun, its deep meaning is to prove the legal dominance of “in line with the ancient systems and lasting for 111

Zhouyi Zhengyi, Peking University Press, 2000, Volume 8, p. 355. Si Ku Quan Shu Zong Mu, Zhonghua Book Company, 1965, Volume 82, p. 712. 113 Tang Law “Yi Zhun Hu Li” Bian Zheng, Political and Legal Forum, 2006, (3): 135. 114 Analysis on Tang Law “De Gujin Zhi Ping” and on Values of Si Ku Ti Yao, Political and Legal Forum, 2008, (5): 134. 112

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Fig. 1 Xie Zhi (Xu, 2012, p. 198)

thousands of years” and to further highlight dazzling glory of Laws of Tang Dynasty as the legitimacy of Chinese criminal law. To date, the evaluation of officers in the Siku Guan of Comments on Laws of Tang Dynasty as “most complete, which is able to trace the source and development context” still has great academic value. “Flat” is a basic evaluation of the legislative technology of the Laws of Tang Dynasty, and it is in the same line with the “legal” connotation and the traditional “neutralization” thought. In this sense, flats have inseparable natural connections with the legal concepts of “fair”, “impartial” and “cautious and compassionate”. First, “flat” implies “fairness”. Shuo Wen annotated “Fa” as “Punishment, as flat as water. It follows water, so when it encounters the curve, the result is flat.”115 The refereeing activities based on the law should be based on the principle of ensuring fairness. If the existing evidence has difficulty reproducing the scene at the time, it is necessary to rely on the power of the deities and Xiezhi (Fig. 1). Lun Heng noted that Xiezhi was a goat with only one horn, which could know the crime. When Gao Tao judges a case, Xiezhi stroke the criminal with its horn, “This is a saint beast that born with one horn, and it can help to judge the crime in cases, so Gao Tao respected it, and served for it.”116 Fairness is the value pursuit of China’s traditional legal system, and it is the basic principle that must be upheld in the governance of the country. Shangshu-Zhouguan noted, “Use fairness to replace the private passion, then people will be convinced and surrender.”117 The focus of fairness is fairness and selflessness. Guanzi said, “Fair and unbiased, so treacherous people cannot be mistaken.”118 Xunzi

115

Annotation on Shuowen Jiezi, Shanghai Classics Publishing House, 1981, Volume 10, p. 470. Lun Heng Jiao Shi, Zhonghua Book Company, 1990, Volume 17, p. 760. 117 Shangshu Zhengyi, Volume 18, p. 573. 118 Guanzi Jiao Zhu, Zhonghua Book Company, 2004, Volume 21, p. 1214. 116

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said, “Fair, the balance of duty; the neutralizer, the rope of interrogation.”119 Shang Yang was the prime minister in the Qin Dynasty. “Decrees are fair and impartial.”120 The above concepts have been passed down from generation to generation and have become an important concept in the Tang Dynasty. They emphasize the formulation and operation of rules to reflect fairness as a priority: If the reward does not reject the distant, the penalty does not shelter the noble, and make fairness as the rule, benevolence as the criterion, and make the correct judgment after investigation, then the evil is invisible, the good and evil are distinct. Then take the facts, not the covers, and give lenient treatment. Then, a good infection will be shown after several months!121

The concept of “fairness” in the Tang Dynasty entered the level of the state system and became the basic requirement for evaluating the moral level of bureaucrats. There were four principles in the investigation of the Tang Dynasty: “First is the known virtue and righteousness, second is the caution and publicity, third is the fairness, and fourth is the fulfillment of duties”,122 and the judge should investigate the actual situation with five hearings, “Fair to jail”.123 In the concept of litigation in the Tang Dynasty, there were also a large number of “fairness” factors, such as the hell judgements, report of injustice reflected in the incidents, and the folk beliefs in which the karma was not empty; the “industry mirror” and “competition” reflected in the history novels, the unselfishness of the law, the faint concept of the hole and the candle; and the appeal of the soul in the legendary story, the swearing of the swearing, and so on. All of these were vivid mappings of the concept of “fairness” in the field of litigation culture in the Tang Dynasty. Second, “flat” implies the meaning of “equity”. The traditional concepts of “equity” and “justice” were directly related to “prudent punishment”. Specifically, it referred to the criminal system prescribed by Tang Law. Compared with the previous laws, it was gentle, not light or heavy, and was a proper one.124 In ancient literature, “equity” was often used as an important criterion for judging the law. As in Lv Xing, “All the excellent cases were impartial cases…the penal code in Mingqi were all equity.”125 Li Zheng mentioned, “This case shall be judged with caution and equity of punishment.”126 Jun Chen stated “You want to be forgiven, but you can only get a fair sentence.”127 The above arguments all emphasize that in the legislation and the judiciary, we should abide by the virtue of equity, be impartial, and try to be fair and upright. The Book of Han-Xue Xuan further mentioned a famous 119

Xunzi Ji Jie, Volume 5, p. 151. Intrigues of the Warring States, Shanghai Classics Publishing House, 1985, Volume 3, p. 75. 121 Zhenguan Zheng Yao, Shanghai Classics Publishing House, 1978, Volume 3, p. 97. 122 Tang Liu Dian, Volume 2, p. 42. 123 Tang Liu Dian, Volume 18, p. 502. 124 Interpretation of Tang Law “Chu Ru De Gu Jin Zhi Ping”, Political and Legal Forum, 2001, (4): 156. 125 Shangshu Zhengyi, Volume 19, p. 648. 126 Shangshu Zhengyi, Volume 17, p. 565. 127 Shangshu Zhengyi, Volume 18, p. 580. 120

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conclusion, “Follow the right path of heaven and make impartial punishment”.128 In judicial practice, it is required to abide by basic principles such as “punishment varies accordingly”, “trial with five hearings” and “no punishment in doubtful cases”. Ji Jun and others suggested, “Penalties cannot be abolished in the prosperous period and are not advocated.” Therefore, there were only seventy-seven volumes of decrees in Siku Quanshu, which were Comments on Laws of Tang Dynasty and Great Qing Legal Code. It is worth noting that the evaluation of the Great Qing Legal Code by officers of Siku Guan still emphasizes the meaning of “equity”: The emperor is compassionate and adopts a fair trial. All reports are carefully examined to measure emotions and laws. Fair trials are used in every case to demonstrate the principles of justice. Every few years, it will be revised once, and the newly revised regulations will be attached later.129

Lv Xing advocates “judging the case according to the actual situation and carrying out fair punishment”,130 not only requiring law enforcement officials to maintain righteousness in law enforcement but also penalizing the five penalties and requiring legislators to respond quickly to the social situation at the legal level. The principle of “penalty based on the social situation at the time” pioneered by the Western Zhou Dynasty was admired by the laws and regulations of the past since the Laws of Tang Dynasty advocated justice, which was exactly the same as Zhou Li “to govern the country with fair punishment”.131 The concept was consistent, and the so-called governance of the country required long-term and fair laws. At the same time, “five hearings in prison” is the basic trial method used by ancient justice for a long time. The so-called “preparation for two creations, and listens to five words”. Comments on Laws of Tang Dynasty stipulated, “The prisoner must first test the grievances and then test the grievances for several times.”132 For the specific way for the judge to examine the lexicon, the Yuguan Order of Tang clearly pointed to the traditional system of “five hearings”: The officers of the prisons, who had prepared for the five hearings, and those who had witnessed the evidence, were suspected to be untrue and then tortured.133

With regard to the disposal of suspected crimes, the laws of the Tang Dynasty inherited the system of Lv Xing, and the standards of shackles, rods, disciples, streams, deaths, and foreclosures varied from one to one hundred and twenty Jin. On April 8th, the sixth year of the Tianbao period (747 A.D.), the imperial court imposed a ratio of redemption of copper to copper coins, which made the redemption of the laws of the Tang Dynasty more complete:

128

Book of Han, Volume 83, p. 3386. Si Ku Quan Shu Zong Mu, Volume 82, p. 712. 130 Shangshu Zhengyi, Volume 19, p. 647. 131 Zhouli Zhu Shu, Volume 34, p. 1060. 132 Shangshu Zhengyi, Volume 19, p. 641. 133 Comments on Laws of Tang Dynasty, Volume 29, p. 552. 129

30

1 Introduction For redemption of copper, if it is willing to pay the money, then it is one hundred and twenty for each jin. If you are owed to the official property, you should apply for the righteousness and foreclosure without money, in order to prepare for official residence. Although there are many things, it is limited to three years, with four chi of tough silk per person per day. If the grace was accepted and the duty was paid, then the penal servitude shall be exempted.134

Third, “flat” implies the meaning of “cautious and compassionate”. “Cautious and compassionate” contains the dual meanings of compassion, prudence and compassion. At the beginning of the Tang Dynasty, the legislation adhered to the tradition of Bei Qi Law and Kai Huang Law, and it emphasized lenience and fairness. In Wude Law, “Follow the laws in Kaihuang period with increase and decrease, and all the complicated laws have been cut”. Until the Zhenguan period, Emperor Taizong ordered Zhangsun Wuji, Fang Xuanling and the bachelor’s judges to edit the law. They canceled the punishment of cutting off the toes, increased labor and exile, set collective punishment between the grandparents and grandchildren and the brothers, and distributed them to remote areas. Elderly people, children, disabled patients and patients could apply for amnesty according to the law. The revision of Zhenguan Law marked the basic formation of the laws of the Tang Dynasty by removing the complicated part and making it concise. Therefore, in Old Book of Tang-Penal Code: In line with the laws of the Sui Dynasty, the death penalty was reduced by ninety-two, and the exile was reduced by seventy-one. The prisoner, who should be exiled, only withdraws his official position and still belongs to the ranks of Shi. There are countless cases of alleviating crimes.135

In the period of Wude and Zhenguan, before the formulation of Comments on Laws of Yonghui Period, it had formed and passed on the basic principles of “cautious and compassionate” of judicature. In February, the second year of the Wude period (619 A.D.), Yan Ganluo, a man from Wugong, robbed someone and was arrested by bureaucrats. Ganluo said that he was “hungry and cold, so he chose to be a robber.”136 Emperor Gaozu ordered to absolve him. In the fifth year of Zhenguan period (631 A.D.), the death penalty system was completed, the basic system of five hearings was officially established in the capital, and three hearings were established in other regions. In the early years of the Yonghui period, the antiqueness of the first dynasty was followed, and attention was paid to the prudent use of punishment, which reflected the style of the Zhenguan period. For example, in the first lunar month, Jiazi, the third year of the Yonghui period (652 A.D.), the prisoners in the capital and the whole country were pardoned, “for those have no kin and cannot support themselves and the seriously ill people, give them double care, and make sure that they have residences”.137 All of the above factors were important reasons for the realization of the “cautious and compassionate” in Comments on Laws of Tang Dynasty. The concept of “cautious and compassionate” was repeatedly emphasized in 134

Tang Hui Yao, Shanghai Classics Publishing House, 2006, Volume 40, p. 851. Old Book of Tang, Volume 50, p. 2138. 136 Tang Yulin Jiao Zheng, Zhonghua Book Company, 1987, Volume 1, p. 51. 137 Ce Fu Yuan Gui, Phoenix Publishing House, 2006, Volume 84, p. 927. 135

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the middle and late Tang Dynasty. The court repeatedly issued orders to emphasize the implementation of the “cautious and compassionate” concept in the administration of justice. For example, in March, the second year of the Qianyuan period (759 A.D.), the Yi Chun Order to Decrease the Prisoners said, “The punishment in this country is compassionate and cautious, and the prisoners who are imprisoned will be exiled for the crime of death, and the crimes below the banish will be absolved.”138 On the 24th day of the first lunar month, the third year of the Kaicheng period (838 A.D.), the order said, “The punishment in the prison was so severe that it might cause the death of the prisoners. To avoid the wrongful case, cautious and compassionate punishment must be adopted.”139 On July 13, the ninth year of the Dazhong period (855 A.D.), the Zhenxu Jianghuai Shuihan Jiyi Baixing Deyin ordered, “Entrust the bureaucrats to use penalties with compassion. Be sure to trial the case personally and avoid the case of injustice.”140 In May Gengshen, the twelfth year of the Xiantong period, the Collection of Deyin about Prisoners in the Capital and Other States was still reaffirming the basic judicial concept of “cautious and compassionate”141 in punishment.

3 Research Route and Innovation 3.1 Research Route Study on the Criminal Litigation Practice in Tang Dynasty chooses one of the litigation rules of Tang Dynasty—litigation practice—as the research profile and explores the development of Chinese traditional litigation legal civilization. Based on the institutional framework of modern procedural law, this monograph interprets and integrates relevant historical data and uses the macroscopic vision of social law to reflect on the operation and changes of the legal system civilization in the Tang Dynasty. Under the law system of the Tang Dynasty, the actual status of the formation, operation and evolution of litigation practice is studied. By trying to determine the relationships among the litigation system, litigation practice and litigation concept, this book analyzes the actual operation and evolution of litigation rules in the Tang Dynasty and demonstrates the general situations and rules during the evolution and development of the traditional Chinese litigation legal system. The study is dominated by litigation practice, relying on the litigation system, and involves the judicial thinking and litigation concept to a certain extent, with the purpose of comprehensively examining the overall structure of the legal civilization 138

Imperial Edict Collection of Tang, Volume 84, Zhonghua Book Company, 2008, pp. 480–481. Wen Yuan Ying Hua, Volume 436, p. 2206. 140 Wen Yuan Ying Hua, Volume 436, p. 2209. 141 Old Book of Tang, Volume 19, p. 677. 139

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1 Introduction

of the Tang Dynasty. This book focuses on the organic combination of the study of the history of law and the study of the division history of law while highlighting the core position of the litigation practice of the Tang Dynasty and paying attention to the ups and downs and historical materials to identify the historical development of specific problems. The study of this book has problem awareness and pays full attention to the general depiction and the relationships between generality and particularity, universality and individuality. The chapter deals with the emphasis on the characteristics of the special research, considers the general principles of litigation and the brief introduction of the litigation system, and pays attention to the mutual adaptation of the chapters. As far as the research structure is concerned, this book is based on the evolutionary rules of criminal litigation in the Tang Dynasty and draws on the areas of lawsuits, trials, and execution, concentrating on customary rules. It sets up chapters and festivals and summarizes the procedure rules in lawsuits, appeal, hybrid governance, collected discussion, redress grievance, far exile and forced suicide to highlight the multiple qualities of the legal source of the Chinese legal system.

3.2 Innovation 3.2.1

New Subject

It is worth noting that while academic circles have made many outstanding achievements in the field of ancient litigation rules, there are still limitations such as limited vision, conceptual anomie, and single information. Today, research on the basic issues of the structure, function and value of traditional litigation rules is rather weak. To date, systematic research on the issue of “litigation practices” has lacked concerns. Based on the judgment of the multistructure of traditional legal civilization, this book chooses the relatively weak research field of the history of litigation. This book has novel topics and distinctive features, as well as the significance of filling the gap in the academic field in terms of research horizons. Through the macro vision of the Chinese litigation legal civilization, the research is based on the evolution and actual operation of the litigation rules of the Tang Dynasty and uses the macro perspective of litigation history to highlight the problem consciousness and the characteristics of the generation. Therefore, from both the research field and research perspective, this book’s intention and plan have important academic value, and it also helps to promote the in-depth development of the discipline of legal history.

3.2.2

New Method

Comments on Laws of Tang Dynasty are an outstanding representative of the Chinese statute era. Studying the generation, application and evolution of litigation practice in this historical period will inevitably rely on the laws of the Tang Dynasty, follow the development of the litigation process, and focus on the law applicable level

3 Research Route and Innovation

33

to dig, identify and analyze the criminal litigation practice of the Tang Dynasty. Specifically, based on traditional official history, the law, and political materials, the book rationally transplants historical research methods such as “history materials”, “double evidence”, and “cultural and mutual evidence”. The legal field of the Tang Dynasty demonstrates effective communication between history and legal research. This book studies the collection and analysis of criminal litigation practices in the Tang Dynasty on the basis of restoration and description. It is based on books such as Book of Tang, Comments on Laws of Tang Dynasty, Zi Zhi Tong Jian, Ce Fu Yuan Gui, Tang Hui Yao, etc., through the survey of various types of literature mutual crossexamination, discovery and analysis of various customary rules, and make full use of unearthed documents from Dunhuang and Turfan, and files, indictments, accounts, notes, as well as the epitaphs of people in the Tang Dynasty that are newly unearthed from Chang’an and Luoyang. The author analyzes the process of litigation activities in the Tang Dynasty from an empirical perspective, pays attention to the various litigation practices contained in judicial practice, and explores the subtle relationship between institutions, conventions and concepts on the basis of restoring the original appearance of litigation activities in the Tang Dynasty. Furthermore, the book pays full attention to the excavation and application of the historical materials contained in miscellaneous history. This book analyzes the similarities and differences between the official and civil litigation concepts from the perspectives of people’s writings of that time, thus giving a multidimensional analysis of litigation legal culture in the Tang Dynasty.

3.2.3

New Materials

The study of the legal system in the Tang Dynasty has a long history, and it is not easy to obtain useful new information. While expanding the collection and application of the data, this book pays special attention to the full use of the newly unearthed literature of the Tang Dynasty in recent years, with the most typical materials like Newly Unearthed Documents from Turpan, Epitaph stored in Museum of Datangxi City, Collection of Scattered Epitaph in Luoyang, etc. Among them, the newly unearthed epigraphs of the Tang Dynasty in the suburbs of Chang’an and Luoyang contain some procedural legal information, which has not yet attracted enough attention from researchers in the field of procedural law. In this book, the author conducts a detailed analysis of “Epitaph of Li Duozuo”, “Epitaph of Liu Weizhi”, “Epitaph of Cheng King Qianli (Li Ren)” and “Epitaph of Lu Xun” as historical legal materials and compares them with traditional historical materials to supply deficiencies and correct mistakes. All these factors have provided strong support for identifying litigation practices in related fields. In addition, the Chinese literature abroad, such as the Collection of Dagu Documents and the Unearthed Instruments of Turfan in Ningle Gallery of Japan, has also been fully utilized in this book.

Part II

Special Subject and Litigation Practice

Chapter 2

Women

In China’s feudal period, clan or family was the basic social unit. Family organizations in the unit of households played various social functions, such as production, taxation, education, and public security. Although the family members formed family lineages around the male patriarchs as the core, women were the blood ties for creating, reproducing and connecting the family relationship. Liu Xi’s Shi Min said that “family means to take part with each other; relative means the continuation of bounties”.1 The relationship within a clan was based on marriage and then formed a complex network of relative relationships by blood, legal fiction (adoption and heir, etc.) and other legal facts. In the broadest sense, “clan relatives” referred to all blood relatives and their female spouses within the clan.2 Female clan relatives within a clan were mainly composed of unmarried women from the clan and women who married men from the clan. The former was called “women in the family”, and the latter was called “women return to the family”. In addition, the women who returned to the original clan because of the death of their husbands after marriage or divorce were called “women return to the clan”. The feudal family followed the conception of the so-called “integration of husband and wife” for a long time. Marriage was the reality base for the continuation of the clan, and the “integration of husband and wife” was an important part of the conception of the “integration of a clan”.3 “A woman’s behavior is qualified if she is dutiful as a daughter, chaste as a wife and affectionate as a mother.”4 Within the family or clan, women often participated in litigation in the name of chaste wives and affectionate mothers, whose legal status and social influence were formidable. Based on ethical concepts, social roles, legal status and many other factors, women in the Tang Dynasty influenced throughout 1

Shi Min, Volume 3, Zhonghua Book Company, 1985, p. 44. Wufu System and Traditional Laws, The Commercial Press, 2013, p. 112. 3 Rituals; Mourning Apparel: [Commentaries on Rituals, volume 30, Peking University Press, 2000, p. 662] Principle of Chinese Family Law [Japan] Principle of Chinese Family Law, Law Press China, 2003, p. 31. 4 New Book of Tang, Volume 205, Zhonghua Book Company, 1975, p. 5816. 2

© Science Press 2021 X. Chen, A Study of Criminal Proceeding Conventions in Tang Dynasty, https://doi.org/10.1007/978-981-16-3041-5_2

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all the processes of litigation, thus forming a series of litigation practices exclusive to women and to some extent influencing the litigation rules of the Tang Dynasty. Academic studies on the legal status of women in the Tang Dynasty mainly focus on the social stratum, identity relationship, economic status, property system and marriage relationship.5 It is worth noting that, at present, few people are interested in the criminal litigation subject status of women in the Tang Dynasty as an important subject of litigation. This chapter follows the basic structure of the litigation procedure in the Tang dynasty and analyzes the subject status and litigation function of women in the processes of filing lawsuits, producing evidence and executing penalties.

1 Functions of Proctor According to the criminal litigation procedure of the Tang Dynasty, women, even including slaves and servant women, had the same litigation rights as men in filing lawsuits and accusations. At the same time, relatives serving as proctors were very common in judicial practice. Proctors mainly included son as the proctor of the father, spouse as the proctor, and brother or nephew as the proctor, and these three kinds of proctors were the most important clan relatives. This section focuses on the issue of women proctors. In terms of property, women proctors were mostly for appealing or direct appealing (to imperial officials or even the emperor). In the late Dazhong period, Fengzhou provincial governor Lu Fangyi convicted a man on a misdemeanor and executed him a few days later. His wife sued to Xingyuan Prefecture governor Liu Zhongying “and it involved many other officials, and finally all were beaten and put in prison”.6 Women mostly directly appealed (to imperial officials or even the emperor) to exonerate their wrongly convicted clan relatives, namely, “to relief major injustice through non-regular procedures”,7 and the practice of women’s appealing bypassing the immediate jurisdiction was acquiescent in a certain range. In the Xianqing period, the right-wing general Murong Baojie concubines murdered Yang Sixun by poison. Baojie was exiled. Sixun’s wife appealed to the imperial court. For the legal status of 5 On the Relationship between Identity and Punishment in the Laws of the Tang, the School of Law, Taiwan University, Social Science Series, 11, 1961. System and Country, China Encyclopedia Publishing House, 2005; Women of Tang Dynasty, Sanqin Publishing House, 1988; Changes Family Status of Women in Tang Dynasty based on Spouse Relationship, Journal of Lanzhou University (Social Sciences), 2010, 6; Women’s Legal Status in Tang Dynasty in Legal System, Journal of Jilin Normal University (Humanities and Social Sciences), 2004, 3; On Women’s Civil Legal Status in Tang Dynasty, master’s degree thesis of Nanjing Normal University, May 2007; On the Confirmation of Women’s Status in the Law of the Tang, Journal of Chongqing University of Arts and Sciences (Social Sciences), 2008, 1; Women’s Status in Tang Dynasty based on the Regulations and Social Practice of the Law of the Tang, Journal of Shihezi University (Philosophy and Social Sciences) 2009, 1; Women’s Social Status in ancient India and Tang Dynasty in On Monu Law and Comments on Laws of Tang Dynasty, Jianghan Forum, 2011, 2. 6 Old Book of Tang, Volume 165, Zhonghua Book Company, 1975, p. 4306. 7 History of Chinese Legal System, Yongyu Printing Plant, 1976, p. 206.

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Sixun’s wife, the records in the two Books of Tang are slightly different. According to Old Book of Tang-the Biography of Yang Sixun: The right-wing general Murong Baojie hid concubines in another house, where he often treated Sixun feasts. Sixun blamed Baojie’s separation from his wife. The spiteful concubines secretly put poison into the wine. Sixun died soon after he drank it. Thus, Baojie was exiled to Linbiao. Sixun’s wife appealed to the imperial court and claimed it’s unfair, so the court sent messengers to execute Baojie. Moreover, the Law on Thieves and Robbery was thus amended, and murder by poison might beget even heavier legal punishment.8

Obviously, Sixun’s wife directly appealed to the imperial court because of the dissatisfaction with the original conviction, so she was in the role of the appellant; however, in the New Book of Tang, Sixun’s wife participated in the litigation as a complainant: The right-wing general Murong Baojie invited Sixun for the conspiracy on rebellion at night, but Sixun dare not answer him. Baojie was scared, so he treated Sixun poison wine to kill him. His wife accused Baojie, and he was exiled to Linbiao. Later, the court sent messengers to execute him in Longmen; thus, the edict was issued that murder by poison may beget even heavier legal punishment.9

In fact, according to the different records about the litigation roles of Yang Sixun’s wife in the two Books of Tang, we may draw the following conclusion: after Yang Sixun died from poison, his wife appealed to judicial authority and was accepted, and then the criminal litigation procedure started. At first, the judicial authority sentenced him to exile, but Sixun’s wife appealed to the imperial court, so the judgment was changed into a death penalty, and relevant laws were thus modified. In judicial practice, women proctors are often associated with special measures such as repeated-appealing or self-mutilation. There was no strict concept about final judgment in the Tang Dynasty, and the law did not stipulate clear restrictions on the times of appeal. Even though the lawsuit was appealed to the imperial court, if the complainant did not realize their purpose, they could appeal endless times. In March, the first year of the Zhenyuan period (785 A.D.), governor Li Qiyun scolded Yuan Sui, an official of Wannian County, and killed him by persecution. “His wife, Zheng’s appealed to the imperial court, and the imperial censor Cui Zong submitted countless complaints but the emperor did not accept. So, his wife kept appealing and submitted memorials to the emperor as usual. The imperial minister Zhang Yu condemned the judges, and the officials jointly impeached Qiyun.”10 For dual purposes, namely, the emperor’s care of people and the supervision of the local judicature, the Tang Dynasty followed the practice of “repeated appealing for one case”. Yuan Sui’s wife could appeal to the imperial court several times, which caused joint impeachment of officials, and the impeachment procedure to investigate Qiyun’s criminal responsibility also started since then. Appealing to the imperial court by means of self-mutilation, such as cutting off the ear, scraping the face and suicide, was prohibited in the Tang Dynasty. According 8

Old Book of Tang, Volume 62, Zhonghua Book Company, 1975, p. 2382. See Footnote 8 10 Ce Fu Yuan Gui, Volume 64, Phoenix Publishing House, 2006, p. 683. 9

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to the imperial order on August 4, the thirteenth year of the Zhenguan period (639 A.D.): Any body part is given by our parents. It’s prohibited to hurt it. People always committed self-mutilation on the ears or eyes when they appealed before. From now on, those who committed self-mutilation will be punished by beating forty bludgeons before the proceeding of the case.11

The article “block the carriage, bit drum and tell false information” in Comments on Laws of Tang Dynasty-Lawsuit also stipulated that “Those who hurt themselves will be punished by beating one hundred bludgeons. Those who tell the truth but hurt themselves will be punished by beating fifty whips. The relatives suit litigation as procurator will be the same as self-litigation.”12 The law did not stipulate litigation by self-mutilation was inadmissible, and in the case that the litigation told the truth, the punishment on those who committed self-mutilation was mostly reduced, litigation direct to the imperial court by self-mutilation or other radical means was never completely prohibited, despite of the heavy punishment on self-mutilation by the laws, regulations and imperial edict. Yan Zhenqing’s Inscriptions of Yan, Wife of Hangzhou Qiantang County Minister Yin in the Tang Dynasty recorded that Yan appealed for injustice by cutting her ear: “Her uncle was an official of the Ministry of Official Personnel Affairs. Yan cut her ear to appeal for unfair judgment, so the death penalty was remitted. Later her baby boy was born without the left ear.”13 This epitaph contains too many texts and vague sentences. However, we can see the details by referring to the New Book of Tang Biography of Yin Chengyi: Chengyi was an official of Jinzhou. In the earlier time, his mother Yan’s uncle Jinzhong, an official of the Ministry of Official Personnel Affairs, was trapped by ruthless officials. Yan and her two sisters cut the ear to appeal for injustice, so Jingzhong’s death penalty was remitted. When Chenyi was born, his left ear was missing.14

In the middle of the Dahe period, Heng Fanghou, supervisor of Yongzhou Prefecture, was trapped and murdered by Dong Changling, an officer responsible for quelling uprisings. His wife Cheng “went to the imperial alone and cut her own at the Right Yintai Gate, to appeal for the injustice of her murdered husband.”15 Later, after the Censorate verified true, Dong Changling was expelled. In the case of Heng Fanghou’s wife Cheng cutting ear to appeal, Yongzhou Prefecture with the jurisdiction over the complaint was a state-level unit, and the injustice case should be filed to Shangshu Department, but Cheng overstepped the appealing procedures through Shangshu Department, San Si and Shang Biao, and directly appealed to the imperial court. The case was accepted by the Censorate, and the defendant was finally punished by the law. The abovementioned cases are all flawed by self-mutilation 11

Tang Hui Yao, Volume 41, Shanghai Classics Publishing House, p. 827. Comments on Laws of Tang Dynasty, Volume 24, Zhonghua Book Company, 1983, p. 447. 13 Anthology of Yanlugong, Volume 16, Shanghai Classics Publishing House, 1992, p. 107. 14 New Book of Tang, Volume 199, Zhonghua Book Company, 1975, p. 5683. 15 Old Book of Tang, Volume 193, Zhonghua Book Company, 1975, p. 5150. Tang Liu Dian, Volume 7, Zhonghua Book Company, 1992, pp. 218–219. 12

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41

and bypassing-grade appealing, but no one affixed the relevant responsibility of the women complaints. This indicates that the complainant had an absolute advantage in the field of moral and public opinion under the premise that the complaint was true. To highlight the cardinal guides and ethical codes and praise the model of “chaste women”, feudal rulers often granted extrajudicial favors and exempted the proctors from the legal liability of self-mutilation and bypassing-grade appealing. This ethos increasingly became popular, and later, the judicial practice of acquiescence for women’s direct appealing by self-mutilation gradually formed. At the same time, starting the review procedure through the direct appealing of relatives provided clues for the judicial supervision organs to referee officials’ illegal judgments. Therefore, in the case of relatives as a proctor, the actual condition of the appealing was the key factor in the process of the lawsuit proceedings. “Politics and culture both prosper; cultivating loyal men and chaste women. Ritual law was for self-defense, but sacrifice for righteousness was necessary.”16 The gravamen of filial men and chaste women was regarded as a concrete manifestation of moral cultivation deeply rooted in people’s minds. The public opinion, litigation habit and legal consciousness founded based on Confucian household ethics, as well as the system guarantee of the state for filial piety and righteousness,17 evoked the occurrence of the relative procurator to a large extent. After Heng Fanghou’s wife Cheng cut off her ear to appeal for the injustice, the imperial court issued an edict to honor her in the first year of the Kaicheng period (836 A.D.): The official behaved illegally and cruelly murdered your husband. To appeal to the imperial court for the injustice, you travelled such a long way by step despite rugged and fatal risks. The wrong judgment was finally rectified. Even ancient chaste women did not go any further. Hearing that the widow was helpless and crying all day, we decided to provide for her and grant her title. We grant her Wuchang Jun and one of her sons official at ninth rank.”18

Cheng gained double profits of redressing the injustice and getting granted by selfmutilation appealing, and the defendant Dong Changling was demoted to Xuzhou secretary. In judicial practice, cases directly appealed by one’s wife or concubine were mostly accepted for retrial, and the final results tended to be complaints. However, the appealing and direct appealing system originally for preventing injustice was sometimes abused by illegal guys, and some unruly and obstinate people even committed repeated appealing and controlled public opinion to threaten the judicial authorities. In April, the second year of the Qianyuan period (759 A.D.), Fengxiang Mafang committed robbery and was arrested and executed by Tianxing official Xie Yifu. His wife appealed to Li Fuguo for the injustice, so he appointed the censor Sun Ying for retrial and then sent the censor Cui Boyang, the assistant minister of Ministry of Punishments Li Ye, and Dali official Quan Xian to jointly retry the case but obtained no different result. His wife still refused to accept it. Li Fuguo then sent Yushi official Mao Ruoxu for retrial and finally condemned Xie Yifu guilty, and all the judges responsible for retrial before him were demoted. “Ruoxu invited many talents with 16

Old Book of Tang, Volume 193, Zhonghua Book Company, 1975, p. 5152. On the Legal System of Tang Dynasty, Peking University Press, 2004, p. 19. 18 Old Book of Tang, Volume 193, Zhonghua Book Company, 1975, pp. 5150–5151. 17

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eloquence with the indication of the state to put the guilt on Yifu… Boyang was reduced to the junior officer of Gaoyao; Xian was reduced to the junior officer of Guiyang; Ye, Fengxiang Yin, and Yanxiang were allreduced to the junior officer of Lingxia; Ying was cashiered and exiled to Bozhou.”19 According to Epitaph of the Magistrate Wei of Chenggu County, the late Xingyuan Prefecture in the Tang Dynasty, in the Zhenyuan period, when Wei Shi governed Jinzhou, he condemned Liu Fanglao’s illegal conduct. Liu Fanglao sent concubines in secret to file a false accusation against him by appealing to the imperial court in Chang’an. The emperor sent messengers to retry the case, but no other result was found. Later, “Fanglao sent concubines again to cut off an ear and appeal lying on the street”,20 and during that period, chaos happened to occur, so the original judge Wei Shi was wrongly exiled to Fuzhou. It is undeniable that women’s unreasonable appeal by hurting their own ears and eyes inevitably caused serious interference to the normal litigation order and thus completely deviated from the original intention of the judicial trial for showing compassion to the helpless and weak.

2 Function of Appellant China’s all along maintained the so-called “appeal” in the law, namely, “appeal in the valid period was permitted if the judge secured improper convictions”.21 However, “improper conviction” was determined by the own interests of parties concerned with the lawsuit instead of an improper judgment itself as a necessary prerequisite. To safeguard their own or relative’s interests, women had the right to file lawsuits or appeal to the jurisdiction, and the women concerned thus gained the subject qualification to participate in the litigation. Different from the relative proctor, women’s appeal to the jurisdiction was not on the basis of wrongful conviction and grievances. Even if the judgment and conviction were proper, the female relatives of the convicts could also request a special favor for the reason of being old, lonely, poor or ill. To highlight judicial conceptions such as tolerance, forgiveness and compassion for filial piety, the feudal state often permitted their requests. In the period of Emperor Gaozong, Jia, a filial daughter in Juancheng, Puzhou, refused to marry and raised her young brother to revenge her father’s death. Later, her brother Qiangre killed the foe and sacrificed the heart to his father’s tomb. “Qiangren was sentenced to death. The filial woman appealed to the imperial court and asked to replace her brother with death. Emperor Gaozong showed compassion and exculpated him from the punishment.”22 Murder for revenge was sentenced to death with sufficient evidence, but Jia appealed to the imperial court and finally got exculpated. The case of filial woman Jia depended on the concept of revenge as theoretical support, but the following three 19

Zi Zhi Tong Jian, Volume 220, Zhonghua Book Company, 1956, pp. 7076–7077. Addendum of Complete Tang Proses, Volume 8, Sanqin Publishing House, 2005, p. 190. 21 Judicial System in the Zhou Rites, China Legal Science Journal, 1937, 1(5–6): 110. 22 New Book of Tang, Volume 205, Zhonghua Book Company, 1975, p. 5820. 20

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cases in which women appealed for the remission of punishment actually deviated from the laws and regulations. In July, the fourteenth year of the Yuanhe period (819 A.D.), Quan Zhangru, an official of Fujian Salt and Iron Authority, received bribes of ten thousand and three hundred Guan and was sentenced by Jingzhao Prefecture to death. Zhangru’s mother begged to exculpate him to care for her in the excuse of her old age. Emperor Xianzong wanted to exculpate and forgive him, but he consulted in the ministers. Cui Qun replied that “Your Majesty, if you want to exculpate him because of benevolence, better immediately send messengers to announce the edict. There’s no time to wait for the formal remit.”23 So the emperor sent messengers to rush to stop it, and the next day announced the edict that Zhangru was to be punished by beating eighty bludgeons and exiled to Kangzhou. On the anecdote that Cui Qun persuaded Emperor Xianzong to exculpate Quan Zhangru, the two Books of Tang both praised it as “a memorial to the emperor for benevolence”, but Ministers-Favoritism in volume three hundred and thirty-seven of Ce Fu Yuan Gui held the opposite view of points: We think the death penalty on Zhangru who received bribes of the huge amount was proper to punish evil. But he finally regained his life because of his mother. So from then on, all sons can commit major evils without any restraint by the death penalty because of their old mothers. It’s to show benevolence for the emperor to forgive him with compassion, but it’s improper for the prime minister to save and exculpate him.24

It is noteworthy the reason why Quan Zhangru was exculpated from the death penalty and exiled and even later allowed home by special favor was directly related to his clan relative, the minister Quan Deyu. Zhao Lin recorded the details as follows in Yin Hua Lu: Emperor Xianzong knew minister Quan very well. Later, Quan Changru received a huge amount of bribes at Fujian Salt and Iron Authority and was sued by the jurisdiction. The emperor said, “We must execute him according to the law.” Prime Minister Cui Qun tried to save him: “He is a son in Deyu’s clan.” The emperor said, “Deyu will not tolerate his son’s crime definitely. Even if Deyu himself committed the crime, I would not forgive him. Let alone his clan member.” Knowing his mother was very old, the emperor exculpated him from the death penalty, punished him by beating eighty bludgeons and exiled him to Kangzhou.25

The abatement from the death penalty to exile on Quan Zhangru seemed to have nothing to do with Quan Deyu, but the fact that he was allowed home from the exile in the late Changqing period was directly attributed to the favor of the Prime Minister Quan Deyu. Quan Zhangru in volume, two hundred and one of Tai Ping Guang Ji quoted from Gan Xun Zi, “In the late Changqing period, the former magistrate of Fujian County Quan Zhangnru was exiled for his crime. But later he was favored to 23

Old Book of Tang, Volume 159, Zhonghua Book Company, 1975, p. 4188. [Tang Hui Yao, volume 41, Shanghai Classics Publishing House, 2006, p. 860] Song Xing Tong, Volume 27, Zhonghua Book Company, 1984, p. 48. 24 Ce Fu Yuan Gui, Volume 337, Phoenix Publishing House, 2006, p. 3798. 25 Yin Hua Lu, Volume 1, Shanghai Classics Publishing House, 1979, p. 72.

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return home because of his clan relative, the former prime minister of Rites Deyu.”26 The jurisdiction even implemented special favor and abatement from the penalty in the name of filial piety and forgiveness. The disposition of Quan Zhangru’s receiving bribes can be regarded as a demonstration of abolishing the law because of human relationships. In June, the fourth year of the Kaicheng period (839 A.D.), the granddaughter of Yue emperor Xuanzhen convoyed several dead family elders to the funeral in his hometown. Xuanzhen requested that her dead family elders be buried in ancestors’ tombs because three generations of them died in the remote region: In December, the third year of the Kaicheng period, receiving the fund given by Lu Jun, the military governor of Lingnan, three generations of my unburied family elders in different regions were specially sent back to the great mound together with the ancestors. Now I convoyed four dead family elders and arrived at Changle Hotel and did not place where the Yue emperor was located. I begged for the emperor’s favor to permit my request of burying them back to the great mound. I am an old woman at the age of sixty-three now, solitary, poor and helpless.27

According to Ce Fu Yuan Gui, Xuan Zhen’s “great grandfather was named Zhen. He was the sixth son of the Yue emperor. In the Xiantian period, he was convicted guilty and exiled to Lingnan. Her grandfather and father both died in remote regions outside Lingnan. Although the grievance was redressed, they had not been able to return to the capital.”28 Emperor Xuanzong remained the year title Xiantian for only two years. According to the Old Book of Tang Records of Emperor Xuanzong, “In early December Gengyinshuo, the second year of the Xiantian period (713 A.D.), the emperor proclaimed a general amnesty and changed the year title into Kaiyuan”.29 During the later more than one hundred and twenty years, Li Zhen and three generations of his descendants died in Lingbiao. In the fourth year of the Kaicheng period of emperor Wenzong, convoyed by his granddaughter Xuan Zhen, they returned to be buried in the ancestors’ tomb. In the fourth year of the Chuigong period (688 A.D.), Xuan Zhen’s great grandfather Yue Emperor Zhen and his son Chong raised an army to recover the Tang. Empress Wu Zetian ordered Cen Changqian, Zhang Guangfu and Ju Chongyu to lead troops to fight against them. In early September, “they killed Zhen and Chong, passed their heads to the capital and changed their surname into Hui”.30 In the early Shenlong period, Emperor Zhongzong restored the throne, Jinghui and others requested to recover the official ranks of Yue and his son for their contribution to the royal family and righteousness to the state but failed because of Wu Sansi and other objections. 26

Tai Ping Guang Ji, Volume 201, Zhonghua Book Company, 1961, p. 1517. Old Book of Tang, Volume 193, Zhonghua Book Company, 1975, p. 5151. 28 Ce Fu Yuan Gui, Volume 39, Phoenix Publishing House, 2006, p. 418. [Old Book of Tang, Volume 193, Zhonghua Book Company, 1975, p. 5151]. [New Book of Tang, Volume 80, Zhonghua Book Company, 1975, p. 3577]. [Tang Hui Yao, Volume 5, Shanghai Classics Publishing House, 2006, p. 70]. 29 Old Book of Tang, Volume 8, Zhonghua Book Company, 1975, p. 172. 30 Old Book of Tang, Volume 6, Zhonghua Book Company, 1975, p. 119. 27

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In the fourth year of the Kaiyuan period (716 A.D.), the imperial edict recovered their ranks and ordered to prepare the ceremony for the funeral. The next year, “his nephew Sun Lin was conferred the heir of Yue Emperor to worship him and erect a monument in memory”.31 This indicates that the grievance of the Yue emperor and his son was redressed in the early Kaiyuan period, and their burial ceremony and worship still followed the rites. There is no detailed historical record about the reason why Zhen, the grandfather of the female Taoist Xuan Zhen, exiled, but it was not directly related to the redressed grievance of Yue Emperor Zhen. According to Collection of Edicts in Tang Dynasty-Edict on Yue Emperor’s Funeral Ceremony: The anecdote of the Yue Emperor was recorded in national history. He was not guilty but framed, and later, the grievance was redressed. His son Zhen was exiled for another crime. Since then, several generations have lived in remote regions and have not returned to the capital. Xuan Zhen was just a weak woman but presented outstanding filial piety. She convoyed four family elders and travelled so long away for the funeral. Moreover, she was a close relative of them, so she deserved greater favors. The imperial court should support her finance and title more. Zhengzongsi Jingzhao Prefecture appointed to investigate Yue Emperor’s tomb reported that it should be buried in the great mound if it is not a satellite tomb. The burial ceremony was also assigned to Jingzhao Prefecture, and they were ordered to prepare complete rites. After the burial ceremony, if Xuan Zhen would like to live in the capital, it was ordered to settle her at Xianyiguan.32

This imperial order clearly distinguished the grievance of Yue Emperor Zhen from the exile on Li Zhen for his own crime. Xuan Zhen convoyed Li Zhen and others back to the capital and received the rites of the funeral ceremony all because Xuan Zhen’s filial piety attracted the compassion of the imperial court. We can believe that Li Zhen’s return for the burial ceremony was not in the nature of redressing grievance but the remit of the state for Xuan Zhen’s filial piety. In the sixth year of the Xiantong (865 A.D.), Zhao Lin, an official at Cangzhou Salt Authority, was sentenced to death for misusing official interests. His daughter requested remiting his death penalty in the excuse of lonely living pressure on her and threatened the jurisdiction by dying together with her father: Zhao’s daughter was born in Yanshan, Shanyang. Her father did salt business and misused the interests without paying the taxes. He was arrested and sentenced to death according to the law. It was confirmed guilty, and the execution date was fixed. Zhao’s daughter requested visiting the judge and wept in the court, saying that “my mother died when I was seven years old and brought up by my father alone spending the official interests. I owe him too much. Now since my father’s crime was found and convicted, I would like to suffer the same punishment as him. If you don’t approve, can you remit his crime? If you cannot, please approve my request.” The judge Qinghe Cui was moved by her righteousness and remitted the death penalty. Zhao cried, “My life belonged to my father before, but now it’s granted by the court. I would like to shave my head and become a nun in return for the court’s favor.” Afraid that people didn’t believe women’s words, she immediately cut off her own ear with a 31

Tang Hui Yao, Volume 5, Shanghai Classics Publishing House, 2006, p. 70. (Zhaoling Stele, Sanqin Publishing House, 1993, p. 83, 214). 32 Imperial Edict Collection of Tang, Volume 39, Zhonghua Book Company, 2008, p. 181. Records of Chang’an, Volume 6, Chengwen Publishing Co., Ltd., 1970, China Local Chronicles Series, p. 407.

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2 Women sharp knife to make a promise. Cui was moved by her righteousness even more and actually set free his father alive. Zhao took care of her father and became a nun after his disease was cured.33

The anecdote of Shanyang woman Zhao recorded in Ouyang Xiu’s New Book of Tang Biographies of Exemplary Women is almost the same.34 According to Lv Xiaqing’s Tang Shu Zhi Bi, Xuanling’s wife Lu and some other women listed in the New Book of Tang were not recorded in the Old Book of Tang Biographies of Exemplary Women. The 22 women were added to the New Book, which was consistent with this evidence.35 The historical data of female Zhao’s anecdote added to the New Book of Tang were perhaps quoted from Pi Zi Wen Sou. In this case, it’s absolutely correct to sentence Zhao Lin to death for his misuse of official interests according to the law; but the imperial court remitted both the person who deserved the penalty and the substitute in recognition of filial piety, because of the official and especially the emperor’s special moral feeling. It can be tentatively called a measure in place of penalty depending on “moral extension”.36 Quan Zhangru’s mother Liu, female Taoist Xuan Zhen, and Shanyang woman Zhao all requested extra favors beyond the law. The complaints had no legal basis. The consideration of such women’s complaints by jurisdiction was in essence the gaming between human feeling and national law. Some scholars pointed out that “the orientation of deviating from the law and rule demonstrated by the judgment depending on human feeling in the ancient traditions (which was especially carried out by Confucianism) became obvious gradually in the history after the Qin dynasty. In the early Han dynasty, the judicial orientation began to convert from the principle only depending on the law.”37 The law did not clearly define which one was a priority when justice, national law and human feeling conflict with each other. The judiciary granted special favors beyond the law for the purpose of highlighting the demonstration function of moral cultivation. Grant special favors beyond the law to highlight moral cultivation; remitting the criminals may cause suspicion of perverting the law, but can get the praise of public opinion, and realize the purpose of promoting feudal ethics. At the same time, the abovementioned three criminals all directly violated the national interests, with no other victim. Compared with common criminal cases, it is easier to fulfill the application of penalties and forgiveness. Women raised 33

Pizi Wensou, Shanghai Classics Publishing House, 1981, p. 78. Nanbu Xinshu, Volume 4, Zhonghua Book Company, 2002, p. 55. 34 New Book of Tang; Biographies of Exemplary Women. [New Book of Tang, Volume 205, Zhonghua Book Company, 1975, p. 5831]. Cultural Properties and Cultural Pursuit of Chinese Traditional Legal Culture—the Emergence, Development and Destiny of Extenuating Jurisdiction, Legal System and Social Development, 2001 (3): 2–3. 35 Tangshu Zhibi, Volume 4, the Commercial Press, 1937 (first edition of series), p. 53. 36 Analysis on Judicial Penalties to Relatives on behalf of the Criminal in Ancient China, Chinese Journal of Law, 2012 (1): 186. 37 Cultural Properties and Cultural Pursuit of Chinese Traditional Legal Culture-the Emergence, Development and Destiny of Extenuating Jurisdiction and Legal System and Social Development, 2001, (3): 5.

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various improper complaints to the judicial authority in the excuse of relative feelings and filial piety, taking advantage of their own weak position. Women themselves were also generally convinced that feudal ethics was higher than the law, so the judicial practice of threatening and kidnapping the law in the name of relative feeling and filial piety got the basis for long-term application.

3 Seizing Women Family Members 3.1 The History of Seizing The law on seizing the criminal’s family members has been passed down for a long time. It can be traced back to the period of the Xia Dynasty. Shang Shu-Gan Shi recorded the system of Nulu (punishment on criminal’s wife and children). Biography of Kong Anguo, “Nu means children. Not only was the criminal himself punished, his children would also be disgraced. It’s called to add up more shame.”38 The specific definition of Nulu is to punish the criminal’s close relatives to be slaves or impose penalties on them. Shen Jiaben said, “Seizing and collective punishment are different… Seizing means to seize the criminal’s children. Not only are the subordinates but also the supervisors and ministers involved in the crime.”39 The Qin dynasty also had the law of seizing. In the Book of Han Records of Emperor Wendi, Ying Shao said, “Nu means the children. According to the law of the Qin dynasty, if any person committed crimes, his family members would be seized.”40 In the period of Empress Lv of the Han dynasty, punishments on the criminal’s family and the ban against heresy were abolished. Bamboo Slips from Zhangjiashan Han Tomb-Shou Lv clearly defined the system of seizing in the Han dynasty: For the criminals who were punished to pestle crops and chop woods and who committed evil crimes and were sentenced to castration, their wives, children, property, field and houses would be confiscated.41

The Book of Han Records of Emperor Wendi recorded that in December, the first year of the Qianyuan period of Emperor Wendi (179 B.C.), “All laws of seizing and collective punishment were abolished.”42 In the early period of Emperor Jingdi, the law of seizing was restored. In December, the winter of the third year of the 38

Shangshi Zhengyi, Volume 7, Peking University Press, 2000, p. 207. Textology on the Criminal Laws in the History; Textology on the Criminal Laws 1; Collective Punishments, Zhonghua Book Company, 1985, pp. 83–84. 40 Book of Han, Volume 4, Zhonghua Book Company, 1962, p. 111. Note: On Kuang Miu Zheng Su, Volume 2, Shandong University Press, 1999, p. 35. 41 Bamboo Slips from Zhangjiashan Han Tomb (version with revised annotations), Cultural Relics Publishing House, 2006, p. 32. 42 Book of Han, Volume 4, Zhonghua Book Company, 1962, p. 110. On the Seizing Law of Zhangjiashan Han Bamboo Slips, Journal of East China University of Political Science and Technology, 2006 (3): 130. 39

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Qianyuan period of Emperor Jingdi (154 B.C.), Xiangping official Jia’s son Huishuo committed high treason. He charged a rebellion and intended to kill Jia. “Jia was remitted to be Xiangping official, and his wife and children also regained their ranks (Ruchun said: “According to the law, for traitors and rebels, their parents, wives, sons and daughters, brothers and sisters would be involved in public execution. Now those who did not conspire with Huishuo were remitted and regained their original ranks.”). Huishuo and his wife and children were convicted.”43 This indicates that the law of seizing the criminal’s wives and children had been passed down for a long time in the Han dynasty. Referring to Shou Lv and the law quoted by Ruchun, for rebellion and other monstrous crimes, the criminal’s wife and children were involved in the death penalty; for ordinary crime, the criminal’s wife and children were seized to be servants of officials. “The criminal’s parents, wives, sons and daughters, brothers and sisters would be involved in the death penalty or seized, so as to impose pressure on people to pay attention not to violate the law.”44 In the case of legal liability, the family members of the criminals who charged a rebellion were not guilty. Only to impose harsh punishments on rebellion and for the conception of severe punishment was the system of seizing initiated. In the Wei, Jin and Southern and Northern Dynasties, the law on seizing was adjusted and directly influenced the laws of the Tang Dynasty. First, the system of collective punishments on women was reformed in the period of Cao Wei. For a long time, “If the parents were convicted guilty, their daughter would be involved in punishments; if the rebels suppressed, their clan of the same surname would be executed. Anyone’s life may be influenced by the crimes of himself and others”. The secretary of Yingsi Cheng Xian suggested that “The unmarried daughters would be involved in the death penalty on their parents; the married women would be involved in the punishments on their husbands. The old system should be changed and remained forever”.45 Second, the old system of executing the criminal’s women family members was abolished and replaced by confiscation or exile. The law was fixed in the Tianjian period of the Liang Dynasty. “All the criminals who committed rebellion, treason or more monstrous crimes would be executed. Their fathers, sons and brothers would all be executed publicly. Their mothers, wives, sisters and others who were involved in the death penalty would be seized to be servants of officials. All their property would be confiscated.”46 The North Qi followed the system of the East Wei in the Shenwu period and moved the capital to Ye, when public security deteriorated, so they stipulated harsh systems: “For robbery and murder, all the main and accessory criminals would be executed, their wives and daughters would be seized to be servants of officials; for crimes other than murder and the illicit money less than five Pi, the main criminals would be beheaded and accessory criminals would be executed, and wives would also be seized to be servants of officials; for the illicit money more than ten Pi, the chief criminals would be executed, and wives 43

Book of Han, Volume 5, Zhonghua Book Company, 1962, p. 142. Book of Han, Volume 23, Zhonghua Book Company, 1962, p. 1104. 45 Book of Jin, Volume 30, Zhonghua Book Company, 1974, p. 926. 46 Tong Dian, Volume 164, Zhonghua Book Company, 1988, p. 4223. 44

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would be seized to be servants and accessory criminals would be exiled.”47 The law of seizing and collective punishments was once abolished in the early Sui Dynasty. In the seventeenth year of the Kaihuang period (597 A.D.), reported that seven thousand Shi of the millets in Hechuan Warehouse was missing, and Xiaoqing was appointed to investigate this case. “He believed it was stolen by the supervisor. Xiaoqing was appointed again to post to behead him, seized his family members to be servants, and confiscated his millets to fill the vacancy. From then on, for stealing grains more than one liter, the criminals would be executed and family members would be seized and confiscated.”48 The law of seizing thus was restored at that time.

3.2 The Confiscation System of the Tang Dynasty From the Han dynasty to the Tang dynasty, “All the felony criminals wives were seized to be servants of officials”.49 The Tang dynasty followed the law of seizing passed down from previous dynasties. According to the article of “rebellion and treason” in Comments on Laws of Tang Dynasty-Theft and Robbery, for rebellion and treason, the criminals themselves would be executed, their minor male relatives and female family members would be seized to be servants of officials, and all family property would be confiscated. All criminals who committed rebellion and treason would be beheaded; their fathers and sons older than sixteen would be hanged; their sons younger than fifteen, mothers, daughters, wives and concubines (also sons’ wives and concubines), grandfathers and grandchildren, brothers, sisters would be seized to be servants; family property and fields would be confiscated.”50

The actual practice of the confiscation system in the Tang dynasty was greatly different from the law provisions. Enlarging the scope of collective punishments and changing the conviction were very common. In August Dingwei, the first year of the Qianfeng period (666 A.D.), guard general Wu Weiliang and Zibo provincial governor Wu Huaiyun were executed, and the family members changed the surname to Fu. Huaiyun’s brother Huailiang’s wife Shan was not in the scope of confiscation according to the law, “but she was also confiscated to Yeting together with Weiliang. Later, Rongguoling found another excuse to bind her and whipped her to death.”51 In the first year of the Baoli period (825 A.D.), a general of the left Shence Army Zhang Zhihe violated the rites and regulation in serving a banquet and punished “by beating eighty bludgeons, and exiled to Fenzhou, and his family members were 47

Book of Wei, Volume 111, Zhonghua Book Company, 1974, p. 2888. Book of Sui, Volume 25, Zhonghua Book Company, 1973, p. 714. 49 Research on Ancient Social Customs, The Commercial Press, 1939, p. 306. 50 Comments on Laws of Tang Dynasty, Volume 17, Zhonghua Book Company, 1983, p. 321. [Japan] Nishida Taichiro, On the History of China’s Criminal Laws, Peking University Press, 1985, pp. 159–162. 51 Zi Zhi Tong Jian,Volume 201, Zhonghua Book Company, 1956, p. 6350. 48

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seized to Yeting”,52 which was a bad precedent of confiscating and exiling criminal’s family members. In May Yihai, the thirteenth year of the Xiantong period (872 A.D.), official Yin Yu brought a lawsuit in Gemen disclosing imperial concubine Shu’s brother Guo Jingshu’s secret. Yin Yu did not commit rebellion, but Emperor Yizong was angered to order Jingzhaofu to execute Yin Yu and confiscate all his family members. “Nine people, including Yin Yu’s wife Cui, Zheng Yuke, Wang Yanke, Bi Weiniang, and Hongzi from Yinsheng, were confiscated to Yeting.”53 According to the article “collective punishments on noncohabitation marriage” in Comments on Laws of Tang Dynasty-Theft and Robbery, if a woman’s marriage was fixed, she belonged to her husband. If a woman’s marriage was not completed, the fiancée would not be involved in punishments. Taoist, woman, musical servant and maid servant who committed rebellion would not be involved in punishments.”54 Directly contradicting this, seizing criminal’s Taoist female family members was a tradition in the judicial practice of the Tang dynasty, so even criminals’ wives and daughters reclusive in Buddhist or Taoist temples could not escape the destiny of confiscation. In March, the twelfth year of the Dali period (777 A.D.), minister Yuan Zai’s crime was exposed. “Zai’s wife Wang was executed together. Zhen Yi, a nun in Zijing Temple, was confiscated to Yeting.”55 In the eighth year of the Zhenyuan period (792 A.D.), Dou Can was degraded to Huanzhou Sima. “His daughter Zhenru (who was a nun at that time) was seized to be a servant in Chenzhou, and his property and concubines were confiscated to the capital.”56 The Yeting Bureau and Sinong Temple were the main institutions for holding confiscated people in the Tang dynasty. Yeting Palace was in the west of the Tang imperial palace. As Song Minqiu said, “It was founded by Emperor Gaozu as a place for teaching palace maids arts”.57 Capital officials Langzhong and Yuanwailang in the Tang dynasty were in charge of the registration, inspection and declaration of confiscated servants. According to Du Guan Shi: They managed maid servants. Each department compiled two copies of registration every first month of the lunar year. One was submitted to Shangshu, and one was kept for file. Every October, all servants at ten years old and above in their jurisdiction were branded on the arm and sent to the capital officials for inspection…”58

52

Ce Fu Yuan Gui, Volume 628, Phoenix Publishing House, 2006, p. 7260. Old Book of Tang, Volume 19, Zhonghua Book Company, 1975, p. 679. 54 Comments on Laws of Tang Dynasty, Volume 17, Zhonghua Book Company, 1983, p. 324. 55 Old Book of Tang, Volume 118, Zhonghua Book Company, 1975, p. 3414. [(Song) Sima Guang, Zi Zhi Tong Jian, Volume 225, Zhonghua Book Company, 1956, p. 7242]. [(Tang) Fan Shu, Yun Xi You Yi, Collection of Literary Sketches in the Tang & Five Dynasties, Shanghai Classics Publishing House, 2000, p. 1319]. What Yun Xi You Yi recorded may be wrong, so we should revise it according to the Old Book of Tang and other books. 56 Old Book of Tang, Volume 136, Zhonghua Book Company, 1975, p. 3748. 57 Chronicles of Chang’an, Volume 6, Cheng Wen Publishing Co., Ltd., 1970 (China Chronicles series), p. 132. 58 Tang Shi Ji Yi, capital official 18, Continuation of the research on China’s Legal System History, Social Science Literature Publishing House, 2009, p. 480. 53

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Fig. 1 A servant maid holding pot. Source Xu Guangji, Complete Works of Chinese Unearthed Murals, Volume 7, Science Press, 2012, p. 263

The Neishi Institution (the emperor’s close guard institution in charge of inner affairs of the court) of the Tang dynasty had six subordinate bureaus, Yeting, Gongwei, Xiguan, Neipu, Neifu and Neiang, among which Yeting was in charge of the enrollment, disenrollment and labor of palace servants. “It was in charge of the enrollment and disenrollment of all palace servants; training of sericulture; and taking offerings. For women confiscated due to others’ crimes, those with good workmanship were sent to Yeting, and those with no craft were sent to Sinong. Any woman worker any department need was from these servants.”59 According to Tang Liu Dian, confiscated women with crafts were sent to Yeting; those with no crafts were sent to Sinong (Fig. 1): For collective punishments for rebellion, the whole family would be confiscated to be official servants (The original note: the family members and servants of a rebellion criminal were confiscated and all were called official servants. Men under the age of fourteen were sent to Sinong; men at the age of fifteen and above were exiled to Lingnan to be slaves far away from the capital because of their elder age)…At the first distribution, servants were sent to

59

New Book of Tang, Volume 47, Zhonghua Book Company, 1975, p. 1222. (Tang) Zhao Lin, Yin Hua Lu, Volume 1, Shanghai Classics Publishing House, 1979, p. 69.

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2 Women different departments according to their skills; women with craft were sent to Yeting; others with no craft were all sent to Sinong”.60

Yeting, existing from the Han Dynasty to Wei and Jin Dynasties and Northern and Southern Dynasties, was the palace prison and the institution for registering and confiscating family members of criminal officials. It was also an important place for the emperor to choose and produce empresses and concubines, forming a special harem institution for thousands of years.61 At the beginning of the Tang Dynasty, the source of women in Yeting was quite complicated. In addition to those who were tied up, there were still servants, adultery women, mistresses, and so on. It is worth noting that women who were registered and confiscated were usually from upper-class families, different in nature from servants and mistresses. They were more talented than ordinary women. With the change of status and destiny, registered and confiscated women, with special identities and talent, had a tremendous impact on the palace politics of the Tang Dynasty. Shangguan Waner is a typical example of women’s participation in politics in the Tang Dynasty. In the early years, her grandfather Shangguan Yi was executed, “Waner was sent to Yeting with her mother when she was in the cradle.” Because she was good at literary words and understood politics, “since the Shengli period, most of the memorials from all departments were decided by her. After Emperor Zhongzong came into the throne, she was asked to be in charge of formulating orders. She was deeply trusted”.62 In the Tang Dynasty, several princes’ mothers were from Yeting. For example, Hui, the Huizhuang Crown prince, the second son of Emperor Ruizong, “his mother is Liu, a palace woman from Yeting”.63 Empress Wu Zetian did not talk about her mother because of her humble origin. Emperor Xianzong has 20 sons, of whom “17 had mothers from Yeting, whose names were not recorded in history”.64 In practice, there is often only one step away between a registered and confiscated woman and an imperial concubine. For example, Zhangjing Empress Wu, Emperor Dai Zong’s mother, was registered and confiscated in Yeting because of her father’s crime”.65 In the twenty-third year of the Kaiyuan period (735 A.D.), Emperor Xuanzong ordered Gao Lishi to choose women from Yeting for Prince Zhongwang because the latter did not have a wife. Empress Wu was on the name list. Xiao Ming Empress Zheng, Mother of Emperor Xuanzong, was originally a maidservant of Li Qi. “After Qi was executed, Zheng was registered and confiscated in Yeting, serving Empress Yi’an. She was summoned by Emperor Xanzong and gave birth to Emperor Xuanzong.”66 Zheng once had served Emperor’s Mother Guo and had some resentment with her. 60

Tang Liu Dian, Volume 6, Zhonghua Book Company, 1992, p. 193. Xie Yuanlu, “Han Tang Court System and Court Politics”, Tianfu New Theory, 1999, (3): 73. 62 Old Book of Tang, Volume 51, “After Shang-Zhongzong Shangguan Zhao Rong Chuan”, p. 2175. 63 Old Book of Tang, Volume 95, “Rui Zong Zhu Zi-Zhuang Zhuang Prince Biography”, p. 3015. 64 New Book of Tang, Volume 82, “The Eleven Masters of the Emperor of Tang Dynasty”, p. 3628. 65 Old Book of Tang, Volume 52, “The Posthumous Story, Su Zong Zhang Jing, Queen Wu’s Biography”, p. 2187. 66 New Book of Tang, Volume 77, “After His Majesty, Xiao Ming Zheng Taihou Chuan”, p. 3505. 61

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Emperor Xanzong then gave her less money as support, so she became unhappy.67 This eventually led to the sudden death of Emperor’s Mother Guo.

3.3 The Release of Confiscated Women Due to consistent confiscation, tributes from foreign countries, and captives of war, the number of palace maids in Yeting increased dramatically. Since the Wude period, the emperors ordered the release of palace maids many times, among whom there should be many confiscated women. On August Guiyou, the 9th year of the Wude period (626 A.D.), “Over 3000 palace maids in Yeting were released”.68 In the first lunar month, the first year of the Shenlong period (705 A.D.), Emperor Zhongzong came into the throne and had a grant amnesty: “Those who had been wronged by Zhouxing and others should all be righted, and their sons and daughters who had been exiled or confiscated should all be released”.69 On March Gengwu 7th, the 21st year of the Zhenyuan period (805 A.D.), “300 palace maids were released to An Guo Si Temple, and 600 female musicians in Yeting were released to Jiu Xian Men, and ordered their families to receive them”.70 In February, the 4th year of the Changqing period (824 A.D.), “The emperor ordered that those who had been confiscated in Yeting and relatives of criminals who had been exiled to Yeting should be released and allowed to go anywhere as they wished”.71 In the Tang Dynasty, the family members of criminal officials could only be released by decree for pardon. In judicial practice, the issuance of special edicts was an important way to release the womenfolk of the families of criminals; this kind of measure had a sense of amnesty. The following are the three reasons for releasing confiscated women. First, in accordance with the principle of “eight discussions”, the criminal’s female family members were released. In April, the 17th year of the Zhenguan period (643 A.D.), Yuanchang, King of Han, “was ordered to take his own life at home, while his mother (Sunbin), wife and children”72 was confiscated because of his plotting of a rebellion. On December Gengshen 12th, the 19th year of the Zhenguan period (645 A.D.), because “the Prime Minister Liu Ji had served me for a long time, so I am not hardhearted enough to have him hanged”, then the emperor ordered him to take his own life at home, “while exempting his wife from confiscation”.73 In October, the 7th year of the Zhenyuan period (791 A.D.), Gang, the grandson of Guo Ziyi, defected to Tubo (Tibet) and was sentenced to death, Emperor 67

New Book of Tang, Volume 77, “Your Majesty, Chun’an Guotai Chuan”, p. 3505. Old Book of Tang, Volume 2, Biography of Emperor Taizong, No. 1. p. 30. 69 Zi Zhi Tong Jian, Volume 207, January 11th of the 1st year of Emperor Zhongzong Shenlong, p. 6581. 70 Old Book of Tang, Volume 14, Biography of Emperor Shunzong, p. 406. 71 Tang Hui Yao, Volume 3, Released Palace Maids, p. 41. 72 Zi Zhi Tong Jian, Volume 197, Emperor Taizong Zhenguan Seventeen April Yi You, p. 6193. 73 Zi Zhi Tong Jian, Volume 198, Emperor Taizong Zhenguan Nineteen December, p. 6234. 68

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Dezong, considering his grandfather’s contribution of “diligence and safeguarding of the country”, released his parents, wife and children, returning his servants and didn’t prosecute other relatives and set them free”.74 Second, the new emperor ascended the throne and granted amnesty for the family of criminal officials. The purpose is to “rehabilitate and correct possible wrong cases” and to announce the reform of the new emperor. On July 5th of the 3rd year of the Shenlong period (707 A.D.), King Chengwang and others participating in the rebellion plotted by Jiemin, the Crown Prince, were killed. Their family members were registered and confiscated. When Emperor Ruizong ascended the throne in the 1st year of the Jingyun period (710 A.D.), they were exonerated. Epitaph of Cheng Princess Mu of Tang Dynasty, unearthed in Hongqing Village in Baqiao District of Xi’an, says Murong, wife of Qianli, died in sleep in her private house in Quanshan Lane in Luoyang on February 26th in the 13th year of the Kaiyuan period (725 A.D.). Her corpse was jointly buried with King Chengwang in Tongrenyuan in the capital on the 28th of next November, this is the etiquette”.75 On February Guichou, the 21st year of the Zhenyuan period (805 A.D.), Emperor Shunzong ordered to “release Xu, wife of Zhuci, a criminal official, and other women in Yeting”.76 On March Xinmao 28th, the 14th year of the Yuanhe period (819 A.D.), Wei, wife of Li Shidao, and her son, were confiscated to Yeting.77 In July of the next year, Emperor Muzong ordered to “allow Wei, wife of the rebel Li Shidao, to become a num and stay in Fa Yun Si Temple.78 Third, remonstrated by the ministers, the emperor ordered to release the criminal’s female family members. In the “Ganlu Incident” in November of the 9th year of the Dahe period (835 A.D.), the two daughters of Li Xiaoben were confiscated in You Jun, and Emperor Wenzong admitted them to the royal palace. Wei Mo, the assistant inspector, submitted a memorial to the emperor to demonstrate, “The Emperor released the two daughters and promoted Mo as the assistant admonisher.79 According to the article “both parties can be punished” in Comments on Laws of Tang Dynasty, if the criminal is forgiven by the emperor later on, those involved who have been exiled or confiscated shall be released, and their servants and maid servants shall also be released. Different from forgiving the family members of the criminal by amnesty, this type of release shall be preconditioned by the rehabilitation of the criminals. In the Wude period, Emperor Gaozu did not recognize the plot of sowing discord by Tujue (Turk) and killed Liu Shirang, governor of Guangzhou, and confiscated his family. “In the early Zhenguan period, capitulants from Tujue said that Shirang hadn’t been traitorous, then his wife and sons were released.”80 74

Ce Fu Yuan Gui, Volume 134, “The Book of Kings-Considering Contribution”, p. 1485. Edited by Institute of Archaeology, Chinese Academy of Sciences, Sui and Tang Dynasties Tombs in the Suburb of Xi’an (No. 18 of Ding species, Archaeological Report Collection of Chinese Field Archaeology), Science Press, 1966: 99. 76 Ce Fu Yuan Gui, Volume 42, Emperor’s Mercy, p. 457. 77 Old Book of Tang, Volume 15, Biography of Emperor Xianzong (2), p. 467. 78 See Footnote 76. 79 Ce Fu Yuan Gui, Volume 101, Emperor-Taking Advices, p. 1110. 80 Old Book of Tang, Volume 69, Biography of Xue Wanjie and Liu Shirang, p. 2523. 75

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On July Gengzi of the 3rd year of the Shenlong period (707 A.D.), Crown Prince Li Chongjun and General of Armed Escort Li Duozuo led their troop to kill Wu Sansi but failed. Li Duozuo and Chongjun were killed by their subordinates, and their family members were registered and confiscated. On July Bingchen of the 1st year of Emperor Ruizong, Li Duozuo’s official ranking and titular honors were recovered, but “his wife and sons were still confiscated”.81

4 Exile and Placement 4.1 Exile Compared with seizing female family members, exile and placement are complementary ways to deal with female family members of criminals (see Table 1). In addition to self-crime, rebellion is the main reason for the exile of female family members of criminals. The term “rebellion and great revolt” in Comments on Laws of Tang Dynasty-Thieves was divided into two types according to the actual harm: the first type is rebellion with actual harm, i.e., “the plot is real” and “has brought harm”, the implication is extensive and the punishments are severe. The second type is rebellion without actual harm, i.e., “the plot is real” but “has not brought harm”, the implication only involves parents, children, wives and concubines, not other relatives, and the family property would not be confiscated: All those who commit forms of rebellion and great revolt would be beheaded, their fathers and sons older than 16 would be hanged, sons younger 15 and mothers, daughters, wives and concubines (including their sons’ wives and concubines), grandchildren, brothers, sisters shall be registered as servants, property and land confiscated…Those who commit rebellion but their words couldn’t induce the public and their power couldn’t lead the mass shall be hanged, their fathers and sons, mothers and daughters, wives and concubines shall be exiled 3000 li, and their property shall not be confiscated. Those who plot great revolt shall be hanged.82

According to the above standards, the family members of those whose rebellion was proven to be true shall be confiscated. Since the Zhenguan Period, the practice of forgiving the female family members of the criminals, i.e., the substitution of confiscation by exile, was gradually formulated. Female family members of rebellious criminals became the major source of exiled women. In April of the 17th year of the Zhenguan Period (643 A.D.), Hou Junji, Minister of Official Personnel Affairs, proved to plot rebellion with the crown prince Chengqian and was beheaded on a major road; all his family members were registered and confiscated. Just before the execution, Junji supplicated the emperor for the forgiving of one son to offer sacrifices due to his contribution of eliminating two countries, “so the emperor forgave her 81 82

Old Book of Tang, Volume 109, Biography of Li Duozuo, p. 3297. Comments on Laws of Tang Dynasty, Volume 17, Rebellion and Great Revolt, pp. 321–322.

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Table 1 A concise table of the exile and confiscation of women in the Tang dynasty Time

Punishments of the criminal(s)

April, the 17th year Hou Junji, minister of of Zhenguan official personnel affairs, proved to plot rebellion with the crown prince Chengqian, beheaded

Punishments of the Sources female family members His wife and a son were Old Tang book, exiled to Lingnan volume 3; old Tang book, volume 69; new Tang book, volume 2; Zi Zhi Tong Jian, volume 197; Ce Fu Yuan Gui, volume 58

April, the 3rd year of Longshuo

Right prime minister Li During the amnesty in Yifu was long exiled the first year of because of bribery Shangyuan, the wife of Yifu returned to Luoyang

Old Tang book, volume 82; new Tang book, volume 223; Zi Zhi Tong Jian, volume 201

The 1st year of Zaichu

Li Renli and other 36 Their parents, wives people were accused of and children were plotting rebellion exiled 3000 li

Ce Fu Yuan Gui, volume 616

December, the 5th year of Tianbao

Du Youlin, the prince tutor, and others were killed

His wife was long exiled

Zi Zhi Tong Jian, volume 215

November, the 6th year of Tianbao

Assistant minister of household Yang Shenjin and his brothers were ordered to commit suicide

His wife and children were exiled to Lingnan

Zi Zhi Tong Jian, volume 216

April, the 11th year Assistant minister of His wife Xue and of Tianbao household and imperial daughter at home were censor Wang Gong all exiled plotted rebellion and was ordered to commit suicide

Old Tang book, volume 105; Zi Zhi Tong Jian, volume 216

July, the 1st year of Governor of Jianzhong Zhongzhou Liu Yan was ordered to commit suicide

Old Tang book, volume 118

His wife was exiled to Lingbiao

(continued)

wife and a son and exiled them to Lingnan”.83 In the first year of the Zaichu period (689 A.D.), the Minister of Prison reported that Li Renli from Yingzhou and 36 other people plotted rebellion, “they were sentenced and beheaded; their parents, wives and children were exiled 3000 li”.84 Xu Yougong quoted Law and Theft, “those who speak of rebellion but don’t have real plan shall be exiled 3000 li.” Later, Zong Junzhe

83 84

Old Book of Tang, Volume 69, Biography of Hou Junji, p. 2514. Ce Fu Yuan Gui, Volume 616, Criminal Law Department 3, p. 7121.

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Table 1 (continued) Time

Punishments of the criminal(s)

Punishments of the Sources female family members

August, the 1st year of Zhenyuan

Li Huaiguang in Shuofang was killed

His wife and sons and daughters were exiled to Lizhou, installed by Li Gao; his daughters who are married and relatives were released

Old Tang book, volume 12; Old Tang book, volume 121; New Tang book, volume 224, No.1; Zi Zhi Tong Jian, volume 232; Ce Fu Yuan Gui, volume 134; collection of edicts in Tang dynasty, volume 121

April, the 8th year of Zhenyuan

Dou was degraded as govern can or of Huanzhou

His daughter Zhenru, a nun, was exiled to Chenzhou; his property and maidservants and concubines were sent to the capital

Old Tang book, volume 136; New Tang book, volume 145

May, the 14th year of Yuanhe

Li Shidao was pacified

Li Shigu’s wife Pei and daughter Yiniang were installed in Dengzhou; Li Zongshi’s wife Wei was released from Yeting

Old Tang book, volume 15; Old Tang book, volume 159;Ce Fu Yuan Gui, volume 150;Tang Hui Yao, volume 39

May, the 3rd year of Dahe

Li Tongjie from Changzhou was beheaded

The emperor ordered to install Li Tongjie’s mother and grandson, wife Cui and son Yuanda in Hunan

Old Tang book, volume 17, No.1; Old Tang book, volume 134

claimed that no rebellion was found and then sentenced them to exile according to the suggestion of Xu Yougong. From the Tianbao to Zhenyuan periods, several cases of framing the rebellion of others appeared, in which there were examples of the exile of wives and daughters of the framed. In December, the 5th year of the Tianbao period (746 A.D.), Li Linfu framed that Du Youlin, the prince tutor, Wangzeng, the History Compiling Officer, Liuji, the Forbidden City guard and others claimed that pictures showed that the crown prince did something wrong and was put into prison to death.” Youling, Ji and Zeng and others were flogged to death, and their corpses were carried to Dali, their wives and children were exiled to distant places, people in Tang and other countries were shocked”.85 On November Dingyou, the 6th year of the Tianbao period (747 A.D.), Li Linfu framed that Yang Shenjin had plotted rebellion. “The emperor ordered 85

Zi Zhi Tong Jian, Volume 215, Xuanzong Tianbao Five in December, Jia Xu, pp. 6874–6875.

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Shenjin and his elder brother Shenyu and Shenming to commit suicide; Jingzhong was flogged 100 times; his wife and children were exiled to Lingnan. In the 11th year of the Tianbao period (752 A.D.), Wang Han, younger brother of Wang Gong, plotted rebellion and was ordered to commit suicide in Sanweichu, his wife and daughter at home were all exiled”.86 In the 2nd year of the Jianzhong period (781 A.D.), Yang Yan and Yu Zhun framed that (Liu) Yan rebelled in Zhongzhou and killed him. His wife and children were exiled to Lingbiao. The court and the commonalty were shocked”.87 The above cases of Du Youlin, Yang Shenjin, Wang Gong, and Liu Yan were all caused by frame. Because no evidence was found, all of them were judged to be “rebellion without harm”. The framed were sentenced to death, and their wives and daughters were exiled. In addition, the existence of the system of the wife of an exiled criminal going with him is an important reason for the exile of women. Laws of the Tang Dynasty stipulated that “those exiled criminals…their wives and concubines shall go with them, if their fathers, grandfathers, sons and grandsons would like to go with them, they shall be permitted”.88 Therefore, exiled criminals’ wives and concubines had the legal duty to go with them, while male relatives may choose whether to go with them or not. On April Wuzi, the third year of the Longshuo period (663 A.D.), Right Prime Minister Li Yifu exiled to Xizhou for a long time because of sorcery and bribe. During Emperor Gaozong’s grant amnesty in the first year of the Shangyuan period (674 A.D.), “the wife of Yifu returned to Luoyang”.89 This is proof of the system of the wife of an exiled criminal going with him. In September, the 8th year of the Yuanhe period (813 A.D.), Wangbo, assistant minister of punishment, presented a memorial requesting exemption of death and exile to the towns of the 5 cities in Tiande, “those who have wives and children could choose to go with them”.90 Until the late Tang dynasty, the law of the wife of an exiled criminal going with him was still emphasized, but this legal duty terminates with the death of the criminal. The wife could choose to return to the native place or stay in the place of exile. According to a memorial presented by the Secretariat-Chancellery in November of the 5th year of Emperor Xuanzong Dazhong (851 A.D.): In the future, those who are sentenced to be long exiled and whose crime amounts to the death penalty but is exempted, their wives should go with them; their children should be permitted if they wish. If the exiled criminal dies, the local authority should not stop his wife and property from leaving, and she should be permitted if she chooses to stay.91

86

Old Book of Tang, Volume 105, Biography of Wang Gong, p. 3232. Old Book of Tang, Volume 118, “Biography of Yang Yan”, p. 3423. 88 Comments on Laws of Tang Dynasty, Volume 3, Famous Cases-Exiled Criminals, pp. 66–67. 89 Old Book of Tang, Volume 82, Biography of Li Yifu, p. 2770. 90 Tang Hui Yao, Volume 40, “Junshang Shenxu”, p. 842. 91 Tang Hui Yao, Volume 41, Degraded and Exiled Officials, p. 865. 87

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4.2 Placement Compared with “exile”, the application of “placement” of women highlights the features of the middle and late Tang Dynasty. “Placement” can be traced back to the 4th year of the Xianqing period (659 A.D.) when Xu Jingzong framed that Zhangsun Wuji had plotted rebellion. The item “April 5th of the 4th year of Xianqing” in Zi Zhi Tong Jian indicates that “The emperor ordered to discharge Wuji from Grand commandant to (military) governor of Yangzhou, and deprived him of his fief. He was placed in Qianzhou and enjoyed the first-rank official treatment.92 Old Tang Book Biography of Zetian indicates that on February 25, the 1st year of the Sisheng period (684 A.D.), the emperor was degraded to be Luling King and was immured in a certain place”.93 About this, both Ce Fu Yuan Gui and the New Book of the South said, “placed in Fangzhou”.94 The placement was originally a punishment measure of immuring officials and aristocrats in distant places while preserving certain political and material treatment, strictly confining their personal freedom. Du Lv Pei Xi mentioned the difference between placement and “three exiles”: (Placement) a residence is provided, or grain ration is supplied, so that the criminal can make a living, this is called “An”…The criminal shall be verified each year, and checked each month, and shall not go to other places willfully. This is the sense of Zhi and that of An, which is quite different from the three types of exiles and in accordance with the nature of the placement.95

Zhang Chunhai pointed out, “When exiling the criminals, depending on the situation, the rulers would to some extent maintain their statuses and treatments, to show to them that the rulers would spare none.”96 The placement has the meanings of degrading and exiling to distance and atoning for one’s crimes. Since the Tiankai period, placement began to become an independent punishment juxtaposed with degrading, enslaving and exile in imperial rescripts. On the 24th of the first lunar month, the 18th year of the Kaiyuan period (730 A.D.), “Those who are degraded, enslaved, exiled to atone for their crimes could be lightened”.97 Tianbao 7th Year Emperor’s Amnesty, “Those who are degraded, enslaved, exiled to atone for their 92

Zi Zhi Tong Jian, Volume 200, April 5th of the 4th year of Xianqing, p. 6314 was placed in Fangzhou p. 11038. of the South Zhangsun Wuji had plotted rebellion. 93 Old Book of Tang, Volume 6, Biography of Empress Zetian, p. 116. 94 Note: Ce Fu Yuan Gui said: “Cui Jingsi liked drinking by playing dice. He was the Governer of Fangzhou at the early period of Zetian’s reign. When Zhongzong was degraded to be Luling King and was immured in Fangzhou, many officials were rude to him”, Ce Fu Yuan Gui, Volume 953, Zonglubu-Buyu, p. 11038. New book of the South, Cui Jingsi was the Governer of Fangzhou in Zetian’s reign, Xiaohe was placed in Fangzhou, many officials were rude to him, only Si treated him politely, New book of the South, Volume 5, p. 71. 95 Wang Mingde (Qing Dynasty). Reading the Laws and Peiyi, Book 4 Placement, collated by He Qinhua et al. The Law Press, 2001, p. 143. 96 Zhang Chunhai, On the Resettlement Penalty in Tang Dynasty, Collected Papers of History Studies, 2011 (4): 58–59. 97 Ce Fu Yuan Gui, Volume 86, Emperors-Forgiveness, No. 5, p. 951.

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crimes could be lightened.”98 The amnesty On March 19th of the 4th year of Emperor Jingzong’s Changqing (824 A.D.) stated, “All the criminals who were not exempted by previous imperial rescripts and placed in other imperial rescripts shall be set free.”99 The punishments of placement are between the punishments of exile and were often applied as lighter punishment of exile. In the first lunar month, Renyin 19th, the 2nd year of the Guangde period (764 A.D.), “The imperial rescript said that Cheng Yuanzhen changed his clothing and take secret actions and would commit a crime, so he was exile to Qinzhou. The emperor considered Yanzhen’s contribution and so ordered that he would be placed in Jiangjing.”100 This was a case of degrading exile to placement. In the 12th year of the Yuanhe period (817 A.D.), Cuizhu, Governor of Zhengzhou, was proven to accept bribes of over 30 thousand Guan. Emperor Xianzong “considered that he was in mourning without an official position, so ordered to temporarily place him in Kangzhou and punish him after his mourning101 ”. Later, because of his late arrival, he was an exile in Kangzhou. This is a case of upgrading placement to exile. In the middle and late Tang, the judicial practice of “placing” female family members of criminals as a lighter punishment for “confiscated officials” was formed and used many times in pacifying the rebellious activities of military governors of outlying prefectures. In August, the first year of the Zhenyuan period (785 A.D.), Niu Mingjun, assistant general in Shuofang, beheaded Li Huaigung, and surrendered. Li Huaiguang resisted the invasion of Tubo (Tibet) and helped the emperor pacify Zhuci. So, the emperor showed mercy on his family: It’s better to keep a son of Huaiguang as the descendant and grant him a house and a farm. Huaiguang’s corpse shall be returned for them to bury. Huaiguang’s wife and sons and daughters shall be sent to Lizhou, placed by Ligao appropriately, to make a living. His daughters who have married and other relatives shall be released.102

After Li Huaiguang died, the authority followed the old practice of no involvement of the married daughters and only sent Huaiguang’s wife Wang and others to Lizhou for placement.103 The Imperial Edict of Pacificing Li Huaiguang on August 16th of the 1st year of the Zhenyuan period said, “It’s better to keep a son of Huaiguang as the descendant”, which shows that maybe at that time, the emperor did not know that all Huaiguang’s sons had died. According to the New Tang Book-Biography of Li Huaiguang, “Immediately after Huaiguang died, his son Wei killed all his brothers and then committed suicide, so Huaiguang had no male offspring.”104 Huaiguang’s sons Wei, Yuan, etc., died so that Huaiguang had no male offspring. The emperor named Yan Baba, Huaiguang’s daughter’s son, as his descendant, which is directly 98

Tang Edicts, Volume 9, Emperor-Amnesty-Tianbao 7th Year Emperor’s Amnesty, p. 52. Ce Fu Yuan Gui, Volume 90, Emperors-Forgiveness, No. 9, p. 996. 100 Zi Zhi Tong Jian, volume 223, January 19th of the 2nd Year of Emperor Daizong Guangde, p. 7159. 101 Ce Fu Yuan Gui, Volume 700, Governor- Corruption, p. 8089. 102 Old Book of Tang, Volume 12, Biography of Dezong, No. 1, p. 350. 103 Old Book of Tang, Volume 121, Biography of Li Huaiguang, p. 3494. 104 New Book of Tang, Volume 224, No.1, Traitorous Ministers-Biography of Li Huaiguang, p. 6378. 99

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related to the practice of exempting married daughters. The article “March Wuchen of the 5th year of the Zhenyuan period (789 A.D.)” in Volume 233 of Zi Zhi Tong Jian: At the beginning, the emperor considered the contribution of Li Huaiguang and wanted to forgive one of his sons, but all his sons and grandsons had died. On the 5th, the imperial edict named Yan Baba, Huaiguang’s daughter’s son, as his descendant, and granted him the name “Li Chengxu”, appointed him the military official in charge of armour storehouse, giving him 1000 liang of silver, to support Huaiguang’s wife Wang and guard his tomb.105

The measures of placing the wife and daughters of the traitorous minister Li Huaiguang and naming his daughter’s son as his descendant would rather be a helpless practice of appeasing military governorship regimes in the middle and late Tang Dynasty than Emperor Dezong’s good governance of considering contribution, forgiveness and prudence punishment. At that time, the north had just been pacified, and there were many presumptuous military governors, so the practice of placing female family members not only punished the criminals according to law but also manifested the political implications of appeasement and conciliation. It is worth noting that the creation and application of placing the family members of military governors exerted a profound and far-reaching influence on the pacification of military governorship regimes in the middle and late Tang Dynasty. In the 14th year of the Yuanhe period (819 A.D.), when Li Shidao in Ziqing was pacified, Shigu, Shidao’s elder brother with a different mother, had died in June of the 1st year of the Yuanhe period (806 A.D.). Shigu’s wife Pei and daughter Yiniang were confiscated in Yeting together with Shidao’s wife Wei at the beginning. In May, the 14th year of the Yuanhe period (819 A.D.), Emperor Xianzong, on the grounds of the punishment on the relatives of traitorous criminals shall be lightened according to the degree, changed the punishment to place Pei and Yiniang in Dengzhou: In the 14th year, Li Shidao was killed. The emperor looked around at the ministers and said, “Although Li Shigu inherited from his grandparents and parents, the court treats him consistently. His wife, the sister-in-law to Shidao, although a member of the traitorous criminal’s family, if according to the degree, shall be given a lighter punishment. Furthermore, although Li Zongshi violated the strict law, his crime is different from rebellion. His wife is from a family of top drawers but is now confiscated in Yeting together with her sons and daughters, which seems to be heavier according to law. Have you noticed this?” The minsters answered, “Your Majesty is very benevolent, and the punishment should be confined to the prime culprit. If his wife and close relatives could be forgiven, it is consistent with the idea of grand fortune.” Therefore, Shigu’s wife Pei and daughter Yiniang were ordered to be placed in Dengzhou. Zongshi’s wife Wei and sons and daughters were first confiscated in Yeting and then released. His servants and maidservants and property were granted to him again.106

Undoubtedly, compared with being confiscated in Yeting, the preferential treatment and compassion meaning of placement is self-evident. In May Jiashen, the 3rd year of the Dahe period (829 A.D.), Li Tongjie from Cangzhou was pacified. Emperor Wenzong, following the practice of treating Li Huaiguang and Li Shigu, 105 106

Zi Zhi Tong Jian, volume 233, March 5th of the 5th Year of Emperor Daizong Zhenyuan, p. 7519. Old Book of Tang, Volume, 159, Biography of Cuiqun, p. 4188.

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ordered to place Li Tongjie’s mother and wife and others in Hunan. According to The Good News of Pacifying Li Tongjie: His mother Su, wife Cui, sons and other family members should be forgiven and placed in vacant places in cities in Hunan.107

In addition, according to Tang Hui Yao, “Li Tongjie’s mother, wife, and son Yuanda, etc., were ordered to be forgiven and placed in Hunan.”108 Li Tongjie’s son may be younger than the age to be punished, so he was placed together. After Tongjie’s failure, Cui Congchang, former confidential secretary of Cangzhou, was also “placed in Shangzhou”.109 In June of the same year, because Tongzhi, younger brother of Li Tongjie, “was long degraded, but not participated in the rebellion. He was also known to have a different mother from Li Tongjie, so he was exempted from punishment. He’d better be placed with his mother in the same area”.110 The above three cases of “placing” criminals’ female family members were all directly related to the emperors’ political strategies of abolishing the separatist regimes. “Placement” was mainly applied as a lighter punishment of confiscation and exile, not only manifesting the emperors’ benevolence and mercy but also achieving the goal of isolating the traitorous parties and promoting public feelings. If the exile of women was mostly judged according to law, then the placement of female relatives of criminals was often in accordance with the situation.

5 Summary Women were one of the important participants in litigation activities in the Tang Dynasty. Based on many factors, such as ethics, social roles and legal status, women in the Tang Dynasty occupied an important position in judicial practice, and their influence spread throughout all litigation links, thus forming a series of exclusive women’s litigation practices, which to a certain extent influenced the judicial trial system in the Tang Dynasty. First, in the field of telling, women in the Tang Dynasty, for the purpose of exonerating their relatives, tended to directly appeal to the emperors, which to a certain extent formulated the practice of tacit consent to women’s overstepping litigation appeal. Because there was no strict concept of final appeal in the Tang Dynasty, laws and decrees had no definite restrictions on the number of complaints made by the litigants, so women’s prosecutions were often accompanied by extraordinary measures such as entangling appeal or self-punishment. Although the Tang Dynasty 107

Degrees in Tang, Volume 125, Politics-Pacification-The Good News of Pacifying Li Tongjie, p. 670. 108 Tang Hui Yao, Volume 14, Captives, p. 374. 109 Song Dynasty Version of Ce Fu Yuan Gui, Volume 925, General List-Suffering from Involvement, p. 3683. 110 Ce Fu Yuan Gui, Volume 150, Emperors-Clemency, p. 1676.

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always forbaded the use of self-punishment, such as ear cutting, face cutting, and stomach cutting, the law did not stipulate that self-punishment was inadmissible, but in practice, in the case of telling the truth, the situation of reducing the sentencing of self-punishment occurred from time to time. Therefore, if the accuser’s grievance was true, the judicial organ could be exempted from the legal liability of the prosecutor’s transgressive complaint and thus form the judicial practice of acquiescence of women’s direct prosecution. Furthermore, in the field of appeal, women’s appeal to government authorities was not preconditioned by incorrect judgments. Even if the case was correctly tried and the punishment was compatible with the crime, female family members of the criminals could still request the forgiveness of the criminals, with the excuse that they were old, lonely, poor, sick, and without support. Feudal authorities usually approved their requirements to manifest judicial ideas such as benevolence, prudent punishment, filial piety and mercy. Making use of their weaknesses and taking morals and filial piety as the excuse, women made all kinds of illegal appeals to the judicial organs. Women generally stuck to the basic idea that the status of etiquette and morals was higher than the law, and therefore, the practice of coercing and kidnapping law with filial piety and morals existed for a long time. In addition, the actual operation of the confiscation in the Tang Dynasty was not quite consistent with decrees and laws. The expansion of the range of people tied up to the cases, and arbitrary changes in convicted crimes occurred frequently. Directly contradictory to the article “female relatives who do not live with the criminals shall not be involved” in Comments on Laws of Tang Dynasty-Theft, in the judicial practice of Tang Dynasty, there were cases of confiscating female family members of the criminals who left home, i.e., even wives and daughters of the criminals who lived in seclusion as nuns couldn’t escape from the misfortune of being confiscated. The Bureau of Yeting and Si Nong Si were major institutions to register and confiscate family members of criminals. With their special statuses and talents, confiscated women exerted great influence on palace politics in the Tang Dynasty. Finally, compared with enslavement, exile and placement are complementary ways of treating female family members of criminals. The existence of exiling the wives of criminals together with them is an important reason for the exile of women. In the middle and late Tang Dynasty, the judicial practice of placing female family members of criminals as a form of reducing the severity of punishment on criminal officials came into existence, which was applied many times in pacifying military governors of outlying prefectures. As a lighter punishment than enslavement and exile, “placement”, while manifesting the rulers’ benevolence and mercy, can achieve the purpose of isolating the rebels and promoting public feelings. Compared with “exile”, the application of “placing” women as a punishment manifested the feature of times in the middle and late Tang Dynasty.

Chapter 3

Servants

The traditional rituals emphasized, “There are differences between the distinguished and the humble, and they should observe the order”.1 The laws of Chinese dynasties had all forbidden slaves to accuse their lords, and the laws of the Tang Dynasty adapted to the great changes in the family structure. It set a legal obligation for domestic servants and slaves to tolerate and conceal the crimes of their masters; thus, it was strictly forbidden to accuse their masters. The academic circle has been discussing the issue of servants accusing masters in the Tang Dynasty for a long time, and the existing achievements focus on the discussion from the perspective of slaves resisting oppression and their legal status. Unfortunately, I have not seen any special interpretation of the legal status of servants in litigation of the Tang Dynasty. Therefore, it is necessary to explore historical materials and make vertical analogies, taking the nature and connotation changes of Tang Dynasty’s servants as a clue to further explore the issues concerning servants accusing masters, such as legislative evolution, types of crime, actual disposal, causes of formation, and the influence to the later generations, so as to fully understand the legal status of the humble and the operational status of the law in the Tang Dynasty.

1 Legislative Evolution of Servants Accusing Masters Servants’ accusing of their masters seriously infringed on the traditional concept of honor and subordination and was absolutely prohibited by the laws of the Qin and Han dynasties. According to The Bamboo Slips of Qin Dynasty of Shuhudi in Yunmeng County-Legal Questions and Answers, “Children accusing their parents, or servants and maid servants suing their masters should not be taken seriously if it does not happen in the court… If the accusations occur, the accusers are guilty.”2 The Second 1 2

The Interpretation of Big Da’ Book of Rites, Volume 12, Zhonghua Book Company, 1983, p. 225. Bamboo Slips of the Qin Dynasty’s tomb of Shuhudi in Yunmeng County, p. 118.

© Science Press 2021 X. Chen, A Study of Criminal Proceeding Conventions in Tang Dynasty, https://doi.org/10.1007/978-981-16-3041-5_3

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Year Law-the Law of Accusation in the Han dynasty also said, “When children accuse parents, women accuse fathers-in-law, servants sue masters and their parents and wives, they should not be accepted but should be beheaded”.3 The above provision became the direct source of the Tang Dynasty’s legislation to punish servants accusing masters. “The humble must not interfere with the noble; servants must not bully masters. Now that the foundation of enlightenment is firm, so there will be no chaos”.4 The prohibition of servants accusing masters is a direct manifestation of the principle of tolerance and concealment in the inherent law of China. The principle of tolerance and concealment is based on the Confucian thought of “filial piety” and stresses that “fathers and sons conceal each other and seek upright in it”. At first, the principle was limited to concealing crimes between fathers and sons. The Han Dynasty advocated “the mutual concealment among relatives” and began to write into laws in the fourth year of the Dijie period of Emperor Xuan (66 B.C.),5 limiting the scope of tolerance and concealment to immediate family members within three generations. While emphasizing the concept of blood relatives, it stressed the absolute maintenance of the authority of elderly individuals over younger individuals. The laws of the Tang Dynasty further developed the principle of “mutual concealment for relatives” into “mutual concealment for people living together”. According to the article “mutual concealment for people living together” in Comments on Laws of Tang Dynasty-Ming Li, “When domestic servants and slaves do not conceal for their masters, they will not be accepted. If it is not a more serious crime than ‘treason’, their masters will not be convicted”.6 The law presupposed the legal fact of sharing property and living together and recognized the identity of “family members” obtained by the servants because of maintenance or employment7 ; the law extended the principle of tolerance and concealment for the relatives of traditional law on the basis of hierarchy. In the second year of the Zhenguan period of the Tang Dynasty (628 A.D.), the judicial principle of absolute banning servants accusing masters was established; even major crimes such as rebellion were not allowed to uncover. The legislative spirit was quite a legacy of the Qin and Han Dynasties. According to Zhenzuan Zheng Yao: The law of servants accusing masters of rebellion is very harmful and must be removed. If there is a rebellion, it is certainly not planned by one person but planned with others instead; what many people plan certainly leads to others’ discussion, how can they be told by servants? From now on, all cases concerning servants accusing masters will not be accepted, and the servants will be executed.8

As a model for dealing with similar cases, the law in the second year of the Zhenguan period was often cited by the noble in later generations. However, rebellion 3

Bamboo Slips of the Han Dynasty tomb 247 of Zhangjiashan, p. 27. Tang Hui Yao, Volume 51, Shi Liang Shang, p. 1046. 5 The Book of Han, Volume 8, Biography of Emperor Xuangdi, p. 251. 6 Comments on Laws of Tang Dynasty, Volume 6, p. 130. 7 Study on Criminal Law in Past Dynasties·Cohabitation, p. 1328. 8 Zhenzuan Zheng Yao, Volume 8, p. 239. 4

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and defection are related to national security, and forbidding all accusations may cause some danger. In the fourth year of the Yonghui period (653 A.D.), Yonghui Lv Shu properly defined the scope of servants accusing masters and prohibited servants from exposing the general criminal offence of masters and their relatives. If masters committed the major crime of rebellion, defection and treason, that is, they became “disloyal men”, then the law and discipline rite of the hierarchy should give way to the national interest, so servants were allowed to report. The article “Domestic servants and slaves accusing masters” in Comments on Laws of Tang Dynasty-Lawsuit stipulated the penalty of domestic servants and slaves accusing the crimes of masters and their relatives, “domestic servants and slaves shall be hanged for accusing masters except for rebellion, treason and defection (original note: the accused should be considered as confessing their crimes); those who accuse the close relatives and grandparents of their masters will be exiled; those accuse the relatives more distant than the cousins of their masters should be sentenced to one-year’ imprisonment. In regard to serious false accusations, the punishment for those who accuse the farthest relatives of masters is increased by one degree from that of a normal person; accusing close relatives and not very close relatives, punishment is increased by one degree separately”.9 This is in line with the principle of “mutual concealment for people living together”, and they complement each other. On May 28th, the first year of the Jianzhong period of Emperor Dezong (780 A.D.), the imperial edict reaffirmed the spirit of Laws of the Tang Dynasty and stipulated that “Servants accusing masters, except for rebellion, should be regarded as masters voluntarily surrender themselves and servants shall be hanged in accordance with the law”.10 However, this imperial edict also did not actually implement. Li Ji, the Chang’an County Magistrate during Emperor Dezong, was accused by servants. Huo Yan, the Wannian County Magistrate, was sentenced due to his servants.11 At that time, there was chaos that “the humble were used to betray, and masters, instead, were afraid of them. False accusations occurred from time to time and could not be judged properly”. In the first lunar month of the 3rd year of the Jianzhong period (782 A.D.), Zhao Zong, the son-in-law of Honorable Father Guo Ziyi, was accused by his servant Dangqian of doing evil deeds.12 It stirred the court and the commonalty and horrified officials. Since then, in the dynasties of Jing, Xian, and Xuan, there have been many examples of servants accusing masters. On October 9th, the thirteenth year of the Dazhong period (859 A.D.), General Pardon of Yi Zong’s Throne reaffirmed the ban on servants accusing masters. This imperial edict paid special attention to the problem of servants and domestic servants accusing masters in practice:

9

Comments on Laws of Tang Dynasty, Volume 24, p. 438. [Japan] Niida Se, History of China’s legal system, Shanghai Ancient Books Publishing House, 1975, p. 97. 10 Old Book of Tang, Volume 125, p. 3546. 11 Nan Bu Xin Shu, Volume 1, p. 6. 12 Old Book of Tang, Volume 125, p. 3546.

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3 Servants The problem of the sinister is severe. For example, officers, domestic servants, and servants may be dispatched for their fault, and they are so resentful that they will make false accusations. They will pick up the subtle things of their masters to beg for mercy, but if they do not get what they want, those subtle things will pose a threat. They may secretly deliver anonymous letters or arbitrarily deliver indictments. If this situation does not stop, it may harm innocent people. From now on, according to laws and the edicts of September 10th, the second year of the Dazhong period and August 2nd, the sixth year of the Dazhong period, the anonymous documents should be burned down on the spot, and the people who brought them should not be detained or reported to the superior. For those who arbitrarily deliver indictments, their duties should be checked, and their penalties should be increased. If the origin of indictments truly violates the imperial edict, it is the same crime as the accuser if the indictments are to be removed without burning it. The censor officers and officials were entrusted with checking those who may deliver anonymous indictments and do illegal deeds and capturing and sending those people to the government for severe punishment when finding them.13

The so-called “employed workers” are the people who were employed to work, “employed workers, that is, employees. It means that employed workers can be trusted”.14 Because employed workers need to do chores, they were in the same position as slaves. Hu Sansheng said in the annotation of Zi Zhi Tong Jian that “Yong, means employ. The employed workers are called Yong”.15 In the Tang Dynasty, Yuan Weizhi mentioned, “slaves and employed workers”,16 and Bai Letian said “Zanghuo and employed workers”17 ; these are all examples of employed workers and servants both belonging to the humble. The so-called “Lang Lord” was the honorific of disciples and servants toward masters in the Tang Dynasty. According to the “servants are Bang” clause in Li Kuangyi’s Collections of Zi Xia in the Tang Dynasty, “those who call servants by bang…the word bang is similar to the word bow, that means servants should not only greet their masters with a bow, but do so to all the guests”.18 Since Tang Dynasty, “Lang” has become the general name of masters called by servants.19 Compared with domestic servants and slaves, the employed workers’ personal attachment to the owners was relatively slack. The two parties only formed an employment relationship within a certain period of time due to employment contracts. Employees “need the rush to work after employment”,20 and. They actually formed a master-servant relationship with their masters during the existence of the employment relationship. Unlike domestic servants and slaves, employees were relatively independent in their personalities, their status was close to civilians, and they had the right to choose their own owners21 while “earning 13

Finest Blossoms in the Garden of Literature, Volume 420, pp. 2126–2127. Ce Fu Yuan Gui, Volume 926, p. 10743. 15 Zi Zhi Tong Jian, Volume 75, p. 2390. 16 Anthology of Yuan Zhen, Volume 58, p. 610. 17 The Revision of Anthology of Bai Juyi, Volume 69, p. 3728. 18 Zi Xia Ji, Volume 2, p. 21. 19 Ri Zhi Lu Jiao Zhu, Volume 24, p. 1373. 20 The Authentic Records of Dunhuang’s Social and Economic Literature, Volume 2, p. 65. 21 Chao Ye Qian Zhai, Volume 6, p. 133. 14

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money”.22 However, because the employed workers were doing menial work and being ordered by others, their legal status is similar to slaves. Kong Yingda said, “The male servants are called Chen, and the female servants are called Qie”,23 thus putting slaves and employed workers in the same category. Bai’s Six Posts Category Collection also mentioned “servants and humble slaves”24 and directly interpreted “servants” as “employed workers”. In the Tang Dynasty, the bureaucrats and the rich families were huge and prosperous, so masters could not effectively monitor servants. In addition, there may be some arrogant slaves because of their masters’ favor, and they communicated with outsiders. There were many people who reported their masters’ privacy by “delivering anonymous letters, or arbitrarily delivering indictments”. In the judicial practice of the Tang Dynasty, some of the anonymous accusers fabricated false names and falsely accused their masters of committing crimes, or they just did not use their real names, anonymously and deliberately framing others.25 According to Comments on Laws of Tang Dynasty, those who deliver anonymous letters to accuse others must be exiled to a place two thousand miles away.26 Although it was legal to hand in indictments, it should be strictly in accordance with the principle of level jurisdiction and follow the relief procedure of county, state (fu), left and right prime ministers in Council of Decision-Making, three divisions, submitting a memorial to the emperor and other procedures. If the accusers bypass the immediate leadership, they shall be beaten forty times by a plank in accordance with law.27

2 An Analysis of the Identity of Servants as Family Members People in the Tang dynasty had a broad understanding and expression of the identity of various humble men. The descriptions of the specific identities of the servants who accuse masters in literature handed on from ancient times, such as the Book of Tang and Ce Fu Yuan Gui, are confusing and show that servants were family members. According to Tang Hui Yao, in the first lunar month of the third year of the Jianzhong Period (782 A.D.), Zhao Zong, Animal Husbandry Minister, the sonin-law of Guo Ziyi, was informed against by his servant Dangqian of doing sinister deeds,28 but according to Old Book of Tang-Biography of Guo Ziyi and His Son Yao, Zhao Zong, Animal Husbandry Minister, son-in-law of Ziyi, and others were 22

Old Book of Tang, Volume 105, p. 3224. Shang Shu Zheng Yi, Volume 6, p. 133. 24 Bai Shi Liu Tie Shi Lei Ji, Volume 6, Cultural Relics Publishing House, 1987. 25 Legal thoughts on the anonymous accusation of Tang Dynasty, Journal of Humanities, 2008, (3), p. 167. 26 Comments on Laws of Tang Dynasty, Volume 24, p. 439. 27 Comments on Laws of Tang Dynasty, Volume 24, p. 447. 28 Tang Hui Yao, Volume 51, p. 1046. 23

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“betrayed by family members, and were deposed in succession”.29 Here, the concepts of “servants” and “family members” are interlinked. In February, the eighth year of the Yuanhe period (813 A.D.), Yu Min, Sacrificial Ceremony Minister, son of the prime minister, dismembered a servant named Liang Zhengyan and threw him into pigsty. The Old Book of Tang Biography of Yudi recorded that “Wang Zairong, a servant of Yu Min, accused him at Yintai Gate”. New Book of Tang said that “minor servant sued his master, and asked the catcher Shen Bi and other servants to send him to jail in censorate”.30 However, Ce Fu Yuan Gui said that Wang Zairong was “the employed worker of Sacrificial Ceremony Minister Yu Min”.31 Therefore, there were three ways to describe the identity of Wang Zairong: “servant”, “minor servant” and “employed worker”. In October, the first year of the Baoli period (825 A.D.), An Zairong accused Wu Zhao, the former Chief of Staff in the mansion of Prince Yuan, of framing the prime minister. Both the Old Book of Tang Biography of Jingzong and Ce Fu Yuan Gui called him the “employed worker” of Liu Zungu, while. Biography of Li Fengji and Biography of Pei Du called him the “follower” of Liu Zungu. The person who accused Chief Justice Ma Shu of collecting war jackets made from rhinoceros privately in the Dazhong period was called “the follower Wang Qing” by the Old Book of Tang,32 while in the New Book of Tang33 and Official Documents of Dong Guan,34 his identity was “servant”. Thus, “follower” seems to equal to “servant”. In the litigation field of the Tang Dynasty, titles such as servant, family member, minor servant, employed worker, and follower were complicated and used successively. This phenomenon was closely related to the changes in the family structure in the Tang Dynasty and the evolution of the principle of tolerance and concealment. During the Sui and Tang Dynasties, the self-sufficient economic model took aristocracy as the main body and was still dominant in social life. The law of the Sui and Tang Dynasties also inherited many old systems in the Wei, Jin, Northern and Southern Dynasties. Based on the actual needs of farming, doing chores, subordination, military service, and giving gifts,35 the rich people in the Tang Dynasty kept many slaves to provide them service. At the beginning of the Zhenguan period, Li Jingxing, the governor of Yingzhou, kept “thousands of minor servants”.36 In the period of Gaozong, Li Yifu robbed others’ slaves, who all went home separately after he collapsed. In the 3rd year of the Longshu period (663 A.D.), News of Victory of Liu Xiangdao the Marshal in Hejian Road Defeating Li Yifu the Thief in Tongshan said that “slaves and servants were mixed together and released in chaos, and each knew

29

Old Book of Tang, Volume 120, p. 3468. New Book of Tang, Volume 172, p. 5200. 31 Ce Fu Yuan Gui, Volume 934, p. 10824. 32 Old Book of Tang, Volume 176, p. 4570. 33 New Book of Tang, Volume 97, p. 3884. 34 Dong Guan Zou Ji, Volume 2, Zhonghua Book Company, 1994, p. 111. 35 History of slaves in Tang Dynasty, Shanghai People’s Publishing House, 1986, pp. 164–189. 36 New Book of Tang, Volume 172,110, p. 4123. 30

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his own family and rushed into it”,37 from which we can see the huge amount of his servants. In the period of Dezong, Guo Ziyi, the prince of Guoyang, had “three thousand family members”,38 so that “servants do not know each other though they enter or exit the same gate”.39 Here, the meaning of the word “family member” should be between father, brother, wife, son and slave; it can also include many kinds of people, such as employed workers and the people who sold their bodies.40 In the Guangqi period of the Tang Dynasty, Jinshi Su E said that people in the Tang Dynasty “take servants as their family members”.41 Du Mu wrote The Epitaph of Pei, the Former Inspector of Yongfu, and he recorded that “Pei Xiyan would tell family members if they made mistakes, and if they did not make changes, they would be expelled to be a civilian instead of selling them in the market”.42 There is no doubt that the so-called “family members” here referred to slaves. Society in the Tang Dynasty emphasized that there is a difference between noble and humble and between common and humble society. Scholars, farmers, workers, and businessmen were all common people, while workers, musicians, officials, miscellaneous households, domestic servants, slaves and maid servants were classified as humble.43 The identification of the status of all kinds of people is subject to records in residence booklets and account books. The residence booklet was reported by the host of the household, which is the original information that recorded the identity, name, gender, age, etc., of the common and humble family members. The government compiled the account books accordingly. According to the New Book of Tang-Record of State Finance and Economy: Every lane should have a residence booklet, and it should be compiled into the account book of the village according to time and geography at the end of the year and then compiled into account book of the county, state, and the Ministry of Revenue. After having the account book, the revenue and expenditure will be arranged according to the tax revenue of the coming year.44

Studying residence booklets and account books of Tang unearthed in Turpan, we found that when referring to slaves, there were only last names without first names; when referring to domestic servants, there were both first and last names, “for they are humble men who are given the first name to be common people without leaving their masters”.45 The status of servants’ daughters is similar to that of domestic servants, so their account methods were the same. The Additional Account Book of Leaked 37

Old Book of Tang, Volume 82, p. 2770. Zi Zhi Tong Jian, Volume 227, p. 7303. 39 Record of What Feng Heard and Saw, Volume 5, Zhonghua Book Company, 2005, p. 45. 40 The slaves, domestic servants and servants, family members, the ordinary people who serve in the Buddhist temple in Tang Dynasty, Study on Chinese History, 1996, (3), pp. 53–63. 41 Su’s Romance, Volume 1, Commercial Press, 1939, p. 8. 42 Anthology of Fan Chuan, Volume 9, Shanghai Ancient Books Publishing House, 1978, p. 143. 43 A Brief Introduction to the Society of Tang Dynasty, Commercial Press, 1936, p. 11. 44 New Book of Tang, Volume 51, p. 1343. 45 Taisho Business Association, Taisho Shinshu Tripitaka, Volume 45, Liang Chu Qing Zhong Yi, New Wenfeng Publishing Co., Ltd., 1983, p. 845b. 38

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Servants’ Daughters and Slaves in the Dynasty of Wuzhou was discovered in tomb number 228 in Astana of Turpan, and it registered information such as names and ages of slaves, domestic servants, and servants’ daughters into different categories. The former part [64TAM35: 42(a)] registered twenty-one male servants, including Yide, Qiusheng, Shagui, and Luozhou; twenty-nine female servants, including Sishu, Sifu, Ashi, and Qili; three domestic servants, including Gong Juju, He You, and Cao Mou; and four servants’ daughters, including Wang Xiang, Fan Zhi, Shi Duobu, and Shi Feiluo. The second part [64TAM35: 43(a)] registered two servants’ daughters, Le Zhunzi and Lu Meinv, and fifteen female servants, including Sixiang, Maner and Liuye. It said at the bottom of the account book that “those are names of domestic servants, servants’ daughters, servants and slaves that were missed from account books. Now it has been replenished and completed. The name of the year in this document is the same as the residence booklet before”.46 The Account Book of Domestic Servants and Slaves in the Tang Dynasty [72TAM187: 211(b)] was discovered at tomb number 168 in Astana, and it also classified domestic servants Ma Xiaoming and Cao Rongxing and servants Diancang and Yunfu and slaves Hesheng and Qiuxiang into three different categories.47 The personality attributes and social ranks of the three kinds of people were quite different. According to The Decrees of Household of Tang Dynasty, “the head of the lane is responsible for making the residence booklet of his region, and should register the ages of all the family members”.48 The reference of “family member” here deserves attention. The Residence Booklet of Yihe Lane of Xuanquan County of Dunhuang County of Sha State in the Forth Year of Dali Period (769 A.D.) (number 514), which was discovered in Dunhuang, listed servants Luohan, Funu, Anan and slave Baozi after the head of household Suo Suli, his mother Fan, his wife Fan, his son Youruan, and Zhang the wife of Ruan, Qiyue the son of Ruan.49 The Account Book of Shida in Some Year of Zhenguan Period of Tang Dynasty also listed servants Fengdui, Fengfu, Fengduo, Fengzhu and slaves Duolan and Chunxiang after male Shida (Huang) and female Wenying (little daughter).50 Comments on Laws of Tang Dynasty said that “family members are not limited to the common or the humble”.51 Although domestic servants, servants’ daughters and slaves belong to the humble, account books listed them after the heads of the household and their wives, concubines, sons and daughters. The legal fact that domestic servants and slaves were family members due to personal attachment was confirmed by the officials of the Tang Dynasty through residence booklets and account books, and the absolute differences between the common and the humble in the Tang Dynasty gradually faded. Thus, in the name of “family 46

Unearthed Documents in Turpan (Volume 7), Cultural Relics Publishing House, 1986, page 463. Unearthed Documents in Turpan (Volume 8), Cultural Relics Publishing House, 1987, page 452. 48 [Japan] Gleaning on Laws of Tang Dynasty—The Ninth Decree of Household, Changchun Publishing House, 1989, page 148. 49 The Interpretation of Authentic Dunhuang’s Social and Economic Literature (Volume 1), Catalogs and Documentations Publishing House, 1986, p. 192. 50 Unearthed Documents in Turpan (Volume 6), Cultural Relics Publishing House, 1985, p. 103. 51 Comments on Laws of Tang Dynasty, Volume 8, p. 174. 47

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members”, the servants of the Tang Dynasty had the qualifications of legal subjects to a certain extent. Although in residence booklets and account books, the classification of the humble, including domestic servants, servants’ daughters and slaves, is clear, the subtle differences among them had become obscure because they all belong to their masters and do the same humble work. The special phenomena that servants, minor servants, employed workers and followers who accuse masters can refer to the same thing in historical documents, and it is regarded as a true reflection of the profound changes in the family structure and the relative improvement of the status of the humble in the Tang Dynasty. The important expression of this change in the legal system is the establishment of the principle of tolerance and concealment. Comments on Laws of Tang Dynasty said that “domestic servants and slaves are private servants”.52 In view of the wide variety of titles of the humble in the Tang Dynasty and their concepts being too broad, we use the collective name “servants” to refer to domestic servants, slaves, followers and other humble men to facilitate expression.

3 Types of Crimes of Servants Accusing Masters In the Tang Dynasty, while domestic servants and slaves had the right to sue masters of rebellion, other general criminal offences were not allowed to report in accordance with the law. However, in the Tang Dynasty, “humble was used to betray, and masters, instead, were afraid of them. False accusations occurred from time to time and could not be judged properly”.53 Throughout the judicial practice of the Tang Dynasty, whether it was in prosperity or chaos, the phenomenon of servants accusing masters was endless. The crimes involved in the cases were full of evil examples that broke the law and even formed a litigation practice of servants accusing masters. The prohibitory article of punishing servants accusing masters in the Laws of Tang Dynasty existed in name only.

3.1 Rebellion Rebellion refers to “do harm to the state”.54 In the third year of the Zhenguan period (629 A.D.), mad man Xinxing said that Pei Ji might become an emperor, then his servant Gongming accused him to the emperor. According to the imperial edict in the second year of the Zhenguan period (628 A.D.), servants who accused their masters should be decapitated, and the judge should ignore accusations. However, 52

Comments on Laws of Tang Dynasty, Volume 22, p. 407. Old Book of Tang, Volume 125, p. 3546. 54 Comments on Laws of Tang Dynasty, Volume 1, p. 6. 53

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Emperor Taizong himself did not abide by the law and listed four capital crimes of Pei Ji, including “concealing demon’s word that he could become an emperor”.55 Eventually, he was imprisoned in Jiaozhou and exiled to Jingzhou. In March, the second year of the Shangyuan period (675 A.D.), Gaozong wanted to let Empress Wu act as regent, Hao Chujun, the head of the secretariat, persuaded him not to do so; thus, Hao was at deep enmity with Empress Wu. In April Wuxu, the 4th year of the Chuigong period (688 A.D.), there was “a servant lodging a false accusation that Xiangxian (the grandson of Hao Chujun) had plotted rebellion”.56 This so-called “rebellion” was actually an excuse for Empress Wu to kill dissidents.

3.2 Defection Defection means “leaving one’s own country and joining an opposing country”.57 Comments on Laws of Tang Dynasty further interpreted this as “someone betrays his own dynasty and goes to a foreign country for shelter, e.g., goes against his own country when there is an uprising in the city, or escapes to a foreign country with the land as a gift.” In the last years of the Tianbao period, Xu Yan, the censor, was trapped in the middle of the enemy: “he tried to make his family seek the government for help, but was reported by domestic servants. He was blocked and interrogated, and there were many people discussing penalty towards him within a day”.58 According to the inscription on the memorial tablet of his tomb, he “was against order, and took disease as an excuse not to take office”. Because of the conspiracy to contact the court, he was convicted of “defection”.

3.3 Spy In the 2nd year of the Zhide period (757A.D.), when the rebel forces led by An Lushan were having high morale, “Zhang Qian of Fengxiang was accused by his servant Fuzi of being a spy for the rebel forces”.59 Annotation of Classics by Lu Deming said that “spy” was called “die” in ancient times, “using enemy spies to provide false information to the enemy is what we call spy today”.60 In the fourth year of the Zhenyuan period (788 A.D.), Right Dragon General Li Jianyu was trapped in Turpan and finally ran away. However, “he was lodged a false accusation of having 55

Old Book of Tang, Volume 57, p. 2289. Zi Zhi Tong Jian, Volume 24, April 5 of the Fourth Year of Empress Zetian Chuigong Period, p. 6448. 57 Comments on Laws of Tang Dynasty, Volume 1, p. 8. 58 Anthology of Yan Lugong, Volume 8, p. 55. 59 Ce Fu Yuan Gui, Volume 934, p. 10824. 60 Annotation of Classics, Volume 16, Commercial Press, 1929, p. 241. 56

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secret communication with Turpan by his servant”61 and was released by Dou Shen later. According to the article “Notice before going on a punitive expedition” in Comments on Laws of Tang Dynasty, “Jian means come and go, die means spying on, and passing national news to the enemy”.62 Therefore, “spy” and “conspiracy with foreign countries” should be convicted of spy. According to the law, it is not appropriate for servants to accuse their masters, and the government should ignore it.

3.4 Sorcery “Making witchcraft poison in a mysterious way” is one of the specific forms of “immorality” under ten evil terms. Laws of the Tang Dynasty said that “one who practices sorcery is full of craft and cunning that people cannot even name them. People all think that evil customs and sinister acts are wrongful, because they all want to make people miserable and dead”.63 Interpretations on Laws of Tang Dynasty further explained that “Even ghosts are puzzled by human beings’ evil deeds, and humans are treated like animals. Telling evil ghosts people’s names can make people get ill and go mad to do harm to their lives. It’s sinister and wrongful”.64 In the second year of the Changshou period (693 A.D.), servant Tuan’er “lodged a false accusation of (Dou and) the Empress Shuming (Liu) using evil magic to kill people”.65 The two women were killed at the same time and were buried in the palace secretly; no one could find them. In the same year, Pang, the wife of Dou Xiaoshen, prefectural governor of Ruizhou, “was accused by servants of using wine to sacrifice God in the midnight”.66 She was sentenced to death, but with the help of Xu Yougong, the censor, she finally got rid of the capital sentence and was exiled to Lingnan. Sorcery is one of the ten evils; although it was not a crime in the scope of general amnesty, it is not allowed to be accused by servants according to law.

3.5 Corruption According to laws in the Tang Dynasty, there were only six ways of corruption: “robbing, stealing, accepting bribes by abusing power, accepting bribes without abusing

61

Old Book of Tang, Volume 136, p. 3746. Comments on Laws of Tang Dynasty, Volume 16, p. 307. 63 Comments on Laws of Tang Dynasty, Volume 1, p. 10. 64 Interpretations on Laws of Tang Dynasty, Volume 1, Heilongjiang People’s Publishing House, 2005, p. 133. 65 Old Book of Tang, Volume 51, p. 2176. 66 New Anecdotes of Tang Dynasty, Volume 4, Zhonghua Book Company, 19,849, p. 57. 62

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power, receiving the property of subordinate officials, and committing corruption”.67 The item “Li Wei of Huayang” in the 122 volumes of Tai Ping Guang Ji citing Yi Shi said that in the Tianbao period, “Li Wei accepted bribes when working as a judge and was accused by his servant”.68 Zhang, the governor in Jiannan, pressed Shenwen on the floor, beaten him sixty times with a plank, exiled him to Lingjiao, and finally died on his way. In the 1st years of the Dali period, Shan Chaojun, the craftsmanship officer, stole three horses from Pei Gao with his servants, and “the whole thing was exposed by his servant”.69 The things that Shan Junchao stole was worth seven thousand guan, and he was degraded to work in Xishan, Jiannan, and the three servants who stole the horses with him were beaten to death. Although both Li Wei’s accepting bribes and Chaojun’s stealing horses involved corruption, they belonged to ordinary criminal cases, beyond the scope of servants accusing masters according to law.

3.6 Murder Murder in the Tang Dynasty was divided into “premeditation” and “conspiracy”. In September, the 1st year of the Baoli period (825 A.D.), “An Zairong, the servant of Liu Zungu, Weapons Reservoir Minister, accused Wu Zhao, the former Chief of Staff of Prince Yuan, of murdering the prime minister Li Fengji, and asked the three divisions to interrogate him”.70 According to Ce Fu Yuan Gui, Wu Zhao heard that Feng Ji prevented himself from being promoted, so he wanted to kill Feng Ji. Later, “(Zhang) Shaoteng leaked secret to (An) Zairong, Zairong then reported by indictment, and put him into jail”.71 According to the item “murder” in Comments on Laws of Tang Dynasty, “the creator means the original person who wanted and planned to murder, whether he directly involves in the action or not, will be regarded as the first criminal and sentenced to death”.72 The three divisions affirmed his crime and ordered that the creator Wu Zhao was beaten to death in Jingzhaofu. The laws in the Tang Dynasty did not prohibit servants from accusing other common people, and this case may involve some important officials, such as the prime minister, so the government accepted and heard this case.

67

Comments on Laws of Tang Dynasty, Volume 4, p. 88. Tai Ping Guang Ji, Volume 122, p. 860. 69 Ce Fu Yuan Gui, Volume 930, p. 10776. 70 Old Book of Tang, Volume 17, p. 517. 71 Ce Fu Yuan Gui, Volume 153, p. 1714. 72 Comments on Laws of Tang Dynasty, Volume 17, p. 329. 68

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3.7 Others There were two other cases of servants accusing masters, and their specific causes were unknown. One occurred in the first lunar month, the 3rd year of the Jianzhong period (782 A.D.), “the Emperor Horse and Carriage Minister Zhao Zong, son-in-law of Guo Ziyi, was informed against by his servant Dangqian of doing sinister deeds”.73 The second occurred in May, the first year of the Baoli period (825 A.D.), Shaju, the servant of Xie Shaojv, the Chief Constable of Prince Qiong, accused “Shaojv of being wrongful”.74 Being wrongful means “do not follow laws”.75 The specific meaning of “doing sinister deeds” and “being wrongful” reported by servants is not known because of the lack of literature.

4 Disposal of Cases of Servants Accusing Masters “There is a strict division between masters and servants, so that the possibility of rebellion is prohibited”.76 On the basis of inheriting the legislative experience of the former generations, Comments on Laws of Tang Dynasty established three principles of handling the cases of servants accusing masters: first, slaves and domestic servants who accused masters and their relatives of general crimes should be hanged; second, when it involved rebellion, defection, treason, servants were allowed to lodge accusations for the protection of national interests; third, if the situation of servants abetted to accuse masters is true, then servants should still be hanged in accordance with the law, and abettors would be demoted and sent three thousand li away.77 As mentioned earlier, the decrees and imperial edicts in the Tang Dynasty repeatedly demanded strict compliance with the prohibition of servants suing masters, but the specific disposals of cases were mostly different from the spirit of law. It can be divided into three categories when examining instances of servants accusing masters.

4.1 Pardoning Masters and Punishing Servants The Laws of Tang Dynasty prohibited servants from accusing masters of committing crimes other than rebellion. Once judges found out that the cases were not true, then the servants would be hanged. In the 2nd year of the Zhide period (757 A.D.), Zhang Qian of Fengxiang County was accused by his servant Fuzi of being a spy for the rebel forces, but after being interrogated by three divisions, it turned out to be not 73

Old Book of Tang, Volume 125, p. 3546. Ce Fu Yuan Gui, Volume 933, p. 10809. 75 Book of Han, Volume 28, p. 1654. 76 Gai Yu Cong Shu, Volume 42, Shanghai Commercial Press, 1957, p. 942. 77 Comments on Laws of Tang Dynasty, Volume 24, p. 446. 74

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true. Emperor Suzong said, “Servants accusing masters is a violation of common sense. Using falsehood to falsely accuse others of not obeying the law is so full of hatred that they even want to kill masters. I passed him to the secretariat to be interrogated, and his guilt was affirmed and was sentenced to be killed in front of the public in Fengxiang County”.78 In the 11th year of the Yuanhe period (816 A.D.), two servants of Wang Ji accused him of changing his father E’s will and concealing worship. Emperor Xianzong kept the servants and sent eunuchs to the east capital to check his property. The Old Book of Tang Biography of Wang E said that E accepted the Commander’s Seal and served as the military governor and stayed in his area for more than twenty years. “The wealth of the family is richer than that of the region”.79 Prime Minister Pei Du thought that checking Wang E’s property may lead to suspicion of military governors and generals, Emperor Xianzong then “ordered eunuchs go back right away, and the two servants were killed in the Prefecture of Jingzhao”.80 The disposal of the above two cases basically followed the spirit of law, emphasized the distinction between masters and servants, and only slightly increased the sentencing to servants who accuse masters. In the 1st year of the Baoli period (825 A.D.), a servant named Shaju accused Xie Shaojv, the Staff Chief of Prince Qiong, of being wrongful. Emperor Jingzong authorized the Imperial Office Bureau to check and found that the accusation was false. “Shaju exiled to Lingzhou, and Shaojv was released”.81 The disposal of this case also took the principle of pardoning masters and punishing servants in the Laws of Tang Dynasty, but the punishment on the servants was reduced. Shaju was only beaten, and still lived around. The sentence seems to be inappropriate.

4.2 Pardoning Servants and Punishing Masters In the judicial practice of the Tang Dynasty, there were a large number of ordinary criminal cases of servants accusing masters; the scope of these cases is beyond the rules of law. However, the emperor, based on the reasons of cutting off dissidents, venting old grudges, and restricting meritorious ministers, formed the custom of pardoning servants and punishing masters and directly prosecuted the masters’ guilt, while servants were allowed to go unpunished. For example, the cases of Peiji “may become the emperor”, Hao Xiangxian “rebels against the state”, “Pang the wife of Dou Xiaoshen used wine to sacrifice God in the midnight”, and “imperial concubines of Ruizong using evil magic to kill people” were all sheer fictions, but masters were exiled or killed wrongfully, and servants who lodged false accusations were not punished. Even in the peaceful and prosperous period of Kaiyuan, the cases of servants accusing masters could not be judged in accordance with laws. In December, 78

Ce Fu Yuan Gui, Volume 152, p. 1703. Old Book of Tang, Volume 151, p. 4060. 80 Old Book of Tang, Volume 170, p. 4416. 81 Ce Fu Yuan Gui, Volume 933, p. 10809. 79

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the eleventh year of the Kaiyuan period (722 A.D.), “The servant of Wang Qiao, the Prefecture Governor of Xuzhou, accused Qiao of plotting a rebellion with (Wang) Jun”.82 Emperor Xuanzong ordered Yuan Qian Yao, the Prime Minister and Zhang Yue, Head of the Secretariat, to interrogate him but did not find any clue of rebellion. According to the law, the master should be pardoned, and the servant should be punished to set an example. However, Wang Jun was degraded to the prefectural governor of Qizhou. Other cases, such as Li Wei of Huayang accepting bribes in the last years of the Tianbao period and Shan Chaojun stealing horses in the first years of the Dali period, and Yu Min dismembering servant in the eighth year of the Yuanhe period (813 A.D.), were not concerning rebellion and defection and thus should be ignored in accordance with the law. However, these cases all ended with masters receiving punishment. It’s just like what Lv Simian stated, “The situation of masters receiving punishment and servants getting what they want was not rare, but the situation of masters not receiving punishment and servants being punished was rare…How much can the law fail to turn into a mere scrap of paper with no form and practical effect?”.83

4.3 Killing Servants and Punishing Masters The most typical examples of masters and servants being punished in the cases of servants accusing masters should be the cases of Horse and Carriage Minister Zhao Zong doing sinister deeds in the 3rd year of the Jianzhong period (782 A.D.) and Ma Shu collecting war jackets privately made from rhinoceros in the Dazhong period. Zhao Zong was informed against by his servant Dangqian, so “he was degraded to be the military governor of Xunzhou from the Censorate, and Dangqian was asked to stay in the Imperial Office Bureau”. Zhang Yi used the imperial edict in the second year of the Zhenguan period (628 A.D.) as evidence and thought that “Zhao Zong was not rebellious and the servant was actually very treacherous and ferocious. The result of the servant living in the palace while Zong was put into prison is unfair according to law”.84 Emperor Dezong degraded Zong to be the military governor of Xunzhou, and the servant Dangqian should be beaten to death. Ma Shu was in charge of shipping and traffic in Daibei. On the occasion of leaving his job, he kept ten to twenty war jackets made from rhinoceros; then he was accused by his servant Wang Qing to the Censorate. According to the provision of “holding prohibited weapons privately” in Comments on Laws of Tang Dynasty, “people who privately hold prohibited weapons should be sentenced to a year and a half’s imprisonment”.85 Armour, crossbow, spear with a long handle, and horse’s armor were forbidden. Wang Qing, the servant of

82

Old Book of Tang, Volume 93, p. 2989. The History of the Sui and Tang Dynasties and the Five Dynasties, p. 689. 84 Old Book of Tang, Volume 125, p. 3546. 85 Comments on Laws of Tang Dynasty, Volume 16, p. 314. 83

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Ma Shu, said that “Shu is storing up weapons and plotting rebellion”.86 After Wei Mo discussed by citing laws,87 Wang Qing was beaten to death in the courier hostel in Qingni, and Ma Shu was degraded to be governor of Shaozhou. When servants accuse masters who are not disloyal, the accused should be considered confessing their crimes. According to the provision of “surrendering before crimes are found” in Comments on Laws of Tang Dynasty, “those who surrender before crimes are found should be forgiven”.88 Therefore, the crimes of Zhao Zong and Ma Shu were not discovered by the government, so the accusations lodged by servants should be regarded as surrendering pardoned. Therefore, the practice of litigation convention of killing servants and punishing masters is a serious departure from the spirit of law.

5 Causes of Servants Accusing Masters In the laws of the Tang Dynasty, servants were extended to the subject of concealment and accusation. According to explicit provisions, servants could accuse three kinds of felonies of their masters, which becomes the direct basis for servants to sue their masters in a sense. Assuming that the Tang Dynasty, like the Qin and Han Dynasties, absolutely forbades the inferior to report crimes of the superior, it is difficult to be popular for servants accusing masters. In addition, the prevailing phenomenon of servants accusing masters in the Tang Dynasty was directly related to the following social and political factors.

5.1 Servants Venting Anger Conflicts between masters and servants were the direct reason for the prevailing phenomenon of servants accusing masters in the Tang Dynasty. There were huge differences between the humble and the noble. Confucian tolerance and concealment were originally linked by the blood relationship, showing the meaning of “loving one’s own relatives”. Because servants and masters live together, there was the only difference in their statuses. The unilateral obligation of concealment towards masters was not recognized by servants because of a lack of a theoretical and realistic basis. The Spring and Autumn Annals held that there are “six kinds of inverses”,89 and the humble against the noble is in the first place. The long-term oppression and enslavement of the masters triggered the servants’ resentment. They often vented their vengeance on their masters by accusing them. “Some servants were more favored by their masters; thus, they were familiar with 86

Dong Guan Zou Ji, Zhonghua Book Company, 1997, p. 111. Old Book of Tang, Volume 175, p. 4570. 88 Comments on Laws of Tang Dynasty, Volume 5, p. 101. 89 Justice in the Spring and Autumn Period, Volume 3, p. 93. 87

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the privacy of their masters”. Their masters’ living, eating and resting, becoming an official or retreating, speaking or silence were all controlled by servants. Some ignored them even if it may destroy their names. Servants became masters, and vice versa”.90 The embarrassing situation of masters held hostage by domestic servants was a good annotation for the “six kinds of inverses”. As a result, “after the former noble collapsed, they tended to be controlled by their servants”.91 In the third year of the Zhenguan period (629 A.D.), servant Gongming told his master Pei Ji about Xinxing’s saying that “Peiji may become the emperor”. “Ji was too frightened to report to the emperor. He secretly ordered Gongming to kill servants in the know, but Gongming let the servants go in Pei Ji’s back. Ji sent Gongming to tax his land and got more than one million, but he spent the whole money”.92 Gongming was ordered to supervise housework and wantonly squander, and he was so afraid of being punished that he told his master to protect himself. In the Dazhong period, Wang Qing, a servant, was beaten by Chief Justice Ma Shu for making mistakes. He was so resentful that he reported Ma Shu’s privately collecting war jackets made from rhinoceros to the Censorate. The reward was another important factor that stimulated the spread of servants accusing masters. At present, the reward standards for the informants in the Tang Dynasty are not clear, but some information can still be obtained from the existing historical records. In the Wuhou period, false accusations prevailed. According to Zi Zhi Tong Jian, “informants all tempted servants to accuse their masters in order to get reward”,93 but it is unknown whether servants can be released to be common men directly. The servant An Zairong we mentioned before accused Wu Zhao of murdering the Prime Minister. Although he accused his master and other common people, he, Shanren and Liu Shen were all rewarded afterwards because of their reporting Wu Zhao’s guilt. “Liu Shen was rewarded to be the registrar of Changshou County of Yingzhou, An Zairong and Shilong the military chief staff”.94 It can be seen that all kinds of servants in the Tang Dynasty may benefit directly by accusing their masters, which was another reason that the phenomenon of servants accusing masters could not be stopped despite repeated bans.

5.2 Monarch Casting Politics Han Fei Zi-Nei Chu Shuo Shang mentioned “seven strategies”, the sixth of which is “asking the one in the know”,95 which can be verified from the handling of the cases of servants accusing masters in the Tang Dynasty. If servants expose the crime and privacy of bureaucratic aristocrats, the monarch can take advantage of this to hold 90

Ri Zhi Lu Jiao Zhu, Volume 13, p. 767. Five Dynasties’ History, Volume 107, Zhonghua Book Company, 1976 edition, p. 1404. 92 Old Book of Tang, Volume 57, p. 2289. 93 Zi Zhi Tong Jian, Volume 205, p. 6488. 94 Ce Fu Yuan Gui, Volume 934, p. 10825. 95 Explanations on Annotation of Han Fei Zi, Volume 934, p. 10825. 91

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his subordinate. Pei Ji, an old courtier with merit in the Wude period, was favored by Emperor Gaozu. “Because of the bounties bestowed by the monarch, he was the most powerful man”.96 It is obvious that Emperor Taizong used this case to eradicate dissidents. In the Qing Dynasty, cruel officials ravaged and unjust cases broke out, the direct purpose of which was to cut off the noble and suppress alien forces. The cases of Hao Xiangxian’s rebellion in the fourth year of the Chuigong period (688 A.D.), imperial concubines Dou and Liu using evil magic to kill people and Dou Xiaoshen’s wife Pang sacrificing God at midnight in the second year of the Yongshou period (693 A.D.) were all direct products of the political background of this period. Yu Di, the Jiedu (military and political officer) of Shannandong Dao, used suppressing Wu Shaocheng in the Caizhou as a chance to “collect a large number of soldiers, repair armors and sharpen soldiers, collect money, and kill people at random. He showed the ambition of occupying Hannan, and neglected the noble and bullied the humble”.97 During the Zhenyuan period, the court was worried about him. When Emperor Xianzong came into throne, “he was very powerful and afraid of no one”.98 In the eighth year of the Yuanhe period (813 A.D.), Yu Min was found dismembering a servant and degraded to be the Teacher of Prince En. Yu Min was exiled for a long time in the Leizhou with shackles on him, and his sons Jiyou, Yu Zheng, Yu Fang were all degraded.99 It is self-evident that the court wanted to cut off the prime minister and his assistants. In addition, Ziyi’s three sons-in-law were slandered by servants and exiled one after another in the Dezong period, Wang Ji was accused by servants, and his property was checked in the Xianzong period. Things like this were too numerous to mention. Those who succumbed to the decline because of servants’ accusations were all nobles with merits. The potential implication of the monarch restraining the nobles with merits is obvious.

5.3 Cliques Fighting with Each Other “If subjects form cliques, the internal disorder easily happens”.100 In the Tang Dynasty, several cases of servants accusing masters were directly related to battles among different factions within the ruling group. In the 3rd year of the Jianzhong period (782 A.D.), the case of Zhao Zong doing sinister deeds was reported by his servant Dangqian. However, in terms of its political background, it was the direct result of the evil and flattering people who held power and persecuted the meritorious officials. Guo Ziyi, the Prince of Fenyang, pacified the rebellion of An Lushan and Shi Siming, and his merit was equal to rebuilding the nation. According to an old book about Guo Ziyi, “after Ziyi died, Yang Yan and Lu Qi held on the reins of power in 96

Old Book of Tang, Volume 57, p. 2288. Zi Zhi Tong Jian, Volume 235, p. 7588. 98 Old Book of Tang, Volume 156, p. 4130. 99 Old Book of Tang, Volume 15, p. 445. 100 Collation and Annotation of Guanzi, Volume 10, p. 533. 97

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succession, and they did things in an evil way, especially to the meritorious officials. Ziyi’s sons-in-law Horse and Carriage Minister Zhao Zong, Associate Treasurer Li Dongqing and Sacrifice Minister Wang Zai were all degraded because of servants’ accusation”.101 It can be seen that the cases of the three sons-in-law of Ziyi being accused by servants were related to battles among different factions within the ruling group. In the 1st year of the Baoli period (825 A.D.), An Zairong’s accusing of Wu Zhao also directly stemmed from cliques fighting among one another. “At that time, the relationship between ministers Li Fengji and Li Cheng was not harmonious, and everyone was riding on their discord to form cliques. (Water Minister) Li Rengshu was always attached to Li Cheng. He knew that Zhao was unsuccessful and easily provoked to be angry, so he cheated Zhao, ‘Cheng wants to help Zhao to get promoted, but is blocked by Feng Ji.’ Zhao was very angry and conspired with Liu Shen and Zhang Xiaoteng to do harm to Feng Ji”.102 It can be seen that the root cause of Wu Zhao’s imprisonment was the power struggle between ministers, and servant’s accusation was only an accidental cause of this case.

6 Development of the Legislation of Servants Accusing Masters The principle of servants tolerating and concealing masters and the penalties related to servants accusing masters stipulated in the laws of the Tang Dynasty have a direct impact on later legislation. In the dynasties of Song, Yuan, Ming and Qing, the penalties related to servants accusing masters all took Comments on Laws of Tang Dynasty as a criterion. The Criminal Law in the Song Dynasty inherited the laws of the Tang Dynasty, and the article “mutual concealment for people living together” stipulated that domestic servants and slaves have an obligation to tolerate and conceal the crimes of their masters. From the Yuan Dynasty, people tried to determine whether servants lodged a false accusation or a true accusation and decided the nature of guilt. According to The History of Yuan Dynasty-Criminal Law, “Servants who lodge (false) accusation of masters should be sentenced to death… When servants accused masters, masters were regarded as confessing their crimes, and servants would be beaten seventy-seven times with plank”.103 In the Zhida period in the Yuan Dynasty, people demanded strict compliance with the prohibition of servants accusing masters.104 Compared with the laws of the Tang Dynasty, the reasons for allowing servants to report added one item: premeditated and intentional homicide. 101

Old Book of Tang, Volume 120, p. 3468. Ce Fu Yuan Gui, Volume 926, p. 10743. 103 History of Yuan Dynasty, Volume 105, Zhonghua Book Company, 1976, p. 2672. 104 (Institutions in Yuan Dynasty, Volume 1, Tianjin Ancient Books Publishing House, 2011, p. 68). Institutions in Yuan Dynasty, Volume 53, Tianjin Ancient Books Publishing House, 2011, p. 1795. 102

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In addition, because employees live with masters and their food and clothing are supplied by masters and do not differ from domestic servants in the Tang Dynasty, it is reasonable for them to tolerate and conceal mutually. In the 1st year of the Zhishun period (1330 A.D.), the injunction of hired workers against masters was set up again, “unless the crimes committed by masters are treacherously evil or have something to do with servants, servants are not allowed to accuse their masters”.105 The legislative reform of the Yuan Dynasty in the punishment of servants accusing masters has a direct influence on the legal system of the Ming and Qing Dynasties, and its transitional position in traditional Chinese legal civilization is also evident. With reference to the legislative experience of the Song and Yuan Dynasties, the article “mutual concealment for relatives”106 in the laws of the Ming and Qing Dynasties stipulated that servants and employed workers should conceal their masters’ crimes. “Someone who is of repute is honorable in feudal ethics; and someone who is righteous is respected for his morality”.107 The laws of Ming and Qing Dynasties took the legal tradition of Song and Yuan Dynasties, put servants accusing masters into the article “violating the feudal ethics and justice”,108 and made a substantial revision to the laws of servants accusing masters according to the needs of the changes in social life. Compared with the laws of the Tang Dynasty, the changes in the criminal legislation of punishing servants accusing masters in the Ming and Qing Dynasties mainly concentrated on four aspects. First, distinguishing between false and true accusations and reducing sentencing. In the Tang Dynasty, domestic servants and slaves who lodged accusations of their masters were hanged regardless of whether the accusations were true. When servants’ accusing of masters was confirmed, the servants would be beaten 100 times and sentenced to three years of imprisonment; those who lodged false accusations would be hanged. Second, the sentencing of servants accusing masters’ relatives was mitigated. Servants who accuse the close relatives and grandparents of masters exiled in the Tang Dynasty, but they would be beaten 100 times if their accusations were confirmed. In Ming and Qing Dynasties. In the Tang Dynasty, those who accused the masters’ ordinary relatives would be sentenced to one year of imprisonment, but in the Ming and Qing Dynasties, those who accused masters’ relatives from far to close would be beaten seventy to ninety times accordingly. Third, in addition to the inherent crimes of rebellion, defection and treason in the laws of the Tang Dynasty, the reasons why servants were allowed to sue masters in Qing Dynasty added an item of hidden spy.109 Finally, because masters have the favor of employed workers, this favor ended with their breaking up, and the distinction between servants and masters was relatively 105

The Collection of Legal Data in Yuan Dynasty, Zhejiang Ancient Books Publishing House, 1988, p. 208. 106 Criminal Law of Ming Dynasty, Volume 1, Law Publishing House, 1999, p. 18. Great Qing Legal Code, Volume 5, Law Publishing House, 1999, p. 121. 107 Annotation of the Laws of the Qing Dynasty, Volume 22, Law Publishing House, 2000, p. 830. 108 Criminal Law of the Ming Dynasty, Volume 23, p. 178. 109 The General Examination of the Laws of the Qing Dynasty, China University of Political Science and Law press, 1992, pp. 893–894.

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weak. In the Ming and Qing Dynasties, the sentencing of hired workers accusing masters was relatively light compared to that of slaves, which was not the same as the laws in the Tang Dynasty. In addition, in the Qing Dynasty, two regulations of “servants accusing masters” were attached to the back of legal documents, and the government could directly use this when dealing with this kind of case. In the 13th year of Emperor Yongzheng (1735 A.D.), the ban on servants accusing masters was reaffirmed according to the order of the emperor. When servants accuse masters, “although what he accused may be true, the leading servant must be punished according to law”. However, the spirit of this case is the same as that of the law, so there seems to be a repetition.110 In December, the 21st year of the Qianlong period (1756 A.D.), according to the memorial of grand secretary Fu Heng, it was established that servants should not change the flail number, and they should be sold by officials after their sentences were finished. “Servants who accused their masters should be sentenced and should not be beaten instead… After servants finished their sentences they should be sold by officials and the money is given to the original owner”.111 The judicial practice of Qing Dynasty also perfected and adapted the law of punishing servants accusing masters on the basis of the judgement of special cases. According to “the case of Wang Cun accusing his master”112 in the 21st year of the Jiaqing period (1816 A.D.), servants who were under the direction of somebody and falsely accused their masters should be exiled. “The case of Shen Yiyou accusing his master” in the 25th year of the Jiaqing period (1820 A.D.) established that the situation of servants who do not belong to masters accusing masters is similar to that against masters’ sons and grandsons,113 but the sentencing of accusers who lodged false accusations was reduced by one degree, and accusers would be exiled. In “the case of Namujier testifying his master”114 in the 7th year of the Daoguang period (1827 A.D.), the servants who followed others’ words and falsely accused their masters but failed should be beaten 100 times and sentenced to three years of imprisonment. After the servants finished their sentences, they were sold by officials as usual. “The case of Yang Shenshi accusing his master” in the 11th year of the Daoguang period (1831 A.D.) Setting the example of workers falsely accusing their masters after stopping work should be treated as common people.115 In other words, the Qing Dynasty thoroughly revised and perfected the legislation on servants accusing masters by revising laws, adding notes and compiling regulations. In regard to servants accusing masters, it always emphasizes the distinction between the noble and the humble and the difference in status between masters and servants. In ancient China, the relevant legislation of punishing servants accusing masters was 110

Du Li Cun Yi, Volume 40, Cheng Wen Publishing Co. Ltd., 1970, p. 1014. An Examination of the Literature of the Qing Dynasty, Volume 204, Zhejiang Ancient Book Publishing House, 1988, p. 6687. 112 Summary of Criminal Cases, Volume 48, Beijing Ancient Book Publishing House, 2004, p. 1801. 113 Summary of Criminal Cases, Volume 48, p. 1803. 114 Continuation of Summary of Criminal Cases, Beijing Ancient Book Publishing House, 2004, p. 392. 115 Summary of Criminal Cases, Volume 48, p. 1805. 111

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perfected. When studying the track of the legislative evolution of servants accusing masters in Dynasties of Song, Yuan, Ming and Qing, if we look for the source, we must take the laws and decrees of the Tang Dynasty as the beginning.

7 Summary This chapter discusses the legal status of servants in litigation. It mainly examines the litigation rights of the humble, such as slaves and domestic servants, in the Tang Dynasty. The laws of the Chinese dynasties have all forbidden slaves from accusing their masters. The laws of the Tang Dynasty adapted to the great changes in family structure, setting a legal obligation for domestic servants and slaves to tolerate and conceal the crimes of their masters; thus, it is strictly forbidden to accuse their masters of rebellion, defection and treason. According to law, other general crimes were not allowed to accuse. However, in the Tang Dynasty, the phenomenon of servants accusing masters was endless. The crimes involved in the cases were full of evil examples that broke the law and even formed a litigation practice of servants accusing masters. The prohibitory article of punishing servants accusing masters in the Laws of Tang Dynasty exists in name only. In practice, except rebellion, defection and treason, ordinary criminal offences such as spy, sorcery, corruption and murder could be reported to the government. In the Tang Dynasty, decrees and imperial edicts repeatedly demanded strict compliance with the prohibition of servants accusing masters. However, the specific handlings of cases were quite different from the spirit of the law. In practice, there were three kinds of handlings: pardoning masters and punishing servants, pardoning servants and punishing masters, and killing servants and punishing masters. Among them, “pardoning masters and punishing servants” basically followed the spirit of the law and emphasized the distinction between masters and servants. However, “pardoning servants and punishing masters” and “killing servants and punishing masters” were both litigation practices. The former directly investigated the guilt of slave owners, and servants who lodged accusations got away with it. In the latter way of handling, masters and servants were all responsible, and the judgemental standard seriously deviated from the provisions of the Laws of Tang Dynasty. The three main reasons for the overflow of servants accusing masters in the Tang Dynasty and the formation of “pardoning servants and punishing masters” and “killing servants and punishing masters” are servants venting anger, monarchs casting politics, and cliques fighting with one another, which are directly related to the profound social, political and economic changes in the Tang Dynasty. The principle of servants permitting and concealing their masters and the relevant penalties for servants accusing masters established in the Tang Dynasty had a direct impact on the legislation of later generations. In the Dynasties of Song, Yuan, Ming and Qing, the penalties related to servants accusing masters all took Comments on Laws of Tang Dynasty as a criterion.

Chapter 4

Neighbors

Neighborhood refers to the special legal relationship formed on the basis of the fact that houses are next to others. Corresponding to the clan relationship maintained by the blood relationship, the relationship among neighbors constructed by geopolitical relations was an important part of the social network in ancient China. Under the system of mutual guarantee of neighbors within traditional grassroots organizations, the members of the group were often set up as the main body of joint liability of criminal legal liability. Unlike women and servants, neighbors were not a specific kind of subject of litigation, but they were also in jural relations of the procedure, which were given a number of legal obligations, such as rescuing, reporting, proofing and so on. Academic circles have performed in-depth research on legal relationships in neighborhoods and have achieved some important results. However, research on the jural relations of procedures among neighbors in the Tang Dynasty is still very weak. The traditional history books paid more attention to the macroscopic description of the construction and operation of the political, economic and military systems of the feudal state in the selection and application of data. Although neighborhood relations belong to the important aspects of the grassroots management of the feudal state, related records of the subject of neighborhood litigation in history, laws and political books are very scarce. Therefore, the study of the legal relations of the neighbors in the Tang Dynasty is relatively dependent on the related materials of poetry and writing, novels and legends of the Tang Dynasty, and put the fictional judgement of the people in the Tang Dynasty into the scope of the study. By analyzing litigation practices involving neighborhoods, it aims to restore and analyze the running state of the laws in grassroots society in the Tang Dynasty.

© Science Press 2021 X. Chen, A Study of Criminal Proceeding Conventions in Tang Dynasty, https://doi.org/10.1007/978-981-16-3041-5_4

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1 The System of Mutual Guarantee of Neighbors At the time of the Shang and Zhou dynasties, the grassroots society in China formed a strict “system of mutual guarantee of neighbors”, which took five residents adjacent to one another as the minimum social unit, and the neighborhood bore the legal responsibilities of rescuing crisis, prosecuting crime, and assisting litigation, establishing a hierarchical social management mechanism on this basis. The record of mutual guarantee of neighbors can be traced back to the late Shang Dynasty. The Book of Yi Zhou recorded that when Emperor Wen saved the famine, he wrote Da Kuang and mentioned that “we should avoid being lazy, and neighbors should guarantee one another”.1 Zhou Li described the social structure of “neighbors guaranteeing one another” as follows: Sui Ren is in charge of the field of the kingdom; they divided fields according to the map and divided them into counties and bi. Five households form one neighbor, five neighbors form one Li, four Li form one zan, five zan are a bi, five bi are a county, and five counties are a sui. They all have a certain area in them, and people dig trenches and plant trees as boundaries so that they are in charge of the decrees, penalties and injunctions of their own region. People in the region are examined in every season of the year. People are given fields, examined tools and instruments, and taught to grow crops.2

The neighbor-based progressive management pattern established in the Western Zhou Dynasty became the original blueprint of the future grassroots control mode. In line with the production and lifestyle of traditional farming civilizations, the system of “neighbors guaranteeing one another” is considered the most effective method of rural social management. When Guan Zhong was the prime minister in Qi, the “neighbors guaranteeing one another” was directly linked with household registration management, and the function of the system was set to restrict the migration and movement of the population and put an end to the escape of refugees: Those who are good at ruling people do not depend on walls but rely on many people to support and manage people to achieve that. There are no people in the wu that do not belong to wu, no people in the Li that do not belong to Li, and no family in the Li that do not belong to Li. Therefore, escaping people have nowhere to hide, and migratory people have no place to shelter. Without being forced, people will be restrained. Without being called, people will come. Therefore, people have no intention of escaping, and officials have no worry of guarding and chasing.3

Guan Zhong advocated that “there are chief officials from wu to shu, and they do their work to benefit the military and politics”.4 Although the chief official of wu was low in rank, only the able man would be chosen to do it, which played an important role in Qi’s accomplishing hegemony. After long-run practice, while content is more 1

Collation and Annotation of the Book of Yi Zhou, Volume 2, Shanghai Classics Publishing House, 1995 edition, p. 162. 2 Annotation of Zhou’s Rite, Volume 15, p. 461. 3 Collation and Annotation of Guanzi, Volume 17, p. 1023. 4 Tong Dian, Volume 3, p. 56.

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detailed, the system of neighbors guaranteeing one another has the characteristics of constantly innovating to meet the needs of social development. In terms of designing systems, from the Dynasties of Qin and Han to Sui, Tang and the Five Dynasties, the system of neighbors guaranteeing one another has always been the basic mode of rural social management. Neighbors become the basic units of the social management system due to their geographical dependence. Bamboo Slips of Qin Dynasty’s Tombs of Shuhudi-Legal Questions and Answers, “What is ‘neighbors all around’? ‘neighbors all around’ is people in the same wu.”5 Yan Shigu said in the annotation of “Rongbo inspect shi, wu and ling” of Shi You’s Ji Jiu Pian: Five people form a wu, two wu form one shi, and five families are neighbors. According to this law, they are deployed and live in peace. They all abide by the decrees of the system, and no one violates them.6

During the Qin and Han Dynasties, people paid more attention to the functions of inspection, education, taxation, persuasion and litigation of grassroots local officials, such as wu zhang, shi zhang, li kui, ting zhang, xiang zuo, san lao, you yi, qiang fu, and you jiao. Book of Song-Notitia Dignitatum: The county magistrate and county leader were officials in the Qin Dynasty. Magistrate is more powerful, leaders are less powerful, and hou guo is the prime minister. In the system of the Han Dynasty, there was one prime minister, two county magistrates, and one county leader. Five families are a wu, and wu zhang governs it; two wu form one shi, and shi zhang governs it; ten shi is a li, and li kui governs it; ten li is a ting, and ting zhang governs it; ten tings are a xiang, there are xiang zuo, san lao, you yi, qiang fu, and you jiao. Xiang zuo and you yi are in charge of taxation, san lao education, qiang fu litigation, you jiao illegitimacy. Zhu cao is like junzhi.7

In the Wei, Jin, and Northern and Southern Dynasties, the main functions of the traditional neighbors guaranteeing one another were continuously strengthened and innovated. In the 3rd year in the Yongming period of the Southern Qi Dynasty (485 A.D.), “At first, there was a chief official in ling, li and dang separately. Five families are a ling, five lings are a li, and five li are a dang. In the fourth year, the government made household registers and set states and counties”.8 In February, the 10th year in the Taihe period of the Northern Wei Dynasty (486 A.D.), “started to set chief officials in dang, li, and ling, and made household register”.9 In the 3rd year in the Qinghe period of the Northern Qi Dynasty (564 A.D.) It was stipulated that “ten families form a neighbor, fifty families form a lvli, one hundred families form a dang”.10 During the Sui and Tang Dynasties, the restriction effect of the agricultural production mode on the flow of residents continued to be strengthened. Within the family, relatives live together for many generations, and family members live in 5

Bamboo Slips in the Qin Dynasty’s Tombs of Shuhudi, p. 116. Ji Jiu Pian, Volume 3, p. 157. 7 Book of Song, Volume 3, p. 157. 8 Book of Southern Qi, Volume 57, Zhonghua Book Company, 1972, p. 989. 9 Book of Northern Wei, Volume 3, p. 157. 10 Book of Sui, Volume 3, p. 157. 6

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the same house11 ; people in country and lane followed the long-standing system of “neighbors guaranteeing one another”. According to Zi Zhi Tong Jian, the law of neighbors guaranteeing one another was set in April, the 7th year of the Wude period (624 A.D.), “People’s property is divided into nine degrees. One hundred households are a li, five li is country, four families are a neighbor, and four neighbors is a bao.”12 Later, the system of neighbors guaranteeing one another in Tang Dynasty described in Tang Liu Dian and An Examination of the Literature of the Qing Dynasty were all based on this, and its main functions are located as supervision and prohibition.13

2 Salvage Obligation Between Neighbors Influenced by the Chinese farming culture, because neighbors are closely related in production, residence and living, the traditional thought of hating to leave a place where one has lived long has become an important driving force to promote the longterm development of the concept of good neighborliness. For a long time, a friendly neighborhood had always been yearned by ancestors. Book of Songs-Bei Feng said, “Whenever a neighbor has a hard time, others have to get there even by crawling, and help him.” Zheng Xuan noted, “Crawling, means try one’s best. Neighbors should go and save whoever is in danger.”14 In the Qin Dynasty, the salvage obligation among neighbors was formally written to the law. According to Bamboo Slips in Qin Dynasty’s Tombs of Shuhudi-Legal Questions and Answers: If criminals entered someone’s room and hurt this person, the person inside is calling for help, but neighbors, dian, lao are all out, are they guilty or not? The laws in the Qin Dynasty answered that if neighbors are not there, they are not guilty, but if dians and laos are not at home, they are still guilty.15

When suffering from burglary and the victims called for help, only when neighbors were not at home could they be excused. In the Tang Dynasty, the compulsory salvage and reporting obligations of the neighbors were set up against major crimes of robbery, murder, kidnapping and emergency of fire. This is exactly the same as the laws of the Qin Dynasty. According to the article “Making avoidance while holding hostage” in Comments on Laws of Tang Dynasty-Thief , whenever neighbors see kidnapping and hijacking, they have to stop or arrest the criminal. “Those who avoid holding hostage are sentenced to two years’ imprisonment.”16 The article “robber killed people and was not reported to the officials in charge” in Comments on Laws of Tang Dynasty-Lawsuit also stipulated that when encountering a robber or a killer, the people from the same wu and neighboring wu shall bear the duty of reporting: 11

Study on Laws of Tang Dynasty, Shanghai Classics Publishing House, 2012, p. 58. Zi Zhi Tong Jian, Volume 190, p. 5982. 13 Tang Liu Dian, Volume 3, p. 73. 14 Mao Shi Zheng Yi, Volume 2, Peking University Press, 2000, p. 177. 15 Bamboo Slips in the Qin Dynasy’s Tombs of Shuhudi, p. 116. 16 Comments on Laws of Tang Dynasty, Volume 17, p. 331. 12

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When encountering robbery and murder, the victim’s family and the people from the same wu should immediately report to the officials in charge. If family members and the people from the same wu are weak, the people from the neighboring wu should report. Those who should report but did not will be beaten sixty times with a one-day delay. If the officials in charge did not report to the superior, they would be beaten eighty times with a oneday delay, one hundred times for a three-day delay. The government that does not check and capture the offenders immediately after receiving accusations will be sentenced to one year’s imprisonment with a one-day delay. Penalties for theft should be reduced by two degrees separately.17

In addition, when neighbors were confronting robbery, killing and seeking help, people from the same wu should try their best to rescue them. If the thief was more powerful and the people on your side were very few, old and weak, then you should report to the nearest government, country or post: When neighbors are robbed or killed, those who reported but did not help should be beaten one hundred times; penalties for those who heard the crimes but did not help should be reduced by one level; those who are too weak to rescue should report to the nearest government, if not, should be regarded as not willing to help. If government officials do not rescue them immediately, they would be sentenced to one year of imprisonment. Penalties for theft should be reduced by two levels separately.18

Salvage obligation among neighbors set by the Laws of Tang Dynasty is the direct embodiment of the traditional system of neighbors guaranteeing one another at the level of criminal procedure and can also be seen as a realistic reflection of a friendly neighborhood. In practice, the implementation of salvage obligations among neighbors generally follows the Laws of Tang Dynasty. Huang Fu’s Yuan Hua Ji said that during the Zhenyuan period, the wife of Yan Dian in Jie County, Huating County had an affair with others and stole a handkerchief from a neighbor. The neighbor knew it and went to Yan Dian’s house to find it. Yan Dian and his wife did not admit it, abused him, and swored to God. In the evening, the thunder came, and the neighbors all came to help: “In the evening, the storm came and thunderbolt broke down the house of Yan Dian, the couple and five or six other family members were all stroke by thunder. By the time of dawn, the rain did not stop, and neighbors saw his house collapsed and fire blazing. So, they searched in fire and found the body of Yan Dian and his wife which were burned into something like candles. Neighbors hurriedly kneel down to worship and pray to God not to burn them any longer, and the fire itself extinguished.”19 Laws of Tang Dynasty stipulated that when encountering fire, it is a legal duty for the victim to inform and neighbors to rescue. “When you see the private or public houses and property are on fire, you should inform the people around you and put out the fire together. Penalties for those who do not inform and rescue should reduce by two levels from that of negligently causing a fire.”20 The wife of Yan Dian swore to God, and “God used thunder as penalty”21 to take her life. 17

Comments on Laws of Tang Dynasty, Volume 24, p. 449. Comments on Laws of Tang Dynasty, Volume 24, pp. 530–531. 19 Tai Ping Guang Ji, Volume 393, pp. 3142–3143. 20 Comments on Laws of Tang Dynasty, Volume 27, p. 511. 21 Pizi Wensou, Volume 7, p. 78. 18

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Although it involved absurdity, it is entirely consistent with the spirit of the Laws of Tang Dynasty because the neighbors were exempted from punishment for rescuing the couple.

3 Reporting Obligations Among Neighbors Farming civilization has nurtured the survival pattern of a harmonious neighborhood in ancient Chinese grassroots societies. Zhao Yanyun of the Song Dynasty said, “The system of Bilv can maintain its people. The neighboring people help one another and have a sense of thankfulness in them.”22 The original intention of the traditional system of neighbors guaranteeing one another is to build a harmonious and orderly social relationship, but since Warring States and Qin and Han Dynasties, the rulers, in order to cope with the social management difficulties caused by the information constraints, add the obligation of “observing the evil” to the neighborhood. The report has gradually become a basic obligation concurrent with military service and taxation.23 Neighbors corrected each other’s mistakes, and the atmosphere worsened. Mo-tse-Order, “All officials, soldiers and civilians living in the city should form into a group with their neighbors to defend and protect one another. Not Knowing your neighbors’ committing crime is guilty. If you can personally catch criminals or report them to the government, you will be rewarded. If you know the crime committed by people in other groups and report it to the government, you will be rewarded with double rewards.”24 Based on the need for social control, the feudal state regarded the prosecution and exposition of crimes as one of the important contents of neighborhood relations, thus alienated people and weakened customs. Xu Gan’s Zhong Lun has directly linked the supervision of neighbors’ words and deeds to the system of neighbors guaranteeing one another: No matter going in or out, doing things or having a rest, gathering or eating, there are rites in them, no one should ignore them or you will be declared guilty. Is there any way to deal with those who travel a lot? That is, to make five families form a bi and protect one another, and there should be a chief official in bi; five bi form a lv and make them worry about one another.25

During the Wei, Jin, Southern and Northern Dynasties, the application of neighbors reporting one another was becoming more extensive. The Northern Wei Dynasty formally stipulated the legal obligation of neighbors reporting one another by imperial edicts. In April, the 2nd year in the Yanxing period (472 A.D.), the emperor 22

Yun Lu Man Chao, Volume 9, Zhonghua Book Company, 2000, p. 157. Information, motivation and joint liability—legal and economic explanations for the system of collective punishment and bao-jia in ancient China, Social Sciences in China, 2003, (3), pp. 102, 110. 24 Annotation of Mo-tse, Volume 15, Zhonghua Book Company, 2001, p. 600. 25 Zhong Lun Jie Hu, Volume 2, Zhonghua Book Company, 2014, p. 224. 23

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issued an edict of neighbors guaranteeing one another and reporting and exposing the travel and living of monk without registration: Monks have not been in temples for several years, wandering in villages. Every five people are ordered to guarantee one another that they do not accept monks. We should increase the check of monks without household registration. If there are any, they should be sent to the state. If they are in the capital, they will be sent to the government. If they are those who publicize Buddism and educate and influence people, they should report to local religious affairs officials when they are in other places, or they should be registered and follow the code of conduct in the capital. Those who violate this are to be convicted.26

Apart from the criminal offence, people also have the obligation of persuasion and reporting if their neighbors violate rites. At the time of the Yuanjia period in Liu Song, Dan Yang and Ding Kuang had died for a long time without being buried, and He Chengtian, Shuaigengling of the Crown Prince, proposed that “Three families of Ding, Kuang and the other had no coffin when it comes to burial for decades. It is really because of the light of kindness, and they have no difference from the beast. I personally believe that Ding, Kuang and the other had lived with others for many years, but they did not persuade with moral principles and punished by law.” In the winter of the 16th year of the Yuanjia period (439 A.D.), he said, “If people do not be buried in accordance with the law, people from the same wu should expose it immediately, and the problem will not be investigated after three years of service. This is more appropriate”.27 Zhang Guogang pointed out that “four families form a neighbor and five families form a bao”, that is, making families and neighbors supervise one another and form a group of residents with a mutual guarantee and joint responsibility28 (see Fig. 1). In the Sui and Tang Dynasties, neighboring units such as “the same wu” and “the neighboring wu” constituted neighboring joint units and formed joint liability29 ; thus, the reporting obligations among neighbors tended to be strengthened. In the Daye period of the Sui Dynasty, Li Mi and Yang Xuangan were defeated; Li Mi and Yang Xun (younger male cousin of Xuangan’s father) followed Xuangan and hid in the house of Ping Yi (Yang Xun’s wife). “They were reported by neighbors and captured and trapped in prison in Jingzhaofu”.30 It is worth noting that the Laws of Tang Dynasty did not directly stipulate the obligation of uncovering crimes among the neighborhood. The government at all levels determined the crimes of evil in their region by neighbors’ reporting, and it should be considered an expedient plan for government officials to carry out political power. In the first years of the Zhenyuan period, Henanying Cui Zong ordered that “five families should guarantee 26

The Book of Northern Wei, Volume 114, p. 3038. From the precepts of Buddhism to laws: legal norms of the monks in Tang Dynasty, Chengchi Law Review, 2009, (111), p. 13. 27 Book of Song, Volume 64, p. 1705. 28 Rural grassroots organizations and their evolution in Tang Dynasty, Peking University Journal (Philosophy and Social Sciences), 2009, (5), p. 120. 29 The Outline of the Lian-zuo System of Tang Dynasty, The Law and Social Development in Chinese History, Jilin People’s Publishing House, 2007, p. 279. 30 Ce Fu Yuan Gui, Volume 949, p. 10999.

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Fig. 1 Tang Fenshe sued Zuo Chongxi (the dead) for the latter family’s losing silver (Source: Unearthed documents of Turpan, Volume 6, Fig. 2, Cultural Relics Publishing House, 1985)

and report one another, in case of Xuli should have some selfish motives”.31 Even if the imperial court issued a decree of neighbors reporting one another, it would only have a provisional effect. In the Xianzong period, Wang Chengzong and Li Shidao of Ziqing wanted to stop the momentum of court using force, and they sent people to break the door halberd in the mausoleum temple, burn the accumulated forage, and shoot letters with flow vectors so that the people in the capital were scared and horrified. In February, the twelfth year of the Yuanhe period (817 A.D.), Xianzong issued a decree of “every five families who live in the capital should guarantee one another so as to find out the evil men”.32 Records of the operating conditions of neighbors reporting one another in books left from ancient times are very scarce, but the unofficial history and romance of the Tang Dynasty provided more powerful evidence for the study of neighbors reporting one another and accompanying rights. For example, Yuan Hua Ji recorded a story that: the son of Dai Wen in Haiyan County, Suzhou reported his neighbor of telling lies, and the governor in his County ordered someone to inspect this: In the Zhenyuan period, Dai Wen of Haiyan County, Suzhou was rich and greedy. Whenever the villager was in debt, he would charge several times of interest. Some neighbors had benefit-based relationships with him and were exploited badly; thus, villagers accumulated hatred towards him and said that “God must have seen all this.” A few years later, Dai Wen died of illness, his neighbor’s cattle gave birth to a black calf with white hair in subcostal, and the white hair showed the name of Dai Wen. The people in the same lv all knew it. Dai Wen’s son thought it was a shame. He went to apologize and said that he wanted to iron off the words with some tools, and the neighbor agreed. Later, the son of Dai Wen accused his 31 32

Old Book of Tang, Volume 108, pp. 3281–3282. Old Book of Tang, Volume 15, p. 458.

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neighbor of lying about the words in the cattle’s body. The governor ordered the neighbor to bring his cattle, white hair appeared, and words could be seen. When called Dai Wen, the cattle would come as answering it. The neighbor was afraid that Wen’s son would steal it, so he locked the cattle in the side house during nights, and the cattle died years later.33

Miscellaneous Morsels from Youyang recorded that in the 4th year of the Dahe period (830 A.D.), Zhao An of Shu saw some cloth left on the side of a tomb, he thought it belongs to no one so he took it home and told his wife. “Neighbors accused Zhao of stealing and sent him to the court.”34 Zhao An was exempted from the constant holding of the Diamond Sutra. A Collection of Immortals in the City of Yongcheng said that in the 1st year of the Qianfu period (874 A.D.), Wang’s daughter liked the quiet and inactive way. After she mentioned a poem, she suddenly died. Later, two cranes stopped at the trees in her yard, and the fairy music and strange fragrance filled her room. People from far and near thought this is amazing, so they ran to see it together. “Her neighbors reported the incident to the town officials in Hufu and asked them to examine it in detail. When the town officials arrived, the crane flew away, and the town officials imprisoned the neighbor who reported it.”.35 As a third party, the neighbors of the Tang Dynasty did not have the compulsory legal obligation to report crimes of the people in the same Wu. If neighbors disclosed, then government had the obligation to solve, which is one end of “only solve when told”, and the government did not investigate the responsibility of the fellow neighbors for knowing without reporting. In addition to reporting obligations, neighbors essentially have the litigation rights of controlling suspects, sending suspects to the government. Biography of Feng Yan said that Zhang Ying’s wife had an affair with Yan and was killed by Feng Yan. Zhang Ying wanted to make a confession after he saw his wife died. “His neighbors thought it true, they tied him up and told the relatives on his wife’s side… They beat him for hundred times; thus, he could not speak. He was convicted of murder, and no one doubted it.”36 A Collection of Strange Things also recorded the attempted murder of Yang Bao’s wife and adulterer, and the suspects were sent to the government by their neighbors: Bao’s wife was not loyal to Bao, but he did not know it. His wife had had an affair with others for years and wanted to kill him. One day, he was drunk when he went home in the evening, and his wife waited for the adulterer to kill him. When he arrived and was just about to go in, a dog came out to bite his leg and Bao’s wife, and two people were seriously injured. The neighbors came to rescue. After waking up, Bao began to search them and found a knife. After hearing the news, the neighbors sent them to the county government for questioning. The wife told the truth, and then Bao’s wife and the wife who took the knife were sentenced to death.37

33

Tai Ping Guang Ji, Volume 434, p. 3523. Miscellaneous Morsels from Youyang, Volume 7, Zhonghua Book Company, 1981, p. 271. 35 Tai Ping Guang Ji, Volume 70, pp. 436–437. 36 Tai Ping Guang Ji, Volume 195, p. 1463. 37 A Collection of Strange Things, Zhonghua Book Company, 1980, p. 70. 34

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If the nearest government did not accept the report of neighbors, the accuser had the right to appeal, and his litigious right was the same as the appellant. Retribution After Death said that in the twenty-first year of the Zhenguan period (647 A.D.), there was a man called Yang Shicao in Dongyang County of Liquan County of Yongzhou who had an evil nature and took pleasure in other people’s faults. Whenever his fellow villagers had problems, he would report to the government. “Whenever cattle and sheep were wantonly damaged and men and women quarreled, he would report to the county government. Pei Qutan, the county magistrate, found it very cumbersome and only accepted the first two or three cases. Later he saw that things were too cumbersome and just ignored them. Cao later lived in Jinzhou and became famous for reporting to the government and eviler. People all didn’t want to see him.”38 According to Orders of Prison Officers of Tang Dynasty: When neighbors reported the crimes of the people from the neighboring wu, they would be taken into custody without wearing some equipment after cases were accepted by the government and the punishment for the crimes were heavier than exile; when the punishment for crimes was lighter than exile, the accusers would post bail and await trial with restricted liberty of moving: Some people accuse others of committing crimes... If the accused are imprisoned, the accusers would also be imprisoned and released after confirmation. If a neighbor accuses another person of a capital offence, the accused person shall be taken into custody without wearing some equipment; if the offence were lighter than punishment by exile, the accuser would post bail and await trial with restricted liberty of moving.39

The government of the Tang Dynasty endowed neighbors with the rights and duties of reporting and built the network of public security defense, and neighbors could report the crimes of the people from the same wu or the neighboring wu, the purpose of which was to maintain social order and local public order in the way of collective surveillance. Compared with the legal obligation of rescue when neighbors encounter kidnapping, fire and robbery, the reporting obligations among neighbors are relatively weakened. Restricted by the traditional system of neighbors guaranteeing one another since the Qin and Han Dynasties, the Decree of Tang Dynasty did not prohibit neighbors from reporting, and it required prosecutors to bear the burden of providing evidence and questioning witnesses on the premise of accepting coercive measures. Therefore, if there was no direct disputation on interest or economic interest, peeping at neighbors’ privacy and disclosing others’ crimes would be disregarded by traditional ethics, and it also ran counter to the general mindset of people’s self-preservation. Therefore, compared with previous generations, “neighbors reporting each other” was gradually transformed from a compulsory standard into a selective norm, and the compulsory measures, litigation, providing evidence and questioning the witness after entering the procedure of reporting, were degraded to litigation practices. 38

Retribution After Death, Zhonghua Book Company, 1992, pp. 88–89. Correction of the Handwritten copy in Ming Dynasty of Tiansheng Statutes of the Tianyi Pavilion, pp. 646–647.

39

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4 Types of Litigation Among Neighbors In the Tang Dynasty, there were many specific reasons for neighbors reporting one another, including not only adultery, robbery, murder, etc., but also those who violated the ritual system. According to whether it is directly related to their own interests, neighbors reporting one another can be divided into two categories: neighbor reports and neighbors involved in litigation.

4.1 Neighbors Report The so-called “neighbors report” is that people accuse neighbors with the status of the third party outside the case; they have no direct benefit-based relationships with the accused and no legal compulsory stipulations, which can be regarded as the extension of traditional accusing evil. The above cases of Dai Wen’s son reporting his neighbor of telling lies, neighbors accusing Zhao An of stealing, neighbors tying and sending Zhang Ying because of murder and Yang Shicao reporting neighbors of trivial mistakes all belong to this kind. There are also more than ten fictional judgments in the judgment of the Tang Dynasty preserved in the Anthology of Bai Juyi, Anthology of Yuan Zhen and Finest Blossoms in the Garden of Literature, which provides an important reference for ascertaining the reasons for neighbors reporting one another and the problems involved with judgment (Table 1). Although the above judgments are fictitious, they are all answered according to the laws and regulations of the Tang Dynasty and can find a basis in judicial practices. For example, the eighth case of “having books that record prophecy” said that “someone had Lun Yu Chen in his house, his neighbor accused him of having officially banned book and should be sentenced to one year’s imprisonment. But the county judged him innocent. People wonder whether it is reasonable.” According to the article “privately having metaphysical equipment” in Comments on Laws of Tang DynastyZhizhi, “No one should have metaphysical equipment, astronomy, books, books that record prophecy, books on the art of war, the calender of seven luminaries, Tai Yi and Lei Gong Shi, or he will be sentenced to two years’ imprisonment.”40 However, Wei Hou and Lun Yu Chen were not restricted according to the law. As a result, the guilt of someone accused by his neighbor was not established, and the countermeasure made by Xue Yong and Sun Su was also consistent with the spirit of law. In the first lunar month, the second year of the Dali period (767 A.D.), there was imperial order that prohibited having metaphysical equipment, astronomy, books, the calendar of seven luminaries, Tai Yi and Lei Gong Shi and so on. At the same time as the local officials were strictly regulated on catching people, “they still ordered to put up posters on villages and main roads, and asked neighbors to guarantee one another. Those who collected these things before were allowed to deliver to the government within ten 40

Comments on Laws of Tang Dynasty, Volume 9, p. 196.

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Table 1 Court verdicts of neighbors reporting one another in the Tang Dynasty Names of judgment

Causes of action

Nature

Conclusions

Sources

1

The case of Hidden Gui hiding Gui Cang Cang in the in the house house

Neighbors Unfounded accused of using witchcraft

Supplement of Anthology of Yuan Zhen, volume 3

2

The case of planting trees in the field

Planted trees in the field

Neighbors accused of hindering the planting of corns

Founded

Supplement of Anthology of Yuan Zhen, volume 3

3

The case of holding a marriage ceremony for persons already dead

Held marriage Neighbors ceremony for accused of persons already violating a ban dead

Founded

Anthology of Bai Juyi, volume 66

4

The case of displaying Zhongqing privately

Displayed Zhongqing privately

Neighbors accused of Qi Jian

Founded

Anthology of Bai Juyi, volume 66

5

The case of beaten by wife

Beaten by wife

Neighbors accused the wife of against law

Founded

Anthology of Bai Juyi, volume 67

6

The case of learning astronomy privately

Feng Wen learned astronomy privately

Neighbors accused of learning astronomy privately

Founded

Finest Blossoms in the Garden of Literature, volume 503

7

The case of boring a hole on the wall in order to get some light from the neighbor’s house

Xi Zhen bored a Neighbors hole on the wall accused of in order to get stealing some light from the neighbor’s house

Unfounded

Finest Blossoms in the Garden of Literature, volume 510

8

The case of having books that record prophecy

Lun Yu Chen in Neighbors his house accused of having officially banned book

Unfounded

Finest Blossoms in the Garden of Literature, volume 511

9

The case of playing Suqin at a lucky day

Played Suqin on a lucky day

Unfounded

Finest Blossoms in the Garden of Literature, volume 521

Neighbors accused of against rite

(continued)

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Table 1 (continued) Names of judgment

Causes of action

Nature

Conclusions

10

The case of selling silk goods against logging

Sold silk goods against logging

Neighbors Unfounded accused of making farmers lazy

Finest Blossoms in the Garden of Literature, volume 530

11

The case about servants

Xiashi was accused by minor servants

Accused by neighbors

Unfounded

Finest Blossoms in the Garden of Literature, volume 531

12

The case of examining from the side

Examined from Neighbors Unfounded the side accused of using witchcraft

Finest Blossoms in the Garden of Literature, volume 532

13

The case of giving up position to a younger brother by pretending to be crazy

Chen Yi inherited the title of the knighthood, so he gave up his position to his younger brother by pretending to be crazy, and he became an official after his brother inherited the title

Neighbors accused the brother of inheriting the title unlawfully

Finest Blossoms in the Garden of Literature, volume 537

14

The case of digging viola in the marshy land

Grandma Wang was hungry, Liu Gongsun took the soil out of marshy land and dug viola for her

Later Unfounded neighbor’s house caught fire, the neighbor accused him of using witchcraft

Finest Blossoms in the Garden of Literature, volume 537

15

The case of the The wife of Yan sick sister-in-law Jia’s dead got the medicine brother was sick, and he could not find medicine for her, but a boy gave her medicine and turned into a bird

Neighbors reported miraculous and weird phenomena

Finest Blossoms in the Garden of Literature, volume 537

Founded

Unfounded

Sources

(continued)

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Table 1 (continued) Names of judgment

Causes of action

Nature

Conclusions

Sources

16

The case of getting an ancient mirror when digging a well

Getting an ancient mirror when digging a well and not giving it to the government

Neighbors accused of against law

Founded

Finest Blossoms in the Garden of Literature, volume 544

17

The case of Jia fed killing swallows swallows with in the month Jili and killed it when no one was allowed to kill

Neighbors accused of killing swallows in the month when no one was allowed to kill

Founded

Finest Blossoms in the Garden of Literature, volume 547

18

The case of ganoderma in the devoted and loyal family

There was an auspicious omen in the house of the Yuyi

Neighbors accused of concealing auspicious omen

Unfounded

Finest Blossoms in the Garden of Literature, volume 551

19

The case of finding neighbor taking eggs from nests

The third son of Tian Qiu climbed tree to take eggs from nests

Neighbor found Unfounded someone taking eggs from nests and tied him up

Finest Blossoms in the Garden of Literature, volume 551

days, and let the prefectural governor burn them in the public”.41 The sixteenth case of “getting an ancient mirror when digging a well” recorded that “someone was accused by his neighbor for getting an ancient mirror when digging a well without giving it to the government”. According to the article “concealing the fact of getting hidden things” in Comments on Laws of Tang Dynasty-Zalv, “Those who conceal the fact of getting hidden things in others’ field, and do not send them to the government should return part benefit to the owners, or the penalties for them should reduce by three levels than that of theft (Originate note: the crime of those who get antiques and do not send to government is the same).” Comments on Laws of Tang Dynasty further explained that “Those who get strange things like ancient apparatus, bell tripod should send them to the government according to law, and be rewarded.”42 Three judgments all considered neighbors’ reporting founded, but specific penalties were different. The first judgement was made by a nameless person: “Although it was obtained privately, it should be sent to the government. If you like it and want to keep it, the law will not allow it. You should admit your responsibilities, and no one would have compassion for you. The neighbor’s accusation was fair.” The second judgment made by Lv Wubo that he would be sympathetic and forgiving at 41 42

Ce Fu Yuan Gui, Volume 64, p. 682. Comments on Laws of Tang Dynasty, Volume 27, pp. 520–521.

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the same time when he accepted the responsibility of the person who got a mirror. The third judgement made by Zhu Cui advocated sending ancient mirrors to the government, “but this is not an antique, so we may have compassion for him, and the case can be judged only after further examination”. That is, to determine whether the ancient mirror is an “antique” and then decide according to law, rather than only by neighbors’ accusations.

4.2 Neighbors Involved in Litigation The so-called “neighbors involved the litigation” refers to neighbors being directly related to the case because of causes including adultery, stealing, and murder and being in the position of defendants or victims in the legal relation of the lawsuit. Incidents of Kaiyuan and Tianbao period recorded that there was an affair between the wife Liu of the rich man Yang Chongyi and his neighbor Li Yan, Liu and Li Yan killed Chongyi when he was drunk, and his concubines and servants were not aware of this, only a parrot was on a rack in the front of the hall. Liu ordered the servants to look for her husband everywhere. Later, when she went to the government to explain the situation, she said that her husband did not come home and was afraid that he might have been murdered. Later, “The county magistrate went to Chongyi’s house to check, and the parrot on the rack suddenly cried out a grievance. The county magistrate put it on his arm and asked the reason why he cried out a grievance. The parrot said, ‘it was Liu and Li Yan that killed his master.’ Then Liu and Li Yan were arrested by officials and told all the truth. The prefectural magistrate reported the specific circumstances of the case to the emperor, and Emperor Ming was surprised for a long time. Liu and Li Yan were executed in accordance with the punishment.43 ” In the Shengyuan period of the Southern Tang Dynasty, a rich person in Luling village lost a lot of new quilts and clothes when he was airing the basket that store his clothes in the courtyard, and an approximate estimate of the value of these things was about ten thousand. Because his residence was remote, few people passed by, and there was only one poor neighbor, he suspected that they were stolen by the neighbor. He reported to the government and regarded the neighbor as the theft; thus, an unjust verdict was found. The ministry councilor Xiao Yan carefully examined the case and prayed to the gods and learned that the lost things were eaten by a cow and the injustice was undone.44 In the above two cases, neighbors were involved in litigation because of neighbors’ reporting and were in the status of the defendants in criminal proceedings. Chao Ye Qian Zai also recorded the story of Li Jingyi accused by his neighbors of stealing cloth and arrested by the government in the Zhenguan period, which provided a basis for the investigation of disposal procedure of the cases after neighbors involved litigation: 43

Incidents of Kaiyuan and Tianbao Periods, Zhonghua Book Company, 2006, p. 18. Recent Events in the Southern Tang Dynasty, Grand View of the Literary Sketches of the Song and Yuan Dynasties, Shanghai Classics Publishing House, 2001, p. 274.

44

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In the late years of the Zhenguan period, Li Jing of Nankang lived in Mountain Qingkong. Magpies often nested near his house, and he fed the magpies with rice every time. Later, the neighbor who dropped the cloth falsely accused Jingyi of stealing his cloth, so he was imprisoned in Nankang’s prison and did not admit his guilt for more than a month. The official wanted to interrogate him. One day, a magpie stopped at the prison window and happily cried to Jingyi as if talking to him. On that day, there was a rumor that there was an amnesty coming, and the official inquired about its origin, and it was said that the rumor was from a person who wore cloth like a magpie. Three days later, the amnesty arrived, and Jingyi returned to Mountain Qingyun. Then, people knew the person who wore cloth like a magpie was the incarnation of the magpie.45

5 Proof Obligation Among Neighbors Influenced by neighbors guaranteeing one another, the traditional concept of justice considered neighbors as a unit. To determine the causes of cases, the government could summon and ask neighbors. In the Han Dynasty, when law officials judge cases of fighting and killing, it was necessary to detain and imprison neighbors to investigate and verify. Yan Shigu said in the annotation of Ji Jiu Pian, “When someone committed crimes of fighting and killing, the people from the same wu and his neighbors should be detained and imprisoned”.46 In the Northern Qi period, when Su Qiong served as a left prime minister in Xuzhou, one hundred bronze statues in the Five Grade Temples in the city were suddenly stolen. “The department concerned inquired about the case; dozens of people who were neighbors and were suspected were arrested…(Qiong) learned the names of thieves and the places where they collected stolen goods and went there directly. The thieves and stolen goods were all seized, and they confessed their crime, and the monks and other people were very impressed.”47 Book of Zhou, Biography of Liu Qing recorded the Hu’s was robbed, “county officials interrogated about the case, and no one knew the place where robbers were hiding, and many neighbors were arrested”.48 Jibu Langzhong wanted to trap the thieves, so he wrote some anonymous letters. A family slave of Wang Yuanxin of Prince Guangling tied his hands and confessed before the official documents, so the robbers were all arrested. Although later generations often have instances of detaining and interrogating neighbors, such behavior was often looked down upon by wise officials. According to the imperial edict on October 26th, the 16th year of the Zhenguan period (642 A.D.): The damage caused by the thieves is very serious. State officials did not report when the theft occurred to pursue false honor. If the elderly village is aware of this situation, he should immediately dissuade officials from making false reports of theft. If theft is disclosed, it is necessary to detain and interrogate owners and neighbors. Such a situation would have a

45

Chao Ye Qian Zai, Volume 4, pp. 98–99. Ji Jiu Pian, Volume 4, p. 301. 47 Ce Fu Yuan Gui, Volume 695, p. 8028. 48 Book of Zhou, Volume 22, Zhonghua Book Company, 1971, p. 371. 46

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negative impact on politics and education. From now on, this kind of thing should not happen again, and the relevant officials should visit and check carefully and correct it in time.49

Although Orders of Prison Officers permitted detaining neighbors who reported, there was no direct basis for neighbors to bear the burden of proof in the field of criminal proceedings. However, there has been a long-standing practice of the government detaining and interrogating neighbors without authorization in practice. In the 5th year of the Tianbao period (746 A.D.), Li Linfu set a trap for Wei Jian and Hexijiedu Hongluqing Huangfu Wei Ming: “Because Jian was a close relative of the prince, he shouldn’t be too close to Jiedu, and he must be planning to help the prince”. Wei Jian had many sons, brothers and old friends demoted to the south of the Five Ridges. Up to the 7th year of the Tianbao period (748 A.D.), Li Linfu still “was the official in charge of transportation in Jianghuai and Dongjing, and tries to find out the guilt of Jian. Because of him, many boatmen were put in prison, counties constantly expropriated, neighbors died naked in the government. After the death of Linfu, this kind of thing stopped.”50 Huangfu Mei recorded in San Shui Xiao Du that in the 11th year of the Xiantong period (870 A.D.), Wang Gongzhi of Xin’an County buried silkworms, suffered from natural punishment, and involved lawsuits: In the Gengying year of the Xiantong period in the Tang Dynasty, famine occurred in the Luoyang region. The price of grain was soaring, and there were dead bodies of starving people everywhere in gutters and peduncles. When the season of rearing silkworms came, most mulberry leaves were eaten by insects, and mulberry leaves were worth one yuan per kilogram. There was a villager named Wang Gongzhi in the North Village of Cijiandian, Xin’an County, who had dozens of mulberry trees, and they were especially shady and lush. Gongzhi discussed with his wife: “The famine is so serious that there is no food in the house. Even if we try our best to raise silkworms, we still don’t know what the consequences will be. In my opinion, it would be better to give up rearing silkworms and sell mulberry leaves when the mulberry leaves are expensive now, so as to make a profit of one hundred thousand yuan. If we can accumulate a month’s grain, then we can make it to the early summer. Isn’t it better than starving to death?” His wife said, “Good”. So, he dug a hole with the spade and buried those silkworm eggs. He woke up early in the second day, picked mulberry leaves to sell in the city fair, and got three thousand yuan. Then, he bought a pig leg, a baked cake and dishes at the fair and went home. When he arrived at the gate of Hui’an, the doorkeeper saw that something in his pocket was bleeding and dripping on the ground, so he stopped and questioned him. Gongzhi said, “I just sold mulberry leaves and earned money. I bought a pork leg and baked cakes and kept them in my pocket. Nothing else.” Gongzhi let the doorkeepers search. The doorkeepers opened his pocket and saw a man’s left arm, which seemed to have just been dismembered. So, a group of doorkeepers tied Gongzhi and sent him to Jushou. The Jushou ordered him sent to Henan for trial. Gongning, the prince of Langya, ordered people to interrogate him and deal with the case according to law. Gongzhi confessed, “I buried silkworms and sold mulberry leaves and bought meat to go home, but I truly did not kill anyone. Please send someone to the house for examination.” Fuyin then ordered official Suoyou to supervise and take Gongzhi to the village to check the place where the silkworms were buried. After Suoyou led Gongzhi to the village, the neighbors and Baozhang were called and ordered to sign. Everyone said that they did know Gongzhi buried silkworms and did nothing bad. The official dug in the place where the silkworms were buried together with the people in the village and only found a dead man in the corner 49 50

Ce Fu Yuan Gui, Volume 63, p. 672. Old Book of Tang, Volume 105, p. 3225.

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of the hole, who lacked a left arm. The official attached the left arm in Gongzhi’s pocket to the body, and it coincided. The official took Gongzhi to the government and explained the situation to Fuyin. Fuyin said, “Though Wang Gongzhi did not kill anyone, he committed the crime of burying mulberry silkworms, which can be forgiven in law but cannot stand to reason. Silkworms are spiritual insects between the heaven and the earth and are the root of spinning and weaving. Intentionally exterminating them have no difference from killing people and should be punished severely in order to prohibit evil deeds.” Then, he ordered people to beat him to death with a plank on the execution ground. When people were sent to the pit where he buried his silkworms to identify the corpse, it became rotten silkworms again.51

According to Wang Gongzhi’s confession, Henan Fuyin ordered officials to go to the place where silkworms were buried in the North Village of Cijiandian. The officials gathered neighbors and checked the case. Neighbors who used confessions to prove their words were true that Wang Gongzhi buried silkworms and did not commit other crimes. Afterwards, the officials excavated the burial place under the testimony of neighbors. The “affidavit of consent” in the Tang Dynasty was written confession of suspects in lawsuits or testimony of witnesses and some other written materials. For example, the Old Book of Tang Biography of Yao Chong recorded in September, the 1st year of the Shengong period (697 A.D.), Empress Wu said that “we should let close subjects go to prison and interrogate personally, and obtain an affidavit of consent, so that the confession of guilt is true”.52 In November, the 9th year of the Dahe period (835 A.D.), Qiu Shiliang reported to throne Wang Ya’s rebellion and put him in prison. “Delivered Ya’s affidavit of consent to the emperor and let the left Puyi Ling Huchu and Right Puyi Zheng Qin show it to everyone”,53 and they all said it was the handwriting of Wang Ya. Rotten silkworms channeled and changed into a dead man’s left arm in the article “Wang Gongzhi” of San Shui Xiao Du was of course fictitious. However, the government visiting and investigating the case and the testimony of the neighbors have no difference from the litigation rules of the Tang Dynasty. In addition, laws in the Tang Dynasty had certain restrictions on the qualifications of witnesses: “according to law, the witnesses should permit and conceal mutually with suspects, and people over the age of eighty, or under the age of ten, or seriously ill cannot be ordered to testify, penalties for offenders is reduced by three levels than that of criminals”.54 As a result, neighbors who served as witnesses should follow the above provisions, cohabiting relatives, old and young people and people who were very sick should be excluded.

51

San Shui Xiao Du, Shanghai Classics Publishing House, 2000, p. 1178. Old Book of Tang, Volume 96, p. 3021. 53 Zi Zhi Tong Jian, Volume 245, p. 7915. 54 Comments on Laws of Tang Dynasty, Volume 29, p. 551. 52

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6 Joint and Several Liability of Neighbors “The system of joints and several liabilities of neighbors is based on Shi Wu.”55 Neighborhood joints and several liabilities were the direct product of neighborhood mutual guarantees. Neighbors not only have to bear the obligation of prosecution and proof but also share some criminal responsibility for major crimes. Dai Yanhui pointed out, “Neighborhood joint and several liability mean colleagues and wubao of criminals should bear joint liability… This has been said since Qin Dynasty that neighbors (Shiwu) or fellow colleagues were jointly and severally liable for criminal responsibility; and other words such as Xiangsi, Xiangmusi, Xiangjiansi, etc., also mean joint and several liability.”56 As far as its historical origin is concerned, the system of joint and several liability of neighbors can be traced back to Shang Yang’s Reformation in the 10th year of Emperor Xiaogong of Qin Dynasty (352 A.D.), when Shang Yang decided to reform the law: Ordering people to form into Shiwu (Liu said in Suo Yin, “Five families form a Bao, ten Bao are connected with one another.” Justice: A Bao consists of five or ten families), and Xiangmusi should bear joint liability (Suo Yin: Musi refers to mutual reporting. If one family is guilty, the other nine should report it together, or all ten families should bear joint liability. Because of the fear that reform is not feasible, a severe prohibition is set up). People who do not report criminals shall be cut in two at the waist, and those who report offenders shall be rewarded as those who cut off the Enemy’s head (Suo Yin: to report a criminal can get a degree of knighthood, so it is said “to be rewarded as the people who decapitate the head of enemy”), and those who shelter criminals shall be punished as those who surrender to the enemy (Suo Yin: Those who surrendered to the enemy will be killed and had their property confiscated. Those who shelter criminals now should be punished the same way).57

As a preliminary attempt at neighborhood joints and several liabilities in the field of judicial practice, the joint liability system of Shiwu provided an example for the improvement of the joint liability system for neighbors in the future. On the basis of adhering to the system of neighborhood joints and several liabilities, the thinker Wei Liao expounded the function and value of the system of Shiwu joint liability and criminal reporting.58 The Qin Dynasty long followed Shang Yang’s joint liability system among shiwu. According to Bamboo Slips in Qin Dynasty’s Tombs of Shuhudi-Legal Questions and Answers: According to the law of “being punished as theft” and “having the same crime,” in regard to these two situations, people from the same neighborhood, dian and wu should bear joint liability.59

In the dynasties of Han, Wei and Jin, there were examples of neighbors jointly and severally liable for criminal responsibility. The Second Year Law-Law of Money, 55

Lu Simian’s Reading Notes on History, Shanghai Classics Publishing House, 1982, p. 367. History of Chinese Legal System, Three People’s Books Bureau, 1979, pp. 55–56. 57 Shi Ji, Volume 68, p. 2230. 58 Full Translation of Wei Liao Zi, Volume 3, Guizhou People’s Publishing House, 1993, p. 73. 59 Bamboo Slips of Qin Dynasty’s Tombs of Shuhudi, p. 73. 56

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“Those who steal mint money and their accomplices will be beheaded. The people who live with them and do not report will be sentenced to shave their beard and hair. If zhengdian, tiandian, wuren do not report, they will be fined four liang money.”60 There was a provision in the sixth year of the Tianfeng period of emperor Wang Mang (19 A.D.): If neighbors of those who stole mint money do not report, they will be considered committing the same crime as the theft: “Those who privately mint coins will serve as the servants of officials together with his wife; and if the officials and people from the same Wu know it but do not report, then they will be considered to have committed the same crime as the criminals.”61 Book of the Northern Wei Dynasty-Biography of Gao You recorded that You designed a way to prohibit theft, that is let neighbors report thieves, “every five people have to guarantee each other, if someone steals, then others have to bear joint liability. This may be cumbersome at first, but after a good atmosphere spreads everywhere, theft will disappear”.62 In the spring of the second year of the Xiping period (517 A.D.), Empress Dowager Ling ordered: If neighbors did not report those who privately shave other people’s servants into monks, they should bear joint and several responsibilities: “The phenomenon of shaving someone else’s hair into a monk occurs only because three zhang are not blamed, so they often permit and conceal. From now on, the crime of shaving someone else’s hair into a monk is equal to violating the imperial edict. The leader of the neighborhood will be the first to bear the brunt, and the punishment for leader of li and dang is reduced by one degree. When the population of privately shaving others into monks in the county reaches fifteen people, thirty people in the shire and thirty people in the state, then the leader will be removed from their position, and officials should bear joint liability. Those who were privately shaved into monks will be assigned to slavery in their own state.” The law at that time abandoned deprivation and cannot change the phenomenon.63

It can be argued that the purpose of establishing joint and several liabilities in imperial edicts was still complementary to the neighborhood reporting obligation mentioned above. Because li bao and xiang dang at the grassroots level were often lazy in fulfilling their duty of reporting in practice, the government set up laws to urge neighbors to go about and make inquiries into transgression and report it to the government in time; otherwise, they would bear worse legal consequences. In the specific period of the Tang Dynasty, the joint liability for specific crimes was set in a special form in addition to the common law, thus forming the practice of neighborhood joints and several liabilities of major crimes. For example, in the first year of the Yongchun period (682 A.D.), privately minting money was forbidden, “people who privately mint money will be sentenced to death, and the neighbors, bao, li, lane and cunzheng should bear joint liability”.64 The ban on cattle slaughter was imposed in the first lunar month, the fifth year of the Dazhong period (851 A.D.). “If cattle slaughter happens, not only the litigant breaks the law, but also the 60

Bamboo Slips of Han Dynasty’s Tombs of Zhangjiashan, p. 35. Book of Han, Volume 8, p. 251. 62 Book of Northern Wei, Volume 3, p. 157. 63 Book of Northern Wei, Volume 114, p. 3043. 64 New Book of Tang, Volume 54, p. 1384. 61

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neighborhood will be severely punished, and the officials and prefectural governor of the county will be punished in turn.”65 The prohibition of privately minting money and cattle slaughter in the above imperial edicts had certain limitations of time, but its legal effect was undoubted during implementation. Yin Hua Lu recorded that a person had been against three prohibitions of slaughtering cattle, brewing privately, playing music on the anniversary of emperors or queens’ death, and implicated his neighbors: And a neighbor was bewildered by witchcraft. When disasters happened, he worship gods, so he killed a calf, brewed wine, and played drums to offer sacrifices. At that time, the government forbade slaughtering cattle and brewing liquor privately, and the law was very severe. It was also the anniversary of the emperors’ or queens’ death, playing music was forbidden. He committed three crimes and was arrested by officials. The head of the family and the neighbors were all regarded as committing a felony, and dozens of people were involved. It is a disaster caused by the use of magic to relieve the disaster facing them. It’s really stupid.66

In the late years of Emperor Wu Zong, private brewing was prohibited, and the liquor monopoly system was once implemented in Yangzhou and other places. The laws of the liquor monopoly system in the southern prefectures of the Yangtze River were very strict and often involved neighbors. Therefore, an imperial edict was issued in September, the 6th year of the Huichang period (846 A.D.) and stipulated that: Eight prefectures, such as Yangzhou, set up a liquor-yeast monopoly system, sold liquor in government stores, and paid the fee of liquor monopoly for people to finance military expenses. Each prefecture had monopoly and licensing restrictions. The five places of Yangzhou, Chenxu, Bianzhou, Xiangzhou and Hedong have a liquor-yeast monopoly system, and three places of Western Zhejiang, Eastern Zhejiang and Eyue sell liquor in government stores. When people heard that the prohibition of privately selling wine is too harsh and that one person violates the law many families may get involved, there will be resentment among the neighborhood. From now on, if someone sells alcohol and makes liquor-yeast by himself, only he will be punished and tolerant and punished according to the evidence. If the villagers do not know, they will not be held accountable. Those who commit crimes will be severely punished but not confiscated.67

Randomly involving neighbors in a criminal case is not for people of insight to agree on the way of governance. The joint liability of the neighboring party is often regarded as an example of the cruelty of senior officials in historical documents. The Old Book of Tang Biography of Wang Shichong recorded that in the 3rd year of the Wude period (620 A.D.), Shichong ordered five families as a Bao, “if someone’s family defected and neighbors did not notice, the neighbors around would be executed. The execution of death was continuous, and people’s defection was becoming increasingly serious”.68 The New Book of Tang Biography of Han Huang recorded that in the Zhenyuan period, Han Huang was an official in Wuzhou 65

Ce Fu Yuan Gui, Volume 70, p. 749. Yin Hua Lu, Volume 6, p. 111. 67 Old Book of Tang, Volume 49, pp. 2130–2131. 68 Old Book of Tang, Volume 5, p. 2233. 66

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County, and “there were people who violated the government order, and his neighbors were slaughtered, and hundreds of people were executed for the crime”.69 He was accused of “being mean to the people below and treating the people above and regarding himself as meritorious”. Five Dynasties inherited the chaos of the Tang Dynasty and used harsh laws to govern the people, and the system of joint liability among neighbors became harsher. In banning economic crimes such as salt smuggling and money-making, imperial edicts were often used to emphasize the mechanism of neighborhood guarantee, and high rewards were used to encourage neighbors to report one another. On May 7th, the fourth year of the Changxin period in the late Tang Dynasty (933 A.D.), the imperial edict said that those who reported private salt were rewarded: In places where fine-grained salt is to be eaten, prefectures and counties distribute salt, and there is a government department selling salt. There has been no ordinance prohibiting the scraping of saline-brine-containing floating earth for the purpose of watering, boiling and cooking salt. People, regardless of how much private salt they sell, will be sentenced to death. Neighbors and all kinds of people are allowed to report and be rewarded according to the level.70

An edict was issued on September 18, the Guangshun period of Later Zhou (952 A.D.): private salt and brewing wine privately was prohibited. Neighbors who send a secret message to people who were selling private salt and their own brewed wine should be judged by the law. Villagers and neighbors are responsible for assisting the government in inspecting salt frost on saline-alkali soil. (1)

(2)

(3)

69

If a person commits the crime of selling one Liang to one Jin illicit salt, he will be punished with seventeen beatings on the buttocks and one year’s hard labor; if one to five Jin, he will be punished with twenty beatings on the spine and three years’ hard labor; if over five Jin, he will be beaten to death. If Guan Jin, Men Si, Xiang Xun, neighbors leak information, they will be executed as well. If a person privately scraps saline-brine-containing floating earth and water, boils and cooks salt for less than one Jin, he will be punished with twenty beatings on the spine and three years of hard labor; if more than one Jin, he will be beaten to death. If a person who sells illegal salt is caught in frying soil and water containing salt, he must be convicted according to weight. Where there is saline-alkali soil that contains salt frost, local officials will often go to inspect, and villagers and neighbors should pay attention to one another. If there is any violation of the law, it will be executed as well, even if found elsewhere. The catchers and reporters who catch people selling illicit salt are rewarded with money from the province. The people who catch the person sentenced to death will get 50 Guan; the people catch the person not sentenced to death will get 30 Guan.71

New Book of Tang, Volume 126, p. 4435. Ce Fu Yuan Gui, Volume 70, p. 749. 71 Ce Fu Yuan Gui, Volume 494, pp. 5608–5609. 70

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The villagers’ and neighbors’ responsibility for inspecting within the jurisdiction was reiterated in salt law reform on August 24, the 2nd year of the Xiande period in the Late Zhou Dynasty (955 A.D.): “If there is land containing salt that does not belong to the public, it needs to be identified, and the local government should send cadres and Jieji that in charge of salt, villagers, landlords, and neighbors to patrol the land. If someone secretly scraps the salty soil, he will be arrested… Not only the person who scrapes salty land is to be punished, the local Xunjian, Jieji, Suoyou and villagers will be sentenced to two and a half years’ imprisonment and a month’s public display, as before”.72 Two imperial edicts were issued in March, the 1st year of the Guangshun period (951 A.D.) and in September, the 2nd year of the Xiande period (955 A.D.) in the Late Zhou Dynasty, asking neighbors to report the private collection of bronze wares, intending to stop the source of private casting: An edict was issued on March 28, the 1st year of the Guangshun period in the Zhou Dynasty: Bronze wares will not be prohibited in public places in the future and can be sold at will. All the money cannot be cast into bronze ware to sell; someone who is reported to violate the law, no matter how much weight involved, will be executed. Local officials at all levels will be sentenced to one year’s imprisonment, every neighbor will be punished with seventy beatings, and the accuser will be rewarded with one hundred Guan.73 An emperor edict was issued on September 1st, the second year of the Xiande period…The bronze wares in the two capitals and every prefecture and various kinds of copper used in the installation of hinges should be destroyed within fifty days and then sent to the government. The copper that hand over privately will be paid according to weight. If a person hides and buries in a cellar for one Liang to one Jin of copper, both the criminal and the people who know about it will be sentenced to two years’ imprisonment, and Suoyou, Jijie and neighbors will be punished with seventy beatings, and the catchers and reporters will be rewarded with ten Guan; if one to five Jin, both the criminal and the people who know about it will be sentenced to three years’ imprisonment, and Suoyou, Jijie and neighbors will be punished with ninety beatings, and the catchers and reporters will be rewarded with twenty Guan; if over five Jin, no matter how much, the criminal will be sentenced to death, and the people who know about it will be sentenced to three years’ imprisonment and one years’ hard labor, and local officials at all levels and neighbors will be punished with one hundred beatings, and the catchers and reporters will be rewarded with thirty Guan.74

Adapting to the rescue obligation among neighbors under the specific circumstances stipulated in the Laws of Tang Dynasty, the duties of reporting, proof and joint responsibility among neighbors had no clear legal basis. Therefore, specific obligations were set up for specific behaviors in specific time and space by means of a special imperial edict. Most of such legislation does not have a universal legal effect.

72

Five Dynasties’ History, Volume 146, pp. 1953–1954. Five Dynasties Hui Yao, Volume 27, p. 436. 74 Five Dynasties Hui Yao, Volume 27, p. 437. 73

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7 Summary This chapter discusses the legal relationship of neighborhood litigation. Influenced by the Chinese farming culture, because neighbors are closely related in production, residence and living, the traditional thought of hating to leave a place where one has lived long has become an important driving force to promote the long-term development of the concept of good neighborliness. From the Qin and Han Dynasties to the Sui, Tang and Five Dynasties, neighborhoods guaranteeing each other were the basic mode of rural social management in successive dynasties. First, the rescue obligation among neighbors set up in the Laws of Tang Dynasty for situations of “making avoidance while holding hostage”, “do not notify and rescue when seeing a fire”, and “neighbors are robbed” is a direct reflection of the traditional neighborhood guarantee system at the level of criminal proceedings and can also be regarded as a realistic reflection of the concept of harmonious neighborhoods. Compared with the legal salvage obligation among neighbors when neighbors encounter kidnapping, fire and robbery, the reporting obligation among neighbors is relatively weak. Restricted by the traditional system of neighbors guaranteeing one another. Since the Qin and Han Dynasties, the Laws of Tang Dynasty did not prohibit neighbors from reporting, and it required prosecutors to bear the burden of providing evidence and questioning witnesses on the premise of accepting coercive measures. Therefore, if there is no direct disputation on interest or economic interest, peeping at neighbors’ privacy and disclosing others’ crimes would be disregarded by traditional ethics, and it also runs counter to the general mindset of people’s self-preservation. Therefore, “neighborhood reporting one another” in the Tang Dynasty gradually changed from compulsory norms to selective norms, and most of the compulsory measures, telling, proof, cross-examination and other matters after entering the reporting procedure, were degraded to litigation practice. Second, according to whether it is directly related to their own interests, neighbors reporting one another can be divided into two categories: neighbor reports and neighbors involved in litigation. Neighbors essentially have the litigation rights of controlling suspects, sending suspects to the law department. To determine the causes of cases, the government could summon and ask neighbors. Although the Tang Dynasty often had instances of detaining and interrogating neighbors, such behavior was often looked down upon by wise officials. Although Orders of Prison Officers permitted detaining neighbors who reported, there was no direct basis for neighbors to bear the burden of proof in the field of criminal proceedings. However, there has been a long-standing practice of the government to detain and interrogate neighbors without authorization in practice. Last, in the case of major crimes, neighbors must share part of the criminal responsibility. In the specific period of the Tang Dynasty, the joint liability for specific crimes was set in a special form in addition to common laws, thus forming the practice of neighborhood joints and several liabilities of major crimes. In the litigation practice

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of the Five Dynasties, the obligations of reporting, proof and joint and several liabilities among neighborhoods were mostly handled according to conventions. Among them, coinage, alcohol monopoly and salt monopoly systems, which are related to the national economy and people’s livelihood, were the key areas of the generation and practice of neighborhood litigation-related conventions.

Part III

Research on Prosecution Practice

Chapter 5

Prosecution Principles

1 Mandatory Prosecution Principle 1.1 Secret Report of Treason and Rebellion to the Nearby Government For all kinds of crimes seriously endangering the feudal order, insiders assume mandatory reporting obligations. Among these crimes, the duty of informing against the major crime of rebellion is particularly important because it “will destroy social status and ethics, destroy the scholar-bureaucrat class”. According to the article “knowing treason and rebellion but do not report” in Comments on Laws of Tang Dynasty-Lawsuit, “Those who know treason and rebellion must report to the local government secretly, or they will be hanged. Those who know defection and do not report will be exiled to two thousand miles away. The punishment for those who know someone libel or accuse the emperor and heresy that deceiving people and do not report is reduced five degrees from that of the criminal.”1 This article stipulated the basic principle of compulsory prosecuting major crimes to the nearby government. Insiders, whether they are involved in the case or have a permitting and concealing relationship with the parties involved, must prosecute the government secretly. Among them, the acts of harboring “rebellion” and “treason” that endanger the feudal state should be banished two thousand miles away, and the acts of great disrespect of “libeling or accusing the emperor” and the crimes of “saying heresy that deceiving people” should be sentenced for two years of imprisonment. When rebellion, treason, someone libels or accuses the emperor and heresy that deceiving people are prosecuted, the government must accept and hear the case and send people to capture the criminals immediately. “If the government does not arrest criminals

1

Comments on Laws of Tang Dynasty, Volume 23, p. 427.

© Science Press 2021 X. Chen, A Study of Criminal Proceeding Conventions in Tang Dynasty, https://doi.org/10.1007/978-981-16-3041-5_5

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immediately after being informed, it will bear the same crime as those who do not inform truth after half day passed by; if the matter needs to be planned, government won’t be punished as the criminal even it exceeds time limit”.2

1.2 Prosecuting Within a Time Limit After Relatives Have Been Killed It was strictly forbidden to make reconciliation in private with regard to crimes such as robbery, theft, and homicide that seriously endanger the safety of persons and property. Families and neighbors of victims must report to the government. According to the article “make reconciliation in private after relatives have been killed” in Comments on Laws of Tang Dynasty-Theft: If grandparents, parents and wives were murdered, and those who made reconciliation in private were banished 2,000 miles away; if Qiqin were murdered, they were sentenced to two and a half years of imprisonment; if relatives who were farther than Dagong were murdered, the sentence for them was reduced by one degree from that of Qiqin. If there are people who receive a lot of money, they will be punished according to the crime of bandits. When relatives closer than Qiqin were killed and people did not inform the government within 30 days, although they did not make reconciliations in private, the sentence for them was reduced by two degrees.3

The thought of revenge in ancient China has a long history. The book of Rites-Quli recorded that “one can’t live under the same sky with the enemy who killed his father, deals with the enemy who killed his brothers with anything on his hand, even without going home to take weapons, and can’t live in the same country with the enemy who killed his friends”.4 Moreover, this idea was very influential because it was praised highly by Confucianism. The laws in the Tang Dynasty required victims’ relatives to report promptly and solve the case of relatives being killed through proper litigation procedures. While prohibiting private reconciliation, the law clearly stipulated the subjects and time limit of prosecution for such cases: Those who know that their grandparents, parents and wife were murdered and did not report within 30 days shall be sentenced to two and a half years’ imprisonment; those who know that Qiqin were murdered and did not report within 30 days shall be sentenced to one and a half years’ imprisonment. In addition, slaves and domestic servants assumed the legal obligation to conceal their masters unilaterally. If their masters were killed, slaves and domestic servants accepted money and reconciled privately and did not report to the government, “their descendants would be punished”.

2

Comments on Laws of Tang Dynasty, Volume 23, p. 427. Comments on Laws of Tang Dynasty, Volume 17, p. 333. 4 The Exact Implication of the Book of Rites, Volume 3, p. 98. 3

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1.3 The Victims’ Family and Neighbors’ Prosecution The main mode of production in ancient Chinese was farming civilization, which brought about the lifestyle of hating to leave a place where one has lived long and gregarious neighborliness. Zhang Guogang pointed out, “In the Tang Dynasty, there were two kinds of organizations in the rural grassroots society below the county government, one was country and li, the other was village and lane, both of which were based on the households of the residents. One hundred households were grouped into li, and five li were one village, which was a grassroots administrative organization with grassroots political power; the residents in the city were grouped into lanes, and the residents in the countryside were grouped into villages. This is the residential community organization, which is mainly responsible for public security responsibilities.”5 The Tang Dynasty attached great importance to the construction of the grassroots rural joint security system. The “robbery and homicide” clause in Comments on Laws of Tang Dynasty-Lawsuit stipulated that the family members of victims and the people in the same Bao should immediately report to the government when robbery, murder and theft occur. If the family members of the victims and the people in the same Wu could not prosecute, the neighboring households should bear the responsibility of prosecuting: When finding robbers and homicide cases, family members of the victims and the people from the same Wu should inform the officials in charge immediately. If the family members of victims and the people from the same Wu are weak, the people from the neighboring Wu should prosecute. Those who should prosecute but not should be punished with sixty beatings for one day late. If officials in charge do not immediately report to the superior, they will be punished with sixty beatings for one day late and one hundred beatings for three days late. If the officer in charge evades the case without immediately verifying or catching the prisoner after being told the case, he shall be sentenced to one year’s imprisonment for one day late. The punishment for them is reduced by two degrees from that of the cases of robbery and homicide in regard to theft.6

At the same time, the Laws of Tang Dynasty set up mandatory rescue and reporting obligations in the neighborhood. When encountering robbery or homicide, neighbors shall fulfill their legal duty of salvation in the event that the victims appealed for help or call for rescue. If one could not, he must report to the local authorities as soon as possible. According to the “officials responsible for inspecting criminal acts but do not impeach by listing crime” clause of Comments on Laws of Tang Dynasty-Lawsuit, the people who knew that the wife of the people from the same Wu was at home do not prosecute when there was a crime “shall be sentenced to one year’s imprisonment if the criminal committed a capital crime; be sentenced to one hundred beatings if the criminal committed a crime that will make him exiled; be sentenced to seventy beatings if the criminal committed a crime that will make him imprisoned”.7 The 5

Rural grass-roots organizations and its evolution in Tang Dynasty, Peking University Journal (Philosophy and Social Sciences), 2009 (5): 125. 6 Comments on Laws of Tang Dynasty, Volume 24, p. 449. 7 Comments on Laws of Tang Dynasty, Volume 24, p. 450.

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families that only had women and men under the age of fifteen who were unable to prosecute will be excused. In addition, the Laws of Tang Dynasty stipulated that if officials at all levels and supervisors such as li zheng, cun zheng, and fang zheng “know someone in their area violated the law and do not impeach, the punishment for them is reduced three degrees from that of the criminal”.8 If the censor who was responsible for prosecution and impeachment and Jin Wu knew that someone had committed a crime in their jurisdiction but did not report it, the punishment for them would be reduced two degrees from that of the criminals.

2 Restrictions on Prosecution 2.1 Restrictions on Identity 2.1.1

Restricting Relatives from Accusing Each Other

Based on Confucian patriarchal ethics, the Laws of Tang Dynasty set many restrictions on subject identity. First, it was forbidden for the younger to accuse the older. Book of Rites-Tan Gong, “Relatives can conceal one another.”9 Those who accuse their grandparents and parents ran counter to the concept of “loving one’s own relatives” and violated the principle of “mutual concealment of relatives”, so they were not allowed by the laws and regulations of past dynasties. According to Bamboo Slips of the Qin Dynasty’s Tomb of Shuhudi in Yunmeng County-Legal Questions and Answers, “Children accusing their parents, or wives and courtiers suing their masters should not be taken seriously if it does not happen in the court… If the accusation occurs, the accuser is guilty”.10 The Second Year Law-Gaolv in Han dynasty also said, “When children accuse parents, women accuse husbands, servants sue masters and their parents and wives, they should not be listened and should be beheaded.”11 Book of Northern Wei-Biography of Dou Yuan quoted Laws of Northern Wei, “The sons and grandchildren who accuse their parents and grandparents shall be sentenced to death”12 ; thus, the right of mutual concealment between relatives established in Emperor Han Xuan became a strict legal liability.13 The article “suing grandparents and parents” in Comments on Laws of Tang Dynasty-Lawsuit stipulated that children and grandchildren who sued grandparents and parents were unfilial and should be hanged according to law.14 Grandparents and parents committing rebellion, treason 8

Comments on Laws of Tang Dynasty, Volume 24, p. 449. The Exact Implication of the Book of Rites, Volume 6, p.196. 10 Bamboo slips of the Qin Dynasty’s tombs of Shuhudi, p. 118. 11 Bamboo Slips of Han Dynasty’s tombs in Zhangjiashan, p. 27. 12 Book of Northern Wei, Volume 3, p. 157. 13 The gain and loss of introducing rites into law in ancient China, Journal of Shaanxi Normal University (Philosophy and Social Sciences), 2011, (1): 17. 14 Comments on Laws of Tang Dynasty, Volume 23, p. 432. 9

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and defection were not within the restriction. Second, it was forbidden to accuse Qiqin and relatives. “Those who accuse Qiqin and the old, grandparents, husbands and his grandparents, even their accusations have been confirmed, shall be sentenced to two years’ imprisonment; if the accusations are serious, the punishment for them is reduced by one degree from that of the crime of accusations; if a person made a serious false accusation, the punishment for him is increased by three degrees from that of the crime of false accusation. In the case of accusing Dagong, the punishment for them is reduced by one degree; in the case of accusing Xiaogong, Sima, the punishment for them is reduced by two degrees; if the accusation is very serious, then the punishment is increased by one degree separately.”15 Qiqin and the old committing rebellion, treason, and defection were not within the restriction. Next, it was forbidden to accuse Sima and younger relatives. This was also the crime of accusing relatives: “those who accuse Sima, Xiaogong and younger relatives, even their accusations have been confirmed, shall be punished with eighty beatings; if the relatives are closer than Dagong, the punishment for them is reduced by one degree. “If a person made a serious false accusation of Qiqin, the punishment for him is decreased by two degrees from that of the crime of false accusation; In the case of accusing Dagong, the punishment for them is reduced by one degree; In the case of accusing relatives below Xiagong, the punishment for them is the same as falsely accusing a normal person.”16 This article in Laws of Tang Dynasty was very partial to high-ranking relatives, “Those who falsely accuse their children, grandchildren, children’s wives and concubines, and their own wives, will not be prosecuted”.

2.2 Restricting Domestic Servants and Slaves from Accusing Masters The laws of the Tang Dynasty require slaves and domestic servants to shoulder unilateral obligations of concealing for their owners. To adapt to it, slaves and domestic servants accusing their masters were prohibited. The article “slaves and domestic servants accusing masters” in Comments on Laws of Tang Dynasty-Lawsuit stipulated the penalty of slaves and domestic servants reporting the crimes of masters and their relatives: “Slaves and domestic servants shall be hanged for accusing masters except for rebellion, treason and defection (original note: the accused should be considered as confessing their crimes); if servants accuse Qiqin and grandparents of their masters, they will be exiled; if servants accuse the Dagong of their masters, they will be sentenced to one year’ imprisonment. In regard to serious false accusations, if servants accuse the Sima of their masters, the punishment for them is increased by one degree from that of normal people; in the case of Dagong and Xiaogong, punishment is increased by one degree separately.”17 Therefore, for the general crimes 15

Comments on Laws of Tang Dynasty, Volume 24, p. 435. Comments on Laws of Tang Dynasty, Volume 24, pp. 436–437. 17 Comments on Laws of Tang Dynasty, Volume 24, pp. 436–437. 16

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committed by masters, it was forbidden for slaves and domestic servants to accuse, except for rebellion, treason, and defection.

2.3 Restricting the Old, Young and Disabled from Prosecuting “People over the age of eighty, under the age of ten, and seriously ill cannot prosecute except for such crimes as rebellion, treason, defection, unfilial piety of descendants and being violated by people living together. If the government accepts the case, the punishment for them is reduced by three degrees from that of the crimes they accepted.”18 The old, young and disabled belong to special litigation subjects, and the Laws on Household in Tang Dynasty clearly defines the standard of disability: One eye blind, two ears deaf, two fingers missing, three toes missing, no thumbs in hands and feet, no hair caused by yellow tinea, can’t finish urination, goiter and so on are regarded as deformity. Idiot, dumb, dwarf, lumbar spine fracture, limb disability and so on are regarded as disabilities. Serious illness, madness, two limb disability, two eyes blind and so on are regarded as fatal illnesses.19

Therefore, the government should restrict the specific identity of prosecutors according to the decree. This article of Laws of Tang Dynasty limited the right of the elderly and the disabled to inform against rebellion, treason, defection, as well as crimes involving the interests of the elderly directly, such as unfilial piety of descendants, no one supporting the aged and being violated by people living together. Among them, unfilial piety of descendants and no one supporting the aged were exclusively for the elderly.

2.4 Restrictions on Procedure 2.4.1

Restricting Anonymous Prosecution

While legalists in the Warring States encouraged people to inform against bad things, they prohibited anonymous prosecution. Bamboo Slips of Qin Dynasty Tombs of Shuhudi in Yunmeng County-Legal Questions and Answers recorded the general principle of handling anonymous documents in the Qin Dynasty: “Letters delivered by someone anonymously must not be opened up and should be burned immediately after seeing them; Anyone who can capture the people delivering letters will be rewarded with two private servants, and the people captured will be interrogated and convicted. The law means that if the government received an anonymous letter 18 19

Comments on Laws of Tang Dynasty, Volume 24, p. 441. [Japan] Gleaning on Laws of Tang Dynasty. Bai Shi Liu Tie Shi Lei Ji, Volume 9, p. 136.

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but didn’t catch the person who delivered it, then the letter should be burned down and not opened; if catching the person who delivered it, then the letter should not be burnt down, and the person who delivered it should be interrogated and convicted”.20 The Second Year Law-Jvlv in the Han Dynasty also said, “The accused shall not be arrested or interrogated on the basis of an anonymous letter, and the person who does not comply with the provisions of the law shall be punished on the basis of committing the crime of accepting the case for unfair reasons.”21 The handling of anonymous letters in the Tang Dynasty followed the basic strategy of burning them immediately when they were involved in common cases and judging after hearing the opinions of subordinates in cases of rebellion.22 Laws of Tang Dynasty stipulated, “Those who deliver anonymous letters to accuse others of committing crimes shall be exiled to two thousand miles away. Anyone who receives an anonymous letter should burn it immediately and be sentenced to one year’s imprisonment if it is sent to the government. If the government accepts the case, the punishment for them is increased by two degrees. The accused will not be prosecuted. If you report to the superior, you will be sentenced to three years’ imprisonment.”23 If someone anonymously accuses of rebellion, treason, and defection, “and what the anonymous letter said was true, then government must consult superiors before judging; if the accusation was false, then the accuser should be regarded as committing crimes of false accusation.”

2.4.2

Petition Must Be Standardized

In the Tang Dynasty, there were strict requirements on the content and form of the petition submitted by the accuser to the government, which was in accordance with the principle of prohibiting anonymous letters mentioned above. The accuser’s name, year and month must be written in the petition; the factual narrative and the claims part should be clear and the evidence should be certain: “The person who accuses another person of a crime must write down the time, and state facts instead of uncertain things. Those who violate the law must be beaten fifty times. If the government accepts the case, the punishment for them is reduced by one degree from that of the accused crime.”24 As petitions are key factors to initiate and promote proceedings, thus, the Laws of Tang Dynasty also had stipulation concerning “exaggerating situations when helping others write petitions”: “When writing petitions for others, those who exaggerate crimes lighter than the crimes committed by the accused will be beaten fifty times; if the exaggeration is too serious, the punishment for them is reduced by one degree from that of false accusation”.25 In 20

Bamboo Slips of the Qin Dyansty’s Tombs of Shuhudi, p. 118. Bamboo Slips of Han’s Tomb in Zhangjiashan, p. 25. 22 Legal consideration of anonymous prosecution in Tang Dynasty, Journal of Humanities, 2008, (3): 169–170. 23 Comments on Laws of Tang Dynasty, Volume 24, pp. 439–440. 24 Comments on Laws of Tang Dynasty, Volume 24, p. 444. 25 Comments on Laws of Tang Dynasty, Volume 24, p. 444. 21

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the future, the judge should also interrogate according to the petition: “people who seek crimes out of the petitions will be considered as deliberately imposing crimes on others”.26

3 The Principle of Prohibited Prosecution In addition to the abovementioned notices of compulsory and restrictive prosecution, the Laws of Tang Dynasty also enumerated a large number of cases of prohibited prosecution, which extensively involve subject, trial grade, limitation of prosecution and so on.

3.1 Prohibiting Prisoners from Accusing Other Things Lei Menglin’s Comments on Laws believed that “Prisoners should not be allowed to report other things, for fear that bad guys would frame ordinary people for the fact that they have already committed crimes and are difficult to be falsely accused, so it is not accepted.”27 In the Han Dynasty, there was a prohibition against prisoners, and The Second Year Law-Gaolv: “Do not listen to the accusations made by prisoners under the age of ten and those who have been sentenced to build walls and scoop rice, and to cut firewood and cook for sacrifice”.28 In the seventh year of the Tianbao period of Emperor Wenxuan in the Northern Qi Dynasty (556 A.D.), Bai Biao, the Jianshi of Yuzhou, was impeached by Left Prime Minister Lu Fei, who falsely accused Fei of accepting bribes in prison. Emperor Wenxuan knew that he had cheated, so he put aside the prosecution and forbade the prisoners to prosecute: “The imperial edict was made, asking the heads of the government to set rules for prosecution that prisoners cannot prosecute”.29 The article “Prisoners shall not report other things” in the Comments on Laws of Tang Dynasty-Lawsuit stipulated, “Prisoners shall not report other things, except the cases of being abused by the warden”.30 Prisoners were not allowed to prosecute for other crimes unless they knew rebellion, treason, defection, and the ill-treatment of themselves by prison officers. Shen Jiaben, a Confucian of the Qing Dynasty, thought that this article in the Laws of Tang Dynasty was derived from laws in the Han Dynasty. Book of Jin Dynasty System of Penal Code, “If a prisoner falsely accuses rebellion, he will get his family members into troubles. Because he is different from the ordinary people, so implicating relatives can reduce penalty at the same time of eliminating the phenomenon of 26

Comments on Laws of Tang Dynasty, Volume 29, p. 555. Comments on Laws, Volume 22, Law Publishing House, 1999, p. 415. 28 Bamboo Slips of Han Dynasty’s Tomb in Zhangjiashan, p. 27. 29 Book of Sui, Volume 25, p. 704. 30 Comments on Laws of Tang Dynasty, Volume 24, p. 440. 27

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false accusation.” Note: This is one of the revisions of the Laws of Han Dynasty in the Wei Dynasty, which proves that there were laws against prisoners who falsely accused others of rebellion in the Han Dynasty, and the Wei Dynasty had especially aggravated it. The Laws of Tang Dynasty had an article on the false accusation of rebellion and had an article against prisoners accusing other things. The Comments on Laws of Tang Dynasty refers to The Order of the Prison Officers, prisoners know the crime of rebellion will be heard, that is, in the case of rebellion, even prisoners can also accuse. The laws of the Tang Dynasty may also derive from the laws of the Han Dynasty.31

There are many cases of prohibiting prisoners from accusing rebellion in the literature. On April 1st, the seventh year in the Zhenguan period (643 A.D.), “the prisoner Hegan Chengji reported rebellion to the court, said that prince Chengqian, the prince of Han Yuanchang and other people are rebellious”.32 Emperor Taizong summoned Zhangsun Wuji, Fang Xuanling and other ministers to try together, and Chengqian was degraded to a common people and moved to Qianzhou.33 “The case of informing” in Prison, the 522nd volume in Finest Blossoms in the Garden of Literature, recorded that Wang Li, a prisoner in Mianzhou, accused someone of his state of rebellion and crossed the border at night. The examinees answered that “even if the informing is true, the crime of crossing the border without permission should not be exempted” for “the law has clear legal provisions for treason”.34 This can also confirm the provisions of allowing prisoners to accuse treason in the Laws of Tang Dynasty. If a person reported crimes more serious than rebellion, he should be sent to the post office and ordered to be sent to Capital. “Prisoners who have committed capital offenses and soldiers stationed in the bordering garrison need not be sent if these exiled or assigned persons inform against somebody. Those who need to check and report to the emperor need to do so in accordance with the precedent.”35

3.2 Prohibiting the Prosecution of Things Before Amnesty The amnesty is to create a new world in which people want to change their professions, to conform to rules and to preserve their lives.”36 The imperial edict had the highest legal effect in the feudal period. For crimes that had been pardoned, the accusation was prohibited, and the government was not allowed to accept it. Once the amnesty was granted, not only did the power of punishment not exist, but crimes were also eliminated, just as they were before crimes.37 Bamboo Slips of Qin Dynasty’s Tomb of Shuhudi in Yunmeng CountyLegal Questions and Answers had the provision of exempting the crime of stealing money 31

Study on Criminal Law in Past Dynasties-The Law of the Han Dynasty-The Law of Imprisonment, p. 1476. 32 Tang Hui Yao, Volume 43, p. 902. 33 New Book of Tang, Volume 80, p. 3565. 34 Finest Blossoms in the Garden of Literature, Volume 420, pp. 2126–2127. 35 Correction of the Handwritten Copy in Ming Dynasty of Tiansheng Statutes of the Tianyi Pavilion, p. 647. 36 Book of Han, Volume 12, p. 348. 37 Tracing to the Source of Chinese Procedural Law, p. 151.

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before amnesty and caught after it: “If a person stole 1000 before amnesty, and used all the money and caught after amnesty, what should be done? No investigation.”38 In more than 30 imperial edicts issued in the Tang Dynasty, the principle of “prohibiting the prosecution of things before amnesty” was repeatedly reiterated. The Laws of Tang Dynasty stipulated, “Those who report the matters before amnesty shall be punished according to the crime they have reported. If the officials concerned accepted the prosecution, they shall be regarded as deliberately adding accusations to others. Those sentenced to death because of this should be exiled.39

3.3 Prohibiting Leapfrog Appeals System of the Tang Dynasty: Anyone who had a lawsuit must “start from the bottom and go from the bottom up”. The local people should first appeal to the county government, and if they were not satisfied, they should request an “unreasonable paper” to appeal to the state; if they were dissatisfied with the state government’s decision, they could appeal to left and right prime ministers in Shangshu department, and three divisions, even to the emperor, that is, directly prosecute to the emperor by intercepting the emperor’s troop on the way, hitting the big drum hanging outside the court, shouting on the red stone at the entrance of the court, writing letters and writing a memorial to the throne. Only in this way can “low ranking officials perform their duties, and officials with high status can see results”.40 Leapfrog prosecution was the victim’s right to appeal to the higher judicial organs, and they can appeal to the higher authorities usually when the judicial organs at the same level cannot guarantee the normal exercise of the party’s right of statement.41 In practice, it mainly existed in the appeal procedure caused by private appeal (prosecution).42 According to the Tang Liu Dian: If someone wants to appeal for a new hearing for an unjust case, he must go to the local government; if it is too far and inconvenient, the case can be decided by the near government. If he refuses to accept it, he should apply for an “unreasonable paper” and report to the left and right prime ministers in the Shangshu department. If he still disagrees, he can apply an “unreasonable paper” again and appeal to the three divisions to make a statement. He who disagrees with the result can write a memorial to the throne. If the people who accept the memorial are not sensible enough, they can beat the drum outside the court. People who cannot complain by themselves, such as people without brothers, old people without sons, old people and children, can stand on red stones in front of the government.43

Due to the cumbersome procedure of step-by-step litigation and the high cost, people often leapfrog prosecutes in practice. The Comments on Laws of Tang Dynasty clearly stipulated the rules of punishment for leapfrog prosecution: “All the people 38

Bamboo Slips of the Qin Dynasty Tombs of Shuhudi, p. 102. Comments on Laws of Tang Dynasty, Volume 24, p. 442. 40 Comments on Laws, Volume 22, Law Publishing House, 1999, p. 400. 41 Legal History of the Southern Song Dynasty, People’s Publishing House, 2011, p. 197. 42 A Study of the Litigation System in Tang Dynasty, Commercial Press, 2012, p. 135. 43 Tang Liu Dian, Volume 6, p. 192. 39

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who leapfrog prosecute and the officials who accept them are punished with 40 beatings. People who push downward and not accept the cases that should be handled shall be punished with fifty beatings; if they push downward three cases, then the punishment for them is increased by one degree, and if they push down ten cases, they are punished with 40 beatings.”44

3.4 Prohibiting False Accusations Accusers should be punished according to the crime he falsely accuses others” was the basic principle that ancient Chinese judicature long upheld and “is the fairest”.45 Since the Qin and Han Dynasties, this principle has become a definite system and has been strictly observed by all generations. Bamboo Slips of the Qin Dynasty’s Tomb of Shuhudi in Yunmeng County-Legal Questions and Answers: “People who are punished to do hard manual work falsely accuse others of committing crimes should be punished with tattooing and doing hard work. How should we deal with it? He should be punished with tattooing and doing hard work.”46 In the first lunar month, the 5th year of the Huangchu period during Emperor Huang Wendi’s reign (224 A.D.), “Orders were issued to prosecute and expose only crimes of great iniquity, such as rebellion, and other charges were not accepted by the government; if anyone dared to frame someone, he should be punished according to the crime he falsely accuses others”.47 That is, accusing crimes other than rebellion was regarded as false accusations. Zhang Fei’s Zhu Lv Biao said that “those who falsely accuse others of treason will be punished as committing treason”.48 The Laws of Northern Wei Dynasty also stipulated that “false accusers should be punished according to their false accusations”.49 In the Tang Dynasty, a law was established to punish false accusations, and false accusers “were punished according to the crime they falsely accused”, that is, people would be punished according to their false accusations: “The accuser should be punished according to the crime he falsely accuses others. The officials in charge of impeaching who falsely impeach officials for their own interest will be punished the same way.50

4 Lawsuits Accepted Only When Prosecuted The Laws of Tang Dynasty inherited the principle of “taking the relationship between relatives expressed by the five clothes as the basis for conviction and sentencing”51 and stipulated that some cases “accepted only when prosecuted”, similar to the 44

Comments on Laws of Tang Dynasty, Volume 24, p. 447. Combination and Reorganization of the Law of the Tang and Ming Dynasties, Volume 24, Law Publishing House, 1998, p. 658. 46 Bamboo Slips of the Qin Dynasty’s Tomb of Shuhudi, p. 121. 47 The Records of Three Kingdoms, Volume 2, Zhonghua Book Company, 1959, p. 84. 48 Book of Jin, Volume 60, p. 1334. 49 Book of Northern Wei, Volume 60, p. 1334. 50 Comments on Laws of Tang Dynasty, Volume 23, p. 428. 51 Book of Jin, Volume 30, p. 927. 45

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modern law of self-incriminating criminal cases. Such cases are mostly related to family crimes; because identification and adjudication involve the weathering of privacy, the victim must personally bring a complaint to the government; otherwise, the judicial organ cannot take the initiative to intervene. The cases accepted only when prosecuted stipulated in the Laws of Tang Dynasty mainly included two types: the elderly’s accusation of the unfilial behavior of not supporting them and kinship violations, including the following four types: First, unfilial people who are not fulfilling their obligations are sentenced to two years’ imprisonment, “when the conditions of the family permit and the parents are not supported, the grandparents and parents may file a complaint of unfilial behavior, then can they be convicted”.52 Second, those who beat their wives and concubines “only when their wives and concubines accuse them can be convicted”.53 If people are beaten to death, the outsiders can accuse regardless of whether they are intimate. Third, wives who assaulted husbands “can be convicted only when their husbands accuse them”.54 Fourth, “wives and concubines assaulted the parents of their husbands shall be sentenced to three years’ imprisonment, and “they can also be convicted when parents-in-law accused them”.55 The abovementioned “accepted only when prosecuted” are all violations within the family, of which the last three categories are related to marital assault. Xu Yuanrui had such an argument for the disposition of such acts: Husbands and wives fight with each other out of momentary anger, not resentment, and will not cause death. Even if the parents and brothers of the husband and wife go to the government to complain, they will not be convicted. If the beaten man accuses himself, it shows that he is discontented, and the love between them can be seen, and then the case can be judged according to law.56

Family matters are hard to deal with. If it was not the case personally told by the parties, it would not be accepted according to the law. In ancient China, when dealing with the case of “accepted only when prosecuted”, full consideration should be given to the wishes of the parties themselves, and the government should not take the initiative to intervene and weigh it.

5 Summary There are many principles for prosecution in the Tang Dynasty, which can be roughly divided into four categories, including “the principle of compulsory prosecution”, “the principle of restricted prosecution”, “the principle of prohibited prosecution”, and “lawsuits accepted only when prosecuted”. Under these four principles, there 52

Comments on Laws of Tang Dynasty, Volume 1, p. 13. Comments on Laws of Tang Dynasty, Volume 22, p. 410. 54 Comments on Laws of Tang Dynasty, Volume 22, p. 410. 55 Comments on Laws of Tang Dynasty, Volume 22, p. 415. 56 A Guidance to the Bureaucratics, p. 96. 53

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are a number of detailed items. The abovementioned principles are the benchmarks to guide prosecution and acceptance of cases by the government and have important reference significance for judging the convention of criminal litigation practice.

Chapter 6

Impeachment

Impeachment refers to one of the basic ways for the censorate and other supervision organs to expose and impeach officials’ and some rich and powerful families’ illegal and criminal acts.1 Academia has conducted an in-depth study on the impeachment function of Censorate from the perspective of judicial supervision.2 However, the investigation of its prosecution function has yet to be deepened. As a way of prosecution, Censorate impeachment greatly differs from filing lawsuits and appealing to the jurisdiction in many aspects, such as persons who are filed lawsuits, reasons to accuse, legal proceedings and disposal rules. In the field of impeachment litigation, the “old system” in previous dynasties was followed so that the distinctive convention characteristics of such a way of prosecution were highlighted.

1 Evolution of Impeachment Practices Beginning in the Qin dynasty, the Chinese Censor system was called Yushi Fu in the Qin and Han dynasties and changed to Xian Tai in the Eastern Han dynasty. It was named Lan Tai in the Wei, Jin, Liu and Song dynasties and Yushi Tai in the Liang,

1

History of Chinese Procedural Law, pp. 43–47. A Textual Research on the Impeachment System in the History of China, Academic Monthly, 1981 (8); Research on Impeachment Due to Rumors, Politics and Law, 1986 (5); Recommendation and Impeachment System of Censor in Tang Dynasty, Study on Chinese History, 2003 (1); Research on Development of the Status of Censor in Tang Dynasty, Journal of Naikai University (Philosophy and Social Sciences), 2005 (4); The Study of the Supervision System in Tang Dynasty, The Commercial Press, 2005; A study on the Right of Impeachment in the Sui Dynasty, Journal of Historical Science, 2005, (11); An Analysis of the Transformation of the Judicial Function of the Censorate in Tang Dynasty, Journal of China University of Political Science and Law, 2010 (3); A Study on the Impeachment of the Censor in Tang Dynasty, master’s degree thesis of University of Anhui, April 2012; “Jinzhuang” and “Guanbai” in Tang Dynasty and The Impeachment Standard of Tang Dynasty—Discussed with Hu Baohua, Journal of Tianshui Normal University, 2013, 3. 2

© Science Press 2021 X. Chen, A Study of Criminal Proceeding Conventions in Tang Dynasty, https://doi.org/10.1007/978-981-16-3041-5_6

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Chen and Bei dynasties. The early Tang dynasty followed the previous system. From the period of Gaozong to the early period of Xuanzong, the power to make and formulate the positions often changed. In the 2nd year of the Longshuo period (662 A.D.), it was changed to Xiantai but restored to Yushi Tai again during the years of Xian Heng. In the 1st year of the Guangzhai period (684 A.D.), it was divided into left and right Tai, named the left and the right Suzheng Tai. The left Tai was responsible for officials in capital and the right Tai provinces. In the Shenlong period, it was restored to left and right Yushi Tai. It was abolished in the period of Yanhe and rebuilt in the 2nd year of the Xiantian period (713 A.D.), but abolished again in October. As far as its duties were concerned, the impeachment of the gentry and offspring of the nobility were always the primary responsibility of the constitution. According to Tong Dian: To be a censor was a kind of hard work. Censors had to impeach anything illegal so that almost every official was terrified and worried a lot. No one could be compared with them because of their strictness. According to the old system, if censors impeach according to hearsay, they could just give the outline.3

In the Tang dynasty, Yushi Tai, from Dafu, Zhongcheng to Yushi in Tai, Dian and Cha depatments, had the responsibility to impeach what a government official did whether legal or not. The right to impeach Xiansi (another name of Yushi) was used by every Yushi submitted to Dafu and Zhongcheng. At that time, the position that Yushi wanted to recover because of someone’s rectitude was given by the emperor,4 not Libu Yushi in Tai department was responsible for impeaching every official, Yushi in Dian department took charge of the impeachment of the Instrument and Yushi in Cha department held responsibility to supervise officials in the level of province and county. As for the object of impeachment, from general officials to prime ministers, from individual officials to government agencies, from central to local, officials regardless of deceased or alive, no one was the exception.5 The “old system” of Taisi is an important part of the impeachment rule in the Tang dynasty. The “previous system” means the old, precedent, and usual practice, which refers to habitual rules that have long been applied in practice and not expressly stated in the law, but some of them are not recorded and identified, some of which were “not recorded and had no origin.”6 There had already been the habitual rule of impeachment in the Han dynasty, which Zhang Yan said was recorded in the Book of Han: “According to the old system, if there was someone impeaching, the gate should be closed and no one was allowed to enter.”7 The practice of the socalled “hearsay” recorded in Tang Hui Yao could be traced back to the Wei and Jin Dynasties. According to the Rong Zhai Sui Bi by Hong Mai, “Maybe from Jin and Song dynasties, Censor was permitted to impeach according to hearsay 3

Tong Dian, Volume 24, pp. 659–600. Middle Level Civil Servants in Tang Dynasty, Linking Publishing Co., Ltd., 2008, p. 65. 5 The Impeachment of Imperial Officials in Censorate of Tang Dynasty, Journal of Fujian, 1989, (3): 61. 6 Tang Hui Yao, Volume 17, p. 1154. 7 Book of Han, Volume 90, p. 3667. 4

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which was talked by many people, never making an inquiry about the source of the hearsay.”8 So, Censors can admonish to the emperor about something impeachable that was proved to be true. Until mid-Kaiyuan, the convention of the duty tended to be institutionalized. The following can be seen as an example of transformation from the rule of the lawsuit to the regulation of law: Previously, the censorate never accepted a lawsuit. If there were some cases in hand, leaving out names, censors would pick up some to impeach, which was known as hearing from hearsay. Later, there were few censors who hated evils as his enemy but shrank responsibility to each other so that the accusers were often constrained. Until the fourteenth year of the Kaiyuan period, it was first settled that censors who accepted the case should immediately report the accusers’ names. This has not been changed since ancient times.9

“The duty of a censor was to exhibit the virtue and expose the evil and to cast out the wicked and cherish the virtuous.” There were 4 “virtues” and 27 “mosts” in the method for examining government officials in the Tang Dynasty. It must be accurate and careful when censors investigate every case, and the impeachment and the recommendation must be appropriate.10 If there were some censors who did the inquiry in a cruel way, showed partiality for the culprit, catered to his superior and falsely framed others to be punished, they would be punished according to the law.11 According to the rule of “false accusation” in Comments on Laws of Tang Dynasty, in case officials who were responsible for censure and impeachment were proven to be wrong, it could be seen as a false accusation.12 In November of the 1st year of the Xiantian period (712 A.D.), Xuanzong warned all censors to abide by their duties. “If hearing that officials are inattentive, censors should investigate and report to superiors immediately. If censors indulge these officials, they would be punished according to the law.”13 To ensure the fulfillment of the duties of censors according to law, there were also supervisory systems called Shangshu and Shengzhang in the Tang Dynasty. If the impeachment proposed by censors was not appropriate, the chief executive and prime ministers could accuse them.14 To ensure Taisi’s impeachment in accordance with the law, the court has repeatedly decreed the establishment, confirmation or reform of impeachment practices. In the middle of Zhenyuan, Cui Zong, the censor and Zhang Yu, the Zhongcheng, together wrote a memorial to impeach Qi Yun, the capital official, and tended to push pressure on the government and Qi Yun, so they were suspected to be in a cabal. In March of the first year of the Zhenyuan period (785 A.D.), it was announced that from then on, one should impeach others by himself instead of in a group.15 In March of the 15th year of the Yuanhe period (820 A.D.), Cuizhi, a Zhongcheng, proposed that according to 8

Rong Zhai Sui Bi, Zhonghua Book Company, 2005, Volume 11, p. 768. Tang Hui Yao, Volume 60, p. 1226. 10 Old Book of Tang, Volume 43, p. 1823. 11 Ce Fu Yuan Gui, Volume 512, p. 5817. 12 Comments on Laws of Tang Dynasty, Volume 23, p. 428. 13 Ce Fu Yuan Gui, Volume 155, p. 1731. 14 Old Book of Tang, Volume 43, p. 1816. 15 Old Book of Tang, Volume 12, p. 348. 9

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some previous cases, although the Shi censor had a fault, he would not be impeached. After the report was done, he went out and waited for punishment.16 In such a way, the process of impeachment could be ensured to be successfully accomplished. In June, the 9th year of the Dahe period (835 A.D.), Li Guyan, a Dafu, believed that he was not able to take responsibility by himself because of the heavy and important task of the Shi censor and asked the emperor to order a Shi censor to be responsible for officials in the capital and another Shi censor to supervise officials in states and provinces. In that way, each performed his own duty.17 During the whole process of the Tang Dynasty, the rules of Censorate to impeach were always in a state of change, and the existence and operation of impeachment practices were important forces contributing to the above changes.

2 Changes of Impeachment Proceedings The censor referred to the official of supervision and should not intervene in judgment. “Learning through hearsay referred to the fact that although impeachment was involved in the criminal penalty, the name of the litigant should be omitted. From the Tang Dynasty, this system began to change in which censors were permitted to take part.”18 The impeachment procedure in the Tang Dynasty is essentially the basic way for officials to rectify official crimes. Ce Fu Yuan Gui described the forms of Censorate impeachment as follows: “Censor was an important position in which officers had to ride horses, wear Zhi and put on clothes of the judge to administrate affairs of state and rectify disciplines.”19 The impeachment procedure in the Tang dynasty is very solemn. Its main characteristics can be summarized as three aspects: reporting to the emperor, wearing Xie-zhi crowns and putting on the clothes of the judge and opening the impeachment.

2.1 Reporting to the Emperor At first, the use of the impeachment rights of censors in the Tang Dynasty was seldom fettered. When censors came across some cases that must be impeached, they had to memorialize the emperor immediately. In March of the fourth year of the Changan period (704 A.D.), Li Chengjia, one of the imperial censors, censured the censor in Taizhong because he did not consult the head censor before he impeached. Xiao Zhizhong, the official who was in charge of the discipline of public functionaries,

16

Tang Hui Yao, Volume 61, p. 1264. Tang Hui Yao, Volume 61, p. 1265. 18 Chinese General History by Lv, East China Normal University Press, 1992, p. 171. 19 Ce Fu Yuan Gui, Volume 512, p. 5817. 17

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said that before there was no superior in the Censorate, censors impeached separately without talking with others. They may report to Dafu before impeaching; if the impeachment was allowed, it was good. But how about its inadmissibility? Dafu didn’t say who was right or wrong. Chengjia admitted it right but was afraid of his rigidity.20 From that, we know that until the end of Wuzhou, the impeachment of the censor has always followed the practice of independent practice without requiring the chief executive to report it in advance. Huo Cunfu pointed out, “The basic characteristics of the previous system are its routines, or the norms that should be followed. It is in this sense that it has the characteristics of legal norms, which is binding, especially for conventional old system.”21 In the field of impeachment of constitutional officials, following the “old system of the previous dynasties” is the basic way of giving legal effect to litigation practice. With the influence of political factors and social changes in the Tang Dynasty, most of the rules of litigation changed in practice. The practice of impeachment also presents an evolving trend. Due to the impeachment of the hundred officials by censors, their duties’ pureness and importance often arouse suspicion, and the implementation of the procedures for rectification is seriously disturbed. By the end of the Zhongzong period, according to a note written in the third year of the Jinglong period (709 A.D.), a subversive change occurred in the procedure of censor rectification: Anyone who wanted to report something important had to submit a memorial three days before, and then the memorial would be taken by the superior to the judge for face-to-face impeachment. Censors also had to submit memorials in advance to impeach.22

So, the censor no longer had the right to act on its own, and the impeachment must be recorded, detained, and reported and go through other preprocedures. Until the end of the Kaiyuan period, the prime minister further impeded the exclusive right to impeach in the procedures of impeachment so that the authority of Taisi declined day by day. At the end of the Kaiyuan period, the prime minister limited the impeachment right because of its importance: censors had to consult Zhongcheng and Dafu; if they allowed the censor to impeach, the next step was to make a statement in Zhongshu and at last the impeachment would be permitted. Although one was a censor, he couldn’t impeach exceptionally. Thus, the authority of censors decreased a lot.23

At that time, when Li Linfu was in power, impeachment was informed to Zhongcheng and then Zhongshu. Finally, it could be reported to the emperor. From then on, the responsibility of the Censor became not as important as it was before. The revised impeachment procedure abolished the previous practice of “irrelevant 20

Tang Hui Yao, Volume 61, pp. 1256–1260. A brief introduction to the customary theory of Old System in Tang Dynasty, Journal of Social Sciences of Jilin University, 1993, (6): 19. 22 Tang Hui Yao, Volume 25, p. 556. 23 Notes of Feng Shi Wen Jian Ji, Volume 3, p. 24. 21

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things”24 in impeachment and established the practice of “submitting documents and reporting to superiors” in impeachment. Constrained by numerous barriers, the exercise of the right to impeach censors is difficult. The “submitting documents and reporting to superiors” system posed a serious threat to the independent exercise of impeachment by the censors. After the rebellion of An and Shi, emperors Shu and De both wanted to restore the old system of the Zhenguan period. On October 20 of the 1st year of the Zhide period (756 A.D.), it was announced that according to the old system in the Zhenguan period, censors did not have to impeach together with Dafu and talk about state affairs, reporting to the prime minister in advance.25 However, the newer “old system” recorded in Tang Hui Yao that censors could report to Dafu if there were any government officials who should be impeached and when it came to important affairs had already been established at the beginning of the Kaiyuan period.26 Therefore, there appeared a conflict between the “old system in the Zhenguan period” and the “old system in the Kaiyuan period”. In April of the second year of the Qianyuan period (759 A.D.), the imperial order said that if censors wanted to impeach, they wouldn’t have to report to their supervisors.27 All impeachment, clearly according to the old system in the Zhenguan period, thus substantially negated the Kaiyuan period since the end of the imperial impeachment in advance of Guanbaijin customary practice. On June 1st of the 14th year of the Dali period (779 A.D.), Emperor De emphasized again that “Xian Si impeached according to the old system in the Zhenguan period.”28 It can be seen that the description of impeachment in the Tang Dynasty is a portrayal of the reduction of the power of impeachment of the Constitutional Department after the end of the Kaiyuan period.29

2.2 Wearing Xie-Zhi Crowns and Putting on the Clothes of the Judge It was recorded in the Book of Hou Han that “Xie-zhi was a kind of god sheep that could tell what was right and wrong. Once the King of Chu gained one and made it his hat.”30 According to Li in Kaiyuan period of Tang Dynasty volume 3, “Fa-hat, also named Xie-zhi with a corn-like shape of Xie-zhi, officials from supervision to Dafu in the censorate had to wear.”31 The origin and meaning of the Xie-zhi worn by censors in the Tang dynasty were explained in Tang Liu Dian, as follows: Fa-hat, 24

New Book of Tang, Volume 48, p. 1238. Ce Fu Yuan Gui, Volume 64, p. 679. 26 Tang Hui Yao, Volume 61, p. 1256. 27 Old Book of Tang, Volume 10, p. 255. 28 Ce Fu Yuan Gui, Volume 89, p. 980. Note [Old Book of Tang, Volume 44, p. 1862] New Book of Tang, Volume 48, p. 1235. 29 History of Late Han Dynasty, Zhonghua Book Company, 1965, Volume 30, p. 3667. 30 Da Tang Kai Yuan Li, Volume 3, p. 30. 31 Tang Liu Dian, Volume 13, p. 379. 25

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also known as “zhu hou hui wen”, taking iron as the pillar, was said to be very rigid. It was said in Qin Shi that Fa-hat, the hat of Qin Shi Huang, was given by him to censor when the state of Chu was perished by Qin. It had another name “Xie-zhi”. Censors used it as a hat because its major corn was not straight.32 In addition, the position of the censor was also called “xiuyi” and “zanbi”, which could be found in old systems. It was recorded in the Book of Han that Wang He was a “xiuyi” censor in the period of Hanwu emperor and caught up Wei Jun and a gang of robbers so that “xiuyi with axes” became the image of censors in later generations.33 Chu Xue Ji quoted from Wei Lue that once in a conference, censors sat on two sides of the step with a white pen in hair. The emperor asked others about what they were; therefore, there was no one answer. Xin Bi said they were censors with a pen in hair to impeach something illegal in old times.34 In the Tang Dynasty, if censors impeached important matters, they had to wear Xie-zhi and put on red clothes and white yarn; if impeaching trifles, they just needed to wear the informal dress.35 This system had some legacy of the Han and Jin dynasties. “Zhuyi” evolved from “xiuyi”. In old times, censors accused the guilty officials of evil deeds to the emperor, including the warning of the hundred officials.36 Wearing clothes of the judge was an important ritual for censors’ impeachment. “All departments had to talk about issues in the court and censors impeach officials wearing Xie-zhi crowns and reading impeachment documents openly”, which was an old system of the Zhenguan period.37 In March, the first year of the Jianzhong period (780 A.D.), the supervision censor Zhang Zhu, with Xie-zhi crown on head, impeached Yan Ying, the governor and Zhongcheng in the Zicheng court.38 Xie-zhi was known as a beast in ancient times, “Xie-zhi was a sheep with only one corn and could tell whether a person was guilty or not.39 When Gaoyao was in charge of making laws, he made Xie-zhi touch the suspect. From the fact that censors wear Fa-hat to impeach, we know that the meaning of fair law enforcement is self-evident. In the late Tang Dynasty, the discipline was lost, and 32

Book of Han, Volume 98, p. 4013. Note it was recorded in the Book of Han that in the end of Wu emperor, wars often happened and thieves in many counties appeared. Censors were so angry as to hold axes to catch them. These thieves were fined less than two thousand Shi.” [Book of Han, Volume 66, p. 2887] In Tang Dynasty, the “embroidered clothes holding axes” often referred to the work of censors. The Poem for Liyi, a Shi Censor Going to Youzhou said that you were so lucky to hold axes to help the emperor. [Collection of Wei, Shanghai Classics Publishing House, 1998, Volume 4, p. 260.] In the eleventh year of Tianbao period, Li Hua was appointed as a supervision censor, “he was given two thousand Shi for holding axes to manage counties. However, he was envied by some treacherous officers in Censorate so that he was replaced by others.” [Quan Tang Wen, Shanghai Classics Publishing House, 1990, Volume 388, p. 1746] Liu Zongyuan said that his father once was a Shi censor to hold the axes to rectify regulations. Collection of Liu Zongyuan, Volume 12, p. 317. 33 Chu Xue Ji, Zhong Hua Book Company, 1962, Volume 12, pp. 292–293. 34 Old Book of Tang, Volume 44, p. 1862. 35 Tang Hui Yao, Volume 61, p. 1256. 36 Zi Zhi Tong Jian, Volume 211, p. 6728. 37 Tang Hui Yao, Volume 61, p. 1262. 38 Shu Yi Ji, Zhonghua Book Company, 1931, p. 14. 39 Old Book of Tang, Volume 165, p. 4315.

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even Xie-zhi and red clothes, symbols of imperial authority, were deprived of. In the fourth year of the Changqing period (824 A.D.), Wen Zao, a Shi censor, asked to set up the rule of wearing Xie-zhi and red clothes when impeaching but did not carry out because of other officials’ discouragement.40

2.3 Opening the Impeachment In the Zhenguan period, “officials who were impeached openly by censors must be expelled to the court to wait for punishment”.41 Censors impeached guilty official openly in the court when the official was reporting to the emperor and the official had to quickly bend down and listen to his punishment immediately. If the impeachment was established, the guilty official was punished in the court and then transferred to the law department. It was recorded in the Parallel Sequence of Epitaph of the Governor of Luozhou of Tang. At the beginning of the Yonghui period, Shi censor Wang Shenshou thought Pei Yan, the head of the secretariat, was domineering and impeached him from being imprisoned.42 In August, the first year of the Xianqing period (656 A.D.), the assistant minister in Zhongshu Li Yifu killed Bi Zhengyi, a minister on the board. Wang Yifang, a Shi censor, impeached Yifu openly, but Yifu was very haughty because of his master’s love and indulgence and took a waitand-see attitude. “After three impeachments, Yifu admitted his crime; thus, Yifang kneeled to read the document.”43 In July, the fourth year of the Changqing period (824 A.D.), Li You, the general in Jinwu, presented two hundred and fifty horses. Wen Zao impeached that You presented by disobeying the imperial order, “then You was driven out to wait for his punishment but he was forgiven.”44 In the middle and late Tang Dynasty, there were still instances of impeachment. In the 4th year of the Changqing period (824 A.D.), Li You presented one hundred and fifty horses when he visited Jinwu from Xiazhou. Wen Zao impeached him in the court. Li You sweated after he went out.45 Most of the constitutional officials appealed for judicial intervention in opening impeachment, which was the official expression of impeachment prosecution. For example, in the second year of the Dahe period (828 A.D.), Wen Zao, the Zhongcheng, and Cui Li, the Shi censor, impeached Li Ting, the governor of Yicheng troop that put off the time of war and disrupted military and political affairs so that the troop was in an embarrassing position while Ting himself 40

New Book of Tang, Volume 109, p. 4102. Note Quchu is directly related with the courtesy of ancient times, meaning walking in small steps to show respect. Social Life History of Sui, Tang and Other Five Dynasties, China Social Science Publishing House, 1998, p. 298. 41 Newly Found Hundreds of Epitaph of Tang, Xiling Printing Press, 2010, p. 80. 42 New Stories in Tang Dynasty, Volume 2, p. 30. 43 Old Book of Tang, Volume 17, p. 511. 44 Ce Fu Yuan Gui, Volume 520, p. 5911. 45 Tang Hui Yao, Volume 61, p. 1264.

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avoided such situation. We ask that Ting should be punished.46 In September 3, the seventh year of the Dahe period (833 A.D.), Li Kuan, a Shi censor impeached Zheng Zhu, the general of troop to Binzhou, that he colluded with some important officials in government and asked punishment for Zheng. Within approximately ten days, he reported more than ten times. Censors wrote impeachment documents in detail. Impeachment facing the guard of honor was the sign of the formal initiation of the litigation procedure. According to the Tang system, there were six issues for how to impeach, the second of which was to report and impeach, also known as censors impeached officials of lawlessness.47 Therefore, whether the allegation was strong was the key factor that restricted the subsequent links. Impeachment documents of Tang Dynasty were preserved many historical documents such as New Book of Tang, Old Book of Tang, Ce Fu Yuan Gui, and Wen Yuan Ying Hua, of which the most famous was Impeachment for Governors in Jiannan of Yuanzhen whose whole text was clear and coherent and could be seen as an example of impeachment documents in the Tang dynasty. The article was roughly divided into three parts. First, to generalize Yan Li’s crimes, “In the past, when Yan Li was a governor of one or more provinces and observer in Dongchuan, he confiscated houses and slaves of officers, government officials, citizens and other former capitals and charged extra money, foodstuff and grass.” Second, to explain the investigation process in detail, “I, complying with the imperial edict of March first, went to Jiannan to investigate the bribe case of Ren Jingzhong, who was a supervisor in Luchuan. And I heard that when Yan Li was in the position, he confiscated properties and servants without any authorization… The documents and executive documents were proven to be true by Geng Ju and Ma Yunliang. Third, proposing suggestions for disposal, “I have the duty to recognize what is right or wrong and often get angry with it. I write down the memorial report with respect and wait for the imperial edict.” At the end of this report, the document of Zhongshu and Menxia departments was attached indicating the disposition of the case “all houses and servants that were confiscated would be returned to their original owners. If there was a case in which things were sold, sold things must be ransomed and returned to owners, which was entrusted to observers. The case of levying additional money, rice and grass was also entrusted to observers to stop and inform people of this instruction. Liu Meng, Tao Huang, Li Fu, Zhang Ping, Shao Ying, Chen Dang, Liu Wenyi and others should be fined for two months of salary and degraded to be lower officers while others would be released.48

46

Old Book of Tang, Volume 17, p. 552. Tang Liu Dian, Volume 8, p. 242. 48 Anthology of Yuan Zhen, Volume 37, pp. 419–420. 47

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3 Impeachment Trial Procedures As far as litigation function was concerned, the impeachment of censors was a lawsuit request of the Secretary of the constitution to expose his guilt and punish him in accordance with the law.49 Compared with the general method of prosecution, the success rate of the impeachment of censor was higher, and the impeachment case was put forward publicly at the time of the session. If the impeachment case was transferred to the judicial process after its establishment, there was still a significant difference between the way of dealing with the suspect and the general criminal case.50 First, impeachment was the initial link of the supervisory organ to represent the feudal state prosecution officials, impeached on the court to direct the monarch directly, and the case could not be appealed after trial. Second, if the impeachment case was set up, based on the identity difference, the sentencing of the controlled officials was much more argumentative, invited, reduced, foreclosed, and so on. In practice, administrative punishment, such as demotion, exemption, and salary, should be applied in practice. Third, because the impeachment targets were bureaucratic aristocrats, censors must bear enormous political risks. The monarch’s judgment of impeachment requests also had considerable variables.

3.1 Held Censors impeached the guilty officials in the court, and if the accusation was set up, the suspect should be ready to be punished and detained by the censorate, Shang Shu Sheng or Jin Wu. In April of the 14th year of the Kaiyuan period (726 A.D.), Yuwen Rong, a Zhongcheng and Cui Yinfu, a Dafu, both in the censorate, impeached Zhang Yue, a prime minister in Shangshu and Zhongshu departments, “he was detained in Shangshu department.”51 The Shangshu Department governs six departments and twenty-four divisions, among which the Ministry of Punishments was the most important. It was said in the Old Book of Tang-Biography of Zhang Yue that he sat on the grass and ate something in a crock with his hair disheveled and face dirty, and since he was punished, he was increasingly worried and apprehensive.52 From 49

Zi Zhi Tong Jian, Volume 211, p. 6728. Note Zhang Xianchang pointed out: “(Sui dynasty) how to deal with impeachment? Whether the ministers discussed the matter collectively, or whether the constitutional Department entered the judicial process, or ordered several important ministers to investigate the charges and investigate their responsibilities, the decision was in the hands of the emperor; likewise, the final decision or outcome of the decision was made by the emperor.” (On Impeachment Right of Censors in Sui dynasty, Monthly Journal of History, 2005 (11): 119) Vertical comparison shows that disposal process of impeachment case in Tang dynasty is based on the old system of profit and loss determined in Sui dynasty. 50 Old Book of Tang, Volume 8, p. 189. 51 Old Book of Tang, Volume 97, p. 3055. 52 Ce Fu Yuan Gui, Volume 520, p. 5910.

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this, it can be inferred that where Zhang Yue was detained was the prison of the Ministry of Punishments. In May of the 4th year of the Zhenyuan period (798 A.D.), Zou Ruili, a Shi censor, impeached that the order of Su Bian, the crown prince’s director, was disordered when they went to the court. “Su Bian was arrested in the department of Jinwu for a few days and then was released.53 It was recorded in Tang Liu Dian that the right and left generals in the Jinwu department were in charge of patrolling the palace and its capital to observe whether there was something illegal happening.54 Hu Sansheng said that the offices of the right and the left Jinwu were on each side of the Hanyuan court.55 If officials were impeached, they could be detained in Jinwu, waiting for being inquired. In December of the 18th year of the Zhenyuan period (802 A.D.), Li Zhengchen was degraded from the minister of Dali to the minister of Weiwei, “Li Zhengchen was impeached to be imprisoned by censors and he died because he couldn’t bear the humiliation.”56 Therefore, Li Zhengchen was impeached after his degradation and died during the time of being detained.

3.2 Trial For the proceedings to initiate the impeachment of censors, if there was a person who concealed the serious crime, the emperor could give orders to the Board, Jin Zhao Yin and the Censorate and other institutions to examine and investigate the case; thus, the impeachment case would transform into a case whose nature was the imperial edict. The order was made on February 19th in the second year of the Fengyi period (677 A.D.) that everyone who was involved in an impeachment would be recorded after his being judged by the Board.57 The board was the statutory body of trial for impeachment cases. It is worth noting that in actual jurisdiction and trial of impeachment cases, Yu Shi Tai always played a leading role. In the 2nd year of the Zhenguan period (628 A.D.), Zhang Xuansu, a shi censor, impeached Chi Nuzhi, the county magistrate of Lepan in Qingzhou, for his embezzlement of official food, “he was chased and punished to death,”58 finally, he was exempted by Zhang Wenguan and Wei Zheng’s advice according to the law. This case came from impeachment by the censor and was then involved in litigation; however, it is still unknown which institution was put forward. Since Taisi tried for the right to take charge of impeachment cases, until the Zhongzong period, there had already been a case in which a censor was the major principal trial. In March of the third year of the Jinglong period (709 A.D.), Cui Shi and Zheng Yin in the Zhongshu department were in charge of the examination; during that time, they took 53

Tang Liu Dian, Volume 25, p. 638. Zi Zhi Tong Jian, Volume 245, p. 7911. 55 Old Book of Tang, Volume 13, p. 397. 56 Tang Hui Yao, Volume 61, p. 1256. 57 Tang Hui Yao, Volume 58, p. 1170. 58 Zi Zhi Tong Jian, Volume 209, p. 6635. 54

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bribes, sold official positions and broke the rule in prison. Jin Heng, a censor of shi, and Li Shangyin, a censor of supervision, impeached them at the court; as a result, the monarch put Cui and Zheng into prison. “Pei Cui was ordered to investigate the case. Princess Anle satirized Cui for he released Shi. As for this, Cui also impeached the princess openly. In May, Zheng Yin got out of jail and exiled to Ji Zhou, and Cui Shi was degraded as a minister of war in Jiangzhou.59 From then on, it was normal for a censor to patrol, impeach and set up a case after inquiring. In the 2nd year of the Kaicheng period (837 A.D.), Wu Shiju, an observer in Jiang Xi province who violated the law giving hundreds of thousand money to solders, was impeached by Di Jianmu, a Zhongcheng, “ask the censor in Dongtai to go to Jiangxi province to investigate and report the case.”60 Some major cases that were involved in old and previous nobles should be verified and checked by Zhongshu after being judged by Taiyu. In the 1st lunar month of the 2nd year of the Kaiyuan period (714 A.D.), Ye and Xiantong made violence against ordinary people. “The Censorate punished them according to the law. Ye reported to the throne to ask for exoneration, and it was announced by a eunuch that the case would be verified again.”61 Lu Huaishen and Yao Chong, two prime ministers, were in charge of memorials and didn’t hand in Ye’s because he was a kinsman of the emperor. Zhongshu Department maintained the early trial of the Censorate and reported it to the throne; thus, Ye and Xiantong were prisoned. This case involved nobles, so the trial by the Censorate needed to be checked by the Prime Minister.

3.3 Multiple Trials For serious impeachment cases, the monarch could choose officials on the board, minister of punishment, and censorate to form a contemporary court. In the aforementioned impeachment case of Zhang Yue in the 14th year of the Kaiyuan period (726 A.D.), Emperor Xuanzong ordered the Prime Minister Yuan Qianyao, Minister of Punishment Wei Kang, vice minister in the Board Ming Gui and Dafu in the Censorate Yin Fu to conduct a joint trial. In July of the 4th year of the Yuanhe period (809 A.D.), “Li Yijian, a Zhongcheng in the Censorate, impeached the capital official Yang Pinqian that when he was in the position of the observer in Jiangxi province he took bribes, as a result, he was degraded into an officer in Linhe.”62 As for the details of the trial, there is a clearer record in Ce Fu Yuan Gui: In the fourth year of the Yuanhe period, Li Yijian was appointed a Zhongcheng and impeached Yang Ping when he was the observer in Jiangxi Province. The Censorate, Li Yong, Minister of Punishment and Zhao Chang, the governor of Dali, inquired him jointly. As a result, Yang Ping was degraded to be the governor of Linhe County in Hezhou. Then, they arrested Yang 59

Ce Fu Yuan Gui, Volume 520, p. 5912. Ce Fu Yuan Gui, Volume 317, p. 3586. 61 Old Book of Tang, Volume 14, p. 428. 62 Ce Fu Yuan Gui, Volume 520, p. 5910. 60

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Yuan, the judge and supervision censor of Jiangxi who was in charge before Yang Ping and detained him in the Censorate. Hu Xiang, the vice governors of Dali, Huzheng, and Wei Yi, were ordered to investigate this case together. At first, when Yang Ping was in his previous position, he had his house in Yongning district and had many concubines in Yongle district. Yijian impeached him. When the emperor came to power, he ruled the country by law. Yijian was the first one to impeach, so it was said to be good to do that, but others satirized him of his eagerness to impeach.63

When Yang Ping and Yang Yuan were tried, they were both detained in the imperial station, which was led by the imperial station and undertook the trial. The procedure of “three judges” was initiated twice before and after the trial. Yang Pin was heard by Li Yong, Minister of Punishment, and Zhang Chang, Minister of the Board. It was said that Li Yijian, a Zhongcheng in the Censorate, wanted to control more severely. It can be seen that those who heard the case should be “big three officers in three departments”. When Yang Yuan was accused, Hu Xiang, the vice governor of Dali, Hu Zheng, the vice ministry councilor and Wei Yi, the Shi censor, were ordered to investigate together. In this case, the vice minister of Punishment was replaced by the vice ministry councilor in the Shangshu department, while another staffing was similar to “little three officers in three departments”. In April of the 1st year of the Baoli period (825 A.D.), Xiao Che, a censor, impeached Cui Yuanlue, the governor and Dafu, for he disobeyed the imperial order to expropriate seventeen thousand Guan in the capital, “he was interrogated by three officers and it turned out to be true. Thus, he was ordered to resign the position of the censor.”64 For the “three staff members” of the joint hearing, what was recorded in Ce Fu Yuan Gui was the following: In April, the first year of the Baoli period, Cui Yuanlue falsely understood the imperial edict so that he lent money to people when raising money. Thus, he was impeached by Che. The imperial order was made such that the officer in the Ministry of Punishments Zhao Yuanliang, Dali Zheng Yuan Cong Zhi and Shi censor Wen Zao investigated the case jointly. It turned out to be true. So, Yuan Lue was deprived of his position of Dafu.65

Once the case was put on file, the evidence that the constitutional officer had grasped would become the basis for subsequent investigation and trial. Therefore, if the procedure of prosecution initiated by impeachment was tried in the miscellaneous pattern, no matter how the officials were configured, the overwhelming majority of the cases had the participation of the censors. Censors adopted supervisory power to participate in miscellaneous treatment, thus becoming the usual practice of impeachment cases.

63

Old Book of Tang, Volume 17, p. 515. Ce Fu Yuan Gui, Volume 520, p. 5911. 65 Zi Zhi Tong Jian, Volume 195, p. 6134. 64

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3.4 Sentencing When the constitutional officer impeached the bad deeds of the bureaucrats and nobles, there was someone who proved to be innocent; in this case, he would be punished by administrative sanctions such as reduction and depreciation, fines and salaries according to the principles of suggestion, invitation, reduction and redemption. Li Ke, the governor of Anzhou, often went hunting and destroyed many fields. Thus, he was impeached by the censor Liu Fan. On October 14, the 11th year of the Zhenguan period (637 A.D.), Li Ke was removed from his position, and three hundred people who were relative to Ke were killed.66 Additionally, in October, the 1st year of the Yonghui period (650 A.D.), Wei Ren, a censor of supervision, impeached Chu Suiliang, the head of the secretariat, because he forcefully purchased houses of the translator in the Zhongshu department. Meanwhile, Wei also impeached Zhang Ruice, the vice governor of Dali, because of his abuse of law. As a result, Suiliang was demoted to the governor of Tongzhou and Ruice, the governor of Xunzhou.67 Li Jiongxiu, the assistant minister of War, was impeached by Ma Huaisu, the supervision censor, for accepting bribes. In February, the 4th year of the Changan period (704 A.D.), Jionxiu was demoted to be the governor of Luzhou.68 In December, the 1st year of the Guangde period (763 A.D.), Chen Yuanzhen, a eunuch, went to the capital, wearing the gunny mourning apparel and was appointed according to the law. Once he drank with Wang Zhongsheng the Dafu, he was impeached by the censors, “he was exiled to be an ordinary people in Qinzhou for a long-term.”69 On the other hand, influenced by negative factors such as the patronage of the monarch or the manipulation of powerful ministers, some impeachment cases might be postponed, and even censors who impeached may be self-inflicted. When Wu Zetian came to power, advisers and censors could impeach according to hearsay, and there even appeared a situation where “Dafu and supervisor in the censorate, who were treacherous and deceitful, impeached each other.”70 If the impeachment case was not established, the censor involved in this case would often be accused of alienating the monarch and his ministers and impeaching false charges, facing deportation and demotion and other severe punishments. Among those cases, censors may also be insulted and deposited incorrectly. In the second year of the Xianqing period (657 A.D.), Wang Yifang, a censor, unsuccessfully impeached the powerful minister Li Yifu; as a result, Emperor Gaozong thought that Yifang insulted the minister using inappropriate words and deposed him to be the Director of Laizhou.71 In February, the 3rd year of the Jinglong period (709 A.D.), the censor of supervision Cui Wan impeached Zong Chuke, Ji Chuna, who secretly colluded with Rongdi (an 66

Ce Fu Yuan Gui, Volume 520, pp. 5903–5904. Zi Zhi Tong Jian, Volume 207, p. 6569. 68 Ce Fu Yuan Gui, Volume 669, p. 7790. 69 Zi Zhi Tong Jian, Volume 211, p. 6729. 70 New Anecdotes of Tang Dynasty, Volume 3, p. 30. 71 Zi Zhi Tong Jian, Volume 209, p. 6632. 67

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ethnic minority in North China) and accepted his bribes: “Emperor Zhongzong did not strictly pursue this, but let Cui Wan and Zongchuke become brothers to make them reconciled. People at that time called Emperor Zhongzong ‘the Son of Peace’”, which actually indicated that Emperor Zhongzong was too fatuous.72 The monk Huifan, relying on the power of Taiping Princess, seized people’s shops, which state and county could not manage. In May, the 2nd year of the Jingyun period (711 A.D.), Dafu Xue Qianguang and Dianzhong Murong Xun reported impeaching that he was framed by Princess Taiping and thus demoted to be the governor of Qizhou.73 In April, the twenty-fifth year of the Kaiyuan period (737 A.D.), Zhou Ziliang, a censor of supervision, impeached Niu Xianke because of his being incompetent, quoting what was written in the augury book. “Beat him with stickers and decided to kill him in the court.”74 It was like what Yang Yang, a Shi censor in the Kaiyuan period, said that “if the censorate was threatened, it could be abolished.”75 Because impeachment litigation and many political factors were involved in each other, the Zhitan censor had become one of the high-risk professions as well as the reputation of eliminating discipline. From the scope of the case, impeachment is far more widespread than ordinary criminal cases. In addition to major criminal offenses, officials and nobles who violated disciplinary ceremonies were also in the scope of the impeachment of censors. Wei Sheng, son of Wei Yuanzhong, married daughter of Zheng Yuan. In the 3rd year of the Shenlong period (707 A.D.), Wei Sheng and Prince Jiemin murdered Wu Sansi thus were demoted to be common people. However, they were framed by mutinous soldiers so that Yuanzhong was prisoned in the jail and Zheng Yuan made them devoiced because of that. “Today got devoiced and the next day married others”76 was the impeachment document roughly drafted by Shi censor Ma Cha. As a result, Zheng Yuan was imprisoned. In December, the 1st year of the Jingyun period (710 A.D.), Ni Ruoshui, the Shi censor, impeached Zhu Qinming and Guo Shanhun because they broke the rules, violated human relations and catered to the fatuous superiors: “Qinming was demoted to be the governor of Raozhou, Shanhun, the governor of Kuozhou.” In the first lunar month, the second year of the Dali period (767 A.D.), the case that families of the prince and the royal were not permitted to have marriage relationships with families of commanding generals was entrusted to Censorate to investigate and impeach.77 In July, the first year of the Kaiyuan period (836 A.D.), Lu Zhouren, the observer in Hunan Province, turned over nameless tax revenue out of the law for approximately ten thousand Guan, “Gui Rong, the Zhongcheng, impeached him for his violation of the law. It was ordered

72

Old Book of Tang, Volume 101, p. 3141. Old Book of Tang, Volume 9, p. 208. 74 Zi Zhi Tong Jian, Volume 211, p. 6714. 75 New Anecdotes of Tang Dynasty, Volume 3, p. 43. 76 Zi Zhi Tong Jian, Volume 210, p. 6660. 77 Old Book of Tang, Volume 11, p. 286. 73

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that what Zhouren had presented should be stored in He Yin.”78 The cases of bureaucrats and aristocrats violating laws and rituals at the Imperial Historic Station played an important role in official prosecution activities throughout the Tang Dynasty.

4 Summary In the field of impeachment litigation in the Tang Dynasty, most of them followed the “previous systems” of the early dynasties, which made this kind of litigation manifest the distinctive characteristics of litigation practice. “Story” is a thing of the past, or for the first instance of the court system, or the old precedent frequently quoted when judges made judgements. In the Tang dynasty, most previous systems were customary rules except for some imperial rules, such as chi, lv, ling, ge, and shi, which were regarded as previous systems. In the field of impeachment litigation, many litigation practices have been formed. Some of the customary content has been determined and used for a long time. With the influence of political factors and social changes in the Tang Dynasty, most of the impeachment practices have changed in practice, and the practice of litigation itself also presents the trend of changing and evolving. In the field of convention evolution, the impeachment lawsuits in the Tang Dynasty followed the tradition of “to impeach according to hearsay” since the Wei and Jin dynasties. In the middle of the Kaiyuan period, the system of accepting lawsuits by censors was gradually established. This is an example of the transformation of legal practice to the law code. To ensure Taisi’s impeachment in accordance with the law, the court had repeatedly given the imperial order to reform the old systems, creating or confirming judicial practice. For example, in March, the first year of the Zhenyuan period (785 A.D.), because of Li Qiyun’s impeachment case, the rule that censors mustn’t together make one report impeach others was established; in March, the 15th year of the Yuanhe period (820 A.D.), Cui Zhi asked to obey the convention that Shi censors would be exempted from responsibility. At the end of the Tang Dynasty, the system of impeachment of Censorate was always in a state of reform, and the existence and operation of impeachment practices was an important force for the abovementioned changes. In impeachment proceedings, the main characteristics of impeachment in the Tang Dynasty can be summarized as three aspects, namely, reporting to the emperor, wearing Xie-zhi crowns and putting on the clothes of the judge and opening the impeachment. Until the end of the Wu Zetian period, the impeachment of censors had always followed independent practice without requiring the chief executive to be reported in advance. With the influence of political factors and social changes in the Tang Dynasty, most of the impeachment litigation practices have changed in practice, and the practice of litigation itself also presents an evolving trend of development. In March, the third year of the Jinglong period (709 A.D.), censors 78

Old Book of Tang, Volume 17, p. 566.

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no longer had the right to impeach on their own, and to impeach others’ fault, a censor had to make a concrete fact about his crime, then the impeachment could be reported. At the end of the Kaiyuan period, the impeachment should first be reported to Zhongcheng and then conveyed to Zhongshu, and finally, it could be established. With the establishment of the custom of “submitting documents and reporting to superiors”, the exercise of the power to recount the imperial censor is difficult. During the period from Emperor Suzong to Emperor Dezong, the court wanted to reuse the old system in the Zhenguan period and thus explicitly ordered that all impeachment must be in accordance with the old system in the Zhenguan period. This essentially negated the customary practice of impeachment that censors must report to their superiors in advance before impeaching since the end of the Kaiyuan period. Regarding case disposal, if impeachment cases were transferred to the judicial procedure after the establishment of the Tang Dynasty, there were still significant differences in the disposal of suspects from the general criminal cases.

Chapter 7

Prosecution at Yushi Tai

The Censorate in Tang Dynasty was a judicial supervisory organ that had the right not only to deal with cases of the imperial edict prison but also to accept lawsuits and interrogations in the traditional sense. The acquisition and expansion of the judges’ power in the Censorate were directly related to the practice of the defendant’s appeal in the Censorate. The cases under the jurisdiction of Censorate belong to either those of the imperial edict prison or the ordinary criminal and civil cases, which had been discussed in detail by Hu Cangze’s The Acquisition of the Judicial Power in Censorate.1 The article provides a comprehensive discussion of the Censorate’s acquisition and exercise of judicial power from the points of litigation and interrogation, creating its prison and Censorate’s involvement in the three interrogation divisions and the three appellate divisions. Although censors’ interrogating material listed in the part of “litigation, interrogation, creating its prison” is of the nature of imperial edict prison, there is no explanation for the influence of the defendant’s appeal in Censorate’s judicial power and the trial grade. Therefore, it is necessary to explain the influence on the basis of ancient books, documents and unearthed information to fully understand the ambit of judicial power and the trial grade.

1 Yushi Tai Acquiring the Power of Trial According to the old system, there was no example of the Censorate accepting lawsuits. It just did the work of “impeaching according to hearsay”. If there were someone lodging lawsuits, censors should go to the gate straightforward and accept them. Knowing who should be impeached and leaving out names were called “investigating from hearsay”.2 From the last year of the Zhenguan period, the lawsuit func1

Hu Cangze, The acquisition of judicial power of Yushi Tai in Tang Dynasty, Journal of Xiamen University (philosophy and social science edition), 1989, 3. 2 Tong Dian, Volume 24, p. 660. © Science Press 2021 X. Chen, A Study of Criminal Proceeding Conventions in Tang Dynasty, https://doi.org/10.1007/978-981-16-3041-5_7

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tion of the Censorate began to expand and became an important factor influencing the inherent litigation levels. In February of the 22nd year of the Zhenguan period (648 A.D.) Li Qianyou, a Zhongcheng, was the first to imprison guilty officials: “If there was someone that should be held to inquire, he would be imprisoned to the special jail. From Zhongcheng and Shi censor to their subordinates, everyone had the right to hold criminals so that the prison was often filled up”.3 Later, because there hardly were judicial censors, instead, they mutually made excuses to each other, informers remained in an inferior position for a long time.4 In the 4th year of the Yonghui period (653 A.D.), Dafu Cui Yixuan set a position of censors accepting cases in which they wrote down the names of informers or the lawsuits.5 Until then, the Censorate formally gained the right to accept the lawsuits and became of the judicial organs of central authorities. For the above changes, Su Mian in the Tang Dynasty said: The Censorate was responsible for managing the social order and law, impeaching the faults of departments. There were cases in which it impeached some guilty officials but no example of accepting lawsuits. Now, it thought highly of the latter rather than the former.6

It can be seen that the right of Yushi Tai to accept lawsuits originating from itself was suspected at that time. As far as the division of judicial rights and the levels of lawsuits were concerned, the censorate’s accepting lawsuits impacted the graded appeal model, which was from judicial practice. In the middle of the Kaiyuan period, Zhongcheng and other censors from other departments had the right to accept and investigate lawsuits. “From the supervision censors to their superiors, each had to be on duty a day in his department to check exit and entry and ordered censors to send up the lawsuit. If the lawsuit needed to be investigated, Dafu would entrust the censor who was on duty that day to make an investigation.”7 The independent prosecution power obtained by the Censorate had laid the foundation for its extensive participation in the trial of litigation. As one level judicial organ of appeal in the Tang Dynasty, the Censorate could accept all kinds of appeal cases, including criminal and civil cases. When obtaining the right to accept cases, the Censorate became the appellate and trial organ of local prefectures, counties, and the capital. In the meantime, some prosecutors directly appealed to the court. In November of the second year of the Longsu period (662 A.D.), Xu Ziran, the son of the left prime minister Xu Yushi, “damaged crops in other people’s fields when he was hunting. The landlord was angry, and Xu shot the landlord with a loud arrow. Xu Yushi beat Xu Ziran one hundred times with sticks instead of reporting. The landlord went to sue at Yushi Tai.”8 In the third year of the Tianbao period (744 A.D.), Cui Kuan, Minister of Revenue and Imperial Censor, 3

Old Book of Tang, Volume 185, p. 4821. Tang Hui Yao, Volume 60, p. 1226. 5 Tang Dian, Volume 24, p. 660. 6 Tang Hui Yao, Volume 60, p. 1226. 7 Tang Liu Dian, Volume 13, p. 382. 8 Zi Zhi Tong Jian, Volume 200, pp. 6331–6332. 4

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was impeached by his subordinates Cheng Zangyao and Cao Jian, proposing “all had other issues to lodge a lawsuit. Cui Kuang accepted and arrested Cao Jian for inquiry.”9 It could be seen that until the middle of the Gaozong period, the position of the Censorate as a complaint organ for all kinds of injustice cases had been recognized by the government and the people. It was noteworthy that in the early Tang Dynasty, the litigation function of the Censorate was not completely independent at first. After the trial of the cases directly accepted by it, the Censorate still had to ask the emperor to adjudicate. Because “Censorate often imprisoned10 ” and the trial results of imperial prison cases need to be reported to the emperor, up to the early years of the Zhenyuan period, the procedural rules of court cases were obviously influenced by the tradition of hearing and hearing of court cases. According to Ce Fu Yuan Gui (Volume 619), in June of the third year of the Zhenyuan period (787 A.D.), a monk in Xuanfa Temple was accused by many temples and the governor of Wannian county Lu Boda made him secularized and then he was a monk again, then “wearing the clothes of the judge to accuse guilty officials, Cui Peng and Jingqian accepted the lawsuit”. Emperor Dezong let Zhongcheng Yuwen Miao, assistant minister of the Ministry of Punishments Zhangyu and governor of Dali Zheng Yunkui be representatives, together with Gong De Shi judge, the governor of Quzhou Zhuge Shu, try the case in the Ministry of Punishments, in Shang Shu Sheng.11 It is worth noting that the scope of accepting cases in the Censorate’s office should be limited. It was standing by the law to rectify and impeach officials’ violations of law and discipline. Folk trivialities and private affairs were not under the jurisdiction of the department according to the convention. Up to the end of the Zhenyuan period, the division of labor between the Censorate and local prefectures and counties was emphasized by officials of the Censorate. According to the Parallel Sequence of Epitaph Written by Officials of Tang collected in the Museum of Xi’an Datang West City. In July of the seventeenth year of the Zhenyuan period, Shi Jie was appointed as a Shi censor in Dong Du Tai. There were more than one hundred officials asking for revealing something illegal and submitting letters to remove the frame. People mostly hated these accusations of hearsay. It was said that the atmosphere in the Censorate was absurd when they investigated the crimes and injustices of some wicked people. The duty of governors was to establish the authority of punishment and imprisonment.” Those officials who never reflect themselves should be dismissed. For approximately one month, half of the officials were dismissed.12 There is no specific criterion to follow for the concrete manifestations of the tomb owner Shi Jie’s words of “custom is obedient”, “evil, unjust and whoredom” and “verdict of criminal proceedings”. In judicial practice, the scope of judicial

9

Old Book of Tang, Volume 100, p. 3131. Tang Hui Yao, Volume 60, p. 1227. 11 Ce Fu Yuan Gui, Volume 619, p. 7156. 12 Epitaph in the Datang West City Museum, p. 755. 10

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proceedings accepted by the Censorate was expanding. In addition, Comments on Laws of Tang Dynasty expressly forbid people to commit crimes.13 What the epigraph had said was opposite to the law.

2 Improvement of the Yushi Tai Judicial System In the fourth year of the Kaiyuan Period (726 A.D.), the Censorate added a position of the officer to accept legal cases. To address the increasing number of cases, the imperial court began to pay more attention to the professionalization of imperial censors. Tang Hui Yao (Volume 62)-Judges in The Censorate recorded the development of the accepting and judicatory system of the Censorate. According to the imperial order on December 16, the fourth year of the Tianbao period (745 A.D.): judges should be equipped with high qualities and abilities to maintain the professionalization of imperial censors so that they can deal with legal cases effectively: Workers who maintain order in the court also play an important role. Now, most of them are green hands, and workers have been changed fast, which disordered the judicial procedure. People who are just and competent should be selected. Let them know everything, particularly about their job, and do their job in the long run. Do not change their positions often. If they do their jobs well, they can be transferred to another position, according to the system of rewards and punishments.14

After the rebellion of An and Shi, the judicatory system of the Censorate went further on the way of profession and independence. On October 4th, the first year of the Xingyuan Period (784 A.D.), the Imperial censor Cui Zong advised obtaining two more officers to trust and deal with cases on duty in turn15 because he thought the two officers at that time were not enough to handle things in time: According to the imperial order on October 4, the first year of the Xingyuan period (784 A.D.): There are two judges, i.e., east judge and west judge, in the Censorate who work on duty in turn. Judicatory efficiency should be improved, so two more officers should share the same duty with the two judges, and they also work on duty in turn. If one is absent, the other can handle things in time.16

Then, the judges were named east judge and west judge, which was applied not only in the capital city but also by local authorities. Taiyuan trusts legal cases on odd-numbered days, while Dianyuan trusts legal cases on even-numbered days. If one officer is absent, the other can handle things in time.17 The two departments worked on duty in turn, which became a working tradition. Because of the limited time for local authorities to hand in the large number of legal cases, officers may 13

Comments on Laws of Tang Dynasty, Volume 24, pp. 439–440. Tang Hui Yao, Volume 62, Judges in The Censorate, p. 1273. 15 Reference Books Written by Yan Shu, Volume 16, Qilu Press, 1995, p. 646. 16 Tang Hui Yao, Volume 62, p. 1273. 17 Tang Hui Yao, Volume 62, pp. 1274–1275. 14

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accept many cases in one day. One of the departments may have many cases to do and can’t do it well. The other may have much time but without cases. On August 9, the fifth year of the Yuanhe Period (810 A.D.), the imperial government accepted the imperial minister Xue Cun’s advice and changed the way to accept and hear cases. The two departments adopted the system of working in shifts rather than working according to the date: Today, I suggest that it should not be limited to two departments. And it’s not good enough to work according to date. The four judges should accept cases in turn. Thus, censors can display their abilities fully and have an equal distribution of work. Their work should be nominated by other officers. If all cases are reported to the emperor, it would be tedious. I request the imperial order, and things will be in an orderly way. The emperor agreed.18

The biggest consequence of this reform is that the Censorate obtained the power of final adjudication. For normal cases reported by local authorities, the censor did not need to report to the emperor. They had the right to give the final judgments. As the highest independent judicial authority, the censore’s judicial system tends to be complete. Up to the Five Dynasties, the Censorate became the statutory appellate body of the local state government. In the second year of the Guangshun Period (952 A.D.) of the Later Zhou Dynasty, in addition to some basic requirements for complainants, in case of dishonest lawsuits, it was required that the complainants must have direct interests with the cases. This is a direct reflection of the long-term litigation practice in the Tang Dynasty at the legislative level: Here, part of the imperial order on October 25, the second year of the Guangshun period in the Later Zhou Dynasty (952 A.D.): From now on, all kinds of lawsuits, including natural disasters, should be judged by the county court first and then prefecture. If the complainants are still dissatisfied with the results, then they can appeal to the Censorate by writing their cases and putting them in the complaint box. If the complainants bypass the immediate leadership and present their appeals and complaints to higher levels, their cases will not be accepted, and they will be declared guilty. The complaints should be honest and have conclusive evidence. In addition, if they had no relationship with the case or speak at random and talk nonsense, they will receive harsher punishment.19

3 Hosted by Envoys Trial System Unlike ordinary civil cases, there are many cases in which people lodge a complaint against local governors or the rich and powerful. Considering the principle of justice and avoidance, such cases need not be tried by the local law department. The imperial court can point imperial judges to local prefectures and counties for direct questioning. Therefore, as an appellate body, the Censorate played a role as a supervisory institution to some degree. The Censorate also appointed officers down to counties if there were cases in which people lodge complaints against local governors. And they can judge there in time. The cases in Mei County Qi State in September of the 18 19

Tang Hui Yao, Volume 62, Shanghai Classics Publishing House, 2006, p. 1275. The Penal Code in Song Dynasty, Volume 24, Zhonghua Book Company, 1984, pp. 379–380.

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first year of the Kaiyuan Period (736 A.D.) recorded that Zhu Ben, a village mayor, assigned Qi Shun, a villager to do corvee labor in You State. Qi Shun was unwilling, and he appealed to the Censorate against Zhu Ben recruiting excessively and asking for bribes. Then, the Censorate appointed a censor to Mei Couty to handle the case. With his investigation and interrogation of witnesses, he denied Qi Shun’s charge. Zhu Ben levied taxes and services according to the imperial order, which was beyond reproach. Qi Shun was therefore liable for false accusations. The document records the fact that officers of the Censorate work in the prefecture: No. 27 Zhu Ben’s case of false accuse: At first, village mayor Zhu Ben assigned Qi Shun to You State to do corvee labor according to the imperial order. Qi was resentful about it, then he went to the capital city and sued Zhu for abusing his power to extort the poor and oppress the village people. The censor did research, arrested Zhu and interrogated him carefully. Here’s the whole details.

Documents of the Zhu Ben was the twenty-seventh. At first, Zhu Ben informed Qi Shun to go to Youzhou to join the army according to the household. Shun was hatred and went to the capital to accuse Zhu. Ben bullied the weak and feared the strong and levied around villages. Censorate investigated recorded this case. It was said in the document that20 . This county was a poor one. People were very poor here. People often commented on the service and tax. What did Lizheng do? Nothing. It was the time to go investigation when the letter was sent by an assistant who was a little boy and could walk for a long time. What Zhu had done was the same as what was ordered by the emperor. Most of them were strong men, and there was seldom an old man. At first, four of ten could go to the army. It was allowed that men who were weak or injured could not join the army. Among these men, Lv Wan was the only one who was comparatively strong and never recorded a demerit. He was also not an official at a higher level. It was not the same as Shun had prosecuted that he often went around villages to levy. Someone was ordered to investigate this, and many censors were put to discuss the case. As a result, there was no evidence to show Zhu’s crime. Until the time when people had to join the army in Ruzho, there were some difficult issues: those who avoided joining the army did not say anything, while those who had to join the army said they were treated unjustly. All evidence was wrong, so Zhuben was innocent. The judge reported the case in detail to the Censorate.21 Mei County is small and people are poor. One went to do corvee, and everyone was talking about it. No village mayor can hide his bad behaviors. On the day of villagers’ departure, Suoyou supervised. If villagers are not strong enough to have a long journal, they would not be allowed to leave. What Zhu Ben has done was in accordance with the imperial order. The chosen villagers were healthy and strong. Approximately 40 percent had been chosen, 20

Note Hu Rulei thought that in the 25th line “Dieshi” referred to a temporary assignment, that is, the investigation of the case, and the final findings would be reported to Yu Shi Tai magistrate. The Social and Economic Situation Reflected in the Two Documents Issued in Dunhuang in Shi Nianhai, The Collection of Tang History, Shaanxi People’s Publishing House, 1987, pp. 53–79. 21 Documents of Dunhuang Society and Economy, 2, pp. 616–617. Study of household registration system in Ancient China, Zhonghua Book Company, 2007, p. 230.

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and others were sick or poor, injured or disabled, so Zhu did not choose them according to the order. Therefore, all that is reasonable. Qi also blamed Zhu oppress the poor and extort money from people. Yesterday, workers visited and investigated people and obtained no valid clues or evidence. As for the work of the county mayor, it’s hard to handle with. People who didn’t be levied didn’t speak of it. Those who had been levied complained and made charges against officers. Because of insufficient and weak evidence, no charge was filed. Over twenty workers investigated these cases for approximately half a month wholeheartedly. Afraid of wronging good people, all officers worked hard. The whole thing was recorded by censors of the Censorate.

From then on, the Censorate’s function of judicial and supervisory and of investigation and judgement exerted in one department. Until the late Tang Dynasty, it was still normal for the censore to point judges to the prefecture to impeach prison cases. Because of the people’s complaints, the censore had to send judges to deal with cases, which has increased the workload. In August of the 4th year of the Dazhogn period (850 A.D.), Wei Mo, the prime minister in the imperial Ministry of Criminal Justice, advised improving the working efficiency of going to the prefecture and dealing cases, giving full play to the trial role of the local authorities and prefectures and counties, and ordered the local officers to observe how the judges handle cases. When there were cases in which people lodged a complaint to the censore, most imperial sensors were appointed to deal with it. I advise the county governors should assign officers to the Ministry of Revenue, Ministry of Finance and Ministry of Salt to have research first…The emperor agreed.22

The judicial custom had a deep influence on people’s concept of litigation. Numerous cases of people seeking justice were recorded in the Tang Dynasty. According to the Mystery Novels, “In the Kaiyuan Period, Xie Hunzhi, a county magistrate, governs the power with harshness and violence, who is notorious in Henan Province. Xie often hunted in the east of the county and killed many wolves and foxes. One day in winter, two people (who were transformed from foxes) came to the Censorate and sued Xie for killing their father and extorting their fortune. Zhang Jiuling, one Prime Minister, appointed Zhang Xiao go to have research with the complainant together.”23 Here’s another case. In the Tianbao Period, Changsha Wei (Sheriff) Cheng Gui transported wood to Henan. “He suffered from floods many times and lost many wood on the way. Then he was framed by the governors in Yangzhou. Thanks to holding a copy of Diamond Sutra, he was released, so he went to the capital “to redress an injustice in the Censorate.”24 The fox’s changing into human form is pure falsehood, and it may have been compiled by people later. However, it was permitted by the decrees of that time for scholars and people to expose the officials’ violation of the law. It can be seen that, at that time, appointing officers to investigate was normal official behavior of the Censorate when they accepted cases.

22

Old Book of Tang, Volume 18–2, p. 627. Guang Yi Ji, p. 207. 24 Guang Yi Ji, p. 26. 23

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4 The Level of Yushi Tai in Tang Dynasty The litigation level stipulated in Tang Liu Dian was divided into five levels: county, prefecture, Shangshu Department, San Si, Shangbiao, and so on. There were also direct prosecution methods, such as beating the drum and erecting in a red stone, without stipulating the trial level of the Censorate. Owing to the long-term acceptance of the local appellant’s writings and the unjust interrogation, the Censorate became the appellate organ of the prefecture judicial department in fact. People can seek remedies for the cases that the prefecture cannot solve, and the Censorate should accept the cases according to the law. In February of the Zhenyuan Period (793 A.D.), the Censorate advised that: From now on, if there are any cases that have not been completed in the prefectures and counties, any people who always beat drums can be entrusted to San Si for examination. After the trial is over, if he still claims wrongdoing, it can be handed over to the Censorate for reconsideration. If he is still not satisfied, his transcript should be delivered to the chief justice measuring the crime. If the complaint is not true, he will also be punished by law.25

It can be seen that the litigant’s success in the Censorate must be based on the precondition that the local judicial department first adjudicates. As the higherlevel litigation department of the prefecture, the Censorate confirmed the trial result in imperial order. If the original judgment is incorrect, the presiding judge shall be punished; if the complainant falsely accuses others, he will also be punished according to the law. For the cases of the censore accepting local appeal cases in judicial practice, several cases can be found in historical records and epitaphs: in the Jingyun period, the monk Huifan forcibly seized one villager’s wife, while the county did not handle the case. “The villager appealed to the Censorate.”26 Its status as a superior organ in a state criminal trial can be proven in these cases. In the tenth year of the Zhenyuan period (794 A.D.), Mu Zan was appointed as the imperial officer and was assigned to Dongdu. “Then Pei, the lover of Lu Yue, who was an official working in Shaanxi, complained to officials the incompetent distribution of wealth. Mu investigated this case.”27 At that time, in Henan Province, Pei appealed to Eastern capital Luoyang’s Censorate when disputes over the allocation of property were not accepted by county governors. It was accepted and judged by Mu Zan.28 It can be seen from the appeal that the Eastern Capital Censorate had the right to deal with general civil cases as an appellate body. According to the epitaph of Li Cemetery in Longxi, the inspector of the Tang Dynasty, the owner of the tomb, Li Junsu was an imperial inspector in Huichang Period. He was once appointed by the imperial minister to hear the cases of land disputes complained by the people in Ming County. The epitaph made it clear that the local governor could not decide before, and the parties came to the Censorate: 25

Ce Fu Yuan Gui, Volume 516, p. 5857. New Stories in Tang Dynasty, Volume 4, p. 61. 27 Old Book of Tang, Volume 155, Zhonghua Book Company, 1975, p. 4115. 28 Study on the Eastern Capital in Tang Dynasty, Shanghai Classics Publishing House, 2007, p. 152. 26

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In Ming County, the people had fought for the fields, and they banded together to loot fields. They did not follow the prohibition proposed by the local court. The imperial minister Lin was famous for his capacity. He rode a horse to Ming County, holding the ax, researching for the primary cause. Over a couple of months, he made it clear and got rid of the wicked.29

In April of the first year of the Dazhong Period (847 A.D.), the Censorate asked the litigant to be very clear about the proceedings before submitting a complaint to the Censorate. One had to first bring a lawsuit to the prefectures, counties, armies, and envoys. He was not allowed to go beyond the ranks and to make a complaint to the Censorate directly. Cases not handled by the censore are returned to the original unit for disposal. If the original judgment is wronged, the defendant can appeal to the Censorate according to the law. On the basis of the provisions announced by the imperial court on February of the ninth year of the Zhenyuan period (793 A.D.), this decree further clarified the power of the censore to supervise the trial of judges of prefectures and to make suggestions for examination: From now on, cases such as neighborhood disputes, private debt, marriage and fields shall be tried by local judicial departments rather than be handed over to the Censorate directly. For cases introduced by imperial ministers, if the corresponding prefecture has not tried, it will be delivered back to the prefecture. If one is not satisfied with the result, he can appeal to the Censorate. If the imperial ministers think it is reasonable, the local judges shall go to the censore, communicate with the imperial ministers, and then give a final result accordingly. If the local judges’ wrongdoing is not severe, he will get a demerit on records. If the case is severe, he would be relegated.

Laws and decrees of the Tang Dynasty did not clearly stipulate the duty and the relationship of accepting litigation between the Censorate and Shangshu Department. In practice, the complainant had the right to choose between the Censorate and Shangshu Department: they could appeal to the Shangshu Department successively or to the Censorate directly, which gradually formed the judicial practice of the people’s litigation. From its nature, it should still be regarded as the extension of the censor’s supervision. The acquisition and exercise of the litigation power of the Censorate is also a very remedial method beyond the trial level of conventional litigation in the Tang Dynasty. Examined from the level of litigation, the officers in the Censorate had the same power as the officers in Shangshu Department. The Censorate established the rule of inquiry when accepting, which made subtle changes of the trial class, and the two departments became parallel appellate organs in fact. However, there were great differences between the procedures of appealing to the two departments. If the appellant appeals to Shangshu Department, it may be necessary to experience all procedures in its subdepartments. Then, if he was still unsatisfied with the result, he could appeal in a direct way by beating the drum and erecting in a red stone. The case may “be detained in Shangshu Department or prefecture.”30 Perhaps it will take several months and without any progress, litigation costs were increasing, while the likelihood of a wrongful delay being declared is slim. In contrast, the cases accepted by the Censorate, whether through advising or being 29 30

Addendum of Complete Tang Proses, Sanqin Press, 2006, p. 376. Imperial Edict Collection of Tang, Volume 82, p. 472.

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tried directly, may be promptly settled by the final intervention of the emperor or the Censorate. Therefore, going to the capital city to appeal to the censorate became the first choice for the litigant. A considerable number of lawsuits may be diverted to the Censorate, stimulated by the above reasons. The Censorate gained the power of accepting the lawsuit through self-authorization and gradually gained a superior position compared with the Shangshu Department, while as the statutory appellate body, the trial function of the Shangshu Department was weakened.

5 Summary In fact, the litigation-only department is different from the general department. Laws and decrees of the Tang Dynasty did not clearly stipulate the duty and the relationship of accepting litigation between the Censorate and Shangshu Department. The complainant had the right to choose between the Censorate and Shangshu Department: they could appeal to the Shangshu Department successively or to the Censorate directly, which gradually formed the judicial practice of the people’s litigation. Because the cases accepted by the Censorate may be promptly settled by the final intervention of the emperor or the Censorate, going to the capital city to appeal to the Censorate became the first choice for the complainant. Therefore, a considerable number of lawsuits were diverted to the Censorate. The Censorate gained the power of accepting the lawsuit through self-authorization and gradually gained a superior position compared with the Shangshu Department, while as the statutory appellate body, the trial function of the Shangshu Department was weakened.

Chapter 8

Prosecution

The accusation is one of the important ways to prosecute, referring to the way lawsuits are used by a third person other than the victim and his family members to report the facts of the crime and the offender to the judicial organ.1 Since the reform of Shang Yang in the Qin dynasty, the law has encouraged the accusation of wicks. From then on, the trend of accusation was popular. Xu Chaoyang believed that the system, strictly made, in which ordinary people had the duty to report an offender, was put forward by Shang Yang.2 According to Han Fei Zi, Volume 4: Jian Jie Shi Chen: Shang Yang persuaded Qin Xiao Gong to change laws and customs, advocate fairness and justice, reward accusers and punish traitors, suppress commerce and industry, and facilitate farming…Qin Xiao Gong persisted in implementing Shang Yang’s decree. Later, the people knew that the guilty must be accused, and many people accused of adultery, so the people did not dare to commit a crime, the penalty would not be imposed on the object. Therefore, the country was peaceful and strong, the land was vast and the monarch was honorable. The reason why Qin governed well was that it punished criminals severely for sheltering them and offered generous rewards for accusing adulterers.3

Since the Han, Wei and Jin dynasties, it has been used as an important method of accusation and has been used for past dynasties. The Second Year Law in the Han Dynasty clearly stipulated the procedure of accusation and surrender: “One who was 1

The History of Chinese Procedural Law, p. 37. Note: Generally speaking, the concept description of third cases of crimes committed outside the court is generally convergent. Chen Guangzhong called it “the ordinary person lawsuits” (Ancient Chinese Judicial System, Mass Publishing House, 1984, p. 49). Zhang Jinfan and others thought that the prosecution was “a prosecution brought by another person other than the victim, which was called “the crime of a spokesman” in Tang Dynasty. (History of Chinese Judicial System, The People’s Court Press, 2004, p. 108). Chen Tao held that “the prosecution, also known as the first accusation, refers to the fact that a third party tells the government of a crime and belongs to the way of public prosecution.” (The Legal History of China, China University of Political Science and Law press, 2007, p. 193). 2 The Origin of China’s Litigation Law, p. 143. 3 Han Fei Zi Ji Jie, pp. 101–102, 412. © Science Press 2021 X. Chen, A Study of Criminal Proceeding Conventions in Tang Dynasty, https://doi.org/10.1007/978-981-16-3041-5_8

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far from his county but wanted to accuse others or surrender himself could report to his township head. After hearing the lawsuit carefully, the township had to report it to his magistrate.4 On May 26 of the third year of the Taiyan period (437 A.D.), Emperor Taiwu of North Wei announced that if the law was not implemented, it must be the upper class who did not obey the law or even broke the law and welcomed people and officials to prosecute officials who did not obey the law.5 It was announced in the period of Emperor Xianwen that all officials with supervisory responsibilities would be punished if those who were in their charge accepted a bite of mutton or drink a mouth of wine presented by others as bribes. If one reported the corruption of officials in departments below Shangshu and the case was true, he would be granted the defendant’s official position.6 As an important way for judicial organs to learn clues, the rule of “accusation” in the Tang Dynasty often could be seen in articles in Comments on Laws of Tang Dynasty. For crimes endangering feudal national security and public and private property, the principle of compulsory informing was applied, that is, all those who knew it must fulfill the obligation of informing.7 According to the rule “knowing rebellion but not accusing” in Comments on Laws of Tang Dynasty-Lawsuits, everyone who knows the revolver has to inform the officer secretly; otherwise, he would be killed. If there is anyone who knows revolvers not informing against them, he would be exiled thousands of kilometers away. If there was someone who knew some bestial words about the emperor but did not inform, he would be punished five times more severely than the original penalty. The decree “knowing abduction of minors” in Comments on Laws of Tang Dynasty-Thieves even amended the principle of prohibition of child reporting and accusing their seniors: “One would be punished severely if he knew his grandparents or parents sold their children or they bought a second wife when they had a wife.” (Original notes: buying despite knowing the truth in many ways was the same as buying without knowing anything. Although one did not know when buying, he must be punished for his knowing but failing to report after knowing the truth.)8 Here, “know without saying” refers to the buyer who knows to buy and sell the population by means of violence, deception, lure and so on and to sell inferior relatives, but the insider does not inform the government. In this case, the insider should be punished for his knowing without saying. However, in the judicial practice of the Tang Dynasty, there was no explicit stipulation in the Tang Dynasty’s laws and decrees on the procedure of the third party’s complaint, the procedure of disposal and even the reward system.

4

Bamboo Slips of Han Tombs in Zhangjia Mountain, pp. 22–23. Book of Wei, Volume 4, p. 88. 6 Book of Wei, Volume 24, p, 616. 7 Comments on Laws of Tang Dynasty, Volume 23, p. 427. 8 Comments on Laws of Tang Dynasty, Volume 20, p. 374. 5

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1 The Reason of Prosecution 1.1 Impeach The tradition of accusation since the Warring States and the Qin Dynasty has been an important motive for the third party outside the case to bring a charge against a crime. In judicial practice, the principle of universal jurisdiction should be followed. Anyone who had found out the crime of another person had the right to report it to the government nearby. Such a lawsuit is based on the premise that it has no interest in the case and involves a wide range of accusations. It was recorded in Xin Lun by Huan Tan that Tan Sheng, a student of a professor in imperial college, was accused by others of something imprecatory, “Living in East Temple, Tan Sheng, a student of a professor in imperial college, had nightmares for three nights and asked for the reason. One told him to pray in the washroom after getting up for three days. Therefore, he was accused by someone of his curse so that he died after arrested some days later.”9 The fact that when it was the period of Shizu Duan Hui was accused because he wanted to escape to the south and hid gold under the saddle was recorded in the Book of Wei, “Shizu made one secretly keep an eye on this and the result was turned to be true. Duan was killed in the market, and his corpse was on show for several days.10 The specific reasons for the prosecution of people in the Tang Dynasty vary from person to person. In the middle of the Xianheng period, Zu Zhenjian, a person in Zhaozhou, committed fraud by divination and earned much money. “Later, he was accused by others and was beheaded in busy streets.”11 This is a case of an example of accusing the wired and the absurd. In Guang Yi Ji, it was said that in the middle of the Kaiyuan period of the Tang Dynasty, a scholar from Dongjing, now named Kaifeng in Henan Province, received much money from officials. “Feeling strange and wired, the scholar didn’t know where the money came from and doubted whether it was legal. Thus, he reported this to officials, detailing the whole story.”12 This could be seen as an example of accusing something strange and wired. In the middle of the Guangming period, Qin Zongquan was appointed to be a spy to probe into the matter in Huangzhou, “within ten days, after arriving at Huangzhou, the spy was accused by others and the mission finally failed”.13 Song Wenling, the governor of Huangzhou, raised people at the Army gate to kill the spy. This was an example of accusing a spy. In the practice of litigation, the bribery of superior officials was an important cause of action in the case of bribery, which was spread throughout the Tang Dynasty in different historical stages. In the 9th year of the Tianbao period (750 A.D.), Song 9

New Edition of Huan Tan’s New Theory, Zhonghua Book Company, 2009, Volume 9, p. 17. Book of Wei, Volume 52, p. 1158. 11 Chao Ye Qian Zai, Volume 3, p. 64. 12 Guang Yi Ji, p. 232. 13 Tai Ping Guang Ji, Volume 108, p. 736. 10

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Hun, the prefect of Pingyuan, extorted excessive taxes and levies, married wives illegally and trained assassins secretly. “He was found to own tens of thousands illicit money.”14 In the middle of the Zhenyuan period, receiving tens of thousands of money, Li Qiyun recommended Li Qi as the governor of Zhenxi and then Li Ci as governor of Huzhou. “There was someone accusing him that he received bribes.”15 In August, the 8th year of the Xiantong period (867 A.D.), Wei Baoheng, the right remonstrant, reported again that Yang Shouqian, as the prime minister, deprived the position of Yan Zhuan as a governor of Jiangxi Province and took money worthy of millions to open the industry of ships. Many people accused him of invading their privacy.16 The above cases are cited as examples of accusations by an uninvolved person.

1.2 Hostility Old grudges and bitter quarrels are one of the most important motivations for exposing others’ sins, whose purpose is to use judicial authority to vent or calm personal indignation. Compared with the general accusation reported by the person not involved in the case, the purpose of the accuser of such cases is to put the defendant to death with pleasure, in which the accusation and the false accusation coexisted. In the Wuzetian period, “Li Wenjian, a provincial governor of Huaizhou was accused by his enemy because of his being close with relatives of the emperor”,17 Wu Zetian ordered the censor of supervision Du Chengzhi to investigate it. At the beginning of the Kaiyuan period, “because his enemies accused him of rebellion, Zhiqian, the son of Sipeng Duke, confessed the crimes imposed upon him after torture, involving dozens of people”.18 Checking that they were treated unjustly, Yuan Xingchong asked the emperor through a memorial to forgive them. At that time, the vice minister in Taichang, Lu Chongdao, exiled Lingnan and then fled to Luoyang. When he arrived there, he came across his colleague Lu Nanjin, whose mother died at that time. Lu pretended to condole and told Nanjin the truth; as a result, Nanjin concealed him. “This was accused by their enemies”,19 Xuanzong asked Wang Xu, a Shi censor, to arrest them. In the thirteenth year of the Kaiyuan period (725 A.D.), the provincial governor Li Yong was accused by his enemy of perverting the law and should be imprisoned to death.20 Rescued by Kongzhang, Li Yong was free from death but was degraded to be an official in Qinzhou.

14

Old Book of Tang, Volume 96, p. 3036. New Book of Tang, Volume 167, p. 5111. 16 Zi Zhi Tong Jian, Volume 250, p. 8119. 17 Old Book of Tang, Volume 98, p. 3075. 18 New Book of Tang, Volume 200, p. 5691. 19 Old Book of Tang, Volume 70, p. 2531. 20 New Book of Tang, Volume 202, p. 5755. 15

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1.3 False Accusation The instigation of a person other than involved in the case was a common trick of political struggle in the feudal era. It was recorded in Tai Ping Yu Lan that later emperor of Chen dynasty secretly instigated somebody to accuse that Shujian, Changsha Duke used sorcery, which was quoted from Book of Chen, said “he carved wood as a man, dress it as a Taoshi which could kneel if its switch was turned on and prayed every day and night with the curses on its body. The emperor asked to submit a statement to state his crimes. After the trial was made, emperor Chen imprisoned Shujian in the western province, later excused him but dismissed him”.21 In the judicial practice of the Tang Dynasty, the conspirator, to exclude dissident forces, often accused others of falsifying the facts in the name of informing. In the third year of the Xianqing period (658 A.D.), Du Zhenglun and Li Yifu were out of tune, Li Youyi, vice minister of Zhongshu, were discussing secretly to accuse of Li Yifu, taking a turn to observe him. However, Li Yifu knew this and reported it to the emperor by a memorial. Zhenglun and Yifu argued with each other with their own explanation.22 Zhenglun was sent to be the governor of Hengzhou, and Li Yi exiled Fengzhou by Gaozong. In November, the 13th year of the Tianbao period (754 A.D.), the right prime minister Yang Gaozhong envied Wei Zhi for his talent and was afraid that Wei would be better than what he had done. So, he instigated Wu Xiangzhi to accuse Wei Zhi of his collusion with Zhongcheng Ji Wen and want to frame them with the witness, the nephew of Wei Zhi.23 Wei Zhi exiled to be the governor of Guiling in Guizhou and then the governor of Pingle in Zhaozhou. In March of the second year of the Changqing period (822 A.D.), when Yuanzhen was the prime minister, he was privately accused by Li Fengji; thus, he was deprived of his position and sent to be the governor of Tongzhou.24 The Outer Collection of Liu Zongyuan recorded that in Hejian, there was an immoral woman who seduced others’ husbands cursed by others. In addition, the woman whose husband was seduced allowed people in her county to accuse her husband that he prayed for ghosts and evil spirits to add misfortune to her; thus, her husband was inquired by officials. As a result, the husband was imprisoned to death.25 This is an example of prosecution proposed by people in the same place.

21

Tai Ping Yu Lan, Volume 735, Zhonghua Book Company, 1960, p. 3260. Note: What was recorded in Book of Chen was slightly different from what was quoted in Tai Ping Yu Lan: “Shujian couldn’t console himself and blamed others, so he asked witchcraft for help. He made a puppet, dressed it with clothes of Taoist. And he set a gear on it so that it could knee, pray and curse day and night. In winter that year, someone informed this. And it turned out to be true, thus, Shujian was detained in Zhongshu department and then was beheaded.” Book of Chen, Zhonghua Book Company, 1972, Volume 28, p. 367. 22 Old Book of Tang, Volume 82, p. 2767. 23 Old Book of Tang, Volume 92, p. 2959. 24 Old Book of Tang, Volume 173, p. 4497. 25 Collection of Liu Zongyuan-Outer Collection, p. 1343.

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2 Proceeding of Prosecution 2.1 Prosecution Similar to usual lawsuits, clues that were known by accusers should be governed by the local justice department where cases happened. The state or county should be the department that accepted these accusations. Conventional reasons for lawsuits have been clearly discussed in the section “telling reasons for accusation”. The rulers of the Tang Dynasty combined the needs of the changes of the political and economic situation of the country to form the litigation practice of encouraging the accusation of specific crimes by means of imperial edicts, especially economic crimes such as fleeing households, private casting, bribery and so on. In conformity with the jurisdictional principle of the place where the case occurred, the government within the jurisdiction should accept such crimes as informing fleeing households and owing money to strangers. The Statement of Household Book of Fan Lvqian found in Dunhuang says that what was recorded was true and if there was someone accusing, I would like to be punished severely.26 The Household Book of Ning Hecai and Others in Gaochang Province in the First Year of Wuzhou Period (690 A.D.) [64TAM35: 59(a)] found in the thirty-fifth tomb of Asi Tana in Turpan recorded that formatted wording is often used to show that the information of the head of household declaring the household and farmland is true. If the accused conceals the population, he will be liable to punish: 1. 2. 3. 4. 5. 6. 7. 8.

Ning Hecai, the head of the household, was fourteen years old. Mother was fifty-two years old. Ning Heren, the younger sister was thirteen years old. You Jian was in the book. Ning Hezhen, the oldest sister, was twenty-two years old. Ning Luosheng, the older sister was fifteen years old. You Jian was dead. Accepting fields.

.... 14. 15. 16.

Documents were the same as what they were before. If there was someone. Accusing of concealing a family member, I would like to be punished. Written by the household in January, the first year of the Zaichu period.27

Among the following 10 documents, including Wang Longhai, Shi Zhiren, Zhai Jisheng, Yang Zhixiang, Cao Duofu, Kang Caibao, Wang Fani and Kangcaiyi, nine of them mentioned that if someone corrected the hidden population, he would assume legal responsibility, while the rectification should be submitted to the Gaochang 26 27

Interpretation of Authentic Documents of Dunhuang’s Social and Economic Literature, p. 377. Documents Found in Turpan, pp. 414–416.

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County Department according to the law. According to the Old Book of Tang, the Account Book should be made every year, and the Household Register should be made every three years. All the household registers of counties should be gathered to Zhou and Zhou to the province, and the Ministry of Revenue would gather all.28 The information declared by the head of the household was the certificate for the government to compile the account and household registration and was also the basis for levying taxes and levying and assessing the difference. Therefore, the special column of the Tang Dynasty should be standardized in terms of the “increase or decrease of household accounts”. “For those who had no census register, their parents had to serve 3 years’ imprisonment; those who didn’t have class service would be punished two times less severely; for those women who had no census register, they would be punished three times less severely. (Original notes: It was said that no family could avoid the household book. Parents should be blamed. Although there was someone in the army for service, his parents would also be punished if his name was not submitted.)”29 In addition, there are many commitments made by the head of household written at the end of the household book in the Tang dynasty. The Household Book of Li Shiwang and Others in Gaochang Province in the 14th Year of Zhenguan Period of Tang (67TAM78: 16a, 64TAM78: 29a, 67TAM78: 32, 67TAM78: 30) found in the 7th and 8th tomb of Asi Tana in Turpan recorded that there were many items of “what was recorded was the same as the previous and I would like to be punished if there was something wrong later”.30 On April 1st, the 2nd year of the Kaiyuan period (733 A.D.), the court ordered local officials to ban migrants and encouraged common people to inform: Recently, those who were migrants were punished first and then had to do corvee labour and pay taxes. If there was someone shielding and concealing the truth, anyone could inform against him. If there were more exiled persons employed outside because of not working hard of governors, it showed that previous drawbacks were not removed and these governors didn’t obey the law. Some migrants embezzled others’ property. Governors investigated this strictly and doubted its facticity. Such cases should be reported and investigated in particular. These cases were classified according to their class row ratio.31

Financial crime was another important point in the Tang Dynasty. In ancient times, a hundred of money was named “bai”, less than what would be called “duan bai”.32 In the Wei and Jin dynasties, there were often phenomena such as “duan bai” or “qian bai”. According to “borrowing more than a hundred but returning less than a hundred” in Bao Pu Zi, Gu Yanwu in the Qing Dynasty thought that there had already been “duan bai” in the Jin dynasty. “Insufficient currency” disturbed the social and economic order and directly led to the loss of the seller’s interests. On March 26th of the ninth year of the Zhenyuan period (793 A.D.), the imperial order announced that insufficient currency trade was forbidden and the owners were given rights to 28

Old Book of Tang, Volume 43, p. 1825. Comments on Laws of Tang Dynasty, Volume 12, p. 231. 30 Documents Found in Turpan, Cultural Relics Publishing House, 1983, pp. 73–74. 31 Notes of Collection of Zhang Jiuling, Zhonghua Book Company, 2008, Volume 7, p. 474. 32 Notes of Ri Zhi Lu, Volume 11, p. 659. 29

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supervise to ensure the head of the occupation perform his duties according to the law, while reiterating the fact that the head of the occupation and the host and intermediary are prosecuting in accordance with the law, “If there was concealment, it was also possible for the person who earns money by selling the property to accuse and as a result the head of the occupation and intermediary would be punished heavily”.33

2.2 Custody Feng Yan in the Tang Dynasty elaborately described the fact that Xiong Yao, the officer of Linqing, exculpated Songhun, an official of Pingyuan, in Feng Shi Wen Jian Ji, which had important reference significance for determining the handling procedure of the cases in the Tang Dynasty and deserved to be quoted completely: When Xiong Yao was an officer of Linqing, he was famous for his capability and competence. The governor of Pingyuan was accused and arrested by an observer who commanded billets and the accuser to go to Pingyuan. When they arrived in Linqing, Xiong Yao wanted to settle this issue, so he requested the officer to ask for leave for a while so that he had the right to judge. Hardly had the accuser arrived at Linqing when Xiong Yao put him into the jail. Xiong Yao comforted him with some wine. He let others away and told the accuser to escape. At first, the accuser disagreed, but soon he found that he could not avoid this, then he escaped. Yao asked the prison guard to unlock the accuser and gave him a lot of money when he went out of the city. Also, he let the guard escape. At dawn, the governor reported that the accuser had escaped. Yao quickly went to the county and explained in detail, “he was imprisoned by the judge but soon escaped”. Li Cheng, the governor, did not know that and was investigated by Shen. The document just ordered to speed up the capture. Because of the escape of the accuser, Hun was safe.34

“In the Taiyuan period, there was an officer of Linqing named Xiong Yao”35 recorded by Linbao in Yuan He Xing Zuan. From that, Feng Shi Wen Jian Ji recorded the accusation procedure in the Kaiyuan period of the Tang Dynasty. In the Tang Dynasty, the investigator also had the responsibility to supervise officers in every county and made jails of provinces on their inspection. In the 21st year of the Kaiyuan period, the state and prefecture were divided into fifteen under the inspection of observers.36 Local people accused their government officials of doing what was illegal, and the observers of that area should be the statutory admissibility organs. Because both parties needed to hear the case, the plaintiff was asked just in his own county, while the accuser was temporarily arrested into the jail when he arrived in Linqing. Xiong Yao, the officer of Linqing, privately used the right to judge and let the prisoner escape. Later, he reported to the governor of Pingyuan and the observer

33

Tang Hui Yao, Volume 89, p. 1933. Notes of Feng Shi Wen Jian Ji, Volume 9, p. 89. 35 Yuanhe Xing Zuan, Zhonghua Book Company, 1994, Volume 1, p. 20. 36 Graph Records of Counties in Yuanhe Period, Zhonghua Book Company, 1983, Volume 13, p. 361. 34

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that the prisoner escaped so that the case of Song Hun was unsettled because of no evidence. In litigation practice, defendants must await trials. In the first year of the Zaichu period (689 A.D.), Wu Chengsi made the torturer Zhou Xing falsely accuse Shang Jin and Su Jie of their rebellion, “they were summoned to the capital and detained at the Censorate”. In the Shenlong period, they were rehabilitated, Shang Jin’s official title was recovered, and his second son, Yixun, was appointed the chief of Size. Later, “There was someone accusing Yixun and saying that Yixun was not the son of Jin and he counterfeited as a noble. Since Yixun could not explain by himself, he was exiled outside of the Ling.37 ” In the eleventh year of the Tianbao period (752 A.D.), Di Prince Yan’s concubines believed the witchcraft and he was accused by his enemy. Emperor Xuanzong imprisoned him in Ying Gou Fang, and he was terrified to die.38 After the rebellion of An and Shi, because of the domineering of the imperial guards, the northern army prison had also become the place where suspects were detained. In the first lunar month of the fifth year of the Dali period (770 A.D.), Liu Xixian persuaded Yu Chao’en to place prison in the northern army, “let the street bullies lodge a false accusation against the rich; thus, they were arrested to the jail and recognized their crimes through torture. In addition, their properties were employed by the army and the accusers”.39 In summary, the litigation process initiated by the prosecution in the Tang Dynasty included accusing, accepting, arresting and court hearing, and arresting the plaintiff and the defendant to confront in court was the prerequisite for ascertaining the case (Fig. 1).

2.3 Judgement Restricted by the principles of territorial and hierarchical jurisdiction, routine accusation cases should be accepted by local state and county law departments. In the middle of the Huichang period, when Weiwen was the observer in Xuanxi, “Weiwen killed a person in Chizhou who accused of the governor in Chizhou because there wasn’t any description”.40 Hierarchically speaking, the civil and criminal cases in the Tang Dynasty were divided into five levels: county, prefecture, Shangshu Department (left and right prime ministers), three departments (accepting cases) and monarch, and there were also direct prosecution methods such as drum mounting and lung stone erecting. Of course, not every case needed to exhaust the abovementioned procedures; if the reasons for the appeal or the grievances of the complaint were resolved in a certain link, the entire proceedings should be declared to be terminated. Major cases coming from accusations may be tried in the form of imprisonment. In the period of Wu Zetian, “Li Xingbao, the governor in Liangzhou, was falsely 37

Old Book of Tang, Volume 86, p. 2826. New Book of Tang, Volume 82, p. 3608. 39 Zi Zhi Tong Jian, Volume 224, p. 7210. 40 Old Book of Tang, Volume 168, pp. 438–420. 38

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Fig. 1 Picture of prison. Source Complete Collection of Dunhuang Grottoes-Folkloric Scroll, Commercial Press (Hong Kong) Limited, 1990, p. 30

accused by his subordinates”,41 Han Damin was ordered to investigate this case. In February of the fifth year of the Dahe period (831 A.D.), “Wang Shoucheng, the junior officer in Shen Ce troop, secretly asked his subordinate Dou Luzhu to falsely accuse Song Shenxi the prime minister and the chief in Zhangzhou of their rebellion. And he immediately made an order to arrest them”.42 At that time, afraid of Wang Shoucheng and Zheng’s authoritarianism, even the prime minister and other important officials did not dare to say anything about it. The governor of Dali and Cui Wan submitted a memorial to the emperor: “The investigator was asked to investigate this case, and the result was different. Thus, the fact that he would be put into prison was suspended and Shenxi would not be degraded and thought highly of by everyone”.43 Special cases could be presided over by the central law department with the prime ministers jointly hearing. In the second year of the Tiaolu period (680 A.D.), Ming Chongyan, a Dafu, was killed by a thief. Wu Zetian suspected that Prince Xian did that “she abruptly let a person inform his intrigues and ordered an assistant in Zhongshu department Xue Yuanchao, an assistant in Hungmen department Pei Yan and Gao Zhizhou, a Dafu in the Censorate, to investigate this case together with judges. Hundreds of armors were found in Ma Fang in the East Palace, so Prince Xian was demoted as a common person and kept in other places”.44 In December of the 11th year of the Kaiyuan period (723 A.D.), “the domestic servant of Wang Qiao, the governor of 41

Old Book of Tang, Volume 98, p. 3077. Old Book of Tang, Volume 165, p. 4298. 43 Old Book of Tang, Volume 86, p. 2832. 44 Old Book of Tang, Volume 93, p. 2989. 42

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Xuzhou, informed that Qiao and Jun secretly made plans for rebellion”,45 Emperor Xuanzong ordered Yuan Qianyao and Zhang Yue to inquire them. Since Wang Jun did not plan to rebel, he was degraded to be the governor of Jinzhou because he was not guilty. For important cases in local counties, envoys might also be asked to investigate. In February of the eleventh year of the Zhenyuan period (795 A.D.), Cui Mu, the supervision censor in Qianzhong, was informed by his subordinates against his accepting bribes for about two hundred and seventy thousand Guan, “ordering Li Zhifang, another supervision censor, to investigate the case”.46

3 Reward Standard for Prosecution As the third person outside the case, the accuser had no direct interest in the case. The rulers of the past dynasties set rewards in the imperial edicts to prevent extrajudicial traitors and stimulate the non-violation of the civil accusations while setting up the mechanism of joint and several accusations. During the Warring States period, the criminal policy of rewarding the accusers was praised by Mozi and Shangyang. Rewards for accusing killers had already been recorded in Mozi: “All those officers and soldiers who murdered and injured their superiors should be punished as crimes of conspiracy; if the person who murdered the officer was caught, the reward should be gold of twenty Jin and the punishment may be exempted.”47 Book of Shang Yang said that “therefore, the monarch of the kingdom, who had accomplished his kingdom’s deeds, used his punishment when the people were about to commit a crime, so that the great evil did not arise; and the reward was used in the accusation of a crime, so that the small sin did not leak the net.”48 In judicial practice, reward notices could also be released by individuals. Announcement of Reward for Hunting Fugitive Slaves (75TKM96: 21) was found in the ninety-sixth tomb of Ha La He Zhuo in Turpan, which was made during the 7th year of the Zhenxing period (425 A.D.) to the 2nd year of the Yihe period (432 A.D.), and had a certain reference value for understanding the medieval style of reward: 1. 2. 3. 4.

Returning the servant maid, governor of the province Running away for nine days If you send the servant to the government, you get ten blankets. You go to the police office to get the reward. We got the task and will fulfil it.

May 10th, Monk Yuanban. As far as we know, there are two kinds of expressions of rewards for accusing in the Tang Dynasty, i.e., “regular law” and “special imperial edict”. The former 45

Old Book of Tang, Volume 60, p. 1243. Tang Hui Yao, Volume 60, p. 1243. 47 Mozi Jian Gu, Volume 15, Zhonghua Book Company, 2001, p. 599. 48 An Analysis on the Book of Shangyang, Volume 2, Zhonghua Book Company, 1986, p. 57. 46

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mainly referred to laws and conventions. The laws and decrees in the Tang Dynasty had the function of setting up a model and establishing a system. They were the basic expression form of reward for accusing, which stipulated that two-fifths and twothirds of the number of stolen goods involved would be the standard of the reward for accusing.49 The decree of “instigation lawsuits are not true” in Comments on Laws of Tang Dynasty said that one who accused others would be punished if the accusation wasn’t true. That is, one would be punished for false accusations. If the accusation was true, the accuser would be rewarded. There would be other documents of reward for the following cases: holding forbidden things, passing the barriers, gambling, and stealing. Sometimes, there were cases in which one would be given more reward if he informed rebellion: According to Arrest Order in the Kaiyuan period: What was obtained when catching robbers would be given to the accusers as a reward. What was levied would be divided into five, two of which would be given to the accusers if the robbers’ family was so poor that they could not afford these levies. If what was levied was used up, the government would give one of the levies to the accuser. Although the arrest was not informed to the government, the main accuser would also be rewarded according to the law.50

According to the market order: brocade, silk, silk cloth, paper mulberry, embroidered, woven, and embroidered cloth, silk, silk cloth and oxtail pearl, gold, silver and iron could not be allowed to enter the market with other things. Forbidden objects should not be sent to the west, north or border. “If the forbidden objects that had already entered the market were caught, they would be divided into five parts, two-fifths of which would be rewarded and one fifth confiscated.”51 In the military laws of the Tang Dynasty, there were also provisions on giving rewards as a special military regulation. Several crimes were exposed in Li Weigong’s Art of War, which were different from what was in Comments on Laws of Tang Dynasty. Additionally, in Art of War, the reward standard for accusing crimes of the guards was clearly stipulated. The “relics not submitted to the government” in Comments on Laws of Tang Dynasty said that anyone who got the relics and didn’t submit them to the government in five days would be punished because of the relics’ missing. If the property acquired by bribery or theft was very important, it could be seen as a case of keeping others’ things illegally. Hiding things privately would be judged as the case two times less important than keeping others’ things.52 There was nothing about the size of the reward. Li Wei Gong’s Art of War said that if some people picked up lost things but concealed or didn’t send them to the government, others could inform against them and got some rewards. Those who knew the fact but did not lodge an accusation would be beaten sixty times with sticks. Those who concealed lost things would be beheaded. It was stipulated in the decree of “rebellion” that those who plan to rebel would be sentenced to be hanged. Those who had rebelled would be beheaded, and their wives and children would be exiled two thousand kilometers 49

Comments on Laws of Tang Dynasty, Volume 24, p. 445. Revision of Ming Emperor’s Money Order in Tianyi Pavilion, Volume 7, p. 550. 51 Comments on Laws of Tang Dynasty, Volume 8, p. 177. 52 Comments on Laws of Tang Dynasty, Volume 27, p. 521. 50

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away. If one led more than one hundred subordinates to rebel, his parents, wife and children would be exiled three thousand kilometers away. For the case that one didn’t lead more than one hundred subordinates to rebel but did that purposely also would be punished the same as he led more than one hundred people to rebel.53 Li Weigong’s Art of War said that those who informed against some people who colluded with enemies would be given wives, servants and horses as rewards. In the early Tang Dynasty, Li Weigong’s Art of War adopted the method of calculating the reward of silk and Duanli, which was completely consistent with the method of calculating stolen goods in Comments on Laws of Tang Dynasty. In addition, Li Weigong’s Art of War said that those who “accuse of violating laws” and “accuse of not giving what should be levied enough”54 would be rewarded more than usual. It can be seen that there should be a clear reward for those who inform against generals and soldiers who have violated the decrees and bullied the hermits. Unfortunately, the relevant literature is lost, so there is no way to check this. In addition to the rewards prescribed by laws and military regulations, the rulers of the Tang Dynasty issued imperial edicts to regulate special legal issues in accordance with the needs of the political and economic situation of the country. In the investigation and punishment of various crimes, rewards were often promulgated to encourage the prosecution of financial, fiscal and taxation crimes, thus forming the litigation practice of rewarding the prosecution of financial and taxation crimes. Specifically, in the Tang Dynasty, “special imperial edicts” mainly involve the following three categories of crimes.

3.1 Financial Crime Since the Han dynasty, governments have regularly offered rewards in the field of financial crime, encouraging accusations. In the sixth year of the Wuding period in the North Qi Dynasty (548 A.D.), the chief of Wenxiang thought that the “Wu Zhu” coin should be worthy of its name and ordered that anyone who minted coins privately should not be forbidden. If the coin weighed five Zhu, it could be used. However, if the coin used in the market did not weigh five Zhu or although it weighed five Zhu, there was impurity, it would not be used thereafter. If someone accused the use of some other coins, all these coins would be given to the accuser.55 Many officials thought that the new grain was relatively expensive and asked to wait for the next year. In the Tang Dynasty, the number of rewards for financial crimes mainly concentrated on two categories: stealing money and keeping too many coins. In April of the seventh year of the Wude period (624 A.D.), the Kaiyuan Tongbao coins began to be used. Later, casting coins secretly became popular, and thus, the coin was abused. “In 53

Comments on Laws of Tang Dynasty, Volume 17, p. 325. Li Weigong Art of War, PLA Press, 1988, pp. 327–332. 55 Tong Dian, Volume 9, p. 197. 54

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the Shenlong and Xiantian periods, coins were spent most randomly in the capital. Unpopular coins were made privately in Chen and Heng. It had rough shapes and was made from iron and tin, so it could also be used.”56 In May of the first year of the Yongchun period (682 A.D.), the imperial order announced that copper coins involved in cases would be given to accusers and criminals could also obtain rewards if they surrendered. This imperial order was recorded as Xing Bu Ge, quoted in Song Xing Tong57 : The person who proposed to make money privately and his partners would be beaten one hundred times and then sentenced to be hanged. From the host to the servants, all would be beaten sixty times. If the family was in joint crime, the parents were punished. Older children in the family would be punished if their parents were too old and weak to accept the punishment. The place where coins were made would be guarded by neighbors for one year; all the governors would be punished six times. If there was someone to inform, all goods made from copper would be given to him as rewards. The accomplice would be exempted from the punishment and rewarded according to the law if he confessed himself.58

Different from the way to determine bribes in Comments on Laws of Tang Dynasty, in the field of rewarding the report of economic crimes, the practice of paying the reward with copper coins for a long time after the mid-Tang Dynasty was carried out. On intercalary March of the 4th year of the Yuanhe period (809 A.D.), it was ordered imperially to capture inferior coins made of lead and tin and at the same time set up the reward as one hundred times as before: “All coins made of lead and tin should be turned over to the government and anyone would be awarded one hundred if he accused one.”59 In June of the 3rd year of the Dahe period (829 A.D.), it was reported by Zhongshu and Menxia departments that because the rewards in the 4th year of the Yuanhe period were indiscriminate, this rule was useless. Thus, the reward standard for informing against coins made of lead and tin was set for fifty weeks out of a Guan. Those less than a Guan would also be rewarded fifty Wen. If the total number reached three hundred Guan, it was paid by the government. “Traders who used coins made of lead and tin would be beaten twenty times if the trading volume was less than one Guan; if it was more than one Guan but less than ten Guan, the traders would be beaten sixty times and had to serve three years’ imprisonment; if it was more than ten Guan, the traders would be beheaded. Those who suffered from trading in coins made of lead and tin would also be punished the same as the former. These lead and tin coins would also be turned over to the government. Accusers would be rewarded five thousand Wen if the trading was one Guan or less than one Guan. When the reward reached three hundred thousand, the government would pay it to the accuser. For those whose punishment wasn’t the death penalty, their family assets would be levied to be the reward.”60

There was a convention about coins that made the weight appropriate, the purchase and sale of goods moderate and was flexible and good for people. If the private firm 56

Old Book of Tang, Volume 48, p. 2096. Song Xing Tong, 27, Zhonghua Book Company, 1984, p. 407. 58 Tong Dian, Volume 9, p. 200. 59 Tang Hui Yao, Shanghai Classics Publishing House, 2006, Volume 89, p. 1936. 60 Old Book of Tang, Volume 48, p. 2105. 57

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held excessive money, it would exacerbate deflation. In the middle and late Tang Dynasty, in the aspect of bounty payment of informing against illegal possession of currency, the principle of payment of the bounty, which mainly consisted of stolen goods and family property, supplemented by government reward, was formed. The bounty ceiling rule was followed for those who reported huge financial offenders. In the first lunar month of the 12th year of the Yuanhe period (817 A.D.), Prohibition against Private Savings was announced by Emperor Xianzong to stipulate that private deposits possessed by all kinds of people should be limited to 50 Guan. The extra should be disposed of within one month in principle, and the longest term should not exceed two months. All those who failed to be disposed of within the time limit should be admitted by the officer, and one-fifth of them should be used as a reward for the informer. The reward should be no more than 5000 Guan: Recently, cloth and silk began to depreciate, and the coins in circulation decreased. The reason was that they were kept by people and not in circulation. It’s better to order all officials, civilian or military, and regardless of ranks, to deposit the money within fifty Guan. If the deposit was more than fifty Guan, it was allowed to be exchanged into other properties within a month after the imperial edict was made. If the deposit was too much to be handled, it would be addressed by local governors who could submit a report to ask for another time limit. Even such cases should also be handled within two months. Other houses and stores of the same person should be included in his deposit. The case in which a person had brothers who did not live together with him was not included. If there were still some people violating the limitation, civilians should be sent to the government and be sentenced to death after beating severely, while officials should be degraded. Regardless of how much money was left, all should be turned over to the government; one-fifth was the reward money, which should not exceed five thousand Guan. In addition, if there was still someone caught by searching or accused by others, he would also be severely punished. The accuser should be rewarded.61

However, the implementation of this decree made in the 12th year of the Yuanhe period was not good enough. At that time, the money worth at least five hundred thousand million coming from other towns was gathered in the capital to scramble to buy houses in the downtown area. However, the censors did not dare to impeach some rich people who owned money relying on the fact that the money was used for Shence Army.62 Until November of the 4th year of the Dahe period (830 A.D.), the time limit for the disposal of private savings was redefined. While reiterating the rewards announced in the Yuanhe period, local governments stipulated that those who were caught by local governments should also be rewarded half of the amount of money: The money kept in the house that was more than ten thousand Guan but less than one hundred thousand Guan should be deposed of within one year, while the money that was more than one hundred thousand Guan but less than two hundred thousand Guan should be deposed of within two years. If there was still someone who kept the money as usual regardless of the time limit, he could be informed against by anyone else and be investigated by officials. The money involved should be turned over to the government according to the imperial edict of the 12th year of the Yuanhe period. One-fifth of the money, which should be no more than 61 62

Tang Hui Yao, Volume 89, p. 1935. New Book of Tang, Volume 54, pp. 1389–1390.

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five thousand Guan, should be given to the accuser as a reward. Those who broke the law must be degraded according to the imperial edict of the 12th year of the Yuanhe period, and half of the money involved should be given to the accuser as a reward.63

3.2 Fiscal and Taxation Crime In the late Tianbao period, the case of buying and selling fields illegally, using wasteland and grazing land randomly often occurred, and land annexation was serious. In November of the eleventh year of the Tianbao period (752 A.D.), the limitation of the occupation of land around the capital was reset. The land would be owned by the accuser who accused one annexed land. Yang Guozhong, the Casher of the two capitals, would be in charge of the handling of the cases: There mustn’t be grazing land within 500 li away from the capital. Perennial farming fields must be in the range of five to ten hectares. The fields over ten qing would be turned over to the government. After checking and giving the fields to people, governors and judges of this county colluded with the recorder. The fields would be given to everyone averagely despite whether there was a person who wasn’t in the household book according to the real amount of population. If the fields were left, they were recorded in an account book in detail and used for rent by the government rather than given randomly. If someone who came from the family of the relatives of officials, industry, commerce and rich asked for fields wrongly, he would be beaten first and then imprisoned according to the law. There mustn’t be the case of benefiting from their ancestors’ achievements. If there was someone to accuse, the fields would be owned by him. Observations were ordered to investigate and report the truth. If the judge misconducted his duty, he would be punished the same as governors.64

After the mid-Tang Dynasty, because of frequent wars and separation of powers, the central government was unable to meet its financial needs. Since the beginning of the crusading against military governor segmentation, over one million three hundred thousand million money was needed, which often could not be supplied. To increase central finance, imperial edicts in the periods of Emperor Dezong and Emperor Wuzong were announced frequently, encouraging the prosecution of tax evasion and the crime of tea smuggling. To safeguard the implementation of state decrees, there was a practice of rewarding the reporting of tax evasion and private tea crimes. In June of the fourth year of the Jianzhong period (783 A.D.), Zhao Zan, an officer responsible for finance, reported to the emperor levying two new taxes: Shui Jian Jia and Chu Mo Qian. The former referred to levying housing tax: each house with two Jia as one Jian and one upper Jian should be levied two thousand, one middle Jian one thousand, one lower Jian five hundred, which was counted by officials. “Anyone who concealed one Jian should be beaten sixty times with sticks, and anyone who lodged an accusation should be rewarded fifty Min.” Chu Mo Qian meant levying a transaction tax. Regardless of whether the transaction is public or private, each transaction will pay fifty Wen for each Min (five percent); for cases of 63 64

Ce Fu Yuan Gui, Volume 501, p. 5692. Ce Fu Yuan Gui, Volume 495, p. 5623.

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barter exchange, the amount of money involved is calculated. “Anyone who dares to hide money would be beaten sixty sticks and fined two thousand while anyone who informed would get ten Min as reward.”65 So everywhere, the voice of hatred could be heard. Because of the illegal levy of the towns and counties, the state’s financial situation was not completely improved. In July of the third year of the Zhenyuan period (787 A.D.), Li Mi asked for an envoy to check the local taxes and suggested resetting the reward standard. Accusers would be rewarded according to the standard, but for those who concealed his crime, “except for those who should be detained in his local place according to the law, others must be sent to the capital. As for those officials in lower positions, we can levy those who could bear taxes and release those who couldn’t bear taxes to show our tolerance; if there is someone who dares to conceal his crime, we could punish him according to the reset standard”.66 Emperor Dezong ordered Yuan Youzhi to supervise the tax levying in Henan, Jiangnan and Huainan. In the 1st year of the Jianzhong period (780 A.D.), Emperor Dezong agreed to levy the tea tax proposed by Zhao Zan, the assistant minister of revenue, which would be used by the government year in and year out. After that, there were reforms and abolitions of this tax. After Emperor Wuzong was in power, the tea tax was renewed in October of the 5th year of the Kaicheng period (840 A.D.). Local officials who were lazy in their duties and appeased private tea transactions should be punished according to the private salt decree. The confiscated tea and the suspect’s belongings would be given to the informer and the local government as a reward: Those who sold tea privately would be beaten twenty times and levied one hundred Wen if the tea weighed ten to one hundred Jin. If the tea weighed three hundred Jin, he would also be beaten twenty times and levied as much money as the first case. The criminal must be punished whenever he violated rules. Three times later, the criminal would be taken into custody by the governor of his Zhou and levied more severely to warn others not to do that. That is, the law did not exist in name only, and people did what they should do. People did not dare to violate laws because they were afraid of the bitterness of being in prison. Once the decree was implemented, all had to obey. If in some counties, there was still someone selling tea privately because of the connivance of their governors, it would be investigated and reported by supervisors if there was someone accusing of the case…From then on, the punishment should be less severe. Those who sold tea without the help of others would be beaten fifteen times, and the tea and his belongings would be confiscated to be the reward given to the accusers if the tea weighed between ten Jin to one hundred Jin.67

3.3 Other Crimes In other fields, the rulers of the Tang Dynasty also often offered explicit rewards and encouraged rectification to ensure that all prohibitions were observed. Similar to 65

Zi Zhi Tong Jian, Volume 228, p. 7346. Zi Zhi Tong Jian, Volume 232, p. 7492. 67 Ce Fu Yuan Gui, Volume 494, p. 5603. 66

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the aforementioned accusations of financial, fiscal and taxation crimes, such accusations were more policy-oriented, timely and targeted, and the reward standards varied according to time and circumstances. Litigation practice mainly involved the following kinds of crimes. First, the policy of following ancestral feats to be an official was indiscriminate. In February of the 4th year of the Kaiyuan period (716 A.D.), it was imperially ordered that those whose ancestors were officials would be given officials rankly. Meanwhile, the order set the rule that anyone would be awarded fifty thousand if he accused those who wanted to pretend as a descendant of an official. If the report was false, the governors of this Zhou should allow accusation. One accusation for a family would be rewarded fifty thousand which was given by families whose ancestors were great.68

Second, divination utensils were secretly possessed. Mysterious objects, astronomical books, augury books, military books, seven calendars, Taiyi Lei Formula, etc., were necessary for divination and examination. Private families were not allowed to keep them. Those who violated the law should be exiled for two years.69 In June of the first year of the Zaichu period (689 A.D.), the imperial order came that “books about physiognomy and those about blessings and evils should be forbidden”.70 In the first lunar month of the second year of the Dali period (767 A.D.), the imperial order claimed clearly the reward standard for reporting the collection of astronomical maps: if he was an official, he would be given an exceptional promotion; if he didn’t have any official rank, he would be paid five hundred Guan as the reward: Metaphysics, astronomical books, Qi Yao Li, Formula of Tai Yilei and so on, could not be owned privately. From now on, all states should forbid these and this punishment would be put up publicly. All those who violated this would be arrested. Those who collected these before would be given ten days to submit them to the government. And all these collected books would be burnt together. Those who concealed these books and were reported by others would be beaten one hundred times, and then imprisoned for inquiry. The accuser would be promoted if he was an officer, while he would be rewarded five hundred Guan if he was a common civilian.71

Third, slaves were concealed. In April of the fifth year of the Huicang period (845 A.D.), Emperor Wuzong ordered the Ministry of Sacrifice to check the number of temples and monks and nuns, “there are about four thousand six hundred temples, forty thousand Lanruo temples, and twenty-six thousand and five hundred monks and nuns”. Because the Buddhist temples were exempted from taxes and duties and widely occupied many good farmlands, they posed a serious threat to central finance. Additionally, in April of the same year, the Zhongshu Department requested that all slaves in all temples be counted. Those who were informed against governmental officials or rich people who concealed slaves were rewarded according to the price of the slaves: 68

Tang Hui Yao, Volume 81, p. 1775. Comments on Laws of Tang Dynasty, Volume 9, p. 196. 70 Tang Hui Yao, Volume 44, p. 934. 71 Old Book of Tang, 11, pp. 285–286. 69

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We advise that: we hope every governor can order the observer and other officials to check together with the governor and county magistrate. All the old, weak and children should be in the scope of the check. If one had already been in business and submitted his slaves, he could be seen as the particular case. We are afraid that some bad governors, rich people, merchants, and common civilians attempt to hide the truth. Such cases had to be handled according to the severe decree. If there was someone violating the law, he would be executed if the slaves were more than twenty thousand. Slaves would be given to accusers as rewards. After checking the number, the regulations were set up again.72

In August of the fifth year of the Huichang period (845 A.D.), “over 4,600 temples were dismantled and 265,000 monks and nuns were secularized to be persons paying taxes according to law. Over 40,000 Zhaoti and Lanruo were dismantled, tens of millions of hectares of fertile lands were gathered, 150,000 slaves and servants were collected to be taxes households”.73 In the same month, Zhongshu and Menxia departments advised that those who were accused of concealing servants would be rewarded according to the number of servants: one servant for one hundred thousand. The government first paid the reward and then levied it from criminal families. Zhongshu and Menxia departments reported that “temples all over the country should be dismantled and slaves should be released to be common people. It was learned that there were some officials lower than governors, rich people, judges, merchants and common civilians who attempted to hide their slaves and demand money. After the imperial edict was announced, if there were still such cases, the slaves should be rescued and returned to their parents. If there were still cases in which some people covered up the truth, others could inform against them. Officials should be long exiled, and merchants and civilians should be executed. The accuser would get one hundred thousand for one person. The money would be given by the government first, and then the government would levy it from the criminals. The emperor agreed.74

Checking servants and maidservants was only one of the components of Emperor Wuzong’s campaign to exterminate Buddhism in the Huichang period. The strict measures and rich rewards directly reflected the great influence of the Buddhist temple economy on feudal national interests at that time. The purpose of reporting the concealing and releasing slaves with generous rewards is to ensure the redistribution of Buddhist temple property and ultimately achieve the political purpose of increasing population and collecting wealth.

4 Summary Accusation is one of the important ways of private prosecution, which refers to the fact that someone other than the victims and their family members accuses the facts of the crime to judicial organs. Although prosecutions may not necessarily lead to criminal proceedings, it is an important source of information for the law 72

Tang Hui Yao, Volume 86, p. 1863. Imperial Edict Collection of Tang Dynasty, Volume 113, p. 591. 74 Tang Hui Yao, Volume 86, p. 1863. 73

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department to detect violations. In the Warring States, Qin and Han dynasties, it was an important factor to prompt third people to accuse crimes. In judicial practice, general jurisdiction practice is followed. Anyone who accuses a person of visiting other people is not a violation of the law. In the Tang Dynasty, the handling process of the accused cases was the same as that of other criminal cases, including submitting lawsuits, accepting, arresting, and court hearing. As the third person outside the case, the accuser has no direct interest in the case. The rulers of the past dynasties set up the mechanism of joint and several accusations of crimes, at the same time, in order to prevent extrajudicial criminals, often reset the reward in the imperial decree, to stimulate the non-violation of civil accusations. There were two forms of reward for accusers in the Tang Dynasty, which referred to the “ordinary law” and the “special imperial edict”. The former mainly referred to rules and regulations. The laws of the Tang Dynasty had the function of “setting up the model”, which was the basic expression of the reward, and it was clearly stipulated that 2/5 or 2/3 of the total amount was the reward standard. To meet the needs of the changes in political and economic situations, the rulers of the Tang Dynasty formed the litigation practice of encouraging the reporting of special crimes by means of imperial edicts, especially economic crimes such as escaping households, private casting and bribery. Different from the way to determine bribes according to records, in the field of rewarding the reporting of economic crimes, paying the reward with coins was practiced. In the middle and late Tang Dynasty, the central government was financially strapped for objective reasons such as frequent wars and separation of powers. To strengthen central finance, Emperor Dezong and Emperor Wuzong frequently issued imperial edicts, encouraging the prosecution of tax evasion and the crime of selling private tea. To safeguard the implementation of state decrees, there is a practice of rewarding the reporting of tax evasion and private tea crimes.

Chapter 9

Snitching

1 Development of the System of Snitching Snitching is the direct product of legal monarchy and the thought of “taking law as teaching” in the Warring States period, while Shang Yang is the originator of the Chinese feudal system of informers. Shang Yang said, “People would report to authorities when they found crimes, in their heart, they could judge whether the thing was right or wrong.”1 Han Fei even regarded snitching crimes as one of the important factors in the rise and fall of state disorder: The most important thing in governing the country is to unify the people’s hearts, advocate honesty and oppose selfishness, reward and snitch against evil, and understand the rule of law to govern society without trouble. If you can make good use of the four, you are strong, otherwise, you are weak.2

After that, “traitors” and “informers” have been accompanied by each other, and one of the important means to expose and disclose crime has gradually become a rule of social control, and is followed by the legislation of the past dynasties. The Han Dynasty improved the system of snitching in the Qin Dynasty and created a direct way of litigation-beat the drum. Zheng Sinong explained the system of beating drums in the Western Zhou Dynasty, he said, “Those who were poor, wronged, and unemployed could come and beat the drum, so as to be heard by the king, just like beating the drum when snitching nowadays”.3 The so-called snitching is an unusual thing, so it is called change.4 After Han Dynasty, snitching gradually separated from the common criminal cases, and became a special way for the third people to snitch to the government in secret ways. In practice, most of them were called “gaobian” and “shangbian”. 1

Meagre Knowledge of Shang Jun Shu, Volume 2, The Fifth Article Talking about People, Zhonghua Book Company, 1986, p. 40. 2 Integration of Han Fei, Volume 20, p. 474. 3 Commentary on the Rites of Zhou, Volume 31, p. 973. 4 Book of Han, Volume 36, p. 1930. © Science Press 2021 X. Chen, A Study of Criminal Proceeding Conventions in Tang Dynasty, https://doi.org/10.1007/978-981-16-3041-5_9

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In the sixth year of Emperor Gaozu (201 B.C.), someone submitted a report about Han Xin’s rebellion in December, and later “adopting Chen Ping’s plan, Emperor Gaozu pretended to visit Dongting Lake and met the feudal princes in Chen; Han Xin greeted, and then measures were taken”.5 In the period of Emperor Hanjing, Zhou Yafu’s son bought five hundred sets of armor for him from the office. The person employed to carry the burial device thought that he was so tired. Yafu’s son did not pay him any money. The employee knew that Yafu’s son had bought the emperor’s utensils by improper means, so he urgently reported Yafu’s son to the court out of resentment, which involved Yafu.6 Then, the emperor sent a junior officer to investigate. In the first year of Emperor Ling’s reign (168 A.D.), the governor, Zheng Sa, Dong Teng of Zhonghuangmen, and Liu Xin were in communication. “Wang Fu inspector, who thought there was a crime, told Duan Jiong. In the first year of the Xi Ping period, Zheng Sa was sent to the North Temple Prison.”7 In the Sui Dynasty, Huangfu Xiaoxie rebelled against Ling Huxi, the general governor of Guizhou. Yuan Min, the left-wing general, Yuanzhou, the right-wing general, and Gao Jiong all communicated with Wang Shiji.8 Shiji was killed, Yuan Min and Yuan Zhou were removed from the office, and Huangfu Xiaoxie was worshipped as a senior general. Confucianism, as the orthodox thought of feudal rule, rejected the act of snitching, which often made ordinary people and even rulers noticed in reality,9 so snitching should be strictly limited to the prosecution of rebellion; other criminal offences should not be prosecuted. In view of the prevailing practice of falsely accusing and the frequent occurrence of people being trapped in the crime, the relevant penalties for false snitching were formulated in the Qin, Han, Wei and Jin Dynasties. In addition to the application of the principle of “false accusation and anti-sitting”, Jin Law specifically stipulated that “If people recompensed for an incident that broke out on the palace gate, leaked election affairs, mistakenly sent secret matters, beat brother or sister, he would be sentenced to four years’ imprisonment”.10 The above judicial practice and legal creation laid the foundation for the perfection of snitching rules in the Sui and Tang Dynasties. In the Tang Dynasty, there were many adaptations on the basis of the rules of snitching in successive dynasties, and many kinds of legal forms coexisted. A series of litigation practices were formed in the links of snitching, accepting, arresting and interrogating, and special characteristics of the times were displayed in different historical stages.

5

Records of the Historian, Volume 8, p. 382. Book of Han, p. 2062. 7 Book of Later Han, Volume 55, p. 1798. 8 Book of Sui, Volume 40, p. 1173. 9 The political considerations of Chinese traditional “snitching culture”, Inner Mongolia Social Sciences, 2006, (5): 16. 10 Tai Ping Yu Lan, Volume 642, p. 2877. 6

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2 Jurisdiction of Snitching Cases In the fourth year of emperor Yonghui, Comments on Laws of Tang Dynasty established the basic principle of snitching cases, which is governed by the local authorities, that is the principle of the jurisdiction of the venue. According to the article “Conspiracy and Rebellion” in Lawsuits, people who heard and knew the crime of rebellion, the rebellion should be secretly reported to the departments under the jurisdiction of the authorities, and the person who did not report should be hanged. The government should arrest the suspect immediately after the acceptance of the snitching, and if it was delayed more than half a day, the officer should also be hanged. People knew the suspect, though they didn’t tell the departments, they caught the suspect to the authorities by themselves, which also be regarded as snitching. People who heard and knew the crime of rebellion, the rebellion should be secretly reported to the departments under the jurisdiction of the authorities and hanged the person who didn’t report…the government should arrest the suspect immediately after the acceptance of the snitching, and if it delayed more than half a day, it was the same crime with not snitching; If the case needed time to be sorted out, it would not be convicted even if it exceeded the time limit.11

With regard to the jurisdiction of the case, the emperor once abolished the provisions of snitching to the nearby departments in the Tang lawsuits and endowed the informant with the privilege that the lawsuits could be reported to the imperial court. All snitching cases were not restricted by the litigation level and established litigation practices in the field of snitching. That is, there is no need to exhaust the county, state, prime ministers in the Shangshu Department, Shang Biao, San Si and any other procedures and exempt the informer from the responsibility of overstepping the prosecution. New Book of Tang-Criminal Law: Wu Zetian had already declared herself emperor, fearing that people would not obey her control, and she wanted to govern with power. Therefore, she improved the law of snitching in the Zhou dynasty and ordered all officials to be interrogated; people who knew others’ secret plots should ride the horse to report as soon as possible.12

In February of the first year of the Guangzhou period (684 A.D.), more than a dozen people, including imperial bodyguards and sergeants, gathered in the streets to drink, and one of them said, “It is better to serve the King of Luling than to know that there is no reward for merit”. One of them left his seat and went to the North Gate to snitch. When the drinking sergeants had not yet dispersed, all of them were captured and put into Yulin Prison. Finally, the speaker was beheaded, and the rest were sentenced to hanging because they knew the rebellion without snitching, and the accuser was appointed a Level-Five official. The wind of snitching sprang up since then.13 The overflow of informers in the Wuzhou Dynasty was the inevitable result of the abolition of the law by bad examples. The formation of direct prosecution 11

Comments on Laws of Tang Dynasty, Volume 23, p. 427. New Book of Tang, Volume 56, p. 1414. 13 Zi Zhi Tong Jian, Volume 203, p. 6418. 12

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practices of informers made the jurisdiction of the local law department lose its control about snitching and created an atmosphere of terror in which everyone was in danger and attacked each other. While depriving the local law department of the power of snitching, it emphasized local law division after two years (686 A.D.). After the second year of the Chuigong period (686 A.D.), the emperor emphasized that the local law department should fully guarantee the realization of informers’ right to go to the capital city to snitch. Regardless of whether the status of informers is high or low, they should not ask questions or check errors and should provide convenience such as post horses, food, and lodging. Those who detract from neglect will be held accountable for their crimes. According to the New Book of Tang Biography of Wu Zetian: Wu Zetian also feared that the people of the country would plot rebellion, so she ordered people to report any disturbances and provided fast carriages and horses, five-grade meals, and escorted them to the capital. Wu Zetian met them that very day and rewarded them generously. Officials were not allowed to reproach anyone who reported turmoil. Even the farmer who hoed the fields for firewood, Wu Zetian would meet him and accommodate him at the guest house. If a local person kept the informant left and did not send him to snitch, he was punished according to what he had done. Therefore, snitching people could be found everywhere in the country, and everyone held their breath and did not dare to comment.14

In October of the first year of the Zaichu period (689 A.D.), Zhou Ju, the imperial court censor, said that “Recently, people are accustomed to the accusation of vile characters, the central and local authorities both are thinking about escaping, indulging the officials of the central government organs and take on the tough. It is not intended to do so, but to avoid false accusations.”15 During the Wuzhou Dynasty, under the shadow of snitching, people were in danger day and night and dared not to talk casually when they met on the road. They could only express their inner resentment with their eyes. After the reunification of the imperial clan, Emperor Zhongzong standardized the snitching rules, which were almost uncontrollable in the Wuzhou period. Compared with Comments on Laws of Tang Dynasty, the provisions on the jurisdiction of snitching cases in the Shenlong Dispersion Punishment Formula are more detailed, and the meaning of bringing order out of chaos is particularly prominent: (the preceding contents were omitted.) As long as there was snitching, the case should be accepted and charged by the accused officer. If there was someone who was condemned to be beaten, would be beaten first, and then push them away. The clause that was not secret should not be included in the list. The secret bar must be clear; those who stayed behind were arrested according to law and reported by riding post horses. If there was no goal, there was no need to investigate. If the investigation was false, one hundred sticks should be beaten first and then convicted according to the law, and no redemption should be made.16

14

New Book of Tang, Volume 76, p. 3479. Old Book of Tang, Volume 186, p. 4843. 16 Authentic interpretation of Dunhuang Socio-economic Literature, Volume 2, pp. 565–566. 15

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On the basis of restoring the principle of nearby jurisdiction in Comments on Laws of Tang Dynasty and Prison Officer Ordinance,17 Shenlong Dispersion Punishment Formula dealt with informers separately according to the snitching content: If the content was true, then the local authorities should investigate immediately, and they would ride post horses to report. This confirms the lawsuit practices that snitching cases were reported to the imperial court. If the content was false, they would be punished by beating one hundred sticks and then sentenced according to the principle of “false charges will bring upon the same punishment”, and the punishment should not be lightened. The above provisions not only kept the old law but also revised it in combination with judicial practice, which laid a foundation for the perfection of the snitching rules. In the twenty-seventh year of the Kaiyuan period (739 A.D.), on the basis of summing up the principles of controlling snitching in the Yonghui, Wuzhou and Shenlong periods, Tang Liu Dian stipulated the principle for the jurisdiction of case reporting and arrest: Snitching was not there, but arresting was near. (Original annotation: All informants reported to local officials first. If the senior official had other important things to do, they should report it to the assistant. If both were busy, they could report to the governor of a neighboring region. The government that received the case should show it to the public according to law and check the truth of the snitching; if the statement was true, the sinner should be imprisoned. If necessary, the arrest must be taken immediately. Local officials were arrested in accordance with the circumstances. If it was treason and rebellion, it must be reported quickly. People who snitched about treason and rebellion refused to show the details, they would be escorted by post horses to the capital. If criminals who were convicted of the death penalty or exiled to board areas snitched, they should not be sent to the capital.18

Prison Officers’ Ordinance had a more practical and conclusive record of the jurisdiction over informers, among which there were many places that can be crossreferenced with Tang Liu Dian: All informants reported to local officials first. If the senior official had other important things to do, they should report it to the assistant. If both were busy, they could report to the governor of a neighboring region. The government that received the case should show it to the public according to law and check the truth of the snitching; if the statement was true, the sinner should be imprisoned. If necessary, the arrest must be taken immediately. Local officials were arrested in accordance with the circumstances. If it was treason and rebellion, it must be reported quickly. (Original annotation: generals who would go to fight, fought outside and stayed in his own army, state governors and assassins at important frontiers, although they were snitched, they were not allowed to be detained immediately. Those who accused the emperor and cast spells on people should be reported together after the examination. The person who had been arrested was not allowed to report if there were no other circumstances. Some people, though claiming to snitch, refused to say details but also said that they would report to the emperor directly. The officials receiving their snitching should clearly state that if their snitching is false, they should be punished the same. If they still refused to tell the matter, then they would be imprisoned, and the official should report it by riding post horses. If people snitched treason or rebellion directly without details, the local authority should supply post horse and dispatched minister to send the informer to the capital city. (Original 17 18

History of China’s Judicial System, People’s court press, 2004, p. 111. [Japan] Gleanings of Tang, Volume 21, pp. 711–712.

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annotation: If the informer did not explain the complete situation, then the criminal escaped, it would be the same crime as knowing but reporting. If prisoners who committed the crime of death, guards of the towns along the border, and those who were exiled snitched, they should not be sent to the capital. If their cases should be examined and reported, follow the abovementioned principle.19

Obviously, Tang Liu Dian heavily expurgated the “snitching” clauses when it quoted from Prison Officers’ Ordinance, so it is almost impossible to accurately see the original appearance of the snitching jurisdiction rules in the Kaiyuan period through Tang Liu Dian. By comparison, the rules governing the jurisdiction, acceptance and disposal of informers in the Prison Officers’ Ordinance in the Kaiyuan period are roughly as follows: First, case jurisdiction. The local law department accepting the case was still a principle (The chief official accepted the case. Under special circumstances, his assistant was responsible.). The department accepting the case had the obligation to declare the punishment for false accusations to the informant. Secondly, the right to arrest. The local government accepting the case was still in charge of arresting, and neighboring state governments should assist. However, those who are fulfilling military tasks and those who are guarding the border should not be arrested immediately for being snitched. Thirdly, the plaintiff was in custody. The cases above treason and rebellion must be reported to the central authority, and the person who snitched but did not explain in detail would be sent to the capital city. However, the dead prisoners, soldiers guarding the border, and the exile criminals who snitched need not be sent to the capital city. The rules of snitching in the Tang Dynasty changed several times and became stable until then.

3 The Evolution of Snitching 3.1 Snitching by Writing In the Tang Dynasty, snitching can also be described as “upheaval”, “sudden change”, and “secret matter”, which was similar to private prosecution and impeachment. It followed the general convention of describing litigation concretely, and the content of snitching should be similar to that of general litigation. If it involved matters such as rebellion and other confidential matters, it would not be known to the outside world. The earliest snitching of the Tang Dynasty took place in August of the second year of the Wude period (619 A.D.). Liu Wenjing called wizards in to hold their knives under the stars with disheveled hair because of the strange appearance at home, which was the method of the curse. “At that time, his concubine was out of favor and told the situation to her brother; thus, her brother snitched.”20 The specific way of snitching in this case could not be known in detail. In the period of Emperor Gaozong and Empress Wu Zetian, most of 19 20

Tang Liu Dian, Volume 6, p. 190. The Copy of Prison Officials Order in Kaiyuan Period of Tang, Volume 36, p. 647.

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the snitching cases were carried out in the form of a closed book and secret report. In the fourth year of the Xianqing period (659 A.D.), Li Fengjie, a Luoyang native, wrote a letter to the emperor, saying that Wei Jifang and Jichao associated with the nobles of the court and ganged up together for private affairs.21 In the middle of the Shengong period, Zhu was sentenced to death by bribery and put into prison. The monks who had a good relationship with Zhu Bidai secretly made friends with some illegal people because Zhu wanted to occupy Bashu in the name of killing Yao Shu. “Someone snitched to Empress Wu, Wu ordered Yao Shu to thoroughly investigate and handle the case. Yao Shu dug into the case and arrested all who were suspicious.22 In the late years of Wu Zetian, Zhang Yizhi falsely accused Cui Zhenshen of rebellion in the name of others, which is of great reference value for ascertaining the litigation function of Tang Dynasty informers. In September of the third year of Chang’an (703 A.D.), the prince’s servant Cui Zhenshen and eight other people went on a farewell trip with Wei Yuanzhong in the suburb. Zhang Yizhi pretended to be the informer-Chai Ming, saying that Zhenshen and others had rebelled with Yuan Zhong, and Empress Wu sent him to supervise the trial of imperial censor Huaisu. Huai Su asked Chai Ming to confront him. Empress Wu said, “I don’t know where Chai Ming is. You just have to interrogate according to the reported case, and what are you going to do with the person who made the complaint?”23 Therefore, there are many similarities between the informer case and the general litigation case in pleading, confrontation and other aspects. When an informer appeals to the government, his identity is a whistleblower; after entering the state prosecution procedure, his identity is transformed into a cross-examination witness, and he must bear the burden of proof for the facts against him. In the period of the Wuzhou Dynasty, Empress Wu reformed the method of snitching to rule steadily and remove nobles. Among these, Luozhi Classics of Snitching compiled by cruel officials was the abnormal development of the informer’s book. According to the Old Book of Tang-the Criminal Law, this volume of Luozhi Classics of Snitching was designed to link up with people who committed crimes in the past and fabricated the crime of rebellion.24 The New and Old Books of Tang had a related account of Luozhi classics of snitching. The Old Book of Tang Biography of Lai Junchen stated that it was “all in advance and systematically classified into detailed items according to the content, and how to arrange the facts and reasons of the criminals”.25 The New Book of Tang said, “The article states the main vein, the 21

Old Book of Tang, Volume 57, p. 2293. Note: The seemingly ordinary snitching cases were directly related to the struggle between the power factions of Li Yuan and Li Shimin during the Wude period. Huang Yongnian quoted “Old Book of Tang, Biography of Liu Wenjing” to describe Gao Zu’s deportation of Xiao Bi, Pei Jingzazhi and Wenjing’s murder, believing that “criticizing Liu Wenjing is that Li Yuan, Pei Jing cut off Li Shimin’s wings.” Chinese political history from 6th to 9th Century, Shanghai Bookstore Publishing House, 2004, p. 126. 22 Ce Fu Yuan Gui, Volume 339, p. 3819. 23 Old Book of Tang, Volume 89, p. 2904. 24 Zi Zhi Tong Jian, Volume 207, p. 6567. 25 Old Book of Tang, Volume 50, p. 2144.

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outline origin, all have the beginning and the end, the disciple can take measures according to that”.26 Xu Yuanrui of the Yuan Dynasty thought that Luo Zhi was “irrational abuse beyond this crime”.27 Most Luozhi snitching cases were groundless accusations and malicious framing, which did not take the relevant responsibility as the premise. Therefore, the so-called Luozhi Classics was actually the experience summary and evidence record of the crimes by the cruel officials for seeking rewards and framing others. “Luozhi” was a special way of snitching. The informers reported, “Every time something is disclosed, it is always reported in several places within a thousand miles, and the same statement is found in several places. At that time, it was called “Luozhi”. On the left side of the informer’s paper wrote, “Please give it to Lai Junchen or Hou Sizhi for further inquiry, and you will certainly get the truth”.28 The Tang Dynasty recorded many cases of Luozhi snitching at that time. Chaoye Qianzai recorded that Qiao Zhizhi had a handmaid named Biyu. She was very beautiful. Qiao Zhizhi liked her very much. Unfortunately, she was forcibly adopted as a concubine by Wu Chengsi, King of Wei. Qiao Zhizhi wrote a poem named “green pearl complaint” and gave it to Biyu, who cried for three days without eating, and then she threw herself into a well to commit suicide. Wu Chengsi salvaged the corpse and found the poem on her skirt; he flew into a rage. Then he let someone fabricate a crime to snitch Qiao. Subsequently, he killed Qiao and confiscated all his property in the southern city.29 The cruel official’s trick of framing loyal and honest people was to snitch in different places at the same time, simultaneously filing exclusive jurisdiction claims, depriving the jurisdiction of the court, expanding the jurisdiction of the censorate controlled by the cruel officials at the same time. After Emperor Xiaohe’s reversion, the system began to rectify the bad situation of infamous snitching and unjust cases in the Wuzhou period. “Shenlong Punishment Formula” adhered to the doctrine of informer’s writings, requested that the informer write the indictment or be written by the judge, and regarded whether there was an informer’s writing as a prerequisite for telling whether the case could be established: (the preceding contents were omitted.) If the informer had something to report but he did not say even if he was penalized, then let him write secret matters and seal it by himself, the officer sealed it again. If he did not recognize the words, he asked the investigating officer to transcribe, seal and sign, and report by riding post horses. The informer should still be kept in custody waiting for the progress of the incident. If the informer refused to write the report and accept the investigation, he shall be sentenced to punishment according to the stick punishment previously decided.30

At the same time, the Shenlong Punishment Formula also abolished the popular Luozhi snitching: “If a person knows, he will send people to different places to snitch until the writing is obtained. Some people say they hear rumors, some say 26

Old Book of Tang, Volume 186, p. 4838. New Book of Tang, Volume 209, p. 5906. 28 A Guide to the School of Officials, p. 83. 29 New Book of Tang, Volume 209, p. 5905. 30 Chao Ye Qian Zai, Volume 2, p. 31. 27

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they suspect it, some say they are afraid of it, and then they snitch others. If the indictment they tell is false after investigation, the stick punishment and the absence of secrets are all convicted according to the informer’s judgment.”

3.2 Oral Report Snitching by saying directly was common in the practice of litigation. In June of the 7th year of the Wude period (624 A.D.), Prince Li Jiancheng conspired with his friend Yang Wengan to recruit men for him and plotted a coup. As a result, Er Zhuhuan and Qiao Gongshan, who were responsible for giving Yang Wengan armors, snitched to Emperor Li Yuan out of fear. Du Fengyu, a native member of Ningzhou, also went to the palace to report it.31 The case happened on the eve of the Xuanwumen mutiny, which was the concrete embodiment of the political game between the two major groups: Li Jiancheng and King of Qin. However, most of the cases did not specify the form of snitching; for example, in the seventeenth year of the Zhenguan period (643 A.D.), the assassin Hegan Chengji accused the Crown Prince of conspiracy.32 In the fourth year of the Yonghui period (653 A.D.), Fang Yizhi snitched his brother Fang Yiai and Gaoyang Princess conspiracy.33 In the first lunar month of the first year of the Shenlong period (705 A.D.) Wei Yuejiang wrote a letter to accuse Wu Sansi of conspiracy.34 The specific form of cases was nothing more than two ways: snitching by writing and saying. In judicial practice, there were still some cases in which outsiders colluded with others to snitch their masters by words. Liu Su’s New Analects of Tang Dynasty recorded that during the Emperor Wu Zetian Period, Cui Xuan was accused of rebellion, so Wu Zetian allowed Zhang Xingqi, the imperial historian, to examine the matter. The informer first used seductive means to hide Cui Xuan’s concubine but said that the concubine would expose Cui’s plot, so Cui Xuan killed her and threw the body into the Luo River. After Zhang’s investigation, no evidence was found. Wu Zetian was very angry and asked him to investigate again. Zhang forced the Cui Xuan family to look for his concubine. However, every time his family secretly discussed matters, what they talked were all leaked. Zhang Hangji and Cui Xuan’s brother Cui Sijing set a trap to determine that it was a guest with a surname Shu in Cui Xuan’s family who snitched: Cui Sijing then put much money and silk on the north and south sides of the bridge, offering a reward for the man who hid his concubine. After several days, no news was heard. However, every time his family secretly discussed matters, the informer knew. Cui Sijing predicted that there was an accomplice in the family, so he pretended to say to Cui Xuan’s wife, “We have to hire an assassin with 300 silks to kill the informer.” And when the sky was shining, 31 Authentic interpretation of Dunhuang socio-economic literature, Volume 2, p. 566. Dunhuang Legal Documents, Integration of rare legal books and records in China, Science Publishing House, 1994, Volume 2, p. 145. 32 Zi Zhi Tong Jian, Volume 191, p. 5986. 33 Zi Zhi Tong Jian, Volume 197, p. 6193. 34 Ce Fu Yuan Gui, Volume 934, p. 10824.

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Cui Sijing lurked at the door of the censorate. Cui Xuan’s family had a guest with Shu as the family name, born in Wuzhou, who usually had no shortcomings in words and deeds and had been working for the Cui Xuan family for a long time. Cui Xuan appointed him to do business as assured of his children. Soon he saw the man bribing the gatekeeper so that he could snitch the informant. The informer then said, “Cui family hired someone to stab me. Please let me report it to my superiors.” The censorate was in panic and confusion. Cui Sijing always attached great importance to this visitor and did not doubt him. Then he sneaked after him and went to Tianjin Bridge. He thought carefully that he would not go to the Imperial Palace anymore. Cui Sijing scolded him and said, “The rascal’s insidious tusk! If Cui family falls into reduced circumstances, I must give you an accomplice, see how you cleanse yourself! If you are lucky enough to find Cui’s concubine, I’ll send you five hundred pieces of silk, that’s enough for you to go back home to build 100 years of the asset. If you don’t do that, you will be killed.” The man regretted and apologized, so he took Cui Sijing to come to the informant’s home and found the concubine, then Cui Xuan was exonerated.35

4 Trial Procedure of Informers Case 4.1 Custody and Interrogation Arrest and interrogation are the precondition procedures for the thorough investigation of snitching cases. After the law department was ordered to arrest the suspect, the suspect was detained in the Royal Stage Prison for trial, and the practice of the first trial of snitching rebellious cases in the form of imperial jail was put into practice for a long time. Both Jin Zhong and Nei Ting refer to the court. Cai Yong said in Arbitrariness that “Jin Zhong is about the prohibition of entering families, while only the royal guard could be allowed to enter.36 ” New Book of Tang-Yi Wei Zhi, “regards it as Nei Zhang, which takes General Jin Wu as the superior, as well as a military officer in charge of the security of the royal palace is assistant.”37 We have mentioned already that detaining the suspect in Nei Zhang is to order the Inner-Chamber Guard to detain the suspect. In September, the first year of Guangzhai (684 A.D.), Wei Chao who came from Yong Zhou report to the official in charge of the discipline of public functionaries called Xue Zhongzhang that the official in Yangzhou named Chen Jingzhi schemed to rebel, then Zhongzhang “put Jingzhi into prison”.38 In the first year of the Changshou period (692 A.D.), jester Di Renjie “was framed and arrested into prison by Laijun”.39 In the middle and late Tang Dynasty, Jin Zhong and Nei Zhang were often regarded as important places for suspects of secret cases. In the third year of the Zhenyuan period (787 A.D.), Shen Ce General Wei Xiu and Yuan San reported to the emperor that Li Guanghong and Dong Chang intended to 35

Old Book of Tang, Volume 100, p. 3110. New Anecdotes of Tang Dynasty, Volume 4, p. 60. 37 “Arbitrariness”, The Commercial Press, 1939, p. 3. 38 New Book of Tang, Volume 23, p. 482. 39 Zi Zhi Tong Jian, Volume 203, p. 6423. 36

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rebel. “So, arrest the subordinates and let them interrogated by San Si, and they all died.”40 In the 9th year of the Yuanhe period (814 A.D.), the prefectural governor in Xinzhou named Li Wei was falsely framed to the military inspector Gao Zhongqian by the state general Wei Yue, saying that Li Wei gather warlocks to rebel. “Chasing Li Wei in Jing Shi and imprisoning him in Jin Zhong.”41 In the fourth year of the Changqing period (824 A.D.), the left Shen Ce military official Shi Zhizhong accused that Ma Wenzhong had intended to rebel, “Arrest him and his seven peers including Li Wende, then imprison them in Neizhang”.42 In addition to detaining suspects, informers must be controlled and detained in Jin Wu. According to the edict of June in the first year of the Baoying period (762 A.D.), “If there is an informer, please report to the superior right now, and then detain him in Jin Wu for further trial.”43 Until the fourth year of the Changqing period (824 A.D.), because there were no torture instruments in Gui Yuan and it’s difficult to subdue the violent persons. Jin Wu temporarily suspended the plaintiff and forwarded them to the court for questioning. Li Bo said, “Request the official who guards the gate Le Anfu to receive weapons in order to defend himself. Then dispatch the informers to the Censorate and Beijing Mansion. Hope to eradicate the hubbub of informers. It worked.”44 The Laws of Tang Dynasty has strict limitations on punishing prisoners. In some special conditions, punishment can be taken on prisoners. Moreover, the number of tortures of prisoners must not exceed three times, and the total number must not exceed 200, even though there is no exception on rebellion. In the Wuzhou period, cruel officials such as Lai Junchen and Suo Yuanli interrogated prisoners with harsh punishments: “Every time if there were new prisoners, they would show the torture instruments to them, and all prisoners trembled with fear and sweat. Then, they defended himself according to the official’s face and attitudes. If the decree for a pardon came, Junchen would command the jailer kill the most vicious prisoner and next announce the decree of pardon. The Empress Dowager regarded them as loyal; furthermore, she indulged and made a pet of them. People inside and outside the court were afraid of them just as being afraid of tigers and wolves”.45 In the first lunar month, the first year of the Shengong period (697 A.D.), Ji Xu reported that Liu Sili wanted to rebel, “Later, Wu Yizong was ordered to conduct miscellaneous interrogations on Liu Sili. Because of satirizing prisoners, the official Gao Fa and many of his relatives were all arrested in prison, as the number of relatives was nearly one hundred. What’s more, they were all put to death in the same day, which let all the state feel wrong for them.”46 The related records of the abovementioned abuse of suspects should be inspected against the specific historical 40

New Book of Tang, Volume 115, p. 4209. New Book of Tang, Volume 156, p. 4907. 42 Old Book of Tang, Volume 154, p. 4097. 43 Ce Fu Yuan Gui, Volume 934, pp. 10,824–10,825. 44 Ce Fu Yuan Gui, Volume 474, p. 5368. 45 Ce Fu Yuan Gui, Volume 474, p. 5368. 46 Zi Zhi Tong Jian, Volume 203, p. 6440. 41

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background of the prevalence of informers in the Wuzhou period. According to the basic principles of judging prison by circumstances and hearing the case through five sensations, extorting confessions by torture should be regarded as an exception to normal litigation activities.

4.2 Interrogation and Joint Hearing Generally, the central judicial organs, such as the Da Li Si, Ministry of Punishments, and the Censorate, should try to judge the major cases, such as secret snitching rebellion according to law, among which Da Li Si, as the highest judicial organ, plays a leading role in the trial of snitching cases. In January, the first year of the Shenlong period (705 A.D.), Wei Yuejiang reported to the emperor that Wu Sansi had intended to rebel, but Emperor Zhongzong was annoyed to chop Yuejiang. The official of Da Li Si Yin Sizhen reported to the emperor that the death penalty could not be taken in that month, so Yuejiang was exempted from the death penalty and banished to Lingnan. “Wu Sansi secretly let his officials murder Sizhen illegally, and Sizhen insisted that put San Si into death.”47 In the third year of the Shenlong period (707 A.D.), the Crown Prince Jie Min killed Wu Sansi but failed in the coup. After that, the soldiers guarding the broken gates were all exiled. Before they went, Queen Wei’s party feathers secretly reported that they should be put to death immediately. “Zheng Weizhong, Minister of Da Li Si, reported that ‘nowadays the operation system of imprisonment has been fixed and the public feeling is stable. If the system of principles is changed, the public will be frightened and the rebellious will not be stable.’ So, they kept the old judgment.”48 As a kind of game resource mastered by the emperor, snitching not only played the role of supervising all officials’ words and deeds to effectively strengthen his control of officials but also sometimes in the eyes of the emperor can be used as a means of exterminating dissent, which was regarded as a tool in political struggle.49 In judicial practice, The Censorate played an essential part in helping the emperor deal with political affairs, and it was the first choice in dealing with the cases of snitching. In November, the fifth year of the Tianbao period (746 A.D.), Li Linfu reported to the emperor that Du Youlin used the word of divination to attack the emperor, made a false charge against the prince and rebuked the emperor. Many officials were involved in this incident, such as Pei Dunfu and Wang Zeng. Linfu ordered the governor Cao Jiwen and the censor to interrogate Du Youlin: “In December, Youlin, Ji and Zeng were beaten to death by sticks, and the corpses were put in Da Li Si; their wives and children were exiled to remote areas. It made the whole country astonished.”50 In 47

New Book of Tang, Volume 117, p. 4257. New Book of Tang, Volume 100, p. 3110. 49 Tang Hui Yao, Volume 40, p. 847. 50 The Political Considerations of Chinese Traditional “snitching Culture”, Inner Mongolia social sciences, 2006, (5): 20. 48

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the fifteenth year of the Yuanhe period (820 A.D.), the guest of prince Meng Jian killed his reliable agent official Lu Han by a bag. Then, Han’s sons and brothers reported the injustices of Han to the court and stated Jian’s bribery behaviors. “The Censorate checked this case and found that Jian bribed Tutu Chencan by silk and money counted totally seven thousand, and the evidence was irrefutable.”51 Meng Jian was demoted as the ministry councillor in Jizhou. The judicial San Si in the Tang Dynasty was composed of officials from Da Li Si, Ministry of Punishments, and the Censorate and were provisional institutions to undertake the judgment of major cases. In judicial practice, “the judgment of San Si” is also an important organ to judge snitching cases, which is more solemn and normative than the judgement of the Censorate. In the fifteenth year of the Yuanhe period (820 A.D.), the military officers under one’s command named Wei Yue accused that the provincial governor of Xinzhou called Li Wei gathered necromancers to rebel, Gao Zhongqian urgently reported it to emperor, “Then the emperor ordered the Censorate to investigate this event, but there was no evidence to prove the rebellion of Li Wei. Wei Yue was killed for the false accusation, and Li Wei was demoted as the minister of war in Jianzhou.”52 On September 14th of the first year of the Baoli period (825 A.D.), Liu Zungu’s attendant An Zairong accused that the former head official in King Yuan’s house Wuzhao murdered Li Fengji. “In the morning, the emperor instructed the censor Wen Zao, official in the Ministry of Punishments Li Xingxiu, Zheng Yuan in Da Li Si, to serve as the San Si to investigate this case.” Until November, San Si reported the causes and results of this case and then drafted their advice that “According to the edict, we have interrogated Zhang Shaoteng and two other people who were accused by An Zairong of murdering Li Fengji secretly and found that it was true.” The edict said: “The former head official in King Yuan’s house Wuzhao and Mao Hui’s attendant Zhang Shaoteng had better be handed over to Jing Zhao Fu and be beaten to death by sticks. The former official of the Water Department Li Rengshu was appointed the minister of war in Daozhou after taking off the mourning dress. Li Zhongyan, the Secretary of Fortune in Heyang, was demoted in Xiang Zhou. The guard of Jin Wu named Cao Canjun and Mao Hui exiled Yazhou. The doctor of the Imperial College Li She exiled Kangzhou. The minister of Da Li Si Liu Zungu’s attendants An Zairong and recluse Liu Shen were praised and awarded.”53

51

Zi Zhi Tong Jian, Volume 215, pp. 6874–6875. Old Book of Tang, Volume 163, p. 4258. 53 New Book of Tang, Volume 163, p. 5009. Note: The Epitaph of Li Gong in Yongshi Prefectural Governor said that “Li Wei was appointed to Yuezhou and Xinzhou, then got the mlecchita-vikalpa from Liu Xiang and found sorcerers to practice witchcraft. Then he reported the behaviors of his personal enemies. But he failed and be punished because he is an informer, and he even was demoted as the minister of war in Jianzhou.” [The Set of Liu Zongyuan, Volume 10, pp. 246–247.] Here the informer was the ministry general Wei Yue. This case could be the evidence of punishing the informers who made false accusations. 52

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5 Characteristics of Whistle Blowing Rules Snitching, as one of the ways of accusation in the Tang Dynasty, directly served the realistic needs of monarchical centralization and political struggle. In terms of the forms of legislation, the rule of snitching involved many legal sources, such as law, case, code, and edict, stressing different aspects in different historical periods. In terms of reporting principles, snitching cases showed many special patterns that were different from what the Laws of Tang Dynasty had regulated. In terms of reporting forms, reporting, detaining, interrogations and so on showed the feature of imperial interference. In contrast to the general accusation, if the snitching case had been verified by the local law department and involved a great secret of rebellion, it should be reported to the emperor. Then, the nature of this case was transformed to imperial edict prison. For the purpose of effectively monitoring society, many principles stipulated in the Laws of Tang Dynasty, such as overstepping prosecution and accusing the master of slaves and prisoners, have been changed in the field of snitching.54

5.1 Allowing Direct Reports to the Emperor In March of the second year of the Chuigong period (686 A.D. Empress Wu asked to cast copper into four suggestions and complaint boxes in four different orientations, which were named Ting’en, Zhao Jian, Shen Yuan, and Tong Xuan. Those who wanted to offer praise articles and require officials could write reports and throw them into the box Ting’en, while Zhao Jian was for who had suggestions of government affairs, Shen Yuan was for who had grievances, and Tong Xuan for who had advice to natural disasters and the affairs of Military Department. “Then officials were charge of admonishing, filling, and picking up these reports. To throw reports into boxes reasonably, people should find an official who knew himself as a security guard.”55 The Comments on Laws of Tang Dynasty regulated that “Those who appeal directly, bypassing the immediate jurisdiction, should bear forty whips.”56 If some cases were still unjustified, people could appeal directly bypassing the immediate jurisdiction throughout counties, prefectures, Shang Shu ministers, San Si and Shang Biao. Throwing reports into cooper boxes is not only the direct product of snitching pleadings without the control of legal proceedings but also an important development of the form of direct prosecution in the Tang Dynasty. Along with the destruction of the Wu Zhou regime in the early year of the Shenlong period, the system of snitching through copper boxes was extended for a long time, and it was perfected in the middle and late Tang Dynasty. 54

Ce Fu Yuan Gui, Volume 153, p. 1713. Zi Zhi Tong Jian, Volume 203, p. 6438. 56 Comments on Laws of Tang Dynasty, Volume 24, p. 447. 55

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In the middle of the Yuanhe period, Tutu Chengcui offered bribes and was entrusted to supervise the Huainan army. “Crown Prince Jianren’s public servant Li She threw a petition to state the grievances of Chengcui. Even though Kong Kui knew that and read the copy of his petition, he didn’t accept it, indicating that he was guilty.”57 Kong Kui, who was responsible for checking the reports in the copper boxes, reviewed the copy of Li She’s petition and judged it as unjustified. At the same time as rejecting Li She’s petition, Kong Kui relegated him as Can Jun in Xiazhou. In the fourth year of the Changqing period (824 A.D. Li Bo, Dafu, in charge of admonition and arbitration, suggested to the emperor that “The most serious issues could be reported directly to the emperor, while issues with lower severity should be reported to Zhongshu and Menxia departments, then to other departments. If the departments could not solve these issues properly, they could be thrown into the copper boxes, and then the issues could be reported to the emperor in detail. Furthermore, if the appeal was unreasonable, new crime would be added.”58

5.2 Accepting Servant-Against-Master Cases Because the behavior of snitching involves people’s privacy and criticism and attacks on others were far from the gentleman’s style formed under traditional Confucian thoughts of benevolence, most of the high-hearted scholars disdained such behavior. Such behavior mainly happened to small tradesmen, porters and servants. In the third year of the Zhenguan period (629 A.D.), Madman Xinxing always said that Pei Ji had talents. Later on, Pei Ji’s servant Gongming snitched on him. Emperor Taizong affirmed the crime that “the madman said that Pei Ji was talented but he didn’t report this to the government”59 and three other capital crimes. As a result, Pei Ji exiled Jiaozhou but actually Jingzhou. In February of the eighth year of the Yuanhe period (813 A.D.), the prime minister’s son, Tai Chang minister, Yu Min, dismembered the servant of Liang Zhengyan and threw it in the toilet. “The child servant of Yu Min reported it to the government and Yu Min was arrested, meanwhile the official Shen Bi and his servants were escorted to the imperial court.”60 Such historical facts can demonstrate the practice of accepting slaves’ accusations to their masters. Slaves’ accusations to their masters were expressly prohibited in the law. However, if the accusations reported to the authorities were proven to be true, the slaves did not need to take responsibility. In essence, it broke through the prohibition of slaves’ accusations of their masters in the Laws of Tang Dynasty. In the field of snitching, slaves’ accusations of their masters’ crimes were practiced for a long time.

57

New Book of Tang, Volume 207, p. 5870. Old Book of Tang, Volume 171, p. 4441. 59 Old Book of Tang, Volume 57, p. 2289. 60 New Book of Tang, Volume 172, p. 5200. 58

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5.3 Snitching Allowed in Violation of Regulations The prohibition of prisoners’ lawsuits was the practice of successive dynasties. During the Wuzhou period, the law was chaotic, and the prisoners were allowed to report to the emperor directly and were even exonerated and released. In the first year of the Guangzhai period (684 A.D.), Pei Youxian, who exiled Lingnan, “wanted to report to the emperor directly”.61 In September of the first year of the Yongchang period (689 A.D.), Zhou Xing falsely accused that Wei Xuantong’s words involved rebellion. Then, Censorate Fang Ji asked Xuantong, “Why not directly report the truth to the emperor. So, Wei Xuantong reported it to emperor directly.”62 In the first year of the Changshou period (692 A.D.), when the son of Le Sihui, who was the assistant minister of Feng Ge, was eight or nine years old, his whole family was punished and served in the field of agriculture. He also “snitched and was received by the emperor”63 and stated the harsh and vicious behaviors of Lai Junchen. Pei Youxian was exiled, Wei Xuantong would be executed, and Sihui’s son was too young, so according to the law, all of them had no rights to report. However, during the period of Wu Zhou, the emperor, to control his ministers, controlled the judiciary. Therefore, there were no prohibitions on guilty prisoners and small children’s reports. Although this was a special case in a special period when the emperor changed the laws, it had a negative impact on judicial practice in the Tang Dynasty.

6 Summary Snitching was a telling behavior of secretly accusing others’ privacy to the judiciary. In a broad sense, it still belonged to the category of accusation. The snitching rules of the Tang Dynasty, on the basis of the rules of previous dynasties, had various legal forms, and a series of litigation practices had been formed in the links of lawsuits, accepting, arresting and interrogation, which showed unique characteristics of the times in different historical stages. In the aspect of the jurisdiction of cases, the rule of snitching in the Tang Dynasty had once been abolished in the Wuzhou period, giving informants the right to directly appeal to the emperor. All snitching cases were not subject to the limitation of the trial level. The practice of direct prosecution of secret matters was formed in the field of snitching, and the informant was exempted from the liability of exceeding the prosecution. During the Wuzhou period, the local governments’ jurisdiction over snitching was lost because the practice of direct snitching was initiated. Through the stipulations in The Department of Scattered Punishment at the beginning of the Shenlong period to the basic establishment in The Prison Officers Order and Tang Liu Dian in the Kaiyuan period, the informant rule completed the fundamental transformation 61

New Book of Tang, Volume 117, p. 4249. New Book of Tang, Volume 117, p. 4254. 63 Old Book of Tang, Volume 186, p. 4839. 62

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from convention to law in the Tang Dynasty. On the level of snitching methods, written snitching followed the general practice of accusation, and the contents and format of the snitching form should be similar to ordinary litigation. After being arrested, the suspects would be detained in the prison of the Censorate for trial. Cases of snitching of rebellion were initially tried in the form of imperial edict prison in the long term. Snitching, as one of the ways of accusation in the Tang Dynasty, directly served the realistic needs of monarchical centralization and political struggle. To effectively monitor society, there are changes in the field of snitching on many principles, which were stipulated in the Laws of Tang Dynasty, such as overstepping prosecution, prosecution of the master by slaves, and prosecution by prisoners. In the practice of litigation, the convention of allowing the informant to appeal, bypassing the immediate jurisdiction, was formed. Law departments’ acceptance of slaves’ accusations of their masters was long practiced. Once, in violation of prohibitions of accusation, special cases of prisoners and small children acting as informants occurred, exerting a negative impact on the judicial practice of the Tang Dynasty.

Chapter 10

Appeal

On the basis of inheriting and developing the former system, the appeal rule of the Tang Dynasty played an important role in realizing the appeal of the subject and preventing the abuse of the criminal penalty. In the second year of the Yifeng period (677 A.D.), the appeal system was initially established in The System of Seeking Justice. In the twentieth year of the Kaiyuan period, the rules of appeal and direct appealing were clearly established in the Tang Liu Dian. The case of bypassinggrade appealing and its legal liability were clearly stipulated in the Comments on Laws of Tang Dynasty to prevent the complaint from appealing, bypassing the immediate jurisdiction.1 The abovementioned issues concerning direct appealing and bypassing-grade appealing have been discussed in the relevant literature. Therefore, only the three issues of the appealing system are discussed here, namely, stepby-step appealing, redressing an injustice before execution and relatives serving as proctors. Academic circles have conducted in-depth research on the appealing system of the Tang Dynasty and obtained some important results.2 However, there has been no special attention to the differences among appealing, bypassing-grade appealing relationship, redressing an injustice before execution and relative serving as a proctor, and the differences between the appeal system and the juridical practice. Therefore, it is necessary to reconsider the appeal rules of the Tang Dynasty on the basis of identifying relevant concepts and comprehensively possessing historical material.

1

The Study of the Litigation System of the Tang Dynasty, Commercial Press, 2012, pp. 135–140, 153–168. 2 The system of Appealing, Review and Recheck System in Ancient China, Law Review, 1983, (3); The System of Direct Appealing in Ancient China, Knowledge of Literature and History, 1992, (12); A Study of the Gui Han System of Ancient Chinese, Law Research, 1998, (1); A Review of the Judicial System of Tang Dynasty, Journal of Historiography, 1998, (1). The Direct Appeal System of Tang Dynasty, Journal of Law, 1993, (5). © Science Press 2021 X. Chen, A Study of Criminal Proceeding Conventions in Tang Dynasty, https://doi.org/10.1007/978-981-16-3041-5_10

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1 Step-by-Step Appeal The appeal system has a long history. It was called “Qiju” in Qin and Han dynasties. During the Qin Dynasty, the stipulations were as follows: whoever the appellant was, it must be put forward after the judgment. Bamboo Slips of Qin Dynasty’s Tombs of Shuihudi -Question and Answers of Laws: “Appeal or others as proctor must be put forward after the judgment.”3 It was stipulated that the appeal should be put forward within three months after the judgment in the Law of Han Dynasty.4 Wei and Jin Dynasties followed the appeal system and adjusted it to prevent abuse of litigation and delay of judgment. New Law of Cao Wei: “Appeal was forbidden if imprisonment was beyond two years in order to reduce the burdens.”5 Sima Zhen’s Shi Ji Suo Yin quoted Jin Ling: “When the judgement was completed, the criminal will be questioned again and if he asserted that he was sinless and wanted to review again, then it will.”6 It was stipulated in The Law of Northern Wei that under two conditions, criminals or their relatives could appeal.”7 One was the case that had the legal effect, the other was when the judgement was pronounced. In the Sui and Tang Dynasties, although the term “Qiju” was not used, it was allowed to appeal against the judgment of imprisonment. The range and subject of the appeal and the legal liability to hinder appeal were all clarified in the Tang Dynasty. If the criminal and his relatives were dissatisfied with the judgments of imprisonment, they could appeal for themselves, and relevant officials should review the case: When all the cases were completed, the criminal whose case was above imprisonment and his relatives were called to state his accusation. During this time, they could appeal. If criminals were dissatisfied with their cases, they could appeal for themselves according to the hearing procedure and then the cases would be heard in detail again. If they violated the rules, they would be punished by beating fifty whips. If it was the death penalty, they would be punished by beating one hundred bludgeons.8

“If criminals appeal, the case must be reviewed again.”9 Compared with the previous dynasties, the appeal system of the Tang Dynasty has the following characteristics. First, the Tang dynasty applied an unconditional appeal system, which had the same legal effect. For the deadline of appealing, there was no explicit stipulation in the Laws of Tang Dynasty. Second, unlike the modern two-instance system of criminal cases, there is no strict limit on the time of appeal in the Tang Dynasty. As long as the parties were still dissatisfied, they had the right to go through all the appealing procedures until they appealed to the emperor. Third, after the judgment and review procedure were finished, cases went on to the execution phase. If 3

Bamboo Slips of Qin Dynasty’s Tombs of Shuihudi, p. 120. Exegesis of Zhouli, Volume 35, p. 1102. 5 Book of Jin, Volume 30, p. 926. 6 Historical Records, Zhonghua Book Company, 1959, Volume 965, p. 2664. 7 Book of Wei, Volume 111, p. 2884. 8 Comments on Laws of Tang Dynasty, Volume 30, p. 568. 9 Wen Yuan Ying Hua, Volume 464, p. 2370. 4

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parties or their relatives appealed at that time, their appeal complication did not have the effect of delaying or stopping the execution unless the emperor ordered or the relevant official terminated the judgement. Dissatisfaction with the original judgment was a necessary prerequisite for criminals or their relatives to appeal. This was the fundamental difference between appeal and report. In terms of the connotation, “Shensu” and “Shangsu” had the same connotation. (hereinafter, when claimants are mentioned, they all have the same connotation as “appeal”). The Eastern Han Dynasty Wangfu’s Ai Ri Pian, “Aggrieved people pinned their hope on appeal.”10 In the first lunar month of the second year of the Jingming period (503 A.D.), it was also recorded that there were many criminals who were in no position to appeal.11 Until the first year of Emperor Wen’s Kaihuang period (581 A.D.) of the Sui Dynasty, the trial way of step-by-step appeal was initially formed: “People who were ignored by the county when they suffered injustice and appealed to the county could appeal step by step until to the emperor.”12 Among all the appeal rules that were formed and maintained in different historical periods, the judicial system of the Tang dynasty had a huge and direct influence on today’s society. In judicial practice, if the complainants had grievances, they could apply a bottomup approach and appeal step by step, thus forming a vertical grading appeal system based on the appeal of parties. If parties wanted to appeal, they must go through the procedures, which included the county, the state, the left and right ministers of the Shangshu Department, San Si, and Shang Biao and beating the Dengwen drum (or standing on a red stone). If the appeal was accepted at one of the abovementioned steps, the appeal procedure was terminated. If claims were not fulfilled, appellants would appeal to the emperor. There were also appellants appealing directly many times for the same case, which was called “special appeal”.13 According to Tang Liu Dian, “Anyone who wanted to appeal for their injustices should appeal to the official in their household registration.”14 The first instance of the case was under the jurisdiction of the county where the case happened. If the relatives of the party did not agree with the original judgment, they could appeal to the state department. As a local appeal agency, the state government had dual functions, namely, appeal and communication, and its judgment might become the direct foundation on which the party could appeal to the central official. In the practice of litigation, it was a universal phenomenon that appeals were protracted and piled up in state and county courts. In the second year of the Yifeng period (677 A.D.), on November 13th, The System of Seeking Justice, “In other counties and states, when there were lawsuits that were unjust and unsettled, the relevant official would order to settle them reasonably and immediately. Then, no cases would be left 10

Book of Houhan, Volume 49, p. 1640. Book of Liang, Zhonghua Book Company, 1973, Volume 2, p. 39. 12 Ce Fu Yuan Gui, Volume 3, p. 7061. 13 The Government of Tang’s Supervision and Control of Local Judicial Activities, Study and Exploration, 2010, (1): 97. 14 Tang Liu Dian, Volume 6, p. 192. 11

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unsettled, and all the parties would be treated justly. If there were cases that were still unsettled, after being investigated, the relevant official could be punished by the investigator.”15 Dashewen of Seventh Years of Xiantong Period (866 A.D.), “ If the officials were corruptible or parties appealed and things mentioned above were proved to be true, the emperor would order other judges to settle the cases and the original judges would be punished severely.”16 There were many examples of state governments accepting the appeal of counties and then redressing the injustice in historical records: Gao Yanxiu’s History of Tang Dynasty recorded that in middle Xiantong period, a civilian from a state or county called Wang Min was wrongly convicted in the first trial, and then he appealed to Yin Cuiwei of Henan province that Yangqianfu, a diviner, plundered his property: (omitted)…Kejiu could not bear the unjust treatment and then he appealed to the government office. When the judicial department investigated and prosecuted this case, Yang bribed the officials. Then, he collected evidence from Kejiu’s wife and framed his wife that her evidence was not true. At that time, the chief executive could not distinguish the evildoer and imposed Kejiu a crime of false accusation. Kejiu was punished by flogging his back and expelled shackles on his hands and feet. Wang Kejiu was almost smothered by the suffering of unjust treatment and psychic trauma. The chief executive of Luo city changed. Kejiu appealed to the new chief executive, but the new chief executive could also not distinguish the evildoer and said, “handle this case according to the old law of Han.” Kejiu was punished again and expelled to a desolate place by the original chief executive. Kejiu’s eye orbits were bleeding, and his eyes were pale and hopeless. At that time, the military officer called Bolinggong, who was living at Yishui after retiring, heard the case. Bolinggong governed Sanchuan (Yishui, Luoshui and Yellow Rivers) again. All unjust cases were disclosed, and the officials were all afraid. Bolinggong riding on a horse experienced and observed the prevailing custom for three days. Bolinggong sent someone to the place where Kejiu was on active service to release Kejiu. At the same time, he sent officials to arrest Qianfu, his family and the original officials with their necks tied. Then he ordered Kejiu to search their houses. In their houses, there were many things that had previously belonged to Kejiu. All their illegal activities were known to all. First, they were punished by beating their ribs, and then they were beaten until their backs were bleeding. After that, they were thrown into the same hole with their hair plucked and feet broken. Bolinggong confiscated their property and returned it to Kejiu. It was the day when the case was settled that the sun came out. People all rushed to the streets to celebrate. Even some people cried with joy. It was this day that the unjust case was settled fairly, and throughout history, there was no case that could be compared with it.17

It was recorded in Liu Chongyuan’s Jin Hua Zi that Cai got drunk and killed a county citizen Zhangshi. After that, Zhang’s father appealed to the state government, and the state government accepted and heard the case. Wang Shifan was filial and friendly. He also enforced the law justly. His uncle Cai got drunk and killed a county citizen Zhangshi who was a beauty. Zhangshi’s father appealed to the state government. Because Cai was his uncle, Shifan could not treat him as an ordinary civilian. So, he asked his father many times and hoped that this case could be compromised by money. His father said firmly: “When closest relatives were treated unjustly, your impartial judgement was very important to them. If litigation was true, it must be heard according 15

Imperial Edict Collection of Tang, Volume 82, p. 490. See Footnote 15. 17 History of the Tang Dynasty, Shanghai Ancient Books Publishing House, 2000, pp. 1349–1350. 16

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to the law. How can you break the law?” Finally, Cai was punished according to the law. Shifan’s mother was angry, but she dared not reprove him. Until now, the book called Wang Gong Pan Shi was still on sale in Qingzhou.18

Because of Wang Shifan’s impartial judgment, the appellant’s case could be settled justly, and the relevant judicial proceedings were all terminated. If the appellant still disagreed with the judgment, he could appeal to the central legal department. The left and right prime ministers of the Shangshu Department were the legal institutions that accepted and heard cases from local states and counties. Appeals were generally handled by the left and right prime ministers. If there were important cases, those cases should be reported to the officials called Puye, namely, the left and right prime ministers would not arrest a criminal who needed not to be on service, and the Puye would not judge a criminal unless he needed to be exiled.19 According to the imperial edict in the third year of the Zhenguan period (629 A.D.), “Trivial cases would leave to the left and right prime ministers to settle and the wronged cases would leave to Puye to settle”.20 It was recorded in the Old Book of TangBiography of Dai Zhide that in the middle time of the Shangyuan period, Zhide was the right Puye and Liu Rengui was the left Puye. “When there were appellants, never considering whether he could settle the cases or not, Rengui always promised to settle the cases. However, Zhide searched for evidence silently and then secretly reported the evidence to the emperor. Zhide was indifferent to fame and wealth. After the cases were settled, Rengui took all the credits.”21 If the parties did not agree with the judgement, they could appeal to San Si. It is worth noting that the mode of step-bystep appeal designed in Tang Liu Dian was onerous and cost considerable money and wasted time, so a new judicial custom was formed gradually, namely, the appellant could appeal to the Yu Shi Tai. So many cases from states or counties were handed over to Yu Shi Tai and were heard according to the order of the emperor. Therefore, compared with the appeals accepted by Yu Shi Tai, relatively fewer litigation cases were directly handled by the Shangshu Department, which directly led to the decline of the position of the Shangshu Department in cases on appeal. The institutions that accepted and heard cases in the central officials of the Tang Dynasty were relatively scattered. In addition to Yu Shi Tai, it is worth noting that the prime minister directly accepting and hearing cases was also the appeal practice. In the 22nd year of the Zhenguan period (648 A.D.), Cui Renshi served as the prime minister, “There was a courtier who wanted to appeal to the emperor, but Renshi did not report it to the emperor. Emperor Taizong thought that he was cheated by Renshi, so he banished Renshi to Gongzhou.”.22 According to the stipulations of the trial grade system of the Tang Dynasty, when there were courtiers who wanted to appeal to the emperor, the prime minister should report to the emperor, i.e., the prime minister should hand in the petition. If the petition and procedure were legal, the case 18

Jin Hua Zi, Shanghai Ancient Books Publishing House, 2000, p. 1746. Zi Zhi Tong Jian, Volume 204, p. 6476. 20 Tang Hui Yao, Volume 57, p. 1164. 21 Old Book of Tang, Volume 70, p. 2535. 22 Old Book of Tang, Volume 74, p. 2622. 19

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should then be reported to the emperor. However, there was no explicit stipulation that the prime minister had the right to handle the petition reported to the emperor. Renshi did not report the petition to the emperor and was condemned because of cheating. If the prime minister accepted and heard cases, it did not mean that he had gone beyond his duty. At the beginning of the Shenlong period, the administrator of the Financial Institution called Suhuan was appointed Shizhong and stayed at the capital to help the emperor handle unjust or wronged cases.23 In the middle of the Xiantong period, the former Hanlin Academicians Liu Yunzhang said in Zhi Jian Shu, “If civilians were treated unjustly, they could appeal to the state or county, and if the state or county ignored their appeals, they could appeal to the prime minister, even if the prime minister ignored, they still could appeal to the emperor. If the emperor also ignored, what could they do?”24 Those words meant that cases that could not be settled in states or counties should be transferred to the prime minister. It was stipulated in Tang Liu Dian that the cases should first be handled by the right and left Puye of Shangshu Department. It was recorded in Jin Shi Hui Yuan that from the beginning of the Wude period to the 4th year of the Chang’an period, Puye was not the real prime minister.25 In the 17th year of the Zhenguan period (643 A.D.), the official called “Zhongshu Menxia Sanpin” appeared. The appearance of this official indicated that the chief officers of Zhongshu and Menxia Departments had already become the center of the prime ministers. It also indicated that the situation once appeared in the Sui Dynasty that taking Shangshu Puye as the core no longer existed. Since then, the position of Shangshu Puye was on the decline and no longer equaled the prime minister. In February of the 3rd year of the Longsu period (663 A.D.), “The emperor ordered to abolish the official called Shangshuling.” The status of Shizhong and Zhongshuling as the prime ministers was formally affirmed by law. The status of the Shangshu Department as the prime minister ended formally.26 Since then, the prime minister who accepted and heard unjust cases should be chosen from Zhongshu and Menxia Departments. At the same time, Shangshu Department was not the only way to report the appeal. There were three steps above Shangshu Department called San Si, Shangbiao and direct appeal. Until the Dazhong period of Emperor Xuanzong, there were still examples of prime minister accepting and hearing cases. It was recorded in Tang Zhi Yan that Lihui governed Jianzhou, and he suspended an official from his duties and punished him by beating with bludgeons. After that, the official fled and then appealed to the emperor. There was bad blood between Li Hui and the prime minister Wei Mo. Therefore, when Wei Mo heard that there was an appellant from Jianzhou, he held the duster upside down and knocked at the door of his sedan chair to stop 23

The Tombstone of Gu Si Kong Wen Zhen Gong Su Fu Jun of Tang, The Addition and Correction of Jin Shi Cui Bian, Edited by the parallel session of China Association of Oriental Culture Studies. Books of Stele Script in all Ages, Nanjing: Jiangsu Ancient Books Publishing House, 1998, p. 314. 24 Wen Yuan Ying Hua, Volume 676, p. 3482. 25 Jin Shi Hui Yuan, Zhonghua Book Company, 1991, Volume 1, p. 8. 26 Shangshu Department of Early Sui and Tang Dynasties, Shanghai Lexicographic Publishing House, 2003, pp. 79, 80.

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it. He read about twenty petitions against Li Hui, the first of which was that Li Hui married a woman who had the same family name Li. Therefore, prime minister Wei tried his best to make the case severe. At that time, Li Hui was going to Zhengzhou to hold the post of prefectural governor and was interrogated by the censor. Then, he returned to Jianzhou and was demoted as Sima of Fuzhou, where he spent the rest of his life.27 The judicial procedure of the case mentioned above was unknown because of the limitation of historical records. According to the stipulations of the laws of the Tang Dynasty, Wei Mo should hand in the petition to Shang Shu Sheng or report to the emperor.

2 Appeal Before Execution In the Tang Dynasty, there was a system in which the condemned prisoner could appeal before execution. In terms of its essence, it should also be included in the appeal system. In November of the first year of the Changqing period (821 A.D.), The Censorate believed that the condemned prisoner intended to buy time through appealing before execution. If the case was settled through the third-instance trial according to law and the criminal also agreed with the judgment, it would never accept and hear again. It would be regarded as defying the law if the criminal still appealed and the official would treat it as bending the law. If the official bent the law, the case would be heard again (Fig. 1): In November of the first year of the Changqing period, The Censorate reported “people who committed ten abominations, murder, fight or corruption and who committed to making counterfeit money, robbery and steal and the government inferred they were villains. When the judgment was made, they all pleaded guilty, but they appealed before execution. Every time they appealed, cases were heard again. If it was verified that the previous judgment was just, then the appellant could be committed to obstructing the enforcement of law. If the appellant was not punished, it would cause serious consequences. If similar things happened in the future, officials called Tai and officials from the county and other states except the capital would all accept the case in turn. They all had the trial transcript. After three judgments, the case was settled, and after that, no appeal was accepted. However, if litigation was allowed by the emperor, the case would be judged again according to the emperor’s order. If the litigation finally proved spurious, the criminal would be punished doubly unless he was sentenced to death. If the criminal bribed the chief officials, then he would be punished doubly guilty. If the litigation proved true, relevant officials would be punished and demoted doubly, and the officials who finally settled the case would be demoted to a lower position as a military officer.28

In February of the eighth year of the Dahe period (834 A.D.), the official Zhongshu Menxia reported that if criminals appealed before execution and cases were accepted and heard again, complaints should be put in prison, and then cases should be reported to the emperor. Other irrelevant criminals should be executed by law without delay. 27 28

Tang Zhi Yan, Volume 2, Commercial Press, 1936, p. 17. Tang Hui Yao, Volume 60, pp. 1228–1229.

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Fig. 1 Judgment of the underworld officials. Source: The Complete Works of Dunhuang Frescoes of China-Dunhuang of the Early Tang Dynasty, Tianjin People’s Fine Arts Publishing House, 2006, p. 89 When cases are settled, criminals should obey judgments and willingly obtain sentences. Sometimes because there was one criminal who appealed, almost ten cases were stopped. Criminals were jailed for a long time and colluded with treacherous officials consequently. From now on, if one or two appealed after all criminals of the same case admitted their guilt, other irrelevant criminals should be executed by law. Then, the complaints should be put in prison, and the cases should be reported to the emperor.29

Although the Tang Dynasty had the approach through which condemned prisoners could appeal before execution, there were still many persons who were falsely convicted or even put to death. If those cases could not be exonerated and redressed through the procedure called review and supervision, all the cases would be submerged and forgotten. There would be no way for those cases to be accepted and heard by officials. Influenced by the belief of ghosts and spirits and the notion that the dead could also appeal, in the medieval times of China, especially in the Tang dynasty, legendary stories with the theme of dead criminals appealed to underworld officials prevailing. In the medieval times of China, people believed in those legendary stories. Those were their last hope to rebel against the injustice treatment.30 So it would console the family of the victim in a murder case, and at the same time frighten the officials psychologically. It was recorded in the Huan Yuan Ji that Beiqi Yangdi Prefecture Zhang Shan calumniated that the censor Wei Huijun plundered money from plebs. After being reviewed by Shangshu, left primer minister Lu Feixi, the case was settled, and Huijun was convicted and then decapitated. Before execution, Huijun entrusted the official called Ling Shi to prepare paper and pens to appeal to underworld officials: 29

Ce Fu Yuan Gui, Volume 613, p. 7077. Revenge-Paricidas-Retribution: The Interpretation of Chinese’s Legal Culture, Jilin People’s Publishing House, 2005, p. 210.

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Huijun left his last words to Ling Shi: Ling shi knew anything of my character and knew my condition. What could I do? So please prepare a piece of paper, two pens and a cake of Chinese ink for me after I was executed. If I could, I would revenge against Feixi after I was dead. Ling Shi lamented Huijun’s death and held a funeral and buried Huijun. After fifteen days, Zhang Shan fell ill and was frightened to kowtow to Huijun. Then Zhang Shan was dead within ten days. After approximately two months, Feixi was sent on a diplomatic mission to Wei. He offended the emperor of Wei and was put into prison. Wei reported to the emperor of Qi, and the emperor of Qi killed him with poison.31

People in the Tang dynasty had high expectations for underworld officials’ impartiality. If they were wronged when they were alive, they chose to appeal to underworld officials. There were many records of complaints who swored to appeal to God and the netherworld after death in novels. Complaints often asked their families to prepare more paper and pens before the sentence so that they could appeal after death. In the concept of people in the Tang dynasty, the government of the world of the living and the underworld were both responsible for the trial of wronged cases. In a certain sense, the underworld government even became the superior appeal authority of the world of living.32 There were many examples of prisoners under sentence of death claiming that they would appeal to the underworld government in novel legends of the Tang Dynasty. The contents of those stories were similar, and most of them recorded that parties were accused falsely or treated unjustly. They all appeared before execution and revenged successfully. The following were three examples that could be verified historically. The first one was recorded in Niu Su’s Ji Wen: being framed by Li Linfu and Wang Gong, Yang Shenjin was sentenced to death unjustly and then he appealed to the underworld government: Wang Lun, who was a supervising censor of the Tang Dynasty, entered the underworld. He talked to the underworld official, and the underworld official liked him very much. When the underworld official went out, he stayed in the room and tried to open his document file. When he opened it, he found that it was Yang Shenjin’s document file in which Yang Shenjin appealed to the emperor. It was recorded in the document file that Wang Gong’s family was sentenced to death. After seeing that Wang Lun dared not to read further. He put the document file back and waited for the underworld official. There were curtains on the vestibule in front of the palace. When the underworld official returned, he sat under the curtain of the room where Wang Lun stood. At the same time, Jinshen and his brothers came in. When they saw Wang Lun, they all complained loudly about their grievances. Wang said, “Wang and his family had been sentenced to death, and they would arrive soon.” Soon, Wang Gong and his family came with their hands and feet locked and their seven head orifices bleeding. Wang ordered to take them to the interrogation room and then came out of the room with Shenjin. Shenjin held Wang Lun back, and then Wang Lun immediately came to life. After a month, Wang Gong was sentenced to death.33

The Old Book of Tang Biography of Yang Shenjin recorded the primary accusation of Wang Gong and Li Linfu: “Wang Gong and Li Linfu colluded to convict Yang Shenjin. They said that Shenjin was the descendant of the Sui Dynasty and planned to rebuild the Sui Dynasty.” Therefore, Yang Shenjin colluded with villains, and their 31

Tai Ping Guang Ji, Volume 119, pp. 838–839. The Study of Litigation System of Tang Dynasty, The Commercial Press, 2012, p. 27. 33 Tai Ping Guang Ji, Volume 121, p. 855. 32

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words resulted in the criminal penalty of Yang Shenjin. “It was recorded in the Old Book of Tang-Second Records of Emperor Xuanzong that on November 25th in the sixth year of the Tianbao period (747 A.D.), being framed by Li Linfu and Wang Gong, Yang Shenjin, the assistant minister of the financial institution, and his older brother Shenyu, the Shaofu Shaojian, and his younger brother Shenming, the chief official of Luoyang, all were sentenced to death”.34 The death time of Wang Gong was different from the records in Ji Wen. New Book of Tang Records of Emperor Xuanzong, on April 9th of the 11th year of the Tianbao period (752 A.D.), “The official of the financial institution called Wang Han and Xing Zeng who came from the capital plotted a rebellion and then were sentenced to death. On April 10th, Wang Gong, who was the grandee secretary, was killed.”35 Clearly, it was five years later after Yang Shenjin’s death when Wang Gong was killed.36 What was recorded in Ji Wen just aimed to prove that the story about the judgment of the underworld was true. Second, it was also recorded in Luzao’s Yi Shi that the official called Le Sheng was ordered to summon the leader of the robbers. His entourage framed that he colluded with the brigands of Shanxi Province, and then he was sentenced to death by Pei Langzhong. After that, Zhongcheng Du Shifang sent officials to review the case. They still did not redress the case. Before execution, Le Sheng asked his wife to prepare a piece of paper and some pens so that he could appeal to the deity after death. Next year, Pei Langzhong and Du Shifang both died. People all believed that it was God who killed them: The emperor’s special envoy said that his subordinate was bribed by brigands and demanded to be sentenced to death. Because Shifang lived far away from Binzhou, he had nothing to do but obeyed the law. But he knew that Le Sheng was sinless. Le Sheng also appealed with a petition written in detail. So, he sent someone to call Le Sheng back with the petition. He met the special envoy and said, “If Le Sheng wanted to escape, please do not stop him and tell him that I also hoped he could.” The envoy went to the prison and passed the message to Le Sheng. After hearing that, Le Sheng said, “I was sinless, I would rather die. If I escaped, it would mean that I admitted my guilt. “When Le Sheng returned to Guizhou, Shifang called Le Sheng and asked him. Le Sheng told the whole thing in detail to Shifang. Shifang gave him the letter of the special envoy and said, “Now, under such circumstances, even I knew that you were sinless, I still couldn’t help you. What should I do?” Then, he ordered the official to hear the case. Le Sheng asked the official: “What did the Zhongcheng think about the case?” The official answered: “The Zhongcheng agreed with the special envoy and you could not escape from being killed.” “If the Zhongcheng also agreed with the special envoy, what’s the meaning of appealing?”, said Le Sheng. Le Sheng asked the official to fetch a pen, and then he retold the whole thing according to the article. Shifang felt some sympathy for him. Before execution, Shifang sent someone to fetch Le Sheng and said, “I knew that you are too wronged, what else is entrusted to me?” Le Sheng said, “No.” Then Shifang asked, “Do you have a son?” Le Sheng answered, “One.” “What post do you want him to hold?” Le Sheng said, “I would be satisfied if he could become a battalion commander.” Then, Shifang wrote an official document and gave Le Sheng a hundred thousand dollars to buy burial supplies. He asked him whether he had any other requirements. Le Sheng said, 34

Old Book of Tang, Volume 9, p. 221. New Book of Tang, Volume 5, p. 148. 36 See Footnote 35. 35

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“I was willing to be wronged and sentenced to death, so I would not run away. Please let me go home to see my wife and son without the torture devices. So, I could take a shower and arranged the following things. “Shifang agreed. On the day of execution, Shifang climbed the south gate of the state. He asked someone to fetch Le Sheng and said goodbye to Le Sheng. Le Sheng said in front of the city tower with his body cleaned and hair combed: “I will die today, but that is not the end,” Shifang asked: “Do you hate me?” “No, I knew that you were forced by the special envoy.” Shifang cried. He asked someone to lead Le Sheng to a round place and prepared a sumptuous meal for him. After eating the meal, Le Sheng said goodbye to his wife and son. He asked his wife: “Have you bought the coffin? I need a coffin with paper and ten pens in it. After death, I would appeal to the Heaven.” Then, he asked the official who was in supervision: “What’s the time?” “Noon.” answered the official. “I would die at noon. When it was nightfall, I would go to Binzhou and kill the entourages. Next April, I would kill Pei Langzhong.” Le Sheng looked up and saw an executioner who was a subordinate of the battalion commander. Le Sheng had served as a battalion commander, so he said, “You were my old subordinate. I would die. You should be careful and do not break my neck. If you do, I will kill you.” At that time, the old subordinate had no time to listen to him. So, he killed Le Sheng in the way he had used before. After checking the body, he hauled Le Sheng out the door. Then, the old subordinate suddenly fell down with his face down and died. A few days later, it was reported from Binzhou that the entourages died with an arching feeling at nightfall. Pei Langzhong also died in April next year. In October of that year, Shifang hosted dinner for the arrival of Chishi in a round place. When they all enjoyed themselves to the full, Shifang suddenly looked up with his eye goggled and said, “Le Sheng, why did you come here? I was sinless.” Then, he poured wine on the ground and blessed Le Sheng. After a long time, he said, “I knew that you were wronged, but I killed you after all, that was my sin.” Then, Shifang couldn’t talk, and he was carried to his house and died at night. To date, at the south gate where Le Sheng was killed, there was an approximately one-meter cube on which no grass could grow. Later, people who came to Gui believed it after seeing it. There were many people who were persecuted to death at all ages. Why did Le Sheng a magical man?37

According to the Old Book of Tang Records of Emperor Muzong, in February of the fifteenth year of the Yuanhe period, “the Yitai Puqing was called Du Shifang, who served as prefectural governor of Guizhou, was posted on the position of inspector.”38 Du Shifang was the son of Du You who was the prime minister of the capital and the son-in-law of Li Ze, who was the senior officer of Shezhou.39 In March of the second year of the Changqing period (822 A.D.), Du Shifang died, and after that, he was promoted to Shangshu of the Ministry of Rites posthumously. This could be proven in Volume 51 entitled Du Shifang Was promoted to Shangshu of Ministry of Rites Posthumously of The Collection of Bai Shi Chang Qing.40 It was recorded in Yi Shi that Du Shifang’s official status was equal to the official called Shi. Because of the lower official status, there were no records of Le Sheng. According to the Old and New Book of Tang, we could judge that the story of Le Sheng who appealed before execution happened in the first year of the Changqing period. The story about Le Sheng’s appeal before execution, the executioner, Pei Langzhong and Du Shifang,

37

Tai Ping Guang Ji, Volume 122, pp. 862–864. Old Book of Tang, Volume 16, p. 476. 39 Entire Donovan, Shanghai Ancient Books Publishing, 1990, Volume 639, p. 2859. 40 Correction of the Collection of Bai Juyi, Volume 51, p. 2996. 38

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was described in great detail in Yi Shi. This mysterious case aimed to have an effect on persuading to be good and punishing evil. Third, Weichi Shu’s Southern Chu News recorded that in the 14th year of the Xiantong period (873 A.D.), Du Cong, Taifu, instigated the primer minister Wei Baoheng to accuse Qin Kuang of deserting his post just because of his irreverent behavior. Kuang swore he would appeal to the underworld government. After a month, Du Cong died with his body short and narrow. Then his oldest son died soon: (omitted)…the imperial order was made that Du Cong went to the place of execution personally to supervise the execution. When Kuang was about to be killed, he said to his son, “I was persecuted to death. But it was too late to appeal now, you should burn more paper and ink for me, so that I could appeal to the underworld government.” There were many people around when Kuang was executed. When the executioner brandished the knife, Du Cong was scared to fall ill, and then he left by carriage. In short, while a large whirlwind suddenly burst, the dust rolled up to the sky, and it dropped away and flew to the office. That night, the prison officer also went crazy. He called his own name and scolded: “I had given you a lot of money. Why did you still use my money secretly?” He levered himself and fell down to the ground. And then he died. On June 13th of that year, Du Cong killed Qin Kuang, and on July 13th, Du Cong died. Du Cong would be burnt in Luoyang. When the coffin was ready, they would depart. The day when they wanted to encoffin Du Cong, the supervisor’s bureaucrats found that the coffin was too short. He was scared and it was difficult to change. So, he bribed both the men of the living world and underworld a lot of money, and then deceived the sons of Du and said, “Tai Fu died fiercely. It would be a disaster if anyone came near the coffin.” His sons believed, so they all waited in another room with their family members. When it was going to encoffin Du Cong, the coffin was too short. To put Du into the coffin, they had to press his chest and then break his neck. No one knew about these things. When they arrived in Luoyang, the eldest son of Du died soon. These things spread to the world as time went by. People who talked about the story all said that Du Cong’s retribution was due to his abuse of power.41

According to Zi Zhi Tong Jian, “Qin Kuangmou, the envoy of strategy, outnumbered when Xichuan, Qiannan and Qianzhong were invaded, went to Jingnan giving up the defense. Du Cong, the governor of Jingnan, arrested him and reported to the superior. In June, it was imperially ordered that Kuangmou would be beheaded and all his properties should be turned over to the government. His relatives should be detained, waiting for punishment. Kuangmou came from Fengxiang.”42 The above information exactly matched what was said in Ji Wen, except for the case of Qin Kuangmou. The relationship between Du’s detention trial and Qin Kuangmou’s beheading was recorded in the Imperial Edict Collection of Tang: “He carried gold and silk and abandoned the city, which was talked about by others. And he didn’t defend the city, which upset the country… It’s better to remove him of his position and behead him by the governor of Jingnan in the market. All his properties should be turned over to the government. The Censorate and other governors were ordered to investigate the case. If his relatives committed the same crime, the Censorate should report in detail.”43 At that time, Du Cong was the official to check Feng Xiang and 41

Tai Ping Guang Ji, Volume 123, p. 867. Zi Zhi Tong Jian, Volume 252, p. 8166. 43 Imperial Edict Collection of Tang, Volume 127, p. 686. 42

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the governor of Jingnan. Kuangmou appealed some absurd things, and there was a direct relation between Kuangmou and the death of Du Cong. According to the New Book of Tang Records of Du Cong, “Qiannan Observation Envoy Qin Kuangmou who suppressed savage nationality but was defeated. Qin Kuangmou went to Cong for shelter.44 Cong imprisoned him and impeached him that he was an army deserter. Then, he reported to the emperor and hoped that the emperor would order to kill Qin Kuangmou. The emperor ordered to execute Qin Kuangmou. Cong was surprised and fell ill and then died. The so-called “Qin Kuangmou’s death was out of Cong’s imagination and Cong was too surprised to die” was just used to quibble, and it also proved that Du Cong’s memorial was the direct reason resulting in the execution of Kuangmou. So, what was recorded in the Southern Chu News was true. What was mentioned above indicated the distance between the stipulations and the implementation of the laws of the Tang Dynasty and indicated that people of the Tang Dynasty hoped that all cases could be treated justly. The rule of appeal before execution continued to exist for a long time in later generations. In the third year of the Chunhua period of the Northern Song Dynasty (992 A.D.), “It was ordered that when criminals were sentenced to death, if they and their family disagreed with the judgment, the cases should be reported and heard by the official called Bai Chang Li.”45 On July 18th of the second year of the Dazhong Xiangfu period (1009 A.D.), it was ordered by Emperor Zhenzong that “From then on, when criminals appealed before execution after cases were settled, and entrusted other irrelevant officers with investigating this case again. The case should be trialed by the official of neighboring states.”46 In February of the 4th year of the Qingning period (1058 A.D.), it was ordered that “death cases should be trialed again by the officials of other states even if they were settled. If those cases were judged justly, then they could be finished. If there still were criminals who appealed, the cases should be reported to the emperor.”47 What was mentioned above could be mutually confirmed with the Tang Dynasty system.

3 Relative Agent Appeal Relative agent appeal was traditional litigation that was carried out from generation to generation in the feudal period of China. Since it was influenced by the idea of Confucianism that relatives were an integral whole, if someone’s wife or children were under the lawsuit, their relatives ought to be the proctors. It was recorded in the Book of Later Han-Biography of Yuxu that, “Since I was treated unjustly, I cut my hair and hurt my body and traveled so far to appeal to the emperor.”48 It was 44

New Book of Tang, Volume 166, p. 5092. Book of General, Volume 166, p. 1445. 46 A Continuous Form of Zi Zhi Tong Jian, Volume 72, p. 1626. 47 History of Liao, Zhonghua Book Company, 1974, Volume 21, p. 256. 48 Book of Later Han, Volume 58, p. 1873. 45

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recorded in the Book of Wei-Biography of Yangbo that the governor of Huazhou called Yang Bo, who borrowed land from peasants, was impeached by the censor Wang Ji, and then Wang Ji relieved him from his post. In the second year of the Yanchang period (513 A.D.), Yang Bo died at home. “His son Yang Kan did not bury his coffin and appealed for many years.”49 In the Wei and Jin periods, appealing as a proctor became a symbol of worthy progeny and prevailed for a long time: In the Liang Dynasty, if officials were under arrest and impeached, their sons and grandchildren and nephews had to plead guilty to the court for three consecutive days with their feet bared and hair disheveled; if some of the descendants were officials, they had to take the initiative to request to relieve themselves from their posts. Putting on straw sandals and coarse cloth clothes, his sons waited for and stopped officials in charge of the case to appeal with disheveled hair and dirty faces on the road. If the father was sent to serve penal servitude, his sons did not dare to live at home, and they put up thatched shack hind at the entrance of the official’s office and lived for ten days until they were expelled by the government.50

In the Tang Dynasty, relative agent appeal was included in the appeal rules. When the case was judged, the court should inform the prisoners and their families of the judgment. It was stipulated in the Tang Liu Dian that if one was in prison, his relatives could appeal for him.51 The phenomenon of relative agent appeal profoundly reflected the concept of ritual law adhering to Tang Dynasty’s law and had become one of the important ways to redress and supervise the judiciary in judicial practice. It can be considered that the Confucian patriarchal concept of family ethics was the ideological root of various behavioral rules and institutional norms in the feudal period, and the phenomenon of relative agent appeal was a specific manifestation of this concept in the litigation field of the Tang Dynasty.52 Regarding nature, the relative agent appeal was an important part of the appeal system of the Tang Dynasty, and it roughly had the same legal effect as that of the appeal of the prisoner. In the practice of litigation, when it was impossible for the prisoner to appeal due to the custody of the prisoner or the execution of the death penalty, his relatives became the main subject of the appeal. It should be noted that the term “proctor” was first seen in the History of Yuan Dynasty: “If officials who retired because of being ill or old were prosecuted, they could not be treated as normal people. Their relatives were allowed to appeal for them, and no officials were allowed to obstruct.”53 The Laws of Qing Dynasty stipulated that if one criminal admitted his crime but his family still appealed, the official should hear the case again. If the criminal was wronged, the original judge and accuser should redress it together. If the criminal himself appealed but the official ignored it, then the official would be accused of bending the law for personal gain.54 While the relevant law stipulations of the proctor were simple, there 49

Book of Wei, Volume 58, p. 1280. The Annotation of the Collection of the Family Instructions of Yan, Volume 2, p. 120. 51 Tang Liu Dian, Volume 6, p. 192. 52 Chen Xi, Comments on the phenomenon of relative agent appeal in the Tang Dynasty, Journal of Northwest University (Philosophy and Social Sciences Edition), 2009, (6): 147. 53 History of Yuan Dynasty, 1976, Volume 105, p. 2671. 54 Law of Qing Dynasty, 1999, Volume 37, p. 588. 50

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were many different forms of proctors and customary rules in the Tang Dynasty, which had a great effect on the operation of the appealing system.

3.1 Multiple Judicial Organs in Charge of Appeals Respectively According to the stipulations in Tang Liu Dian, regardless of who appealed, the criminal himself or his relatives, they must appeal step by step, from county to state, to the Shangshu Department, to Censorate and other institutions. In judicial practice, it was presented that the power was separated by different institutions, and the powers of the relevant institutions to accept and hear the cases were also different. First, Shangshu Department was the statutory authority for accepting local appealing cases. During the Eastern Han Dynasty, Shangshu Tai became the central institution to address state affairs. The appellant of the whole country who appealed to the emperor must first go through the Shangshu Department. Shangshu Department also used to handle the appealing cases that were supposed to be handled by the emperor.55 This directly led to the phenomenon that Shangshu Department mainly handled local appealing cases in the Tang Dynasty. According to the Epitaph of the Magistrate Gai of Lihu County, the late Caozhou Prefecture in the Tang Dynasty, in the Zhenyuan period, Bo Wen, Gai Fan’s brother, was the county magistrate. “He was implicated in a case and would be punished severely. Gai Fan appealed with his heartbreaking. His statement was so sincere and intense that whoever heard it would be full of praise…The left Puye Fang Xuanling reported the case to the emperor and presented a petition for Bo Wen. Bo Wen exiled to Gaochang instead of being sentenced to death.”56 In this case, Shangshang Department accepted the case according to the legal appealing right of jurisdiction. It is worth noting that according to the stipulations of the law, Shangshu Department was in the dominant position of the Tang Dynasty to accept appeals. According to the order of the emperor in April of the second year of the Kaiyuan period (714 A.D.), “If there were criminals who appealed in the capital and handed indictment to Shangshu Department, the official should accept it. If the case was delayed, the left and right primer minister and the censor audited the case and then reported it to the emperor. If the case was not heard by Shangshu Department, it was not allowed to appeal to San Si.”57 In March of the 10th year of the Kaiyuan period (722 A.D.), the emperor ordered again, “From now on, the appellant should appeal from county to state, and then Shangshu Department. If Shangshu Department delayed the case, the Censorate would visit and audit the case and then report it to the emperor. The officials who were under the minister 55

Zhao Guanghuai, The indictment reported to the emperor: The system of appealing to the emperor in the Han Dynasty, Journal of Shandong University, 2002, (1): 89. 56 Collection of Epitaphs of Tang Dynasty, Shanghai Chinese Classics Publishing House, 1992, p. 519. 57 Tong Dian, Volume 22, p. 597.

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of Shangshu Department would be demoted according to their ranks.”58 Because it was limited by the reality that the jurisdiction of accepting the appealing cases, together with the strong intervention of the Censorate, since Emperor Gaozong’s rule, the appealing cases in Shangshu Department were gradually defensive. In the 4th year of the Yifeng period, Wei Renyue served as the left primer minister of the Shangshu Department.59 According to the Epitaph of the Founnding Father Wei of Bocang County in the Tang Dynasty, “Wei Renyue often obeyed the special order of the emperor to hear the wronged cases in the imperial court. All the cases heard by him were impartial and convinced. Then he got promotion and became Grandee Secretary.”60 The second governor of the Shangshu Department did not have the right to hear the wrong cases unless he was ordered by the emperor. It can be seen that it was uncommon for the left primer minister of the Shangshu Department to hear the appealing cases. Second, if appellants disagreed with the judgment, instead of appealing to the state according to the law, they could also appeal to envoys. It was recorded in the Old Book of Tang Biography of Cen Wenben that Cen Wenben’s father Zhixiang was the official of Handan. His father was accused and wronged in a case. “Wenben appealed to Sili with the sincere and intensive statement.”61 The official redressed the case. According to the Book of Sui-Notitia Dignitatum, the Sui dynasty set up the position of Litai Dafu, who was in charge of inspection, and other positions such as Biejia, Cishi and Congshi, which imitated the system called “Liutiao Wenshi” in the Han Dynasty. They inspected local places and found that some officials were corrupted and violated the law.62 It was recorded in the Book of Sui-Biography of Li Derao that “In the third year of the Daye period, Li Derao got a promotion and served as Sili Congshi. When he inspected states, he would redress all the wronged cases and praised people who were filial.”63 Cen Zhixiang was accused when he was an official of Handan. He should appeal to the Wu’an county. Here, the case was appealed by his son Wenben to the Sili, and the effect was the same as the appeal to the state and county. Sili administered the appealing cases according to the rights of judiciary supervision. Proctors could also appeal to Zhongshi if they were sent by the imperial court. It was recorded in the Old Book of Tang-Biography of Cui Ning that at the very beginning, Gan worked for Pei Mian. Later, Mian was framed, and the imperial court sent envoys to hear the case. “Gan’s subordinates all appealed with their ears cut away. Then the Zhongshi reported it to the emperor.”64 Moreover, Yu Shi Tai accepted the appealing case based on the right of judicial supervision. The status of Yu Shi Tai in the Tang dynasty as an appealing institution for all kinds of wronged cases had been accepted by both the government and the 58

Imperial Edict Collection of Tang, Volume 82, p. 473. Tang Hui Yao, Volume 58, p. 1172. 60 The Supplement of Entire Donovan, 1995, p. 7. 61 Old Book of Tang, Volume 70, p. 2535. 62 Book of Sui, Volume 28, p. 797. 63 Book of Sui, Volume 72, p. 1670. 64 New Anecdotes of Tang Dynasty, Volume 4, p. 61. 59

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public and gradually formed a litigation practice under which appellants could appeal to the Yu Shi Tai. The Taisi censor administered the appealing through exerting the right of judgement supervision. In the second year of the Changshou period (693 A.D.), Pang, wife of Dou Xiaochen, the governor of Runzhou, was accused by a servant of offering sacrifices to god at night and was sentenced to death. “When she was to be executed, his son called Xijian appealed to Xu Yougong, who was the Shi censor.”65 Xu Yougong reported the case to the emperor. After that, Pang exiled to Lingbiao instead of being executed. In the Jingyun period, the monk Huifan grabbed a man’s wife, relying on his power. The county and state would not accept the case. “The man appealed to Yu ShiTai.”66 Xue Deng, the prime minister, and Murong Xun, the Shi censor, reported the case to the emperor. At the beginning of the Yanhe period, the supervision censor Lu Ze investigated the Lianzhou governor Cui Jian and found that Jian’s subordinate was bribed by Li Zhong, who was an observer, with six hundred bolts of the clot. The emperor ordered, “Jian’s brother Ji accused the official investigating the case. Jian should be beaten with bludgeons and then exiled.”67 Lu Ze was also dismissed from his post. Finally, the emperor heard the appealing cases as the highest judicial person. The traditional concept of litigation believed that the appellant who appealed to the emperor directly by stopping the emperor’s carriage and who beat the Dengwen drum “must have something that could not tell. If their appeal was not true, the appellant would be punished. If their appeal was true, they would be acquitted”.68 Compared with other appealing channels, appealing directly to the emperor was the most common and most effective means of the proctor. Yang Tingfu believed that “The ancient administration and the judiciary were not strict, which was also an expedient measure that used the administration to relieve the judicial trial, and had no complaints from the people.”69 In the first lunar month of the Changshou period (692 A.D.), Di Renjie was framed by Lai Junchen and was put into prison. “Di Renjie admitted the rebellion, then the prison officials lowered his guard and only waited for the order to execute him in the future. Di Renjie asked the jailer to give him a pen and a shackle. He removed the cloth from his quilt and wrote his grievances on it and then hid it in a cotton coat. His son got the indictment hidden in the coat and appealed to the emperor with it. The emperor accepted his son’s requirement.”70 Finally, Di Renjie was demoted as the official of Pengze instead of being executed. In April of the 14th year of the Kaiyuan period (726 A.D.), Cui Yinfu and Li Linfu, who was the Yushi Zhongcheng, reported that Zhang Yue accepted bribes. Emperor Xuanzong ordered Yu Shi Tai to hear the case. Zhang Yue’s brother Zhang Guang, the Zuo Shuzi, “appealed to the imperial court with his ears cut away”.71 When Zhang 65

New Anecdotes of Tang Dynasty, Volume 4, p. 57. See Footnote 64. 67 Ce Fu Yuan Gui, Volume 522, p. 5929. 68 Annotation of the Law of Qing Dynasty, Volume 22, p. 798. 69 The Study of Law of Tang, pp. 194–195. 70 New Stories of Tang, Volume 12, p. 183. 71 Old Book of Tang, Volume 97, p. 3055. 66

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Yue retired, he still wrote history books at home. At the end of the Kaiyuan period, Yuanxian was the secretary of the Zhongshu Deparment. His brothers violated the law. “He put on single-colored and simple clothes and visited the emperor. He asked the emperor to allow him to be the scapegoat of his brothers. So, he was demoted as Sihu of Handong.”72 In the fifteenth year of the Yuanhe period (820 A.D.), since Meng Jian once appointed Lu Han to play up to the eunuch, Meng Jian worried that the crime would be revealed and he chased Lu Han to the state and killed him with a bag that was full of sand. “Han’s younger brother appealed to the emperor and accused Jian of the crime.”73 After being investigated by the Censorate, the case was finally settled. In the 4th year of the Huichang period (844 A.D.), Wu Xiang, who was the military officer of Jiangdu County, was put into prison because of corruption. Li Shen, who was the governor of Yangzhou, ordered that Wu Xiang should be executed. Xiang agreed with the judgment. In September of the first year of the Dazhong period (847 A.D.), “Xiang’s elder brother Runa, who was a Jinshi, appealed to the emperor and stated that Shen, relying on the power of Deyu, killed his younger brother. Deyu was demoted, and Shen was also demoted three levels.”74 In addition to the aforementioned relatives, old officials also had the right to appeal to the emperor. According to the Xian Datang West City Museum, Epitaph and Preface to Chen the Former Emperor of Tang Yuan Cong Bao Ying Meritorious Statesman Feng Tian Ding Nan Meritorious Statesman Kai Fu Yi Tong San Si Crown Prince Guest General of Left Longwu Army Founding Father of Huaiyang Prefecture, At the beginning of the rule of Emperor Dezong, Chen Shouli, who was the Yunhui general, was framed by an official. “Led by General Wang Luojun, over 1000 of his subordinates appealed to the emperor with their ears cut away. They reported to the emperor what General Chen Shouli had done for the country. Chen Shouli was then appointed to Jingchui.”75 It can be seen that appealing to the emperor directly was one of the important ways to initiate the procedure of redressing a wronged case.

3.2 Appellant Agent Having the Privilege of Overstepping Indictment Chen Dengwu thinks that the overstepping indictment in a broad sense should include transboundary appeal and appeal to bypass immediate leadership. The former concerns trial jurisdiction; the latter concerns litigation procedures.76 In this article, the people who take overstepping indictments are confined to the field of appealing, 72

Interpretation of the Newly Unearthed Epitaphs in Luoyang, Beijing Library Press, 2004, p. 156. Old Book of Tang, Volume 163, p. 4258. 74 Old Book of Tang, Volume 173, p. 4500. 75 Epitaph of Museum Collections in Datang West City, p. 668. 76 From the Human World to the Nether World: The Legal System, Society and State in Tang Dynasty, Wunan Book Punishing Limited Company, 2006, p. 19. 73

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bypassing immediate leadership. If the prisoner’s relatives disagreed with the conclusion of the magistrate’s judgment of the local state or county, serious opposition between the judge and the defendant was often formed. The prisoner and his family thought that the judgment was unfair, and they often suspected that the chief officer had the behavior of corrupting and framing out of selfish interests. Therefore, the original petition for the original judgment gradually evolved into an accusation against the judge. Furthermore, when the prisoner’s personal prosecution stated the appeal, the accuser often incidentally accused the judge of the original conviction, which led to the intersection of judicial supervision and appeal. Because there was no strict hierarchical restriction on the prosecution of the superior officers’ illegal activities, the prosecutor, in the name of exposing the officials, additionally put forward the reasons for appeal and used the unfair conclusion of the original trial as evidence to prove the superior officers’ illegal activities. So far, appealing to bypass the immediate leadership was often in vain, and the litigant’s legal liability for overstepping the appeal was exempted accordingly, thus forming the overstepping appeal convention of concurrence with disclosure. In the second year of the Shenlong period (706 A.D.), Jing Hui was demoted to the governor in Yazhou. Wu Sansi was afraid that he would be reappointed, so he asked the censor Zhou Lizhen to kill Jing Hui. Emperor Ruizong ascended the throne, “to recover the titular honors of Wu Wang and appointed him as the governor of Qinzhou, and the posthumous title is Sumin”.77 Thus, Wu Sansi was killed, and Jing Hui received rewards. This case was already closed, but the court did not investigate the criminal responsibility of Zhou Lizhen, the culprit. On the 21st of the first lunar month of the seventh year of the Kaiyuan period (719 A.D.), Emperor Xuanzong met the envoys in Zi Chen hall. Jing Hui’s son Jing Rang was appointed the official in Weizhou, and Li Zhen was appointed the official in Chenzhou. Jing Rang took advantage of the chance to report something bypass the supervision of the censor Zhai Zhang, which restated the old case and appealed for the punishment of Zhou Lizhen: On January 21 of the seventh year of the Kaiyuan period (719 A.D.), Your Majesty met with the envoys in Zi Chen hall. Jing Rang, the official in Weizhou, and Li Zhen, the official in Chenzhou, gathered to report something. The censor Zhai Zhang served in the court, so he walked into the court before Li Zhen. Jing Rang appealed that his father was killed by Li Zhen, bypassing immediate leadership: “Li Zhen was directed by Wu Sansi to kill my father.” Zhai Zhang accused that Jing Rang appealed to bypassing his guidance, so Jing Rang should be punished. The emperor said, “Jing Rang appealed his father’s injustices, which should not be neglected, but the rules of court should not be broken, too. So subtract one quarter’s salary of him.” Then, the emperor demoted Lizhen as the official in Yongzhou.78

Jing Rang took the convenience of his official position to appeal to his father’s injustices, which was regarded as the appeal bypassing immediate leadership. However, Emperor Xuanzong dealt with his appealing and only called to punish his breaking of the rules of court. Furthermore, he demoted Zhou Lizhen to a remote place so that Jing Rang’s purpose was achieved. 77 78

Old Book of Tang, Volume 91, p. 2934. Tang Hui Yao, Volume 62, p. 1279.

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High litigation efficiency, in line with the fact that the abovementioned appellate jurisdictions are in charge, the agent often chooses a more direct route to appeal. In the first year of the Zhenyuan period (785 A.D.), the governor Li Qiyun assaulted and insulted Prime Minister Yuan Sui until he died. Yuan Sui’s wife thought that governor Li Qiyun disobeyed the decision, and she directly reported injustices to the court exceeding the links of the Shangshu Department and San Si. The imperial censor Cui Zong asked for exhaustive investigation but failed: In March of the first year of the Zhenyuan period (785 A.D.), the prime minister called the imperial advisor to declare the decree and said, “From now on, the impeachment should go into self-assessment, not group signatures, if involved in the group (Original injection: at the beginning, the governor Li Qiyun assaulted and insulted Prime Minister Yuan Sui until he died. Without a fair trial, his wife, Zheng Shi, appealed the grievance continuously. Cui Zong insisted on the original report, and the imperial minister Zhang Huo agreed with him. They impeached Qiyun with other officials. Therefore, Qiyun reported that “I’m isolated and excluded by my colleagues.”. Therefore, the prime minister was ordered to declare the decree.)”79

Li Qiyun, the grandson of Li Hun, who was the seventh son of Emperor Taizong, was in royal genealogy.80 Qiyun, who killed his subordinate, should be punished for his crime according to the law at that time. The first trial of the Yuan Sui case was recorded in the New Book of Tang: “Li Qiyun mobilized people to build a fortress and urged people to hand over food for the military when Li Sheng was leading the military repairing the Wei Bridge. It was much helpful when the thieves were arrested. Yuan Sui, the governor of Wannian County, was incompetent. Qiyun was so angry at it that beat and scolded him to death.”81 It can be seen that the time when Yuan Sui was grasped tightly to death by the attendants was during the trial by Li Qiyun. According to the appeal hierarchy, this case should be handled by the local governor. Because it was related to the local governor, the relatives appealed to the Censorate. However, from the first impeachment of Cui Zong, the Dafu, to many impeachments by Zhongcheng or Jilun, Emperor Dezong set aside this case until the time when Qiyun impeached himself of being framed by a party of officials. Zheng Shi, Yuan Sui’s wife, complained Xiansi of its incompetence. The primary reason why Zheng Shi lost the lawsuit was that Emperor Dezong gave unprincipled protection to the member of the royal clan. Under the double restriction of filial piety and public opinion, if the case was true, the probability of an appeal being accepted would be greatly increased, and the liability of overstepping prosecution would seldom be investigated. Even if the prosecutor was judged to exceed the lawsuit, the legal penalty was only beaten 40 times. From the point of view of litigation cost, the prosecutor’s risk of overstepping the prosecution might be profitable. In the middle of the Zhenyuan period, Han Tan, the governor of Xiazhou, went to the capital while Feng Hong, the person under his charge was arrested falsely by Jia Yingxiu, the military inspector. Han ordered Wang You, Shun Dian and Li Jinchao to kill Hong 79

Tang Hui Yao, Volume 61, pp. 1262–1263. Old Book of Tang, Volume 135, p. 3719. 81 New Book of Tang, Volume 167, p. 5111. 80

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with Jia, a kind of instrument of torture. “His son, Qi appealed because of the injustice of Hong and accused Yingxiu of his accepting bribes.”82 Censorate was ordered to investigate the case. Jia Quan, Zhongcheng, catered to the intention of his superior to ask to let Yingxiu serve in Neishi. Wang You, Shun Dian and other partners were sentenced to death after the investigation, while Yingxiu was only degraded. Although the conclusion of the case was slightly different due to the intervention of eunuchs, Qi, the son of Feng Hong, transformed the case into an imperial edict prison by appeal, which satisfied the litigation expectation of the prosecutor to a certain extent. In the middle of the Dahe period, Dong Changling, an official of Yizhou, falsely killed Heng Fanghou recorded in the military. Cheng Shi, Fanghou’s wife “went to the court to appeal the injustice of her husband, slicing off her ear at the gate”.83 It turned true after the investigation of the Censorate; thus, Dong Changling exiled. Self-punishment of Cheng Shi not only cleared up the injustice of her husband but also gained a position of governor of Wuchang County for her son in the first year of the Kaicheng period (836 A.D.). More importantly, the conclusion of the case also restricted Dong Changling’s official career. In the first lunar month, the first year of the Kaicheng period, the degradation of Dong Changling as the governor of Xiazhou was rejected by Wei Mo, a censor. According to Ce Fu Yuan Gui: I heard that emperors often announced imperial edicts to forgive some crimes. However, the person who killed others on purpose was not forgiven. Now Dong Changling was said that recently he often didn’t grace your kindness to him and killed an innocent person whose wife walked thousands of miles to appeal his injustice. He was not sentenced to death because of your compassion. But people thought it was not fair. Now you made him the governor, making us upset. Those who killed others could be promoted, while those who were treated unjustly could not appeal. This is not reasonable...” Several days later, Changling was appointed the vice governor of Hongzhou. In February, prime ministers reported again that “What censors said was that Dong Changling shouldn’t be appointed as the governor and you listened to him right away. We didn’t dare to say anything.84

For the case that Feng Hong was framed by Jia Yingxiu and Heng Fanghou was killed falsely by Dong Changling, as far as the appellate body was concerned, the agent should appeal to the right and the left prime ministers in the Shangshu department. However, both Feng Qi and Cheng Shi surmounted the complicated appeal procedure and chose to appeal directly to the emperor, and the appeal was successfully handled.

3.3 No Limitations of Proxy Appeal and Final Trial Most of the proctors lodged appeals to redress injustice when the political environment changed dramatically. Their litigation aims were to restore the reputation of the 82

Ce Fu Yuan Gui, Volume 521, p. 5919. Tang Hui Yao, Volume 61, pp. 1262–1263. 84 Ce Fu Yuan Gui, Volume 101, p. 1110. 83

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defendant and to investigate the individual responsibility of the trial judge. Unlike modern rules of appeal, there was no strict limitation of prosecution for prisoners’ and relatives’ appeals in the Tang Dynasty. At the end of the Zhenguan period, it was unofficially recorded that there was a queen monitoring the country in the Tang Dynasty and that Li Junxian was the general country whose other name was Yingchen. Tangzong was so angry that because the name of his district also had the word “wu”, Junxian was degraded to be the governor of Huazhou. Censors reported that Junxian colluded with some wizards to plot something illegal. In July of the 22nd year of the Zhenguan period (648 A.D.), “Junxian was punished, and all his properties were turned over to the government.”85 In February of the 2nd year of the Tianshou period (691 A.D.), “Family members of the prisoner went to the court to inform against his injustice. Queen Wu felt shocked so she reset his position and buried him with respect.”86 Appeals lodged by family members had been away from the incident for fortythree years. In the 2nd year of the Shenlong period (706 A.D.), Jinghun was killed by Zhou Lizhen. In the 7th year of the Kaiyuan period (719 A.D.), Jingrang, the son of Jinghun, lodged the appeal fourteen years later. In judicial practice, the acceptance and trial time of the proxy case may vary from case to case. In the Jianzhong period, Mu Ning, the governor of Hezhou, offended Lian Shi because of his uprightness, so he was degraded to Quanzhou after being falsely accused. Mu Zan, the son of Mu Ning, an official, in Jiyuan “went to the court and appealed with tears. Censors were ordered to investigate the case again. As a result, the crime of Mu Ning was cleared”.87 In fact, the process of the appeal by Mu Zan was not smooth. It was recorded in the Old Book of Tang that “He went to court for three years and finally censors investigated the case again.”88 The Poem for Cui Zifu said that at the beginning of the Yuanhe period, Cui Ce, “whose family was treated unjustly, went directly to the court for about one month”.89 In comparison, the acceptance and trial of Zhang Zhong’s wife and mother’s appeal were extraordinarily fast in the 11th year of the Zhenyuan period (795 A.D.): (Pei Yanling) arrested Zhang Zhong to replace Li Chong and threatened him to admit the facts of the crime, saying that “He occupied governmental money for about five hundred thousand Guan which was used to collude with some officials having power in hand. And Li Chong’s wife often gave money and something precious to Lu Zhi’s wife.” Zhang Zhong couldn’t bear the threat and admit the crime as Yanling had told him. His mother and wife went to the Gate of Guangshun to appeal. Censors were ordered to investigate the case again. Within one night, it turned out to be wrong. Thus, Zhang Zhong was released.90

As far as the final appeal system is concerned, there are also significant differences between ancient and modern litigation systems. The modern criminal procedure in 85

Zi Zhi Tong Jian, Volume 199, p. 6259. New Book of Tang, Volume 94, p. 3837. 87 Ce Fu Yuan Gui, Volume 875, p. 10,180. 88 Collection of Liu Zongyuan, Volume 23, p. 625. 89 Old Book of Tang, Volume 135, pp. 3727–3728. 90 Analysis of Direct Prosecution System in Han and Tang Dynasties, 2008, (4): 214. 86

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China is the system of two-instance final judgment; that is, a case is a final judgment after two trials, and it has a legal effect after completing the relevant procedures. The parties concerned can no longer appeal about the same case. If there is still objection to the final judgment, it is necessary to start the trial supervision procedure and satisfy the appeal through a retrial. In the Tang dynasty, the nature of direct prosecution (appeal) was not clearly defined, and there was no strict restriction on the final appeal. If the parties had objections after appealing step by step, they could repeatedly appeal about the same case. As a result, there was a long-standing practice of repeating the same petition in the Tang Dynasty litigation, which was also the origin of the contemporary petition system. In April of the 2nd year of the Qianyuan period (759 A.D.), the leader of a troop in Fengxiang was arrested and killed by Xie Yifu, the governor of Tianxing County. Therefore, his wife lodged the appeal. This case passed the second trial of the supervision censor, third trial by three departments and fourth trial of the Shi censor and finally ended at the fact that Xie Yifu had wrongly judged and was then degraded. Lack of law, disturbance by eunuch and pestering lawsuits by tricky people lead to an indiscriminate lawsuit and delayed trial: The leader of a troop in Fengxiang was a robber before who often robbed common people, and the government could not stop his behavior. Thus, the governor of Tanxing County ordered Xie Yifu to arrest him and kill him. His wife lodged an appeal to the state about his injustice. Fuguo at first was Fenglongshi, and his partners lodged an appeal for him so that Sun Ying, the supervision censor, was asked to investigate it. Sun Ying treated the case justly, but his wife appealed again. Cui Boyang, Zhongcheng, Li Ye, the assistant Minister of Punishment, and Quan Xian, the governor of Dali, jointly investigated this case, and the result was the same as that of Ying. His wife appealed many times. Therefore, the Shi censor Mao Ruoxu was appointed to investigate the case again. Ruoxu put the blame on Yifu and said there was something illegal done by Boyang and others, so the penalty could not be believed. Boyang was angry and called Ruoxu in a rude manner. Boyang wanted to report to the emperor, but Ruoxu did that before him. He said to Emperor Suzong in a hurry. Emperor Suzong said, “I have known about it; you can go out now.” Ruoxu said to Emperor Suzong that “I would die after going out the court.” Thus, he was allowed to stay in the court. After a while, Boyang arrived. Asked by the emperor, he said Ruoxu flattered others. The emperor was so angry and asked him to get out. As a result, Boyang was degraded to be governor of Duanzhou, Quan Xian, governor of Guiyang in Chenzhou, Yan Xiang, the governor of Fengxiang and Li Ye, governor of Lingxia. Sun Ying was dismissed and exiled in Bozhou perennially. Xian wanted to manage this case because so many persons were involved in this case and they were punished too severely, so he reported that “Not abiding by the law, Ruoxu catered to the intention to declare them of guilty. You believed in what he said regardless of the Censorate.” Emperor Suzong was angry because of what Xian said and degraded him to be the governor of Shuzhou. At that time, the emperor said to Han Zenmu, the assistant, that “Did Xian want to grab the power? How dared he said that I just believed in Ruoxu and ignored the Censorate? I thought it was too tolerant for me to degrade him to be the governor of Shuzhou.” Zenmu answered that “Xian was

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outspoken rather than wanted to grab the power. You should forgive him to show your supreme morality.”91 In addition, there were also special cases in the Tang Dynasty that involved a series of appeal cases, that is, a proxy case triggered other proxy cases. In the first year of the Shengong period (697 A.D.), the officer in the Ministry of Punishments Fan Ji was sentenced to death because he was accused of rebelling by some officials dependent on Lai Junchen. “His son appealed his injustice on the court, but no one dared to handle it. Therefore, he stabbed his abdomen by himself with a knife.”92 After that, Liu Rurui, an assistant, cried for this. Junchen accused him of the relationship with the bad party and suggested he should be imprisoned and hanged for death. However, Empress Zetian forgave him and degraded him to Xiangzhou. “Jingzian, the son of Liu Rurui, appealed so that Rurui could go back to his previous position.”93 It can be seen that relatives’ proxy played an important role in Tang Dynasty’s litigation practice, even directly overturning the original conclusion.

4 Summary Appeal is the “advanced” stage of “lodging a lawsuit”, which generally includes stepby-step appeal and direct appeal. In the Tang Dynasty, prisoners and their families were granted the right of appeal. In the imperial edicts and decrees, the right of appeal was emphasized step by step, and the methods and taboos of direct prosecution were clearly defined. Compared with the modern appeal system, Tang Dynasty’s appeal rules focused on the realization of the subject’s appeal and the prohibition of excessive appeal. During the periods of Emperor Taizong and Emperor Gaozong, the appeal system from local to local levels was carried out to a certain extent, and appellate organs such as local prefectures, Shangshu Department and Yu Shi Tai effectively fulfilled their statutory duties. Because the appeal mode designed by Tang Liu Dian is too harsh and costly, many customary rules are gradually formed in litigation practice, which are used in judicial practice for a long time and are recognized by the government and the people. First, the Laws of Tang Dynasty defines the scope of the appeal, the subject of the appeal and the legal liability to impede the appeal in the Tang Dynasty. If the prisoner and his family are not satisfied with the above judgment, they can appeal by themselves. The department that accepted the case should review it. As a local appellate organ, the prefecture undertakes the dual functions of reasoning and communication, and its judicial conclusion may become the direct basis for the subject to appeal to the central law department. In litigation practice, the phenomenon of drowning in prison in local prefectures is more common. In addition to the Shangshu Department,

91

Old Book of Tang, Volume 155, pp. 4114–4115. Zi Zhi Tong Jian, Volume 206, pp. 6513–6514. 93 New Stories of Tang, Volume 12, p. 185. 92

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in the Tang Dynasty, the jurisdiction of central appellate cases was relatively scattered, and both the Censorate and emperors of the Tang Dynasty could accept appeal cases. Since the Zhenguan period, in addition to the statutory officials in Shangshu Department, there have been many cases of accepting appeals by officials in Yu Shi Tai who took part in national affairs, thus forming the practice of a local appellant appealing to rulers of the Tang Dynasty rather than the Shangshu Department. Once such cases are accepted, they can be converted to trial or receive attention from the law department. Both are inevitable outcomes of the separation of administrative and judicial power under the leadership of imperial power. Second, prisoners of the death penalty appealing before execution is a special form of appeal, which is an important way for criminals to raise objections to trial conclusions and often has a direct role in blocking the process of execution of the penalty. On the basis of compassion and prudent punishment, the death penalty should be investigated again by officials. Therefore, it is essential to say that injustice is the ultimate way to appeal. In the Emperor Muzong and Emperor Wenzong periods, the system of appealing before the execution was standardized, and the implementation of the “three trials” termination system was emphasized. They also focused on investigating the judge’s bribery and solving the problem of excessive suspension. If a prisoner was redressed after appealing before execution, he was bound to investigate the original judge’s personal responsibility. Influenced by the belief in ghosts and gods, legendary stories with the theme of dead prisoners appealing prevailed in the Middle Ages, thus reaching a comfort for the angry feelings of the sufferers and constituting a psychological deterrence to the judicial officials. The legends of the Tang Dynasty mostly took unjust cases as the breakthrough point, elaborated the judge’s unjust retribution, warned the world of grief and prison, and showed that only punishment was mercy. This can be a typical example of the infiltration of traditional litigation concepts with litigation systems and litigation practices. Third, appeal by relatives or old friends of prisoners was one of the important ways of appeal. If the prisoner could not hear the injustice because of the execution of the penalty, the relatives and friends became an important subject of the appeal. First, the jurisdiction of representative cases was the practice of division. The prisoner’s relatives and friends had multiple choices at the time of appeal. They could choose to appeal the case step by step, lodge a prosecution to the Censorate, or directly prosecute to the emperor. Therefore, the statutory appeal function of the Shangshu Department was seriously impacted. Second, the defendant had the privilege appeal regardless of the level of the department accepting the case. A prisoner’s personal prosecution was often accompanied by his accusation of the original judge when he stated his claim, which led to the overlap between judicial supervision and appeal. Because there was no strict hierarchical restriction on the prosecutor’s illegal activities, the prosecutor, in the name of exposing the long-term official, additionally put forward the reasons for appeal and used the unfair conclusion of the original trial as evidence to prove the long-term official’s illegal activities. The statutory limitation of the step-by-step appeal was nothing, and the legal liability of the litigant for overstepping the appeal was exempted accordingly, which formed the customary practice of overstepping the appeal procedure concurrently with the disclosure. Third, the limitation of action

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was not strictly restricted, nor was the final instance system formed. If the appellant disagreed with the judgment of the trial, he might appeal in the most effective way at the right time. In the Tang Dynasty, there was a long-standing practice of repeated declaration on the same petition, which was the origin of the contemporary petition and criminal appeal system. The existence of the above litigation conventions shows that the appeal in the Tang dynasty was still in the stage of development and opened the way for the perfection of the later appeal system.

Part IV

Research on Judgment Practice

Chapter 11

Joint Hearing System

1 The Development of Joint Hearing System Joint hearing, a pattern of traditional Chinese trials, can be called Za’an, Zanwen, Zakao or Zali. According to some scholars, joint hearing is a judicial system in which the nobilities, ministers and important criminals who conspire against the state and commit felony are judged by the ministers or their subordinates designated by the emperor.1 However, the nature of joint hearing is still under discussion. Yan Shigu, a historian in the Tang Dynasty, defined joint hearing as “the shared governance among several officials”, which can be interpreted as “interlacement and collegiality”.2 From a historical origin, “joint hearing” has existed in the long term as a customary litigation modality since the Han Dynasty. In the long course of history, “joint hearing” is usually required by the emperor contingently, and there is no specific operation mode to follow. The number of participants with joint hearing is not predetermined, and the members have varying political statuses, from chancellor to eunuch. Briefly, if more than two institutions have delegated representatives to attend the judgment of the same case, then this type of cognizance mode should be called “joint hearing”, whose practical operation and program selection were revised to meet the demand of then judicial environment. The judicial tradition that ministers would join the jury to hear the case, which can only be sentenced by imperial edict, can be regarded as an important reflection of cautious punishment thoughts in ancient China. This demonstrates that the judicial practice of the shared discussion on and cognizance of hard cases has a long history as well. In the Western Zhou Dynasty, the trial of civilian lawsuits was determined through three interrogations: “The first is to interrogate the courtiers, then to ask officials, and the third is to inquire about common people.”3 In the Qing and Han Dynasties, it was essential to adjudicate legal cases by collegiality or “joint hearing”. 1

Research on joint hearing in Tang Dynasty, Collected Papers of History Studies, 1987, 3: 71. Book of Han, Volume 36, p. 1927. 3 Zhou Li Zhu Shu, Volume 35, p. 1076. 2

© Science Press 2021 X. Chen, A Study of Criminal Proceeding Conventions in Tang Dynasty, https://doi.org/10.1007/978-981-16-3041-5_11

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Bamboo Slips of Qin Dynasty’s tombs of Shuihudi-Yu Shu recorded that “One would hold fairness and justice instead of taking arbitrariness in the trial.”4 The Han Dynasty is the prosperous period of joint hearing before the Tang Dynasty. For important cases or nobility and imperial families’ crime behaviors, joint trial institutions constituted by different officials appointed by the emperor will bring them to justice. Moreover, there are distinctions between two patterns of joint hearing: one is held by officials in various departments in the central government, and the other is held by local officials and central officials.5 In terms of litigation practice, institutional origin, staff selection and concrete operation were all directly affected by joint hearing in the Han Dynasty. The imperial court system in the Sui Dynasty, following the joint hearing mode of the Han Dynasty, became the direct source of joint hearing, even the San Si system in the Tang Dynasty. In February of the eighteenth year of the Kaihuang period (598 A.D.), Qianzhou provincial governor Du Gutuo was convicted of witchcraft crime. Emperor Wen ordered “the prime minister Gao Jiong, Na Yan official Su Wei, Dali official Yang Yuan and Huangfu Xiaoxu to hear the case together”.6 During the reign of Emperor Yang in the Sui Dynasty, Hengshan official Wang Wentong and Prime Minister Lang Mao were in a bad relationship. Therefore, when Emperor Yang went on his personal expedition to the eastern and southern parts of Liaoning Province, Wang Wentong framed Lang Mao for forming cliques for private gain and shielding his subordinates to defraud the court. Hence, Emperor Yang appointed Nayan Su Wei and imperial censor Pei Yun to hear the case together.7 In February of the twelfth year of the Daye period (616 A.D.), monk Fang Shi’an predicted that Li would be the emperor and suggested killing all people with the family name Li. Yuwen Shu instigated the case in which Pei Renji reported that Li Hun tried to rebel. As a consequence, the emperor ordered prime minister Yuan Wendu and imperial censor Pei Yun to try the case together.8 During the developmental process of joint hearing before the Tang Dynasty, five objective laws could be discovered. The first is that although joint hearing has been used in the ancient Chinese judicial system for a long time, there is no specific scope, participants or litigation procedure. It belongs to the category of litigation practices considering its nature of law and the running state of the system. The second is that joint hearing, as a mode of the trial on the imperial edict case, was controlled by the emperor directly in participant selection and procedure initiation. The third is that Zongzheng will be appointed to join the trial if the criminal includes imperial clansmen or nobilities. The fourth is that it is common to find the prime minister and imperial censor in the member of the joint hearing system, which can effectively intensify the adjudication supervision function. Finally, most imperial edict cases

4

Bamboo Slips of Qin Dynasty of Shuihudi, p. 15. The research on the assemble hearing system of Qin and Han Dynasties, The Law, 2011, 9: 76–77. 6 Bei Shi, Zhonghua Book Company, 1974, p. 2172. 7 Book of Sui, Volume 66, pp. 1555–1556. 8 Book of Sui, Volume 37, p. 1121. 5

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near the capital would be convicted by central government officials, while local officials were more likely to hear local imperial edict cases. In the early Tang Dynasty, many cases were judged by imperial censors or discussed by chosen ministers. During the Yonghui period in the reign of Emperor Huizong, San Si, a normalized mode of joint hearing, which was composed of the Grand Court, Board of Punishment, and the Censorate, was formed to accept and hear the hard case. According to the New Book of Tang, the San Si system was formed in the Yonghui period: Wu was in power after the Yonghui period, while the punishment system was in chaos. At that time, important cases were taken in charge of the Grand Court, Board of Punishment and Imperial Censors, which combined to form the “San Si” system.9

Judging in the form of a joint trial is one of the methods of enforcement of San Si.10 In the period of Yonghui, the subject scope of joint hearing was relatively narrow, including only the Grand Court, Board of Punishment and Imperial Censors, which were delegated to convict imperial edict cases. To be fair, “San Si Judgment” is an important mark of the standardization of traditional joint hearing, apparently having no direct relation to Queen Wu’s interference in politics and abuse of torture. In the Tang Dynasty, the notion of San Si was very complicated.11 Just for judicial “San Si”, it covers “San Si Shou Shi”, “San Si Tui Shi”, “Upper San Si”, and “Lower San Si”. “San Si Shou Shi” is a standing institution organized by Zhongshu She Ren, Ji Shi Zhong and imperial censors, while “San Si Tui Shi” is an interim institution organized by the Board of Punishment, Yu Shi Tai and Grand Court, accepting hard lawsuits on behalf of the emperor. “San Si Shou Shi” is the Standing Supreme Appellate Body in the Tang Dynasty, established before the Zhenguan period, and would accept important lawsuits under the emperor’s order on occasion. “San Si Tui Shi” appeared in the early year in the reign of Emperor Gaozong, serving as an interim institution for judging important lawsuits, and never received any definite authorization to perform the function of hearing the litigation throughout the Tang Dynasty.12 “San Si Shi” is the result of further development of the San Si system, which is a delegated judicial organ constituting officials of Grand Court, Yu Shi Tai and Board of Punishment. It was divided into “upper” and “lower” levels according to the political statuses of the participants. In Tang Hui Yao: (after the second year of the Jianzhong period) For important cases, the prime minister, the minister of punishment and the official of Da Li Si would jointly hear them, making up the big San Si Shi; and for daily cases, officials of Ministry of Punishments, the Censorate and Da Li Si would be in charge.13

From joint hearing to San Si and San Si Shi, the joint trial system in the Tang Dynasty underwent a long process of evolution. The following section will discuss 9

New Book of Tang, Volume 56, p. 1414. The brief research on San Si of Tang Dynasty, Social Science of Tianjin, 1985, (3): 90–91. 11 Yun MiMan Chao, Volume 7, p. 120. 12 The research on San Si system in Tang Dynasty, Journal of Yunnan University, 2007, (4): 56–62. 13 Tang Hui Yao, Volume 78, p. 1703. 10

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the running state of the joint hearing system, the relation between San Si and joint hearing and features of joint hearing in the Tang Dynasty.

2 Status Change in Joint Hearing System The position of departments performing joint hearing function changed since the San Si system was established. From the early year of the Tang Dynasty to the end of the Kaiyuan period, office holders of Shangshu, Zhongshu and Menxia Departments, especially prime ministers and other important ministers, played vital roles in the joint trial. However, after that, the ripe San Si Tui Shi system became the main way to judge imperial edict cases when the San Sheng system and other departments gradually faded out of the joint hearing system. Prime minister Xun Guishi often attended the trial of imperial edict cases in the Han Dynasty. In the second year of the Chuyuan period in the reign of Emperor Yuan (47 B.C.), censor Liu Xiang was suspected in a case. “Taifu Wei Xuancheng, Jiandafu Gong Yu and a judicial officer were ordered to judge it together.”14 In the second year of the Xiping period (173 A.D.) In the reign of Emperor Ling, the prime minister of the Chen Kingdom Shi Qian reported that former prime minister Wei Yin illegally held the sacrificial worship ceremony with King Min, pursuing the nefarious purpose, and officials suggested the emperor to convict them through joint trial. “Zhongchangshi Wang Pu, Shangshuling and Shiyushi were dispatched to hear the case together.”15 In the joint hearing system in the early year of the Tang Dynasty, San Gong and Prime Minister played the main roles, which inherited the former judicial tradition that high-ranking officials would normally attend the joint trial. In the early Tang Dynasty, Taiwei, Situ and Sikong were called San Gong. Zuo and You Puye in Shangshu Department, Shizhong in Menxia Department and Zhongshuling are all prime ministers. “Since prime ministers were high-powered, the emperor usually appointed several other officials at the same time instead of casually asking one person to be that.” So, “Can Zhi Chao Zheng”, “Can Yu Chao Zheng”, “Can Yi De Shi”, and “Can Zhi Zheng Shi” are names of prime ministers. In the Zhenguan period, Zhong Shu Men Xia Ping Zhang Shi and Tong Zhong Shu Men Xia San Ping served as prime ministers. After the reign of Emperor Gaozong, “The prime minister must serve as Zhong Shu Men Xia Ping Zhang Shi, besides San Gong, San Shi and the minister of Zhongshu Department.”16 The trial on the rebellion of Crown Prince Cheng Qian in the seventeenth year of the Zhenguan period (643 A.D.) was the most famous among Prime Minister Yuan Xun’s judgment experiences:

14

Book of Han, Volume 36, p. 1932. Book of Later Han, Volume 50, p. 1669. 16 New Book of Tang, Volume 46, p. 1182. 15

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On April 1st in that Summer, Cheng Ji delated Crown Prince Cheng Qian to the emperor for his rebellion. The emperor ordered Zhangsun Wuji, Fang Xuanling, Xiao Yu, Li Shiji to try the case with Dali, Zhongshu and Mengxia Departments.17

In the record of New Book of Tang: Biography of Chang Shan Han Prince Cheng Qian, more than eight officials participated in this trial, “the emperor ordered Zhangsun Wuji, Fang Xuanling, Xiao Yu, Li Ji, Sun Fujia, Cen Wenben, Ma Zhou and Chu Suiliang to be in charge of the joint trial.”18 By consulting Ling Yan Ge Directory of 24 meritorious statemen’s official title, Old Book of Tang and New Book of Tang, the following eight officials attended the joint trial, Situ Zhangsun Wuji, Sikong Fang Xuanling, Songguo Gong Xiao Yu, Li Ji, the Minister of War, an official of Da Li Si Sun Fujia, an official of Zhongshu Department Cen Wenben, censor Ma Zhou and Chu Suiliang. Actually, they were not all participants of the joint trial. According to the New Book of Tang, in the thirteenth year in the Zhenguan period, the crown prince Cheng Qian was convicted, and Shidao was punished to accept the demotion because of that trial as well.19 Therefore, the participant from Zhongshu Department in that trial recorded in Zi Zhi Tong Jian was supposed to include Yang Shidao. It has been intentionally neglected in the New Book of Tang, perhaps because he interceded for his wife’s son Zhao Jie, who colluded with Cheng Qian in the rebellion, which irritated the emperor and was demoted to the Ministry of Official Personnel Affairs. Owing to the rebellion of the crown prince and a large number of allies, the participants of the joint trial were all respected, prestigious and highpowered, and the trial itself reached the largest scale in the Tang Dynasty. It has come to realize that trial practices were still following the traditional mode of joint hearing until the middle of the Zhenguan period in the Tang Dynasty and changed in litigation procedure and judge selection compared with the former. In that trial, the residing judges were Daliqin Sun Fujia and other official holders of Zhongshu and Mengxia departments, while Zhangsun Wuji, Fang Xuanling, Xiao Yu, and Li Ji all served on the jury as senior statements. The trial in this case also reflected the exercise of the judicial supervision of the Zhongshu and Mengxia departments. In the Old Book of Tang, the transcript of Jishizhong said that “All important cases should be judged by San Si cautiously and the jury should borrow the experiences of previous cases if the existing accusation was not proper for the case.” In Tang Liu Dian, Volume 13, It is recorded that the case within the jurisdiction of San Si should be convicted by Jishizhong and Zhongshusheren before the final judgment.20

Based on the above research, office holders in San Sheng join in joint hearing practices as a sort of normal judicial practice in the Zhenguan period, and Zhongshu and Mengxia departments were undertaking a more important obligation in this system. 17

Zi Zhi Tong Jian, Volume 197, pp. 6259, 6193. New Book of Tang, Volume 80, p. 3565. 19 New Book of Tang, Volume 100, pp. 3927–3928. 20 Tang Liu Dian, Volume 13, p. 380. 18

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During the reign of Emperor Gaozong and Queen Wu, litigation practices of important ministers’ attendance to joint trials were followed. In the fourth year of the Xianqing period (659 A.D.), Xu Jingzong made a false charge against Taiwei Zhangsu Wuji on rebellion, while Emperor Gaozong gave an order to exile Zhangsun Wuji to Qianzhou as the governor of Yangzhou on April 5th.21 In July of the same year, “Li Ji, Xu Jingzong, Xin Maojiang, Ren Yaxiang and Lu Chengqing were ordered to hear the case of rebellion together.”22 At that time, Li Ji was Si Kong; Xu Jingzong was Zhong Shu Ling; Xin Maojiang was Shi Zhong; Defense Minister Ren Yaxiang and Financial Minister Lu Chengqing were all “Can Zhi Zheng Shi”, improving the litigation of important ministers’ attendance to Joint Hearing. In April of the third year of the Longshuo period (663 A.D.), Prime Minister Li Linfu was sentenced to jail, Emperor Gaozong ordered “Minister of Punishment Liu Xiangdao to judge the case together with San Si, and many crimes were found out. Li Linfu was finally dismissed and exiled to Shangzhou under imperial order.23 ” It is worth noting that although the case was prejudged by the Minister of Punishment, Da Li Si and Yu Shi Tai, Si Kong was still appointed to supervise it. In the second year of the Diaolu period (680 A.D.), Zhengjian Dafu Ming Chongyan was murdered by bandits, while Queen Wu suspected that crown prince Li Xian was behind that killing, “ordered Cui Mi to judge the case with others”,24 and “required Zhong Shu Shi Lang Xue Yuanchao, Huang Men Shi Lang Pei Yan and Yu Shi Da Fu Gao Zhizhou to discuss the case with the judges”.25 To determine the cause of Ming Chongyan’s death, the court initiated two joint hearings, and the office holders of Zhongshu and Menxia took part in both of them. In the second year of the Tianshou period (691 A.D.), the governor of Yazhou Liu Xingshi and his brother were framed by Lai Zixun for rebellion, Queen Wu ordered Shi Wuzi and Lai Junchen to try the case.26 In October of the fourth year of the Chang’an period (704 A.D.), Zhang Changzong asked stargazer Li Hongtai to realize his fate and instigated him to spread the rumor that he should be the emperor in the future. Yu Shi Zhong Cheng Song Jing requested the Queen to arrest him many times, but Queen Wu never permitted it. Si Xing Shao Qin Huan Yanfan also requested the Queen to “order Luan Tai, Feng Ge and San Si to convict them”,27 while Queen Wu did not give a response. After that, Queen Wu required “(Feng Ge Shi Lang) Wei Chengqing, Si Xing Qin Cui Shenqing and Yu Shi Zhong Cheng Song Jing to review the case”.28 Feng Ge is another name of Zhongshu Department, while Luan Tai is Menxia Department and Na Yan is Men Xia Shi Zhong. Those were all renamed by Queen Wu in September in the first

21

Zi Zhi Tong Jian, Volume 200, p. 6314. Zi Zhi Tong Jian, Volume 200, p. 6316. 23 New Book of Tang, Volume 223, p. 6342. 24 New Book of Tang, Volume 204, p. 5806. 25 Book of Tang, Volume 86, p. 2832. 26 New Book of Tang, Volume 114, p. 4204. 27 Book of Tang, Volume 91, p. 2928. 28 Zi Zhi Tong Jian, Volume 207, p. 6575. 22

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year of the Guangzhai period (684 A.D.).29 It is clear that officials of Zhongshu and Menxia departments taking part in judicial practice were still a deep-rooted tradition until the end of the reign of Queen Wu. This indicates the priority of Zhongshu and Menxia departments in the joint hearing system to put them above “San Si”. In the early year of the Kaiyuan period, there were still many cases of joint hearing by officials in the Zhongshu and Menxia departments. In the second year of the Kaiyuan period (714 A.D.), “Lord Xue’s uncle, Wang Xiantong, bullied the civilian and was accused by the censor. Li Ye (Lord Xue) appealed to the emperor’s mercy for him, and the Emperor finally ordered Zhong-Shu and Men-Xia departments to review the case.”30 In the eleventh year of the Kaiyuan period (723 A.D.), minister Wang Jun was on the trial by two prime ministers. According to the New Book of Tang: Biography of Wang Jun, “Governor of Xuzhou, Wang Qiao, was accused of conspiring against the emperor and Wang Jun was involved. Yuan Qianyao and Zhang Yue were designated to interrogate the case, but no evidence was found. Finally, he exiled to Qizhou as the governor.”31 According to the Old Book of Tang: Biography of Emperor Xuan (First), in April of the eleventh year of the Kaiyuan period, Zhang Yue was officially appointed Zhong Shu Ling. The Minister of Official Personnel Affairs and Minister Zhongshan, Wang Jun, became the minister of war at the level of Xia San Pin. Until October, Wang Jun was expelled to be the provincial governor of Qizhou.32 Based on the Old books of Tang and the New book of Tang, Yuan Qianyao was then Shi Zhong; thus, Zhang and Yuan tried the case as the chancellor of the Zhongshu and Menxia departments. In the fourteenth year of the Kaiyuan period (726 A.D.), Prime Minister Zhang Yue was impeached. “Yuan Qianyao, Minister of Punishment Wei Kang, Dali Official Ming Gui and censor Cui Yinfu were appointed to jointly retry the case in the Censorate.”33 Thus, whether the large number of cases that officials of the Zhongshu and Menxia departments participated in imperial edicts prisons from the early Tang Dynasty to the Kaiyuan period, as long as more than 100 years, is a concrete manifestation of the system of “San Si Shou Shi”? The answer is negative. As mentioned earlier, “San Si Shou Shi” is a permanent appealing organ conducted by Zhong Shu She Ren, Ji Shi Zhong and censor, whose main function is to accept lawsuit files. Although it may be ordered to try the case, it is not its due duty. In the cases mentioned above, many senior statements participated personally, but Zhong Shu She Ren and Ji Shi Zhong did not appear to participate in the record, which can sufficiently show that the procedures applicable to these cases are different from those of San Si Shou Shi. It can be considered that after the establishment of the San Si system, the joint hearing rule was still an important way of hearing cases before the “Rebellion of An and Shi”. After the middle of the Kaiyuan period, with the rise of the status of San Si (Shi), the three departments’ officials’ participation in joint hearing cases began to decrease. 29

Book of Tang, Volume 42, p. 1788. Zi Zhi Tong Jian, Volume 211, p. 6696. 31 New Book of Tang, Volume 111, p. 4156. 32 Book of Tang, Volume 8, pp. 185, 186. 33 Zi Zhi Tong Jian, Volume 213, p. 6771. 30

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Apart from the Yuan Zhen case in the first year of the Changqing period (821 A.D.) (Han Gao, Zheng Qin and Li Fengji jointly retried the case) and the fake minister case in the second year of the Dahe period (828 A.D.) in the South Cao Dynasty (Gao Yue, Yan Xiufu and Wei Jingxiu jointly retried the case), it is rarely seen in the record that the officials of the three departments participated in the imperial edict cases’ judgment.

3 Relationship Between Joint Hearing and San Si As we mentioned before, “San Si Tui Shi”, appearing in the Yonghui period in the reign of Emperor Gaozong, was first proposed by prime minister Du You in the middle Tang Dynasty. According to the 24th volume of Tong Dian: An important case was taken in charge of the Grand Court, the Board of Punishment and Yu Shi Tai together, which are combined to form the San Si Tui Shi system. During the reign of Queen Wu, there were many cases of extorting confessions by torture, and many officials were harsh and not merciful. They fought for fame and fortune and framed each other. This was the disadvantage of this system.34

Lei Yao described “San Si An Yu” in detail: The Censor, the Minister of Punishments and the Official of Da Li Si, as well as Shi Censor, Yuanwai of Ministry of Punishments, and Si Zhi of Da Li Si.35

Compared with the traditional joint hearing system, “San Si Tui Shi” is a new type of joint trial to aggregate judicial power. Therefore, the joint trial “as a system began in Tang Dynasty’s San Si Tui Shi”.36 Thus, joint trial as a system initiated from the San Si Tui Shi system in the Tang Dynasty. The first two cases tried by San Si happened in the third year of the Longshuo period (663 A.D.) during the reign of Emperor Gaozong. The New Book of Tang recorded that, “(in February of the third of Longshuo period) Husband of Princess Xin Cheng, Wei Zhengju, was condemned to death.”37 In another volume of this book, this case was recorded in detail: Princess Xin Cheng was the elder sister of Princess Jin Yang. She first married Zhangsun Quan, who was exiled to Xizhou for his crime. Thus, the princess married Wei Zhengjun under the emperor’s order, but the relationship between this couple was not good. After the sudden death of the princess, Emperor Gaozong ordered San Si to try the case and finally sentenced Wei to death. Princess Xin Cheng was buried beside Zhaoling Mausoleum.38

The judicial personnel allocation and trial procedure of this case are not learned, so its historical value is far less than that of Li Yifu in the next month. Therefore, the 34

Tong Dian, Volume 24, p. 672. Yan Yuan Xian Gong Lei Yao, Volume 16, p. 682. 36 The Ancient Chinese Judicial System, p. 111. 37 New Book of Tang, Volume 3, p. 63. 38 New Book of Tang, Volume 83, p. 3649. 35

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Li Yifu case is normally regarded as the first practice of the San Si Tui Shi system in academic circles. On April 2nd of the third year of the Longshuo period (663 A.D.), prime minister Li Yifu was sent to jail for his crime of witchcraft and bribery. Emperor Gaozong required the office holders of the Ministry of Punishments, Da Li Si and Yu Shi Tai to retry the case: The Minister of Punishment Liu Xiangdao, the censor and Dali official were ordered to jointly retry the case. Si Kong Li Ji was required to monitor.39 First, in essence, “San Si Tui Shi” is the product of the development of joint hearing, and the two are closely related. The rule of joint hearing has a long history. The judicial power of the Tang Dynasty was centralized from the traditional division of several departments to “San Si”. The emergence of the San Si system is an important symbol of the increasing standardization of the joint hearing rule. Second, joint hearing and San Si Tui Shi are both trial modes of imperial prison case judgment, which must be implemented by the emperor’s order. In judicial practice, joint hearing and San Si Tui Shi can both serve as a form of first instance case as well as a form of review case. For the choice of procedure or the selection of personnel, the emperor decided on the occasion, and the Tang Dynasty Code did not specify the jurisdiction of “San Si”. Third, from the perspective of the trial method, both joint hearing and San Si Tui Shi take the trial model by several officials, which is the direct origin of the Fall Trial and the Zhao Trial in the Ming and Qing Dynasties. However, after the Yonghui period, the joint hearing was not completely replaced by San Si Tui Shi. Instead, it exerted considerable impact and influence on the San Si system, and the so-called “San Si Tui Shi” system often operated in a different way from the standard. The Old Book of Tang and New Book of Tang, Tong Dian, and Zi Zhi Tong Jian all recorded that Da Li Si, Ministry of Punishments and Yu Shi Tai should be the statutory members of San Si Tui Shi, while the fact was different. The selection and allocation of the so-called San Si Tui Shi was only a matter of principle, and there were large variables in judicial practice. On the one hand, the participants were not only from Da Li Si, Ministry of Punishments and Yu Shi Tai; those from other departments can also be called “San Si”. In practice, “San Si Za An”, “San Si Can Ju”, and “San Si Za Li” were often expressed. As a trial mode of imperial edict cases, there was no essential difference between joint hearing and San Si. Most of the cases were tried in the form of joint hearing. Even if the name was called “San Si”, we should not take the words too literally and simply consider that it refers to Da Li Si, Ministry of Punishments and Yu Shi Tai. In the sixth year of the Tianbao period (747 A.D.), the minister of punishment Xiao Yinzhi, the official of Da Li Si Li Daosui, minister Yang Shu, Shi censor Yang Zhao and Lu Xuan jointly interrogated the case of Yang Shenjin. For this case, the judges were indeed from “San Si”, while the historical records did not define it as “San Si”, perhaps for the large number of judges, which made it more like the mode of joint hearing. On the other hand, the personnel allocation of San Si may not be as complete as the standard. In the spring of the second year of the Zhide period in the reign of Emperor Suzong (757 A.D.), Du Fu reported to the throne that Fang Guan was a 39

Zi Zhi Tong Jian, Volume 201, pp. 6334–6335.

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great man and a competent prime minister and said it was ridiculous to unmake his position. “The emperor was in a rage and ordered San Si to convict him.”40 The Old Book of Tang: Biography of Wei Zhi recorded that “Cui Guangyuan, Wei Zhi and the minister of punishment Yan Zhenqing jointly heard the case.”41 According to the judges of the “San Si”, officials from Da Li Si were actually absent. It is nominally “three divisions”, but this is not the case. In the same way, in the second year of the Zhide period, the personnel of the San Si who tried the pseudoofficers were still to be discussed. According to the Old Book of Tang: Criminal Law, “Most of the scholar officials from Chang’an and Luoyang were threatened and went to the court together with sin. The officials in charge of the incident wanted to use heavy punishment to legislate, so they ordered to kill all the generations of their families to give demonstrations to the people. After a long period of deliberation, it is still impossible to determine the personnel of the San Si. It was handled by Li Xian, Lu Zhen, Cui Qi, Han Zemu and Yan Xiang.42

About how the above five people formed the “San Si Shi” to try the case, the New Book of Tang: Biography of Lv Yin recorded like this, “Cuiqi, Han Zemu and Yan Xiang were appointed to be “San Si Shi” to try the case. Li Xian and Lv Yin carried it out.”43 Here, the task assignment of Li Xian and Lu Yin was the same as that of Li Ji’s trial of the Li Yifu case. The setting of San Si Shi has not completely subverted the inherent historical tradition of mixed interrogation by various departments. The “San Si Shi” was still subject to many restrictions as an independent institution. A more extreme example is that when none of the members who participated in the trial came from Da Li Si, Ministry of Punishments, and Yu Shi Tai, it was also called “San Si Shi”. According to Zi Zhi Tong Jian, Volume 242: Wang Tingcou besieged Niu Yuanyi in Shenzhou. A person named Yu Fang wanted to use a good strategy to plan matters. So, he told Yuan Zhen that Wang Zhao and Wang Youming were quite familiar with the bad party. They could save Niu Yuanyi by it. In addition, they bribed the officials to ask them to fake documents to wait for an opportunity to reward. Yuan Zhen agreed with that. A person named Li Shang knew the conspiracy of Yu Fang, so he told Pei Dushi that Yu Fang was on the side of Yuan Zhen and tried to kill Pei Du with Wang Zhao. Pei Du kept silent with the secret until the captain of the army told him the same thing. In Dingsi, the emperor required “San Si” to ask Han Gao and other people to hear the case... There was no evidence of the plan of killing Pei Du. In June, both of them were dismissed. Yuan Zhen was appointed the governor of Tongzhou, Pei Du was appointed the right servant, and Li Fengji was appointed the assistant minister.44

The content described above is based on the “San Si” to try the case in which Yuan Zhen sent people to kill Pei Dushi. The incident can be found in relevant documents. Ce Fu Yuan Gui said, “The emperor issued the order for strict interrogation. There was no evidence, but past things were found out, so both Pei Du and Yuan Zhen were 40

New Book of Tang, Volume 201, p. 5737. Book of Tang, Volume 92, p. 2961. 42 Book of Tang, Volume 50, p. 2151. 43 New Book of Tang, Volume 140, p. 4649. 44 Zi Zhi Tong Jian, Volume 242, pp. 7817–7818. 41

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dismissed.”45 Similarly, in the Old Book of Tang and New Book of Tang, there are also some clear records of members of the San Si. In the New Book of Tang: Biography of Li Fengji, the Emperor appointed Han Yu to interrogate Fang with Zheng Tan and Li Fengji in the incident. He believed that his behavior was not correct and Yuan Zhen and Yu Du were dismissed.46 In the Old Book of Tang: Biography of Peidu, “The emperor ordered Han Gao, Zheng Tan and Li Fengji to interrogate the case.”47 In the New Book of Tang: Biography of Yuanzhen, “The emperor asked Han Yu, Zheng Tan and Fengji to try the case. Li Fengji was working in the position of Shangshu.”48 Therefore, the members of the “San Si” responsible for this case were Han Yu, Zheng Tan and Li Fengji. In other words, it has nothing to do with the so-called San Si members stipulated by law. In the second year of the Dahe period (828 A.D.), a case of pretending official occurred. Emperor Wenzong “required Yan Xiufu, Gao Yue and Wei Jingxiu to form the San Si to interrogate.”49 This still did not meet the institutional requirements of “San Si”. This shows that historical officials believed that judicial institutions composed of three institutions other than judicial institutions such as Da Li Si could also be called “San Si”. The trial activities carried out by such “San Si” were also called “Za Zhi”, “Can Ju”, and “An Ju”. It can be said that the temporary auditing organization consisting of three officials from Da Li Si, Ministry of Punishments and Yu Shi Tai is the most standardized mode of “San Si Tui Shi”. If the officials of these judicial institutions replace the judges of “San Si”, then their duties are equivalent to “Za Zhi”. That is, from the period of Yonghui to Kaiyuan, the trials of San Si also experienced the process of changing from litigation practice to the law. In the long-term operation, because of the conceptual intersection between the “San Si” and “Za Zhi”, the members of the “San Si Tui Shi” should not be rigidly attached to the surface of the text, and it is not allowed to carry out the document in the name of “San Si”. The trial activities were considered to be a joint trial conducted by three officials of Da Li Si, Ministry of Punishments and Yu Shi Tai. The phenomenon of trials by bureaucrats in different historical stages of the Tang Dynasty should not simply be attributed to judicial chaos caused by political corruption, nor should it be taken as an excuse to deny judicial practice by law. If tracing back, its root cause is that the practice of “joint hearing” continued to affect.

45

Ce Fu Yuan Gui, Volume 934, p. 10,824. New Book of Tang, Volume 174, p. 5222. 47 Book of Tang, Volume 170, p. 4426. 48 New Book of Tang, Volume 174, p. 5228. 49 Book of Tang, Volume 176, p. 4563. 46

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4 Characteristics of the Joint Hearing System 4.1 Joint Hearing System Dominating Judgment in the Tang Dynasty As the first important case to be tried in the form of three judges, the trial of the Li Yifu case in the second year of the Longshuo period (662 A.D.) was restricted by the supervision of Si Kong, Li Ji. In the Tang Dynasty, Si Kong was equivalent to the current adviser and would be involved in anything. Although Li Ji may not have tried in person, the senator’s presence in the judgment naturally has an important influence on the final trial process and results. Throughout the litigation practice of the Tang Dynasty, it is rare to see a “San Si Tui Shi” composed of three officials from Da Li Si, Ministry of Punishments and Yu Shi Tai. At present, only the retrial of the case of robbery in Fengxiang Mafang in the second year of the Qianyuan period (759 A.D.) can be found (the judges are the censor Cui Boyang, Ministry of Punishments official Li Ye, and Da Li Si official Quan Xian). In the twelfth year of the Zhenyuan period (796 A.D.), the case of Lu Nanshi (Chen Zhengyi, a judge of Da Li Si, Pei Ling, an official of the Ministry of Punishments, and censor Zheng Chuxiang) is also an example. Apart from that, in the fourth year of the Kaicheng period (839 A.D.), the case of the brother of Queen Xiao was heard by San Si as well (Judged by Dali officer Cui Lian, Minister of Punishment Sun Jian, censor Gao Yuanyu). The gradual fading out of the “Shou Shi San Si” and the embarrassing situation of the “Tui Shi San Si” in the field of adjudicating the cases of imperial court were derived from the continuing effect of the traditional practice of misrule. During the years from the Zhenguan period to the Wuzhou period, the new regulations and old systems ran into each other, and the practice of joint hearing still existed in large numbers. In the Kaiyuan period, the San Si system gradually matured, and its operation was relatively stable. However, in practice, there were many problems that were not worthy of the name. The joint trial in the Tang Dynasty showed more legacy traditional joint hearing practice. In practice, the Zhongshu Department, Menxia Department and elderly ministers often participated in the trial. If the case involves powerful ministers and nobles, it is necessary to take corresponding measures according to the actual situation, breaking through the “San Si” restrictions and adhering to the practice of joint hearing as a guideline. In the twelfth year of the Dali period (777 A.D.), Liu Yan, the Minister of Official Personal Affairs, tried the prime minister Yuanzai. “Liu Yan was afraid of Yuanzai’s power and influence and dared not interrogate alone. The emperor ordered Li Han and five others to try together with Liu Yan.”50 The list of people who participated in the trial of Yuan Zai is recorded in the Old Book of Tang: Biography of Liu Yan, as follows: “Li Han, the imperial censor, Xiao Xin, Yuan Rang, the Minister of War, Chang Gu, and Du Ya”,51 which was similar to 50 51

New Book of Tang, 149, p. 4795. Book of Tang, 123, p. 3514.

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the description of another article in the same book.52 It was further recorded that both Zai and Jin were convicted of their crimes after the eunuch inquest.53 That is, after joint hearing by ministers, there were interrogations by eunuchs. There were seven people in the trial of Yuan Zai’s case. In any case, the trial is far from the provisions of the three divisions. If the subject is special, the emperor can also assign officials of relevant authorities to attend the joint hearing procedure. In the thirteenth year of the Zhenyuan period (797 A.D.), Lu Boda reported that a monk of Xuanfa Temple had been complained of by many monks in the temple. The censor, Cui Yan and Jing Qian listened to the slanders of the monks and framed Lu. Emperor Dezong ordered Yuwen Miao, Zhang Yi, the officer of Ministry of Punishments, and Zheng Yunkui, the officer of Da Li Si, to serve as San Si Shi, and the officer of Gongde Institution, and Zhuge Shu, the governor of Quzhou, together with Shangshu Department, to hear the case.54 Gongde Institution was the monk and nun’s management institution in the Tang Dynasty, recording the name of and offering the service to monks and nuns. The judge is its secondary function. Tang Hui Yao recorded that “In February of the second year of the Yuanhe period, monks, nuns and Taoists were ordered to be managed by the Gongde envoys of the left and right six streets in Chang’an city. From then on, the official of the Ancestral Temple Department of the Ministry of Rites no longer managed them.55 The case involves monks, so the emperor chose officials from this department.

4.2 Yushi Tai Being Very Superior in the Joint Hearing System Since the Yonghui period, “San Si” became increasingly important, but the imperial Censorate was in a prominent position and would certainly take part in all major cases. This tradition went down to “Rebellion of An and Shi”. The basic reason is that the “Joint Hearing” and “San Si Tui Shi” were all due to imperial edict prison, bearing the orders of the Emperor, and censors served as the ears of the Emperor. It was fully reasonable to convict the imperial edict prison case on the basis of the investigation results made by the censors, which fully reflected the direct control of the imperial power over justice. In the aforementioned case of Li Yifu and other cases during the reign of Emperor Gaozong, censors were involved in all of them. On the other hand, as a permanent member of the government, officials of the Censorate, sometimes taking orders of the emperor or the nobility, even played a negative role in torture and the conviction of the crime. 52

Book of Tang, 146, p. 3963. Book of Tang, 118, p. 3413. 54 Ce Fu Yuan Gui, 619, p. 7156. 55 Tang Hui Yao, Volume 50, Miscellany of Yushi Tai Zhong, p.1031. 53

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In May of the fourth year of the Tianbao period (745 A.D.), Li Linfu had a conflict over power with Li Shizhi and Zhang Ji. “So, Li Linfu ordered people to say that the officials in charge of the military election had taken bribes. More than sixty people were arrested and handed over to Jinzhaofu and the Censorate for trial.”56 In November in the sixth year of the Tianbao period (747 A.D.), when Li Linfu falsely accused Yang Shenjin, the minister of the Financial Department, of being rebellious and blaming the emperor for imperial governance, Emperor Xuanzong was furious. “He ordered Yang Shenjin to be detained in Shangshu Department, and ordered Xiao Yinzhi, an official of Da Li Si, Li Daoyin, Yang Xie, Yang Zhao, and Shi Luzhen, two censors, to jointly hear the case.”57 The number of censors who participated in the trial increased to two. After the incident, there were still a number of officials from the Censorate who were involved in the joint hearing practice. In April of the second year of the Qianyuan period (759 A.D.), the wife of the prisoner of the case of Fengxiang Qimafang appealed three times, and the emperor sent officials to hear the case three times. Sui Yin heard the case at the beginning and declared Xie Yifu’s innocence. His wife appealed again, and this time, Cui Boyang, the censor, Li Ye, the minister of punishment, and Quan Xian, the officer of Da Li Si, jointly heard the case. However, the result of the interrogation was the same as that of Sun Ying. His wife complained incessantly, and with the help of Li Fuguo, Mao Ruoxu tried the case again. Mao falsely convicted Xie Yifu. At this point, his wife stopped appealing.58 In October of the first year of the Jianzhong period (780 A.D.), Xue Yong took the bribe and the emperor ordered Yu Shao, minister of rites, together with Yuan Gao, the censor, and Jiang Zhen to jointly hear the case.59 Among those three judges, only one met the criterion of the joint hearing system, coming from the Censorate. In the middle and late Tang Dynasty, the Censorate also played an important role in the struggle against the forbidden army to seize judicial power. In April of the ninth year of the Yuanhe period (814 A.D.), Wei Yue accused Li Wei of gathering necromancers to rebel, and Gao Chongqian reported to the emperor that things had changed and took Li Wei to the court for interrogation. Kong Kui suggested that Li Wei should not be detained in the palace for his crime and hope to deliver him to the relevant departments. The emperor handed the prisoner to the Censorate. Kong Kui and San Si tried together and found no evidence of Li’s rebellion. As a result, Wei Yue was killed for framing, while Li was demoted to be the official of Jizhou.60

56

Zi Zhi Tong Jian, Volume 215, p. 6864. Book of Tang, Volume 105, p. 3227. 58 New Book of Tang, Volume 131, p. 4505. 59 Book of Tang, Volume 137, p. 3766. 60 New Book of Tang, Volume 163, p. 5009. 57

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4.3 The Gradual Decline of the Status of the Joint Hearing System in the Middle-Late Tang Dynasty The San Si Tui Shi system in the Tang Dynasty was the direct result of the long-term development of the joint hearing practice of officials and was the inevitable choice of the gradual concentration of judicial power. Since the Kaiyuan period and the Tianbao period, the San Si Tui Shi system has gradually matured. Since the retrial of the case of appealing by the wife of the criminal of Fengxiang Qimafang in the second year of the Qianyuan period (759 A.D.), there were several cases in which judges were appointed strictly according to the standard of San Si Tui Shi. In July of the fourth year of the Yuanhe period (809 A.D.), Li Yijian, the censor, impeached Jing Zhaoyin Yang Ping, saying that he had committed the crime of corruption as an official of Jiangxi. The emperor “ordered the Censorate to investigate the matter, and at the same time ordered the minister of punishment Li Yong, and the official of Da Li Si Zhao Chang to interrogate it together”. The case of Yang Pin was first revealed by the censor and then heard by the censor, which was exactly involved with the censor. In the fifth year of the Yuanhe period (810 A.D.), Du Ya falsely accused general Linghu Yun to smuggle and steal military materials, and Emperor Xianzong “ordered Li Yuansu to try the case together with Cui Congzhu and the Da Li Si official Lu Shizhan”.61 In February of the eighth year of the Yuanhe period (813 A.D.), Zimin dismembered a family slave of Liang Zhengyan. Emperor Xianzong “ordered Xue Cuncheng, Wang Bo, minister of punishment, and Wu Shaoyi, an official Da Li Si, to hear the case together”.62 In April of the first year of the Baoli period (825 A.D.), Cui Yuanlue received many bribes and was impeached by Xiao Che, a censor. “The emperor ordered Zhao Yuanliang, Wen Zaochong and a Da Li Si official to make up the San Si to jointly hear the case.”63 Xiao Ben of Fujian and the governor of Jinjiang County Xiao Hong pretended to be Queen Xiao’s younger brothers. In July of the fourth year of the Kaicheng period (839 A.D.), Emperor Wenzong “ordered Gao Yuanyu, Sun Jian and Cui Yu to hear the cases, proving that they were both fakes”.64 In the middle and late Tang Dynasty, it was normal for Da Li Si, Ministry of Punishments and the Censorate to hear cases of imperial edicts and prisons under the name of “San Si”. Compared with the increasingly perfect San Si system, although the practice of joint hearing had been applied for a long time, it had the crux of ambiguous nature and arbitrary members. Therefore, under the condition that the “San Si” system was becoming increasingly developed, there was a tendency to choose “San Si” before “joint Hearing” in the selection of judicial organs. The most prominent example is the procedure selection of trial ministers in the “Ganlu Incident”. 61

New Book of Tang, Volume 147, p. 762. New Book of Tang, Volume 172, p. 5200. 63 Book of Tang, Volume 163, p. 4261. 64 Book of Tang, Volume 52, p. 2202. 62

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In the Ganlu Incident, all the officials to try the case of Li Xun were Shen Ce Army. Emperor Wenzong asked Chu and Zheng to meet in the Palace, and Chu suggested that it was San Si or joint hearing that could deal with the case involving ministers but not the forbidden army. The emperor agreed and made the imperial edict to declaim that Wang Ya and Jia Su were wronged, which complained of Qiu Shiliang.65

Linghu Chu believed that, according to the provisions of the law, the San Si Tui Shi system should be the first choice for the trial of important ministers. In other words, it should also be handed over to various ministers and officials in accordance with the joint hearing practice, and the forbidden army commanders had no right to detain court officials. At that time, the forbidden army was arrogant, and the situation was pressing. The relation between eunuchs and ministers was very tight. Under such circumstances, Linghu Chu could still turn the tide by using his words, which obviously revealed the important position of the San Si Tui Shi system. The judicial tradition of adjudicating imperial edicts and prisons by means of joint hearing changed quietly under the condition of the increasingly perfect system of San Si. It is worth noting that after the Tang Dynasty, joint hearing continued to be used in judicial trials. In November of the sixth year of the Xiande period (959 A.D.), Xu Yanzhen falsely accused Zhong Yunzhang of rebellion. Gong Chengshu and Li Tuo testified together. The emperor “arrested Zhong Yunzhang and detained him in Hanzhang Building, ordering the eunuch and Xue, the minister of rites, to interrogate him together”.66 On April of the eighth year of the Xining period of Emperor Shenzong in the Song Dynasty (1075 A.D.), Zhu Tang accused former Yuyao County’s Chief Secretary Li of rebellion, involving General Shi Ju and the government official Xu Ge. The Emperor ordered Deng Guan, Fan Bailu, and Xu Xi to jointly hear the case. Finally, these people were convicted, Shi Ju was sentenced to death, and others were punished.67 In December of the second year of the Zhida period during the reign of Emperor Wuzong (1309 A.D.), a Wuchang woman, Liu appealed to the Censorate, claiming that a slave had seized a jade seal, a gold chair and two night-bright pearls that she had purchased. The emperor “ordered the minister of Shangshu department, a censor, and other ministers to jointly hear the case”.68 In Ming history, there was also a record of the joint hearing held by the prime minister and the censor.69 Throughout the past dynasties, the selection of judges and the trial processes were not different from that of the Tang Dynasty. The objective fact that the practice of joint hearing existed independently in a long historical period can also be proven.

65

New Book of Tang, Volume 166, p. 5100. Zi Zhi Tong Jian, Volume 294, p. 9605. 67 History of Song Dynasty, Volume 15, p. 288. 68 History of Yuan Dynasty, Volume 23, p. 520. 69 History of Ming Dynasty, Volume 139, p. 3997. 66

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5 Summary Joint hearing is one of the traditional forms of joint trials in China. From a historical perspective, since the Han Dynasty, “joint hearing” has been put into practice for a long time. In the long historical period, joint hearing should be carried out temporarily by the emperor, its operation mode basically followed the practice of the former dynasty, and there was no custom to follow. In the Zhenguan period, joint trials among ministers were followed, in which San Gong and Prime Ministers were important participants. The San Si Tui Shi system formed in the Yonghui period in the reign of Emperor Gaozong is an important symbol of the normalization of joint hearing. Compared with traditional joint hearing practice, “San Si Tui Shi” is a new mode of joint trial of aggregated judicial power. The source of San Si Tui Shi was clear, so it was a new method of joint judicature. The Big and Small “San Si Shi” were the product of further development of the San Si system. Taking the formation of San Si as the boundary, the status of Tang Dynasty departments participating in joint hearing was always changing. From the beginning of the Tang Dynasty to the end of the Kaiyuan period, the officials of the Shangshu, Zhongshu and Menxia departments, especially important ministers, played an important role in participating in joint hearing. By the end of the Kaiyuan period, the mature “San Si Tui Shi” system became the mainstream method of the trial on imperial edict cases, and their influence gradually faded out of the field of joint hearing. After the Yonghui period, the practice of joint hearing was not completely replaced by “San Si Tui Shi” but rather had a considerable impact on the “San Si” system. The so-called “San Si Tui Shi” was often embarrassed by their fame. The provisional judicial organ composed strictly of one official from Da Li Si, Ministry of Punishments and the Censorate was the most standardized personnel allocation mode for San Si Tui Shi. The meaning and function of the San Si system were closer to that of the joint hearing system if the officials heard the case on their behalf. In other words, from the foundation in Yonghui to the customization in Kaiyuan, the San Si Tui Shi system experienced the process of transforming from litigation conventions into laws and regulations. In a complete sense, San Si Tui Shi, composed of three officials coming from, namely, Da Li Si, Ministry of Punishments and the Censorate, was rare. The gradual fading out of the “Shou Shi San Si” and the embarrassment of the “Tui Shi San Si” both originated from the objective existence of traditional joint hearing practice. After the Yonghui period, “San Si” became increasingly important, but the Censorate was prominent and participated in judgments of all difficult cases. Compared with the increasingly perfect San Si system, although the practice of joint hearing had been applied for a long time, it had the crux of ambiguous nature and arbitrary members. Therefore, under the condition that the “San Si” system was becoming increasingly developed, the tendency of choosing “San Si” before “joint hearing” appeared gradually in the selection of judicial organs. A large amount of evidence shows that after the Tang Dynasty, joint hearing was still in use for a long time and occupied a place in the ancient system of trial. The objective facts of the existence of joint hearing in a long history can also be proven.

Chapter 12

Discussion

Judicial assembly discussion was a special adjudication rule in the Tang Dynasty for deciding accurate sentences and punishments to some vital or controversial complex cases by disputes between many governmental officers assembled by the emperor. Based on the analysis of controversial issues and understanding of social values and orders, it functions to supplement laws for promoting the judicial process. The extensive range of Tang imperial ministration policies is addressed in the discussion, such as ceremony, ritual, military, conquer war, posthumous title, Buddhism and Taoism, currency and merchandise, tax, corvee, rewards and punishments, imperial examination, schooling, etc. Among these topics, doubting and discussing some key cases is one of the important procedures of assembly discussion. Historically, the discussion about cases by governmental officers emerged in the Western Zhou Dynasty, and then it initially developed in scale in the Eastern and Western Han Dynasties. Xu Daolin once mentioned, “If there are some doubts about cases in the Tang Dynasty and judges cannot reach an agreement, then they will apply for discussion for judgment. That is, the suspect is innocent according to official laws but should be punished in terms of social values and etiquettes. The final decision will be made by assembly discussion. This kind of judicial system is based on human beings’ wisdom and emotion, which does limited assistant function of law scripts.”1 The assembly discussion of the Tang Dynasty, extensively applied in sentencing, conflicts between law and morals, policymaking and other fields, is a crucial way to deal with cases by collecting group intelligence in judicial practice. With regard to the doubtful and difficult cases, the government officers who attend the assembly discussion should consider and plead for citizens’ concerns, and the sentence should be authentically accordant with philosophy and righteousness. The case can be accurately judged by the discussion based on investigating and referencing classical philosophy, etiquette and law. Moreover, the model of discussion can provide the function of being precedent in the judicial system, which is also 1

Introduction to Laws of Tang Dynasty, Zhonghua Book Company, 1945, p. 55.

© Science Press 2021 X. Chen, A Study of Criminal Proceeding Conventions in Tang Dynasty, https://doi.org/10.1007/978-981-16-3041-5_12

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effective directly in similar cases in the future. Therefore, the value of assembly discussion is not limited to the decision of a single case but often becomes juridical practice through typical legal precedent, which has an ever-lasting effect on lawsuit practice.

1 Discussion of Difficult Cases “Conviction should consider the fact and people attend deliberation are hopefully to investigate the truth.”2 Discriminating the doubtful conviction is the essential function of the deliberation process. In the Western Zhou Dynasty, the primary model of judicial democracy was developed, supporting assembly discussion for the trial of complex and disputed cases. Kong Yingda refers to “the doubtful cases are those difficult to judge…if a single person has confusion about the conviction, but the decision cannot be made surely, it should be discussed by the public…if all people are puzzled about it, the suspect should be released…”3 In a word, conviction and measurement of penalty are two main aspects of these cases. With socioeconomic development, juridical practice has become increasingly complicated, and issues related to various aspects need to be discussed. There are three types of disputed conviction.

1.1 Crime and Non-crime During the Zhenguan period of the Tang Dynasty, the environment of administration of justice was comparatively free from corruption. Assembly deliberation was conducted to accurately determine the nature of some disputed complex cases, which provided references for the following application of laws. In August of the ninth year of the Wude period (626 A.D.), Zhangsun Wuji, the chief of personnel minister and deputy honorable general, was called in by the emperor. He entered the inner palace with the walking sabre. His deputy servant argued, “The lieutenant responsible for the gate did not notice it, so he should be sentenced to death; and Wuji mistakenly brought the sabre should be fined 10 kg copper.” Zhangsun Wuji’s action of bringing a sabre to enter the gate was linked together with the lieutenant’s negligence of duty. Therefore, the focus of this case is whether there were differences between the two people. According to “entering the palace and the gate” of Analysis of Laws in Tang Dynasty-Duty, “Those who enter the inner palace should be sentenced to be hanged; those who hold a weapon to meet the emperor should be sentenced to be beheaded.”4

2

Ce Fu Yuan Gui, Volume 474, p. 5370. Li Ji Zheng Yi, Volume 13, pp. 481, 484. 4 Comments on Laws of Tang Dynasty, Volume 7, p. 151. 3

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Zhou Dai, the official of Da Li Si, refutes that both Zhangsun Wuji and the lieutenant have faults subjectively, so both should be punished according to law.5 Emperor Taizong agreed with Dai’s opinion and ordered to discuss the case. Feng De Yi still sticks to his own opinion. Dai thinks that if he is to be executed because of the fault of others, the penalty is too heavy. If it is from their faults, then the situation of the two is the same. In the end, Emperor Taizong dismissed the death penalty of the lieutenant. The whole trial process of this case is unknown, and only after two rebuttals by the governors of Shangshu Department and Da Li Si can the crimes of this case be accurately determined. This case mainly involved legal matters, so it is easy to determine its nature. After the Rebellion of An and Shi, the eunuchs were arrogant and imperious since they took charge of the imperial guard. The emperor feared that the eunuch was too powerful and that the history of the eunuch’s assassination of the emperor was still vivid, so he had the idea of weakening the eunuch. Emperor Wenzong chose Song Shenxi to conspire to weaken the eunuch, but the matter was let out to eunuch Wang Shoucheng by Wang Fan. On February 29th, in the fifth year of the Dahe period (831 A.D.), Wang Shoucheng reported that he had been reported by the captain Dou Lu, exposing the coup plotted by Prime Minister Song Shenxi and Lord Zhang and ordering the arrest of Song Shenxi.6 After the incident, Wang Shoucheng immediately sent troops to hunt down Song Shengxi and tried to kill his whole family. Ma Cunliang suggested proposing a meeting of ministers; thus, all the ministers were summoned to Yanying Palace, Lu Sui, Li Zongming and Niu Zengru to Zhongshu Department. Due to the despotic power of eunuchs, the injustice of this case was not corrected through the assembled deliberation: When the Prime Minister arrived at Yanying Palace, Emperor Wenzong took out Wang Shoucheng’s recitation and let the ministers look at it. The prime ministers were shocked and looked at each other. Emperor Wenzong ordered Wang Shoucheng to arrest Yan Jingze, the official in charge of the sixteen imperial houses falsely accused by Dou Lu, and Wang Shiwen, a close servant of Song Shenxi, to be taken to the palace for trial by eunuchs. Wang Shiwen fled after hearing the news. In March, Song Shenxi was dismissed from the prime minister’s office and served as the prince’s You Shu Zi. From the prime minister to the ministers, few people dared to write a letter to defend Song Shenxi. Only Jing Zhaoyin Cui and Dali Qing Wang Zhengya successively drew attention and asked for the results of the court trial to be submitted to the imperial station for review. Thus, the eunuch heard a slight slowdown in the trial.7

Song Shenxi’s “rebellion” was in vain. After the day of the incident, Emperor Wenzong first called three prime ministers to Yanying Palace for deliberation, and then after the judicial trial, convened fourteen people below Shibao to hold a meeting, effectively preventing the deterioration of the situation and harming innocent people, and to a certain extent, safeguarded the social rule and law. At the end of the epoch, chaos ensued, and assembled deliberation still played an important role in overcoming injustice and saving non-crimes. In March of the ninth year of the Dahe period 5

Book of Tang, Volume 70, p. 2532. Book of Tang, Volume 17, p. 540. 7 Zi Zhi Tong Jian, Volume 244, pp. 7875–7876. 6

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(835 A.D.), Yu Weiyuan was reported for what he had done in the facets of tax and so on. The emperor ordered the officials from the Shangshu Department to discuss. The participants thought that “Yu Wei changes the amount of taxes and does not levy extra taxes. Despite the bad harvest, people live and work in peace and contentment. Luckily, they met the brilliant emperor and were able to recover their grievance.”8 Emperor Wenzong affirmed Yu Wei’s achievements, and his subordinates and the county governor were restored to their posts.

1.2 This Crime from that Crime Rebellion is the most serious crime in the feudal period. In judicial practice, because criminals adopt different ways of behavior, it is often confused with crimes such as “rumor-mongering and writing rebellious books” and “accusing the emperor”. Based on the concept of cautious punishment, the assembled deliberation procedure of the Tang Dynasty has been set up many times in judicial practice to correctly distinguish the suspected acts related to rebellion. In September of the eighteenth year of the Zhenguan period, Zhang Zhongwen in Maozhou declared himself to be the emperor and claimed that his fellows were officials. Dali official thought he denounced the emperor. Although it was amnesty, he still had to be sentenced to death. Wei Ting, the Minister of Punishment, proposed that the crime committed by Zhongwen was merely evil words to deceive the public.9 Now that it was amnesty, death should be exempted according to the law. Emperor Taizong quoted the trial of Wu Zhilang in Huaizhou in the fifteenth year of the Zhenguan period (641 A.D. and believed that Zhongwen should be sentenced to death to criticize the emperor. Later, Zhang Liang, Minister of Punishment, reported again, and Zhongwen was finally punished for his evil words. According to Tang Lv Shu Yi, “Those who denounce the emperor and who cause serious harm will be put to death, and two years’ imprisonment for no serious harm.”10 To denounce the emperor is an improper speech act of the ministers, because it has nothing to do with ghosts and gods, it is fundamentally different from heresy. In essence, the performance of claiming to be an emperor is absurd, and then the appointment of officials was absolutely caused by evil words. In addition, because Zhongwen was young, he was granted forgiveness in accordance with the special articles in the laws of the Tang Dynasty.11 In March of the twentieth year of the Zhenguan period (646 A.D.), warlock Cheng Gongying said Zhang Liang’s name revealed the meaning of emperor and his sleeping posture is like a dragon. Their words were shopped by Chang Dexuan. Emperor Taizong required all ministers to discuss how he should retry Zhang Liang. Most 8

Ce Fu Yuan Gui, Volume 474, p. 5370. Tang Hui Yao, Volume 39, p. 827. 10 Comments on Laws of Tang Dynasty, Volume 10, p. 207. 11 Comments on Laws of Tang Dynasty, Volume 4, pp. 80–84. 9

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people said that Zhang Liang should be executed. Only Li Daoyu said that Zhang Liang’s words and deeds were not rebellious and should be released without guilt.12 According to the Comments on Laws of Tang Dynasty, “As for the rebellion, those although words failed to incite the masses and did not cause much influence, who conducted many subordinates were still to be executed.”13 “Ti You Xiu Zheng” means that one dares to say that himself or others have the emperor’s temperament, which could be regarded as an inherent quality. Zhang Liang’s actions can be regarded as a crime disturbing the social order via disrespectful words. At that time, the emperor convicted him of rebellion and executed him for the farfetched reason that he had conducted 500 disciples and confiscated all his family property. Actually, both “rebellion” cases mentioned above disturbed the social order via disrespectful words in essence. Zhang Zhongwen was finally convicted for Wei Ting’s reports. Although Zhang Liang was falsely executed, Li Daoyu’s words of defense were eventually approved by Emperor Taizong after the incident. Both of them were correctly defined by the assembled deliberation, which reveals the value of this system in avoiding injustice.

2 Discussion of Sentencing 2.1 Death Penalty The most important penalty is the death penalty. In the Zhenguan period, the system of death penalty collection and the check-report-approval system were established. The former mainly discusses whether the death penalty should be applied, and the latter focuses on the supervision of the death penalty. The death penalty assembly is an important embodiment of the concept of cautious punishment in the Tang Dynasty, and it provides a guarantee for the implementation of the policy of “leniency and fairness in punishment”. In judicial practice, when the preliminary death penalty cases have been assembled, there are many cases of commutation and banishment under the premise of strict law enforcement. During the Zhenguan period, the death penalty assembly rules were well implemented, and many death penalty cases were processed by the collective discussion of ministers. In the third year of the Zhenguan period (629 A.D.), madmen Xin Xing often said that Pei Ji had talent. Later, Pei Ji’s slave Gong Ming reported Pei Ji’s rebellion. Emperor Taizong thought that Pei Ji had four deadly sins, and there are reasons to kill him.14 Most of the people who talked about this matter believed that he should be exiled. They first sent Pei Ji to Jiaozhou and finally exiled him to Jingzhou. In April of the seventeenth year of the Zhenguan period (643 A.D.), Hou Junji participated in the conspiracy of the 12

Book of Tang, Volume 69, p. 2516. Comments on Laws of Tang Dynasty, Volume 17, p. 322. 14 Book of Tang, Volume 57, p. 2289. 13

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Fig. 1 Execution chart. Source: Duan Wenjie, (ed.), Complete Works of Dunhuang Murals in China: Dunhuang of Early Tang Dynasty, Tianjin People’s Fine Arts Press, 2006, P. 89

crown prince Chengqian, and Emperor Taizong personally questioned him; then, Hou Junji poorly confessed his guilt. Emperor Taizong said to the ministers, “Hou Junji has done credit. I want to save his life, can I?” But the ministers thought Hou Junji should die. The emperor then said to Hou Junji, “Farewell from now on!” The emperor therefore shed tears. Junji also threw himself into the ground, and then he was beheaded.15 In September of the twenty-second year of the Zhenguan period (648 A.D.), Duan Zhichong, a person from Qi Zhou, sent a memorial to the emperor and asked the emperor to give up the throne to the crown prince. Zhangsun Wuji and others asked Zhichong to be killed. The emperor answered, “Today you all want Zhichong to be executed. I can’t bear to do this, but I can discuss it in more detail and banish him far away.” In the second year of the Shenlong period (706 A.D.), Wu Sansi secretly asked people to write down the queen’s dirty deeds on Tianjin Bridge, then asked for deposition of the queen, and he instructed imperial censor Li Chengjia to frame Huan Yanfan and others. Li Chaoyin, the official of the supreme court, thought that since Jinghui and other people had not been tried, they could not be killed, and he asked the imperial court to arrange for their trial. Pei Tan, the head of the supreme court, asked Jing Hui and others to be convicted according to the emperor’s order. They could not be excused from waiting for trial. He asked to execute Jinghui and registered and confiscated all his property. Emperor Zhongzong adopted his suggestion, but Yan Fan and four other people were exempted from death (Fig. 1).16 The largest collection of death penalties in the Tang Dynasty took place in the second year of the Zhide period of Emperor Suzong (757 A.D.). The “Anshi Puppet Officials Case” was extremely cautious in the trial procedure because of its great importance. In December, more than 200 people, such as Chen Xilie and Daxier, were detained in Yang Guozhong’s residence, and San Si Shi was set up for trial. 15 16

Zi Zhi Tong Jian, Volume 197, p. 6194. Book of Tang, Volume 91, p. 2931.

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In the trial, Cui and Lu hoped that the emperor would execute them. Fortunately, Li Xian strived to form a preliminary opinion on six grades of conviction and delivered it to his colleagues.17 San Si Shi formed six levels of conviction trial opinion, and many relevant documents were recorded. According to the Ce Fu Yuan Gui, “San Si Shi think that puppet officials Chen Xilie and others should be classified as six classes of crimes, which is collected in Shang Shu Department.”18 The Old Book of Tang recorded, “After several days of discussion in the courtroom, the emperor listened to the memorials of Xian and left their lives.”19 The trial of San Si Shi is composed of the censor Cui Qi, constitutional secretary Han Zemu and Dali minister Yan Xiang. It was led by the censor Li Xian and the military minister Lv Xin. Since the beginning of the trial of the puppet officials, the mode of collegiate consultation was adopted. After the principle of the sixth-class conviction was determined, it was submitted to the All the officials’ Conference for review. The assembly procedure assumed the dual functions of parliament and retrial in litigation. The judicial practice in the Tang Dynasty also had examples of punishment through the collection procedure. In April of the third year of the Huichang period (843 A.D.), Liu Congjian, the Jiedushi Zhaoyi, died. The Army thought that his nephew, Zhen, should be given the title of Liuhou. So, they asked for Jieyue on the memorial. The court sent envoys with imperial edicts to Lufu, ordering Zhen to escort Congjian’s body back to Luoyang. Liu Zhen resisted the imperial edict. Emperor Wuzong summoned ministers to gather together to judge Liu Zhen’s crime and determine the punishment.”20 During the reign of Liu Zhen, his mother secretly met with the wives of the generals, which strengthened his treason. In December of the same year, the rebellion of Zhe Lu was put down, and the government wanted to judge his mother’s sins, so the emperor made the officials discuss it. The minister of justice Chen Zhong and others commended on the crime of Pei: According to the Rites of Zhou Dynasty, both male and female criminals would serve as slaves. Zhong Yao said, “Since ancient times, criminal punishment applies to wives.” In the Jin Dynasty, “Daughters who are not married receive the same criminal punishment as their parents. If they are married, they receive the same criminal punishment as their husbands.” If women only serve as maid servants getting similar punishment, they don’t receive criminal punishment despite having bad fame. However, the crime has been committed, and the law should be judged on the basis. Pei Shi has done bad deeds for a long time and has already committed the crime. Implementing the law can restrain her criminal ideas. It is advisable to apply severe punishment.” The emperor approved.21

If we want to deal with the rebellion of the town in accordance with the law, we should first regard military superiority and political strength as the basic premise. Therefore, the confirmation of the rebellion by the assembly is not different from that of the general staff in nature. However, constrained by the political environment of 17

Book of Tang, Volume 50, pp. 2151–2152. Ce Fu Yuan Gui, Volume 152, p. 1703. 19 Book of Tang, Volume 112, p. 3345. 20 Book of Tang, Volume 18, p. 595. 21 Tang Hui Yao, Volume 39, p. 835. 18

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a specific period, the application and effectiveness of the agenda-setting procedure are significantly different from those of conventional justice.

2.2 Implication According to Shang Shu:Tang Shi, “In ancient times, crime and punishment would not involve father or son.”22 However, in the old law, serious crimes such as treason and other crimes often involved others in a criminal case. Therefore, in the judicial practice of the Tang Dynasty, the range of involvement of cases was often determined through collection. In the case of serious cases occurring many times, the practice of strictly limiting the scope of involvement has played an important role in stabilizing the regime and appeasing the people’s minds. In June of the ninth year of the Wude period (626 A.D.), Prince Yin and others were killed in Xuanwu Gate mutiny. At that time, people who talked about the matter believed that more than 100 people around Jiancheng should be involved in the crime, and they should be punished at that time. People who talked about the matter believed that more than 100 people should be registered and confiscated. Yuchi Jingde, the Left Weishuai of the prince, believed that only two people had committed the crime and that they had been executed and that if someone else was involved, it would disturb stability.23 So others were pardoned. In July of the second year of the Shenlong period (706 A.D.), Prince Jiemin and General Li Duozuo, etc., raised their troops to kill Wu Sansi. The incident was exposed, so they were killed. This incident implicated gatekeepers, leaving them in exile. Later, Weishi secretly asked the emperor to kill them all. Zheng Weizhong, the minister of Huangmen, thought that the big case had just ended and the people had not yet settled down. If the emperor changed his orders, it would cause panic. Emperor Zhongzong ordered the officials to be deliberate, and then the previous judgment was followed, saving many lives.24 The joint assessment procedure effectively safeguards the principle that crimes in traditional litigation involve one person and play an important role in safeguarding social stability and judicial justice. In practice, the party can also effectively limit the scope of implementation by interpreting related concepts. Li Qi, who is from Zhenhai, was executed. The emperor’s decree removed Qi’s household registration, which involved the whole family of Qi. Prime Minister Zheng Yin and Li Jifu believed that the people involved were not sure of their close ties, so they called in Jiang Wu, the Minister of War, to discuss it. Jiang Wu strictly restricted the extension of the concept of “house relatives”. While avoiding harming the innocent, he created precedents through judicial interpretation, which provided a reference for the handling of similar cases:

22

Shang Shu Zheng Yi, Volume 8, p. 228. Book of Tang, Volume 68, p. 2499. 24 Book of Tang, Volume 100, p. 3118. 23

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Prime Minister Zheng Yin and other people who discussed the case of Qi had no decision on the intimacy and alienation of the people involved, so he summoned the Minister of War Jiang Wu to ask, “The emperor ordered to punish the whole family of Li Qi. Are Dagong relatives included?” Wu said, “Dagong relatives are Qi’s cousins and the descendants of the Huai’an King Shentong. The Huai’an King has made great contributions to the country, and his descendants should not be involved.” The prime minister asked, “Should Qi’s close brothers be implicated?” Wu said, “Qi’s brothers are Ruoyou’s sons. Ruoyou died for the country. If Qi’s brothers are involved, Ruoyou should also be removed, which is not appropriate.” The prime minister agreed with him, so when the order for execution of Qi was released, it was only implicated in the Yuanwu family.25

According to the Ce Fu Yuan Gui, “The prime minister tried his best to argue, so Qi’s crime involved only his sons and unmarried women.”26 Jiang Wu’s participation in the discussion greatly reduced the scope of the case. This action not only safeguarded the ancient motto of pitying the prisoners but also effectively coordinated the strategy of reinvigorating Wang Gang and cutting down the feudal town of the constitutional clan from the legal point of view.

2.3 Forgiveness The rise of thunderstorms symbolizes ease. The gentleman therefore pardons the faults of others and forgives the evil.27 The release of prisoners and forgiveness of sins has always been regarded as a display of benevolent rule. However, the forgiveness of the guilty will make many people have too much hope. Therefore, amnesty and forgiveness should be strictly limited to the scope of the law. In the Tang Dynasty, the assembly procedure played a role in safeguarding the authority of law and eliminating evil and fluky practices, among which the minority opinions of the council ministers were fully respected. At the beginning of Zhenyuan, “Wuzhou governor Deng Ting embezzled 8000 strings, and Ting had a friendship with the ruling people, hoping to be pardoned and forgiven. The emperor summoned officials in the Shangshu Department to discuss and most of the officials hoped to execute the emperor’s wishes.”28 However, only Dou Can, a Si Zhi of Da Li Si, was one of those who insisted on strict enforcement of the law and forfeited stolen goods directly. According to Tang Liu Dian, “The Da Li Si set up six Si Zhi, and the official rank is sub-six.”29 Dou Can expressed his opinions independently as a Si Zhi, explaining that the scope, appointment and rank of the personnel participating in judicial assemblies are stipulated in principle and can be adjusted appropriately in judicial practice according to the needs of the trial. In the fourth year of the Changqing period (824 A.D.), the emperor ordered the Da Li Si to try the case. Yang Sifu, the Zhongshu 25

Book of Tang, Volume 112, p. 3342. Ce Fu Yuan Gui, Volume 616, p. 7125. 27 Zhou Yi Zheng Yi, Volume 4, p. 198. 28 Book of Tang, Volume 136, p. 3746. 29 Tang Liu Dian, Volume 18, p. 503. 26

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minister, and others attended the review. They believed that “Pang Ji embezzled more than 400 strings of money, and most of them were illegal. According to the principle of conviction according to the amount of corruption, Pang Ji should be beheaded. Although the emperor is celebrating, Pang Ji’s sins cannot be forgiven.”30 Pang Ji was relieved of his official post and exiled to Xizhou. His property was confiscated. In the course of the meeting, if the final verdict violates the general law, the overly forgiving person can still be repeatedly discussed and argued for reasons. In May of the sixth year of the Dahe period (832 A.D.), Xingping County, Shangguan Xing fled because of drunken murder. The government arrested his father, and Xing surrendered himself. Jing Zhao Yin Du Cheng and Yuwen Ding, the prime minister, believed that Xing surrendered himself to release his father.31 Such filial piety deserved to be rewarded and pleaded to exempt Xing’s death. The emperor summoned officials to discuss this case. People who participated in the discussion believed that the murderer should be sentenced to death, which was a common practice from ancient times, so Xing could not be exempted from death. In the end, the emperor agreed with the views of Cong and others, exempted Xing from death, and changed to 80 sticks and exiled him to Lingzhou. It is a common practice from ancient times to modern times that officials participating in the discussion believed that the murderer should be sentenced to death. Therefore, Xing could not be exempted from the crime of death.32 Wang Yanwei, the counsellor, said to the emperor, “Everyone follows the principle of killing the murderer. If we do not kill Xing, we will instigate everyone to kill.”33 When the emperor ordered that Xing’s death was exempted, Yanwei was still disputed according to the law and was relegated to Henan Province. Although Shangguan Xing saved his life because of forgiveness, the restraining effect of the bureaucrats’ assembly discussion on forgiveness can also be seen from this case. In addition, relevant governmental offices’ collection also has the function of affirming the law and avoiding amnesty. In the fifth year of the Dahe period (831 A.D.), Zhang Shu Liu Changjian and Hu Bozhong forged documents of birth and sold officials and made false seals. After a detailed trial, the Ministry of Punishments and Da Li Si sentenced them to death, but later, the emperor forgave them. According to the article “improper conviction before forgiveness” in Tang Lv Shu Yi, if the conviction is not appropriate before forgiveness, the punishment should be lighter if the punishment is heavier; if the punishment is lighter, the punishment should be lighter.34 The minister of imperial history Yuwen Ding argued that “Those who committed crimes before the release of the amnesty should be commuted; those who committed crimes after the release of the amnesty should not be commuted according to this example. Therefore, people who do not have luck in the future hope to reduce

30

Ce Fu Yuan Gui, Volume 707, p. 8156. Book of Tang, Volume 17, p. 545. 32 Tang Hui Yao, Volume 39, p. 833. 33 New Book of Tang, Volume 164, p. 5057. 34 Comments on Laws of Tang Dynasty, Volume 30, p. 566. 31

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their sentence. The emperor replied, “Zhang Shu, Hu Bozhong, Liu Changjian and others should be punished according to the previous orders.”35 In accordance with the legal provisions and actual cases, Yu Wending requested that the time limit for the release of the pardon should be set to accurately determine the criminal responsibility of the suspect. Only by forgiving the crime before the release of the pardon order can the case be punished according to law.

2.4 Ba Yi According to Zhou Li-Qiu Guan-Xiao Si Kou, “The eight privileged persons of kinship, reason, virtue, ability, merit, nobility, diligence and guest are not convicted and sentenced according to ordinary law.”36 Since Emperor Ming enacted criminal law, eight negotiations have been put into law, and every generation has clauses of discussion, invitation, reduction and redemption. The eight discussion system is an important legal principle to care for bureaucratic aristocracy in feudal times. In the Tang Dynasty, discussing crime was one of the daily activities of the judicial collection. If the offender involved belongs to the applicant, the Ministry of Criminal Justice shall hand over the offence and identity of the offender to the emperor, and Shangshu Department shall summon related governmental offices to decide the crime. For the procedure of discussing the crime by Shangshu Department and Ministry of Punishments, Yu Guan Ling of the Tang Dynasty has the following provisions: All the cases should be appealed to the Ministry of Punishments. Those who participate in the discussion should be above certain ranks. The suspicious point or plot should be discussed by the ministers together. For the assembled deliberation, the censor was the given spot, and a censor served as the monitor. All the participants could express their own opinions, and the censor would finally report to the emperor if there were no common decisions.37

Laws of Tang Dynasty stipulates that “People in the range of Ba Yi, officials should record the scope of the person who committed the crime of death and record the relative, reason, virtuous, capable, meritorious, diligent, guest, noble and so on.”38 The officials should start the gathering according to the emperor’s orders and then report to the emperor after reaching a conclusion. Within the scope of the Ba Yi are the relatives of the emperor, including the emperor’s favoritism for his relatives, the relatives of the Empress Dowager and the Empress Dowager within the scope of the Si Ma, and the relatives of the empress within the scope of Xiao Gong. The royal family has a prominent position, and its sentencing result has a direct impact 35

Ce Fu Yuan Gui, Volume 153, p. 1715. Zhou Li Zhu Shu, Volume 35, p. 1073. 37 Tianyi Pavilion Museum, Institute of history, Chinese Academy of Social Sciences, correction of Tiansheng order research group, Correction of Ming Emperor’s Order in Tianyi Pavilion, 43, p. 647. 38 Comments on Laws of Tang Dynasty, Volume 2, p. 32. 36

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on other judges. While trying to favor the nobility, officials tried to avoid making improper cases. In the first lunar month of the fourth year of the Dali period (769 A.D.), Li Min, a member of the imperial clan in Yingzhou, killed someone without authorization. “The Emperor allowed officials to hold a meeting on this matter, but this case violated common laws.” The law department believed that the criminal was within the scope of the “Bayi” and gave him the death penalty. In July of the fourth year of the Dali period, Xue Hua, the brother of the emperor’s aunt, was drunk and angry.39 He killed three people and threw their bodies into a well. Later, the case was revealed, and the emperor imprisoned Xue Hua in Jingzhaofu and allowed him to commit suicide.40 In December of the fourth year of the Dahe period (830 A.D.), Zhang Feng, a criminal officer, and Cui Qi, an assistant minister of Di Li Si, discussed the corruption case of Pei Rui, who was the governor of Jiangzhou and the relative of Empress Dowager Tai, which had important reference value for recognizing the relatives of the Tang court: One of the relatives suggested that “although the close relationship between the Queen and the emperor would impact the result of the discussion, the law of the country was the foundation of the governance. It was reasonable to order the Shangshu Department to discuss the severe crime of the governor of Jiangzhou Pei Rui, which had already shown the emperor’s mercy and the objective of the law. I think all the officials who take bribes should be punished severely and be exiled to the remote places, and all their offspring would not be allowed to be the officials in the future.” The emperor agreed and ordered that the selection of ministers should be based on capability and personality, and the punishment should be carefully concerned, especially for those involving the offspring. ”41

The term “nobility” refers to those who are close to the monarch, including officers at or above the third rank, officials at or above the second rank, and people with a title above the first rank. On July 25th of the second year of the Yonghui period (651 A.D.), Xiao Lingzhi was the governor of Huazhou. When he was the governor of Guangzhou, he accepted gold, silver and slaves of Zuo Zhiyuan and Feng Ang’s wife. “The emperor ordered officials to discuss the case. The emperor was angry and ordered to execute Xiao Lingzhi outside the court.” The imperial censor Tang Ling reported that “The emperor of Zhou Dynasty established eight conditions for the mitigation of punishment by enacting laws, and according to the old articles of Zhou Li, the emperor should be careful to deal with his own opinions different from those of the ministers, so special legislation was made. Now that the emperor has agreed to the law, he still imposes heavy punishment. This is contrary to Yao and Shun’s opinions, and people’s prejudice cannot replace the law. Emperor Gao Zong agreed with him, and Xiao Lingzhi was sentenced to exile in Lingnan.”42 In October of the tenth year of the Kaiyuan period (722 A.D.), former governor Pei Zhuxian of Guangzhou was sent to prison, and Zhang Jiazhen asked the emperor to kill him by a stick. Minister of War Zhang Yue said, “The law stipulates eight measures to reduce 39

The Collection of the Imperial Edicts of Tang Dynasty, Volume 126, p. 680. Ce Fu Yuan Gui, Volume 58, p. 618. 41 Tang Hui Yao, Volume 39, p. 833. 42 Tang Hui Yao, Volume 39, p. 828–829. 40

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the penalty for the dignitary. Zhuxian should be exiled and demoted, and should not be easily executed.”43 In addition, Tang Dynasty, in the scope of discretionary punishment, including the imperial concubines and the relatives of the principals, and they should list what they had done and what they’d like to appeal for.44 In August of the tenth year of the Kaiyuan period (722 A.D.), Si Kong Pei Ji ordered Pei Jinxian to embezzle public property and ran away after being revealed. Emperor Xuanzong ordered the court to arrest him and kill him. Li Zhaoyin, an official of Da Li Si, suggested that Pei Jinxian was ordered to commit the crime; thus, he should be exempted from the death penalty. The emperor agreed and had him beaten 100 times and exiled to Linnan.45 In the judicial practice of the Tang Dynasty, there were cases in which talented people were judged lightly. When Emperor Dezong was in the Spring Palace, he had been taught by Dr. Zhang She, the Guozi Boshi. Emperor Dezong was very grateful to She for this experience. She was later convicted of bribery, and the government banished him from his hometown on the basis of a lenient trial of those who had companionship.46 In June of the second year of the Zhide period (757 A.D.), Wang Qurong, the general, killed the county magistrate because of his personal grievances. According to the law, Wang Qurong should be executed. The emperor exonerated Wang from his death because he was good at using cannons and dismissed him from office to work in Shanjun. Wang Qurong killed a local officer without authorization. According to the law, he should be convicted of “unrighteousness”, and this should not be a circumstance of lenient trial. Jia Zhi, the Zhongshu minister, believes that “we cannot violate the laws of our ancestors because of one’s talent.”47 Wei Zhi, an imperial censor, said, “It is not appropriate to leave the life of a murderer.”48 Emperor Suzong then called ministers to discuss the case. Prince’s teacher Wei Jiansu, Minister of Culture Cui Qi, and others thought that “the skills of Qurong are not the basis for the survival; and the implementation of the law is the basis for the existence of the country. This is why we want the emperor to abide by the law of Zhenguan.49 However, despite the opposition from Jia Zhongshang, Wei Jiansu and Cui Chi, Emperor Suzong finally exempted Wang from his death. Bayi was set up to provide a basis for judging nobility. The emperor cares for his subordinates and the officials obeying the law. These two factors are very important.

43

Book of Tang, Volume 99, p. 3091–3092. Comments on Laws of Tang Dynasty, Volume 2, p. 33. 45 Zi Zhi Tong Jian, Volume 212, p. 6750. 46 Book of Tang, Volume 127, pp. 3577–3578. 47 New Book of Tang, Volume 119, p. 4299. 48 New Book of Tang, Volume 122, p. 4352. 49 Zi Zhi Tong Jian, Volume 219, p. 7027. 44

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3 Discussion About the Etiquette 3.1 Changing Posthumous Name In the lawsuit practice of the Tang Dynasty, there were some conflicts between etiquette and law in some cases. Because of the special nature of the case and the absence of applicable regulations in the law, thousands of officials would be summoned to the assembly to discuss it. In the Wude and Zhenguan periods, Prime Minister Feng Deyi played an important role in the imperial court and took charge of many departments. The emperor knighted him as Si Kong after he died and bestowed “Ming” as a postumous title upon him. After his death, he was found to have wavered between Emperor Taizong of Tang Dynasty and Li Jiancheng and secretly defended then crown prince Li Jiancheng. He prevented Emperor Gaozu from changing the idea of selecting a crown prince. In the seventeenth year of the Zhenguan period, ten years after Feng’s death, Censor Tang Lin impeached the fraudulent him. Emperor Taizong ordered the ministers to discuss the case, and the Minister of the Ministry of Revenue Tang Jian proposed that Feng was extremely appreciated by the emperor before his death. The official posts cannot be completely deprived, but the posthumous title should be changed. The emperor agreed.50 There is no clear legal regulation on how to punish a dead person who committed a crime before he died. Adhering to the principle of not retroacting the past, only to change the title, in order to match the reputation with the truth; cutting off the official position with real power, so that its descendants cannot enjoy preferential treatment for it. This discussion properly balances the relationship between etiquette and law and gains the approval of bureaucrats. While successfully handling the Feng Deyi case, it also creates a precedent for judging the criminal responsibility of death penalty prisoners, providing a reference for the follow-up treatment of similar cases. In the first year of the Jingyun period (710 A.D.), the posthumous titles of Li Chongjun and Li Duozheng were reconsidered. Wei Cou thought that the titles of Li Chongjun and Li Duozheng were inconsistent with their real efforts. The minister was worried that in the future, rebellious officials will learn from this.51 Therefore, the minister urged the emperor to improve the good and punish the evil and change their posthumous title.

3.2 No Marriage In Tang Dynasty, there were many taboos in marriage. Tang laws set up several regulations for “illegal marriage” to prohibit invalid marriage. One of the forbidden 50 51

Book of Tang, Volume 63, p. 2398. Zi Zhi Tong Jian, Volume 210, pp. 6657–6658.

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marriages is the prohibition of relatives’ marriage. “Marriage with the same surname” section: “If the two sides of the marriage are different in dignity and inferiority, and marry the sister with the same mother or marry the daughter of his wife’s exhusband, would be punished.”52 In the first year of the Yonghui period (650 A.D.), Zheng Xuandao in Zhengzhou wanted to marry Li Xuanyi’s sister, also his aunt. Xuan began to agree but later refused to comply with the etiquette. The way of persuasion is that there is no such taboo in law. For this case, although the two were not relatives, they were different in their order and dignity. Censor Li Qianyou asked all the officials to discuss it. General Lord Ji, Shen et al. argued that, according to this case, the scope of the prohibition of marriage should be clearly defined to compensate for the shortcomings of the decree: Father’s aunt and cousin, mother’s aunt, aunt and cousin, aunt and sister of parents, son-inlaw’s sister and cousin, shall not get married. The emperor agreed and it was described in the law.53

“Courtesy and punishment are mutually exclusive.”54 Through the assemble discussion, not only the special marriage problem was solved, but also the similar situation was standardized, which fully embodied the great impetus of litigation practice in the Tang Dynasty to the progress of the legal system. In the first year of the Yonghui period in the Tang Dynasty, Tong Dian, had recorded that, “The nephew of the hall, though not the five generations of collateral relatives, must not be married.”55 Therefore, there is no explicit prohibition in the former Law of Chastity, so it is impossible to accurately determine the intermarriage between superiority and inferiority. At this time, at the request of the officials, the monarch often ordered the group of bureaucrats to gather and formulate their opinions on the basis of the law. In the Comments on Laws of Tang Dynasty, “marriage between the same surname”: “Their parents’ aunts, uncles, cousins, and sons-in-law and sistersin-law are not allowed to marry, and offenders will be punished by a hundred sticks each and divorce”56 which was based on the revised version of the judgment of Zheng Daoxuan’s case.

3.3 Private Death Anniversary In July of the eighth year in the Zhenyuan period (792 A.D.), Yuan Heng, who was acting as a Taifu to offer sacrifices to the queen Temple of Zhao De, believed that it was not a proper time to receive admonition and finally was impeached by the censor. The case is essentially a conflict between the official’s public and private 52

Comments on Laws of Tang Dynasty, Volume 14, p. 263. Ce Fu Yuan Gui, Volume 616, p. 7122. 54 Book of Later Han, Volume 46, p. 1554. 55 Tong Dian, Volume 95, p. 2567. 56 Comments on Laws of Tang Dynasty, Volume 14, p. 236. 53

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identities at the level of etiquette and law. Emperor Dezong ordered the Shangshu to meet with the officials and judges to discuss. Lu Mai, the Prime Minister, quoted the Book of Rites to interpret the Code and concluded that Yuan Cheng was a dereliction of duty, thus making the case quite a legacy of the Spring and Autumn Judgment, which aimed to analyze the cases by using Confucianism: According to the Rites, one should back home to manage the funeral when someone in his family died instead of taking the denouncement on that day. Although now it was given one day off to handle the funeral, it was still unreasonable for a minister to pay more attention to family affairs instead of domestic affairs. Thus, for the sake of the spirits of the Rites, it should be punished by paying the fine.57

Since the Wei and Jin Dynasties, both etiquette and law have been emphasized. All public and private actions in political society are related to the code, and the code is the concrete realization of Confucianism.58 However, the integration of the two is not spontaneous. It must be discussed and determined by the courtesy officials. The three cases were all related to conflicts of etiquette and law, and there was no clear legal provision. Thus the emperor ordered the officials to discuss. In the process of handling the abovementioned cases, the assembly discussion mainly undertakes the judicial functions of deliberating on suspected cases, communicating etiquette and law, interpreting the legal meaning and creating precedents. Among them, the main means to create precedents is to draw on rites and customs to achieve the harmony of national law and human relations.

3.4 Revenge Assembly discussion is one of the most concentrated areas of contradictions between rites and law in the Tang Dynasty. Revenge and prohibition of revenge reflect the sharp conflict between rites and law.59 Based on the concept of blood group standards in primitive society and the custom of saving people with one’s own strength, the concept of revenge has long been respected by the world in a long historical period influenced by the concept of filial piety. Zheng Xuan, a Confucian in the Han Dynasty, said, “Father is the most important person for one. If someone kills his own father but does not revenge, then he is not a filial son. The killer must be killed.”60 The recognition of revenge in the books of the pre-Qin period has a direct impact on later generations. The revengers have long planned to kill their enemies by hand. In the Sui and Tang Dynasties, revenge was prohibited in principle. In New Analects of the Tang Dynasty, at the beginning of the Zhenguan period, Wang Jun killed his enemy Li Junze, who had killed his father, on his own and then surrendered himself to the governor. The court of the state thought he should be put to death and asked, 57

Book of Tang, Volume 136, pp. 3753–3754. The Second Version of Series of Book of Jing Ming Guan, 2001, p. 283. 59 The Formation and Development of Chinese Law, Peking University Press, 1997, p. 74. 60 Li Ji Zheng Yi, Volume 3, p. 98. 58

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“It is clear in the law that killing is supposed to pay for life. Why do you want revenge and seek your death penalty?”61 It can be seen that the laws of the Sui and Tang Dynasties had negative attitudes towards revenge. However, revenge has always been respected by traditional ethics, and it plays an important role in enlightening and publicizing the revenge of filial piety and guiding public opinion, so it should not be done rashly. For large vengeful cases, it was often necessary to initiate the assembled discussion process and require public discussion. This practice has gradually become a convention, which has been observed for a long time in the judicial practice of the Tang Dynasty. During the reign of Queen Wu, Xu Yuanqing’s father was murdered by county lieutenant Zhao Shitao. Yuanqing changed his name to Yijiabao, killed Shitao himself and surrendered. Queen Wu wanted to pardon his death, Chen Zi-ang reconciled the contradiction between propriety and law, advocating that “in order to safeguard the national law, sentenced him to death, and then after his death praise his filial piety, which makes things right”.62 At the same time, this method can be incorporated into the code for posterity reference. Although it is not explicitly stated in the history books that the case initiated the proceedings, it can be seen from the words “ministers and others see” that this result is Zi Ang’s suggestion in the process of participating in the case. The opinions on Xu Yuanqing’s case did not fundamentally solve the legislative contradictions caused by revenge but caused new disputes in litigation practice. There were also cases of revenge in the reign of Queen Wu, which were not discussed and died directly. It was recorded in the New Book of Tang that the son of Du Shenyan had killed his enemy and was sentenced to death: Du has been promoted many times to become the governor of Luoyang. He was demoted to Jizhou to join the army for some reasons. Sima Zhou Jizhong and Sihu Guo Ruona fabricated Du’s confession and put him in prison to kill him. Du’s son, Du Bing, was thirteen years old, hiding a stiletto in his sleeve and assassinated Zhou Jizhong when he was drunk in his seat, and then the guards around Zhou killed Du Bian. When he was to die, he said weakly, “Du has a filial son, but I don’t know. Guo Ruona has put me in a bad position.” Du was released from office and returned to the east capital. Su Dian was mourning Du Bing for his filial piety and wrote him epitaph, and Liu Yunji wrote the funeral oration.63

Because his father was wronged and demoted, Dubin assassinated people who framed up his father. At the same time, he was killed by the guards, so there was no judicial problem, nor could the proceedings be initiated.64 For the details of the case, the relevant documents are quite different from those in the New Book of Tang: The man’s name is Bing, with the nickname Huaijian. He was from Duling of the capital…In the period of Shengli, Du Jun was degraded as Sihu (an official in charge of household registration), his son also went with him. Some officials colluded with each other and framed Jun to Zhou Jitong, Minister of War, who judged him guilty. When Jun was arrested, his son did not eat tasty food, lost some weight, and did not speak. At the banquet of the government, 61

The New Comment on Tang Dynasty, Volume 5, p. 79. The Book of Chen Ziang, Zhonghua Book Company, 1960, (7): 153. 63 New Book of Tang, Volume 201, p. 5735. 64 From the Human World to the Hell: The Law, Society and Country of Tang Dynasty, p. 244. 62

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he killed Jitong and promised to die for this, taking death calmly. He revenged for his father and looked peaceful. He was flogged to death. So, there was no judicial procedure involved. Bing died in the government office on July 12th of the second year of Shengli at the age of 16. (See Footnote 65)

Comparing the Epitaph of Du Bing with the New Book of Tang, we know the following information: first, the person who falsely accused Du Bian was Si Ma Zhou Jitong in Jizhou, New Book of Tang, was mistaken for Zhou Jizhong, while the other thing recorded in the New Book of Tang, that Guo Ruona was also involved was not mentioned in the Epitaph of Du Bing; second, Du Bian died at the age of 16, and New Book of Tang, was mistaken for 10; third, after Du’s revenge, he died on the court. However, in the New Book of Tang, although Du Bing died, the epitaph written by Su Jun, a famous scholar at that time, was full of a sense of loyalty. “For the sake of his father’s innocence and reputation, he was desperate to kill his enemies. While it is a glorious thing to die for the justice”. The concept of revenge was deeply rooted in the early Tang Dynasty. During the reign of Emperor Xuanzong, censor Yang Wang falsely accused Zhang Jiansu, governor of Fuzhou, of attempting to rebel and condemned him and confiscated all his property. His son, Ying and Yi were exiled at their young age. In the twenty-third year of the Kaiyuan period (735 A.D.), Ying and Yi killed Wan Qin in the capital, tied his head to their knives, and said they were going to avenge. They fled to the south of the Yangtze River and killed those who framed their fathers until they were arrested in Sishui. Afterwards, the emperor summoned hundreds of officials to hold a meeting: “Officer of Zhongshu Department Zhang Jiuling and others praised their filial piety and loyalty, and suggested that they should be exempt from the death penalty, while Pei Yaoqing and others do not agree with it.”65 Emperor Xuanzong eventually adopted the opinion of Pei Yaoqing’s, believing that private revenge will lead to injustice and endless revenge while detracting from the dignity of the legal code. According to the law, he ordered the Henan government to execute the death penalty on the Zhang brothers.66 Obviously, the controversial focus of revenge cases is mainly manifested in three aspects. First, what are the prerequisites for revenge? Secondly, is revenge consistent with etiquette? Thirdly, how to deal with the avenger? These three can be summed up as one point, that is, as for the choice of state governance mode, what are the positions and relations between ethics and law. The conclusion of the two revenge cases of Xu Yuanqing and Zhang Li followed the basic principle that the validity of laws and decrees was higher than that of ethics. In sentencing adjudication, if there is a standard law dealing with the relevant issues, the legal provisions are the basis for consideration; if it was not clearly prescribed in the law and decrees, related rites and ethics can be considered. After all, the righteousness of revenge, as seen in the Rites, cannot be repudiated causally, while the act of revenge cannot be tolerated by the law. 65 66

New Book of Tang, Volume 195, p. 5584. Book of Tang, Volume 188, p. 4933.

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Those who advocate the pardon of the revengers are mostly based on the moral principles of the Rites and have strong traditional strength and public opinion support; those who oppose the pardon of the revengers often follow the law, thinking that filial piety is not allowed to disturb the state law. The Laws of Tang Dynasty adopted an evasive attitude toward revenge, which was a thorny problem.67 The system of “the murderer moving from his hometown” was set up, which stipulated that “the murderer should never see the pardoned person, but move to the countryside for thousands of miles”.68 It avoided meeting the enemy and tried to prevent revenge by geographical isolation. In the case of revenge in judicial practice, either pardon death, or reduce the number of meetings, or execute the death penalty. Zhang Jianguo thinks, “On the issue of revenge, it is not the gradual integration of rites and law, but the unilateral impact of rites with powerful public opinion on the implementation of traditional law that happened, the two have never been well integrated. Revenge may be the only serious violation of the law that is not condemned by public opinion, and the conflict between human feelings and the law is more strongly reflected in this matter than in any other matter.”69 In other words, based on the legal concept of “virtue-based punishment”, in the framework of the feudal legal system, we cannot find a thorough solution to the predicament of revenge. In the middle and late Tang Dynasty, several revenge cases were settled by means of assembly discussion, among which those who were executed by the assembly were often criticized. Among them, the death of Yu Changan in Li Zhao’s Supplemental History of the Tang Dynasty was the most typical example: Yu Changan of Quzhou, his father and uncle, were both killed by Fang Quan of the same county. Changan vowed to avenge when he was 8 years old and killed Fangquan when he became 17. He was sentenced to death. The provincial governor Yuanxi presented a memorial to the emperor and said, “I think that two persons in the Yu family were killed, it is evident that the murderer is a dutiful son.” Quoting the statement “if father, without committing a crime, was killed, the son could avenge” in the Spring and Autumn Annals Commentary by Gongyang Gao, he invited all the government officials to discuss the case, with earnest words. At that time, Peiji, the prime minister, was in charge of the government; Li Yong, the minister of punishment, was in charge of punishment. Both disagreed. Xue Bogao, an old intellectual wrote, “Da Si Kou (minister of punishment) is a vulgar official, and the ruling power (prime minister) is a young man, the son of Yu is good to die!” (See Footnote 68)

In the Tang Dynasty, the idea that revengers should be pardoned was deeply rooted in the hearts of the people because of the influence of classics and the practice of centuries. Public opinion implies the behavior of the masses and then guides people to engage in activities consistent with social values on the premise of social opinion and presupposition.70 After the death of Zhang Xiu and Zhang Huang, the common people of the intellectuals all pitied them and wrote a memorial to them and posted 67

The Research on the Penal Law of China, Peking University Press, 1985, p. 81. Comments on Laws of Tang Dynasty, Volume 18, p. 341. 69 The Formation and Development of Chinese Law, pp. 79–80. 70 The Research on the Law and Culture of Qin and Han Dynasties, China Renmin University Press, 2007, p. 171. 68

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it on the road. Citizens pooled money to build a righteous well in where they died, buried Zhang Wei and Zhang Li together in Beiqiang, and feared that Yang Wanyin’s family would excavate so that build several of it at the same time. They were so pitied by the people at that time.71 The Old Book of Tang and New Book of Tang also compiled a large number of revenge cases into “Xiao you Zhuan”, revealing revenge as a gesture of filial piety. It was precise because of the pursuit of orthodoxy and the intervention of public opinion at that time, the law department had to bear tremendous pressure to deal with revenge cases according to law.72 Therefore, it was necessary to find a procedural way to solve the above problems. In the sixth year of the Yuanhe period (811 A.D.), in September, Liang Yue in Fuping County avenged his father, killed Qin Gao, and then surrendered himself. In the end, he was absolved of the death penalty and was beaten 100 sticks, exiling Xunzhou.73 For the trial of Liang Yue’s revenge, the emperor chose the procedure of gathering ministers to assembly discuss. According to the imperial edict of Emperor Xianzong, “With respect to righteousness, murderers and enemies do not share the same fate, but at the legal level, murderers must die. Ritual and law are two major aspects of the rule of royalty, but both are opposite to revenge. Thus, it must be discussed by the ministers.”74 Han Yu answered the reason why Laws of Tang Dynasty avoided the case of revenge. He advocated that all cases of revenge should be treated differently after they were assembly discussed by ministers, so that the handling of revenge cases could be standardized and unified.75 Han Yu is not an important official nor a member of the royal family. Han Yu’s participation in the discussion of the case of revenge shows that he was in the range of assembly discussion. Since then, the practice that cases involving the ethical relationship between father and son must be assembled has been followed for a long time. In April of the second year of the Changqing period (822 A.D.), Young Kang Maide killed for the sake of his father. Although this case is not revenge, it is directly related to the traditional concept of filial piety. It was reported to the Ministry of Punishment by Jinzhaofu. Sun Ge first reported the case in detail and discussed it with the Zhongshu and Menxia Department. The emperor decreed, “Kang was still a child, and he knew that filial piety should be observed for the son of man. Although he killed people, he committed the crime because of his father. If we strictly punish according to the law, we will lose the spirit of humanism. He should be handed over to the judiciary, removing his death penalty and being punishable by other penalties.”76 It can be seen that by improving the judicial process and raising the level of sentencing, we can prevent suspicion, at the same time, alleviate the resistance of public opinion, and eventually provide an effective way for the successful settlement 71

Book of Tang, Volume 188, pp. 4933–4934. Book of Tang, Volume 188, p. 4938. 73 Book of Tang, Volume 14, p. 437. 74 New Book of Tang, 195: 5587. 75 The Correction of Han Chang Li Wen, Volume 8, Shanghai Relics Press, 1986, pp. 593–594. 76 Ce Fu Yuan Gui, Volume 616, p. 7125. 72

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of cases of vengeance and other related to the conflict of etiquette and law. On the other hand, in ancient China, when there was a conflict between rites and laws, most of the courts of the past dynasties dealt with it according to law on the basis of rites. The disposition conclusion of the case is not entirely based on the criminal laws of the Tang Dynasty.77

4 Discussion of Legislation The Chancery Province is an institution that is used to administrate all the knotty and major cases, according to the New Book of Tang-the Records of Criminal Law, “For all the knotty cases which cannot be judged by the Da Li Si, the Chancery Province will deliberate them, then employ those which can serve as laws and deliver them to the Imperial Library.78 The opinion from the group discussion of the Chancery Province may rise to a general law, “by virtue of the doubt for a while, to establish a law which will be spread for centuries, and make the case of one person acts as the code of others”79 ; thus, the group discussion about knotty cases in the Chancery Province has become the start of the enactment for authority law. Aside from conviction, sentencing and reconciling the moral standard, the group discussion of Tang still has the function of making law, which is different from the conventional law-making by the participation of numerous officials, the alleged group decision-making about law-making means numerous officials discovering, discriminating and drawing up judicial rules through policy negotiation, law refutation and case discussion, then affect the subsequent judicial trials.

4.1 Policy Discussion Aside from a group discussion about the revision of laws and decrees in Tang, officials will be convened to deliberate the adjustment about criminal policy, which is based on the change of judicial practice. In the sixteenth year of the Zhenguan period (642 A.D.), “The Ministry of Punishments thought the punishment stipulated in law was too slight, which means the brother of a rebel will just be removed from office. So it requested the punishment be changed into the death penalty, and presented a petition to ask every department to deliberate in detail.” Gao Shilian, a right servant, Hou Junji, a minister on the board of personnel, and Li Xun, a director of the board of war, requested that the punishment be aggravated, while Tang Jian, a director of the 77

Between the Law and Ethic-The Regulation Related to Family Ethic of Tang Dynasty, Longwen Publishing Limited by Share Ltd, 2007, p. 177. 78 New Book of Tang, Volume 56, p. 1411. 79 Da Xue Yan Yi Bu, Jinhua Press, Volume 108, 1999, p. 930.

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board of revenue, Wang Daozong, a director of the board of rites, and Du Chuke, a director of the board of works, requested that the punishment not be changed. At that time, people thought among the law in Han, Wei and Jin, if one conspired, three generations of his relatives would be killed; thus, the law in Tang was too slight. Cui Renshi said, “The affection between father and son is inherent, while brothers are integral, if a father committed a crime, his son will be involved, which will harm their heart. If they even don’t care about this, could they care about their brother? Now that someone wants to change the law, it’s necessary to investigate again.”80 Afterwards, the suggestion from Cui Renshi was adopted. In the twentyfirst year of the Zhenguan period (647 A.D.), the Ministry of Punishments presented a petition once again, in which they suggested the punishment for a rebel’s brother be aggravated; thus, numerous officials deliberated it in detail. Jing Bo, a director of the board of meeting, said if someone became an official, his brother would not enjoy any benefit, yet if he committed a crime, should his brother be involved? The law was unreasonable to a great extent”,81 and then Emperor Taizong adopted his suggestion. In the second year of the Zhenguan period (693 A.D.), officials and civilians, who committed a crime and were sentenced more seriously than being exiled but met amnesty, must confess their crime within 100 days. If they did not confess, then their crime was deliberated and judged again. Xu Yougong, an imperial minister, thought those who committed an attempted crime were permitted to state the reason, were they guilty? Yet they must confess their crime within 100 days, if they did’t do that, their crime would be judged again, so Xu Yougong thought it’s inconvenient. Empress Dowager ordered Wupin officials (officials in ancient China can be divided into 9 types.) to deliberate it again.82 The reason for formulating policies to aggravate the crime for one’s brother and order those who got amnesty to confess his crime is still indefinite, maybe it’s an adjustment about the judicial practice by the legislative institution at a particular time. In April of the tenth year of the Zhenguan period (794 A.D.), because officials who were demoted or exiled met amnesty and become officials nearby must be checked by the central government, officials such as Luzhi presented a petition to suggest things, aside from transfer and decease, should be reported to Zhongshu Menxia rapidly, and they thought an approval from the central government wasn’t needed. According to cases submitted by ministers in their department, the ministers were awarded within a year.83 In December of the first year of the Huichang period (841 A.D.), because the criterion for the crime of theft isn’t unified, all provinces presented a petition and thought a common criterion is needed, for those who need to suffer cruel torture, “The Wupin officials in Zhongshu Menxia, Sipin officials in Shangshu, and Wupin officials as imperial ministers will deliberate it with Jing Zhaoyin, then it will be compiled into decrees.”84 Criminal policies adjusted after a group discussion 80

Book of Tang, Volume 74, p. 2621. Tang Hui Yao, Volume 39, p. 828. 82 Tong Dian, Volume 169, p. 4382. 83 Lu Zhi Ji, 2006; Zhonghua Book Company, Volume 20, p. 658. 84 Tang Hui Yao, Volume 39, p. 834. 81

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by all the officials will not only directly influence litigation practice but also be an example of subsequent law revision.

4.2 Law Interpretation For most of the past dynasties, numerous officials participated in the revision of the law, and aside from chieftains and high-ranking officials, the royal court usually invited those who were proficient in laws and decrees to take part in it. Therefore, most of the laws were legislated by many people; for instance, the renowned Explanation of Laws of Yonghui was a product of numerous officials. Those explicit opinions we refer to in “the Explicit Explanation of laws in Tang” are opinions from a group discussion of numerous officials, which are related to explanations about legal provisions. As a result, the explicit explanation about laws is often expressed in “Yi Yue”. According to the Old Book of Tang Records of Criminal Law: In the third year of the Yonghui period, the emperor instructed, “There isn’t any fixed explanation about the law now; therefore, the criterion of those illustrated laws every year is also devoid. Those documents which should be discussed by numerous officials who are proficient in them still be supervised and judged by Zhongshu and Menxia.” As a result, Liji, Ying Guogong (a Chinese nobility in Tang), Zhining, who acts as Shang Shu Pu Ye, a teacher of prince and Jian Xiu Guo Shi (some official positions in Tang), Tanglin, who serves as Yin Qing Guang Lu and a minister in the board of punishment, Duan Baoxuan, who is responsible for case trial, Liu Yanke, and Jia Minxing, an official who has the highest position in a royal court, all take part in the revision of law. The law is composed of 30 volumes. In October of the fourth year of the Yonghui period, the emperor declared and demonstrated it. Since then, those who need to decide a case began to refer to the explanation for the analysis.85

Since then, the royal court began to adopt group discussion as a way of law revision. In February of the fifth year of the Kayuan period (717 A.D.), the emperor declared: for edicts who are used to absolve criminals with difficulties, the Secretariat will bargain collectively about the enaction of criminal law, and all officials should express their real thoughts in detail and make the law generally unified.86 In June of the first year of the Dahe period (827 A.D.), the emperor instructed, “In the year of the Yuanhe and Changqing period, officials always utilize military strength and authorities to accomplish a mission, as a result, edicts are difficult to put into use.” It’s reasonable to instruct the Secretariat gather all the edicts enacted since Yuanhe, alter and delete them in detail, then submit them to the Secretariat-Chancellery. Thus, the Secretariat Chancellery can have a group discussion and listen to reports from their subordinates.87

85

Book of Tang, Volume 50, p. 2141. The Collection of Imperial Edict in Tang Dynasty, Volume 79, p. 452. 87 Tang Hui Yao, Volume 57, p. 1158. 86

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4.3 Case Dispute The revision of laws and decrees is usually based on effective disposes of individual cases. The Law in the Zhenguan Period stipulated, “When brothers separated, the stipulation about “yin” would no longer be applicable, while when one committed a crime, their brothers would suffer a collective punishment, their grandfather or grandson would be banished.” In the third year of the Zhenguan period (629 A.D.), Fangqiang (a person from Tongzhou), whose brother served as Tongjun in Minzhou and conspired, would suffer a collective punishment according to the law at that time. Emperor Taizong ordered all the ministers to have a detailed discussion. Fang Xuanling and other officials discussed repeatedly and thought, “The relationship between grandfather and grandson is intimate, while the relationship between brothers is more alienate.” People who should suffer a more severe punishment exiled, while those who should suffer a minor punishment were executed. Regardless of what we consider from the aspect of reason or emotion, it is unreasonable. Fang Xuanling requested, “If one committed a crime, his brother or grandson should be exiled as a collective punishment.” Those who committed a crime for hurling insults at somebody but didn’t cause injuries, the punishment could be slight, the death penalty of their brothers can be absolved, while the crime of banishing could be permitted. Emperor Taizong adopted his suggestion.88 The record about the group discussion of Fangqiang’s case in the Ce Fu Yuan Gui is more detailed: Fangqiang, whose brother served as Tongjun (an official in the Tang Dynasty) in Minzhou and conspired and was sentenced to death, should suffer a collective punishment. When Emperor Taizong knew that during the period of prison-checking, he felt pitying about it, so he told all the ministers: “because customs and enlightenment haven’t been conducted extensively, the criminal law is still applicable now; this isn’t a mistake made by civilians, but they suffer severe torture for this reason, which demonstrates the emperor’s bad moral integrity. The principle of torture should rely on the severity of cases and then execute the penalty. How can we kill and punish criminals without determining the basic reason? This kind of behavior violated the principle of mitigating penalties and attaching high importance to human beings. Moreover, conspiracy can be divided into two types: launching campaigns and breaking the law for spreading curses. The seriousness of the two is different; if criminals are sentenced to death according to the law of collective punishment, how can I feel nervous? Therefore, Emperor Taizong made all the ministers discuss collectively in detail.89

The value of discussion about the case is confined not only to Heyou and Fangqiang but also to discussing individual cases and legislative drawbacks, abolishing old systems and negotiating new laws. The assembly process has played an important role in the medium between justice and legislation. The revision of Yonghui Lv, which was triggered by the case of Zhen Xuandao, virtually speaking, belongs to an exemplification of laws and decrees’ revision incurred by refuting individual cases.

88 89

Tang Hui Yao, Volume 39, p. 827. Ce Fu Yuan Gui, Volume 612, p. 7066.

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5 Agenda 5.1 Enablement In regard to the status of the lawsuit, aside from personal interrogation, group decision-making is the highest rank of trial. Regardless of conviction, sentencing or deciding a moral standard, group decision-making was reconsideration activities aimed at the first decision of the law department. Before convening numerous officials to have group decision-making, the judicial department often formed preliminary opinions on relevant cases. Because of the complex situation or significance of the case, the judgment should be instructed by the emperor. An imperial edict order aiming to organize a group discussion was also necessary. The tradition of the monarchy command set can be traced back to the Western Han Dynasty. In November of the sixth year of the Emperor Wendi period (174 B.C.), the king of Huainan conspired and was summoned to Chang’an. Emperor Wendi cannot bear to kill him, so he discussed with Liang Qian Dan (an official in the Han dynasty). The Historical Records said, “Cang, Jing, Yi, Fu and He remonstrated with the risk of being put to death: I talked sincerely with 43 ministers such as Juying, who served as Liang Qian Dan, they all said ‘Chang didn’t pursue the statutes or listen to the instruction from the emperor, convened those who wanted to conspire and gave favorable treatment to those criminals who were sentenced to death in order to make them do something for him.’ We thought he should be punished according to the law.90 Emperor Wendi pardoned Liu Chang’s death penalty and abolished his throne. In the year of Mingyuan in the Northern Wei Dynasty, someone reported Antong, who built strong walls and assembled the masses, wanted to conspire. “Emperor Wei Emperor Taizong thought that Antong had assembled the masses without permission, thus using a prison carriage to collect him back to the imperial court and aggregating all the ministers to negotiate his crime.”91 In the year of the Sui Renshou period, Lurang, who worked as an imperial minister in Fanzhou, was reported by Sima for embezzlement and bribe-taking. “The emperor dispatched an envoy to interrogate him and found all the crimes were verified, then Lurang was imprisoned in Chang’an and interrogated by the emperor in person. Lurang said he was innocent, so the emperor requested an imperial minister to investigate it again, but his crime wasn’t changed. As a result, the emperor demanded all the officials to have a group discussion.”92 The Tang dynasty inherited the judicial customs of group decisionmaking in previous dynasties, and numerous officials were assembled to talk about cases. The bribery case of Xiaoling we have talked about before, which happened in the second year of the Yonghui period (651 A.D.), and the amnesty of Dengting can show that. (Dengting served as an imperial minister in Wuzhou and committed a crime of embezzlement) During the practice of litigation, the group decision-making 90

The Historical Record, Volume 118, Biography of Hengshan in Huainan, p. 3079. Book of Wei, Volume 30, p. 713. 92 Book of Sui, Volume 80, p. 1807. 91

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was carried out by the Ministry of Punishments and Da Li Si, judged by the emperor and decided by Shangshu. According to the imperial edict issued on June 13 of the fifth year of the Huichang period (845 A.D.): Since the Han and Wei Dynasties, the major policies in the imperial court must be discussed by officials with high status in detail to solicit principles extensively and stabilize the mood of the masses. Therefore, all the policies are reasonable, and people embrace the doctrine. Since then, if the masses had any doubt about things about moral standards, the emperor would demand ministers of Shangshu and the Ministry of Rites to discuss them. Those criminal cases were discussed in detail by judges, and then the Ministry of Rite was invited to take part in them. If Langguan, Censor (imperial officials in ancient China) can refute, reproach or publish a brilliant exposition by virtue of histories and past stories, then these ministers will be promoted or transferred nearby as a reward. If their utterance was rhetoric without any basis, then their opinions would no longer be reported to their superiors.93

In the Tang Dynasty, judicial organs such as the Ministry of Punishments, Da Li Si and the Censorate control criminal cases. For important things such as the death penalty, cases with uncertainties and crime reduction, a report according to the law is needed. Moreover, Volume 8 in Tang Liu Dian said, “Cases in the imperial court with uncertainties would be discussed by all the ministers, and those principles with differences would be judged by the emperor.”94 As a result, Menxia also has the right to request group decision-making to solve those affairs with uncertainties. In the first year of the Jingyun period (710 A.D.), Yan Shansi (who served as an official in the Da Li Si) planned with a rebel, whose name is Zhongfu, and should be imposed a heavy sentence. Han Sifu, an official in the Tang Dynasty, transferred memorials and said, “The case should be submitted to the Ministry of Punishments and be discussed and judged by numerous officials and should be treated cautiously.” At that time, some officials who participated in the group discussion thought Shansi should be pardoned, but others said he should be put to death as before. “Sifu submitted a memorial sincerely again, Ruizong accepted his memorial and decided to exempt his death penalty at last, thus he was exiled to Jingzhou.”95 Although the group decisionmaking doesn’t belong to the necessary judicial procedures in Tang Dynasty, once it was initiated, a final judgement would be formed, and when the agreed proposal was submitted to the imperial court, it would be equipped with direct executive efficiency. Whether memorials by Yousi or judgement by the imperial, it is an imperial who possesses an exclusive judicial right, so he can convene numerous officials to discuss important cases, it can also manifest the idea of executing penalty carefully.

93

Book of Tang, Volume 18, p. 604. Tang Liu Dian, Volume 8, p. 242. 95 Book of Tang, Volume 191, p. 5104. 94

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5.2 Participation in Discussion First, Chancery Province was a legal body of group decision-making in the Tang Dynasty, which was mainly responsible for convening and chairing judicial group decision-making,96 and Chancery Province had become the focus of judicial procedures. Tang Liu Dian said, “The official of Shangshu controlled all the ministers and provided an example for numerous officials. It governed six officials who worked in the Chancery Province and six officials who governed the judicial body, the first can be called the Ministry of Official Personnel Affairs, the second can be called the Board of Revenue, the third can be called the Ministry of Rites, the fourth can be called as the Ministry of War, the fifth can be called as the Ministry of Punishments and the sixth can be called as the Ministry of Works, all the affairs of the masses would be discussed and decided by these departments.”97 The Ministry of Punishments was one of the departments in charge of the Chancery Province, thus most of the affairs of group decision-making were chaired by the chancellor of the Chancery Province. In the second year of the Zhide period (757 A.D.), counterfeit officials were judged. “The crime they committed was divided into 6 types and numerous officials were convened in the Chancery Province to have a group decisionmaking.”98 In the early year of Zhenyuan, Dengting, who acted as an imperial minister in Wuzhou and committed a crime of embezzlement, wanted to be absolved because of meeting amnesty, “numerous officials were convened and discussed in the Chancery Province”.99 In July of the eighth year of the Zhenguan period (792 A.D.), Yuangen, who governed the palace architecture and wanted to be absolved because of his grandparent’s death day, was prosecuted by imperial ministers: “The emperor instructed the Chancery Province to have a group decision-making with protocol officials and judges.”100 In August of the sixth year of the Yuanhe period (811 A.D.), Liangyue revenged and killed a person for his father, Emperor Xianzong made an edict and requested the Chancery Province to discuss it.101 In the second year of the Dahe period (828 A.D.), Yang Yuqing, who served as an official in the Ministry of Official Personnel Affairs, was defamed by his underlings because of public affairs. The emperor instructed Hongjing (who worked as an official in Chancery Province) and Xiansi to have a detailed discussion in Chancery Province.102 In March of the ninth year of the Dahe period, things such as Yuwei (an imperial official in Huzhou) formulated regulations and systems without permission were reported by the Censorate: “They were submitted to those Sipin officials who worked in the Chancery 96

The Research on Assemble Discussion in Sui and Tang Dynasties, Nankai Journal, 2011, (1): 76. 97 Tang Liu Dian, Volume 1, p. 6. 98 Book of Tang, Volume 50, p. 2151. 99 Book of Tang, Volume 136, p. 3746. 100 Tang Hui Yao, Volume 23, p. 519. 101 New Book of Tang, Volume 195, p. 5587. 102 Book of Tang, Volume 157, p. 4154.

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Province to have a group decision-making.”103 It’s easy to see that the Chancery Province is the body convening and chairing judicial group decision-making during the whole Tang Dynasty. Second, the range of personnel who participate in judicial group decision-making is relatively definite. According to the laws of the Tang Dynasty, “Those ministers whose position is higher than Wupin can be called as the distinguished.”104 In March of the second year of the Zhenguan period (628 A.D.), every time Emperor Taizong judged cases in the past, he was certain to interrogate them with San Gong Jiu Qing (officials with high positions in ancient China). Then, the emperor instructed Wupin officials and Shangshu to discuss the death penalty.105 Although this command was a selection criterion, which was used to select personnel participating in group decision-making about the death penalty, it has provided a basis for the development of judicial procedures. The participants of group decision-making have the right to express their opinions, regardless of their division of duty or their official rank. When encountering major cases, the emperor can enlarge the range of personnel participating in group decision-making when judging the case of Song Shenxi during the fifth year of the Dahe period (831 A.D.), Wenzong convened ministers of Tai, Sheng, Fu, Shi to discuss face to face. Cui Yuanliang, who worked as Zuo Changshi, Li Guyan, who worked as Gei Shizhong, Wangzhi, who served as Jianyi Dafu, Lujun, Shu Yuanbao, Luotai, Jiangxi, Peixiu, Dou Zongzhi, Weiwen, who acted as Buque, and Liqun, Wei Duanfu, Ding Juhui and Yuandu, who worked as Shiyi, all participated in the meeting. All the ministers thought the case of Shenxi should be judged in other places and not be interrogated in the imperial court. Group decision-making still did not prevent officials such as Song Shenxi from being demoted with injustice; however, it prompted Emperor Weizong to negotiate the case with chancellors again. Afterwards, because of the remonstrance of Niu Sengru, Cou was demoted to be a king in Chaoxian, and Song Shenxi was demoted to be Sima in Kaizhou. In other words, the range of personnel participating in group decision-making is confined to Wupin officials of Zhongshu Menxia and Sipin officials of Shangshu. When dealing with exceptional cases, the participants can be adjusted properly. If the case is confidential, the emperor can select major ministers to negotiate together; for those major cases, other ministers can also take part in Ministers of the Chancery Province studied carefully. The ministers in Chancery Province are a significant force participating in judicial group decision-making, and their basis and method of group discussion are different. Zhong Shu She Ren was responsible for submitting edicts and participating in the group decision-making. All the imperial edicts and orders used to establish an inheritor should be drawn up and plotted; once these edicts are enacted, it would be put into effect.106 Once it was executed, the mistake was submitted and corrected. The final handling results of difficult cases would be released in the form of imperial edicts. When 103

Ce Fu Yuan Gui, Volume 474, p. 5370. Comments on Laws of the Tang Dynasty, Volume 2, p. 39. 105 Book of Tang, Volume 2, p. 29. 106 Tang Liu Dian, Volume 9, p. 276. 104

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Zhong Shu She Ren was drawing up and reviewing the edicts, an application for group decision-making was permitted if they had different opinions. In the second year of the Zhide period, Wang Qurong, who killed his country leader for his personal grudge, should have been put to death but was absolved by Emperor Suzong, “Jiazhi, who served as Zhong Shu She Ren, didn’t accept it at once, and submitted an edict to discuss the amnesty of Qurong’s crime.”107 In December of the fifth year of the Huichang period (845 A.D.), Wei Hongzhi, who acted as Ji Shi Zhong, suggested that the practice of Zhong Shu She Ren participating in the discussion of cases be resumed: “We discussed and thought aside from confidential affairs, suggestions from feudal princes and numerous ministers, and cases about money and grain, the six people of Zhong Shu She Ren should refer to the convention in the past.”108 The emperor accepted his suggestion.

5.3 Rules of Discussion The group decision-making in the Tang Dynasty can be divided into speech and written forms. If an emperor chaired numerous ministers to discuss cases, these participants expressed their opinions provisionally, then it could be called a form of speech. In September of the eighteenth year of the Zhenguan period (644 A.D.), all the ministers had group decision-making about the case of Zhang Zhongwen, who was a child from Maozhou. Weiting, who served as an official in the Ministry of Punishments, said, “The crime committed by Zhongwen means spreading heresy, now that he has met the amnesty, he should be absolved according to the law.”109 In the twenty-third year of the Kaiyuan period (735 A.D.), all the ministers had a group discussion about the revenge case of Zhangxiu, “Zhang Jiuling, who worked as Zhong Shu Ling, thought Zhang Zhongwen was descendant of the martyr, thus he should be absolved from the death penalty, but people like Pei Yaoqing, who served as Shi Zhong, disagreed with him.” The two examples above can be called individual opinions during the period of group decision-making by numerous officials. In contrast, a written edict is a more formal way of group decision-making; numerous ministers can elaborate on the opinions and relevant evidence in their edicts and provide a complete and accurate reference for the monarch, as well as fixed evidence. Wen Yuan Ying Hua recorded Jiazhi and Cuiqi’s group decision-making about Wang Qurong’s case in the second year of the Zhide period, providing direct evidence for ascertaining group decision-making in the Tang Dynasty. A book from Jiazhi said: A minister said: the chancellor was ordered to read the imperial edict, the general Wang Qurong killed the country leader, whose name was Duhui, he would be put to death according to the law. Because Shanjun was recaptured and needed to be defended, Wang Qurong was absolved from the death penalty, but his official post was eliminated, and he was exiled to 107

Zi Zhi Tong Jian, Volume 219, p. 7026. Book of Tang, Volume 18, p. 608. 109 Tang Hui Yao, Volume 39, p. 827. 108

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Shanjun to display his talent. We felt guilty for our positions, but we thought if an emperor wants to kill those rioters and consolidate the royal foundation, he must formulate definite laws and decrees and advocate etiquette. By doing these things, the masses would make a concerted effort, and competent officials would follow him. As a result, since Han Gaozu entered the strategic pass, a three-point law was formulated, which means that the murderer would be put to death and would not be changed in any circumstance. By doing so, Gaozu could conquer the Qing Dynasty and dominate the country. Currently, the emperor wanted to clear away the unmoral houses and the officers who created disasters. The emperor was not restricted by the law formulated by himself. I was afraid that it was different from the rules in the Hanzu period, so how can he succeed? The minister wrote sincerely: Wang Qurong was a civilian from Fupin who served as Pianpi (a deputy general in ancient China) in Sufang and did not have the right to kill a person without permission, but he committed the crime of conspiracy. Moreover, Wang Qurong controlled thousands of people, but he could not treat them equally; because he failed to defeat the trespasser from a foreign land, he killed the country leader with anger. Zhouyi said: in the situation where a minister killed the emperor, a son killed his father was unlikely to cause overnight reasons. The reason for these symptoms was gradual. If Qurong was released, his thought of conspiracy would be gradually produced. I heard that Qurong was proficient in placing riprap and guarding cities. When Shanjun was just recovered in the past, it could not be guarded by others aside from Qurong. Li Guangbi, who was from Taiyuan, Cheng Qianli, who was from Shangdang, Xujian, who was from Lingchang, Lujiong, who was from Nanyang, Jiaben, who was from Yongqiu, and Zhangxun, who was from Juyang, didn’t have Qurong’s ability to place riprap, but I hadn’t heard about any gangster defeating them. Those people who had a shortage of grain could save themselves, so why must Shanjun not live without Qurong? If the emperor absolved someone because of his ability to place riprap, then how can we curb other rebels? If the emperor absolved Qurong but killed subsequent rebels, then there was a contradiction between laws and decrees, which would be blamed by the masses. If you value the capability of Qurong, thus killing those whose talent exceeded him far beyond, isn’t the loss even bigger? As far as I’m concerned, Qurong was a person who wanted to conspire, and he disturbed Fuping but kept the peace in the suburb of Shan, now that he conspired Xianyin, how can he be loyal to the emperor? Let alone, the laws and decrees today were formulated by Emperor Taizong. Emperor Taizong cannot abolish the law formulated by ancestors for cherishing talent. Thus, I hope that the emperor can give up those ministers with trivial talent and attach importance to those people with foresight, then the disaster could be calmed down, and the troop would also be concerted, the world would be very happy, and there are many advantages that I cannot enumerate one by one.110

The Old Book of Tang and New Book of Tang did not definitely elaborate that the imperial minister Cuiqi had participated in the group decision-making of the case. Wen Yuan Ying Hua recorded the outline of Cuiqi’s participation in Wang Qurong’s case. In this book, Cuqi had a consensus with officials such as Jiazhi.111 Moreover, according to the New Book of Tang, “Wang Qurong killed the country leader and the emperor would absolve him, but Weizhi said: according to the law stipulated by Han Gaodi, people who murdered should be put to death, while a murderer could still be alive today, I’m afraid that’s not appropriate.”112 Weizhi, the imperial minister, also participated in the group decision-making of the case, but it’s uncertain whether the case had been submitted to the imperial court according to historical materials. In the 110

Wen Yuan Ying Hua, Volume 619, p. 3211. Wen Yuan Ying Hua, Volume 768, pp. 4040–4041. 112 New Book of Tang, Volume 122, p. 4352. 111

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judicial practice of the Tang Dynasty, the choice of the method of assembly should be determined in conjunction with the specific circumstances. In terms of voting method, the participants had the right to express opinions fully during the process of group decision-making, which means that group decisionmaking would not be restricted by provisional opinions or based on the number of votes.113 During the year of Wu Zetian period, Nv Yanggao disclosed that Shending (the brother of Shenji) and Nansuo conspired together, Liu Zhisu, who worked as Si Zhi in the Ministry of Punishments, interrogated the case and reported that Shending held a civil official, but the black robe should be worn by a military official, if he didn’t always have the idea of rebellion and decided to desert to Yuzhou, there was no reason for him to write an article, as a result, his idea of rebellion was clear and should be disposed of according to the law. Cao judged that Shending should be decapitated and that his property should be confiscated. Xu Yougong, who was an official in Da Li Si thought, “Qiu Shending was Qiu Shenji’s brother, now that Qiu Shending conspired, the office of his brother should be confiscated. Inferred from his guilt, his deeds could be verified. For the judgement of his case, the principle is difficult to exceed.” A suitable person should be dispatched to review the case again. Afterwards, Liu Zhisu upheld the original judgment twice: “the emperor invited Qiu official (an official who was responsible for the criminal case in ancient China) to attend the trial, thus inviting numerous ministers to have a group decision-making”. The final conclusion of the vote contradicted the opinion of Liu Zhisu and Xu Yougong. The case adopted the third opinion, which was advocated by officials such as Yang Zhirou. Finally, the case ended with the suspect’s acquittal.114 Participants in group decision-making could put forward their own opinions according to the case, and a few opinions could be reserved. This means adopting the opinion of the majority when meeting with different opinions during the period of group decision-making. In the twentieth year of the Zhenguan period (646 A.D.), all the ministers had group decision-making about the case of Zhang Liang’s conspiracy, which was an example of recognizing correct opinions by means of ratification: The emperor ordered numerous ministers to negotiate Zhang Liang’s case. Most of the ministers said Zhang Liang should be killed, but Li Daoyu, who served as Jiang Zuo Shao Jiang (an official who was responsible for the imperial building in the Tang Dynasty), said the symptom of Zhang Liang’s conspiracy was not evident, which means he was innocent. Emperor Taizong felt very angry, thus beheading Zhang Liang in the market and confiscating his property. One year later, the position of an official in the Ministry of Punishments was vacant, the ruler was ordered to choose a candidate wisely, and many edicts were not approved by the emperor. Emperor Taizong said, “There is a proper candidate in my heart. Li Daoyu thought that the symptoms of Zhang Liang’s conspiracy were not evident, and his opinion was appropriate. Although I didn’t adopt his suggestion at once, I felt regretful up to now.” As a result, Emperor Taizong awarded Daoyu the position of Shi Lang in the Ministry of Punishments.115 113

The Research on Assemble Discussion in the Sui and Tang Dynasties, Nankai Journal, 2011, (1): 74. 114 Tong Dian, Volume 169, pp. 4377–4378. 115 Book of Tang, Volume 69, p. 2516.

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On the other hand, during the process of judicial practice, although a number of cases have formed correct opinions, they cannot be adopted by the emperor. In June of the sixth year of the Zhide period (757 A.D.), Wang Qurong killed Duhui (the country leader of Fuping) for his personal resentment, numerous ministers such as Jia Zhi, Cui Qi and Wei Jiansu all said that Wang Qurong should be put to death because of unjust, but Emperor Suzong “absolved him at last”.116 Although several ministers have a humble status, whose weight of speech is very light, their individual opinions often became critical factors influencing the trend of the case. In the Dali period, Dengting, who acted as an imperial minister in Wuzhou, committed a crime of embezzlement, and the amount of money attained 80 Guan. Because Dengting had a friendship with the ruler, he was absolved for meeting amnesty. “The emperor ordered numerous ministers to have a group discussion in the Chancery Province. Most of the participants hoped that the emperor could adopt the ruler’s opinion, then Zhidou, who worked as an official in Da Li Si, enforced the law firmly, and convicted Dengting according to the law. Those bribes were collected at last.”117 If Doucan did not participate in the group decision-making of the case, the procedure of group decision-making would be reduced to officials’ echo of the views of the crowd as well as a legitimate method of disculpation. As a result, numerous officials’ participation in decision-making has maintained the authority of code and judicial justice from the procedural level. Moreover, general legal rules would be formulated by full expression of opinions from numerous officials, ascertaining the fact, distinguishing laws and decrees, and creating a precedent, thus completing the positive interaction between judicial practice and rule creation.

6 Summary Judicial group decision-making was an integral part of numerous ministers’ participation in discussion in the Tang Dynasty. If judges met major and difficult cases, they would submit them to the emperor, who convened numerous ministers to negotiate together, and then drew up a resolution. The laws and decrees in the Tang Dynasty lack systematic stipulation for group decision-making, and most of their scope of application, procedures and effects are dominated by litigation practice. First, in the area of group decision-making on criminal cases, participants discussed the accusation in accordance with laws and decrees, combined with related literature from the aspect of legal techniques. Aside from ministers of Da Li Si and Ministry of Punishments, participants could express their own opinions with no restriction from the position or official rank. When dealing with significant cases, the emperor could convene numerous ministers to negotiate many times, and the scope of participants could be adjusted at random.

116 117

Zi Zhi Tong Jian, Volume 219, p. 7027. Ce Fu Yuan Gui, Volume 617, p. 7137.

6 Summary

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Second, penalty discretion is the most concentrated area of judicial group decisionmaking, and it defended the judicial concept of “Shen Xing Jin Xu” to the greatest extent through the procedure of group decision-making. In the second year of the Zhenguan period (628 A.D.), the basic judicial principles that death penalty cases be negotiated by Chancery Province were established; afterwards, the execution of the death penalty became more formal, the scope of collective punishment was narrowed, absolution and forgiveness became more stringent, and the application of edict abuse was effectively avoided. The procedure of group decision-making has initiated litigation practice, which means legal rules explained by participants in group decision-making. By definitely explaining laws and elaborating details, the judgment of individual cases became more reasonable, and the subsequent judicature was affected by initiating precedents. Third, the law in the Tang Dynasty inherited the custom of judging cases according to sacred books; it pursued that the principle of morality is the foundation of governing a country, while criminal suppression is the auxiliary means, and it often solves conflicts between rite and law by group decision-making. The main functions of group decision-making are reviewing the suspects, interpreting the law and creating judicial precedents. If legal precedents were applied repeatedly, then litigation convention would come into being; if the conclusion of group decision-making went down in history, then it would become a common law abide by numerous officials. If the law adapted to the principle of not pursuing the past, and established the precedent of changing titles after death if something happened; the precedent that close relatives were forbidden marrying and the revision of law had been promoted directly; judges tried reconciling the conflict between laws and rites, then created and practiced the convention of group decision-making about revenge cases for a long time. All the things above embodied the communication function of group decisionmaking in the Tang Dynasty and made a useful attempt in the aspect of the defects of laws and decrees. Fourth, group decision-making applies to the review of major and difficult cases, which means numerous officials find, discriminate and block judicial rules and affect the subsequent judicial judgment through policy agreement, law argumentation and case discussion. Judges applied for revising criminal policies and legal rules according to the change of circumstances, as for those significant cases, the Chancery Province would convene numerous officials to negotiate, which was an important approach of law formulation in the Tang Dynasty. Fifth, the execution of the death penalty, knotty cases of Da Li Si and the conviction of “Ba Yi” apply to group decision-making among laws and institutions in the Tang Dynasty. However, only by analyzing a large number of cases can we determine the operation of group decision-making. In the practice of litigation, the procedure of group decision-making was carried out by judges, judged by the emperor and chaired by the Chancery of Province. The scope of participants can be adjusted according to the situation of cases. In the case of group decision-making in the criminal case, the meaning of judicial democracy was prominent. Numerous ministers could fully express their opinions in written terms of speech, and the individual opinions of the participants could also be retained. By identifying facts, clarifying legal orders and

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creating precedents, the process of group decision-making finally formulated general legal rules, thus completing the positive interaction between judicial practice and the creation of rules.

Chapter 13

Judicial Review

1 The Historical Development of Judicial Review The application for judicial review is a system in which superior judicial organs supervise and review subordinate jurisdictions to settle problems and dispel grievances in traditional litigation. Late in the Western Zhou Dynasty, a relatively complete rule of the application for judicial review was formed in China’s litigation, which is an indisputable fact in academic circles. The Book of Rites-Kingship describes the judicial report and review of ancient times as follows: After the decision was made, the verdict was submitted to the judge by the official historian. The trial is being tried again, and then the judgment is handed to the chief secretary, Chi Kou, who was mainly in charge of the prisoners. Chi Kou tried again in the outer court of the Forbidden City under the jury of Doctor Guqing and others and then submitted the verdict to the emperor. The emperor ordered the three officials to try again. After the three trials, the judgment was submitted to the emperor. The emperor further examined whether the case was applicable to three cases of lighter treatment for criminals in ancient times, if not, then sentenced.1

It can be seen that the opinion of the first instance of the original trial organ is the basis for the review by the superior legal department, which is the so-called “wind up a case” in the Book of Rites. Marquis of Lv on Punishments says, “The case is convincing. It is also convincing to use redemption after the judicial review.” Collective Works of Kong says, “After the first trial, the judicial opinion should be reported to the superior judiciary for judicial review.”2 Therefore, in ancient times, the judicial review was a statutory procedure that was written to the higher law department after the original judgment department formed the preliminary opinion. The judgment formed after the completion of a case is called “wind up”. Zhou LiChi Kou, “The lawsuit between the plebeian people is judged by the convention, which is used to manage people and handle the cases.” Zheng Sinong said, “The 1 2

Book of Rites-Justice, Volume 13, pp. 418–428. Justice Book of Shang, Volume 19, p. 649.

© Science Press 2021 X. Chen, A Study of Criminal Proceeding Conventions in Tang Dynasty, https://doi.org/10.1007/978-981-16-3041-5_13

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convention was used to manage people and handle cases. At that time, all cases could not be prescribed in law and could be reported to the emperor in the case of similar provisions. This judicial precedent will be approved by the emperor. That is, it has the force of law and can be used as the basis for future judgment.” Thus, “wind up a case” is intended to be determined, that is, the first trial decision; “the convention” is the judicial precedent, as a reference for future trials.3 The formation of judicial precedent is based on judgment, but not all judgments can ultimately be preceded by legal precedent. In the Han Dynasty, the “Zouxian” system was formed, which means the submission, trial, judgment and execution of suspected prisons. It was clearly stipulated that the law department at all levels should declare the suspected prisons step by step in accordance with the law for those cases that were not authorized to judge and difficult cases. In the seventh year of the Gaozu period (200 B.C.), Emperor Gaozu of the Han Dynasty gave an order to the censor: Since then, the county road government encountering difficult cases that cannot be resolved must report to the county government. If the county government cannot accurately judge, then ask court justices for trial. The opinion of the upper county government is only the conclusion, not the full text.4

In the Qin, Han, Wei and Jin Dynasties, the conclusion of the first trial of the law department was called “convictions”. The Book of Han-Biography of Zhang Tang records a story that Zhang Tang digs the rat hole, finds the rat that steals the meat and the meat that has not been eaten up, then accuses the rat of the crime, tortures and interrogates, records the interrogation process, interrogates repeatedly, reports the verdict to the superior, and takes the rat and the leftover meat, finally decides on the spot, divides the rat into corpses and executes. Yan Shigu of the Tang Dynasty marked, “This is a process of obtaining evidence and finalizing the case.”5 He said, “Once evidence of a crime is confirmed, it can be convicted in the end.”6 It can be seen that “convictions” ended in the trial and were consistent with the idea of “wind up a case”. In the Han Dynasty, there was a clear standard of “convictions”. The Radical Articles says, “After inquisition by torture, the criminal was unable to make up his mind. The truth of the case was clear, and the evidence was conclusive.” Yan Shigu pointed out, “Since the criminal was unable to advance any further arguments to justify himself and the evidence was conclusive. Then, the criminal will be convicted according to the law. The conviction documents written by officials should be thorough and not overthrown.7

If the judiciary authorities ask for a prisoner’s case and obtain a defense, the facts of the case have been identified, that is, prison sentences. The original information 3

New data and precedent system in Pre-Qin and Qin and Han Dynasties, Journal of East China University of Political Science and Law, 2009, 6: 104. 4 Book of Han, Volume 23, p. 1106. 5 Book of Han, Volume 59, p. 2637. 6 Book of Han, Volume 71, p. 3042. 7 Radical Articles, Volume 4, p. 3042.

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declared by the preliminary examination organ is the basis for the review by a higher legal department. The basic requirements are to keep the documents confidential and thoroughly convinced. As far as the types of cases reviewed are concerned, during this historical period, legislators paid special attention to the report and review of death penalty cases. In the Book of Later Han Biography of Meng Chang, it was recorded that death penalty cases were reported in the county of the Eastern Han Dynasty: A widow in Shangyu County is very filial, and she takes care of her mother-in-law. After her mother-in-law’s death, her sister-in-law, who had been full of resentment and suspicion, falsely accused her of being tired of supporting her mother-in-law, thus poisoning her motherin-law and suing her in the county court. County officials did not carefully investigate the case and finally unexpectedly convicted by this false accusation. Meng Chang knew the truth in advance and explained the original cause to Taishou (prefecture chief in feudal China) carefully; Taishou did not handle the case for him. Meng Chang cried outside the door and begged for help; finally, he resigned with an excuse. The widow was eventually wronged and died.8

It is worth noting that the application of judicial review is the supervision and review procedure of the law department for settled cases, that is, it is suitable for the level of the administrative office. The procedure is based on the presupposition of the law for the jurisdiction of the cases and the power of sentencing. The lower law department carries out the procedure on its own initiative according to its functions and powers, not on the premise of the appeal of the parties to the cases. During the Wei, Jin, Southern and Northern Dynasties, the standard of imprisonment was more detailed. The Book of Wei-Criminal Law says, “‘Yucheng’ means the person who ends the case and punishes the offense. After confirming the facts of his crime, Tingwei Temple convicted him again according to the evidence; if the accusations were revealed one by one and the nature of the case was clear, the case should be concluded and convicted. After the case was convicted, the censor was impeached to collect the charges and report the case to Shangshu Department, and then the case was transferred to Tingwei Temple by Shangshu Department. The Tingwei Temple was convicted according to the law and then reported to the Shangshu Department. The Shangshu Department attached handling opinions to the highest decision-maker. If Tingwei Temple considers that the evidence is insufficient, or the defendant appeals again, or the case is in doubt, it cannot be convicted according to the law.”9 It can be seen that, in addition to the fact of the original judgment is clear, the evidence is sufficient, such as the subject of direct prosecution, or the review organ doubts, it cannot be called “Yucheng”. During this period, the right to approve the death penalty was transferred upward, and those who had completed the trial of death penalty cases had to report it to the emperor for approval. In June of the fourth year of the Emperor Qinglong period (236 A.D.), Emperor Qinglong of the Wei and Ming Dynasties reigned an imperial edict: “The emperor ordered his officials who work in Tingwei Temple and prison officers at all levels to report the death sentence for grace to the 8 9

Book of Late Han, Volume 76. pp. 2472–2573. Book of Wei, Volume 11, pp. 2883–2884.

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royal court in time, and then the conviction was decided by the emperor.10 Emperor Taiwu of the Northern Wei Dynasty issued an order that the country’s major cases should be reported to the court before conviction.11 Apart from death penalty cases, the specific scope of the application for judicial reviews was not clear.

2 Improvement of Judicial Review in Tang Dynasty “Reexamination, do the judicial review again.”12 The system of the application for judicial review to the superior judicial organs was completed in the Sui and Tang Dynasties after a long period of evolution. The governor of the state plays a very important role in reviewing judgments in the county. The Tang West Market Museum of Xi’an collects The Epigraph of Shedi Shiwen, the Three States Governor in the Sui Dynasty, which records the second year of the Emperor Kai period (582 A.D.), Shedi Shiwen, the governor of Bei State, dealt with prison affairs: He heard of unsettled cases in his field of jurisdiction and then ordered those officials to be strict with themselves to solve these cases. In less than seven days, Chi Kou, who was in charge of prison affairs, announced the results. So two days later, he went to Ji State to deal with the backlogs in the same way.13 As a prerequisite for reporting judicial review, the standard of prison in the Tang Dynasty is more complete. The Comments on Laws of Tang Dynasty says, “If an official commits a crime of Ten Abominations or intentional homicide, even if the emperor’s amnesty occurs, he can no longer regain his official status.” The code gives more explanations that once the offender’s crime is confirmed, even in a state or county, the governors can wind up the case. The crime is very clear and the case that the Ministry of Punishments (one of the offices in Shangshu Department) has decided but has not yet been reported to the emperor for final approval can still be closed in accordance with the law.”14 Thus, for general criminal cases, according to the jurisdiction of Tang Liu Dian, the local state and county law department will sue the prisoner if the facts of the case are clear and the evidence is sufficient; or the case is declared to the Ministry of Punishments according to law, and the judicial review is completed. Even if it fails to report to the emperor, it will be settled. This is the basic standard of “wind up a case” in the Tang Dynasty. It is also an essential element of the judicial review procedure. Li Baiyao said, “The emperor must investigate every case himself, so as not to generate grievances.”15 It means the trial of the law department and the examination of cases by the Ministry of Punishments, which is in line with the provisions of Tang Liu Dian. 10

Records of the Three Kingdoms, Volume 3, p. 107. Book of Wei, Volume 111, p. 2874. 12 Examination of Criminal Law in Past Dynasties, p. 1480. 13 Epitaph of the Tang West Market Collection, p. 33. 14 Comments on Laws of Tang Dynasty, Volume 2, p. 48. 15 Zhenguan Politicians, Volume 3, p. 108. 11

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In the judicial practice of the Tang Dynasty, with the change of political and economic situation, it was easier to determine the standard of “wind up a case”. On July 28th of the seventh year of the Tianbao period (748 A.D.), the emperor issued a decree: When an official is accused, the Ministry of Punishments examines the case and makes a conviction with conclusive evidence. The defendant pleaded guilty with signature and revoked his official duties. If there is no amnesty from the emperor within the prescribed time, the result will be in accordance with the original conviction. If the censor has mercy on the accused, then the crime can be reduced according to the law.16

On December 14th of the first year of the Emperor Suzong period (760 A.D.), according to the request of the Ministry of Punishments, the emperor should expand the recognized standard of “wind up a case”: There is a decree drafted according to the Emperor’s will, “In Comments on Laws of Tang Dynasty, ‘The crime is very clear and the case that the Ministry of Punishments (one of the offices in Shangshu Department) has decided but has not yet been reported to the emperor for final approval can still be closed in accordance with the law’. The book gives more details that ‘Stolen goods are the motive and reasons for criminals to commit crimes; and the accusation is the method and important evidence of the crime. Once the offender’s crime is confirmed, even in a state or county, the governors can wind up the case.’ I now consult with the judge, if the perpetrator himself admits the crime, and has reported his crime in fact, then the case is closed immediately according to law. The officials further examine the discussion with the judge today and still feel that this method is feasible.”17

Therefore, in addition to the two types of “wind up a case” stipulated in the Comments on Laws of Tang Dynasty, prisoners who voluntarily plead guilty and lie in wait for the law, as well as those who confirm the crime in imperial prison cases, can be regarded as crimes. Regardless of the reply to the case reported by the law department or the conviction according to the law, it highlights the special effect of the imperial power factor interfering in the process of the case: the procedure of the application for judicial review in the Tang Dynasty was very complicated, and the jurisdiction limits and reporting procedures of the law department at the central and local levels were stipulated in Tang Liu Dian: Those who committed crimes and have been judged in the county should be sent to the state for judicial review, and those who are guilty of imprisonment and those who are in exile for redemption should be sent to the Capital Department and Henan Department. The two departments will convict the final offence, merge some of the same offence and find that the sentence can be commuted. Finally, if there is no objection after the judicial review of the Zhongshu Department, they can issue documents to the lower authorities. If there is a case that is not properly handled, the relevant departments will correct it according to the law; if Da Li Si and the other states should relieve the official of his positions and duties when the case is adjudicated, they should write the detailed documents to be reported to Zhongshu Department; If there are many cases that need to be reviewed, censors will be sent from the capital to review them, and cases in the capital will be reviewed by the Ministry of Punishments.18 16

Criminal Laws of Song Dynasty, Volume 2, p. 33. Tong Dian, Volume 165, p. 4261. 18 Tang Liu Dian, Volume 6, p. 189. 17

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Compared with the previous dynasties, in the Tang Dynasty, the procedures of the application of judicial review have the following characteristics. First, jurisdictions of local and central cases were clearly divided. In the Tang Dynasty, the power of sentencing was restricted by the local law department. The County Department could only decide the cases of punishments with a whip, and those who were imprisoned were required to report to the state for review. Cases of exile and death crimes must be reported to the Ministry of Punishments for judicial review again and finalized by the emperor. Second, the leading position of the Ministry of Punishments in the review process was strengthened. The Ministry of Punishments reviews the cases of local exile, death penalty and the abovementioned cases of royal court penalty. Cases not settled completely may also be sent to the Ministry of Punishments for judicial review. Third, the legal liability for violating the judicial review procedure was set up. According to the Comments on Laws of Tang Dynasty, “An act of self-determination in the absence of a report to the superior organs: ‘In the process of convicting a crime, the officials who should report it to the court but not, or who should wait for a reply but not, or who decide the case on their own, would convict of third-class negligence.”19 When the county applies to the state, Da Li Si, Capital Department, and Henan Department for the judicial review, they must form a definite opinion on the first instance of the case, which is called statement before conviction. Prior to the judgment, the court of the first instance should follow the basic principle of “judging the psychological activities of the parties from five aspects (speech, expression, breath, look, and smell)”, and its litigation parts may also involve arrest, inspection, interrogation, and report. After a preliminary examination opinion is formed, the prisoner shall be sentenced for review without any other words. In March of the fourth year of the Tianbao period (754 A.D.), Li Linfu selected more than sixty officials through the Ministry of Punishments to obtain illegal benefits. The emperor sent the officials of the Capital Department and the censor to try this case, but after many days, it did not conclude; therefore, the official of the Capital Department, Yin Xiaojiong, sent judicial officer Ji Wen to interrogate the case. Ji Wen takes the list of double punishments to threaten them, and military officials are afraid of his cruel behavior, so they plead guilty with innocence. “Just in a moment, the case was closed, but the criminals were not tortured.”20 Yan Xiaojun pointed out that there was a so-called “reexamination” in the process of trying a case in the Qin and Han Dynasties. It is also called “interrogation” in the Book of Zouxian. That is, to investigate and verify the confession or the facts of the crime and to examine the results of the trial for the last time.21 The so-called prisoner’s interrogation is to test the suspect immediately before reporting the judicial review. For major or death penalty cases, the Department of Justice conducted a trial of the case, and the Ministry of Punishments conducted the judicial review. After that, these cases should be reported to the Zhongshu Department for discussion and decision making to perform the prime minister’s signature procedure. In April of the eleventh year of 19

Comments on Laws of Tang Dynasty, Volume 30, p. 561. Zi Zhi Tong Jian, Volume 215, p. 6864. 21 Legal Studies in Qin and Han Dynasties, Law Press, 2012, p. 86. 20

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the Tianbao period (752 A.D.), Wang Zhao, an official of Hu Department, and Xing Zeng, an official of the Capital Department, conspired against the state strictly but was arrested in the end. On that evening, the censor Wang Gong committed suicide. According to the New Book of Tang Biography of Li Linfu, “After Wang Gong’s defeat, the emperor ordered the prime minister to convict Li Linfu. He was so afraid that he dared not look at Wang Gong’s face, but his crime had been convicted and his guilt was so clear that he could not refute them.22

3 The Dominating Status of Ministry of Punishments in Judicial Review In the New Book of Tang, “As long as it is exile or death penalty, it must be reported to the Ministry of Punishments for determination, and then be reported to the Zhongshu Department for judicial review.”23 According to the rules of Tang Liu Dian, in the procedure of judicial review, Ministry of Punishments always played a leading role in Tang Dynasty. All cases of imprisonment in Da Li Si and the Capital Department and those cases in which the crimes and punishments of officials have been reduced after felony mergers should be reported to the Ministry of Punishments for judicial review. The Punishment under the exile penalty that was decided by the Da Li Si must be reported to the emperor after the judicial review of the Ministry of Punishments. In the first year of the Tang Dynasty, the function of the judicial review of the Ministry of Punishments was repeatedly emphasized. In the eighth year of the Kaiyuan period (720 A.D.), the emperor decreed that if an official, both inside and outside, is accused of corruption and perverting the law, he should immediately go to the imperial court to defend himself and mitigate the crime. “Da Li Si must examine the crime in detail, and the Ministry of Punishments must review it carefully. If there is any injustice, it is still necessary to report to the Zhongshu Department.”24 On July 11th of the first year of the Guangyuan period (763 A.D.), the emperor made an order, “For all the country’s criminal cases, Da Li Si should make the judgement first, and then Ministry of Punishments should make judicial review carefully, and finally Zhongshu Department should determine the penalty.”25 After the rebellion of An and Shi, the imperial court issued orders to set up the time limit for reviewing cases and other supervision affairs. In September of the fourth year of the Yuanhe period (809 A.D.), the emperor issued an order denouncing the Ministry of Punishments and Da Li Si for taking too long to examine and decide criminals. It clearly stipulated the scope, time limit and criteria for the review of cases by the Ministry of Punishments: 22

New Book of Tang, Volume 223, p. 6347. New Book of Tang, Volume 48, p. 1256. 24 Tang Hui Yao, Volume 66, p. 1357. 25 Tang Hui Yao, Volume 41, p. 874. 23

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Since then, Da Li Si shall not handle cases for more than twenty days, and the judicial review of Ministry of Punishments shall not exceed ten days. If there is any objection after the review by the Ministry of Punishments, the time for the retrial in Da Li Si shall not exceed 15 days, and the time for the re-examination in Shangshu Department shall not exceed seven days. If there are documents from regional states to be sent to the capital for internal audits, the results will be made that day. The number of days after the entry of the document is calculated, and the audit time cannot exceed five days. At the same time, it ordered the Ministry of Punishments to record the time for the reply of the documents. The documents should be reported to provincial governors and special envoys. Each department could report to the imperial court to expose the inefficiency of other departments.26

If a case is not completed within the prescribed time, it will be sent to other departments. If the case in Da Li Si has been clarified every month but the name of the criminal and the crime have not been reported to the court, the case shall be reported to Zhongshu Department.27 In May of the first year of the Changqing period (821 A.D.), owing to too many penalties, the censor Niu Sengru reported to the emperor to set up a time limit. According to the seriousness of the case, the judicial review time of the Ministry of Punishments was extended by 30, 25 and 20 days. If there are a large number of offenders with the same penalty, one will be cited as an example.28 On December 25th of the fourth year of the Dahe period (830 A.D.), according to the seriousness of the case, the emperor decreed that the time limit for the judicial review of the Ministry of Punishments should be changed to 15 days for the most serious cases, 10 days for medium serious cases and 8 days for the least serious cases.29 The above time limit was reaffirmed in July of the seventh year of the Dahe period (833 A.D.). In addition, on October 22 of the fourth year of the Dahe period, the emperor’s order stipulated that Zhongshu Department should send people to supervise the judicial review of cases by the Ministry of Punishments and other relevant matters. “From now on, if the way of wind up a case in Da Li Si is not appropriate, or the result is not appropriate, the Ministry of Punishments should conduct a detailed judicial review. If the work is not effective, then the Zhongshu Department should send people to investigate the improper handling of the case and to report to the superior organs.”30 If the problem that too much time spent by the Da Li Si in winding up cases and the Ministry of Punishments in reviewing cases is not improved, then from next year, the official Fang Zhiwen of Ministry of Punishments will use the judiciary of the Tai Department to review cases in detail and write the relevant documents, “The Tai Department should immediately report the documents, preventing delays in cases.”31 As the central organ of judicial review, the leading role of the Ministry of Punishments is mainly reflected in the judicial review of death penalty cases, difficult cases 26

Old Book of Tang, Volume 50, p. 2153. Tang Hui Yao, Volume 66, p. 1358. 28 Old Book of Tang, Volume 50, p. 2155. 29 Ce Fu Yuan Gui, Volmue 613, p. 7076. 30 Tang Hui Yao, Volume 55, p. 1112. 31 Ce Fu Yuan Gui, Volmue 467, p. 5277. 27

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and disputed cases. After the Rebellion of An and Shi, on the one hand, the imperial court frequently adjusted the rules of the judicial review of the Ministry of Punishments; on the other hand, the records of the judicial review of the officials of the Ministry of Punishments in the middle and late Tang Dynasty were more concentrated. Based on the traditional judicial concepts of “emotion, reason and law”, all kinds of homicide cases often became the focus of public opinion at that time. In accordance with the latest imperial decrees, the Ministry of Punishments reviews the conclusions of the original judgment in accordance with the law to seek a “natural principle, national law, human relations” of the accommodation.

3.1 Judicial Review According to the Law In the middle of the Changqing period, a military staff officer, Qu Yuanheng, killed the mother of Bai Gongcheng. The judiciary believed that Bai’s mother died wrongly. At that time, Qu Yuan Heng’s father was appointed to the army, and he gave Bai the money by the protection of Qu Yuan Heng’s father. Bai Gongcheng did not appeal to the local authority after receiving the money, so Qu could be pardoned. “Beating people with sticks is criminal law, and officials can execute it within other subordinates. If they are not his subordinates, even if they are guilty, they must be handed over to the director to show that they cannot execute punishments without authorization”, Yuan Lin said, Qu Yuanheng is not an official. Bai’s mother is not his subordinate. He cannot be exonerated from the protection of his father. Bai Gongcheng accepts bribes from his enemies, making profits by his mother’s death, which violates nature. Therefore, he should also be convicted.” According to Emperor’s edict, “Qu Yuanheng was hit by sixty sticks and then exiled, and Bai Gongcheng was killed in accordance with the law.”32 In the fourth year of the Huichang period (844 A.D.), Mrs. Pei is Liu Zhen’s mother and Liu Congjian’s wife, who was implicated because of Liu Zhen’s rebellion. However, she is Pei Wen’s younger sister, and Pei Wen worked hard for Tang Dynasty. Therefore, some people advocated that she should be pardoned. The two Ministers of the Ministry of Punishments, Chen Shang and Liu Sanfu both participated in this case. In view of Mrs. Pei’s crime, the Ministry of Punishments held that she could not be exempted from the crime with her brother’s merits, and insisted that she should be punished according to the law. Liu Sanfu and Chen Shang expressed the following opinions: From the minister of punishment Liu Sanfu, “As Liu Zhen’s mother, Mrs. Pei, should be persuaded if he was often told the way of loyalty and filial piety, so that he could understand the source of misfortune, disobey slander and keep evil voices from his ears. But Liu Zhen and his party members were rebellious at an early age, which was Mrs. Pei’s fault. Although

32

Ce Fu Yuan Gui, Volmue 616, p. 7125.

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her brother Pei Wen contributed to the Tang Dynasty, Mrs. Pei should be punished according to the law of the country.”33 From the minister of punishments, Chen Shang, “Mrs. Pei connived at her son’s rebellion and did it. She should be punished according to the law as a warning. Such behavior is unbearable for national laws, and all officials propose that they should be severely punished.”34

According to the opinions of those ministers, in September of the fourth year of the Huichang period, Liu Zhen and his mother Mrs. Pei were killed.35 During the judicial review of Qu Yuanheng case and Mrs. Pei case, the Ministry of Punishments adhered to strict laws and regulations, judged crimes according to the law, and restricted prisoners to commute or exempt punishments at will, which was a model for the Ministry of Punishments to make punishments according to the law.

3.2 Review According to Ethics In addition to strictly performing the law, the judicial review of the Ministry of Punishments in the Tang Dynasty tended to highlight the essence of the thought of “emphasizing that ethics are the foundation of governing a country and that punishments are a supplementary means”. In Comments on Laws of Tang Dynasty, by reviewing the case, commending filial piety, and seeking a balance between law and ethics, the government implemented the practice of improving the law or amnesty in the field of judicial review for a long time. In July of the fourteenth year of the Yuanhe period (819 A.D.), Quan Changru, the official in the Salt and Iron Department of Fujian, was convicted of stealing goods, so there was the decree that ordered the Capital Department to punish him. Because Quan’s mother, Mrs. Liu, was very old and pleaded bitterly with the prime minister, he was finally pardoned and then exiled far away after being hit by one hundred sticks.36 In the third year of the Baoli period (827 A.D.), in the capital, a motherin-law took a whip to kill her daughter-in-law, whose family was going to send the mother to prison. Regarding this special homicide case involving the relationship between superiority and inferiority, an official of the Ministry of Punishments thought that the mother should pay for her daughter-in-law’s death, and Liu Gongchuo, the head of the Ministry of Punishments, believed: It is not a dispute for older people to teach young people. According to the Comments on Laws of Tang Dynasty, “Two people quarrel with each other is a struggle, but beating each other is personal injury.”37 Mother-in-law killed her daughter-in-law, this is not a “struggle”, thus does not establish a “fight” 33

Old Book of Tang, Volume 177, p. 4617. Ce Fu Yuan Gui, Volume 616, p. 7126. 35 Old Book of Tang, Volume 18, p. 602. 36 Yin Hua Lu, Volume 1, p. 72. 37 Comments on Laws of Tang Dynasty, Volume 21, p. 383. 34

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clause. Liu Gongchuo negated Dou Langzhong’s opinion, and believed that, “This mother has a son, the deceased is the son’s wife, killing his mother because of the death of son’s wife was not in line with filial piety.”38 From the point of view of Gongchuo, the mother’s sentence was reduced by crime. Apparently, Liu Gongchuo identified the nature of the case as an act of injury (with aggravated consequences), held the idea of “sentence by balancing the criminal motives”, excluded the motive of the suspect to fight and kill, and adopted the purpose of safeguarding the interests of the elders and the feudal ethical relationship. In April of the second year of the Changqing period (822 A.D.), A man named Zhang Li owed money to another man called Kang Xian. Kang Xian asked him for a debt. Zhang was drunk and had an argument with Kang Xian. Kang Xian’s son, Kang Maide, was only 14 years old. He took a wooden bow and hit Zhang Li on the head. Three days later, Zhang Li died. According to the Comments on Laws of Tang Dynasty, “If someone beats your grandparents, your parents, and you come to the scene of the fight later, you should go and rescue your family. In the process of rescuing, the assailant is attacked. If he is not injured, you will not bear any consequences. If you accidentally severely injured the hand, it will not have very serious consequences, but the severity of the injury punishments.”39 But if you kill someone for saving your father, like what Kang Maide’s did, it will be serious or the death penalty. From the Book of Rites-Kingship, “In the process of examining similar cases, we should consider the relationship between father and son, monarch and minister to weigh the final outcome of the trial.”40 In traditional litigation, the identity and motivation of the parties must be taken into consideration. In this case, Kang Maide was still in his early years and enjoyed the right of redemption according to law. In the Tang Dynasty, it was a light treatment to beat someone to save his parents. However, if he killed someone, it was a homicide, and Kang Maide had to be sentenced to death. However, some officials, such as Sun Ge, believed that Kang’s rescue of his father was filial piety rather than violence and that beating Zhang Li saved his father rather than cruelty. Kang Maide knew his father and son’s relations at a young age, so his conviction can be reduced from the motive of committing a crime.41 In the end, the emperor learned about this and agreed with the official to remit the death penalty.42 The conclusion of the judicial review of the Kang Maide case had a farreaching impact on later generations, and even in the late Tang Dynasty, the Ministry of Punishments still cited this case to review homicide. In July of the second year of the Tiancheng period (927 A.D.), a common person named Gao Hongchao, whose father Hui was killed by a fellow countryman Wang Gan, took a knife to kill Wang as his father’s revenge and then surrendered himself to Da Li Si to confess the killing facts. In terms of nature, the case should belong 38

Ce Fu Yuan Gui, Volume 616, p. 7125. Comments on Laws of Tang Dynasty, Volume 23, p. 422. 40 Justice of Rites, Volume 13, p. 481. 41 See Footnote 38. 42 Old Book of Tang, Volume 16, p. 497. 39

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to revenge killing. However, an official of the Ministry of Punishments called Li Yinmeng cited two similar cases and considered Gao to be the father’s revenge with his filial piety and then reduced his punishments: Li released edicts, “The way of loyalty and filial piety is the key to governing the country. The main point of law lies in the reasonable penalty. In examining the case, we should consider filial piety. Now Gao Hongchao revenged himself for his father because of filial piety, which can cancel his death penalty.”43

After the three cases were reported to the imperial court, the Ministry of Punishments concluded that the concept of kinship, filial piety and righteousness would reduce the crime. The procedure of judicial review played an important role in safeguarding the feudal ethical and moral standards, guiding the direction of public opinion, and inheriting the litigation concepts of justice and punishments.

3.3 Review of Knotty Cases In the Tang Dynasty, the judicial review of the Ministry of Punishments, adhering to the above judicial ideas, played an important role in analyzing difficult problems and eliminating injustice.44 Zheng Ke said, “The case must be examined in detail before sending prisoners to prison.”45 In the Tang Dynasty, when the Ministry of Punishments reviewed difficult cases, they emphasized identifying the original details of the cases on the basis of written materials to accurately convict and sentences. At the beginning of the Dahe period, the foreign envoy Han Yue reported to Da Li Si that the prefectural governor of Ai State Zhang Dan had stolen goods and wanted to do evil things. The case was reviewed by the Ministry of Punishments, who thought Zhang had no motive for doing evil things: “First, Zhang Dan was ordered to hand in the stolen goods and punished according to the law. However, Zhang’s children, Zhang Zongli and Zhang Zongzhi are very young. It is improper to implicate them because of Zhang’s crimes.” The emperor accepted the opinion of the Ministry of Punishments and issued an order, saying, “according to the law, Zhang Dan’s children Zongli and Zongzhi can be released without being implicated by Zhang Dan. The crime of bribery has been punished by other penalties, and the house seized can be returned to Zhang Zongli.46 If the judicial review of the Ministry of Punishments conflicts with the verdict conclusion of Da Li Si, the officials are allowed to discuss it. In the ninth year of the Dahe period (835 A.D.), the military staff officer Cui Yuanwu illegally collected property and sold officials in various counties under his jurisdiction. After the trial of Da Li Si, he was found guilty of three felonies and was to be punished with the 43

Ce Fu Yuan Gui, Volume 616, p. 7128. Imperial Edicts of Tang Dynasty, Volume 82, p. 471. 45 Zhe Yu Gui Jian Xiao Shi, Volume 4, Fudan University Press, 1988, p. 205. 46 See Footnote 34. 44

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ultimate penalty. In addition, three local officials were cut off from their posts. In the case of the judicial review of the Ministry of Punishments, he was condemned to exile. Therefore, the case has not yet been decided. Yinyu reported to the throne, “the judge is not familiar with the law. The three felonies he committed should suffer the most severe punishments.47 The crime committed by Yuanwu is the illegal collection of money. In accordance with the law, excessive collection of illegal money must be hanged. It is noteworthy that Yinyu’s views are similar to those of Da Li Si and the Ministry of Punishments. Although Cui Yanwu was sentenced to exile in Hezhou according to the decision of the Ministry of Punishments, the emperor appointed Yinyu as the head of the Shangshu Department, which may be regarded as the court’s affirmation of his treatise. In short, judicial review of the Ministry of Punishments reduces the number of wrongly, falsely and unjustly repudiated cases and makes the judgment of cases fairer. On the other hand, influenced by the political and practical situation at that time, it was inevitably disturbed by various factors. During the Five Dynasties, the functions of the Ministry of Punishments in supervising local trials, correcting unjust prisons and deciding difficult cases were still prominent. In the late Taizu period of the Zhou Dynasty, a common man in Suzhou killed his wife and used money to buy up his wife’s family as perjury that his wife was mad. The local judiciary did not know how to deal with the case and reported it to a superior authority for judicial review. An official of the Ministry of Punishments called Gao Fang said, “There was no forensic doctor (who should have been called Wuzuo at the time) to judge her condition and to prove that she was insane. The case should be examined in detail, and the truth can be drawn.”48 When the emperor heard about it, he immediately made relevant laws.

4 Supervision Function of State Judicial Review In the Tang Dynasty, the County Judicial Department was the basic unit in charge of local justice and took on the important responsibility of uploading and transmitting between the township and the state (prefecture). The Death of Bai Hunqing in July of the Second Year of the Kaiyuan Period (714 A.D. reported by Puchang County unearthed from Turpan in the Ningle Art Museum of Japan recorded the basic process of reporting the case of Bai Hunqing in Puchang County to Puchang Prefecture and returning the documents to the place where the case was committed49 :

47

New Book of Tang, Volume 164, p. 5054. History of Song, Volume 270, p. 9260. 49 Chen Guocan, Liu Yongzeng, (eds.) Documents Unearthed from Turpan in the Ningle Art Museum of Japan, p. 73. 48

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Police Article

2

The death of Bai Hunqing was true. Documents had sent to the province

3 4

learned the fact of the death of the appellant, like

Arrived in the province and received. The document arrived July, the 2nd year

According to the Tang Liu Dian, the case examined by the County Judicial Department is to be sent to the state for review. Cases of exile and the death penalty must be reported to the Ministry of Punishments for judicial review. The Tang Dynasty adopted the territorial jurisdiction principle: “All those who commit crimes are decided by the state and county departments in which they occur; in the various departments of the capital, the cases convicted of exile and above are sent to Da Li Si for a decision, and the cases convicted of fustigate and below can be settled within the department; if there are disputes in the cases, they may be sent to Da Li Si.”50 As a result, all cases of local crimes must be reviewed by the state government. It is worth noting that if the local authorities report the case to the State Secretary for judicial review, most of the cases are confined to below the exile. Such cases are often recorded less often in handed-down historical documents because of their simpler facts and the routine affairs of the state department. However, much historical data can be obtained in Dunhuang Documents, Epitaphs of Tang Dynasty and Anecdotes. In the Fragments of Cases of Anxi in Tang Dynasty, for the second sentence, “Yuan Xiaoren and master Wei made fake prints”, according to the law, the county judicial department has no power to judge the case, which should be reported to the state for judicial review. The case of forging seals is very severe, and it is very difficult for the county judicial department to sentence them, so documents of the case should be reported to the state for judicial review.51 It is evident that the state government has a pivotal position in judicial review. From the Epitaph of Mr. Xu of the Tang Dynasty, in the Zhenyuan period, Mr. Xu was appointed to the judicial official in the Capital Department. There were gangs in the county who stole goods but wanted to plant stolen or banned goods on a good man, so they wounded him and vilified him as a real murderer. Xu was ordered to review the case. Of course, the case is intricate and difficult to detect, but in the end, the real killer is caught, and the case is closed.52 According to the unearthed documents, although there are some overly praised parts in things that state makes the judicial review of county prison cases, the function of judicial review of the state government was clearly verified in Tang Liu Dian. The following two cases, which were found in anecdotes of the Tang Dynasty, described the main process of the judicial review of the local states in a more vivid way. There 50

See Footnote 18. Interpretation of Society and Economy in Dunhuang, p. 611. 52 Hundreds of Epitaph of New Tang Dynasty, p. 262. 51

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is a story in the Drama Collection of Tang Dynasty written by Kang Pian: a county in Fengxiang State was awarded horseshoe-shaped gold, but gold was replaced in the process of transit. It was judged that the county magistrate had swallowed the gold privately. After judicial review by the state, the grievances of the county magistrate were cleared: When Li Mian was in charge of Fengxiang State, in the area under his jurisdiction, an ordinary farmer excavated a large jar of horseshoe-shaped gold when planting flowers in the field. The people in the village sent gold to the county office. The county office reported to the state government official documents. The county magistrate was afraid that it was unsafe to store the gold in the public warehouse, so he kept it in his home. After a night, he and other officials reopened the jar but found that all of the gold turned into lumps. When the jar of gold was unearthed, the officials in the countryside all went to see it, and now it was changed into lumps, which shocked them a lot. They reported to the officer Li Mian, and there was saying that someone had changed the gold by intrigue. Therefore, Li sent Cao Yuan with some soldiers to examine this case. The county magistrate was condemned and repeatedly questioned and humiliated, so he confessed that he had stolen the gold and signed the confession. At the end of the trial, those people involved in this case were all sent to prison, and the result was reported to Li. Li Mian was very angry when he read the report. After a while he went to dinner and talked about it when he was drinking. The guests in the sitting room regarded this case as a joke topic. For a long time, they thought it was just a general case of jumping over a wall and prying a lock. There was nothing surprising about it. At that time, the official Yuan Zi was also there. He lowered his head and did not speak. Li Mian asked if he had doubts about the case. He said, “Yes.” So, Li sent Yuan Zi to review this case. Yuan Zi checked the room for storing the jar and obtained more than 250 gold-shaped blocks. Yuan asked the first man who had dug gold and determined that the shape and quantity of the soil blocks were the same as those of the original gold. Therefore, Yuan Zi borrowed gold from various stores in the market and melted it into gold bullion. After the completion of the casting, only half of the gold was weighed, which was already three hundred jin. Yuan Zi asked who sent gold to the county office, and someone answered that two farmers carried it to the county office with bamboo poles. After calculation, it can be concluded that just two people cannot lift the majority of those gold. Yuan Zi realized that the gold had been changed into lumps before it was taken to the county office. Finally, the county magistrate checked his grievances. Li Mian praised Yuan Zi greatly at his performance. Later, his official position was continuously promoted, and he became a prime minister in the Zhide period.53

According to the Old Book of Tang Geography, Fengxiang State was called Fufeng County in the Sui Dynasty, which changed the name to Qi State in the first year of the Wude period (618 A.D.). In the second year of the Zhide period (757 A.D.), “In October, two cities were recaptured by force, and Fengxiang state was renamed Xijing in December, with Chengdu, Jingzhao, Hennan, and Taiyuan all known as “Wujing”,54 leading eight counties, such as Qishan, Mei and Baoji. During the judicial review of the case, Yuan Zi, a state official, inspected the case file and weighed it with a model of gold through investigation experiments. The judicial review of state departments plays an important role in supervising the trial of county departments and redressing unjust crimes. At the same time, state departments are the necessary link for local county departments to report death penalty cases to the Ministry 53 54

Drama Collection of Tang Dynasty, Shanghai Guji Press, 2000, pp. 1449–1469. Old Book of Tang, Volume 38, p. 1402.

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of Punishments. Therefore, the judicial review of state departments has a decisive influence on the final judgment of the case.

5 Supervision Function of Envoy Judicial Review Envoys sent by the emperors to review cases are an extension of the judicial review of the Ministry of Punishments. After the completion of the trial of the prison cases, the emperors sent many envoys for careful judicial review. The conclusion of a detailed reexamination from the envoy is of decisive significance for the final outcome of the case. Tang Liu Dian briefly introduces sending envoys for judicial review. In practice, according to different statuses of officials, the judicial review of officials in the Tang Dynasty can be divided into three types: Yu Shi judicial review, San Si judicial review, and special envoy judicial review.

5.1 Yu Shi Judicial Review Yu Shi in the Tang Dynasty is similar to a department of ears and eyes of the emperor and plays an important role in the trial. Yu Shi is not only a judicial supervisory organ but also a direct adjudication of prison cases. It tries important cases as a member of San Si. At the same time, Yu Shi is often ordered to review all cases, especially those who work for supervision and should judicially review prison cases. As the core force to review all cases in the area,55 Yu Shi of supervision always inspects officials and relevant situations of the counties. In November of the second year of the Chang’an period (702 A.D.), Wei Jing, who worked for supervision, reported to the imperial court about the use of cruel methods of interrogation resulting in many unjust prisons. Therefore, Empress Wu Zetian appointed another supervision Yu Shi, Sushi, to review some former cases in detail, and he found many unjust cases.56 In practice, the imperial court sends officials many times for the judicial review of cases, which also includes Yu Shi. In the second year of the Qianyuan period (759 A.D.), the ghost theory of Taoist Shen Taizhi was appreciated by Emperor Suzong. So, he went to Hunan province to publicize his Taoism, deceived the public and accepted bribes. The governor of Tan State, Pang Chengding, heard about it and severely punished Shen Taizhi. After knowing about it, Emperor Suzong recalled the Taoist to the capital, but put Pang Chengding in prison. Yan Ying, the Supervision Yu Shi, also reported to the emperor that the Taoist Shen should be punished for his crimes. Then the emperor ordered Yu Shi Lv Yin to review this case, which got the same report.57 However, the emperor 55

Tang Liu Dian, Volume 13, p. 381. Zi Zhi Tong Jian, Volume 207, p. 6560. 57 Ce Fu Yuan Gui, Volume 515, p. 5950. 56

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killed Pang and exiled Yan to the Jian State. Later, the Taoist did too much harm and ended up being executed. The emperor only returned the innocence of Pang and Yan.58 In April of the fifth year of the Yuanhe period (810 A.D.), Du Ya falsely framed general Ling Huyun as a thief, then more than 40 people were arrested. Emperor Xianzong ordered Yang Ning, the Supervision Yu Shi, to investigate this case. Yang was bribed by Du, so he sentenced Ling to be guilty.59 Later, Yushi Li Xuansu made the judicial review of this case, found out the truth, and returned the innocence of Ling Huyun.

5.2 San Si Judicial Review “San Si” in the Tang Dynasty is complicated in content, and those who bear the task of dealing with related matters are called “San Si Shi”. In the field of litigation, “San Si” mainly refers to temporary judicial organizations and their dispatched offices composed of officials of Da Li Si, Ministry of Punishments and the Yu Shi Department. Qian Daxin of Qing Dynasty said, “The case handled by “San Si” is based on the trial procedure of Ministry of Punishments.”60 In addition to trialing prison cases, “San Si” in Tang Dynasty also had the power to make judicial review of important cases. In the second year of the Jianzhong period (781 A.D.), there was an anecdotal rumor that the place of Qujiang had an air of emperors. Yang Yan, the prime minister, had a rebellious mind and then privately built a temple in Qujiang. Therefore, Yang was convicted and sent to prison. In the New Book of Tang Biography of Yang Yan, just a few words clearly described the trial procedure of the Yang case: “The emperor ordered “San Si” to review this case and demoted Yang Yan as the military governor of Yazhou. Finally, Yang was killed when he was one hundred kilometers away from Yazhou.”61 In the Old Book of Tang-Biography of Yangyan, “After the trial of the first instance by the judiciary, the case was reported to the imperial court, and the emperor ordered San Si to review it.”62 Comparing the trial procedure of Yang Yan’s case in the Old Book of Tang and New Book of Tang, it can be seen that when the accusation was founded, the case of Yang was decided by the imperial edict. The first trial of the Yang case was ordered by the Yu Shi Department. After the completion of the case, Emperor Dezong ordered San Si to review the case; or because of the great influence of the minister, San Si should review the case again. In the fourth year of the Zhenguan period (788 A.D.), Mu Zan was appointed Yu Shi at Dongdu, and he heard a case of the property dispute between the wife 58

Yan Zhenqin, Anthology of Yan Lugong, Volume 5, p. 34. Tang Hui Yao, Volume 62, p. 1274. 60 Twenty-two Collections of History, Volume 44, Shanghai Guji press, 2004, p. 692. 61 New Book of Tang, Volume 145, p. 4726. 62 Old Book of Tang, Volume 118, p. 3425. 59

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and concubines of the official Lu Yue. Yu Shi Lu Zhao thought that the concubine, Mrs. Pei, was guilty, which was different from Mu Zan’s opinion. Finally, Mu was framed into prison by Lu Zhao and prime minister Du Can. Regarding Mu’s trial procedure, the Old Book of Tang-Biography of Mu Zan has the following description: Both prime ministers Du Can and Yu Shi Lu Zhao held great power, so they asked Yu Shi Du Lun, who tried the case, to slander Mu Zan for taking bribes and put him in prison. When Mu’s younger brother knew it, he reported directly to the emperor. The emperor asked “San Si” to make a judicial review of the case and returned Mu’s innocence. Finally, Mu was promoted as the governor of Bang State.63 Additionally, from the book written by Liu Zongyuan, it was known that because prime minister Du and Yu Shi Lu slandered Mu, the emperor sent “San Si”, which was composed of Yu Shi Liu Zhenshi, the official of Ministry of Punishments, Li Gou, and the official of Da Li Si, Yang Yu, to review this case carefully and determine the truth.64

5.3 Special Envoy Judicial Review In the judicial practice of the Tang Dynasty, there were always phenomena of people outside law departments being ordered to review prison cases. In the Emperor Gaozong period, Minister of Punishments Di Renjie recommended to the emperor that Li Zhengben, who was the county magistrate of Hebei, Shan’xi province, should review the bribery case of the governor of Shuozhou Zhang Xuan. Li tried the case strictly according to the law and determined the facts. In the end, Li’s official rank was promoted at two levels, and he was rewarded a lot.65 During the period of Empress Wu Zetian, she ordered Yu Shi Shi Yaoshu to hear the case of Minister Zhu’s corruption. After the trial of the case, the Empress sent Yu Shi, Song Xuanshuang, and Yu Shi, Huo Xianke, to review it and found no faults. Therefore, more than 50 people of Zhu’s family were punished for being implicated and exiled.66 Before Song Xuanshuang and Huo Xianke reviewed the case, it should be reported to the Ministry of Punishments before it was convicted. The famous prime ministers of the Kaiyuan period, Zhang Yue and Song Jing, both had experience reviewing major cases. In the autumn of the first year of the Jingyun period (710 A.D.), a king named Li Zhongfu failed to fight with the throne, and hundreds of his party members were captured. The officials in Dongdu had been trying the case for several months and could not finalize it. Zhang Yue only spent one night finding out the case, and the main conspirators Zhang Lingjun, Zheng Pu and other people were captured and admitted all the charges, and the rest who were

63

Old Book of Tang, Volume 155, pp. 4115–4116. Anthology of Liu Zongyuan, Volume 12, pp. 295–296. 65 Addendum of Complete Tang Proses (4), Sanqin Press, 2000, p. 15. 66 New Book of Tang, Volume 102, p. 3981. 64

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mistakenly arrested in prison were declared innocent.67 In the eighth year of the Kaiyuan period (720 A.D.), someone rebelled against the rule of the Tang dynasty. Emperor Xuanzong recalled Song Jing to the capital and ordered him to review the case. He was so strict that he convicted and punished all the people involved in the case, which calmed and convinced the people of the country.68 The abovementioned reviewers of Song Xuanshuang, Zhang Shuo and Song Huang all dealt with numerous rebellious cases. However, the judicial review of Song Xuanshuang resulted in unjust imprisonment, which was impeached by Shi Yuanshu, the supervision of Yu Shi. Zhang Yue and Song Jing were not afraid of being threatened and severely punished principal offenders after the review, which were praised in history. After the trial, the imperial court dispatched Yu Shi, San Si or other officials to review the case, which is none of the Ministry of Punishments’ business, then what is the relationship between these two ways of judicial review? Can the imperial court’s reappointment of officials replace the superior position of the Ministry of Punishments? The answer is No. As mentioned above, the Ministry of Punishments in the Tang Dynasty was always the leading organ for the judicial review of cases. All cases decided by local prefectures and counties or various departments in the capital should be reported to the Ministry of Punishments for particular judicial review, and finally, the Ministry of Punishments should report the results to the emperor. The above procedure is a routine operation in the Tang Dynasty, so relevant historical books did not record this in detail. In Tang Liu Dian, “If there are many cases that need to be reviewed, Yu Shi will be sent far from the capital to review them, and cases in the capital will be reviewed by the Ministry of Punishments.” The abovementioned rules prove that the judicial review officials dispatched by the emperor must be based on the suspicious points found after the review of the Ministry of Punishments. When the Ministry of Punishments reports them to the imperial court, the emperor can start the relevant procedures of dispatching judicial review officials if he thinks it is necessary. Regarding staff selection, the emperor did not choose review officials according to imperial decrees randomly. In judicial practice, it generally followed the regular litigation practice: after the trial of cases in prefectures and counties, when the judicial review of Ministry of Punishments was incomplete, smarter and capable Yu Shi were selected for judicial review; after the trial of cases in the imperial court, when the judicial review of the Ministry of Punishments was incomplete, San Si was sent for judicial review; after the trial of cases of various departments in the capital city, when the judicial review of the Ministry of Punishments was incomplete, the officials working in the Capital Department and Henan Department will be given priority to do the judicial review of the case.

67 68

Old Book of Tang, Volume 97, p. 3051. Anthology of Yan Lugong, Volume 4, p. 22.

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6 Summary Parallel to the rule of appeal by level, the application for judicial review is the sum of a series of rules in traditional litigation, such as supervising the higher judicial organ, reviewing the lower legal department to complete a case, resolving difficulties and clearing up grievances. Judicial review is a statutory procedure in which, after the original judgment has formed the preliminary opinion, case files such as prison words and judgments are reported to the superior law department for detailed judicial review. The judgment formed after the completion of a case is called “Cheng”. The long-standing judicial review procedure of the death penalty was inherited and developed during the Sui and Tang Dynasties. As a prerequisite for judicial review, the standard of prison in the Tang Dynasty is more complete. For general criminal cases, according to the jurisdiction of the Tang Liu Dian, the local state and county law department will sue the criminal if the facts of the case are clear and the evidence is sufficient, and then the Ministry of Punishments has completed the judicial review according to the law, although it has not been reported to the imperial court, it can also be called “wind up a case”. It is the basic standard of the prison system in the Tang Dynasty, which is also an essential element of the judicial review procedure. With the development of the political and economic situation, there are many changes in the standards of “wind up a case”. When the county applies to the state, Da Li Si, Capital Department and Henan Department for judicial review, they must form a definite opinion on the first instance of the case, which is called “Yucheng”. Prior to the judgment, the court of the first instance should follow the basic principle of “judging the psychological activities of the parties from five aspects (speech, expression, breath, look, and smell)”, and its litigation parts may also involve arrest, inspection, interrogation, and report. After a preliminary examination opinion is formed, the prisoner shall be sentenced for review without any other words. For major or death penalty cases, the Department of Justice makes a trial of the case, and the Ministry of Punishments makes the judicial review. After that, these cases should be reported to the Zhongshu Department for discussion and decision making to perform the prime minister’s signature procedure. As the central review organ, the leading role of the Ministry of Punishments is mainly reflected in the judicial review of death penalty cases, difficult cases and disputed cases. After the Rebellion of An and Shi, on the one hand, the imperial court frequently adjusted the rules of the judicial review of the Ministry of Punishments; on the other hand, the records of the judicial review of the officials of the Ministry of Punishments in the middle and late Tang Dynasty were more concentrated. Based on the traditional judicial concepts of “emotion, reason and law”, all kinds of homicide cases often became the focus of public opinion at that time. In accordance with the latest imperial decrees, the Ministry of Punishments reviews the conclusions of the original judgment according to the law to seek a “natural principle, national law, human relations” of the accommodation. In addition to strictly performing the law, the judicial review of the Ministry of Punishments in the Tang Dynasty tended to highlight the essence of the thought of “emphasizing that ethics are the foundation

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of governing a country and that punishments are a supplementary means” in the Tang Code. By reviewing the case, commending filial piety, and seeking a balance between law and ethics, the government has implemented the practice of improving the law or amnesty in the field of judicial review for a long time. The imperial court sent the envoy to review the case, which is an extension of the judicial review of the Ministry of Punishments. After the completion of the trial of the prison case, the imperial court sent many envoys for careful judicial review. The conclusion of a detailed judicial review from the envoy is of decisive significance for the final outcome of the case. According to the statuses of officials, the judicial review of officials in the Tang Dynasty can be divided into three types: Yu Shi judicial review, San Si judicial review, and special envoy judicial review. The start of the procedure in which the imperial court sends Yu Shi for judicial review always follows the usual routine: the officials dispatched by the imperial court for judicial review must be based on the suspicious points found after the judicial review of the Ministry of Punishments. The emperor can start the relevant procedures of dispatching judicial review officials if he thinks it is necessary. Regarding staff selection, the court did not choose officials to review according to imperial decrees randomly. In judicial practice, it generally followed regular litigation practice: after the trial of cases in prefectures and counties, when the judicial review of the Ministry of Punishments was incomplete, smart and capable Yu Shi were selected for judicial review; after the trial of cases in the imperial court, when the judicial review of the Ministry of Punishments was incomplete, San Si was sent for judicial review; after the trial of cases of various departments in the capital city, when the judicial review of the Ministry of Punishments was incomplete, the officials working in Capital Department and Henan Department would be given priority to do the judicial review of the case.

Chapter 14

Rehabilitation

1 Development of Rehabilitation Rehabilitation is a kind of judicial remedy measure in ancient China, which is also called Xuemian, Shexue, Lixue or Zhaoxi in ancient books. According to the request of the litigant or the application from related departments, the Central Judiciary will re-examine the case, which has already been judged before. If there are mistakes in sentencing and convicting, they will correct the announced judgment and rehabilitate the litigant. Meanwhile, the judicial department will give his family comforts to relieve their pain. The historical origin of Zhao Xue dates back to the Shang and Zhou dynasties.1 It was recorded in the Yi Zhou Book that Emperor Wu in the Zhou Dynasty released prisoners and commended the loyal spirit: Emperor Wu commanded minister Guan Shuxian to supervise Wu Geng, the son of Emperor Zhou. He ordered Shao Gong to release Ji Zi and asked Bi Gong and Wei Shu to release the noblemen, while Nan Guan was asked to donate the treasure of Lu Tai and the food from Ju Qiao. He told Nan Guan Bai Da and Shi Die to carry Jiu Ding to San Wu and demanded Hong Yao to build the grave of Bi Gan. They returned back to their capitals with troops after feasting distinguished guests.2

Emperor Zhou believed that saints have seven orifices exquisite hearts; thus, he cut open the body of Bi Gan to observe the heart. Emperor Wu asked Hong Yao to build a grave for Bi Gan after defeating Yin.3 The aim of this behavior is to announce the blamelessness of innocent people. Zhang Shoujie explained the word Feng in the book Justice, which means accumulating the clay and clarifying the border. People cannot live without the existence of justice; thus, the only way to guarantee judicial justice is to investigate the fact and make the decision according to the law.4 1

Redress Grievance Began in West Zhou Dynasty, Journal of Yiyang University, 1987 (1): 65. The Converging and Collating Notes of Yizhou Book, Volume 4, Part 36 The Solution of Defeat Yin Dynasty, pp. 376–380. 3 Records of the Historians, Volume 4, Biographic Sketches of Zhou, p. 127. 4 Book of Tang, Volume 85, P. 2821. 2

© Science Press 2021 X. Chen, A Study of Criminal Proceeding Conventions in Tang Dynasty, https://doi.org/10.1007/978-981-16-3041-5_14

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A series of detailed principles about redressing grievance was formed in the Tang Dynasty, which was charged by Da Li Si and the Ministry of Punishments at that time. The Tang Liu Dian records that the Da Li Si minister had management power and held jurisdiction and was asked to determine all the facts with five listenings and judge the event with three thinkings. The three thinkings included judging the doubtful case with great caution, keeping compassion to avoid wrong judgment, and holding justice on all the litigation.5 Two Zhu Bu were responsible for other work, including keeping files for officials who were proven to be innocent after re-examining the case.6 Four departments were established under the Ministry of Punishments of the Shangshu Department. Capital officials Lang Zhong and Yuan Wai Lang expressed arguments with evidence and reasons to redress grievances.7 The principle of rehabilitation experienced some changes in the Tang Dynasty and was not fixed until the end of the Kaiyuan period. It was a remarkable fact that people who could apply to be “rehabilitated” were usually criminal officials according to law, while rehabilitation involved absolution and redressing grievances. In February of the second year of the Yongchun period (683 A.D.), the judicial department should report a detailed judgment to the Ministry of Punishments of the Shangshu Department for redressing grievances of officials. The Ministry of Punishments reported the original wrong judgments and illegal relief to the emperor. In this case, Xue means absolution. Officials who were proven to be innocent after the judgment would be considered by the Shangshu Department, and all the information would be presented to the emperor.8

In the Shenlong period, San Ban Xing Bu Ge enlarged the range of the related people, changing the original limitation that recorded beyond fifth-level officials to ninth-level officials in Yonghui Law.9 Meanwhile, it ruled that people who were not included in this range were to remit, all the information should be reported to the emperor, including criminal charges, reasons for redressing grievances, and the original judgements. In the case of remitting local criminal prisoners, local officials reported detailed information to the Ministry of Punishments of the Shangshu Department, and the Ministry of Punishments reported a higher level of approval. Ben Shi should send the report of redressing the grievance of the criminal official to Kao Xuan Si. During the no selection period, the Ministry of Punishments and Da Li Si checked the rehabilitation and then reported to the emperor through the Secretariat to recover the post of the criminal official: The judicial department concluded the guilt of the official lower than the ninth level, recording all the criminal information in the file. Apart from this range, criminal people who were proven to be innocent should report the original crime, the reason for rehabilitation and the original judgment to the emperor. If it was in a regional area, it should report to the emperor through a higher-level department. The department should give all the testimony. If previous 5

Tang Liu Dian, Volume 18, p. 502. Tang Liu Dian, Volume 18, p. 503. 7 Tang Liu Dian, Volume 6, p. 193. 8 Tang Hui Yao, Volume 41, p. 873. 9 Tang Lv Shu Yi, Volume 2, p. 33. 6

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officials made mistakes, it should be reported even if the officials had already been released. If it was not during the reporting time, all the evidence of redressing grievances should be checked by Ben Shi and handed to Kao Xuan Si. If Shi Si was not operated, people should go to Da Li Si to get the report to get remitted. Finally, the Secretariat can write it down to record it.10

In the first year of the Kaiyuan period, the court announced the law two times and ruled the procedures of criminal officials and the reemployment of the officials. On April 4th of the fourth year of the Kaiyuan period (716 A.D.), the Law on Remitting Criminal Officials ruled that officials who wanted to remit their guilt should apply to the Ministry of Punishments. If the original judgment was not correct, the original judge should look into this case again and determine the truth; if the original judge was no longer in that position, the Ministry of Punishments would take the responsibility to re-examine the original case. Once the criminal was proven to be innocent, the Ministry of Punishments checked again and then turned the case to the Shangshu Department for another check. The Dieshi Department would revoke the punishment and report it to Zhongshu Menxia for a record: Officials who have been remitted should recover from suffering and regain their desired fortune in proportion according to the principle. Not all judicial cases can be correct, everything can have faults, so does the judgment. Regaining previous treatment and making the general public know, this is the very meaning of rehabilitation. If officials are afraid of being punished, unjust cases will occur. Officials who want to remit their guilt should make an application to the Ministry of Punishments. If the original judgment seems to be wrong, the original judge should look into this case again and determine the truth; if the original judge is no longer in the position, the Ministry of Punishments will take the responsibility to check and judge the original case. Once the criminal was proven to be innocent, the ministry checked again and then turned it to the prime ministers for re-consideration. Ministry of Official Personnel Affairs should revoke the punishment and report to Ziwei Huangmen (the administrative department) for the record.

In the eighth year of the Kaiyuan period (720 A.D.), the government announced new rules. Officials involving bribery, personal guilt and perversions of justice and matching the standard of relieving the punishment should be reported to Da Li Si. The case must be reported by related departments. Da Li Si checked the case carefully and turned to the Ministry of Punishments for a second check; then, it was presented to Zhongshu Menxia for the record: Officials who were accused of corruption, grabbing people’s money, in accordance with this principle, can make applications to ask Da Li Si to re-examine the case and present it to the Ministry of Punishments for inspection. If there is a grievance, the name will be recorded and sent to Zhongshu Menxia, including old cases. These rules were written in the Xing Bu Ge.11

The rules above were aimed at rehabilitating criminal officials. Because of the large number of deposited officials and the seriousness of the events, Zuo You Cheng was set to control the file system under Zhongshu Menxia. The rehabilitation of usual 10 11

The Record on Community Economy of Dunhuang, 2nd ed, p. 564. Tang Hui Yao, Volume 66, p. 1357.

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criminal cases only needs detailed judgment from Da Li Si and double check in the Ministry of Punishments. In the Kaiyuan period, Yu Guanling described the rehabilitation procedure as a judicial report and checked in the Ministry of Punishments. If the application of rehabilitation is proper, the original judging department will take the order. If not proper, it will be refused for reasons: Criminal officials were judged by Da Li Si, Capital Department and Henan Department and then reported to Shangshu Department with the decision of rehabilitation. The department checked, and conclusions with no mistakes were sent back soon. If there are some mistakes in it, it will be sent back with the faults.12

Concluded from the laws and regulations mentioned above, it is not hard to find the essential differences between rehabilitation and Jian Mian in the aspects of factual basis and legal consequences. The premise of Xue Mian is that the review department considers the original judgement to be wrong, which is a total change towards the original punishment. Jian Mian obeys the original judgment, remitting or relieving the punishment according to the regulation or discretionary circumstance. The latter is similar to She You. It is of great caution to choose the correct term when dealing with the settled law case since it may mislead the public or influence the judgment. As the saying goes, a miss is as good as a mile. This proverb can be proven by the argument of Li Chongjun and Li Duozuo in the Ruizong period. In the third year of the Shenlong period (707 A.D.), the crown prince and general Li Duozuo instigated a mutiny. They killed Wu Sansi and Chong Xun in their home and killed their party with the help of the 300 Yulin army soldiers.13 Then, Li Chongjun led the army to fight from the Xiaozhang Gate, but they were killed by mutinous soldiers. This was recorded in the Old Book of Tang Biography of Emperor Rui Zong. In July of the first year of the Jingyun period (710 A.D.), the emperor conferred common person Zhongjun with the title of Prince Jiemin and recovered the official ranking of Li Duozuo.14 According to the Shi Ce Wen of Crown Prince Jiemin, the posthumous title was decided on October 29th of the first year of the Jinyun period: On October 29th of the first year of the Jinyun period, the emperor said that the deceased crown prince Zhongjun should be conferred with a title to be memorized by people. Thus, he conferred Zhongjun with the title of Crown Prince Jiemin to commemorate him.15 12

Tian Yi Ge Cang Ming Chao Ben Tian Sheng Ling Jiao Zheng, p. 664. Zi Zhi Tong Jian, Volume 208, p. 6611. Note: In September, the third year of the Shenlong period, the emperor Gaiyuan Jinglong. Since the mutiny led by Prince Jiemin happened in July of that year, it was still recorded with the title of Shenlong period. According to the Epitaph of Li Duozuo, Li Duozuo died in Changan on 5th July, the third year of Shenlong period, at the age of 54. The grave was moved to the plain of Luozhou on 24th September the second year. (Luoyang Xin Huo Mu Zhi, Cultural Relics Publishing House, 1996, p. 232) Prince Zhongjun and Li Duouo guided the army in to the palace and Emperor Zhongzong got to the Xuanwu Gate to avoid it. Prince Zhongjun commanded the army calmly. When Li Duozuo died and the army betrayed him, he then ran away. 14 Book of Tang, Volume 7, p. 154. 15 Imperial Edict Collection of Tang Dynasty, Volume 32, p. 127. 13

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Bai Hu Tong Yi explained, “What is a posthumous title? It means the quotation, quoting the good achievements and behaviors and reporting it to the emperor to make it an excellent morality.”16 In the traditional Chinese theory system, discussing and deciding the posthumous title was not only related to personal and familial fame but also performed the important function of social judgment and value orientation. The principle of Yi Shi was recorded in the Old Book of Tang-Zhi Guan Two. All the ways about deciding the posthumous title should draw on the experience from history and judge certain situations to identify the difference.17 That is, all should take the morality of the deceased people to make an external decision. Taifu Shaoqing Wei Cou put forward the objection towards the quality of the mutiny led by Zhongjun, the Yi Shi and Rehabilitation. Zi Zhi Tong Jian (Volume 210) records that in October of the first year of the Jinyun period (710 A.D.): Prince Zhongjun and Li Duozuo led the army into the palace, and Emperor Zhongzong got to Xuanwu Gate to avoid them. Prince Zhongjun commanded the army calmly. When Li Duozuo was killed and the army betrayed him, he then ran away. If the soldiers did not guard, it would become a terrible disaster. The second day, Zhongzong wept in the rain and said that he almost couldn’t see the ministers again, the situation was so dangerous. However, burying Zhongjun according to the manner and conferring the title of Crown Prince Jiemin made people doubtful. On the basis of etiquette about serving the emperor, officials should get off the horses when passing by the Imperial Ancestral Temple, they should pass the emperor by small steps and with great respect. The prince should not pass the royal road quickly even with the emergent call from the emperor. Zhongjun led the army into the palace, sitting on the horse and using the weapon before the emperor, which was extremely rude. The behavior of killing Wu Sansi and his sons should be awarded, but it can only be acceptable when it aims to respect the power of the emperor. However, He wanted to take the place of the emperor, which is the same as Wu Sansi. That can not be awarded. If awarded for abrogating Empress Wei, the behavior of Empress Wei was not obvious at that time. Regardless of the emotion and morality between Empress Wei and him, Zhongjun tried to abolish the empress without the order from the emperor, which can be defined as a kind of threat. The behavior didn’t make sense. In the period of Emperor Wu of the Han Dynasty, Prince Li led army to kill Jiang Chong since he was slandered by Jiang Chong. Although he used the army, he did not trap and threatened the emperor. Prince Li committed suicide for being defeated and was permitted to relocate the grave when his grandson came into power, still with the title of Prince Li. How could Zhongjun get the title of Crown Prince Jiemin after doing such things? I’m afraid people of later generations will take the reference of this case to operate rebellion. It is not a good model to punish the wrong behavior. I suggest that the Emperor change the posthumous title. The behavior of mutiny is guilty, and it is not suitable to regard it as rehabilitation.18 Wei Cou talked about his opinion towards the mutiny of Li Chongjun and Li Duozuo in the Old Book of Tang and New Book of Tang, which was different from the statement in the Zi Zhi Tong Jian, In the Old Book of Tang-Biography of Wei Cou, “The behavior of the prince was illegal, which didn’t deserve the commendatory. Please change the posthumous title. It was culpable for Duozuo to lead the army into the palace, which can be exempted but cannot be called Xue (rehabilitation).”19 The New Book of Tang-Biography of Wei Cou, “It’s better to change the posthumous title to suit the rite. The crime of Duozuo should be 16

Bai Hu Tong Shu Zheng, Zhonghua Book Company, 1994, 2, p. 67. Book of Tang, Volume 43, p. 1824. 18 Zi Zhi Tong Jian, Volume 210, pp. 6657–6658. 19 Book of Tang, Volume 101, p. 3145. 17

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‘exempted’ instead of ‘rehabilitated’.”20 Wei Cou thought that Li Chongjun kept army and plotted rebellion and proposed “rethinking about the posthumous title to depreciate it”.

According to the Book of Yizhou, dignity contains working selflessly and honestly. There are four different explanations of “Min”, including involvement in the war, being on the hash government, holding a state funeral and being in chaos.21 For Li Chongjun, the first explanation is the most reasonable one. Wei Cou claimed that Li did not deserve his posthumous title and suggested changing it. At that time, it was difficult to change since the order had already been executed; the only thing that could be done was that the reward to him would be canceled. The concepts of rehabilitation and pardon were very different, the core of which was whether the original convicted criminal’s guilt was true or not. If he was indeed wronged, the court should immediately start the rehabilitation procedure; if the crime was true but intentionally forgiven, it should be called “pardon”. However, from the foregoing description of the Tang Dynasty’s laws and decrees from the Yongchun period to the Kaiyuan period, it can be seen that historical documents often choose relevant terms from the perspective of law application, resulting in the confusion of the concepts of “pardon” and “rehabilitation”. However, if the original sentence of a prisoner of a crime is exempted, whether the original sentence is overturned or the punishment is pardoned, it can be summarized as “rehabilitation”. This practice of interchange between rehabilitation and pardons had a direct impact on the litigation practice of the Tang Dynasty, especially on dealing with the problem of the Fan Zhen rebellion after the mid-Tang Dynasty.

2 Actual Operation of Rehabilitation As far as the procedural operation is concerned, rehabilitation has to go through some links, such as unjust prison report (or appeal by the principal), the retry of the law department, the review of the criminal department and the hearing of the case. Involving bureaucratic aristocracy or major unjust imprisonment, there are procedures for restoring official titles and discussing posthumous titles. Rehabilitation in the Tang Dynasty, based on correcting incorrect judgments, constructed a relatively complete judicial relief approach and initially formed the germ of the state compensation system.

2.1 Rehabilitation in the Shenlong Period Since the end of the Yonghui period, in the course of Empress Wu’s rule, Chu Suiliang, Han Yuan, Queen Wang, Xiao Shufei, Lord Han Yuanjia and other famous 20 21

New Book of Tang, Volume 118, pp. 4265–4266. Huang Huaixin, The Book of Yizhou, Volume 6, pp. 749, 729–730.

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ministers and clans have been wronged and killed. In the Wu Zhou revolutionaries, it was pervasive to make up their own accusations against the prosperity of the loyal ministers so that victims fled throughout the country. Until the late Chang’an period, the court began to carry out the largest rehabilitation movement in the history of the Tang Dynasty, and most of these cases were of the nature of rehabilitation. In November of the second year of the Chang’an period (702 A.D.), Wei Jing pleaded with the emperor for a retrial of the important cases tried by Lai Juncheng to fight against injustice. Empress Wu ordered Su Ting, the supervisory censor, to reexamine the cases tried by Junchen and thus rehabilitate many people. On January 19th of the 1st year of Shenlong (705 A.D), Empress Wu issued another edict, “Criminals sentenced since the period of Wenming, excluding those from Yangzhou, Yuzhou and Bozhou, and ringleaders of the rebellions, shall all be pardoned.”22 The rehabilitation movement lasted until the reign of Emperor Zhongzong and Emperor Ruizhong and officially ended in the first year of Kaiyuan. Because most of them were rehabilitated at the beginning of the reign of Emperor Zhongzong, it was entitled “Shenlong Rehabilitation”. According to the Book of Tang, in the first lunar month of the first year of the Shenlong period (705 A.D.), Emperor Zhongzong ascended the throne and proclaimed a general amnesty. In addition to the rebellious party not being pardoned, others who were framed by Zhou Xing and Lai Junchen were all rehabilitated.23 The actual needs for the large-scale rehabilitation of former courtiers are also the direct reason for editing the “rehabilitation clause” of Shenlong Sanxuan Ministry of Punishments Ge. Combined with the policy of rehabilitation issued by the court at any time, a large number of miscarriages of justice have been systematically corrected. In the second year of the Wansuitongtian period (697 A.D.), prime minister Li Yuansu connected with Qi Lianyao and was then framed and killed by Wu Yizong. However, he was rehabilitated in the Shenlong period.24 During the Tianshou period, Lord Xu and Lord Ze were framed up and killed. After Emperor Zhongzong ascended the throne, Lord Xu was entitled the governor of Xuzhou and was allowed to be buried besides Qianling Mausoleum.25 After the restoration of the emperor, with the process of rehabilitation, many measures were taken to follow up the policy, such as visiting the families of the victims, offering livestock the dead one and restoring their officials. All the lords were allowed to be buried in addition to Zhaoling and Xianling mausoleums.26 The unjust cases in the period of Gaozong and Wuhou were cleared up systematically in various ways. Emperor Ruizong continued the tradition of rehabilitation, sinking grievances for those who had been wronged, punishing the principal criminals and not punishing the coerced when committing major group crimes. Rehabilitation itself has already surpassed its routine litigation function and played a pivotal role in rallying people’s hearts and reviving the Tang Dynasty.

22

Zi Zhi Tong Jian, Volume 207, p. 6578. Book of Tang, Volume 7, p. 136. 24 Book of Tang, Volume 81, p. 2756. 25 Book of Tang, Volume 86, p. 2827. 26 New Book of Tang, Volume 80, p. 3579. 23

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2.2 Operational Procedure of Rehabilitation In addition to the massive rehabilitation in the early years of the Shenlong period, it was usually in the form of single cases. According to the Six Laws of Tang Dynasty, Da Li Si and the Ministry of Punishments are the authorities responsible for rehabilitation. In addition, there are two basic ways to start the program. Criminals and their families have the right to appeal to the judicial organs for retroactive judgment in an attempt to overcome the injustice; Da Li Si, Ministry of Punishments and Yu Shi Tai may, in accordance with their powers, correct wrong judgments by reviewing settled cases. In addition, other officials can request retrial by way of a report. Because of the direct interest in the trial results, the parties and their close relatives are the most active subjects of rehabilitation appeal. During the reign of Queen Wu, Lu Jingqian was implicated in the case of Qi Lianhui rebellion and exiled. After his rehabilitation, he was appointed the governor of Sui’an.27 In the period of Xiantong, Wen Tingyun committed the crime in Yangzhou. He was beaten by Yu Hou to defeat his face and folded his teeth. Since he did not receive any solution after he reported to Linghu Tao, then he went to Changan to rehabilitate himself by writing to the minister.28 It is noteworthy that since the subject has become a prisoner of crime after the judgment comes into effect, because of its direct interests with the case, the law strictly restricts their telling. If a prisoner has been detained, exiled or even executed, it is obviously difficult to appeal to rehabilitate personally. Traditional Chinese judicature stresses the righteousness of the monarch and his ministers, the relations between father and son, and the son fighting against injustice for his father was regarded as the direct embodiment of the spirit of filial piety and righteousness. Therefore, it is far more effective to get the victim from relatives’ behalf instead of the victim. In the Tang Dynasty, there was a custom of repeated complaints by relatives. Relatives of prisoners are allowed to claim the same petition many times. In December of the nineteenth year of the Zhenguan period (645 A.D.), Emperor Taizong was not very healthy, and Chu Suiliang falsely accused Liu Ji. Liu was sentenced to death. In December of the first year of the Xianqing period, Liu Ji’s son pleaded for his father’s injustice.29 Le Yanwei thought that if Liu Ji was rehabilitated today, would it not be regarded as blaming the former emperor for his improper punishment?30 Emperor Gaozong agreed. However, his son decided to restore Liu’s official rank, thinking that he was falsely accused by Chu Suiliang.31 When the new emperor ascended the throne or the dynasty changed, it was often the best time for the relatives of the offense to lodge a complaint to ask for rehabilitation. Once the petition is successful, it will not only wash away the ancestral grievances but also enjoy the real benefits of the award. According to the Tomb 27

Chao Ye Jian Zai, Volume 1, p. 15. Book of Tang, Volume 190, p. 5079. 29 Book of Tang, Volume 81, p. 2758. 30 Zi Zhi Tong Jian, 200, p. 6301. 31 Book of Tang, 74, p. 2612. 28

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Passage Note of Tong Yi Da Fu Governer of Yizhou Kaiguozi of Qingyuan County Liu Fujun (Dunxing) of Tang Dynasty: Dunxing, grandson of Liu Ji “at the age of 20, was appointed as the Warehouse Supervisor and inherited the title of Kaiguonan of Qingyuan County”,32 which was the conferred title of Liu Ji. In April of the fourth Year of the Xianqing period (659 A.D.), Xu Jingzong falsely accused Yu Suiliang, Liu Yuan and Han Yuanfan of helping Zhangsun Wuji rebel. The emperor ordered to abolish the title of Duke of Suiliang and remove the name of Liu and Han. In July, “Liu and Han were sentenced to death and were killed in Xiangzhou.”33 Until the early year of the Kaiyuan period, Liu Huanshang was also involved in this case and was punished. More than 50 years after the death of Liu, Emperor Xuanzong allowed Liu to be buried in his hometown and made him rehabilitated.34 In the Tang Dynasty, rehabilitation had the practice of indefinite appeal. Those whose relatives did have a grievance could report to the government when they were in prison. The requirements of the law department for the relationship between the accuser and the relative of the subject and the time limit of the incident were relatively relaxed. It is worth noting that there is actually a practice of the third party requesting rehabilitation in the Tang Dynasty. Although the outsider had no interest in rehabilitating unjust prison, he was granted the right to appeal. Under the influence of the Confucian ethics of “returning virtue for virtue”, there were occasional third parties outside the case that, for the purpose of safeguarding the court’s discipline, sacrificed themselves to commit dangers to appeal for the old colleagues”. The main situations include the following two categories. First, the ministers who uphold the right will appeal for grievances. In the early Shangyuan Period of Emperor Gaozong, Liu Zhen, a scholar in Zhongshu, was demoted to Yuefeng because of his crimes. “Now, Li Dan has raised objections to the announcement that Liu Wei was not guilty. He is also expected to be pardoned and let his officials return to their posts.”35 During the Shenlong period, Zhu Jingze, the governor of Zhengzhou, was slandered by Zong Chuke and Ran Zhuyong. At the beginning of the Jingyun period, Liu Youqiu, Minister of Official Personnel Affairs, said, “He was wronged and should be rehabilitated, and should be given certain compensation and commendation.” Emperor Ruizong agreed.36 Second, a colleague or an old friend appeals for gratitude. At the end of the Yuanhe period, Tu Tu Cheng Cui supported Prince Li as the crown prince, so he was killed by Emperor Muzong. “During the reign of Emperor Jingzong, Cheng Cui was rehabilitated for Ma Cunliang’ appeal and could be buried with the ceremony.”37 During the Dahe period, Liu Sanfu appealed to Li Deyu for his gratitude.38 In the fourth year of the Jianzhong period (783 A.D.), the right prime minister (You Pu 32

Quan Tang Wen Bu Yi, San Qin Press, 1999, p. 35. Zi Zhi Tong Jian, 200, p. 6316. 34 Book of Tang, 77, p. 2682. 35 Epitaphs of Luoyang in Tang Dynasty, p. 151. 36 Book of Tang, 90, p. 2918. 37 Book of Tang, 184, p. 4769. 38 Bei Meng Suo Yan, Zhonghua Book Company, 2002, 1, p. 27. 33

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Ye) Cui Ning was wronged and was sentenced to death. In the twelfth year of the Zhenyuan period (796 A.D.), on the first day of May, Cui Ning’s former subordinate, Han Tan, appealed for Cui Ning and asked the emperor to allow his family to bury him in his hometown.39 In reviewing cases, judicial organs such as Da Li Si, Ministry of Punishments and Yu Shi Tai may initiate the rehabilitation procedure in accordance with their statutory functions and powers. In the fourth year of the Chang’an period (704 A.D.), Yan Fan, a judicial official, asked the emperor to “pardon all the sinners since the first year of Wenming period, except the heads of the rebellious parties and Yang, Yu and Bo states”,40 and since then, a large number of people were subsequently pardoned. During the reign of Emperor Xizong, Liu Qin, Liu Ye’s son hid in the house of General Zhang Zhifang of Jinwu to avoid the chaos of Huang Chao’s rebellion and was killed. “People who hate Liu Tong falsely accused him of colluding with the rebels, saying that his death was not to be regretted. They all said that he should be convicted by San Si.” Zhang Yi, a minister of the Ministry of Punishments, appealed for it and finally “had him rehabilitated, and Liu Qin was also rewarded after his death.”41 This is an example of officials of Da Li Si and the Ministry of Punishments initiating the rehabilitation procedure, and Yu Shi Tai played an important role in this affair by retrying the wrong case. The governor of Muzhou, Feng Zhaotai, falsely accused Li Shidan and more than 200 others of doing witchcraft. Li Shangyin, a censor, requested to judge the case and finally indeed found out the truth and made them rehabilitated.42 In December 883 A.D., Xuzhou’s governor Li Ninggu and his father Li Shang were falsely accused of conspiring to kill Pu. “When judicial officer Tian Lingzi received bribes, he asked the emperor to arrest Li. Prime Minister Lu Wo also agreed with him. Later, after Wang Hua’s trial and Xiao Xiao’s report, Li was finally rehabilitated.”43 It should be pointed out that although the principal, his relatives and outsiders have the right to appeal to the court, it does not necessarily trigger a retry. The Ministry of Punishments, Yu Shi Tai or other officials, based on the power of judicial retry, supervision or consultation, were still the key forces to initiate the rehabilitation procedure. The court took many comfort measures to the injustice and the family members to achieve the purpose of dispelling accumulated grievances and formed a judicial practice of cumulative bestowal, the main content of which focused on the three aspects of resuming the post, deciding the title, and rewarding the offspring. The victim was finally rehabilitated and rewarded for his grievance after his death, and his family was also given the official title and benefited from it. In the second year of the Changshou period (693 A.D.), the cruel officials accused Dou Xiaojian’s wife, Pang, of cursing the emperor. Xiaojian was demoted to be the 39

Book of Tang, Volume 13, p. 383. Book of Tang, Volume 91, p. 2928. 41 Book of Tang, Volume 162, pp. 4253–4254. 42 New Book of Tang, Volume 130, p. 4499. 43 Book of Tang, Volume 179, p. 4646. 40

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governor in Luozhou and died. His sons Xilu, Xiqiu and Xiguan were exiled to Lingnan. In the early year of the Shenlong period, he was also rehabilitated. In the Jingyun period, he was awarded “Tai Wei”, and his son was allowed to ascend his official title. During the reign of Emperor Xuanzong, he was awarded again, which reflected his important status.44 In practice, people who have been wronged can get several honorable awards at the same time of restoring their reputation and official titles. Such cases are very common in historical records, especially the case of “Five Lords” in the second year of the Shenlong period (706 A.D.). In the first year of the Shenlong period, Huan Yanfan, Jing Hui and others launched the Shenlong coup to support the restoration of Emperor Zhongzong of the Tang Dynasty. The next year, they were trapped by Wu Sansi and were all demoted.45 Later, Huan Yanfan and Jing Hui were both killed by Zhou Lizhen. The five lords were rewarded four times in the first year of the Yanhe period, the sixth year of the Kaiyuan period, the third year of the Jianzhong period and the third year of the Yuanhe period.46 In the first year of the Yanhe period (712 A.D.), their official rankings and titular honors were recovered, and their sons and grandsons were granted two hundred households. In the sixth year of the Kaiyuan period (718 A.D.), an edict was issued to put them into the temple of Emperor Zhongzong Xiaohe. Their children were all promoted. In the third year of the Jianzhong period (782 A.D.), the emperor granted the title Si Tu (prime minister) to Yan Fan, Tai Wei (top-level official) to Hui, Taizi Taishi (Crown Prince Tutor) to Xuanyi, Si Tu to Jianzhi, and Tazi Taifu (Crown Prince Tutor) to Shuji.47 In the third year of the Yuanhe period (808 A.D.), Xun, the great grandson of Zhang Jianzhi, appealed to the prime minister on the posthumous titles of his forefathers. The prime minister presented a memorial to the emperor about this. “Order related officials to grant Xun an official position and issue posthumous titles to Jianzhi, etc.: Wenzheng to Jianzhi, Zhonglie to Yan Fan, Zhen Lie to Jinghui, Wenzhong to Cui Xuanyi and Zhen Lie to Yuanshu. The rehabilitation incident of the five lords went through four periods of reign: Emperor Ruizong, Emperor Xuanzong, Emperor Dezong and Emperor Xianzong, and successfully completed the restoration of officials, awarding descendants, and discussion on posthumous titles. This case fully proves the operation mode of rehabilitation in the Tang Dynasty, which was dominated by law departments and supported by relatives. In the specific period, rehabilitation practice can also achieve the political effect of reshaping authority and attracting people’s hearts. At the end of the Kaiyuan period, Yang Yuan framed the conspiracy holding by Prince Ying, Lord E Yao, Lord Guang Ju and his concubine brother Xue Xiu. In April of the twenty-fifth year of the Kaiyuan period (737 A.D.), Emperor Xuanzong declared that “Prince Ying, Lord E Yao, Lord Guang Ju were all guilty for their crimes and were abolished as commoners and Xue Xiu was sentenced to death.” Ying, Yao and

44

Book of Tang, Volume 183, p. 4725. Book of Tang, Volume 91, pp. 2930–2931. 46 New Book of Tang, Volume 120, p. 4312. 47 New Book of Tang, Volume 120, Biography of Heng Yanfan, p. 4312. 45

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Ju were killed later, and the public called them “three commoners”.48 In the first year of the Baoying period (762 A.D.), in May, “Prince Ying, Lord E Yao, Lord Guang Ju should be restored to their former ranks and gave their titles back.”49 The emperor’s action was intended to eliminate the injustice first and highlight the trend of reform and innovation after the chaos.50 There are, of course, cases in the litigation practice of changing concepts and abusing rehabilitation procedures. At the end of Empress Wu’s reign, judicial official Cui Shenqing appealed for Zhang Changzong’s crime. Zhang Changzong was absolutely guilty but was pardoned. In the early days of the Shenlong period, Changzong was convicted and killed, and Cui exiled Qinzhou and died. Cui Shenqing’s punishment was not improper, but because of the “Five Kings Case, all the people who were exiled because of being involved in the Changzong case were rehabilitated, Cui was also one of them and was given the title of the governor of Youzhou”. In October of the ninth year of the Tianbao Period (750 A.D.), Zhang Yi’s nephew Yang Zhaozou begged Zhao Yi’s brother. The two inverted verdicts have long been settled, and two of them have been invited to discuss it. At this time, because of Yang Yuhuan’s favor, Emperor Xuanzong was invited by Guo Zhong. “Geng Chen, who led the brothers of Yi to welcome Emperor Zhongzong in the work of Fang Ling, restored his official title and gave him a son.” This is evidence of the misconduct of punishment in a very special period.51 In October of the ninth year of the Tianbao period (750 A.D.), Yang Zhao, Zhang Yizhi’s nephew, appealed to Yizhi brothers. Their crime of treason had long been convicted. However, at that time, because of the favor of Yang Yuhuan, Emperor Xuanzong agreed with the request of him. “Their official titles were restored and were awarded for their credit of accompanying emperor Zhongzong.”52 This is evidence of the misconduct of punishment in a very special period. Accompanied by the application for rehabilitation without time limitations, the time limit for the court to rehabilitate injustice cases was not stipulated, and the time span could be as long as several decades. In the ninth year of the Dahe period (835 A.D.), Wang Ya and others were killed in vain in the Ganlu Incident. According to Zi Zhi Tong Jian, in the first year of the Tianfu period (901 A.D.), in April, the emperor pardoned the country and “Wang Ya and other 17 people were rehabilitated”.53 According to the Book of Tang, “Since the Zhenyuan period, the power of eunuchs became increasingly greater, civil and military officials were appointed by them; officials wishing to become military governors in control of outlying prefectures should bribe them. They could even decide the designation and abolishment of a crown prince and emperor.”54 During the Ganlu Incident, the eunuch Qiu Shiliang, the principal culprit of the unjust prison, “wantonly threatened and insulted Wang Ya and others, 48

New Book of Tang, Volume 82, p. 3608. Ce Fu Yuan Gui, Volume 88, p. 971. 50 The Note of Social Economic Literature of Dunhuang, p. 265. 51 New Book of Tang, Volume 109, p. 4097. 52 Zi Zhi Tong Jian, Volume 216, p. 6901. 53 Zi Zhi Tong Jian, Volume 262, p. 8552. 54 Book of Tang, Volume 184, p. 4754. 49

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and let them admit the rebellion themselves, and announced it in the court. So, no one knew the truth at that time, and all of them believed Wang Ya wanted to rebel”.55 After more than sixty years, why did the imperial court suddenly rehabilitate Wang Ya? Hu’s notes on Zi Zhi Tong Jian reveal the reason, “Cui Yin was going to kill the eunuch, so he first made Wang Ya and others rehabilitated.”56 Sun Guangxian’s Bei Meng Suo Yan also made a direct link between Wang Ya’s grievance and Cui Yin’s killing of eunuchs: In the Dahe period in Tang Dynasty, the eunuchs perpetrated whatever evils one pleases. Because of the Ganlu Incident, Wang and others were killed, and were not rehabilitated. When Emperor Xuanzong ascended the throne, he deeply felt that the eunuchs suppressed his rights. He had instructed prime minister Linghu Gong to solve this matter. The prime minister intended to kill the eunuch, but considering that there would be grievances, he recited: “For all guilty do not forgive, and for innocent people do not fabricate crimes.” Later, the fold was seen by eunuchs, so the relationship between the eunuchs and the ministers became incompatible. Later, Cui Shi was able to do his best. At the end of the Emperor Zhaozong period, Cui completed his goal, killed eunuchs, but was also killed.57

In the third year of the Tianfu period, all the eunuchs were ordered to death, which was according to Cui’s suggestion.58 The initiation and operation of the rehabilitation procedure are directly related to the change of the political structure in the Tang Dynasty. In the first year of the Tianfu period (901 A.D.), rehabilitating Wang Ya and others were aiming to save power by killing eunuchs.

2.3 System of Accountability In the early Tang Dynasty, a strict system of judge responsibility was established. In handling criminal cases, judges should judge the prison according to their own circumstances and avoid abuse torture; strictly observe the time limit and punish it with caution; malfeasance would be severely punished, and the judgment should be based on the law.59 In the Comments on Laws of Tang Dynasty, those directly related to the investigation of wrongful cases, such as “judicial officials receive bribes to pervert the law”, “Those who misuse the law when they receive money from others” would be beaten 100 times by stickers.”60 Another article said that “Interrogators must first consider the case, examine the confession of prisoners, and repeatedly trial; if it is still undecided, the case should be tried by other officials together; if the results are the same, then it could be allowed to torture the criminals during interrogation. If 55

New Book of Tang, Volume 207, p. 5872. Zi Zhi Tong Jian, Volume 262, p. 8552. 57 Bei Meng Suo Yan, Volume 5, p. 95. 58 Book of Tang, Volume 20, p. 775. 59 A Brief Introduction to the Judge’s Responsibility System in Tang Dynasty, The Law of Hebei, 1987, 4: 48–49. 60 Comments on Laws of Tang Dynasty, Volume 11, p. 220. 56

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the officials didn’t obey the rule, then they would be beaten 60 times.”61 According to the article “wrong judgment in lawsuits”, if a judge intentionally convicts him of innocence, the judicial officer shall be punished according to the principle of recoil, and the judge shall be sentenced for what he has done.62 Until the reign of Empress Wu, the system had been destroyed. During the Shenlong period, the rehabilitation movement further normalized the judges’ responsibility while reacting to unjust cases. In the first year of the Shenlong period (705 A.D.), on the eighth day in March, the cruel officials of the Wuzhou Dynasty were punished according to their ranks: those who were alive were demoted to remote areas, and those who had died were removed from the ranks and titles. The rehabilitation procedure is based on correcting the misjudgment of the original judgment.63 The rehabilitation procedure takes correcting the misjudgment as the premise. While purging the wrongs of the criminals and compensating them for their improper actions, the judge should be held personally responsible. This is also the direct reason why prisoners and their relatives have complained bitterly for years and even caused revenge. Therefore, the psychological recovery function of investigating the individual responsibility of judges in misjudged cases can even be equal to the nature of the rehabilitation. On March 12 of the thirteenth year of the Kaiyuan period (725 A.D.), the censor Cheng Xingcheng proposed restricting the qualification of the descendants of Wu Zhou’s cruel officials to be officials now. Because the crimes of Lai Zixun and the other 23 people were extremely serious, their descendants would never be officials; the crimes of Chen Jiayan and the other four people were slightly lighter, so the descendants could serve as unimportant officials.64

3 The Alienation of Rehabilitation The Rebellion of An and Shi is an important sign of the transition from prosperity to decline in the Tang dynasty. It also directly caused the separatist regime in the middle and late Tang Dynasty. The New Book of Tang describes the formation and influence of the issue of the Fan Zhen (military governor’s prefecture) in the Tang Dynasty: It was not until Emperor Suzong that the Rebellion of An and Shi had been suppressed. To appease the rebels to stop the war, the emperor and his ministers distributed the Hebei area to rebels’ subordinates, which sowed seeds of future trouble. Local officials took advantage of prevailing chaos to forcibly occupy lands and appointed their own subordinates. In addition, they looted local taxes instead of handing them over to the central government. They followed the system of the Warring States period. When the official died, their sons and grandsons inherited his official post and lands. By means of threats of force and speech induction, they changed local people’s culture of the Tang dynasty to the culture of northern barbarian tribes 61

Laws of Tang Dynasty, Volume 29, p. 552. Laws of Tang Dynasty, Volume 30, p. 562. 63 Book of Tang, the 1st, Volume 186, pp. 4840–4841. 64 Tong Dian, Volume 170, p. 4431. 62

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in ancient China. Despite the suppression of the rebels, military governor segmentation was formed. The phenomenon had continued approximately 100 years since the end of the Tang Dynasty, with soldiers not to the state’s jurisdiction.65

In the first year of the Guangde period (763 A.D.), the Rebellion of An and Shi was calmed down, but the court had no strength to completely eliminate the remaining forces in various places at that time. In the name of awarding government posts, the imperial government granted the title of Jie Du Shi (governor of one or more provinces in charge of both civil and military affairs during the Tang Dynasty). The lands formerly occupied by An Lushan and Shi Siming were distributed respectively to Tian Chengsi in Weibo (The southern part of Hebei and Northern Shandong), Li Huaixian in Youzhou (The ancient states are now Hebei, Beijing and Northern Tianjin), Li Baochen in charge of Chengde (It’s in Hebei today), and Xue Song in Zhaoyi (It is now east of Huoshan Mountain in Shanxi and Shexian County in Hebei). Later, Tian Cheng conquered Xiangzhou (which covers Anyang city located in the northern part of Henan Province and Linzhang County of Hebei province). The famous “three towns in Hebei were established in history. Chen Yinque once said, “Although the uprising of the Rebellion of An and Shi had failed, the subordinates of An Lushan and Shi Siming still maintained their original forces against the central government. This phenomenon continued until the end of the Tang Dynasty.”66 In addition, those who seek hegemony in the locality also included Li Zhengji in Ziqing (its ruling area generally includes the present Shandong area to the south of the Yellow River.), Li Xilie in Huaixi, Li Huaiguang in Shuofang. etc. In his book A Journal of Hard Learning, Wang Yinglin said that “since Emperor Suzong came to power, the function of state law had been deviant. Soldiers had betrayed their general and refused to obey his command, and in turn, the general had betrayed the state and threatened the emperor.67 Fan Zhen fought with each other, running affairs according to their own ideas. What they thought was only about how to invade and annex each other, causing a series of disasters to the local people. It seriously damaged the centralization system of the Tang Dynasty and directly caused the destruction of the Tang Dynasty and the Five Dynasties’ scuffle. Since Emperor Dezong came into power, the following emperors all had the ambition to pacify the local rebellion and restore the country’s law. Especially famous are those cases in which Emperor Xianzong suppressed Huaixi town and solved the Pinglu event in Ziqing and the case of Emperor Wuzong’s suppression of Jie Du Shi in Zelu. As an important political measure, the rehabilitation system was often applied to solve the problem of Fan Zhen when the central government engaged in political and military struggles with local forces. In the struggle to solve the problem of Fan Zhen, the initial intention of the rehabilitation system has gradually changed from redressing injustice to forgiving crime, which has played an important role in practice. 65

Xin Tang Shu, Volume 170, p. 5921. Part One The Clan of the Ruling Class and the Rise and Fall of the Political History of Tang Dynasty, Life, Reading, and New Knowledge, Sanlian Bookstore, 2001 (version): 203. 67 Kun Xue Ji Wen, Shanghai Ancient Books Publishing House, 2008, 15: 1677. 66

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In the struggle to pacify the rebellious forces around the country, the emperors often issued orders promising to pardon the guilty officials, with the purpose of seeking the submission of the forces in Fan Zhen. Such orders as forgiving the guilty officials totally deviated from the original meaning of the rehabilitation system. In essence, it was just the compromised measures of the central government for seeking political interests. When the rebels were aware of their crimes, they surrendered voluntarily after the defeat to protect themselves. The imperial court would dispose of them according to the rehabilitation system. In fact, the court just forgave their wrong doings. Therefore, the government issued an order concerning the rehabilitation system towards Fan Zhen, the intention of which often differs essentially from the original rehabilitation system of redressing the unjust. In the third year of the Jianzhong period (782 A.D.), Zhu Tao in Youzhou launched a mutiny. Later, defeated by Wang Wujun, he fled back to Youzhou and sent messengers to the emperor to admit his error and ask for punishment. In September of the first year of the Xingyuan period (784 A.D.), the emperor issued an edict: Zhu Tao has paid the missing tax to the court many times, reflecting his sincerity and introspection, which is suitable for putting him in an important position once again. Wang Wujun and Li Baozhen can be sent to inform him about regaining his position. If he truly wants to surrender, he can do more good deeds to show his loyalty. The emperor can forgive him for his previous wrongdoings.68

The first person who does bad things or the initiator of an abominable atmosphere should die. In fact, since the beginning of forgiving the wrongdoings of Zhu Tao, the following emperors, Emperor Dezong, Emperor Xianzong, Emperor Muzong, Emperor Wenzong and Emperor Wuzong, all absolved the misconduct of rebellious Jie Du Shi. In the sixteenth year of the Zhenyuan period (800 A.D.), Wu Shaocheng, a Jie Du Shi ruling Huaixi, withdrew troops back to Caizhou and wrote memorials to the throne to apologize and ask for punishment. In October of Shuzi (every sixty years), all crimes of Wu Shaocheng were forgiven, and his official post was restored.69 In July of the fifth year of the Yuanhe period (810 A.D.), Wang Chengzong dispatched a messenger to negotiate with Chen Xie about taxes. “The imperial court had sent troops to attack there for a long time, but at the end of the year of Dingwei, they issued an order to exempt Wang Chengzong from the crime in accordance with the rehabilitation system, conferring him the title of Chengde Jie Du Shi, and awarded him two states, Dezhou and Panzhou.”70 Shortly after Emperor Muzong ascended the throne, Wang Tingcou, who was the Jie Du Shi of Chengde, killed Tian Hongzheng of Weibo and then took over his post. In February of the second year of the Changqing period (822 A.D.), the imperial court could do nothing but to issue an edict to pardon the crimes committed by Wang Tingcou, who killed Niu Yuanyi and hence besieged Shenzhou. He was consecutively appointed as the secretary-general and imperial censor of Dadu of Zhenzhou, Jie Du Shi of Chengde, Guan Cha Shi (Inspector) of Zhenzhou, Jizhou, Shenzhou and 68

Book of Tang, 143, 3898. Book of Tang, Volume 13, p. 393. 70 Zi Zhi Tong Jian, Volume 238, pp. 7677–7678. 69

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Zhaozhou, and other posts.71 In fact, there was no alternative but to exempting Wang Tingcou’s guilt. A comment from Ce Fu Yuan Gui said that: it was the national conditions that caused such a phenomenon as harboring evildoers. At that time, there was war again in Fan Zhen, and Wang Tingcou should be the greatest sinner for killing all the soldiers and family members of General Tian Hongzheng. However, the court should exempt him from the crime and grant him an official post, which directly led to the subsequent eight years of war.72

In addition, each Fan Zhen often colluded with each other, forming the party’s partisan and openly boycotting the execution of the court’s decision. In June of the third year of the Kaiyuan period (838 A.D.), Wang Yanping, Jie Du Shi of Lingwu, was impeached for mobilizing troops of more than 7000 soldiers without authorization. The court exempted him from his death and exiled him to Kangzhou. Wang Yanping secretly asked Jie Du Shi of Fan Yang, Cheng De and Wei Bo to jointly write the memorial to the throne for pleading the court to exempt him from his crimes according to the rehabilitation system. Later, the court agreed to appoint Wang Yanping as Si Ma of Fuzhou.73 Later, because of the objection of Wei Wen, Xue Tinglao and Lu Hongxuan, Wang Yanping was nominated as Si Hu in Yongzhou. Wei Wen and others put forward their opinions, and the two sides each stood their ground. Later, as Emperor Wenzong asked a messenger to read his oracles, things had been ended…According to Ce Fu Yuan Gui: During the period of mourning, Wang Yanping did not arrive in Kangzhou. However, he colluded with the courtiers with lucre, not only avoiding the death penalty but also threatening the court and forcing it to appoint him an official position by the influence of three feudal towns of Hebei. The imperial court agreed to his request to patch up a quarrel and reconcile the parties concerned. The Hebei area, with its strong influence, did not abide by the laws of the country. At that time, people were sorry to talk about this.74

After the Rebellion of An and Shi, when dealing with the issue of Fan Zhen, the procedure of the rehabilitation system deviated from its basic connotation of redressing those who had received injustice. Instead, it had become a political measure for the court to pardon the guilty courtiers and the propaganda to isolate separatist forces. All the cases aimed at appeasing the problem of Fan Zhen were exempted according to the rehabilitation system and were dealt with by advancement. Whenever a Jie Du Shi started a mutiny and the court was unable to quell the disturbance, the emperor would exempt the rebel leader’s misdeed according to the rehabilitation system and by means of advancement to maintain the present condition of separatist regime for temporary peace. Jie Du Shi frequently committed mutiny. Their crimes were so obvious that the court had no reason to pardon them. The only reason for the court to exempt them many a time was that the court was in turmoil and the situation of the country was gradually declining. Hence, the rebels 71

Book of Tang, Volume 16, p. 494. Ce Fu Yuan Gui, Volume 177, p. 1967. 73 Book of Tang, Volume 156, pp. 4140–4141. 74 Ce Fu Yuan Gui, Volume 177, p. 1970. 72

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were always pardoned by the court, only to maintain a temporary peace. The above phenomena clearly show that the operation of the legal system must be based on political stability. If the legal system of the court went wrong, an increasing number of thieves and robbers would emerge, and national law would lose its function or deviate from its original intention. The best example of the failure of the law and political decline is when the system of rehabilitation was used indiscriminately in the late Tang Dynasty.75 In the administration of justice, absolution, as an important policy of criminal laws, played a certain role in dealing with the issues of Fan Zhen after the mid-Tang Dynasty. In the first lunar month of the eleventh year of the Dali period (776 A.D.), Tian Chengsi, Jie Du Shi of Weibo, wanted to submit to the court. Li Zhengji and Jie Du Shi of Ziqing wrote a memorial to the throne, pleading the court for allowing Tian Chengsi’s submission. After Tian Chengsi handed in his memorial, Emperor Daizong relieved his crimes by appointing official posts. At the same time, he pardoned all his subordinates, soldiers, monks, old people and ordinary people, who were under the administration of Tian Chengsi, as well as those who were related to Tian Chengsi, not investigating the responsibility of any of them.76 In July of the first year of the Zhenyuan period (785 A.D.), Niu Mingjun, general of the Shuo Fang Army, cut off Li Huaiguang’s head and surrendered to Ma Sui. Emperor Dezong issued an edict that all rebel soldiers can be exempted from all crimes if they submit and surrender.77 In August of the same year, the book said that if Li Xilie surrendered, the court would not kill him, and the generals, soldiers, local officials and ordinary people under his rule would be exempted from crime and punishment.78 In February of the first year of the Changqing period (821 A.D.), the book said, “All generals and soldiers of Chengde were treated the same as before. Han Yu, the assistant Minister of War, would still hold the post of Xuan Wei Shi.”79 In the third year of the Huichang period (843 A.D.), Emperor Wuzong pardoned Liu Congjian’s former subordinates and said, “If Liu Zhen could be subordinated to the court, the court would treat him as before and exempt him from all crimes.”80 Thus, the court took an active part in controlling public opinion and disintegrated the influence of Fan Zhen to a certain extent. At the same time, it has an exemplary meaning to other feudal towns.

75

Note: According to Lu Wen, a man in Tang Dynasty, punishment is used by the sage sovereign to assist morality and unify the world [Lu Wen: Collection of Literature of Lu Hengzhou, 10, Views on rewarding and punishment, Commerce Press, 1935, P. 105] The absolution of death penalty on meritorious states men are censured, let alone those rebellious officials. 76 Ce Fu Yuan Gui, Volume 176, p. 195. 77 Book of Tang, Volume 12, p. 350. 78 The Collection of Lu Zhi, p. 98. 79 The Collection of Orders Issued by Emperors in Tang Dynasty, Volume 122, p. 652. 80 Hui Chang Yi Pin Ji, Volume 3, p. 17.

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4 Summary Rehabilitation is a measure of judicial relief for redressing mishandled cases in ancient China. It is also called “Xue Mian”, “She Xue”, “Li Xue” and “Zhao Zhi” in historical records. After the petitioner has submitted his appeal, the central judicial authorities shall re-examine those cases that have been closed but with doubts, pronounce and revise the sentence if there is indeed a mistake in the conviction and sentencing, and appease the family members of the petitioner when restoring his reputation. The rehabilitation system is applied to court decisions that are already in force, similar to the modern retrial or misjudged case accountability system. Determining facts and discretion according to the law is the premise of guaranteeing judicial justice. The detailed rehabilitation rules formed in the Tang Dynasty were executed by Da Li Si and the Ministry of Punishments. The rehabilitation system had not been established until the end of the Kaiyuan period, during which it had experienced good and bad stages. It is noteworthy that most of the applicable persons who are absolved are guilty officials. “Xue Mian” has the dual meanings of absolving sins and correcting unjust cases. The so-called “Xue Zui” is a thorough subversion of the conviction and sentencing of the case, which is based on the premise that the original judgment is wrong. The “reduction and exemption” follows the judgment of the facts of the original conviction and the applicable law, referring to legal provisions or discretionary measures to reduce or exempt responsibility on the basis of the original judgment. In the administration of justice, rehabilitation and absolution were generally interchangeable litigation practices, which had a direct impact on the litigation practice of the Tang Dynasty, especially on dealing with the problem of Fan Zhen rebellion after the middle of the Tang Dynasty. The rehabilitation procedure generally goes through stages such as prisoners writing letters in prison (or directly appealing), law department reporting, Ministry of Punishments reviewing, and writing memorials. If it involves bureaucrat and feudal nobles or major unjust verdicts, there are procedures such as restoring prisoners to their official posts, counseling their posthumous titles, honoring their family, and compensating their offspring. Hence, the rehabilitation system of the Tang Dynasty, based on correcting wrong judgments, constructed a relatively complete judicial relief and initially formed the national compensation system. In the late Tang Dynasty, the court began the largest rehabilitation campaign in the history of the Tang Dynasty, and most of the cases involved belonged to the type of redressing injustice. This large-scale exoneration of previous guilt officials was out of practical need and was also the direct reason for the revision of the “Xue Mian” of the law “Shenlong”. A series of systematic reckonings of the unjust cases in the period of Emperor Gaozong and Wu Zetian was carried out by means of rectifying the unjust cases, rewriting the genealogy, counseling their posthumous titles, honoring their family, appointing official posts and rewarding descendants. The rehabilitation system has long surpassed its own litigation function and plays a pivotal role in uniting the people and reviving the development of the Tang Dynasty.

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In addition to the large-scale cases of redressing injustice in the first year of Shenlong, the rehabilitation system was generally applied to address single cases. There were four conventions in the procedure of rehabilitation in the Tang Dynasty. First, relatives could repeatedly appeal, which means that the relatives of the criminals were allowed to appeal repeatedly for the same case. Second, the practice of unlimited appeal. Whoever had been wrongly convicted, their relatives within five generations of them could appeal to the local government. In principle, local officials did not restrict the affinity between the guilty person and his relatives or the time when things happened. In accordance with this provision, there is no mandatory provision for the time of exonerating crime. Third, those who were not involved in the case could appeal to the reversal of miscarriage of justice. Influenced by the Confucian ethics of “returning virtue for virtue”, people who were independent of the case often venture to ask for rehabilitation for prisoners. Fourth, the practice of giving certain compensation and reward. After the judicial department ascertained the facts, if it was indeed a case of misjudgment, the court would take measures to appease the wrongly convicted criminals and their families, such as restoring their official posts, counseling their posthumous titles and compensating their descendants, to achieve the purpose of displaying justice and diffusing resentment. After the Rebellion of An and Shi, the rehabilitation system deviated from its initial intention of redressing unjust cases. In turn, it became a completely political measure for the court to pardon criminals and the propaganda to isolate separatist regimes. To appease Jie Du Shi, there were always practices such as exempting from crimes, rewarding official posts and compensating their descendants. As long as the feudal towns launched a rebellion, if the imperial government was unable to suppress, it adopted those measures as recovering their official posts or giving them promotions according to the rehabilitation system, only to maintain the present situation of the separatist regime of Fan Zhen, and seek temporary peace for the country.

Part V

Executive Convention

Chapter 15

Flogging

As a punishment measure widely used by the government and common people, flogging can be traced back to ancient times. In the Sui and Tang dynasties, flogging with a rattan cane, flogging with bludgeon, imprisonment, exile, and death were called the five feudal punishments. The academic circle achieved fruitful research results on flogging punishment with a rattan cane in ancient China, but as one of the formal feudal punishments, the execution status of flogging is still relatively vague, and the discussion on flogging punishment in the Tang Dynasty is currently lacking. Therefore, it is necessary to conduct an in-depth investigation on flogging in the Tang Dynasty in terms of punishment application from the perspective of litigation procedures.

1 Application Scope of Flogging The original meaning of flogging was thumping, and Xu Shen’s Word and Expression explained it as “beating”.1 Compatible with the application scope and the implementation method, it is also similar to “patting”, “lashing”, “striking” and “binding”. Interpretation of the Tang Law explained “lashing” as “patting”.2 Flogging was to shame the criminal. “Lashing punishment was applied to shame the criminals who committed minor crimes”.3 The application scope covered clan, government and administration of justice. Its functions included three levels, namely, punishment, inquisition by torture and criminal penalty. Initially, flogging was a rule to punish the

1

Word and Expression, Book Five the First Half, p. 196. (Yuan) Wang Yuanliang recompiled: Interpretation of the Tang Law, Volume 1 Interpretation of Flogging Punishment with a Rattan Cane, Yang Yifan compiled: Literature on Chinese Law (Series 2, Volume 1), p. 127. 3 New Book of Tang, Volume 56 Records of Criminal Law, p. 1408. 2

© Science Press 2021 X. Chen, A Study of Criminal Proceeding Conventions in Tang Dynasty, https://doi.org/10.1007/978-981-16-3041-5_15

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Fig. 1 Physical punishment on students. Source: Tan Chanxue, The Complete Works of Dunhuang Grottoes-Folklore Paintings, The Commercial Press (Hong Kong) Limited, 1999

children within family and school (Fig. 1), and the functions were to purge authority and expound cultivation. According to the Book of Rites-Internal Rules, “When parents were angered and unhappy, they would lash the children until they bled, who dare not complain, but fulfill their filial duty.”4 It’s the description of the parents practicing the family law to punish the children. Yan Zhitui even directly equated punishable family law with the state’s criminal penalty in the same position. “If the lashing punishment was abolished, the children would soon make mistakes; if the criminal penalty was not applied, the people would be confused. To regulate a family was the same as to rule a country.”5 The Book of Documents-Yaodian recorded, “Patting was applied as a punishment for education.” Kong Chuan said, “Patting means lashing. Students who were not diligent would be lashed.”6 It’s applied by teachers to punish indolence. “Criminal penalty cannot be neglected for a state; lashing cannot be abolished for a family.”7 In the Sui and Tang dynasties, it’s especially applied by teachers to punish students and subordinates, so that they can feel shame and guilt. According to the Biography of Wei Sili in the New Book of Tang, Sili loved his brothers 4

Book of Rites-Zhengyi, Volume 27 Internal Rules XII, p. 977. Wang Liqi, Collection of Yan’s Family Instructions, Volume 1 Regulating Family V, p. 41. 6 Book of Documents-Zhengyi, Volume 3 Shun Dian II, p. 77. 7 Comments on Laws of Tang Dynasty, Volume 1 Names, p. 1. 5

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in childhood. Once his mother was to lash his younger brother Chengqing, Wei Sili undressed and begged to replace him.8 The teachers of the official academy gave the students lash as physical punishment. “Those who didn’t follow the guidance would be flogged with whip.”9 Ancient society emphasized the order of different seniority and hierarchy, so the identity factor was the direct basis for respected teachers to punish students. Under the extension of this social relationship, a strict affiliation between superiors and subordinates was also formed. It is very common for petty officials to be lashed and humiliated by their superiors. The Decree on Whip and Bludgeon Punishment of Jin Dynasty stipulated that “State governor can give this punishment to Ci Shi”; “State Ci Shi can give this punishment to the subordinate governor”, and “county’s governor can give this punishment to the assistant official”.10 Du Mu’s To My Nephew Ayi said, “I joined the army serving the county governor; in haste and agitation all the day. Once any word is not in line with the rule, I will be lashed to injuries all over the body.”11 It is the real description of the grassroots officials enduring contempt and insults. In the later Kaihuang period of the Sui Dynasty, Youzhou governor Yan Rong misused the power. His subordinate Yuan Hongsi was repeatedly insulted by lashing. “He was lashed even three times within one day.”12 In the Zhenyuan period, Yuan Han impeached prefecture officials from flatter Pei Yanling. “All the prefecture officials arrived, no matter guilty or not, were lashed to establish the authority, which aroused public blame.”13 In the legendary history of the Tang Dynasty, many anecdotes of petty officials being lashed for public affairs were also recorded. As the record in Chao Ye Qian Zai, in the later Jinglong period, Du Peng, the governor of Jiyuan County, was called by the passenger with a token by mistake of the name, and then the Biyi official “lashed the passenger and revised the token”.14 Xuan Shizhi said, in the Dahe period, Guo Zhao moved to govern Xiliang Prefecture. Zhao once asked the gatekeeper to buy one hundred pieces of silk fabric. “He bought it at a much higher price, and Zhao felt cheated and so imprisoned him for punishment. After he was convicted, Zhao ordered to lash him in the court.”15 Niu Su’s description of the unwarranted humiliation to the prisoner and the arbitrary conduct of the official is more penetrating. When Xu Jieyan served as Langya governor, a prisoner hung himself in the prison. Jieyan arrested the former prison chief and lashed him. The prison chief said, “I was only in charge of maintaining the prison. Even if the walls were not solid enough or shackles were destroyed, leading to anyone’s escape, I 8

New Book of Tang, Volume 116 Biography of Wei Siqian by His Descendents, p. 4230. Old Book of Tang, Volume 149 Biography of Gui Chongjing, p. 4018. 10 Zhang Pengyi, Remained Jin Decrees, pp. 174–175. 11 Anthology of Fan Chuan, Volume 1, p. 10. 12 Book of Sui, Volume 74 Cruel Officials; Biography of Yuan Hongsi, p. 1695. 13 Old Book of Tang, Volume 149 Biography of Xi Zhi, p. 4022. 14 Chao Ye Jian Zai, Volume 6, p. 136. 15 (Tang) Zhang Du, Records of Xuanshi, Volume 2 Dog Renders Back (1), amended by Zhang Yongqin and Hou Zhiming, Zhonghua Book Company, 1983, p. 28. 9

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could get remission by repairing it. Now the prison died by hanging himself. Why am I guilty?” Jieyan replied with anger, “You are just a petty official, so your conduct deserves lashing punishment. You have no stand to complain.”16 In ancient times, common people were not eligible for courtesy, and noble scholars have the privilege to punishment even if they commit crimes. Since the Western Zhou Dynasty, the concept that noble scholars privilege punishment has been deeply rooted in public opinion. The conduct of lashing and insulting noble officials was fiercely resisted by the literati class. Noble scholars with sacred dignity can be killed but cannot be insulted. Guilty noble officials should be dealt with according to the law but cannot “be treated the same as petty officials”.17 The Comments on Laws of Tang Dynasty also explicitly prohibited the imprisonment officer from imposing bludgeon punishment for public affairs. On February 5th of the first year of the Qianyuan period (758 A.D.), “Any assistant official inferior to prefecture and county level can be punished less than ten bludgeons; anyone above this level should be dealt with as senior official”,18 trying to restrict the expansion of local chief officials lashing and insulting their subordinates. In addition to instructing children and admonishing subordinates, flogging punishment was an important means of torture in ancient China and gradually got the position of a formal punishment later. It is reasonable to believe that the connection of flogging chastisement, penalty and punishment vividly reflects the ideology integrating the state and family of ancient China. The “Lawsuit Judgment” article in Bamboo Slips of Qin Dynasty’s Tombs of Shuihudi-Feng Zhen Shi advocates judges to judge the lawsuit depending on reason instead of tyranny. “They should keep their words and rule the prison by reason; punishment is the last option, or otherwise they will fail.”19 Rattan cane has been used for torture interrogation since ancient times. At first, the specification was not constant. In the Han Dynasty, the specification of rattan cane was gradually standardized. The justice administration should inquisite the arrested prisoner by the “Five Observings” method. If the suspect refused to admit guilt, they could apply torture interrogation according to the law. Shi You’s Ji Jiu Pian said, “Thieves and prisoners are flogged on the hip.” Yan Shigu explained that: Rattan cane is for flogging. Hip means buttock. The arrested thieves are tied and flogged on the buttocks to inquisite their guilt.20

16

Extensive Records of the Taiping Era, Volume 494 “Xu Jieyan” cited from Record of Tales, p. 4055. 17 Comprehensive Mirror in Aid of Governance, Volume 212 November of the tenth year of the Kaiyuan Period, p. 6754. 18 Tang Hui Yao, Volume 41 Miscellaneous Notes, p. 874. 19 Bamboo Slips of Qin Dynasty’s Tombs of Shuihudi Sorting Group, Bamboo Slips of Qin Dynasty’s Tombs of Shuihudi p. 147. 20 Ji Jiu Pian, Volume 4, p. 303.

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Thus, flogging on the hips was a legal way to torture prisoners in the Han dynasty. However, illegal torture in practice was actually an abuse of traditional justice. Interfered by confession centralism, an inseparable natural connection between torture and confession was formed. The decree of Emperor Xuandi issued in September of the fourth year of the Dijie period (66 B.C.) described that “many arrested suspects may die from torture, starving or cold in the prison”.21 The decree of Emperor Zhangdi issued in July of the first year of the Yuanhe period (784 A.D.) also said, “Since the prison system was implemented, torture interrogation was getting cruel and extremely miserable.”22 Niu Xiji’s Criminal Theory said, “It’s easy to impose guilt by torture interrogation. Human’s body is not as hard as a rock. Confession will be definitely got by applying cruelty. Even innocent people cannot be exonerated because no one can stand up with the misery and he prefers to die rather than suffer the torture. Therefore, cunning officials are always capable of solving a case.”23 In the Tang Dynasty, the problem of abused torture and cruel punishment remained for a long time. When Wu Zetian crowned herself after the Yonghui period, “judicial officials took cruelty for their ability. Even though some arrested prisoners flogged to death, this punishment was still not abolished”.24 In the Kaiyuan period, Luoyang governor Wang Jun and Henan minister Yan Anzhi “flogged a man who didn’t dare to die. They flogged the swollen part again and didn’t get satisfied until bleeding”.25 In the 9th year of the Dahe period (835 A.D.), the “Ganlu Incident” occurred. The prime minister Wang Ya and all of his family members and servants were arrested in prison. Because “he was arrested in a rush and suffered unbearable torture”,26 he wrote rebellion opinions to frame himself. In the period of Emperor Xianzong, Yihai Supervisor Wang Sui ruled with violence and made life unbearable for civilians. “Every time the flogging punishment exceeded the tolerance.” Finally, he was killed by the people in the fourteenth year of the Yuan period (819 A.D.). The ambassador sealed up his bludgeon and submitted it to display in the court for admonishment.27 In summary, the application of ancient flogging punishment has evolved for a long time, covering the relationships of teachers and apprentices, elders and seniors, chief officials and subordinates, and jailers and prisoners. Functions include exhortation, punishment and torture.28 Among them, only the specific application of flogging punishment is exclusively in the field of penalty execution. For the above reasons, 21

Book of Han, Volume 8 Biography of Emperor Xuandi, pp. 252–253. Book of Later Han, Volume 3 Biography of Emperor Suzong Xiaozhang, p. 146. 23 Wen Yuan Ying Hua, Volume 749 XI Punishment and Reward: Punishment, p. 3918. 24 New Book of Tang, Volume 56 Records of Criminal Law, p. 1414. 25 New Book of Tang, Volume 209 Cruel Officials: Biography of Zhou Lizhen, p. 5913. 26 Old Book of Tang, Volume 169 Biography of Wang Ya, p. 4404. 27 Tang Hui Yao, Volume 41 Cruel Officials, p. 872. 28 Tomigaya Shi believes that “flogging punishment was applied as a disciplinary action or admonition within a family, and implemented aiming at incomplete official work. From this point of view, the expected initial effect and function of flogging punishment may be summarized as a sanctioned action license for scolding.” [Japan] Tomigaya Shi, Evolution of Flogging Punishment with Rattan 22

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the discussion on the application of flogging punishment should focus on a specific field, namely, the investigation of the applicable state of criminal penalties.

2 Implementation Types of Flogging in Tang Dynasty 2.1 Formal Punishment Since the revision of the law in the Kaihuang period, flogging has been widely applied as a formal statutory punishment in practice. Zhang Zhuo’s Long Jing Feng Sui Pan recorded that reporting official Cui Xian made an oral mistake in the statement to the emperor. The censor quoted the law, and Da Li Si sentenced him to thirty rattan canes and two kilograms of bronze. Cui Xian appealed against the judgment of bronze, arguing that even the oral mistake did not distort the original fact. According to the article on the mistake in the statement to the emperor in Comments on Laws of Tang Dynasty-Position System, “Any mistake in the statement to the emperor should be punished with sixty bludgeons; any oral mistake should be punished with a lower standard. (Original note: Mistakes that do not distort the fact are not included.)”29 Therefore, oral mistakes in the statement to the emperor that do not distort the fact are exempt from the responsibility according to the law. The judging statement said that “Mistakes should be sentenced to flogging punishment with rattan cane, but those do not distort the fact are not guilty.”30 Zhang Zhuo’s records are mostly about prefecture and county casts with doubtful points. All are from verifiable real cases, indictment and historical affairs.31 Although Cui Xian’s true identity is unknown, the basis of the sentence corresponds to the intention of the law. The execution of flogging punishment in the Tang Dynasty was characterized by “confirmed verdict”, “with consistent basis”, and “with prohibition”.32 In judicial practice, fluctuating conviction was formed for the application of flogging punishment. According to the Laws of Tang Dynasty, the statutory standard for flogging punishment was ten to fifty. In the seventh year of the Zhenguan period (633 A.D.), Yang Yu, father of a concubine of King of the Shu, committed a crime in the selection of maidservants.33 The judge Xue Renfang detained him for the inquisition but did Cane; From the Flogging Supervision in the Han Dynasty to the Rattan Cane and Bludgeon Flogging in the Tang Dynasty, Zhou Dongping and Zhu Teng compiled: Translation and Annotation of the Legal History, Peking University Press, 2013, pp. 50–51. 29 Comments on Laws of Tang Dynasty, Volume 10 Position System, p. 201. 30 Long Jing Feng Sui Pan, Volume 1 Secretariat, p. 3. 31 Huo Cunfu, Interpretation of the Cases in Long Jing Feng Sui Pan–Study on Zhang Zhuo’s Records from Verifiable Real Cases, Indictment and Historical Affairs, Journal of Social Sciences of Jilin University, 1998, 2: 19. 32 Liu Junwen, Research on the Legal System of Tang Dynasty, Wenjin Publishing House, 1999, pp. 213–216. 33 Political Affairs in Zhenguan Period, Volume 2 Taking Advises V, p. 71.

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not convict him at last. Yang Yu’s son stated in the imperial court that “officials at fifth or higher ranks are not applicable for detention except rebellion. As a relative of the king, Yang Yu was not convicted and detained for a long time.” The article the Crown Princess (submit to the emperor for adjudication) in Comments on Laws of Tang Dynasty-Names stipulates that “Any official at the fifth or higher ranks who committed the crime of death, should be submitted to the emperor for adjudication; if the crime is applicable for exile or lower punishments, the penalty should be reduced.”34 If the judicial authority refused to report and made arbitrary decisions by themselves, it should be convicted as the third rank of negligent crime according to the law.35 Xue Renfang attended to grab all the power and refused to report to the court, so he received slight punishment, namely, “flogging punishment with thirty rattan canes and set free”.36 In March of the fifteenth year of the Yuanhe period (820 A.D.), Du Zhi Zhi Pan Mengyang and Taifu Shaoqing Wang Sui sued each other. Mengyang was an imperial servant, and Sui was the governor of Dengzhou Prefecture. Wang Sui privately sent subordinates Wei Xingsu and Liu Jichang to ask for salaries. Sui resigned, and Jichang was wrongly accused of corruption. According to the article Corruption in the Comments on Laws of Tang Dynasty-Miscellaneous Laws, “To the criminal of accepting bribes, one Chi is applicable for twenty rattan canes; each one more Pi for a higher grade; ten Pi for one year in prison, each ten Pi for a higher grade, and the highest grade is three years in prison.”37 Wei Xingsu and Liu Jichang were “flogged with forty rattan canes” each; the money they requested was commissioned to Duzhishi for collecting and paying at the legal amount. The abovementioned cases of flogging penalties on Xue Renfang, Wei Xingsu, and Liu Jichang for slight punishment are all examples of light measures of punishment.38 In August of the thirteenth year of the Zhenguan period (639 A.D.), in the case of the self-incriminating prosecutor, the decree stipulated that “Anyone’s body cannot be harmed. Previously, some prosecutors harmed their eyes or ears by themselves. From now on, anyone committed this will be flogged with forty rattan canes before the trial procedure”.39 The Comments on Laws of Tang Dynasty divided the penalty standards for direct appealing by self-mutilation into two grades, fifty rattan canes and one hundred bludgeons, according to the veracity of the prosecution. According to the article “false statement in prosecution” in Lawsuit, “Those who harmed themselves will be flogged with one hundred bludgeons; those who told the truth but 34

Comments on Laws of Tang Dynasty, Volume 2 Names, “the crown princess (submitted to the emperor for adjudication)”, p. 33. 35 Comments on Laws of Tang Dynasty, Volume 30 Judgment “self arbitrary decisions on the case that should be reported”, p. 561. 36 (Tang) Wang Fangqing, Expostulation of Wei Zheng, Volume 2 Expostulation on Additional Flogging Punishment to Xue Renfang, The Commercial Press, 1939 (early compilation of series collection), p. 14. 37 Comments on Laws of Tang Dynasty, Volume 26 Miscellaneous Laws “Bribery Offence”, p. 479. 38 Old Book of Tang, Volume 162 Biography of Wang Sui, p. 4241. 39 Zi Zhi Tong Jian, Volume 195 “in August of the thirteenth year of Zhenguan period of the Emperor Taizong”, p. 6149.

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harmed themselves will be flogged with fifty rattan canes. Representative prosecution of relatives is the same as a private prosecution.”40 Thus, the self-mutilated prosecutor should be flogged with forty rattan canes first and then flogged with fifty rattan canes or one hundred bludgeons according to the veracity of the prosecution. The stipulation of forty rattan canes first can be regarded as an upgrade of statutory penalty. In addition, for new crimes, the emperor usually made specific decrees for judgment to make up for the deficiencies of laws, including many precedents for the application of flogging punishment. The Comments on Laws of Tang Dynasty does not include the penalty for private mining of silver, but the article “private coin casting” in the Miscellaneous Laws stipulates that “Private gold and silver coin cast but not in circulation is not applicable for imprisonment.” In October of the third year of the Yuanhe period (808 A.D.), private silver mining was prohibited.41 “Anyone who mined more than 50 g will be flogged with twenty rattan canes, expelled from the original area, and handed over to the prefecture and county officials of each level for punishment.”42

2.2 Additional Punishment The tradition of taking flogging as additional punishment in the Tang Dynasty can be traced back to the system of the additional flogging punishment to exile in the Han Dynasty. The system of mitigating the death penalty to exile began from the Eastern Han Dynasty. Based on the objective reality of reinforcing the frontier, the complete body of the criminal was very important. In October of the seventh year of the Yongping period of Emperor Mingdi (64 A.D.), a decree “recruited the convicts sentenced to death all over the county, mitigated the punishment, prohibited flogging punishment on them, sent them to the military camp of General Liao, and stationed in Shuofang, Wuyuan and other border counties”.43 It is the beginning of mitigating the death penalty to exile in the Han Dynasty. Later, in the periods of Emperor Zhangdi, Emperor Andi, and Emperor Huandi, the court sent convicts sentenced to death to Shuofang, Dunhuang, Jincheng, Fengyi and Fufeng, and every time, the prohibition of additional flogging punishment was repeatedly emphasized. The additional flogging punishment for mitigating the death penalty to exile may be the old system of the Han Dynasty. The “prohibition of flogging punishment” in the decree should be regarded as special cases. The practice of additional flogging punishment to exile was verified in the Later Han Dynasty Biography of Liang Tong. 40

Comments on Laws of Tang Dynasty, Volume 24 the Lawsuit “false statement in prosecution”, p. 447. 41 Comments on Laws of Tang Dynasty, Volume 26 Miscellaneous Law, “Private Coin Casting”, p. 480. 42 Ce Fu Yuan Gui, Volume 493 Bangji Department-Shanze, p. 5592. 43 Book of Late Han, Volume 2 Biography of Emperor Xiaomingdi Xianzong, p. 111.

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In the first year of the Yongjia period of Emperor Chongdi (145 A.D.), Liang Ji stated that the county and prefecture framed up Nanjun Governor Ma Rong and Jiangxia Governor Tian Ming. “Both were flogged before being exiled to Shuofang.”44 Provisions about the additional flogging punishment to imprisonment and exile in Laws of Jin, Laws of Northern Qi and Laws of Northern Zhou directly derived from the application of the flogging punishment as an additional penalty in the Tang Dynasty.45 In the middle and late Tang Dynasty, many cases applied to flog punishment as an additional punishment to exile in judicial practice. Referring to relevant provisions in the Comments on Laws of Tang Dynasty, despite the specific sentencing circumstances for the measurement of penalty in the above cases, the practice of applying flogging punishment as an additional punishment to exile penalties was universally applicable.46 Moreover, it even implies extra judicial sentences for aggravating the conviction. Below are four examples. In March of the seventeenth year of the Zhenyuan period (801 A.D.), Quzhou governor Zheng Shizhan was “convicted flogging punishment of forty rattan canes and exile to Yazhou against bribery crime”. He died in the prison before the decree arrived. Although Zheng Shizhan committed bribery crime of huge amount, imprisonment of three years plus flogging punishment was enough for the conviction. However, because “it was interrogated by the imperial court”, the conviction was exile plus flogging punishment. It’s obviously an extra penalty to the judicial sentence. In November of the nineteenth year of the Zhenyuan period (803 A.D.), official Cui Wei was framed up and violated the procedure of the Shence Army. He was also impeached from having drunk in the army, intending to make a conspiracy. The garrison officer Dou Wenchang filed a detailed lawsuit against him. “The emperor was angry and convicted him flogging punished with forty rattan canes and exile to Yazhou”. According to Zi Zhi Tong Jian, in the early Jianzhong period, an edict was issued to the officials of the capital and the prisoners of prefectures and countries.47 Imperial officials were sent quarterly as circuit supervisors to inspect wrongly convicted and abused prisoners and handed over the cases to the North Army. The practice that imperial officials inspected prisoners without entering the North Army was compiled in the formal documents.48 “The imperial officials no longer dared to enter the North Army to inspect prisoners but handed over to Beisi Division. They only checked the names and records of the prisoners as a matter of routine and ignored whether they were wrongly convicted or abused.” According to the article “violation” in Comments on Laws of Tang Dynasty-Miscellaneous Law, “Anyone who violated regulations would be flogged with fifty rattan canes; for those who violated other procedures, the punishment will be mitigated by a grade.”49 Cui Wei 44

Book of Late Han, Volume 34 Biography of Liang Tong, p. 1185. Ce Fu Yuan Gui, Volume 700 Mushou Department: Corruption, p. 8089. 46 Old Book of Tang, Volume 13 The Second half of Biography of Emperor Dezong, p. 394. 47 Old Book of Tang, Volume 13 The Second half of Biography of Emperor Dezong, p. 399. 48 Zi Zhi Tong Jian, Volume 236 “December, the 19th year of Zhenyuan period of Emperor Dezong”, annotated by Hu, p. 7604. 49 Comments on Laws of Tang Dynasty, Volume 27 Miscellaneous Law “Violation”, p. 521. 45

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violated the procedure of inspecting prisoners. For fear of the power of imperial guards, Emperor Dezong “issued the edict to flog him in the hall until bleeding”.50 The punishment was roughly in line with the law. In April of the twelfth year of the Yuanhe period (817 A.D.), Fuma Duwei Yu Jiyou’s legal mother died, but he still had a banquet with Jinshi Liu Shifu. “Jiyou was demoted, flogged with forty rattan canes, and exiled to Zhongzhou; Shifu was flogged with forty rattan canes and exiled to Lianzhou; Yu Shun was also demoted for incompetence in disciplining his son.”51 According to the article “addressing grandparents” in Comments on Laws of Tang Dynasty-Names, the son addressed his father’s first wife the legal mother. “The legal mother, stepmother and foster mother are equivalent to the natural mother.”52 According to the article “concealing funeral arrangement for parents and husband” in Comments on Laws of Tang Dynasty-Profession System, “Anyone who heard the death of parents or husband but concealed or didn’t lament over the death will be exiled to two thousand Li far away; anyone who took off the mourning dress or participated in entertainment before the mourning period was over will be sentenced to three years in prison; those who watched miscellaneous shows will be sentenced to one year in prison; those who participated in banquet will be flogged with one hundred bludgeons.”53 Yu Jiyou participated in entertainment during the mourning period, so the conviction should be three years in prison. Obviously, the increased penalty on Yu Shun and his son was in accordance with Emperor Xianzong’s ambition of conquering the military governor’s prefectures. In May of the first year of the Baoli period (825 A.D.), Si Ma Xie Shaoju’s servant Sha Ju accused Shaoju of his misbehavior. “It was verified to be a false accusation, so Sha Ju exiled to Lingzhou.” The article “Servants accusing masters” in Comments on Laws of Tang Dynasty-Lawsuit stipulated the penalty for the servants who wrongly accused their masters and relatives of their crimes: “Any servant who wrongly accused the master will be hanged except the crime was rebellion or treason; (original note: the person accused will be convicted the same.) Those who wrongly accused the master’s stage relatives or grandparents will be exiled; those who wrongly accused the master’s Dagong or more distant relatives will be sentenced to one year in prison. If the false accusation was serious, against Sima relatives (the farthest kinsfolk), the punishment would be aggravated by one grade referring to ordinary people; against Xiaogong and Dagong relatives, the punishment will be aggravated by one grade.”54 Thus, any servant who wrongly accused the master should be hanged according to the law. However, “Sha Ju was only flogged with a rattan cane, and still stayed in the original area. It’s a miscarriage of judgment”, and the punishment was obviously mitigated.

50

Complementary History of Tang, the second half volume “Cui Yushi inspecting prisoners”, p. 52. Old Book of Tang, Volume 15 The Second half of Biography of Emperor Xianzong, p. 459. 52 Comments on Laws of Tang Dynasty, Volume 6 Names “Addressing Grandparents”, p. 136. 53 Comments on Laws of Tang Dynasty, Volume 10 Profession System “concealing funeral arrangement for parents and husband”, p. 204. 54 Comments on Laws of Tang Dynasty, Volume 24 Lawsuit “servant accusing the master”, p. 438. 51

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2.3 Administrative Punishment In the Tang Dynasty, flogging punishment was usually applied as an administrative penalty to punish officials. Most were acts such as usurping authority and dereliction, with no specified punishment rules in the law. The specific standard of flogging punishment was mostly determined by the emperor and the chief according to customary rules. In the Zhenyuan period, Pei Yu, Yuanwailang of the Ministry of War, collected interest. Because he was too harsh and didn’t ignore every cent, forty subordinate officials escaped. “Therefore, the chief criminal of the officials was flogged with forty rattan canes.” The flogging punishment of this case aimed at the dereliction of the officials. In July of the third year of the Yuanhe period (808 A.D.), Wufang (for feeding eagles and dogs for the imperial hunt) officials Zhu Chaoyan and Wang Zhizhong connived eagles to forage in rich families many times.55 Emperor Xianzong “summoned them immediately, flogged each of them with twenty rattan canes and deprived their positions.56 He also reprimanded all those who fed the birds too big”.57 In April of the fourth year of the Changqing period (824 A.D.), Zhao Shao and more than 100 other dye house laborers went to Qingsi Hall and had lunch on the royal couch. “Jiuxian Gate and other authorities arrested 35 laborers and flogged them”58 but reserved their positions. The abovementioned two cases are both about the administrative punishment measures imposed by the emperors on the internal officials. In addition, flogging punishment was also the basic measure for officials to punish serious crimes within their jurisdiction. According to the records in the Epitaph and the Preface of Miao Fujun, the former Sandafu, Jingzhao Shaoyi and Yushi Zhongchen of Tang Dynasty, when the tomb owner Miao Shen served as Wuchang judge of the Ministry of Revenue, under his jurisdiction, “Yan’s son, who lived in Hubei, was drunk and disobeyed the emperor on the way. Miao was angered and flogged him, so he was accused by Yan’s subordinate and demoted to Lianzhou Sima”.59

2.4 Flogging to Death In the Qin dynasty, flogging and many other corporal punishments were combined into the “Five Punishments”. It’s the origin of the later “Flogging to Death”. According to the Book of Han-Criminal Law: 55

Ce Fu Yuan Gui, Volume 933 General Chapter: False Accusation, p. 10,809. Ce Fu Yuan Gui, Volume 481 Taisheng Chapter: Condemnation, p. 5443. 57 Tang Hui Yao, Volume 78 Servants: Wufang Palace Servants, p. 1682. 58 Old Book of Tang, Volume 17, Records of Emperor Jingzong, p. 509. 59 Li Xianqi and Guo Yinqiang, Newly Discovered Epitaph in Luoyang, pp. 302–303. 56

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In the early Han dynasty, despite the Three Chapters of Law, there were still many fugitives who committed serious crimes. In addition to capital punishment, another decree provided punishment on the relatives of father, mother and wife of the criminal. The decree said, “All the relatives of father, mother and wife will be tattooed on the face, cut off the nose and the left and right feet, and then flogged to death with a rattan cane and beheaded. Their flesh and bones would be minced in the market. Those who defamed or cursed others would be cut off the tongue first.” It’s the so-called Five Punishments.60 Examples of flogging to the death penalty in different dynasties were mostly not regular punishment. In August of the eighth year of the Empress Gao’s reign (180 B.C.), Taiwei Zhoubo and others “arrested and executed Lv Xu, and flogged Lv Xu to death”.61 In the Chuping period of Emperor Xiandi, Dong Zhuo sent someone to tell Wei Wei that Zhang Wen conspired with Yuan Shu, “so he flogged Zhang to death”.62 In the Sui and Tang dynasties, flogging punishment was included in the formal penalties and limited to fifty rattan canes. In the case of flogging to the death penalty, it is not limited, and the criminal will be flogged until death. In the Yuanhe period, Monk Jianxu made acquaintances with dignities and influential officials with bribery in the amount of tens of thousands. The censor Xue Cuncheng convicted Jianxu of capital punishment but later “he was flogged to death unexpectedly”.63 In February of the first year of the Longji period (889 A.D.), Bianzhou Military Sima Li Fan escorted rebel Qin Zongquan and his wife Zhao to the imperial court. “The emperor received the captives, and officials all congratulated it. After a parade through the streets and sacrifice in the ancestral temple, he was sacrificed, and Zhao flogged to death.”64 In February of the third year of the Tianfu period (903 A.D.), “Palace servants Song Rou and other ten people, and more than 20 people in close relationship with the inner officials were all flogged to death in the capital office.”65 Thus, flogging punishment became one of the execution methods of the death penalty to some extent, which is the same as the death penalty with bludgeon stipulated by the edict issued in the third year of the Jianzhong period of Emperor Dezong (782 A.D.). Among the five punishments, flogging was the most mitigated, but the execution status was the most complicated. In the application field of criminal punishments in the Tang Dynasty, in addition to formal punishment, flogging was still applied in many disguised forms, such as additional punishment, administrative punishment and execution method of the death penalty. For flogging punishment with rattan cane or bludgeon additional to exile, flogging punishment to the officials negligent in duties, and even death penalty by flogging, there was neither approved law nor applicable norm to follow. In essence, it was judicial practice. It also reflects the

60

Book of Han, Volume 23, Criminal Law, p. 1104. Records of the Grand Historians, Volume 9, Biography of Empress Lv, p. 410. 62 Records of the Three Kingdoms, Volume 6, Book of Wei: Biography of Dong Zhuo, p. 176. 63 Old Book of Tang, Volume 153, Biography of Xue Cuncheng, p. 4090. 64 Old Book of Tang, Volume 20, Biography of Emperor Zhaozong, p. 737. 65 Old Book of Tang, Volume 184, Eunuchs: Biography of Yang Fugong, p. 4779. 61

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fusion and infiltration of the flogging penalty, flogging punishment and flogging execution following the concept of “integration of the family and the state”.

3 Application Rules of Flogging Punishment According to the Book of Rites-Proceedings of Government in Different Months, “In the month of mid-spring…the justice authority should mitigate the imprisonment, remove the shackles, and cancel the lawsuit.”66 However, the book did not record when the torture on prisoners initiated in detail. It’s probably since the Zhou dynasty.67 Afterwards, the system of torture interrogation evolved and passed down in succession. As a major turning point in the reform of the Chinese criminal punishment system, Emperor Wendi of the Han Dynasty was praised for abolishing corporal punishment, but at the same time, he was criticized because “it mitigated the punishment in the Ming Li but killed more people in fact”. Too much flogging punishment resulted in higher mortality of the criminals. In the first year of Emperor Jingdi (156 B.C.), a decree was issued to mitigate flogging punishment. In the sixth year of the Zhongyuan period (144 B.C.), Lashing Decree was compiled, and the specifications of the torture apparatus and the execution rules were established: The prime minister Liu She and imperial censor Wei Wan proposed that “rattan cane was a lash five Chi long, made of bamboo with all knots removed, one Cun bigger at the handle, and half Cun thinner at the end. The criminal should be flogged on the hip. The executioner cannot be changed until the punishment was over.” Thus, the criminal can survive.68 The flogging punishment system stipulated in the Lashing Decree should be the general rule for torture and execution. The justice authority should strictly implement the abovementioned provisions in the process of torture interrogation and execution.69 The promulgation of the Lashing Decree ruled the application of flogging punishment with a rattan cane. Later it was compiled in Ling Bing. Therefore, the Book of Late Han quoted from Lashing Decree that “The length of the cane was stipulated”.70 The application of flogging punishment in the later dynasties more or less 66

Book of Rites Justice, Volume 15 Proceedings of Government in Different Months, pp. 550–553. (Qing) Shen Jiaben, On Ancient Criminal Laws; Criminal Laws 17; Punishment on Prisoners, p. 502. 68 Book of Han, Volume 23 Records of Criminal Laws, p. 1100. 69 Book of Late Han, Volume 3 Biography of Emperor Suzong Xiaozhangdi, p. 146. Note: Archaeological data provided direct evidence for the investigation of the real execution status of flogging punishment in the Han, Wei and Jin dynasties. On the Execution Painting of the bricks in the Wei and Jin tomb, Xigou Village, Jiuquan City, two people on the left side are groveling, wearing Jinxian crown on the head, in black cross-color long gown, holding the scepter board; two people are standing behind them, wearing red cap and each holding a stick in the right hand. Because it is a scene of execution, the stick in the hand is undoubtedly rattan cane. Ma Jianhua, Painting Bricks in the Wei and Jin Tomb, Xigou, Jiuquan, Gansu, Chongqing Press, 2000, p. 35. 70 Book of Sui, Volume 25 Records of Criminal Laws, p. 706. 67

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followed the former system of the Han dynasty. For example, the Laws of Northern Qi stipulated that “the criminal should be flogged on the hip and the executioner who missed will be changed. The bludgeon was three Chi and five Cun long, two and a half centimeters at the bigger end, and one and a half centimeters at the smaller end. For the flogging punishment with less than thirty bludgeons, it’s four Chi long, three centimeters at the bigger end, and two centimeters at the smaller end.” The Tang Dynasty followed the simplicity on this basis and regulated the specifications of the cane and bludgeon. In the first lunar month of the eleventh year of the Zhenguan period (637 A.D.), cangue, shackle, clamp, Chao, bludgeon and rattan cane, and their length and width were stipulated: The cangue was used to confine the neck, and the shackle was used to confine the twists. A clamp was the iron chain for confining the criminal. Chao was the iron rail for blocking them. Bludgeon was three Chi five Cun long, with all knots cut off. Interrogation bludgeon was three points two centimeters at the larger end and two points two centimeters at the smaller end. Punishment bludgeon was two points seven centimeters at the larger end and one point seven centimeters at the smaller end. Rattan cane was two centimeters at the larger end and one and a half centimeters at the smaller end.71 In the Kaiyuan period, Yu Guan Ling stipulated that flogging punishment should be executed separately on the legs and hips. Only when the prisoner accepted can it be executed on the back and legs: All the knots of the sticks were cut off, three Chi five Cun long…rattan cane was two centimeters at the bigger end, and one and a half centimeters at the smaller end. The criminal suffered the punishment separately on the legs and hips;…If the criminal preferred to suffer it on the back and legs, it would be accepted72 ; Regardless of the body part for the punishment, the criminals to be flogged should take off all clothes and grovel. This punishment was inconvenient for women. Emperor Mingdi of Wei Dynasty decreed that “Flogging punishment on women should be changed into whipping punishment, since it’s inconvenient to expose the body.”73 In Northern Zhou Dynasty, it was also stipulated that “women sentenced to flogging punishment can be ransomed.”74 These are all options for the application rules of flogging punishment. However, general criminals should “suffer the flogging punishment, naked and groveling” according to the law”.75 In the second year of the Guangde period (764 A.D.), Yuan Can defeated Yuan Chao and captured more than ten fake high-ranking officials. “The states and counties prepared many shackles, saying that they must be brought to the court alive. Can said that ‘they are all evil 71 Zi Zhi Tong Jian, Volume 194 “January, the eleventh year of Zhenguan period of Emperor Taizong”, p. 6126. 72 Tianyige Museum, Tianshengling Project Group of Institute of History, Chinese Academy of Social Sciences corrected, Correction of Ming Edition Tianshenling Collected in Tianyige annex Qing Recovered Edition Prison Official Decree in Kaiyuan Period of Tang Dynasty, article 58, pp. 648–649. 73 Book of Jin, Volume 30 Records of Criminal Laws, p. 922. 74 Book of Sui, Volume 25 Records of Criminal Laws, p. 708. 75 New Book of Tang, Volume 127 Biography of Pei Yaoqing, p. 4454.

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people not worth wasting time!’ Then, he ordered to flog them on the hips and release them.”76 In the Kaicheng period, Cui Xunguan argued with others for his servant in the market and broke the law. “He was detained and sentenced to flogging with twenty rattan canes on the hips”.77 In the fourth year of the Zhenguan period (630 A.D.), Emperor Taizong said that “From now on, flogging punishment should be executed separately on the thighs and back.”78 Therefore, application rules of flogging punishment in the Tang Dynasty were established not later than the Wude period or may even be directly derived from the former laws in the Sui Dynasty. Although flogging punishment should be executed mainly on the hips and thighs, flogging on the back has been a practice for a long time. “Human survives depending on the viscera. Even acupuncture in the wrong place may cause injury or death, so abused flogging punishment on it would most likely cause sudden unexpected death.”79 Among the back, hips and thighs, the back covering the viscera beneath is the most fragile. In view of this, in November of the fourth year of the Zhenguan period, the decree stipulated that “From now on, it’s prohibited to flog the prisoner on the back.”80 In April of the eighth year of the Dahe period (834 A.D.), Emperor Wenzong issued a decree again stipulating that flogging punishment should not be executed on the back.81 Regarding this, the Decree Collection of Tang-Prohibition of Flogging the Criminal on the Back included detailed records: In the state governments all over the country, for all criminals, except serious crimes that cannot be forgiven by the law, other negligent crimes and violations of official affairs should follow the punishment stipulated on November seventeenth of the fourth year of the Zhenguan period. It’s prohibited to whip on the back.82 However, it is difficult to prohibit the habit of flogging on the back in judicial practice in the Tang Dynasty, and it has been applied as an important means for senior officials to build prestige for a long time. In the late Zhenyuan period, when Zheng Jun served as an official in Xinzhouyuan, a rogue often grabbed tea and wine by threat. “Zheng Jun arrested him and flogged him on the back.”83 In the third year of the Dahe period (829 A.D.), Left Buque Li Yu encountered Imperial Minister Wen Zao on the street. “Zao was angered because Li Yu didn’t give way, so he arrested Li Yu and flogged him on the back.84 He was accused by Left Shiyi Shu Yuanbao. 76

Supplement of Tang History, the first half volume “Yuan Can Defeated Enemy”, p. 22. (Tang) Fan Shu, Yun Xi You Yi, the first half volume “Anecdotes of Jiangdu”, Overview of Literary Sketches in the Tang and Five Dynasties, Shanghai Ancient Books Publishing House, 2000, p. 1266. 78 Ce Fu Yuan Gui, Volume 42 Emperors; Benignancy, p. 453. 79 Ce Fu Yuan Gui, Volume 151 Emperors; Cautious Punishment, p. 1686. 80 Zi Zhi Tong Jian, Volume 193 “November, the fourth year of Zhenguan period (630)”, p. 6083. 81 New Book of Tang, Volume 8 Biography of Emperor Wenzong, p. 235. 82 Decree Collection of Tang, Volume 82 “Political Affairs; Criminal Law; Prohibition of Whipping the Criminal on the Back”, p. 475. 83 Extensive Records of the Taiping Era, Volume 73, article of “Zheng Jun” from Unofficial History, p. 457. 84 Correction of Tang Yulin, Volume 6 Supplement, p. 597. 77

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Emperor Wenzong issued a decree stipulating that “formal officials and off-staff officials on the same way should get through in turn. The notice of ministers passing through should be spread no further than three hundred steps.”85 In the early Kaicheng period, when Han Ci served as supervisor in Guizhou, a tyrant bribed the messenger for the position of county magistrate. “The messenger requested Ci and Ci approved. After the departure, Ci called the village tyrant and flogged him on the back to frighten the subordinates”.86 Because it is difficult to prohibit the habit of flogging on the back in judicial practice, decrees and edicts were issued many times to declare the original intention of the punishment. In addition, flogging in the Tang Dynasty also played a role in substitution in practice. The edict issued on April 6th of the seventh year of the Dazhong period of Emperor Xuanzong (853 A.D.) stipulated the conversion standard between flogging punishment on the hips and flogging punishment with a rattan cane: “For justice conviction, each bludgeon on the back is equivalent to ten bludgeons; each bludgeon on the hips is equivalent to five rattan canes, thus no official will violate the regulation and the law will keep persistent.”87 In the Five Dynasties, the system of supervision over flogging punishment was established to avoid punishment abuse.88 On December 13th of the third year of the Kaiyuan period of the late Jin dynasty (946 A.D.), criminals from being tortured, imprisonment was established. After the three years of the Jin Dynasty, the detailed stipulation was published: “From now on, in the capital, provincial capitals and prefectures, each convicted flogging punishment should be supervised by another official.” It was followed. The abovementioned measures provided the foundation for the establishment of the “Substitution of Bludgeon” in the early Northern Song dynasty and an important indicator that the execution of flogging punishment gradually became standardized.

4 Summary In ancient China, the application scope of flogging punishment covered patriarchal clans, official departments and judicial authorities. In addition to instructing children and admonishing subordinates, flogging punishment was an important means of torture in ancient China and gradually got the position of a formal punishment later. Functions included exhortation, punishment, and torture interrogation. Among them, only the specific application of flogging punishment is exclusively in the field of penalty execution. Rattan cane has been used as an instrument of torture since ancient times, and the specification was not fixed at first. In the Han dynasties, the specifications of rattan cane gradually became standardized. The judicial authority should interrogate the arrested prisoners by the five observations. If the suspect 85

New Book of Tang, Volume 91 Biographies of Wen Daya and Wen Zao, p. 3785. New Book of Tang, Volume 118 Biographies of Han Sifu and Han Ci, p. 4274. 87 Tang Hui Yao, Volume 41 Miscellaneous Notes, pp. 874–875. 88 Five Dynasties Hui Yao, Volume 10 Miscellaneous Notes of Criminal Laws, p. 163. 86

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withdrew the confession and flatly denied the charge, they could apply torture interrogation according to the law. Since the Qin and Han dynasties, the importance of flogging punishment has changed repeatedly and directly influenced the application of flogging punishment in the Sui and Tang dynasties. Application methods of flogging punishment are very diverse in the Tang Dynasty, including execution forms of formal punishment, additional punishment and administrative punishment and death sentences by flogging punishment. Among the five punishments, flogging punishment was the most mitigated, but the execution status was the most complicated. In the application field of criminal punishments in the Tang Dynasty, in addition to formal punishment, flogging punishment was also applied in many disguised forms, such as additional punishment, administrative punishment and execution method of the death penalty. For flogging punishment with rattan cane or bludgeon additional to exile, flogging punishment on the officials negligent in duties, and even death penalty by flogging punishment, there was neither approved law nor applicable norm to follow. In essence, it was judicial practice, reflecting the fusion and infiltration of flogging penalty, flogging punishment and flogging execution following the concept of “the integration of the family and the state”. Lashing Decree issued in the sixth year of the Zhongyuan period of Emperor Jingdi of the Han Dynasty stipulated the applicable scope of flogging punishment for the first time, and the application of flogging punishment in later dynasties more or less followed the former system of the Han dynasty. Although the executed part of flogging punishment should be hips and thighs, the habit of flogging on the back remains for a long time in practice. It is difficult to prohibit the habit of flogging on the back in judicial practice in the Tang Dynasty, and it has been applied as an important means for senior officials to build prestige for a long time. In addition, flogging punishment with a rattan cane in the Tang Dynasty also played a role in substitution in practice. It provided the foundation for the establishment of the “Substitution of Bludgeon” in the early Northern Song Dynasty, and it is also an important indicator that the execution of flogging punishment gradually became standardized.

Chapter 16

Exile with Extra Servitude

1 The Establishment of Exile with Extra Servitude in the Tang Dynasty Exile was a severe punishment in ancient China, second only to the death penalty. The application can be traced back to remote ancient times. Shun Dian included the record of “five punishments”. Kong Yingda in the Tang Dynasty said, “For those who were applicable for the death penalty but forgivable considering the circumstance for sentencing, the whole remission mitigated the punishment too much but the death penalty was too aggravated and the judge didn’t have the heart to sentence according to the law, so they kept such criminals intact in the body and forgave them to remote areas. It’s an indulgence to not punish the criminals who deserved the punishment.”1 According to Comments on Laws of Tang Dynasty, volume 2 Names II: Exile with extra servitude was changed from the former death penalty. It was changed to cutting off feet in the Wude period. The state sympathized with the criminals and advocated universal fraternity. Considering that the death penalty cannot withdraw and the criminals were eager to survive, it was changed into exile with extra servitude in the sixth year of the Zhenguan period.2 Regarding the establishment process of exile with extra servitude in Zhenguan period, Tang Liu Dian also included similar records: “In addition to regular exile, there was another punishment named exile with extra servitude. The former death penalty was changed into cutting off feet in the Wude period and then changed into exile with extra servitude in the sixth year of the Zhenguan period (633 A.D.). Regular exile was with servitude for only one year, and this punishment was with servitude for three years, so it got the name.”3 In the early Tang dynasty, the emperors and 1

Shangshu Justice, Volume 3 the Second Part of Shun Dian, p. 80. Comments on Laws of Tang Dynasty, Volume 2 Ming Li II “Request for Mitigating Punishment”, p. 35. 3 Tang Liu Dian, Volume 6 Shangshu Ministry of Punishments, the article of “Langzhong Yuanwailang of the Ministry of Punishments”, p. 186. 2

© Science Press 2021 X. Chen, A Study of Criminal Proceeding Conventions in Tang Dynasty, https://doi.org/10.1007/978-981-16-3041-5_16

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ministers adhered to the legislative concept of morality prior to punishment, focusing on moral education instead of the penalty. Exile with extra servitude was established to a large extent for the judicial consideration of mitigating the punishment of the death penalty. In the early period of the reign, Emperor Taizong ordered the ministers to “discuss 50 cases sentenced to be hanged, absolved the death penalty and cut off their right feet instead. The criminals deserving death mostly survived”.4 The Old Book of Tang recorded that Emperor Taizong ascended the throne in Xiande Hall of the East Palace in August of the ninth year of the Wude period (626 A.D.),5 and changed the title of the reign into the first year of Zhenguan period in January in spring of the next year (627 A.D.) Therefore, the discussion of cutting off feet replacing hanging was probably during this period.6 Why did they discuss cutting off feet in the Zhenguan period? What is the relationship between cutting off feet and the death penalty? What is the connection between cutting off feet and exile with extra servitude? To clarify the above questions, we should discuss the system of cutting off feet first. Cutting off feet was also named Yue (cutting off feet), Wu, Bing, Zhi and Fei. In the spring and autumn period, the applicable practice of cutting off feet was formed, stipulating that the first offenders would be cut off the left foot and repeated offenders would be cut off the right foot. Throughout the history of criminal system reform, cutting off feet was often applied to replace the death penalty. Emperor Wendi of the Han Dynasty replaced cutting of the right foot by the death penalty in public as the counterevidence.7 “(Cutting off) the right toe means cutting off the right foot.”8 The original intention of cutting off feet replacing hanging in the period of Emperor Taizong was probably similar to this. The traditional Chinese legal system emphasized the integration of heaven, national law, and human sympathy and often compared natural law with social phenomena. In the Han dynasties, the concept of Yin and Yang and Five Elements greatly infiltrated into many aspects of the national system, and the penal system was no exception either. The Five Punishment system became the most unquestionable penalty structure. The Book of Han Records of Criminal Laws explained the abovementioned concepts at the beginning: Human was given the appearance from the heaven and the earth, with the nature of the Five Elements… The saints classified everything to make them the right and proper name, so named the emperors’ parents, to demonstrate their beneficence and morality. Love and morality would be long-standing depending on respect and prestige, so they established rites to advocate reverence and punishments to build 4

Old Book of Tang, Volume 50 Records of Criminal Laws, p. 2135. Old Book of Tang, Volume 2 First Half of Biography of Emperor Taizong, p. 30. 6 Note: Shijiazhai Yangxin Lu recorded that “therefore, death by hanging was changed into cutting off the foot, in the year when Emperor Taizong ascended the throne, so it’s also called Wude.” (Qing) Qian Daxin, Shijiazhai Yangxin Lu Volume 13, “Comments on Laws of Tang Dynasty”, Shanghai Bookstore Press, 1983, p. 302. 7 Hu Liuyuan and Feng Zhuohui, Chang’an Cultural Relics and Ancient Legal System, The Law Press, 1989, pp. 36–38. 8 Ce Fu Yuan Gui, Volume 509 State Planning; Redemption for Selling Ranks, p. 5790. 5

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prestige. The saints respect humans’ original nature, so they must understand the essence of heaven and the earth. They established rituals and religions, laws and punishments and mobilized the people’s sensibility to follow the laws of the heavens and the earth. Therefore, the former emperors established rituals, “following the nature of the heaven and the earth”. The penalty and imprisonment were to imitate the severe judgment of heaven; the beneficence and tolerance were to imitate fostering and nourishing. As the book said, “the heaven appreciates those courteous” and “the heaven punishes those guilty”. Therefore, the saints established the Five Rituals according to the heavenly order and established the Five Punishments according to the heavenly judgment. “Why does it include Five Punishments? It follows the Five Elements.” The concept of five formal punishments became the basic principle for ancient people to establish a punishment system. Later, Emperor Xiaowen changed corporal punishments (tattooing the face, cutting off the nose, and cutting off the foot) into flogging punishment, imprisonment, and the death penalty in public. However, “the living punishment is too lenient and the death penalty is too severe”. It was finally criticized by the later generation for the great disparity and imbalanced penalties. Later, in the Wei, Jin, Southern and Northern dynasties, most were revised, and the scale of punishment was gradually recovered to the Five Punishments system. In the Sui Dynasty, Decrees of Kaihuang Reign established flogging punishment with a rattan cane, flogging punishment with bludgeon, imprisonment, exile and death penalty. Later, the Tang, Song, Yuan, Ming, and Qing dynasties all took it as a model, so the concept of the Five Punishments became a consistent principle.9,10 According to Tang Yao Hui, “In March of the first year of Zhenguan period, Pei Hongxian, the judicial consultant of Shuwang Mansion, rejected forty articles of laws and decrees unsuitable to the times.”11 Pei Hongxian and Fang Xuanling also specifically served the position of deleting and revising the laws and decrees. “They took flogging punishment with a rattan cane, flogging punishment with bludgeon, imprisonment, exile and death penalty as the Five Punishments, and cutting off the foot as the Sixth Punishment.” “Therefore, deleting punishment of cutting off the foot and established exile with extra servitude three thousand Li far away for two years instead.”12 In the eleventh year of the Zhenguan period (637 A.D.), Fang Xuanling and the judicial authority enacted five hundred articles of the law, namely, Decrees of Zhenguan Reign. Later, in the fourth year of the Yonghui period (653 A.D.), The Comments on Laws of Tang Dynasty was compiled based on it so that the system of exile with extra servitude established in the Zhenguan period was continued. Cui Yongdong pointed out that “The type and grade system of the punishments in the laws of Tang Dynasty reflects a concept of naturalism. As the law noted, ‘the sage

9

Book of Han, Volume 23 Records of Criminal Laws, p. 1079. Bai Hu Tong Shu Zheng, Volume 9 the Five Punishments “the Articles of Criminal Law”, p. 438. 11 Tang Hui Yao, Volume 39 the Measurement of Penalties, p. 826. 12 New Book of Tang, Volume 56 Records of Criminal Laws, p. 1409. 10

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established the Five Punishments to follow the Five Elements’.”13 It also corroborates the viewpoints of Pei Hongxian in the Zhenguan period. The servitude duration of exile with extra servitude varies slightly in the records of different documents. Old Book of Tang, New Book of Tang, Tong Dian,14 Ce Fu Yuan Gui,15 and Yu Hai16 all recorded “two years”. However, as Zi Zhi Tong Jian recorded, the duration of exile with extra servitude was three years: (In the first lunar month of the first year of the Zhenguan period,) Pei Hongxian, the judicial consultant of Shuwang Mansion, proposed to change it into exile with extra servitude three thousand Li far away, for three years; The edict followed it: The Verification said the new and old Criminal Laws both stipulated two years. Today it followed Wang Fu’s Hui Yao.17 It is worth noting that although Sima Guang chose to quote the records of Tang Hui Yao as a direct basis in the Verification of Zi Zhi Tong Jian, he did not specify the reason. Can we confirm the records in the New Book of Tang, Old Book of Tang, Tong Dian, Ce Fu Yuan Gui, and Yu Hai were wrong according to this? The answer is no. According to the edition with the punctuation of Tang Hui Yao, volume 39 Measurement of Penalties, “abolished cutting off the feet, and changed this punishment into exile with extra servitude three thousand Li far away for two years”.18 Therefore, some words in Tang Hui Yao that Sima Guang quoted may be incorrect. Thus, exile with extra servitude was founded in the first year of the Zhenguan period (627 A.D.), and the exile was three thousand far away for two years. The mistake occurred because “the sixth year” was similar to “the first year” in Chinese characters. In Comments on Laws of Tang Dynasty and Tang Liu Dian, the record that exile with extra servitude was established in the sixth year of the Zhenguan period (632 A.D.) should be changed into the first year of the Zhenguan period according to the Old Book of Tang, New Book of Tang, and Tong Dian. In Zi Zhi Tong Jian, the judgment of “three years” based on Tang Hui Yao was also a mistake. However, the contradiction regarding the servitude duration of exile with extra servitude was not ended. Provisions of exile with extra servitude in the Comments on Laws of Tang Dynasty brought new difficulties to the accurate understanding of this system. “Exile with extra servitude was more severe and different from regular exile, so the exile was three thousand Li far away for three years.”19 It’s also a conclusion in the current academic circles that Comments on Laws of Tang Dynasty was Comments on Laws of Yonghui, but many facts prove that with the social evolution 13

Cui Yongdong, On the History of Chinese Traditional Judicial Thought, People’s Publishing House, 2012, p. 142. 14 Tong Dian, Volume 165 Criminal Law III; the Second Half of the Criminal System, p. 4243. 15 Ce Fu Yuan Gui, Volume 612 The Criminal Law; Establishment of the Laws and Decrees IV, p. 7066. 16 Yu Hai, Volume 66 Edicts and Laws “Zhenguan Laws of Tang Dynasty”, p. 1296. 17 Zi Zhi Tong Jian, Volume 192 “January, the first year of Zhenguan period of Emperor Taizong (627)”, p. 6031. 18 Tang Hui Yao, Volume 39 On the Measurement of Penalty, p. 826. 19 Comments on Laws of Tang Dynasty, Volume 3 Ming Li III the article of “Punishment of Exile”, p. 67.

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of Tang Dynasty, this law was actually revised in the Kaiyuan period.20 Therefore, if the above-quoted law is correct, then the “service duration of three years” was the system in the Yonghui or Kaiyuan period, which was different from the old law in the Zhenguan period.21

2 Crimes Directly Sentenced to Exile with Extra Servitude The application scope of exile with extra servitude in the Comments on Laws of Tang Dynasty covered imperial guard, occupational system, household and marriage, stable and granary, theft and robbery, lawsuit, fraud, miscellaneous laws, arrest, judgment and other chapters, involving five crimes, including crimes threatening the emperor’s personal security, crimes threatening others’ personal security, crimes violating public and private property, crimes by taking advantage of duty, etc.22 The principles of incrimination included two categories: crimes directly sentenced to exile with extra servitude and other crimes sentenced to exile with extra servitude to mitigate the death penalty. According to the Comments on Laws of Tang Dynasty, crimes that can be directly sentenced to exile with extra servitude included twelve articles, covered imperial guard, occupational system, livestock and warehouse, theft and robbery, lawsuit, fraud, arrest and other chapters. Any crime of these twelve articles can be convicted so long as it was in line with the constitutional requirements of the law. The crimes were all offences of the act, that is to say, so long as the suspect committed crimes prohibited by the law in line with the specific objective requirements, it constituted this crime. The specific standards for identification included the following two categories.

20

Ren Shiying, The Political System of the Sui and Tang Dynasties, Sanqin Press, 2011, p. 61. Note: Some scholars have pointed out that exile with extra servitude was to three thousand Li far away for three years. Most likely, Li Zhi, Emperor Gaozong of the Tang Dynasty, revised it in the Yonghui period (Liu Qigui, Preliminary Study on the Exile System in China’s Tang Dynasty, Qinghai Social Science, 1998, 1, p. 86). According to Tang Hui Yao, on May twenty-sixth of the fifth year of the Qianfu period of Emperor Xizong, Li Jingzhuang, the chief of the Ministry of Justice, said, “The criminals sentenced to exile would be punished for one year, called extra servitude; for exile to three thousand Li far away with extra servitude for three years, the criminal would be exempted when the servitude duration expired, and they would be assigned to the local households of the exile area. From now on, the criminals sentenced to exile, based on the deserved distance, can also be sent to the areas without important cities, even not so remote. The edict followed it.” (Tang Hui Yao, Volume 41, The Demoted Officials and Exiled Persons, p. 866.). This can also be evidence of the regulations on the distance and servitude duration of exile with extra servitude. 22 Wang Limin, New Study on the Law of Tang, Peking University Press, 2007, pp. 71–72. 21

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2.1 Direct Sentence Based on Specific Crime (1)

(2)

(3)

(4)

(5)

The article “postal officials delaying in presenting documents” in Occupational System: Any postal official who delayed in presenting documents for one day would be flogged with eighty bludgeons; the punishment would be increased by a grade for each two-days delay, and the highest grade was imprisonment for two years. Any postal official delayed transferring the document regarding emergent military affairs, “with any omission, for one day would be sentenced to exile with extra servitude”.23 The Comments explained “with any omission”: It meant to delay and omission on strategy, assault and report, etc. “For one-day delay would be sentenced to exile with extra servitude, one day must be one day and one night at least.” The article “theft and damage of Taoism or Buddha statues” in Theft and Robbery: “Any Taoist who stole or damaged Taoism statues and any monk who stole or damaged Buddha statues would be sentenced to exile with extra servitude.”24 The article “excavating grave” in Theft and Robbery: “Anyone who excavated grave would be sentenced to exile with extra servitude (Anyone who excavated grave would be convicted, and even calling back the spirit to bury was the same).”25 The article “wife beating or scolding the parent of the deceased husband” in Lawsuit: “Any wife who beat or scolded the grandparent or parent of deceased husband would be sentenced to the punishment mitigated by two grades than beating or scolding the parent-in-law; those committed injury would be sentenced to exile with extra servitude; those committed homicide would be beheaded; those committed negligent homicide would be sentenced accordingly.”26 Any remarried wife who beat or scolded the grandparent or parent of the deceased husband and committed injury would be sentenced to exile with extra servitude. The article “riding a postal horse through fraud” in Fraud: Anyone who was not a postal official “but rode a postal horse through fraud would be sentenced to exile with extra servitude; the postal official who knew the fact would be sentenced to the same punishment, and those did not know the fact would be sentenced to mitigated punishment by two grades, but those with seal or tally would not.” The Comments made further explanation: “Anyone riding a postal horse through fraud, no matter the number of horses and the riding distance, was applicable to exile with extra servitude. Any postal official who knew the

23 Comments on Laws of Tang Dynasty, Volume 10 Occupational System, “Postal Officials Delaying in Presenting Documents” p. 208. 24 Comments on Laws of Tang Dynasty, Volume 19 Theft and Robbery, “theft and damage of Taoism or Buddha statues”, p. 353. 25 Comments on Laws of Tang Dynasty, Volume 19 Theft and Robbery, “excavating grave”, p. 354. 26 Comments on Laws of Tang Dynasty, Volume 22 Lawsuit “wife beating or scolding the parent of deceased husband”, p. 416.

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(6)

(7)

(8)

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fraud but provided horse or passed by would also be sentenced to exile with extra servitude.”27 The article “criminal resisting arrest” in Arrest: “Anyone who killed the criminal deserving death penalty would be sentenced to exile with extra servitude.” The Comments made further explanation: “Anyone who killed the criminal deserving death penalty but resisting arrest would be sentenced to exile with extra servitude.”28 The article “arrest of beaten theft and rapist” in Arrest: “Anyone who arrested the criminal committing crime other than injury, theft, rape and adultery without government approval would be flogged with thirty rattan canes; those who committed homicide would be convicted homicide with reason; Anyone who killed the criminal deserving death penalty would be sentenced to exile with extra servitude.”29 The article “criminal in prison resisting defense” in Arrest: “Any prisoner escaped from prison, resisted arrest, and committed injury would be sentenced to exile with extra servitude, those imprisoned but the resisting defense would be sentenced to exile to two thousand Li far away; those committed injury would be sentenced to exile with extra servitude; those committed homicide would be beheaded, and the accessory criminal would be hanged.”30

The identification standards for the abovementioned eight crimes are relatively simple. In terms of behavior subject, “postal officials delaying in presenting documents”, “riding a postal horse through fraud” and “arrest without an application for government approval” were constituted by a specific subject; the other five crimes were constituted by general subject other than the elderly, children and disabled; In terms of subjective aspect, they were all direct intent; In terms of objective aspect, they all can be identified according to the specific circumstances stipulated in the law.

2.2 Measurement of Penalty Based on Specific Subjects with Way of Act (1)

27

The article “Overstepping the boundary” in the Imperial Guard: “Anyone who overstepped the boundary would be sentenced to two years. Anyone who privately did business with foreigners would be sentenced to two and a half

Comments on Laws of Tang Dynasty, Volume 25 Fraud “riding postal horse through fraud”, p. 470. 28 Comments on Laws of Tang Dynasty, Volume 28 Arrest “criminal resisting arrest”, p. 528. 29 Comments on Laws of Tang Dynasty, Volume 28 Arrest “arresting beaten theft and rapist”, p. 529. 30 Comments on Laws of Tang Dynasty, Volume 28 Arrest “criminal in prison resisting defense”, p. 537.

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years for one Chi, one grade higher punishment for each three Shu, and exile with extra servitude for fifteen Shu.”31 The article “supervisor accepting bribes and bending the law” in Occupational System: Those didn’t distort the law “would be sentenced to exile with extra servitude for thirty Shu”, and those without salary didn’t distort the law “would be sentenced to exile with extra servitude for forty Shu”.32 The article “warehouse keeper not searching and inspecting” in Stable and Granary: Any warehouse keeper who was informed but condoned theft “would be sentenced to exile with extra servitude for bribes of at least fifty Shu”,33 dismissed and exiled according to the law. The article “theft” in Theft and Robbery: “Any thief who failed in stealing property would be flogged with fifty bludgeons; with sixty bludgeons for one Chi, one grade higher punishment for each one Shu, imprisonment of one year for five Shu, one grade higher punishment for each Shu, and exile with extra servitude for fifty Shu.”34

This indicates that the Laws of Tang Dynasty established different standards for the measurement of penalties in exile sentences with extra servitude. Among them, the punishment on those who privately did business with foreigners in the article of “overstepping the boundary”, the identification standard was the most stringent, namely exile with extra servitude for fifteen Shu, because it’s on the “boundary and pass of the country” which directly involved national security. The sentencing standards for the two types of duty crimes, “supervisor accepting bribes but not bending the law” and “warehouse stolen”, were relatively mitigated. For “theft”, the punishment cannot be the death penalty, so the highest grade was exile with extra servitude for stolen property more than fifty Shu.

3 Exile with Extra Servitude to Mitigate Death Penalty by Referring to Other Crimes The Comments on Laws of Tang Dynasty paid great attention to the value of exile with extra servitude in mitigating the death penalty. Laws of Tang Dynasty included twenty articles stipulating exile with extra servitude to mitigate the death penalty referring to other crimes, covering imperial guard, occupational system, household and marriage, dispatching troops without authorization, theft and robbery, lawsuit, miscellaneous laws, judgment and other chapters, and the crimes for comparison in 31

Comments on Laws of Tang Dynasty, Volume 8 Imperial Guard “overstepping the boundary”, p. 177. 32 Comments on Laws of Tang Dynasty, Volume 11 the Second Half of Occasional System “supervisor accepting bribes and bending the law”. 33 Comments on Laws of Tang Dynasty, Volume 15 Stable and Granary “warehouse keeper not searching and inspecting”, p, 289. 34 Comments on Laws of Tang Dynasty, Volume 19 Theft and Robbery “theft”, p. 358.

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these articles included eight categories. The following will describe them separately in the order of each article.

3.1 Referring to Encroaching Upon Others’ Territory, the Sentence of Exile with Extra Servitude as the Abatement from the Death Penalty Wang Mingde wrote in Du Lv Pei Xi: “referring to means it’s not an actual crime, but the circumstance was the same as actual crime, so it would be punished as the actual crime. That’s the so-called comparing.”35 The article “stay in the palace for official affairs” in Imperial Guard: “If any general led someone into the palace, the guard who permitted without receiving the pass or permitted more visitors than approved would be convinced encroaching upon other’s territory. If resulting in death, the guard would be sentenced to exile with extra servitude.”36 Thus, if any general led someone into the palace, the guard who permitted the entrance without receiving the pass or received the pass but omitted the details resulting in more visitors’ entrance would be convinced encroaching upon other’s territory. According to the article “encroaching upon others’ territory and inner palace” in the Law of Imperial Guard, “Anyone who encroached upon the palace would be hanged; anyone who encroached upon the emperor’s seat with weapon would be beheaded.”37 Tang Liu Dian recorded that “Taiji Hall had two imperial gates in the east and west.”38 Yong Lu recorded that “the so-called imperial gate means the inner palace, not the real gate”,39 namely, the emperor’s residence. “Yu means where the emperor is.”40 “The emperor’s seat in the law means the place of the emperor.” “The grandma-empress, empress dowager and emperor were the same.”41 The inner palace and the emperor’s seat were directly related to the emperor’s personal safety, and the Law of Imperial Guard involved guard and forbidden areas, “so it was especially important”.42 Therefore, any guard who permitted anyone entrance without receiving the pass or permitted more visitors than approved, if they entered the inner palace 35

(The Qing dynasty) Wang Mingde, Du Lv Pei Xi, Volume 1 “referring to”, p. 4. Comments on Laws of Tang Dynasty, Volume 7 Imperial Guard “stay in palace for official affairs”, p. 154. 37 Comments on Laws of Tang Dynasty, Volume 7 Imperial Guard “encroaching upon other’s territory and inner palace”, p. 151. 38 Tang Liu Dian, Volume 7 the article note of “Langzhong Yuanwailang of the Ministry of Works” in Shangshu of the Ministry of Works, p. 217. 39 (The Song dynasty) Cheng Dachang, Yong Lu volume 3 “two inner gates in the west”, proofread by Huang Yongnian, Zhonghua Book Company, 2002, p. 62. 40 Du Duan, the first half volume, p. 1. 41 Comments on Laws of Tang Dynasty, Volume 6 Names “driving carriage and making edict”, p. 135. 42 Comments on Laws of Tang Dynasty, Volume 7 Imperial Guard, p. 149. 36

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and the emperor’s seat, would be sentenced to exile with extra servitude to mitigate the death penalty.

3.2 Referring to Brawl Causing Homicide and Injury, the Sentence of Exile with Extra Servitude as the Abatement from the Death Penalty This is the most common way to compare crimes. The so-called “brawl crime” was a crime category. It should be convicted according to the specific conditions of the homicide and injury, following the articles of “brawl causing injury” (Fig. 1), “injury through weapon”, “brawl causing broken limbs or blind eyes”, and “brawl causing homicide” in Lawsuit. Brawl causing death would be sentenced to exile with extra servitude. The Comments on Laws of Tang Dynasty included eight articles sentenced to exile with extra servitude referring to the category. (1)

The article “offending temple and forbidden court” in Imperial Guard: “Anyone who committed homicide and injury through shooting or throwing stones to the temple and the forbidden court would be convicted referring to brawl causing homicide and injury. Those caused death would be sentenced to exile with extra servitude.” The Comments made further explanation: “Anyone who committed homicide and injury through shooting or throwing stones would be convicted referring to brawl causing homicide and injury; those caused injury through arrow would be sentenced to two years; Those cause one blind eye

Fig. 1 Brawl. Source: Tan Chanxue, The Complete Works of Dunhuang Grottoes-Pictures of Folklore Customs, Commercial Press (Hong Kong) Limited, 1999, p.67

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(2)

(3)

(4)

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would be sentenced to three years; Those caused death would be sentenced to exile with extra servitude.”43 The ancestral temples and forbidden courts were the places where the emperor sacrificed and visited. “Anyone who caused death through shooting or throwing stones in these places would be severely punished according to the law. Shooting and firing to the temple, the society, the forbidden court, and throwing stones to temple and the forbidden court would be sentenced to mitigated grade punishment, namely, exile with extra servitude.” The article “Rescuing prisoner” in Theft and Robbery: Anyone who committed negligent homicide in the process of rescuing prisoner would be convicted referring to the article “negligent homicide in theft”.44 Those who caused other’s death were sentenced to exile with extra servitude. Anyone who committed negligent homicide for rescuing prisoner judgments will be stipulated in the following article. “Anyone who committed negligent homicide in theft would be convicted referring to brawl causing homicide and injury. Those caused death would be sentenced to exile with extra servitude.” Because rescuing prisoner was similar to theft, homicide and injury through negligence should be convicted referring to brawl causing homicide and injury, and those caused death would be sentenced to exile with extra servitude.”45 The article “Trespass on a private house at night” in Theft and Robbery: If the criminal was captured, “arrested and detained, he had no ground to resist… The house owner who caused injury or death, murder would be convicted referring to brawl causing homicide and injury, and those caused death would be sentenced to exile with extra servitude”.46 Thus, afterwards, the self-defense would be convicted depending on specific circumstances, referring to the relevant provisions of Lawsuit, and those caused death would be sentenced to exile with extra servitude. The article “negligent homicide and injury because of theft” in Theft and Robbery: “Anyone who caused negligent homicide and injury because of theft would be convicted referring to brawl causing homicide and injury, and those caused death would be sentenced to exile with extra servitude.”47 The article “shooting to the private residence of the city official” in Miscellaneous Laws: “Anyone who caused homicide and injury because someone trespassed on the city or residence would be convicted referring to brawl causing

43 Comments on Laws of Tang Dynasty, Volume 8 Imperial Guard “offending temple and forbidden court”, p. 168. 44 Comments on Laws of Tang Dynasty, Volume 20 Theft and Robbery “homicide and injury through negligence”, p. 367. 45 Comments on Laws of Tang Dynasty, Volume 17 Theft and Robbery “rescuing prisoner”, p. 331. 46 Comments on Laws of Tang Dynasty, Volume 18 Theft and Robbery “trespass on private house at night”, p. 346. 47 Comments on Laws of Tang Dynasty, Volume 20 Theft and Robbery “negligent homicide and injury because of theft”, p. 367.

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(6)

(7)

(8)

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homicide and injury, and those caused death would be sentenced to exile with extra servitude.”48 The article “contract murder of prisoner sentenced to death when arguments exhausted” in Judgment: The prisoner who committed a crime punished by death, when arguments exhausted, the prisoner’s relative was asked by himself or hired a killer to murder him. If “the prisoner did not ask for and arguments didn’t exhaust, the murder would be convicted referring to brawl causing homicide and those caused death would be sentenced to exile with extra servitude.” The Comments also recorded that “If the prisoner did not ask for but the relative hired a killer to murder, and the prisoner asked for but arguments didn’t exhaust, the asking person and the hired killer would be convicted referring to brawl causing homicide depending on their status and hierarchies, and those caused death would be sentenced to exile with extra servitude.”49 The article “illegal flogging punishment committed by prison supervisor” in Judgment: Any prison supervisor who committed flogging punishment when it’s illegal or not applicable to the predecessor’s flogging punishment would be convicted referring to brawl causing homicide and injury, and those caused death would be sentenced to exile with extra servitude. Those who used sword would be convicted referring to brawl causing homicide and injury.”50 The article “torturing and flogging pregnant woman” in Judgment: “If any pregnant woman criminal committed the crime should be tortured or flogged with a bludgeon, anyone who tortured the woman before childbirth would be flogged with one hundred bludgeons; if the criminal was seriously injured, it’s not applicable to the predecessor’s flogging punishment; those who tortured the woman within one hundred days after childbirth would be sentenced to one grade mitigated punishment. The injury by negligence would be sentenced to two grades mitigated punishment.” The Comments also recorded that “It’s not applicable to the predecessor’s flogging punishment’ means according to the last article: ‘any prison supervisor who committed flogging punishment when it’s not applicable to the predecessor’s flogging punishment would be convicted referring to brawl causing homicide and injury. “Those who caused abortion would be sentenced to two years. Those who caused the death of the woman would be sentenced to exile with extra servitude.”51 According to the article “brawl causing homicide” in Lawsuit, the homicide criminal should be sentenced to death. “Anyone who committed homicide in a brawl would be hanged; anyone who committed homicide with a weapon would be

Comments on Laws of Tang Dynasty, Volume 26 Miscellaneous Laws “shooting to the private residence of the city official”, p. 482. 49 Comments on Laws of Tang Dynasty, Volume 29 Judgment “contract murder of prisoner sentenced to death when arguments exhausted”, p. 547. 50 Comments on Laws of Tang Dynasty, Volume 30 Judgment “illegal flogging punishment committed by prison supervisor”, p. 560. 51 Comments on Laws of Tang Dynasty, Volume 30 Judgment “torturing and flogging pregnant woman”, pp. 570–571.

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beheaded.”52 This article is the main reference for the abovementioned crimes. The abovementioned eight categories of crimes that caused death should be sentenced to exile with extra servitude to mitigate the death penalty, referring to “homicide in a brawl”.

3.3 Referring to Postal Official Delaying in Presenting Documents, the Sentence of Exile with Extra Servitude as the Abatement from the Death Penalty The article “postal official entrusting others to pass on the documents” in the Law of Occupational System: “Any postal official who entrusted others to pass on the documents with no reason and the entrusted person would be sentenced to one year… In case of delay for a military emergency, a postal official was the chief criminal and the messenger was the accessory criminal (Note: Those with false or missing information follow the previous article).”53 Thus, any postal official who arbitrarily entrusted others to pass on urgent documents of military affairs with false or missing information would be punished referring to the previous article “postal official delaying in presenting documents”. False or missing information means “message regarding attack, assault, report on foreign information and rebels, etc.”54 In this case, the postal official would be sentenced to exile with extra servitude, and the entrusted person would be sentenced to exile to three thousand Li far away.

3.4 Referring to Bending the Law, the Sentence of Exile with Extra Servitude as the Abatement from the Death Penalty According to the article “supervisor accepting bribes and bending the law” in Occasional System: “Any supervisor who accepted bribes and distorted the law would be flogged with one hundred bludgeons, sentenced to one higher grade punishment for each one Shu, and hanged for fifteen Shu…Those received no salary would be sentenced to one mitigated grade punishment; Those distorted the law would be hanged for twenty Shu, and those didn’t distort the law would be sentenced to exile with extra servitude for forty Shu”,55 and those without salary didn’t distort the law “would be sentenced to exile with extra servitude for forty Shu”. Comments on Laws 52

Comments on Laws of Tang Dynasty, Volume 21 Law of Lawsuit “homicide in brawl”, p. 387. Comments on Laws of Tang Dynasty, Volume 10 Occupational System “postal official entrusting others to pass on the documents”, p. 208. 54 See Footnote 24. 55 Comments on Laws of Tang Dynasty, Volume 11 Occupational System “supervisor accepting bribes and bending the law”, pp. 220–221. 53

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of Tang Dynasty included a total of five categories referring to this kind of crime sentenced to exile with extra servitude. (1)

(2)

(3)

56

The article “local official or magistrate intending to conceal the true number of people” in Law of Household and Marriage: “Any local official or magistrate who intended to conceal the true household quantity would be sentenced to one year for each one, one higher grade punishment for two. Those who obtained a huge amount of illicit money for their own use would be convicted of bending the law, and those who caused death would be sentenced to exile with extra servitude.”56 Any local official or prefecture and county magistrate who intended to conceal the true household quantity, or the annual report in order to evade labor service in the jurisdiction, and obtained a huge amount of illicit money would be convicted referring to the article of “supervisor accepting bribes and bending the law”. Those who obtained illicit money more than fifteen Shu would not be hanged, referring to the article “accepting bribes”, but sentenced to exile with extra servitude instead. The article “concealing or fabricating the news of drought, flood or other disasters within the jurisdiction” in Law of Household and Marriage-Question: For those who illegally levied taxes or properties that should be exempt and deductible for their own or official use, what’s the crime and punishment? Answer: Those who illegally levied taxes or properties that should be exempt and deductible would also be convicted referring to the abovementioned article “intending to conceal the true number of people”. Those who used for official use would be convicted of accepting bribes and those who used for their own use would be convicted of bending the law, those who caused death would be sentenced to exile with extra servitude.”57 Therefore, any local official or higher-rank magistrate who illegally levied taxes or properties which should be exempt and deductible for their own use would be sentenced to exile with extra servitude referring to the article of “supervisor accepting bribes and bending the law”, following the punishment principle of “local official or magistrate intending to conceal the true number of people”. The article “not approving the exempt taxes” in Law of Household and Marriage: “Those who approved illegal exempt taxes or didn’t approve which should be exempt, if the amount exceeded the standard for the imprisonment of two years, would be convicted referring to above-mentioned article “intending to conceal the true number of people”, and sentenced to one year for one person, one higher grade punishment for two. Those who obtained a huge amount of illicit money for their own use would be convicted of bending the

Comments on Laws of Tang Dynasty, Volume 12 Household and Marriage “local official or magistrate intending to conceal the true number of people”, p. 235. 57 Comments on Laws of Tang Dynasty, Volume 12 Household and Marriage “concealing or fabricating the news of drought, flood or other disasters within the jurisdiction”, p. 248.

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law and those who caused death would be sentenced to exile with extra servitude; those who used for official use would be convicted of accepting bribes.”58 According to this, any magistrate who illegally levied or exempt taxes, if the amount exceeded the standard for the imprisonment of two years, would be sentenced to exile with extra servitude, referring to the article of “supervisor accepting bribes and bending the law”, following the punishment principle of “local official or magistrate intending to conceal the true number of people”. The article “violating the laws on taxes and corvee” in Law of Household and Marriage: “Those who violated the laws of taxes and corvee or levied unfair amount would be punished with sixty bludgeons…Those who levied illegal taxes and corvee or arbitrarily increased the amount based on legal taxes and corvee, if the illicit money was in huge amount and used for official use, would be convicted of accepting bribes; if used for their own use, would be convicted of bending the law, those who caused death would be sentenced to exile with extra servitude.”59 Any magistrate violating the laws of taxes and corvee would be punished according to the bribery amount. Any official with a salary who levied more than fifteen Shu for their own use and official without a salary who levied more than twenty Shu for their own use were sentenced to exile with extra servitude. The article “inducing prisoner to withdraw a confession” in Judgment: Any prison official who “received prisoner’s briberies and induced withdrawing a confession; or provided prisoner with a secret message to help to change testimony; would be convicted of bending the law, and sentenced to exile with extra servitude for fifteen Shu and hanged for thirty Shu.”60

3.5 Referring to Delay in the Military Operations or Collection of Military Materials, the Sentence of Exile with Extra Servitude as the Abatement from the Death Penalty The article “Conscript soldier shirking service by swindle” in Dispatching Troops Without Authorization: “Anyone who concealed the ability in the test to serve the army, if causing any delay in the military operation, would be convicted referring to “delay in the military operations or collection of military materials”; those who didn’t cause any delay would be sentenced to one grade mitigated punishment. The supervisor who didn’t expose the swindle would be sentenced to two grades of mitigated punishment; those who withheld the fact would be sentenced to the same 58 Comments on Laws of Tang Dynasty, Volume 13 Household and Marriage “not approving the exempt taxes”, p. 251. 59 Comments on Laws of Tang Dynasty, Volume 13 Household and Marriage “violating the laws of taxes and corvee”, p. 251. 60 Comments on Laws of Tang Dynasty, Volume 30 Judgment “inducing prisoner to withdraw a confession”, p. 548.

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punishment, and those who caused death would be sentenced to exile with extra servitude.”61 The article “delaying in the military operations or collection of military materials” in the same volume stipulated that “anyone who delayed in the military operations or collection of military materials would be beheaded if causing death or lost.”62 The “measurement of penalty” in Names recorded: “Death penalty and exile were mitigated.”63 The beheading punishment was mitigated by two grades to imprisonment for three years. Anyone who knew the fact but did not expose the swindle would be sentenced to the same punishment, and those who caused death would be sentenced to exile with extra servitude. Those who caused any delay or loss in the military operations or collection of military materials would be sentenced to exile with extra servitude.

3.6 Referring to Theft, the Sentence of Exile with Extra Servitude as the Abatement from the Death Penalty (1)

(2)

61

The article “stealing sacrifice for the gods” in Theft and Robbery: “Anyone who stole items such as kettle, knife and sword which was not sacrificed for the gods, referring to the law on regular theft, would be flogged with sixty bludgeons for one Chi, and one grade higher punishment for one Shu; oneyear imprisonment for five Shu, and one grade higher punishment for each five Shu, and the highest was exile with extra servitude.”64 The measurement of penalty on regular theft followed the article of “theft”: “Anyone committing attempted theft would be sentenced to fifty bludgeons; sixty bludgeons for one Chi, one higher grade punishment for each Shu; one year imprisonment for five Shu, and one grade higher punishment for each five Shu, and exile with extra servitude for fifty Shu.”65 Thus, anyone who stole items such as kettle, knife and sword more than fifty Pi would be sentenced to exile with extra servitude. The article of “trading private property or servant for official materials” in Theft and Robbery: “Anyone who traded private property, servant or livestock for official materials would be convicted according to the interest referring to theft.”66 The punishment on trading official materials referred to theft in principle, but the specific punishment varied depending on whether the theft

Comments on Laws of Tang Dynasty, Volume 16 Dispatching Troops Without Authorization “conscript soldier shirking service by swindle”, p. 310. 62 Comments on Laws of Tang Dynasty, Volume 16 Dispatching Troops Without Authorization “delay in the military operations or collection of military materials”, p. 305. 63 Comments on Laws of Tang Dynasty, Volume 6 Names “measurement of penalty”, p. 142. 64 Comments on Laws of Tang Dynasty, Volume 19 Theft and Robbery “stealing sacrifice for the gods”, p. 349. 65 See Footnote 35. 66 Comments on Laws of Tang Dynasty, Volume 20 Theft and Robbery “trading private property or servant for official materials”, p. 367.

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got profit: For low-priced or equivalent trade when the private party didn’t get profit, it would be convicted referring to theft according to the price; For highpriced trade when the private party got profit, it would be convict referring to theft according to the price first, and then convicted of theft according to the profit, and then combined punishment for both offenses.67 Any “servant trade with profit higher than coercion or abduction of the servant would be convicted according to the law on coercion or abduction”, that is to say, it would be punished according to the law on coercion or abduction of the servant. Anyone who traded servant with the profit of fifty Shu would be convicted referring to theft; that is, the combined punishment would be exile with extra servitude.

3.7 Referring to Robbery, the Sentence of Exile with Extra Servitude to Mitigate the Death Penalty The article of “assaulting others for other reason and taking possession” in Theft and Robbery: “Anyone who assaulted others for other reason and took their possession would be convicted of robbery with the illicit money, and those who caused death would be sentenced to exile with extra servitude.”68 According to the article of “robbery”: “Those who didn’t get money would be sentenced to two years; three years for one Chi, one grade higher punishment for each two Shu; those who robbed more than ten Shu or injured others would be hanged; those who killed others would be beheaded.”69 Thus, anyone who assaulted others for other reasons and robbed more than ten Pi would be sentenced to exile with extra servitude (Fig 2).

3.8 Referring to Accusing Others of a Crime Falsely, the Sentence of Exile with Extra Servitude to Mitigate the Death Penalty The article “accusing others of a former exempted crime” in Lawsuit: “Anyone who accused others of a former exempted crime would be convicted of the crime they accused. Those who accepted the lawsuit would be convicted of accusing others of a

67

Liu Junwen, Annotation of Comments on Laws of Tang Dynasty, Zhonghua Book Company, 1996, p. 1417. 68 Comments on Laws of Tang Dynasty, Volume 19 Theft and Robbery “assaulting others for other reason and taking possession”, p. 361. 69 Comments on Laws of Tang Dynasty, Volume 19 Theft and Robbery “robbery”, p. 357.

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Fig. 2 Merchant robbery. Source: Duan Wenjie, The Complete Works of China Dunhuang Murals; Dunhuang in Tang Dynasty, Tianjin People’s Fine Arts Publishing House, 1989, p.67

crime falsely. Those who caused death would be sentenced to exile with extra servitude separatively.”70 Comments on Laws of Tang Dynasty provided further explanation: “Those who accepted illegal lawsuit would be convicted of ‘accusing others of a crime falsely’. That is, anyone who accused others of a former exempted capital crime, confessed but not sentenced, would be sentenced to exile with extra servitude to mitigate the death penalty. Those who accepted the lawsuit and caused death were sentenced the same. That’s the so-called “exile with extra servitude separately”. According to the article “falsely convicted lawsuit” in Lawsuit, “Anyone who falsely convicted a lawsuit, if the whole lawsuit was falsely convicted, would be convicted of the whole; those who falsely oversentenced a lawsuit would be convicted of the exceeded part; for those who changed the punishment: those who changed rattan cane into a bludgeon, and imprisonment into exile would be convicted of the exceeded part; those who changed rattan cane and bludgeon into imprisonment and exile, and imprisonment and exile into death penalty would be convicted of the whole.”71

70

Comments on Laws of Tang Dynasty, Volume 24 Theft and Robbery “accusing others of a former exempted crime”, pp. 442–443. 71 Comments on Laws of Tang Dynasty, Volume 30 Lawsuit “falsely convicted lawsuit”, pp. 562– 563.

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4 Changes in the Application Rules of Exile with Extra Servitude Comments on Laws of Tang Dynasty systematically stipulated the servitude duration, redemption and identity restrictions of exile with extra servitude. The abovementioned rules constitute the direct basis for the specific application of exile with extra servitude in different volumes of Comments on Laws of Tang Dynasty. Comments on Laws of Tang Dynasty stipulated that exile with extra servitude was exile to three thousand Li far away for three years. It is the general principle of the implementation of exile with extra servitude in the law of Tang. According to the principle of “recidivist”, “Any exiled criminal who committed more crimes would be sentenced to more severe punishment.” The accumulated exile would be limited within four years. It’s a special rule for the implementation of exile with extra servitude: “If the criminal committed a crime of regular exile before, and then committed another crime of exile with extra servitude, the combined punishment was also exile for four years…If the criminal committed a crime of exile with extra servitude before, and then committed another crime of exile with extra servitude, the combined punishment was also limited within exile for four years even though the exile was accumulated too much. Anyone who committed another crime of exile or imprisonment before the servitude duration ended would be sentenced to additional flogging punishment.”72 Special offenders of exile with extra servitude such as craftsman, musician, performer, official music player and women enjoyed the rights to change the charge, exempt the exile and servitude according to the law. Anyone in special occupations such as craftsman, musician, performer, and official music player who committed a crime of exile with extra servitude “would be flogged with one hundred and sixty bludgeons; and sentenced to servitude for four years staying in the original area”73 ; any woman offender of exile with extra servitude would be flogged with one hundred bludgeons; and sentenced to servitude for four years staying in the original area. However, if the abovementioned offenders were sentenced to exile for witchcraft, they would be punished according to the law. Any offenders of exile with extra servitude who finished the servitude duration or was exempted from the servitude “would be arranged the household registration in the exile area”.74 For the offender of “the five kinds of exile”, such as “exile with extra servitude”, in principle, “would not be redeemed and would be dismissed and exiled according

72

Comments on Laws of Tang Dynasty, Volume 4 Names “exiled criminal committing more crimes”, pp. 79–80. 73 Comments on Laws of Tang Dynasty, Volume 3 Names “craftsman, musician, performer, official music player and woman criminals would be flogged with bludgeon in stead of exile”, p. 74. 74 Comments on Laws of Tang Dynasty, Volume 3 Names “exile in stead of exile with extra servitude”, p. 67.

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to the law”.75 In the case of leniency for “the five kinds of exile”, the offenders of exile with extra servitude, an exile for rebellion and exile for impiety “can be redeemed”.76 In the case of exemption or leniency, the offender who was dismissed for exile with extra servitude “would still be dismissed although the punishment would be exempted or degraded if he committed the ten categories of major crimes; the criminal convicted of ‘bending the law’ and ‘embezzling’ would be degraded the official rank in the case of exemption or leniency; other criminals would follow the original punishment in the case of exemption, and follow the law of redemption in the case of leniency”.77 For those over the age of seventy and under the age of fifteen and those disabled and diseased, the criminal liability was reduced but not exempted. The offender of exile with extra servitude cannot be redeemed. However, “considering the body at the old and young age cannot bear the servitude”, they were sent to the exile area but exempt from the servitude.78 The abovementioned rules in Comments on Laws of Tang Dynasty were a direct basis for the application of exile with extra servitude in judicial practice. Along with social development and legal evolution, the applicable rules of exile with extra servitude also experienced great changes. The application scope of exile with extra servitude gradually expanded, especially in the field of economic crime. In addition to the legal document, many precedents for the application rules of exile with extra servitude were created in the form of imperial decree or edit, followed by the later generations in the form of legislation. First was the adjustment of the measurement of penalty on the crime of “Private Coin Casting”. According to the article “Private Coin Casting” in Miscellaneous Law, “Anyone who committed private coin casting would be sentenced to exile three thousand Li far away; those who prepared the equipment but didn’t cast would be sentenced to two years; those who didn’t prepare the equipment would be flogged with one hundred bludgeons. Those who cast coins in wrong weight and made coins lighter to get the benefit of extra bronze would be sentenced to one year.”79 The decree in May of the first year of the Yongchun period of Emperor Gaozong (682 A.D.) distinguished major offenders and accessory offenders, imposed joint accountability, and increased more severe punishment: The initiator and indirect accomplice of private coin casting would be hung after flogging with one hundred bludgeons. The landlord would be sentenced to exile with extra servitude after flogging with sixty bludgeons.80 75

Comments on Laws of Tang Dynasty, Volume 2 Names “request for remission (redemption)”, p. 36. 76 Comments on Laws of Tang Dynasty, Volume 2 Names “request for remission (redemption)”, p. 37. 77 Comments on Laws of Tang Dynasty, Volume 2 Names “dismissing”, p. 51. 78 Comments on Laws of Tang Dynasty, Volume 4 Names “criminal over the age of seventy and under the age of fifteen, and diseased criminal”, p. 81. 79 Comments on Laws of Tang Dynasty, Volume 26 Miscellaneous Law “private coin casting”, p. 480. 80 Tong Dian, Volume 9 Food & Goods 9; Coin 2nd Half , p. 200.

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The decree punishing private coin casting in May of the first year of the Yongchun period played a role in creating precedents. The official documents of the Ministry of Punishments unearthed from Dunhuang made a chief introduction to private coin casting. The accessory offender would be exiled. It’s slightly different from the former decree, but the decree in the first year of the Yongchun period should be the basis of this document.81 “Exile” here was equivalent to “exile with extra servitude” in the decree: 40 41 42 43 44 45

46

47

Anyone who committed private coin casting, once the fact was verified, would be flogged with one hundred bludgeons before the chief criminal was beheaded. All property would be confiscated; the accessory offender would be exiled. Redemption was not allowed. Official rank would be dismissed. The indirect accomplice and landlord, although they did not commit a crime directly, Would also be sentenced to the death penalty, and all property would be confiscated. If another family member was the joint offender, All of the family property would be confiscated. If the family did not know the crime, only the offender’s property would be confiscated. The neighbor of the coin casting site would be sentenced to one year, and the neighboring guardian and supervisor would be flogged with one hundred bludgeons. Anyone who reported the offender would be rewarded part of the confiscated property. Any joint offender who voluntarily confessed the crime and reported the offender, Would be exempted from the punishment and rewarded depending on the case.82

According to the “part of the criminal law of Tang” in the Criminal Law of the Song Dynasty, “the offender of private coin casting, the initiator and indirect accomplice would be hanged after flogging with one hundred bludgeons. And the landlord would be sentenced to exile with extra servitude after flogging with sixty bludgeons.”83 The diction was basically the same as the decree in the first year of the Yongchun period. Therefore, as one of the important changes in the application rules of exile with extra servitude in the Tang Dynasty, the decree in the first year of the Yongchun period, Official Documents of the Ministry of Punishments, and the provisions of “the joint offender and landlord for private coin casting would be sentenced to exile with extra servitude after flogging with sixty bludgeons” in the decree of the Ministry of Punishments of Tang Dynasty followed the same continuous line, and it’s also the evidence of the evolution and replacement in various legal forms such as decree and law document. 81

Liu Junwen, Investigation and Interpretation of the Legal Documents of Tang Dynasty in Dunhuang, Turpan, Zhonghua Book Company, 1989, p. 262. 82 Tang Geng’ou and Lu Hongji, Interpretation and Record of Social and Economic Literature in Dunhuang (volume 2), p. 565. 83 The Criminal Law of Song Dynasty, Volume 27 Miscellaneous Law the article of “private coin casting”, quoted from Decree of the Ministry of Punishments, p. 407.

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Second, the decree in October of the first year of the Shangyuan period of Emperor Suzong (760 A.D.) stipulated that any county magistrate in the Liangjing area who invaded or confiscated the property or land of capital officials would be convicted of bending the law, and those who caused death would be sentenced to exile with extra servitude. According to the article “embezzling” in Comments on Laws of Tang DynastyTheft and Robbery, “Any supervisor who embezzled the property they guarded would be punished referring to two grades higher than regular theft and would be hanged for thirty Shu.”84 This decree should be revised according to the law: In October of the first year of the Shangyuan period, the decree said, “The standard field yield of capital official and the peasants renting the land were sent to the capital. Yang Guozhong proposed that: They can be stored in the warehouse fifty Li far away from outside the city, and the county officer sent someone to accept. Because they were stored temporarily, the wastage was especially suppressed. It has been inconvenient for public and private use for many years. Since then, the counties in Jingzhao and Henan Prefecture were ordered to still send to the capital for storage. Any official who caused stay and wastage would be convicted of bending the law accounting the illicit money based on the wastage and balance, and those who caused death would be sentenced to exile with extra servitude.”85 Moreover, in the early Wuzong period, exile with extra servitude began to be applied in the field of tea monopoly. Since the Han dynasty, the benefits of the salt and iron trade have been exclusively obtained by the government, and it was forbidden for common people to become involved. In the reign of Emperor Dezong of the Tang Dynasty, according to the proposal of the prime minister Wang Ya, the tea monopoly system was established. The continued chapter of Zi Zhi Tong Jian complemented the specific penalties of the law of tea monopoly in the reign of Emperor Dezong of the Tang Dynasty: Since the reign of Emperor Wuzong of the Tang Dynasty, private tea trade was forbidden. From five kilograms to one hundred and fifty kilograms, the flogging punishment depended on the earned amount. Therefore, all civilian tea was ordered to be offered for official trade with the tax deducted. If anyone dared to hide from the government or made private tea trade, it would be confiscated. Those with more than one hundred Qian would be flogged with seventy bludgeons, and those with eight Guan would be sentenced to exile with extra servitude. Any official in charge who made private trade with official tea, if the amount reached five hundred Qian, would be sentenced to exile two thousand Li far away, and those with one Guan and five hundred or made private tea trade with a weapon and arrested by the judicial authority would be sentenced to death.86

84 Comments on Laws of Tang Dynasty, Volume 19 Theft and Robbery “supervisor embezzling”, p. 358. 85 Ce Fu Yuan Gui, Volume 506 State Planning; Official Salary II, p. 5755. 86 Continued Chapter of Zi Zhi Tong Jian, Volume 5 “Xinyou, October, the second year of Qiande period of Emperor Taizu”, p. 131.

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Li Tao’s annotation said that “Since the reign of Emperor Dezong of the Tang Dynasty, the punishment was the death penalty. According to the record, since that year until now, tea trade followed this law.” Anyone who made private tea trade at a value higher than eight Guan would be sentenced to exile with extra servitude. It should be the original text of the law on tea in the reign of Emperor Wuzong. Emperor Wuzong concluded the fine and flogging punishment based on the quantity of private tea, which can be proven by Ce Fu Yuan Gui. According to the decree of October, the fifth year of the Kaicheng period (840 A.D.): “Since now, anyone who made private tea trade without a partner, in the quantity from five kilograms to fifty kilograms would be flogged with fifteen bludgeons. The tea and personal belongings were confiscated and given to the reporter and captor. The prisoner would be sent to the local prefecture and county and guided to other occupations. Anyone who committed the same crime, regardless of the quantity, would be punished by the law. If the quantity exceeded one hundred and fifty kilograms, it would be convicted of serious crime and punished by the law, and the confiscated property would be handled like the above case.”87 The weight and bludgeon number may be changed, but common people who collected or sold private tea at the value more than eight Guan would be sentenced to exile with extra servitude.

5 Summary The emperors and ministers in the early Tang dynasty created the system of exile with extra servitude, adhering to the legislative concept of morality prior to punishment and focusing on moral education instead of penalty. Along with the social changes in the Tang Dynasty, this law was indeed revised during the Kaiyuan period. “Servitude for three years” of exile with extra servitude stipulated by the Laws of Tang Dynasty should be established in the Yonghui or Kaiyuan period, different from the old law in the Zhenguan period. The application scope of exile with extra servitude in the articles of Comments on Laws of Tang Dynasty, covered imperial guard, occupational system, household and marriage, stable and granary, dispatching troops without authorization, theft and robbery, lawsuit, fraud, miscellaneous laws, arrest, judgment and other chapters. The principles of incrimination included two major categories: first, principal crimes directly sentenced to exile with extra servitude; second, other crimes were sentenced to exile with extra servitude to mitigate the death penalty. At the same time, Comments on Laws of Tang Dynasty paid great attention to the value of exile with extra servitude in mitigating the death penalty. Laws of Tang Dynasty included twenty articles stipulating exile with extra servitude to mitigate the death penalty referring to other crimes, covering imperial guard, occupational system, household and marriage, dispatching troops without authorization, theft and robbery, lawsuit, miscellaneous laws, judgment and other chapters, including referring to encroaching upon other’s 87

Ce Fu Yuan Gui, Volume 494 State Planning; Mountains and Rivers, p. 5603.

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territory, brawl causing homicide and injury, postal official delaying in presenting documents, bending the law, delay in the military operations or collection of military materials, theft, robbery, accusing others of a crime falsely. All the above would be sentenced to exile with extra servitude to mitigate the death penalty. Comments on Laws of Tang Dynasty systematically stipulated the servitude duration, redemption and identity restrictions of exile with extra servitude. The abovementioned rules constitute the direct basis for the specific application of exile with extra servitude in different volumes of Comments on Laws of Tang Dynasty. Along with social development and legal evolution, the applicable rules of exile with extra servitude also experienced great changes. The application scope of exile with extra servitude gradually expanded, especially in the field of economic crime. Many precedents for the application rules of exile with extra servitude were created in the form of imperial decree or edit, followed by later generations in the form of legislation.

Chapter 17

Long-Term Exile

Exile originated from ancient times, was established in the Qin and Han dynasties, and formally formed in the Northern Wei and Northern Zhou dynasties. The Decrees of Kaihuang Reign in the Sui dynasty stipulated three grades for the distance of exile, and Laws of Tang Dynasty established a complete exile system based on it, which was followed by later generations in Song, Yuan, Ming and Qing dynasties for more than two thousand years until New Criminal Code of Qing Dynasty was published in the second year of the Xuantong period of the Qing dynasty (1910 A.D.), when it officially quit from the historical stage. The Tang Dynasty was the most important stage in the development of the exile system in ancient China. The academic circle achieved important research results in the study on exile in Tang Dynasty, e.g., Qi Tao’s analysis of the types, execution and characteristics of exile in Tang Dynasty; Wang Xueling’s discussion on the distribution area and characteristics of exiled criminals in Tang Dynasty1 ; Hao Li’s new insights on the execution of exile and release of exiled criminals in Tang Dynasty2 ; Zhang Chunhai’s investigation on the relationship between exile in Tang Dynasty and the national policy and social stratification.3 The study of exile in the Tang Dynasty must involve an important rule: long-term exile. Although many existing documents mentioned this point, to date, specialized research results on long-term exile in the Tang dynasty are still insufficient. Not definitely stipulated in the laws and codes, this exile rule was applied in the Tang Dynasty for a long time. Its development and specific implementation had important influences on the political and legal system of the Tang Dynasty. Therefore, it is necessary to interpret it in a separate chapter to understand the actual execution

1

Wang Xueling, The Distribution Area and Characteristics of Exiled Criminals in the Books of Tang, Discussion Collection of China History and Geography, Volume 17, episode 4, December 2002, pp. 79–85. 2 Hao Li, The New Opinion of Exile in Tang Dynasty, Journal of Xiamen University (philosophy and social sciences), 2004, No. 3, pp. 34–39. 3 Zhang Chunhai, On the Relationship between Exile in the Tang Dynasty and National Policies and Social Stratification, Journal of Fudan University (social science), 2008, No. 2, pp. 116–122. © Science Press 2021 X. Chen, A Study of Criminal Proceeding Conventions in Tang Dynasty, https://doi.org/10.1007/978-981-16-3041-5_17

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status of the criminal penalty in the Tang Dynasty and the influence of the Laws of Tang Dynasty on legislation in the later generation in an all-round way.4

1 Establishment of Long-Term Exiles in the Tang Dynasty The records regarding the establishment of long-term exile in historical documents are relatively simple. According to the article “Zhangsun Wuji” in volume 121 of Records of the Taiping Era quoted Chaoye Qianzai, “long-term exile” was established in the memorial to the emperor by Minister Zhangsun Wuji: Tang Zhaogong Zhangsun Wuji proposed making a separate edit stipulating longterm exile as a permanent system. Later, Zhaogong committed a crime and exiled Lingnan and never returned for the rest of his life. It’s also the disadvantage of this system.5 According to the case of Zhangsun Wuji, Dai Jianguo thought that long-term exile in the Tang Dynasty was established in the Zhenguan period.6 This opinion is controversial. Exile in the Tang Dynasty was derived from the Sui dynasty, and the penalty grade was second only to death. The Decrees of Kaihuang Reign stipulated that exile included three grades, i.e., one thousand Li, one thousand five hundred Li, and two thousand Li. The law of the Zhenguan period followed the former system of the Sui dynasty. “Exile included three articles: exile to two thousand Li away, further five hundred Li away, and three thousand Li away”,7 which was the so-called “regular exile”. Moreover, the Laws of Tang Dynasty stipulated that “all the criminals sentenced to the exile of all the three grades would undergo one year’s servitude”.8 Usually, the exiled criminal needs to serve in the distributed area, so exile in the Tang Dynasty was also known as a “distributed exile”. In March of the first year of the Zhenguan period (627 A.D.), Pei Hongxian, the judicial consultant of Shuwang Mansion, rejected forty articles of laws and decrees unsuitable to the times. After collective negotiation of eight ministers, cutting off the right foot was changed into exile with extra servitude to three thousand Li away for two years.9 On 23 of the first lunar month of the fourteenth year of the Zhenguan period (640 A.D.), it stipulated that “Exile of the three grades was not restricted in distance, but to prefectures in the boundary area.”10 In the fourth year of the Yonghui period (653 A.D.), Comments on 4

Wang Chunxia, On the System of Long-term exile in Tang Dynasty, History Records of Heilongjiang, 2010, No. 23; Zhong Hao, Supplement of Long-term Exile in Tang Dynasty, Korean Society of China: China Journal, 2015, No. 72. 5 Records of the Taiping Era, Volume 121, the article of “Zhangsun Wuji” quoted from Chaoye Qianzai, p. 850. 6 Dai Jianguo, The Evolution of Exile in the Tang Dynasty, Journal of Legal History (Volume 1), Social Science Literature Publishing House, 2006, p. 119. 7 Old Book of Tang, Volume 50 Records of Criminal Law, p. 2137. 8 Comments on Laws of Tang Dynasty, Volume 3 Names “distribution of exiled criminal”, p. 66. 9 Tang Hui Yao, Volume 39 “measurement of penalty”, p. 826. 10 Tang Hui Yao, Volume 41 “degraded officials and exiled criminals”, p. 859.

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Laws of Yonghui inherited the results of the laws of Zhenguan in an all-round way, and added articles of exile with extra servitude, exile on the relatives of conspiracy criminal against imperial rule, exile on descendent committing negligence, exile on ill piety, exile on inhumanity even in an amnesty in addition to “regular exile” of three grades. The chief editor of Comments on Laws of Yonghui was Zhangsun Wuji, Zhaoguo Gong, the supreme official in charge of military affairs.11 If “long-term exile” was established in Wuji’s memorial to the emperor in the Zhenguan period, then exile with extra servitude and other forms should be included in the law together in the law revision of Yonghui. However, the existing edition of the Comments on Laws of Tang Dynasty does not include the article “long-term exile”, so the rule “long-term exile” should be established later than the fourth year of the Yonghui period of Emperor Gaozong. The abovementioned inference can also be proven by the historical literature. The earliest case concerning long-term exile we can find now was the case of exile of Zhangsun Wuji to Qianzhou in the fourth year of the Xianqing period (659 A.D.). In April of the third year of the Longshuo period (663 A.D.), the left official Dong Sigong was sentenced to death for selling imperial examination information. “At the moment of execution, the penalty was exempted and changed into exile to Lingbiao.”12 In the same month, the left minister Li Yifu was sentenced to imprisonment for witchcraft and bribery and inspected by the judicial authority. Yifu was “dismissed and exiled to Suizhou”.13 These two cases were the earliest clearly recorded “exile” in the Tang Dynasty. Long-term exiled criminals were expelled to the boundary areas in uncivilized wildness. As far as the punishment nature is concerned, it was undoubtedly a kind of exile in a broad sense. However, compared with the “regular exile”, “long-term exile” was not restricted by the distance of the law, and the penalty term was unpredictable, implying no return for a lifetime and even not forgiven by amnesty. The abovementioned points, with no direct legal basis, were only customary practices of the lawsuit in nature. At the same time, the “long-term exile” of the Tang Dynasty in the historical literature was not a fixed and specific expression and was mostly confusing with “exile”, “distributed exile”, “degrading exile” and “relocation”. For example, in the third year of the Chang’an period (703 A.D.), Zhang Yizhi wrongly accused Wei Yuanzhong and Minister Gao Jin of conspiracy. He asked Fengge Sheren Zhang Yue to allege them but failed. Yue was sentenced to “long-term exiled in Qianzhou” to violate the emperor’s order.14 In this regard, the Old Book of Tang Biography of Zhang 11

Zhang Chunhai took this case as the origin of “relocation penalty” in Tang Dynasty (Zhang Chunhai, On Relocation Penalty in Tang Dynasty, Journal Collection on History, 2011, No. 4, p. 56). In fact, “relocation penalty” and “long-term exile” were quite same in the terms of applicable subjects, implementation procedure, and execution method. The case of Zhangsun Wuji was the beginning of “relocation penalty” in Tang Dynasty, and also the origin of “long-term exile”. The two penalties were mixed and coexisted in the later dynasties. 12 Ce Fu Yuan Gui, Volume 152 Emperors; Punishment, p. 1699. 13 Old Book of Tang, Volume 82 Biography of Li Yifu, p. 2770. 14 Old Book of Tang, Volume 78 Biography of Yizhi Changzong, Grandson of Zhang Xingcheng, p. 2707.

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Yue recorded that Zhang Yue was “distributed to exile in Qinzhou”.15 The Old Book of Tang Biography of Zhang Yue briefly recorded “exile in Qinzhou”.16 Ce Fu Yuan Gui volume 460 Tai Sheng Bu- Zheng Zhi also recorded “distributed to Lingnan”.17 In July, the autumn of the first year of the Shangyuan period (760 A.D.), Gao Lishi and inner official Wang Cheng’en, Wei Yue and others were wrongly accused by Li Fuguo for serving Emperor Xuanzong in the visit of Changqing Building. They were “removed from the rank and exiled to Wuzhou”.18 Regarding the long-term exile of Gao Lishi, the relevant document records are slightly different. The Old Book of Tang Biography of Gao Lishi recorded “distributed to exile in Qianzhongdao”.19 Zi Zhi Tong Jian recorded, “In July, the autumn of the first year of the Shangyuan period (760 A.D.), “Gao Lishi exiled to Wuzhou.”20 Guo Shi’s Unauthorized Biography of Gao Lishi recorded that Lishi was “removed from the rank and sentenced to longterm exile in Wuzhou”.21 Liu Cheng’s Chang Shi Yan Zhi recorded that “Lishi was relocated in Lingnan”.22 In December of the third year of the Tianyou period (906 A.D.), Xingtangfu Shaoyin Sun Mi, because his brother Sun Cheng was sentenced to death, according to the records in the Old Book of Tang-Biography of Emperor Aidi, was “sentenced to long-term exile in Aizhou”.23 Ce Fu Yuan Gui recorded, “He would be removed from the rank and distributed to Aizhou as a long-term exile criminal.”24

2 Regions of Long-Term Exile The distributed regions of exiled criminals in the Tang Dynasty were mostly concentrated in the six regions in the south, namely, Lingnan, Annan, Qianzhong, Jiannan, Yue and Jiangnan, and important boundary towns in the north, such as Xizhou, Tingzhou and Tiande.25 After the Rebellion of An and Shi, long-term exile became an increasingly applied regular punishment. The exile region in the Tang Dynasty 15

Old Book of Tang, Volume 97 Biography of Zhang Shui, p. 3051. New Book of Tang, Volume 125 Biography of Zhang Shui, p. 4406. 17 Ce Fu Yuan Gui, Volume 460 Tai Sheng Bu; Zheng Zhi, p. 5198. 18 New Book of Tang, Volume 207 The First half of Eunuch; Biography of Gao Lishi, p. 5860. 19 Old Book of Tang, Volume 184 Eunuch; Biography of Gao Lishi, p. 4759. 20 Zi Zhi Tong Jian, Volume 221 “July, the first year of Shangyuan period of Emperor Suzong”, p. 7095. 21 (Tang) Guo Wei, Unauthorized Biography of Gao Lishi, Ding Ruming, Ten Anecdotes of Kaiyuan Tianbao, Shanghai Ancient Books Publishing House, 1985, p. 120. 22 (Ming) Tao Zongyi, etc., Suo Fu Three Kinds volume 5 Chang Shi Yan Zhi, Shanghai Ancient Books Publishing House, 1988, p. 97. 23 Old Book of Tang, second half of Volume 20 Biography of Emperor Aidi, p. 809. 24 Ce Fu Yuan Gui, Volume 925 General Records; Qian Lei, p. 10735. 25 Wang Xueling, The Regional Distribution and Characteristics of the Exiled Criminals in Old and New Books of Tang, Symposium of China History and Geography, Volume 17, No. 4, p. 83. 16

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was mainly concentrated in three regions, Jiannan, Qianzhong and Lingnan, where the specific conditions of receiving exiled criminals were greatly different. First, 6 cases of long-term exile were in Jiannan, and the regions were relatively concentrated. Among them, 4 cases (Li Yifu, Xue Yuanchao, Liu Yizhi and some others, and Li Shan) were in Xizhou; 2 cases (Lu Youlin and Zhang Jun) were in Lianzhou. At the same time, the cases of long-term exile in Jiannan were mostly concentrated in the early period of the Tang Dynasty. Four cases of exile in Xizhou occurred during the reign of Emperor Gaozong, and the cases of exile in Lianzhou occurred during the reign of Emperor Xuanzong and Emperor Suzong. After the Rebellion of An and Shi, few cases of long-term exile in Jiannan were recorded in historical documents. Second, 8 cases of long-term exile in Qianzhong Prefecture were distributed in relatively dispersed geographically, including 2 cases in Qinzhou (Peng Guo and Cheng Yuanzhen), 1 case in Yelang County (Li Bai), 1 case in Wuzhou (Gao Lishi), 2 cases in Bozhou (Sun Ying and Lai Zhen), 1 case in Yizhou (Di Wuqi), and 1 case in Feizhou (Pei Rong). According to the investigation at that time, Qianzhou Prefecture was a hot point for long-term exile in the mid-Tang Dynasty, except Peng Guo, the prefecture chief of Nanhai, “was sentenced to flogging punishment and long-term exile in Qinxi County (Qinzhou)”26 for bribery in March of the sixth year of the Tianbao period (747 A.D.), the other seven cases were all concentrated in the reign of Emperor Suzong and Emperor Daizong. Finally, it’s necessary to discuss Lingnan Dao. Since the Longshuo period until the Tianyou period, this area has always been the region where the most long-term exile criminals in the Tang Dynasty were concentrated. It involves 28 prefectures, including Wu, Zhen, Heng, Qin, Rang, Ya, Long, Huan, Gu, Teng, Qiong, Ya, Bai, Dou, Fu, Feng (Linfeng County), Gong (Linjiang County), Duan (Gaoyao County), Feng (Chenghua County), He (Linhe County), Kang, Lei, Zhao, Chao, Xin, Xiang, Ai, and Bian,27 among which the most exiled criminals were in Rangzhou, Huanzhou and Yazhou. In the Tang Dynasty, the subordinate jurisdiction of the criminals exiling Jiannan and Lingbiao was specifically stipulated. Prisoner Official Order stipulated that after criminals were escorted to various regions, they should be uniformly

26

Old Book of Tang, Volume 9 Second Half of Biography of Emperor Xuandi, Zhonghua Book Company, 1975, p. 221. 27 Note: Collection of Xi’an Tang West Market Museum, Epitaph and Preface of Fang (Xianzhong), General Zuo Jinwu, Kaiguogong of Qinghe County Given by Former General Zuo Qianniu of Tang recorded Fang Xianzhong, father of Emperor Cancubine Yong, was exiled in Bianzhou in early Wenming period because Price Zhuanghuai lost his position, and then died from illness in the first year of Zaichu period: “In the early Wenming period, punishments were rarely redeemed. Trapped by evil officials, he failed to take the official post (Cishi of Muzhou) and exiled to Bianzhou, passing five mountains following the troop…On June 24, the first year of Zaiyuan period, he died from illness at the age of sixty three” (Hu Ji and Rong Xinjiang, Epitaph Collected in Tang West Market Museum, Peking University Press, 2012, pp. 343–344). According to the Old Book of Tang Volume 41 Geography IV, Bianzhou was under the jurisdiction of Lingnan Dao. In the ninth year of the Zhenguan period, Shinanzhou was renamed Bianzhou. It’s 5718 Li from the capital and 5370 Li from the east capital. Considering its location and distance to the capital, it should be a place for long-term exile.

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arranged by the local government and then dispatched to the relevant exile places in the prefectures under the jurisdiction for settlement and servitude: Jiangbei criminals exiling southern Lingnan were sent to Gui and Guang military governments. The criminals distributed to the south of Nanning and the borders of Suizhou other than those from prefectures in Jiannan were all sent to the Yizhou military governor for the local authorities to receive and register.28 According to the Old Book of Tang Geography, in the twelfth year of the Zhenguan period (638 A.D.), “Qingpinggong Li Hongjie sent Qinzhou governor Ning Shijing to trace Liu Fang’s path reaching Jiaozhi. They exploited the wildness and built Rangzhou. It was renamed Lintan County in the first year of the Tianbao period (742 A.D.), and recovered to Rangzhou in the first year of the Qianyuan period.”29 With four counties, Linjiang, Boling, Hushan and Hongyuan, under the jurisdiction, approximately 6200 Li from the capital, it was one of the important regions for receiving long-term exile criminals in the Lingnan area. In April of the 25th year of the Kaiyuan period (737 A.D.), prince consort Xue Xiu, falsely accused by Li Linfu and Emperor Concubine Wuhui, “was sentenced to long-term exile in Rangzhou, and was ordered to commit suicide in Lantian Post house”.30 In the twenty-eighth year of the Kaiyuan period (740 A.D.), Shangyi Fengyu Xue Shen “was sentenced to long-term exile in Rangzhou because of murder, and died on the way; ten joint offenders were flogged with bludgeon”.31 Yazhou was named Zhuya County in the Sui dynasty. Ping Xiaoxian established it in the fourth year of the Wude period (621 A.D.), with five counties, Shecheng, Pingchang, Chengmai, Yanluo and Linji, under the jurisdiction. In the first year of the Tianbao period (742 A.D.), it was renamed Zhuya County. In the first year of the Qianyuan period (758 A.D.), it was recovered to the former name. It was 7,460 Li from the capital. In October, the winter of the sixteenth year of the Zhenyuan period (800 A.D.), Xingyuan Yan Lixi falsely accused Cui Hetu exiled in Tongzhou. “He was sentenced to long-term exile in Yazhou and ordered to commit suicide.”32 In the fourth year of the Changqing period (824 A.D.), Tong Qing, the former Shouzhou Cishi, was “dismissed and sentenced to long-term exile in Yazhou”33 for violating the amnesty to impose taxation on people and using official money. Huanzhou was named Rinan County in the Sui dynasty. “In the eighth year (of Wude period), it was renamed Dezhou. In the early Zhenguan period, former Huanzhou was renamed Yanzhou. In the second year, Huanzhou military government 28

Tianyige Museum, Institute of History, Chinese Academy of Social Sciences, Tiansheng Order Investigation Group amended, Amendment of Tiansheng Order of Ming Edition Collected in Tianyige affixed Qing Recovered Edition of Prison Official Order in Kaiyuan Period of Tang Dynasty, Article 15, p. 645. 29 Old Book of Tang, Volume 41 Geography IV, p. 1748. 30 Old Book of Tang, Volume 9 Second Half of Biography of Emperor Xuanzong, p. 208. 31 Ce Fu Yuan Gui, Volume 306 Relatives of Emperor; Dictator, p. 3461. 32 Old Book of Tang, Volume 13 Second Half of Biography of Emperor Xuanzong, p. 393. 33 Ce Fu Yuan Gui, Volume 700 Prefecture Governor; Corruption, p. 8090.

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was established, with Huanzhou, Yanzhou, Mingzhou, Zhizhou, Linzhou, Yuanzhou, Jingzhou and Haizhou under its jurisdiction.”34 It was renamed Ninan County in the first year of the Tianbao period (742 A.D. and recovered as before in the first year of the Qianyuan period (758 A.D.). 12,452 Li from the capital by land and 17,000 Li by waterway, it is one of the most remote and desolate exile places in Lingnan Dao. Criminals exiled in this place since the reign of Emperor Zhongzong. In the first year of the Shenlong period (705 A.D.), examination department director Shen Quanqi “was sentenced to long-term exile in Huanzhou for accepting bribery”.35 In August of the first year of the Kaicheng period (836 A.D.), former Weifang military governor Xiao Hong falsely claimed himself to be empress dowager’s brother. “When the truth was exposed…he was exiled to Huanzhou and was ordered to commit suicide on the way.”36 There were still many cases of long-term exile in Huanzhou. In June of the third year of the Guanghuang period (900 A.D.), falsely accused by minister Cui Ying, privy council chief executive Song Daobi exiled in Ci and was ordered to commit suicide when he arrived at Baqiao Posthouse in Chengdong.37 In judicial practice, to suppress family power or bureaucratic collusion, according to the principle of security punishment,38 the convention of long-term exile on the criminal’s relatives or relocation of the criminal’s colleagues in other places was formed. It’s to cut off the contact of interest groups relying on the natural barriers of geographical isolation, for the penalty purpose of both prevention and punishment. In June of the second year of the Xianheng period (671 A.D.), Lantai attendant official Helan Minzhi was sentenced to exile in Leizhou. “Many officials in good relationship with Minzhi exiled to Lingnan.”39 Shangshu Right Minster and Zhangshi Huangfu Gongyi dependent on Minzhi were sentenced to long-term exile in Hengzhou. Crown prince Liu Yizhi “who was dependent on Minzhi and met him with his mother was exiled to Kangzhou…His brother Youshi Yizhi knowing the fact was exiled to Suizhou. Qizhou governor Xu Qidan, who was in a good relationship with Minzhi when he served in Wangfuchuan before, was sentenced to long-term exile in Lingwai. Qianjing governor Li Shan, who once taught Minzhi, was sentenced to long-term exile in Xizhou”.40 Xizhou, under the jurisdiction of Jiannan Dao, was 3230 Li from the capital; Hengzhou, under the jurisdiction of Lingnan Dao, was 4755 Li from 34

Old Book of Tang, Volume 41 Geography IV, p. 1754. New Book of Tang, Volume 202 Literature and Art; Biography of Shen Quanqi, p. 5749. 36 Zi Zhi Tong Jian, Volume 245 “August in the first year of Kaicheng period of Emperor Wenzong”, p. 7926. 37 Zi Zhi Tong Jian, Volume 262 “June in the third year of Guanghua period of Emperor Zhaozong”, p. 8531. 38 Qi Tao, On the Exile System of Tang Dynasty, Humanities Journal, No. 3, 1990, p. 96. 39 Zi Zhi Tong Jian, Volume 202 “June in the second year of Xianheng period of Emperor Gaozong (671)”, p. 6367. 40 Ce Fu Yuan Gui, Volume 925 General Record; Condemnation, p. 10732. Note: According to the Epitaph and Preface of Xu Fujun, Former Qianxitai Sheren of Tang Dynasty: “He served as Danzhou governor at first, and then was appointed to be Jingzhou governor. He incurred a crime because of an education officer and a general, and exiled to Qinzhou…and died in the distributed place on Febuary 2nd in fourth year of Xiongheng period” (Hu Ji and Rong 35

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the capital; Kangzhou, under the jurisdiction of Lingnan Dao, was 4525 Li from the capital. In the reign of Emperor Xuanzong, Liangzhou governor Wang Junchuo falsely accused that the Uighur tribe was hard to rule because of potential rebellion. “Hanhai Governor, Emperor Chengzong of Uighur, was sentenced to exile in Rangshui; Hun Dade was sentenced to exile in Jizhou; Helan Governor Qibi Chengming was sentenced to exile in Tengzhou; Lushan Governor Sijie Guiguo was sentenced to exile in Qiongzhou.”41 Jurisdiction of Rangzhou was mentioned above; Luzhou is affiliated to Daoli as mentioned above, Jizhou, under the jurisdiction of West Jiangnan Dao, 3650 Li from the capital; Tengzhou, under the jurisdiction of Lingnan Dao, 5596 Li from the capital; Qiongzhou, also under the jurisdiction of Lingnan Dao, 7460 Li from the capital. In the sixth year of the Tianbao period (747 A.D.), Li Linfu and others falsely accused imperial minister Yang Shenjin of intending to recover the Sui dynasty. On November 25th, Yang Shenjin brothers were ordered to commit suicide. The joint offender Fan Tao was sentenced to sixty bludgeons and long-term exile in Lingjiang County, Lingnan42 ; Taifu Shaoqing Zhang Xuan was sentenced to sixty bludgeons and long-term exile in Lingfeng County, Lingnan3 . Linjiang County was Gongzhou, 5270 Li from the capital; Linfeng County was Fengzhou, 4385 Li from the capital. The exiled criminals were separated in isolated areas far apart. Under extremely inconvenient transportation and communication conditions at that time, various political groups inevitably collapsed.

3 Execution Procedures of Long-Term Exile Long-term exile in the Tang Dynasty implied “not having the heart to execute death penalty so expelling to remote places”.43 As an abatement grade from the death penalty, the specific execution followed strict procedures and mostly customs in judicial practice, including basic phases of dismissing, expelling and resettlement, and the process also involved flogging punishment, food supply and other problems. The existing literature lacks complete stipulations for the rules of long-term exile in the Tang Dynasty. The relevant records regarding long-term exile in biographies and imperial decrees became the basis for studying the rules. The principal stipulations regarding exiled criminals and degraded officials in Comments on Laws of Tang Dynasty and Prison Official Order should also become one of the direct legal sources of long-term exile.

Xinjiang, Epitaph Collected in Tang West Market Museum, p. 198). This can complement the missing part of Books of Tang: Biography of Xu Qidan. 41 Ce Fu Yuan Gui, Volume 446 Generals; Troubles, p. 5032. 42 Imperial Degree Collection of Tang, Volume 126 Political Affairs; First Half of Death Penalty; Degree of Yang Shenjin’s Suicide, p. 678. 43 New Book of Tang, Volume 56 Records of Criminal Law, p. 1408.

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3.1 Dismissing Dismissing is the prerequisite procedure for the sentence of long-term exile in the Tang Dynasty. Gan Huaizhen pointed out, “Literally, dismissing refers to dismissing the official post, meaning that the name of an official would be removed from the list.”44 Because most long-term exile criminals were bureaucrats and aristocrats, all the posts in their official career would be deprived before the distribution, and then they would be expelled to remote areas as criminals. According to the Comments on Laws of Tang Dynasty, all the dismissed criminals would be deprived of all official posts and fulfill the servitude as common people.”45 In the second year of the Linde period (665 A.D.), Xu Jingzong followed Empress Wu’s order to falsely accuse the conspiracy of Shangguan Yi and Liang Wangzhong. Yi was imprisoned and then died, and his family was confiscated. In December, Shangguan Yi was imprisoned and sentenced to death with his son Tingzhi and Wang Fusheng, and all the family property was confiscated. Zuosuji Zheng Qintai, Xitai Sheren Gao Zhengye, Siyu Dafu Wei Xuantong, Zhang Xicheng, Chang’an officer Cui Daomo and others were in good relationship with Yi, so they were all “dismissed and sentenced to longterm exile in the remote boundary of Lingnan”.46 In June of the second year of the Shangyuan period (761 A.D.), Jianghuai commander Li Huan, in fear of the crime of defeat, attributed the fault to Zhexi military governor Hou Lingyi. “Lingyi was dismissed and sentenced to long-term exile in Kangzhou.”47 In the first lunar month in the first year of the Qianfu period (874 A.D.), Xinzhou governor Lu Yan arrived in Jiangnan. “He was deprived of the official post and sentenced to long-term exile in Danzhou”.48 After criminal officials were deprived of the posts and sentenced to longterm exile, their identity was equivalent to common people. The expression “exile in XX Prefecture as common people” was often used in the decrees and orders of the Tang Dynasty. In the twenty-ninth year of the Kaiyuan period (741 A.D.), Weizhou governor Lu Hui accepted bribery. Emperor Xuanzong approved the “abatement from the death penalty to long-term exile in Fuzhou as common people”.49 In the first year of the Kaicheng period (836 A.D.), former Weifang military governor Xiao Hong falsely claimed himself to be empress dowager’s brother. Hong “was sentenced to exile in Huanzhou as common people”. Hong’s son-in-law Wan Zhen and others flogged and exiled to Yazhou and Xiangzhou in Lingnan.50 In October in the winter of the first year of the Tianyou period (904 A.D.), Zhu Quanzhong 44

Gan Huaizhen, Interpretation of Imperial Power, Etiquette and Classics: On Ancient China Political History, Taiwan University Press, 2004, p. 115. 45 Comments on Laws of Tang Dynasty, Volume 3 Names “Law on Dismissing Officials”, p. 58. 46 Ce Fu Yuan Gui, Volume 933 General Record; False Accusation, p. 10806. 47 Zi Zhi Tong Jian, Volume 222 “June, the second year of Shangyuan period of Emperor Shuzong”, p. 7114. 48 Zi Zhi Tong Jian, Volume 252 “January, the first year of Qianfu period of Emperor Xizong”, p. 8169. 49 Ce Fu Yuan Gui, Volume 700 Prefecture Governor; Corruption, p. 8087. 50 Ce Fu Yuan Gui, Volume 924 General Records; Fraud, p. 10718.

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accused Yazhou official Li Yanwei of inciting agitation in the army and sentenced the latter to “long-term exile in the local prefecture as common people and then ordered him to commit suicide”.51 At the same time, when the identity of the exiled nobles was changed into common people, their statutory privileges, such as negotiating, requesting, abatement, redemption and mortgage, were all lost.

3.2 Bludgeon Since the reign of Empress Wu, long-term exile began to include bludgeon punishment. The number of bludgeons sometimes varied, but most did not exceed the upper limit stipulated in the law. This can be proven by the cases of long-term exile with bludgeon punishment in different periods of the Tang Dynasty. In September of the first year of the Guangzhai period (684 A.D.), Taipusi minister Pei Zhouxian was “sentenced to one hundred bludgeons on the imperial court and long-term exile in Rangzhou”52 because his suggestion offended the emperor’s intention. In April of the twenty-fourth year of the Kaiyuan period (736 A.D.), Wei Xuan, registrar of Fuchang County, Henan Province, and Wang Yanyou, former governor of Tonglu County, Muzhou, tied conspiracy with Wu Wenshen, and they often talked all day and all night. “It’s applicable to bludgeon punishment on each and long-term exile in Douzhou.”53 The edict on September 16th of the ninth year of the Tianbao period (750 A.D.), Anyone who selected “impostor” would be “sentenced to sixty bludgeons and long-term exile in remote and desert regions in Lingnan”.54 In the middle and late Tang dynasty, criminal penalties varied greatly, but bludgeon punishments attached to long-term exile basically followed the old practice. In July of the fourteenth year of the Yuanhe period (819 A.D.), Quan Changru, an official of Fujian Salt and Iron Authority, was sentenced to death for accepting 13,000 Guan bribery. Emperor Xianzong had compassion for his old-aged mother, so he amended the sentence to “eighty bludgeons and long-term exile in Kangzhou”.55 In August of the fourth year of the Changqing period (824 A.D.), Li Yuanben served as a military officer in the capital. He, gentry Xue Shu and Xue Hun were all favored by Princess Xiangyang. The princess husband Zhang Keli submitted the report to the throne, so Emperor Muzong “held the princess in captivity. As a descendant of a statesman with great achievements, Yuanben abatemed from the death penalty to sixty bludgeons and exile in Xiangzhou. For Yuanben’s reason, the punishment on Shu and Hun

51

Old Book of Tang, Volume 20, the second half Biography of Emperor Aidi, p. 788. Zi Zhi Tong Jian, Volume 203 “September of the first year of Guangzhai period of Empress Zetian”, p. 6428. 53 Ce Fu Yuan Gui, Volume 152 Emperors; Punishment, p. 1702. 54 The Criminal Law of Song Dynasty, Volume 25 Fraud the article of “fraud to be official” quoted the edict on September 16th, the ninth year of Tianbao period, p. 392. 55 Ce Fu Yuan Gui, Volume 150 Emperors; Abatement of Penalty, p. 1675. 52

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was also mitigated to eighty bludgeons and long-term exile in Yazhou”.56 It is worth noting that bludgeon punishment was not an essential element of the long-term exile. It depended on the judicial decision based on the emperor’s intention.

3.3 Dispatching Prison Officer Order in the Kaiyuan period of the Tang Dynasty stipulated a defense and assistance system for the delivery of exiled criminals for specially assigned professionals to escort exiled criminals. “All the exiled criminals…were recorded with their family conditions, accused and expelling dates, sent to the distributed place and handed over to special professionals for defense and aid. Original note: All of the assistance professionals were selected strong men, and other places in need of assistance all followed this standard. They were escorted by specially assigned officers to the distributed places.”57 All those responsible for escorting and delivering criminals “asked the prefecture and county to measure the grades of crimes and assign defense and aid, and then handed over the criminals”.58 The Laws of Tang Dynasty stipulated that anyone who “delayed the delivery of criminals” would be “sentenced to thirty bludgeons for the one-day delay, one higher grade for three days; one hundred bludgeons for more, one higher grade for ten days, and the highest grade was two years in prison”.59 In the third year of the Longshuo period (663 A.D.), Taoist Guo Xingzhen was accused of colluding with Xuancao. “He was dismissed and exile to Aizhou. The authority expelled him at once and asked Changgang to escort him to the local court for inspection.”60 In the seventeenth year of the Kaiyuan period (729 A.D.), Xingzhou official Ma Cha revealed confidential information. He was degraded to be the county sheriff of Huanghua, Xunzhou. The joint offender Qi Fu was sentenced to one hundred bludgeons and long-term exile in Yazhou; Guo Bing was sentenced to one hundred bludgeons and long-term exile in Baizhou. “Messengers were assigned to accept them altogether.”61 In the Tang Dynasty, “long escorting” and “hand-over escorting”62 were combined to escort long-term exile criminals; that is, the original judgment department sent messengers to escort the criminals, and the prefectures and counties along the route 56

Old Book of Tang, Volume 142 Biography of Li Baochen and Yuanben, p. 3871. See Footnote 28. 58 Tianyige Museum, Institute of History, Chinese Academy of Social Sciences, Tiansheng Order Investigation Group amended, Amendment of Tiansheng Order of Ming Edition Collected in Tianyige affixed Qing Recovered Edition of Prison Official Order in Kaiyuan Period of Tang Dynasty, Article 16, p. 645. 59 Comments on Laws of Tang Dynasty, Volume 30 Judgment “delivery, distribution and stay of exile criminals”, p. 569. 60 Chen Shangjun, Supplement of Complete Tang Prose, Volume 6 “edict of exiling Guo Xingzhen to Aizhou”, Zhonghua Book Company, 2005, p. 66. 61 See Footnote 53. 62 Chen Guangzhong, Shen Guofeng: Ancient Chinese Judicial System, p. 185. 57

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assisted in completing the escorting task within the jurisdiction. In judicial practice, long escorting tasks were mostly carried out by the messengers assigned by the divisions of the capitals. In the first lunar month in the spring of the second year of the Guangde period (764 A.D.), the former right guardian general Cheng Yuanzhen intended to commit evil by traveling in disguise. “He was sentenced to long-term exile in Qinzhou as common people. The capital government was authorized to assign messengers for delivery, and the prefectures and counties along the route assigned officers for defense and assistance to avoid deviation until they arrived at the destination. Even if any amnesty was issued, they would not be subject to the range of favor.63

3.4 Constraining the Body Some major criminals sentenced to long-term exile must put on shackles and be escorted. According to Shi Wu Ji Yuan of Gao Cheng in the Song dynasty: Chun Qui Zuo Zhuan recorded Met in Shangren and put Luan in cangue. This indicates cangue emerged in the spring and autumn period. Therefore, there was a so-called “cangue of the official post” (suppression of the conspiratorial cliques) in the late Han dynasty. Now putting a shackle on the body was called “cangue of the body”. The expression may originate from it.64 The instruments for constraining the body in the Tang Dynasty were more than a neck shackle. Bai Juyi mentioned “body lock”65 in his poem. Both shackles and locks were legal instruments for escorting criminals. Zi Zhi Tong Jian recorded that the specifications of the instruments were fixed in the first lunar month of the eleventh year of the Zhenguan period of the Tang Dynasty (637 A.D.). All the instruments judicial authorities used for taking enforcement measures, such as shackles, handcuffs, clamps and locks, were stipulated in terms of length and width. “Different specifications were applied for different grades of crimes”66 : “Shackle was the instrument for constraining the neck; handcuff was for constraining the hands. Clamp was for constraining the body by iron. Lock was for anchoring the body by iron.”67 Prison Officer Order in the Kaiyuan period stipulated that “all the exiled criminals would be put on clamps or neck shackles except those ill and secured”68 63

Old Book of Tang, Volume 184 Eunuchs; Biography of Cheng Yuanzhen, p. 4763. Shi Wu Ji Yuan, Volume 10 Law and Punishment 52, p. 533. 65 Amendment of Bai Juyi Works Collection, Volume 36 Half Poetry; Sitting, Reading, and Leaving it to Youth, p. 2487. 66 Old Book of Tang, Volume 50 Record of Criminal Law, p. 2139. 67 Zi Zhi Tong Jian, Volume 194 “January of the eleventh year of Zhenguan period of Emperor Taizong” with Hu’s annotation, p. 6126. 68 Tianyige Museum, Institute of History, Chinese Academy of Social Sciences, Tiansheng Order Investigation Group amended, Amendment of Tiansheng Order of Ming Edition Collected in Tianyige affixed Qing Recovered Edition of Prison Official Order in Kaiyuan Period of Tang Dynasty, Article 21, p. 645. 64

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during the serving period of the criminals. Therefore, the specific law on constraining and escorting long-term exiled criminals would be implemented accordingly. Constraining the body in delivery was widely applied in exile of the Tang Dynasty. In February of the eighth year of the Yuanhe period, Taichang minister Yu Min dismembered a family servant of Liang Zhengyan and disposed it in garbage. When the crime was exposed, Min “was sentenced to long-term exile in Leizhou, by constraining the body in the delivery”.69 In March in the fourth year of the Dahe period (830 A.D.), another decree ordered: “Xingyuan Army Supervisor Yang Shuyuan would be exiled to Kangzhou as common people, constrained in cangue and handed over to the distribution place.”70 According to the statement of degrading to be common people and the geographical location of Kangzhou in the decree, this case was undoubtedly long-term exile in nature.

3.5 Food Supply Once the criminal set off, they would go directly to the exile place as soon as possible, and any delay was prohibited. According to Gong Shi Ling in the Kaiyuan period, “The travelling speed would be seventy Li a day by riding horse; fifty Li on foot or riding donkey; and thirty Li by carriage.”71 The food for the exiled criminals should be supplied by the prefecture and counties along the road. “Every time of stay for supplementing foods would be no more than two days; whether to change the horse depended on the temporary decision.”72 On July 6th in the autumn of the fifth year of the Tianbao period (746 A.D.), another edict ordered that “exiled and degraded criminals were prohibited from staying on the way. Degraded officials would travel more than ten post houses a day to go to the post. “The exiled criminals were escorted and handed over in turn, and any change would be specially judged by the local officials.”73 In February in the tenth year of the Xiantong period (869 A.D.), Duanzhou governor Yang Shou was dismissed and delivered to Huanzhou for long-term exile as common people. The edict ordered, “They would not be exempted even by amnesty. They would be delivered to the accepted place, constraining the body in cangue. The county on the route offered a donkey and cooked foods.”74 According to the old system, exiled criminals were prohibited from riding horses.75 69

Old Book of Tang, Volume 15 Second Half of the Biography of Emperor Xianzong, p. 445. Old Book of Tang, Volume 17 Second Half of the Biography of Emperor Wenzong, p. 536. 71 Tang Ling Shi Yi, formula order 21 “travel by horse or donkey”, p. 535. 72 Tianyige Museum, Institute of History, Chinese Academy of Social Sciences, Tiansheng Order Investigation Group amended, Amendment of Tiansheng Order of Ming Edition Collected in Tianyige affixed Qing Recovered Edition of Prison Official Order in Kaiyuan Period of Tang Dynasty, Article 17, p. 645. 73 Tang Hui Yao, Volume 41 Degraded Officials and Exiled Criminals, p. 860. 74 Edict and Order Collection of Tang volume 58 Minister; Prime Minister; Degrading Second Half; Yangshou’s exile in Huanzhou, p. 309. 75 New Book of Tang, Volume 98 Biography of Xue Shou’s Son Yuan Chao, p. 3892. 70

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The special offered transport and cooked foods in this case were probably mercy beyond the law. Generally, long-term exile criminals had to travel on foot to the exile place, and there was no guarantee of traffic and food on the way. The miserable situation was imaginable. In addition, long-term exiled criminals should also follow all the stipulations on maternity, marriage and funeral of the criminals along the way in Prisoner Official Order.

3.6 Household Register Generally, the criminals exiling prefectures “served local official governments. In areas with no official authority, they would stay for repairing temples, warehouses and public agencies”.76 Local governments should register basic information on exiled criminals, such as the native place, physical characteristics, and exile state and county. “The register was confirmed as household, and the servitude was as common people.”77 According to Documents on the Relationship of Exiled Criminals in (Wuzhou period of) Tang Dynasty compiled by Khara-khoja collected in Ryonggok Academy, Japan (Otani No.8045)78 : 1

Escaped. Native place: Xiagui County, Taizhou. Red Long face Exile in Danzhou black, no moustache

2

Jointly employed with Yang du from Qiutai Danzhou

3

Yan Zhi Fu Luo

➂

(Missing)

Comments on the Laws of Tang Dynasty stipulated that all exiled criminals with official posts or ranks would be dismissed and sent to exile places free from servitude: “Those who were dismissed were exempt from servitude. That is, those who would not be exiled but sentenced to exile, although with official rank, were exempt from servitude.”79 Thus, although long-term exile officials were dismissed from being common people and registered in the local household, they still enjoyed the privilege of exemption from labor servitude. However, exiled criminals must be strictly controlled by the local governments and cannot leave the exile place for no reason. In February of the sixth year of the Tianbao period (747 A.D.), Nanhai governor 76

Tianyige Museum, Institute of History, Chinese Academy of Social Sciences, Tiansheng Order Investigation Group amended, Amendment of Tiansheng Order of Ming Edition Collected in Tianyige affixed Qing Recovered Edition of Prison Official Order in Kaiyuan Period of Tang Dynasty, Article 20, p. 645. 77 (Qing) Xue Yunsheng, Collection of Laws of Tang and Ming Dynasties, Volume 3 Names “Family members of exiled criminals”, p. 37. 78 [Japan] Oda Yoshijiu, Collection of Otani Documents (3), p. 220. 79 Comments on Laws of Tang Dynasty, Volume 2 Names “request for abatement”, p. 36.

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Peng Guo accepted bribery and sentenced to long-term exile in Qinzhou Prefecture. “Still assigned messengers to the post house for delivery to avoid deviation until they arrived at the destination.”80 In February of the third year of the Qianyuan period (760 A.D.), someone accused prime minister Diwu Qi of accepting bribes. Qi was dismissed and sentenced to long-term exile in Yizhou. Emperor Suzong immediately issued a decree to “assign officials to the post house for distribution to avoid from deviation until they arrived at the destination”.81 In April of the twelfth year of the Yuanhe period (817 A.D.), an edict ordered that degraded officials and exiled criminals were “not allowed to fill other posts or stay in any banquet, and should sign an application for travelling outside the prefecture and county”. In October of the same year, it stipulated that “any exiled criminals were not allowed to send a messenger to travel outside the exile place for the personal affair.”82 Undoubtedly, because of the hard conditions in the areas such as Lingbiao and Jiannan at that time, the exiled criminals sometimes escaped to their native places. In the first year of the Guangzhai period, after Pei Youxian was exiled to Rangzhou, “he escaped from Lingnan back to his hometown”.83 Later, he was flogged with one hundred bludgeons and expelled to Beiting.84 In November in the first year of the Jingyun period (710 A.D.), the court recovered Pei Yan’s rank. “They looked for Yan’s descendant, but only Youxian was alive, so they awarded him Zhanshi minister.”

4 Disposal of Long-Term Exile Criminals 4.1 Changes of Long-Term Exile Policy The original intention of long-term exile was to expel the exiled criminal away from home for a lifetime. Therefore, long-term exile criminals would not be released except for special amnesty. In the first lunar month, in the spring of the first year of the Qianfeng period (666 A.D.), Emperor Gaozong worshiped heaven in the south of Mount Tai, “an amnesty was issued to all criminals except long-term exile criminals, who still would not return home.”85 The principle that long-term exile would not 80

Ce Fu Yuan Gui, Volume 152 Emperors; Punishment, p. 1703. Edict and Order Collection of Tang, Volume 57 Minister; Prime Minister; Degrading Second Half; Diwu Qi’s long-term exile in Yizhou, p. 303. 82 Tang Hui Yao, Volume 41 Degraded Officials and Exiled Criminals, pp. 862–863. 83 Zi Zhi Tong Jian, Volume 210 “December in the first year of Jingyun period of Emperor Ruizong”, p. 6658. 84 Note: Unearthed from the southeastern suburb of Xi’an in 1998, Epitaph of Pei Youxian briefly recorded two exiles on Pei Youxian. “Accused suddenly, he was sentenced to exile in Anxi.” Ge Chengyong and Li Yingke, Study on the Epitaph of Pei Youxian of Tang Dynasty Newly Discovered in Xi’an, in Rong Xinjiang (ed.), Study on Tang (Volume 5), Peking University Press, 1999, p. 453. 85 Zi Zhi Tong Jian, Volume 201 “January in the spring of the first year of Qianfeng period”, p. 6347. 81

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be exempted was still embodied in the Revised Amnesty in Early Yuanzai Period by Empress Wu: Any official deprived of rank would also be registered. Long-term exile criminals, special edict exile criminals, exile criminals moved from native places, degraded officials, conspiracy criminals, and those who committed felony specially disposed would not be exempted by amnesty, although they were not moved to the abovementioned places.86 In the Kaiyuan and Tianbao periods, the imperial court issued a number of decrees and edicts, stipulating that long-term exile was applied as the abatement from the death penalty and relocated a large number of long-term criminals in Lingnan. According to Summer Edict on the Judgment of All Criminals on April 20, the nineteenth year of the Kaiyuan period (731 A.D.), “All the criminals would be sentenced. The chief criminals of witchcraft, theft, robbery and forgery, causing severe damage to the political situation, would be punished. Those who died were sentenced to one hundred bludgeons and long-term exile in Lingnan. Other joint offenders, considering their stupidity, would be punished by measurement to demonstrate exemplary sentences.”87,88 In April of the twenty-fourth year of the Kaiyuan period (736 A.D.), another decree ordered, “all the imprisoned criminals who committed ten major crimes sentenced to death and the chief criminals who committed falsification would be sentenced to sixty bludgeons and long-term exile in wild areas in Lingnan.”89 The abovementioned exile criminals were not allowed to move or return home except for amnesty. In addition, the decrees and edicts of the Tang Dynasty often contained the meaning of exempting long-term exile criminals. These decrees and edicts contained universal significance, so they became the direct basis for migration or exemption of long-term exile criminals. The judicial practice that long-term exile criminals would not return home for life was gradually abandoned. In August of the first year of the Shangyuan period of Emperor Gaozong (674 A.D.), an amnesty was issued in the change of the reign title, stipulating for the first time that “long-term exile criminals would be released”.90 Li Yifu’s wife and son were released in the same year.91 In June of the fourth year of the Jinglong period (710 A.D.), Empress Wei held the imperial court and changed the reign title to Tanglong, issuing the edict “long-term exile criminals would be released back to the field, and their crimes would be exonerated”.92 In the same month, King of Xiang, Li Dan, ascended the throne and issued an amnesty, ordering that “all the criminals in long-term exile or long-term post would

86

Wen Yuan Ying Hua, Volume 463 Hanlin Decrees 44; Decrees and Edicts 5; Reform, p. 2360. Ce Fu Yuan Gui, Volume 85 Emperors; Exemption 4, pp. 940–941. 88 Decree and Order Collection of Tang, 82 Political Affairs; Exemption; Edict on the Abatement of All Criminals in Spring Order, p. 479. 89 Ce Fu Yuan Gui, Volume 85 Emperors; Exemption 4, p. 943. 90 Ce Fu Yuan Gui, Volume 84 Emperors; Exemption 3, p. 929. 91 See Footnote 13. 92 Old Book of Tang, Volume 7 Biography of Emperor Zhongzong, p. 150. 87

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be released home”.93 In November of the seventeenth year of the Kaiyuan period (729 A.D.), he visited Qiaoling and issued another edict: “criminals sentenced to long-term exile for conspiracy against imperial rule and city wall slavery would be moved to neighboring areas as common people”.94 After the long-term operation of long-term exile rules, the old system of no return for a lifetime gradually became a mere formality because of frequently issued amnesty orders. In the first lunar month of the eighth year of the Yuanhe period (813 A.D.), Wang Bo, serving as the chief of the Ministry of Justice, proposed that “exile criminals and former exile criminals would follow the rule of long-term exile, and would be released six years later”.95 The “rule of long-term exile” mentioned here deserves special attention. It stipulated that exile criminals would be released six years later, which is consistent with the time limit of “taking post six years later” in Prison Official Order.96 The judicial authority of the Tang Dynasty probably compiled rules before making a special stipulation on the return of long-term exile criminals. In the late Tang dynasty, many restrictions on long-term exile criminals were further relaxed, and the government-funded migration and employment of long-term exile criminals were put on the agenda. The amnesty in the seventh year of the Xiantong period (866 A.D.) stipulated that “The degraded officials and exile criminals, who were expelled to remote regions and prohibited to return home for life regardless of any amnesty, would be migrated.”97 On October 9th of the thirteenth year of the Dazhong period (859 A.D.), Emperor Yizong’s Amnesty for Ascending the Throne also stipulated that “All the exiled and degraded criminals, who would not be migrated regardless of any amnesty according to the former edict, or long-term exile criminals as local people who were prohibited from returning home for life, would be disposed by Zhongshu ministry and migrated to nearby regions.”98

4.2 Employment and Migration of Long-Term Exile Criminals The exile punishment in the Tang Dynasty was generally limited in six years, and exile criminals “can be employed six years after they arrived at the distribution places. That is to say, the offenders would not be exiled but specially sentenced to exile can 93

Old Book of Tang, Volume 7 Biography of Emperor Ruizong, p. 154. Ce Fu Yuan Gui, Volume 85 Emperors; Exemption 4, p. 939. 95 Ce Fu Yuan Gui, Volume 616 Criminal Law; Judgment, p. 7124. 96 Note: According to the edit on October fifth in the fourth year of Kaicheng period quoted by Criminal Law of Song Dynasty: “From now on, exiled criminal would be released after serving the full term of six years.” Criminal Law of Song Dynasty, Volume 3 Names “crimes of exile”, p. 49. 97 Decree and Order Collection of Tang, Volume 86 Political Affairs; Exemption 4; the Abatement in the Seventh Year of Xiantong Period, p. 489. 98 Wen Yuan Ying Hua, Volume 420 Hanlin System Decree; Amnesty; Amnesty for Ascending the Throne, p. 2125. 94

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be employed three years later”.99 However, long-term exile was mostly farther than three thousand Li, which was the upper limit of regular exile. If the time of exile was not definite, it was an indefinite penalty. The criminals would not return home or be employed for life except for exemption of amnesty. In September of the first year of Emperor Suzong (760 A.D.), Sinongqing Li Fengnian committed the crime of corruption. “He was dismissed, sentenced to long-term exile in Rangzhou, Lingnan as common people and prohibited return home for life.”100 It meant he would never be reinstated. At the same time, the effectiveness of the decrees on imprisonment mostly covered descendants of criminal officials. In July in the autumn of the second year of the Jinglong period (708 A.D.), Wu Sansi secretly asked someone to expose Empress Wei’s immoral conduct and published it at Tianjing Bridge and requested to dethrone her. The imperial censor Li Chengjia falsely accused Heng Yanfan and others. Yanfan and the other four were once granted a privilege voucher to exempt the death penalty for their contribution in founding the state. “Thus, Yanfan was sentenced to long-term exile in Rangzhou; Jinghui was in Yazhou; Zhang Jianzhi was in Longzhou; Yuanshu was in Huanzhou, Cui Xuanwei was in Guzhou, and life imprisonment, and all descendants older than sixteen years old were also exiled in Lingwai.”101 Imprisonment meant “not to appoint someone to be official”. Kong Yingda in the Tang Dynasty said, “Imprisonment meant to prohibit someone from taking any official post. It remained unchanged at present.”102 This indicates that the meaning of keeping criminals away from the official career remained in the Tang Dynasty. On the 12th day of the thirteenth year of the Kaiyuan period (725 A.D.), Kaiyuan Ge stipulated that twenty-three cruel officials in the Zhou dynasty, including Lai Zixun, Wan Guojun, Wang Hongyi, Hou Sizhi, Guo Ba, Jiao Rendan, Zhang Zhimo, Li Jingren, Tang Fengyi, Lai Junchen, Zhou Xing, Qiu Shenxun, Suo Yuanli, Cao Renzhe, Wang Jingzhao, Pei Ji, Li Qinshou, Liu Guangye, Wang Deshou, Qu Zhenjun, Bao Sigong, Liu Jingyang and Wang Chuzhen framed loyal courtiers and committed severe crimes. “Those still alive would be sentenced to long-term exile in Lingnan and other remote regions. Even if they passed away, their descendants were prohibited from serving as officials.”103 In the judicial practice of the Tang Dynasty, “every year, the exiled criminals were mostly petty officials”.104 In deep contrast, almost all the long-term exile criminals were of gentry’s class. Compared with general exile criminals, long-term exile criminals did not bear the legal obligation to guard the frontier or fulfill the servitude. 99

Tianyige Museum, Institute of History, Chinese Academy of Social Sciences, Tiansheng Order Investigation Group amended, Amendment of Tiansheng Order of Ming Edition Collected in Tianyige affixed Qing Recovered Edition of Prison Official Order in Kaiyuan Period of Tang Dynasty, Article 19, p. 645. 100 Ce Fu Yuan Gui, Volume 625 Official Supervision; Corruption, p. 7234. 101 Old Book of Tang, Volume 91 Biography of Heng Yanfan, p. 2931. 102 Chun Qiu Zuo Zhuang Zheng Yi, Volume 25 “memorial in the eighteenth year of Chenggong period”, p. 811. 103 Tong Dian, Volume 170 Punishment 8; Kaiyuan Ge, p. 4431. 104 Tang Hui Yao, Volume 41 Degraded Officials and Exile Criminals, pp. 861–862.

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After they migrated to remote states and counties, with changes in the national political situation, and the influence of personal identity, many were released by special amnesty or recovered the former posts. In the second year of the Linde period (665 A.D.), too many people exiled to remote regions because of the case of Shangguan Yi. Jianzhou governor Xue Yuanchao “was allowed to return home by the amnesty in early Shangyuan period, and offered the official post of Zhengjian Dafu”.105 Siyu Dafu Wei Xuantong was also allowed to return home by the amnesty in the early Shangyuan period. “The Minister of Industry Liu Shenli recommended Xuantong’s talents and offered the official post of Qizhou governor. Later, he served as the assistant minister of Official Personnel Affairs after promotion several times.”106 In the second year of the Xiantian period (713 A.D.), Shangshu right prime minister Lu Zang attached to Princess Taiping. He was sentenced to long-term exile in Lingbiao. “In early Kaiyuan period, he was appointed as the minister of Qianzhou military government and the governor.”107 The abovementioned Quan Changru, official director of Fujian Salt and Iron Ministry, who was sentenced to eighty bludgeons and long-term exile in Kangzhou for accepting bribes in the fourteenth year of Yuanhe period (819 A.D.), “was recovered the official post in the amnesty later because he was a relative of Deyu, the former Minister of Education”.108 In the early period of the reign of Emperor Wuzong, the prime minister Li Yuchu served as Guiguan supervisor. In the third year of the Huichang period (843 A.D.), he was sentenced to long-term exile in Huanzhou. In the second year of the Dazhong period of Emperor Xuanzong (848 A.D.), “Cui Xuan and Bai Minzhong expelled Li Deyu, and employed him as the Ministry of Revenue.”109 In addition, many other long-term exile criminals returned to the hometown to settle down after the amnesty but never attended the official circle anymore. In June of the second year of the Xianheng period (671 A.D.), Jingcheng official Li Shanzuo conspired with Helan Minzhi and exiled Yaozhou. Later, he returned home in the amnesty and “lived on teaching”.110

105

See Footnote 75. Old Book of Tang, Volume 87 Biography of Wei Xuantong, p. 2849. 107 Old Book of Tang, Volume 94 Biography of Lu Zangyong, p. 3004. 108 Records of the Taiping Era, Volume 201 the article of “Quan Changru” quoted Gan Zhuan Zi, p. 1517. 109 Old Book of Tang, Volume 173 Biography of Li Yu, p. 4505. 110 Old Book of Tang, Volume 189 Confucianism the first half; Cao Xian Attached to Li Shan, p. 4946. 106

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4.3 Detention and Suicide Order on Exile Criminals “Ambition died in Jiangbei and white hair grew in Lingnan.”111 The conception of being attached to one’s native land and unwilling to migrate caused by Chinese farming civilization significantly influences the spirit and life of long-term exile criminals. Suffering from depression, discomfort, illness, old age and unacceptable local conditions, many long-term exile criminals were detained in the exile place for a long time or even died away from the homeland if they failed to get the amnesty in time. Long-term exile criminal Li Yifu once wrote in Recording Worshiping the Heaven in Suizhou: Degenerating into the isolated region Fulfilling labor service in the time limit Zhounan expressed regret before Qiongxi repeated the sadness now.112

The amnesty in the first year of the Qianfeng period (666 A.D.) involved everyone only except long-term exile criminals. Yifu died from disease caused by indignation.113 The Laws of Tang Dynasty stipulated that “For all the exile criminals who would be distributed, their wives and concubines should follow them, and their fathers, grandfathers, sons and grandsons willing to follow would be allowed.” The family members would be registered to local households, but “no servitude was needed”. “After the exile criminal died, the family members willing to return home within three years would be released although they were registered as a local household.”114 In order for the criminals’ wives and concubines to follow, Prisoner Official Order specifically regulated that “once the exile criminals were convicted…all their wives and concubines would not be set free”.115 According to the memorial to the throne of Zhongshu Menxia in December of the fifth year of the Dazhong period (851 A.D.), “In the future, those who were sentenced to long-term exile or abatement from death penalty to exile, their wives and concubines would be compelled to go together, and their children willing to accompany them would be allowed. If the exiled criminals died in the exile place, their wives would be released, and the local prefecture and county would not restrict them. Those who were willing to stay would also be allowed.”116 Report on the Release of Exiled Criminals’ Family Members 111

(Tang) Song Zhiwen, Annotation Collection of Song Zhiwen, Volume 3 Poetry; To Tengzhou, Tao Min and Yi Shuqiong annotated, Zhonghua Book Company, 2001, p. 556. 112 (Qing) Peng Dingqiu and others compiled, Complete Tang Poems, Volume 35, Zhonghua Book Company, 1999, p. 471. 113 See Footnote 13. 114 Comments on Laws of Tang Dynasty, Volume 3 Names “exiled criminals to be distributed”, p. 68. 115 Tianyige Museum, Institute of History, Chinese Academy of Social Sciences, Tiansheng Order Investigation Group amended, Amendment of Tiansheng Order of Ming Edition Collected in Tianyige affixed Qing Recovered Edition of Prison Official Order in Kaiyuan Period of Tang Dynasty, Article 13, p. 645. 116 Tang Hui Yao, Volume 41 Degraded Officials and Exiled Criminals, p. 865.

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Submitted by Xizhou Government to the Chancery in the Third Year of Shangyuan Period of Tang Dynasty unearthed from Astana Tomb No. 19 in Turpan (64TAM19: 48) included “the report to the Chancery and the capital, regarding the release of exile criminals’ family members”.117 It’s the evidence of the local prefecture government reporting the release of the exile criminals’ family members to the Chancery. As a result of geographical factors and economic conditions and other objective restrictions, many long-term exile criminals and their family members were detained in exile places for a long time or even stayed in distant land for a lifetime until they died. The Epitaph and Preface of Wu Fujun, Former Minister of Zongzheng Temple of Tang Dynasty collected in Tang West Market Museum, recorded that Wu Ziying, the third son of Wu Youning, the King of Jianchang of Wuzhou, was exiled in Kangzhou and his coffin was moved back home. (Previously omitted) His family members were involved for no reason and moved to Kangzhou, which is a wild region in the Ming-Yue area of tropical weather. He was infected by malaria and died from the disease in Kangzhou on July 3 of the ninth year of the Kaiyuan period. His coffin was moved from Kangzhou in August of the tenth year and temporarily buried in the plain of Longmen Township, Dongdu, in November.118 Wu Ziying previously served as a minister of Zongzheng Temple and later became a monk. “In his old age, he was pressed by the emperor’s order to return to his previous official post.” After the reign of Wuzhou collapsed, he suffered suppression and exiled to the remote region and eventually died in the exile place. The Epitaph and Preface of Dou Lufujun, Former Military Officer of Shuzhou of Tang Dynasty recently unearthed from Luoyang recorded the story of Dou Lugui, a military officer of Shuzhou of Tang Dynasty, who stayed in the exile place after long-term exile until his death: It’s another example of long-term exile criminal who stayed in the remote and wild county: At first, Dou Lugui served as an assistant to Li Xiaoyi. Later, Xiaoyi conspired against the state and was exposed and sentenced to death. Dou was framed by an obsequious person and got suspected. On September 12th of the first year of the Tianshou period, the judicial authority sentenced him to exile in Zhenzhou even though it was not his crime. On February 17 of the next year, he died in a hotel in Zhenzhou at the age of fifty-seven.119 In ancient times, “Burial in the hometown was not only the desire of dying people but also the most important thing for the descendants. The burial in the hometown’s cemetery was a yearning for happiness after death.”120 After the Rebellion of An and Shi, the imperial court issued more than ten decrees to urge local governors to 117

State Administration of Cultural Heritage, Research Center of Ancient Classics and Archives compiled, Documents Unearthed from Turpan (Volume 6), Cultural Relics Publishing House, 1985, p. 529. 118 Hu Ji and Rong Xinjiang, Epitaph Collected in Tang West Market Museum, p. 411. 119 Mao Yangguang and Yu Fuwei compiled, The Collection of Epitaphs of Tang Dynasty in Luoyang, p. 121. 120 Lu Jianrong, The History of Death Culture in the Northern Wei, Tang and Song Dynasties, Wheatfield Press, 2006, p. 124.

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assist the burial of exile criminals in the hometown. In the first year of Emperor Suzong (761 A.D.), Jianchen Decree stipulated, “For those exiled criminals who died in the exile place, their relatives were allowed to bring back to the hometown for burial. The prefecture and county should give them the coffin for distribution depending on the condition.”121 In December of the second year of the Changqing period (822 A.D.), when the crown prince was conferred the title, a decree was issued that “degraded officials and exiled criminals would be moved, and those who died would be allowed to return for burial in the homeland”.122 In the seventh year of the Xiantong period (866 A.D.), another decree was issued that “those who died would be allowed to return for burial in the homeland; for those in poverty who themselves cannot afford the burial, local governors were commissioned to provide them with coffins and support their delivery”.123 The period from Xiantian until Tianbo was an important period for the development of long-term exile in the Tang Dynasty. Long-term exile was often applied as a measure of the abatement of death penalty. At the same time, the practice of ordering exiled criminals to commit suicide on the half way was gradually formed. Some criminals were nominally sentenced to exile in remote regions, but in fact, they were executed on the half way before they arrived at the exile place. Lantian, Baqiao and some other post houses on the way to Lingbiao in the eastern suburbs of Chang’an became the preferred places to execute the death penalty.124 In July of the second year of the Xiantian period (713 A.D.), Cui Shi, attached to Princess Taiping, was dismissed and sentenced to long-term exile in Lingbiao. The official in charge reported that palace maid Yuan admitted conspiring with Shi to poison the drink. Therefore, Shi was ordered to commit suicide and hanged in the posthouse.125 In the eleventh year of the Tianbao period (752 A.D.), Wang Liang and the former Honglu Shaoqing Xingshu Zizai secretly conspired against imperial rule. His nephew Wang Gongnan “was dismissed and sentenced to long-term exile in Chenghua County, Lingnan. He was exile to Zhuya County but executed to death in the post house; his wife Xue and single daughters were exiled together”.126 In July in the autumn of the first year of the Baoying period (762 A.D.), Rangzhou governor Pei Rong “was sentenced to long-term exile in Feizhou, but ordered to commit suicide 121

Ce Fu Yuan Gui, Volume 87 Emperors; Exemption 6, p. 970. Decree and Order Collection of Tang, Volume 29 Crown Prince; Amnesty for Conferring the Title of Crown Prince; Conferring the Title of Crown Prince Deyin in the Second Year of Changqing Period, p. 106. 123 Decree and Order Collection of Tang, Volume 86 Political Affairs; Exemption 4, Amnesty in the Seventh Year of Xiantong Period, p. 489. 124 Note: Baqiao Post house was named Zishui Post house in ancient times. “Appearing in the historical documents of quite early periods, it was the only route eastward out of the capital.” There was an old post house in the east of Chang’an City, in the scope of Lantian. “The capital was only tens of Li far from Lantian, so this old post house was known as the one in Kaiyuan period.” Yan Gengwang, Study on the History of Tang Dynasty, Article 5 Investigation on the Two Capital Post houses of Tang Dynasty, New Asia Institute of Advanced Chinese Studies, 1969, pp. 289, 293. 125 Old Book of Tang, Volume 74 Biography of Cui Ren’s Teacher Sun Shi, p. 2623. 126 Old Book of Tang, Volume 105 Biography of Wang Gong, p. 3232. 122

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in Lantian Posthouse”.127 In addition, some long-term exile criminals were ordered to commit suicide when they arrived at exile places. In July of the fifth year of the Tianbao period (746 A.D.), Kuocang governor Wei Jian was framed by Li Linfu. “He was sentenced to long-term exile in Lingnan and executed there. Jian’s brothers, Jiangzuo Shaojiang Lan, Hu County magistrate Bing, assistant Ministry of War Zhi, and Nanhenan government official Liang, all exiled to remote counties. The censors were assigned to find them and order them to commit suicide. His sons were all exiled to Libiandu.128 In October of the ninth year of the Xiantong period (868 A.D.), Jiangnan Xidao supervisor official Yan Zhuan was sentenced to long-term exile in Lingnan for recruiting soldiers and collecting military supplies without permission and ordered to commit suicide in the exile place in February of the next year.129

5 Influences of Long-Term Exiles in the Tang Dynasty The long-term exile policy of the Tang Dynasty was followed in the Five Dynasties and the Song Dynasties. Criminal officials were often deprived of the ranks to be common people and expelled to wild and remote regions. Long-term exile criminals would not be exempted or released except for special amnesty. Later, in August, in the autumn of the first year of the Tiancheng period of Emperor Zhuangzong of the Late Tang period (926 A.D.), a decree was issued that “Dou Luge, Wei Shui and some other Lingzhou and Hezhou long-term exile people, after being sentenced to long-term exile, would not be exempted or released even in amnesty”.130 In November of the fourth year of the Tiancheng period (929 A.D.), secretary supervisor Yu Qiao was falsely accused by prime minister Zhao Feng. “He exiled to Zhenwu as common people and was not allowed to recover his official post forever.”131 During this period, the imperial court issued amnesty basically for a reason similar to that of the Tang Dynasty. The reign title was changed in May of the first year of the Longde period of the last emperor of the late Liang Dynasty (921 A.D.). A decree was issued that “long-term exile criminals can migrate to nearby places, and those migrated were allowed to return to the hometown”.132 In August of the fourth year of the Changxing period of Emperor Mingzong of the late Tang dynasty (933 A.D.), after the ceremony of conferring titles was ended, it stipulated 127

Old Book of Tang, Volume 11 Biography of Emperor Daizong, p. 270. Ce Fu Yuan Gui, Volume 925 General Record; Condemnation, p. 10732. 129 Decree and Order Collection of Tang, Volume 127 Political Affairs; Death Penalty the Second Half; the Decree Ordering Yan Zhuan to Commit Suicide, p. 685. 130 The Old History of the Five Dynasties, Volume 37, Book of Tang XIII; Biography of Emperor Mingzong III, p. 507. 131 7 The Old History of the Five Dynasties, Volume 40 Book of Tang XVI; Biography of Emperor Mingzong VI, p. 555. 132 The Old History of the Five Dynasties, Volume 10 Book of Liang X; Biography of the Last Emperor the Second Half , p. 148. 128

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that “For long-term exile criminals and other exile criminals, regardless of the term and distance, those who arrived at the exile places would be released. Those who hid in mountain areas and escaped from being involved in any case would be released to return to their hometown regardless of any condition”.133 In the reign of Emperor Yuanzong of the Southern Tang dynasty, Jia Chong left the rampart to collapse. “He was sentenced to long-term exile in Fuzhou for disobeying the emperor’s order.”134 In judicial practice, the old system of releasing long-term exile criminals by amnesty was still implemented to some extent in the Five Dynasties. For example, in the Tiancheng period, Liu Zan, the secretary supervisor and King of Qing’s teacher, was convicted for King of Qing and sentenced to longterm exile in Lanzhou. “In the second year of the Qingtai period, he was allowed to return to hometown by the decree but died from the disease when he passed by Shihuiguan.”135 The judicial practice of ordering long-term exile criminals to commit suicide formed in the Kaiyuan period of the Tang Dynasty was followed in the Five dynasties. In August of the third year of the Tongguang period of Emperor Zhuangzong of the late Tang Dynasty (925 A.D.), Luo Guan, the magistrate of Henan County, did not repair the bridges and roads in his jurisdiction. “He was sentenced to long-term exile in Yazhou and flogged and executed by Henan government”.136 In July of the autumn of the third year of the Tiancheng period of Emperor Mingzong (928 A.D.), Caozhou governor Cheng Jinghong accepted the bribery of the local officials. He was degraded to be a minor military officer. “The subsequent decree sentenced him to long-term exile in Youzhou and ordered him to commit suicide on halfway”.137 In December of the fourth year of the Guangshun period of the late Zhou Dynasty (954 A.D.), Wang Yin, Xin Wei, the guard commander of Yedu, was deprived of the official post, “and was sentenced to long-term exile in Dengzhou, and he was ordered to commit suicide in the northern suburb”.138 In the Song dynasty, Prison Official Order was followed, and at the same time, the function of long-term exile as the exchanged penalty was paid special attention. Criminals sentenced to long-term exile were mostly exempted or mitigated from the original penalties. Long-term exile was widely applied as a measurement of the abatement of the death penalty. In the second year of the Xianping period of Emperor Zhenzong (999 A.D.), Fu Qian, the officer of the third camp of Gaoyangguan, Zhending, was deprived of the official post as the abatement of the death penalty 133

Ce Fu Yuan Gui, Volume 87 Emperors; Exemption XII, p. 1025. (Song) Zheng Wenbao, Anecdote of the Southern Tang Dynasty, Notes Novels of the Song and Yuan Dynasty, Shanghai Ancient Books Publishing House, 2001, p. 270. 135 (Song) Ouyang Xiu, The New History of the Five Dynasties, Volume 28 Ministers of Tang XVI; Biography of Liu Zan, (Song) Xu Wudang annotated, Zhonghua Book Company 1974, p. 317. 136 The Old History of the Five Dynasties, Volume 33 Book of Tang IX; Biography of Emperor Zhuangzong VII, p. 454. 137 The Old History of the Five Dynasties, Volume 39 Book of Tang XV; Biography of Emperor Mingzong V, p. 540. 138 The Old History of the Five Dynasties, Volume 113 Book of Tang IV; Biography of Emperor Taizu IV, p. 1500. 134

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for hindering military operations, “and was sentenced to long-term exile in Fangzhou together with his family members”.139 In October of the seventh year of Dazhong Xiangfu (1014 A.D.), imperial minister Tong Jingzhuan accepted bribery. “He was deprived of the rank and sentenced to long-term exile in Chenzhou and not allowed to serve in any official post.”140 In the late period of Emperor Huizong, Liu Bingzuo, Minister of Revenue and Population, conspired with Wang Cai. “Yin Shengzhang of Kaifeng suggested death penalty, but Lu Zhixu, Minister of Punishments, appealed to a favor for him, so he was sentenced to long-term exile in Qiongzhou.”141 In August of the first year of the Jianyan period (1127 A.D.), Chaosan Dafu Hong Zou and the other two persons were convicted of accepting bribes. “He was sentenced to long-term exile on Shamen Island as the abatement of the death penalty.”142 In the Song and Liao dynasties, long-term exile gradually included the implications of military garrison. History of Liao recorded that Yelv Niaolv, a messenger of Yongxing Palace, was sentenced to “long-term exile in boundary regions for military garrison” as the abatement of the death penalty in the Chongxi period of the reign of Emperor Xingzong.143 Long-term exile was an extra feudal punishment in nature, at the grade just between exile and death penalty, playing an important function of the abatement from the death penalty. Shen Jiaben, a scholar in the Qing dynasty, once investigated the evolution of exile, deportation (to a distant place for penal servitude) and other penalties since the Tang and Song Dynasties: The system of the Five dynasties was followed in the Song Dynasty. In addition to exile with servitude, those who committed serious crimes would be deported to a distant place for penal servitude. From then on, the penalty was divided into exile and deportation. In the system of the Yuan Dynasty, some theft criminals who deserved exiled were sentenced to deportation… The system of the Ming Dynasty more or less followed that of the Yuan Dynasty, imitating the deportation system with some amendments.144 Exiles with servitude and deportation for army servitude were both abatements from the death penalty and were not included in the formal penalties according to the law. Compared with long exiles, the connotations and applications were more complicated. The exile for penal servitude of the Song dynasties originated from the exile of Tang and Five dynasties, mostly with face branding and bludgeon flogging. The exile for penal servitude was divided into army servitude and labor servitude, and the penalty term was not constant. The exile areas included more than ten grades, such 139

The History of Song, Volume 279 Biography of Fu Qian, p. 9474. Supplement of Zi Zhi Tong Jian, Volume 83 “In October, the seventh year of Dazhong Xiangfu of Emperor Zhenzong”, p. 1898. 141 The History of Song, Volume 356 Biography of Liu Bing, p. 11207. 142 Annual Records since Jianyan Period, Volume 8 “in August, the first year of Jianyan period”, p. 195. 143 The History of Liao, Volume 86 Biography of Yelv Niaolv, p. 1324. 144 (Qing) Shen Jiaben, Criminal Laws of the Past Dynasties; on Deportation for Army Servitude First Half , p. 1272. 140

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as Shamen Island, Yuan’ezhou Army, Guangnan, Lingzhou, and Benzhou prison. Deportation for penal army servitude originated in the Song and Yuan Dynasties and became a regular penalty in the Ming and Qing dynasties.145 The penalty terms were divided into lifelong and permanent. Exile regions included extremely faraway, desolate, boundary, boundary guard, coastal and nearby, collectively known as the “five armies”. The laws on exile with servitude and deportation for army servitude gradually improved in later generations, and long-term exile gradually declined in the Song and Yuan dynasties. In short, the evolution and application of the long-term exile penalty in the Tang Dynasty improved the traditional “Three Exile” system and promoted the development of the system of abatement from the death penalty to other penalties. In a certain sense, it was the historical origin of a similar punishment system such as exile with servitude and deportation for army servitude in the Song, Yuan, Ming and Qing Dynasties.

6 Summary Compared with “regular exile”, “long-term exile” was not restricted by the distance stipulated in the law, and the penalty term was unpredictable, implying no return for lifetime and even not forgiven by amnesty. The abovementioned points, not recorded in any legal document, were only customary practices of the lawsuit in nature. In judicial practice, to suppress family power or bureaucratic collusion, according to the principle of security punishment, the convention of long-term exile on the criminal’s relatives or relocation of the criminal’s colleagues in other places was formed. It’s to cut off the contact of interest groups relying on the natural barriers of geographical isolation, for the penalty purpose of both prevention and punishment. Long-term exile in the Tang Dynasty implied “not intending to execute death penalties so expelling to remote places”. As an abatement grade from the death penalty, the specific execution followed strict procedures and mostly customs in judicial practice, including basic phases of dismissing, expelling and resettlement, and the process also involved flogging punishment, food supply and other problems. Since the reign of Emperor Gaozong, the decrees and edicts of the Tang Dynasty often contained the meaning of exempting long-term exile criminals. These decrees contained universal significance, so they became the direct basis for migration or exemption of long-term exile criminals. The judicial practice that long-term exile criminals would not return home for life was gradually abandoned. In the late Tang dynasty, many restrictions on long-term exile criminals were further relaxed, and the government-funded migration and employment of long-term exile criminals were 145

Note: Regular punishment was regular law and regular code, referring to the regular criminal punishment system. This viewpoint originated in early ancient times. Zhou Li and Xiao Zai recorded “regular punishment of the state” [Annotation of Zhou Li, Volume 3 Tianguan; Xiao Zai, p. 76]. Ji Gong Zhi Gu Min recently recorded in Tsinghua Bamboo Slips unearthed: “Only the Zhou dynasty contained punishment.” Li Xueqin, Warring States Bamboo Slips Collected at Tsinghua University (1), Shanghai Literature and Art Publishing Co., Ltd. 2010, p. 175.

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put on the agenda. The reign of Emperor Xuanzong was an important period for the development of long-term exile in the Tang Dynasty. Long-term exile was often applied as a measure of the abatement of the death penalty. At the same time, the practice of ordering the exile criminal to commit suicide on the half way was gradually formed. Some criminals were nominally sentenced to exile in remote regions, but in fact, they were executed on the half way before they arrived at the exile place. Lantian, Baqiao and some other post houses on the way to Lingbiao in the eastern suburbs of Chang’an became the preferred places to execute the death penalty. The long-term exile policy of the Tang Dynasty was followed in the Five Dynasties and the Song Dynasties. Criminal officials were often deprived of the ranks to be common people and expelled to wild and remote regions. Long-term exile criminals would not be exempted or released except for special amnesty. The judicial practice of ordering long-term exile criminals to commit suicide formed in the Kaiyuan period of the Tang Dynasty was followed in the Five dynasties. The evolution and application of the long-term exile penalty in the Tang Dynasty improved the traditional “Three Exile” system and promoted the development of the system of abatement from the death penalty to other penalties. In a certain sense, it was the historical origin of similar punishment systems such as exile with servitude and deportation for army servitude in the Song, Yuan, Ming and Qing dynasties.

Chapter 18

Commit Suicide by Imperial Order

Commit suicide by imperial order was an execution method applied for bureaucrats and aristocrats in feudal society. Compared with hanging and beheading execution methods, committing suicide by imperial order in the Tang Dynasty contained complicated rules and contents, followed strict execution procedures, covered numerous crimes, and was closely related to many political events. The systems of the execution time limit, rechecking death penalty, and degrading and exile stipulated in the laws and decrees were flexible in the specific implementation. Academic circles have been discussing the death penalty in the Tang Dynasty for a long time and have achieved some important results. However, no one has conducted a special study on suicide commitment by imperial order so far. In the face of numerous complicated cases of committing suicide by imperial order in the Tang Dynasty, the following questions still need to be explained: First, was there any justice system for committing suicide by imperial order or was it totally decided by the emperors? Secondly, what about the execution procedures? Third, what were the characteristics compared with hanging and beheading? Therefore, it is necessary to investigate the rules for committing suicide by imperial order in the Tang Dynasty from the perspective of empirical evidence by extensively consulting historical materials and conducting analogical analysis to objectively recognize the historical process of the practice of ancient punishment.

1 Introduction Since ancient times, the regular death penalty has always been executed publicly. In the Shang and Zhou Dynasties, death penalties were collectively referred to as “capital punishment”. The execution must be implemented publicly in the market. “Anyone who committed homicide would be executed in the market, with the corpse exposed to the open air for three days. The execution of thieves and robbers was also

© Science Press 2021 X. Chen, A Study of Criminal Proceeding Conventions in Tang Dynasty, https://doi.org/10.1007/978-981-16-3041-5_18

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in the market.”1 In the Qin and Han Dynasties, the death penalties were generally referred to as “exposing the executed body publicly”. “The execution of death penalty in the market was called exposing the executed body publicly; the market was where many people gathered together, so it meant they were discarded by all the people.”2 The statutory death penalties stipulated in the laws of both Sui and Tang dynasties included hanging and beheading. “All capital punishments would be executed publicly in the market.”3 The public execution system of the death penalty in the Tang Dynasty was in line with that in ancient times and the Qin and Han dynasties. It implied three social purposes, namely, to expose evil crime, to demonstrate punishment, and to assist education. “Royal family members were executed in private places, so as to show the relative attachment; high officials were exempt from the penalties, so as to show the nobility.”4 In Shang and Zhou dynasties, the patriarchal hierarchy with the spirit of “being harmonious with family members and respectful to noble grades” was gradually established. The kinship relationship and identity differences became the decisive factors in the execution of punishment. In the Western Zhou dynasty, the principle of “eight capital punishments” exclusively applicable to officials and aristocrats was established.5 Dafu and aristocrats at higher ranks “who committed crimes would be judged by the emperor (with mitigated punishment) rather than the penalty law codes”.6 The aristocratic class who committed crimes punishable by death would be sentenced to mitigated punishments according to the law. Even if they would be sentenced to death, they enjoyed the preferential treatment of secret execution. As Zhou Li recorded, “Anyone with the rank of nobility or kinship with the emperor would be preferentially treated, waiting to be executed.”7 In contrast, suicide can best preserve the decency and dignity of the nobility. Away from common people’s witness, it’s completely different from being executed by officials.8 Thus, committing suicide by imperial order gradually became an important measure for the emperors to mitigate the death penalty and made direct influences on the execution of the death penalty in Qin, Han and later Dynasties. The system of commit suicide by imperial order was improved in the Tang Dynasty under the guidance of the principle of respecting ancient rites and advocating costume neatness. According to Prison Official Order in Kaiyuan period, “Any official higher than the fifth rank who committed premeditated assault and murder of elder kin or more serious crime would be ordered to commit suicide at home.”9 It’s the basic rule for commit suicide by imperial order 1

Annotation of Zhou Li, Volume 36 Punishment Officials; Executioner, p. 1127. Interpretation of Names, Volume 8 Interpretation of Funeral System, p. 131. 3 Tang Liu Dian, Volume 6 “Langzhong Yuanwailang of the Ministry of Punishments”, p. 189. 4 Old Book of Tang, Volume 85 Biography of Tang Lin, pp. 2812–2813. 5 Annotation of Zhou Li, Volume 35 Punishment Officials; Xiao Sikou, p. 1073. 6 The Book of Rites; Zhengyi, Volume 3, Qu Li first half, pp. 91–92. 7 Annotation of Zhou Li, Volume 36 Punishment Officials; Zhangqiu, p. 1125. 8 Qu Tongzu, Chinese Law and Chinese Society, Zhonghua Book Company, 1981, p. 206. 9 Tianyige Museum, Institute of History, Chinese Academy of Social Sciences, Tiansheng Order Investigation Group amended, Amendment of Tiansheng Order of Ming Edition Collected in Tianyige 2

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in Tang Dynasty. In the twenty-seventh year of the Kaiyuan period (739 A.D.), Tang Liu Dian standardized the execution system of the death penalty in the Tang Dynasty based on it: All capital punishments should be executed publicly in the market. Any official higher than the fifth rank who committed premeditated assault and murder of elder kin or more serious crime would be ordered to commit suicide at home. Any official higher than the seventh rank, royal family members and women not applicable for beheading would be hanged in concealed places (original note: In ancient times, all capital punishments were executed publicly in the market. Since the reign of our emperor, punishments did not exist, but the law was still retained. For all the criminals sentenced to capital punishment, those higher than the fifth official rank in the capital would be executed by Da Li supervisor; those not in the capital would be executed by Shang Zuo supervisor; all the others would be executed by the judge supervisor, and some in the capital were also executed by Yu Shi and Jin Wu supervisor. If any criminal claimed unfair grievance or wrong conviction, the execution would be stopped, and the case would be reported to the emperor for approval).10 In September of the first year of the Huichang period of Emperor Wuzong (841 A.D.), proposed by Minister of Treasury Department and edict drafter He Ganquan and some others, officials higher than the fifth rank who accepted bribery were clearly included in the scope of commit suicide by imperial order, “The application of commit suicide by imperial order at home for any official higher than the fifth rank who accepted bribery sentenced to death would be enacted as a fixed article of law”.11 However, in terms of law documents, we can only learn the general stipulations on the official ranks and places of commit suicide by imperial order in the Tang Dynasty. From the perspective of judicial practice, we can clarify the main contents, execution procedures, crimes involved and other important points related to the rules of committing suicide in imperial order based on historical documents and epitaph materials.

2 Execution Procedures of Commit Suicide by Imperial Order in the Tang Dynasty 2.1 Issuing the Edict Issuing the edict was the first step of committing suicide in imperial order. Edict issuance followed strict procedures in the Tang Dynasty. The general processes included drafting by Zhongshu Department, signing by the emperor, sealing by affixed Qing Recovered Edition of Prison Official Order in Kaiyuan Period of Tang Dynasty, Article 9, p. 644. 10 See Footnote 3. 11 Tang Hui Yao, Volume 39 Ding Ge Ling, p. 825.

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Menxia Department, and implementation by the related authority. The edict of commit suicide by imperial order strictly followed the abovementioned procedures. In April of the third year of the Chuigong period (687 A.D.), someone accused that Fengge minister Liu Yizhi accepted bribery of Guizhou governor Sun Wanrong, and he had a secret affair with Xu Jingzong’s concubine. Empress Zetian ordered Suzhou official Wang Benli to handle this issue. “When Benli showed Yizhi the edict, Yizhi asked: ‘how did the edict get valid without permission of Fengge Luantai?’”12 What Yizhi meant was the “formal decree” permitted by Zhongshu and Menxia departments. All the edicts issued in the Tang Dynasty “remained copies in Zhongshu Department for inspection, which was called formally issued edicts”.13 However, according to Tang Liu Dian, “Any special edict or order beyond the law allowed the difference of death penalty, exile, imprisonment, bludgeon, depriving and dismissing.”14 In July of the first year of the Yongchun period (682 A.D.), Empress Zetian ordered Cao Wangming to commit suicide. Qianzhou governor Xie You executed depending on only an oral imperial instruction “with no other edict”.15 The illegal execution was criticized at that time. Moreover, issuing the edict of commit suicide by imperial order should be a prerequisite for the execution of the criminal. It is not allowed to supplement the procedure afterwards. In July of the first year of the Jianzhong period (780 A.D.), Zhongzhou governor Liu Yan was ordered to commit suicide. “The decree of commit suicide by imperial order was issued to expose his crime nineteen days later. His family members exiled Lingbiao, and dozens of people were involved. Everyone thought unjust.” Liu Yan was falsely accused of death by Yang Yan and Yu Zhun, and “he was executed before the edict was issued, so everyone was astonished and regretful”.16 However, cases of suicide committed by imperial order only with oral imperial instruction still existed in the history of the late Tang dynasty. According to the Continued Baoyuan Record quoted in Supplement to Zi Zhi Tong Jian, in the first year of the Guangming period (880 A.D.), the left Shiyi Hou Changye submitted radical proposals. Emperor Xizong appointed Liu Jiyuan to announce the oral edict: Hou Changye was born in a poor family and lived in isolation, but he could not be prudent and proposed arrogant discussion to falsely accuse the emperor and ministers. It’s not allowed by the law! Hou Changye should be ordered to commit suicide.17

12

Old Book of Tang, Volume 87 Biography of Liu Yizhi, p. 2848. Zi Zhi Tong Jian, Volume 221 “April of the second year of Qianyuan period of Emperor Suzong” annotated by Hu Sanxing, p. 7074. 14 Tang Liu Dian, Volume 6 Langzhong Yuanwailang of the Ministry of Punishments, p. 188. 15 Chaoye Qianzai, Volume 2, p. 35. 16 New Book of Tang, Volume 149 Biography of Liu Yan, p. 4797. 17 (Song) Sima Guang, Supplement to the Zi Zhi Tong Jian, Volume 2 “Hou Changye was ordered to commit suicide for submitting radical proposal to the emperor in January of the first year of Guangming period”, The Commercial Press, 1937 (four-volume series). 13

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Ordering to commit suicide by oral edict was a temporary punishment measure not subject to the approval of Zhongshu and Menxia departments, and there was no record to inspect afterwards. The execution rules of the death penalty, such as rechecking the death penalty and execution in autumn and winter, were abolished. “Commit suicide by imperial order” was the official title in the decrees of the Tang Dynasty. It was recorded in the Old Book of Tang, New Book of Tang, Zi Zhi Tong Jian, Decree and Order Collection of Tang and Ce Fu Yuan Gui. The edicts of commit suicide by imperial order listed the crimes of the criminals, and at the same time, it also contained the special meaning that the emperor took into consideration the privilege of high-rank officials and aristocrats. According to the Word and Expression, “The expression means it’s a kind of favor.”18 Compared with regular death penalties, the subtlety of commit suicide by imperial order lies in “favor” rather than “death penalty”. In the first lunar month of the fourth year of the Dali period (769 A.D.), the decree for the execution of Yingzhou governor Li Hu claimed that the law could give special favor to someone, “by ordering to commit suicide in decent etiquette instead of the cruel beheading penalty.”19 In the following year, military commander Liu Xixian was ordered to commit suicide. The edict also said, “It’s allowed to remain his body complete by decent etiquette, and order him to commit suicide by special favor.”20 The “decent etiquette” repeatedly mentioned in the decrees of the Tang Dynasty referred to the ancient etiquette for the criminal officials to commit suicide. According to Han scholar Jia Yi’s description, committing suicide by imperial order in the ancient system followed solemn procedures. The person of suicide “would wear a white hat with a tassel, prepare a basin of water and a sword, admit the crime and ask for punishment in the room; and the emperor sent messengers to supervise the suicide”. “White hat with tassel” refers to “the tassel made of fur and the white hat as mourning costume”; as for “a basin of water and a sword”, according to the Book of Han, quoting Ru Chun’s words: “Water meant the fairness in the nature. The emperor convicted the crime according to fair law. The sword was suicide. Or someone said it indicated the basin of water to hold the blood from the neck like that in the slaughter of livestock”.21 The “room” refers to the room where to ask for punishment.22 The procedures of committing suicide by imperial order in the Tang Dynasty were formed depending on the losses and increases based on the inheritance of the ancient etiquette spirit, combined with the law system at that time.

18

Annotation of Word and Expression, Volume 6, the second half, p. 280. Ce Fu Yuan Gui, Volume 152 Emperors; Punishment, p. 1704. 20 Decree and Order Collection of Tang, Volume 126 Political Affairs; Death Penalty, the System of Order to Commit Suicide of Liu Xixian, p. 681. 21 (Han) Jia Yi, The New Book, Volume 2 Class, Zhen Zhenyi, Zhong Xia amended and annotated, Zhonghua Book Company, 2000, pp. 81–82. 22 Book of Han, Volume 48 Biography of Jia Yi, p. 2259. 19

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2.2 Announcing the Edict and Monitoring the Execution The legislators of the Tang Dynasty established the censorship system of the imperial censor based on the original intention of cautious punishment. According to the law, the imperial censor announced the edict of commit suicide by imperial order and at the same time fulfilled the duties of monitoring the execution. “If any criminal claimed injustice, the execution would be stopped and submitted to the emperor for approval.”23 In April of the summer of the first year of the Zhenguan period (627 A.D.), Wang Youliang of Changle County secretly adopted many warriors and conspired with foreign powers for rebellion. Emperor Taizong appointed Zhongshuling Yuwen Shiji to handle this case on behalf of the governor and later appointed “the imperial censor Sun Fujia for censorship. No objection was received, so they ordered the criminal to commit suicide”.24 This is the first recorded case of imperial censor ordering to commit suicide and censor execution in the Tang Dynasty. In a long period afterwards, this system was implemented and inherited to a considerable extent. It is worth noting that the imperial censor only announced the edict and monitored the execution but did not shoulder the responsibility of reversing injustice. In essence, the censor was only the mouthpiece of the emperor. When they announced the edict of order to commit suicide, they were not authorized to reverse injustice. Due to the direct intervention of imperial power, the actual effectiveness of judicial censorship was greatly hindered. In September of the first year of the Yongchang period (689 A.D.), Zhou Xing falsely accused that Wei Xuantong said the empress was too old and should recover the emperor’s heir, so Wei was ordered to commit suicide. The imperial censor Fang Ji knew the injustice of Xuantong, so he persuaded him to appeal. “He appealed to the emperor and exonerated himself from the charge.”25 In the first lunar month of the spring of the sixth year of the Tianbao period (747 A.D.), Li Linfu falsely accused that Wei Jian privately visited the crown prince to conspire guilty intention. Wei Jian was sentenced to long-term exile in Lingnan. “Jian’s brothers, Jiangzuo Shaojiang Lan, Hu County magistrate Bing, vice director of the ministry of war Zhi, and South Henan government official Liang, were all exiled to remote counties. The censors were assigned to find them and order them to commit suicide.”26 In the Tianyou period of Emperor Aidi, Zhu Quanzhong thought some high-rank officials of the old dynasty still serving in the court would conspire rebellion, so he removed the assistant officials first and degraded others all to the lower ranks.27 The system of imperial censors completely 23

Tianyige Museum, Institute of History, Chinese Academy of Social Sciences, Tiansheng Order Investigation Group amended, Amendment of Tiansheng Order of Ming Edition Collected in Tianyige affixed Qing Recovered Edition of Prison Official Order in Kaiyuan Period of Tang Dynasty, Article 10, p. 644. 24 New Book of Tang, Volume 78 Imperial Family; Biography of Wang Youliang of Changle County, p. 3521. 25 New Book of Tang, Volume 117 Biography of Wei Xuantong, p. 4254. 26 Ce Fu Yuan Gui, Volume 925 General Records; Condemnation, p. 10,732. 27 Bei Meng Suo Yan, Volume 15 “plot to murder officials”, p. 297.

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became a mere formality. In June of the second year of the Tianyou period (905 A.D.), Longzhou official Pei Shu and others “authorized the imperial censor to send messengers to commit suicide by imperial order in the local counties separately”.28 In December of the same year, another edict dismissed Beihai commandant Pei Jian, Linzi commandant Wen Luan and Bochang commandant Zhang Maoshu and authorized the imperial censor to commit suicide by imperial order in local areas.29 After the mid-Tang dynasty, emperors gradually strengthened the control over the power of judging the death penalty. The cases of the messengers from the palace announcing the edict of commit suicide by imperial order occurred frequently. In the reign of Emperor Dezong, the authority of the eunuch was increasing. “They had the power to decide every great event depending on their own will.”30 In the first year of the Jianzhong period (780 A.D.), Liu Yan was ordered to commit suicide. Emperor Dezong “sent messengers from the palace secretly to hang him in Zhongzhou”. This is the first case of sending an eunuch to announce the edict of commit suicide in imperial order in the Tang Dynasty. Since then, many cases of messengers from the palace announcing the edict of ordering ministers to commit suicide have been recorded in historical documents. In May of the sixth year of the Yuanhe period (811 A.D.), army provision managers Yu Gaomu and Dong Xi accepted bribery, and the edict ordered them to commit suicide. Gaomu exiled Chunzhou, and Xi exiled Fengzhou. “When they passed by Tanzhou, messengers from the palace were sent to order them to commit suicide.”31 In October of the ninth year of the Dahe period (835 A.D.), Emperor Wenzong found military officer Wang Shoucheng conspired against royal mausoleums, so “appointed messenger Li Haogu to give him poison to commit suicide”.32 In February of the tenth year of the Xiantong period (869 A.D.), the Duanzhou military governor Yang Shou exiled Huanzhou. Emperor Yizong appointed “eunuch from the palace Guo Quanmu to announce the order to commit suicide in his exile place”.33 The eunuch from the inner palace had no responsibility to reverse any injustice. They just obeyed the order to announce the edict of commit suicide in imperial order.

2.3 The Ways of Execution Commit suicide by imperial order was the final courtesy the feudal emperors granted the ministers. After the censor or eunuch announced the imperial edict of order to 28

Old Book of Tang, Volume 20 the second half, Biography of Emperor Aidi, p. 796. Old Book of Tang, Volume 20 the second half, Biography of Emperor Aidi, p. 805. 30 Old Book of Tang, Volume 184 Biographies of Eunuchs, p. 4754. 31 Ce Fu Yuan Gui, Volume 511 State Planning; Corruption, p. 5811. 32 Zi Zhi Tong Jian, Volume 245 “October of the ninth year of Dahe period of Emperor Wenzong”, p. 7909. 33 Decree and Order Collection of Tang, Volume 127 Political Affairs; Death Penalty the second half; Order to Commit Suicide of Yang Shou, p. 685. 29

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commit suicide, the criminal should show gratitude to the emperor for the mercy and favor. It is one of the necessary procedures for committing suicide in imperial order. According to the Epigraph of Censor Minister Wang, when Wang Gong was ordered to commit suicide, “he followed decent etiquette, and worshiped towards the north before suicide”.34 In August of the first year of the Xingyuan period (784 A.D.), Li Xilie sent eunuch and Jingzhen to murder Yan Zhenqing, falsely claiming the imperial edict of ordering him to commit suicide. “Zhenqing made the courtesy salute twice”,35 blaming his own fault deserving the death penalty. In combination with the provisions of the law and judicial practice, in the execution of the high-rank officials and aristocrats of the Tang Dynasty, the criminal had the right to commit suicide. Comments on Laws of Tang Dynasty stipulated that “Those wrongly sentenced the criminals deserving suicide to hanging or beheading, or wrongly sentenced the criminals deserving hanging or beheading to suicide would be sentenced to one-year imprisonment.”36 In practice, the common ways of suicide included hanging oneself and taking poison. In November of the sixth year of the Tianbao period (747 A.D.), Li Linfu falsely accused imperial minister Yang Shenjin of intending to recover the Sui dynasty and arrogant remarks. Shenjin brothers were all ordered to commit suicide. Shenming “hanged himself”, and Shenyu “hanged himself, clasping hands towards the sky”.37 In March of the third year of the Guangqi period (887 A.D.), the crown prince’s teacher Xiao Gou was deceived by Zhu Mei’s false edict, “and ordered to commit suicide in Yongle County”.38 Bei Meng Suo Yan described the details of Xiao Gou’s suicide by taking poison: Minister Xiao Gou received the poison in the river. He held it in hand, begging to degrade depending on the emperor’s past favor. He waited for a long time until the poison corroded his hand. He drank all the poison and died.39 However, according to the statistical analysis of more than one hundred cases of committing suicide by imperial order in the Tang Dynasty, most were not by the way of the suicide of the criminals but by the execution of the messengers or judicial authorities. The specific measures included hanging, flogging with bludgeon and beheading. In June of the fifteenth year of the Tianbao period (756 A.D.), Emperor Xuanzong visited Shu, when the guards stopped at Mawei Posthouse. He ordered Concubine Yang to commit suicide. Zi Zhi Tong Jian recorded that “The emperor ordered Gao Lishi to hang the concubine in a temple.”40 34 Wen Yuan Ying Hua, Volume 942 Record IIX; Officials IV; Epigraph of Censor Minister Wang, p. 4954. 35 Zi Zhi Tong Jian, Volume 245 “October of the ninth year of Dahe period of Emperor Wenzong”, p. 7443. 36 Comments on Laws of Tang Dynasty, Volume 30 Judgment “sentence the crime deserving beheading to hanging”, pp. 573–574. 37 Old Book of Tang, Volume 105 Biography Yang Shenjin, p. 3228. 38 Old Book of Tang, Volume 19 the second half, Biography of Emperor Xizong, p. 727. 39 Bei Meng Suo Yan, Volume 6 “Pei Zheng Crowned Xiangwang”, p. 130. 40 Zi Zhi Tong Jian, Volume 218 the article of “June of the first year of Yuanzai period of Emperor Suzong”, p. 6974.

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In October of the fourth year of the Jianzhong period (783 A.D.), Lu Qi falsely accused minister Cui Ning of collusion with and Zhu Ci. The Old Book of Tang Biography of Emperor Dezong recorded that “Cui Ning was ordered to commit suicide.”41 However, “Messengers led Ning to the back the curtain, and two soldiers strangled him from the back.”42 In October of the thirteenth year of the Yuanhe period (818 A.D.), Wufang official Yang Chaowen recklessly arrested others asking for interest, and it involved nearly one thousand people. Minister Xiao Fu accused him, and Chaowen was ordered to commit suicide. “Consequently, he was flogged to death with a bludgeon. All the involved people were released the same day.”43 In May of the third year of the Qianning period (896 A.D.), Wuzhou governor Cui Zhaowei was ordered to commit suicide. “When Zhaowei passed by Jingnan, the messenger from the court arrived and beheaded him.”44 In the reign of Emperor Xuanzong, the system of order to commit suicide became more stringent, and for the first time it’s stipulated to pick up the criminal’s Adam’s apple to report the completion of mission.45 This system was proposed by Luyan, prime minister of Emperor Xizong, stipulating that “for any official higher than rank three who was sentenced to death, it’s necessary to pick up Adam’s apple to prove the death”.46 Lu Yan himself also suffered this torture in the first lunar month of the first year of the Qianfu period (874 A.D.).47 In the execution of imperial orders to commit suicide, many criminals suffered humiliation. The original intention of the legislation to offer gentry preferential treatment was lost. In March of the twelfth year of the Dalai period (777 A.D.), minister Yuan Zai was ordered to commit suicide in Wannian County. Zai requested the executor, “I’d like to die as soon as possible!” The executor replied: “Sorry, you have to suffer some insults!’, and then took off dirty socks and put them into his mouth and suffocated him.”48 In June of the second year of the Tianyou period (905 A.D.), Zhu Quanzhong conspired to usurp the throne. Pei Shu and Dugu Sun were ordered to commit suicide in Baima Post House. The chief plotter Li Zhen failed to pass the imperial exam many years and complained about the court. He told Zhu Quanzhong: “You are like a clear stream, but now you should jump into

41

Old Book of Tang, Volume 12 Biography of Emperor Dezong, p. 337. Old Book of Tang, Volume 117 Biography of Cui Ning, p. 3402. 43 Tang Hui Yao, Volume 52 Zhong Jian, pp. 1066–1067. 44 Old Book of Tang, Volume 179 Biography of Cui Zhaowei, p. 4655. 45 In Dazhong period, Jingzhaofu officer Lu Chen argued with left Buque Cui Xuan. He was imprisoned, and his comments ignored the emperor’s majesty. Chen was deprived of official rank to be common people, and exiled in Lingbiao. “When Chen passed by Changlepo, he was ordered to commit suicide. The messenger returned to meet Xuan, showed the succumb saying: ‘Buque, this is Lu Chen’s succumb.’” Records of the Taiping Era, Volume 499 the article of “Cui Xuan” quoted Yu Quan Zi, p. 4091. 46 New Book of Tang, Volume 184 Biography of Lu Yan, p. 5397. 47 Zi Zhi Tong Jian, Volume 252 “in the January of the first year of Qianfu period of Emperor Xizong”, p. 8169. 48 Zi Zhi Tong Jian, Volume 225 “in March of the twelfth year of Daizong period”, p. 7242. 42

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the Yellow River to mix with the muddy water forever.”49 Quanzhong laughed and followed his word. It is occasional for Yuan Zai, who was suffocated by dirty socks in the mouth, Pei Shu and others who were thrown into the Yellow River. This reflected the insurmountable identity gap between the nobility and humble officials, soldiers and civilians in the Tang Dynasty.

3 Essential Elements of Commit Suicide by Imperial Order 3.1 The Place for Committing Suicide According to the law, committing suicide by imperial order should be executed in a private residence, but in historical documents, only six criminals committed suicide at home in the Tang Dynasty (Han Wang Yuanchang, Liu Yizhi, Wei Xuantong, Han Damin, Princess Taiping and Du Shiren). Hundreds of other cases of committing suicide by imperial order were mostly not executed at home in accordance with the law. Some criminals involved were imprisoned for their crimes, so the edict of order to commit suicide was executed in prison directly. In the second year of the Wude period (619 A.D.), Liu Wuzhou was trapped in Taiyuan, and Dushuijian Zhao Wenke abandoned the city and fled. “He was ordered to commit suicide in prison.”50 In November of the third year of the Dahe period (829 A.D.), Shu Yuanyu falsely accused former Bozhou governor Li Fan of arresting thieves without authorization and killing the innocent. The decree “ordered him to commit suicide in the capital government office”. In judicial practice, cases of suicide commitment in the imperial palace were more common. Compared with execution at home or in prison, such cases often deleted substantial trial processes, and all the dignity of the law and courtesy for nobility were almost lost.51 In the eleventh year of the Tianbao period (752 A.D.), censor minister Wang Gong was accused for his brother Han conspired with Xing Zai against imperial rule. “He was ordered to commit suicide in the kitchen.”52 In the first lunar month of the third year of the Tianfu period (903 A.D.), Cui Ying and Zhu Quanzhong killed the officials in the imperial palace. “All seven hundred officials were ordered to commit suicide in the Imperial Office Bureau.”53 In addition, the exile place was also one of the common places to order criminals to commit suicide in the Tang Dynasty. The exiled imperial family members and officials were 49

See Footnote 27. Note: Lu Yang believes that “Baima Post House Incident itself was an important political step for Zhu Wen to overthrow Tang Dynasty, but it also revealed the conflict of power and concept caused by the political culture atmosphere in the imperial court since the mid and late Tang dynasty.” Lu Yang, Clear-Stream Culture and Tang Empire, Peking University Press, 2016, p. 216. 50 Old Book of Tang, Volume 57 Biography of Liu Wenjing with Zhao Wenxuan, p. 2297. 51 Old Book of Tang, Volume 17 Biography of Emperor Wenzong the first half , p. 533. 52 New Book of Tang, Volume 134 Biography of Wang Gong, p. 4566. 53 Old Book of Tang, Volume 20 the first half Biography of Emperor Zhaozong, p. 775.

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settled in remote regions in the Tang Dynasty. After the criminals arrived at the destinations, the exile places were equivalent to their private houses, where the order to commit suicide could be executed according to the law. In December of the first year of the Linde period (664 A.D.), civilian Zhong Zuo conspired with Shangguan Yi and was ordered to commit suicide in Qianzhou exile place.54 In December of the second year of the Zhenyuan period (786 A.D.), the right minister of secretariat Yuan Xiu “was degraded to be Leizhou officer. He was ordered to commit suicide in Guangzhou”.55 It is worth noting that since the reign of Emperor Xuanzong, the cases of ordering degraded officials to commit suicide on the halfway to exile places have greatly increased. In the second year of the Xiantian period (713 A.D.), Zhongshu minister Cui Shi was convicted of privately serving Princess Taiping and exiled Douzhou. The eunuch Yuan trapped Shis accomplice and offered him poison to commit suicide, and “the messenger traced Shi and hanged him in the post house the same day”.56 Since then, numerous cases of suicide committing on the halfway have been recorded in historical documents.57 In the first lunar month of the spring of the nineteenth year of the Kaiyuan period (731 A.D.), Duke Wang Maozhong “was degraded to be assistant governor of Rangzhou and was ordered to commit suicide on the halfway. Dozens of his accomplices were also degraded”.58 In the Dali period, technician Jia Daochong revealed confidential information and “was ordered to take poison on the halfway”.59 In April of the summer of the fifth year of the Yuanhe period (810 A.D.), vice military governor of Zhaoyi Army Lu Congshi conspired with Wang Chengzong, and “was degraded to be military governor of Huanzhou, and was then ordered to commit suicide. His son Jizong and others migrated to Lingnan”.60 After the Tianbao period, the criminal officials to be ordered to commit suicide were usually degraded to Rangzhou, Huanzhou, Yazhou, Leizhou and other remote and wild regions first. As an upgraded measure to punish exiled criminals, it was mostly executed in selected post houses on the halfway of dispatching. In April of the twenty-fifth year of the Kaiyuan period (737 A.D.), commandant Xue Xiu was sentenced to “long-term exile in Rangzhou, and ordered to commit suicide in Lantian Posthouse”.61 In the first lunar month of the second year of the Baoying period (763 A.D.), Lai Tian, the secretariat of the Ministry of War, “was degraded to be sheriff of Bozhou County. The next day, he was ordered to commit suicide

54

Zi Zhi Tong Jian, Volume 201 December of the first year of Lingde period of Emperor Gaozong, p. 6342. 55 New Book of Tang, Volume 149 Biography of Liu Yan with Yuan Xiu, p. 4798. 56 Chen Xi, The Evolution and Application of Long-term Exile in Tang Dynasty, Journal of East China University of Political Science and Law, 2013, No. 3, pp. 131–312. 57 Old Book of Tang, Volume 74 Biography of Cui Ren’s Teacher Sun Shi, p. 2624. 58 Old Book of Tang, Volume 8 Biography of Emperor Xuanzong the first half , p. 196. 59 Old Book of Tang, Volume 187 the second half Loyalty; Biography of Jia Zhiyan, p. 4912. 60 New Book of Tang, Volume 141 Biography of Lu Congshi, p. 4661. 61 Old Book of Tang, Volume 9 Biography of Emperor Xuanzong the second half , p. 208.

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in Huxian County, and all the family property was confiscated”.62 In January of the eighth year of the Zhenyuan period (792 A.D.), Jianyi Dafu Wu Tongxuan was degraded to be a military governor of Quanzhou and “was ordered to commit suicide when he passed by Great Wall Post House in Huazhou”.63 In June of the third year of the Guanghua period (900 A.D.), assistant minister Wang Tuan was degraded to be the household officer of Yazhou and was ordered to commit suicide in Lantian Post House; privy council chief executives Song Daobi exiled in Huanzhou and Jing Wuxiu exiled in Aizhou were both ordered to commit suicide in Baqiao Post House.64 Baqiao, Lantian and other places near the suburbs of Chang’an in the Tang Dynasty were the only way to Lingbiao and other remote areas. As a result, post houses in the east of the city were often the preferred places for ordering criminal officials to commit suicide. The operation of order to commit suicide formed a major difference between the sentence text and the actual operation of the punishment on the criminals. The official edict publicly declared that the criminal was degraded and exiled to remote areas, resettled still with their identity of gentry unchanged. Later, messengers would be authorized by the edict to secretly execute the criminal on the half way. The practice of committing suicide on the halfway preserved the decency and dignity of the criminals to the greatest extent and simultaneously fulfilled the true intention of the imperial court’s decision to severely punish criminal officials.

3.2 Preferential Treatment Before the Punishment Based on the judicial concept of humanitarian sympathy and respect to the gentry, Prison Official Order in the Kaiyuan period stipulated that officials at the fifth or higher ranks who were sentenced to capital punishment “would be provided with carriage transport, food and wine, farewell ceremony with relatives, and all executed after dusk”.65 Based on this, the judicial practice in the Tang Dynasty set many privileges for imperial family members and high-rank officials who were ordered to commit suicide and made many modifications in the decrees of the stipulations. First, the criminals were allowed to have dinner, bath, and arrange the funeral. In the Xiantian period, Song Zhizhu was ordered to commit suicide in Guizhou Post House. He was shocked and sweaty hearing the edict. Before the execution, he said farewell to his wife, “but cannot handle any affair in confusion… He had dinner and bath before suicide”.66 In the sixth year of the Tianbao period (747 A.D.), Yang Shenjin 62

Old Book of Tang, Volume 114 Biography of Lai Tian, p. 3368. Old Book of Tang, Volume 190 the second half Literature; Biography of Wu Tongxuan, p. 5058. 64 Zi Zhi Tong Jian, Volume 262 “June of the third year of Guanghua period of Emperor Zhaozong”, p. 8531. 65 Tianyige Museum, Institute of History, Chinese Academy of Social Sciences, Tiansheng Order Investigation Group amended, Amendment of Tiansheng Order of Ming Edition Collected in Tianyige affixed Qing Recovered Edition of Prison Official Order in Kaiyuan Period of Tang Dynasty, Article 8, p. 644. 66 New Book of Tang, Volume 202 Literature and Culture; Song Zhiwen, p. 5751. 63

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brothers were ordered to commit suicide. Yang Shenming requested that “because my widow sister is too old, please allow me to write some words for farewell”. The execution censor Yan Zhenqing allowed him. Later, he wrote some other affairs, including releasing all fishes in the pool of his residence.67 Second, the criminals were allowed to submit statements to the emperor. In the nineteenth year of the Zhenguan period (645 A.D.), before the execution, Liu Ji “asked for brush and paper to write statements to the emperor, but the administrator did not allow. After Liu Ji died, Emperor Taizong got to know the fact and blamed the administrator in anger”.68 In the third year of the Chuigong period (687 A.D.), Liu Yizhi “had a bath before the execution in a calm presence. He asked his son to write a statement. His son who was also to die, was unable to write. The execution censor pushed them, so Yizhi took out some paper himself and soon completed a statement in sincere diction making all the readers in sorrow”.69 In the fourteenth year of the Tianbao period (755 A.D.), before suicide, Feng Changqing also “wrote a statement himself to confess the crime. Before the execution the next day, it was submitted to the emperor”.70 In the tenth year of the Xiantong period (869 A.D.), before the execution, Duanzhou military governor Yang Shou considered that all his brothers would be sentenced to death, so he submitted a statement requesting the emperor to allow his younger brother Yan to offer sacrifices to his ancestors. The execution censor Guo Quanmu submitted it to the emperor for rechecking, “and Emperor Yizong finally forgave Yan”.71 Moreover, the criminals were allowed to write the family biography and epitaph. As mentioned above, Li Fan was imprisoned in the third year of the Dahe period (829 A.D.). “Knowing the suicide order and being afraid that his ancestors’ achievements would be forgotten, he asked the censor for waste paper and brush, and wrote ten articles of family biographies for passing on in the world.”72 It’s just the Family Biography of Yehou repeatedly quoted in later generations, which clearly recorded the spirit of celebrities. In the early Kaicheng period, Zelu Liu Congjian’s son Liu Chen submitted a statement criticizing political affairs. Someone said that Ouyang Ju made a mistake. Ju was exiled to Yazhou and was ordered to commit suicide. “Before the execution, he remained calm all time, writing to appreciate all the former friends, and his own epigraphy, which touched everyone.”73 Confucian Jia Yi in Han Dynasty once said, “Decency and rituals were used to rule the gentlemen, so the order to commit suicide cannot include any insult. For this reason, punishments such as tying, binding, flogging with bludgeon or rattan cane, shaving the head, cutting the foot, tattooing the face and cutting the nose were not applicable to the scholar-bureaucrat because

67

See Footnote 37. Old Book of Tang, Volume 74 Biography of Liu Ji, p. 2612. 69 See Footnote 12. 70 Old Book of Tang, Volume 104 Biography of Feng Changqing, p. 3210. 71 Old Book of Tang, Volume 177 Biography of Yang Shou, p. 4600. 72 New Book of Tang, Volume 139 Biography of Li Bi’s Son Li Fan, p. 4639. 73 New Book of Tang, Volume 203 Literature and Arts the second half; Biography of Ouyang Zhan’s Son Ju, p. 5787. 68

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they were very close to the emperor.”74 Although the preferential courtesy measures to pay respect to nobility in the Tang Dynasty were not clearly stipulated by the law, they acquired both governmental and nongovernmental acknowledgment guided by the concept that the emperor and ministers shared honor and disgrace in the feudal era through judicial practice and experience accumulation for a long time. It may be taken as one of the litigation practices of the Tang Dynasty.

3.3 Burial by Imperial Edict According to the Prison Official Order in the Kaiyuan period, family members were allowed to arrange the burial for all the criminals after the execution. If no one arranged the burial, the authority would provide coffins for the burial in the official land. The abovementioned stipulation would be applied to all executed criminals in various areas. All executed criminals with no relatives would be provided with coffins and temporary burial in the official land. (The original note: The coffins would be on the official fund. The criminals who committed premeditated assault or more serious crimes would not be provided with coffins. The official land was seven Li far from the capital, covering less than one hectare, for the burial of all the criminals of various divisions, under the inspection of Da Li). The inscribed bricks would be placed in the tomb with a tablet on the top and the criminal’s name on it. The criminals’ family members were informed to take them. All the exiled criminals on the way and all those who died during the servitude of exile and imprisonment would be arranged in the same way.75 All the criminals ordered to commit suicide in private houses or prisons would be buried in accordance with the stipulations of the law. However, compared with ordinary criminals, the stipulations on the burial of criminals ordered to commit suicide were extremely strict in the Tang Dynasty. After the execution, it’s only allowed to temporarily remain the corpse. Only when the imperial court issued exemption or amnesty can burial be arranged in accordance with ritual. The burial of a criminal official’s corpse needs to bear some political risk in the Tang Dynasty. After the execution of some officials, their family property would be confiscated, so all their relatives and friends avoided them like the plague in fear of being involved. In the eleventh year of the Tianbao period (752 A.D.), when Wang Gong was ordered to commit suicide and his wife was exiled, all the relatives even dared not to get a glimpse of their gate. “Only the judge Pei Mian collected his corpse for burial.”76 74

New Book, Volume 2 Class, p. 80. Tianyige Museum, Institute of History, Chinese Academy of Social Sciences, Tiansheng Order Investigation Group amended, Amendment of Tiansheng Order of Ming Edition Collected in Tianyige affixed Qing Recovered Edition of Prison Official Order in Kaiyuan Period of Tang Dynasty, Article 11, p. 645. 76 Zi Zhi Tong Jian, Volume 216 “April of the eleventh year of Tianbao period of Emperor Xuanzong”, p. 6912. 75

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Yang Guozhong was touched by Pei Mian’s attachment to the former master, so he ordered to return him the house for a temporary stay and asked his wife and daughter to give him a tomb and the guard to escort him.77 It’s a special favor beyond the justice at that time. In the first lunar month of the second year of the Baoying period (763 A.D.), after Lai Tian, the minister of war, committed suicide, his family property was confiscated. “All of his followers escaped, leaving his corpse covered on the doorsill. Jiaoshulang Yin Liang arrived alone at last. He cried beside the corpse and prepared the coffin for burial”.78 Anyone who was ordered to commit suicide in the prison or on the halfway can only be temporarily buried in a close area, and removal was not allowed except for amnesty or special edict. In practice, the time limit for the burial of criminals ordered to commit suicide was not fixed. In the fourth year of the Jianzhong period (783 A.D.), Cui Ning, the right assistant to the minister, was hanged in the court. He was not buried until June of the twelfth year of the Zhenyuan period (796 A.D.), when Cui Ning’s guilt was wiped out through the request of Han Tan, Ning’s former subordinate and military governor of Xiasuiyin, and his family members were allowed to collect the corpse.79 The burial was delayed for fourteen years. Dou Can was ordered to commit suicide in Wujing Town, Yongzhou, in the ninth year of the Zhenyuan period (793 A.D.), and his family members were allowed to collect his corpse for burial in June of the twelfth year.80 In August of the ninth year of the Dahe period (835 A.D.), the imperial official Yang Chenghe and others were ordered to commit suicide in Yuanzhou, and in the first lunar month of the first year of the Kaicheng period (836 A.D.), an edict was issued to recover his official rank and allowed his burial at hometown.81 Thus, the time limit for the burial of criminals ordered to commit suicide was influenced by political, policy and personal factors and was completely controlled by the emperor. “After the degraded officials died, they could not be brought back to the hometown for burial unless any amnesty was issued”.82 “Left to the death of the official, will also be met and then buried.” After the Rebellion of An and Shi, the imperial court issued more than ten amnesties, allowing the dead degraded officials to be brought back for burial, and ordered the prefecture and county to offer coffins and rewards for dispatching. In the first year of Emperor Suzong (761 A.D.), the decree was issued that “For the exiled criminals who died in the exile places, their family members were allowed to collect the corpses and bright back for burial, and the local prefecture and county would offer coffins for dispatching.”83 In December of the second year of the Changqing period (822 A.D.), when the title of crown prince was bestowed, 77

Old Book of Tang, Volume 105 Biography of Wang Gong, p. 3232. New Book of Tang, Volume 144 Biography of Lai Tian, p. 4701. 79 See Footnote 42. 80 Old Book of Tang, Volume 13 Biography of Emperor Dezong the second half , p. 383. 81 Old Book of Tang, Volume 17 Biography of Emperor Wenzong the second half , p. 564. 82 (Qing) He Zhuo, Yi Men Du Shu Ji, Volume 33 Changli Collection of Epigraphs and Essays, Cui Gaowei annotated and amended, Zhonghua Book Company, 1987, p. 580. 83 Ce Fu Yuan Gui, Volume 87 Emperors; Exemption VI, p. 970. 78

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an edict was issued that “all the degraded officials and exiled criminals would be migrated and those dead were allowed to be brought back for burial”.84 In April of the first year of the Tianyou period (904 A.D.), another edict issued that any degraded official “who died in the exiled place was allowed to be brought back for burial”.85 The abovementioned decrees and edicts did not specifically stipulate the cause of death of the exiled criminal officials, so it was applied to both natural death and death caused by suicide order within a certain time limit. The above measures were of important value for resolving political grievances, placating their relatives and receiving popular support. In practice, some criminal officials ordered to commit suicide were actually brought back for burial after the amnesty was issued. According to the Epigraphy of Dong Fujun, Sandafu and Shangzhou Governor of the Former Dynasty Who was Dismissed and Migrated to Fengzhou in Tang Dynasty, In May of the sixth year of the Yuanhe period (811 A.D.), Dong Xi was ordered to commit suicide for accepting bribes. In July of the following year, an amnesty was issued when Wang You was bestowed the title of crown prince.86 “He was allowed to be brought back for burial, and his son hosted the funeral ceremony in the hometown. In November of the eighth year of the Yuanhe period (813 A.D.), he was buried on the left of Taishi’s tomb at the foot of Wan’an Mountain in Henan County, Henan Province, with his wife in the same grave.”87

4 Crimes for Commit Suicide by Imperial Order in the Tang Dynasty 4.1 Ten Categories of Major Crimes (1)

Conspiracy of Rebellion

Conspiracy of rebellion was called “conspiracy against the imperial rule”. Most cases of imperial family members ordered to commit suicide for this crime were abatement from the death penalty by hanging and beheading. In April of the summer of the seventeenth year of the Zhenguan period (643 A.D.), the King of Han Yuan Chang secretly attached to Crown Prince Chengqian for conspiracy of rebellion. The emperor didn’t intend to execute them. “Gao Shilian, Li Xun and some other officials 84

Decree and Order Collection of Tang, Volume 29 Crown Prince; Amnesty for Bestowing the Title of Crown Prince; Bestowing the Title of Crown Prince Deyin in the Second Year of Changqing Period, p. 106. 85 Ce Fu Yuan Gui, Volume 91 Emperors; Exemption X, p. 1009. 86 Decree and Order Collection of Tang, Volume 29 Crown Prince; Amnesty for Bestowing the Title of Crown Prince; Bestowing the Title of Crown Prince Deyin in the Second Year of Changqing Period, p. 105. 87 Annotation of Han Changli’s Work Collection, Volume 6 Stele Epigraphy; Epigraphy of Dong Fujun, Sandafu and Shangzhou Cishi of the Former Dynasty Who was Dismissed and Migrated to Fengzhou in Tang Dynasty, p. 443.

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insisted not to follow the edict. The emperor had to order them to commit suicide, and the state was eliminated.”88 In April of the second year of the Shangyuan period (761 A.D.), Zhen, son of Zongzheng Minister and King of Qi, “got on well with Weizhou general Zhu Rong. Rong once said Zhen was like an emperor because of conspiracy”. Emperor Suzong “didn’t have the heart to execute him because of his identity”,89 so he was dismissed as common people, resettled in Chenzhou, and later ordered to commit suicide. Additionally, many ministers were ordered to commit suicide. In July of the second year of the Xiantian period (713 A.D.), Xue She, the guard of crown price, predicted Dou Huaizhen’s conspiracy against the royal rule, “so he was ordered him commit suicide in Wannian Prison”.90 In May of the fourteenth year of the Dali period (779 A.D.), Li Gan, minister of war, and eunuch Liu Zhongyi conspired against the East Palace, but it was exposed. “Gan and Zhongyi were both dismissed and sentenced to long-term exile and ordered to commit suicide in Lantian.”91 In October of the winter of the second year of the Jianzhong period (781 A.D.), left minister Yang Yan built a private temple in Qujiangnan. The rumor said the place had an imperial manner. “He was degraded to be Yazhou military governor. He was ordered to commit suicide even before he traveled one hundred li away.”92 (2)

Conspiracy of Treason

According to the Comments on Laws of Tang Dynasty, “Anyone who committed conspiracy of treason would be hanged, and those on the way would be beheaded.”93 After the Rebellion of An and Shi, the imperial court was migrated several times, and all the officials who were trapped in the enemy’s court and appointed any position would be convicted of treason. However, considering their identity factor, the officials who committed conspiracy of treason were mostly exempted in the execution. In December of the second year of the Zhide period (757 A.D.), Chen Xilie, the master of crown price, served as minister of An Lushan. Considering that he was Emperor Minghuang’s old acquaintance, Emperor Suzong “ordered him to commit suicide in Da Li Si Prison”.94 Any minister who betrayed the state and followed the opposition or escaped to a foreign land would be convicted of the conspiracy of treason. For example, in October of the seventh year of the Zhenyuan period (791 A.D.), Fengzhou governor Guo Gang, Fenyang King Guo Ziyi’s grandson, betrayed the country and 88 New Book of Tang, Volume 79 Emperor Gaozu’s Sons; Biography of King of Han Yuanchang, p. 3549. 89 Decree and Order Collection of Tang, Volume 39 The Kings; Degrading; Siqi Wang Zhen was Dismissed to be Common People, p. 180. 90 Zi Zhi Tong Jian, Volume 210 “July of the second year of Xiantian period of Emperor Xuanzong”, p. 6684. 91 Zi Zhi Tong Jian, Volume 225 “May of the fourteenth year of Dali period of Emperor Daizong”, p. 7260. 92 New Book of Tang, Volume 145 Biography of Yang Yan, p. 4726. 93 Comments on Laws of Tang Dynasty, Volume 17 Theft and Robbery “treason”, p. 325. 94 Old Book of Tang, Volume 50 Record of Criminal Law, p, 2152.

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escaped Turpan. Considering that his father “made a great contribution for the peace and stability of the state”,95 Emperor Dezong called him back to the capital and ordered him to commit suicide. (3)

Severe Irreverence

According to the Comments on Laws of Tang Dynasty, “Severe irreverence” refers to resisting the reasonable edict or disrespecting the emperor’s messenger without the minister’s etiquette. As mentioned above, in the third year of the Chuigong period (687 A.D.), Liu Yizhi “was ordered to commit suicide at home for disrespecting the emperor’s messenger”.96 In August of the second year of the Dali period (767 A.D.), Jiang Qingchu, Taichang Minister and Prince Consort, and others damaged the mountain by mistake when they built the imperial mausoleum. According to the article “causing insecure boat or carriage for the emperor’s use”, “the petty officials were convicted of irreverence, and ordered to commit suicide”.97 There were also several cases of committing suicide for impertinent remarks recorded in historical documents. In December of the nineteenth year of the Zhenguan period (645 A.D.), Prime Minister Liu Ji was ordered to commit suicide for conspiracy of controlling opinion in the court, suspecting the ministers and making impertinent remarks.98 In October of the second year of the Chuigong period (686 A.D.), assistant minister of Menxia Department Wei Shulin was ordered to commit suicide for “making private remarks with Qingshan”.99 In the first lunar month of the nineteenth year of the Kaiyuan period (731 A.D.), Duke Wang Maozhong was ordered to commit suicide on the halfway to make an unfaithful complaint.100 In September of the first year of the Guangde period (763 A.D.), Feng King Gong “made impertinent remarks; Many ministers request to execute him, so the emperor had to order him to commit suicide”.101 In September of the fifth year of the Dali period (770 A.D.), Liu Xixian doubted the imperial court and made impertinent remarks. He was ordered to commit suicide.102 In the Dazhong period, the capital military officer Lu Chen was imprisoned for disputing with the left Buque Cui Xuan. “Because of the remarks involved in severe irreverence, he was deprived of the official rank to be common people and exiled to Lingbiao. He was ordered to commit suicide when he passed by Luoyuan

95

Ce Fu Yuan Gui, Volume 134 Emperors; Niangong, p. 1485. See Footnote 12. 97 New Book of Tang, Volume 91 Biography of Jiang Jiao’s Son Qingchu, p. 3794. 98 Decree and Order Collection of Tang, Volume 126 Political Affairs; Death Penalty; Decree to Order Liu Ji to Commit Suicide, p. 678. 99 Record of Chang’an, Volume 15 County V; Lintong, p. 355. 100 Zi Zhi Tong Jian, Volume 213 “January of the nineteenth year of Kaiyuan period of Emperor Xuanzong”, p. 6793. 101 Zi Zhi Tong Jian, Volume 223 “September of the first year of Guangde period of Emperor Daizong”, p. 7151. 102 Zi Zhi Tong Jian, Volume 224 “September of the fifth year of Dali period of Emperor Daizong”, p. 7215. 96

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Post House.”103 Some were ordered to commit suicide because of improper remarks in advice to the emperor. In February of the first year of the Guangming period (885 A.D.), the left Shiyi Hou Changye submitted radical advice to the emperor criticizing social evils. “The emperor was very angry, sent Changye to Neishi Department, and ordered him to commit suicide.”104 In July of the first year of the Guangqi period (885 A.D.), the right Buque Chang Jun submitted radical advice criticizing that Emperor Xizong indulged military governors. “He was degraded to be official of household in Wanzhou and was later ordered to commit suicide.”105 (4)

Inhumanity

Killing three innocent people of a family, dismembering or making insect or poison witchcraft for curse were called “inhumanity” because of the cruelty against humanity. The criminals ordered to commit suicide for all three acts of “inhumanity” in the Tang Dynasty can be found in the documents. In July of the fourth year of the Dali period (769 A.D.), the emperor’s relative Xue Hua got angry because of drunkenness and debauchery and killed three people. He dropped the corpses into a well. “After his crime was exposed, he was imprisoned and ordered to commit suicide”.106 This is an example of killing three innocent people. In February of the eighth year of the Yuanhe period (813 A.D.), Taichang minister Yu Min bribed Liang Zhengyan for serving as the local governor but failed, so he dismembered his family servant and disposed the body in the garbage. When the crime was exposed, “Min exiled to Leizhou and was ordered to commit suicide when he passed by Shangshan”.107 This is an example of dismembering. In July in autumn of the twelfth year of the Kaiyuan period (724 A.D.), Empress Wang’s brother, crown prince Shao Bao Shouyi put a curse of having no descendents on the empress. Later, he was degraded to be common people and transferred to another place. “Shouyi was degraded to be assistant governor of Tanzhou and was ordered to commit suicide on the halfway.”108 This is an example of making witchcraft for a curse.

103

(Tang) Pei Tingyu: “Lu Chen disputing with Cui Xuan” in Dong Guan Zou Ji, Tian Tingzhu annotated, Zhonghua Book Company, 1994, p. 111. 104 Zi Zhi Tong Jian, Volume 253 “February of the first year of Guangming period of Emperor Xizong”, p. 8220. 105 Zi Zhi Tong Jian, Volume 256 “July of the first year of Guangqi period of Emperor Xizong”, p. 8323. 106 Old Book of Tang, Volume 11 Biography of Emperor Daizong, p. 294. 107 New Book of Tang, Volume 172 Biography of Yu Chuan, p. 5200. 108 Zi Zhi Tong Jian, Volume 212 “July of the autumn of the twelfth year of Kaiyuan period of Emperor Xuanzong”, p. 6761.

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4.2 Economic Crimes “According to the law, ‘illicit gains’ included only six categories.”109 Laws of Tang Dynasty defined robbery, theft, accepting bribes and bending the law, taking bribes but not bending the law, accepting litigant’s properties, and undue acceptance by means other than bribe the “six categories of illicit gains”. According to the article “assessing the value of illicit gains and contributions” in Law of Names: “Assessing the value of illicit gains should be based on the price of the first-class silk at the time of committing the crime.”110 That is, illicit gains were assessed based on the equivalent price to the first-class silk at the time and place of committing the crime. In the judicial practice of the Tang Dynasty, the criminals ordered to commit suicide because of illicit gains mainly included the following four categories. (1)

Chief Supervisor Accepting Litigant’s Properties

“Chief supervisor refers to the chief inspector or chief judge of the case.” It means acceptance of the litigant’s properties by the officials in charge of commanding or management, taking advantage of their position, namely, accepting bribes of today. In the eighth year of the Zhenyuan period (792 A.D.), Dou Can, serving as Zhongshu minister and Zhongshu Menxia minister, appointed his relative’s son Dou Shen as assistant minister. Dou Can often consulted Dou Shen for the appointing of officials. Shen took this advantage and revealed confidential information for accepting bribes. In March of the ninth year of the Zhenyuan period (793 A.D.), the crime was exposed. Can was degraded to be assistant governor of Binzhou at first and then to be military governor of Huanzhou. “Before arriving in Huanzhou, he was ordered to commit suicide in Wujing Town of Yongzhou.”111 In September of the first year of the Yuanhe period (806 A.D.), Zhongshu minister Hua Huantong conspired with Neishumi Liu Guangqi and accepted bribes of all parties. “Huan was degraded to be household official of Leizhou and was later ordered to commit suicide; all the family property costing tens of millions was confiscated.”112 In November of the sixth year of the Yuanhe period (811 A.D.), “Bow and arrow storage manager Liu Xiguang accepted twenty thousand Min from the general commander of Yulin Army Shu, for the sake of magistrate with military power. After the crime was exposed, he was ordered to commit suicide.”113

109

Comments on Laws of Tang Dynasty, Volume 4 Names, “crime of illicit gains”, p. 88. Comments on Laws of Tang Dynasty, Volume 4 Names “assessing the value of illicit gains and contribution”, p. 91. 111 Old Book of Tang, Volume 136 Biography of Dou Can, p. 3748. 112 Zi Zhi Tong Jian, Volume 237 “September of the first year of Yuanhe period of Emperor Xianzong”, p. 7635. 113 Zi Zhi Tong Jian, Volume 238 “November of the sixth year of Yuanhe period of Emperor Xianzong”, p. 7686. 110

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Chief Supervisor Embezzling Entrusted Properties

Comments on Laws of Tang Dynasty-Theft and Robbery stipulated that “any supervisor who stole the storage properties under their supervision or embezzled the entrusted properties under their supervision would be sentenced to two grade higher punishment than regular theft and hanged for thirty Pi”. Comments on Laws of Tang Dynasty also stipulated that “For the properties in storage, Taifu chief and minister were the supervisors; Zuocang chief and the minister were executive supervisors; the storage manager was the major guard. The crime of stealing the properties in the storage was ‘embezzling the entrusted properties’.” Thus, embezzling the entrusted properties means the corruption of taking forcible possession of public properties only by virtue of one’s position. In June of the twelfth year of the Kaiyuan period (732 A.D.), Youzhou governor Zhao Hanzhang stole the properties in the storage, and the left supervisor general Yang Yuanfang was given military provisions by Hanzhang. “They were both sentenced to flogging with a bludgeon in the court, exile to Rangzhou and were both ordered to commit suicide on the halfway.”114 Zhao Hanzhang misappropriated the official property, which was embezzling the entrusted properties. He privately gave Yang Yuanfang. It should be convicted of accepting bribes in accordance with the article “requesting for affairs by bribery”.115 Combining the punishment for both offenses, Hanzhang should be convicted of double accumulated bribery according to the principle of “accumulate the punishment for the criminals commiting bribery for several times”116 in Comments on Laws of Tang Dynasty. In addition, some supervisors were ordered to commit suicide to embezzle the entrusted properties under their supervision. In February of the first year of the Kaicheng period (836 A.D.), “Jingyuan military governor Zhu Shuye embezzled the soldier’s properties at tens of thousands, including livestock and weapons. He was degraded to be Wuwei General”117 and was later ordered to commit suicide in Lantian Pass. (3)

Accepting Bribes

“Accepting bribes means that anyone other than supervisor accepted bribes for others’ affairs and committed crime because of the bribes, so it’s named ‘crime resulting from accepting bribes’.”118 The criminals who accepted bribes of a large amount would be sentenced to death. In April of the first year of the Linde period (664 A.D.), “Weizhou

114

Ce Fu Yuan Gui, Volume 152 Emperors; Punishment, p. 1702. Comments on Laws of Tang Dynasty, Volume 11 Professional System “requesting for affairs by bribery”, p. 220. 116 Comments on Laws of Tang Dynasty, Volume 6 Names “conviction of the severer of two crimes”, p. 124. 117 New Book of Tang, Volume 164 Biography of Yin You, p. 5054. 118 Comments on Laws of Tang Dynasty, Volume 26 Miscellaneous Laws “crime result from accepting bribes”, p. 479. 115

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governor Xun Duke Xiaoxie accepted bribes and was ordered to commit suicide.”119 In the first year of the Baoying period (762 A.D.), Sizhou governor Li Ding accepted bribes. He was degraded to be a Sizhou governor and “ordered to commit suicide on the halfway”.120 The amount and circumstances of the bribes Li Xiaoxie and Li Ding accepted are missing in historical documents, so we cannot know the details. The case of Qianxingying grain manager Yu Gaomu and Dong Xi ordered to commit suicide for accepting bribes in the sixth year of the Yuanhe period (811 A.D.) provides an important reference for clarifying the system of suicide order for accepting bribes in the Tang Dynasty. According to Ce Fu Yuan Gui, Volume 501, State PlanningCorruption, “Yu Gaomu accepted various bribes at the total amount of four thousand two hundred Guan; and the former grain manager Dong Xi accepted various bribes at the total amount of four thousand three hundred Guan, and embezzled the extra margin of normal military grain and other expenditures at the total amount of forty-one thousand and three hundred Guan”.121 In addition to accepting bribes, Yu and Dong embezzled official properties, so they should be punished according to the abovementioned “embezzling entrusted properties”. Considering that “they served the official posts inherited for generations”, the emperor specially appointed messengers to order Gaomu and Xi to commit suicide when they passed by Tanzhou. In September of the eighth year of the Dahe period (834 A.D.), Suizhou governor Du Shiren “accepted bribes of silks of thirty thousand Pi and was ordered to commit suicide at home”.122

4.3 Other Crimes (1)

Collusion

After the mid-Tang dynasty, the collusion of imperial and outside powers made farreaching corruption to the state. In September of the first year of the Guangde period (763 A.D.), The secretary supervisor Han Yin and Zhongshu minister Liu Xuan were improperly familiar with Li Fuguo. “They exiled to Lingbiao and were later ordered to commit suicide.”123 In August of the first year of the Yongzhen period (805 A.D.), Wang Shuwen was degraded to be the household official of Yuzhou for autocratic authority and collusion. “Shuwen was ordered to commit suicide the next year.”124 In April of the summer of the fifth year of the Yuanhe period (810 A.D.), Zelu military governor Lu Congshi conspired with Zhenzhou Wang Chengzong. “He 119

Zi Zhi Tong Jian, Volume 201 “April of the first year of Linde period of Emperor Gaozong”, p. 6339. 120 Ce Fu Yuan Gui, Volume 700 Mushou; Corruption, p. 8088. 121 See Footnote 31. 122 Old Book of Tang, Volume 17 Biography of Wenzong the second half , p. 555. 123 Old Book of Tang, Volume 11 Biography of Emperor Daizong, p. 270. 124 Zi Zhi Tong Jian, Volume 236 “August of the first year of Yongzhen period of Emperor Shunzong”, p. 7619.

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was degraded to Huanzhou and was ordered to commit suicide in Kangzhou.”125 The above three cases were all actions of the imperial court for punishing former crimes and suppressing collusion. Most criminals who committed collusion of imperial and outside powers were also ordered to commit suicide. In August of the ninth year of the Dahe period (835 A.D.), Li Gangming entrusted Prince Consort Shen Yi to bribe female scholar Song Ruxian for holding power. When the crime was exposed, “Ruoxian was imprisoned outside the imperial court and was ordered to commit suicide, and all family members were exiled to Lingnan”.126 This case also involved the imperial court eunuchs Yang Chenghe, Wei Yuansu and Wang Jianyan, who were resettled in Quanzhou, Xiangzhou and Enzhou separately and were later ordered to commit suicide by appointed messengers.127 In May of the third year of the Qianning period (896 A.D.), Cui Zhaowei, a military governor of Wuzhou, was also ordered to commit suicide for “collusion with power in imperial court and conspiracy with the local military governor”.128 (2)

Homicide

“Anyone who intended to commit homicide would be sentenced to three years; those caused injury would be hanged; those caused death would be beheaded.”129 The son of Xiguo Princess Shangyi Fengyu (Emperor’s Clothes Manager), Xue Shen and his following Li Tan, Cui Qia and Shi Rushan “all committed homicide in the capital, for benefiting their funds or violating their will. They killed others in broad daylight and boiled and ate the bodies”.130 In the twenty-seventh year of the Kaiyuan period (739 A.D.), when the crimes were exposed, Shen, as the emperor’s relative, exiled Rangzhou and was ordered to commit suicide in Chengdong Post House. In the first lunar month of the fourth year of the Dali period (769 A.D.), the emperor’s relative Yingzhou governor Li Hu killed state judge Yao Shi. According to Tang Liu Dian, the governor was in charge of purifying the state and inspecting the officials. “Any especially serious case would be submitted to the emperor.”131 However, he was not

125 Records of the Taiping Era, Volume 346 the article of “Li Xiang” quoted Xu Xuan Guai Lu, p. 2740. The existing edition of Xu Xuan Guai Lu is slightly different: “Lu Yuanhe intended to control Zelu by Zuopuye at first. Because of resistance against order in Zhenyang and suspected infidelity, he was trapped by general Tutu Cheng Cui and arrested to Beijing. Because the charge of rebellion was not concluded, he was degraded to be Huanzhou Sima. When all the evidences were revealed,he was ordered to commit suicide in Kangzhou.” (Tang) Li Fuyan compiled, Xu Xuan Guai Lu Volume 2 “Puye Lu Congshi”, Cheng Yizhong annotated, Zhonghua Book Company, 1982, p. 148. 126 New Book of Tang, Volume 77 Imperial Concubines the second half; Biography of Shanggong Song Ruozhao, pp. 3508–3509. 127 Zi Zhi Tong Jian, Volume 245 “August of the ninth year of Dahe period of Emperor Wenzong”, pp. 7906–7907. 128 Old Book of Tang, Volume 179 Biography of Cui Zhaowei, p. 4654. 129 Comments on Laws of Tang Dynasty, Volume 17 Theft and Robbery “murdering”, p. 329. 130 Old Book of Tang, Volume 9 Biography of Emperor Xuanzong the second half , p. 211. 131 Tang Liu Dian, Volume 30 Sanfu Duhu Prefecture and County Officials, p. 747.

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authorized to arbitrarily kill any official in his jurisdiction. “Considering he was the emperor’s relative, the authority ordered him to commit suicide.”132 In the reign of Emperor Dezong, Liu Shigan and Le Shichao were both foster sons of Xuanwu military governor Liu Xuanzuo. Xuanzuo died, and someone said he was poisoned by the Shichao. In May of the eighth year of the Zhenyuan period (792 A.D.), Shigan appointed servants to ambush in the funeral ceremony holding swords, inveigled and killed Shichao. Shigan was ordered to commit suicide.133 Laws of Tang Dynasty stipulated that, “If a person plans a murder and succeeds. Although he doesn’t commit the crime himself, he is the chief criminal and should be beheaded.”134 In this case, Liu Shigan planned the murder, and should be beheaded according to the law, but he once served as the official post of Taipu Shaoqing, so he was ordered to commit suicide. (3)

Military Crime

“Significant issues lie in military guards, so judicial punishment should be heavier.” According to the article “Chief commander of guards’ escape when protecting the city” in Comments on Laws of Tang Dynasty-Law on Dispatching Troops without Authorization, “Any chief commander of city guards who did not defend against enemy attack but escaped, or did not prepare any fortification resulting in enemy occupation would be beheaded. Anyone who contacted the enemies detected but did not find the enemy attack would be sentenced to three years; anyone who was defeated for this reason would also be beheaded.”135 In the second year of the Wude period (619 A.D.), Taiyuan was conquered by Liu Wuzhou. Gong Wenke of Xinxing County abandoned the city and escaped. “He was ordered to commit suicide in prison.”136 In December of the fourteenth year of the Tianbao period (755 A.D.), Feng Changqing and Gao Xianzhi were defeated. Emperor Xuanzong appointed eunuch Bian Lingcheng to bring the decree to the army to “order them to commit suicide in Shanzhou”.137 In October of the tenth year of the Xiantong period (869 A.D.), Pang Xun attacked Wujiang with troops. The Hezhou governor Cui Yong did not have enough power to resist enemies, so he sent people to bring liquor as greetings to them. Yong was convicted of “withdrawing the garrison to greet the enemies into the city”.138 Emperor Yizong “appointed Meng Gongdu to Xuanzhou to order him to commit suicide”.139 132

Old Book of Tang, Volume 11 Biography of Emperor Daizong, p. 291. Ce Fu Yuan Gui, Volume 896 General Record; Revenge, p. 10,411. 134 See Footnote 129. 135 Comments on Laws of Tang Dynasty, Volume 16 Dispatching Troops without Authorization the article of “chief commander of city guard escaped”, p. 307. 136 See Footnote 50. 137 (Tang) Yin Liang, Anecdotes of Yan Lugong, (Tang) Yan Zhenqing, Collection of Yan Lugong, p. 124. 138 Zi Zhi Tong Jian, Volume 251 “October of the tenth year of Xiantong period of Emperor Yizong”, p. 8150. 139 Old Book of Tang, Volume 19 Biography of Emperor Yizong the first half , p. 669. 133

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In addition, inhuman acts (Wang Zhuo of Yongjia County),140 witchcrafts (Shen Dazhi),141 revealing confidence (Jia Daochong),142 false accusations (Wu Tongxuan),143 pretexts of imperial edicts (Gu Shiyong),144 fraud (Xiao Hong and Xiao Ben),145 tyranny (Cai Jing)146 and many other crimes were related to suicide order. Because of the limitation of length, we will not discuss them in detail.

5 Characteristics of the Rules of Suicide Order in the Tang Dynasty 5.1 Suicide Order was Closely Related to the Politics of the Tang Dynasty The suicide order in the Tang Dynasty was always directly related to imperial politics in different historical periods. Among the criminals ordered to commit suicide, some were imperial relatives; some were major ministers; and some were local governors, military commanders and eunuchs. Thus, the suicide order was directly related to the competition between various political forces. In addition to those ordered to commit suicide for the reason of the ten categories of major crimes, bribery, and collusion, many cases of order to commit suicide were wrongful convictions for the reason of internal conflict of imperial relatives, the false charge of cruel officials, rivalries between different factions, and conspiracy against the royalty of powerful ministers. In the reign of Emperor Taizong and Emperor Gaozong, suicide orders were frequently issued to imperial relatives in the chaos. In the Zhenguan period, Wang Youliang of Changle County secretly adopted many warriors; the King of Qi conspired against the emperor depending on the city; Yuan Chang secretly attached to Cheng Qian. These three were all sentenced to death for conspiracy against the emperor. All five cases of committing suicide in the reign of Emperor Gaozong were related to imperial relatives. In February of the fourth year of the Yonghui period (653 A.D.), Fang Yiai conspired against imperial rule. Yuan Jing, King of Jing, Ke, King of Wu, Ba Ling, Empress Gaoyang and some other imperial relatives were involved.147 When Empress Wu ascended the throne, the reign turned harsh; 140

Old Book of Tang, Volume 64 Sons of Emperor Gaozu; Biography of Jiang Wang Yuanxiang, p. 2436. 141 Old Book of Tang, Volume 52 Imperial Concubines the second half; Biography of Emperor Suzong’s Empress Zhang, p. 2186. 142 Tai Ping Yu Lan, Volume 414 Personnel; Filial Piety the second half , p. 1912. 143 Old Book of Tang, Volume 190 Wenyuan the second half; Biography of Wu Tongxuan, p. 5058. 144 New Book of Tang, Volume 179 Biography of Wang Fan with Gu Shiyong, p. 5325. 145 Old Book of Tang, Volume 52 Imperial Concubines the second half; Biography of Emperor Muzong’s Zhenxian Empress Xiao, p. 2201. 146 Zi Zhi Tong Jian, Volume 250 “August of the third year of Emperor Yizong”, pp. 8100–8101. 147 Old Book of Tang, Volume 4 Biography of Emperor Gaozong the first half , p. 71.

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she wiped out the noble imperial relatives by the miscarriage of justice. Fengge minister Liu Yizhi, Nayan (prime minister) Wei Xuantong, five sons of Wenchang left minister Cen Changqian, and Guangzhou governor Feng Yuanchang were all ordered to commit suicide because of wrongful conviction by cruel officials. In the reign of Emperor Xuanzong, cases of order to commit suicide for the reason of conflicts between imperial powers increasingly occurred. In the second year of the Xiantian period (713 A.D.), Princess Taiping conspired with her factions for dethronement. Princess, Cui Shi and Xue Ji were all ordered to commit suicide. In April of the twenty-fifth year of the Kaiyuan period (737 A.D.), Yang Hui and concubine Wu Yanying’s three brothers often conspired with the princess’s husband Xue Xiu for betrayal. Emperor Xuanzong appointed the eunuch to claim the edict in the palace. “Ying, Yao and Ju were degraded to be common people; Xiu exiled to Rangzhou; Ying, Yao and Ju were ordered to commit suicide in Chengdong Post House, and Xiu was ordered to commit suicide in Lantian.”148 Everyone sympathized with them. After the Rebellion of An and Shi, because the mutual circumvention and false accusations between different faction members were growing, the number of people suffering punishment for wrongful convictions also increased. In December of the second year of the Zhenyuan period (786 A.D.), Yuan Xiu, Shangshu Youcheng (Assistant Minister) Duzhi (General Accountant), was falsely accused by Han Huang and degraded to be a Leizhou military officer. “He accepted bribes in Guangzhou and ordered to commit suicide.”149 In June of the third year of the Dahe period (829 A.D.), Dezhou military officer Bai Qi defeated Li Tongjie. Other generals envied Qi’s military achievement, so they submitted memorials to defame him. Imperial official Ma Guoliang submitted memorials to the emperor that he accepted his servant’s treasures. Qi was degraded to be the household official of Xunzhou. “Later, he was sentenced to long exile in Aizhou and ordered to commit suicide.”150 As a special execution system of the death penalty, with the rapid development of monarchical autocracy, suicide order gradually lost the original characteristics of courtesy to the ministers. In contrast, it became a means for the monarch to arbitrarily execute the ministers depending on the monarchical autocracy.151 In the Qianning and Tianyou periods, because the royal family declined and the local military governors became more powerful, it was almost a normal state that innocent imperial officials were executed arbitrarily. Suicide order was completely turned into the excuses of treacherous ministers and villains to threaten the monarch and kill dissidents.

148

Zi Zhi Tong Jian, Volume 214 “April of the twenty-fifth year of Kaiyuan period of Emperor Xuanzong”, pp. 6828–6829. 149 See Footnote 55. 150 Old Book of Tang, Volume 154 Biography of Bai Qi, p. 4109. 151 Xu Zhongyi, Study on the System of Suicide Order, Academic Monthly, 2003 No. 7, p. 78.

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5.2 Suicide Order Modified the Rules of the Death Penalty in Many Ways According to the Laws of Tang Dynasty, the death penalty only included legal hanging and beheading punishments, and the two may not be exchanged with each other. Influenced by the traditional thoughts of celestial induction, executions in the autumn and winter, and the sympathy of Buddhism and Taoism, the time for execution of various death sentences in the Tang Dynasty can only be the month other than January, May, September and intercalary month in the lunar calendar,152 and specific dates such as the no-killing day, fasting day, Shuowang (first and fifteenth day of a month) and holidays should be excluded.153 In obvious contrast to the time limit for the execution of the death penalty stipulated by the Laws of Tang Dynasty, the cases of suicide order in the Tang Dynasty basically followed the principle of “execution without any delay”. Among the 100 cases of suicide order with detected execution month, 73 cases were executed in the turn of spring and summer or “no-killing month”, accounting for 73% of all the cases of suicide order. Among them, 51 cases were executed at the turn of spring and summer, and 22 cases were executed in the “no-killing month” (the first lunar month, May, September and intercalary month in the lunar calendar). The other 27 cases were executed during October-December (including 11 cases in October, 5 cases in November, and 11 cases in December). These 27 cases may not be in full compliance with the ban of execution, such as no-killing day, great sacrifices, fasting day, Shuowang and holidays. In addition, the specific execution month of the other 13 cases is unknown. In conclusion, the cases of suicide order in the Tang Dynasty, despite the time limit for execution, actually accounted for at least 70% of all the cases. It is difficult to effectively implement the principle of applying criminal law with caution to reduce the death penalty stipulated by the law in the field of committing suicide. The review of a death sentence was an important system highlighting the concept of applying criminal law with caution in the procedural legal system of the Tang Dynasty. Since the case of Zhang Yungu in the fifth year of the Zhenguan period (631 A.D.), Tang Dynasty gradually established the review system of the death sentence. Any general execution of the death penalty case would be repeatedly submitted by the authority to the throne. In the twenty-seventh year of the Kaiyuan period (739 A.D.), Tang Liu Dian detailed the review system of the death sentence and clarified the review procedure of the death penalty for the Ministry of Punishments and local authorities. Coordinating with the penalty principle of “review of the death sentence before execution” stipulated in Comments on Laws of Tang Dynasty, it formed a complete review system of death sentence.154 Considering the principle of applying criminal law with caution, all types of death penalty cases should follow the review 152

Comments on Laws of Tang Dynasty, Volume 30 Judgment “death penalty would not be executed after the beginning of the spring and after the autumn equinox”, p. 571. 153 See Footnote 23. 154 Chen Xi, Study on the Proceeding System of Tang Dynasty, p. 264.

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procedure. However, in practice, review of the death penalty was explicitly mentioned in only three cases of suicide order: (1) In February of the first year of the Linde period (664 A.D.), Li Xiaoxie, Weizhou governor and Duke of Xun, was ordered to commit suicide. Li Bowen, Zongzheng Minister and King of Longxi, and others submitted to the emperor for review. “Xiaoxie’s father Shuliang, King of Changping, died, and Xiaoxie had no bother, so we apply for special amnesty of his death, or otherwise they would have no descendants left.”155 Emperor Gaozong did not approve, so Xiaoxie finally committed suicide. (2) In March of the twelfth year of the Dali period (777 A.D.), prime ministers Yuan Zai and Wang Jin were convicted and imprisoned. Emperor Daizong ordered the minister of official personnel to interrogate them. Later, Yuan Zai was ordered to commit suicide, and Wang Jin was also ordered to commit suicide at first. Liu Yan said to Li Han and others, “According to the former practice, severe punishments need to submit for review, even for a minister. In addition, the punishment is different for the chief criminal and joint offender. It should be submitted for approval.”156 Han and others followed, so Jin was degraded to be Guazhou governor. (3) In the fourth year of the Huichang period (844 A.D.), Liu Congjian’s wife Pei “met with Luzhou generals’ wives in the banquet and told them the suicide order for the conspiracy against royalty in tears”. At that time, the court discussed forgiving her because Pei’s younger brother Pei Wen made a meritorious contribution. The assistant minister of Punishments Liu Sanfu submitted the death sentence for review, believing that Pei “stimulated the rebels and consolidated their minds…In the banquet, she cried to encourage and unite the rebels…It undoubtedly violated the law”, and requesting to apply the law to punish her. It was approved.157 This indicates that, similar to regular cases of the death penalty, cases of suicide order should also follow the review procedure according to the law. The review procedure needed the emperor’s conclusion after deliberation, but the suicide order directly executed the final decision of the emperor. Thus, the edict of suicide order had the effect of rejecting the review procedure in essence.

5.3 The Suicide Order System of the Tang Dynasty Profoundly Influenced Later Generations The Five dynasties inherited the chaos of the Tang Dynasty, when the legal system was abolished and the application of the suicide order system became more arbitrary. The objects and crimes to which the suicide order applied were mostly not in line with the law. In March of the second year of the Kaiping period of the late Liang Dynasty (908 A.D.), Wang Zongji, master of the crown prince of Shu, was sentenced 155

Ce Fu Yuan Gui, Volume 58 Emperors; Law-abiding, p. 618. Zi Zhi Tong Jian, Volume 225 “March of the twelfth year of Dali period of Emperor Daizong”, p. 7242. 157 Ce Fu Yuan Gui, Volume 616 Criminal Law; Measurement of Penalty III, p. 7127. 156

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for secretly collecting warriors for rebellion. The king of Shu degraded his follower Yushi minister Zheng Qian to be household official Weizhou and Weiwei assistant minister Li Gang to be Wenchuan governor. “They were both ordered to commit suicide on the halfway.”158 In the reign of Emperor Mingzong of the late Tang Dynasty, “The father of Zhou Wei from Xiangyi was killed by others. He didn’t revenge his father’s death but compromised with the murder.”159 The decree was issued to order him to commit suicide. In June of the sixth year of the Tianfu period of the late Jin Dynasty (941 A.D.), Wang Yanzheng sent a letter to Quanzhou governor Wang Jiye to surrender him. Xi, King of Min, “called Jiye back and ordered him to commit suicide in the suburb.”160 In the first lunar month of the spring of the third year of the Kaiyun period (946 A.D.), “Yuanwai (assistant minister) of the Ministry of Punishments Wang Juan was ordered to commit suicide because he earned private interests by virtue of official funds.”161 In the Song Dynasties, the suicide order system stipulated in the Laws of Tang Dynasty received considerable succession and implementation. The Criminal Law of Song Dynasty retained the old articles of the Laws of Tang Dynasty and at the same time clearly stipulated the suicide order system adopted from the Prison Official Order of Tang Dynasty.162 In addition, the article on “crimes applicable to the death penalty” in the Criminal Law of the Song Dynasty confirmed the decree on September 5th of the first year of the Huichang period of the Tang Dynasty (841 A.D.), and included the stipulation of Prison Official Order that criminals at the fifth or higher official ranks would be ordered to commit suicide at home for the execution of death penalty in the law.163 It provided a direct legal basis for the implementation of the suicide order in this period. The practical and procedural rules of the suicide order system of the Tang Dynasty were also inherited in the Five dynasties and the Song dynasties. In the first lunar month of the third year of the Guangshun period of the late Zhou dynasty (953 A.D.), Ye Renlu, Laizhou governor, accepted bribes of fifteen thousand Pi silks and one thousand Min money. “He was ordered to commit suicide at noon; the emperor sent messengers to give him wine and meal.”164 It’s an example of the favor to criminal officials before the execution. In May of the first year of the Jianyan period (1127 A.D.), Cai You and Xiao were ordered to commit suicide. Xiao drank the poison at 158

Zi Zhi Tong Jian, Volume 266 “March of the second year of Kaiping period of Emperor Taizu”, p. 8693. 159 Bei Meng Suo Yan, Volume 18 “death penalty on ill piety”, p. 339. 160 Zi Zhi Tong Jian, Volume 282 “June of the sixth year of Tianfu period of Emperor Gaozu”, p. 9224. 161 The Old History of the Five Dynasties, Volume 84 Book of Jin X; Biography of Emperor Shaodi IV, p. 1113. 162 The Criminal Law of Song Dynasty, Volume 30 Judgment “inappropriate measurement of penalty”, pp. 496–497. 163 The Criminal Law of Song Dynasty, Volume 30 Judgment “sentence of death penalty”, pp. 496– 497. 164 Zi Zhi Tong Jian, Volume 291 “January of the third year of Guangshun period of Emperor Taizu”, p. 9489.

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once. “You can’t make up his mind. The messengers gave him a rope, so You hanged himself.”165 It is an example of a suicide order executed by the criminal himself. At the same time, several cases of the practice that degraded officials were ordered to commit suicide on the halfway or in the exile place in the Tang Dynasty can also be found in the historical records of later dynasties: In the autumn of the first year of the Qianhua period (911 A.D.), Xiangzhou governor Li Si’an was degraded to be Liuzhou household official for the reason of “weak fortification and unsubstantial storage”166 and later ordered to commit suicide in Xiangzhou. In March of the first year of the Duangong period of Emperor Taizong of the Song dynasty (988 A.D.), Zhengzhou Tuanlianshi (assistant military governor) Hou Mochen committed a crime taking advantage of the position. “He exiled to imprisonment in Shangzhou and was later ordered to commit suicide.”167 On the fourth day of the first lunar month of the first year of the Zhidao period (995 A.D.), Zhao Zan and Zheng Changsi arrogantly committed crimes. “Zan was deprived of official rank, and all family members exiled Fangzhou. Changsi was instructed to serve as the deputy Tuanlianshi of Tuanzhou. A few days later after they set off, they were both ordered to commit suicide in the local place.”168 In addition, the practice of appointing an imperial censor to supervise the execution in the Tang Dynasty was also inherited by the judicial system of the Song Dynasty. In June of the first year of the Jianyan period (1127 A.D.), Zhang Bangchang was degraded and resettled in Tanzhou. “The imperial court appointed imperial censor Shi Masheng to transmit the suicide order. After he read the decree, Zhang Hao retreated and hesitated to commit suicide. The messenger forced him to go upstairs. Zhang raised his head and saw three characters. Then he sighed and committed suicide.”169

6 Summary Suicide order was one of the specific execution methods of the death penalty in the Tang Dynasty. Through case analysis and historical data comparison, we learned that the suicide order system of the Tang Dynasty was formed by combining the losses and increases of the law system at that time based on the inheritance of ancient etiquette spirit. The rule of suicide order was based on the stipulations of Prison Official Order and Comments on Laws of Tang Dynasty, formed many lawsuit conventions in judicial practice, and made many modifications to the stipulations on the law. 165

(Song) Zhou Hui, Annotation of Qingbo Journal, Volume 2 “Wang Fu was appointed to attack the Yan”, Liu Yongxiang annotated, Zhonghua Book Company, 1994, p. 42. 166 The Old History of the Five Dynasties, Volume 19 “Liang Shu 19-Li Si’an Biography”, p. 262. 167 The History of Song, Volume 5 Biography of Emperor Taizong II, p. 82. 168 Continuation of Zi Zhi Tong Jian, Volume 37 “January of the first year of Zhidao period of Emperor Taizong”, p. 808. 169 (Song) Wang Mingqing, Hui Zhu Yu Hua “Pingchu Building”, (Ming) Tao Zongyi and some others compiled, Shuo Fu San Zhong, Volume 37, Shanghai Ancient Books Publishing House, 1988, p. 629.

6 Summary

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The rule of suicide order in the Tang Dynasty was widely applicable with rigorous procedures. It demonstrated the application privilege of imperial family members and high-rank officials and at the same time reflected the strong intervention of the emperor’s power in the lawsuit. On the other hand, since the issuance of the suicide order procedure was totally up to the decision of the emperor and only applicable to the group with a special identity, it reflected significant differences from ordinary death penalties such as hanging and beheading in terms of the specific execution method. At the same time, the reasons for implementation and specific procedures of suicide order were directly influenced by political factors. It is often entangled with many negative factors, such as conflicts of imperial relatives, rivalries between different factions and violation of the law by powerful ministers, so that suicide order showed the reverse tendency against the stipulations of the law in judicial practice.

Conclusion

Rule Succession and Change Originating in Hsia, Shang and Chou (the three ancient Chinese dynasties), established in the Qin and Han Dynasties and collated in the Wei, Jin, and Northern and Southern Dynasties, traditional Chinese litigation civilization did not prosper until the Sui and Tang Dynasties. The development and evolution pattern of litigation rules of past dynasties, such as telling, arresting, trial and execution, has been clearly revealed. Litigation rules such as telling, retrial, case closing, joint hearing, conviction, argumentation, road drums (voice grievance), lung stones (voice grievance) and so on all have a long history and were directly followed by the law system of Sui and Tang Dynasties. At the same time, litigation rules in the Tang Dynasty were also updated on the basis of specific historical conditions, e.g., the creation of exile with extra servitude and long-term exile began in the Tang Dynasty. In addition, the asynchronous characteristics of dynastic change and rule evolution are worthy of special attention in the study of litigation law history. In some periods, the law changed dramatically as the country continued; in other situations, the dynasty was destroyed, but the legal system remained. For the litigation history of the Tang Dynasty, with the boundary of the “Rebellion of An and Shi”, from the period of Wude to the Kaiyuan period, the various types of canonical systems were closely related to the Zhou, Qi and Sui dynasties; from the Tianbao Period to the Tianyou Period, the rules were similar to those of the Five Dynasties and the two Song dynasties. The “Litigation Forbidding Law” (i.e., forbidding civil lawsuits during the agricultural season) was found in the Kaiyuan Order, and the “Bamboo Beating Conversion Law” (Converting other forms of punishment into bamboo beating) began to appear at the end of the Tang Dynasty. During the Five Dynasties, after experiencing various changes, they became established rules. The legislation and judicature of the Tang Dynasty reinforced, succeeded and co-created each other, thus achieving the distinctive style of the litigation civilization of the Tang Dynasty and establishing the pivotal position of the litigation system in this period in the traditional legal system of China.

© Science Press 2021 X. Chen, A Study of Criminal Proceeding Conventions in Tang Dynasty, https://doi.org/10.1007/978-981-16-3041-5

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Conclusion

Creation and Application of Rules The objective existence of a large number of judicial practice samples and the gradual standardization of legislative procedures are two basic preconditions for the creation of litigation rules. Judicial practice has always been the basis of law creation. In the Tang Dynasty, judicial trials not only strictly followed written litigation laws but also applied unwritten litigation practice for a long time. Obtaining regular rules through repeated legal practice and then accomplishing the creation of the law, such as Yang Sixun’s wife appealed to the emperor on her grievances, leading to the amendment of the Theft Law. King of Ji Li Shen, Commander of the general of the left guard, together with others, suggested banning the marriage among maternal relatives, are examples of this type. After the promulgation of the written laws, judicial trials must take the imperial rescript and law regulations as the main criterion of discretion. However, legal application and regulation creation did not stop. Disagreements and conflicts between litigation rules and practice must be solved by designing new rules. Therefore, legal application eventually leads to the revision of laws. Originating from judicial practice, after being cited and applied by the judiciary and approved and observed by the government and people, and before rising to “institutional rules” in the forms of “becoming a routine forever” and “being a pattern forever” or being compiled into the legal system, these rules can be referred to as “customary rules”. After that, litigation practice evolves in two directions: eventually rising to litigation rules after being adopted or approved by the legislature, or maintaining the customary form for a long time, and being practiced and improved in a specific field for a long time (such as the long-term application of appealing to the Censorate, joint hearing, and long-term exile as litigation practice). Overall, judicial practice has always been the impetus of the change of litigation rules. From litigation practice to law creation, from litigation convention to litigation system, and through long-term adjustment, reform and innovation, the evolution and development path of litigation rules system in the Tang Dynasty is clear to follow.

Litigation System and Practice In terms of the constitution of litigation rules, China’s inherent litigation rules basically include litigation systems and litigation practices, which complement each other, and each has its own emphasis. Since the Qin and Han Dynasties, with the gradual establishment of the legal system, the legislative pattern with the written code as the main form of legal expression gradually became dominant, litigation system seen in laws and decrees became the backbone of the legal rules. Compared with the litigation system, the operation and change of litigation practice are more dynamic. Litigation practice, often characterized by a non-written style, continuously repairs and perfects the litigation system in the process of building the legal system. Both the creation of a precedent and the consequent formation of practice are based

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on the litigation system. Throughout the development of litigation rules in the Sui and Tang Dynasties, we can conclude that there was an inverse distribution pattern between the litigation system and litigation practice: where the litigation system in a certain field is relatively complete, the role of litigation practice is relatively limited; if the litigation system in a certain field is not perfect, then litigation practice in this field is often popular. The development and perfection of the litigation system can never be separated from judicial practice and thus cannot be separated from litigation practice. In specific areas such as joint hearing and long-term exile, the rulers kept the procedural rules in a customary state for a long time and applied them for a long time. Litigation systems and litigation practices complement and influence each other and ultimately achieve the basic style of inheritance and reform of the inherent litigation civilization. Chinese traditional legal culture has become one of the world’s outstanding legal civilization heritages because of the integration of many reasonable elements, such as sentiment, reason and law.

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