Law and Society in Traditional China [1 ed.]

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Law and Society in Traditional China

ECOLE

SIXIEME

PRATIQUE

SECTION:

DES

HAUTES

SCIENCES

LE MONDE

ETUDES

~ SORBONNE}

ECONOMIQUES

ET SOCIALES

D’OUTRE-MER

PASSE ET PRESENT PREMIERE

SERIE

ETUDES IV

paris

MOUTON 1961

& CO

Lanaye

T’UNG-TSU CH’U 44 a)ill

LAW

AND

SOCIETY

IN TRADITIONAL

CHINA

WITHDRAWN M-03549 PARIS

MOUTON 1961

& CO

La Haye

©

Copyright

1961

by Mouton & Co.,

Publishers,

The Hague,

The Netherlands.

No part of this book may be reproduced or translated in any form, by print, photoprint,

microfilm, or any other means, without written permission from the publishers.

PRINTED

IN GERMANY BY J.J.AUGUSTIN, GLUCKSTADT

BEI HAMBURG

FOREWORD

The statement that China is passing through an unprecedented revo-

lution has almost become a platitude, but its very obviousness in no way diminishes its truth. The changes which this huge and venerable

country experienced in the past are negligible when compared with

the developments of the last decade. The reason for this difference in

degree—which amounts to a qualitative change— is that developments in the past hardly influenced fundamentals, if they ever did so at all,

whereas the present transformation deeply affects them. It is even

consciously aimed at changing the social structure and all that this

entails.

What is, or rather what was the social structure of the Chinese? Ever since the West became acquainted with China, Westerners have tried

to answer this question, but it is only in recent years that both in the

East and in the West attempts have been made to do so in a manner

compatible with modern scholarship. The need was felt to provide an

accurate gauge by which to measure the intensity of the impact of the West—a need felt both by social and political scientists in their endeavour to understand the process of acculturation synchronically and

diachronically. Examples of this type of study are the works by Olga

Lang and Marion B. Levy on the Chinese family, and Chang Chung-li’s study of the formation and the functions of the Chinese gentry in the Igth century. Aninsight into the social structure of China and an understanding of

its inner workings are essential for any student, not only for the student

of China's past, but also, and most particularly, for the student of China’s present. For although the ideas and ideals which are being put into practice in China today are essentially occidental in origin and

nature, they are applied in a Chinese milieu. Their “‘challenge’’ can

only bring forth a Chinese “response”.

In order to arrive at a correct appreciation and a clear analysis of this

response a thorough understanding of ancient China's society is a pre-

requisite. It also would make for a better insight into many problems in Chinese history. 1 Olga Lang, Chinese family and society (New Haven, 1946); Marion B. Levy, The family revolution in modern China (Cambridge, 1949); Chang Chung-li, The

Chinese gentry (Washington,

1955). These few books are only mentioned by way

of illustration; they are far from exhausting the long list of such studies.

2

FOREWORD

The present work by Professor Chii? gives us a detailed analysis of the hierarchical structure of China’s pre-modern society, and of the rules which this society evolved to regulate the behaviour of its members. As regards the latter, it is not so much a survey of the regulations in force at different periods as a study of their operation and their effectiveness and of the constant interplay between the living society and

its rules, both as formulated and as silently understood. In view of the peculiar nature of China’s written codes with their predominant stress on public law,® it goes without saying that Professor Chii pays the greatest attention to customary law, both as it was established in the so-called treatises on ritual and similar texts and as it can be deduced from other material. Aspecial word should be said about Professor Chii’s basic assumption

that during the last twothousand years Chinese society was static. The historian will be inclined at first to disagree, but on second thought he will realise that in spite of all growth and change (the ultimate disappearance of the feudal nobility, the emergence of a class resembling

the third estate in the West though without its political power, etc.),

the fundamental conditions which determined the structure of Chinese society remained unchanged. Without agreeing either to the theories of Marx or to those of his apparent antipode Wittfogel concerning oriental modes of production or oriental despotism, it is easy to appreciate the profoundly conservative traits of predominantly agricultural societies, where seafaring and trade played a relatively unimportant and sub-

servient part. It should not, however, be forgotten that during all these centuries Chinese authors, notwithstanding their great historical sense, consciously or unconsciously assumed that Chinese society was

static. This explains the enormous force of historical precedent. What had been applicable once, they felt, might be applied again.

The influence of the ancient structure of Chinese society and of ancient Chinese law, as well as of the specifically Chinese views on the function of law, remains to this day—in the fields both of public and of private law. This is clearly shown by recent developments in family

Jaw‘ and in criminal law.® As always, a better understanding of the

2 Lam well aware of the fact that according to the Wade-Giles system of transcription this surname is spelled Ch'ii. ® See for a discussion of this point ia. M. H. van der Valk’s contribution to Liétranger, Recueils de la Société Jean Bodin, IX and X (Bruxelles, 1958), PP. 267-303. 4 M.H.van der Valk, Conservative tendencies in modern Chinese family law (Leiden, 1956). 5 Communication on 8 September 1959 by K. Griill during the 12th Annual Conference on Chinese Studies, held at Cambridge.

FOREWORD

3

past will lead to a clearer appreciation of the present. It is my sincere belief that Professor Chii’s book will contribute to this better understanding and make for a clearer appreciation. This preface should have been written by the eminent Western specialist in the domain of Chinese law, Jean Escarra, Professeur 4 1’Uni-

versité de Paris.* He died before he had the opportunity to make even a first draft. I consider it a great honour that Professor Chii has asked

me to write a preface to his book. It affords me the pleasure of stating my indebtedness to both the late Jean Escarra and to Professor Chii, both of whom

I, in common with many others, honour as having been

my teachers through their works. Leiden

A. F. P. HutsEwE

* For a brief life history of this eminent scholar see T’oung Pao XLIV (1956), Pp. 304 ff.; this obituary note also contains a bibliography of his works on Chinese law.

PREFACE This is the English version of my earlier work in Chinese, Chinese Law

and Chinese Society (published in 1947), which was mainly based upon my lectures on Chinese social and legal history at the National Yiinnan University, China. I have made a free translation, and I have also taken this opportunity to improve my work by including those sources not available in the libraries of Kunming when during the war I prepared my Chinese text, and those works published after 1947. Besides, Thave not hestited to make changes when I felt that a different presentation was preferable or when I developed ideas different from my earlier viewpoint. Revisions are to be found here and there, especially

in Section 3 of Chapter VI, which was largely rewritten. But the main

theme and the basic concepts remain the same. My gratitude is due to Professor A. F. P. Hulsewé for his kindness in providing the Foreword. I am indebted to the late Professor Jean

Escarra, an authority on Chinese law, who scrutinized my manuscript

and offered valuable criticism. Professor A. L. Kroeber and Professor M. H. Fried read the entire manuscript; Professor R. M. Maclver and Professor S. M. Lipset read the chapters on social classes. For their

comments I am most grateful. My thanks are also due to Professor

Paul Demiéville and Mr. Fang Chao-ying for their suggestions and advice. Professor L. $. Yang had read my original book in Chinese before I began to prepare the English version, and therefore I have been able to benefit greatly from his criticism and suggestions. The author, of course, assumes complete responsibility for the faults and

shortcomings of this book. I wish to thank Mrs. Esther S. Goldfrank,

who edited my manuscript, and Mrs. Ruth S. Ricard, who typed it.

To the Institute of Pacific Relations I am indebted for its sponsoring

of the preparation of the English version, which was completed in 1955.

Finally, I wish to acknowledge my gratitude to the Center for East

Asian Studies of Harvard University for financial assistance toward the publication of this book. Cambridge, Massachusetts

October, 1959

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BSOUHCLOM nirountr oe

CONTENTS

su sccnwe cose teveee os vate Rent

eigen

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dnesr io een aaa

I, Family and Tsw..............

ete

15

farang

2

41. - Illicit Intercourse,

64.

-

Theft, 67. — Concealment, 70. - Juniors to be Punished as Substitutes, 74. - Postponement of Punishment and Pardon, 76.

4. Blood Revenge

............

5. Administrative Law and Fami

78 or

1, Meaning of Marriage

;

os

VOMIOR IONS Sart, donc atonssiie tos ens esaierwenene ence raro Seer

Endogamy, 91. — Relatives of Different Surnames, 94.-

Marriage with the Wife or Concubine of a Kinsman, 96.

3. The Role of Seniors in Arranging a Marriage .........

4. The Position of the Wife ........:.0-0¢0es006 5. Relations with Members of the Husband’s Family . G6. Divorce’ vase.e

The Seven Condition

7s COMCUDIBARE

41

87

TI. Marriage .. AE

5,

20

3. Criminal Law and Familism Homicide,

5

9

2, Father's Authority and

erate

eter eee

1. Scope of Family and Tsu ...........

Injury

Se

ei cing ss ses sae Use cle

or

99

102 110

sles wine Calais 123

TLL SOtiaE Classes four ieie vicina pisces swacnsia Grange se eonemene Ss 128

n

ois 135, serecislene caw poe Ta The style Ob kate: vice eiasisin acia Food, 136. — Clothing and Ornament, 137. — Houses, 141. — Carriages, 144. . 154 e . Marriage 16r. Class Endogamy, 154. — Wedding Ceremonies, » 163 . Funerals

. Ancestor Worship

.

Eaten)

108

TABLE OF CONTENTS

8

170

....

IV. Social Classes (continued)

. 170 1. The Law of the Feudal Nobles 1977 2. The Legal Privilege Nobles and Officials, 177. - Family Members of Nobles

and Officials, 185.

......... 3. Inequalities between the Free and the Mean 186. — Masters and Slaves, People and Common

186

Slaves, 188.

4, Inequalities between Races ..

V. Magic and Law 1, Ordeal

..

2. Supernatural Recompense

3. Taboo in Punishment

4. Black Magic

.

.

213

218

220

VI. The Confucian School and the Legal School

........... 226

1. Li versus Law The Li and the Confuciani: alists, 241.

ax Virtue and Pinshinentscai)2596 (eee 3. The Confucianization of Law

Conclusion ......... Bibliography

Index

..

.

een

247

............0 2000 e eee 267

INTRODUCTION The primary aim of this study is to analyze the main characteristics of traditional Chinese law before the introduction of modern law, that

is, from Han (202 B.C.-A.D. 220) to Ch’ing (1644-1912). Law, asone type

of social control, is closely related to customs and mores. It maintains and affects existing values and institutions, and it reflects the social structure of a particular society at a given time. It cannot, therefore, be treated as a separate entity apart from society. Since the law of any society has its owncharactersitics, the following discussion attempts to explain traditional Chinese law against the background of the social structure of China and to delineate that social structure as reflected in the law. The main characteristics of traditional Chinese law are to be found in the concept of family and in the system of classes. Since these con-

cepts are basic to Confucian ideology and to Chinese society, they are

also basic in Chinese law as well. The importance of familism has been

widely recognized, but the significance of the class system has been usually overlooked, both by Chinese and foreign scholars, some of

whom have even denied the very existence of classes in Chinese history. In fact, however, not only did social status determine an individual’s way of life, his rights and obligations under the law; it also dominated the Confucian ideology of the social order. The significance of these

differences is seen by the fact that specific laws were established to

deal with them, and the maintenance

of such differences was believed

essential to the maintenance of legal order. Two chapters, therefore, are devoted hereafter to the discussion of family and marriage, and two others to the social classes in China. Since the relevant ideology is essential to the understanding of an institution or to the existence of a particular law, the development of law in a society must be traced in the ideology within that society. The ideologies of the Legalists and Confucianists, both of whom were responsible for the form of ancient Chinese law, will be discussed. First, we seek to clarify the meaning and the function of i, which was the basis of Confucian political and social thought, and which unfortunately has often been overlooked or misunderstood by many scholars. Second, the Legalist thought is analyzed. Although no sytematic and

complete record is available, on the basis of historical data, we have

attempted to show (1) that the law of Ch’in (221-207 B.C.) and Han was

INTRODUCTION

10

compiled by the Legalists, and (2) that the elements of di were incorporated into the law by the Confucianists when they became influential

in government.

Confucianization

This

process,

which

may

be described as the

of the law, is of great significance in the develop-

ment of Chinese law.

Asecondaim icant changes riod from Han laws. Changes precedure and

of this study is to discern whether there were any signifcither in the law or the social structure during the peto Ch’ing times. No two dynasties had exactly the same appeared in the compilation of the codes, in judicial organization, in the system of punishment, in the degree

of punishment meted out to a certain crime, etc. These various aspects in Chinese legal history. The present form the subject of many studies study, however, is concerned with more significant changes, for we are convinced that the basic social and economic structure, including the family system and class structure, remained unchanged for about two thousand years, from the establishment of the Han empire to the overthrow of the Ch’ing empire. Since we believe that law in such a static society must also remain unchanged, our hypothesis is that traditional

Chinese

law, once its pattern

had

become

crystallized,

was

consistent before the introduction of modern Western law into the code. To test the validity of this hypothesis, the law of the various dynasties will be analyzed under the several main topics to determine whether they show any marked changes or basic differences.

Special attention will be paid to actual cases, for two reasons, Cases

are cited whenever data are available so as to clarify the meaning of a particular law. For instance, the law ruled that a dient son was punishable only when the parent’s instruction was and proper.” But what are “right and proper’ instructions?

actual disobe“right Under

what condition may a son's behavior be called disobedient ? Or again, a son was punishable if his parent committed suicide because of the son’s “‘violent and dire” threats. But what are “violent and dire” threats? Under what conditions may a son be responsible for his parent’s death? The answers can best be indicated by reference to actual cases. Only through such cases can we know how the law was interpreted and applied. Moreover, students of the social sciences wish to know the law in action, not only in words. We wish to know its actual operation in society, and for this we must look at the case records, which reveal the reaction of the people to the law, the kind and frequency of the violations, and the relation of these violations to a man’s economic and social status and to his residence in rural or urban districts. On the other hand, cases also reveal the attitude of government to law enforcement.

INTRODUCTION

IL

Was the law strictly enforced or was it merely formulated? If violations were frequent and the government did not act, or else acted unsuccessfully, then we may say that the law either did not function at

all or functioned weakly in society. Such data tell us whether there

was a gap between law and society, and the extent to which the law was adjusted to the actual situation. For instance, marriage between persons with the same surname, cross-cousin marriage, and levirate

were strictly forbidden by law, but widely accepted custom made this form of applying the law impossible, and led to certain adjustments

and modifications.

As the relationship between religion and Chinese law has generally

been overlooked, even by such outstanding scholars as Sir Henry Maine

and Dr. W. A. Robson, a discussion of this aspect will be included to show to what extent laws and legal practices were influenced by magic

and religion.

The above approach includes only a few aspects of the law, and thus

may appear inadequate or arbitrary. These aspects are not arbitrarily selected, however, but are chosen to represent the essential character-

istics of Chinese traditional law. It is hoped that they are presented

here in such a way that our interpretative synthesis will offer a valid

basis for comparative studies between traditional and modern Chinese

law, or between the law of

East and West.

Finally, the main sources used in the present study are as follows.

The code of the T’ang dynasty (618-906) is the earliest extant. Our knowledge of the preceding periods is therefore less satisfactory than that of the subsequent ones, whose complete codes have been preserved. This deficiency can be overcome in large measure, for many ancient

historians have written reliable summaries of the law and the legal

system.

Such

a summary,

the so-called

Treatise

on

Punishments

(Hsing-fa chih), is included in the following Dynastic Histories: Han shu

Chin shu (this treatise also gives a description of Wei law)

Wei shu Sui shu (the treatise covers also the law in Northern Ch’i,

Chin

Chou, Liang, and Ch’én briefly) T'ang shu

Hsin T'ang shu

Chiu Wu-tai shih

Sung shih

Liao shih

Chin shih

Yiian shih

INTRODUCTION

Hsin Yiian shih

Ming shih

Ching shih kao

Since the codes of Ch'in, Han, Wei (220-265), Chin (265-420), the

Southern

and Northern

Dynasties

(420-589),

and

Sui (589-618),

as

well as those of Liao (907-1125) and Chin (1115-1234), have long been lost, these treatises concerning these dynasties are of great value. However, none is a complete record of the law, but is merely a good summary of its essential points, at best. Many Han laws are quoted in the commentaries to such classics as the Chow li and the Kung-yang

chuan by Chéng Hsiian and Ho Hsiu. Much legal information is also

found in the annals and biographies of the various Dynastic Histories,

as well as in the various works of different authors. Such fragmentary information is particularly important when neither the code itself nor

a Treatise on Punishments is available.

For

T’ang, Sung (960-1279), Yiian (1260-1368), Ming (1368-1644),

and Ch’ing we have the following codes: Tang lit sui-i Sung hsing-t' ung Tung chih tiao-ko

Ta-Ming ling Ta-Ming lii-li

Ta-Clv'ing lit-li

Ta-Ch’ing hsien-hsing hsing-lit

The Yiian code is incomplete.

The present edition of T’ung chih t’iao-

ko! is only a part of the Ta-Yiian t’ung-chih. But detailed information can be obtained from Y ian tien-chang and Hsing-fa chihin the Yiian shih. Some comment must be made as to the dating of the cases presented. We have tried to find cases in all periods in order to illustrate the actual application of a law in each dynasty. As a matter of fact, however,

very few data are available for the earlier times, and thus most of the cases belong to the Ch’ing period.? Theearlier records were not reprinted as time passed, since the ancients considered this material of no historical or literary value. Only a few cases have been preserved in the form of the decisions written by certain famous scholar-officials. The 1 Only chilan 2-9, 13-22, and 30 of T’ung-chih t’iao-ko are preserved in the present edition, 2 Unless otherwise specified, the cases cited in the present work are always from the Ch'ing period. The titles of the Ch’ing case records, Hsing-an hui-lan and

others given in the footnotes, indicate the period in which the case occurred, For

the exact time covered by these case records, consult the Bibliography,

INTRODUCTION

13

shortcomings of this situation have produced an over-concentration of cases from one late dynasty. It may be argued that these data are not representative for earlier dynasties, but this kind of overconcen-

tration is a defect of the material itself. Furthermore, since none of the

cases in question occurred later than the first half of the nineteenth

century, it is probable that they do not deviate to any noteworthy

degree from the traditional patterns of old China, and may therefore be considered typical for the country at large.

I. Family and

Tsu

1. Scope of Family and Tsu Chinese kinship is patrilineal; only the descendants of the father’s are counted. Maternal relatives are called “outside” relatives

differentiated from one’s patri-lineage, known as ésu fg!

line and

The relation

of a person to his maternal relatives is remote and very limited.

Only one generation above and below the mother is considered, that is, only the mother’s parents, her brothers and sisters and their children.? That the relationship to members of one’s mother’s ésu is much less

close than that to comparable members of one’s father’s tsu is clearly indicated

in the mourning

attitudes

toward

system, which

serves as an index of the

degree of relationship recognized between the different parties, A comparison in the duration of mourning points up the different mourning,

is worn

paternal

and

for paternal

maternal

relatives.

grandparents,

Chi,

paternal

one-year

uncles

and

aunts, but maternal grandparents, uncles, and aunts are honored only with hsiao-Rung, five-month mourning, the same degree worn for a paternal grandfather's brothers and their children. Furthermore, takung, seven-month mourning, is worn for paternal parallel cousins, while only ssi-ma, three-month mourning, cross-cousins on the maternal side.

is worn

for parallel and

According to the I li “the mourning for relatives other than one’s

own

tsw is always

ssi."* This was raised to hsiao-kung for maternal

grandparents because of their age and for maternal aunts because of their relationship.4 Also

the mourning

for maternal

uncles was

not

increased to hsiao-kung until 640 when T’ang T’ai-tsung (627-649)

decided that maternal uncles were as close as maternal aunts and that

different degrees of mourning for them was unreasonable. 1 Thus “tsw”

“outside isu”

always refers to father's ‘sw; mother’s su is classified as

or “‘outside relatives” 9} fk, Yb BY (Evh-ya chu-su fi He HE Bi.

4, 8a-9b; I li chu-su (ME jt) 7: fe, 33 1b; Ssii-ma Ch'ien wi] M5 $s, Shih chi sh fa, 1, 6a). ie Hsiian-tsung ¥ 4¢ of T’ang (712~756) was the first to set up the rule that mourning must be worn for a mother’s paternal first cousins (Tu Yu

#L ffi. Tung tien 3h Mh, 02: 502;

Liu Hsii $j p14 and others, Chiu T'ang Shu

this regulation was not carried on in later 4 jie ar, 27, Sa-r1a). However, dynasties (Hsi Huang fii #{f and others, Hsiz t’ung tien $f ji sth, 80: 1622). 21 li chu-su 33, tb; John Steele, The I-Li or Book of Etiquette and Ceremonial (London, 1917), II, 34. Cf. S. Couvreur, Cérémonial (Hsien Hsien, 1928), 424. 8 T’ung tien, 92: 502; 94: 701; Ch'iu T’ang-shu, 27, 1a-2a. 4 Loc. cit.

FAMILY AND TSU

16

The categories of kin recognized within the paternal

fsw are much

more extended. Theoretically speaking, all male descendants from a common ancestor are included in the ¢su and considered kinsmen, but not all the kinsmen are of the same relationship. Relatives are assigned to a number of mourning units within which specific kinship terms are used. Members of a ¢sw outside a particular mourning unit address each other simply as ‘“‘kinsmen”, “‘fsw-uncle”’, “¢sw-brother’’, or ‘“‘tsvnephew”. For these no mourning is worn. A mourning unit includes only descendants from a common greatgreat grandfather down to his great-great grandchildren. This group

constitutes the nine ¢sw,® the unit within which kinship is recognized.

* There were many debates among Han scholars concerning the actual meaning of the nine tsw jp, fife. One school asserted that they included the relatives of different surnames (different isu) as well as the descendants of the paternal side (one’s own fsu). Hsia-hou Shéng $9 (& jj, Hsia-hou Chien $f (& Ht, Ouyang shéng ji 8} 7:, and other scholars of the chin-wén 43 school all belong to this group. According to them, the nine tsu comprised four paternal fs, three maternal fsu, and two affinal tsu. The four paternal tsu include: 1) the five tsu (i. e. the five degrees of relationship), 2) father’s married sisters and their sons, 3) one’s married sisters and their sons, 4) one's married daughters and their sons, The three maternal fsw include: 1) mother’s father's ‘su, 2) mother’s mother’s és, 3) mother’s married sisters and their sons. The two affinal fsx include: 1) wife's father's ¢su and 2) wife’s mother's ts (Shang-shu chu-sw Bk Ae (4 VE Ble, ©, 10b). {8 FE YE BE. 2, 5a; Ch’un-ch’iu Tso chuan chu-su 3g es surnames of different Although the Pai-hu t'ung (3 = 3i§ also includes relativ in the nine tsu, it defines them differently. Here the first of the four paternal tsu comprises all paternal kinsmen instead of only members within the five degrees of relationship, and among the mother’s tsu the ‘su of the mother's father and mother’s mother are considered not as two but as a single ts. The other two maternal tsu comprise 1) the mother’s brothers and sisters and 2) the sons of mother’s brothers and sisters (Pai-hw t'ung, 8, 6b-7a). Tu

Yi

ff ffi

mother, mother’

sisters’

claims

sons, daughters’

that

the

nine ts include

that women

father, mother’s

" sons, wife's father, wife's mother, father’s sisters’ sons,

sons, and one’s kinsmen (Tso chuan chu-su, 6, 10b).

This classification differs from the two given only the sons of father’s sisters, of one’s own mother's sisters, whereas father’s sisters, one’s mother’s sisters are not included, He excludes argued

a mother’s

could

not

belong

above in one respect. It includes sisters s daughters, and of own sisters, one’s daughters, and them because Chéng Hsiian #f Ye

to a fsu different

from

their father’s

and

brothers’ (Tso chuan chu-su, 6, 11b). ‘The ku-wén 4; 3 school on the other hand insists that the nine ts comprise only individuals bearing the same surname. K’ung An-kuo Jl, 4 [i], Ma Jung 15 fi, and Chéng Hsiian all agree that the nine su include those family members from great-great-grandfather down to great-great grandson (Shang-

shie chu-su, 2, 5a; Tso chuan chu-su, 6, 11b; Lu

‘Té-ming pi $f Bi), Ching tien

shih-wén $& MM $¥ 3x, 3, 3a). Later scholars such as Lii Té-ming, Ku Yen-wu

i 4 GK, and Sun Hsing-yen 4¥ Jp {fj all support the statement of K’ung, Ma, and Chéng (Ching tien shih-wén, 3, 3a; Ku Yen-wu, Jih chih lu chi-shih F] Sy GR

SCOPE OF FAMILY AND TSU It is also called the “group of the five mournings”’,

17 the closeness of

relationship being defined according to the individual's place in the

mourning system.’ The five, arranged according to magnitude are: chan-ts'ui, t2it-ts'ui, ta-kung, hsiao-kung and ssit-ma, the last being the

mourning for marginal relatives. That is why the Li chi says: In counting kindred (and the mourning to be worn for them), the three closest degrees become expanded into five, and those five again into nine. 4fe FH, 2, 2a-3b; Sun Hsing-yen, Shang-shu chin hu wén su (lj BH & G3 He 2A, 72). Chéng’s basic arguments are based upon the following statement of the Li chi: in counting the kindred (and the mourning to be worn for them), the three closest degrees become extended into five, and those five again into nine’ (Li chi chu-su, 32, 3b). Ku Yen-wu supports him strongly, saying that the quoted statement from the Li chi is most authoritative and offers further evidence from the Tso chuan and history that tsu always refers to the members of the same surname (Jif chih lu, 2, 22-3b). The meaning of nine tsu in its earliest usage may never be known, but one thing is definite: as far as later usage and legal definition are concerned the nine fsu include only those of the same surname. This was made clear in the Pén-tsung chiu-tsu wu-fut'u AS 32 Au HK Fi. AR Bl (the chart of the nine ¢su and five degrees of mourning of one’s own sung), which was included in the Yan

tien-chang 7¢ ih #2, Ta-Ming hui-tien A Uk, Ming code and Ch’ing code (Za-yian shéng-chéng kuo-ch'ao tien-chang fe Fi. W Bir fl HH AML — hereafter

teferred as Yiian tien-chang — 30, 5b; Ming hui-tien, 102, 63b-64a; Ming lit

chi-chich fr li RF $ft 4fe HF et fH] — hereafter abbreviated as Minglié li— 13b-14a; Ta-ch’ing lit li hui-chi pien-lun Hs {It il He $i (WE GB — hereafter abbreviated as Ch’ing lit li — 2, 36b-372). 7 The Five mournings vary both in the length of term and the kind of material work. (The heavier the mourning, the coarser the material.) . Chan-ts'ui ik 3 3: years 2. Totiets'ui HR FE a. 3 years b. Chi iy] (x year) ¢. 5 months d. 3 months

3. Ta-hung 4 Sy 9 months 4. Hsiao-kung 7}. $y 5 months 5. Ssti-ma #19 jie

3 months

2b, 3, 4, 5 are worn for collateral relatives, and the term chi, ta-kung, hsiao-kung, or ssii-ma is usually used as a prefix for collaterial relatives, such as chi uncle or hsiao-kung brother, to describe the degree of relationship. Therefore we adopt the following simpler system for the convenience of the reader: 1. Chi — 1st degree relative 2. Ta-kung — 2nd degree relative 3. Hsiao-hung — 3rd degree relative 4. Ssii-ma — 4th degree relative. This should not be confused with the five degrees of mourning described above.

FAMILY AND TSU

18

The mourning diminished as the degrees ascend or descend, and the collateral branches also were correspondingly less mourned for; and the mourning for kindred thus came to an end. And it further states:

For parties four generations removed (from the same common ancestor) the mourning was reduced to that worn for three months, and this was the limit of wearing the hempen cloth. If the generations were five, the shoulders were bared and the cincture assumed; and in this way the mourning within the circle of the same was gradually reduced. After the sixth generation the bond of kinship was held to be at an end.

The first deals with the generations,

and the second deals with the

mournings. Practically they mean the same thing. Both define the scope of the group. The scope of the mourning is at the same time the

scope of the group.

A tsu or “‘five-mourning” group may at times operate as a single economic unit. At times it may not. If a whole tsw lives together, the household will inevitably be a large one, but in most cases the ¢su is

divided into a number of families, each of which is a separate economic

unit. Generally the family includes not more than two or three generations: the old couple, their married sons and unmarried grandchildren.

Among the great majority of the population, and particularly among the peasants, brothers separate when

their parents

die, and

them sets up his own domicile for his own wife and children.

each of

The ancient saying, “‘ta-kung have their properties in common”

suggests that cousins descended from the same paternal grandparents

lived together. In 359 B.C. a father in the State of Ch'in had his tax

doubled if he had two sons and did not set up separate residences, and

a law prohibited a father and his sons or brothers from living together

in the same room.!°

That such regulations were instituted at all would seem to indicate

that at least in certain strata of society it had been usual for sons to

live with their parents after marriage. Mencius frequently mentions the serving of a father and elder brothers at home,' and also notes the separation of brothers, wives and children in time of disorder. We learn

that Han Yiian-ch’ang $# 9 Je and his brothers lived together until

* Li chi chu-su, 32, 3b; Legge, The Texts of Confucianism, I1I-IV, the Li Ki (F. M. Miiller, editor, The Sacred Books of the East, XXVIII-XXIX, Oxford, 1885), IV, 42. Cf. S. Couvreur, Li Ki, ou Mémoires sur les bienséances et les cévémonies, 2 vols. (Ho Chien Fu, 1913), I, 744-745. * Li chi chu-su, 34, 4b; Legge, ibid., IV, 63; cf. Couvreur, ibid., I, 780-781. 10 Shih chi, 68, 3b-4a. 1 Méng-tert che-su ah -F- 34: Hig tA, 7a; Legge, Chinese Classics, 11, The Works of Meneius (London, 1861), 135-136.

SCOPE OF FAMILY AND TSU

they were toothless;!” that in Fan Chung’s

19

% Wf (before A.D. 22)

family property was held in common for three generations;}* that Ts’ai

Yung 4% & (159-192) lived together with his uncle and cousins and held their family property in common for three generations and that

for this reason he and his uncle and cousins were honored by their

neighbors for their righteousness. To pay so much attention to families who continued to hold their property in common would seem to indicate that, at least in the Han dynasty, such practice was more the exception than the rule after the death of parents. In all probability the behaviour of Miao Yung's # ]% (2nd century) four brothers was

not unusual. While they were single, the family property was held in

common, but after they married they wanted to separate and divide it.

They were deterred in so doing by their eldest brother Yung who felt

that their scholarly family would be shamed by such action. He shut

himself up in his room,

and

castigated

himself

until his

younger

brothers and their wives repented and appealed for his forgiveness."

A family of commoners would have had a different attitude and their final decision would almost certainly have been a different one.

There were, of course, “righteous doors”, i-mén #€["|, with families

of several hundred or even a thousand’* members living together for

32 Tao Chien fiy #8, Tao Yisan-ming chi [ty J BA 46, 8, 2a. 38 Fan Veh #f [i#, Hou-Han shu 4% if @, 32, 12.

44 Hou-Han shu, 60B, 2a.

38 Hou-Han shu, 81, 24b.

36 According to historial records, there were large households in which

family

members had lived together for four and even more than twenty generations. The

number of family members varied from one hundred to several hundred. A certain

Hsii # family in the Sung dynasty had 781 members. A Fang Jj family of the same period had seven hundred members.

The largest family known is a Ch’én

{if family which had 3764 members and had lived together for about four hundred years. (For details see Fang Hsiian-ling fj X& ih, Chin shu 2 Zr, o1, 4a; Wei

Shou $f Iie, Wei shu $M ar, 58, 33a; 87, 8b; Hsiao Tzi-hsien fy 7 gf, Nan

Ch'i shu iG 9% BE, 55, 7; Wei Cheng BY #% and others, Sui shu [ff BE, 72, 6b; Chiu T’ang shu, 188, 22-b; Ou-yang Hsiu jth ff 4 and others, Hsin T'ang shu 3 fF BE, 195, 3a-b; Ou-yang Hsiu, Hsin Wu-tai shih Pf i {& SB, 62, 4b; T'o-t'o jig fit and Ou-yang Hsiian pik ff} ¥, Sung shih 9B sf, 456, 4b-5a, 6b-7a, rob, 13a-b, 15b—16a; Sung hui-yao kao Fe fe YER, ts'é fy} 41, Ui WY Or, 1a ff; Wang Vung ¥ fi, Yen ii mou lu fie 32 i 2 BE, 5, Ob; Shih Su hj 7 and others,

Chia-t’ai K’ uai-chi chih $f, $e

Fie s&s 13, 21D; Sung Lien 4 jj and others, Yan

shih Fé $2, 197, 4-52; 8a,12a-b; Chang T'ing-yii ig #L Jz and others, Ming shih Bil 3B, 296, 8b-oa, 10a, 12b; Chao I jf I, Kai yit ts'ung-h'ao BY Ue HEH, 39,

1a-2b: Ch’u Huang Sung-hu Ch'én-shih hsii-pien pén-tsung z

® # oe

=

x 22 BM, shou-chaan 4g, ch'un-pu Ag Hf, 68a, 78b, 81b; hsia-pu HF Hf, chung-hsi tsung-p'e FS (iS TG WED EE at (eS ae Hsi-t'an ee ae #2 Ai, 1, Chiang-chou Ch'én-shih i-mén shih-shih TL My (at IS 3 PH AE BE 2a-sa; Piling shuang-huei-li Ch'én-shih tsung-p'u BE pie Wk HE EBL IG 32 AM, 2, chu

chia te'tt-hsit eH

IK FF, 18-24).

20

FAMILY AND TSU

generations. Such a group might include that whole “five-mourning” group or even a whole és, if the family and és were identical. But as large as this were obviously the exception, possible only households for families of officials who had a long tradition of filial and fraternal ethics and at the same time large property, landed and other. Education and a favored economic position were necessary prerequisites for such living arrangements. Ordinarily, however, the family and ts» were not identical. The first was an economic unit whose members lived together; the second a biological unit, comprising in most instances, a number of families each of which constituted an independent economic unit.

2, Father’s Authority The Chinese family was patriarchal. The grandfather or father was the

ruling head and had authority over all the members of the family,

including his wife and concubines, his sons and grandsons, their wives and children, his unmarried daughters, his collateral relatives who were

junior to him and who shared his domicile, his slaves and servants. His

control of the family economy and his power to make financial decisions strengthened his authority. In addition, since the concept of ancestor

worship was central to the perpetuation and solidarity of the family, the authority of the family head, who was also the family priest, was further enhanced. Finally, his authority was recognized and supported by the law. In a family of two generations, which includes only parents and

children, the father is the absolute head. In a family of three gener-

ations, the grandfather is the supreme authority. Every family, large or small, has a recognized head who exercises absolute and permanent authority over his male descendants. Even when sons and grandsons are of age they have no right to independence. The character fu &, “father,” according to the earliest Chinese dictionary, the Shwo wén, means “a model, a head of the family who educates.” It is formed by a hand holding a stick,” its composition obviously underlining the head’s coercive power and not the biological connections. The father or grandfather has indeed power to punish a disobedient son or grandson, and that with the approval of society and the authorization of the law. The Lii-shih ch’un-ch’iu says, “If there is no anger or punishment in the family, the faults of the children will

1 Hsii Shén 3 4ft, Sho wén chich-tew Bb x fk =, 3B, 4a.

FATHER’S AUTHORITY

2m

immediately appear.’"8 The Yen-shih chia-hsiin (Family Instructions of Yen) also says, “If beating and anger are abandoned in the family, the faults of children will immediately appear; when punishments are not properly administered, the people do not know how to move hand or foot. To rule a family strictly should be the same as to rule a nation.” Even an adult son cannot with impunity insist upon exercising his own will, and a properly filial son will accept punishment willingly even if it causes him to bleed. He is instructed “not to be

angry and resentful, but be (still) more reverential and more filial.” The

filial behavior of Shun #£*1 and Tséng Shén ff 48 (5th century B.C.),2*

had long served as a model. It is constantly impressed on the minds of the people, and most particularly on the minds of those who are

scholars. Ts’ao Chu #¥ #$ (third and second century B.C.) and Ts’ui

Lieh # #1 (second century) were beaten by their fathers after they had become officials. The supremacy of a father’s authority does not mean that the

mother is without authority over her children. After the death of her

husband, and during his lifetime if there is agreement between them, a mother exercises as much authority over her children as a father. In the Liang dynasty (502-557), Wang Séng-pien’s =. {@ ## mother

beat him even when he was over forty years of age.”

Did a father have the power of life and death over his son? Did the Jus vitae necisque operate in China? There is no definite information on this point, but certain concrete cases offer some clues. Hua Fei-sui

42 4% 3& (6th century B.C.), Minister of War in the Sung state, had two sons, To-liao % ff and Shu 48. The brothers disliked each other and

the former slandered the latter to the Duke of Sung. When their father heard of this, he said, “I have a slanderous son, yet I have not been

18 Lii-shih ch’un-ch’in I YG ¥€ $k, 7) 3b. For a discussion of Lii Pu-wei's 2 AK He (d. 235 B.C.) life and the compilation of this work by his guests, see Ch’ien Mu §§ fit, Hsien-Ch'in chu ta hsi-nien kiao-pien $e He He T- ME 48 A HE. Pp. 448-451.

® Yen Chib-t’ui fj Z Hf, Yen-shih chia-hsiun | [EH Hill, A, 7e-Ba. ® Li chi chu-su, 27, 5b; Legge, Teats of Confucianism, III, 457; Couvreur, Li Ki, I, 63 . e K teed chia-yit JL, $- % #, 4, 5a-D. For a discussion on the authenticity of this text, see Yao Chi-héng jgk p& 44, Ku chin wei-shu hao Fj 4 (5 HB, x1b; Huang Viin-mei $j 32 Ji], Ku chin wei-shu-h'ao pu-chéng & 4 {BB

Hii HE 69-71.

22 28 8 2

K'ung-tzit chia-yi, 5b. Shih chi, 54, 7b; Pan Ku Hf [a], Han shee Yt BE, 39, 12a. Hou-Han shu, 52, 28a-b. Yen-shih chia-hsiim, A, 2b.

ae

FAMILY AND TSU

able to put him to death.” Evidently, in the tsung-fa*” period when this episode occurred, a father had the power of life and death over ason. While Fu-su 4 # (d. 210 B.C.), a prince of Ch’in, was absent from the court, his younger brother sent him a message purporting to be from their father, the First Emperor of Ch’in (221-210 B.C.), ordering

him to kill himself. On receiving it, Fu-su said, “When a father com-

mands his son to die, how can a son dare to implore ?””8 Gradually, however, the power of life and death became the right of the sovereign only. Pai-hu t’ung reads, “Why should a father be executed for killing his son? Because human beings are most important

in the nature of heaven and earth. Human beings are produced by heaven, but merely through the medium of their parents. The king provides a living for them and educates them. Therefore the father can have no claim on them.”®° Obviously in the time of Han (Former Han

202 B.C.-A.D. 9; Later Han 25-220) it was illegal for a father to kill his

son. Concrete cases also show that the killing of a son as well as

infanticide was punished.*

2% Tso chuan chu-su, 50, 2; Legge, Chinese Classics, V, The Ch’un Ts'ew with the Tso Chuen (London, 1872), pt. II, 688. Cf. Couvreur, Tch'ouen Ts'iow et Tso Tchouan, 3 vols. (Ho Chien Fu, 1914), IIT, 334. 2 For the meaning of tsung-fa #2 jz, see pp. 31-36. ® Shih chi, 87, 11b-r2a. » Pai-hu tung, 4, 5b. Cf. Tjan Tjoe Som, Po Hu T’ung. The Comprehensive Discussion in the White Tiger Hall, 2 vols. (Sinica Leidensia, Vol. VI, Leiden, 1949, 1952), II, 456. For a discussion of the text, see I, 1-178. ™ There is not a single case reported in the history of Former or Later Han showing that a father actually killed his son. In the Han shu (67, 15a) it is stated that Wang Mang + 3¢ killed his son Yi $#. However, according to Wang Mang’s biography, he did not himself kill Vi; instead he ordered his arrest and sent him to prison where Yii took poison and died. Legally speaking, Yii was killed by the government (Han Shu, 99A, 20b-21a), Later, Wang Mang killed another son by giving him poison; the latter refused to drink it and killed himself with a knife (Han shu, 97C, 13a). However, this incident took place after Wang Mang had ascended the throne, and it should be noted that an emperor had the power to force anyone to die by giving him poison or a sword. A similar case is reported in which a father killed his son with poison (Han shu, 68, 2b). However, it is not clear whether he actually murdered his son or merely ordered the son to commit suicide by taking poison. The latter seems to be the more likely since to order a son to commit suicide was the most common pattern as shown by other cases (Han shu, 9A, 4a; Hou-Han shu, 41, t4b. Inthe first instance it is merely reported that the son was ordered to commit suicide; in the second itis clearly stated that the father ordered his son to take poison.). Obviously there is a great difference in legal responsibility between killing a son and ordering him to commit suicide, Probably the latter was the only way to avoid legal punishment. A king who was angry with his son scolded him, whereupon the son committed suicide. This event was reported to the emperor by the chancellor (Hou-Han shw, 50, 4b). As no action was taken by the government in the matter,

FATHER’S AUTHORITY

23

According to the law of the Northern Wei (386-535), grandparents or

parents who killed their grandchildren or children in anger with a knife were sentenced to five-year punishment; those who beat their grandchildren or children to death were given a term of four years. Ifa son was killed intentionally and as the result of hatred, the punishment was increased by one degree.*t Under T’ang (618-906) and Sung (960-1279) law, the killing of a son or grandson, irrespective of the reason, was punishable by imprisonment. If the child was killed because he was disobedient, the punishment was one degree less than that imposed for killing with intent: that is, one and one-half years for beating to death and two years for killing with a weapon.*? However,

a plea that a child had been killed because

he was disobedient was only recognized when the order was proper one and could have been obeyed. If not, the child was not considered disobedient and the parents or grandparents, as the case might be, were punished under the law for killing with intent.** Under the law of the Yiian, (1260-1368), Ming (1368-1644), and Ch’ing (1644-1912) dynasties the rights of the parents over a child were the implication is that a father was not held responsible for such a suicide. How-

ever, on the other hand, reporting the case to the Court implies that the death of a son was a serious matter, calling for investigation, and that the outcome might have

been different if the death

had been occasioned

by the father instead

of

its being a suicide. Once two murder cases were reported to a magistrate: ina southern citya man

was killed by a robber and ina northern city a man was killed by his mother. The

magistrate was so angry about the second case that he said it was not surprising for a robber to kill someone, but it was against heaven and principle to kill a son. He then investigated this case first and punished the mother (Huo-Han shu, 67, 34b-35a). Cases also indicate that parents were punishable for infantcide. The deed was

treated as ordinary homicide and might lead to the death punishment (Hou-Han shu, 67, 34-35; 77, 16a). These facts also support the assumption that a father was not allowed

under Han

law to kill his son directly

(cf. A. F. P. Hulsewé,

Remnants of Han Law, Vol. I, Introductory Studies and an Annotated Translation of Chapters 22 and 23 of the History of the Former Han Dynasty (Sinica Leidensia, Vol. IX, Leiden, 1955], 88-89). 31 Wei shu, 111, 23a.

32 Chang-sun Wu-chi {3 % Jat &, T’ang lit su-i fie FE Hig FE, 22, ob; Sung hsingtung FE FA Ee, 22,9a-b. T’u $f, which is rendered as “imprisonment,” actually was a sort

of penal

servitude.

times, convicts

Since Ch’in and Han

were ob-

liged for one or more years to do various kinds of labor. This punishment was not given the name /’u until the Northern Chou dynasty, the term varying from

one to five years. The

practice

was

followed

by

the

Sui

and

the

sub-

sequent dynasties down to the Ch'ing, but the term varied from one to three years (see Shén Chia-pén, Hsing-chih fén-k'ao, 13, toaff). % T’ang-lit su-i, 22, 10a; 24, 3a-b; Sung hsing-t’ung, 22, 9b; 24, 3b.

FAMILY AND TSU

24

much broader than they had been in the T’ang and Sung periods. In the later times, the parents of a child who had been unfilial to the point of scolding or beating them were not found guilty if they killed him for such behaviour.** There are even cases where parents were not found guilty when the child was killed “‘inhumanely”.

‘A case from Ch’ing times throws light on these points. Wang Ch’i’s eldest son, Wang ch’ao-tung, hated his younger brother. At one time, the former chased the latter, knife in hand. The father caught Wang ch’ao-tung, tied his hands together and scolded him, The son answered back. by This so angered Wang Ch’i that he buried his son alive. He was sentenced the General of Chi-lin for killing his son inhumanely after the latter had disobeyed instructions. But the Minister of Justice held that since a son who scolded his father was punishable by death, the case should not be considered under the article that dealt with a child who was killed because he had disobeyed instructions. As a result, Wang Ch’i went unpunished.%> Nor in these later dynasties were the parents

guilty when beating of unexpected death. Only they held to account. comparatively slight —

or grandparents

held

a disobedient son or grandson caused his when the child was killed “inhumanely” were In the first instance the punishment was one hundred strokes under Ming and Ch’ing

law, and a fine of fifteen ounces of silver in the revised Ch’ing Criminal

Code of 1910, the Ch’ing hsien-hsing hsing-lii.2*

The term “disobeying instructions” can be variously interpreted, but

the disregarding of a father’s warnings against gambling, adultery, or theft falls clearly within this category. For instance, the son of Chang Yung frequently committed theft outside his home. His father admonished him repeatedly but the latter paid no heed. Thereupon the father strangled his child with a piece of rope. Under the law the father was punished for beating inhumanely a son who had “disobeyed instructions.”’*7 Tf, however, the son had been a

habitual thief, his crime would have

been more serious than “disobeying instructions”, and the father would

not have been held guilty, even though he had beaten him to death inhumanely. The case of Li Tseng-ts’ai, whose son stole frequently, illustrates this point. The father asked a person not belonging to his

% Yuan shih, 105, 12a; Ming liv li, 20, 38b-30a; Ch’ing lui li, 28, 60a; G.T. Staunton, Ta Tsing Leu Lee; Being the Fundamental Laws, and a Selection from the Supplementary Statutes, of the Penal Code of China (London, 1810), 348-349; Gui Boulais, Manuel du code chinois (Shanghai, 1923), 617. ® Chu Ch’ing-ch’i it $8 iit, Hsing-an hui-lan Fp] a GE, 44, 10-20. 3% Ming lit li, 20, 38b-39a; Chi'ing lit li, 28, 50a-60a; Ta-Ch’ing hsien-hsing hsing-

4a KY Bd 45 TH AE, 25, 15a; Staunten, op. cit., 347; Boulais, of. cit., 617.

® Hsing-an hui-lan, 44, 3a-4b.

FATHER’S AUTHORITY

25

family to help him bind up his son, whom he then struck with the back of an iron axe. The son screamed and rolled on the ground. The father

then severed his son’s leg muscles and the boy died. The Ministry of Justice held that since the son was a habitual thief, Li Tseng-ts’ai should go unpunished.** A loose-living daughter, whose behaviour was bringing shame upon her ancestors, might be killed by her parents with impunity. The two men who strangled their daughters to death and the one who caused his daughter's death by hacking her flesh, all went unpunished.

Moreover,

the accusation

of “disobeying instructions”

made for trivial infringements.

was

often

Ch’én Shih-tzii ordered his son to go to the field to mix manure with him.

The son sought to be excused from accompanying his father, but after being

urged and scolded he went along. Anger, however, showed in his face and he did no work when he got there. The father shouted and continued to scold.

The son wept unceasingly. The father became so angry that he strangled him.

In accordance with the law for killing a son with intent, the Governor of

Shansi sentenced Ch’én Shih-tzii to sixty strokes and one year in prison.

However,

the Ministry of Justice which reviewed the case held that

since

the son had failed to listen to his father’s instructions he had been disobedient. The father’s sentence under the article on the inhumane beating of a son who disobeyed was changed to one hundred strokes and no term of confinement. Tf, in the above

case,

the son had

not been

killed inhumanely,

the

parent would not have been adjudged guilty nor would he have been punished. In addition, it should be noted that if parents claimed they

had killed their son because he had “disobeyed instructions”, the court

would not investigate the matter further. In some cases the court documents mention only that the son “‘disobeyed instructions” without noting the cause.‘ Besides recognizing the parent’s right to punish a son, the law also gave him the right to ask to have his son punished by the local authorities. The chief reasons for asking that a son be punished were that he had disobeyed instructions and that he was unfilial. During the T’ang and Sung periods, the punishment for the first was two years’ imprisonment,#? and during the Ming and Ch’ing periods one hundred strokes.‘

Unfilial behaviour was the more serious crime, and punishment for it was therefore much heavier. The grounds for such an accusation were

8 Chu Ch’ing-ch’i, Hi tseng hsing-an hui-lan 3% 3 Jf 3 Ge FE, 12, 4a-d. * Thid., 10a. © Tbid., 5a-b. %® Hsing-an hui-lan, 44, 20-32. * T'ang lu su-i, 24, 3a; Sung hsing-t’ung, 24, 3b. «9 Ming liz li, 22, 37a; Ch’ing lit li, 30, 76a; Staunton, op. cit., 374; Boulais, op. cit., 648.

26

FAMILY AND TSU

the prosecution or cursing of one’s grandparents or parents; not living with grandparents or parents and separating one’s property from theirs; failure to support one’s grandparents or parents; marrying, entertaining, or ceasing to observe mourning before the end of the required mourning period; concealing a parent’s death; and falsely announcing a grandparent’s or parent’s death." The punishment for each of these infringements of the law was clearly fixed in the code. However, if a parent prosecuted a child as unfilial or on other grounds,

the authorities would not reject the case for this reason. Among the causes of filial impiety mentioned, only prosecuting or cursing one’s parents was punishable by death. But if a parent asked the death sentence for his offspring, the authorities might acquiesce, without giving any consideration to the grounds on which the suit was brought. Such procedures underline the manner in which the law favored the father’s authority. While the actual decision as to life or death was transferred from the father to the government authorities, the father still had the power to initiate the action against his son and

to recommend the death sentence. The government merely acted as his

agent and carried out his will. Under the law of the Sung dynasty (420-479), a parent’s request that an unfilial child be given the death

sentence was automatically granted.*

During the T’ang dynasty, the situation was similar. While Li Chieh

7% ft was the Prefect of Honan, a widow came before him and accused her son of being unfilial. The latter did not defend himself, but said, “Having offended my mother, I deserve to die.” Observing that the son was not unfilial, Li said to the widow, “You are a widow and have only one son. Now you prosecute your son and want him put to death. Will you not regret this ?’”” The widow answered, “My son is worthless. He is not obedient to his mother. Why should I regret it?” Li Chieh said, “If that is so, you can go and buy a coffin.’"#6 All it was necessary for the mother to say was that her son did not agree with her, although according to the law this was not a crime punishable by death. It seems

that the authorities were supposed to do what the parent asked. A Sung magistrate, Shih Chiin st ¥ (1129-1203), once remarked that he always punished the sons according to the will of their parents. Probably this reflected the general attitude of the officials of his time. He also pointed out that if a son was punished to the full extent defined by the law, it would have an ill effect on the affection between the parents and the

“* Tang la su-i, , 18b; Sung hsing-t’ung, 1, 5a; Yizan shih, 102, 5a; Ming lu li, 1, 5a; Ch'ing li li, 4, 19a; Boulais, op. cit., 30.

45 Shén Viieh pf $4, Sung shu gear, 64, 16b.

“© Chang Cho ag 228: Ch'ao yeh chien tsai 48 BF $ WE 5, 50.

FATHER’S AUTHORITY son.‘? However,

it is not clear whether

27

a punishment

which

went

beyond the law was permissible. During the Ch’ing dynasty, the law gave the parents the right to ask that a son be banished. If a child failed to heed instructions or was impolite, the parents could approach the authorities and make their demands under the law. It was customary to banish disobedient and unfilial sons to Yiinnan, Kweichow, Kwangtung, or Kwangsi.** A general amnesty applied to such offenders only upon the request of their parents, release thus depending upon the will of the parent and not upon pity for the wrong-doer. In general, parents asked to have their

sons prosecuted or banished because of intense anger. However, as time passed, their love for their sons often revived. They would regret

what they had done and ask for their son’s return.” Or, if their other

sons died, they might ask that the erring one be permitted to come back to them, to provide for and serve them. Usually such requests were granted, even if there was no general amnesty. A certain Lin of Kwangsi

scolded his oldest son who after stealing money had spent it. The son answered back and the father asked to have him banished to Kweichow.

Sometime after his departure, the second son of the family died and the

third son became an invalid. The father, then over seventy years of age, had no one on whom to lean. He asked that his eldest son be permitted to return home,

and the Ministry of Justice, after due consideration,

granted his request. If, after having

been

freed and

sent home,

a son offended

again,

and again was banished, his punishment would be heavier: he would be reduced to slave status and made to serve the officials in Sinkiang. Moreover, if a man’s parents died while he was banished, his only hope for freedom rested in officials who might hold that he had not been an unfilial son, that his crime had been accidental, and that he was seriously disturbed by the death of his parents.5* The hope must have been a slim one for a not inconsiderable number of those convicted for unfilial behaviour committed suicide upon hearing that their parents had died. The above facts indicate the almost absolute power of the parent ever his child. The government merely acted as agent, framed the regulations and saw to it that they were carried out. But the will of the parents was decisive, and, generally speaking, a child’s freedom or lack of it depended on that will. The law was the chief instrument through which the parental will was recognized and implemented. #7 Lou Viieh fi 9G, Kung h’uei chi Ue 9 Aff, 105, 4b.

4 Ch'inglit li, 4, 93a-b; cf. Boulais, op. cii., 57.

451 Ibid., 72a-74b.

52Ch’ ing lit li, 4, 95b-97a.

48 Hsing-an hui-lan, 1, 64a.

Hsing-an hui-lan, 1, 69b~71a.

58 Hsing-an hut-lan, 1, 75b.

FAMILY AND TSU

28

‘A review of the cases of banished sons reveals that the majority of them were punished for more or less trivial reasons. For instance, a

mother, whose son was lazy and did not listen to her advice, asked the

authorities to banish him.>! The parents of a habitual drunkard and trouble-maker who refused to reform despite their repeated remonstrances had him banished to Kwangsi.% A son who ran away from

home leaving his father without support was prosecuted on the latter’s

initiative and banished to a malaria district on the furthest border.%* Another who had answered back when it was discovered that he had stolen his father’s pension grain was banished from Szechuan to Kwangtung.*? Another who had idled away his time and wasted money was banished when he attempted to steal from his father. Another who had lost at gambling was banished when he tried to pawn his mother’s clothes in order to pay his debt.® Still another who liked to drink and loaf was prosecuted by his father and banished. He made his escape, but was caught just at the time that a general amnesty was announced. The father consented to his son’s pardon, but after his return home he got drunk again. The father became so angry that

he had the authorities cangue his son for two months and then banish him to a malaria district on a far border from which he was never to be released.

This was the punishment for the less serious crimes. Others, such as

scolding or beating a parent or visiting any kind of physical harm upon him carried the death sentence. This is clearly said in an edict of Emperor Hsiian-tsung (1821-1850): “If a son has offended seriously against his parents, the law will have already punished him.” And it added, “The cases of those who disobeyed instructions occasionally and were sent to prison by their own parents were naturally less serious.””*! Thus, a son who disobeyed instructions or who had failed to

support his parents, for which the punishment was only one hundred.

strokes, would be given a much heavier sentence if his parents asked for his banishment. Obviously,

whether

he

was

to be

beaten

or banished

depended

entirely on the will of his parents. The authorities merely acted as punishing agents. As noted above, when parents asked to have an unfilial son prosecuted, the authorities demanded no evidence, nor did they raise any objections to the punishment asked. The law states clearly: “When a father or mother prosecutes a son, the authorities will acquiesce

54 Tbid., 44, 56b.

8 Tbid., 1, 72b. "1 Ibid., 1, 15b.

35 Tbid., 1, 82a.

% Tbid., 44, 55a. *2 Ibid., 49, 56b.

50 Tbid., 44, 54a.

© Ibid., 1, 83a-b.

87 Tbid.,1, 73b-

FATHER’S AUTHORITY

29

‘without question or trial.’’** “No parents in the world are wrong” is a

very popular adage in China. ‘Thus, parents in China had absolute power to control and punish

their children. According to Confucian ethics a son should “obey and

never show resentment.” It was all a question of filial piety. Right and ‘wrong were a matter of position: I am wrong because I am my father’s son; what he says or does is right because he is my father. A son should not argue with his parents. Nor should the authorities question the Ieason given by the parents and investigate whether the accused child was actually unfilial. If they did it would have meant that the parents might be wrong. It would also have meant that the father’s absolute authority was not recognized. The father also exercised supreme authority over the family property. Tt is said in the Li chi that during the lifetime of their parents children may not possess property of their own. This principle was incorporated

into the law and regulations and punishments were set up in various dynasties to keep children from arrogating any part of the family property to themselves. Any inferior who, without the consent of the family head, used family property for his private needs was punished with from ten to one hundred

strokes,

depending

upon the amount

of the property he had appropriated.** Any pawning or sale of family property by a son or grandson was invalid before the law. In Sung times, no son, grandson, younger brother or nephew could sell a slave, cattle, land, houses, or any other type of family property while the family head was alive. Even if the head were three hundred i from his family home, the juniors still could not act. Only when he was outside

of China proper or when he was unable to communicate with his family

because of war, could junior members consummate property deals, and then only upon the receipt of a certificate from the local government empowering them to do so. If no such certificate could be shown, the property reverted to the original owner, while the money would not be given back to the buyer.® Similar regulations operated during the Yiian dynasty.” To live apart from one’s parents and thus to possess property of one’s own was considered a more serious offence than disposing of family property. The former fell within the category of unfilial

i © Ch’ing lit li, 28, 61a. “1 Li chi chu-su, 1, 13b; Legge, Texts of Confucianism, III, 67; Couvreur, Li Ki, i J,385 © T'ang lit su-i, 12, 9a; Sung hsing-t’ung, 12, ob; Ming li li, 4, 26b; Ching lili, 8, 54a; Staunton, op. cit., 92; Boulais, op. cit., 199.

6 Sung hsing-t’'ung, 13, 3b-42.

© Yaan shih, 103, 20b

FAMILY AND TSU

30

behaviour’ and punishment therefore was much heavier: three years’ imprisonment in T’ang and Sung times; one hundred strokes in Ming

and Ch’ing times. If a grandfather or father was alive, a son or grandson, even if he was of age, was married, had children, and had an occupation, was not permitted to hold property privately, or live apart with his immediate family. Not even during the mourning period for grandparents or parents were their children permitted to divide the family property and set up separate domiciles. If they did so they were punishable under the law: one year’s imprisonment in T’ang and Sung times ;” eighty strokes in Ming and Ch’ing times.74 A father’s authority extended also to his children’s marriages. A parent’s will determined the making or the breaking of a union; the wishes of the child received no consideration. Society and the law recognized these parental rights. This feature will be discussed fully in Chapter Two.

In conclusion, the father, or whoever was the family head, was then the supreme authority within the family. His will was a command, and every member of the family was expected to obey it. Ssii-ma Kuang #

%

(x01g-1086) said, “All the inferiors and the younger ones must

consult the head of the family about every event, large or small. How dare an inferior do anything without asking permission from his parents? You must ask permission from the head of the family, even though he is not your parent, before you do anything; then the orders

will come from one person only, and the family will be in order.””? Generally speaking, a mother had the same authority over her children as had the father. Society and the law also demanded that a son respect and be filial to his mother. Disobedience to either parent was punishable, and in the same degree. Nevertheless, speaking strictly, the father’s authority was supreme. The mother’s derived from her position as his wife: ‘When she is not the wife of Chi {, she is not the

mother of Pai A.”78 The mother’s authority was therefore neither permanent nor absolute. She was expected to follow her husband’s will in every respect. Theoretically speaking this should assure continual agreement. Actually this was not always the case, and when conflict

T’ang lit su-i, 1, 18b; Sung hsing-t’ung, 1, 5a; Yuan shih, 102, 5a; Ming lit li, 1, 5a; Ch'ing la li, 4, 19a; Boulais, op. cit., 30. T'ang lit su-i, 12, 5a; Sung hsing-t'ung, 12, 5b; Ming lii li, 4, 25b; Ch’ing liz li,

8, 53a-b;

Staunton, of. cit., 92; Boulais, op. cit., 198.

™ T'ang lit su-i, 12, 5a; Sung hsing-t'ung, 12, 6a. a Mine la li, 4, 26a; Ch’ing la li, 8, 53a; Staunton, op. cit., 92; Boulais, op. cit., 198.

% Ssii-ma Kuang, Ssti-ma-shih shu-i 7] 5 JG 3 (ff, (hereafter abbreviated as Shu-i) 4, 3a-b. 78 Li chi chu-su, 6, 3a.

FATHER’S AUTHORITY

3r

arose, the husband’s authority took precedence. The mother was expected to assist her husband in ruling over their immediate family and over those other family members who were his inferiors. A father could beat or punish his offspring whenever he believed he was justified in so doing, and this despite his wife’s feelings to the contrary. A son would not oppose his mother’s choice of his mate, but it was his father who made the final decision. Thus the ancients said, “There are no two supremes in a family.” It was usually expressed thus, ‘Mother is dear

but not superior.””75 In ancient times and for a long period sons wore only chi, one-year mourning, for their mother if their father still lived. For a father the mourning was chan-ts’ui, three-year mourning. Only in 732, and after a hot debate was the mourning period for the mother extended to three

years (fzit-ts’ui). The mourning for a mother was not changed to 3-year chan-ts’ui, the mourning which had been exclusively for the father,

until Ming dynasty.”

Only a male could hold the position of family head. Usually it was a grandfather or a father, but at times it might be a grandfather’s brother, father’s brother, an elder brother or cousin. Whoever was the

recognized head exercised the “father’s” authority. When a family head

diéd his son would take over, never his wife, whether she were grandmother or mother.

She was expected to “follow” her son, unless he was

too young to function adequately, in which case some male of a senior generation in a collateral line would exercise a father’s authority. The hierarchical pyramiding of authority in the family was easily projected upon the ‘sw. As noted above, in most instances, a ésu comprised a number of families, and when these families lived in a single household there must be a tsv head in order to rule over all the members. Even when the families lived separately a fsw head was needed to take care of those matters which concerned the ésu as a whole: the és sacrifice, the ancestors’ tombs, the ‘sw property,

etc.

Moreover, a supreme authority was needed to regulate between member families or to act as ésu representative when adjustments or disputes

between one ¢sw and another required some action to be taken.

During the Chou

dynasty,

a system called tsung-fa 51

was

formulated. The Pai-hu t’ung says, “Tsung means to honour. [Tsungtzit] is in charge of the sacrifices to the ancestors and is honored by the kinsmen.’’?? Since the system of éswng is a system in which the eldest prother rules the younger ones, it is also called “the way of brother4 Hsun-teu $j f-, 9, 142.

36 Ch’iu T’ang shu, 27, 3a-8a; Ming shih, 60, 22b-23a. 77 Pai-hu t’ung, 8, 5b; cf. Tjan, op. cit., I, 574.

78 Li chi chu-su, 54, 8b.

32

FAMILY AND TSU

hood” (52 i%).78 That is why the people of Chou always mentioned “filial” and “‘brotherly” together.

Tsung-fa, a product of Chinese feudalism,” was a system in which the tsu of the nobles was so organized that the inheritance of rank and feudal fiefs and the system of sacrifice were defined. The rule of primogeniture operated and only the eldest son of the first ancestor of

a line (pieh-tzit 5! 4-) by his legal wife could inherit his father’s fief and rank (chi-pich #% 3', sucessor to the pieh) and could offer the sacrifice; he was called the grand tsung-tzit K # +. Other sons of the first ancestor (the younger brothers of the successor to the pieh) were excluded from

such privileges and they could receive land and title only from the grand tsung-tzit. On the death of such a lesser son only his eldest son by

his wife could offer the sacrifice for him. This latter heir was called the small tsung-tzit “> 4% F of the small tsung A> 7.

The described rule of primogeniture operated in the line of a grand tsung-tzit indefinitely.*! After the death of a grand ¢swng-tztt his eldest son by his wife became the next grand fswng-tzit and his heir. This line was called the great tsung (ta-tsung K #4). All the male descendants of the founder of the line, i. e., of the first ancestor, were included in this body.* They worshipped the same ancestors (the first ancestor and all

the past /swng-tzit of the great tsung were to be worshipped), and the

% Mao ch’i-ling 5 ZF fi, Ta hsiao tsung t'ung-shih /\y 32 3 FE, ob; Ch’éng Yao-t'ien #2 3% [H, Tsung-fa hsiao-chi 2 33: ss #2, 12. ® There is no space here to discuss the nature of feudalism. Readers who are interested in the problem of Chinese feudalism may find the following works helpful: Ch’ T’ung-tsu 9p fp] jf], Chung-huo féng-chien shé-hui vp BB $4 AE Ht @ Marcel Granet, La Féodalité chinoise (Instituttet for Sammenlignende Kulturforskning, Serie A: XXII, Oslo, 1952); Henri Maspero, Mélanges posthumes sur les religions et Uhistoire de la Chine, 3 vols. (Paris, 1950), III, Etudes historiques, pp. 109-146; O. Franke, “Feudalism [Chinese],” Encyclopaedia of Social Sciences, VI, 213-214. For a discussion of the close connection between tsung-fa and fendalism, consult Mao Ch’i-ling, Chi-li t'ung-su p’u $% #23 Hee BY 2, 20-4. © Sh) F- 45 HL BEB 2S SEE A HES A SE. Li chi chu-su, 34, 62-7a; Legge, Texts of Confucianism, IV, 65; Couvreur, Li Ki, I, 785; Pai-hu t’ung, 8, 6a; Tjan, op. cit., IT, 574-575. See alsoCh’éng Yao-t’ien, Tsung-fa hsiao-chi, especially his table of tswng-fa 32 }J: 3, which illustrates the lineages of fa-tsung and hsiao-tsung respectively. *1 Thus the ta-tsung $2 was characterized as fj {H+ As $8 (whose tablets were not removed for a hundred generations) or #y {ft 2 ft Sz (to be honored fora hundred generations) (Li chi chu-su 34, 6a; Legge, Texts of Confucianism, IV, Couvreur, Li Ki, 1, 785; Pai-hu t’ung 8, 6a; Tjan, op. cit., 574. ** Thus the J li says, “Le chef de la famille mérite le plus grand respect. Il conserve la race” fc $32 364% & EA. Ke SEA Me BE HE A. (I Ui chu-su, 30, 71 Couvreur, Cérémonial, 300. Cf. Steele, op. cit., II, 19.)

FATHER’S AUTHORITY

33

then tsung-tz% was their sovereign and exercised authority over all members

of the ¢s#. This over-all organization

for the whole tsu was

the most comprehensive and permanent. On the other hand the numerous sub-groups formed by the small tsung-tzit were considerably smaller and less permanent. They were of four kinds: the father sung 5%, the grandfather ¢sung ill $%, the great-grandfather fsung ff iif] 3%, and the great-great-grandfather

tsung (& jill 3%.S° As indicated by the terms, it is evident that only those brothers or cousins who called the same ancestor father, grandfather,

etc. were included. The eldest brother of each group was the sovereign of each group and had authority over the members of that group. Thus the tsung-tzit of father ésung had authority over his younger brothers;

the éswng-tzi of the grandfather ésung over his younger brothers and cousins from the same grandfather; the tsung-tzi of the great-grand-

father tsung over his younger brothers and cousins from the same great-

grandfather; and the fsung-tz% of the great-great-grandfather tsung over his younger brothers and cousins from the same great-greatgrandfather. But as soon as one generation was removed, there would be a change in the relationship between the members. The small tsung changed every five generations.** From the above it is clear that there was one grand tswng and

numerous small fsung within a tsw.$° Each small fsung-tzit controlled

the members of his sub-group and finally all the small sug were under

the authority of the grand ‘sung-tzit. Thus “the grand tsung is able to lead the small tswg, and the small tswng is able to lead the younger

brothers and cousins.”’$*

The authority for offering sacrifice is the most important among all the authorities of the tsung-tzit. According to the system of tsung-fa it was only the ¢sung-tzit who had the right to offer sacrifice.’ The ésungézit of the grand tswng, the successor to the first ancestor (pieh-tzit), had the right to offer sacrifice to the pieh-tzit and to those who were suc-

cessors to the pieh-tzit. The tswng-tzit of father tsung had the right to offer sacrifice to his father; the ¢susg-tzit of the grandfather tsung to the grandfather; the ¢sung-tzit of the great-grandfather tsung to the great-

5 Pai-hu t’ung, 8, 6a; Tjan, op. cil., 11, 575; Li chi chu-su, 32, 4b-5a, Chéng’s Commentary; Couvreur, Li Ki, I, 746. 81 Li chi chu-su, 32, 4b-5a, see K’ung’s Commentary; 34, 6a~7a, see K’ung’s Commentary; Couvreur, Li Ki, I, 746, 785; I li chu-shu, 30, 8a, Chia’s Commentary; Pai-hu t’ung, 8, 6a; Ta hsiao tsung t'ung-shih, ob, 220-b. 8 Pai-hu t'ung, 8, 6a; Tjan, op. cit., II, 575. 86 Pai-hu tung, 8, sb-6a; cf. Tjan, op. cit., II, 574. See Ch’éng Yao-t’ien’s Table of tsung-fa (Tsung-fa hsiao-chi, 12-3). 87 Chi-li Vung-su p'u, 2, 4b-5a. 3

FAMILY AND TSU

34

grandfather, etc. The one who was to offer the sacrifice and the one to whom it was offered were clearly defined. The younger brothers and cousins of the fswng-tzit of a small tsung-tzi who had no right to offer sacrifice would follow the éswng-izit during the sacrifice; brothers would

follow the tsung-tzit of father ¢sung during the sacrifice offered to the father; cousins would

follow the ésung-tzit of the grandfather fsung

during the sacrifice offered to the grandfather; cousins once removed would follow the ésung-tzi% of the great-grandfather tsung during the sacrifice offered to the great-grandfather; and cousins twice removed would follow the ésug-tzit of the great-great-grandfather sung during When the tsungthe sacrificial offering to the great-great-grandfather.®

tzit of the grand tswng was offering a sacrifice to the line of the first ancestor, all kinsmen would join and follow respectfully. Thus the Pai-hu t'ung says, “When the tsung-tzit is offering a sacrifice, all kinsmen wait upon him.’®® Ho Hsiin #% 7 (260-319) said, “If the tsung-tzit offers a sacrifice at a certain time, all the males and females

of the és will meet.”® The ésung-tzit of the grand ésung was really the principal offerer of sacrifice of the whole tsu.

Furthermore, the éswng-tzit had the authority over the property of

the whole ésw. The Pai-hu t’ung says, “The grand-tswng is able to lead

the small-ésung, and the small-tsuag is able to lead the younger brothers and cousins. They share surplus and deficit and control the members of

the whole ¢su.”*! The I li also says, ‘“Brothers live separately [while

having their resources in common]. If any have a superabundance, it goes into the family stock [¢swng]; and if any are in want, their needs are supplied from the same source.”’*? The tsung-tzit also had to be informed of all important events such as “sacrifices of the ésung, the giving away of a daughter in marriage, the taking of a wife, the death [of a member], the birth of a son, departure,

® Ci. Chi-li 'ung-su p'u, 2, 5b; Li Kung 4¢ $4, Hsiieh li Bt 9, 4, Ob; Tsung-fa hsiao-chi, 4a-5b.

"© Pai-hut'ung reads: 9] Fl St AH 4y AE HE AF

FE (8, 5b; cf. Tjan, of. cit.,

Il, 574). Similar statements also occur in Mao chuan 3 {& and Shang-shu tachuan {ij K {i the former has #2 ¥- insteadof $2 J in the Pai-hut’ung (Mao shih chu-su —, 3% HE: Hg, 10A, 6a). The second text reads #3 ¥, which, according to Chéng, means “the house of a grand tsung-tzi #% f- #.”” According to the same commentator, Hf (affairs) refers to sacrifice (Shang shu chu-su fj @E 7: BK. 4, 0b-7a).

% T’ung tien, 73: 309.

% Pai-hu t’ung, 8, sb-6a; cf. Tjan, op. cit., II, 574. % I li chu-st, 30, 5b; Steele, op. cit., II, 17. Cf. Couvreur, Cérémonial, 396. According to Chéng, tsung 4, which was translated as “family stock” and“ frére ainé” by Steele and Couvreur respectively, refers to the paternal uncle who is in charge of the affairs of the small tsung {Ik 42 5 2 i 32 HE 36.

FATHER’S AUTHORITY return, or change of name.’ father,

his mother

35

The J li says, “If a tsung-tzit has no

gives the instructions

to the messenger;

if both

parents are dead, he himself gives the instruction.” And it continues. “The son of a concubine issues the instruction in the name of the ¢sung-

tzit, and a younger brother of the ésung-tzit of the same mother in the name of his elder brother [the ¢sung-tzit].”"** A betrothed girl was taught

at the house of the ¢sung-tzit if the ancestral temple had been destroyed. At a marriage, the ¢sung-tzit would lead his kinsmen to render services.** A report was also made to the fsung-tzit when a son was born. He would then record the birth in the family register.”

Finally it appears that the ¢sung-tsit even had the power of life and

death. When Chih Ying £1 43 of Chin was repatriated from Ch’u, the King of Ch’u asked the prisoner how he (the King) would be rewarded

for carrying out the release. Chih Ying answered, “If, through your lordship, I, your prisoner, get back with my bones to Tsin [Chin], should my ruler there order me to execution, in death I will remember your kindness. If by your kindness I escape that fate and am delivered to

[my father] Shou, who is not a minister of Ts’00 [Ch’u], then should be

request permission from our ruler, and execute me in our ancestral temple [¢swng], I will still in death remember your kindness.’ “To be executed in the ¢sumg” implies the authority of the tsung-tzit to have a member of his fs killed. Both the tswng-izit and his wife were highly respected by their kinsmen. Ho Hsiin says, “To serve the tsung-tzit should be more than usual politeness.’ The Li chi says, “All sons of the legal wives as well as all the sons of concubines are to serve with respect the ‘sung-tzitjof the grand ésung and the tsung-fu 5% %% [his wife]. Though they may be noble and wealthy, they dare not enter with [demonstrations of] their nobility and wealth the household of the fsung-tzit; although they may

93 T’ung tien, 73: 399 % 7 Ii chu-su, 6, 7a-b;

cf. Steele, op. cit., I, 40; Couvreur, Cérémonial, 54-55-

95 Similar statements occur both in the J li and Li chi. The meaning of tsung-shik

#32 $& was given by Chéngas f 4% y H and 43 F- HF respectively (Ili chu-su,

6, 2b; Li chi chu-su, 61, 5a-b. Steele, op. cit., I, 33; Legge, Texts of Confucianism,

IV, 432: cf. Pai-hut’ung, 9, 14b; Tjan, op. cit., I, 259, 356-357, note 543). In his

translation of Li Ki, Couvreur follows the explanation of Chéng, translating tsung-shih as “‘la salle des ancétres du chef de la branche de famille a laquelle elle

appartenait” (II, 648). However, in his Cérémonial, his translation reads: “La jeune fille recoit des instructions dans le temple oti est la tablette de celui qui a. donneé naissance & sa branche de famille” (p. 45)-

96 T’ung tien, 73: 399.

7 Loc.cit.

% Tso chuan chu-su, 26, 2a; Legge, Chinese Classics, V, pt. 1, 352; ef. Couvreur, Tso Tchouan, I1, 38-39.

%® T'ung tien, 73: 309-

FAMILY AND TSU

36

have many carriages and attendants, they should leave these outside and enter with a few attendants. When any of the younger brothers and cousins have received vessels, clothing, furs, coverlets, carriages

and horses, they must offer the best ones, daring to use the inferior ones

themselves.’2°° Under feudalism, the tsung-fa system operated only for the nobility, and since only one of the sons could be the heir of a father, the differentiation between the grand ¢sung and a small isung was necessary.

With the collapse of feudalism, the fswng-fa system collapsed also. In the post-feudal period no one line was favored over another, and the tsung-fa system became a thing of the past.

Replacing the ésung-tzit was the family head (chia-chang % 42) or the tsu head (tsu-chang ff 42). The position of the family head in the

family was somewhat similar to that of the fswng-tzit of the small tsung,

while the és head was somewhat like the tsung-tzit of the grand fsung. Sometimes, however, the terms “family head’’ and “‘ésw head” were

used interchangeably. In a broad sense the tsu head can also be called

the chia-chang. Historically, the former gained currency later and it became the more popular. In general the ésw head was chosen by the

members of the ¢sw, and the man selected was usually of an older generation, of advanced years, of high social status, and highly respected.

His duties included the direction and supervision of all affairs of the tsu. When all the members

of a fsx lived together as a single

unit,

the

income and various expenses of the whole group had to be carefully planned, managed and distributed among the various members. The

Lu f& ts of Chin-hsi lived together for generations. One of its oldest males was elected ise head. Each year he selected certain of his

younger kinsmen to take charge of its domestic affairs, to see to the fields, the paying of taxes, the bookkeeping, and the entertainment of

guests. Under the supervision of the head of the Chéng

tsi,

younger kinsmen held the posts of bookkeeper, superintendent, chief of clothing, director of cooking, and receptionist.1

The ¢sw did

not always live together in a single unit. If its various

families had separate domiciles, the domestic affairs of each of them were managed by their respective family heads without interference

from the ¢s« head. But there were still some responsibilites that had to be assumed by the ésw head, such as the management of the és

0 Li chi chu-su, 27, 7a; cf. Legge, Texts of Confucianism, 111, 458-459; Couvreur, Li Ki, 1, 637-638. 1 Lo Ta-ching 9 fe $8, Ho lin ya lu Wh bk 3E BE 5: 48: Sung shih 434, ob. w2 Chéng Wen-jung #§ 4% j@sh and Chéng Hsiian #§ $%, Chéng-shih Ruei-fan #5 KG BL Bi, sb—7a, Sa-b, roa—12a.

FATHER’S AUTHORITY

field, tsu tombs,

ancestral temple

and

tsu school,

37

the payment

of

taxes on the fsw’s common property, and holding and distribution of rents from this property.

Besides these economic functions, the fsw head also exercised certain religious functions, primary among them being the offering of the sacrifice to the ancestors. In the joint family of Lu Chiu-ling BE Ju Bi (1132-1180), the head led all the members each morning in paying respect to their ancestors. In other families who might not pay respect to their ancestors every day, the ¢se head made the seasonal sacrifices, to be held in the ancestral temple. Usually at a private sacrifice in the family temple offered by the head of the family only the members of the family would attend. But at the seasonal sacrifices

for the whole tsw held in the és temple,

at

which

the head of the ésw officiated, all members of the #s« would attend. It was also the duty of the su head to keep peace and order within the és. Quarrels within the family were settled by the family head,

but those between families were beyond his authority. In such matters

the fs head was both judge and arbitrator. His word carried as much

weight in one capacity as in the other. Thus he became the supreme

judicial authority within the ést. The authority of the fs head was also recognized in the law,

particularly in regard to questions of inheritance. He was given the authority to choose an heir for a kinsmen who had died without a son

or heir.?°> According to Ch’ing law, a written agreement of the tsu as

a whole was demanded if an only child was to be the heir of two branches. The law also stated that when a murder occurred in a fight

over inheritance, those involved either directly or as accomplices were to be deprived of their inheritance rights and that the legal heir could only be determined after the whole ész had taken part in the deliberations. Actually, however, the decision of the “whole” ésw was the decision of the ts head. If a man had no son of his own, he might ask his son-in-law to live with him so that he would be cared for in his old age, but he would also leave an heir chosen from the tsw to be in charge of sacrificial duties. If nosuch heir had been designated before the man died, the choice would rest with the sw head. The law was very clear on this point.1?

38 Sung shih, 434, 9. 101 See Chéng-shih kuei-fan, 2b; Chéng Yung if jk, I-mén chéng-shih chia-i : 36 PA BG KE FE GE, 1a-b; Hsiieh Ui, 4, 7a-Sa. 008 Ming-kung shu-p’an ch'ing-ming chi %, ZS 3 4 Hf Wi SE, 19a; Ta-Ming ling > IW) Ap, 3b; Ch'ing Ia li, 8, 3a. 187 Ta-Ming ling, sb-6a; Ch’ing li li, 10, sb-6a. 106 Ch’ing lit li, 8, 5a-b.

FAMILY AND TSU

38

When fs« regulations were violated or judgments disobeyed, tsu head had authority to punish the culprit. Many és had

the tsu

laws, and most of them were in written form. The Chéng-shih kuet-fan (The Regulations of the Chéng Family) is a good example. Numerous such laws are found in the various family genealogies. Even if a tsu had no written laws, certain traditional prohibitions were operative. Any misbehaviour which brought shame upon a ¢s# or upon the ésw ancestors was considered inexcusable. As a rule when a man violated a law he violated the és« regulation at the same time. Thus the official law and the family law were practically identical. When punishment for a particular crime was set forth in the ésw code, the tsu head

simply executed it according to articles of this code. When

the tsw

had no written law, the ésw head judged the case as he saw fit. He could ask the wrong-doer to apologize for his behaviour or make reparation for damages incurred. A number of stories illustrates this.

Wang Jung-wan demanded rent from his cousin Kuei-wan for the ésu hall in which he was living after repairing it. When this was refused he snatched his cousin’s money from him. When the cousin went to the head of the ésu, the latter seized Jung-wan and ordered him to pay back the money. Jao Nien-pa

wanted

to sell his widowed

sister-in-law, Ts'ao, to a man,

but she was unwilling. He slandered her by saying that he was afraid she was going to disgrace the family. She went and reported this to the fsu members. Nien-pao was ordered to apologize to her.1°

Liu Ts’ai-wén was driven out of the home by his mother because of misbehaviour. Later he stole an ox from one of his kinsmen, who discovered the theft and brought Lin Ts’ai-wén before the members of his ts to tell the

story of the crime. The és head, since he had violated the tsu regulations by stealing, ordered him to pay eighty taels of silver and to prepare a dinner for the su people as an admission of his fault. If he did not comply, he would be sent to the authorities."

In serious cases the sw head could apply corporal punishment or deprive the offender of his tsw membership. This right to the authority of corporal

punishment

was

very

important

in the history

of the

Chinese family. The regulations in the ‘sw of the brothers Lu Chiu-ling and Lu Chiu-shao were very strict. When one of the younger members was at fault the head of the ésu would first warn him. If he did not

reform he was beaten by the ¢su head. If he still did not reform and the head considered the case hopeless and not to be excused, the govern-

ment authorities would be asked to banish the offender to a distant

place." In the ész of Chéng Wén-jung #f 3 fH (13th and 14th cen198 Hsing-an hui-lan, 34, 29a. 1 [bid., 7, 78a.

10 Ch’iian Shih-ch’ao 4 +4- #9 and others, Po-an Hsin-pien if 3 35; $G, 10,14 11 Sung shih, 434, 9b-10a.

FATHER’S AUTHORITY

39.

turies) of Wu-chou the system was like that of a court. A member who had committed a slight misdemeanor, even though he was an old man, was beaten." Usually the punishment took place in the ancestral temple."* In the Ch’én ¢sw there was even set up a special hall for corporal punishment.14

Sometimes the ¢sw head had a guilty member put to death.

After Liu Pin, the ésw head, had ordered Liu Ts’ai-wen to pay a fine and give a dinner by way of apology and restitution for his crime, the former turned him over to his mother, Ch’én, for disciplining. Ts’ai-wén wished to sell his mother’s pension field to cover the expenses, but his mother refused to consent to this. Thereupon Ts'ai-wén quarreled with her and pushed her to the ground. The next day Liu Pin went to Ch’én’s place with three others of his ¢su to hurry Ts’ai-wén into paying his fine. Ts’ai-wén’s mother told them what had happened and asked them to assist her in bringing her son to the authorities. Liu Pin said, “Because he is a thief and also an unfilial son, it is better to bury him alive in order to prevent him from being a nuisance to. the ésu members.” The mother was unwilling to take so drastic a measure, but Liu Pin threatened that he would sell her pension field to pay her son’s fine. He then told one of his kinsmen to tie Ts’ai-wén with a dog leash. When the latter resisted, Liu Pin asked Liu Wén-teng, a cousin of the culprit once removed to help push him. Ts’ai-wén’s mother took up a bundle of straw and called her two younger sons to accompany her on the way. One boy ran away and the other wept and begged Liu Pin to release his older brother. This Liu Pin refused to do. He then ordered a pit to be dug. Ts'aiweén’s mother covered the bottom with straw. Ts’ai-wén was pushed into the pit and buried alive. Hsii Kung-chu had intercourse with his niece. This was discovered by her mother and an uncle, who caught Kung-chu and bound him. They reported the case to the ésu head in order to have him sent to the authorities. On the way Kung-chu begged to be released, saying that the head of the su would also be disgraced by his being sent to the authorities. The fsu head was very angry and had Kung-chu pushed into a river where he was drowned."® It is important to note that the law did not recognize a ts head’s power of life and death. To be sure, Liu Pin was not punished for exercising this power, because he died soon after he had buried his kinsman alive. The ¢s¢ head who had Kung-chu drowned was punished under the law of murder. But even admitting that the right of life and death

112 Ygan shih, 197, 12b. Detailed regulations together with the number of strokes for the violation of each regulation is recorded in the family code, Chéng-shik Ruei-fan. 113 Ch'u Huang Sung-hu ch’én-shih tsung p’u, Shou-chiian, Hsia-pu 22b; Ho T'ao 4G 9G, Ho Wei-yai chia-hsion $i} Ji HR Hl], 20b; Chiang 1 f& ft, Chiang-shih chia-hsiin HE We F Hl, 10. M4 Ch'u Huang Sung-hu Ch'én-shih tsung p'u, Shou-chitan, Ch'un-pu, 31b, 33a, 79b-8oa.

48 Po-an hsin-pien, 10, 1a-7b.

8 Hsing-an hui-lan, 17, 14b-20a.

FAMILY AND TSU

40

was denied the ¢s« head under the law, his authority remains noteworthy. In fact, in view of the almost abject obedience offered him by members of his ¢st, it would seem as if they actually felt that he did have the authority to determine whether they should live or die. Such cases happened frequently in rural districts. If they had been recorded, the number would be amazing. Thus the exceptional role of the head of the family or ¢sw in maintaining order and the close relation between family regulations and law

is apparent. During the period in which society and law recognized the legal authority of the head of the family or ¢sw, a family or a tsu was regarded

as a fundamental

unit of the over-all legal and

political

system. The head of a family or és“ was regarded as the supreme authority of each unit and was responsible to the government. It may be said that the family or ésv occupied the lowest rung on the ladder of legal institutions. Trouble within the ésw would first be judged by the head of the family or tsu, and only when he was unable to settle the problem was it brought to the judicial authority. In this way

many troubles which occurred in the group were settled without re-

course to the court. These were cases which

could be arbitrated by

family members and cases of too little importance to be brought before a court. It is clear, therefore, that with the exception of the power of life and death, the head of the family or ¢s« really had the authority

of judgment and punishment. On the other hand, since their authority was recognized by the law, the government also held them personally

responsible for obligations of their groups as a whole as well as for the

actions of each and every member of those groups.

In the 1st century B.C. the law already demanded that the head of the family be responsible for the assessment and payment of taxes. In

case the assessment on the family’s taxable property was not met, or if

a false assessment was made, the family head was punished.” Moreover, under every dynasty, the és or family head was held responsible for any failure to enter the name

of any

member

of his group on the

population registration. During T’ang and Sung times, the family head was given three years’ imprisonment for such an omission, the punishment being lowered two degrees if the omitted member was under no obligation to pay taxes or render service." During Ming and Ch’ing times, the family head was also held responsible, the punishment being from eighty to one hundred strokes depending upon whether the family was obligated to pay a

land tax or to render service. Hiding a

person who was not a member of the family, either failing to report his presence, or registering him as a member of the family called forth

47 Han shu, 7, 4b.

US T'ang lit su-i, 12, 1a-b; Sung hsing-t’ung, 12, 1b.

CRIMINAL LAW AND FAMILISM

4I

similar sentences."® During the Chin (265-420) dynasty, the family head, if caught after his whole family had run off, would be beheaded.” Even where the personal behaviour of a family member was concerned, the head was held responsible, since the whole family was subject to his authority and he was supposed to supervise the behaviour of the various members. He, and not the offender, would be punished for infringements of this kind. For example, the head of the family was held responsible for any violation of the sumptuary laws, the punishment being fifty strokes.1#? Under Ch’ing law, if the és head were an official, a deduction of his salary for three months would be made in addition.¥#? In Ming and Ch’'ing times, if, contrary to the rules, men and women mingled at a funeral during the performance of fasting and prayer, or if they drank wine or ate meat on such an occasion, the family head would be given eighty strokes.!23 3. Criminal Law and Familism

Injury and Homicide The authority of parents and grandparents over their children and grandchildren has been discussed above. If death resulted from its exercise, the elders were usually not severely punished, or not punished

at all, particularly if the child had been unfilial and disobedient. Death by error was not recognized. However, if a blameless child was killed by a parent, the action was considered as homicide and the punishment therefore would be heavier than a mere chastisement. The law of

Northern Wei stated that a parent or grandparent who killed a child or

grandchild in anger with a knife should be sentenced to five-year punishment; if the child was killed because of beating, four years. The punishment was increased one degree if the killing was done with

intent because of hatred. According to T’ang and Sung law, the punishment for beating a blameless child or grandchild to death with

intent to kill was imprisonment for two years; if the killing was done with a knife, two and a half years. During the Yiian dynasty a

29 Ming lit li, 4, ab; Ch’ing lali,8, a-b; Staunton, op. cit.,79; Boulais, op. cit., 164. 129 Chin shu, 30, 152. 121 Ming lit li, 12, 16a; Ch'ing lt li, 17, 26a; Staunton, op. cit., 185; Boulais, op. cit., 389. 322 Ch'ing li li, 17, 28a. 323 Ming lit li, 12, 25a-b; Ch'ing lii li, 17, 57a-b; Staunton, of. cit., 190-191;

Boulais, op. cit., 400.

428 Wei shu, 111, 23a.

35 T'ang lit su-i, 22, 9b; Sung hsing-t’ung, 22, 9a-b-

42

FAMILY AND TSU

parent who killed his son with a knife without cause was given seventyseven strokes.!2° According to Ming and Ch’ing law, the killing with intent of a blameless child or grandchild was punished by sixty strokes and one year’s imprisonment;" the Revised Ch’ing Criminal Code demanded one year’s imprisonment.18 According to T’ang, Sung, Ming, and Ch’ing law, the punishment for the premeditated murder of a child was the same as that for killing a blameless son with intent. If the premeditated murder failed of accomplishment and no injury resulted, the punishment was decreased by two degrees; or by one degree if the child was wounded in the attack.!*9 These punishments were much lighter than for a non-family member. The punishment for inflicting slight injury in a quarrel was beating; for a serious injury, banishment. A person who was guilty of homicide had to forfeit his life; premeditated murder was punished by strangling whether the injured party was killed or merely injured. As a child was expected to be respectful and filial, any aggressive behavior towards his parent was tolerated neither by society nor by

the law. Thus to curse or to scold a parent was defined as unfilial and

was a very serious crime. The Hsiao ching, the Classic of Filial Piety,

says, “Among the five punishments, which amounted altogether to three thousand [articles], no crime is more grave than that of filial impiety.”!*1 The Chow li lists impiety as one of the crimes for the eight

punishments. In Han law, an unfilial child was beheaded and the head exposed to the public.43 An emperor of Northern Wei considered

the law punishing an aggressive son by shaving as too lenient and ordered it revised. In short, the great emphasis upon filial impiety is clearly seen in the ancient law. From the time of Northern Ch’i

126 Yuan shih, 105, 1rb-12a. 18 Ming lii li, 20, 38b; Ch'ing li li, 28, 50a; Staunton, op. cit., 347; Boulais, op. cit., 616. The original note attached to this article states clearly that “killing with intent”, Au-sha {i ®¥, means to kill a son who had not been disobedient. Staunton, however, confuses the second part of the article with the first part and erroneously links it to a “disobedient child”. 12 Ching hsien-hsing hsing-lit, 25, 15a. 32 T'ang lit su-i, 17, 6b; Sung hsing-t’ung, 17, 6b; Ming lit li, 10, 5b; Ch’ing liz li, 26, 17b; Staunton, op. cit., 306; Boulais, op. cit., 544. 1 See T'ang li su-i, 17, 8a; 21, 14a; Sung hsing-t’ung, 17, 7b; 21, 1a-4a; Ming lili, 19, 1a-b, 18b; 20, raza; Ch'ing lid li, 26, 1a-b, 85a; 27, 2a-3b; Staunton, op. cit., 303-304, 32. Boulais, op. cit., 540-541, 550, 586-587. 131 Hsiao-ching chu-su J $3 7: i, 6, 2a. 182 Chou li chu-su JB] @8 YE He, 10, 15a. 48 Ch'un-ch'iu Kung-yang chuan chu-su 4g $k ZS 3% (HE He 14, 92. 181 Wei shu, 111, rob.

CRIMINAL LAW AND FAMILISM

43

(550-577) and Sui (5S9-618) to Ch’ing impiety was listed as one of the ten unpardonable offences (shih-o +> 3%) in the introductory chapter

of the various codes.!5 Examination of the punishments for filial impiety in the law of the various dynasties reveals that all the codes operated on the same principle: such offences were punished more severely than analogous actions not directed against a parent or grandparent. For instance, scolding in general received little attention,’ but the scolding of a parent or grandparent was punished by strangling.'*7 In the Revised Ch’ing Criminal Code, the punishment is given as “detention in prison for strangling,” since dismemberment had been abolished and beheading was the heaviest penalty. Certain acts were considered even more serious than those classified as “unfilial.”” These fell in the category “Perverse Offences” (0-ni #8 3), also one of the ten unpardonable offences.!®° According to the Jaw of Han™® and Sung (420-479),1#! the punishment for striking a parent was beheading and exposure on a pole; and in the law of T’ang, Sung, Ming, and Ch’ing, beheading was also the usual punishment for

385 In the code of Northern Ch’i filial impiety was the eighth of the ten serious crimes which were unpardonable and unredeemable. The ten offences are not listed in the code of Northern Chou; nevertheless impiety was considered a serious offence. Sui was the first dynasty formally to list the ten offences, shiho + #, and impiety was included as the seventh (Sui shu, 25, 13a, 14b, 17b; T'ang la su-i, 1, 14b; Etienne Balazs, Etudes sur la société et l'économie de la Chine médiévale, 11, Le Traité juridique du ‘ Souei-chou" [Bibliotheque de l'institut des

Hautes Etudes Chinoises, Vol. IX, Leiden, 1954), 62-63, 66, 74-75, 142-4,N. 184).

This system was followed by all later dynasties (T’ang la su-i, 1, 18b; Sung Asing-t'ung, t, 5a; Yan shih, 102, 5; Ming lii-li, 1, 5a; Ching lit-li, 4, 198; Karl Biinger, Quellen zur Rechtsgeschichte der T’ang-Zeit (Monumenta Serica, Vol. IX, Peiping, 1946), 88; Paul Ratchnevsky, Un code des Yuan [Bibliothéque de V'institut des Hautes Etudes Chinoises, Vol. IV, Paris, 1937], 15; Staunton, op. cit., 4; Boulais, op. cit., 29-30). Cf. infra, p. 179, n. 48 138 There was no law dealing with scolding in T’ang and Sung times. The punishment under Ming and Ch'ing for such action was ten strokes (Ming li li, 21, 12; Ch'ing lit li, 29, 2a; Staunton, op. cit. 345; Boulais, op. cit. 626). 137 Tn Sung (420-479) law the son was to be executed in the market (Sung shu 54, 5a). In T’ang, Sung, Ming, and Ch’ing times strangling was the punishment (T'ang lit su-i, 22, ob; Sung hsing t'ung, 22, 9a; Ming lit li, 21, 5a; Ch’ing li li, 29, 8a; Staunton, op. cit., 357; Boulais, op. cit., 628). 133 Ch'ing hsien-hsing hsing-li, 26, 6a. jf, was the fourth among the 48 The so-called “Perverse Offences”, o-ni #1 list of the ten unpardonable offences (T’ang li su-i, 1, 15b; Sung hsing-t’ung, 1, 6a-b; Yuan shih, 102, 4b; Ming li li, 1, 4b; Ch’ing lit li, 4, 18b; Staunton, op. cit., 3; Boulais, op. cit., 29). 0 Li Fang 4¢ {jf and others, T’ai-p'ing yi-lan 3 2B HI FE, 640, Sa. 41 Sung shu, 54, 54-

FAMILY AND TSU

44

this crime.2 In the Revised Ch’ing Criminal Code, strangling was demanded." It should be noted that, with the exception of the Yiian law which prescribed execution only in cases where parents were injured by their children,“ the law did not discriminate between cases where the parents were uninjured, injured slightly, or injured seriously ; the only criterion was the initial act of striking. Nor did the law discriminate between injury by intent and by mistake. No articles dealt with the latter. The punishment for both was beheading.

During Han times the question of “striking by mistake” came up for discussion. Two men were fighting. The son of one, seeing that his father’s opponent was trying to kill his parent with a knife, took up a stick to beat off the attacker. Unfortunately as he did so, he struck his father. Some considered that the son should be charged with beating

his father and be beheaded for this act. Only Tung Chung-shu # {4} 2

(2nd century B.C.) held that since the son intended to save his father from harm he harbored no malicious intent; and according to the

principle of Ch’un-ch’iu guilt was determined by motive.™6 That this view was the exception not only in Han times but later can be seen

from the following cases from the ch’ing, in all of which penalty was demanded.

the death

Chai Hsiao-liang made some money by repairing a wall and bought himself

some fish and wine. His father, being angry at this, grasped his son’s braids

and beat him. Hsiao-laing took a knife to cut his braid in order to release himself. By accident he cut his father’s wrist.¥7 Kung Nu-ts’ai, discovering his wife’s infidelity, quarreled with her and attacked her with a pair of scissors. She escaped from him. Kung’s father interfered to stop their fighting but the son was unable to draw back and

hurt his father’s left ribs by mistake.¥8 Fan K’uei fought with his younger brother, threatening him with a knife. Their mother came over and tried to take away the knife from K’uei, and

was cut.14

These three cases were adjudged as beating a parent, and in each of them

the

son

was

sentenced

to

immediate

beheading.

However,

42 T'ang lit su-i, 22, 9b; Sung hsing-t’ung, 22, 9a; Ming lui li, 20, 38a; Ch’ing liz li, 28, 59a; Staunton, op. cit., 346-347; Boulais, op. cit.,

616.

43 Ch’ing hsien-hsing hsing-Ii, 25, 15a. 444 Yizan shih, 104,6a. 445 In T'ang and Sung times the punishment for beating parents was beheading. No qualification was made as to whether there was an injury. It was made clear in the notes in the Ming and Ch’ing law that the law did not discriminate between cases where the parents were not injured, slightly injured, or injured seriously (Ming li li, 20, 39a; Ch’ing lit li, 28, 60b). MS T'ai-p'ing yi-lan, 640, 8a. Mt Hsing-an hui-lan 2, 13a-14b. 4S Tbid., 2, 8a-11a. 19 Thid., 2, 11a-12a.

CRIMINAL LAW AND FAMILISM

45

special consideration was given to the fact that they had not beaten

their parents, and they were resentenced to “detention in prison for

beheading.” As a result of the autumn trial their execution was

“suspended”’,}51 and, on the basis of Fan K’uei’s case, a new regulation was promulgated which held that anyone who injured a parent or grandparent by mistake was to be sentenced to immediate beheading in accordance with the original law, but that the authorities could cite

the case of Fan K’uei as a precedent and ask the emperor to reconsider

the decision." Following is a similar case.

Chou San-érh whipped his wife with a willow branch. He struck his mother’s left cheek as she came forward to protect her daughter-in-law. She was not hurt badly and went on as usual. Shortly ofterwards she caught a cold, and accidentally fell. She became ill and died. The Ministry of Justice considered that she had been hurt only slightly by her son and that she died as a result of illness. However since she had been injured by mistake by her son, the latter was sentenced to “immediate beheading.” Later the punishment was reduced to ‘‘detention in prison for beheading.”15 1% The difference between two kinds of death penalties in Ch'ing law should be noted: 1) immediate beheading or strangling, 2) detention in prison for beheading iM El HE or “detention in prison for strangling” $ Bf fi. Those who were sentenced to “immediate beheading” or “immediate strangling” were to be ‘executed without delay after the judgment was given. Those who were subject to the second category were held in prison awaiting execution, which was subject to deliberation and ratification in the autumn trials held in the capital. (It was called ch’ao-shén 8 9g or ch’iu-shén $ E, depending upon whether the cases were in the capital or in the provinces.) The cases were then classified into five categories: (1) Those whose “crime proved true” 4 ff were held for execution. However, the sentence had to be ratified by the emperor. The criminal was to be executed if a red check appeared beside his name. If none appeared, his case came up for reconsideration in the autumn trial period of the following year. When mourning relatives were involved the case would be put into category two if the same name had not been checked twice. In all other cases, any name which had not been checked ten times was also put in category two. (2) In cases classified under “execution suspended” $f jjt the death penalty was either reduced to banishment or they were acceptable for reconsideration after the three autumn trials. (3) In cases classified as “‘pitiable” nf # the death penalty was reduced to banishment or imprisonment. Those whose cases were entitled to consideration because of (4) ‘‘serving the parents” #7 3 or (5)“‘offering sacrifice to the ancestors” 7 jj were released after corporal punishment had been administered (Ch’ing hui-tien, Ch. 53; Ch'ing lili, 4, 4a; Juan K’uei-shéng [ic BE AE, Ch’itc-yen chih-liteh $k ABE 3 BG. 1, 1a-b, 12b; Chao Erh-hsiin dj A SE and others, Ch’ing shih hao 34 sft #4, 150, 2a-b. The detailed conditions under which death sentences fell within one of the five categories are in the Ch'iu-yen chih-liteh and Ch’iu-shén pi-chiao Piao-k'uan #k # te BE VE 151 See above, note 150. 153 Hsing-an huti-lan, 44, 23. 152 Ching lit li, 28, 67b-68a.

46

FAMILY AND TSU

To cause the death of a parent was certainly more serious than to strike him. During the T’ang and Sung dynasties only two death penalties were recognized: strangling and beheading. The maximum punishment, beheading, was given for striking a parent. Thus no more severe punishment could be meted out for parricide. However, when “dismemberment” was formally introduced into the Yiian code! and

continued by the succeeding dynasties, a line was drawn between sed death, injury and death. A person who struck his parent and cauhis or murdered his parent, suffered ‘death by dismemberment” ;he suffered beheading if murder wasnot actually committed.1®> The Revised Ch’ing Criminal Code reduced the punishment for parricide to “beheading,” and for striking a parent, to “strangling”, since “dismemberment” had been abolished. Even if a son who had killed a parent died before his sentence could

be executed, he did not escape punishment by dismemberment. In the

Ch’ing dynasty a madman

who

had

killed his father was, in turn,

killed by his mother;!57 a man who pushed his mother and caused her

death was buried alive by his older brother; and a man who had fought with his elder brother and injured his mother by mistake committed suicide.1 The dead bodies of all three were cut into pieces.

The Yiian and Ch’ing law also demanded that the bodies of those who died in prison before their execution should be dismembered.?® Ch’ing

law added that even if a son was beheaded for striking his parent, his

dead body would still be publicly dismembered if the parent died of the injury.’ That death offered no escape from the punishment for this

most heinous of all crimes and that a second execution could be visited upon a corpse shows how determined society and law were to impose

184 Dismemberment was already invoked during the Five Dynasties (907-960) and Sung, but only occasionally and then not as a regular punishment (Lu Yu BE Yi, Wei-nan wén-chi WP} iG 3C 4S, 5, 5b; Sung shih, 150, 15a; 200, 16a-b). It is not mentioned in Sung law. Dismemberment was practiced in Liao times (Liao shih, 6r, 1b). Under the Yiian law it was included among the five regular punishments (Yaan shik, 102, 3b). In Ming and Ching times, strangling and beheading were the only two death penalties in the five regular punishments; nevertheless, dismemberment is found in various articles dealing with certain crimes which called for such cruel punishment. 455 Yiuan shih, 104, 6a; Ming lili, 19, 5b; 20, 38a; Ch’ing lit li, 26, 17; 28, 59a; Staunton, op. cit., 305-306, 346-347; Boulais, op. cit., 544, 616.

18 Ch'ing hsien-hsing hsing-liz, 23, 5a; 25, 15a. 187 Hsing-an hui-lan, 44, 34b. 48 Hsit-tséng hsing-an hui-lan, 12, 2b. 189 Hsing-an hui-lan, 44, 34b-3521 Yiian shih, 104, 6a; Ch'ing li li, 26, 17a; Hsing-an hui-lan, 44, 35a-30bA similar practice was also adopted in Ming in 1588 (Ming li li, 19, 8a). 181 Ch’ing lid li, 28, 66a-b.

CRIMINAL LAW AND FAMILISM

47

this extreme penalty on all those who had caused the death of a parent.

The killing of a parent by mistake was similarly punished. The law did not discriminate between parricide by intent and parricide by mistake.1® Only when there were particularly extenuating circumstances and when the emperor intervened was there any possibility of having the punishment reduced. Pai P’éng-ho scolded his sister-in-law because she refused to lend him oil.

While they were arguing, P’éng-ho picked up a clod of earth and threw it at

her. It happened that his mother just then came out to settle the quarrel and

was struck and killed. He was sentenced by the Ministry of Justice to be dismembered, in accordance with the law on killing a parent. Considering,

however, that he could not have foreseen the consequences of his action and

that the case differed by killing a parent by accident during an affray, the

punishment was reduced by imperial order to “immediate beheading’’.2¢

In a quarrel Lung A-hou picked up an axe and attempted to strike his opponent. His grandmother came out to separate the fighters, and was struck accidentally by the axe and killed. The governor sentenced Lung to be dismembered in accordance with the law on parricide. Again an imperial order held that his action differed from killing a parent during an affray, and again the sentence was changed to “immediate beheading”’.16 A new regulation was set up because of these two cases. Those whe

killed their parents or grandparents by mistake were to be sentenced

according to law, but they were allowed to quote these two cases as precedent and to await the judgement of the emperor.1®& Even if a parent who was being beaten up in a

fight was killed by

mistake by his son who was seeking to rescue him, the case had to be judged in accordance with the law on parricide before it could be placed before the emperor. The following illustrate this.

Téng Féng-ta fell while engaged in a fight, his opponent on top of him. The

latter picked up a stone and Téng’s son fearing that it would be hurled at

his father grabbed a knife and made for the attacker. The latter moved and killing him. The authorities considered the knife entered Téng’s father's belly, that the son had sought to rescue his father. They presented his case to the emperor and asked that his sentence be reduced from “dismemberment” to “immediate beheading”. This was granted.

T’an Ya-chiu’s mother was fighting to gain possession of a bamboo pole. T’an shouted and asked that the pole be released, but as it was not, he feared his mother would be hurt. He threw a stone at his mother’s opponent, who 163 Hsing-an hui-lan, 44, 25a-b. 182 Tbid., 28, 6b. 185 Ching lit li, 28, 67b-68a. 184 Tbid., 44, 26a-D. 168 Hsing-an hui-lan, 44, 25a-b.

48

FAMILY AND TSU

dodged it so that it hit T’an’s mother and killed her. T’an was sentenced according to the law of parricide but the case was presented to the emperor

for his judgement. T’an was sentenced to “detention in prison for beheading.”67

Punishment

for killing a parent

by accident*® was less severe than

for killing by mistake. In T’ang, Sung, Ming, and Ch’ing law the wounding of a parent by accident was punished by imprisonment for three years, and the killing of a parent by accident was banishment to a distance of three thousand Ji.1 In 1764 the punishment for the second case was increased to immediate strangling.” The reason for the severe punishment was also based upon the principle which regulated the parent-child relationship. The note in the Ch’ing law explains clearly its meaning, “Although an accident is outside the

realm of intention a grandchild or child . . . should always be respectful

and careful toward his grandparents and parents and should not let any accident occur. Therefore among ordinary people the crime can be redeemed, but for grandchild or child it will be punished by imprisonment or banishment. Thisis on the principle that a minister or a sonis not allowed to claim an accident before his sovereign or father.’’17? Only when the case merited clemency could it be reported to the emperor and a reduction in punishment be asked for by an official. Under such

conditions the punishment was reduced from immediate strangling to

“detention in prison for strangling.’”!7? The following cases were especially considered by the officials and the punishment reduced by the emperor.

467 Thid., 44, 29b-30a. 48 A distinction was made between “killing by mistake,” wu-sha #2 $}, and “‘killing by accident,” kuo-shih-sha $f) 5 Hf, in traditional Chinese law. The former referred to those cases where two men were fighting and without intent killed a third person who had approached, as illustrated in the above quoted cases (T'ang lit su-i, 23, 4a; Sung hsing-t’ung, 23, 42; Ming lit li, 10, 23a; Ch’ing li li, 26, 108a). The latter referred to those cases where no fighting of any kind was involved and the death was purely accidental and unexpected. For instance, a man was hunting, and being unaware of the approach of someone, shot and killed him. Or two persons were climbing a mountain; one of them slipped, causing the other to fall. Or two men were lifting a heavy stone; one of them being exhausted was unable to control the object and thus caused the death of the other, etc. (see T'ang lui su-i, 23, 7a; Sung hsing-t'ung, 23, 7b; Ming lit i, 19, 23b; Ch'ing li li, 26, r08b). Legally speaking, one was more to be excused for “killing or wounding by accident” than “killing or wounding by mistake”, and therefore the punishment for the former was less severe. 1© T'ang lit su-i, 22, ob; Sung hsing-t’ung, 22, 9a; Ming lit li, 20, 38a-b; Ch'ing Iv li, 28, 59a; Staunton, op. cit., 347; Boulais, op. cit., 616. 1 Ch’ing lit li, 28, 66a. 11 [bid., 28, Gob. ¥2 [bid., 26, 116a; Hsing-an hui-lan, 44, 18b-192.

CRIMINAL LAW AND FAMILISM

49

Tai Pang-wén carelessly started a fire in the grass when he was cooking. His mother was too old to run away and was burnt to death.” Hsii Ch’ang-kuei was pulling buckets of mud from the well in which his father was digging. As the bucket rose, the handle broke. The bucket fell, hitting the father, who was working below, and killed him.174 Ts'ui San and his father were sawing a log. The wind blew so hard that the sawhorse was blown from under the log, which fell on the father and killed him.175 The mother of Mrs. Fang Yiian went to see her daughter. While waiting for her son-in law’s return she sat down on the door sill. The daughter started to go out to see what was delaying her husband. As she was passing through the door, her mother caught her by the dress, seeking to detain her. The daughter missed her footing and fell against her mother. The latter fell down and hit her temple. The mother's asthma returned because of the accident and she died.16

If parents committed suicide because they were angered by their children, the latter were held responsible for “‘forcing their parents to die.” According to the Ming law, anyone who forced his parent or grandparent to commit suicide was sentenced to be beheaded, the same punishment as given for striking a parent. Cases could then be presented to the emperor for final disposition.1””

The Ch’ing law was more concrete. When a child offended or insulted

his parents or grandparents so that their anger and distress forced them to commit suicide, the child was sentenced to “immediate beheading.”

If the child had not directly offended or insulted them, but his disobedience had so angered them that they committed suicide, the child was

sentenced to ‘‘detention in prison for strangling’’.1”* The following cases

illustrate this point.

The mother of Yen K’o-lien was quite often mad, especially when she became angry. One day she tried to stop Yen from scolding his wife, but failed. She became so angry that she poisoned herself in a fit of insanity. The governor thought that the mother died because of her insanity, and that the case was not the usual one of forcing a parent to commit suicide. He suggested sentencing Yen to banishment, but the Ministry of Justice judged that although the mother had committed suicide in a fit of insanity, the insanity had been caused by her son’s disobedience. He had no excuse for angering her. Therefore he was sentenced to “detention in prison for strangling.’""* Li Sungnien’s mother tried in vain to stop her son from scolding and beating his wife. She then said she was going to the local government to complain, Her son kowtowed and begged her not to go, but she did not listen to him. After having reported the case to the authorities, she discovered 14 Ch’ing lit li, 26, 167a. 173 Hsing-an hui-lan, 44, 192-222. 177 Ming lili, 19,378. 7 Hsing-an hui-lan, 44,18a-21a. 18 [bid.,26,119a. 17 Hsing-an hui-lan, 44, 8b-11a. 173 Chi'ing lii li, 26, 149b.

4

FAMILY AND TSU

50

that her son would be banished. Worrying about her care and support after

his departure, she drowned herself in a well. It was decided that although the

mother’s death was not caused by anger, the death after all was the result of her son's disobedience. He was sentenced to “‘detention in prison for

strangling.”1® Cases

like these

were

usually

judged

according

to prescribed

law

and the punishment was never reduced. Only under extraordinary circumstances, such as the following, was it possible for the offender to receive a reduced sentence. Liu Chih-ch’ing had always been a filial son. When his mother accepted some

money from a kinsmen who had sold his daughter-in-law, he urged his mother not to keep this money from an improper source. She did not listen to him. Chih-ch’ing saved some money and gave it to the kinsmen secretly. When she learned of this she thought that others might laugh at her for not

being able to manage her son. She was so angry that she committed suicide.

The Ministry of Justice considered that the mother's refusal to return the

money was not a proper instruction and that the son in urging her to do so and his action in returning the money secretly was in accordance with the

principle of gentle remonstration and covering up a parent’s failing—an

ideal action for a filial son, and that he had not disobeyed a command which

should have been obeyed. Consequently he could not be sentenced to being detained in prison for strangling, as in the usual cases, but since his mother’s suicide was after all the result of his returning the money he was sentenced

one degree less than the law for disobeying instructions and causing a parent

to commit suicide. He was finally sentenced to be banished to a distance of three thousand /: away, together with one hundred strokes.

Theoretically speaking, ‘‘to remonstrate gently and not to obey an improper instruction”, did not fall in the category of “disobeying instructions”. The law clearly stated that the latter classification only

held for those who intentionally disobeyed the order which should be

obeyed. Moreover, no punishment was set down in the law to cover suicide caused by disobeying improper instructions received from a parent. Liu Chih-ch’ing was not only not guilty of impiety, but his

action in no way conflicted with Confucianist standards for serving parents." This was recognized by the Ministry of Justice, and in the last case, the Governor of Shansi even thought that the reduction of Ch’ih-ch’ing’s punishment to “banishment” was too severe. Nevertheless this was the sentence imposed. Manifestly the law gave first consideration to the fact that a parent’s suicide was caused by a son’s disobedience. Whether the instruction was proper or not was of minor

importance.

One more case illustrates this point still more clearly.

1 Ibid., 44, 7a-8a. 181 Thid., 44, 8a-b. 19 This point was recognized by the M

¥2 Tbid., 44, 15a-16a.

CRIMINAL LAW AND FAMILISM

5r

T’ien Tsung-pao had a five-year-old son. The mother of the child, T’ien’s wife, was dead at this time, and the child was the favorite grandchild of his grandmother. One day during her absence the child dawdled over his meal. His father told him to hurry, but he wilfully dropped his bow] and broke it.

‘Tsung-pao was angry and spanked his son, who cried. The boy’s stepmother, afraid that her mother-in-law would be unhappy about this, tried to calm the child. He kept on crying, upon which his stepmother slapped him. The

grandmother, who had been chatting with a neighbour, came in at this moment. She was angry and scolded her son and daughter-in-law. Her son

did not dare to argue with her. He begged their neighbour to comfort her.

When she went to her room to rest, he went out to buy some wine for her to drink in the evening. His wife did not dare to enter her mother-in-law’s room.

The latter could not overcome her anger and hung herself. The Ministry of Justice considered that the child had deserved the disciplining he received at the hands of his parents and that this disciplining, since it occurred during

the grandmother's absence, could not be considered as having been per-

formed in disobedience of her instructions, and that therefore her suicide could not have been anticipated. The case was held to be excusable and one

deserving of pity. It was reported to the emperor with the request that the punishment of T’ien be reduced to “banishment.” This he granted. Since the law considered

the fact of the parent’s suicide as decisive,

the erring son was held responsible, even when the death was not caused by his impiety or disobedience. If a son was not habitually unfilial,

but

had

accidentally

committed

an unlawful

act such

as

swindling, fighting, or gambling, for which he had been arrested, and if his parents were caused so much worry by this act that they committed

suicide, the son was given the punishment meted out to those who had

not supported their parents — that is, one hundred strokes and banishment to a place three thousand /i distant." If the son was convicted of a still more serious crime, such as rape, robbery, or homicide, and if he thereby caused his parents to commit suicide, the punishment was heavier." If the son was habitually delinquent and uncontrollable, and if he had dared to offend his parents to a point

where they had committed suicide, he was beheaded immediately in accordance with the law of “forcing one’s parents to die,” regardless of whether his guilt in the matter had been great or small.” Even if the parents died from an accident which was not directly caused by any fault on the child’s part, the latter was still held responsible. In the Ch’ing dynasty, if a parent fell when he was about to

beat or scold his son and died as a result of the fall, the son was punished

in accordance with the law of “disobeying instructions and causing a parent to commit suicide,” — that is, by “detention in prison for

384 Hsing-an hui-lan, 44, 112-132. 185 Ch’ing lit li, 30, 76a—b; Hsing-an hui-lan, 44, 1a-2b. 387 [bid., 30, 76b. 199 Ching li li, 30, 77a-b.

°

52

FAMILY AND TSU

strangling.’ The law was concerned only with the fact and the cause

of the parent’s death. No distinction was made between committing suicide and death caused by falling down. All the following cases were sentenced to the punishment described above.

Ch’én Wén-hsiian scolded his son when the latter brought him a cup of cold tea. The father poured the tea on the ground and picked up a stick with which to beat his son. The son ran away, the father after him. The ground was slippery because of the spilled tea and Wén-hsiian lost his footing, struck his head, and died as a result of his injury. When his father failed to respond to a request for straw, Chiang Pa gave the man who had asked for it, three bunches. Later, Chiang Pa’s father, while drunk, scolded his son for this action. The son argued with his father who became so angry that he struck him. Chiang Pa ran out of the house, and his father, taking out a small knife, pursued him. Being drunk he tripped on the straw. The knife entered his breast and he died of the wound.1 T’ang Pén-hua sold two bushels of lime for fertilizer without his father’s knowledge. When the father needed lime to fertilize his field he discovered the deficiency and scolded his son for not advising him of what he had done. Pén-hua answered that there was still enough lime for their personal needs. The father then scolded him for his stubborn argumentation and beat him

with his pipe. The father had been ill for some time and he became dizzy from being on his feet. He fell down and hit his head against the side of a

bamboo well. He died seventeen days later from the injury. Hsii Shih-hsing was burning some

lumber for heating purposes. His son,

noticing that this was good lumber, asked his father to stop doing this. The father paid no heed to his son’s request and instead ordered him to bring in still more lumber. The son made no effort to respond, and the father became

angry. As he went to beat his son, he stumbled and fell. He died from his injury. In all these cases, the original offences were not very serious and the children were not directly to blame for the tragic outcome. For this reason they were sentenced in accordance with the article on “disobeying instructions and causing a parent to commit suicide.” Had their offences been of a more serious nature, the children would have

been sentenced to “immediate beheading.” In the following case the son was merely banished since his mother’s fall, which led to her death, was due to her own deficiencies. Chiang Shao-hsien was beating his wife because she had not ground the

grain. His mother was in her room and shouted to him to stop. The wife,

however, was screaming so loudly that the son did not hear his mother. The mother then came out of her room, but stumbled and died from the fall. The

18 Tbid., 30, 81b. 19 Thid., 44, 2b-3a.

18 Hsing-an hui-lan, 44, 5a-6a. ™1 Ibid., 44, 63-72.

182 Tbid., 44, 4a-b.

CRIMINAL LAW AND FAMILISM

53

governor of Kweichow convicted Shao-hsien of disobeying instructions and causing the mother to commit suicide. At the same time, however, he reported the facts to the Ministry of Justice, saying that Shao-hsien did not purposely offend his mother. The Ministry of Justice decided that as the mother’s voice had not been heard the son had not disobeyed her instructions, and

that

furthermore

the mother’s

stumbling

was not

expected,

and that

she did not mean to kill herself. The punishment was reduced to banishment with the emperor's consent.

It is clear that the parent’s body might not be touched. more emphasis on the fact of a parent’s death than on the Tt never asked who was right or who was wrong, nor did it between a son’s direct or less direct involvement in the

parent. Although

the authorities were sometimes

The law laid reason for it. discriminate death of his

aware of a

child’s

guiltlessness and a parent’s stupidity and irrational behaviour, the case was still judged according to the law of causing the death of a parent. Children were supposed to obey without fail. The same principles of assessing punishment were also applied to

members of the collateral lines within the five degrees of the mourning system, the so-called nine ¢sw. Since this comprised the kin group, harmony between its various members was considered essential for maintaining group solidarity. Any act of assault or any fight between

the members was consequently viewed as more serious than similar

acts between non-members. The principle was strongly implemented in

the law and the punishments differed from those for similar offences

between persons outside the nine és. From the Sui dynasty until the

end of the Ch’ing dynasty, disharmony between kin was classified as one of the ten major offences.™™ However, not all members of the fs« were of equal status, nor were

all relationships of equal closeness. Differences in generation as well as differences in nearness and remoteness were recognized, and expected

behaviour was correlated with these factors. As a rule, a younger person

was expected to respect an elder and more affection was expected between close relations than between more distant ones. The law took both factors into consideration. It was a more serious offence to assault an elder than a younger person, a closer than a more distant relative. As we have noted above there were four degrees of relationship among kin: chi (1st degree relative), ta-kung (2nd degree relative),

hsiao-kung (3rd degree relative) and ssii-ma (4th degree relative). The

degree of punishment fora junior who assaulted an elder was determined in relation to these grades. Thus the punishment for assaulting a chi

398 [bid., 10, 5a~6a. 384 Sui shu, 25, 17; T'ang liz su-i, 1, 20a; Sung hsing-t'ung, 1, 9b; Yuan shih, 102, 5a; Ming luli 1, 5a; Ch'ing lili, 4, r9a-b.

54

FAMILY AND TSU

uncle in the collateral line was only less serious than assaulting one’s

own grandfather or father; and at the lower end of the scale was the punishment for assaulting a ssi-ma elder. On the other hand, if the aggressor were the elder, the closer the relationship of the two persons involved, the less the elder’s responsibility for the harm inflicted, since the elder had authority over the younger. As a father’s brothers and

their wives and own elder brother were just below one’s parents in degree of relationship, their punishment for injuring a junior was just one degree heavier than that demanded for parents. Ta-kung, hsiao-

kung, and ssti-ma were remote in degree so the punishment in cases of

injuring a junior was heavier in degree also.

In the T’ang and Sung dynasties, the punishment for scolding an

elder brother or sister was one hundred strokes; for paternal uncles and

aunts, one degree heavier, or one year’s imprisonment.1%

According to Ming and Ch’ing law, one who scolded his elder paternal

cousins

in the

fourth

degree

(great-grandfather’s

brother’s

great-

grandson or granddaughter) was punished by fifty strokes; for elder cousins in the third degree (grandfather's brother's grandson or granddaughter) by sixty strokes; for elder cousins in the second degree

(father’s brother’s son and daughter) by seventy strokes; and to scold one’s own elder brother and sister by one hundred strokes. When the

person was an elder in a higher generation the punishment was increased one degree according to the scale just noted. Thus to scold a fourth-degree

great-granduncle,

granduncle,

uncle,

(great-grand-

father’s brother, their sons and their grandsons) and their wives, a third-degree granduncle, uncle (grandfather’s brothers and their sons) and their wives, or first-degree uncle (father’s brothers) and their wives

was punished by sixty, seventy, and one hundred strokes respectively, together with one year’s imprisonment in each case.1%* Punishment for striking one’s elder relative was granted on the same basis. For striking one’s own elder brother or sister the punishment was increased to a five-year punishment during the time of Wei (220-265).197 A more elaborate system was worked out in later times. The T’ang, Sung, Ming, and Ch’ing law stated that to strike a fourth-degree cousin, regardless of whether or not he was harmed, would be punished by one hundred strokes; for a third-degree cousin one year’s imprison-

ment; for one in the second degree one and a half year’s imprisonment. If severe injury resulted in any of the above cases the punishment was

5 T'ang lit su-i, 2 , 8b; Sung hsing-t’ung, 22, 8a-b. 186 Ming lili, 21, 4a-b; Ch'ing li li, 29, 7a; Staunton, op. cit., 356-357; Boulais,

op. cit., 628.

87 Chin shu, 30, 7a.

CRIMINAL LAW AND FAMILISM

55

generally one degree more severe than in ordinary cases (one degree

more severe for fourth-degree cousins, two degrees more severe for third-degree cousins, and three degrees more severe for second-degree cousins). When the wound occasioned disability the offender was

strangled. If death resulted the offender was beheaded.®

The punishment for striking an elder brother or sister was imprisonment for two and a half years when no injury resulted, or three years’ imprisonment if the victim was wounded. If a tooth, finger, toe, or rib was broken by the blow, the punishment was banishment to a distance of three thousand Ji; if a wound was caused by a sharp-bladed instrument,

or if a limb

was

broken

or an eye blinded, the offender was

strangled; if death resulted, the punishment was beheading.

If the victim was of a higher generation, the punishment

in each

case was more severe by one degree than that for the same generation.

Thus anyone who struck his fourth-degree granduncle or uncle was punished by one year in prison, by one and a half year’s confinement if

the individual was in the third degree; by two years if he was in the second degree. If the elder was wounded, the punishment was two degrees, three degrees, and four degrees more severe than in ordinary

cases, depending upon the degree of relationship. In case of disability

or death, the punishment was the same as that for striking an elder cousin.?°° For striking one’s father’s brothers and their wives or a father’s sister the punishment was one degree more severe in each one of the cases

than in the case of striking an elder brother or sister. The punishment for killing one’s father’s brother or his wife, father’s sister, one’s own elder brother or sister with intent to kill was, according to the law of Ming and Ch’ing, dismemberment.”

188 T'ang lit su-i, 22, 7b; Sung hsing-t'ung, 22, 7a; Ming li li, 20, 32b-33a; Ching lit li, 28, 37a; Staunton, op. cit., 344; Boulais, op. cit., 612. It should be noted that in Ming and Ch’ing law a definite number of strokes was accompanied by various terms of imprisonment and banishment. Thus sixty strokes went with one year’s imprisonment, one and a half year with seventy strokes, two years with eighty strokes, two and a half years with ninety strokes, three years with one hundred strokes, and one hundred strokes was always accompanied with banishment. 1% T'ang lit su-i, 22, 8b; Sung hsing-t’ung, 22, 8a; Ming lu li, 20, 35b; Ch'ing lt li, 28, 40a; Staunton, op. cit., 345; Boulais, op. cit., 612-613. 2 T'ang lit su-i, 22, 7b; Sung hsing-t’ung, 22, 7a; Ming li li 20, 32b; Ch'ing lii li, 28, 36a; Staunton, op. cit., 344; Boulais, op. cit., 612. 21 T'ang lit su-i, 22,8b; Sung hsing-t’ung, 22, 8b; Ming lili, 20, 35; Ch'ing lili, 28, 40a; Staunton, op. cit., 344; Boulais, op. cit., 613. 22 Ming lit li, 20, 35b; Ch'ing lit li, 28, 4ob; Staunton, op. cit., 346; Boulais,

op. cit., 613.

FAMILY AND TSU

50

No special consideration was given to non-mourning relatives in the

earlier laws. However, a distinction between the above group and those

non-relatives bearing a different surname was made in Ming legislation. The line between senior and junior generations was emphasized. The

punishment of a person who struck his senior was increased one degree, while a person who struck his junior was given a punishment one degree less than that applicable to equals. An offender in either category was punished as in ordinary cases only when his act was already held to be a capital offence under the law.? This was also

Ch’ing practice.2%

Following the same principle, any premeditated murder occurring

among the mourning-relatives was punished more severely than ordinary cases. The degrees varied according to the generation and the degree of mourning. Anyone who designed the murder of any senior relative within the fourth degree, but whose plan miscarried, was punished by banishment to a distance of two thousand Ui. If the action occasioned a wound the offender was strangled; and when the murder was actually committed, the offender was beheaded. The punishment for murdering one’s paternal uncles and their wives, paternal aunts, one’s own elder brother or sister was as severe as in the case of murdering

one’s parents category

or grandparents.

“Perverse

offences”,

These crimes were included in the

one

of the

ten

offences,2°

and

the

punishment in T’ang and Sung was beheading; in Ming and Ch’ing either beheading or dismemberment, depending upon whether or not

the murder had actually been committed.”

A person who accidentally killed or wounded someone was permitted

to redeem himself by the payment of a fine to the family of the injured or deceased person.” No such privilege was allowed to those who killed or wounded

a paternal uncle or his wife, paternal aunt, or his

own elder brother or sister by accident. The punishment was only two degrees less than that for killing or wounding such relatives as described above.® Many cases were punished with three years’ imprisonment.

8 Ming li li, 20, 31b-32a.

24 Ch'ing lié li, 28, 24a; Staunton, op. cit., 343; Baulais, of. cit., 611. ™5 T'ang lit su-i, 17, 6a-b; Sung hsing-t'ung, 17, 6a; Ming lit li, 19, 5b; Ch'ing li li, 26, 17a; Staunton, op. cit., 306; Boulais, op. cit., 544.

26 T'ang lii su-i, t, 15b; Sung hsing-t'ung, 1, 5a; Ming lili, 1, 4b; Ch'inglitli, 4, 18b. 27 Trang lit su-i, 17, 6a-b; Sung hsing-t'ung, 17, 6a; Ming lit li, 19, 5b; Ch'ing lg li, 26, 17a; Staunton, op. cit., 305-306; Boulais, of. cit., 544.

28 T’ang lit su-i, 23, 7a; Sung hsing-t'ung, 23, 7a; Ming lit li, 19, 23b; Staunton, op. cit., 314; Boulais, op. cit., 565. 29 T'ang lit su-i, 2 , 8b; Sung hsing-t'ung, 22, Sa-b; Ming lit li, 20, 35b; Ch'ing

1% li, 28, 4oa-b;

Staunton, op. cit., 346; Boulais, op. cit., 613.

CRIMINAL LAW AND FAMILISM

57

Chang Shu went to his uncle’s house to ask for a loan. When he arrived there a visitor was just repaying a sum of money borrowed from the uncle. When the visitor was about to leave, Chang’s uncle accompanied him to the door, and Chang took this opportunity to appropriate twenty-five hundred of the coins that had just been returned. After Chang had left the house, his uncle discovered his loss and went to his nephew’s house to get his money back. Chang Shu entreated his uncle to allow him to keep it as a loan, but the latter refused and beat his nephew. In the hope of escaping, Chang Shu drew back. The uncle fell and died. The Ministry of Justice considered that Chang Shu had not offended his uncle and that the uncle's fall was an accident. Chang Shu was convicted of having killed his uncle by accident and was sentenced to three years’ imprisonment.*1°

Kung Hsien-sst planned to sell the timbers of his house. His scolded him, but Hsien-ssi argued that his action was justified. His sprang forward to beat him, but Hsien-ssti escaped to his room. His followed him and fell. In the fall he hurt his head, and died five days Hsien-szit was sentenced to three years’ imprisonment.2™

uncle uncle uncle later.

To force a senior to commit suicide or to cause such action by threats

was a serious offence under the law of Ming and Ch’ing. In ordinary cases where the death of an individual was unusual threats, the punishment was one person who committed suicide was the relative the punishment was “detention

if a second-degree

elder, one

hundred

brought about by violent or hundred strokes; but if the offender’s first-degree elder in prison for strangling”;

strokes and

banishment

to a

distance of three thousand /i; if a third-degree elder, one hundred

strokes and three years’ imprisonment; if a fourth-degree elder, ninety strokes and two and a half years’ imprisonment.??

Wang Jung-wan had chopped down and sold the trees from the hills. His younger brother paid money for the damage done. Later his cousin repaired the ruined hall and lived in it. Jung-wan asked him to pay rent to him, but the cousin refused. Jung-wan then took some money away from his cousin.

The cousin reported this to the head of the sw who decided that Jung-wan

should give back the money. As Jung-wan had already spent the money, he begged his younger brother to pay it for him. Believing that he had done enough for his brother, the younger brother refused, and indicated that he was going to accuse Jung-wan. The latter was frightened and committed

suicide. The authorities held that Jung-wan's death was forced by his

younger brother who was sentenced to strangling.2>

Yen Chin-kung asked his hsiao-kung uncle to repay the wheat and beans which he had borrowed. The uncle took off his fur jacket to settle the debt. When the weather became cold, the uncle missed his jacket and wanted it

: 211 [bid., 34, 37b-38a. 210 Hsing-an hui-lan, 34, 36b-37. 212 Ming li li, 19, 35a; Ch’ing Iii li, 26, 1434; Staunton, of. cit., 321; Boulais, op. cit.,

577-578.

213 Hsing-an hui-lan, 34, 20a-D.

58

FAMILY AND TSU

back, but his nephew refused to give it up. Being distressed over this, the

uncle hanged himself. Yen Chin-kung was sentenced to three years’ imprisonment.2#

In some cases the suicide of an elder was entirely unforeseeable and could not have been forced by a junior, but nevertheless, because of his inferior status in the family, the junior was punished. Moreover, he could only have his punishment reduced one degree from the ordinary penalty for causing the death of an elder by violence or threat. In many of these cases an initial act of thievery led to the offender’s suicide.

Sun Chih-hsing was poor and stole and sold timbers belonging to his uncle. The uncle was so angry that he threw himself from a cliff. Chih-hsing was sentenced to banishment.2#5

Ma Yin-ch’ien took his aunt’s clothes without her knowledge and pawned them. Having nothing to keep her warm in the cold winter, the aunt was angry and hanged herself. Yin-ch’ien was banished.*!* As a rule, stealing from a relative was not considered a serious offence

excepting when it caused an elder to commit suicide, under which circumstances it became so and the punishment was heavy. In some

cases the initial act was most trivial, and if the elder had not committed

suicide because of the ensuing quarrel the incident would have been

treated lightly. Ch’éng Yu-lin accidentally broke a farming tool which he had borrowed

from his elder brother. The latter refused to listen to his apology, scolded

him, and picked up a stone to hit him. Yu-lin ran away, and his brother while trying to catch him accidentally hurt himself in the head. He then became so angry that he committed suicide. Yu-lin was sentenced to banishment.2”? Li T’ai-hua went to stop his elder brother from cursing the latter's daughter-in-law. The brother was angry at T’ai-hua for meddling in his affairs and struck him. T’ai-hua tried to defend himself but unintentionally hurt his brother's cheek. His brother said he was going to bring an accusation against T’ai-hua. T’ai-hua was frightened and asked others to comfort his brother, but the brother committed suicide. T’ai-hua was sentenced banishment.*48

to

In some cases the fault was not the junior’s, nor had he made any threat to his elder. Sometimes the elders committed suicide because they had failed to extort money from the juniors and were ashamed of themselves. But the result was the same: the juniors were not exempted from punishment.

Chu Jung refused to lend money to his second degree uncle. The uncle was angry and cursed Jung. They fought and were separated by others. The uncle pulled out his hair and said that his nephew had done it and that he 24 Tbid., 34, 33a-b. 21 Tbid., 34, 31a-b.

25 Tid., 34, 320-338. 218 [bid., 34, 3ob-31a.

26 Thid., 34, 33a-

CRIMINAL LAW AND FAMILISM

59

was going to report it to the authorities. The dispute was settled by Jung

promising to lend some money, but when the uncle came to ask for the money Jung shut him out of the house. The uncle was so angry he hanged himself.

The authorities considered that although Jung did not force his uncle still the uncle had committed suicide because Jung had regretted his promise to lend the money. Jung received a sentence one degree reduced from banishment — one hundred strokes and three years’ imprisonment.” Téng K’ung-hui and his younger brother did not live together. K’ung-hui was poor and often got help from his brother. One day the younger brother saw that K’ung-hui was stealing cotton from his field. He went to stop him,

and pushed him onto the ground. K’ung-hui received an injury on the back of his head. The next day K’ung-hui reported this incident to the village elders and asked that his younger brother be made to pay his medical

expenses. The village elders scolded K’ung-hui in public. Feeling ashamed he

hanged himself. The authorities considered that the suicide was caused by his shame over his own behaviour and that he had not been threatened

by his younger brother. However, the push given by the younger brother had

been an initial cause, and it was therefore considered unjust to punish the

younger brother only in accordance with the law on injuring an elder brother.

The punishment was increased one degree more than for ordinary injury to

an elder brother — one hundred strokes and banishment to a distance of two thousand /1.20

Chao Chuan borrowed some money to buy things for offering sacrifice to his ancestor's tomb. His elder brother scolded him, saying that while the living had nothing to eat, why should one bother about the dead. Chuan charged that his elder brother cared more for money than for his ancestors. The brother struck Chuan on his left temple, pulled his hair, and beat him with a piece of firewood. Chuan’s left shoulder was hurt. Feeling desperate, Chuan

wrested the firewood

from his elder brother and hurt his left side.

The elder brother, knowing that he was in the wrong and could not report the case, was very angry. Chuan saw that his brother was very angry. He kowtowed and apologized, but the brother hanged himself. The authorities considered that Chuan was right to borrow money for the sacrifice and that he had apologized after he had been beaten and defended himself. There was no indication of any threat. But since it was Chuan’s elder brother who had committed suicide, the situation was more serious than when it was merely a question of a fight. Like the offender in the case just cited, Chuan was banished to a distance of two thousand /i.2%! Yao Po-shou angered his mother. She ordered her younger son to tie him up and send him to the government. As he did not dare to do this, the mother was even more angry and accused him of assisting his brother in offending her. She said she was going to commit suicide. Having no alternative the younger son bound his brother's hands to his back. The mother ordered him to take Po-shou to the authorities, saying she would come immediately. On the way Po-shou asked his brother to free him. The younger brother was afraid of his mother and advised Po-shou to be patient

‘until their mother recovered from her anger. He asked someone to comfort 219 [bid., 34, 28a-b.

2 Tbid., 34, 42b—:3a.

321 Ibid., 34, 438-440.

FAMILY AND TSU

60

her, Po-shou was afraid and threw himself into the river and was drowned. The authorities considered that the younger brother had not threatened Poshou, but the death of the latter could not go unpunished.

The younger

brother was sentenced to the punishment one degree reduced from that for threatening one’s elder brother

so that he committed

suicide —

he was

banished to a distance of two thousand /i.?? Ma Fu suspected his nephew of stealing his sickle, and asked him for it

several times. His elder brother (father of the nephew) said that Fu should not calumniate his son. They disputed together. The elder brother dragged Ma Fu toa cliff saying that he was going to jump down, taking Fu with him.

Fu called for help and tried to pull his brother back from the edge. Suddenly

they both fell over the cliff. The elder brother was killed. Fu was sentenced to

banishment.**4

From these cases it can be seen that the meaning of threat was very vague in law. The law did not ask whether the junior’s behaviour really was a threat, whether the threat was intolerable,?* or whether the senior’s behaviour was reasonable. Whenever a suicide occurred

because of a junior’s behaviour, the latter was held responsible for it and punished under the article dealing with this subject. Take the case of Yao Po-shou’s younger brother. If he had not obeyed his mother she

would have committed suicide. To force a mother to commit suicide was a much more serious offence than to force an elder brother to do so. Actually, Yao Po-shou was forced to death by his mother rather than by his younger brother. But this was inadmissible from the standpoint

of ethics: an elder could never be charged with having forced a junior to commit suicide or causing such action by threats, since a junior was under the authority of the senior and had to obey him no matter how

much

he might

suffer therefrom.

Thus there could be no reason

to

claim that a junior was being threatened.**> The law was interested in

upholding established status within the family, not in any question of

tight or wrong. This is made clear by the scholar Tai Chén 9 #& (1723-1777). He wrote:

The superiors reprove the inferiors with reason; elders reprove youngsters with reason; nobles reprove the humble with reason; even though they are wrong they will be considered right. If the inferiors, the younger ones, or the humble defend themselves with reasons, even though they are right they will be considered wrong .... One who dies under the law will be pitied by

someone; one who dies under reason, who will pity him 2226 i 22 Hsing-an hui-lan, 34, 29b-31b. 229 Hsia tséng hsing-an hui-lan, 10, 9a. #4 In ordinary cases one was responsible for the death of others only when the threat was fearsome and intolerable (see Ming lit li, 19, 35a, commentary: Ci'ing luli, 26, 143a-b, commentary; Shén Chih-ch'i je 3 Zp, Ta-Ch'ing lit chi-chu fe {9% 418 i BE, 19, 36a). 25 Ch'ing lit chi-chu, 19, 36. 2 Tai Chén, Méng-teii tet-i su-chéng of J He He HF, 2, r2a-b.

CRIMINAL LAW AND FAMILISM

61

Most officials who dealt with disputes between seniors and juniors

subscribed to these same sentiments. For instance, Lii K’un # Sh (1536-1618) said:

Thave seen some officials who punished the guilty party when an elder and ‘a younger man accused each other before the court. They did not know that when a junior accuses a senior, the senior is considered as voluntarily reporting himself to the authority, while the junior should be punished for accusing the elder. When this kind of case occurs, even though the senior is absolutely wrong he should be tolerated and pardoned. Even if he speak offensively to the official, punishment should not be meted out to him lest others think that the senior was punished because of the junior. This is the very essence of ethical principle.227 However, the latter his ears occurred, between

an elder who had assaulted a junior was punished only when was so badly wounded as to have his fingers or toes broken, or nose torn off, or his eyes blinded. When such injuries the punishment varied according to the degree of relationship the two parties to the quarrel. The closer the degree of

relationship, the lighter the punishment. Thus if the injured person was a junior in the fourth degree, the punishment was reduced one degree from that meted out in ordinary cases; if a junior in the third degree, it was reduced two degrees; and if he was a junior in the second degree, it

was reduced three degrees. In all cases, strangling was the punishment for causing

the death

of any

relative in these categories,

with the

exception of younger first cousins (2nd degree), and the children and

grandchildren of first cousins (3rd and 4th degree). These three were

considered the closest relatives among the categories. Consequently the

punishment was still less heavy. Beating to death was punished only

by a hundred strokes and banishment to a distance of three thousand i;

only when the killing was intentional was the criminal to bestrangled.?> One-year-mourning elders (chi) were the closest among the seniors in

the collateral lines, and their punishment would be lighter than that of any other elder in these lines for the same crime. The punishment for beating a junior in the first degree to death was three years’ imprison-

ment; for killing with intent, banishment to a distance of two thousand

li, Killing by accident went unpunished.2”

If a senior planned the murder of a junior, the senior’s punishment would be two degrees less than that for killing intentionally if the junior was not injured, one degree less if he was injured, and the same

227 23 li 22 lia

Lit K’un, Hsing chieh Jf 7, A, 67. Tang lit su-i, 22, 8a; Sung hsing-t’ung, 22, 7a-b; Ming lii li, 20, 33a; Ch'ing li, 28, 27a-b; cf. Staunton, op. cit., 344-345; Boulais, of. cif., 612. hsing-t'ung, 22, 80; Ming li li, 20, 36a; Ch'ing T'ang lit su-i, 22, 92; Sung li, 28, 4ob; Staunton, op. cit., 346; Boulais, op. cit., 613.

FAMILY AND TSU

62

punishment as that for killing with intent if the murder was actually committed.?%

Moreover, juniors were not permitted to plead self-defence. Ifa junior was attacked by a senior in the fourth degree, he was not

permitted to defend himself with any kind of weapon. If he did so, his action would be considered as fighting with an elder and he would be

punished in accordance with the law on beating case would be given special consideration only himself with bare hands when his situation injury or death had not been intended. If the the fourth degree,

the punishment

or killing an elder. His when he had defended was critical and when victim was an elder in

(immediate beheading)

might

be

reduced to “‘detention in prison for beheading.” If the victim was an elder in third, second, or first degrees, the judge could only record the details of the case, report them to the sovereign and ask him to make

disposition.*5t A judge therefore was never permitted to report any case to the

emperor for special consideration in which the defendant had used any instrument, tool or weapon. **? Where a defendant had used his bare hands a distinction was made between intent and lack of intent to attack or fight an elder. To fight back with bare hands was considered fighting with a senior.2%9 The following case clearly illustrates this point.

The two brothers Li lived in separate homes. The elder, Li Yin-ts’ai, pressed by a debt, pawned their mother’s pension field, When she discovered this she scolded her elder son, The younger brother, Yin-ts'an, also spoke against his brother. The elder brother scolded Yin-ts'an for minding other people's business. Yin-ts'an answered back. His brother struck him, and he defended himself with his fists. He hurt his elder brother and then ran away. Yin-ts'ai chased him and held him by his braid while he struck him on the breast. Failing to loose his brother's hold Yin-ts’an fought back with his fists and hurt his brother's breast and armpit. His brother held him and kicked him. Yin-ts'an kicked back and hurt the elder’s legs. Then the elder pushed the younger brother down and beat him. Fighting back with his fists Yin-ts’an again hurt his brother's side. The latter then strangled the younger. Hardly able to breathe, Yin-ts'an kicked his brother, who was hurt in his arms and belly. The elder rolled into a ditch and was hurt by stones. He died five days later from his injury. The governor sentenced Yin-ts'an to beheading, but reported that he had not attacked his elder brother intentionally. However, the Ministry of Justice considered that Yin-ts’an could have run away and should not have fought back with his fists, that when he was pushed down he was not injured and should not have kicked his elder brother, and that the 2 lu 21 *°

T'ang lit su-i, 17, 6b; Sung hsing-t’ung, 17, 6a; Ming lit li, 17, 6a; Ch'ing li, 26, 17; Staunton, op. cit., 306; Boulais, op. cit., 544. Ch'ing li li, 28, 35b-36a. 282 Loc. cit. See explanations in various legal cases: Hsing-an hui-lan, 51, 76b-79b.

CRIMINAL LAW AND FAMILISM elder brother had violent offensive, causing the death Li Yin-ts’an was

63

been hurt in nine different places. This was evidence of a and therefore the case could not be considered as one of an elder unintentionally under the condition of defence. sentenced to beheading.

The case was set up as a precedent. Whenever an elder beat ajunior, the latter fighting back and causing the former to receive many injuries or to be injuried seriously, the case was to be considered as fighting with an elder and was to be punished as such.2%4 During the Tao-kuang period (1821-1850) a regulation was introduced which ordered the punishment of any official who failed to distinguish between an intentional attack and an attack arising accidentally out of self-defence, as well as the punishment of any official who sought, without adequate justification, to reduce the penalty of a convicted junior by reporting his case to the emperor.2%5 The restrictions governing a junior’s right to self-defence were not lifted until 1907, when a new penal code was drafted. However the action was strongly criticized by certain officials with the result that an amendment was adopted which ruled that a person had no right of self-defence if the question at issue was fighting with a senior.?** This

regulation was also included in the Amendment Act of the Provisional Criminal Code promulgated in 1914.27 Both amendments indicate the strength of the traditional attitudes.

The above laws concerned assaults between members of the father’s

tsu, As noted previously, a sharp line was drawn in Chinese ethical

thought between relatives in one’s own father’s tsw and relatives in other sw. This same division was also recognized by the law. Since a mother’s parents, brothers and sisters, and the children of mother’s brothers and sisters were the only “‘outside” relatives included in the mourning system, they alone were punished more or less severely according to the degree of their relationship. All other relatives were punished according to the laws that were operative for ordinary cases. At the same time it should be pointed out that since a relative of a different ts who had the same degree of blood relationship as a in the mourning relative of one’s own fsw was considered as more remote degree, the punishment, which was based entirely on the degree of mourning, also varied.

235 Tbid., 21, 85b-86a. 284 Ibid., 21, 80a-82b. 286 Liu Chin-tsao i $f $f, Ch’ing-ch'ao hsit wén-hsien t’ung-R’ao $8 4} #8 3C eis ‘ : WRB %, 246: 9917-8. 27 Chanhsing hsing-lit pu-ch’ung tiao-li Wf 47 FH Alt $h FC VE Pi (in KoFY 1 Tsun-li #§ 3G Gy Chung-hua min-huo hsin hsing-lit chi-chich tp HE 48 Se fp (hereafter referred as Hsin hsing-li), 1a.

64

FAMILY AND TSU

According to the mourning system, mourning for maternal grandparents fell within the category hsiao-kung. And since these relatives enjoyed the highest seniority rating among the “outside” relatives, the law equated them with the second highest in-group classification — that is, with paternal uncles and aunts. Punishment for scolding, beating, or murdering a maternal grandparent was identical with punishments for the analogous crime perpetrated against a paternal uncle or aunt.

The punishment for a maternal grandparent who beat a grandchild to

death was the same as for a paternal uncle or aunt who beat a nephew

to death.28 Also prosecution of a maternal grandparent received the same punishment as that of a paternal uncle or aunt. The mourning for maternal uncles and aunts was only hsiao-kung — two degrees lower than that for paternal uncles and aunts. The children of the maternal uncles and aunts were equated with paternal cousins three times removed, and mourning for them, like mourning for the latter, was ssii-ma. Punishments applicable to the two classes of maternal relatives accorded with position in the mourning system — 2" hsiao-kung and ssit-ma respectively Illicit Intercourse

Sexual intercourse was prohibited between members of the patrilineal tsw and also between a man and the wives of his blood relatives. In

all dynasties, punishment for a violation of this kind was heavy.

28 T'ang lit su-i, 17, 6a-b; 22, 8b-9a; Sung hsing-t’ung, 17, 6a; 22, 8b; Ming li li, 19, 5b; 20, 35b-36a; 21, 4b; Ching liz li, 26, 17a-b; 28, 40a-b; 29, 7a; Staunton, op. cit., 305-306, 345-340, 357; Boulais, op. cit., 544, 613, 628.

28 T'ang lu sui, 24, 1a, 3a; Sung hsing-t’ung, 24, 1b, 2b-3a; Ming la li, 22, 30a-314; Ch’ing lili, 30,67a~68a; Staunton, op. cit.,372-373, Boulais, op. cit.,645. 4 Although the term “‘outside relative” 4} #) is not mentioned in T’ang and Sung law in dealing with cases involving the hisiao-kung and ssti-ma relatives, it is made clear in the Su-i (the commentary) that outside relatives of the same degree of mourning were treated in the same way as those of the relatives of one’s own ts (T'ang lii su-i, 17, 6b; 22, 7b; 24, 2b; Sung hsing-t'ung, 17, 6b; 22, 7b; 24, 3a). In Ming and Ch’ing law it is usually pointed out in the original notes that the article applies both to “one’s own su and outside relatives” (Ming la li, 20, 32b, 33a-b, 34b; Ch'ing li li, 26, 17b; 28, 27a, 28b; 20, 7a). Even in those articles where “outside relatives’ are not mentioned, it is also understood, according to the explanatory notes attached at the end, that “outside relatives’ are included as well (see Ming li li, 10, 6b~7a; 21, 4b; Ch'ing li li, 26, 18a; 26, 1442; 30, Gob). Thus attention was called by the commentator, Shén Chih-ch’i, to the fact that since there were various kinds of mourning relatives and since it was difficult to enumerate them, in cases of fighting between each other the mourning charts for one's own tsi and outside relatives should be consulted before sentence could be determined (Ch'ing lii chi-chwt, 20, 22b. The same is also quoted in Ch'ing li li, 28, 27a).

CRIMINAL LAW AND FAMILISM

65

During the Han dynasty, such acts were characterized as “animal behavior” (% Hk 47). Liu Ting-kuo %J x |, a member of the royal

family, was so accused and committed suicide. He had had intercourse

with his father’s concubine who then bore him a son; he had taken his

younger brother's wife as his concubine; and he had had intimate relations with three of his daughters." From the time of the T’ang

dynasty

on,

the

punishment

for illicit intercourse

between

blood

relatives was heavier than that for non-relatives. Punishment for the latter or “ordinary” cases in T’ang and Sung™? times was imprison-

ment; in Yiian, Ming, and Ch’ing times, beating. The death sentence

was given only when rape was involved.™43

Between blood relatives, the matter was much more serious. In ordinary cases of illicit intercourse, the punishment was eighty or ninety strokes, but intercourse between blood relatives beyond the limits of the mourning system or between a man and the wife of such a relative was punished by one hundred strokes in Ming and Ch’ing times.*44 In T’ang and Sung times, the punishment for intercourse with a relative in the fourth degree or with the wife of a relative in the fourth degree was three years’ imprisonment for both the man and the

woman.

In cases of rape, the man

was banished to a distance of two

thousand /i; if the woman was injured, he was strangled.** In Ming and

Ch’ing times, both the man and the woman were given one hundred

strokes and three years’ imprisonment for illicit intercourse; for rape

the man was to be ‘‘detained in prison for beheading.’”*46 Intercourse with a person related in the third degree or above was considered incest (J #L) — and one of the ten offences.*47 In such cases the punishment was still more severe. During the T’ang and Sung

dynasties, the punishment

for intercourse with a relative in the third

or second degree (grandfather’s brother’s wife, grandfather's sister, grandfather’s brother’s son’s wife, grandfather's brother’s daughter, father’s brother’s daughter, brother’s wife, or brother's son’s wife) was

banishment for both parties to a distance of two thousand Ji; in cases of rape, the man was strangled. In Yiian law, the punishment for having

22 Trang lit sui, 26, 11b; Sung hsing-t’ung, 26, 14. 241 Han shu,35, 3btaunton, op. cit., 248 Yian shih, 104, 8a; Ming lid li, 25, 1a; Ching lit li, 33, 2 fl } 404; Boulais, of. cit., 680-681. 2 Ming li li, 25, 6a; Ch'ing lit li, 33, 21a; Staunton, op. cit., 406; Boulais, op. cit., 686. i : 215 T'ang lit su-i, 26, 12a; Sung hsing-t’ung, 26, 152. 26 Ming lit li, 25, 6a; Ch'ing lit li 33, 21a; Staunton, op. cif. 407; Boulais, ce ; op. cit., 686. 27 Trang lit su-i, 1, 21a; Sung hsing-t’ung, 1, 1b; Yitan shih, 102, 5b; Ming lili, 1, 5a; Ching lu li, 4, 1a-b; cf. Staunton, op. cit., 4; Boulais, op. cit., 30. 5

66

FAMILY AND TSU

intercourse with a younger brother's wife or a nephew’s wife who lived |

under the same roof with the offender was one hundred and seven strokes. In Ming and Ch’ing law the punishment for intercourse with a relative in the third or second degree was strangling for both the manand woman; in cases of rape the man was beheaded. Intercourse with a relative in the first degree (paternal uncle’s wife, father’s sister, brother’s daughter, and the wife of one’s own son or grandson) was considered most intolerable by society and the law, because of the closeness of the relationship. The penalty was death. In Han law intercourse with a paternal uncle’s wife was called “pao”

#449 Execution in the market place was the punishment for such a

crime during Chin (265-420) ;° and in T’ang and Sung times, it was strangling.** In Yiian times, the death penalty was imposed for intercourse with a brother’s daughter or daughter-in-law.**? In Ming and

Ch’ing times, beheading was the penalty for intercourse with a first degree relative or with the wife of a son or grandson.” A concubine was not considered a spouse nor was she included in the mourning system. Yet, since she had sexual relations with one member

of a family,

all other members

were

forbidden

access to her.

In all

dynasties intercourse with a relative’s concubine was punished more heavily than an “‘ordinary” case of adultery. In fact, the punishment

was only one degree less than that for intercourse with the wife of a

family member. For raping a concubine the penalty was strangling.?4 A grandfather’s or father’s concubine was considered a close relation and having sexual intercourse with her was considered incest.%> In the T’ang, Sung, Ming, and Ch’ing dynasties, the punishment was the same as that for intercourse with a first-degree relative — that is, death.?5§ Sexual relations with a slave with whom one’s grandfather or father had had intercourse was also forbidden. The King of Héng-shan of the Han dynasty was executed in the market place because he had

28 Tang lit su-i, 26, 12b; Sung hsing-t’ung, 26, 15b; Yizan shih, 104, 8b-9a; Ming li li, 25, 6b; Ch’ing lia li, 33, 21a-b; Staunton, op. cit., 407; Boulais, op. cit., 686. 289 Tso chuan chu-su, 21, 9b. Han law quoted in Tu’s commentary.

20 Chin shu, 30, 8b. 21 T'ang lit su-i, 26, 138; Sung hsing-t’ung, 26, 15b. 22 Yuan shih, 104, 8a-b, 9a. #9 Ming lii li, 25, 6b; Ch'ing lu li, 33, 21b; Staunton, op. cit., 407; Boulais, op. cit., 687.

T'ang lit su-i, 26, 12a; Sung hsing-t'ung, 26, 15a; Ming lit li 25, 6b; Ch'ing lu li 33, 21b; Staunton, op. cit., 407; Boulais, op. cit., 687. #88 T'ang lid su-i, 1, 21a; Sung hsing-t'ung, 1, 10b; Yiian shih, 102, 5b; Ming lit li 1, 5a; Ching lit li, 4, 19b. 2 T'ang lit su-i, 26, 13a; Sung hsing-t’ung, 26, 15b; Ming lit li, 25, 6b; Ch'ing 1 li, 33, 2b; Staunton, of. cit., 407; Boulais, op. cit., 687.

intimate

CRIMINAL LAW AND FAMILISM.

67

relations with a slave girl with whom

his father had had

intercourse.*” In T’ang and Sung times, the punishment for such a crime was two degrees less than that for intercourse with a grandfather's or father’s concubine.2% Sexual intercourse with relatives of a different ¢s« who fell within the

mourning

system

was

punished

more

severely

than

ordinary

illicit intercourse.* The punishment for intercourse with a ssii-ma “outside” relative (a cross-cousin) was the same as that for a ssi-ma relative in one’s own ¢sw.%*° Sexual intercourse with a maternal aunt (hsiao-kung mourning) was punished more severely than intercourse

with any other “outside” relative. In T’ang, Sung, Ming, and Ch’ing times, the penalty was relative

in one’s

own

the same as that for intercourse with a ta-kung fsu,*!

(a father’s

paternal

first

cousin,

own

paternal first cousin, a brother’s wife or a nephew’s wife). Mourning for

a mother-in-law was only ssi-ma, but Ming and Ch’ing law decreed that intercourse with a wife’s mother was to receive the same punishment as intercourse with a maternal aunt.?*2 In cases of adultery, unlike the situation in cases of injury, no distinctions in punishment were admitted because of differing generation status. In the former, both parties were given the same punishment regardless of their generation, for the sex taboos operated for all members of the és. The degree of relationship was the only factor that

received consideration in determining the punishment for this crime.

Theft Theft among relatives was differently treated than theft between ordinary persons, and in case of the former the severity of the punishment varied in inverse ratio to the closeness of relationship. In T’ang

288 T’ang lid su-i, 26, 13a; Sung hsing-t'ung, 26, 15b. 287 Shih chi, 118, 12a. 29 Thus only when the two parties were outside relatives beyond the limit of the mourning system was the punishment the same as in ordinary cases. (In

T’ang and Sung law, illicit intercourse with a member of the same isu having no mourning tie, was treated as in ordinary cases. There was no special law

provided for non-mourning relatives. In Ming and Ch’ing law it was made clear that punishment for illicit intercourse between relatives having no mourning

ties referred only to those of the same ts.

See commentaries

to Ming and

Ch’ing law: Ming lid li, 25, 6a; Ch'ing lu li, 33, 21b-22a), 280 See T'ang lid su-i, 26, 122, commentary; Sung hsing-t'ung, 26, 15a, commentary; Ming lit li, 25, 6a; Ch’ing lie li, 33, 21a; Staunton, of. cit., 407; Boulais, op. cit., 686. 281 T’ang lid su-i, 26, 12b; Sung hsing-t'ung, 26, 15b; Ming lit li, 25, 6a-b; Ching lui li, 33, 21a; Staunton, op. cit., 407; Boulais, op. cit., 686. 282 See Wang K’én-t'ang $j} #, Wang K’én-t’ang chien shih E 7 a EB, 5, 8b; Ch'ing lit li, 33, 21b.

FAMILY AND TSU

68

and Sung times, the punishment for stealing from a fourth or third degree relative was one degree less than that meted out for ordinary theft; for stealing from a second-degree relative two degrees less; and from a first-degree relative three degrees less.2°* The Yiian law was similar excepting that the punishment for a junior was not reduced in case of robbery.24 In the Ming and Ch’ing dynasties relatives beyond the mourning system were also covered by the code; the punishment for stealing from such relatives was one degree less than that for

stealing from

a non-relative.

The

punishment

for stealing from

a

relative in the fourth, third, second or first degree was reduced further

and respectively two, three, four, or five degrees.** In cases of ordinary theft the criminal was tattooed, but this punishment was not applied to a relative. Adultery between relatives was more severely punished than in ordinary cases, and, when injury was the issue, juniors were punished more severely than seniors. Why then was theft froma relative punished more lightly than theft from a non-relative ? Speaking economically, all relatives were under obligation to support and help each other in case of need. The closer the relationship between the two individuals involved, the greater the obligation for mutual aid and the less the

responsibility of the thief. Ta-kung relatives aresaid toshare property ;?67 and stealing from a ta-kung relative or one in a higher degree was therefore punished most lightly. However, a theft not caused by poverty was differently considered and the punishment therefore might not be reduced. For example:

T’ao Yu-ch’un owned a pawnshop. One of his remote relatives who was beyond the mourning system was assigned a case of jewelry. He ran away with the jewelry, but was later captured. The county magistrate sentenced him one degree reduced from that for ordinary theft. The imperial edict, however, said that Yu-ch’un had offered his grandnephew a job, thus showing that he had not failed to help him; yet the relative ran away with jewelry amounting to three hundred taels of silver. Consequently the punishment was not reduced.26 If injury and theft are taken together, the point is clearer. The punishment for theft was reduced to implement family solidarity and harmony.

289 T’ang 264 Yuan 285 Ming Boulais, 286 Yiian

lid su-i, 20, 1a; Sung hsing-t’ung, 20, 1a. shih, 104, 16b-17a. la li, 18, 42b-43a; Ch'ing lt li, 25, 2a-b; Staunton, op. cit., 287: op. cit., 517. shih, 104, 16b; Ming lit li, 18, 43a; Ch'ing li li, 25, 2a; Staunton,

op. cit., 287; Boulais, op. cit., 517.

287 T li chu-su, 31, 1a-b, Chéng’s and Chia’s commentaries. 8 Hsing-an hui-lan, 18, 35b-38a.

CRIMINAL LAW AND FAMILISM

69

However, if an injury resulted in the course of the theft, this aim could no longer be decisive. Under these latter circumstances theft was no longer pardonable and punishment was visited not only upon a thief, but upon a person who had assaulted a relative, and the punishment in this latter case had to accord with the principles of generation status and degree of relationship. On the other hand it was also considered unpardonable if a man did not consider the affection of a fellow relative and treated his thieving relative as an ordinary robber and injured him. In this case he was not punished according to the ordinary law for injuring a robber but according to the law of assaulting a relative.2° The Li chi reads: ‘‘To judge a case it is necessary to consider the relation of father and son.’’27 When the Ming code was formulated, the grandson of Emperor Taitsu (1368-1398) requested that “‘all laws which were concerned with the five human relationships should give more consideration to human factors even at the expense of the law.’??! The close relationship between familism and law is evident. This tendency was clearly shown in cases of assault, adultery, and theft involving relatives as described above, and since the degree of punishment wascorrelated with generation

and degree of relationship, the mourning system was an important factor in determining the punishment for a crime.” Thus the mourning system was given in the introductory chapter of the Yiian law, and

mourning charts were also included in the Ming and Ch’ing codes,?74 The commentary says, “The reason for the inclusion of the mourning charts in the code is to make the degree of mourning between the various relatives clear so that the judge will be able to have a standard for increasing or decreasing the punishment.”"4 An official made the remark based upon his own experience, ‘“Before judging a case between relatives it is important to make clear what relation they have to each

other and what mourning they wear for each other.”?”5

In cases where the degree of mourning was not clear it was impossible to hand down a sentence. Witness the case of the man who was a two-

line heir (4% #£) of this paternal uncle and who fought with the latter's

wife causing her death. Since no mourning in the mourning chart was indicated for their relationship, and no punishment for this offence was

28 T'ang lit su-i, 20, 1a; Sung hsing-t'ung, 20, 1a; Yitan shih, 104, 17a; Ming li li, 18, 43a; Ch’ing lu li, 25, 2b; Staunton, op. cit., 288; Boulais, op. cit., 518. 2% Li chi chu-su, 13, 5a.

271 Ming shih, 83, 5b.

22 Kung Tuan-li §2 9 j@], Wu-/u t’u-chich =f; Ait fi] fy, author's preface. 273 Yuan shih, 102, 3b-4a; Ming lii li, fu-t’u fig fa], 13a4f.;

and

3.

at Wang

Ch'ing lit li, chitan 2

Bén-t'ang chien-shih, t’u-chu |B) PE, 9b; Ch'ing lit li, 2, 38a.

275 Shén-li tsa-an. fg Bl Me HE, 7, 7b.

FAMILY AND TSU

70

given in the code, the Minister of Justice was unable to hand down a decision. He appealed for aid to the Minister of Rites who was in charge of matters involving mourning, but when no relevant regulation be found,

could

the case was sent back

to the Ministry

of Justice.

However, since no case between family members and affinals could be

settled before their mourning relationship was determined, the Minister

of Justice again insisted that this problem be resolved first. No penalty

was

imposed

until

after

the

Minister

of Rites

regarding the degree of mourning in the case.?7°

reached

a decision

Concealment

The government encouraged the people to inform the authorities when the law was violated, but because of the family ethic, this principle was

not always held right. Confucius did not approve of a son's bearing

witness against his father in such matters as sheep-stealing, and he developed the idea that ‘‘a father should conceal the fault of a son and

that a son should conceal the fault of a father.’’”7 Mencius discussed the problem with his pupils. Assuming that Shun’s father had committed

an act of homicide,

he said that

it was his opinion

that

the

Judge would punish him in accordance with law and that he would not

be pardoned even though he was the father of the Son of Heaven. However,

Mencius

further

stated

that

he

believed

that

under

the

circumstances, Shun would give up his throne and run away with his father.*’® This discussion, based though it was on a hypothetical case, revealed the general attitude of the Confucianists on this point. Since Chinese law was greatly influenced by the Confucianists and since filial piety was always the guiding principle in governing an empire, the principle of concealment among relatives was recognized by the law of all dynasties. As early as 66 B.C. it was permitted to conceal the crime of a close relative. The edict said, “The love between father and son and the way of husband and wife are of human nature. When oneis in trouble, the other will risk death to preserve him. Indeed love is tied to the hearts and it is extremely benevolent and sincere. How can one go against it ? From now on, if a son takes the initiative to conceal the fault of his parents, or if a grandson conceals the fault of his grandparents, he will not be convicted; if parents conceal the fault of their son, if a husband conceals the fault of his wife, or a grandparent conceals the fault of his grandson, when it is a question of a crime

2% Heing-pu t'ung-hsing chang-ch'éng 27 Lun-yit chu-su if i HE Be, 13, Analects, The Great Learning, and the 2 Méng-teti chu-su, 13B, 4a; Legge,

Fp $4 3 4 FE FRA, 708-750. 4b; Legge, Chinese Classics, I, Confucian Doctrine of the Mean (London, 1861), 134. Chinese Classics, I, 346.

CRIMINAL LAW AND FAMILISM

qt

deserving death punishment, let the case be memorialized and request {Our consideration]; let it be reported by the Minister of Justice.’279 Since the time of the T’ang dynasty the right to conceal had been extended to other categories of relatives. Not only were the direct line blood relatives and spouses included, but also 1) those relatives who were living together regardless of their degree of mourning, 2) from second degree and above no matter whether they were living together, and 3) granddaughter-in-law, husband’s brothers, brothers’ wives,

maternal grandparents, and daughter’s children’s daughter. In Ming and Ch’ing times, the principle was applied even to a wife’s parents and a daughter’s husband. A person who attempted to hide a relative in the above-mentioned categories or who gave information making it possible for such a one to effect an escape by running off was not considered guilty of any misdeed. Relatives beyond the third degree who neither lived together nor were included in the list of those having the right to conceal were punished three degrees less than in ordinary cases of hiding or giving information to a guilty person. In Ming and

Ch’ing law, the right to conceal was still further extended to include relatives

beyond

the mourning

system;

their punishment

one

was

degree reduced from that of ordinary cases. Since the law admitted the right of concealment and forbade relatives to accuse one another, a relative of a person accused of a crime was not asked to testify against him in the court. In the early days of Emperor Yiian (317-322) of Chin a judicial official presented a memorial which was strongly opposed to the practice of torturing a son to make him reveal the crime of his father or vice versa.**! In the early

part of the fifth century Ts’ai K’uo 4

Jif, an official, suggested that it

was improper to ask an individual to bear witness against a parent or grandparent. His suggestion was accepted through a court discussion, and thereafter the law did not demand that one’s children or grandchildren

Liang

be witnesses.%?

a man

In the time of Emperor

was sentenced

to banishment

Wu

because

witness against his mother who was a kidnapper."

(502-549)

he had

of

borne

Since the T’ang dynasty it has been clearly defined in the code that those who were allowed to conceal the crime of a relative were not qualified to be witnesses. Officials who violated this regulation were to

2% Han shu, 8, t0a-b; H. H. Dubs, The History of the Former Han Dynasty,

3 vols. (Baltimore, 1938-1955), II, 224.

2 T'ang lit su-i, 6, 6b-7a; Sung hsing-t'ung, 6, 5b; Ming li li, 1, 79b-8oa; Ch'ing lit li, 5, 76a-b; Staunton, op. cit., 34-35; Boulais, op. cit., 92. 22 Sung shu, 57, 148. 281 Chin shu, 30, 15a-b. 282 Sui shu, 25, 6a-b. Cf. Balazs, op. cit., 44.

qa

FAMILY AND TSU

be punished. In T’ang and Sung times, the punishment was eighty strokes, and in Ming and Ch’ing fifty strokes. In Ming times there was a regulation that the prosecutor was not allowed to ask the wife, son, grandson, younger brother, or slave of the accused to be witnesses, One

who violated this regulation was to be punished.**

On the other hand, a son who accused his parent acted not only contrary to the principle of concealment but in a most unfilial manner. No wonder then that such action was very severely punished under the

law of all dynasties. As early as 123 B.C. Prince Shuang was executed in the market place because he had accused his own father, the King of

Héng-shan.2** In the year 87 B.C. during Later Han the King of Ch’i,

Huang, and his younger brother, Kang, were demoted because they had accused their mother.” In the law of Northern Wei it was clearly stated that one who accused a parent should be put to death. This was listed as one of the unfilial acts held to be unpardonable under T’ang and Sung law,*° and punishment therefor was strangling. Yiian law decreed that sons, wives, concubines, younger brothers, and nephews were not permitted to accuse a father, husband, elder brother, or uncle.?*! Even Mongols could not obtain exemption from punishment

for this crime. Wo-lu-ssit # 4 Mi) and Su-ch’iieh 3

were beheaded

by order of Emperor Yin-tsung (1321-1323) because of their accusation

of their parents. In Ming and Ch’ing the punishment was lighter.

Only when the accusation was false was strangling invoked. When the accusation proved to be true, a son was given one hundred strokes and

three years’ imprisonment. This was lighter than the punishment

under T’ang and Sung law which made no distinction between and true accusations. All seniors who might be legally concealed were also protected accusations. If a first-degree senior or a maternal grandparent accused, even though the accusation was warranted, the accuser given two years’ imprisonment in T’ang and Sung times, and

false

from was was one

24 T'ang lit su-i, 29, 6a; Sung hsing-t’ung, 29, 7b; Ming lu li, 28, rob; Ch'ing lié li, 36, 49; Staunton, op. cit., 442; Boulais, op. cit., 716.

2 Mien hui-tien, 177, 158b. 26 Shih chi, 118, 22b. *87 Hou-Han shu, 14, 62-72. 8 Wei shu, 88, 14a. 2 T'ang lit su-i, 1, 18; Sung hsing-t'ung, 1, 8b. Also listed as unfilial under Viian, Ming, and Ch'ing law: Yuan shih, 102, 5a; Ming lu li, 1, 5a; Ch'ing lit li, 4, 19a; Staunton, of. cit., 4; Boulais, op. cit., 20. T'ang In su-i, 23, 11a; Sung hsing-t'ung, 23, 10b. 1 Yuan shih, 105, 6a. 2 K’o Shao-min fif 9%, Hsin Yuan shih 37 Fe sp, 103: 237. #8 Ming lit li, 22, 30a; Ching lit li, 30, 67a; Staunton, op. cit. 371-372; Boulais, op. cit., 644.

CRIMINAL LAW AND FAMILISM

73

hundred strokes in Ming and Ch’ing times. Punishment for accusing other seniors was reduced according to their position in the mourning system. In T’ang and Sung times, the punishment for accusing a senior in the second degree was one and a half years’ imprisonment, for a relative in the third or fourth degree, one year’s imprisonment. In Ming and Ch’ing times, the punishment for accusing a senior in the second degree was ninety strokes, a senior in the third degree, eighty strokes, and a senior in the fourth degree, seventy-seven strokes. In all cases, the punishment was increased if the accusation was proven false. In T’ang and Sung times, the punishment for falsely accusing a senior in the second or third degree was increased two and one degrees respectively. In Ming and Ch’ing law, the punishment for falsely accusing a senior in the first, second, or third degree was three degrees more than punishment for the crime with which the accused had beencharged.?4 If the accusation proved true, the guilty elder was nevertheless treated generously. In the T’ang and Sung dynasties the accused was

punished according to the law of the time if the accused was a senior in

the third or fourth degree who did not fall within the scope of the right of concealment; according to Ming and Ch’ing law his punishment was three degrees less than that for a man accused under the same circumstances by a stranger. If the accused was the accuser’s grandparent, parent or elder in the first or second degree, the individual so accused was treated as though he had voluntarily surrendered and pleaded guilty, and was exempted from punishment. The law was explained

by a commentator who said that in order to prohibit a son from accusing

his parent the former was punished severely by law, whereas in order

to make it possible for a son to keep his guilty parent from being

punished accused assumed accusing

the law provided that the by the former. Thus both that a son would not mind an elder if by so doing he

sentenced.

latter were being could

could be pardoned if he was kept in the law. It was punished under the law for save his parent from being

Under the principle of concealment it was also improper for an elder to accuse a junior relative. According to the law only a parent, paternal and maternal grandparents, or husband’s grandparent was exempted from punishment by accusing his children, grandchildren, or daughter-

2 Tang lit su-i, 24, 1a; Sung hsing-t’ung, 24, 1b; Ming li li, 22, 30a-b; Ch'ing la li, 30, 67a-b; Staunton, op. cit., 372; Boulais, op. cit., 644. 28 T’ang lid su-i, 5, 1a-b; 24, 1a~2a; Sung hsing-t’ung, 5, 1a-b; 24, 1b; Ming lili, 1, 64a-b; 22, 30a-b; Ch’ing lit li, 4, 25a-b; 30, 66a-b; cf. Staunton, op. cit., 372; Boulais, op. cit., 644. 296 Ch'ing lit chi-chu, 22, 26b.

74

FAMILY AND TSU

in-law.” No pardon was granted to any other elder relatives. In T’ang and Sung law elders were punished regardless of whether the accusation was proved true or false, whereas under the Ming and Ch’ing law they It should be were punished only when the accusation proved fi pointed out that because of the difference in status in generations the elders who accused juniors were punished in a way different from a junior who accused his elder. The punishment for the elders was less heavy and its intensity varied according to the degree of relationship between the two parties. According to T’ang and Sung law the punish-

ment foraccusinga junior relative in the third or fourth degree, when the

accusation proved true, was eigthy strokes. If the accused wasa junior in the second or first degree the punishment was seventy and sixty strokes respectively. If the accusation against a junior in the first degree was false, the punishment was two degrees less than the punishment for the

crime which was charged against the accused; for a junior in the second

degree one degree less, and for a junior in the third or fourth degree punishment as in ordinary cases. In Ming and Ch’ing law, false accusation of a junior relative in the first degree was punished three degrees less, a junior in the second, third or fourth degree one degree less. The laws governing concealment and accusation could not be applied to cases of rebellion.*” Thus it is clear that when there was no conflict between sovereignty and family, between loyalty to the state and filial piety, both principles were recognized and encouraged. But when the two were in conflict, sovereignty took precedence, and loyalty to the state was the crucial issue. Juniors to be punished as substitutes Sometimes a criminal was pardoned or had his punishment reduced when his son, grandson, or younger brother asked to be punished in his stead. This was not stated in the law, but the sovereign usually gave special consideration to such cases to encourage filial piety and brotherly love. Sometimes the request was granted and the junior was permitted to assume the punishment of his elder. Sometimes the elder was pardoned or had his punishment reduced.

The earliest known instance (167 B.C.) is the case of Ti-yung #2 %, a

girl who asked to become a government slave so that her father would

2" T'ang lit su-i, 24, 3a; Sung hsing-t'ung, 24, 2b-3a; Ming lt li, 22, 31b; Ch'ing lit li, 30, 68a-b; Staunton, op. cit., 373-374; Boulais, op. cit., 646. 2 T'ang lit su-i, 24, 2b; Sung hsing-t'ung, 24, 2b; Ming lit li, 22, 31a; Ch'ing Ji li, 30, 68a; Staunton, op. cit., 373; Boulais, op. cit., 645. T'ang lit su-i, 6, 7, 24, 2a; Sung hsing-t’ung, 6, 5b; 24, 1b: Ming lit li, 1, 80a; 22, 30b-31a; Ch’ing lit li, 5, 76b; 30, 67b~68a; Staunton, op. cit., 35, 372-373; Boulais, op. cit., 645.

CRIMINAL LAW AND FAMILISM

75

not be punished by mutilation.” In the fifth century, Sun Sa 4% BE was

sentenced to death. His elder brother Sun Chi # #k, asked to be punished in place of his younger brother. Sa did not agree. Sun Chi’s

wife said to him, “You are the head of the family. How can you allow the punishment to fall on your younger brother? When mother-in-law was dying, she asked you to look after younger brother. Now he is not yet married. You already have two sons. You have nothing to regret if you die.”” When Emperor Hsiao-wu (454-464) of Sung heard of this case he said, “Chi and Sa are simply small people, but their reputation and behavior are respectful.”’ A special pardon was granted, and the brothers were immediately summoned by the provincial government and offered official posts. Twenty rolls of silk were granted to the elder brother’s wife.3% In the same century a man who was angry at his wife because she

drank to excess beat her with a stick and killed her instantly, He was

sentenced to death. His son reported to the government that he and his four siblings were all young and could not support themselves if their father was executed. For this reason he begged permission to take his father’s place, thus saving not only his father’s life, but the lives of his siblings as well. The case was reported to the Emperor of Northern Wei, and the punishment of the father was reduced to banishment.3 During the T’ang dynasty a minor official was sentenced to death. His daughter asked to die with her father. The authorities reported the case to the sovereign. An edict was issued to pardon her father from the death sentence.* During the Ming dynasty such stories were more prevalent than ever. The son of a man who had been sentenced to be beaten asked to be allowed to be beaten in place of his father, Emperor Tai-tsu ordered that the father be pardoned.* An official was sentenced to be beheaded. His son asked to be punished in his father’s place. Finally the father was released, and the son was banished to the border. Chu Yun-ming (1460-1526) once remarked, “At the beginning of the (Ming] dynasty the family members of criminals about to be executed who asked to be punished in place of the criminal were all pardoned by . Later on, such requests were for the most part the Emperor.

granted. ... such as Tai Yung #& JiJ on behalf of his father, Wang to Ching =F. tik on behalf of his older brother. Cases were too numerous

3% 2 8 3 35

1 Sung shu, or, 18b-19a. Han shu, 23, 12b-13a. Wei shu, 86, 2b-3a. Chien I gx $3, Nan-pu hsin-shu We Wh Ht H, fing T, rab. Vii Chi-téng Jr HX, Tien-ku chi-wén wh dix #2 Bl, 3, 13b-r4a. Tien-ku chi-wén, 12, 14b.

FAMILY AND TSU

76

be mentioned.

There

father-in-law.’

was even

a daughter-in-law on behalf of her

In certain periods requests of this kind were duly regulated, and individuals made them in accordance with a set procedure. Thus such requests were recognized as legal rights. Emperor Ming (58-75) of Later Han once issued an edict to the effect that parents and siblings of anyone who was being forced to emigrate to the border would be allowed to go in their stead if they asked to do so.” In the early part

of the second century an official, Ch’én Chung, [ii i suggested that

if father, son, and brothers asked to suffer the death punishment on each other’s behalf, the criminal should be pardoned. His suggestion

was accepted.%8 In the fifteenth century a regulation was established that a son or grandson of a criminal who was over eighty years of age or who was suffering from a serious illness should be banished in the

criminal’s stead, and, if the original sentence was less than banishment,

such a criminal should be released.*°® Under this regulation the assumption of punishment for a parent’s crime became a duty rather than a voluntary act. Postponement of punishment and pardon

Tn 327 a magistrate, K’ung Hui 4L tk, was sentenced to execution. An edict was issued by Emperor Ch’éng (326-342), saying, ‘‘Hui deserves

punishment, but his father is old and has only one son. We feel sorry for

his father. Extend mercy to him.’ This is the earliest case of a criminal being released from a death sentence because his aged parent needed care. But this order was given by the sovereign. Orders as well as the subsequent pardons were rare. The earliest legal regulation of this sort was formulated in the Northern Wei dynasty. Under it, cases

in which the criminal’s grandparents or parents were over seventy and

had no adult children or other first-degree side-line relatives to take

care

of them

sideration.*4

could

be

presented

to the emperor

for special con-

Since the time of T’ang this idea has been the pattern followed and

similar regulations were inserted in the codes of the various dynasties.

In T’ang, Sung, Yiian, Ming, and Ch’ing law, a criminal who had been

sentenced to death for a crime that was not unpardonable,3!2 and whose

%6 38 0 32

Chu Viin-ming ft fq W), Yeh chi BF ge, 14b. 37 Hou-Han shu, 2, 15a. Hou-Han shu, 46, 14b. m® Ming shih, 93, 1b. T'ai-p'ing yii-lan, 646, 7a. 31 Wei shu, 111, 11a. For details, see Tang lit su-i, 3, 11a; Sung Hsing-t'ung, 3, 4a; Ming li li,

1, 4tb-42a; 45a; Ch'ing lu li, 4, ora, 114a; Staunton, op. cit., 18, 20; Boulais,

op. cit., 55-56.

CRIMINAL LAW AND FAMILISM

7

grandparents or parents were old,3!8 or were suffering from a serious

illness that required care, and who had no adult male members in the

family, could ask that his case be given special consideration.?4 Final disposition rested with the sovereign, but the sentence was not always

mitigated. In 1173 the case of a man who had beaten another to death

was reported to the emperor by the government. The criminal’s parent was old and had no one to take care of him. Emperor Shih-tsung (1161-1189) of the Chin dynasty said, “This man forgot his parent merely because he was angry. How can he have a mind to care for his parent ? He should be sentenced according to the law.’”’5! Widowed mothers were specially dealt with. In usual cases, according to Ch’ing law, a criminal’s parent had to be over seventy before his case could be appealed, but if his mother was a widow, no age limit was set. All that was demanded was that the mother had been a widow for twenty years after the death of her husband.*!® Such merciful treatment was shown her because it was believed that it was difficult for a widow to bring up a son. If two brothers were sentenced to death, one might be spared so that their parents would continue to be cared for.**? Usually the one charged with the lesser crime was spared. If one was sentenced to death and one to exile, the latter would be pardoned.3!8 Since a criminal could not serve his parents during his banishment, special consideration was also given to this fact. In the Northern Wei dynasty a criminal sentenced to banishment would be merely beaten and then temporarily freed if his grandparents or parents were old and depended on him for care; but after their death, the original sentence was invoked and he could not be pardoned even if a general amnesty was declared.9 In T’ang and Sung times the punishment could also be postponed until one year after the parent’s death or when another male member of the family reached adulthood.s” Ming and Ch’ing law

313 Tn Tang, Sung, and Ming times, eighty was the minimum requirement (Trang lit su-i, 13, 12a; Sung hsing-t’ung, 3, 4b; Ta-Ming ling, 34a; Ming la li, 1, 45a); in Yan and Ch’ing times seventy (Yuan shih, 105, 28b; Ch'ing lit li, 4, 114a; Staunton, of. cit., 20; Boulais, op. cit., 58).

34 T'ang lit su-i, 3, 12a; Sung hsing-t’ung, 3, 4a; Yuan shih, 105, 28b; Ta-Ming ling, 34a-b; Ming lit li, 1, 45a; Ch'ing lv li, 4, 14a; Staunton, op. cit. 20; Boulais, op. cit., 58. According to a case reported to the emperor, Chin 4 dynasty also had similar regulations, but details concerning the various qualifications are not known (T’o T’o fff Jf and Ou-yang Hsitan fi px Xf, Chin shih 4 3h, 45, 6b).

#15 Chin shih, 7, 5a. 38 [bid., 4, 114b-115a.

36 Ching hui-tien, ch. 56. 80 Wei shu, 111, 21b.

8% Tang lt su-i, 3, 11b; Sung hsing-t’ung, 3, 42+

'

)

"7 Ch'ing li li, 4, 114b.

FAMILY AND TSU

78

was more generous. The criminal was given one hundred strokes and the remaining penalties being redeemable, he was freed and could not be banished even after the death of his parents.3# Obviously the exemption from banishment was allowed because of concern for an aged or lonely parent. But since it was not at all likely

that an unfilial offspring would care for his parents under any circum-

stances, a son who had been driven from home by his parents or one who was a habitual vagrant was not exempted from punishment. 4. Blood Revenge

The right of revenge is acknowledged in many ancient and primitive societies. The injured party visits the same kind of injury on his attacker as he received. When the victim is physically unable to do this, his family or clan assumes the right to avenge him as a matter of duty. Thus clan members not only help and protect each other, they also consider an injury to any member of their group as an injury to the group as a whole. Consequently a personal enemy becomes a group enemy and vengeance becomes a collective responsibility. Moreover, many societies do not consider that the original aggressor is the one or only object of their vengeance. When a group, family or clan, acts as a unit, its members consider that a hostile act by a member

of an alien group against a member of their group is actually a hostile act of the alien group against their group as a whole. Therefore the alien

group is held responsible for the misdeed of any of its members and vengeance may be wreaked on any one of them. The alien groups, in order to defend their members as well as their group as a whole also. recognize their collective responsibility. Thus the act of a single individual may often lead to a clan feud. In a society which lacks political power to maintain justice, it is not surprising that individuals take matters into their hands. Vinogradoff discussed the functioning of self-help in ancient societies. Robson said that in primitive societies the function of the adjudicating authority was only to declare the law, not to enforce its decision and therefore private redress was recognized as a proper and lawful proceeding. Self-help was not unauthorized until the authority of the state had aa Ming lii li, 1, 45a; Ta-Ming cit., 20; Boulais, op. cit., 58.

ling, 34a-b; Ching lit li, 4, 1142; Staunton, op.

22 Ch'ing liz i, 4, 120a-b. #8 P, Vinogradoff, Outlines of Historical Jurisprudence (Cambridge, 1920), I, 3544; II, 1868. 84 W. H. Robson,

Civilization and the Growth

of Law

(London,

1935), 96.

BLOOD REVENGE

79

developed to such an extent that it took over all judicial functions.

Rome, England, and France all went through the same stage. China

was no exception. Early historical data show that revenge was approved in early days, while at a later time it was prohibited by the authorities. In other societies the obligation to revenge was the duty of blood

relatives only. In China, the five human relationships** were basic in the social order, and the obligation to revenge was therefore formulated within this context; friends were also included. When T’ung Tzii-chang

it F && of the Han dynasty was dying, he was very sad because he had

not yet taken revenge upon his father’s enemy. His friend, Chih Yiin

1) t® understanding this, went out and returned with the enemy’s head.37 It should be pointed out that the five human relationships are not equated in Chinese thought and thus the obligation to revenge varied

according to the relationship between the victim and the avenger. The

relationship between a ruler and his ministers, between a father and his

son, was very close; therefore the obligation to revenge one’s ruler and father was also the most important. It was said that a son should not

live under the same sky with the enemy of one’s father. He should sleep

on straw with the bare earth as his pillow. He should resign any official post he might have and concentrate all his energies on seeking vengeance.58 The different obligations and attitudes entailed in avenging a brother, cousin, or friend are described in the Li chi.

According to the Chou li a special office handled cases of revenge. A definite procedure was outlined, and the avenger, if he had made a report to the government authorities before seeking satisfaction, was not held guilty of any criminal behavior.**° However,

the state also

acted as mediator. A special office saw to it that the wrongdoer was removed to some distant place so that he would not be exposed to the

vengeance seekers. Furthermore, the law stated that a victim could be

avenged only once.351

325 Vinogradoff, op. cit., II, 59. 286 The five basic human relationships are: 1) father and son, 2) ruler and subjects, 3) husband and wife, 4) brothers and sisters, 5) friends (see chapter VI). 297 Hou-Han shu, 19, 17b-18a. % Li chi chu-su, 3, 6a; 7, 10; Legge, Texts of Confucianism, 111, 92, 140; Couvreur, Li Ki, 1, 56, 147-148. %° Li chi chu-su, 3, 6a-b; 7, 10a; Legge, Tests of Confucianism, III, 92, 140; Couvreur, Li Ki, I, 56, 148. 39 Chou-li chu-su, 35, 13b; Edouard Biot, Le Tcheow-Li, ou Rites des Tcheou, 2 vols. (Paris, 1851), II, 35: 891 Chou-li chu-su, 14, 60-7; Biot, op. cit., I, 304.

FAMILY AND TSU

80

During the period of the Warring States, revenge was frequent. In fact a special class of professional assassins was willing to act for those

who were more directly involved. Mencius said, ‘‘From this time forth I

know the heavy consequences of aman kills another’s father, that kills another's elder brother, that does not himself indeed do the

killing a man’s near relatives. When other will kill his father. When a man other will kill his elder brother. So he act, but there is only an interval

between him and it.**? Mencius was certainly impressed by the numerous

cases of revenge in his time, and it seems not improbable that in this period no prohibitions operated to restrict the taking of revenge. We do not know exactly when the taking of revenge became illegal and punishable by the law, but it would seem that during the first century B.C. the state sought to regulate the matter. In the early twenties of the first century Huan T’an fi #@ (first century B.C. and A.D.) presented

a memorial

saying,

‘‘Now although those who have

mitted homicide are punished by the law, yet private parties still predominates, and revenge is exacted generations. New hates always follow the old ones, whole family is exterminated. ... Now we should

Jaw [to prevent

revenge].’’%3 This memorial

com-

hate between two between them for and sometimes a reenforce the old

seems to imply that

revenge was prohibited, at least at the end of the Former Han dynasty,

and that Huan T’an was merely asking Emperor Kuang-wu to implement a law already in existence. An examination of second century cases involving revenge shows that at this time the state assumed an important role in affairs of this kind.

Hou Yii #% 3 took revenge on her father’s enemy and was about to be sentenced to death by the magistrate. Her punishment was reduced

from the death penalty because of Shen-t’u P’an’s It J #§ suggestion.3%4 The case of Chao O-ch’in itff #& # is equally illuminating on this point.

She reported herself to the government after she had taken revenge on

her father’s enemy. The magistrate sympathized with her and offered to let her go. At the same time he was ready to give up his post and to run away also. She said, “‘To get rid of my enemy and to die is my part. To convict for a crime is your duty. How dare I ignore the law in order to live?” The courtroom was crowded with people and the officers did not dare to release her openly, but they hinted that she should escape. This she refused to do. She said, “Although I ama humble woman, yet I know the law. The crime of killing is one that the law does not pardon. Since I have now violated the law, there is no way to get away. I beg to be executed in the market place in order to maintain the imperial

382 Méng-tzti chu-su, 144, 6b; Legge, Chinese Classics, 11, 357. 833 Hou-Han shu, 28A, 4a. 86 [bid., 53, 12a.

BLOOD REVENGE

8r

Jaw.”’*°5 These statements make it clear that vevenge was prohibited by law. Despite his obvious sympathies, the only thing the magistrate

could do to help her was to give up his post and run away with the

prisoner.

The case of Hou Yu occurred in the time of Emperor An (107-125) or Emperor Shun’s time (126-144) and that of Chao O-ch’in in A.D. Ig ee Thus we can be sure that by the time of the second century A.D. revenge had been forbidden by law. But the taking of revenge had been traditional behavior for so long that the government could not easily put a stop to it. It was therefore necessary for the government to underline its position on this point by reissuing its orders from time to time. Ts’ao Ts’ao (155-220) in 205,337 Emperor Wén (220-226) of Wei in 223,355 Emperor T’ai-wu (424-452) of Northern Wei in 435,3° and Emperor Wu of the Liang dynasty in 547, all had issued edicts forbidding the taking of revenge. In Wei the punishment for a violation was severe: the offender as well as his parents, siblings, wife, and children were executed. A son was permitted to kill the murderer of his parent only when the murderer had been legally prosecuted but had made his escape.*4! The punishment in Northern Wei times for taking revenge was still more severe. Not only was the ¢su of the offender executed, but any neighbor who had given

aid to the avenger.*4? Under the law of the Northern Chou dynasty

(557-581), a person who killed another for vegeance was punished as a homicide.#49 No special law concerning vengeance is included in the T’ang or Sung code.*44 A supplementary statute, however, was introduced in Sung times to the effect that a case of avenging one’s grandparent or parent should be reported by the officials to the emperor who would then make the final disposition.*4° Manifestly while revenge was definitely outlawed

a, Wei chih By as, 385 [bid., 84, 18a-b; Ch’én Shou [ifi #, San-kuo chih = 18, 18b-19a. 891 Tbid., 1, 23b. 338 San-kuo chih, Wei chih, 18, 18b. 399 Wei shu, 4A, 22b. 88 bid, 2, 21a. 39 Yao Ch’a jk $2 and Yao Ssit-lien jy HE ff, Liang shu i HE, 3, 32b. 81 San-huo chih, Wei chih, 2, 21a. 312 Wei shu, 4A, 22b. 312 Sui shu mentions the law which ruled that a person who reported to the authority before he killed someone in revenge was not subject to punishment (25, 14b). It also mentions that the law concerning vegeance was abolished for the first time and that an offender was sentenced for homicide (25, 15b). According to Chow shw, the abolition took place in 563 (Ling-hu Té-fén 4p yh (fi 3E and others, Chou shi Ji] #, 5, 7a). Probably the abolished law refers to the one mentioned above. Cf. Balazs, op. cit., 69, 153, R. 210. 35 Sung hsing-tung, 23, 42. 344 Sung shih, 200, Ob. 6

FAMILY AND TSU

82

by the government, special consideration was still given to cases growing out of this offence. This was an elastic measure which took both tradition and law into consideration. Only under Yiian law was revenge

permitted. Under this law a person who killed another to avenge the

death of his father was not subject to punishment. Moreover, the family of the original murderer had to pay fifty catties of silver towards the funeral expenses of his victim.*4* The law of Ming and Ch’ing gave exemption from punishment if the son killed the murderer of his parent

or grandparent immediately after the event, but such a rule was not applicable if he killed the enemy some time later; then he was to be

punished with sixty strokes.*#7

Ch’ing law also held that, if an escaped murderer met his victim’s

son before he was apprehended

by the authorities, the latter would

have to take him into custody and hand him over to the authorities; if ason killed his father’s murderer who had eluded the law, the son was

punished with one hundred strokes.*48 When a murderer was caught and punished by the government, justice was considered done and private persons were prohibited from seeking further satisfaction. Thus

if the son of a victim killed his father’s murderer after the latter, having

been punished under the law, was released by an amnesty, the former

was sentenced toimprisonment for life. Emperor Kao-tsung (1736-1795)

explained clearly in a statement that “‘life and death depend upon the sentence given.

How

can a reckless person

take revenge at his own

volition? Once the law has already meted out justice, the personal

enmity is at an end. Killing for revenge cannot be begun. This has been

explained clearly in the imperial orders. As to cases of revenge, if one’s father has been killed and the murderer has escaped from the law, then

there is some excuse in the action of revenge.

... If the murderer has

been punished, the law has meted out justice. ... If one again kills at

his own volition, he should be sentenced according to the law of killing by intent to kill.’’"49 The law also tried to prevent the taking of revenge by moving the aggressor to another community. According to the Chow li it was the

duty of the ¢’/ao-jén #8] A, to ask the man who had killed another to move away from the place where his victim’s son or brother resided. If he did not do so he was taken into custody. Later this was written into the law. During the Sung dynasty of the South and North Dynasties, a law

required a man who had killed another to move two thousand Ji from

46 Yiian shih, 105, 10b. 47 Ming lit li, 20, 47b-48a; Ch'ing lit li, 28, 80a. 348 Tbid., 28, 81b-82b. 9 Hsing-an hui-lan, 45, t2a. % Chow li chu-su, 14, 6b-7b; Biot, op. cit., I, 304-305.

BLOOD REVENGE

83

the place where the victim’s son resided. A court conference discussed

this ruling in relation to the case of the woman who had murdered her

daughter-in-law. The question was raised whether the murderess should be removed from the community where her grandson lived, so that a meeting between them would be avoided. In T’ang and Sung law a murderer who had been sentenced for his crime, but later pardoned, had to be moved one thousand /i from his community if any first-degree relative of the victim resided there.**?

But despite direct prohibitions and indirect attempts at restriction, many cases of the taking of revenge can be cited. The relatives of the victim did not hesitate to risk their lives in order to avenge him. Some even sought to avenge a relative who had been executed by government

order. “If the father is improperly executed, his son has the right to take revenge” was first introduced in Kung-yang’s book.554 In the Han dynasty, the magistrate of Hai-ch’u executed a petty official, Li, who had committed a crime. The latter’s mother gathered

several hundred men together, called herself a ‘general’, killed the magistrate, and presented his head to her son’s tomb.**4 Also Huang Ang 3% Fi, the only surviving member of the powerful Huang family which with this one exception had been exterminated by Governor Hsii

I @& #it, gathered

a thousand

people

took the city and killed the governor.

around him,

attacked

and

The psychology of the people was such that satisfaction depended

on killing the murderer with their own hands. Punishment by the law

did not suffice. Many stories tell of a son presenting a murderer's head or heart to his parent's grave. Huan Wen #1 iii (312-373) rose to fame and received the respect of his contemporaries because he killed

his father’s murderer with his own hands.*** Han Chi ## 8,557 Shén Lin-tzii % $k F-,38 and Chang Ching-jén a At {£9

all killed their

enemies and presented the heads to their father’s graves. Han Chi became famous for this act and was subsequently recommended as

“filial and pure”. Chao Yin jij }%{ and Wang Chiin-ts’ao = #% #85"

both killed their enemies with their own hands and had their hearts

eaten.

Many cases show that in matters of revenge women also acted directly. During the time of later Han, Chao An iti # was killed by

351 33 385 37 3 360 o

_8* T'ang lit su-i, 18, 5b; Sung hsing-t'ung, 18, 5b. Sung shu, 55,10b-11a. 354 Hou-Han shi, 11, 12a-13a. Kung-yang chu-su, 25, 9b 456 T’ai-p'ing yii-lan, 481, 7a. San-huo chih, Wei chih, 18, 17b—18a. 38 Sung shu, 100, 16a. San-kuo chih, Wei chih, 24, 1a. Li Yen-shou as HE 3, Nan shih yf sh, 74, 7b. 31 Ch’iu T’any shu, 188, 2b-3a. T’ai-p'ing yii-lan, 481, 6a.

84

FAMILY AND TSU

Li Shou # #. Chao An’s three sons died in an epidemic. One daughter

survived. Li Shou heard of this, and since he thought that there was no

male member left in his enemy’s family he celebrated his safety. The daughter, Chao O-ch’in, though a delicate woman, vowed she would kill her father’s murderer with her own hands. She bought a knife and went about the streets in a deer cart looking for her enemy. Everyone advised her not to try to fight with a strong man like Li Shou. Finally she killed Li Shou and surrendered to the authorities.9

In Northern Wei Sun Nan-yii # 4 4 killed the man who had murdered her husband. When her brother tried to stop her she said,

“When a woman marries, she looks upon her husband as heaven. I shall take revenge by myself. Why should I ask someone else to do it ?””9

Wang Tzii-ch’un “E + 4 of Sui was murdered by his cousin. He had only three daughters. When the eldest was old enough her relatives planned to have her marry.

She refused. Privately she told her two

younger sisters, ‘We have no brothers. That is why our father’s death has not yet been avenged. Although we are all girls I wish to take

revenge with you.” The two sisters agreed. They killed the enemy and his wife and had their heads presented to their father’s grave.5%

Usually a mother would not permit her son to become involved in dangerous action. However, when it was a question of avenging a

father’s or brother’s death, her attitude changed. Tu Shu-p’i’s #t At Bt elder brother was murdered by Ts’ao Ts’é #¥ 9. When Ts’ao Ts’é

submitted to Chou, Shu-p’i asked the court to see that justice was done. The court, however, held that the murder had been committed before his submission and that therefore the case should not be considered. Shu-p’i vowed to take revenge, but hesitated when he found that his mother would be involved under the law if he did so. Knowing what was in his mind, his mother said, ‘Your brother unfortunately suffered a bitter fate. I have always been grieving. If Ts’ao Ts’é were to die in the morning I should be content to die in the evening. You do not have to hesitate.” Shu-p'i killed Ts’ao-ts’é, had his head cut off, his stomach ripped open, and the body mutilated. He then bound himself and reported to the authorities.36

The belief that revenge was justified was so deep in people’s minds that not only general and scholarly opinion was sympathetic to the avenger, but many of the officials who administered justice also looked upon it as right. Thus ethics and judicial responsibility frequently came into conflict. An official who was willing to jeopardize his government position might set an avenger free, as happened in the case of Chao B02 S, Auo chih, Wei chih, 18, 18b-19a. 33 Wei shu, 92, 4b.

364 Sui shat, 80, 9a-b.

25 Chou shu, 46, 6b-Sa.

BLOOD REVENGE

85

O-ch’in.*6 Or, as in the case of Chih Yiin, a magistrate might force his prisoner to escape, going so far as to threaten suicide if the latter

refused.**7 In Ch’i state of Later Han a filial son avenged his father’s death and was put in prison. The magistrate who was cruel killed the

filial son before Ch’iao Hsiian #§ ¥, the Chancellor, could save him

from the death sentence. Ch’iao Hsiian who became uneasy because of this action, arrested the magistrate and had him killed to comfort the soul of the filial son.5* Cases like these are, of course, rare in history,

but in every dynasty the taking of revenge called forth general sympathy and frequently a pardon from the sovereign.3 Sometimes, the avenger was not only pardoned but also rewarded by the government. When Chao O-ch’in reported her revenge the whole town went to look at her. Everyone was touched.%” After she had been pardoned for her revenge the provincial officials set up an honorific arch and insignia on her door.*”! Her picture was painted on

walls.%7? Nobles, high officials, and famous people were all pleased to communicate with her. Chang Huan 4 # (104-181) sent her rolls of silk to show his admiration.2Liang K’uan % 3¥ wrote a biography of

her.374 As Huang-fu Mi St Wi a (215-282) had said, ‘All people who have heard of her were full of praise and admiration.’975

In the Liang dynasty Chang Ching-jen, who avenged his father,

was

given

exemption

from

tax

and

service.97®

T’ang

T’ai-tsung

(627-649) granted Wei Wu-chi S€ 4 & a field and residence in order to show his approval of her filial behavior. The provincial official was ordered to marry her off properly.*77 There were, however, cases in which the son avenger was punished

according to law. In the T’ang dynasty Chang Shén-su

7 #%, the

governor of Sui-chou, was accused of being corrupt. An official, Yang

Wang #4 i£, was assigned to investigate the case. On the way Yang Wang was stopped by Chang’s supporters. The one who had made the accusation was killed and Yang was threatened if he did not make a favorable report. Yang Wang was rescued by troops and he subse-

386 ante, p. 80.” Hou-Han shu, 29, 18a-b. _™* T'ai-p'ing yit-lan, 481, 5b. 3 T’ai-p'ing yii-lan, 482, 4a; Sung shu, 91, 19b; Wei shu, 86, 3b; 92, 4b; Nanchi shu, 55, 9a-10a; Chou shu, 46, 62-7a; Sui shu, 80, gab; Ch'iu T'ang shu, 50, 14a; 194, 3a-b; Wang P’u = jill, Wu-tai hui-yao Fy {€ ff BE, 9, 1rb-12b; Sung shih, 200, 6b; Chin shih, 45, 4b; Ming shih, 207, 5b-7a. 37 San-kuo chih, Wei chik, 18, 19a. #1 Hou-Han shu, 84, 18b; San-kuo chih, Wei chih, 18, 18b, 19a. ¥2 T'ai-p'ing yit-lan, 430, 2a-b. 23 Hou-Han shu, 84, 18b; San-kuo chik, Wei chih, 18, 19a. 34 San-kuo chih, Wei chik, 18, 19a. ®? Ch'in T’ang shu, 193, 3b. 6 Nan shih, 74, 7b-B8a. #5 Loc. cit.

FAMILY AND TSU

86

quently reported that Chang Shén-su was planning to rebel. Chang Shén-su was executed; his property was confiscated, and his two young

sons, Huang #{ and Hsiu §%, were sent into exile. Later the two sons returned and killed Yang Wang. They left a statement tied to the ax,

stating that their father had died unjustly. Everyone in the capital

sympathized with the two young filial boys and thought they should be pardoned. Chang Chiu-ling # Jt fit (673-740) also wished to spare them

from

death,

but P’ei Yao-ch’ing 2 ## §M (681-743)

and

Li

Lin-fu

4 $k ili (d. 752) insisted that the law be respected. Emperor Hsiiantsung (712-756) agreed with them. He said to Chiu-ling, “Although

zevenge is allowed in the /i, killing is forbidden by law. Filial sons will

risk their lives, but how can the law tolerate it ?”” An edict was issued, saying, ‘Recently we have heard that there have been many sayings among the people who sympathize with their avenging their father. Some say that their father died unjustly. However, the nation formulates the law for long use. The purpose is to save people and prevent killing. If every person wants to practice the desires of a son, and since there is no one who is not a filial son, a feud in perpetuity will result with

endless killing.” The people were all sorry for the sons. They hung

eulogies along the roadside and collected money to buy their bodies. Fearing that the family of Yang Wang might still act against the corpses, the people built a number of tombs in order to confuse anyone who was still seeking vengeance.9*

Hu Chih-t’ang #j] & #£ commented in criticism: “To revenge is an expression of the true emotions of a human being whereby the right

behavior of a son or minister can be established.

If a wrong is not

avenged, the human way would be destroyed and the heavenly way ruined. So it is said that one will not be under the same sky as a father’s enemy. The lord’s enmity is the same as the father’s. Chang Shén-su did not rebel; he was falsely accused. Yang Wang was sent to investigate, but he reported rebellion and caused Shén-su to be beheaded. It was Wang’s crime. Angry at their father’s unjust death, Huang and Hsiu risked their lives and took revenge. Their mistake was in not

telling the authority, but their intention was one to call for sympathy. Chang Chiu-ling’s idea of having them pardoned was also because of this. How cruel were the words of P’ei, Li and the edict. The purpose of

the law is, of course, to put an end to killing, but how could it be an

instruction if such an intention of a son could not be carried out? It said that Tséng Shén would not be excused for killing a man; he saw only that killing meant dying, but he did not see the righteousness of revenge. Yang Wang had killed Chang Shén-su without reason, and 3% Tbid., 188, 13a.

ADMINISTRATIVE LAW AND FAMILISM

87

Huang and Hsiu killed Wang. This was fair. If it was the fact that they had killed without reporting to the authority concerned, to have spared them from death and sent them into exile would have been enough. Since they were executed, it meant that one Yang Wang cost three lives in exchange. Is not that too much ?””379 Yii Ch’ang-an’s 4% § & father and uncle were killed by a man. Ch’ang-an, then eight, swore that he would have revenge. When he was seventeen he killed the enemy by his own hand. He was sentenced

to death by the ¢a-li % FH. Governor Yiian Hsi Jt $% presented a memorial saying that the convicted was a filial son. He suggested that the case should be discussed in a meeting of the ministers. At this time Pei Chi 2 Jf (Sth and gth centuries) was the Prime Minister and Li

Yung 2 Hil was the minister of justice. The suggestion was rejected. The scholar Hsiieh Po-kao # {fi 44 said, “The minister is an ordinary official. The one who wields the power is an old small man. No doubt

the Yii boy is dead.”

From the standpoint of the law, the killing of another had to be punished by death. No special article dealt with revenge. Release from the death penalty depended upon action outside the law, and such action was the exception. But the people, and particularly the scholars, often held that, where revenge was concerned, it was right and admirable

to make an exception, and, as a corollary, that the death penalty was wrong and contrary to moral instructions. These attitudes indicate the conflict between the /i and the law. They also indicate how deeply embedded in the minds of the people was the idea that personal revenge was justified. The words of Hu Chih-t’ang and Hsieh Po-kao merely expressed the thoughts of the general populace.

Hsiin Yiieh 4#j $f (148-209) suggested as a compromise that revenge

should be allowed only when

the enemy

did not move

to another

place.**! Han Yii # #& (768-824) suggested that all cases of revenge should be discussed by the office of the shang-shu-shéng 3 @% 4] which would decide whether a pardon or a death penalty should be given. 5. Administrative Law and Familism Ethical principles were fundamental in Chinese politics and, as has been

shown, the relation between politics and familism was close. Under these circumstances, it is not surprising that administrative law — the

#9 % a1 22

Ma Tuan-lin [& i fi, Wén-hsien t'ung-h'ao 4 RR 3h %, 166: 1440. T'ai-p'ing yit-lan, 482, 7b-Sa. Hsin Viieh, Shén chien tft 98, 2, 7a-8a. Ch'iu T'ang shu, 50, 14b-15a. Cf. Biinger, op. cit., 131-4.

FAMILY AND TSU

88

appointment and the dismissal of officials — was strongly influenced

by the latter.

many persons were appointed Under the regulation of jén-t2it {£ officials in Former and Later Han merely because their fathers, elder brothers, and paternal uncles were high officials. Thus they automati-

cally became officials and did not have to go through the ordinary channels for entering officialdom. This practice,

under

the name

of

yin I, was followed by T’ang and later dynasties until the end of

Ch'ing. With the exception of Sung, which generously extended

this

kind of privilege to all male kin of an official within the five degrees of mourning, all dynasties limited this privilege to sons and grandsons and sometimes to younger brothers and brothers’ sons.%* “Name taboo” was one of the things to be considered in any appointment. In ancient times, an official would not accept an appointment if the official title or the name of the place where his prospective office was located was similar to the name of his grandfather or father. For instance, if a father’s name was Ch’ang, the son would not accept

a post as ?’ai-ch’ang & 7s or one located in Ch’ang-shan. In T’ang times Chia Tséng-yiin ¥f ff 32 refused the post of chung-shu shé-jén

*p = & J because his father’s name was Chung-yen 4 4. After a

discussion in which it was pointed out that chung-shu was the name of the office and not an official title and that the two chung while similar in sound were differently written, he accepted the assignment.*4 During the Sung dynasty Lii Hsi-ch’un % #1 {# did not accept the assignment of chu-tso-lang 3% { {8 because his father’s name was Kung-chu 2 3.9 In the T’ang dynasty Féng Su i§ 7, whose father’s name was Tzii-hua +f

%3 For details

#2, refused the post of inspector of Hua-chou.

see Hsii T’ien-lin ¢

JK WE, Hsi-Han

hui-yao PR We fT BE, 45,

3b-sa; Hsi n-lin, Tung-Han hui-yao Ye wt ff BE, 26, r6b-17a; Wén-hsien #'ung-h'ao, 34: 323-327; Hsi Huang ff $9f and others, Hsi wén-hsien t’ung-k’ao $% 2C WK J %, 40: 3181-3184; Hsi Huang and others, Ch’ing-ch’ao wén-hsien Hung-k'ao ¥% WIC BRIG F%, 53: 5359-5360; Hsin T’ang shu, 45, tb-2a; Sung shih, 159, 4b-16b; Chin shih, 52, 2b-4a; Yuan shih, 83, 1a-3a; Yuan tien-chang, 8, 15a; Ming shih, 69, 8a-ga; Chao Erh-hsiin and others, Ch'ing shih-kao 116,

4a-8a; Nida Noboruf= Jf {ff fi, Shina mibunhs shi Ys Sf Fp: sh, 284-285;

Wittfogel and Féng, History of Chinese Society, Liao (Philadelphia, 1949), 456.

The fact that the practice of jén-tett {—-F- was not followed by Wei, Chin, and the

Northern and Southern Dynasties (420-589) does not mean that the children of officials were deprived of such bureaucratic privilege; on the contrary, as pointed

out by Ma Tuan-lin 5 $i fj, under the system of chiu-p'in chung-chéng JL fi ¥f JE most of the persons recommended and appointed as officials were members

of ses iss families. Therefore jén-tzt was not necessary (Wén-hsient’ung-k’ao, 34: 324). 1 Chuang Ch’o iff gs, Chi lei pien ty Why 8, 87. 85 Sung shih, 336, 24b.

ADMINISTRATIVE LAW AND FAMILISM

89

Fan Ch’ung ¥@ 4# of Sung did not take the post of governor of O chou because of his father’s name, O #8. Ma Chih J% fi was assigned to the post of governor of Héng-chou.

Since there was an An-jén County in

Héng-chou and his father's name was An-jén % {=, he resigned. Numerous examples of this kind can be found in the historical records. If in accepting an assignment a man broke this name taboo, he would

be dismissed from office and imprisoned for a year.¥? When an official’s grandparents or parents became old and had no other adult male to support them, the official was expected to look after them himself. In all dynasties, to absent oneself from one’s aged parents in order to hold an office was forbidden. In T’ang and Sung times an official who held office under these circumstances would be dismissed and given one year’simprisonment.*s If the parents of an official became old or sick during his incumbency, he was expected to resign and return

to his home

to care

for them.

If he failed to do so, he was

punished as above. In Ming and Ch’ing times he was given eighty strokes.¥* A person who participated in a banquet or listened to music while his

parents were in prison for a capital office was also punishable.*°

An official, upon learning of the death of his father or mother, was required to retire from office and remain at home during the period of mourning. He was guilty if he attempted to avoid such retirement. The

punishment in the time of the Northern Wei was five years’ punish-

ment.%! In T’ang and Sung times he was dismissed and sentenced to one year in prison. In Yiian times he was given sixty-seven strokes and degraded two ranks if he evaded retirement altogether, fifty-seven strokes and dismissal if he delayed his retirement, or forty-seven strokes and the reduction of one rank if he resumed office before the expiration of the mourning period.*? In Ming and Ch’ing times an official who falsely claimed upon learning of the death of a parent that

388 Chi lei pien, 87-88.

%87 T'ang lit su-i, 3, 20-32; 10, 6a; Sung hsing-t’ung, 2, 18b; 10, 5b.

8 Loe. cit.

89 T'ang lit su-i, 3, 2a~3a; 10, 6a; Sung hsing-t’ung,

2, 18b; 10, 5b; Ming lit li,

12, 24a; Ch’ing lu li, 17, 54a; Staunton, op. cit., 189; Boulais, op. cit., 398.

%0 In T’ang and Sung law, the punishment was one and a half year’s imprisonment; if the guilty person held an official post he was dismissed (T'ang lit su-i, 3, 1b; 10, 6b; Sung hsing-t’ung, 2, 17a; 10, 5b). In Ming and Ch’ing law, one was given the same punishment as that meted out to a person who had left his parents alone and taken office, i. e., eighty strokes (Ming lit li, 12, 24a; Ch'ing li li, 17, 54a; Staunton, op. ci., 190; Boulais, op. cit., 398).

991 Wei shu, 108, 4b-5a.

2 T'ang lit su-i, 3, 2b-3a; 10, 6a; Sung hsing-t'ung, 2, 18b; 10, 5b.

398 Yitan shih, 102, 12b-13a.

go

FAMILY AND TSU

the deceased was a grandparent, uncle, sunt, or cousin in order to avoid retiring from office was given one hundred strokes and dismissed from

office without the possibility of reappointment. If he resumed office before the expiration of the mourning period he was given eighty strokes and dismissed.5* To beget a child, to take a concubine, or to live separately from one’s brothers

during the mourning

period for a parent, was legally con-

sidered unfilial. Punishment was provided for ordinary people; an official was dismissed from office.*5

4 Ming lit li, 12, 21b; Ch’ing lit li, 17, 4oa-b; Staunton, op. cit., 188-189; Boulais, op. cit., 306-397. %5 T'ang lit su-i, 3, 2b~3a; Sung hsing-t’ung, 2, 18b.

II. Marriage

1. Meaning of Marriage The

ceremony

of

“marriage

is a bond

of

affection

between

two

surnames. It serves the ancestral temple on the one hand and continues the family line on the other,” says the Hun-i (The meaning of marriage),

a chapter in the Li chi.1 From this ancient and most authoritative defi-

nition, it can be seen that it was the family that was the greatest concern, not the individual. Perpetuation of the family and ancestor worship were closely linked, and the latter seems to be the more decisive. It may be said that the family had to be maintained so that the ancestors could be sacrificed to, Ancestor worship was then the first and the last purpose of marriage. It is therefore not difficult to under-

stand why a bachelor or a married man without a son was considered unfilial. Says Mencius, “There are three unfilial acts, the most serious of which is to be without descendants.”? Without a descendant, the ancestors would become unworshipped ghosts. Many ancient peoples

believed that ghosts must have sacrifices.

2. Prohibitions

Endogamy Marriage

between

persons

of the

same

surname

was tabooed from

the time of the Chou dynasty (1027-256 B.C.)? almost up to the present. The surname indicated the line of origin,* and it was believed that persons with the same surname were related by blood. As such they were forbidden to have sexual relations. Thus a surname defined an exogamous group and marriage was described as a union between

two surnames.

It was said that the surnames of a man and a woman must be known.> It determines whether sexual relations are possible. The taboo against

1 Li chi chu-su, 61, 3a; cf. Legge, Texts of Confucianism, IV, 428; Couvreur, Li Ki, I, 41. 2 Méng-teii chu-su, 7B, 6b; Legge, Chinese Classics, 11, 189. 2 Li chi chu-su, 34, 4b; Legge, Texts of Confucianism, IV, 63; Couvreur, Li Ki, I, 781. «'Shuo wén chieh tei, 128, 1a; Tuan Vi-ts'ai Bb 3 #8, Shuo wén chieh tit chu St 3C WRF Hes 13: 2; Pai-hu t’ung, 8, 7b; Tjan, op. cit., IL, 579.

5 Tso chuan chu-su, 38, 13b; 41, 13a; Legge, Chinese Classics, V, pt. II, 541, 580; Couvreur, Tso Tchouan, II, 507; IIT, 34.

92

MARRIAGE,

marrying a woman with the same surname operated for concubines as well as for wives. Thus when a man bought a concubine whose surname could not be surely ascertained, divination was invoked.® Taboos of this kind were rooted in ethics’ and biology. The ancient people all believed that a marriage between persons of the same surname would harm their descendants: the offspring would be few,* and

they might even bring misfortune.® Later when people of the same surname might belong to different

isu, the taboo was still kept and enforced by law. In T’ang and Sung,

the punishment for breaking the taboo was imprisonment for two years. For members of the same és related by blood, the punishment was more severe. For marriage between members of the same fs within five degrees of mourning, the punishment was the same as that for illicit intercourse.1° In Ming and Ch’ing times the punishment for marriage between persons with the same surname was sixty strokes, the marriage itself being annulled."! The severity of the punishment for marrying a person of the same ‘sz depended upon whether or not they were mourning

relatives. Marriage with a non-mourning relative was punished by one

hundred

strokes; with one within

the mourning

system,

from

years imprisonment to strangling or beheading, depending upon

degree of relationship.!?

three

the

Actually, however, the legal prohibitions might be ignored. Early in

the Ch’un-ch’in period, the Duke of Lu took as wife a woman from Wu

who had the same surname.!* The Marquis of Chin had four concubines. whose surname was Chi as was his own.! Wang Mang’s 3§(33 B.C.— 23 A.D.) wife was also a Wang.!® More violations occured in later

periods. In Hsing-an hui-lan, a compilation of Ch’ing criminal cases,

© Li chi chu-su, 2, 8a; 51, 14a; Legge, Texts of Confucianism, 111, 78; IV, 297-298; Couvreur, Li Ki, 1, 31; I, 423. ? Pai-hu t’ung, 8, 7b; 9, 12b; Tjan, op. cit., I, 255; II, $79. * Kuo yit, 10, 6b; Tso chuan chu-su, 15, 6a; 41, 13a; Legge, Chinese Classics,V, pt. 1, 187; pt. 2, 580; Couvreur, Tso Tchouan, I, 345® Kuo yii, 10, rb. Tso chuan chu-su, 41, 3a; Legge, Chinese Classics,V, pt. 2, 580; Couvreur, Tso Tchouan, III, 34. » T'ang lit su-i, 14, 1a; Sung hsing-t'ung, 14, 1a. 4 Ming lit li, 6, 16a; Ch’ing lili, 10, 26a; Staunton, op. cit., 114; Boulais, op. cit., 277-278. 18 Ming lit li, 6, 20a-b; Ch'ing li li, 10, 30a-b; Staunton, op. cit., 115-116; Boulais, op. cit.,

18 Lun yid chu-su, 7, 5b-6a; Legge, Chinese Classics, I, 69. * Tso chuan chu-su, 41, 13a; Legge, Chinese Classics, V, pt. 2, 530; Couvreur, Tso Tchouan, I11, 34. 8 Han shu, o9B, la.

PROHIBITIONS,

93

there are many examples of marriage between persons with the same surname. It is interesting to note the law’s policy of non-interference.1* Not a single case of marriage between persons of the same surname was brought into court for this reason. Those cases which were prose-

cuted came to light because husband and wife were involved in an investigation of another crime. Moreover, the judges never pursued the matter or annulled the marriage. This is made explicit in the following

case:

In 1789, T’ang Hua-ching stabbed and killed his wife, whose surname was T’ang, but who was of a different sv. The governor of Hunan thought that a marriage between the same surnames was legally null, and he therefore did not recognize the husband-wife relationship, and said the case should be judged as an ordinary one. This decision was reversed by the Ministry of Justice, and the man was sentenced in accordance with the law on beating a wife to death. The statement reads:

The law which annuls a marriage between the same surnames is based on

the Ji which prohibits the taking of a person of the same surname as wife. But since ignorant people are unaware of this prohibition, it often happens

that in the isolated countryside, women of the same surname but of different ésw are taken as wives. Although the regulations set up in the law and li

should not be disregarded simply because they are frequently violated on account of ignorance, it is still worse to disregard the husband-wife relation-

ship because of a slight violation of the marriage law. Those unlawful

marriages which are not serious enough to call for the death penalty should,

of course, be annulled according to law. But when a relative is injured and

the crime is to be punished by dismemberment, beheading, or strangling,

then the criminal should be sentenced according to the article relating to his

status as previously established. If a marriage between the same surnames is

annulled—and such cases are always treated as ordinary cases regardless of

the degree of the crime—then suppose that such an illegal marriage was entered into many years ago, that children have been born, and that the

relations of husband and wife, of parents-in-law and daughter-in-law, or parents and children have been settled for a long time, and the wife murders her husband or his parents, she will then be convicted under the law of

ordinary murder, adhering to the letter of the law which says that such a marriage should be void. It seems that this is not the way to settle status and

maintain morality.7 This was

indicates

not

that marriage

uncommon,

and

that

between persons of the same surname at the

same

time

the

distance

be-

46 Shén Chia-pén j4; 9g AL (1840-1913), who asked to abolish the law prohibiting

marriage between persons of the same name, also pointed out in his memorial that it had seldom been enforced in the Ch'ing dynasty (Shén Chia-pén, Chi-i

wén-ts'un 5 $8 3 Hf, 1, 27b-Sa).

1? Cii'ing lit li, 10, 26a-27a; 29a-b; Hsing-an hui-lan, 40, 4b-5a; Boulais, op. cit., 281-282.

94

MARRIAGE

tween the law and the society and the attempt of the law to adjust

to society can be seen. When a murder was committed the law paid more attention to the problem of status and relationship between the victim and the murderer than to the problem of the common-surname marriage.

The formation of the following regulation under Ming which was kept in Ch’ing law illustrates the point : “When male or female relatives who are of different seniority offend each other, or in cases where a marriage should be annulled, all shall be convicted according to their relative statuses already established and according to the provisions of the law. Irrelevant discussion for the purpose of increasing or reducing the punishment is prohibited. Where doubts arise or where the application of the law involves too great severity, or where the statuses [of the offender and his victim] are not very important, the official in charge of the case may consider the situation, make suggestions, and report the case.’”!8 Later, in 1811, another regulation was formulated to deal

with marriage between persons of the same surname. It stated that if an offence occurred involving the wife and her husband or the wife and his relatives, the case was to be judged according to the degree of

mourning in which they stood toward each other, even if the marriage was legally void. This regulation clearly indicates the emphasis of the law. Although

it prohibited a marriage of common surname, it did recognize the rela-

tionship involved in marriage of this kind. A commentary in the Ch’ing

code, reads, ‘It is the same ¢sw which is important among the same surnames. If people do not belong to the same ésw, the punishment ought to be judged in accordance with the crime. It is not necessary to adhere to the letter of the law.” Finally this law which was not much enforced was removed from the tevised code of 1910, Ch’ing hsien-hsing hsing-lii.

Relatives of different surnames Certain relatives, even though their surnames differed were forbidden

to marry, either because they were of different generations or because their relationship fell within the mourning system. Thus marriages between a maternal uncle and his niece or between a maternal aunt and her nephew were not permitted and such unions when they oc-

8 Ming lit li, 6, rob-20a; Ching li li, 10, 29a-b; Hsiteh Viin-shéng §¥ Jo, Ft, Tu Fits'un + HEPIAERE, 11, 210; Wu t'an MR Hf, Ta-Ch’ing la li t'ung-h’a0 3 AF Bil 3h % 10, 2a. ™ Ch’ing lit li, 10, 58b-50a. ® Ibid., 10, 26a.

PROHIBITIONS

95

curred were considered as illicit intercourse and forthwith annulled. Besides, a man was not permitted to marry a cousin of his mother or father, either parallel or cross, nor his mother’s aunt, nor his paternal uncle’s daughter’s daughter, nor his son-in-law’s sister, nor his daughter-in-law’s sister. If he did, he would receive one hundred strokes and the marriage would be annulled.?* In T’ang times, the marriage between cross-cousins or parallel cousins on the maternal side was permitted.2? Sung law followed this

pattern, but in practice judicial cases were not always in agreement with

this article. Many marriages of this kind were annulled by the officials.2* A law forbidding the marriage of cross or parallel cousins was first promulgated in Ming times and reasserted in Ch’ing times; both partners were given eighty strokes and their marriage annulled.** Yet such marriages were very common. In the Sung dynasty despite the risk of annulment, cross-cousin marriages and marriages between thechildren of sisters seem to have occurred rather frequently. The daughter of Su

Hsiin @§ jf) (1009-1066) married her maternal uncle, Ch’éng Chiin’s

¥2 BF (1001-1082) son.

Lu Yu's B€ iff (1125-1209) wife was his

maternal uncle’s daughter.* The Su girl wrote in a poem: “Hometown

people like to marry amother’s relatives.” Yiian Ts’ai # SR (12th century) also said, ‘‘People now a days like to marry relatives in order

2 T'ang lid su-i, 14, 2a; Sung hsing-t'ung, 14, 1ob; Ming lu li, 6, 16b-17a; Ch'ing lit li, 10, 28a, cf. Staunton, of. cit., 115; Boulais, op. cit., 280-281. 22 According to T’ang law, two groups of relatives of different surnames were prohibited from marrying: 1) Those mourning relatives who were not of the same generation; 2) Those who were not mourning relatives, but were of different generations. The various relatives who were in these two groups were enumerated by law. Obviously those relatives who belonged to the same generation, regardJess of whether mourning was worn for them or not, were allowed to contract marriage. It was clearly stated in the Shu-i, the Commentary, that “those outside relatives who wore mourning for each other but were not in the senior-

junior relationship were not prohibited from marrying” (T’ang la su-i, 14, 2a). This definitely refers to father’s sister's children, mother’s brother's children, and mother’s sister's children.

23 The Sung law and its commentary were the same as the T’ang law. However,

many

officials understood

the law to mean

that marriage

of cross-cousins

parallel cousins on the maternal side was unlawful (see Hung Mai JE

chai hsit-pi 2 3 #4 Ye, 8, 1xb-r2a).

or

3, Jung-

% Ming lili, 6, 17a; Ch’ing li li, 10, 28a~b; cf. Staunton, op. cif., 115; Boulais,

op. cit., 281. The earliest known

edict which prohibited the marriage between

cross-cousins or parallel cousins on the maternal side was introduced by Emperor Wen of Western Wei in 543 (Li Yen-shou 4: Hi #§, Pei shih Jt se, 5, 15b). However, because the dynasty was short in duration and controlled only a limited territory, its significance is negligible. 25 Lu Hsin-yiian B& sty ff, Sung shih chi-shih pu-i 32 BE 4B AE AY SEL 16, 13b-142. 26 Chou Mi Ji] #, Ch's- tung yeh-yi 9G Yi BF HE, 1, 18a.

96

MARRIAGE

to show that they do not forget each other. This is the best of the

custom.” Furthermore, cases of marriage between a man and his father’s

sister's daughter, between a man and his mother’s brother’s daughter, and marriage between the children of a mother’s sisters were all mentioned in Yiian’s book, Shih fan.27 It seems that the taboo against marrying a girl to her maternal uncle’s son, which is now forbidden in certain areas, did not exist in Sung times. Although a special law was formulated to prohibit marriage between cross-cousins or parellel cousins on the maternal side in Ming and Ch’ing, a memorial of Chu Shan 4 3 (1368-1385) testifies that such marriages were quite common among the people of his day, and many such marriages were annulled by the local authorities when the couple’s family was accused by enemies.** For this reason Chu Shan proposed that the restrictions be abolished. His suggestion was adopted by the government in 1385,° but the old article was retained in the code, and no statute, /i, was formulated on this point.™ In fact, none was formulated until the Ch’ing dynasty. It was then concretely stated that “those people who marry the children of their father’s sisters, mother’s brothers, and mother’s sisters are left to then own decisions.’’*! The article dealing with cross or parallel cousin marriages was actually ignored after 1385.

Marriage with the Wife or Concubine of a Kinsman Marriage was forbidden between a man and his kinsman’s wife or con-

cubine even though she was a widow. She could remarry, but she could

37 Yiian Ts'ai, Ywan-shih shih fan $e YR ik GB, 1, 26d. 3 Ming shih, 137, 3b. » Loc. cit. » Hsiieh Viin-shéng, Tw li ts'un i, 10, 2ta-b. Ch’én Ku-yiian fiji Rj ME said inhis Chung-kuo hun-yin shih vf [Bq ®§ WA sf (The history of Chinese marriage) that the regulation which allowed persons to marry the children of their father’s sisters, mother’s brothers, and mother’s sisters, which appeared in the Ch’ing code, already existed in the Wén-hsing t'iao-li ff Fpl (€ Gi] of Ming (p. 135). This was not in accordance with the fact. The Ch’ing n to which he referred actually consisted of two parts. The first part regulated that when male or female relatives of different seniority offended each other or when they were annulling a marriage, they should be convicted according to their relative statuses already established; this part was taken from the Ming li (see above, note 17). However, Mr. Ch’én overlooked the fact that the second part which dealt with the marriage of cross-cousins and parallel cousins on the maternal side was not found in the Ming li (Ming li li, 6, 1b-20a; Ming hui-tien 163, 4a-b), and as a matter of fact this /i was not formulated until 1730 in the Ch’ing dynasty (see Tw li ts'un i, 10, 21a-b; Ch'ing li li t'ung-K’ao, 10, 2b; Ta-Ch'ing lit li an-yit fe #5 44 | He FH, 30, 14b-150). 7 31 Ch’ing lit li, 10, 29b; Boulais, op. cit., 281.

PROHIBITIONS

97

not marry a member of her deceased husband's family. If such a marriage was concluded, it was annulled by the authorities. The offenders were punished according to the degree of relationship between the deceased and the present husband. The punishment in T’ang, Sung, Ming and Ch’ing times was one hundred strokes for marrying the widow of a kinsman beyond the mourning system; for marrying a widow of a kinsman in the fourth degree, one year’s imprisonment. Marrying the widow of a kinsman in the third, second, or first degree was considered adultery. Marrying the widow of a nephew or a great uncle, or a father’s paternal first cousin was punished by strangling; marrying the widow of a father’s brother’s son, or a grandfather’s brother's grandson, or a brother’s son, or a brother’s grandson was punished by three years’ imprisonment. In Ming and Ch’ing times the punishment for marrying a paternal uncle’s widow was beheading, for marrying a brother’s widow, strangling. The punishment was reduced two degrees if a man married the concubine of any of these relatives, but immediate beheading was the penalty for taking a grandfather’s or father’s concubine. It should be noted that the taboo on marrying the widow of a kinsman applied only to relatives within one’s own ésw, with the exception of marriage to the widow of a maternal uncle or of a sister’s son. Punishment during Ming and Ch’ing was the same as that for marrying the widow of a kinsman in the fourth degree.** It was, however, quite common to marry the widow of a brother or cousin, and the story of Hsiang $ who planned to take Shun’s wives upon the latter’s death is of interest in this respect.*4 Shu-shu #X if actually made his elder brother’s widow his wife.** Mongols had the custom of taking the elder brother’s widow.** Although Chinese were

32 T'ang lit su-i, 14, 2b; Sung hsing-t'ung, 14, 2b; Ming lili, 6, 20a-b; Ch'ing lit li, 10, 30a-b; Staunton, op. cit., 115-116; Boulais, op. cit., 278. %3 Ming tii li, 6, 20a; Ch’ing lit li, 10, 30a, cf. Staunton, op. cit., 115; Boulais, op. cit., 278. 34 Méng-tav chu-su, 9A, 3a; Legge, Chinese Classics, I, 223. % Kung-yang chu-su, 24, 1b. 9 Asa rule, a man was entitled to the privilege of marrying the widow of his elder brother unless there was a big difference in age between the man and woman, or the widow preferred not to remarry (Ywan tien-chang, 18, 358-378, 4ob-42a). However, it was unlawful for a man to marry the widow of his younger brother. The punishment for the violation was 107 strokes for the man and 97 strokes for the woman; and the marriage was annulled. The senior who arranged such a marriage was given 57 strokes and the go-between 37 strokes (Yiian shih, 103, 23a. For actual cases see Yian tien-chang, 18, 40a-b; hsii-chi #@ SE, 522-53).

98

MARRIAGE

forbidden to do the same, marriages of this kind occurred frequently,57 particularly among the commoners and the poor families, as can be seen from the various cases. Economic factors played an important part; and Yiian Mei $& # (1716-1797) quotes an offender's statement to the effect that “it is a custom in the country in order to keep people from remaining bachelors because of poverty.’** Such marriages were usually arranged by the parents or other seniors, entered into with the consent of the local constable,*° and celebrated in a ceremony before numbers of guests.‘! These facts were noted by two Ming officials, Lit K’un and Chéng Tuan ff $i (17th century), who called upon the people to dissolve such marriages. Chéng’s recommendation that the officials explain the law to the people and that execution be stayed if

the marriage was dissolved* suggests that such marriages were far from

uncommon.

Except when

especially reported such marriages went unnoticed.

The following case illustrates this tendency:

In 1798, sixty-year-old Shih Ling-k’o of Wan-p'ing county married his younger brother's widow, Li. The marriage was sanctioned by Li’s younger brother and acknowledged by the local constable. In 1812 Li was strangled by Shih’s son and the latter’s wife. Her death was reported to the local authority, but since her marriage had not been legally recognized, the official who was dealing with the crime held that Li was not the stepmother of Shih’s son. Consequently, Shih’s son and his wife were held guilty of having murdered their aunt and were sentenced accordingly. The emperor issued an edict supporting this decision. Shih himself was sentenced to be executed for having entered into an illegal marriage. The emperor, however, took into consideration the circumstances surrounding his marriage—the approval of Li’s younger brother, the acknowledgement of the bond by the local constable, the fact that the partners had not had an illicit intercourse before marriage—and held that Shih was a man of the countryside, a person ignorant of the law. He should not be punished the same as one who had illicit intercourse with a brother’s wife. His punishment was therefore reduced to “detention in prison for strangling’ and the case became a precedent.#

® Yuan shih, 103, 23a-b; Yuan tien-chang, 18, 30b; T’ung-chih t’iao-ko 3 #3) {86 #% 3, 20b. ® Ch'ing-ch'ao shih ta ming-li p'an-tu 3 63 4-4 EP AE. ® See Lii K'un [3 hip, Shik chéng lu ‘BE fy Bh, 3, 29a; Chéng Tuan $f Yi, Chéng hsiteh Iu i 48 BR, 5, 20a-b. Among the six cases of brothers’ widows recorded in the Hsing-an hui-lan only one marriage was arranged by the man himself; in this case the father had left home. In the other five cases the marriages were either arranged by the father or by the elder brother (8, ra-10a). © Ch’ing lii li, 10, 32a; Boulais, op. cit., 280. “1 Shih chéng lu, 3, 20b; Chéng hsiteh lie, 5, 208. "2 Shih chéng lu 3, 29a-b; Chéng hsiteh Iu 5, 29a-b. #8 Ching lit li, 10, 30b-32b.

THE ROLE OF SENIORS IN ARRANGING A MARRIAGE

99

Two points are underlined by this case: first, since nothing was done about Shih’s marriage to his younger brother’s widow until fourteen years after, the marriage was obviously recognized by the community,

and had there been no murder, the marriage would never have been

investigated by the local authorities. Neither Li’s brother nor the local constable attempted to stop the marriage at the outset. The brother was a peasant, but the constable was expected to put a stop to illegal activities in his community and to report them to the local government. His approval of the marriage is significant. Obviously, though illegal it was recognized by society. Second, the emperor, by reducing Shih’s punishment, expressed the government's willingness to compromise where such a wide-spread custom was at issue. In 1814, the law was revised as follows: “[Participants in] illegal marriages who do not deserve the death penalty will be sentenced according to the law. In cases of marriage to the widow of an elder or younger brother, for which the penalty is death, if the man and woman entered into a secret union and had illicit intercourse before marriage, they should be strangled immediately as provided by the law. If, howover, they are country people who are ignorant of the legal prohibitions and if their marriage was acknowledged by their relatives and by the local constable, then both man and woman should be sentenced to ‘detention in prison for strangling’ and included in the list of those to be sentenced at the autumn trials.’”44

3. The Role of Seniors in Arranging a Marriage Since the main aim of the marriage was to produce offspring to carry on ancestor worship, marriage itself became more a family than a personal matter. In no sense was a marriage concerned with the personal wishes of the man and woman involved; and since marriage was a union

of two families, its conclusion depended

on agreement between the

heads of the two families concerned. Seniors in the direct line, and especially males, had absolute authority over an offspring’s marriage. This was recognized by both law** and society. Under the law of T’ang, Sung, Ming, and Ch’ing, a man, even though he was adult, held an official position, ran a business far from home, did not have the right to

“4 Ibid., 10, 32a-b; Boulais, op. cit., 280. «8 Ta-Ming ling, 5a; Ch'ing li li, 10, 7a-b, Boulais, op. cit., 261. The parents’ authority over children’s marriages was still recognized in the early years of the Republic. This was clearly stated in the legal precedents issued by the Supreme Court; see Kuo Wei $f #j, Ta-li-yuan p'an-chieh-li ch’tan-shu > 3B Be “Pl Ze HE, pp. 212 (1913: FL, WF Lb, 2); 225 (1916: be, 1258). Be

00

MARRIAGE

marry without his parents’ consent. If he became engaged while away from home, and his parents or some other authorized senior at a later

date betrothed him to a girl in his local community, his self-initiated

engagement,

provided he was

still unmarried,

became

void. Punish-

ment for refusing to give up a self-initiated engagement was eighty to one hundred strokes, and only if the offender had married before his parents betrothed him to another girl was his union recognized.** Among those who could arrange a marriage, seniors in the direct line had the highest authority. The degrees of authority and responsibility can be determined from the punishment meted out to those who entered into illegal marriages. If an illegal marriage was contracted for by a senior in the direct line, he alone was punished, while the parties thereto

were not held responsible in any way.‘7 This is entirely logical since full

authority for the marriage rested with the parents and grandparents, and the children had to accept their decision. Next in authority were the paternal aunts and uncles, elder brothers and sisters. They too could arrange a marriage for a nephew or younger brother when these latter were away from home, but their authority was less than the authority of the parents or grandparents; and in most cases, they discussed the proposed marriage with the junior involved. Their respon-

sibility, in case the marriage was illegal, was therefore less than that of a parent. Under T’ang and Sung law, they were punished as prin-

cipals, while the parties themselves were punished as accessories.** Not until Ming and Ch’ing were they held fully responsible for such illegal marriages, and then maternal grandparents were also included.* Punishment was the same for all. Seniors from the second degree of relationship on down formed the next category. The law said, ‘‘A marriage should be authorized by grandparents or parents. If they are all dead, the other seniors are in authority.” Shén Chih-ch’i # 2 #f (17th and 18th centuries) commented, “Of the other seniors, the uncle, aunt, older brother or sister, or maternal grandparents will come first. If they are all dead another senior will take their place.’’! Such relatives, however, were quite remote and actually did not have authority to contract a marriage. In

most cases they sought and received the consent of the junior concerned. * T’ang lid su-i, 14, 5a; Sung hsing-t'ung, 14, 4b-5a; Ming li li, 6, 2a; Ching liz li, 10, 4b-5a; Staunton, op. cit., 109-110; Boulais,, op. cit., 261. 7 T'ang lit su-i 14, 9b; Sung hsing-t’ung 14, 9a; Ming lit li, 6, 43; Ch’ing liili, 10,

55a;

Staunton, op. cit., 122; Boulais, op. cit., 297.

* Tang li su-i, 14, 10a; Sung hsing-t’ung, 14, 9a.

® Ming li li, 6, 43a; Ch'ing li li, 10, 55a; Staunton, op. cit., 122; Boulais, op. cit., 297. © Ta-Ming ling, 52; Ch’ing liz li, 10, 7a-b. % Ch’ing lie chi-chu, 6, 4b.

M-03549

THE ROLE OF SENIORS IN ARRANGING A MARRIAGE

ror

Thus the responsibility for an illegal marriage rested with the individual who made the arrangement. It was regulated in T’ang, Sung, Ming, and Ch’ing law that when the contract was made by the senior, the senior should be punished as a principal and the parties to the marriage as accessories. If on the contrary the unlawful marriage originated with these parties themselves, they were to be punished as principals while the seniors who contracted the marriage for them were to be punished as accessories only.5* The parent’s authority was made explicit in many features of the marriage ceremony. The go-between always represented the father or some other senior relative of the bridegroom-to-be, and he spoke the name of the father in each of the first five rites —initiating the proposal, asking the name of the girl, reporting the results of the divination, presenting the betrothal gift, and asking for the wedding date. Moreover, it was the girl’s father who came out to meet the go-between.** In the last and sixth rite—welcoming the bride—the bridegroom only moved to do so at the order of his father and after have been instructed by him.* Since one of the main purposes of marriage was the continuity of ancestor worship, the ancestors had a significant role in the marriage proceedings. All rites were held in the ancestral temple.** Usually before the first of the six rites, na-ts’ai, #4 the family head reported at the ancestral shrine that his son or daughter was about to marry into a particular family.®* After the bride’s name was spoken by her father,

the will of the ancestors was ascertained by divination before the shrine

in the groom’s ancestral temple; if the results were propitious, the betrothal gift was sent to the girl’s family.5? A report was also made before the shrine on the wedding day.*

82 T'ang lid su-i, 14, 10a; Sung hsing-t’ung, 14, 9a; Ming li li, 6, 43a-b; Ching lit

li, 10, 55a-b;

Staunton, of. cit., 122; Boulais, op. cit., 297.

897 li chu-su, 6, 5b-6b; T’ung tien, 129: 673-674; Chéng Chii-chung §f jg 4 and others, Chéng-ho wu-li hsin-i Py Fil i. #8 Ft (WE 178, 2b-Ob; 179, 2a-3a; Shu i, 3, 2b, 3b-4a; Sung shih, 115, 12b-13b; Ming shih, 55, 13b-14a. 7 Ii chu-su, 6, 6b; Hsin-tzit, 19, 4a-b; Pai-hu t’ung, 9, 4a-b; T’ung tien, 129: 674; Chéng-ho wu-li, 178, 7a-b; 179, 3b; Sung shih, 115, 13b, 16b; Shu i, 3, 6a; Ming shih, 55, 14a; Ta-Ch’ing t'ung li, 26, 3b, 7a, 9a; Tjan, op. cit., I, 249-250. 179, 1bff. 33 li chu-su, 6, 2a; Li chi chu-su, 61, 3a; Chéng-ho ww-li, 178, 2aff.; 56 Shu i, 3, 2a; T’ung chih V’iao-ko, 3, 12b-13a; Ming shih, 55, 13b; Ch'ing-t'ung li 26, rb, 6b, 8b. 37 [li chu-su, 4, 4b; Sung shih, 115, 8b. 38 Hsin T’ang shu, 18, 10a; Sung shih, 115, 13b-14a, 16a; Chéng-ho wicli, 178, 7a; 179, 3a-4b; T’ung-chih t’iao-ko, 3, 13b—14a; Ming shih, 55, 14b; Ch’ing t'ung li, 26, 3b-4a, 7b, 92.

102

MARRIAGE

The wedding ceremony established the husband-wife relationship.

Yet, not until the wife had visited her husband’s parents and worshipped

her husband’s ancestors was the marriage considered complete. Not until then did she acquire the status of daughter-in-law. From the standpoint of the family and the ancestors it was more important to be a daughter-in-law than a wife. Thus the visit to the husband's parents, which was made the morning after the wedding, was as essential as the wedding ceremony itself. The visit to the ancestral temple at which the wife was presented to her husband's ancestors was equally so. Not until this was done was the union of the husband and wife considered a marriage. Its importance can be seen from the fact that Confucius recommended that any woman who had not acquired the status of daughter-in-law in this way should not have her coffin placed in the ancestral temple nor her tablet placed with that of her mother-in-law, nor should her husband carry the staff, wear straw shoes, or have a special place for wailing; and finally her body should be taken back to her own family and buried among her kindred,” procedures completely contrary to those accorded an “‘established”’ daughter-in-law. 4. The Position of the Wife

It was said that husband and wife were equal. The character ch’i, wife, was explained as meaning “‘one on the same level as ego,” in the Shuo wén.®! And the Shih ming also states that husband and wife are matched.® Furthermore, the ancient people held that a husband and wife respected each other as guests. Confucius, in talking to the Duke of Ai, emphasized respect for the wife, pointing to the rite of welcoming

the bride as a concrete illustration of this principle. However, he also

stated clearly that the wife was respected primarily because she was in charge of the sacrifices for her husband’s parents.® Thus it was her functions in ancestor worship and in continuing the family line that brought respect. But man’s superiority over woman was well established in the basic Chinese philosophy of ancient times and it was this philosophy that underlay the relations between men and women in traditional Chinese society. Under the principle of the “three dependencies’’®> a woman

% Li chi chu-su, 61, 4a, 5a. © Ibid., 18, 10a, Shuo wén chieh tzit, 12B, 1a; cf. Pai-hu t’ung, 9, 15b-16a; Tjan, op. cit., I, 261. * Liu Hsi $j BL, Shih ming FR 4%, 3, 23b. ® Li chi chu-su, 50, 5b-6a. ** Hou-Han shu, 84, 7b, 9a. ** The three dependencies, San tsung = $f, are 1) Dependency upon the father when a girl is young; 2) Dependency upon the husband after marriage; and

THE POSITION OF THE WIFE

103

could never act autonomously. On her wedding day her parents gave

her their final instructions, saying, “Be respectful and cautious, do not disobey your husband.’’® The husband’s authority replaced the father’s, and “the husband was a leader to his wife’ in much the same way as the ruler was a leader to his minister, the father to his son. In the family the division of labor between the sexes also rested on man’s recognized superiority to woman. It had long been orthodox for man to rule outside the household, woman within it. Care of the children, cooking, washing, sewing, cleaning, and directing the maid servants were all inside tasks—in their final analysis services for the husband. Such expressions, “to stand by with towels and combs (shih chin

chieh f¥ tt fi), and “to hold a broom”

‘were commonly

used

(chih chi chou #4 4€ #)

by the wife to underline her humble position

vis-a-vis her husband. The story of Huai-ying $% fA for prince Ch’ung-érh iff H reveals that even in a humble labors of this kind were performed by the domestics. The character fu %§, “woman”, is a combination

who held a basin princely family, wife and not by

of nii, “female” and chou, ““broom’’.® It has the meaning “‘to serve” and “‘to submit”’.?

Within the household, all the women and children who lived in the

inner quarters were under the control of the mistress. Included the younger sisters-in-law, concubines, unmarried sisters of the band, daughters, daughters-in-law, nieces, servants and little Nevertheless, the position of the mistress was also a submissive

were husboys. one.

Whenever her ideas or wishes conflicted with her husband’s she had to bow to his authority.

Under the principle of no two authorities in one family,7! woman was eliminated from being the head of a family. The wife was to submit to the husband. Even after his death, her son, or some other male member

3) Dependency upon the son after the death of husband (Li chi chu-su, 26, 11a; Ta-Tai li chi $& @B #2, 13, 5b; Pai-hu t’ung, 9, 16a; K’ung-toit chia-yi, 6, 3b; Tjan, op. cit., I, 262). % Méng-tzit chu-su, 6A, 2b; Legge, Chinese Classics, II, 141. A similar statement is found in the I i. However, it merely says “Day and night do not disobey the commands,” and does not specify whose commands. According to Chéng’s commentary, it means the commands of her parents-in-law (I li chu-su, 6, 62; Steele, op. cit., I, 39. Cf. Pai-hu t’ung, 9, 3b; Tjan, op. cit., 1, 248). 47 Pai-hu t’ung, 7, 15a; Tjan, op. cit., 11, 559. © Tso chuan chu-su, 15, 7a; Legge, Chinese Classics, V, Pt. 1, 187; Couvreur, Tso Tchouan. © Shuo wén chieh tz, 12B, 1b. % Shuo wén chieh tzii, 12B, tb; Pai-hu t'ung 7, 16a; 9, 16a; Shih ming, 3, 23b: Tjan, op. cit. 1, 262; II, 561-562. 1 Hsiin-tzi, 9, 14a; Li chi chu-su, 51, Ob; K’ung-tzit chia-yi, 6, 12a-b.

104

MARRIAGE

of her husband’s family, succeeded to his position; and although a mother or grandmother was senior to her son or grandson, she could never become the family head. An ancient proverb says, “If a hen rules at morning, the family comes to an end.””??

A wife’s authority was controlled and limited by her husband. To be sure, she had the right to discipline her children and arrange for their marriages, but she could not go counter to her husband’s will. And while she had authority to control the household and the household property, this authority also derived from her husband. Any activity over and above routine matters had to be approved by him. This was clearly stated by the Supreme Court as late as 1916.78 Undoubtedly, it reflected a traditional viewpoint. A wife owned no property. Usually, she received a limited sum of money for household expenses and this she spent as she saw fit but she had no power to dispose over the family property. Most important, this family property descended directly to her son or adopted heir after her husband's death. If her son was not yet grown, she could manage the property in his behalf until he reached maturity. In

Ch’ing times a widow who

remarried was prohibited from taking

either her former husband’s property or even her dowry with her. Both remained with the latter's family.” As late as 1918 the Supreme Court maintained that the wife’s own property was subject to the

husband's authority.75

What further light does the law shed on the position of women? In Ming and Ch’ing law a woman who was found guilty of crime, except where adultery or the death penalty was involved, was placed in the

custody of her husband,” and not imprisoned.

It has been shown that within a family, seniors and juniors are not treated as equals under the law. As far as husband and wife are concerned, the former is regarded as the senior, the latter as the junior. In 76 A.D., an edict was issued which held that a son who concealed his parents’ crime, or a wife who concealed her husband’s, or a grandson who concealed his grandparents’, should not be questioned; but parents who concealed a child’s crime, a husband who concealed a wife's, or grandparents who concealed a grandchild’s should be reported to the emperor if the death penalty was involved.”7 Thus a wife was classed with the children and grandchildren, a husband with parents and grandparents.

7 Shang shu chu-su, 11, 9b. % Ta-li-yiian p'an-li, p. 228 (1916: |, 364). 7 Ch’ing lit li, 8, 20a. % Ta-li-yuan p'an-li, p. 32 (1013: |, 35)%© Ming lit li, 28, 50a; Ch'ing lu li, 37, 114; Staunton, op. cit., 459; Boulais, op. cit., 7 Han shu, 8, 10a-b.

THE POSITION OF THE WIFE

105

A wife who accused her husband was “offending against status and

right principles”, kan-ming jan-i -F % 42%,

and was accorded the

same punishment as a junior who accused a senior. In T’ang and Sung law, the sentence was two years’ imprisonment, the same as that for accusing a senior in the first degree—i.e. a paternal uncle or elder brother.?8 In Ming and Ch’ing punishment was more severe, the wife, like the child who accused his parent or grandparent, being imprisoned for three years and given one hundred strokes. In cases of false accusation, the wife was strangled.7*No exception to this rule was admitted even when it was a question of adultery. But if a man accused his wife, it was not considered an “offence against status and right principles.” The case was handled as if a senior had accused a junior. In T’ang and Sung an accused wife was treated as a first-degree junior— ie., like a brother's child or a younger brother or sister. The status of husband and wife is clarified by a commentary in the T’ang and Sung codes which reads, ‘“Although a man’s wife is not his junior, as far as the [matrimonial] bond is concerned, she is in the position of a oneyear-mourning junior.’’*? The Ming and ch’ing codes did not explicitly classify a wife as a first

degree junior, but the punishment for falsely accusing a wife was ac-

tually the same as that for falsely accusing a one-year-mourning junior

(ie., three degrees less than the crime with which the accused junior was charged).®? The difference in status between husband and wife can be demonstrated even more clearly in cases that involved assault and death. The punishment then was increased or reduced as in cases involving seniors and juniors. Early in the Sung dynasty in the fifth century, those inflicting ‘‘ordinary” injuries were given four years’ punish-

ment; but if a wife injured her husband, the sentence was increased

to five years.** In T’ang and Sung, the punishment for beating one’s husband was one year’s imprisonment; and if the injury was serious, it was increased three degrees. In all cases the wife had to be accused personally by her husband.“

7 T'ang lit su-i, 24, 1a; Sung hsing-t'ung, %® Ming lit li, 22, 30a; Ch’ing lit li, 30,

op. cit., 644.

1b. Staunton,

op. cit., 372;

Boulais,

Hsing-an hui-lan, 48, 65b-66b. , * Tang lit su-i, 24, 3a; Sung hsing-t'ung, 24, 3a. 82 Ming lit li, 22, 31a; Ch'ing lit li, 30, 68a-b; Staunton, op. cit., 373; Boulais,

op. cit., 645.

: 3 Sung shu, 81, 10b. 8 Ina p'an 44 written by Pai (Po) Chii-i ( Jf §} (772-846) there is mention of a woman who had beaten her husband being accused by her neighbor; she was

106

MARRIAGE

In Ming and Ch’ing, the punishment for beating a husband was one hundred strokes regardless of whether he was injured or not, if he had accused her personally. If the beating resulted in a broken tooth, finger, toe, or rib, the punishment was increased three degrees; if permanent disability was caused, such as blindness or a broken limb, strangling was the punishment.** If the assault resulted in death, the wife was beheaded immediately in T’ang, Sung, Ming, and Ch’ing

times.

To kill with intent was punished by dismemberment in Ming and Ch’ing.8? Premeditated murder was considered as murder of a grandparent, parent, first-degree senior, maternal grandparent, or husband’s grandparents or parent. The punishment was beheading if the plan miscarried whether an injury had been inflicted or not; dismemberment, if the murder had been committed. A husband who beat his wife was punished less severely than an ordinary case of beating. Moreover a husband was never punished for

striking his wife if no injury resulted. Under T’ang and Sung law, the

husband’s punishment when an injury occurred was two degrees less than in ordinary cases.** Ming and Ch’ing law was even more lenient. A husband was not punished unless the blow had caused the breaking of a tooth, finger, toe or rib, and unless the accusation was made personally by the wife, under which circumstance, the punishment was two degrees less than in ordinary cases.” Undoubtedly, such leniency in no way discouraged wife-beating, but more than probably the law

sentenced to three years’ imprisonment by the magistrate and she raised the ‘objection on the ground that the case was not reported by her husband personally (Pai Chii-i, Pai-shih ch'ang-ch’ ing chi (3 KE {2 $446, 50, 21a). The writing of p’an, a statement of judgment, was part of the examination given by the li-pu 3, the Ministry of Civil Office, for candidates who had passed the regular examinations in order that they might qualify for official appointment. Various kinds of cases, either actual or hypothetical, were prepared for the candidates, and they were expected to write a p’an in accordance with their knowledge of the law and their interpretation thereof. See T’ung tien, 15: 84; Jih chih Iu, 16, 21b-22a; Jean Escarra, Le Droit chinois (Peking-Paris, 1936), p. 348. * Ming li li, 20, 29a; Ch’ing lit li, 28, 16a; Staunton, op. cit., 341-342; Boulais, op. cit., 608.

* T'ang li su-i, 22, 6b; Sung hsing-t’ung, 22, 6a; Ming lii li, 20, 20a; Ch’ing lili, 28, 16a; Staunton, op. cit., 342; Boulais, op. cit., 608. 8? Ming lit li 20, 29a; Ch’ing li li 28, 16a; Staunton, op. cit., 342; Boulais, op. cit., 608.

® Ming li li, 10, 5b; Ch’ing lit li, 26, 17 op. cit., 544.

Staunton, op. cit., 305-306; Boulais,

© T'ang li su-i, 22, 6a; Sung hsing-t'ung, 22, sb. ™ Ming lit li, 20, 29b; Ch’ing lit li, 28, 16a-b; Staunton, op. cit., 342; Boulais, ‘op. cit., 609.

THE POSITION OF THE WIFE

107

took the stand it did because actions of this kind were common and taken for granted in the society at large. Since the husband was the

“Jeader” of his wife, it was considered more tolerable for a husband to

beat his wife than vice-versa. It is also interesting to note that in Ming and Ch’ing law, once a wife beat her husband, when injury resulted or not, the husband might obtain a divorce by merely applying to the local authority. In the event

of serious injury (see above), the law not only authorized but required the parties to separate, the procedure being referred to as “breaking

the bond of matrimony”, I chtieh. On the other hand, if the wife was

beaten by her husband, she could only secure a divorce if serious injury resulted and then only with his consent.*! A commentary in the Ch’ing code reads, “Since a husband is the model for the wife, a wife should follow her husband. When a wife beats her husband, then the wife should be punished, and whether to divorce or not is left to the husband. When a husband beats his wife and occasions serious injury, although the husband is breaking off the bond of matrimonial relation,

the wife has no reason to break off from her husband. [Therefore] it

should be duly ascertained that both parties are desirous of a divorce before such permission is granted. In case the husband is

willing to divorce but the wife is not, or the wife is willing to divorce but the husband is not, no divorce will be granted.’

If a husband beat his wife to death he was held for homicide and the

death penalty invoked. Cases of this kind were treated as ordinary cases of homicide, and the punishment could not be reduced.

In T’ang and

Sung, beating a wife to death was punished by strangling, killing with a knife or killing with intent, by beheading. In Ming and Ch’ing, beating a wife to death was punished by strangling.”

If a husband killed a wife by accident, he was not considered guilty;

but if a wife killed her husband by accident, no mitigating circumstan-

ces were recognized. The law, as has been shown, was extremely strict on the matter of status if a child killed his parent. It was equally so when a wife killed her husband. Even if it was clear that the crime was accidental, she still was sentenced to be beheaded. The only further

*1 Ming lit li, 20, 29a-b; Ch’ing lu li, 28, 16a-b; Staunton, of. cit., 341-342; Boulais, op. cit., 608-609. °2 Ch’ing lié li, 28, 18a. % Tang lit su-i, 22, 6a; Sung hsing-t'ung, 22, 5b; Wén-hsien f’ung-k'ao, 170: 1473. °% Ming lit li, 20, 20b; Ch’ing lit li, 28, 16b; Staunton, op. cit., 342; Boulais, op. cit., 609. °% T'ang lit su-i, 22, 6a-7a; Sung hsing-t’ung, 22, 5b-5a; Ming lit li, 20, 29b; Ching Iz li, 28, 16b-17a, 18b; Staunton, op. cit., 343; Boulais, op. cit., 608-609.

°% Hsing-an hui-lan 40, 33a-46a.

108

MARRIAGE

action the local authorities could take was to add a notation to their report that the act was unintentional. Final decision in the matter rested with the sovereign, and the best the unfortunate woman could

expect was a reduction of her sentence from “immediate beheading”

to “detention in prison for beheading.” The following case serves to

illustrate this point.

Li Erh-p’an loved his wife, Wang, very much. One evening, while Erh-p'an was out, Wang went to bed because her knee pained her. About ten o'clock, her husband returned. He approached the bed in the dark and touched his wife. Half awake she kicked out, thinking that a stranger had entered the

room. She struck Erh-p’an in the belly. He then held her legs and demanded

intercourse. Again she stretched her legs and again she struck him in the belly. This time, he suffered great pain, stumbled, and died. Wang was sentenced to “immediate beheading”, but a notation was made on her report that her husband’s death had been accidental. Her sentence was then reduced to “detention in prison for beheading.” In many cases a husband's death was caused by his wife’s resistance to unreasonable beating. For instance:

Chung Liang-shan, having come home drunk, asked his wife for tea. Impatient because the water took so long to boil, he scolded and struck her with an iron weight, injuring her in the head. To hold him off, she picked up a wooden club. It touched his shoulder, causing pain. Liang-shan then took the club from his wife, grabbed her, and struck her. while he dragging her about, he fell. His wife ran off, but Ching again caught up with her, and struck her with his head. In the melee, he hit his head on the door frame, injuring himself. He died the following day. Shih Ch’ao-k’o’s wife beat her child. Shih scolded her and struck her fingers with his pipe. She argued with him, and he attempted to hit her with a pole, which she snatched from him. She ran away and Ch’ao-k’o ran after her. During their struggle for the pole, the wife became exhausted, relaxed her grip on the pole which then accidentally hit her husband’s skull and killed him.% Being illiterate, Chiang Ch’ang-ch’ing’s wife took the title deed to their property and put some powder on it to expose it to the sun, When Ch’angch’ing discovered this, he scolded her and struck her. She argued with him, thus angering him. He dragged her by her hair and hit the back of her head with a piece of firewood. Unable to endure the pain, the wife butted him with her head, injuring him on his breast. He died thirteen days later.1% Hsing Ché-jén asked his wife to reheat some wine. She replied that the fire was out. He thereupon threw the wine cup at her and hitting her in the temple. She ran away, but Hsing chased her with a stick, She also picked up

a stick, and while holding him off she accidentally injured him. He fell to the floor and died.

* Tbid., 40, 47a-b. m0 Tbid., 40, 44b-45a.

% Tbid., 40, 452~46a. ™? Ibid., 40, 43a-b.

® Ibid., 40, 46d.

THE POSITION OF THE WIFE

109

Fan Hsing-té ordered his wife to cook, She asked him to wait until she finished patching some old trousers. Fan scolded her and hit her on the neck with a bamboo cane. Hurt and weeping, she went to her room, scissors and trousers in hand. Fan followed her, attempting to beat her again. While resisting his assault, she stabbled him accidentally with the scissors. He died.

Jan Chang-yiian was at odds with his kinsmen, Jan Kéng, who had

flirted with his wife. The wife had reported the matter to her husband and Jan

Kéng

paid a sum

of money

to settle the matter.

Later,

Jan

Kéng

refused to continue renting land to Jan Chang-yiian. The latter then ordered

his wife to go to Jan Kéng’s house, and quarrel with him over the old affair, in the hope that this would cause Jan Kéng to permit them to be his tenants

again. His wife refused to go, saying the affair was closed and moreover it had been a matter of her face. The husband scolded and attempted to strike

her with a hoe. When she grabbed the hoe, he picked up a piece of firewood.

With this he hit her, injuring her arm. While holding him off with the hoe, she struck him in the cheek. He died.!

While Yen was cooking, her little boy fell and cried. Yang Ch’i, her husband, complained that she did not look after her child properly. She argued with him and he beat her with a piece of wood, injuring her arm. She wept and went to her room. He followed her, pushed her onto the bed, and choked her. Struggling for breath, and also anxious to protect her unborn child, she kicked out at him, striking him in the navel. He fell, injured his cheek, and died a few hours later. Yen was sentenced to “immediate beheading”, but because the injury was accidental, her sentence was reduced to “detention in prison for beheading.’ Causing a husband’s death by violent or dreadful threats was punished severely. In Ming law, a wife who was guilty of such an offence was to be

sentenced according to the article dealing with the beating of a husband

and causing permanent disability. The case was referred to the emperor for final disposition.1% In Ch’ing law a wife was to be sentenced to “immediate strangling” when she threatened her husband so violently

that he committed suicide. If he committed suicide merely because of a quarrel over some trifling matter, and there was no evidence of

threat on the wife’s part, the latter was sentenced to the same punishment as a child whose parent had committed suicide because he had disobeyed instructions —‘“‘detention in prison for strangling.”1*

On the other hand, just as a senior was causing the death of a junior by violent and was with the husband. In Ming and Ch’ing guilty if his wife committed suicide because

not held responsible for dreadful threats,” so it law, a husband was not he had scolded or beaten

683 Thid., 40, 42b-432102 Tbid., 40, 46a. 196 Ching lit li, 26, 149b-150a. 185 Ming lit li, 10, 37819? Ching lit chi-chu, 19, 3b.

1 Tbid., 40, 442.

110 her.

MARRIAGE Even if she was seriously injured by his blows, he was only

given eighty strokes.

Adultery, one of the seven reasons for divorcing a wife, was a serious

offence. According to Yiian, Ming and Ch’ing law, a husband could

seize the adulterer. The husband himself went unpunished if he killed both his wife and her paramour after having caught them in flagrante delicto.}° The husband was liable to punishment, however, if he only

killed his wife, whether immediately or at some later time. A woman who scolded or beat her husband’s parents was sentenced

to death. A special article in Ming and Ch’ing law was entitled: “Killing one’s culpable wife and concubines.” When a wife struck or scolded her husband’s parent, or grandparent, the husband was given one hundred strokes if he had killed her instead of accusing her before the law. However,

a wife who beat her husband to death could not use her

husband’s guilt in some matter as an excuse for her action. Even if a

husband was unfilial to his own parents, his wife could not use this as an excuse to beat him. If an injury resulted, she was punishable under the law.

Fan Jih-ch’ing brought home three peices of dried beancurd. When he went out for a drink, his father, who had been without food, ordered Fan’s wife to cook the beancurd for him. Fan Jih-ch’ing returned, drank some wine, and asked for the dried beancurd. His wife told him that his father had eaten it. Fan scolded her and started to beat her. Since he was inebriated, he fell and hit his forehead on the table. He got up and struck his wife on the shoulder with a stick. She ran off and he gave chase, still holding the stick. In her excitement she seized a wooden pestle and held him off. The pestle struck him in the forehead, and he fell down and died. The wife was sentenced to “immediate beheading” in accordance with the law for beating a husband to death. The emperor held that Fan was unfilial and that his wife’s resistance should not be classed as a violent offence. He therefore ordered her punishment reduced to “detention in prison for beheading.’ 5. Relations with members of the husband's family

Upon marriage, a woman joined her husband’s és, and in almost all instances, took up residence with her husband’s family. There she

MS Ming li li, 19, 26a; Ching lid li, 26, 128b; Staunton, op. cit., 315; Boulais, op.

Cit., 570.

9 Ci'ing lit li, 26, 128b; Staunton, op. cit., 315; Boulais, op. cit., 570. 49 Yiian shih, 104, 11a-b; Ming li li, 19, 8b; Ching lit li 26, 29a; Staunton, op. cit., 307; Boulais, op. cit., 546. . ™1 Cii'ing lit li, 26, 30b-31a; Staunton, op. cit., 307; Boulais, op. cit., 547. 2 Ming lu li, 19, 26a; Ch'ing lu li, 26, 128a; Staunton, op. cit., 315; Boulais, op. cit., 569. 48 Hsing-an hui-lan, 40, 41a~.

RELATIONS WITH MEMBERS OF THE HUSBAND'S FAMILY

TIL

participated in various economic and religious activities. Thus she became a member of her husband's kin group, assuming the responsibilities that such relationship demanded. Under the law she shared in the collective responsibility of the group for serious crime of its membership." Nominally she maintained her relationships with members of her father’s ¢su, addressing them as before; but actually these relationships were considerably changed. This can be readily seen from the fact that after marriage the degree of mourning worn for parents and

other relatives was reduced, as was theirs for her. Within her husband’s family, a woman’s relation to her parents-inlaw was most important. It was said that a daughter-in-law should serve her parents-in-law as a daughter serves her parents." Her chief duty was to serve them respectfully and carefully. Failure to do so was

given as one of the seven conditions on which a wife could be divorced.”

Offences against parents-in-law were tolerated neither by the law nor the /i and they were punished severely. In T’ang and Sung times, scolding by a daughter-in-law called for three years’ imprisonment if

14 In Han and Wei times a woman, under the law of collective responsibility, shared the responsibility both of her father’s family and her husband’s family. Thus, a married woman might be executed together with her guilty father or brothers (San-kuo chih, Wei chik, 26, 192; Chin shu, 30, 7b). This, however, was considered unfair to the females by a statesman in the Chin dynasty (265-420), who proposed that a woman should not be held responsible for two families. A regulation was made in the third century to the effect that an unmarried woman was held responsible for the crime of her parents and brothers, but shared no responsibility for them after she had been married. She was then held responsible only for the members of her husband’s family (Chin shu, 33, 6a; 30, 7b-8a; see also 60, 2a). This pattern was followed in the later dynasties. It was clearly stated in the law of T’ang, Sung, Ming, and Ch’ing that the unmarried daughters and sisters of a man who was guilty of revolt were to be enslaved or banished; but this law was not applicable to a woman who was engaged or married. On the other hand, a rebel’s mother, wife, concubines, and son’s wives and concubines and a traitor’s mother and wife were punished in the manner as provided by the law (T'ang lit su-i, 17, 1a, 2a, 3b, 4b; Sung hsing-t'ung, 17, 1a-b, 3a, 4b; Ming li li, 18, 1a-b, 4b; Ch’ing lili, 23, 2a-b, 10a; Staunton, op. cit., 270, 272; Boulais, op. cit., 465-467). 48 Thus the mourning worn by a married woman for her parents was reduced from three years to one year only, and the mourning for all other members of the father’s su was also reduced one degree. On the other hand, the mourning worn by family members for a married female member was also one degree reduced. ‘A married woman resumed her original degree of mourning only when she had been divorced and returned to her father’s home (see Yan tien-chang, 30, 5b, 7a; Ming lia li, fu-t’u fi fB) 142, 16a; Ching lu li, 2, 37a, 46a; Boulais, op. cit., 18-22). 6 Li chi chu-su, 27, 2a; Legge, Texts of Confucianism, III, 450; Couvreur, Li Ki, I, 621. 417 Post, p. 121.

MARRIAGE

112

she was accused by her parents-in-law personally. Beating, if it lead

to injury, was punished by strangling and beheading; accidental wounding and killing by two and a half year’s and three years’ imprisonment respectively ;48 premeditated murder, by beheading.4”” In Ming and Ch’ing times, a daughter-in-law was placed in the same category asa child and grandchild, and any offence against her parentsin-law was treated as were offences by a child against its parents. Therefore accusing a husband’s parents or grandparents was punished by one hundred strokes and three years’ imprisonment, even if the

accusation was justified. If it proved false, the daughter-in-law was

strangled.” Scolding by a daughter-in-law was punished by strang-

ling, provided her parent-in-law lodged a complaint personally with the local authorities. Beating was punished by beheading, killing by dismemberment. Accidental wounding was punished by one hundred strokes and three years’ imprisonment, accidental killing by one hundred strokes and banishment to a distance of three thousand /i.1? Premeditated murder which miscarried was punished by beheading regardless of whether or not an injury had resulted. Murder, when actually committed, was punished by dismemberment.13 Only under the situation of rape could the daughter-in-law expect her punishment to be reduced if she resisted and killed her father-inlaw. In earlier days in cases of this kind, the daughter-in-law was

beheaded in accordance with the law governing the beating of a parent-

in-law to death. In 1815, however, a new precedent was established by

the case of a father-in-law who, while attempting to rape his daughter-

in-law, had a piece of his lip bitten off. The emperor held, in this instance, that the bond between the father-in-law and his daughter-in-law

had already been severed because of the former’s misbehavior and that, in addition, the daughter-in-law had not intended violence. The latter was pardoned, and from that time on a case of a daughter-in-law who injured her father-in-law while resisting his attempt to rape her could be reported to the emperor with a request that the daughter-in-law be permitted to go unpunished.!*4 In 1830 a further precedent was estab-

4S T'ang lit su-i, 22, 10b; Sung hsing-t'ung, 2 , ob. 4 T'ang lit su-i, 17, 6a; Sung hsing-t'ung, 17, 6a. 1 Ming lit li, 22, 30a; Ch'ing ii li, 30, 67a; Staunton, op. cit., 372; Boulais, op. cit., 645. 121 Ming liili, 21, 5a; Ching liili,29, 8a; Staunton op. cit., 357; , Boulais, op. cit.,628. 122 Ming lit li, 20, 38a-b; Ch'ing lit li, 28, 50a; Staunton, op. cit., 345-347; Boulais, op. cit., 616. 4 Ming lit li, 19, 5b; Ch'ing li li, 26, 17a; Staunton, op. cit., 305-306; Boulais, Op. cit.,

544.

4 Ching lit li, 28, 66b-67a; Hsing-an hui-lan, 63, 12b-13b.

RELATIONS WITH MEMBERS OF THE HUSBAND'S FAMILY

113,

lished which recognized that the punishment of a daughter-in-law who beat her father-in-law to death under the above circumstances could be reduced with the consent of the emperor from “immediate beheading” to “detention in prison for beheading.’”!*5

Lin Kuo+t'ing grabbed his daughter-in-law around the neck, while letting down his trousers and demanding intercourse. Unable to dissuade him, she picked up a razor and cut off his penis. He died as a result of the injury. The dauther-in-law was sentenced to “dismemberment” in accordance with the law on killing a husband's parent, but the emperor, after reviewing the case, reduced her sentence to ‘‘detention in prison for beheading’’.12 In Ming times, beheading was the punishment for a woman who forced

her parent-in-law to commit suicide. Under Ch’ing law, a daughter-inJaw who disobeyed instructions and thereby caused a parent-in-law to commit suicide was punished as was a son who was guilty of a similar crime vis-a-vis his parents, that is, by “immediate beheading” if any violence was involved, or by “detention in prison for strangling”, if not.!27 The following is a case in point.

Chou Wu-ch’éng’s widow, Ma, had always treated her mother-in-law, Hsi, well, but being short of money, Ma secretly pawned some of Hsii’s dresses. One day Hsii told Ma that she was to arise early the next morning and prepare breakfast, since she, Hsi, was going to visit her paternal relatives. Ma overslept, and Hsii scolded her. She then also discovered that her dresses had been pawned. Hsii’s anger was so great that Ma did not dare to say a word. A woman neighbor comforted Hsii and she returned to her room, but she could not get over her anger. She jumped in the well and was drowned. Ma was sentenced to “detention in prison for strangling”. As noted before, “disobedience of instructions’ was none too clearly defined. Even in situations where a daughter-in-law had not disobeyed instructions but where a parent-in-law had committed suicide because of her actions, she was sentenced under the law dealing with “disobedience of instructions of a parent-in-law”. Even when there were mitigating factors, her sentence was rarely reduced.

One day, a small boy, who was a favorite of his grandmother, came in from playing with his clothes dirtied. His mother spanked him, and when his grandmother returned from a visit, he was still crying. The grandmother was dissatisfied with her daughter-in-law’s explanation, and scolded her. The daughter-in-law uttered no word, but went into her room to avoid further trouble. The grandmother after being comforted by a woman neighbor, also went to her room, but she was still angry. She said she would rather die than 125 128 127 138 8

Ch’ing lit li, 28, 68a-b; Hit tséng hsing-an hui-lan, 14, 23a-b. Hsing-an hui-lan, 63, 42. Ming lit li, 79, 37a; Ch’ ing lit li, 26, 149b; Boulais, op. cit., 579. Hsing-an hui-lan, 34, 25b-26a.

MARRIAGE

114

see her grandson beaten. Her husband tried to console her, but she could not get over her displeasure. While her husband was asleep, she hanged herselt. Her daughter-in-law was sentenced to be strangled, but since spanking her son was a justified act of discipline and since the spanking had been done in her mother-in-law’s absence, and since she had not argued with her motherin-law when the latter scolded her, no disobedience was involved, and her mother-in-law’s suicide could not have been expected. Consequently the emperor reduced her punishment to banishment.1 Another case involves the suicide of a man who tried to get his daughterin-law

remarried.

Such

“anfatherly” and the duced one degree to was discouraged both daughter-in-law was

behavior,

whether

successful

or

not,

was

daughter-in-law’s punishment was therefore re“‘banishment”. Although a widow’s remarriage by the /i and the law, it is of interest that the still punished. Obviously more emphasis was

placed on status than on the question of right or wrong.

Yiieh Lai-ying’s oldest son had been away for years. In order to get the betrothal money, Yiieh wanted his daughter-in-law to remarry. This she refused to do. Yih then took her share of the property and told his younger son to give her no further financial help. She decided to report her

situation

to the magistrate. Yiieh was so angry at this that he committed suicide. The

authorities considered that Yiieh had been “unfatherly” and unkind to his

daughter-in-law, that her refusal to remarry confirmed the principle of chastity, that her case differed from ordinary cases of disobedience, and that it would be unfair to strangle her. Her punishment was therefore reduced to banishment.

Even if the reason for a parent-in-law’s suicide was a trivial one, the

daughter-in-law was not exempted from punishment.

Kao cooked some beans for her mother-in-law, Hsiao. The beans, which were hard, hurt Hsiao’s gums and she shouted at Kao. Kao said no word but cooked a bowl of noodles. However, since her gums still pained her, Hsiao could scarcely chew the noodles. Again she shouted at Kao, and in her anger picked up a cane in order to beat her daughter-in-law. Kao stopped her, whereupon Hsiao threw herself into the well and drowned. The authorities considered that Hsiao had died because of the hard beans and that Kao was therefore responsible for her death. Kao’s was banished, the same punishment as that meted out for non-support of a parent due to poverty and leading to that parent’s suicide. Hiis was to prepare the meal for her parents-in-law, but she was so busy with the farm work that she forgot until they returned home at mealtime. It was too late for Hsii to shop and there was only one dish of eggplant on the table. Her mother-in-law complained and scolded her. Knowing that she was at fault, Hsii asked her husband to go out and buy some meat. The father-in-law criticized his wife for being too greedy. She became angry and committed suicide. Her daughter-in-law was banished232 1 Tbid., 34, 13a-14b. 381 Hsing-an hui-lan 9, 26a.

1» Hsi tsing hsing-an hui-lan, 9, 460-478. 1 [bid., 9, 27a.

RELATIONS WITH MEMBERS OF THE HUSBAND'S FAMILY

TI5

Chao’s mother-in-law asked for buckwheat. As she had chronic stomach trouble and buckwheat was not good for her, Chao refused to give it to her. The mother-in-law became so angry that she committed suicide. While the authorities held that Chao had been careful regarding her mother-in-law’s food, she was nevertheless sentenced to banishment. Under

Ch’ing

law,

a daughter-in-law

was held

responsible

for her

parent-in-law’s death, if the latter had committed suicide because of the former’s adultery, robbery, or homicide. The daughter-in-law was punished as a son guilty of similar offences—that is, she was either

punished by banishment or immediate strangling.134 On the other hand, a parent-in-law who killed or injured a daughterin-law, received a lesser punishment than that meted out for ordinary cases involving similar acts. Where the killing was accidental, the parent-in-law was not held liable.15> Moreover, if the daughter-in-law had disobeyed instructions, punishment was deserved, and only where disability resulted were the parents-in-law penalized. During T’ang and Sung, the punishment for beating a disobedient

daughter-in-law causing partial disability such as the breaking of one rib or one limb was one hundred strokes; for total disability such

as blinding in both eyes or the breaking of two limbs, one year’s im-

prisonment.1%* In Ming and Ch’ing times the punishment was eighty strokes if a parent-in-law beat a disobedient daughter-in-law in a severe or unusual manner that caused partial disability. When the beating resulted in total disability the punishment was increased to ninety

strokes, the daughter-in-law was sent back to her own family and her dowry was returned.!*? The article makes it clear that the parents-inlaw were not held responsible unless their blows were delivered in an unusual manner. If a daughter-in-law was beaten to death, the parents-in-law, according to T’ang, Sung, Ming, and Ch’ing law, were sentenced to three

years’ imprisonment.1% Ming and Ch’ing law further decreed that a parent-in-law was not to be held responsible for having caused a daughter-in-law’s death by beating, if the latter had disobeyed instructions, and the blows had been administered in a legally acceptable manner, and the daughter-in-law’s death

had been accidental

or un-

334 Ching lit li 30, 77a-D. 183 [bid., 9, 27a-b. 385 T’ang lit su-i, 22, 10b; Sung hsing-t'ung, 22, gb—10a; Ming lii li, 20, 39a;

Ci’ing li li, 28, 60a; Staunton, op. cit., 348-349; Boulais, op. cit., 617.

396 Tang lit su-i, 22, 10b; Sung hsing-t’ung, 22, gb-10a. 187 Ming lii li, 20, 38b; Ch’ing lit li, 28, 59b; Staunton, op. cit., 348; Boulais, op. cit., 617. 138 aes li su-i, 22, rob; Sung hsing-t'ung, 22, 10a; Ming lit li 20, 38b; Ch'ing

la li, 28, 60a; Staunton, op. cit., 348; Boulais, op. cit., 617.

8

MARRIAGE

116

expected. Nor was a parent-in-law held responsible if a daughter-inJaw was beaten to death after she had scolded or beaten her parent-inJaw.88 In other words, a parent-in-law was punished only when he or she had beaten a daughter-in-law in an unreasonable or unusual

manner.

Huang scolded his daughter-in-law, Ch’én, because she had stolen some rice and then sold it. Ch’én wept wildly. The father-in-law became extremely angry and beat his daughter-in-law with the iron handle of a hoe. Ch’én

suffered injuries on the chest and temple and died. The authorities concluded

that the daughter-in-law had not scolded her father-in-law, that it was wrong

to direct blows at the chest and temple, and that it was equally wrong to use

an iron handle as an instrument of correction. The case was considered as

“beating to death in an unreasonable and unusual manner,” and Huang was imprisoned for three years.

Ifa daughter-in-law who had neither disobeyed instructions nor beaten or scolded her parents-in-law was killed by one or the other of them, the case was considered as “killing with intent.” Under T’ang, Sung, Ming and Ch’ing law the punishment for this crime was banishment to a distance of two thousand /7.41 Ordinaily, a woman

who was banished could redeem herself, but a

mother-in-law who had killed her daughter-in-law in a cruel manner, under the Ch’ing law, was permitted no such reprieve. Moreover, a

mother-in-law who planned to murder her daughter-in-law in a particularly cruel manner when the latter had neither scolded not beaten

her, was punished still more severely. She was sent out to the troops to serve as a slave.\43

Under Ch’ing law, a mother-in-law who killed her daughter-in-law to prevent the latter from divulging the fact that she had illicit intercourse, was sentenced to life imprisonment. And an adulterous mother-in-law, who had sought to force her daughter-in-law to imitate her behavior

and

who

had

killed the latter when

she refused,

was

punished as were cases of ordinary murder—that is, by detention in prison for beheading or strangling.14 It was also regulated in the Ch’ing law that when a father-in-law attempted to rape his daughter-in-law and caused her death because of her resistance, he was punished in the same way as in ordinary cases

1 Ming lit li, 20, 39; Ch’ing la li, 28, 60a; Staunton, op. cit., 348; Boulais, op. cit., 617. 1 Hsing-an hui-lan, 44, 0a-10a. Mt T'ang lit su-i, 22, 10b; Sung hsing-t'ung, 22, 10a; Ming lii li, 20, 39a; Ch’ing liz 4i, 28, 60a; Staunton, op. cit., 348; Boulaid, op. cif., 617. 42 Ch’ing lit li, 28, 63a-b. 48 [bid., 26, 20b-21a. Mt Tbid., 28, 69b-7oa. US Tbid., 26, 20a.

RELATIONS WITH MEMBERS OF THE HUSBAND'S FAMILY

117

and was beheaded immediately.™* This was the only situation under which a father-in-law was punished as in ordinary cases. The relative status of a wife vis-a-vis other of her husband's relatives was determined by the mourning system. Punishments in criminal cases were similarly determined. Under T’ang and Sung law, scolding or striking a husband’s senior relatives in the first, second, third, or fourth degrees was punished one degree less in each case than for her husband to scold or strike such relatives, since the mourning she wore for these relatives was one degree

Jess than her husband wore. Beating any of the above mentioned senior

relatives to death was punishable by beheading.7 In Ming and Ch’ing,

the degree of mourning worn by a wife for these relatives was the same as that worn by her husband. Punishment for beating or scolding them was therefore the same for husband and wife.¥8 Under T’ang, Sung, Ming, and Ch’ing law, a wife who beat and injured her husband's junior relatives received the same punishment as a husband who was guilty of a similar crime: if the blow resulted in

death, the penalty was “strangling”. A woman who beat her husband’s

brother's children to death was banished to a distance of three thousand /#; strangling was the punishment for “killing with intent.” If a husband’s senior relatives beat or injured his wife, they were punished one degree less severely than in ordinary cases, and if death was occasioned, the penalty was “‘strangling.’"*

Under T’ang and Sung law, a younger brother or sister who struck

an elder brother's wife, and a wife who

struck a younger brother or

younger sister of her husband were all sentenced one degree more severely than in ordinary cases.1 Under Ming and Ch’'ing law, however, an elder brother’s wife was considered a senior, while a husband’s younger brother or sister was considered a junior. Therefore, if these last beat an elder sister-in-law, they were sentenced one degree more severely than in ordinary cases; and if an elder brother or sister struck a younger

brother’s wife, or if an elder brother’s wife struck her husband’s youn-

ger brother or sister or a younger brother's wife, the offender, in each

instance,

was

punished

one

degree

less severely

than

in ordinary

cases.151 48 Hsing-an hui-lan, 63,314. ™? T’ang lit su-i, 23, 2b; Sung hsing-t'ung, 23,2b. 48 Ming lid li, 20, 42a; Ching lit li, 28, 71a; Staunton, op. cit., 349; Boulais, op.

Bee la su-i, 23, 3a; Sung hsing-t’ung, 23, 2b; Ming lii li, 20, 42a; Ch'ing lit li, 28, 71a-b; Staunton, op. cit., 349; Boulais, op. cit., 620. 180 T'ang lit su-i, 22, 11b; Sung hsing-t’ung, 22, 11a. 151 Ming lit li, 20, 42a; Ch’ing lit li, 28, 71b~72a; Staunton, op. cit., 350; Boulais, op. cit., 621.

MARRIAGE

118

6. Divorce

Divorce was possible if both parties to the marriage wanted to sepa-

rate.152 But in most cases, the breaking of the marriage bond rested

with the husband or more particularly with his family.

It was considered improper and unwomanly for a wife to repudiate her husband.2%* If she left his home of her own free will, she was guilty of having run away and punished accordingly —in T’ang and Sung, by two years’ imprisonment; in Ming and Ch’ing by one hundred strokes and the provision that her husband could sell her in marriage. If she married before she returned to her deserted husband’s home, she was sentenced to three year’s imprisonment under T’ang and Sung law, and “detention in prison for strangling” under Ming and Ch’ing law.1** The Seven Conditions

For more than two thousand years disobedience to a husband's parents, barrenness, adultery, jealousy, incurable disease, loquacity, and theft were the traditional and lawful reasons for divorcing a wife.1*> But at the same time there were three conditions under which a wife could not be divorced: 1) if she had no close relative to receive her; 2) if she had worn three years’ mourning for her husband's parents; and 3) if the

husband’s family having been poor at the time of the marriage had since become wealthy.1* When any of these three conditions prevailed,

none of the seven causes mentioned would justify divorce, except under one or two special conditions, as specified in the law. Obviously, the conditions of divorce primarily concerned relations

452 10, 383 1

T'ang lit su-i, 14, 6a; Sung hsing-t'ung, 14, 50a; Staunton, op. cit., 120; Boulais, op. Pai-hu t’ung 9, 5a; Hou-Han shu 84, 10; T'ang li su-i, 14, 6a; Sung hsing-t'ung, 14,

sb; Ming lit li, 6, 37b; Ch’ing lit li cit., 301. Tjan, op. cit., 1, 251 5b; Ming lit li, 6, 37; Ch’ing lit li,

10, 50a-b; Staunton, op. cit., 120; Boulais, op. cit., 301-302.

185 The “‘seven conditions,” ch’i-ch’w 5 tf}, are mentioned in the following classics; Ta-Tai li chi, 13, 6a; K'ung-tett chia-yii, 6, 13a; Kung-yang chu-su, 8, 10a; Richard Wilhelm, Li Gi, Das Buch der Site des alteren und jimgeren Dai (Jena, 1930), 248. They are included in the ling 4p in T’ang and Sung times (T’ang li sui, 14, 50a-b; Sung hsing-t’ung, 14, 5a-b). They are listed in the T’ung-chik Viao-ko (4, 7b) and the Ta-~Ming ling (6a-b). In Ch’ing law they were put in the form of a note inserted in the law under the article “Divorcing a wife” (Ch'ing lit li, 10, 50a; Ching liz li t’'ung k'ao, 10, 2a; Staunton, op. cit., 120; Boulais, op. Cit., 300). 38 Ta-Tai li chi, 13, 6a; Kung-yang chu-su, 8, 10a; K’ung-tzé chia-yid, 6, 13b; Tang lit su-i, 14, 5b; Sung hsing-t’ung, 14, 5b; T’ung-chih t'iao-ko, 4, 7b-Sa; Ta-Ming ling, 6, 38a-b; Ching li li, 10, 50a; Wilhelm, of. cit., 248; Staunton, op. cit., 120; Boulais, op. cit., 300-301.

DIVORCE

11g

within the family. Barrenness nullified the most important and sacred purpose of marriage—the continuation of the family line and the worship of the ancestors. Mencius once said that there were three kinds of filial impiety, but failure to produce an offspring was the gravest.157 This gave rise to a belief that failure to produce a son necessarily led to divorce. Actually very few cases can be documented in which a husband divorced his wife solely on the ground of barrenness.1® First, as mentioned above, a woman could not be divorced if she had worn mourning for her parents-in-law; second, sometimes the law held that a man could only divorce his wife on the ground of barrenness if she was over fifty years of age—that is, at the time of menopause;}® and finally, barrenness presented no serious problem as long as concubinage was institutionally and legally recognized. A wife, because of her barrenness, asked her husband to divorce her, but when he did not consent she urged him to take some concubines. The situation became difficult only when the wife was both barren and so jealous that she would not permit her husband to take a concubine. Jealousy, therefore, was another of the seven reasons for divorce. The mother of Empress Yiian of the Han dynasty was divorced be-

cause she was jealous, and Féng Yen’s 3

fff wife (Ist century A.D.)

was divorced because she would not permit Féng to take a concubine.

In fact, jealousy could not be tolerated because it made it impossible

for concubinage to operate. A king in the 8th century suggested in a memorial that a man who took no concubine when his wife failed to bear him a son was unfilial and should be punished because his action forced the discontinuance of the worship of his ancestors. Moreover,

the husband should also be compelled to divorce his wife.1

157 Méng-tt chu-su, 7B, 6b; Legge, Chinese Classics, I, 180. 155 Tung-kuan Han-chi $f $9 #2, 19, 72: Liang shu, 16,8a-b; Ts'ui Pao # $4, Ku chin chu 4; 4}: B, 1b; "“Ch'i fu pien"’ 3€ i #¥ (a poem on a divorced wife) by Ts'ao Chih Wf fff (192-232) from Ku shih yuan J; #¥ jf, edited by Shén Tech’ien pf #8 YF, 5,8b; “Li fu" ME HF (a divorced wife), a poem by Chang Chi ag $8 (eighty and ninth centuries) from Ch’zan T'ang shih Zp jf #§, edited by Ts’ao Vin $f 4 and others, ts'é 56, 2, 4a-b; Ch'ang-ch'ing chi, 50, 12a-b. 1% Quoting the law that a woman who was over fifty and had a son was allowed to appoint the eldest son of a concubine to be her heir, the Commentary tothe T’ang and Sung law interpreted this to mean that a man was not allowed to divorce his wife on the ground of barrenness if she was only forty-nine or younger (T'ang li su-i, 14, sb-6a; Sung hsing-t’ung, 14, 5b). It should be pointed out that it was also regulated in Ming and Ch'ing law that a wife over fifty without ason might appoint the son of a concubine to be the heir (Ming lit li, 4, 0a; Ch’ing lt li, 8, 27a; Staunton, op. cit., 84; Boulais, op. cit. 187). 481 Han shu, 98, 2b. 10 T’ai-p’ing yii-lan, 440, 6b-7a. 183 Pei shih, 16, 19a. 182 Hou-Han shu, 28B, 20a-b.

MARRIAGE

120

Since adultery in the event of offspring led to the introduction of

strange blood into the family line and since it was a common belief among the ancients that a ghost would not accept a sacrifice by anyone

not of the same blood as the husband,! adultery could not be tolerated and divorce was justified. Under T’ang, Sung, Ming, and Ch’ing law the

three conditions under which a wife might not be divorced could not be invoked, if the reason for bringing the divorce was adultery.1* To serve the ancestors was, as mentioned above, a primary purpose of marriage. That is why incurable disease! constituted a condition for divorcing a wife. The ancients held that a woman with an incurable disease could not be tolerated since a person so afflicted could not prepare a sacrifice.6’ Under T’ang and Sung law a woman with an incur-

able disease was not under the protection of the three conditions under

which a husband could not divorce his wife.1%

To serve her husband’s parents was the duty of a daughter-in-law.1 Failure to do so properly put an end to the parent-in-law daughter-inlaw relationship and usually to the marriage as well. The Li chi states that when a daughter-in-law is unfilial and unreverent, her parents-inlaw should endeavor to instruct her; that when she does not listen to their instructions, they should become angry; and that when their anger is without effect, her husband should divorce her.!7°

Tséng Shén, a disciple of Confucius, divorced his wife because she

undercooked a pear for his parents.72 Pao Yung {ij 7k (end of the Ist

181 Tso chuan chu-su, 13, 8b; Legge, Chinese Classics, V, Pt. I, 157; Couvreur, Tso Tchouan, I, 279. The story that the ghosts of a family could not accept sacrifice from a child who had a different surname and that it was the child’s own ancestors who enjoyed his offering reflects this typical Chinese ideology concerning blood relationship and ancestor worship (Yen K’o-chiin §% WJ #3, Ch’uan Hou-Han wén Ze §%

i 3, 38, 3a-b).

18 Tang lit su-i, 14, 5a; Sung hsing-t’ung, 14, 5a; Ta-Ming ling, 6b; Ching lit li, 10, 53b; Boulais, op. cit., 302. 18 According to an explanation given by Ho Hsin af f¢ (129-182) in his commentary to the Kung-yang chuan, any of the following physical defects may be classified as incurable diseases, o-chi §# 4% : dumbness, deafness, blindness, sores, baldness, lameness, state of being hunchbacked, impotence, etc. (Kung-yang chu-su, 23, 8a). However, the term is more generally understood as leprosy. An ancient Japanese source mentions that o-chi and leprosy were synonyms in China during T'ang time (Koremune Naomoto #f # jf Ax, Ryd no shuge 2p $e $f, I, 280; Niida Noboru, Shina mibunhd shi, 253-254). 181 Ta-Tai li chi, 3, 6a; K’ung-t2i chia-yit, 6, 13a; Kung-yang chu-su, 8, 102. 16 Tang lit su-i, 14, 5a; Sung hsing-t'ung, 14, 5a. 1 Li chi chu-su, 27, 2a~3a, 4a-b, 5a; Legge, Texts of Confucianism, UII, 450451, 453-454, 455; Couvreur, Li Ki, 1, 621-624, 628, 631; Hou-Han shu, 84, 11b. 1 Li chi chu-su, 27, 5a-b; Legge, Texts of Confucianism, III, 456; Couvreur, Li Ki, I, 632. 11 K’ung-tit chia-yit, 9, 2b.

DIVORCE

12

century B.C.) divorced his wife because she shouted at a dog in her

mother-in-law’s presence.1”? Chiang Shih 3 #} (Ist century A.D.)

divorced his wife because she took too long to fetch water from the

river for her mother-in-law who was thirsty.!73 Liu Huan # #@t (5th century) divorced his wife because some dirt from a pair of shoes, which she had hung on the wall, dropped on her mother-in-law’s bed,

displeasing her.174 What was entailed in not serving one’s parents-in-law “well” or in not being in accord with them depended more on the attitude of the parents-in-law than on the behavior of the daughter-in-law. The Li chi

clarifies the point. It states that a son should divorce his wife, even

when he is fond of her, if she is disliked by his parents; and that he should treat her as his wife during his lifetime, even when he is not

fond of her, but when his parents say, “She serves us well.”275 Pan Chao

explains in her famous Ni chieh (Lessons to Women), written in the early part of the 2nd century, “Although a woman is loved by her husband, if the parents-in-law say ‘no,’ this means the breaking of the bond under the principle of righteousness.’”17¢

Both Lan-chih Mj © (early third century), whose story is told in the

poem, “The Peacock Flies to the Southeast,” and the wife of Lu Yu were much loved by their husbands, but they were forced to leave them

because they displeased their respective mothers-in-law.1”? To divorce a wife merely on the ground that she was disliked by one’s parents

usually was considered justified in the general opinion of society, espe-

cially that of the intellectuals.” Since a marriage was arranged ac-

cording to the will of the parents and the will of the parties thereto was not considered, it was completely logical that the breaking off of a marriage was also determined by the will of the parents without concern for the feelings of the husband or wife. The inclusion of loquacity among the causes for divorce is also understandable from the standpoint of familism. Naturally it was important to maintain order within the family and prevent quarrels between its

members. Women, it was believed, were more talkative than men; and

¥72 Hou-Han shu, 29, 7b-8a. 43 Tbid., 84, 3b. 174 Nan-Ch’i shut, 39, 4b; Nan shih, 50, 3b. 178 Li chi chu-su, 27, 6a; Legge, Texts of Confucianism, III, 457; Couvreur, Li Ki, I, 634. v8 How-Han shu, 84, 11b. For Pan Chao #f 9W@ (first century A. D.) and her Nu chichfe jy, see Hou-Han shu, 84, 5a-13b; Nancy Lee Swan, Pan Chao: Foremost Woman Scholar of China (New York, 1932). 177 Ku shih yitan, 4, 1a-4a; Ch'i tung yeh-yit, 1, 18a-19. 18 Ch'ang-ch’ing chi, 50, 5a-b.

122

MARRIAGE

furthermore, since the wives of the various family members came from different families, no affectional bonds bound them to each other or to their affinals, with the exception of their husbands—a circumstance that might easily lead to quarreling. Therefore to keep the family peace the ancient Chinese discouraged their women-folk from talking too much.

In the r4th century, Chéng Lien §§ ii whose larger family had lived

together for three hundred years, remarked to the Emperor that this

had been possible because none of their members had listened to the

words of the women in the family.!” It was explained by the ancients that loquacity was one of the seven reasons for divorce because it caused discord among the relatives. The elder brother of Ch’én P’ing {§i 4 (grd-znd century B.C.) divorced his wife because she complained that ‘‘to have a younger brother like this one is worse than none” ;8t and Li Ch’ung 4 3€ (Ist-2nd century A.D.) also divorced his wife because of her talkativeness.48* The Li chi notes that a wife is a fitting

partner for her husband only when she is in accord with her parents-

in-law and in harmony with all the occupants of the women’s apartments.18% It is evident from the above discussion that too much emphasis must

not be placed on the husband’s authority. Obviously, the husband could

not repudiate his wife at will as is so commonly assumed.

It would

seem more correct to say that both husband and wife are controlled by the husband’s family and dominated by the will of his parents. I chiieh

Besides the mentioned seven conditions another condition under which a marriage could be dissolved was the so-called i-chiieh % #8, “‘breaking the bond of matrimonial relation.” The seven conditions could be invoked against a wife only. I-chiieh, however, might be invoked against both parties to a marriage. It included such acts as a husband’s beating

or killing members of his wife's family ; a wife’s beating or killing mem-

bers of her husband’s family; a wife having illicit intercourse with her husband's relatives in the first, second, third, or fourth degree; and a husband having illicit intercourse with his wife’s mother; or a wife’s murder of her husband.‘ Furthermore, invoking any one of the seven

19 Ming shih, 296,10b. ™ Ta-Tai li chi, 13, 6a; K’ung-tzit chia-yii, 6, 13a. 481 Han shu, 40, 1b. 182 Hou-Han shu,8t, 23a. ¥9 Li chi chu-su, 27, 6a; Legge, Texts of Confucianism, IV, 431; Couvreur, Li Ki, IT, 646-647. Mt T'ang lit su-i, 14, 5b; Sung hsing-t'ung, 14, 5a; Ming lit li, 6, 38a; Ching lit li, 10, 51b.

CONCUBINAGE

123

conditions rested with the husband, while, if i-chiieh was involved, divorce was required by law. If a husband kept his wife under these circumstances, he was imprisoned for one year in T’ang and Sung times, and given eighty strokes in Ming and Ch’ing times. On the other hand, the law also held that if a husband divorced a wife who had not violated any of the seven justifying causes for divorce or the rules of é-chiieh or if he divorced a wife who had fulfilled any one of the three conditions under which a divorce was not permissible, even if she was chargeable with one of the seven conditions for divorce, the husband was punished by the law, the penalty being either a term of imprisonment or beating. Moreover, in such situations the law did not recognize the validity of the divorce, and the husband was forced to take back his

wife.1°7

7. Concubinage Concubinage can be documented in China’s earliest historical records,

but only one woman in the household was recognized as the wife by society and the law. Both officials and commoners might have concu-

bines, but only one wife. Under the principle of one husband and one wife a man who took a

second wife, while he was living with his first, was guilty of bigamy. His second marriage was not recognized, and both he and his new wife, as well as any others who might have assisted in making the match,

were punished. In T’ang and Sung times the marriage was annulled,

the husband imprisoned for a year, the person who gave the girl in

marriage was punished one degree less, and the woman was returned to her parents. If the man had concealed the fact that he had a wife and the girl’s family was not involved, the marriage was annulled and

185 T'ang lit su-i, 14, 6a; Sung hsing-t’ung, 14, 5b; Ming lit li, 6, 39b; Ching lili, 10, 50a; Staunton, op. cit., 120; Boulais, op. cit., 301.

488 Under T’ang and Sung law a husband was punished with a year and a half’s

imprisonment if he divorced a wife who had not violated any of the seven conditions for divorce or the rules of i-chiieh, # #%. And the punishment was one hundred strokes if he divorced a wife who had violated one of the seven conditions for divorce but had fulfilled any of the three conditions under which a di-

vorce was not permissible (T’ang lit su-i, 14, 5a; Sung hsing-t'ung, 14, 5a). Under Ming and Ch’ing law the punishment for a husband was eighty and sixty strokes under the two above-mentioned conditions respectively (Ming la li, 6, 37b; Ching lit li, 10, 50a; Staunton, op. cit., 120; Boulais, op. cit., 487 T’ang lit su-i, 14, 5a; Sung hsing-t’ung, 14, 3a; Ming lié li, 6, 37a; Ch’ing lu li, 10, 50a; Staunton, op. cit., 120; Boulais, op. cit., 301.

MARRIAGE

124

the man was given six months more than under the above conditions.**

In Ming and Ch’ ing times the man was given ninety strokes, the woman

was returned to her parents, and the marriage was annulled. Only after the death of a recognized wife or upon divorce could a man enter into another marriage.

In the third century, Chang Hua 4 4 (232-300) posed the following problem. What degree of mourning should be worn by a man’s sons

for his co-wives A and B. Hsiin Chi #j $# replied that was only permitted to have one wife, the woman whom he first was the legal wife, the other being a concubine; and of B should regard A as his legal mother and the son

regard B as a concubine-mother, shi-mii HE 4H

since a man had married that the son of A should

Ni Yiian-lu {fa 7 3% (1593-1644) first married Ch’én, and when they

did not get on well together he married Wang without benefit of divorce.

When

an honorary

title was about

to be granted

to his wife,

he

asked that it be recorded in Ch’én’s name. But Wang secretly sub-

stituted her own and the title became hers. As a result, Ni was accused

of having married two women. He tried to argue his way out by

claiming that he had divorced Ch’én before he had married Wang. Nevertheless he was dismissed from his post. However, after his death

the government decided to honor him. His legal wife, Ch’én, went to

court and received the title.

In general a family hesitated to give their daughters to married men for only one wife was recognized, and the position of a concubine was a Jowly one. The situation was somewhat different where the prospective husband was the heir of two lines for the people commonly assumed that he had the right to two wives and that his marrying again was. different from the ordinary case. Consequently many families gave their daughters to such men as second wives; and since this was common custom the law did not insist upon the annulment of the second

marriage. But the Ji and the law still insisted upon the principle of one

wife. Thus, if an heir to two lines married two women, only the first was considered a wife; the second was considered a concubine and the title, if there was one, descended to the first wife. This is clearly explained in a statement of the Ministry of Justice and the Ministry of Rites.

a8 T'ang lit su-i, 13, 11b; Sung hsing-t’ung, 13, 10a. 2 luli, 60a; Ch'ing li li, 10, 13a; Staunton, op. cit., 111; Boulais, op. cit., 268. 10 Chin shu, 20, 17a. 31 Chang Ta-lai # 3, Ch'éng-yang tsa-lu (® BY HE HR, 10a-b. 2 Shuo t’ich i ipfy, the first year of Tao-kuang, Péng Tzii-li's case; Hsing-an hui-lan, 40, 22a-25b.

CONCUBINAGE

125

Differences between a wife and a concubine were established by the marriage ceremony, by their different statuses and by their obligations and rights. The Li chi says that betrothal made the woman a wife and that if she went to a man without this ceremony she became a concubine. A concubine was bought and no ceremony marked her entrance into her “husband's” family. The word concubine, ch’ieh, means “to be accepted.’° The concubine regards her “husband” as her

master, the head of the family.”

A concubine was not included among her “‘husband’s” relatives; no kinship terms fixed their relation to her nor hers to them, and she was excluded from mourning for most of her husband’s relatives. She was called “concubine” or addressed by her personal name. She, like the servants, addressed these persons as “master” or “mistress.” The wife's children she addressed as “‘young master” or “miss.” Only her own children could she call by name. Only with her own children was the mother-child relationship permitted. To the wife’s children she was “father’s concubine,” and only after she had borne a child did they address her as ‘‘concubine-mother.” Nor were her relatives considered as relatives by her husband’s family. No communication existed between them, the concubine obviously establishing no bond of affection between the two families. In fact, the concubine was not only not accepted as a member of her “‘husband’s” family, but her status remained not much above the status of a maid servant. But most important, she could not join in the worship of her “husband’s” ancestors, nor could she be worshipped after death as one of them. Only her own son offered sacrifice to her, but never in the ancestral temple. Her title, if she had one, depended on her son’s position and not on his father’s. Since a concubine was humble and her “husband” superior, the distance between them was much more than that between a husband and wife. When a husband beat his wife, the punishment was two degrees less than in ordinary cases. When he beat and injured a concubine, 193 Li chi chu-su, 28, 7a; Legge, Texts of Confucianism, III, 479; Covreur, Li Ki. I, 676.

194 Li chi chu-su, 2, 8a; 51, 14a; Legge, Texts of Confucianism, III, 78; 1V, 297298; Couvreur, Li Ki, I, 31; I, 423. 1 Pai-hu f'ung, 9, 16a; Shih ming, 3, 23b; Tjan, of. cit., I, 261.

19 J li chu-su, 29, 2b; Shih ming, 3, 22b; Ch’é Kai ii 44, Nei-wai fu-chih t'ung-

shih Fy 9 AB tl 5a FF, 3, 2a-b.

297 Ming lié li, t'u BJ, 15D; Ch'ing lai li, 2, 44b-45a. 298 Mourning was worn only for her “husband”, his grandparents, parents,

and sons.

MARRIAGE

126

the punishment was two degrees less than that for striking his wife, that is four degrees less than for ordinary beating." For killing a concubine the punishment in T’ang and Sung times was banishment and

in Ming and Ch’ing times one hundred strokes and three years’ imprisonment. The killing of a concubine by accident was not considered acrime.? On the other hand a concubine’s punishment for scolding or beating her “husband” was much heavier than in the case of a wife. Scolding was punished by eighty strokes. Striking the husband was punished one degree more severely than when a wife struck a husband —that is, by imprisonment regardless of whether injury resulted or not.?”? If the

striking caused the breaking of a limb, she was sentenced to death, a punishment four degrees heavier than in ordinary cases.” The concubine regarded the wife as her mistress.** She was under the

wife’s authority and had to wait on and serve her respectfully. The punishment for a wife’s beating of her husband’s concubine was the same as a husband’s punishment for striking his wife—that is, in case of serious injury, two degrees less than in ordinary cases; in case of death “detention in prison for strangling.”’ Killing by accident was not

considered a crime. If a concubine offended the wife, she received the same punishment as a wife who offended her husband. Thus the punish-

ment for scolding her “‘husband’s” wife was eighty strokes. The punish-

ment for striking her was one degree more severe than that of the wife

who struck her husband.?°7

10 T'ang lit su-i, 22, 6a; Sung hsing-tung, 22, 5b; Ming lit li, 20, 29b; Ch’ing li-li, 28, 16b; Staunton, op. cit., 342; Boulais, of. cit., 609. 2 Loc. 201 T'ang lit su-i, 22, 7a; Sung hsing-t’ung, 22, 6a; Ming li li, 21, 6a; Ch’ing lili, 29, 9a; Staunton, op. cit., 357; Boulais, op. cit., 629. 2 In T’ang and Sung law the concubine was to be punished with one and a half year’s imprisonment; in Ming and Ch’ing by one year’s imprisonment (T’ang lit sui, 22, 7a; Sung hsing-t’ung, 22, 6a; Ming lit li, 20, 29a~b; Ch’ing lit li, 28, 16a, 17b, Staunton, op. cit., 342; Boulais, of. cit., 608. 28 T'ang lit su-i, 22, 7a; Sung hsing-t'ung, 22, 6a; Ming lu li, 20, 29a-b; Ch’ing li li, 28, 16a, 17b; Staunton, of. cit., 342; Boulais, op. cit., 608, 1 Shih ming, 3, 2b; Nei-wai fu-chih t'ung-shih, 4, 1a-b. 5 It was said that a concubine should serve the mistress in the same way as. a woman served her father- and mother-in-law (I li chu-su, 31, 2b; Pai-hu t'ung, 9, 15a; Steele, op. cit., II, 22; Tjan, op. cit., I, 260). 2 T'ang lit su-i, 22, 7a; Sung hsing-t’ung, 22, 5b; Ming lit li, 20, 29b; Ch’ing lit li, 28, 16b; Staunton, of. cit., 342-343; Boulais, op. cit., 600. 7” T'ang lit su-i, 22, 7a; Sung hsing-t'ung, 22, 6a; Ming li li, 20, 29a 21, 6a;

Ch'ing lit

op. cit., 608.

li, 28, 16a;

20, 9a;

Staunton,

of. cit., 342,

357;

Boulais,

CONCUBINAGE

127

In T’ang and Sung times the position of yin?* was slightly higher

than that of other concubines. Thus when a yin offended the wife, she

was punished one degree less severely than a concubine, and when a concubine offended a yin she was punished one degree more severely than in ordinary cases.” Later there was no distinction between a yin and the other concubines.

28 Tt was regulated that officials from the fifth rank and above were allowed to have yin Wg, whereas officials below the said rank and the commoners were allowed to have only ch’ieh 3 (T'ang lit su-i, 22, 7a; Sung hsing-t’ung, 22, 6b). 20 T'ang lit su-i, 22, 7a; Sung hsing-t'ung, 22, 6b.

III. Social Classes Officials, commoners,

and the ‘“‘mean’’ people Ji& J& constituted three

major social classes in traditional China. The ideology concerning the differences between chiin-tzii 4 T-, gentlemen, and the hsiao-jén “> , little men, which was developed and

elaborated

by

Confucius,

(see chapter VI), played

Mencius,

a dominant

and

other

ancient

scholars

role in Chinese social stratifi-

cation. Both law and society recognized their different

statuses;

the

officials being the superiors, the commoners the inferiors. Their style of life was clearly distinguished. The officials enjoyed particular legal and political privileges,

such as exemption from corvée

services, freedom

from corporal punishment, and legal protection against assault by commoners, etc. There was little social communication between the two classes. The superiority of the officials was admitted by the commoners. Officials themselves were conscious of their superior prestige and

had a definite “we group” feeling. Thus, either in terms of objective

criteria (style of life and other privileges) or subjective criteria (social esteem and class consciousness) the officials and commoners fell into two distinct strata.

It is obvious that the status of high officials was superior to that of

the medium

and petty officials. Social relations between

widely separated ranks were within the group, all officials -t & KR) group, and as such official population. The latter

officials of

rare. Nevertheless, despite differences belonged to the chiin-tzit (or shih-ta-fu were clearly marked off from the nonwere considered “outsiders.” Among the

commoners, scholars, farmers, artisans, merchants, etc. had neither the

same status nor the same role. Scholars had the highest status among the above-mentioned four groups, and intellectuals in general looked down on artisans and merchants.! At certain periods there were sumptuary laws which discriminated against merchants, and at times they

1 Such an attitude is reflected in some of the family instructions $ gl], #@ #3. For instance, Lu Yu advised his descendants in his Family Instructions to study and to make a living by teaching. They were told that it was all right for them to be farmers, but that they should never be engaged in the “‘small man’s business in the market place” 7fi Jf sJs A 2 Yh, which he considered a big disgrace to the family. Moreover, he expressed his concern about the fate of his descendants who might be degraded to the market place or reduced to government runners jf His ti IE, Be Hs LA

(Lu Vu, Fang-wéng chia-hsin fi ZF gM, 2a, ob).

SOCIAL CLASSES

129

and artisans, as well as butchers, could not take the government exami-

nations or enter upon an official career.* Furthermore, persons in the same occupational group did not always enjoy the same status as wit-

ness the differences between wealthy merchants and small shopowners

or peddlers. Similar variations also characterized the farmers. To include landowners, owner-cultivators, tenants, and hired laborers in one

category would certainly be misleading. In short, the commoners may

be divided into sub-strata. However, the differences between the various sub-strata within this large group were relatively minor when compared with the great distance that separated the commoners from the officials on the one hand and from the “‘mean”’ people on the other. In so far as the sumptuary laws and other legal privileges were concerned, with few exceptions (see above remarks on artisans, merchants, butchers, etc.) the law treated the commoners as a group, whatever the

differences in occupation and wealth. Since our study deals primarily

with status as reflected in style of life and other legal privileges, we feel justified in classifying scholars, farmers, merchants, artisans, and

those whose occupations are not subsumed under “‘mean”’ as one major

group.

The “mean” people comprised government and private slaves, prostitutes, entertainers, government runners,® and such regionally defined

groups as the yiieh-hu in Shansi and Shensi, the “beggars” in Kiangsu

2 In Han times merchants were not allowed to enter officialdom (Han shu, 1, 3b; 24B, 3a-b; 72, 16b). The same prohibition was extended to merchants and artisans in Sui and T'ang times (Sui shu, 1, rob; T'ung tien, 14: 81; chiu T'ang shu, 43, 3b, 7a; 177, 18b; Hsin T'ang shu, 45, la; 181, 5a; Wén-hsien t’ung-k’ao, 37: 347)- Under Sung and Liao law, the two mentioned groups were deprived of the

privilege of taking the civil examination (Sung shih, 155, 3a; Liao shih, 20, 4b; 27, 4b; Hsi wén-hsien t’ung-k'ao, 34: 3145). Certain other occupations were sometimes also treated as those of disprivileged groups. For instance, sorcerers were not eligible for officialdom in Han times (Hou Han shu, 83, 15a). It was regulated in the Liao dynasty that physicians, diviners, and butchers were not allowed to participate in the civil examinations (Liao shih, 20, 4b; 27, 4b; Hsit wén-hsien t'ung-h'ao, 34: 3145)3 The government runners (# 3) included those lictors, runners, and adminis-

trators of corporal punishment under the name of Ft 3h and those who served in

a yamen as horsemen, messengers, jailers, doormen, archers, coroners, land tax hasteners, policemen, etc. (The Chinese terms are Jj Pt, 3$R ls 5, as “mean” AS, PHF, 3 JE,FF PE, Hat BE, BF BE)- All of them were classified people and were barred from taking the examinations (Ch’ing hui-tien, ch. 17; Hsiieh-chéng ch itan-shu 32 ff Ae BE, 43, 5a-b, Ob, ga-16a). It should be pointed out that the treasury keepers (fifi J), grain measurers (3 QB), and the militia (J@ $f) were not included in the above-mentioned category and were considered freemen (Hsieh-chéng ch'dan-shu, 43, 5b-6a). 9

130

SOCIAL CLASSES

and Anhui, the “lazy people” in Chekiang, the boatmen in Kwangtung,

etc.4 All those whose social and legal status was, according to the law,

‘The yiieh-hu $£ J4 of Shansi and Shensi Provinces, the families registered as singers and music players, according to the edict of 1723, had their origin in the early part of the Ming dynasty. They were the descendants of those who were loyal to Emperor Hui (r399-1402) and thus were humiliated and ordered by Emperor Ch’éng-tsu (1403-1424) to enter the registration of yieh-hu (Ta-Ch'ing hiui-tien shih-li fe 38 €] WL AE Gi, ch. 158). The different status of yiteh-hu of Shansi and commoners is clearly shown in the regulation set up by the governor of the province, Lii K’un, It is clearly stated that the yweh-hu belonged to the “mean” category, and any of them who fought with a commoner was to be punished two times heavier than in ordinary cases. A prostitute also was not allowed to wear the same kind of dress as a commoner (Shik chéng Iu, 4, 64a-b). : ie yiteh-hu of Shansi and Shensi were not removed from the “mean” category and made commoners until an edict was issued in 1723 by Emperor Shih-tsung (1723-1735) of the Ch’ing dynasty (Ch’ing hui-tien shih-li, Ch. 158; Ta-Ch'ing li-ch'ao shih-lue fe 3 He 3 PE Zk — hereafter referred as Ching shih-lu — Shihtsung, 6, 23a).

The to-min #@ [& of the Shao-hsing 4% il Perfecture, Chekiang Province, which may be translated literally as ‘“‘lazy people,” were identified with the Aai-hu ¥G JA, “the beggars,” in various literature and local gazetteers (Shén Té-fu ph; (4 Hy, Yeh huo pien Ff I 4g, 24, 29b; Shén Té-fu, Pi-chou hsian shéng-yi ae FF

IR af, C, 10a; Ch’i Hsiian-ying 9p¢y $f], Chung-kuo shé-hui shih-liao ts'ung-ch'ao

*} [Bl ji @ 32 BL IE Gb, 305-306). The interchangeability of the two terms is supported by the fact that an edict of 1723 mentions that the fo-min of Chekiang were to be removed from the kai registration (BR ff §& VR fk) (Ch'ing shih-lu, Shih-tsung, 81, 38a-b). Judging from the fact that the to-min of Chekiang Province were freed in 1723, whereas the Aai-hw of Soochow #f | Prefecture were freed in 1730 in a separate edict (Ch’ing hui-tien shih-li, ch. 158; Ch’ing shih-lu, Shih-tsung, 94, 17b-18a), it seems that actually to-min and kai-hu were the same class of persons living in different localities. In Chekiang such people were called to-min, whereas in Kiangsu they were given the name hai-hu. The so-called hai-hu, the families entered in the register as “beggars,” who werealso called ta-p'in : 4, ‘the great poverty,” actually were not beggars and were not always in a state of poverty. The males of this group were not allowed to engage in study or in an official career. The females were not allowed to bind their feet. Intermarriage between them and free people was strictly prohibited. The main occupation of the men was to render services to others at weddings or funerals, Most of the women maintained themselves by dressing the hair of woman of ordinary families or by being the pan-niang {2 #i, ‘‘the maid who accompanied a bride.” The humble origin of this group is not clear. One of the explanations is that they were the descendants of a certain Sung general who submitted to the Chin invaders. Thus the members under this general were humbled and classified as a “‘mean’” group by the Sung government. However, others maintain that they were classified as such by Emperor Ming T’ai-tsu (see Yeh huo pien, 24, 29b-30a; Pa-chou-hsitan shéng-yit, C, 10a-b; Chiung-huo shé-hui shih-liao ts’ungch'ao, 395-390). It is impossible to tell which statement is closer to fact, but according to Shén Té-fu, the author of Yeh hou pien and Pi-chou-hsizan shéng-yil,

SOCIAL CLASSES

131

inferior to that of the common people, the so-called “good people,”

belonged to this group. The social distance between the “‘mean”’ people and the commoners was great. Intermarriage between the two classes

was forbidden by law. The “mean” people were excluded from taking

it is certain that the origin of this group cannot be later than the middle years of the Ming dynasty. The term tan-hiu % Fi refers to the boatmen of Kwangtung. They are said to

be aborigines of the south, the Nan-man jj ff. Fishing, gathering of oysters, and collecting pearls were their major occupations. They were not treated as equals by the common people and were not allowed to live on the land by the native Chinese. The boats were their homes. They were removed from the ‘“‘mean” category in 1729 by Emperor Shih-tsung of Ch’ing (Ch’ing shih-Iu, Shih-tsung, 81, 38a-b; Ching hui-tien shih-li, ch. 158; Ch’ing hui-tien, ch. 7; Hu-pu tsé-li Fi # Bill fH], 3, 12b). The existence of tan-hu as boatmen along the coast of Kwangtung, Kwangsi, and Fukien can be traced back to the time of T’ang and Sung. However, no information is available concerning their inferior status (Yiieh Shih ME Sf, T’ai-p'ing huan-yit chi fe AS $F FB, 57, 12; Fan Ch’éng-ta ¥y i -K, Kuci-hai yit-héng chih ¢f $5 BR Wy 3, 332; Chou Ch’ti-fei Jf 3 Jz, Ling-wai tai-t BAY AR BE 3, Ob-7a; Ku Ven-wu gj 38 GR, T’ien-hsia chiin-huo li-ping shu FF 2 FA Fil 45 Br, &'¢ 20, 107-108). The first evidence suggesting that their status was different from that of the common people is found in the Yan dynasty. It is reported by the author of Cho kéng Iu that the wu-tan-hu § 2 Fa, “the

pearl- collecting fan-hu,” were freed and made commoners by Emperor Jén-tsung (1312-1320) (T’ao Tsung-i [iy #42 (9, Cho-hénglu $8 $f 4%, 10, 15a). In.1324 an edict was again issued by Emperor T’ai-ting (1324-1328) to free the pearl-collecting tan-hu of Kwangtung and Fukien, But two years later the fan-hu of Lien-chou Jie JH were again ordered to resume their original occupation (Hsit wén-hsien tung-k’ao, 13: 2889). In the Ming dynasty the fan-hu who had the obligation of paying a tax in fish and rice were registered and under the supervision of a special office called Ho-po-ssit ja] jfy 7]. According to Ku Yen-wu, a fan-hu sometimes married into a low-class Han-Chinese family (Tien-hsia chin-kuo li-ping shu, 1s'é 29, 107-108). Another kind of fisherman was also classified in the “mean” category: the so-called ‘fishermen of nine surnames inChekiang”’ jf {I Ju itt iff - According to certain sources, they were the nine families who were loyal to Ch’én Yu-liang i 2 ai (@. 1363), a political rival of Emperor Ming T’ai-tsu. After Ch’én was defeated they fled to the coast of Chekiang and became boatmen who engaged in fishing. They were classified as one of the “‘mean’” categories by the Ming emperor (Hsii K’o § af, Ch’ing pai lei-ch'ao ts FG Bf, 36, 14b-15a). In an edict issued in 1771 they were given the same privileges as the fan-hu; they were allowed to enter the examinations four generations after their forefathers had changed their occupation (Ch'ing shih-lu, Kao-tsung, 886, 17a; Ch’ing hui-tien shih-li, ch. 158; Ch’ing hui-tien, ch. 7) Lastly, the ‘‘mean” category connected with a certain locality included also the so-called shih-p'ufft (& or pan-tangfp Ff of Hui-choufgl ji], Ning-kuo “ff, and Ch'ih-chou 31 j| of Anhui Province. As suggested by the term shih-p’u itself, which means “‘servants for generations,” they were apparently considered permanent servants of a family, having a quasi-slave status. Legally they were

oF

132

SOCIAL CLASSES

the civil examination, a prohibition which made it impossible for them to enter upon an official career. Their children were similarly deprived.®

Thus all channels for social mobility were closed to them. In fact, the

not considered slaves nor classified as slaves. Their inferior status was of social origin. They were treated by the local people as ‘mean’ people and were compelled to render services for a family. When they enrolled for examination or purchased an official title, they were always accused by the commoners, who complained that they were ‘‘mean’” people and not entitled to such privileges. However, no one could prove their humble origin. Furthermore, none of the families who claimed that they were their masters could produce a contract as legal evidence. It was reported that there were thousands of such unfortunate families. An edict was issued in 1727 to assure them free status. Later, in 1810, however, a distinction was made in the law between the two categories. Those who were still kept by a master and rendered service in the latter's family were treated as slaves and were allowed to enter the examinations or to purchase an official title only three generations after manumission. On the other hand those who were not kept by a master and did not render service at the time were treated as free people and were entitled to the above mentioned privileges three generations later. It was reported that several myriads were thus freed in 1810 because of the above mentioned regulation. For details, see Ch'ing Shih-lu, Shih-tsung, 56, 27b-28b; Jén-tsung, 223, 25a-b; Ch’ing hui-tien shih-li, ch. 158; Hu-pu tsé-li, 3, 27a-b; Ching lit li, 8, 8a-b; 27, 50a-62b; Shuo-t'ich 2hk, third year of Tao-kuang (1823), Chou Jung-fa’s case; Shuo-t'ich lei-pien #4 hk €i #4, 25, 46a-52a; Hsing-an hui-lan, 7, 36a-38a, 42b-43a, 442~-45b; Hsiieh-chéng ch’tan-shu, 43, 292-30a; Tu li ts’un i, 9, 22b-24b. 8 Liao shih, 20, 3b; Yaan shih, 81, 9a; Yuan tien-chang, 31, 15b; Ming shih, 3, 9a; Hsiieh-chéng ch’tian-shu, 43, 1a ff. ® A slave, even if he had been manumitted, was not allowed to participate in the government examinations. It was regulated in the Ch’ing dynasty that only the descendants of the third generation after the manumission of a slave (which had been reported to the government by the master) were entitled to this privilege (Ching lili, 8, 11a; Hstieh-chéng ch’tian-shu, 43, 7>-8a; 2tb-22b; 242-26a; Li-pu tsé-1i, 60, 11a-12a; Hsing-an hué-lan, 7, 36a-38a). The same rule applied also to the shih-p'u of Anhui Province (see above, note 4). The children of prostitutes, actors, and government runners also were not allowed to participate in the ex-

aminations; any member of such a family who entered for an examination or purchased an official title would be dismissed and given one hundred strokes (Ch'ing lit li, 8, 6b; Li-pu tsé-li, 60, 6a-b, ob; Hsiieh-chéng ch’iian-shu, 43, 1a, 4a, 5a-b). Although the yieh-hw of Shansi and Shensi, the kai-hw of Kiangsu and Anhui, the fo-min of Chekiang, and the tan-hu of Kwangtung were removed from the category of “mean’’in 1723, 1729, and 1730respectively, they werestillnotallowed to participate in the examinations immediately. It was regulated that their descendants could have the privilege of participating in the examinations only after the elapse of four generations from the change of occupation (which fact had been reported to the government) and only in case none of the close relatives had been engaged in any ‘mean’ occupation (Ch’ing shih-lu, Kao-tsung, 886, 7a-b; Ching hui-tien, ch. 17; Ch'ing hui-tien shih-li, ch. 158; Hu-pu tsé-li, 3, 27a; Li-pu tsé-li, 60, 92; Hsiteh-chéng ch’tian-shu, 43, 42-52; Tu li ts'un i, 9, 11a).

SOCIAL CLASSES “mean’’ people formed a caste more than a

very slight.

133 class. Class mobility was

It is most important to realize that the objective criteria of wealth and income, which are decisive factors in a capitalist society, did not play an equally decisive role in traditional Chinese society. A merchant

might be wealthier than an official, but the social status of the latter

was much higher.’ The status of a commoner-landlord was inferior to

that of an official-landlord,® even if the former owned more land.® But the status of a commoner, whether he owned landed property or not, was raised if he became a degree holder or official.1° Thus wealth did not correspond to status. To use Max Weber’s terminology, the social order was primarily based upon status (Stand) situation instead of class (Klasse) situation.2 What then determined status if not mobile property or land? From the above three major categories we can see that there was a close correlation between occupation and stratification. Mental labor had for centuries been considered more important than physical labor. And mental labor referred to the study of literature and the classics, a type of edu-

7 This was the reason many wealthy merchants purchased an official title to obtain prestige and protection. * A quotation taken from Dr. Fei Hsiao-t’ung’s article may illustrate the point. He writes: ‘The few successful upstarts when they have obtained wealth will buy

land and insinuate themselves into the leisure class. They are looked down upon and looked at with a prejudiced eye by the gentry. Only gradually and especially by means of affinal alliance are they admitted into the upper layer of the social structure. Not until one of the family members enters into the scholar group and into officialdom is their position as gentry consolidated’? (Hsiao-t’ung Fei, “Peasantry and Gentry: An Interpretation of Chinese Social Structure and its Changes,” American Journal of Sociology, LIL, no. 1 (July, 1946), p. 11). Now if landed property and leisure are qualifications for gentry, why are the upstart landlords “‘looked down upon” by the gentry? Why are they “admitted” into the gentry group only when there is an affinal alliance? Why is their position in the gentry “consolidated” only after one of the family members enters into the scholar group or officialdom? Does this not mean that alliance, and particularly membership in the scholar group or officialdom, are more crucial qualifications than landed property and leisure? ® It was remarked in an early Ch’'ing source that a Hao gf family in Huai-jou 493 A County owned ten thousand ch'ing jj (one million mou) of land (Chaolien ff #3 Hsiao-t'ing hsit-lu ty HE B¥ BE, 1, 64a). 10 Episodes which reflect the general attitude in society are found in the satiric novel, Ju-lin wai-shih (The Scholars, trans. by Yang Hsien-yi and G. Yang, Peking, 1957).

11H, H. Gerth and C. W. Mills, From Max Weber; Essays in Sociology (New York, 1946), 181 f.; A.M. Henderson and T. Parsons, Max Weber: The Theory of Social and Economic Organization (New York, 1947), 424-429.

134

SOCIAL CLASSES

cation that required many years of concentrated training. Such knowledge was highly valued because it constituted the basic qualification for civil administration. In fact, the ultimate purpose for engaging in literary study and mental labor was to govern. The need for their services in the bureaucratic structure brought them the highest reward and the greatest prestige.!? Thus both the scholars who were pursuing their literary studies and the officials who were actually running the

administrative machine had a superior status, but the status of the officials was the higher because of their direct participation in the

government.

On the other hand,

the work of farmers,

artisans, merchants, etc.

was considered physical work, and their statuses were therefore inferior. The occupations of prostitute, entertainer, government runner,

slave, etc., which were merely to serve or entertain others, were consid-

ered non-productive and as making the least contribution to society. They were therefore placed lowest on the prestige scale. When a commoner became an entertainer or a government runner, he immediately fell into the “mean” category, and this entailed a new style of life and

the loss of all privileges associated with commoners. Certain families

tuled that any of their members who chose to become an actor, prostitute,

or government

runner

should

be

expelled

from

¢sy, since

the

engaging in any of these occupations was considered a serious disgrace to the whole group.!* In short, status was to a large extent determined

by occupation. And style of life, which is a basic criterion of social status as pointed out by Max Weber," was also determined by occupation, as were certain privileges and restrictions. However, further analysis reveals that another factor is even more

important than occupation. The sharp line that was drawn between the officials (the ruling class) and non-officials (the governed) immediately suggests that there was a close correlation between power structure and the class structure. In other words, the bureaucracy was the source of prestige and privileges, and persons permitted to enter the bureaucracy had the highest status and enjoyed the greatest privileges. The officials therefore occupied the top stratum in the society. The scholars were inferior to them because they were not an active part of the power

1 This point has been keenly observed by Max Weber who remarks that “social rank in China has been determined more by qualification for office than by wealth” (Gerth and Mills, op. cit., 416). Also see his discussion on the prestige of the literati and officialdom (ibid., 434 ff.). 1 For example, see Yiin-yang Chang-shih liu-hsiu tsung-p'u 3 Wh He Je 7s 1

SF 23WY, 3, 22b. 2

2

¥ Gerth and Mills, op. cit., 187, 193; Henderson and Parsons, op. cit., 429.

THE STYLE OF LIFE

135

structure and thus still belonged to the governed. They were, however, superior to other commoners since they were potential candidates for membership in the bureaucracy. And if a scholar was able to become a possessor of a degree under the examination system he would have a status superior to that of a scholar without a degree because he was a step closer to the power structure than the ordinary scholar. The “‘mean”’ people, who were permanently barred from entering the bureaucracy, had, as noted above, the most inferior status in the society. The scale of prestige reflects the scale of power. 1. The Style of Life

Men of different social status in a capitalist society may buy the same things and live in the same way; or a man of superior status, who is not wealthy or who prefers to live simply, may have a lower standard of living than one who is his social inferior. Such behavior is not thought to disturb the social order and nothing is done about it. In such a society there is no legal restriction on consumption. The situation in Chinese society prior to 1912 was the exact opposite.

Consumption was positively correlated with status, and a man’s status determined his standard of living. It was recommended in the Kuantz% that restrictions be placed, in accordance with status, on food, clothing, housing, domestic animals, attendants, boats, carriages, and utnsils; that during life there should be differences in hats, clothing,

salaries, land and houses, and after death in coffins, funeral clothes and

graves.15 The Hsin-shu also remarked that since the statuses differed there should be differences in titles, power, salaries, flags, hats, shoes, clothing, belts, ornaments, carriages, horses, wives, houses, beds, mats, utensils, food, drinks, sacrifices, and funerals. Thus “‘by looking at a man’s dress it can be seen whether he is noble or humble, and by looking at a man’s flag, his power can be ascertained.” In such a society property alone did not give prestige nor did it guarantee the right to consume. A man of superior status might be unable to possess something to which he was entitled because he lacked the wherewithal to buy it, but a wealthy man was not permitted to possess goods to which his status did not entitle him.”

® Kuan-tei $f f-, 1, 14a. For Kuan-tzit and the text see p. 242, note 88.

18 Hsin shu $f BE, A, 28a-20a. For a discussion on the authenticity of the text, which is attributed to Chia I pf aff (cf. p. 250, note 134), see Ku-chin wei-shu k'ao, 38b-30a; Ku-chin wei-shu k'ao pu-chéng, 265-266. 17 Kuan-tati, 1, 14a; Han shu, 10, 13b.

SOCIAL CLASSES

136 Different

styles

of life, corresponding

to different

statuses,

were

regarded as prerequisites for maintaining the social and political order ;8 and an administration was judged good or bad according to its success

in maintaining these differences.” From time to time imperial edicts warned those who had violated the regulations concerning dress and ornament. Many officials also memorialized, asking for investigation of such violations, since they were considered dangerous to the social order. For this reason, these regulations were not only set down in the ki if, the patterns of behavior which distinguished the noble from the humble (see Chapter VI) and which were enforced by education, ethics, custom, and social sanction, but they were also incorporated in the law.

Obviously these sumptuary laws and the penalties meted out in case of

violation served to guarantee that the privileged status group could enjoy exclusively a particular style of life and that it would not be

threatened by a propertied class.

Food

Food was strictly regulated in the feudal period. Differences in permitted consumption are mentioned both in the Kuan-tzit and the Hsin shu.*! According to the Kuo yii, beef, mutton, and pork, were to be eaten by an emperor, beef by the feudal lords, sheep by the ch’ing #, pork by the ta-fu % %, fish by the shih —£, while vegetables were the

food of the common people. An official was known asa “‘meat-eater,’”°% and the Book of Odes says, ‘“We gather the t’u plant ...; we feed our

husbandmen.’”4 Except in old age the commoner seems seldom to have had meat.® After the collapse of feudalism, such regulations, however,

were no longer invoked.

Tso chuan chu-su, 5, 9a; Legge, Chinese Classics, V, Pt. 1, 40; Couvreur, Tso Tchouan, I, 71. ¥ Shih Hui +- @, who advised against an attack on the state of Ch’u because its government was well-ordered, underlined his point by remarking, ‘Officials and the common people have different dresses to distinguish them. The nobles have a standard of honor; the mean have to comport themselves according to different degrees. Thus are the rules of propriety observed in Ts'0o [Ch'u}” (Tso chuan chucst, 23, 4a; Legge, Chinese Classics, V, Pt. I, 317; Couvreur, Tso Tchouan, I,615). ® Han shu, 10, 13b—14a; 48, 14a-b; Dubs, op. cit., II, 408-409. 2 Kuan-tzi, 1, 14a; Hsin shu, A, 28b. Kuo yit, 18, 3a-b. * Tso chuan chu-su, 8, 13a; Liu Hsiang $j fa], Shuo yitan i jj, 11, sb-6b. % Mao shih chu-su # #¥ 7: if, 8 (1), 1b; Bernhard Karlgren, The Book of Odes (Stockholm, 1950), p. 90; cf. Legge, Chinese Classics, IV, Pts, 1-2, The She King or The Book of Poetry (London), Pt. 1, 231. * Mencins once remarked that a commoner might eat meat at the age of seventy if his family raised pigs and fowl (Méng-tzii chu-su, 1A, 4b, Legge, Chinese Classics II, 7).

THE STYLE OF LIFE

137

Clothing and Ornament Dress and ornament were important indications of status. Official garments varied in design and color according to the official’s rank.2¢ They were worn at the imperial court and in the course of official duty, at wedding ceremonies and sacrifices, and at less formal family gatherrings.*” Furthermore officials who had retired or resigned were allowed to

wear

their

official

garments,

and

the

corpse

could

be

so

clothed at burial. Certain colors were reserved for official garments, others for those of the common people. Within these categories preferences varied from dynasty to dynasty, but once the line of demarcation was defined, it could not be overstepped. In the Han dynasty, blue and green were the colors of the common people.*® During Sui, T’ang, and Sung purple, scarlet, green, and blue were reserved for officials with rank,” officials without rank and commoners being forbidden to use them. In 674, this regulation was reenforced by an edict because many unauthorized persons were wearing these colors under their outer garments.*! During Sui white was worn by the common people.*? In

T’ang times officials without rank and commoners wore only yellow

and white.** In the Later T’ang dynasty (907-923) the common people

and merchants wore only white.*t Throughout Sung the common people wore white, but later in this period officials without rank, those

who had passed the civil examinations, and the common people were all allowed to wear black.** In Ming times the male commoners were permitted to wear garments of various colors but not yellow. Women of this class might wear purple, green, peach, and other light colors, but not scarlet, blue black, or yellow. Their formal dresses might be

dyed purple.2*

As merchants were usually considered inferior to the common people,

the color of their clothing was sometimes specially regulated. Slaves,

servants,

actors, prostitutes,

and government

runners being ‘‘mean”

people and not on the same level as the common people, were differen-

% For details consult Sui shu, ch. 11, 12; T’ung tien, ch. 61, 108; Chiu T'ang shu, ch. 45; Hsin T’ang shu, ch. 24; Sung shih, 152, 11b ff.; 153, 1a ff.; Yuan tien-chang, 78, 11a ff.; Ming hui-tien, 61, 32a ff.; Ming shih, 67, 2a ff.; Ch'ing hui-tien, ch. 29. 28 Ming hui-tien, 61, 34b; Ch’ing hui-tien, ch. 20. 2 Shui, 4, 6a. * Han shu, 10, 14a; Dubs, op. cit., IT, 409. % For details see Chiu T'ang shu, 45, 13a; T’ung tien, 61, 349; Wang P'u =F jf, Trung hui-yao ff @ BE, 31, b-7a; Sung shih, 153, 2b-3a. % Chiu Tang shu, 45, 13a 1 Tang hui-yao, 31, 0b-7a. 3 T’ung tien, 61: 350; Chiu T’ang shu, 45, 13a; T'ang hui yao, 31, 12a. 4 Wu-tai hui-yao, 6, 17. 8 Sung shih, 153, 13a; Yen ii moulu,1,11b-12a, % Ming hui-tien, 61, 37a-38a.

138

tiated from all others.

SOCIAL CLASSES

In Han times dark-green-head*” and white-

robe®8 were outfits for slaves. In Sui times black was worn by butchers

and merchants.*® In T’ang times male and female slaves wore yellow and white, but female slaves wore also blue and green. In Yiian times prostitutes wore black-purple dresses and the males in their families bound their heads with a blue scarf.4t In Ming times actors wore a green scarf, musicians only bright green, pink, jade, peach, and teabrown with red or green belt, and singing girls wore black vests. Government runners at first wore black robes, later light blue.t® In Ch’ing times slaves, actors, and runners were

not permitted

to wear stone-

blue. The material from which the clothing was made, also differed according to statuses. Brocade, embroidery, and all varieties of fine silk were considered particularly beautiful and only certain persons were permitted to wear them. Han merchants, who were held in low esteem, could not wear silk.*4 Rough serge was the material for the lower class.45 During T’ang only officials with rank were allowed to wear fine silks*® (ling and lo); the common people and slaves wore ordinary and coarse

silks (ch’ou and chiian) and hempen cloth.47 In the Sung dynasty these

latter wore clothing made of hempen cloth. In mon people and musicians were allowed to wear ling and lo) and wool.** Government runners were ordinary and coarse silks (ch’ou and chiian).™ In

Yiian times the comfine silk (yii, ch’ou, allowed to wear only Ming times the com-

mon people were allowed to wear ch’ow, chiian and plain gauze silks, but not brocade, i, yi, ling, or lo silks, The use of gold-embroidery and shiny materials was strictly regulated; those who violated the restrictions were punished and the offending garment was confiscated. Among

% The term ts'ang-t’ou P¢ yfi, dark-green-head, was applied to slaves because they wore dark-green headdresses (cf. Méng K’ang’s 3: HE note: Han shu 72, 26b; Wei Hung jy 42, Han chiui i (8 (§, B, 4a). 3 fy 4x. See Yen's note: Han shu, 72,20b. © Chiu T’ang shu, 45, 13a. © T'ang hui-yao, 31, 15. “Yuan tien-chang, 29, 8b; T’ung chih Piao-ko, 9, 4a-5a. 42 Ming hui-tien, 61, 37b-38a, 30b. 48 Ching tung li, 53, 31a. Han shu, 1B, 11b; 24B, 3a; Dubs, op. cit., I, 120. 48 Shih chi, 100, 1a; Han shu, 37, 1a. “® As it is impossible to find exact equivalents for the various names given to Chinese silks, we consider it inadvisable to try to follow the original Chinese terms We have classified silks and translate as follows: ing $f, lo $8, i #4), and hu as “fine silks,” and ch'ou {i “ordinary silk,” and chiian #4, “‘coarse sill.” “Cf, Tung tien, 6x: 350; Chiu T'ang shu, 45, 13a; Hsin T'ang shu, 24, 92. 48 Yen ii mow lu, 1, 11b. © Yiuan tien-chang, 29, 3b; T’ung chih t'iao-ko,9, 3b-4a; Yitan shih, 105, 17a. % Vian tien-chang, 20, 4a; Yiian shih, 105, 17b.

THE STYLE OF LIFE

139

the four classes of the common people only farmers could wear ordinary

and coarse silks (ch'ou and chiian), gauze, and cotton. Merchants wore only coarse silks (chiian)

and cotton. Furthermore, if a member

of a

farming family was a merchant, none of the family could wear ordinary silk (ch’ou) or gauze. In Ch’ing times the common people were allowed to wear all kinds of silks (ysi, ding, lo, ch’ow, chtian) and plain gauze, but

could not wear golden and embroidered material; their women could

not ornament their dresses with gold government runners wore only chien silk and cotton mixtures, wool, hemp and Tsoist monks in Ming and Ch’ing

thread.? Slaves, servants, and ch’ou (a kind of Shantung silk), cloth, and so cotton.5? Buddhist times were allowed to wear only

ordinary and coarse silk (ch’ou, chiian), and cotton.54

Regarding furs, the Kwan-tzi says that artisans and merchants were

not to wear long-haired sable :5° the Ch’un-ch’iu fan-lu says, “They dare not wear fox or badger.’’** During the time of Ming Wu-tsung (1506-

1521) merchants, officials without rank, servants, prostitutes, actors,

and all “mean” people were forbidden to wear sable.5? During the Ch’ing dynasty the wearing of furs was regulated in great detail ac-

cording to the rank of the wearer. Black fox was the fur for princes and dukes. Officials below the fifth rank could not wear sable or lynx; those

below the eighth rank could not wear white leopard or the fox of the

steppes. Civil officials below the fourth rank and military officials below the third rank could not wear green sable. Slaves, servants, actors, and government runners could wear only badger or lamb; their winter hats could be only of fox, badger, or beaver.® Hats also were regulated. In Yiian times the common people could not decorate their hats with gold or jade.® Officials without rank and the common people, during Ming, could not wear hats with buttons on top, and all decorations had to be in crystal or sandalwood. Cap rings could not be of gold, jade, agate, coral, or amber. In Ch’ing times the button on top of the hat could be worn only by officials with rank and holders of degrees who had passed the civil examinationsi.®' Even rain

51 Ming hui-tien, 61, 37b, 308. _—®* Ch'ing hui-tien, ch. 29; Ching lit li, 17, 332 82 Ch'ing lit li, 7, 30b-31a, $4 Ming lit li, 12, 19a-b; Ch'ing lit li, 17, 36a. 53 Kuan-tati, 1, 14a. 8° Ch'un-ch'iu fan lu 4g Kk GE BE, 7, 16a. For a discussion of this work, which is attributed to Tung Chung-shu 4 {ih 4 (cf. p. 250, note 131), see Ku-chin wei-shu k’ao, 43b-44b; Ka-chin wei-shu k'ao pu-chéng, 301-305. 88 Ch’ing hui-tien, ch. 29; Ch’ing li li, 17, 33a. 57 Ming hui-tien, 61, 38b. %® Yuan tien-chang, 29, 3b; Yan shih, 103, 17a. © Ming hui-tien, 61, 37b. 8 Ch'ing hui-tien, ch. 29; Ching li li, x7, 34b-35a: Boulais, of. cit., 390-301.

SOCIAL CLASSES

140

hats were regulated.* The common people were not allowed hats with large tasselled knots.** During T’ang women in the families of officials without rank common people were not permitted to wear boots or shoes of colors. In Yiian times the common people were not permitted

to wear and the certain to have

designs on their boots. In the early days of Ming T’ai-tsu common

people could neither have designs on their boots nor decorate them

with gold thread. In 1379 the common people, government runners, merchants, physicians, and diviners were ordered to wear only leather

boots; officials, their fathers, brothers, paternal uncles, brothers’ sons,

and sons-in-law alone could wear satin boots.** Moreover, in no dynasty could the common people wear ornaments of jade, gold, silver, and t’ou-shih (a kind of yellow brass which resembled gold). In the T’ang dynasty these were permitted to officials with rank while the common people could wear only copper and iron. In Sung times officials with rank could use jade, gold, silver, or rhinoceros horn on their belts, while the common people and the officials

without

rank,

artisans,

and

merchants

could use only copper,

iron,

chiao-stones, or black jade for decoration.®* A woman’s status depended upon the status of her father before marriage and, after marriage, upon that of her husband or son.

The mother or wife of an official became ming-fu and was entitled to

wear official garments, which varied according to the rank of the husband or son, at weddings and other occasions.®? The ordinary dresses and ornaments of these women differed also from those of the wives of the common people. In 732 mothers or wives of officials were ordered to dress in accordance with the rank of their husbands or sons; those above the fifth rank were to wear purple, those above the ninth rank scarlet. In Yiian times the mothers and wives of the officials of the first, second, and third ranks wore gold dresses, of the fourth and fifth ranks gold vests, and of the sixth, seventh, eighth, and ninth ranks spangled-gold vests. The women-folk of the common people could don

no such clothing.

© Ching lu li, 17, 35a-b. *3 Ching t’ung li, 53, 20b. * T'ang hui-yao, 31, 8a-b; Yizan tien-chang, 29, 3b; T’ung chih t’ia0-ko, 9, 3b; Ming hui-tien, 61, 37b—38b. © Tung tien, 61: 350; Chiu T'ang shu, 45, 13a; Hsin T'ang shu, 24, 9a. 8 Cf. Sung shih, 153, 4a; Yen i i mou lu, 1, 11a. © See T'ung tien, 108: 570; T’ang Hsitan-tsung ff d 424, T’ang liu tien fA 5s I, 4, 10b; Chiu T'ang shu, 45, 15a-b; Ming hui-tien, 61, 35b. ® T’ung tien, 108: 370; Chiu T'ang shu 45, 13a; Hsin T’ang shu 24, 1b; T'ang hui-yao 31, 8a. © Yuan tien-chang, 20, 3a; Yiian shih, 105, 16b.

THE STYLE OF LIFE

14t

Jewels also accorded with a son’s or husband’s rank. Gold, pearls,

and jade were worn exclusively by the mothers and wives of officials. ‘Woman commoners, no matter how wealthy their family, were forbidden to wear them. In Sung times women of the common people were forbidden to ornament their dresses with spangled gold, splashed gold, or pearls. Only the mothers and wives of officials were permitted to wear gold and pearl ornaments.” In Yiian times the mothers and wives of officials from the fifth rank up could wear ornaments of gold, jade, and pearls; from the sixth rank down they could wear gold ornaments, but could use pearls only for earrings. The women of the common people could have a chrysoprase hairpin, a gold hairpin and earrings of gold, pearls, or green-tien; all other ornaments had to be of silver.7! In Ming times the mothers and wives of officials of the first and second ranks could wear gold, pearls, chrysoprase, and jade; those of the third and fourth ranks gold, pearls, and chrysoprase; of the fifth rank, gold and chrysoprase; from the sixth rank down gold-washed silver and pearls. The women of the common people could wear head ornaments of goldwashed silver, gold or pearl earrings, and silver bracelets;7* any ornament made of precious stones or pearls was confiscated.” In Ch’ing

times women of the common people could possess only one gold hair

ornament and one pair of gold earrings; others had to be of silver or chrysoprase, and if a woman of the common people violated the law in these matters the family head was punished and the illegally worn ornament confiscated.7* Houses

The size, the number of rooms, the design and the decorations of houses were regulated for the nobles, officials, and commoners. Moreover, their houses were differently designated ; residences for the nobles, fu ti HF 85, for officials, kung-kuan Z fii} or chai “€, for the common people, chia %.7> People of the present day still say chai in the north of China and kung-kuan in the south. The number of chien”* in a row was regulated in every dynasty. In T’ang times, officials of the third rank and above could not have a hall

of more than five chien in a row and a front gate of more than

three

chien; officials of the fourth and fifth ranks could not have ahall of more Sung hui-yao, ts'é 44, yu-fu HM AR 4, Ob-7a; Sung shih, 153, 13a-b, 15a.

11 Yuan tien-chang, 29, 3a; T’ung chih t’iao-ko, 9, 2a-b; Yuan shih, 105, 16b-17a.

72 Ming hui-tien, 61, 38b—39a; cf. Ta-Ming ling, 21b-22a,

78 Ming lii li, 12, 18b-19a.

7 Sung shih 154, 19a.

74 Ch'ing li li, 17, 30b-33a.

78 According to Chinese usage, the space between two beams is called a chien [ji].

SOCIAL CLASSES

142

than five chien in a row and a front gate of more than three chien; of-

ficials of the sixth rank and below could not have a hall of more than three chien in a row and a gate of more than one chien.7? In Ming times, a duke or marquis could have a front hall of seven or five chien with two side rooms, a center hall of seven chien, a back hall of seven chien, and a front gate of three chien; officials of the first and second

ranks could have a hall of seven chien with a front gate of three chien;

officials of the third, fourth, and fifth ranks could have a hall of five

chien and a front gate of three chien; officials of the sixth, seventh, eight, and ninth ranks could have a hall of three chien and a front gate of one chien.’8 In Ch’ing times officials of the first and second ranks could have a hall of seven chien and a front gate of three chien;

the halls of officials of the third rank and below were regulated

as in

the Ming law.79 In all dynasties, a commoner’s house could have only

three chien in a row with a front gate of one chien.8° Therefore, no matter how wealthy a commoner might be and no matter how many

houses he might own, the hall in no one of them could exceed three

chien. This was clearly explained in the In T’ang times only officials could In Ming times officials of the fifth rank tiles on the roof ridge.** In Yiian times,

edict of 1397." use tiles with animal designs.%? and above used animal-figured if a man of the common people

decorated his roof ridge with animal-figured tiles, he was given thirty-

seven strokes, the mason twenty-seven.* In Ch’ing times the officials of the first and second ranks could decorate the ridges of their houses with animal-figured

tiles; those of the third, fourth,

with plain tiled animals.8*

and fifth ranks

Only in the houses of officials of rank could the beams, tow-kung,8* and rafters under the eaves be decorated with colored paintings. In Ming times, dukes and marquises could paint them in various colors;

officials of the first through the fifth ranks blue and green; officials of the

% T'ang liu tien, 23, 8b; Hsin T'ang shu, 24, 12b; T'ang hui-yao, 31, 14b-15a; Niida Noboru {= Jf [H] WE, Torya shai fle Ay $8 Wt, 803. %8 Ta Ming ling, 20b-21a; Ming hui-tien, 62, 4oa-b. Ching lii li, 17, 30a-b. © Hsin Tang shu, 24, 12b; Sung shih, 154, 19b; Ta-Ming ling, 21a; Ming huitien, 62, 4ob; Ch’ing lit li, 17, 30a-b; Niida, Tary6 shiii, 803. 8 Ming hui-tien, 62, 4ra. ® Hsin T'ang shu, 24, 12b, *8 Ta-Ming ling, 20b; Ming hui-tien, 62, 4ob. ®1 Yuan shih, 105, 19a. 89 Ch'ing li li, 17, 30a-b.

* Tou-hung ‘|. kis a peculiarly Chinese architectural feature. It consists of pieces of wood placed on the pillars as a support for the roof and arranged in such a way as to provide decoration. For detailed description, see Liang Ssti-ch’éng HZ HB WM, Ch’ing-shih ying-tsao tsé-Ui fh Ke BE so Fl Gi, 24 fhe

THE STYLE OF LIFE

143

sixth through the ninth ranks earth-yellow.”” In Ch’ing times the regulations governing officials were similar to those under Ming. In each dynasty the common people were prohibited from painting their beams in color.§* In T’ang times officials of the fifth rank up could have a bird’s head knocker on the gate.°° In Ming times, dukes and marquises had goldcolored gates with animal-head tin knockers. First and second rank officials had green oil-painted gates with animal-head tin knockers; third, fourth, and fifth rank officials had black oil-painted gates with animal-head

tin knockers;

and the sixth, seventh,

eighth

and

ninth

ranks had black gates with iron knockers.*! In Ch'ing times the first and second ranks were permitted animal-head copper knockers; others continued as before.*® The common people could have only undecorated

gates.

In several of the dynasties lances were also an index of rank.

In

T’ang times, an official of the third rank and above could display lances before his gate; the number varied from ten to sixteen. In Sung times lances were displayed before governors’ offices, as well as before the private residences of certain high officials. In the Chin dynasty (936-947) it was decreed in 938 that officials of certain ranks might, as a special honor, display lances before their gates.°%* Obviously a

passerby could tell the status of a house-owner by merely looking at the

ornamentations on his gate and tiles.

Distinctions were also made in minor items of decoration. In Yiian, Ming, and Ch’ing times, officials of the first, second, and third ranks

were permitted to have fine gauze curtains embroidered with gold flower designs; those of the sixth rank and below, plain fine gauze; the common people, coarse silk.% In Ming times officials of the first rank through the fifth could make their mattresses and comforters of fine hempen cloth, brocade, and embroidery; those from the sixth through the ninth, of fine silk gauze, ordinary silk, or coarse silk; the common people, of ordinary silk, coarse silk, or cloth. In Ch’ing times for offi-

cials of the first rank the seat cushion could be of wolf fur in winter and

red pueraria cloth in summer; for the second rank, jackal fur in winter and red serge with a black hem in summer; for the third rank, badger

88 Ch'ing lit li, 17, 30a-b. 8? Ta-Ming ling, 20b-21a; Ming hui-tien, 62, 40b. % T'ang hui-yao, 31, 152; Sung shih, 154, 19b; Ta-~Ming ling, 21a; Ming hui-tien, ® T'ang hui-yao, 31, 14b. 62, 40b; Ch’ing lit li, 17, 30b. 1 Ta-Ming ling, 2ob-21a; Ming hui-tien, 62, 4ob.

9% Ch'ing la li, 17, 30a-1

% T’ang hui-yao, 32, 7b-Sa.

% Sungshih,154, 19a-b. % Wu-tai hui-yao, 6, 17b. % Yuan tien-chang, 29, 3a-b; Ta-Ming ling, 22b; Ming hui-tien, 62, 42b. 27 Ming hui-tien, 62, 42b.

144

SOCIAL CLASSES

fur in winter and black pueraria cloth with a red hem in summer; for

the fourth rank, goat fur in winter and black cotton in summer; for the

fifth rank, lamb fur in winter and blue cotton in summer; for the sixth

rank, black lamb fur in winter and dark brown cotton in summer; for the seventh rank, deer skin in winter and grey cotton in summer; for the eighth rank, doe skin in winter and native-made cotton in summer;

for the ninth rank, otter skin in winter and cotton in summer.®

Gold and jade utensils were used exclusively by the imperial family.

In Sung times only officials (third rank and above) and members of the imperial and consort families could use utensils with gold corners; silver ware could not be gold-plated or covered with tortoise shell; solid gold food or wine sets could not be used by officials except when

they were gifts of the emperor.” In Yiian times officials of the first, second, and third ranks used gold or jade for their tea or wine utensils; those of the fourth and fifthranks only gold cups; from the sixth rank and below only gold-plated cups. All other utensils were of silver, but

the common people could use silver only for the wine In the Ming dynasty, dukes, marquises, and officials second ranks used gold only for wine pots and cups, being of silver; officials of the third, fourth and fifth cups, but silver for their wine utensils;

pot and cups.!° of the first and all other utensils ranks used gold

those of the sixth,

seventh,

eighth, and ninth ranks used silver for their wine utensils, all other

articles being of porcelain or wood without any gold decoration; the

common people used tin wine pots and silver cups, all other articles being of porcelain or lacquer. Both in Ming and Ch’ing times the common people, Buddhist and Taoist monks, were forbidden to use gold-decorated furniture, gold or silver wine utensils, one piece, how-

ever, being excepted. Carriages

The means of communication as well as their decorations indicated the status of a rider. Generally speaking, officials belonged to the class using carriages or saddle horses, while the common people walked or

used vehicles of basically different design. When Yen Yiian fi Yi (sixth and fifth centuries B.C.), Confucius’ most admired pupil, died,

his father asked that Confucius’ carriage be used as an outer coffin for his son. Confucius answered, ‘Because, having followed in the rear of

% Ch'ing hui-tien, ch. 29; Ch'ing t'ung li, 53, 16a ff.

% 1 191 102

Sung hui yao, ts'é 44, yi-fu 4, 6b; Sung shih, 153, 14b-15. Yuan tien-chang, 20, 3a; T’ung chih t'iao-ko, 9, 2b, 3b. Ta-Ming ling, 23b; Ming hui-tien, 62, 42-430. Ming lit li, 12, 18b; Ch'ing lit li, 17, 32b.

THE STYLE OF LIFE

145

the great officers, it was not proper that I should walk on foot.’ Several tens of carriages followed Mencius’ carriage when he went

out.

Certain people were not permitted to use carriages or horses. Merchants in Han times could not ride in a carriage nor on horseback. In T’ang times artisans, merchants, common people, and Buddhist and Taoist monks could not ride on horses; two edicts in 667 and ca. 827835 reenforced these regulations.!* ‘‘Mean” people were never per-

mitted to ride. In Yiian times the families of prostitutes were forbidden to ride in a carriage or on horseback. Sedan chairs were rarely used in ancient China. In T’ang and Sung times, the sedan chairs of nobles and high ministers, which were kept

in the office of the /’ai-p’u K f€, were only taken out at the time of a

ceremony. For ordinary comings and goings, horses were ridden, and so highly placed a person as a prime minister was no exception. When

Wang An-shih -£ & i (1021-1086) was presented with a sedan chair

in Chin-ling, he said angrily, ““Why use a human being instead of an animal?” It was regulated in 840 that the top officials in the central government and retired officials were permitted to ride in sedan chairs when they were sick, and that officials of the third rank and above and division inspectors when sick could ride in sedan chairs for a short time. In Sung times officials who held provincial posts were permitted more latitude in the use of sedan chairs. In the capital where the sovereign resided the officials had to ride on horseback. Only high officials and nobles of the imperial family who were old and therefore unable to ride a horse were permitted to use sedan chairs. Thus Ssii-ma Kuang was given special permission by his sovereign to use a sedan chair to the palace when he was prime minister and too old to ride horseback. This was the rule until the Sung dynasty moved to the South, and then because the stone roads in the cities were too slippery for riding on horseback, the emperor permitted all officials to use sedan chairs. In Ming times only officials of the third rank and above could

192 Lun yit chu-su, 11, 2a; Legge, Chinese Classics, I, 103. 14 Méng-tzii chu-su, 6A, 4b; Legge, Chinese Classics, II, 145.

105 Han shu, 1B, t1b; 24B, 3a; Ssit-ma Piao

39, 1ob; Dubs, of. cit., I, 120. 16 Hsin T'ang shu, 24, 12b;

7] JK jz,

Hsit Han chih RUE,

T'ang hui-yao, 31, 11a, 15b.

197 Yuan tien-chang, 29, 4a; Yiian shih, 105, 17. 108 Chiu T’ang shu, 45, 4a; Hsin T’ang shu, 24, 2a, 12b; T’ang hui-yao, 31, 17b18a; Sung shih, 150, 4a-b; Chao Yen-wei fi 38 fj, Yun-lu man-ch'ao 22 $8 WB Bb, 7, 6b; Nan-pu hsin-shu, wu pe, 8a; Li Hsin-ch’uan 4 fy (Qj, Chien-yen i-lai ch'ao-yeh tsa-chi iat 38 VAG 4h BF HE #2, chia chi HA He, 3, toa-b; Chu Kuo-chén Az A Hi.

Yung-ch'uang

hsiao-p'in

Wh tie 2}. fh, 15, 39d;

Yen yu-hsi fie 4y jit,

Shu- hua sui-pi jk HE RG Ye, 1, ob-10b; Kai yi ts'ung-k'ao, 27, 272 fi. 30

146

SOCIAL CLASSES

use sedan chairs in the capital; those of the fourth rank and below rode horseback. In other provinces all officials, high and low, rode horses;

military officials were forced to do so lest they forget the technique of riding. In Ch’ing times all military officials were expected to ride on horseback, but the ¢’i-tw, the provincial commanders in chief and the tsung-ping, the brigade general, usually rode in sedan chairs. Civil officials, both high and low, also rode in sedan chairs. It was also reported that even subordinates without rank usually used them.4? In T’ang and Sung times the common people were not allowed to ride

in sedan chairs. In T’ang times the aged mothers and wives of petty officials and merchants, rode in a rush mat-covered vehicle or in a simple bamboo chair without cover or decoration." Common people in Sung times rode in ox-carts and bamboo chairs, women on sedan chairs. Since Yiian the common people had been allowed to ride in

sedan chairs when they were old or sick. Although persons belonging to different groups or classes were permitted to ride in sedan chairs, carriages, and on horseback, the struc-

ture, color and decoration of the vehicle or the trappings of the horse

differed according to the status of the rider. In Han times an official of two-thousand-bushel rank had a carriage with two scarlet screens, whereas an official of one-thousand or six-hundred bushel rank had only one scarlet screen on the left side. A black silk cover was used by

officials of one-thousand-bushel rank and above, a black cotton cover

by officials of three-hundred-bushel rank and above, anda whitecotton cover by officials of

two-hundred-bushel

rank

and

below."

In the

Northern Ch’i dynasty the carriages and horses of officials of first and second ranks were decorated with gold or silver; those of the third rank with silver; those of officials of the fourth through the seventh ranks

with brass and side curtains only. In Sui times officials of the third

rank and above had full curtains for their carriages; those of the fifth rank and above only horizontal curtains, and those below the sixth

rank no curtains. The wives of the Three Ministers rode in ox-carts with scarlet silk network and purple curtains; the wives of officials from the

199 Ming hui-tien, 62, 41b; Ming lili, 12, 18a-b; Ming shih, 65, 15a-16a; Shu-hua sui-pi, 1, 10a-b; Yung-ch'uang hsiao-p'in, 15, 40a-b; Kai yi ts'ung-k'a0, 27, 29b. 1° Ch'ing shih-lu, Jen-tsung, 47, 162-17; Chung-shu chéng-k'ao ef HE Wc %, 8, 14a-15a; Ch’ing U’ung li, 54, 5b; Shu-hua sui-pi, 1, r0a-b. 41 Sung hui-yao, ts'é 44, yit-fu 4, 7a; Sung shih, 153, 13a, 15a, 16a. u2 Hsin T’ang shu, 24, 12a. 43 Sung hui-yao, ts'é 44, yi-fu 4, 5a, 7a, 9a; Sung shih, 153, 13a, 15a. 14 Ming hui-tien, 62, 41b.

48 Han shu, 5, 7a-b; Hs Han chih, 39, 10a-b; Dubs, op. cit., I, 324-325.

THE STYLE OF LIFE

147

fifth rank and above in carriages with blue curtains. In T’ang times

officials of the first rank had carriages equipped with scarlet-lined scarlet full curtains; those of the second and third ranks had carriages

with scarlet-lined blue full curtains; those of the fourth and fifth ranks

had green-lined blue curtains on the two sides of the carriage only. The

carriages or sedan chairs of the mothers and wives of officials of the third rank and above were decorated with gold or silver and were

drawn by oxen; those of the fourth and fifth ranks were decorated with brass.”

In Sung times leather-decorated carriages with red curtains

were used by officials of the third rank and above." In Yiian and Ming times the carriages and sedan chairs of officials of the first, second, and third ranks were decorated with gold and silver ch’th (a kind of dragon-

like animal)

top, embroidered

belt, and blue curtains; those of the

fourth and fifth rank officials with plain lion head tops, embroidered belt, and blue curtains; those of the sixth through the ninth ranks with

plain cloud tops, plain belt, and blue curtains. The common people could only use a black carriage with flat top and black curtains.4 In Ch’ing times officials of the third rank and above rode in sedan chairs

with silver button-finials on top, black screens and black tops; those of

the fourth rank and below rode in sedan chairs with a tin button-finial ; the mothers and wives of officials of the first rank rode in sedan chairs with a silver button-finial, black top with green hem, green cover, and

black silk screen; those of the second rank in sedan chairs with a silver

button-finial, black

top without

hem,

green cover,

and

black silk

screen; those of the third rank in sedan chairs with a silver button-finial, black top without hem, black cover, and black cotton screen;

those of the fourth rank in sedan chairs with tin button-finial, black top without hem, black cover, and blue screen; and those of the fifth rank and below in sedan chairs with tin button-finial, blue top, black cover, and blue cotton screen.!2

In T’ang times the regulations permitted the sedan chairs of the

mothers and wives of officials of the first and second ranks to be carried by eight men; those of the third rank by six men, those of the fourth and fifth ranks by four men, and the bamboo chairs of the common people by two men.!*! In Sung times common people were also per-

U8 T’ung tien, 65: 366-367. 17 T'ang litt tien, 4, 10a; Chiu T'ang shu, 45, 4a; Hsin T'ang shu, 24, 1b-2a, 12a. 18 Sung shih, 150, 5a-b. 19 Yuan tien-chang, 20, 3a-b; T’ung chih t’iao-ko, 9, 2b, 3b; Ta-Ming ling, 22a-b; Ming hui-tien, 62, 41a-b. 1 Ch'ing hui-tien, ch. 29; Ch’ing t’ung li, 54, 5b, 7a. 121 Hsin T'ang shu, 24, 12a. 10°

SOCIAL CLASSES

148

mitted two carriers.}22 In Ming times four was the maximum

number

permitted to carry the sedan chairs of officials entitled to use them.1?"3 In Ch’ing times the number of carriers differed in the capital and the provinces. Officials of the third rank in the capital who were also chief executives of a yamen were permitted to use four carriers in the capital, and eight when outside. Civil officials from the fourth rank and below used two carriers in the capital and four outside. Among the provincial officials the governor general and the governor were each permitted to use eight carriers; lieutenant-governor down to those of the eighth rank were permitted to use four carriers.!% The mothers and wives of the officials were permitted the same number of carriers as their husbands and sons.1?5 Since the horse had greater prestige than the donkey all officials were required to ride on horseback. In the early Ming dynasty officials who did not have a horse, and this was not unusual, borrowed one. But certain of them, faced with this predicament, were known to have ridden to their posts on donkeys. This was considered so undignified

that Ming T’ai-tsu ordered the government to provide these members

of the ruling class with horses so that the distinction between the offi-

cials and the commoners could be maintained.1?6 Again decoration underlined status differences. In Sung times only officials of the third rank and above in the capital and all officials in the provinces could hang a tassel on their horses.!*7 In Ming times however, black tassels could be used by officials and by the common

people.18 In Ch’ing times only officials of the fourth rank and above

could use tassels.1°

In T’ang times officials used silver or a metal that looked like gold

on their saddles; non-officials could use only black-painted saddles and

iron stirrups. In go08, in the Later Liang dynasty it was decreed that only ministers and generals could use silver-decorated saddles; other officials could use only copper.!#! In Sung times silver-decorated saddies were used by officials of the fifth rank and above; black saddles without decoration and felt saddle cloths were used by common people, the artisans and merchants included.1#? In Yiian times officials of the first rank used saddles decorated with gold and jade; those of the

12 183 188 37 2 11 188

Sung hui-yao, ts'é 44, yii-fu 4, 7a; Sung shih, 153, 13a. Ming hui-tien,62, 4rb. 124 Ch’ing hui-tien, ch. 29; Ch'ing t'ung-li, 54, 5b, 6b. Ch’ing hui-tien, ch. 29, Ch'ing t'ung-li, 54, 7 188 Tien-ku chi-wén, 5, 7a. Sung shih, 150, 11a-12b. 18 Ming hui-tien, 62, 42a-b. Cl'ing hui-tien, ch, 29; Ch'ing t'ung li, 54, 5b. ™ T’ang hui-yao, 31, 13a. Wau-tai hui-yao, 6, v7aSung hui-yao, ts'é 44, yit-fu 4, 5a; Sung shih, 150, 12a; Yen ii mou lu, x, 11b.

THE STYLE OF LIFE

149

second and third ranks saddles decorated with gold; those of the fourth

and fifth ranks saddles decorated with silver; those of the sixth rank and below saddles decorated with t’o-shih, copper, or iron. In Ming

times dukes, marquises, and officials of the first and second ranks used

saddles decorated with silver and iron metalware; those of the third,

fourth, and fifth ranks oil-painted saddles with silver and iron metal-

ware; those of the sixth, seventh, eighth, and ninth ranks oil-painted saddles with tin metalware;

soldiers and common

people could use

only black or green painted saddles and iron metalware.!4 Besides

the ornamentation

on sedan

chairs, carriages, and horses,

both insignia and attendants distinguished the nobles and officials from the masses. This served the function of giving the former dignity and of maintaining a distance between them and the common people, enabling them to move through the streets quietly and with decorum, and keeping them separated from their inferiors. Thus the status of a ranking official was clear to any passerby who saw his insignia or heard the voices of his runners who were clearing the road for him.

Fu Pi # #§ (1004-1083), a retired official, was wearing a plain cotton

robe and was riding on a donkey on his way to the suburb. A sub-district deputy magistrate was approaching. The magistrate’s foreman

deceived by Fu’s costume and animal shouted at the latter to dismount. Fu Pi tried to make his donkey hurry, but the foreman shouted all the louder, asking what official rank he held. Fu Pi gave his name. Aware that Fu Pi had been a former prime minister, the magistrate was extremely embarrassed. He dismounted immediately, stood at the edge

of the road and saluted. Tu Yen #t if (978-1057), who had retired with the title of Imperial

Minor Tutor, met, while out riding, a young man who had just passed

his chin-shih examination. The young man had borrowed the insignia of a military official and was being escorted by several attendants who had

been borrowed

also. They filled the road, and Tu found that he

could not proceed. He ordered his two attendants to lead his horse to the side of the road and he covered his face with his sleeves to spare the

young man embarrassment. The latter, however, not realizing who the rider was, and very proud of his recent success, was extremely angry that Tu had not dismounted in his presence.1* Throughout all dynasties, an inferior was expected to give way before a superior. When common people saw a noble or an official

133 18 185 13

Yuan tien-chang, 29, 3b; T’ung chih t'iao-ko, 9, 32. Ming hui-tien, 62, 42a-b; Ming shih, 65, 172 Chu Vii Je 9, P'ing-chou k'o t’an PE YH WY BE, 3, 2d. Hsi-ying 47 &&, Hsiang-shan yeh lu jy tly EF Sf, B, 230.

SOCIAL CLASSES

150

approaching, they had to dismount immediately and stand at the edge

of the road to allow him and his attendants to pass. Details as to the

manner in which a lower official should meet a higher one were also worked out in the various dynasties; whether they were permitted to share the same road, or whether one gave way by riding at the side, or by holding his horse or carriage, or whether one took another road in order to avoid the meeting altogether depended upon the difference in the grades of the two persons in question.” Under T’ang, Sung, Ming, and Ch’ing law, failure to observe these regulations was punishable with fifty strokes.1 The insignia and the number of attendants which were permitted to officials differed according to their rank, those of higher status enjoying the greater privilege. Wives of officials of rank were given the same rights as their husbands when they went into the street.“ The commoner, on the other hand, was not permitted any insignia and while he might have one or two servants following him, he could not have them ride before him and clear the way. Moreover, since silk parasols were among the official’s insignia, they could not be used by the common people, who were only permitted to carry rain umbrellas

made of oiled paper.!?

In general a man of higher status could use articles permitted to an inferior, for, at times, such “superiors” could not afford certain goods

because

of their cost; but

a man

of inferior

status could never

use

articles that were the exclusive privilege of a superior. Behavior that did not accord with a man’s status as defined in the sumptuary laws was punishable. Both in T’ang and Sung law the penalties for violations varied from forty to one hundred strokes.“ In 833 an imperial edict reasserted that an official of rank whose clothing, carriages, horses, or other items did not accord with the regulations

187 Sung hui-yao, ts’é 48, i-chih (gf ji], 5, tb-2a, 9a-t0a; Sung shih, 118, 8b-9b; Ming hui-tien, 59, 11a-b; Ch’ing hui-tien, ch. 29. 18 T'ang li sw-i, 27, 15a-b; Sung hsing-t'ung, 27, 16a; Sung hui-yao, ts'é 48, i-chih, 5, 3b; Ching li li, 17, 22b; Tu li ts’un i, 19, 16b-17a.

1 Hsin T'ang shu, 24, 12a; T’ung tien, 107: 367; Sung shih, 147, 17b-10a; Chéng-ho wu-li, 20, 3a-6a; Ming hui-tien, 59, 12b-13a; Ch'ing hui-tien, ch. 20; Ching tung li, 54, 5a ff. © T'ung tien, 107: 567; Sung shih, 147, 17b, 8b, 19a; Chéng-ho wu-li, 20, 3a, 4b, 5b; Ch'ing t'ung li, 54, 10a. MI Sung hui-yao, ts'é 44, yil-fu 4, 72, 9. M2 Ta-Ming ling, 23a; Ming shih, 65, t6a-b; Ch'ing lit li, 17, 31b. M8 Chiu T'ang shu, 45, 15b; Hsin T'ang shu, 24, 1a; T'ang hui-yao, 31, 7a; T’ung tien, 108: 570; Yuan tien-chang, 29, 4a; T’ung chih t'iao-ko, 9, 4b; Yiian shih, 105, 17b; Ta-Ming ling, 20a; Ch’ing lii li, 17, 2b. ut T'ang lit su-i, 26, 7b-8a; 27, 15a-b; Sung hsing-t’ung, 26, rob-11a; 27, 16a.

THE STYLE OF LIFE

151

would be dismissed and punished. A commoner guilty of such conduct would not be permitted to take the civil examinations.5

Punishment differed for officials and non-officials in Yiian, Ming, and

Ch’ing law. In Yiian times the punishment for the common people was fifty-seven strokes; in Ming and Ch’ing times fifty strokes, and a family

head was always held responsible for his family members." During the

Yiian dynasty an official who violated the laws was dismissed from his post for a year and, if returned to office, he was given a post one rank lower than the one he had held before dismissal.47 During Ming and Ch’ing he was dismissed and given one hundred strokes." In 1403, an edict prescribed that those who had violated the sumptuary laws be sent to cultivate the land at the frontier. Since officials were expected

to be more familiar with these laws than non-officials, the former were punished more severely. This contrasts strikingly with the law’s more generous treatment of officials as compared with non-officials in other areas of crime, a fact that underlines the importance of the sumptuary Jaw to the ancients. The artisan or tailor who made articles for a commoner to which his status did not entitle him was punished with fifty strokes, unless the

former reported the case to the authorities before it was discovered. This law kept artisans from making things for a customer without

knowing his status.

The law of T’ang and Sung also required that houses, clothing, carriages and utensils denied a person because of his status be sold or, if selling was impossible, be changed to fit the prescribed form.1! In

833, a regulation ordered that all such articles be confiscated.15* In

Yiian times they were given as rewards to the informers.1* In Ch’ing times they were adjusted.1*#

It is clear that there were differences between the style of life of the

common people and the “mean” people, between those of the common people and the officials, and between those of officials of different ranks, But it is also clear that the differences between the commoners and the

officials were much greater than differences within the official group. In

MS M8 47 48 49 18 181 18 183 184

T'ang hui-yao, 31, 17a-b. Vigan shih, 105, 17b; Ming lit li, 12, 16a; Ching lili, 17, 26a; Boulais, op. cit. 389. Yuan shih, 105, 17b. Ming li li, 12, 16a; Ch’ing hit li, 17, 26a; Boulais, op. cit., 389. Ming hui-tien, 173, 136a. Ming lili, 12, 16a; Ch'ing li li, 17, 26a-b; Boulais, op. cit., 389. T’ang lit su-i, 26, 7b-8a; Sung hsing-t'ung, 26, rob-r1a. T'ang hui-yao, 31, 16a. Yuan tien chang, 29, 4a; T’ung chih t’iao-ko, 9, 4b; Yuan shih, 105, 17b. Ching lit li, 17, 26a.

152

SOCIAL CLASSES

other words, an official’s style of life was clearly marked off from that of the non-official population, while the differences that found expression within the official group merely indicated a lower or higher rank within this group. The officialdom cannot be said to comprise different classes. Another important factor which contributed to the strict demarcation between officials and commoners was that the retired officials enjoyed the same style of life as active officials.1® Thus the officials, as a distinct superior class, were marked off from the non-official population for life. If an official upon retirement lost his previous status and

the various privileges to which his office had entitled him, and if his

social and legal standing as well as his style of life became

those of

the common people, then there would be no reason to speak of officials as aclass, for the differences in the style of life would be only temporary. However, ifa man once obtained official status, and retained that status permanently, unless he had been dishonorably discharged, and thus retained his previous privileges and maintained his former style of life, then the differences between the officials and the common. people would be permanent and there would always be a social distance between them.

Furthermore, it is also of primary importance to consider the status

of members of an official family, which, as well as their privileges, was

recognized both by law and society. Both parents and wives of officials with rank were entitled to receive titles of honor from the court. Thus they were given an official status through their sons and husbands

and could enjoy the style of life accorded their rank. Other members of the family, such as children, sisters, brothers, uncles, and nephews of

an official, not entitled to such honorary titles, were still permitted an official's style of life. With regard to houses, both T’ang and Sung law

permitted the children and grandchildren of an official to continue to

reside in the latter’s house after his death.15* In Yiian times except in cases of removal of an official’s name from the government record, the wife and children of a deceased official were treated as the family members of an active official? In the Ming dynasty, except in cases of the removal of an official's name

from the government

record, the

children of officials were permitted to reside in the same house after his death. Ch’ing law was even more generous; even if the official had been punished for some wrong-doing, his children were permitted to

live in his house.

485 Yiian tien-chang, 29, 3b-4a; T'ung chih t'iao-ko, 9, 4a; Yilan shih, 105, 17a-b; Ming hui-tien, 62, 40a. 18 T’ang hui-yao, 31, 152; Sung shih, 154, 19b. 197 Yuan shih, 105, 17b. 18 Ming hui-tien, 62, 40a.

18° Ch’ing li li, 17, 30a.

THE STYLE OF LIFE

153

Under the law of Yiian, Ming, and Ch’ing, an official’s children and grandchildren were permitted to use his carriages, horses, clothing, and various utensils after his death if his name had not been removed from the government record. As a rule, other family members were also given these privileges. It was clearly noted in Yiian law that women living in the same household regardless of the degree of relationship to the official, were permitted to use the same type of ornament and dress allowed to the mothers and wives of the officials. Women relatives in the first degree, even though not living in the same household, were

entitled to the same privileges.1*1 In the Ming dynasty fathers, brothers, paternal uncles, paternal nephews, sons, and sons-in-law of an official who were living in the same household were permitted to wear silk boots. A black gauze hat with soft silk tabs, a garment with a round

collar, and a belt decorated with horn were for their exclusive use. All these were garments worn by officials. The grandmothers, mothers, daughters, granddaughters of an official, together with his sisters, nieces, wives of brothers and nephews who were living with him were

all permitted to wear a formal garment exclusively provided for the family members of officials, according to the rank of the related official.1® Thus, the family members of an official enjoyed an official’s

style of life, even if they were not themselves officials. In other words, their style of life definitely marked them off from the non-official

population, and this was not for reasons of wealth, but because one of their family members held or had held an official post. This further

suggests that the officialdom was not merely an occupational grouping

but a class, which, by extension, may also be said to include the members of an official's family.

Persons who violated their proper style of life were punishable under the law,1®3 the responsibility for making investigations resting usually

with an authorized official. However, despite such penalty, violations seem to have been quite common. During the Han dynasty, merchants were forbidden to wear fine silks, yet the records note that they used such materials for wall decorations and that their slaves wore embroidered dresses and silk shoes.1°

18 Yan tien-chang, 29, 4a; T’ung chih t'iao-ko, 9, 4a; Yan shih, 105, 17b; TaMing ling, 20b; Ming hui-tien, 62, 40a; Ch’ing lit li, 17, 303. 162 Ming shih, 67, 14a-b. 181 Ming shih, 105, 17a. 183 See above. For actual cases, see Ming hui-tien, 181, 9a; Hsing-an hui-lan, 11, 5a-6a.

164 Han shu, 10, 14a; T’ung hui-yao, 31, 17b-18a; Sung hui-yao, ts'é 44, vie-fu 4, 7a; T’ung chih t'iao-ko, 9, 4b; Ching shih-lu, Sbih-tsung, 89, 4a-b; Dubs, op. cit., II, 409. 195 Han shu, 48, 142.

SOCIAL CLASSES

154

In the T’ang dynasty artisans and merchants were not permitted to ride on horses, yet to judge from the edict of 832 many of them had decorated saddles and silver stirrups and were followed by slaves on horseback.1** During Sung, common people were prohibited from using sedan chairs, yet officials frequently complained that many rich people, as well as prostitutes and actors, rode in such chairs.1%7 Su Hsiin once said that the families of artisans and merchants usually dressed in fine silks with pearl and jade ornaments, but little

of what was worn was permitted legally.1® Lii K’un said in his order

that many common people wore garments with gold threads and clouddesign boots permitted only to officials. Even prostitutes and actors wore gold and pearl head ornaments.!® In short, the orders issued from time to time to enforce these prohibitions indicate that the government put much emphasis on the sumptuary laws and endeavored to uphold them but that the population frequently ignored them.

Class Endogamy Intermarriage between

2, Marriage

classes is frequently discouraged. When

the

society is so structured that mobility is almost impossible, class endogamy

inevitably results. This was the situation in China’s feudal

period. Cases in the Ch’un-ch’iu and Tso-chuan show that the king took

his wife from the family of a feudal lord. The feudal lords, the ch’ing,

the fa-fu and the shih seem to have married even within their own sub-

group.!” When Kou-chien 4) $8 (fifth century B.C.), the King of Yiieh, sent his envoy, Wén Chung % fifi, to ask for peace with Wu, a

state

which had conquered Yiieh, Wén Chung said in his statement, “Let

my lord Kou-chien marry his daughter to your great king, let his

ta-fu marry their daughters to your fa-fu, let his shik marry their

daughters to your shih." Obviously no noble could marry a commoner. During Wei, Chin, and the Northern and Southern Dynasties (420589) the distinction between the upper class (shih +) and the lower class (shu J&) groups'?? was very strict, and there was a great social

46 T'ang hui-yao, 31, 15a.

187 Sung hui-yao, ts'é 44, yu-fu, 4, 7b; Sung shih, 153, 15b, 16a.

18 49 1” 12

Su Hsin fi, Chia yu chi $6 jh Se, 5, 3a-b. Shih chéng lu, 3, t9b-20b. Chung-kuo féng-chien shé-hui, 259-261. 1 Kuo yit, 20, tb. Since Wei introduced the system of chiu p'in chung-chéng Jy, §8 Ft JE in 220 to classify men into grades according to their talent and integrity and to appoint them officials, family background had actually been used by the government as a guide for classification and official appointment. Those whose families had been

MARRIAGE,

155

distance between the two. The shu were considered untouchable. Intermarriage between the two groups was absolutely interdicted.1* Since the distinction between the two classes rested entirely on genealogy,

status had nothing to do with personal, political, or economic success. Therefore, class endogamy preserved the purity of the family line by

preventing it from being mixed with that of inferiors. Moreover inter-

marriage involved, at least for one of the parties, contact with a pariah

class. Kung-sun Jui 2 4% # (fifth century), whose mother and wife were daughters of two prominent families, Féng $f and Ts’ui #2, was

more respected than his paternal cousin, Kung-sun Sui 2 i& (d. 495), whose mother was from a lower family, Li 72. Tsu Chi-chén ill 4& JK said, “The shih-ta-fu should have good marriage connections.

The two Kung-sun were first cousins. When there is a gathering for a

wedding or a funeral there is a distinction between the shih and the

prominent for generations were given high posts. Ordinary families were excluded. As a result, family history became the main criterion for determining one’s political and social status. Geneological records were kept in private families as well as in government bureaus as a basis for marriage considerations and official appointment. Prominent families (shih-tsu - ff) and ordinary families (shuw-tsu RE f&) becamet wo distinct social groups, the former being the upper class and the latter the lower class. This practice was followed in Chin and the Northern and Southern Dynasties, and the distinction between the shih and the shu groups had prevailed for nearly four hundred years. ‘As a rule, high officials were selected from the shih group. Only in an exceptional case could a man of the shu group have a chance to be appointed to a high office. However, it should be pointed out that individual success in a political career would not change the social status of the man nor of his family. He and his family were still considered as belonging to the shu group, even if he was holding a high official post. Even if a man of the shu group held the same official rank as a man of the shih group, he was still not accepted and treated as an equal by the latter (Chin shu, 33, 13a-b; Sung shu, 41, 18b; 46, toa; 57, 22a; 62, 42; Nan shih, 21, 6a-b; 29, 9b-10a; 32, 3b-4a; 49, 3b). There are cases showing that an emperor could appoint a man of the shu group to an official position, but he could not change his social status from shu to shih (Sung shu, 57, 22a-b; Nan shih, 23, 13b; 29, 10a; 36, 1rb). This differed from the practice in the T’ang and later dynasties when official posts alone determined the status of the individual and his family. For detailed discussion concerning the connection between family background and official appointment, the growth of the prominent families, and the social distance between the two groups, consult the following: Chéng Ch’iao #f HE, 3 &, 25: 439; Kai yit ts'ung-R'ao, 17, tb fi.; Chao I fff 4%, Nien-érhT'ung chih shih cha-chi 4f- — sh 3 2, 8, 6b-ob; Vang Viin-ju 95 325 du, Chin-p'in chungchéng yii liu-ch’ao mén-fa fl, Hp iE SAS GH PY HA, chs. 2, 4, 5; Wang Yi4H fH] #5, ch. 3, ch. 7, Section 4. t'ung -— ft [fl], Wu-ch’ao mén-ti 178 Only a few examples are used in this study to illustrate the point, For a more detailed study, see Wu-ch’ao mén-ti, I, 48-51.

SOCIAL CLASSES

156

shu.”174 Thus, even if a man came of a good paternal family, his status was influenced both by his wife’s and his mother’s lines. Similarly with

a daughter. Her husband’s status also reflected on her family. When the wife of Li Shu-yin 22 & fl, (467-502) learned that her niece, the

younger sister of Ts’ui chii-lun # E ffi (fifth and sixth centuries) who

was a member of the Shih class, was to be married into a family of lower status, since no one of equal status wanted her because she was blind in one eye, she said sadly. “My older brother was a man of great virtue. It is unfortunate that he died early. How can we marry her unfairly

into a low family 2"

Therefore the shih class of this period carefully supervised their sons’ and daughters’ marriages. Society judged a family by their marriages. A mésalliance seriously influenced the family status. Furthermore, a proper marriage was as much a prerequisite for political recommenda-

tion as were personal qualifications,17® The case of Kung-sun Jui as well as those of Ts’ui Ling # { (sixth century) and Pai Chien A # (d.576) all of whose family members contracted marriages with good families show that these men were highly admired by the contemporaries, and for this reason.177

If a member of a shih family behaved badly and married into a shu

family, both he and his family were severely criticized and looked down

upon by their group. He would also lose whatever good reputation he had previously had, and, where his action was particularly censurable,

he

would

be

expelled

from

the

shih

class.

P’ing

Héng

48 {i

(411-486) had three sons, all of whom drank heavily and behaved badly. Héng was so disappointed in them that he did not seek to find them mates from shih families. Their marriages to women of “lower” families were considered shameful by Héng’s brother-in-law and sister’s son.1”5 Yang Ch’iian-ch’i #% 4% 4) (d. 399) was very proud of his family background, which he considered of the highest. When others compared his

family to that of Wang Hsiin $F #f (350-401), an outstanding member

of the shih group, he felt insulted. But members of his family contracted marriages with families of inferior status, and his contempo-

raries looked down upon him in consequence.”

In certain cases, mésalliance even led to formal accusations. When

Wang Yiian $ i married his daughter to the Man if family, Shén Yiieh Yt #7 (441-513) impeached him, saying that Wang Yiian was

14 178 17 40, 1

Wei shu, 33, 15b-16a, 18a-b. ¥ Tbid., 56, 20b-21a. Ibid., 60, 13b—14. Li Te-lin 2 ff $f and Li Pai-Yao 2 7 MS, Pei Ch’i shu Jy Hie Be, 23, 8b; 9a-b. 18 Wei shu, 84, 7a. Chin shu, 84, 11b.

MARRIAGE

157

from a family of good background, and this marriage with the Man was a shock to the public and a disgrace to the shih group. He therefore asked the sovereign to dismiss Wang Yiian permanently as an example

for others. That members of the family other than those who were

parties to the marriage were involved shows clearly that an improper marriage shamed the whole upper class. Actually, the Man family was not a very lowly one. They claimed to be an old family of Kao-p’ing, descended from Man Ch’ung ii fifi (d. 242) and Man Fén i @ (f1. 291-

299), and Wang Yiian must have felt that the facts bore them out for he had had their genealogy investigated before entering negotiations

with them. Even Shén Yiieh was not quite clear regarding the true status of the Man family. It should be pointed out that the opinion of the shih group as a whole played a very important part in society in general and politics in particular during the time of the six dynasties. Their evaluation of an individual formed the basis for official appointment or promotion. Once a person was censured for his improper behavior, he was not only expelled from the shih group but excluded from official participation in the political scene. At times, marriage between the shih and the shu groups was for-

bidden by law. In the fifth century a regulation of the Northern Wei dynasty stated that the children of the upper families should only marry among themselves.'! After Sui, although the old families no

longer enjoyed their political privileges, they still adhered to their class

endogamy. They still were proud of their past and they firmly refused to marry into families which, according to their way of thinking, were inferior. These included the new nobility and the officialdom.* When Li I-fu 4 3€ HF (614-666), the prime minister of T’ang, was unable to arrange a marriage between his son and a girl from one of the old families, he became so angry that he asked the emperor to promulgate a law forbidding these families to intermarry. This failed to serve its purpose. The old families, more convinced than ever of their proud

heritage, continued to intermarry secretly, and the emperor was unable to put a stop to their behavior.18% The imperial family was willing to honor the new nobility, and the imperial princes and princesses married into the new families.¥* Nevertheless, many outstanding statesmen still preferred and were proud to marry a member of one of the old families.1° As late as the ninth cen-

10 Wi 183 18

Hsiao T’ung ff @, Wen hsiian 3¢ $8, 40, 132-15). 8 Chiu T’ang shu, 82, 6a; Hsin T'ang shu, 223A, 4b. Wei shu, 5, 14a-b. 1 [bid., 3a. Hsin T’ang shu, 95, 2-3aChiu T’ang shu, 31, 5b; Hsin T’ang shu, 95, 34; 106, 9a.

158

SOCIAL CLASSES

tury a man’s genealogy was a first consideration for marriage, not his official rank, and Emperor Wén-tsung (827-840) exclaimed angrily, “My family has held the sovereignty for two hundred years. Is it still

not to be compared with the Ts’ui ## and Lu [i 218° Class endogamy

prevailed among the shih until the last days of the Five Dynasties

(907-960).187

Even after the introduction of the civil examinations in Sui, the old

families were still able, at least at first, to maintain their prestige.

Gradually, however, they lost their political and economic power. No longer could they compete with the families who had newly risen to prominence through the examination system. After several generations these new families were well-established. Their members also began to point to their origins with pride.’ On the other hand, the old families could only point to an ancient past, which, since it had no present significance, was gradually being forgotten by the society at large. And, to add to their difficulties, most of their family records had been burnt during the T’ang dynasty by order of the T’ang court. From this time on, official rank became the main criterion for social gradation.

Despite the operation of the yin system,! social success depended largely on success in the examinations, and this, in turn, depended on the

mastering of the classical literature. Thus a good genealogy ceased to bea

qualification for official appointment or a consideration for marriage.

Endogamy within the shih group lasted from the third through the

ninth century. However, another form of class endogamy was even stricter and more persistent. The shih group enjoyed a superior social and political status, but the shw group were still treated as their equals before the law. Slaves and other ‘‘mean”’ people who had lost their personal freedom legally were not treated in the same way as commoners. Their status descended to their children. Intermarriage between the free and the ‘‘mean” was absolutely impossible. This is made explicit in a commentary to the T’ang law which reads, “Everyone has his own mate who should be of the same group. Since there is a discrimination between the free and the “mean” people, how can they

become mates ?’"!?

In T'ang and Sung times, government and private slaves fell into a

number of categories which were distinguished by different social positions in the society and under the law. Among the government slaves,

186 Hsin T'ang shu, 172, 4b. 387 T’ung chih, 25: 430. 48 Hsin T'ang shu, 71A, 1a. 18 Hsin T'ang shu, 03, 2a-b. ¥ For a discussion of the yin ji system, consult Wittfogel and Féng, op. cit., 456 ff.; Shina mibunho shi; 284-285. 181 T’ung chih, 25: 430. 2 T'ang lit su-i, 14, Jas

MARRIAGE,

159

the kuan-hu and the tsa-hu™® were classed in the hu-ling Fi 4p, the

statute on revenue and population, as endogamous groups. They were not permitted to marry a free person, and if they did so, they were given one hundred strokes, and if a freeman married the daughter of a kuan-hu, he was imprisoned for a year and a half and the marriage was annulled. A private male slave who married the daughter of a freeman was imprisoned for a year anda half and the marriage was annulled.

If he had pretended to be a freeman, he was imprisoned for two years.1% The status of pu-ch’ii!®? and k'o-nii!® was superior to that of the ordi-

nary male and female slave, a kind of intermediate group between

w3 Both kuan-hufy Ja and tsa-hu Me Fi were government male and female slaves, huan nu pei "ff 4] KM, who had been “‘released”” and enjoyed a status somewhat superior to that of the ordinary government slave. A huan nu pei might be manumitted and made a commoner immediately. But usually several “‘releases”’ were required for a real manumission. Thus when a kuan nu pei was once “‘released,” he became a kuan-hu (also called jan-hu # FA); if again “released” he then became a fsa-hu, the latter finally becoming a commoner when “‘released’” for the third time. All government slaves were distributed to the various government bureaus or the palace, according to their sex and skill. Their obligations

varied according to their status. A kuan nu pei had to work at all times throughout the year, whereas the other two groups took turns in rendering services; a kuan-hu was expected to take three turns each year and a fsa-hu five turns every five years. Each turn constituted one month’s work (T'ang liu tien, 6, 12-b; T'ang hui-yao, 86, 1a; Fu Lin if $f, Hsing-t'ung-fue chich Fpl 6 Wik $B, 11b—-12a; Pich-pén hsing-t'ung-fu chieh 3 >. Ff) GE WR FR, x9b).

394 T'ang lit su-i, 12, 7a; Sung hsing-t’ung, 12, 7b. 35 T'ang lit su-i, 14, 7b; Sung hsing-t’ung, 14, 7b. 398 Tang lit su- i 14, 6b-8a; Sung hsing-t’ung 14, 6b. 197 Py-ch'it $f fy were male slaves owned by private families, However, their status was slightly superior to that of the ordinary slave, nu $9 (cf. note 199). They might be called semi-slaves. Legally speaking, a nu was considered one’s property, but a pu-ch’i was not. Thus the latter could not be sold; they could only be transferred to others. A nu might either be manumitted immediately or partially “released” and made a pu-ch'ii (T'ang lit su-i, 2, t4b; 6, 7b-8a; 7b-8a; 17, 1b; 18, 3a, 5b; Sung hsing-t'ung, 2, 15b; 6, 6b; 12, 8a; 17, 2a; 18, 3a, 6a. For detailed discussion, consult: Shén Chia-pén jj # AK, Hsing-chih fén-F’ao FH ii) 4%, 15, 20b-35a; Ho Shih-chi fay 4- Hf, “Pu-ch’ii k’'ao” sf th 123-162;Yang Chung-i #2 rp —, “Pu-ch’ii yen-ko k’ao” af fh WS HE, 21-31; Shina mibunks shi, 865 f.). 38 K’o-nit 4 $c were daughters of pu-ch’t or ordinary female slaves, pei ff, who had been partially “released.” They had a status similar to that of the pu-ch’a (T'ang lit su-i, 6, 8a; 13, 10b; 22, 12b; Sung hsing-t'ung, 6, 6b-7a; 13, 12a; Sung Pai 9g (4 and others, Wén-yian ying-hua 3 Hii HE HE, 531, 7b). 38 Thus a free man who injured a pu-ch’i was to be punished one degree less than in ordinary cases; if he injured an ordinary private slave two degrees less. If a pu-h' fought with an ordinary slave, the punishment was the same as that provided for fighting between a free man and a pu-ch’id (see chap. IV).

160

SOCIAL CLASSES

slaves and freemen; they could marry either among their own groups or among the free people.” After the Sung dynasty, the categories of pu-ch’ii and k’o-nii were no longer recognized and the laws governing marriage between the free and the “mean” related only to male and female slaves. In Ming and Ch’ing law, a male slave who married the daughter of a freeman was punished with eighty strokes; if he had pretended to be a freeman and had his marriage arranged, the punishment was ninety strokes. In all cases the marriage was annulled. A freeman who gave a female member of his family in marriage was also punished unless he had not known that the mate he had selected was a slave. Under T’ang, Sung, Ming, and Ch’ing law, he was punished only one degree less than a male slave.” Evidently in a matter of this sort, the law did not permit the freeman to exercise his will freely. A commentary of T’ang and Sung law, reads, “One who is originally a freeman should not be allowed to marry among the mean people.” This law was certainly influential in maintaining class endogamy. Since male and female slaves were owned by their masters and were under their absolute control, the masters were also held responsible for

a slave who married a girl from among the free people. Not only would he be punished if he had arranged such a marriage for his male slave or

had falsely represented his male and female slave as free in order to

procure a free person as a husband or wife—the punishment in T’ang, Sung, Ming, and Ch’ing law was the same as that given to a slave who had arranged the marriage himself or had falsely pretended to be a freeman,™ but he would be given a punishment two degrees less than that suffered by a slave who had arranged a marriage with the master’s knowledge. If a master received such a free-woman into his family as a slave, he was to be punished more severely — under T’ang and

3 T'ang lit su-i, 6, 7b-Sa; Sung hsing-t'ung, 6, 6b. 21 Ming lit li, 6, 33b-34a; Ch'ing lui li, 10, 48a, cf. Staunton, op. cit., 119; Boulais, op. cit., 296. 22 The punishment in T’ang and Sung law was one year’s imprisonment (T'ang Ji su-i, 14, 6b; Sung hsing-t'ung, 14, 6b); in Ming and Ch’ing, seventy strokes (Ming lu li, 6, 33a; Ch'ing lit li, 10, 48a, cf, Staunton, op. cit., 119; Boulais, op. cit., 296. Staunton is in error when

slave and ™2 T'ang 1 T'ang Ch'ing lit

he states in his translation that both the

the girl’s father were given the same punishment). lit su-i, 12, 8b; Sung hsing-t’ung, 12, 8b. lid su-i, 14, 6b, 7b; Sung hsing-t'ung, 14, 6b; Ming lit li, 6, 33b-34a; li, 10, 48a; Staunton, op. cit., 119; Boulais, op. cit., 296.

5 One hundred strokes in T’ang and Sung law; sixty strokes in Ming and Ch’ing

law (T'ang la su-i, 14, 6b; Sung hsing-t’ung, 14, 6b; Ming li li, 6, 33b; Ch'ing la li, 10, 48a; Staunton, of. cit., 119; Boulais, op. cit., 296).

MARRIAGE

161

Sung, banishment to three thousand Ji; under Ming and Ching, one hundred strokes.2¢ Beside slaves, the families of prostitutes, actors, and musicians were also included in the category of the “‘mean’’ people. Such persons, like the slaves, were not permitted by law to marry the daughters of free men. In Ming and Ch’ing law punishment for a violation was one hundred strokes, both for the would-be husband and for the family head of the girl's family, who had given her away, and was aware of the man’s lowly status. The go-between was punished one degree less and the woman was sent back to her paternal family.” A freeman who married a prostitute or singing girl went unpunished, but an official who

married such a woman

was considered dishonorable and given

sixty strokes. The marriage was annulled and the woman was sent back to her paternal family. From the above it is obvious that the law only prohibited slaves and other “mean” people from marrying a girl of the free people but did not punish free people, with the exception of officials, who married a female slave or a prostitute. Wedding Ceremonies The

so-called six wedding

rites were prepared

for officials of rank.

Chu-Wén-kung chia-li and Ming hui-tien note that the common people had to perform only four ceremonies. Moreover, their ceremonies were considerably simpler.#?

All the articles used in a wedding reflected the status of the family.

Every dynasty regulated the number of betrothal gifts; the higher the

status of the bridegroom’s family the more gifts.*44 Sometimes even the number of wedding feasts was regulated. If the groom was an offi-

28 T'ang lit su-i, 14, 6b; Sung hsing-t’ung, 14, 6b; Ming li li, 6, 33a; Ch'ing lai, 10, 48a; Staunton, op. cit., 119; Boulais, op. cit., 296. 27 Ming lit li, 25, 13a; Ch’ing lis li, 33, 45a; Staunton, op. cit., 410; Boulais, op.

cit., 696.

28 Ming lit li, 6, 30b; Ch'ing li li, 10, 45a. Cf. Staunton, op. o , 118; Boulais, op. cit., 286. 2% Sung shih, 115, 16a; Ming hui-tien, 71, 92a-93a, 95b-96b. Chu Wén-kung chia-li He 3 Zh Fe # (The family rites of Chu Wén-kung), prepared by Chu Hsi for his family, was widely accepted as a model by the families of the literati. The tsu of Chéng Weng-jung (Ante, p. 38) may be cited as an example (Yian shih, 197, 12b). 211 T'ung tien, 129: 674; Hsin T'ang shu, 18, ob; Yian tien-chang, 18, 3b; T’ung chih t'iao-ko, 3, 15a-b; Ch'ing t’ung li, 26, 2a-b, 8b. 212 T’ung tien, 129: 674; Hsin T'ang shu, 18, 10a; Yuan tien-chang, 18, 3b; Ching hui-tien, ch. 28; Ch’ing t’ung li, 25, 29a-b. aL

162

SOCIAL CLASSES

cial, he wore his official garment on his wedding day.*8 The sons or grandsons of an official, even though they were not officials, were per-

mitted to wear the garment of an official of lower rank than their father or grandfather. In T’ang times the eldest son of an official of the third rank up by his legal wife wore the dress of an official of the fourth rank; the son or grandson of an official of the fourth and fifth ranks and the sons of an official of the ninth rank and above wore the dress of an official of the sixth rank and below.2"* In Sung and Ming times the son of an official wore the dress of an official of the ninth rank.*#* In Ch’ing times the son or grandson of an official of the third rank and above wore the dress of an official of the fifth rank; those of the fourth and fifth ranks wore the dress of an official of the seventh rank ; those of the sixth and seventh ranks wore the dress of an official of the eighth rank; and those of the eighth and ninth ranks and scholars wore formal dress.*1° In some dynasties, such as T’ang and Ming, the common people could wear an official garment at their weddings, but in Sung and Ch’ing times they could only wear a costume assigned them by law, and this could be more elegant than their daily dress.2!7 The bride’s wedding gown also had to conform to regulations. The bride of an official wore a garment styled in accordance with the rank of the bridegroom," the bride of a commoner was forbidden to wear a garment so styled.2!9 When an official married he rode in his own carriage when he went to

meet his bride. He was also allowed to use his insignia during the wedding ceremonies.*° In the Ch’ing dynasty, a son or grandson who

held no office could use the insignia of an official father or grandfather

on the occasion of his marriage.*** Obviously, for commoners no such

rights existed.??? The number of the lamps, drums, and other musical

instruments used during the wedding were also regulated." The rules were set down in writing and any violation was punished. However, since the marriage ceremony meant so much to the people, weddings

43 T’ung tien, 129: 674; Sung shih, 115, 13b; 153, 7a; $12, 1b; Ming hui tien, 71, 93a; Ch’ing hui-tien, eh. 28; Ch’ing t'ung li, 26, 3a. 44 Tung tien, 108: 570; T’ang liu tien, 4, ob. 38 Chéng-ho wu-li, 179, 3b; Sung shih, 115, 16a; Ming hui-tien, 71, 96b. 28 Ch'ing hui-tien, ch. 28; Ch'ing t’ung li, 26, 3a 27 T'ang liu tien, 4, ob; T’ung tien, 108: 570; Chéng-ho wu-li, 179, 3b; Sung shih, 115, 16a; Ming shih, 55, 150; 67, 17a; Ming hui-tien, 71, 96b; Ch’ing f'ung li, 26, 0a. 218 T’ung tien, 108: 570; 129: 675; Wu-tai hui-yao, 2, 5; Ch'ing t’ung li, 26, 4a. 29 Ching hui-tien, ch. 28. 2 T'ang hui-yao, 38, 10a; Yuan tien-chang, 30, 11a; Chi'ing hui-tien, ch. 28. 221 Ch'ing t'ung li, 25, 20a. #28 Ching hui-tien, ch. 28; Ching t’ung li, 25, 29a. 223 Ch'ing hui-tien, ch. 28; Ch’ing t'ung li, 25, 20a.

FUNERALS

163

tended to be extravagant even to the point of ignoring the law. And officials, since the custom was widespread, tended to overlook such

transgressions. Wang Ying-k’uei E Jf 4 (seventeenth and eighteenth

centuries) remarked that in Soochow people used fans decorated with the mark of the Han-lin Academy or some other insignia at their weddings, regardless of their status.2%*

3. Funerals

The Chinese used different terms when referring to the death of per-

sons of different status.*** Status also regulated funeral details. An

official wore his official garment when he mon people wore only ordinary dress.”* ral clothing than those of low rank, and only one dress.”*? Status also determined

was placed in his coffin; comHigh officials wore more funecommon people usually wore whether pearl, jade, or a coin

was inserted in the mouth of the corpse.*** In Ming times an official of

rank was placed in a scarlet lacquered coffin and this was deposited in n “outer” coffin; a commoner was placed in black or gold lacquered coffin.229 Originally an inscribed flag revealed the decéased’s status. His name, and chief positions he had held during his lifetime were clearly indicated

on the flag. The length of the flag—nine, eight, seven, or five feet—was

determined by the rank of the deceased.“ In Sui, T’ang, and Sung

times the length of the ch’ung #1, the temporary tablet used before the

funeral, was also determined by official rank. Thus, the common people did not use a ch'ung.21

Earthenware and wooden articles prepared for the dead varied in quality and quantity according to the rank of the deceased. Those used

24 Wang Ying-k’uei, Liu-nan sui-pi fg) i BA SE, 3, 224.

25 Li chi chu-su, 5, 12b; T’ung tien, 108: 571. 28 T'ung tien, 84: 454-455; Ming shih, 60, 15a; 21b-22a; Ching hui-tien, ch. 38; Ci'ing t’ung li, 52, 1b. 227 Tung tien, 138: 718; Ming shih, 60, 15a; 2b; Ch'ing hui-tien, ch. 38; Ching Pung-li, 52, 2b. 28 T’ung tien, 138: 718; Hsin T'ang shu, 20, 5a-b; Ming shih, 60, 15a, 22a; Ch'ing hui-tien, ch. 38; Ch'ing ung li, 52, 1b, 27a, 34b. 29 Ming shih, 60, 15a, 22a. 2 T'ang liu tien, 18, 8a; T'ung tien, 84: 452; Hsin T’ang shu, 20, 5b; Wu-tai hui-yao, 8, 10b; Chéng-ho wu-li, 20, 8b; Sung shih, 124, 13b-14a; Shu i, 5, 70; Ming shih, 60, 15a; Ch'ing hui-tien, ch. 38; Ch'ing t’ung li, 52, 2b, 3b, 28b. 21 Sei shu, 8, 6b; T'ang line lien, 18, 8a; T'ung tien, 84: 453; 138: 718; Hsin T'ang shu, 20, 5b; Chéng-ho wu-li, 24, 8b; Sung shik, 124, 13b; Shu i, 5, 8b. ae

164

SOCIAL CLASSES

gnia by the common people were fewer and smaller.** Moreover the insi

to which the deceased had been entitled was used in the funeral proces-

sion. Fang-hsiang Jj #1, four-eyed animal masks, were used only by officials of the fourth rank and above; the ch’i-t’ow jut 9H, two-eyed animal masks, were used by officials of the fifth, sixth, and seventh

ranks.2% Yin 8] (the ropes for dragging the hearse), p’i #& (the ropes attached to the four corners of the hearse), sha % (the painted wooden

fan used to adorn the coffin), gongs, and funeral singers could only be used by officials of rank, their number varying with the rank.235 The Li chi describes the extravagantly decorated biers and hearses of nobles and officials in Chou times.#* In Sui, T’ang, and Sung times officials with rank had hearses with curtains, poles, ribbons, tassels,

and paintings, all varying with the rank of the deceased; the higher his rank, the longer the poles and the more numerous the ribbons and tassels. The hearse of a commoner could have no curtains, tassels, or painted decorations.2*7 In Ming times an official of rank had a hearse with silk-bordered curtains and tassels; a commoner had a coffin covered with a quilt. In Ch’ing times the customs were similar: the commoner’s coffin was covered with a cotton quilt; the official had a hearse decorated with plain or flowered curtains and tassels.”*

The number of the coffin bearers also varied with the status of the

corpse. In the Later T’ang dynasty (923-936), twenty was the maxi-

2 For instance, in T'ang and Later T'ang dynasties, the number of earthen and wooden funeral articles fj BE prepared for the dead were ninety to forty pieces among the officials, according to their rank, whereas a commoner was allowed to have only fifteen pieces. In Sung times the number varied from ninety to fifteen pieces for officials and twelve pieces for commoners. In Ming times the number varied from ninety to twenty pieces for officials while a commoner was entitled to one piece only. For details, see T'ang liu tien, 23, 10a; T’ung tien, 108: 571; T'ang hui-yao, 38, 12b-13a, 15a-16a, 18b-20: Wu-tai hui-yao, 9, 11a-12b; Chéng-ho wu-li, 24, 0a; Sung shih, 124, 15a; 125, 1b; Ming hui-tien, 99, 464; Ming shih, 60, 15a-b, 22a. 38 T'ang hui-yao, 38, 10a; Wu-tai hui-yao, 8, 8b; Sung shih, 124, 15b; 147, 178; Yitan tien-chang, 30, 11a; Ching tung li, 52, 14a-b. 31 Sui shu, 8, 6b; Wu-tai hui-yao, 48, 8a-b; Chéng-ho wu-li, 24, 9a; Sung shih, 124, 14a: Ming hui-tien, 90, 46a. 28 Sui shu, 8, 6b; T'ang liu tien, 18, 8a; Tung tien, 139: 723; Hsin T'ang shu, 20, 7a; Wu-tai hui-yao, 8, 8b; Chéng-ho wu-li, 24, 8b; Sung shih, 124, 14a; Ming huitien, 99, 46a; Ching hui-tien, ch. 38; Ching t'ung li, 52, 17. 2% Li chi chu-su, 45, 11b-12a; Legge, Tests of Confucianism, IV, 197-198; Couvreur, Li Ki, I, 252-254. 21 Sui shu, 8, Ob; T’ung lin tien, 18, 8a; T’ung tien, 86: 464; T'ang hui-yao, 38, 15a-16b; Wu-tai hui-yao, 8, 8b-a, 10b-12b; 9, 2a ff.; Chéng-ho wuli, 24, 9a, Sung shih, 124, 14a. 8 Ming hui-tien, 90, 46a. i 2 Ching hui-tien, ch. 38; Ching t'ung li, 52, r7b, 29b, 36a.

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165

mum number for officials and eight for the common people. In the Ch’ing dynasty, sixty-four was the maximum for officials and sixteen for the commoners.*#! The size of the grave and the graveyard also varied with the status of the deceased. The higher the rank, the higher the mound and the larger the graveyard. In Han times a marquis’ mound was four feet high; others down to those of the common people were also fitted into a system.*#? One marquis had his marquisate confiscated, and another his fief reduced because their graves were above the limits set by the regulations.* A retired official's father's tomb house was destroyed for the same reason.™4 The height of the mound and the size of the graveyard for officials of various ranks as well as for the common people were also regulated in T’ang, Yiian, Ming and Ch'ing times. A high official could have a mound as high as eighty feet and a graveyard of ninety paces; a commoner’s grave could be only four feet high and seven to nine paces long.*45 A stone tablet was placed before the mound of an official and his name and title were carved on it.*#6 Its size and decoration revealed the deceased’s status.*47 As a rule, a commoner was not permitted to have any such tablet, but a gravestone might mark his burial place.*48 Only an official of the fifth rank and above was entitled to place a stone statue of persons or animals in his graveyard.*9 A person could be buried as were persons whose rank was lower than his, but not as were persons who ranked above him. It frequently happened that the family of an official of high rank could not afford, because of lack of wealth, to give him the kind of funeral his status

20 Wu-tai hui-yao, 9, 20-42. 28 Ci'ing hui-tien, ch. 38; Ch’ing t’ung li, 52, 19b, 30b, 36a. %2 Chou li chu-su, 22, 1b, Han law quoted in Chéng’s note. 43 Wang Fu $47, Ch'ien fu lun # Je Hp, 3, 9224 Han shi 92, 16a. 245 T’ung tien, 108: 571. T’ang lit su-i, 26, 8a; T’ang hui-yao, 38, 13a-b; Chéng-ho wu-li, 24, 9b; Shu i, 7, 7a; Yitan tien-chang, 30, 14a; Ming hui-tien, 203, 120b~ 121a; Ming shih, 60, 17a-b; Ch’ing hui-tien, ch, 38; Ch’ing t'ung li, 52, 16a-b, 29b, 35b; Boulais, op. cit 48 Shu i, 7, 6a-b; Ch’ing t’ung li, 52, 16b, 19b. 247 For details, see Sui shu, 8, 6b; T’ang liu tien, 4, 11a; T’ung tien, 108: 571; Tang hui-yao, 38, 10a; Shu i, 7, 7a; Ming hui-tien, 203, 120b-121a; Ming shih, Ch’ing t’ung li, 52, 16b-17a, 29b. 60, 16b-17a; Ch’ing hui-tien, ch. 38; 28 T'ang liu tien, 4, 11a; T’ang hui-yao, 38, 10a; Ming hui-tien, 203, 120b-121a; Ching tung li, 52, 35b. 29 For details, see T'ang lit su-i, 26, 8a; T’ung tien, 108: 571; T'ang hui-yao, 38, 10a; Shu i, 7, 7a; Chéng-ho wu-li, 24, ob; Ming hui-tien, 203, 120b-121a; Ming hing t'ung li, 52, 16b.

166

SOCIAL CLASSES

entitled him to. On the other hand, the family of a wealthy man bury him in accordance with the regulations govering persons status. When Chia Chén’s daughter-in-law died, his family was height of its wealth, yet since her husband was only a student Imperial Academy,

her

funeral

could not

be an

had to of his at the in the

ostentatious

one.

Chia Chén tried to remedy this by buying an official title for her husband. Grandmother Chia on the other hand was the wife of a high official and entitled to have a costly funeral, but when she died the family could not afford it. Under T’ang and Sung law one hundred strokes were given if a grave, or the stone animals, or some other regulated feature did not accord

with the statute on the point. Moreover, the stone animals, tablet, or cther violation, with the exception of the grave itself, had to be read-

justed.2%t In 822 an edict proclaimed that all funeral articles used in violation of the regulations were to be destroyed.** In the Later T’ang dynasty officials were ordered to watch funerals closely, and any violation was to be punished by sixty strokes.*53 Under M’ing and Ch’ing law,

if the violator was an official he was given one hundred strokes. If a

commoner, fifty strokes; in all cases the faulty features had to be adjusted.2#

In order to prevent illegal funerals, the agents and artisans who provided and manufactured the articles used were generally held responsible and punished. In the T’ang dynasty, the government posted all the funeral regulations in the cities and market places, and

at the city gates, and those who sold articles to persons not entitled to them were punished.* A regulation in the Later T’ang dynasty made it necessary for business men who rented or manufactured funeral objects first to investigate the official rank of the family and ascertain the kind and number of articles which they were entitled to use before

filling their order. The request had to be reported to the local official

and written permission received before the article in question could be rented or manufactured. In order to prevent a family from fraudulently claiming an official rank, all officials except those actually hold-

ing office had to show their documents of appointment to the local official.2°* In case of violation those who had rented the articles were

*# This is a fictitious case described in the Dream of the Red Chamber. However, the reality of the background of the story should not be overlooked. 31 T'ang lit su-i, 26, 7b-8a; Sung hsing-t'ung, 26, 1ob-11a. 252 Wu-tai hui-yao, 8, 13b; Sung shih, 125, 1b. 253 Wu-tai hui-yao, 8, oa. 24 Ming lu li, 12, 16a; Ch'ing la li, 17, 26a; Boulais, op. cit., 380. 258 T'ang hui-yao, 38, 20a-b. #6 Wu-tai hui-yao, 8, 13b-14a; 9, 5a.

FUNERALS

167

punishable by two years’ imprisonment, while the family of the de-

ceased was held in no way responsible.®5” In Ming and Ch’ing times the artisans who made

the articles were given fifty strokes unless they

reported themselves.* Sometimes the officials who neglected to inquire into cases of violation were also held responsible. However, actual cases show that the law was not so effective in practice. To have a costly funeral for one’s parent was considered a filial act, and a son was usually not deterred by any fear of punishment. Moreover

the government

was unable to investigate every case and

punish every violation. In addition, since it encouraged filial piety, it could hardly take too severe a stand against its expression. Consequently regulations sometimes were little more than a formality. The regulations concerned with funerals and memorialized by Chéng Yiianhsiu $f 3C { in 808 and accepted by the government were never implemented because costly funerals had been the custom for a long time.*® In 841, when the office of yii-shih-t'ai # 32 %& promulgated a more

lenient regulation,

it said, in the course of its memorial,

that

funeral regulations was seldom obeyed and that rigid investigations usually led to murmuring

and discontent, but, it added, that negli-

gence or failure to investigate were usually criticized and censured. Therefore, since the people frequently had not obeyed the old regula-

tions because they were too strict, the new system provided for more latitude.**! The T’ang and Later T’ang regulations which demanded only the punishment of those who provided the illegal articles while being tolerant to the families of the deceased, must have further encouraged violations.** The law did not permit the common people to use insignia, but cases are found in the Yiian tien-chang showing that insignia were frequently used by commoners in their funeral processions.288 The common people were also forbidden to use stone tablets, but graves erected in the Ming and Ch’ing dynasties and still extant show that the law was not obeyed. In all probability the government acted only in case of serious violation, such as the use by commoners of sixty-four bearers, the setting up of stone statues of persons and animals in their graveyards, or the use of stone tablets with dragonlike top and tortoise bottom.

257 258 259 20 261 282 283

[bid., 8, 142; 9, 4b. Ming lii li, 12, 16a; Ch'ing lit li, 17, 26a-b; Boulais, op. cit., 389. Wu-tai hui-yao, 8, 13. T’ang hui-yao, 38, 152. [bid., 38, 20a. i-yao, 8, 8a, 10a. [bid., 38, 17a; Wa-tai Yizan tien-chang, 30, 11a.

SOCIAL CLASSES

168

4. Ancestor Worship From the standpoint of filial piety everyone should be encouraged to

worship his ancestors and without restrictions of any kind. But in a society in which style of life and ceremonies were differentiated on the basis of status, ancestor worship was not excepted. It was considered

proper for a man of greater virtue to worship more generations than for one of less virtue. It is said that in Chou times an emperor had seven temples, a feudal lord five, a ta-fu three, and a shih two. One generation was worshipped in each temple. The common people could worship only one generation, ie. the father.2*> Later dynasties also restricted the number of generations to be sacrificed to. Throughout the centuries, emperors had seven temples. Officials from two to five.?6* Discriminations against the com-

moners gradually disappeared. In the Sung dynasty the common people were permitted to worship three generations.**” In the Ming

dynasty their grandparents and parents.* In Ch’ing times both the official and common people were permitted to worship four generations.2°

The size and structure of the ancestral temples differed also. In the

T’ang

dynasty

officials from the third rank and above had temples

with nine purlins and rooms on the two sides; officials who were permitted to worship three generations could only have temples of five

chien.* In Ming times the temples of those entitled to worship five

generations had five chien; and the temples of those entitled to worship four generations had three chien.271 In Ch’ing times officials from the

third rank and above had temples of five chien with five steps leading

to the temple and a veranda room of three chien on each side. Officials from the fourth to the seventh ranks had temples of three chien with three steps and a veranda room of one chien on each side. All the above officials were permitted to have three doors to their temples. Officials of the eighth and ninth ranks also had temples of three chien, but were

28 Ch'un-ch'iu Ku-liang chuan chu-su fg $k ®t WW. UE By, 8, 7a. %5 Li chi chu-su, 12, 8b; 46, 5a; Kung-yang chu-su, 8, 4a-b; Ku-liang chu-su, 8 7a; Legge, Tests of Confucianism, I11, 223; IV, 204-206; Couvreur, Li Ki, 1 287-289; II, 262-265. 286 Tung tien, 48: 276-277; 108: 571; Hsin T'ang shu, 13, 8b; Sung hui-yao, ts'é 14, li 12, 8a-11b; Chien-yen ch'ao-yeh tse-chi, chia-chi, gab; Sung shik, 109, 21b-22b; Ming hui-tien, 95, 154b; Ming shih, 52, 12a; Ch'ing t'ung li, 17, 8a. 287 Sung hui-yao, ts'é 44, li 12, 8a, 9a-b; Sung shih, 100, 22b. 28 Ming hui-tien, 95, 154b; Ming shih, 52, 12a; Hstieh li, 4, 2a. 28 Ch'ing t'ung li, 17, 8a, 16b, 18a. = Hsin T'ang shu, 13, 8b; T'ang hui-yao, 19, 21b. 271 Ming shih,52, 13.

ANCESTOR WORSHIP

169

only permitted to have one step and veranda rooms on the sides were forbidden altogether.?7? In all dynasties the common people were forbidden to have temples,

but were permitted to set up the ancestor tablets in their living quarters and worship there.2*3 The number of sacrificial utensils was also restricted. The higher the status the more the utensils that could be used.*** Foods offered as sacrifice differed also.

In Chou

times a feudal lord offered a cow, a

sheep, and a pig; a ching only a cow, a ta-fu a sheep, a shih a pig, anda commoner, fish.2”* In Northern Ch’i times, an official from the third rank or above offered a cow, a sheep, and a pig, an official of the fourth to the sub-fifth rank a sheep and a pig, an official of the sixth or seventh rank a pig only.?’* In T’ang times an official of the fifth rank or above offered a sheep and a pig, an official of the sixth rank or below as well as a common person offered a pig.?”? In Ming times an official of the first or second rank offered one sheep and one pig; an official of the third to the fifth rank one sheep, all others one pig only.?* In Ch’ing times one sheep and one pig were offered by an official of the third rank or above, a pig by an official of the fourth to the seventh rank, and a pork shoulder by an official of the eighth or ninth rank. A commoner offered only two dishes of pastries or dumplings, four dishes of meats

and vegetables, two bowls of soup, and two bowls of rice.” In nearly all dynasties, officials were allowed to wear court or official

garments while offering sacrifice to their ancestors.* Yiian was an ex-

ception.?51

22 Ching tung li, 17, 7b-8a. 23 Ku-liang chu-su, 8, 7a; Li chi chu-su, 12, 8b; 46, 5a; T’ung tien, 48: 277; 108: 571; Hsin T’ang shu, 13, 8b; Sung hui-yao, ts’é 14, li 12, 10a; Ming shih, 52, 12a; Ch'ing t'ung li, 17, 16b, 18a, Legge, Tests of Confucianism, III, 223; IV, 206; Couvreur, Li Ki, I, 289; Il, 265. 274 T'ung tien, 121: 632; Hsin T'ang shu, 13, 9a; Sung hui-yao, ts'é 14, li 12, 10a; Sung shih, 109, 23a-b; Ch'ing t’ung li, 17, 9a. 28 Kuo yi, 17, 3b; 18, 3a-b. 28 T’ung tien, 48: 276-277. 27 T'ung tien, 48: 277; 108: 571; 121: 632; Hsin T'ang shu, 13, 9a; cf. Wén-yuan ying-hua, 518, 2b, 4b; 519, 64; 28 Ming shih, 52, 12. 2” Ch’ing ung li, 17, 9a, 16b, 18a. © T'ung tien, 108: 569; Hsin T’ang shu, 13, 9a-b; 24, 5a-b; Shu i, 2, 1b; Sung shih, 153, 17a, 18a; Ming hui-tien, 61, 32b, 35b; 95, 156a; Ch’ing t’ung li, 17, 13b. 21 Yuan shih, 105, 198.

IV. Social Classes

(continued)

1. The Law of the Feudal Nobles When

the people were kept from knowing

the law, the ruling class

could manipulate it as it saw fit. Its words were the law—and a law that the people could neither doubt nor question. Sir Henry Maine re-

marks that “The important point for the jurist is that these aristo-

cracies were universally the depositaries and administrators of law. ... What the juristical oligarchy now claims is to monopolize the knowledge of the laws, to have the exclusive possession of the privileges by

which quarrels are decided.” China also passed through such a stage. Shu-hsiang’s 4% [#] (sixth century B.C.) observation that “‘The ancient kings

deliberated

on

(all the circumstances)

and

determined

(the

punishment of crime) ; they did not make laws of punishment” suggests that there was no open law at this time and that each case was considered unique and judged on its own merits. In 527 B.C. Hsing-hou 7S

4% and Yung-tzii #€ f- of the state of Chin got into a dispute over land. Shu-yii & ff, the acting judge, having been given the daughter

of Yung-tzi, favored him. Hsing-hou was greatly angered by this and

killed both Shu-yii and Yung. The prime minister, Han Hsiian-tzit $

fi F, did not know what to do. Shu-hsiang, another official, suggested that Hsing-hou be killed and that the corpses be exposed.* Such was “deliberation on circumstances’. Not until the sixth century B.C. were

the laws of the various states revealed to the general public. In 536, the state of Chéng, in 513 Chin, and between the fifth and fourth centuries

B.C. Wei promulgated their laws,* creating a revolution in Chinese legal history and in the ways of the ruling and the ruled. The publicizing of the law always worked to the disadvantage of the ruling class and, not

1 H.Maine, Ancient Law, 11th ed. (London, 1887), 11-12. 2 Tso chuan chu-st, 47, 3a-b; Legge, Chinese Classics, V, Pt. II, 656; Couvreur, Tso Tchouan, II, 248-249.

* For the law of Chéng and Chin, see below. The law of Wei, the Fa-ching 2: , was made by Li K’uei2 {if the Chancellor during the time of Marquis Wen of Wei $f XC 4K (Chin shu, 30, 6a-b). According to the Shih chi (15, 10a-14b), the ‘Marquis was on the throne between 424 and 387 B.C. However, this traditional date was considered erroneous by Ch’ien Mu 3¥ #§, who thinks it should be between 446 and 397 B.C. (Hsien-Ch’in chu-toi hsi-nien, 112-114, 130-134, 164~ 165). For Li K’uei, whom Ch’ien identifies with Li K’o 4 $f, see Ch’ien Mu, op. 121-122.

THE LAW OF THE FEUDAL NOBLES surprisingly, led to protests on their part. When

171 Tzii-ch’an 7- #€ (d.

522 B.C.) promulgated the law of Chéng in 536 B.C. Shu-hsiang of Chin

wrote him: “The ancient kings deliberated on (all the circumstances)

and determined (on the punishment of crimes); they did not make (general) laws of punishment, fearing lest it should give rise to a contentious spirit among the people. ... When the people know what the exact laws are, they do not stand in awe of their superiors. They also come to have a contentious spirit, and make their appeal to the express words, hoping peradventure to be successful in their argument. They can no longer be managed.”* When in 513 B.C. the state of Chin cast penal tripods on which the penal laws were inscribed, Confucius criticized, saying, “Chin is going to ruin. It has lost its (proper) rules (of administration) ... People will study the tripods, and not care to know their men of rank. And what profession can the superior keep?” These statements of Confucius and Shu-hsiang certainly expressed

their own misgivings, but they also reflected the ideology of the nobles

who saw their authority as a ruling class threatened. The fight between the nobles and Legalists centered around this point. The nobles tried to keep the law secret, the Legalists tried to take the law out of the hands

of the nobles and make it accessible to everyone. Moreover, the legalists wanted all law to be written down as well as made known to the public. Han Fei tzii said that the law “must be put down in written documents,

kept

in the government

offices,

and

announced

to the

people,” so that they would be “‘sure about the punishment,”? and know what was legal and illegal. Thus they would not be deceived and manipulated by the nobles. The Lord of Shang remarked that law must be clear and “‘easy to understand” so that the people “all knew what to avoid and what to strive for.” He said “Thus the government officials, knowing that such is the course of events, dare not treat the people

contrary to the law, nor do the people dare infringe the law.”’* In order

to make the law understandable to the people he suggested that the

4 The Tso chuan reads $% fil @F, ‘‘to cast the books of punishment,” and according to Tu Yii it was the tripods on which the penal laws were inscribed (Tso chuan chu-su, 43, 8b-10a; Legge, Chinese Classics, V, Pt. II, 609; Couvreur, Tso Tchouan, III, 456-457). Later, in 501 B.C., Chéng adopted the law made by Teng Hsi $f # (d. sot B.C.), which was inscribed on bamboo tablets (Tso chuan chu-su, 55, 10a; Legge, V, Pt. II, 772; Couvreur, III, 550). 5 Tso chuan chu-su 53, 6b-7a; Legge, Chinese Classics V, Pt. 11, 732; Couvreur, Tso Tchouan, Ul, 456-457© Han Fei tzu $i Jz J-, 16, sb-6a. 7 Ibid., 17, 5a. * Shang-chiin shu ij ¥ BE, 5, 14b, 1b; J. J.L. Duyvendak, The Book of Lord Shang (London, 1928), 331, 335-

172

SOCIAL CLASSES (CONTINUED)

officials who made the law were under obligation to answer any questions raised by the people concerning its meaning.® This was completely

contrary to the attitude of those who wanted to keep the law secret and in their own hands.

In feudal times, the law became the instrument for ruling the people.

The nobles did not fall under its jurisdiction. It was said, “Li is not

applicable to the common people, punishment is not applicable to the

ta-fu (officials). And the Pai-hu t'ung explained that the /i operated for the intelligent and punishment for the non-intelligent, and that officials were exempted from punishment to honor them." Elaborating on this general thesis, Hsiin Yiieh said, “Li and sense of honor and

shame are applied to the superiors in order fetters and whips are applied to the small men punishment. The superiors do not even touch much more they must care about punishment avoid punishment;

to effect their nature; in order to rule them by what is shameful; how ? The small men do not

how much less they must care about the sense of

shame ?”’!? It is clear from the above arguments that the superiors, who

were highly educated and sensitive to shame were supposed to behave in a manner that accorded with a proper mode of behaviour. Therefore it was not necessary to punish them. When these assumptions found

practical application they led to the legal recognition of the privileges

of the ruling class, whose members were not punished even when they broke the law. At first, it had been claimed that they had a sense of shame and that therefore punishment

was unnecessary; now it was

assumed that they were people of honor and should not be disgraced

by being punished. This idea was clearly indicated by Chia I # aif (200-168 B.C.) and others.

Punishments are not meted out to the favored ministers of a sovereign even

when they are at fault. This is to show respect to the ruler, to separate the ruler from the unrespected, to treat the ministers politely and to encourage their integrity. ... Now if those who have already held honorable posts and

have been treated politely by the emperor, and have been respected and feared by the deferential officials and people should develop faults ... the common people should not see them fettered, sent to the Ministry of Justice,

listed in the office of the convicts, and scolded and beaten by petty judicial officials. If the inferiors and the humble know that some day those who have

been honoured may be treated by me in this manner this is not the right thing for the world to become accustomed to and it is not the way to honor the noble.!*

° Shang-chitn shu, 5, 13b; Duyvendak, op. cit., 328-329. 1 Li chi chu-su, 3, 3b; Legge, Texts of Confucianism, III, 90; Couvreur, Li KI, 1, 534 Pai-hu Vung, 8, 18a; Tjan, op. cit., 1, 605. 32 Shén chien, 1, 4b-5a. 33 Han shu, 48, 22b-23a.

THE LAW OF THE FEUDAL NOBLES

173

And what, it may be asked, was done to officials who did not act in

accordance with the proper mode of behaviour? Most commonly, public opinion was the social sanction invoked. The wrong-doer was

censured and ridiculed. Such statements as ‘The chiin-tzit (the gentle-

man) said ‘This is not in accordance with the Ui’ or ‘this is in accordance

with the /’” found here and there in the Tso chuan really express the

judgments of the ruling class on one of its own members. Criticism and ridicule of this kind was certainly not directed at the common people, first, because the law dealt with them directly, and second, because they were beneath the criticism of the intellectuals. The significance of this negative social sanction should not be over-

looked. Anthropologists have told us that ridicule and satirical songs are effective sanctions in small primitive societies where the road is

closed to escape. At times a victim may even be driven to commit suicide by such demonstrations of disapproval. Probably, the hsiang-

hsing % Ff), the wearing of special apparel for punishment in prehistoric China, was another such sanction.14

It seems reasonable then to assume that public opinion may exercise considerable influence on any group in which interaction is primary and

frequent. The so-called shih-ta-fu, the ruling class, which was a defini-

tely exclusive group, comprised only a small percentage of the popula-

tion; at the same time, because of their common interests—scholar-

ship, political careers, and the cultivation of virtue—and their common

social activities,

contacts between

the members

of this group were

primary and frequent. Their personal histories, political or social actions

‘were common knowledge. Anyone who had been censured or ridiculed

would be scorned and would have no place to hide. In cases of serious

fault, the wrong-doer might be expelled from the shih-ta-fu group; and

since political power rested with them, anyone who was out of favor

with the group as a whole or with any large part of it would certainly find his political career cut short, either temporarily or permanently.

Many officials of Later Han, Wei, and Chin, who were censured by

public opinion were also removed from their official posts sometimes for decades, sometimes forever.¥* But public opinion was not the only positive sanction that could be directed against the ruling group. The meaning of the phrase, “The punishment will not be applied to officials’ was frequently misinterpreted. The Pai-hu t’ung explains that “According to i there was no punishment for the ¢a-/u. Someone says that this refers to the punish-

4 Hsiin-tzt, 12, 6b-7a; Shang-shu ta-chuan {3} # {G, 1B, 8a-b. 18 Sui shu, 25, 6b, 8b; Jih chik lu, 13, 11b-12b; Cf. Balazs, op. cit., 42-43, 51, 113-4, . 79.

174

SOCIAL CLASSES (CONTINUED)

ment of beating and striking,’"!* but beating was not a legally institutionalized form of punishment until after Emperor Wén (179-157 B.C.) of Han abolished punishment by mutilation in 167 B.C. Before that date there were only five recognized punishments: the death sentence,

tattooing on the face, cutting off the nose, cutting off the foot, and

castration.” The last four were mutilations which could not be concealed from public knowledge and therefore caused the punished one to feel shame as well as pain. How could such a man maintain the courage and dignity demanded of a member of the ruling class? In addition, those so punished were assigned to particular tasks. A man who had been tattooed was sent to guard a gate; a man who had lost his nose was sent to guard a pass; a man who had been castrated was sent to serve in the palace; a man who had lost a foot was sent to guard a garden.* No member of the ruling class was willing to perform such tasks. It is not difficult to see that both the punishments and the jobs attached to them disgraced not only the wrong-doer, but the ruling group as a whole. If the honor and prestige of high officials must be maintained and if it was inadvisable even to mention their crimes directly or explicitly,® how could these officials be made to suffer mutilating punishments of

the kind just listed? Chia I stated clearly in his memorial that “the

punishments of tattooing and cutting off the nose were not to be applied

to superiors.” Manifestly, the punishments that were not applicable

to the a-fu were the five punishments mentioned above. The Later Han

scholars who conferred at Pai-hu-kuan could only say “Someone said” as authority for claiming that beating and striking were among those punishments from which the ruling group was exempted. Chia I, let it be noted, was much closer to the feudal times which both he and the Later Han scholars were discussing, and it is very probable that his words were also closer to the truth.

The Legalists, who advocated the principle of equality before the law,

were opposed by the Confucianists who represented the ideology of the nobles and the ruling class; and the Lord of Shang was hated by the nobles and finally put to death by them because he put the principle of equality into practice: he tattooed one Tutor of the Heir Apparent,

Prince Chia 2 4 ¥f and cut off the nose of another, Prince Ch’ien 2+ + 8. The latter closed his door and did not go out for eight years.

The Shih chi notes that after the Lord of Shang had been in office for

18 Pai-hu t’ung, 8, 18a-b; Tjan, op. cit., I, 605. ¥ Chou li chu-su, 36, 1a; Han shu, 23, 9a, 12b-14b; Biot, op. cit., II, 354; Hulsewé, op. cit., I, 124-7, 330, 334-6. 38 Chou li chu-su, 36, 8b; Biot, op. cit., 11, 369-70. » Han shi, 48, 242-b. ™ Ibid., 48, 222.

THE LAW OF THE FEUDAL NOBLES

175

ten years the people of Ch'in were happy but almost all the members of the royal family and the nobility hated him. Chao Liang i [2, who warned the Lord of Shang against his policy, also pointed out that he had offended the nobles, increasing their hatreds and building up misery.*! Only the Lord of Shang caused nobles to be punished by mutilation. Small wonder then that he was detested by their class as a whole.

Had he conformed to the customary punitive traditions of his time, that is, had he exiled the two princely Tutors, or had he had them Killed privately (see below) he would not have aroused such hostility or suffered so violent an end. As indicated above, there were other punitive sanctions besides public opinion that could be invoked against the nobility. Liang Ch’ich’ao % ¥ # (1873-1929) is correct in assuming that nobles could be exiled.** Kung-kung 3£ T. and Huan-tou 8 98, who were sent to live in exiles among the barbarians, were members of the ruling group which was exempted from punishment by mutilation. Many similar cases can be cited from the Ch’un-ch’iu period (722-481 B.C.). Kung-

sun Ch’u 2 # 4£ was exiled because he injured Kung-sun Hei 2 #24 In short, they were so treated because the ruling group did not

want to have any of its members subjected to mutilation or death penalties. This differed from the later period when exile and banishment

were included among the five punishments. Then they were no longer applicable to nobles and officials. A noble or an official might be killed. However, it should be noted

that the ordinary death penalty which was included in the five punish-

ments was not applicable to the nobles. The five punishments, including the death penalty, were therefore not applicable to the nobles and the éa-fu. The so-called ta-p'i K Ki or ch'i-shih % 7H was reserved for the common people. Executions, as suggested by the term ch'i-shih, “to abandon in the market”, were generally held in the market, the corpse being exposed there for days afterwards.?> The market was a proper place for the “small man”’ to be seen in; the gentleman rarely appeared there. How much more would

it mean to the gentleman to be executed and exposed in the market? It is therefore not surprising to find Chai I saying that, if ministers were 21 Shik chi, 68, 4b-5a, 6b, 8a—b. 22 Liang Ch’i-ch’ao, Hsien-Ch’in chéng-chih ssti-hsiang shih, 47. 2° Han shu, 23, 2b.

24 Tso chuan chu-su, 41, 8b; Legge, Chinese Classics, V, Pt, 11, 578; Couvreur, Tso Tchouan, III, 23-24. 25 Chou li chu-su, 36, 8a; Li chi shu-su, 11, 156; Han shu, 5, 5a; Shih ming, 8, 61b; Biot, op. cit., II, 369; Legge, Texts of Confucianism, III, 215; Couvreur,

Li Ki, I, 274.

176

SOCIAL CLASSES (CONTINUED)

executed in the market as were the common people, it would be too great a penalty for the high officials to suffer and it would force them

to be as shameless as convicts. He then suggested that enforced suicide, away from the eyes of the populace, would be an ideal way of putting

an end to a faulty high official while maintaining the dignity and prestige of his class. This, he indicated, was traditional practice before the Han dynasty. A high official suspected of guilt would wear a white hat and carry a sword. He was neither bound nor placed under arrest. But

if his crime was serious, he would kneel down upon being informed of

his guilt and cut his throat with his sword. He was not executed by the executioner.?* Numerous cases of this kind can be cited from the histories of Chou

and Ch'in. Li K’o # ¥é (d. 650 B.C.),?7 Wu Yiian fii & (d. 485 B.C.),*

Pai Chi (4 a& (d. 257 B.C.),° and a prince of Ch’in, Fu Su, all com-

mitted suicide by sword under orders from the ruler. Only if they had refused to commit suicide would they have been put to death. When

Kung-sun Hei was told to commit suicide by Tzi-ch’an, the Chancellor

of the state of Chéng, the former was warned that if he did not comply,

he would be handed over to the Minister of Justice.2* When

General

Méng T’ien $€ 48 (d. 210 B.C.) of Ch’in refused to obey a false order to

commit suicide, he was put into jail, where he took poison and died.** In addition many nobles, accused of wrong-doing, were done away

with by other nobles, who acted either voluntarily as members of an affronted class or as agents of the government. Numerous cases of this kind are found in the Ch’un-ch’iu and Tso chuan, but it should be noted that public execution was normally not involved. The twelve princes and ten princesses who were executed in the market of the capital during the reign of the Second Emperor of Ch'in (209-207 B.C.)*3 were

not killed in the traditional way; such action was invoked to terrorize

the nobility.

* Han shu, 48, 22a-b, 24b. Cf. Hulsewé, op. cit., I, 287-9. 2 Tso chuan chu-su, 13, 8b; Legge, Chinese Classics, V, Pt. I, 157; Couvreur, Tso Tchouan, I, 278-9. ® Shih chi, 66, 8b-9a. ® Ibid., 73, 6a. ® Ibid., 87, 11-12. %1 Tso chuan chu-su, 42, 3a-b; Legge, Chinese Classics, V, Pt. Il, 584; Couvreur, Tso Tchouan, IIl, 47-49. % Shih chi, 88, 2b, sb. * Ibid., 87, 13a.

THE LEGAL PRIVILEGES

177

2. The Legal Privileges After the collapse of feudalism the various feudal units were united into one large empire under the control of a highly centralized government. Under this new political structure the change in legal institutions was noteworthy. First, the various laws of the various feudal states were no longer in force. Only one law operated now; and this was no longer the law of the feudal nobles but the law of the sovereign. He alone was beyond the law and the law became his instrument. Everyone within his realm, nobles and commoners, the ruling class and the ruled,

came under his jurisdiction and had to obey the same law. Nor were nobles and high officials exempted from punishment. There were no exceptions. From the time of Ch’in and Han, the law operated more equitably, but there were still inequalities between the nobles and officials on the one hand and the common people on the other. Despite the Legalists’ insistence on equality before the law and the practice of Shang Yang

and others, such an equality remained unrealized because the Confucianists, after defeating the Legalists, regained their influence in the Han government. The law still recognized privileged groups over

and above the commoners: a privileged class which included those who

,*4 and certain qualified under the “eight conditions for consideration”

other officials not included in the above category as well as the family members of the above two groups.

Nobles and Officials Unlike the common people, the nobles and officials were not under the

jurisdiction of the ordinary legal mechanisms and procedures. Asa rule,

the authorities had no right to arrest or investigate them unless per-

mission to do so had been granted by the emperor. It was regulated in Han times that when nobles and officials from certain ranks were guilty,

% The pa-i A\ Hf, ‘the eight conditions for consideration’’,

which are found in the

who were the guests of the sovereign

(the descendants of the

Chou li were: 1) Those who were the relatives of the sovereign, 2) Those who were old acquaintances of the sovereign, 3) Those who were of great virtue, 4) Those who were of great ability, 5) Those who were meritorious, 6) Those who were high officials, 7) Those who were exceptionally zealous of government

duties, 8) Those

preceding imperial families) (Chou li chu-su, 35, 2b-3a; Biot, op. cit., II, 321-2). This system was introduced into the law in the Wei dynasty (220-265) and w: then followed by all later dynasties (T'ang liu tien, 6, 7b-8a; T'ang Ii su-i, 1 12a-13a; Sung hsing-t’ung, 2, tab; Yuan shih, 102, 5b-6b; Ta-Ming ling, 33a-b; Ming lit i, 1, 5a-b; Ch’ing lit li, 4, 232-24b; Balazs, op. cit., 145, n. 185; Biinger,

op. cit., 86; Ratchnevsky, op. cit., 17-18; Staunton, op. cit., 5-6; Boulais, op. cit., 32-33).

12

178

SOCIAL CLASSES (CONTINUED)

special permission had to be requested from the emperor before they

were arrested or investigated.** Emperor Shén Tsung (1068-1085) of

the Sung dynasty once issued an edict saying that the officers whose duty it was to investigate officials were requested to report impeachd arrest those who were ments to the emperor. They were not permitteto accused nor dismiss them on their own authority.%¢ In Ming and Ch’ing times those who qualified under the “eight conditions for consideration” could not, when guilty, be freely arrested by officials. These latter had first to report the case to the emperor and arrest depended upon his decision alone.5? Similar privileges were also extended to those officials not included in this category. In the Ming dynasty no official from the fifth rank and above could be arrested without the permission of the emperor. Even the high local officials who directly controlled the pre-

fects and magistrates could only invoke beating, the forfeiture of a salary, or redemption, as punishments for their subordinates who were guilty of wrong-doing. If the offence was serious, the case had to be reported to the emperor before investigation.* In the Ch'ing dynasty, no official, no matter what his rank, could be arrested and investigated without the permission of the emperor.® After arrest, as shown in the laws of Han, Liang, and Northern

Chou, nobles and certain officials

were not to be fettered.° In T'ang and Sung times nobles and certain officials" as well as their

family members could not be tortured to force confession, cecision in their cases resting on the evidence of three witnesses. Authorities who

35 The privilege of “previous request”, hsien-ch’ing 3:3, was extended to the members of the imperial clan, nobles, and officials of specified ranks (Chou li chusu, 3: 3a, Chéng’s commentary; Han shu, 1B, 10b; Hou-Han shu, 1A, 30b; Hsit Han chih, 26, 1a. For a detailed subject see Hulsewé, op. cit., I, 286 fi.). ‘There are some cases which show that officials were not arrested and investigated because permission was not granted by the emperor (Han shi, 49, 23a-b: 74, 14a-b; 78, 9a-b; 21a-22b). In one of the cases the accused official who had not been arrested was finally arrested after permission was granted (Han shu, 78, 13a, 14a-b). 36 Sung shih, 199, 22a. 3? Ming li li, 1, 6a; Ch'ing la li, 4, 25a; Staunton, op. cit., 7; Boulais, op. cit., 34. % Ming lili, 1, 11a-b. * Ch'ing la li, 4, 34a; Staunton, op. cit., 9; Boulais, op. cit., 37. *° Han shu, 2, 2a; Sui shu, 25, 6a; cf. Shén Chia-pén jf $e A, Han lit chih-i 44 HE SH, 6, 5b fi.; Hulseweé, op. cit., 1, 286-7, 404-5, n. 273; Balazs, op. cit., 67. " They included: 1) Those who were qualified under “‘the eight conditions for consideration,"’ 2) The grandson and first degree relatives of the above mentioned category, 3) Officials from the seventh rank and above, and 4) The grandparents, parents, brothers, sisters, wives, children, and grandchildren of those officials from the fifth rank and above (Tang lu su-i, 29, 5a; Sung hsing-t’ung, 20, 7b).

THE LEGAL PRIVILEGES

179

neglected to observe this regulation were themselves held guilty.4* An edict of 1777 proclaimed that torture was permitted only when the accused official had refused to confess after being questioned three times.* In Yiian times accused officials could be tortured only when the evidence clearly indicated a guilt which they had refused to confess.4 Under Ming and Ch’ing, the regulation on this point was similar to that of T’ang.** In Ch’ing times the permission of the emperor had to be obtained if officials of the third rank and above were to be tortured.**

Furthermore, after investigation, they could not be sentenced except as the sovereign authorized. In the Han dynasty many cases show that sentences had to be approved by the sovereign.*? In T’ang and Sung times those qualified under the “eight conditions for consideration” but whose crime was not among the ten unpardonable offences® (but demanded the death penalty) were eligible for ‘“‘consideration”, final decision resting with the emperor. Those who participated in the “consideration” could only make tentative suggestions to the emperor.*®

Ming and Ch’ing law contained similar regulations. All those who qualified under the “‘eight conditions for consideration” were subjected to such “consideration”, no matter whether their crime rated the death

sentence, banishment,

or imprisonment.”

42 Tang lit su-i, 29, 5a; Sung hsing-t’ung, 20, 7b. 43 Sung hui-yao, ts’é 167, hsing-fa Fi] ¢& 3, 70-b-71a; Sung shih, 199, 23b. 44 Yuan shih, 102, 17a. 48 Ming lit li, 28, 19b; Ch'ing li li, 36, 49a; Staunton, op cit., 441-442; Boulais, op. cit., 716. 46 Ch’ing lia li, 4, 26a; Boulais, op. cit., 34. © Han shu, 49, 25; 64B, 19b-20a; 76, sb-6a.

‘8 Shih-o +- 38, “‘the ten offences,” which were excepted from the benefit of any

act of general pardon were: 1) Rebellion, 2) Treason against the sovereign, 3) Betrayal to the enemy, 4) Perverse offences against parents and other seniors (to beat or to murder one’s grandparents or parents, to murder one’s paternal

uncles or their wives, father’s sisters, elder brothers and sisters, mother’s parents,

husband, or husband’s grandparents or parents), 5) Massacre (to murder three or more persons in one family, to dismember someone for the purpose of black magic), 6) Disrespect to the emperor, 7) Filial impiety, 8) Discord in families (to murder or to sell a fourth degree relative, etc.), 9) Unrighteousness (the murder of the local official by the people, the murder of a superior official by subordinates, to murder one’s teacher, not to wear mourning for one’s husband, etc.), 10) Incest (Sui shu, 25, 13a, 17b; T’ang liz su-i, 1, 14b-21a; Sung hsingtung, 1, 5a-b; Yiian shih, 102, 4a-5b; Ta-Ming ling, 33a; Ming li-li, 1, 4a-sa; Ch’ing lii-li, 4, 18a-19b; Balazs, op. cit., 62-63, 74-75, 142-4, n. 184; Biinger, op. cit., 88; Ratchnevsky, op. cit., 13-16; Staunton, op. cit., 3-4; Boulais, op. cit.,

28-30).

© T'ang lit su-i, 2, 1a; Sung hsing-t’ung, 2, 2b. Cf. Biinger, op. cit., 86. © Ming li-li, 1, 6a; Ch'ing lii-li, 4, 25a; Staunton, op. cit., 7; Boulais, op. cit., 34. 12°

180

SOCIAL CLASSES (CONTINUED)

Nor could officials who did not qualify under the “eight conditions for consideration” be sentenced by the judicial authorities. In T’ang and Sung times all officials of the fifth rank and above who were guilty of crimes other than the ten unpardonable and certain other serious offences had the privilege of having their cases reported to the emperor for final decision.*! In Ming law officials from the sixth rank and below could be investigated by the responsible authorities, but final decision had to be authorized by the emperor or approved by officials sent to reexamine their cases.®* Ch’ing law was more strict. All guilty officials,

regardless of their ranks, had to be reported to the emperor for final

decision.

It is clear from the above that in most cases neither the investigation

nor sentence of a noble or official rested with the judicial authorities.

Investigation and punishment as well as a reduction in the degree of the Jatter depended entirely upon the will of the sovereign. Since the law was not definitely defined in such cases a considerable flexibility was possible. Other measures were less flexible in operation. Thus certain punishments could be reduced or redeemed* without “consideration” or the permission of the emperor. In the Sui dynasty those who qualified under the “eight conditions for consideration” as well as officials of the seventh rank and above, were permitted, asa rule, to have their punish-

ments reduced one degree; and officials of the eighth and ninth ranks

could redeem their punishments.* In T’ang and Sung times those who qualified under the “eight conditions for consideration” and who

deserved banishment or some other less severe punishment could have

their sentences reduced one degree, provided their offences were not among the ten unpardonable ones. Those officials who did not qualify under the “eight conditions for consideration” also enjoyed similar privileges. Officials of the seventh rank and above whose crime rated banishment could have their punishment reduced one degree provided

that their offences were not among the ten unpardonable ones or cer-

tain others, also of a serious nature, and the officials of the eighth and

ninth ranks whose crime demanded banishment could be redeemed by money payments.5*

5 82 8 51

Tang liz su-i, 2, 2a-b; Sung hsing-t’ung, 2, 3a-b. Cf. Biinger, op. cit., 86. Ming lii-li, 1, 11a-b. Ch’ing lili, 4, 34a; Staunton, op. cit., 9; Boulain, op. cit., 37-38. The Chinese differentiate between redemption by money payment and can-

cellation by giving up office or rank. We have therefore adjusted our terminology

accordingly;

redemption refers to money payments; cancellation to the surrender

of rank or office to pay off a criminal sentence.

% Sui shu, 25, 17; Balazs, op. cit., 75.

& T'ang lit sui, 2, tb-3a; Sung hsing-t'ung, 2, 2b-4b. Cf. Biinger, op. cit. 86-87.

THE LEGAL PRIVILEGES

18

Finally there were measures which made it possible for officials to avoid actual punishment. Obviously such legislation was shaped by the old policy that officials were not to be subjected to punishment. In the Han dynasty officials with the title of shang-tsao 3, as well as members of the imperial family whose guilt would ordinarily have required that their heads be shaved, and that they be sent to build the city wall at dawn or to pound rice, were not shaved, and were sent to gather firewood or pick out white rice.5’ The Chin (265-420) law held that all those who qualified under the ‘‘eight conditions for consideration” were permitted to redeem themselves. They were neither to be shaved nor compelled to wear the iron collar, nor to be beaten. In addition, the giving up of an official post would cancel out a punishment of three years’ imprisonment.” Such also was the practice in later dynasties. In Northern Wei times nobles who held any of the five peerage titles were permitted to cancel out their punishment by giving up their title. An official of the fifth rank and above was also permitted to cancel out his punishment by giving up his official post and he could be reappointed after three years to a position one rank below the one surrendered.™ In the Ch’én dynasty (557-589) an official who was sentenced to four or five years’ punishment was permitted to give up his official post to cancel two years of punishment while still serving the remaining years; if he was sentenced to three years’ punishment, he was permitted to cancel out two years by surrendering his post, while the remaining one year could be redeemed by the payment of a fine. A two years’ punishment was also redeemable.™ In Sui, T’ang, and Sung times besides redemption (see above), offi-

cials were permitted to cancel out their punishment by surrendering their positions. The higher the rank of the post the better the chance of being exempted from actual punishment. When an offence was not connected with official duty, a position of the fifth rank and above could be relinquished to void a two year term of imprisonment; a position from the sixth to the ninth rank, a one year term. When guilt was connected with the discharge of official duties, the surrender of a position of the fifth rank and above could satisfy a three year term of imprisonment; a position from the sixth to the ninth rank, a two year term. Banishment was equivalent to a four year term of imprisonment.

8 T'ang lit su-i, 1, 142. 5? Han shu, 2, 2a-b. © Wei shu, 111, 12b. % T'ai-p’ing yii-lan, 651, 2b.

1 Sui shu, 25, 9a; Balazs, op. cit., 52.

% Sui shu, 25, 18a; T’ang lit su-i, 2, 10b-11a; Sung hsing-t’ung, 2, 11a; Balazs, op. cit., 76, 167-8, n. 237; Biinger, op. cit., 87-88.

182

SOCIAL CLASSES (CONTINUED)

It should be noted here that although the highest rank only could cancel a sentence of three years of imprisonment, there were other

measures that protected an official from being imprisoned or banished. First, an official who had more than one official rank could surrender

both his active and honorary ranks to cancel out his sentence. Past ranks and positions could also be included if present rank was insufficient. Moreover, it was also permissible to redeem the remaining punishment by money payments, if the guilty person’s titles were insufficient to cancel out his punishment entirely. Again it should be noted that anyone who surrendered his post to cancel out a sentence was up for reappointment a year later, although his position would be one rank

lower than that previously held. If a rank had been surrendered to

cancel out a crime and the wrong-doer in question committed another

crime before he was reappointed, he could still redeem himself. Obvi-

ously an official who had been removed from his post did not lose his

legal privileges nor was he treated like a commoner. The law of Ming and Ch’ing permitted fewer privileges of this kind to

officials than did those of T’ang and Sung. First, officials were punish-

able by imprisonment and banishment, being exempted only from corporal punishment, but where corporal punishment would have been

in order, they might either redeem themselves by direct money pay-

ment or by the forfeiture of their salary, or they might be degraded or dismissed, depending upon whether their offence was committed in the discharge of their public duty or was of a personal nature, and upon the number of blows imposed. It was regulated in the Ch’ing

dynasty that chin-shih, chii-jén, kung-shéng, chien-shéng, and shéng-

yiian were also allowed to redeem their corporal punishment. A special legal privilege was also extended to the kung-shéng, chien-shéng, and shéng-yiian to the effect that they were not under the ordinary jurisdiction of the local officials. In case of minor offences, the magistrate

had to request the chiao kuan Hf, the director of studies, to inflict the chastisement in the present of the magistrate at the Ming-lun hall

Wi fii 4£. The local official was subject to demotion if he violated this

regulation and inflicted the punishment himself. In case of more se-

rious crimes involving the punishment of imprisonment or banishment,

the local official was required to report to the governor-general, the

$ Tang lit su-i, 2, 11a-12b; 3, 7b; Sung hsing-t’ung, 2, 11a, 23a. * T'ang liz su-i, 3, 5a; Sung hsing-t’ung, 2, 19b. © Tang lit su-i, 3, 7a; Sung hsing-t'ung, 2, 20a. * Ming li li, 1, 192-23; Ch'ing lit li, 4, 7a-b, 10a, 48a-b, 60a; Staunton, op. cit., 10-11; Boulais, op. cit., 42. © Ching lit li, 4, 7a-b; Boulais, of. cit., 25.

THE LEGAL PRIVILEGES

183

governor, or the provincial director of studies, asking to have the guilty person deprived of his degree or title.®

Disputes between commoners on the one hand and nobles and offi-

cials on the other, entailed serious inequalities. In all dynasties, the royal family was especially protected. To injure or kill one of their members called for more severe punishment than in ordinary cases, the degree varying with the degree of relationship between the injured and the emperor. Under T’ang, Sung, Yiian, Ming, and Ch’ing law, to beat a member of the royal family who was a non-mourning relative of the emperor was punishable by one year’s imprisonment, even when no injury was occasioned, and two years’ imprisonment if injury resulted. If serious injury occured, the guilty person was punished two degrees more severely than in ordinary cases. In case the injured party was a fourth, third, second, or first degree relative of the emperor, the punishment was one degree more severe in each case. If the beating proved

fatal, the guilty party was beheaded.

A similar principle operated in disputes between officials and com-

mon people. The higher the rank of the official, the more severe was

the punishment of the commoner. In T’ang, Sung, Ming, and Ch’ing times the punishment for an unranked official, a soldier, or a commoner

who beat an official of the third rank and above was two years’ imprisonment when the official was not injured, three years’ imprisonment when he was, and banishment to a distance of three thousand /i when

more serious injury, such as blindness or a broken limb, was occasioned. If the official beaten was of the fourth or fifth rank, then the punish-

ment was two degrees less than in the above cases. If the official was of the sixth rank and below, then the offender was punished two degrees more severely than for ordinary cases.” Punishment for beating a local official was much more severe than for beating other officials. In T’ang, Sung, Ming, and Ch’ing times the punishment for any resident of a district who beat the chief executive of the locality, prefect or magistrate, was three years’ imprisonment when the official was not injured; banishment

to a distance of two

thousand /i when the blow produced slight injury, strangling when a tooth was broken, an eye blinded, or a limb broken. In case of murder the criminal was banished to a distance of two thousand // if the murder

© Ch’ing lu li, 4, 34a, 35a-b, 36a; Hsiteh-chéng ch’iian-shu, 31, 2a, 4b, 5b, 8a-b, rob; Boulais, op. cit., 33-39. © T'ang lit su-i, 21, 13a; Sung hsing-t'ung, 21, 12a; Ming lili, 20, ob; Ch'ing lili, 27, 28a; Staunton, of. cif., 330; Boulais, op. cit., 594.

% T'ang lit su-i, 21, 14a-b; Sung hsing-t’ung, 21, 12b; Ming lit li, 20, 1b; Ch'ing

la li, 27, 31a-32a;

Staunton, op. cit., 331-332; Boulais, op. cit., 595-

184

SOCIAL CLASSES (CONTINUED)

plans miscarried and no injury was inflicted ; strangled ifinjury resulted; and beheaded if the murder was actually committed.”

Lastly, mention should be made of the legal privileges of officials

during litigation in the law court. Officials, including those who had retired, were ashamed of being summoned to the court, especially to stand before the court beside the common people. The law therefore did not give equal recognition to officials and commoners. No matter whether the official was the plaintiff or the defendant, he was not re-

quired to appear before the court with the opposing party if the latter was a commoner. Under no circumstances was a commoner permitted to accuse an official to his face nor was an official required to defend himself before the court. The Chou li mentions that officials as well as their wives were not

to engage personally in law suits.” In the early days of the Yiian dynasty when retired officials were involved in lawsuits with a commoner, they were allowed to offer written statements in lieu of a personal appearance. This procedure was eventually considered “‘inconvenient” for the common

people, and a regulation in 1304 held that

retired officials, who enjoyed the same privileges as active officials, could send their children, nephews, younger brothers, or servants as their personal representatives to appear in court to charge or defend

against the common people.’ Ming and Ch’ing law held that officials involved in lawsuits concerning marriage, debt, or landed property, could send their family members or servants to represent them in the court; any judicial official who failed to recognize this regulation was

to be punished with forty strokes.7* Chéng Tuan remarked in his Chéng hstieh lu that to summon a shih-ta-fu into the court would

arouse the shih-ta-fu class in the locality as a whole because they would

sympathize with one of their kind and that government officials in charge of judicial matters should consider what they would do in his place.” Certainly class consciousness played a significant role in the operation of the law.

As noted in our discussion of the modes of life, retired officials en-

joyed the same privileges in all aspects of consumption as did active officials. For this reason we suggest that officials, whether active or retired, be treated as having a single status which differed from that of

1 Tang lit su-i, 21, 11a; Sung hsing-t’ung, 21, 10a; Ming lit li, 20, 11a-b; Ching lit li, 27, 31a-b; Staunton, op. cit., 304-305; Boulais, op. cit., 504-505. % Chou li chu-su, 35, 1b; Biot, op. cit., 319. *8 Yuan shih, 102, 18b; 105, 5b-6a; Yiian tien-chang, 53, 25b-26b. 74 Ming li li, 22, 43b; Ch’ing lit li, 30, r00a. % Chéng hsiich Iu, 3, 29b.

THE LEGAL PRIVILEGES

185

non-officials. The just-cited facts indicate that officials whether active

or retired were also a privileged group before the law. Family Members

of Nobles and Officials

If the nobles and officials are considered a privileged class, then this class must also include their family members who received protection, so to speak, because of their connection with one or more members of these favored groups. Nobles and officials not only enjoyed special legal privileges themselves but these were also extended to their family members just as in the case of the rights of consumption. The higher a man’s title or rank, the greater the number of his family members to

enjoy his privileges and the greater the number

granted them.

of these privileges

In T’ang and Sung times if a grandparent, parent, paternal uncle or

his wife, paternal aunt, brother, sister, wife, son, grandson, or brother’s

son of someone who qualified under the “eight conditions for consideration” was guilty of a crime that ordinarily would be punishable by death, his or her case had to be reported to the emperor and permission received from him before sentence was pronounced; if the punishment was banishment or something less severe, their sentences were reduced

one degree.’§ The sentence of a grandparent, parent, brother, sister,

wife, son, or grandson of an official of the fourth or fifth rank to banish-

ment or some less severe punishment was reduced to one degree.” If a

grandparent, parent, wife, son, or grandson of an official of the sixth or

seventh rank was guilty and punishable by banishment or some less severe punishment, his sentences could be redeemed.’§ In Ming and Ch’ing times a grandparent, parent, wife, son, or grandson of someone who qualified under the “eight conditions for consideration” could not be examined without permission from the emperor, and the final judgment had to be approved by the latter.” In case of a maternal grand-

parent, paternal uncle or his wife, a brother, sister, brother’s children

or son-in-law of an imperial relative, or of an official with special and a parent of wife of an official of the fourth or fifth rank, as a son or grandson of the latter who was entitled to inherit his who possessed yin privilege, final judgment had to be approved

merit, as well title or by the

emperor, although the offence in question could be investigated by the government authorities.”

% T'ang lia su-i, 2, rb-2a; Sung hsing-t'ung, 2, 3a-b. 7 T'ang lit su-i, 2, 2b; Sung hsing-t’ung, 2, 4a.

® T'ang lit su-i, 2, 3a; Sung hsing-t'ung, 2, 4b.

Ming lali1,23b-24a; Ch’ingliili 4,314; Staunton, op. cit.,7; Boulais, op. cit., 35cit.,35, op. cit.,7-8; Boulais, op. © Ming liilit,24a;Ch’ingllitli4, 31a-b; cf. Staunton,

SOCIAL CLASSES (CONTINUED)

186

3. Inequalities between the Free and the Mean People and Slaves

Common

We have already pointed out the existence of a group of persons, mainly slaves, who were considered by society as “‘mean”’ people. They did not receive the same treatment as commoners before the law. The freeman was punished less severely than in ordinary cases between equals, the slaves more severely.

Injury and Homicide

In the former Han times a male or female slave who shot a commoner and injured him was to be executed in the market.*! In T’ang and Sung times a semi-slave, a kuan-hu or a pu-ch’ii,®* and the wife of the latter, who struck a freeman was punished one degree more severely than if the same crime had been committed against an equal. An ordinary male or female slave, whose status was inferior to that of a kuan-hu or puch’ii was punished one degree more severely.*3 Under Ming and Ch’ing male and female slaves who struck a freeman were punished one degree

more severely than in ordinary cases.*! If a male or female slave struck

a freeman and serious injury, such as a broken limb, blindness, or

complete disability resulted, the punishment in T’ang, Sung, Ming, and

Ch’ing

law was

heading.>

the same:

strangulation;

and

if death

ensued,

be-

On the other hand, under T'ang and Sung law, if a freeman beat and

injured a pu-ch'i, or a male or female slave belonging to another, the punishment was one and two degrees less severe respectively than in ordinary cases. The punishment for beating a pu-ch’ti to death was strangling; for beating a male or female slave to death, banishment to a distance of three thousand /i.8* In Yiian times for beating a male or female slave to death the punishment was one hundred and seven strokes and a fine of fifty taels to be paid for the funeral.8? In Ming and Ching times for beating and injuring a male or female slave the punish-

81 This law was abolished in A.D. 35 by Emperor Kuang-wu. Hou-Han shu, 1B, ob. ® For the definition of kuan-hu and pu-ch'ii, see p. 159, notes 193, 197. ® T'ang lid su-i, 22, 2b; Sung hsing-t'ung, 22, 2b. S Ming lit li, 20, 22a; Ching la li, 27, 58a; Staunton, op. cit., 336; Boulais, op. cit., 602. ® Tang li su-i, 22, 2b; Sung hsing-t'ung, 22, 2b; Ming lit li, 20, 22a-b; Ch'ing lat li, 27, 58a; Staunton, of. cit., 336; Boulais, op. cit., 602. % T'ang li su-i, 22, 2b-3a; Sung hsing-t'ung, 22, 2b. 87 Yuan shih, 105, 13b.

INEQUALITIES BETWEEN THE FREE AND THE MEAN

187

ment was less severe by one degree than in ordinary cases. For beating a male or female slave to death or for killing with intent the punishment was strangling. Illicit Intercourse

The same principles also applied in cases of illicit intercourse between free people and slaves, i.e. heavier punishment for the latter, lighter punishment for the former. We have already noted that intermarriage

between the free and the “‘mean” was strictly prohibited by law. We

should add that extra-marital sexual relations between the two were also tabooed, but different attitudes provailed as between men and

women. A good woman should never be touched by a slave. Once she was so polluted she could not be respected as previously. If she was

still single, this would prevent her from achieving a happy marriage—

no man of good station would marry her and a union with a slave

would be degrading. On the other hand society paid little attention to

illicit intercourse between a free male and a female slave. Such a relationship was considered neither shameful nor a serious offence. Thus a woman's status was affected both by her lack of chastity and the status of the man with whom she had had illicit relations; a man’s was affected

by neither. Only if marriage was involved, did the situation assume a

different complexion. To take a “‘mean” woman as wife would certainly lower a man’s status as well as that of his descendants, but to take her as concubine or merely to have illicit relations with her caused no serious problem. It is interesting to note that in a society such as the Chinese where

chastity was

considered a

strongly emphasized

and where

illicit intercourse

was

serious offence, different sanctions were imposed on the

free and the “‘mean”’ in cases involving relations of this kind.

In T’ang and Sung law a pu-ch’ii, tsa-hu,* or kuan-hu who had illicit intercourse with a free-woman was punished one degree more severely than in ordinary cases: i.e imprisonment for two years or two and one half years. The male slave was punished two degrees more severely than in ordinary cases: i.e. imprisonment for two and one-half years. In all cases rape was punished by banishment, and if a broken tooth or limb was caused the offender was strangled.” On the other hand, if a freeman a k’o-nii, or a female had illicit intercourse with the wife of a pu-ch’ti, tsa-hu or kuan-hu he was punished with one hundred strokes, and if the

8 Ming lili, 20, 22b; Ch'ing lit li 27, 58a; Staunton, op. cit., 336; Boulais, op. cit., 602. ® For the definition of the term, see p. 159, note 193. © T'ang lit su-i, 26, 10b, 13b; Sung hsing-t’ung, 26, 14b, 16a.

188

SOCIAL CLASSES (CONTINUED)

other party was a female slave, the punishment was ninety strokes.** In Ming and Ch’ing law a male slave who had illicit intercourse with the wife or daughter of a freeman was punished one degree more severely than in ordinary cases, and in case of rape he was beheaded. The punishment of a freeman who had illicit intercourse with a female slave was one degree less than in ordinary cases. Masters and Slaves

The inequalities between a freeman and a slave were still greater when the freeman was the slave’s master. Most privately-owned slaves were purchased, although some of them were given to nobles and officials by the government.® Once in this condition they lost their freedom and

Sung hsing-t'ung, 26, 14b. K'o-nit 4E fc was not 1 Tang lit su-i, 26, 11b-12a; mentioned in this law; however, a statement in T’ang lu su-i, 6, 7b and Sung “When the pu-ch’i is mentioned, the same [applies] also hsing-t'ung, 6, 6b reads: to pu-ch’it’s wife and h’o-nil.”” % Ming lit li, 25, 11b; Ch’ing lit li, 33, 40a; cf. Staunton, op. cit., 409; Boulais, op. cit., 695. *3 In Han times male and female slaves were frequently given to nobles and officials by the emperor as gifts (see C. M. Wilbur, Slavery in China during the Former Han Dynasty, Anthropological Series, Field Museum of Natural History, vol. 34, Chicago, 1943, 120-121). In some dynasties the family members of a criminal were often enslaved and given to meritorious officials, who held noble ranks. This was the only authorized means in the Ming dynasty for a family to possess slaves, and thus, legally speaking, a commoner was not allowed to have a slave. It was regulated that a person of the common people who kept slaves was.

to be punished with one hundred strokes and the slave was to be manumitted (Ming la li, 4, 0b, 11a; Wang k'én-t'ang chich shih, 4, 9b; Wang ch’i $ Hy, Hsit wén-hsien t'ung-h'ao $4 3 [Bk 5h %, 20, 30a; Hsi Huang, Hsit wén-hsien t'ungKao, 14: 2900). However, it should be pointed out that the keeping of slaves by non-official families was a common practice in the society. The discrepancy between the law and practice apparently had no serious effect on daily life. Only when the slave and the master were involved in a law suit did a problem arise. It was reported that slaves of commoners were treated as hired laborers before the law (Hsi Huang, Hsit wén-hsien !’ung-k'ao, 14: 2900). However, this was considered impractical by many who throught that although an ordinary official was not to be confused with an ennobled official, nevertheless a slave was not a commoner and should not be treated as such. Therefore a new regulation was set up in 1587 to the effect that a slave, whether owned by an official or a commoner, was considered a hired laborer when the wage and the term of service were defined in the contract; he was considered as an ordinary man when the service was limited only to days and months and the reward was small. A slave who was bought before he was fifteen and had been kept by the family for a long time or who was. bought when he was over sixteen, but was given a wife by his master was. considered a slave legally, regardless of the status of the master. (It was stated in

INEQUALITIES BETWEEN THE FREE AND THE MEAN

189

were no longer held to be independent personalities. In short they became the property of their master who would command their services

at all times or sell them to others. The statements in the commentary in the T’ang and Sung codes to the effect that ‘‘male and female slaves are the same as property,” ‘“‘male and female slaves are the mean

people and the law considers them as animals,’ ‘‘male and female slaves and pu-ch’ii are personally attached to their masters,’ and that male and female slaves “should be under the disposition of their masters’? underline typical attitudes toward private slaves. A slave’s marriage was arranged by his master. Sometimes a female slave was

manumitted and sent out of the household to marry a non-slave, but more usually she was given by her master to one of his male slaves. Her family members had no say in these arrangements. Most important of all, children born of a male and a female slave inherited the slave status from their parents and were owned by the family of the master. The commentary in the T’ang and Sung codes includes in the same category colts born to a man’s mares and children born to his

the regulation that under the above mentioned situations, a slave was to be treated the same as one’s children. Since a slave who injured or killed his master was given the punishment provided for one’s children, it should be pointed out that actually what was meant by the regulation was that the slave should be treated as a slave by the law). On the other hand, if the slave had been kept by the master for a short time and had not been given a wife, then his status varied according to the status of his master: he would be treated as a slave if his master was an active or retired official, but as a hired laborer if his master was a commoner (ibid, ‘The family members of criminals were also given to ennobled officials in the Ch'ing dynasty (Ch’ing li li, 23, 2b, rob; Hu-pu tsé-li, 1, 12a; Staunton, op. cit., 270, 27a; Boulais, op. cit., 465-466). However, owing to the fact that the keeping of slaves was a common practice among the non-official population, some adjustment was made in the law to the effect that the keeping of slaves by commoners was not considered unlawful. Thus it was defined in the law that only those who kept “the men and women of good families” as slaves in their families were to be punished with one hundred strokes and the slave to be manumitted (Ch’ing lit li, 8, 27b. According to Hsiieh Viin-shéng, the note mentioned above was inserted in the law in 1646—T li ts’un i, 9, 32b). At the same time the authorized procedure toask the government to validate the contract of purchasing slaves was regulated (Hu-pu tsé-li, 3, 24a). For a study on the sale and purchase of private slaves in various dynasties, see Niida

Noboru,

161-192. % T'ang lit 9% T'ang lit % T'ang lit 97 T'ang lit °8 Hsing-an

T6 sd héritsu monjo

no kenkya

ft $2 UE FE

BH OVER,

su-i, 4, 8a; 18, 3a; 20, 3a; Sung hsing-t'ung, 4, 7b; 18, 34; 20, 3a. su-i, 6, 8b; Sung hsing-t’ung, 6, 7d. su-i, 17, 12a; Sung hsing-t'ung, 17, 10b. su-i, 14, 8a; Sung hsing-t'ung, 14, 8a. hui-lan, 44, 18.

SOCIAL CLASSES (CONTINUED)

190

female slaves. Female children were also included and whether they were married to a male slave in the household or to someone outside depended entirely upon the master’s will. Usually there were laws that prohibited a slave from marrying his daughter according to his own

wishes. Slaves and their children could only be free if manumitted by their masters. To run away from a master was punished severely. In T’ang and Sung times those pu-ch’ti and male and female slaves who ran away were given sixty strokes, and the punishment was one degree increased after three days if they did not return.!° In Yiian times slaves were punished with seventy-seven strokes, and those who received and hid them were also held responsible.!° In Ch’ing times male slaves were given forty strokes and tattooed on the face. Female slaves were given eighty strokes; and if they married secretly one hundred strokes. Those

who kept them or married them with the knowledge of their status were similarly punished. If the parents of a female slave took her away

secretly, they were punished with three years’ imprisonment no matter

what the circumstances. Slaves who ran away were to be returned to their masters".

Injury and Homicide

Slaves were expected to give service at the command of their masters. They had to accept scolding and punishment at his hands. In a slave contract of the Ist century B.C. it was noted that “if the slave does not

obey the order he will be beaten with one hundred strokes.” Ssi-ma

Kuang was a generous and gentle gentleman, yet he thought that beat-

ing was necessary to control a slave.!°5 Small wonder that the slaves of

a cruel master, such as Hsiao Ying-shih #f #1 +: (eighth century), were

frequently beaten.1

™ T'ang lit su-i, 4, 8b; Sung hsing-t’ung, 4, 8a. Similar attitudes also prevailed in later times. It was clearly stated in the Ch’ing law that the descendants of all

the following groups were to serve in the master’s family generation after generation and that their marriages were to be arranged by their masters: 1) a “‘house-

born” slave, 2) a purchased slave whose contract had been stamped and validated

by the government, 3) a slave whose contract had not been stamped by the gov-

ernment but who had been purchased before 1735, and 4) a slave who had been kept by the family for a long time or had been given a female slave for his wife (Hu-pu tsé-li, 3, 24a; Ch’ing lit li, 28, 8a; cf. Ch'ing hui-tien shih-li, ch. 158). 3 T'ang lit su-i, 14, 8b; Sung hsing-t'ung, 14, 7b; Ch'ing la li, 28, ob-10a. 11 T'ang lit su-i, 28, 10b; Sung hsing-t'ung, 28, 10a. 2 Yiian shih, 105,278. 33 Chinglit li, 10, 50b; 28, 8a, ob.

=

ee

387-388.

8 Shu i, 4, 8b.

Be PT 9, Chan Han wén Ae We HC, 42, 12b; Wilbur, op. cit.,

™ Wang Ting-pao

7 §R, T'ang chih yen jig te , 15, 8a.

INEQUALITIES BETWEEN THE FREE AND THE MEAN

Igt

Thus, a master had the right to beat his slaves. Moreover he was not

responsible for any injury that might occur. No penalty was exacted for injuring a slave under T’ang, Sung, Ming, or Ch’ing law. And it was clearly stated in a note in the Ch’ing law that since the law established no punishment for injuring a slave, a master was not responsible, except where death was involved.” The master was also not responsible if he punished his slave lawfully and the latter died accidentally in the course of being beaten. What the law prohibited was punishment in an inhuman manner and killing with intent. An edict was issued by Emperor Kuang-wu (25-57) in A.D. 35 that anyone who burned a male or female slave was subject to punishment.’ During Sung and Yiian, masters were prohibited by law from tattooing their slaves. The killing of a slave was forbidden after the power of death became the exclusive prerogative of the government. In the second century B.C., Tung Chung-shu, a Han statesman, suggested to the emperor that no one should be permitted to kill a slave on his own authority.4 We do

not know whether his recommendation was adopted, but in 67B.C.

there was a case which indicates that the law already prohibited a

master from killing his slave. A governor went into the residence of the prime minister and personally examined the wife of the latter who was

suspected and the issued an beings in

of having killed a female slave. She denied having done so, case was investigated.4* In A.D. 35, Emperor Kuang-wu edict, saying that “the human is the most important of all the world, and anyone who kills his male or female slave

should not have his punishment reduced.” There was a case in which a eunuch’s wife who had killed her female slave was executed.14 However, Han law permitted a master to report a slave’s wrong-doings to

the local authorities and to ask permission to kill him.™* A similar law

operated in the Chin dynasty (265-420)."° In T’ang and Sung law a

master who killed his slave without having asked the permission of the government was given one hundred strokes."7 According to the law of 107 Ch'ing lit li, 28, 3b. ; 198 T'ang lit su-i, 22, 4a; Sung hsing-t’ung, 22, 3b; Yiian tien-chang, 42, 23b; Ming

lit li, 20, 26a; Ch’ing lit li, 28, 4a; Staunton, of. cit., 340-341; Boulais, op. cit., 605. Spire shu, 1B, 9b; Wilbur, op. cit., 468. 10 Weén-hsien t'ung-k'ao, 166: 1445;

Yiian shih, 105, 26a.

Wilbur, of. cit., 312. 31 Han shu, 24A. 15b; u2 Han shu, 76, 5a-b; Wilbur, op. cit., 373-37443 Hou-Han shu, 1B, 8b; Wilbur, op. cit., 468.

31¢ Qu-yang Hsiin [ak pf gj and others, I-wén lei-chat 4 3C Hj HK, 35, 33b-

US Shih chi, 94, 1a; Wilbur, op. cit., 262.

18 Chin shu, 30, 10a.

17 T'ang lit su-i, 22, 3b; Sung hsing-t'ung, 22, 3b.

SOCIAL CLASSES (CONTINUED)

192 Liao, when a

slave was guilty and deserved the death punishment, the

master, forbidden to kill the slave at will, should

send him

to the

authorities.28 The punishment in Yiian, Ming and Ch’ing times for a

master who, instead of remitting a guilty slave to the authorities, killed him on his own authority was similar to that of T’ang and Sung." The killing of a slave who was not guilty was more severely punished. In T’ang and Sung times killing such a slave with intent was punished by one year’s imprisonment; killing a pu-ch’ii by one and a half year’s imprisonment.° In Yiian times one who killed a slave with intent was. to be punished with eighty-seven strokes. In Ming and Ch’ing times the punishment for this act was sixty strokes and a year’s imprisonment, the family members of the murdered slave all being freed and becoming commoners.1?2 On the other hand, slaves were expected to treat their masters respectfully; any insult or violent action was a serious offence. In general the law considered the slave a child who should treat his master as a child treated his parents. Except when treason or rebellion was involved a slave was not permitted to accuse his master. Such an act was considered as “offending against status and right principles” and was therefore punished severely. In T’ang and Sung law a pu-ch’ti or a slave who accused his master was liable to the same punishment as a son who accused his father — strangling. Moreover, the accused master,

who was considered as having himself confessed was exempted from punishment.!8 Slaves were also not permitted to accuse their masters

under the law of Liao and Yiian.1*4 In Ming and Ch’ing law a slave who

accused his master was punished as was a son: one hundred strokes and three years’ imprisonment if the accusation proved true, and strangling if the accusation proved false.!*5 On the other hand when a slave was guilty of some crime, his master was entitled to charge him with it, and, as in the case of accusing his son, the master was not punished even if the accusation proved false.1°6

U8 19 op. 1 132

Liao shih, 61, 5a-b. Yuan tien-chang, 42, 236; Min, ii li, 20, 25b; Ch'ing lit li, 28, 3b; Staunton, cit., 340; Boulais, op. cit., 605. T'ang lit su-i, 22, 3b-4a; Sung hsing-t'ung, 22, 3b. 1° Yuan shih, 105, 13b. Ming lit li, 20, 25b~-26a; Ch'ing lit li, 28, 3b; Staunton, op. cit., 340; Boulais,

op. cit., 605.

18 Tang i lit sui, 24, 3b; Sung hsing-t'ung, 24, 4a. 14 Liao shih, 6t, 5a; Yan shih, 105, 6a-b; Yuan tien-chang, 53, 16a-b, 18a, 43a. 48 Ming lit li, 22, 31a; Ch'ing li li, 30, 68b; Staunton, op. cit., 373; Boulais, op.

cit., 646.

188 Ming lit li, 22, 3b; Ch’ing lit li, 30, 68b~69a; Staunton, op. cit., 373; Boulais,

op. cit., 646.

s

INEQUALITIES BETWEEN THE FREE AND THE MEAN

193

In T’ang and Sung law the punishment for a slave who scolded or beat his master or injured him accidentally was banishment.!2? Under Yiian a slave who scolded his master was given a hundred and seven strokes and three years of forced labor; when the latter was fulfilled the slave was sent back to his master. If a master beat a slave to death who had scolded or beaten him the master was not to be punished.15 Under Ming and Ch’ing a slave guilty of scolding his master was strangled, and one guilty of striking his master whether injury resulted or not, was beheaded.”* In T’ang and Sung times to cause the death of one’s master was punishable by strangling even if the killing was accidental. In Yiian law killing a master with intent was punishable by dismember-

ment."! Under Ming and Ch’ing a slave whose act caused the death of

his master, regardless of whether simple fighting,

killing with intent,

or premeditated murder was involved, was to be dismembered; if the

intended murder miscarried, no matter whether injury resulted or not, the slave was to be beheaded; if the master was killed accidentally, the slave wassubject to “detention in prison for strangling;” if the master was injured accidentally, the slave was to be given one hundred strokes and banished to a distance of three thousand /i.* In each case the punishment was the same as that given to a similarly offending son.

The fact that dismemberment was not included among the five regular

punishments, but one which only applied in cases of rebellion, parricide, or the killing of a husband and some few other serious crimes indicates

the special emphasis that was attached to the master-slave relationship. If the master was an official the difference between the master and his slave was even greater. As noted above, an official’s status was superior to that of a commoner, and this was recognized by the law. That a slave whose status was even lower than that of a commoner would be subjected to greater inequalities is quite understandable. Thus in the Ch’ing dynasty the law held that an official who killed his slave should be punished less severely than a commoner. An official who killed his slave with a knife was given one hundred strokes and dismissed from office. However, beating a slave to death or killing him with intent was subject only to a fine or demotion. An official's

421 T'ang lit su-i, 22, 4b; Sung hsing-t’ung, 22, 4a. 1 Yuan shih, 104, 7a; 105, 13a-b. 1 Ming lit li, 20, 25; 21, 3b; Ch'ing lid li, 28, 2a; 29, 6; Staunton, op. cit., 338, 356; Boulais, of. cit., 604, 627. 181 Yuan shih, 104, 72. 199 T'ang lit su-i, 22, 4b; Sung hsing-t'ung, 22, 4a. 28, 2a; Staunton, of. cit., 482 Ming lit li, 19, 5b; 20, 25; Ch’ing lit li, 26, 17a-b; 306, 338; Boulais, op. cit., 545, 604. 433 The fine for beating to death was two years’ salary, and for killing with intent demotion two grades (Ch'ing lit li, 28, 10a). 13,

194

SOCIAL CLASSES (CONTINUED)

mother or wife who caused the death of a slave was also permitted to

redeem herself, the amount paid varying with the rank of her husband

or son. Even if the latter was dead she still had the same privilege.*%

Pawned or hired servants, although they did not dare to eat or sit with their masters nor use the words “1” or “‘you”’ inaddressing them,>

were not of slave status and were therefore not treated as slaves by the law. The services of those who pawned themselves out as servants were limited to a definite number of years, after which time they could redeem themselves. Only if they were unable to pay the redemption costs would they become permanent slaves. The pawned servant, however,

who had served in a family for a long time and had been given a wife by

his master usually had little chance to get away. Ch’ing law therefore drew a distinction. It held that those who had pawned themselves for

three years or more and who had been given a wife were to be treated as slaves if fights or killings between them and their masters were involved; but if the pawned servant had served less than three years and had not been given a wife, the law held that he was to be treated as a hired servant.186

44 A regulation was set up in the K’ang-hsi ff KB period (1662-1722) that the grandmother, mother, or wife of an official who beat a slave to death was to be fined an amount equal to one year’s salary of her grandson, son, or husband. If she killed the slave with intent the fine was two years’ salary.

This regulation

was abolished in 1740. Thus the mother or wife of an official was exempted from the above mentioned privilege. However, as a rule a woman who was sentenced to the punishment of imprisonment or banishment was to be given one hundred

strokes and the remaining punishment was to be paid off by redemption. This was pointed ont by an official in 1871 as a factor responsible for the numerous

cases of beating and killing of slaves by female masters, and thus he requested a new regulation that a woman who killed a slave was not to be allowed to redeem

her crime. The Ministry of Justice objected to his suggestion, considering that

since a woman was allowed to redeem her imprisonment or banishment when she occasioned the death of a commoner, it would be unfair if she was not permitted

to redeem in cases of killing a slave. However, admitting that such protection given to mothers and wives of officials was a factor encouraging them to treat their slaves inhumanely, a regulation was worked out by the Ministry, based upon an idea similar to that of the old regulation of the K’ang-hsi period. Under this new regulation a female family member

of an official who

occasioned the

death of a slave was to be punished according to the law when her sentence was the death penalty or corporal punishment. She was to be fined if her sentence

was imprisonment or banishment. The fine was one year of her husband’s or the

family head’s official salary in lieu of one year’s imprisonment, two years’ salary for two years’ imprisonment, and three years’ salary for banishment. Furthermore, the honorary title which had been given to her was to be taken away (Hsing-pu t’ung hsing chang-ch’éng, A, 77a-80a). 185 Ch’ing li li, 28, 8b-ga.

196 Ch'ing lit li, 28, Sb-9a; Shuo-t'ieh lei-pien, 26, 13a-14b; Shuo-t"ieh, 24th year of Chia-ch’ing (1918), Wang Chia-shih’s case.

INEQUALITIES BETWEEN THE FREE AND THE MEAN

This cooks, various Such

195

last category included sedan chair carriers, carriage drivers, water-carriers, and all other servants who had been hired for types of domestic service.187 persons received a definite wage, the amount depending upon

a contract that was agreable to them and to their employers. When their contract expired, they ceased to serve, the relationship of master-

servant was abrogated and they were free to leave. Society therefore

regarded them as independent persons and the law did not include them among the “mean”’ or “unfree’’ people.!** When such persons came into conflict with a commoner they received equal treatment, and when they came into conflict with their masters they were considered neither as slaves nor as commoners, but subject to special laws provided for hired servants. In Ch’ing law it was expressed thus: The punishment for a hired servant who injured his master was more severe than in ordinary cases, but less severe than for a slave; on the other

hand, a master who injured his hired servant was punished more severely than if the injured had been a slave but less severely than in

ordinary cases. Thus a servant who scolded his master was given eighty strokes and two years’ imprisonment. The punishment for beating one’s master varied from three years’ imprisonment to banishment to a distance of three thousand /i, or strangling, depending upon the degree of injury occasioned. Beating a master to death was punished by immediate beheading. In case of injury or killing by accident the punishment was reduced two degrees.4° Only when killing with intent or premeditated murder was involved was the punishment the same for both slaves and hired servants. A hired servant was subject to instructions and commands from his master. In case of disobedience the master had the right to punish him; therefore the master was not liable to punishment where beating was involved unless serious injury such as blindness or a broken limb resulted. When such was the case the master’s punishment was three degrees less than in ordinary cases. If death ensued, he was given one hundred strokes and three years’ imprisonment. But he was not held punishable if he had chastised a disobedient hired servant in a lawful manner and death had occurred unexpectedly. Also he was not respon-

398 [bid., 6a. 137 Ching lid li, 28, 9a. 189 Ming lia li, 21, 3b; Ch’ing lit li, 29, 6a; Staunton, op. cit., 356; Boulais, op. cit.,

627.

14 Ming lit li, 20, 25a-b; Ch’ing lit li, 28, 3a; Staunton, of. cif., 339; Boulais, ; op. cit., 604-605, 41 Ming li li, 19, 5b; 20, 25b; Ch’ing lu li, 26, 17b; 28, 3; Staunton, op. cit., 306, 339; Boulais, op. cit., 545, 605. 1s*

196

SOCIAL CLASSES (CONTINUED)

sible in case this killing was accidental. However, if he killed a hired servant with intent he was strangled.”

Finally the relationship between the master’s family members and

slaves as well as hired servants under the principle of familism is of interest. In a big household several generations usually lived together. Although a slave was owned and a hired servant was hired by one master, it was generally held that the slave or the servant belonged to the household as a whole, and that, theoretically speaking, all members were his masters,

and all should

therefore be respected and obeyed.

Furthermore, it was also held that family members or relatives not living with the master should also be respected, and to a greater degree than commoners who were not related to his master. For this reason a general principle was implemented in the law: Slaves and hired servants who assaulted the relatives of the master were punished more severely than was assault against ordinary commoners; and relatives of the master who assaulted his slave or hired servant were punished less severely than were cases involving the assault of an ordinary slave. In all cases the degree of the reduction or the increase in punishment depended entirely upon the degree of relationship existing between the master and the relative of the latter. The closer the degree of relationship between the two, the more the responsibility for the slaves and the

hired servants, and the less the responsibility for the master’s relatives. In T’ang and Sung law a pu-ch’ii or a slave who beat a fourth-degree relative of his master was punished with one year’s imprisonment; for

beating his master’s third or second-degree relatives one and a half

year’s imprisonment and two years’ imprisonment respectively. If serious injury resulted from striking a master’s fourth-degree relative

the punishment was one degree more severe than it would have been if he had injured an ordinary commoner; and where a master’s third or fourth-degree relative was involved, the punishment was respectively two and three degrees more severe. In all cases where the beating occasioned death, the pu-ch’ii or slave was beheaded. If the latter assaulted

his master’s first-degree relative or his master’s maternal grandparents, the punishment was only next to that for assaulting his own master. Scolding was penalized by two years’ imprisonment, beating by strangling. But if the beating occasioned injury, the penalty was beheading. Accidental killing was punished two degrees less severely than was killing with intent; accidental injury one degree less than injury with intent.** In Ming and Ch’ing times the law was practically the same

42 Ming lili, 20, 26a; Ch’ing litli, 28, 3b-4a; Staunton, op. cit., 340-341; Boulais, op. cit., 545. M8 T'ang lit su-i, 22, 4b-5a; Sung hsing-t'ung, 22, 4a-b.

INEQUALITIES BETWEEN THE FREE AND THE MEAN

197

except that a slave was held liable for scolding his master’s second, third, or fourth-degree relative, the punishment being eighty, seventy, and sixty strokes respectively. Moreover, whena slave killed hismaster’s first-degree relative or maternal grandparent with intent, the punishment was increased to dismemberment.144 A hired servant who scolded his master’s first-degree relative or maternal grandparent was given one hundred strokes; where a seconddegree relative was involved, sixty strokes; a third-degree relative, fifty strokes; and a fourth-degree relative, forty strokes. Beating a

master’s fourth-degree relative was punished with eighty strokes; a second-degree relative with one hundred strokes. If serious injury re-

sulted the punishment

for beating a master’s third or fourth-degree

relative was one degree more severe than in ordinary cases; in case of a

second-degree relative the punishment was two degrees more severe than in ordinary cases. In all cases, if death resulted, the guilty one was beheaded. Beating or killing a master’s first-degree relative or

maternal grandparent was punished as were beating or killing a master.146 As a rule the relatives of a master were not held liable if they beat his slave except when serious injury such as blindness or a broken limb

was inflicted. When such an injury was occasioned, the punishments were as follows: in T’ang and Sung times a person who beat a pu-ch’ti

or aslave of his fourth or third-degree relative was punished two degrees

less severely than if the injured one was a slave or a pu-ch’ii of a stranger; and if the injured one was a pu-ch’ti or slave of a second-degree relative three degrees less severely than in ordinary cases. Where the killing was accidental no liability was involved. The punishment for

beating or killing a pu-ch’# of a first-degree relative or of a daughter’s children was the same as that imposed on the master.” In the main,

the Ming and Ch’ing regulations were similar to those of T’ang and

Sung, but the later codes noted in addition that the punishment for beating a slave of a second, third, or fourth-degree relative was one hundred strokes and three years’ imprisonment, for killing with intent, “detention in prison for strangling.’* Moreover, a person was not held

4M Ming lid li, 20, 25a; 21, 3b; Ch'ing lit li, 28, 2a-3a; Staunton, op. cit., 338-339, 356; Boulais, op. cit., 604, 627. 4S Ming lit li, 21, 3b; Ch’ing lit li, 20, 6a; Staunton, op. cit., 356; Boulais, op. cit., 627. 1M Ming liz li, 20, 25-b; Ch'ing lit li, 28, 3a-b; Staunton, op. cit., 330-340; Boulais, op. cit., 604. F 47 T'ang lt su-i, 22, 3b, 5b; Sung hsing-t'ung, 22, 3b, 5a. 48 Ming lu li, 20, 22b, 25b; Ch’ing li li, 27, 58a-b; 28, 3b; Staunton, op. cit, 337, 340; Boulais, op. cit., 602, 605.

198

SOCIAL CLASSES (CONTINUED)

liable for beating a hired servant of a relative unless serious injury resulted. Then the punishment was one degree less severe than in ordinary cases if the servant belonged to a third or fourth-degree relative; and two degree less severe if the injured one belonged to a second-degree relative. In all cases when a servant was beaten to death or killed with intent, the guilty party was subject to “detention in prison for strangling”’, but accidental killing was not punishable. Again, a master’s first-degree relative or a maternal grandparent who injured or killed his hired servant was accorded the same treatment as the master. Tilicit Intercourse

Since slaves were the property of the master and under his complete

control, it was not unusual for a master to demand sexual satisfaction

from his female slaves and their daughters. For thousands of years such rights were recognized by Chinese society. T’ang and Sung law held

that a female slave who had given birth to a child or who had been freed could become the concubine of her master.15! Actually the differ-

ence between a man’s relation to his female slave and to his concubine derived chiefly from the fact that the relation between a concubine and

her “husband” was an open one, while that between a slave and her master was not. However, once the slave gave birth to her master’s child, the relation was openly admitted, and the slave could easily attain the status of a concubine.

The Dream

of the Red

Chamber,

the

famous 18th century novel, makes these attitudes explicit. In Yiian law, a master who had illicit intercourse with his male slave’s daughter at a time when she was already engaged to a commoner, was given

one hundred and seven strokes,!*? but if she was not so engaged, he

would go unpunished.

At certain periods, a master’s sexual privileges might also extend to the wives of slaves or hired servants. Thus in T’ang and Sung law

punishment was imposed only when a man had illicit intercourse with the wife of a pu-ch’ti or k’o-nii belonging to someone else. The Su-i, the commentary, interprets that having illicit intercourse with the wife of one’s own pu-ch’t or k’o-nii was not punishable.!58 Yiian law frankly

states that ‘those masters who have illicit intercourse with the wives of their slaves are not punishable.’ In Ming and Ch’ing law punish-

4 Ming lit li, 20, 22b; Ch'ing lu li, 27, 581

cit., 602-603.

taunton, op. cit., 337; Boulais, op.

3 Ming lit li, 20, 26a; Ch’ing lw li, 28, 3b-4a. Cf. Staunton, op. cit., 340-341; Boulais, op. cit., 605. 1) T'ang lit su-i, 13, 11b; Sung hsing-t’ung, 13, 12b. 182 Yuan shih, 104, 10a. 388 T'ang lit su-i, 26, 12a; Sung hsing-t'ung, 26, 14. 38 Yuan shih, 104, 10a; Vian tien-chang, 45, tb.

INEQUALITIES BETWEEN THE FREE AND THE MEAN

199

ment was imposed only on slaves or hired servants who had illicit intercourse with their master’s wife or daughter, but no article mentioned the punishment of a master who had illicit intercourse with the wife of a slave or hired servant. Until 1673 no distinction was made between a single female slave or servant and one who was married. After that year, a master’s sexual tights were confined to unmarried female slaves; illicit intercourse with a married female slave or sevant was punished with forty strokes. However, when the master was an official, the government deliberated on the punishment, usually a fine.15* Injury resulting from resistance to attempted rape also deserves consideration. In ordinary cases, women had the right to resist any criminal attack upon them. However, this privilege did not extend toa female slave or woman servant. Since there was no law that set forth how a female slave or woman servant should be punished if she injured

her master while he was trying to rape her, sentence in such cases in Ch’ing times usually paralleled that for striking a master, but with certain modifications. One master who attempted to rape his woman servant had his penis cut and injured. The woman was banished according to the punishment for striking a master, but reduced one degree.!? Another master who attempted to rape his woman servant

had his tongue bitten off when he inserted it in her mouth. As in the former case, the woman was sentenced to be banished, but later she

was granted a special pardon by the emperor.!* Both cases show that

the master-servant relationship dominated. The great differences between the punishment of a master who raped his married woman-servant and that of the servant who injured her master eventually led to

a condition where resistance was allowed only when no injury resulted.

The alternative before her seems to have been to submit or to commit suicide. Unlike certain other features discussed above, sexual privileges over slaves and servants were limited to their master, wives and daughters of masters being excluded. If they had illicit relations with a male slave or servant of the family, they were severely punished. In T’ang and Sung times the punishment for a female member of the master’s family who had illicit intercourse with a pu-ch’ii or male slave was only one

degree less than that for the guilty slave." Under Ming and Ch’ing a

wife or daughter of a master who was guilty of having illicit intercourse

488 Ming lit li, 25, 8b; Ch’ing liz li, 33, 31a; Staunton, op. cit., 408; Boulais, op. cit., 688. 487 Hsing-an hii-lan, 63, 48a. 156 Ch'ing lit li, 33, 32a; Boulais, op. cit., 689. 189 Tang lit su-i, 26, 13b; Sung hsing-t’ung, 20, 16a. 188 Tbid., 51b-53.

200

SOCIAL CLASSES (CONTINUED)

with a male slave or a servant of the family was punished as was the latter.16A male slave or servant having illicit intercourse with a female

family member of the master was always punished by death. In T'ang

and Sung law those male slaves or pu-ch’si who had illicit intercourse

with the masters’ female relatives were strangled ; if guilty of committing

rape, beheaded.1* Under Yiian male slaves having intercourse with the wives or daughters of their masters were sentenced to death. Under Ming and Ch’ing male slaves and servants who

were guilty of such

crimes were punished by beheading." In case of rape, whether committed or not, the punishment was the same in Ch’ing law. Male slaves and servants who had illicit intercourse with the relatives of their master were also punished more severely than those who

were guilty of this crime with an ordinary common person. The closer the degree of relationship between

the relative and

the master

the

more severe the punishment of the guilty slave or servant. In T’ang and Sung law a pu-ch’i or slave who had illicit intercourse with a first degree relative of his master was punished as if he had had a sexual relationship with his master’s wife or daughter; when he had illicit intercourse with a second, third, or fourth degree relative or with the wife

of such a relative he was banished, and if guilty of rape, strangled."

Under Ming and Ch’ing male slaves or servants guilty of having illicit

intercourse with a first degree relative of their master or with the wife of such a relative were strangled; if guilty of illicit intercourse with a second, third, or fourth degree relative of their master or with the wife

of such a relative, they were given one hundred strokes and banished

to a distance of two thousand /i; all cases of rape were punished by “detention in prison for beheading.’’1** For illicit intercourse with a concubine of one’s master or the concubine of a relative of one’s master, the punishment was one degree less than for having illicit intercourse with their wives.16?

100 Ming lu li, 25, 8b; Ching li i 33, 31a. Cf. Staunton, op. cit., 408; Boulais, op.

cit., 688. Staunton’s translation is incorrect in saying that the punishment of

wives and daughters was less by one degree. The original note in both the Ming and Ch’ing codes states clearly that wives and daughters received the same punishment as the slave, and only the master’s first degree relatives and their wives were punished one degree less than the slave. 381 T'ang lit su-i, 26, 13b; Sung hsing-t'ung, 26, 16a, 82 Yuan shih, 104, 10b. 169 Ming litli, 25,8b; Ch’ing lili, 33, 31a; Staunton, op.cit., 408; Boulais,op.cit. 688. 461 Civ'ing li li, 33, 32b; Boulais, op. cit., 689. 185 T'ang lu su-i, 26, 13b; Sung hsing-t’ung, 26, 16a. 168 Ming lit li, 25, 8b; Ching li li, 33, 31a; Staunton, op. cit., 408; Boulais, op. Cit., 689. 17 Trang lit su-i, 26, 13b; Sung hsing-t'ung, 26, 16b; Ming lit li, 25, 8b; Ch'ing la Hi, 33, 31a; Staunton, op. cit., 408; Boulais, op. cit., 680.

INEQUALITIES BETWEEN RACES

201

4. Inequalities between Races In the typical Chinese society,’ as shown above, class distinctions were based on social and political factors. However, in conquest dynasties a line was drawn between different ethnic groups. The conquerors always regarded themselves as superior to the conquered, and the latter were discriminated against. The inequalities were expressed

socially, politically, and legally.

When the Ch’i-tan, Jurchen, Mongols, and Manchus conquered and

ruled over China, the inequalities were extremely significant. The con-

quering group considered itself the superior one. Differences were also recognized among the conquered groups: those who submitted first were usually considered superior to those who submitted later. Under Liao, the status of the Ch’i-tan was superior to that of the Chinese and

the Po-hai # #16

Under Chin, the Jurchen ranked highest among

the various peoples of the empire; next came those who had been taken

over from Liao, the ‘“Han people.” The lowest rung was occupied by the southern people, the Chinese in what is now Shantung and Honan, who were the last to submit. Under Yiian, four strata were clearly defined: 4, the people of the Western the Mongols at the top, then the Sé-mu

Regions, who had submitted in Chingis Khan’s time, the Han, who had been taken over from Chin, and the Southerners, who had submitted after the Southern Sung dynasty was overthrown.1” In Ch’ing times, the Manchus were always superior to the Chinese (Han people).

A number of Chinese officials were employed in Liao government.

They played a prominent role in the government of the Southern Region, and even held a number of high positions in the Northern Region. However, they held only secondary positions and were not entrusted

with essential political and military power.!71 Under the Yiian dynasty, the Mongols exercised the greatest political power,

then the Sé-mu,

the Han,

and the Southerners whose in-

fluence was of a very limited kind, neither being permitted to partici-

36 The term “typical Chinese society” is used to mean a society which was organized and governed by Chinese in the traditional way and whose social structure, as well as class structure, was not affected by the presence of alien elements. This pattern contrasts with a conquest dynasty, under which the Chinese were conquered and governed bya different ethnic and cultural group. This distinetion has significant implications in political, legal, and social aspects. 369 See Wittfogel and Féng, op. cit., 194-195, 198-199. 3 Cf, Cho-héng Iu, 1, 15a-17b; Ch’ien Ta-hsin 3¥ -¢ |), Shih-chia-chai yang-hsin lu + $8 HE FE Hi Bh 9, 70; Nien-érh shih cha-chi, 28, rb-14a; Méng Ssii-ming 83 KABA, Yuan-tai shé-hui chieh-chi chih-tu 7e 4X iit @ BE Be iti) KE, 34-36; Yanai Watari % j] Ai, MokO shi kenkya 25 iy sh HER, 345-347171 Wittfogel and Féng, op. cit., 195, 454, 404-

SOCIAL CLASSES (CONTINUED)

202

pate in military affairs nor important affairs of state.” Asa tule, the chief ministers in the Executive Ministry (Chung-shu-shéng PE

44),

Privy Council (Shu-mi-yiian #8 # Be), and the Censorate (Yi-shihtai 1 38H) had to be Mongols.” In all other offices, central as well as local, a Mongol was expected to be the chief executive, the Han and Southerners holding only subordinate positions.’ There were some

exceptions but throughout the entire Yiian dynasty only one Chinese

was appointed

the minister of Chung-shu-shéng,

three were

prime

ministers, two vice-ministers of the shu-mi-ytian, and one grand censor. Compared with the Mongols in important office, their number is insignificant.

In addition,

those

Chinese

who

held the

yin privilege

entered office one rank below the Mongols. Thus the son of a Chinese

official of the first rank was appointed to a post in the fifth rank, whereas the son of a Mongol or Sé-mu official of the first rank was appointed to a post in the fourth rank.176 The conquering group also enjoyed many legal privileges. In Liao times, the Chinese were not permitted

to hunt.!77 The

Po-hai were

prevented from playing the polo game.” According to Yiian law, a Han or Southerner was not permitted to possess a weapon. Even if he

was a soldier, he was given a weapon only when he was sent into battle.

As soon as he returned, his weapon was returned to the government.!7° They were forbidden to have bows and arrows, iron sticks, iron canes

with a concealed sword, helmets or mail.1*° Since horses were also considered military equipment, the Han and Southerners were not permitted to have them either. Anyone who privately kept a horse or traded horses was punished.81

The hoarding of weapons was a

serious offence. Anyone who owned

ten lances, swords, or crossbows, or ten sets of bows and arrows, or one

suit of mail and a helmet was given the death penalty. Even the possession of poor lances or swords or broken pieces of mail or helmets was punished by beating." To enforce the law the authorities frequently made a search for weapons among the people.'** The weapons confis-

12 Yuan shih, 98, 3a; 154, 11b; 184, 7, 14a; Méng, op. cit., 43-45; Yanai, op. cit. 288-200. ¥8 Yuan shih, 26, 4b; 140, 4b; 186, 20a. ¥4 Yiian shih, 85, tb; see also 6, 2a, r4b-15a; 10, 24a; Yuan lien-chang, 9, 9a, ro0a-12a. ¥8 Ci, Nien-érh shih cha-chi, 30, 7a-8b; Meng, op. cit., 37-39; 41-43; Yanai,

op. cit., 292-300.

17 17 1 ¥82

Yizan Liao Yuan Tbid.,

shih, 20, 8b; 83, 3a; T’ung chih t'iao-ko, 6, 11b-12a, shih, 22, 7a. 18 Liao shih, 81, 2b. shih, 20, 26a-b; 105, 18a. 1 Tbid., 105, 18a. 105, 18a-b. W898 [bid., 15, 20a-b.

1 Ibid., 14, 7a. mith

INEQUALITIES BETWEEN RACES

203,

cated from the Chinese were then sorted into three piles; the worst were destroyed, the medium good ones were given to Mongols, and the good ones were placed in the government storehouses and supervised by Mongol or Mohammedan officials. A Han or Southern official was not permitted to be in charge of stored weapons.!** Nor were the Chi-

nese permitted to hunt or to learn to box, fence, or wrestle.18° In the event of a breach, both teacher and pupil were given seventy-seven 186 strokes. Yiian law also restricted the Han and the Southerners in their use of clothing, ornaments, houses, and carriages, according to sumptuary laws; but the Mongols were only forbidden to wear or use the dragon

and phoenix patterns.157

Inequalities also existed before the law. Under Liao, the Ch’i-tan and Chinese were not subject to the same judicial authority or to the same law. Two codes of law and two orders of judicial authority were recognized: the Northern and Southern Divisions.48 The Liao emperor himself underlined the inequality between the Ch’i-tan and the Chi-

nese.!*° If a Ch’i-tan and a Chinese were involved in a quarrel and one

of them was killed, the survivor's punishment was regulated by his nationality. Thus a Chinese who was guilty of killing a Ch’i-tan was to be beheaded and furthermore his family members were to be enslaved,

whereas a Ch’i-tan who had killed a Chinese had only to pay cattle or horses as compensation. This law was not abolished until 983.1%

In the Yiian dynasty, the Chinese and Mongols were also under different law and authority. Only the Han and the Southerners were subject to the jurisdiction of the local officials. Mongols

and Sé-mu

who were guilty of some crime or who were involved in a dispute with

the Chinese had to be judged by the tsung-chéng 4 1.1%! When a

484 [bid., 13, 17a-b. 185 Ibid., 16, 9a; 24, 16b; 28, 1a. 46 [bid., 105, 2b; Yuan tien-chang, 57, 50b. 487 Yuan shih, 78, 138-148; 105, 16b. 18 Liao shih, 45, 14-b; 47, tab, 3a; 61, 3a, 5a, 6b; 62, 3a-b; Hsi Huang, Hsu wén-hsien t'ung k'ao, 135: 4002-4003; Takikawa Masajiro ii )i| Be Hf and Shimada Masao f% [1] iF [uf, Ryovitsw no kenkya jxe fit 2 WR IE, 33-34,38-40, 42-45. Cf. Wittfogel and Féng, op. cit., 198. 1 Liao shih, 61, 6b. 3 Tid., 5a; Hung Hao yk ff, Sung-mo chi-wén pe w #2 Hi], 10a; Li T’ao 2 HE, Hit t2ii-chih t'ung-chien ch’ang-pien $4 Z& i Sih HE 4E Ha 72, 21a-b: Wang Ch’éng ¥ ff, Tung-tu shih-lich Je Af 46 Hi, 123, 5a; Takikawa and Shimada, op. cit., 209; Wittfogel and Féng, of. cit., 198. 11 Yiian shih, 102, 8b. In the early days of the Vian dynasty both the Chinese and Mongols were under the jurisdiction of the same authority: the Office of the Tsung-chéng 4% jE. From 1313 on, trial for Chinese was shifted to the Ministry of Justice. In 1328 it was regulated that all the Mongols in the old capital (Shang-tu

SOCIAL CLASSES (CONTINUED)

204

Mongol official was found guilty he had to be judged by a Mongol official. If he was sentenced to be beaten, the blows had to be administered by a Mongol.!%” Inequality also found expression in lawsuits between

Chinese and

Mongols. According to the law, when a Mongol and a Chinese fought, the Chinese could not hit back, but he could report the incident to the authorities. If he did hit back, he lost his right of appeal and was

punished2%

The rule of ‘‘a life for a life” operated only when a Chinese killed a

Mongol, when a Mongol killed a Mongol, or when a Chinese killed a

Chinese. If a Mongol killed a Chinese he was drafted into the army and forced to pay his victim’s funeral expenses. Mongols were also exempted from certain punishments, such as tattooing. If an official tattooed a Mongol, he was given seventy-seven strokes and dismissed from office. The tattoo on the victim was removed. In the Ch’ing dynasty, Bannermen"” were not under the same jurisdiction as the Chinese. Instead of the local government

official, the

li-shih tung-chih 2 YT) $n or li-shih t'ung-p'an #2 UE 3h Pl was the authority by which they were judged. In cases of robbery, homicide,

and other serious crimes, they were tried jointly by the li-shih tungchih and the department (chou) or county (hsien) magistrate. The local authorities could try them only in civil suits in which the Chinese were involved. The Chinese, if guilty, were sentenced by the local authorities.

_k Bor K’ai-p’ing #4 2) and the new capital (Ta-tu 4 #f} or Peiping 4k Js), as well as the Sé-mu belonging to the Imperial Guards and the chiin-chan ff 3h, who had disputes with the Chinese were to be judged by the Office of the Tsung-

chéng, whereas only the Mongols and the Sé-mu living in the various localities were

under

the jurisdiction

Law

(Tientsin, 1937), 207.

of the Ministry

of

Justice,

as were

the Chinese.

However, an edict was issued in 1334 that the Mongols and Sé-mu were to be judged by the office of the Tsung-chéng, and that only the Han people and the Southern people were under the jurisdiction of the Ministry of Justice and the local government (Yuan shih, 38, 7b; 87, 1a-b; cf. Meng, op. cit., 53-54; Yanai, op. cit., 337-338). 2 Yuan shih, 102, 8b. ¥8 [bid., 105, 7b-8a; Yiian tien-chang, 44, 8a. ™ T’ung chih tiao-ko, 28, 29a; Yiian tien-chang, 44, 8a. 5 Yuan shih, 105, 11a; V. A. Riasanovsky, Fundamental Principles of Mongol 6 Yuan shih, 104, 11b-12a, 21b; Riasanovsky, op. cit., 207.

17 Those who belonged to one of the twenty-four divisions of the Manchu

army

were called "‘Bannermen.” They were of three nationalities: Manchu, Mongol, and Chinese who had joined the Manchus against the Ming dynasty. Each nationality was given eight divisions. Since the whole Manchu population of Peking and of the various garrisons in the provinces were enlisted as Bannermen, the term included all the Manchu males and their families. For further details see Ch'ing

hui-tien, ch. 84; W. F. Mayers, The Chinese Government (London, 1897), 51-52.

INEQUALITIES BETWEEN RACES

205

However, if the Bannermen were found guilty, they had to be handed

over to the li-shih tung-chih for judgment and punishment. Only

those Chinese Bannermen who cultivated land for the nobles in Chihli province and those Bannermen, Chinese, Manchurian, or Mongolian, who had changed from the register of the Bannermen to that of the ordinary population were to be tried by local authorities in all cases, whether civil or criminal. However,

the latter still had to ask the di-

shih tung-chih or li-shih t'ung-p'an, if he was in the city, to join in the trial. Only when there was no such official in the same city was the

magistrate authorized to judge them. Here it should also be pointed out that among the Bannermen, the Chinese were not treated the same

as the Manchus or Mongols. Thus, it was regulated that Manchurian or

Mongol Bannermen who cultivated land for the nobles in Chihli were subject to laws which were applicable only to Bannermen and were not under the jurisdiction of the local authorities. It was admitted by the

Pa-ch’i tu-t'ung /\ Me Bb if, the lieutenant generals of the Eight Banners, that this arrangement caused most Bannermen to show little

respect for the law and made it difficult for the local officials to control

them.20

The Manchus also enjoyed many privileges under the criminal law. While the Ch’ing Code, the Ta-Ch’ing lii-li, applied to both Manchus and Chinese, certain articles referred specifically to Manchus. For instance, Bannermen could be punished by beating but not by imprisonment or banishment; instead they were compelled to wear a cangue for a number of days proportionate to the length of sentence to imprisonment or banishment: i.e. twenty days for the first year of imprisonment and five more days for each additional year with forty days as the maximum;

fifty days for banishment to two thousand /7 and five

more days for each additional degree, with sixty days as the maxi-

mum.*°! Only Bannermen

whose names

had been removed from the

Bannermen record were actually imprisoned or banished as were the Chinese.2°2 These special regulations concerning imprisonment and banishment were not removed from the code until the promulgation of

the Ch'ing hsien-hsing hsing-lii in 1910.2

388 Ch’ing lit li, 30, 97b-98b; Ch’ing shih kao, 150, 5b. 39 Ch’ing lit li, 4, 64b-65a; 8, 13b-14a, 20a-b; Hsing-an hui-lan, 1, Citing hui-tien, ch. 64. For the definition of t'un chit iff fit, see Ch'ing lit li, 4, 64. 200 Hsing-an hui-lan, 1, 38a. 21 Ch’ing lid li, 4, 62a; Staunton, op. cit., 12. 22 Ch'ing lit li, 4, 64b-65b. 23 Ch'ing hsit wén-hsien t'ung-k'ao, 251: 9968; Ch’ing shih kao, 148, 5a; Shén Chia-pén, Chi-i wén-ts'un, 1, ob-11a.

206 When

SOCIAL CLASSES (CONTINUED) a Bannerman

was guilty of theft for the first time he was.

punished by beating, not by tattooing. After a second theft he was tattooed. On the other hand, a Chinese was tattooed when

he was

guilty of a first theft. After a third theft he was punished by “detention in prison for strangling.’

24 Citing li li, 24, 508.

V. Magic and Law Sir Henry Maine remarks that in the history of mankind everywhere

there was a stage at which the rule of law was not discriminated from

the rule of religion, and that in China this stage had already been passed.1 On the surface it may be difficult to trace any connection between law and religion. There is no evidence for a god-made law in

China in historical time, such as the law of Hammurabi,

Manu, or Mo-

ses. Nor did the ancient Chinese believe, as did the Greeks, that law was granted to men by gods. Nor, indeed, did the enforcement of Chinese law depend to any noteworthy degree upon magic or the power of religion. No known Chinese law included a curse within its sanctions.?

And no legal authority was a man of magic power.* Thus, as far as the

historical period goes, legal sanctions were independent of religious or ritual sanctions. Nevertheless, detailed study reveals that a functional relationship between magic and religion and law was operative and not without significance.

1, Ordeal

Many peoples believed that the gods rewarded the honest and innocent and punished the evil and guilty. Sin and crime were not differentiated.

At the same time they believed that the gods alone knew who was good

and who was bad. When men could not decide whether a person was

1H, Maine, Ancient Law, 23. 2 ‘The curse was used in many societies as a sanction for enforcing the law. This was practised by the ancient Egyptians. Curses were also included in the Twelve Tables (Robson, of. cit., 140-144). The curse was not used as a means to enforce the law in China. To our knowledge, there is not a single ancient law accompanied by a curse. However, the function of the curse in daily life should not be overlooked. An oath which included a curse uttered by the speaker himself was common among the people. Evidence is found in the Chow li that the oath was used as a means to make those who made a contract fulfill their obligations (Chow li chu-stt, 36, 4a-b; Biot, op. cit., 11, 360-361). Such practice is not found in later history, but the oath was commonly employed as a means to force a suspect to tell the truth and to prove his innocence. The violation of an oath was itself an offence against the gods. It was commonly believed that falsifying an oath would bring down divine punishment. Thus many cases were dropped and not brought to court after suspected persons had made an oath before the gods of a temple. In this way the suspect's innocence was proved. 3 In many societies the administrator of justice was usually the man who possessed supernatural power (see H. Maine, Dissertation on Early Law and Customs, (London, 1891], 26-27; idem, Ancient Law, 160).

MAGIC AND LAW

208

guilty or innocent, the decision was left to the gods. Therefore the primitive law often appealed to the gods and employed the ordeal to arrive at a judgment. Ordeal was included in the Hammurabi law. It

was also practised by the Greeks, the Hebrews, and many other an-

cient peoples. Ordeal was still practised in the Middle Ages in Europe.

The simple way to determine innocence or guilt was to see whether the one who was being prosecuted could survive dangerous treatment. The Greeks often sent a suspect out to sea or ordered him to jump from a high cliff.4 The poison ordeal was quite popular among West African

tribes.’ The Ju-ju had their suspects swim through a pool filled with

poisonous snakes and alligators.* If the man was innocent, the gods would not let him die; if he did not survive the ordeal, he was proven

guilty and punished at the same time for his crime. Thus the gods acted both as judge and executioner. In some societies a suspect might only have to endure physical pain—and not risk his life— in the perfor-

mance of the assigned task. The gods were thus asked to pass judgment, but humans

meted out the punishment.

In such circumstances, fire

was often used, the suspect being asked to hold a piece of red-hot iron in his hand or to place it against his feet.? Sometimes he was ordered to

pick a stone from boiling water, or boiling oil might be poured over his hands.$ If he was not injured, he was innocent.

The throwing of a man into a river to see whether he floated or

drowned? was a common way of establishing innocence or guilt. The

use of bitter water to test a wife’s chastity as described in the Old Testament was approved in many European countries in the Middle

Ages. In Sumatra it was usual to ask the suspect to swallow a mouthful

of uncooked rice or raw flour to see whether he choked or coughed.¥® Indians sometimes placed a man in one scale and stones in the other. If a balance resulted, the suspect was innocent.1 Sometimes material objects were subjected to a test instead of the suspected person. For instance, a string might be attached to the Book of Psalms and the two twirled, the direction of the book’s movements determing the suspect’s

4 Robson, op. cif., 113-115. $ W. G. Sumner, A. J. Keller, and M, R. Davie, Science of Society, 4 vols. (New Haven, 1928), IV, 278. * Tbid., I, 681. 7 Ibid., IV, 280; Robson, op. cit., 119-120. *R. H. Lowie, Primitive Society (New York, 1920), 419; Sumner and Keller, op. cit., IV, 281; Robson, op. cit., 121. * In various societies the way of reaching a judgment was different. According to Hammurabi law, a person who drowned was considered guilty. However, an opposite view was held in the Manu law (Robson, op. cit., 122; Sumner and Keller, op. cit., IV, 284). 1 Sumner and Keller, of. cit., IV, 285. 1 [bid., 284.

ORDEAL

209

guilt or innocence.!* Among the Ewe a grain of salt was cast into boiling water to see whether or not it split in two. In Borneo a man’s innocence might depend on the result of cock-fighting.14 Thus all manner of means and procedures were utilized,!® but essentially the purpose remained the same—the seeking of judgment through the gods. In China there is no historical evidence that ordeal was ever a formal legal procedure. Stronach tries to prove the contrary. He claims that when a husband killed his wife and her partner in the act of adultery, he would cut off their heads and carry them to the magistrate, who in order to learn the truth would place them in a tub of water which was then vigorously stirred. If the heads met back to back, the victims were proved innocent; if face to face, the husband’s statement of their

guilt was accepted.1® This method was also mentioned by Mu-han, a Manchu official in the nineteenth century, in his Ming-hsing kuanchien lu. However, he made it very clear that such a practice should never actually be employed to prove adultery, otherwise the judge might make a serious mistake.!’ His statement suggests that, while some people believed in this sort of ordeal, it was certainly never a formal legal procedure, and evidence of its application cannot be documented. Robson, in commenting on ordeal in general, observes that there is scarcely a country in which ordeal has not been practised, with the possible exception of China, where there is no hint of judgement by the gods.!* This statement is not completely accurate, but it is much closer to the historical facts than Stronach’s.

32 Robson, op. cit., 124. 18 Lowie, op. cit., 419. 44 Sumner and Keller, of. cit., IV, 284. 45 Consult Lowie, op. cit., 405-406, 418, 419-420, 422; Robson, op. cit., chap. X; Sumner and Keller, op. cit., I, 679-686; IV, 277-286; Vinogradoff, of. cit., I, 349-350; E. Westermarck, The Origin and Development of Moral Ideas, 2 vols. (London, 1912), I, 504-507; II, 688-690; L. T. Hobhouse, Morals in Evolution (New Vork, 1929), 116-117, 131; E.A. Hobel, The Political Organization and Law Ways

of the Comanche

Indians

(Memoirs

of

the

American

Anthropological

Association, No. 54, 1950), 66-70; E. B, Tylor, “Ordeal,” Encyclopaedia Britannica (14th ed.), XVI,

850-852.

4 W. T, Stronach, “Traces of the Judicium Die, or Ordeal in Chinese Law,” Journal of the North China Branch of the Royal Society, new series, No. 2 (1855), quoted in T, M. Nathubhoy, “Ordeal,” Journal of the Anthropological Society of Bombay, V1, 3 (1901), 130-1. Nathubhoy is quoted in Sumner and Keller, op. cit., IV, 284.

1 Mu-han £3 §, Ming-hsing kuan-chien lu W\ Fpl 4 Ja, 8k, 23a. The law ofViian,

Ming and Ching permitted a man to kill his wife if guilty of adultery under one condition, i.e., to kill her and her partner in flagrante delicto (Yuan shih, 104, 11a-b; Ming lili, x9, 8b; Cling lii-li, 26, 29a; Staunton, op. cit., 307; Boulais, 38 Robson, op. cit., 112, note 1. cp. cit., 546). 4

210

MAGIC AND LAW

Ordeal was usually invoked when it was difficult to find satisfactory is evidence or when a confession of guilt was sought. When crime detectible by rational means, ordeal is obviously less necessary. China,

as early as Ch’in-Han times, resorted primarily to torture to obtain confessions. Ordeal was rarely mentioned, although certain survivals indicate that it was practised in the pre-historic period. The Shuo wén

noted that hsich ## referred to an animal which was used in ancient times to strike the guilty party during trial.!° According to the Lun

héng, a work written in the first century, the hsieh or hstch-ch’th YES was a sheep with a single horn. When Kao-yao # fiJ, a judge in the

third century B.C., was unable to come to a decision while presiding at

a trial, he asked the Asieh to strike the guilty person.”

The use of animals in establishing guilt or innocence was also common practice outside of China.*! It seems unlikely that the help of ani-

mals would be asked in making judicial decisions if they were not believed to be endowed with some supernatural power. Furthermore, the fact that this obviously supernatural animal is mentioned for a time

when the administration of justice was still in a primitive state and that Kao-yao was the first Chinese judge to be named in the literature should not be viewed as mere coincidence. In all probability ordeal was still widely practised and the sheep that was used may just have

been an ordinary variety, as were the snakes and crocodiles employed

under similar circumstances, or it might have been of the supernatural type invoked natural sheep popularity as A case may

in this story. It is of interest, however, that this superdisappeared from the legal scene when the ordeal lost its a legal procedure. be cited from the Lun héng to show that ordeal was still

occasionally used in historical time. It reports that an official by the

name of Li Tzi-chang 42 ¥ $2, who wanted to know the actual story

of the prisoner made an image out of tung wood resembling the prisoner. Then a hole was dug in the ground, a coffin was made of reeds, and the image was placed in it. If the prisoner was guilty, the image would lie there quietly; if innocent, it would jump out.** Although this procedure did not accord with usual legal practice or with ordinary attitudes,

© Shuo wén chieh tzm, 10A, 3a. * Wang Ch’ung - 9€, Lun héng 3 fj, 17, 10a-b. *t For instance, the practice of swimming in a river full of crocodiles in Madagascar (Sumner and Keller, of. cit., IV, 281). In the Bantu tribe of East Africa a common lizard was held to the nose of the accused. The man was held guilty if it bit his nose and hung on (loc. cit.). In ancient Mexico a vessel which contained a snake was put before a suspect. If the person was innocent, the snake would craw] back into the vessel (ibid., 286). % Lun héng, 16, 2a-b.

ORDEAL

211

it cannot be wholly viewed as the invention of a single individual, unrelated to traditional social usage and ideology. Furthermore, although the ordeal was not a part of legal procedure, it should be noted that supernatural judgment was sought in other ways. The ancients believed that a man’s evil-doings or crimes might frequently escape his fellows but not the gods or spirits. To compensate for the shortcomings of judicial administration the gods and spirits were expected to see to it that justice was more satisfactorily done. This can be clearly seen from the set address made by the magistrates and prefects in the annual official /i sacrifice*® held in each county and prefecture. It reads:

All the people within the territory of my prefecture [or county] who are obstinate and unfilial to their parents, who are disrespectful to their relatives,

who engage in sexual offences, theft, or fraud, and defy the law, who confound right and wrong and oppress the good people, who evade labor services thus

increasing the burden of the poor people — such vicious and evil persons will

be reported by the spirits to the God of the City, thus causing their crimes to be disclosed and punished by the government. In minor cases they will be subject to beating and will not be considered good citizens; in serious cases

they will be subject to imprisonment, banishment, strangling, or beheading,

and will not be able to return to their villages alive. If their crimes are not

disclosed, they will receive supernatural punishment; thus all their family

members will suffer from epidemics, and they will have trouble in rearing their domestic animals, in farming, and in their sericulture. Those good and

upright persons who are filial to their parents, who are in harmony with their

relatives, who stand in awe of the government, who are obedient to the rule of li and the law, and who do not engage in illicit activities will be reported

by the spirits to the God of the City and will be protected and blessed secretly; thus making their families peaceful, their farms in good order, they will be able to live together with their parents, wives, and children in their villages.

We, all the officials in the prefecture, who deceive the court, who are unfair

to the good people, who are greedy for money and practice fraud, and whose governing is corrupt and harmful to the people — the spirits will not be partial to us and will exact retribution in the same manner.?*

* The Ji jjfj sacrifice was offered by the local officials three times a year to the spirits who were not included in the regular official sacrifices and to the ghosts who had no descendants to offer sacrifice to them. All those who had died in an unusual manner, such as by accident, in battle, by execution when innocent, in epidemics, by starvation, by suicide, etc. were worshipped in this sacrifice (Ming hui-tien, 94, 150b). 4 Ming hui-tien, 04, 151a-b. Here the role of supernatural power on the part of officials who administered justice should also be noted. Apparently supernatural sanction was employed to check injustice in the form of an oath. Supernatural sanction was also involved in the official admonition which was issued to the officers of the local governments. This stated: “‘It is easier to be cruel to the small people; it is hard to deceive Heaven" (see Ch'ing hui-tien, 3, 24b). Although this was not an oath, it certainly served to warn the government officials of the supernatural retribution connected with injustice.

ae

212

MAGIC AND LAW

From the content of this sacrificial address it is obvious that the law depended in some degree upon the supernaturals for help and that there was a close connection between legal and religious sanctions. All the offences are obviously violations of secular and legal but not of religious obligations. Moreover, the type of sanctions emphasized was legal also and not religious. What was asked from the supernatural was help to discover criminals. The providing of sanctions was still a matter for the government. It is obvious that only when the identity of the offender could not be determined did the government ask the spirits to exact retribution. We may say that religious sanctions were merely supplementary.

When a criminal could not be discovered, officials sometimes prayed before a god or asked for help and instruction through a dream. Wang Hui-tsu {£ §f jill (1730-1807), who as private secretary to local offi-

cials had gained considerable repute in the handling of judicial cases,

always visited the temple of the God of the City the day following his

acceptance of such a post to burn incense, pray, and inform the god about his responsibilities. He claimed that such prayer was always effective and that he usually obtained help from the god when judging homicide cases.** The following case which came before him during his

magistracy was recorded as evidence of the importance of the God of the City to the administration of justice:

Liu Kai-yang owned some hill land adjacent to the property of Ch’éng Tap’éng. The latter's family members privately sold the land to Liu. Ch’éng reported the case to the magistrate. One of Liu’s paternal cousins, Liu Kai-lu, was ill and at death’s door. Liu Kai-yang took advantage of this fact and

ordered his family members to carry Kai-lu to the hillside; he intended to fight with the Ch’éng family and then accuse them of causing Kai-lu’s death.

When they arrived, the Ch’éng family had already left. Liu Kai-yang ordered

his son Yiin-hsi to deliver a severe blow to Kai-lu’s head, thus ending his life.

He then accused Ch’ éng of killing his family member. I questioned Kai-yang, found his statements and appearance suspicious, and arrested him. When Ch’éng Ta-p'éng arrived at the office, he explained that he had not beaten

the deceased, but he did not know the murderer. He was therefore also arrested, and I took them both to the temple of the God of the City. I

presented incense, worshipped, and prayed. Then I ordered Ch’éng Ta-p'éng and Liu Kai-yang to kowtow at the foot of the steps. Ta-p’éng’s appearance was as usual, but Kai-yang was trembling and appeared to be afraid. I had more doubts about Ch’éng’s being the murderer, but I was not sure. When

we got back to the office it was already night. I again prayed before the god and questioned both parties. I was unable to determine the truth. Suddenly

there was a loud noise in the front hall, It was reported that a drunken man

had attempted to enter the office and had been stopped by the gate guards.

T ordered him sent in. It was Liu Yiin-hsi.

Liu Kai-yang was shocked; he

* Wang Hui-tsu, Hsieh-chih i-shuo BL 34s fi St, B, rab.

SUPERNATURAL RECOMPENSE

213

knelt forward and said, ‘‘This son is always unfilial. I beg you to beat him to

death.” I ordered Kai-yang taken away and questioned Yiin-hsi. He then confessed the whole truth. Kai-yang also confessed when again questioned. All the other family members who had been at the place also confessed. On

the next day I asked Yiin-hsi why he came to my office. He replied with

tears, saying, “Yesterday I attempted to escape to Kwangsi and was drinking

wine with my wife to bid farewell. Someone knocked on the door and said,

‘Run away quickly. The magistrates men are coming.’ When I opened the

door to leave, a black man led me. When I followed him and arrived at the

magistrate’s office it seemed that he was pushing me in. So I shouted.” Now Liu Yiin-hsi was the principal murderer, but his name was not in the court

record, and besides his father was a relative of the murdered man. If the deed

had been confessed by some other member of his family, Yiin-hsi could have escaped and been far away.

How

was it possible to reach a

satisfactory

decision immediately ? The man who knocked at the door and called must

have been

a ghost

who

came to arrest him.

Of course,

a man who

killed

another person should be punished by death. Yet a man so unintelligent as I was able to solve an unsettled suspicious case. Is this not the protection of

the god 228 Some officials who did not actually seek instructions from the gods, nevertheless, used prayer as a means to fool the criminals. Knowing

that people generally believed in supernatural sanction, they therefore sometimes preferred to hold a trial in the temple of the God of the City in order to induce the suspected to confess.” 2. Supernatural Recompense Supernatural rewards or punishments were closely linked to the administration of justice. To the ancients all calamities were by no means due to natural forces. Rather these destructive events were the immediate responses of the supernatural to improper and displeasing behavior. For this reason improper administration in government

was al-

ways considered as a cause of calamities, especially the administration of justice, together with punishment and execution. As acertain amount

of injustice was almost inevitable in the administration of justice, the grievances and cries of the wronged usually reached Heaven and aroused the sympathy and anger of the gods. In the Han dynasty a childless widow was extremely filial to her

mother-in-law. But when the mother-in-law wanted to marry her off again, she refused. The former, thinking that she was a burden to her

daughter-in-law,

hanged

herself.

The

daughter-in-law

was then

ac-

cused by her sister-in-law and executed. For three consecutive years 2 Ibid. B, rb-2b.

27 Lan Ting-yiian (BE sy 5¢, Lu-chow hung-an jf YH Zt He, A, 17a-19b; Huang Liu-hung $f fs 2, Fu-hui ch'dan-shu jig HE A BE, 14, 25b-28d.

MAGIC AND LAW

214

the whole province suffered from drought. Not until the new governor found that she had been innocent and offered a sacrifice for her did it i rain. ‘A similar case can be cited from Later Han. In A.D. 59 it was reported that there was a drought in the capital; for this reason the Empress Dowager went personally to investigate the various cases up for trial. She found a man who had been falsely charged with murder and forced by torture to confess. The magistrate was put in jail, and rain fell before she returned to the palace. The drought of 317-318 was commonly believed to be the result of the killing of Ch’un-yii Po & F

4fi, an innocent official.#! Emperor Tai-tsung (976-997) of Sung thought that the drought of 981 was caused by an unjust judgment.** Numerous

instances of this kind underline the belief in the connection between

calamities and injustice. A statement made by K’ung Chih-kuei 4L He

$£, a Minister of Justice in the fifth century, puts the matter con-

cretely. He said, ‘Now there are more than one thousand jails in the various local governments. If there is a case of injustice in each prison during the period of a year, then more than one thousand innocent

men will be killed. The grievances of the dead will interfere with the

harmonious order of nature. This is of great importance to a sage ruler, who should be careful about the causes which bring about such a

result.”

Thus calamities frequently caused the rulers to think in terms of

possible injustice and they issued edicts to check and clear innocent

cases. In A.D. 28 an edict was issued, saying:

A long-time drought is harmful to the wheat crops. Now the autumn seed

has not yet been put into the soil. We are worrying about it. Is this due to the fact that cruel officials are still in action, that most of the judicial cases are unfairly settled, and that the sadness and grievances of the people have

impressed Heaven? Let all the prisoners in the capital and in the various provinces be released; let those who are not subject to death sentences not

be examined; and let those who are now imprisoned be freed and become

common people.3*

In the T’ang dynasty cases were often reinvestigated when the court

was praying for rain.** When rain and snow did not fall at the proper

time, Emperor T’ai-tsung of Sung was in the habit of personally investigating the prisoners in the capital, and many of them were

® Han shu, 71, 5b-6a. ® Hou-Han shu, 76, 17b-18a. ® Tbid., 10A, 29b-30a. 3 Chin shu, 28, 5a. % Sung shih, 200, tb. 38 Nan-Chi'i shu, 49, 6a. % Hou-Han shu, tA, 33a-b. % Chiu T’ang shu, 24, 2b. In fact re-investigations were frequently held in T'ang times during periods of drought, flood, and visitions of locusts (for details, see Shén Chia-pén, Shé h’ao ie #2, 12, 13b-15b).

SUPERNATURAL RECOMPENSE

215,

pardoned or had their punishments reduced. Officials were also sent out to investigate the cases in the various local governments. This practice was maintained by his successors.3* When there were prayers to stop the rain, or prayers for snow, or when it was a time of calamity, Emperor Li-tsung (1225-1264) of Southern Sung himself investigated the various cases and reduced the punishment of the prisoners. Those who were sentenced to death but whose crimes were not of the greatest seriousness had their punishment reduced to banishment; banishment was reduced to beating, and cases held for beating were released.*” In Ming times during periods of drought special edicts were generally issued, ordering the investigation of the cases of prisoners, and many of them were then released or had their punishments reduced. In Ch’ing times edicts were usually issued to clear the

judicial cases when there was drought, flood, or war.*® Moreover, it was regulated that except in cases of banishment and imprisonment those prisoners who were involved in other cases and awaiting trial and those who were sentenced to beating but whose cases were excusable were either to be released or to have their punishment reduced by the governors-general and governors of the various provinces when there was a drought; and that such cases should then be reported to the emperor.*®

General amnesties were also frequently issued during the times of

ca amity to appease the gods. In Han

times an amnesty was usually

declared during an eclipse of the sun, during an earthquake or a big

fire.4t In 595 Emperor Wén (581-604) of Sui worshipped Tai Mountain

and ordered an amnesty because of a drought. In 628 when people were suffering from a plague of locusts Emperor T’ai-tsung of T’ang blamed himself and declared an amnesty. In 770 because of the appearance of a comet those who deserved the death penalty had their punishment reduced, and those who deserved banishment or some less serious punishment were released.“ In 981 there was an amnesty because of drought.*5 In 1034 there was another because of certain unusual changes in astrological phenomena.‘* In 1029 there was a flood and Emperor Jén-tsung (1023-1063) told his ministers, “Is this owing to the fact that the government is not in accordance with the will of

36 Sung shih, 199, 1tb. For details, see Shé #’a0, 12, 17a~21a. 37 Sung shih, 200, 13b.

% Ming shih, 73, 26b.

4 Ch’ing lit li, 4, 93b-94a. %® Ching shih kao, 150, 9a. 41 Hsi-Han hui-yao, 63, 2a-b, 4b, 5b, 6a. For a study of the practice of amnesty in Han times, consult Hulsewé, op. cit., I, 225 ff., in which the author correctly concludes that the amnesty had both a religious and political aspect (249). 44 Tbid., 6, 11a, 48 Hsin T'ang shu, 2, 4a. 42 Sui shu, 2, 102. 48 Sung shih, 4, 14a; Wén-hsien t'ung-k'ao, 173:

1495.

46 Sung shih, 10, 6b.

MAGIC AND LAW

216 Heaven?

... An

amnesty

should not be granted too frequently. Yet

there is no other means by which to call for a harmonious atmosphere.’"4” In 1074 the third amnesty in the same year was stopped by Wang Anshih who thought that three amnesties were too many.‘® According to the study of Hsii Shih-kuei, there were altogether twenty-nine amnesties declared in the course of Chinese history, twelve because of changes in astrological phenomena, eight because of drought or famine, five because of earthquakes, and four because of eclipses." On the other hand it was generally believed that if the ruler was insensible to the calamity, did not read it as a warning, and did not put a stop to punishment, his behavior would lead to further calamities. Such rulers were usually considered in the wrong and blamable. This

can be seen in Ch’én Tzit-ang’s [i

#1 memorial presented to Em-

press Wu (684-705) of T’ang because of the severity of her policy of inflicting punishment:

Those who are wronged are sighing and crying and they deeply affect the

harmonious atmosphere. When the harmonious atmosphere is in disorder,

the living will be subject to epidemics and flood and drought will come next.

... Recently the dry weather has extended beyond its time, and there are

clouds but no rain. The farmers lay down their implements, looking forward

without hope and clamoring.

Would

they

not blame

Your

Majesty,

who

though She is sagely virtuous does not bestow kindness upon the people?

Now if the drought extends through the spring and makes the seasonal

sowing impossible, there must be a great loss in this year’s harvest. Should

Your Majesty not respectfully follow the will of Heaven and pity the people

with Your kindness 25°

Obviously his words presented the traditional point of view on the relation between calamities and punishment. Empress Wu's action and her refusal to accept the advice of Ch’én Tzit-ang were generally considered wrong. That was why the Treatise on Punishments in the Hsin T’ang shu, a rather short chapter, devoted a great deal of space to the quoting of Ch’én’s memorial. It should be pointed out here that there were statesmen and scholars who did not favor the idea of amnesty. However, they did so not because they denied the relation between punishment and the Divine Will but because they thought that an amnesty which freed the guilty from punishment and caused the murdered to cherish a grievance in their graves would upset the harmonious order further and would be displeasing to the gods.5t Sometimes amnesties were granted after a good harvest or an auspicious event to express gratitude for Heaven’s kindness. In Han

"7 Tbid., 201, 25a. # Tbid., 26b. “ Hsii Shih-kuei $e 3 3, Chung-kuo ta-shé h’ao ths %° Chiu T'ang shu, 50, 10a. 3 Wu-tai hui-yao,

SUPERNATURAL RECOMPENSE

217

times amnesties were usually granted on occasions when auspicious plants or sweet dew appeared or phoenixes and white cranes came.*? Amnesties were also granted in the hope of securing the good will and blessings of Heaven; and since sacrifice was a means of pleasing the gods and a time to ask for blessings, amnesties were usually granted when the great sacrifices, especially the chiao sacrifices, the Imperial Sacrifices to Heaven, were made.** Emperor Wu of Liang, a devoted Buddhist, also issued orders for an amnesty when he took the Buddhist

vows and observed the great Buddhist festivals.*! Under the influence

of Buddhism, orders were frequently issued by Emperor Hsing-tsung (1031-1055) of Liao to release prisoners.* In the Yiian dynasty more than six hundred prisoners were released upon the request of the Buddhist priests when the Buddhist sacrifices were held.5* Moreover, amnesties were frequently granted on occasions of joyful significance to the imperial family, such as the accession of a new emperor, changing of reign titles, appointment of an empress, the birthdays of the emperor or empress, the birth of an heir apparent, or the appointment of an heir apparent.5” The belief in supernatural rewards and punishments also played a significant role in the administration of justice. A judicial official in a local government at the end of the second century B.C. once told the

village elders, who were rebuilding the village gate, to make it higher

and larger, saying, ‘In judging judicial cases I have many secret merits

and have never done an injustice. I am sure that some of my offspring will be prosperous.” After the introduction of Buddhism into

China

the idea

of not

killing

and

secret

reward

had

more

in-

fluence on the Chinese than before. Believing that ‘‘not to kill” would

52 Hsi-Han hui-yao, 63, 3a, 4a-b. 8 Hsi-Han hui-yao, 63, 2a, 3a-b, 3b; Tung-Han hui-yao, 36, 6b-7a; Wén-hsien t'ung-k’ao, 171:

1485-1487;

172:

1489-1493;

173:

1495-1499;

Hsi Huang, Hsi

wén-hsien t’ung-h’ao, 140: 4047-4050; Shé k’ao, 2, 15b-18b. 5! Nan shih, 6, 28a; 7, 3b, 4b, Sb, 12a-13a; Wén-hsien lung h’ao, 172: 1490. 55 In 1054 the prisoners of the capital were pardoned by an edict issued by Emperor Hsing-tsung after a silver Buddha was cast in a temple (Liao shih, 20, 8b). The historian remarks that the emperor who was devoted to Buddhism was fond

of mercy and amnesties were frequently issued. Many prisoners who were sen-

tenced to death were thus released (Liao shih, 62, tab).

8 Hsin Yiian shih, 103: 237; Hsi Huang, Hsii wén-hsien t’ung-k’ao, 140: 4049.

57 Han chiu i we HE (BE, quoted in Ch'u hsizeh chi #) HL HB, edited by Hsii Chien

$& \& and others, 20, 1a-b; Hsi-Han hui-yao, 63, tb-6a; Tung-Han hui-yao, 36, 6b-9a; Wen-hsien t’ung-k'ao, 171: 1485-1487; 172: 1489-1493} 173: 1495-1499; Hsi Huang, Hsii wén-hsien t’ung-k'ao, 140: 4047-4050; Ch'ing wén-hsien t’ungR'ao, 210: 6735-6747; Ch’ing shih kao, 150, 8b; Shé k’ao, 2, ta-r4a. 5 Han shu, 71, 9a

MAGIC AND LAW

218

count as a secret merit, and that killing the innocent was sinful and

subject to retribution, many officials avoided killing and sought to be

merciful. Kao

Yiin % #0 (390-487), an official of Northern Wei,

thought that he would live to be a hundred years old because he had

many secret merits for having saved the lives of many persons. Some officials even went so far as to consider not killing a secret merit, and for this reason tried to save the lives of persons who deserved death.

Chu Hsi #& % (1130-1200) remarked that most of the Legalists in

his time were deluded by ideas of sin, blessedness, and retribution and liked to reduce the punishment of others in order to seek blessedness and reward for themselves. In cases of crimes deserving the death penalty they always tried to find some excuse for the criminals and to present their cases to the emperor in the hope that the punishment would be reduced. Thus those who deserved beheading were banished, those who deserved banishment were imprisoned; and those who were to be beaten received fewer strokes or none at all. Ch’én Hung-mou

[i 4 GE (1696-1771) remarked that some people falsely reported that

their parents were in their old age and that there were no other adult males in the family to care for them so that they might be permitted to

remain at home to serve their parents and thus be exempted from exe-

cution;*! and, moreover, that many

officials tended to be merciful to

the guilty, seeking their acquittal in the belief that such action would

count as a secret merit. Ch’én considered this wrong and he held that

such actions would lead to secret punishment

because it was unfair

to those who had been killed. Both Yiian Pin ¥£ 3 (eighteenth century) and Fang Ta-chih 9 X% jf (nineteenth century) complained that

many officials who believed in secret merit sought to protect those who were guilty of rape from death, although this was a punishment accorded by the law. 3- Taboo in Punishment

In ancient China spring and summer were considered periods of growth

and maturation, autumn and winter periods of destruction and concealment. This was held to be an unchangeable principle of the natural

order, and everything in the universe was governed by it. Human

% Wei shu, 48, 20a.

® Chu Hsi 3 3%, Chu Wén-kung chéng-hsiin $e 3 Ze ie ff, tb-2a. % For a discussion of this regulation, see above, pp. 76-77. % Hsii Tung ff and Ting Jib-ch'ang J fF] fy, Mu ling shu chi-yao He Ap BE bie

BE, 7, 12a.

“ Yiian Mei $¢ 4%, Hsiao-ts'ang shan-fang wén-chi ss fr \ly FF 3C Sf, 15, 6b;

Fang Ta-chih, Ping pling yen 2 78

3, 5ta-b.

TABOO IN PUNISHMENT

219

behavior, especially political behavior, was correlated with the four seasons. Rooted in the principles of yin f& (feminine) and yang Bs (masculine), it became a popular thesis among Han scholars.

Execution was a means of taking life, therefore it had its place in

the natural order, and all executions had to be carried out in the autumn

and winter seasons and not in the seasons of growth and maturation when they would be in conflict with the natural order. The Yiieh-ling

JA 4¥ mentions that the government should discontinue all trials and

refrain from applying punishment

in the second month, and officials

should begin to busy themselves with judicial affairs in the first month

of autumn.® In Han times all cases were tried between “autumn be-

gins” (li-ch’iu) and the winter solstice; and no judgments were handed

down in the twelfth month when ‘“‘spring begins” (li-ch’wn).°° Furthermore, in the year 85 it was decided that since the winter solstice was

in the eleventh month, which meant at the end of winter and the be-

ginning of the yang force, it was already too late for executions. An edict was therefore issued by Emperor Chang (76-88) to the effect that executions were not to be permitted in the eleventh month.* Edicts were generally issued in the spring to warn the Three Ministers (san Aung) that all cases, except those deserving death, should not be inves-

tigated in this season. Han practice was followed by later dynasties. In T’ang and Sung times it was held that, except in cases of rebellion and the killing of

masters by pu-ch’ti and slaves, there were to be no executions between

“spring begins” and the ‘‘autumnal equinox.” Officials who failed to

observe this regulation were subject to a year’s imprisonment.® In Ming times the punishment for such a violation was eighty strokes.” In Ch’ing times, except in cases subject to immediate execution, criminals were to be executed after ‘‘autumn begins.” There were also taboos connected with religious days and ceremonies. In T’ang and Sung times, the first, fifth, and ninth months were

44 For details, see Ch’un-ch'iu fan lu, 13, ra-b. 5 Lit-shih ch’un-ch’iu, 2, 1b; 7, 2a; Lichi chu-su, 15, 2a; 16, 11a; Richard Wilhelm, Frithling und Herbst des Liz Bu We (Jena, 1938), 14, 81; Legge, Texts of Confucianism, III, 259, 285; Couvreur, Li Ki, I, 341, 375-376. % Hou-Han shu, 3, 4b, 16b, 23a; 25, t1a-r4b. * Ibid., 3, 4b. “8 Hsii Han chih, 4, 2b; Hou-Han shu, 3, 4b, 18b. © T'ang lit su-i, 30, 10b; Sung hsing-t’ung, 30, 10b. 7 Ming lit li, 28, 52a; Ming hui-tien, 177, 163a. 71 Execution was suspended only in the first and sixth months, ten days before the winter solstice, and five days before the summer solstice (Ch'ing luli, 4, 6a-b; 37, 35b-36a; Boulais, of. cit., 25, 721).

MAGIC AND LAW

220

“months prohibiting slaughter.””* There were also ten fast days in each month.7* All these taboos derived from Buddhist practice.** No executions, including “immediate execution,” were permitted to take place in these specified months and days; and any official who violated these rules was given sixty strokes.” In the Ming dynasty the ten fast days were also days on which executions were prohibited.”* Any official who failed to observe this rule was subject to a punishment of forty strokes.” Furthermore, no execution was to take place on days when sacrifices were offered. In T’ang and Sung times on days of great sacrifice, as well as on fast days, no reports were permitted, nor could a death sentence be carried out.’8 In Chin dynasty (1115-1234) no execution was held on In the Yiian dynasty government officials great sacrificial days.” neither prepared nor signed an order of punishment on days when the Sacrifice to Heaven was offered nor on fast days. In Ch’ing times the government discontinued all judicial activities on sacrificial days, fast days, and on the eighth day of the fourth month, the birthday of

Buddha.*t

4. Black Magic The relation between magic and primitive law is a phenomenon which should not be overlooked. In a primitive society magic is usually a

means to enforce the law. In most cases a law is obeyed by the people not because of the law itself but because of the supernatural sanction

involved in its violation. In many societies cursing is a popular way of

preventing law-breaking and to all intents and purposes is a more

effective one than human effort. A person would not dare to steal

unprotected

fruit because

he would

fear

the punishment

invoked

2 The first, fifth, and ninth months were the so-called “long fast months”, ch’ang chai yiieh § ¥f J], in which slaughtering of animals, fishing, and hunting were not allowed (T'ang hui-yao, 41, tab, 2b~4b). 78 The ten fast days were the Ist, 8th, 4th, 15th, 18th, 23rd, 24th, 28th, 29th, and 3oth days of each month. Slaughtering, hunting, and fishing were also not allowed. on these days (T'ang lit su-i, 30, 10b; Sung hsing-t’ung, 30, 10b; T'ang hui-yao, 41, 1a, 3b). + T'ang hui-yao, 41, 4a; Yiin-lu man-ch'ao, 8, 11a-b. % T’ang lit su-i, 30, rob; Sung hsing-t’ung, 30, 0b; T’ang hui-yao, 41, Ta. 38 Ming hui-tien, 177, 163a. 7 Ming li li, 28, 52a. ® T'ang lit su-i, 30, 10b; Sung hsing-t'ung, 30, 10b. Chin shih, 45, 4b. % Yuan shih, 103, 14a-b. % Ch'ing lit li, 37, 19a; Ch’ing shih kao, 150, 4b. *® See Westermarck, op. cit., II, 86-88; E. S. Hartland, Primitive Law (London, 1924), 81-82; W. I. Thomas, Primitive Behavior (New York, 1937), 375-576.

BLACK MAGIC

221

through the curse. Many laws in primitive societies would become ineffective if they did not depend upon the force of cursing. At the same time it should be pointed out also that without the possession of magical power many chieftains would be unable to enforce the law. In these

societies the force of supernatural sanction is obviously more powerful

than any human sanction. It is also clear that the application of magic for this purpose is helpful in maintaining the social order and is considered good in a moral and legal sense. However, not all varieties of magic are beneficial or approved by society. Magic may also be used to bring harm and misfortune. Many peoples believe that illness and death are the result of “black magic.”

Wherever it is recognized, it is considered anti-social, immoral, and illegal. It displeases the gods so that they heap calamities and miseries upon the society in which black magic is tolerated. For this reason black magic is usually classified as a public delict,** an offence against all society and one which must be eliminated. Thus in many societies it is the most serious crime and even less excusable than homicide. In the law of the Hebrews witches and wizards were put to death.“ In Ham-

murabi law those who cast a spell on others were also so punished.®* The Twelve Tables provided that one who affected another by magical arts was to be put to death.8* Among the Aztecs of ancient Mexico a man guilty of employing sorcery or incantations to harm others was sacrificed to the gods.$? In Western Europe in the eighteenth century a witch was put to death. England did not abolish such punishment until 1736.8 Among the Australian aborigines when a man died his relatives

believed that someone had cast a spell over him, and they therefore killed the suspected person.’ The Loango people usually cut a man suspected of witchcraft into pieces and then devoured him.” The death

of a man in West Africa frequently led to the death of one people under the accusation of witchcraft. It was said that hundred of persons were killed every year for this reason.* In certain societies witchcraft is the only crime punishable by Moreover, the guilty ones are usually punished in the cruelest

or more several

death.” manner.

A sorcerer guilty of murder may be beaten to death, buried alive,

83 A. R. Radcliffe-Brown, ‘‘Law, Primitive,” Encyclopaedia of Social Sciences, 1X, 202 ff.

81 Westermarck, of. cit., II, 650. ® Tbid., 651.

88 [bid., 651.

88 Sumner and Keller, op. cit., II, 1399; Lowie, op. cit., 420.

* Sumner and Keller, op. cit., II, 1320. ®2 See Westermarck, op. cit., I, 189; II, 650. % Loc. cit. *3 Lowie, op. cit., 420.

% Tbid., 1337.

& [bid., 652.

%! Ibid., 1321.

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MAGIC AND LAW

impaled,® cut to pieces, hanged," burned to death, drowned,

or

thrown from a cliff.

Tt was a common belief among the Chinese that sorcery, Ai, and cursing could bring disease and death to others. Many people used such magic skills against their enemies, and frequently ill persons or those about to die suspected that they were the victims of black magic. In the first century B.C. a concubine of the heir apparent of Han told him that her illness was not a natural one but had been caused by the other concubines who were jealous of her and had cursed her so that she would die, After her death the heir apparent hated his other concubines and refused to have relations with them for a long time.!™

°% Sumner and Keller, op. cit., II, 1337% Ibid., 422. % Sumner and Keller, op. cit., IV, 726. *7 Lowie, op. cit., 422.

%® Thomas, op. cit., 551.

100 Ave kin its earlier usage generally referred to the using of a human image in connection with black magic. In the history of Han the application of Au, as shown in various cases, was connected with the use of a human image together with the casting of imprecations and spells. And the ‘‘digging of Au” always referred to the digging for a human image buried in the earth (Han shu, 45, 15a-b;

63, 2a).

However, there was a tendency later to refer to the use of a human image in connection with black magic as yen-mei Mf jj, and the term ku designated the breeding and application of poisonous insects. This was at least made clear in the law (T'ang lit su-i, 18, 2a, 4b; Sung hsing-t'ung, 18, 2a, 4b; Ming lit li, 19, 15b; Ching lit li, 26, 81b-82a; Ch’ing lu chi-chu, 19, 18b; Staunton, op. cit., 310; Boulais, op. cit., 556). The breeding of ku, according to available information, is to collect various kinds of poisonous insects and reptiles, put them in a jar, and let them fight and eat each other. The jar was opened after a year and the survivor was the Au. It might be a ku of a snake, lizard, gold caterpillar, dung beetle, or cricket, depending upon which survived (see T’ang lit su-i, 18, 2a; Sung hsing-t'ung, 18, 2a; Li Shih-chén 22 pp} #3, Pén-ts'ao hang-mu AL # $A |] , 42, 31b-32a). The Au, whether invisible or not, was immortal (Pi Chung-hstin Mf {ip aj, Mu-fu yen-hsien lu #5 jE HE [I] Be 2a-b;, Pén-ts'ao kang-mu, 42, 3b). It always brought a fatal disease to the person to whom it was applied and at the same time it brought to the breeder the possession of the victim, thus making him wealthy (Mu-fu yen-hsien lu, 2b; Pén-ts'ao kang-mu, 42, 32a-b). Apparently this was the main purpose of the breeding of ku, although sometimes Au was applied to someone hated by the breeder (Chou Ch''i-fei Ji] 3: JE, Ling-wai tai-ta 4 94 (RYE, 10,23 Thea). common way of applying the ku was to put its ordure in the food; when this entered the belly it ate the victim’s intestines (Mu-fu yen-ksien lu, 2b; Pén-ts'ao hang-mu, 42, 32b). In short, as the black art is involved in the breeding and application of ku, very little is known about it. For more detailed information, consult J. J. M. de Groot, The Religious System of China, 6 vols. (Leiden, 1892-1910), V, ch. 2; Chung-kuo shé-hui shih-liao ts'ung-ch'ao, 313 ft.). 191 Han shu, 98, 2b-3a.

BLACK MAGIC

223

Beliefs of this kind were not atypical and usually they had dire conse-

quences. In gt B.C. several tens of thousands of persons, including the heir apparent, lost their lives because Emperor Wu (140-87 B.C.) was told that his illness was caused by sorcery and u.!° Charms and spells were commonly employed in cursing, and sometimes a wooden or paper image was used to symbolize the one to be cursed. Sometimes the image

was buried," and frequently the heart and eyes were pierced with needles, or the hands and feet bound together. Prayers and curses were often made before the image.!° Ku, a concoction of poisonous insects prepared by magical means, was another frequent form of black

magic. The punishments for its use were given in the law, and the manner in which examinations into deaths caused by Au poison were to be conducted was set down in detail in the Hst-yiian 1u,!° a book of

official instructions for inquests.

In all dynasties black magic was severely punished. Witches and

wizards were usually burned to death.1” Under the Han law, all those

who practised ku, as will as those who instructed others to do so, were executed. The law of Northern Wei provided that all males and females involved in the practice of ku were to be beheaded, their homes were to be burned, and the person who made

the ku magic was to be

drowned with a goat on his back and a dog in his arms. In the fifth

century during the Sung dynasty a witch was whipped to death, her corpse was burned, and her ashes were scattered and thrown into the Yangtze River.1 It should be pointed out that such punishments were

quite exceptional, and ritual sanctions! seem to have been involved.

Many cruel punishments, such as tearing to pieces by horses, dismemberment, and the exposing of the corpses had been in practice, but

102 Tbid., 45, 14b-15b; 63, th—5a; 3a-5a. 108 Tbid., 95, 15a-b; 63, 2a; 66, 2a; Sung shu, 99, 2a, 4a; Yao ssit-lien yk 3 Hg, Ch’ én shu bli Bf, 28, 14a; Sui shu, 45, 14b. 14 Sui shu, 45, 14b; T’ang liz su-i, 18, 4b; Sung hsing-t’ung, 18, 4b. 15 Ch'én shu, 28, 14a. 106 Sung Tz’ $2 HE, Sung t’i-hsing hsi-ywan chi-lu FR HE FA YEH HE Bhs 4, Ob: Be He He, 3, 28a-20a. Hsii Lien gf PB, Hsi-yaan lu hsiang-i Ye 17 See examples recorded in Tso chuan chu-su, 14, 14b and Han shu, 63, 2b; Legge, Chinese Classics, V, Pt. I, 180; Couvreur, Tso Tchouan, I, 327. It should be pointed out that the heir apparent beheaded Chiang Ch’ung j[. #€, but burned the sorcerer who was under the command of the latter. That an entirely different kind of punishment was meted out to the sorcerer suggests that ritual sanction was involved in the punishment. 108 Chou li chu-su, 37, 2a, Han law quoted in Chéng’s commentary. 0 Sung shu, 99, 248. W09 Wei shu, 111, 5a. 31 Radcliffe-Brown, “Sanction, Social,” Encyclopaedia of Social Sciences, XIII, 531-532-

MAGIC AND LAW

224

burning and drowning were not used in ordinary cases. Such punishments were more than legal sanctions. The burning of persons suspected of witchcraft seems to signify the complete destruction of the evil spirit and a purification. Water definitely implied purification. Magical or ritual sanctions must also have been involved in the drowning with a goat and a dog. The latter were usually used in purification and in the wiping out of evils.1 In the Sui dynasty an imperial edict was issued to the effect that those who kept a cat-ghost,!* made ku poison, or practised other means of the black art were to be exiled to the four borders.44 The law of T’ang, Sung,

Yiian, Ming, and Ch’ing all placed

ku poison

and the

practice of the black art in the category of ‘‘massacre” 4 34, one of the Ten Offences. Those who produced ku-poison or instructed others to do so were punished by death—in T’ang and Sung law by strangling, and in Ming and Ch’ing law by beheading. The property of a person guilty of such a crime was to be forfeited to the government, and his wives and children, as well as other relatives who lived in his house,

regardless of whether they were guilty or not, were to be banished.

Furthermore, the village heads, if they were privy to the crime and had failed to report the case to the government, were also punished. In

T’ang and Sung law the punishment was the same as for the person guilty of the crime. In Ming and Ching law the village heads were given one hundred strokes, whereas twenty taels of silver were given to them as a reward if they reported the case in advance."

4? For instance, at the city gates op. cit., III, Pt. the function of Féng-shu t'ung-

in the seventh century B.C. it was a practice to slaughter dogs as a defence against the ku evil (Shih chi, 28, 4b-3a; Chavannes, 2, 422-423). It was commonly held in China that dog blood had averting evils and all kinds of black magic (Ving Shao jE 2h, [ih Ye 5i HE, 8, 8a-b; Pén-ts'ao hang-mu, 50A, 27a-b).

45'No details are known

of the cat-ghost $f §. Those who kept such a

usually worshipped it at night on the teu day +

spirit

—]. It was held that when the

cat-ghost killed someone, the property of the victim would be removed to the man who commanded

such a ghost. It seems that the ghost was invisible, and

its activity was controlled by magical spells. Such practice was so unconvincing

that it was not believed by Emperor Wén of Sui at first. A man charged that someone had killed his mother by means of a cat-ghost. The case was dismissed

by the emperor who considered it unbelievable (Sui shu, 36, 4b; 79, 4b-5a). U4 Sui shu, 2, 13a. M5 T'ang lii su-i, 1, 16b; Sung hsing-t’ung, 1, 7a Yuan shih, 102, 4b. Ming lili, 1, 4b; Ch’ing lu li, 4, 18b; Boulais, op. cit., 20. M6 T'ang lit su-i, 18, 1b; Sung hsing-t'ung, 18, 2a; Yaan shih, 104, 7b; Yuan tien-chang, 4x, 32a; Ming lit li, 19, 15a; Ch’ing lit li, 26, 80a; Staunton, op. cit., 310-311; Boulais, op. cit., 556. The forfeiture of property was regulated only in Yiian, Ming, and Ch’ing law.

BLACK MAGIC

225

Punishment was also meted out to those who were guilty of using images, magical writings, and imprecations in an attempt to harm others. In T’ang and Sung law those who endeavored to cause the death of another by such means were to be punished two degrees less than the penalty provided for a miscarried murder in which no injury had been inflicted. If any one was killed by the above-mentioned means, the offender was to be punished as in cases of accomplished murder. If such means were used to produce illness in another person, the punish-

ment was four degrees less than the punishment for a miscarried murder.47 In Ming and Ch’ing times persons who were guilty of using images, magical writings, and imprecations in an attempt to cause the death of another were punished in the same manner as for murder—either punished according to the law for a miscarried murder or a committed murder, depending upon whether or not death followed. If the attempt in employing such black art was to produce illness, the punishment was two degrees less than that provided above.4

47 T'ang lit su-i, 18, 4a-b; Sung hsing-t'ung, 18, 4a-b. 48 Ming lili, 19, 15a; Ch’ing lit li 26, 80b; Staunton, op. cit., 310-311; Boulais, op. cit., 557.

15

VI. The Confucian School and the Legal School 1. Li Versus Law

Li and the Conjucianists

The purpose of both the Confucian and the Legal Schools was the maintenance of the social order. The difference between them lay mainly in the problem of what constituted an ideal social order and by what means such an order could be attained. The Confucian School denied that uniformity and equality were inherent in any society. They emphasized that differences are in the very nature of things and that only through the harmonious operation of these differences could a fair social order be achieved. Any attempts to equalize what was unequal, to give all men an identical way of life, would be irrational and would only result in the destruction of the

rational division of labor and inevitably in the overthrow of the social

order itself. Human beings, the Confucianists claimed, were characterized by differences in intelligence and in virtues, and these differences set the

stage for the division of labor. Two fundamental types of work were

recognized: the mental and the physical. It was the function of the

latter group to serve the mental-labor class with their production and their services. The scholar and official belonged to the first group, and

it was their function to study, acquire virtue, and govern the people.

Their work was highly valued. It was considered the task of the “big

man” or “‘gentleman”’, and as such was contrasted with the work of the “little man”, the commoner. Each class had its duties and obligations. Mencius puts it this way: “Great men have their proper business, and

little men have their proper business. ... Some labor with their minds,

and some labor with their strength. Those who labor with their minds govern others; those who labor with their strength are governed by others. Those who are governed by others support them; those who govern others are supported by them. This is a principle universally recognized,’”’!

1 Méng-tztt chu-su, 5B, 1b-2a; Legge, Chinese Classics, 11, 125-126. The idea was

not originated by Mencius. Similar expressions are found among earlier intellectuals:

“Superior men diligently attend to the rules of propriety [Ji], and men in an inferior position do their best” (Tso chuan chu-su, 27, 6a; Legge, Chinese Classics, V, Pt. I, 381-382; Couvreur, Tso Tchowan, II, 100). “It is a rule of the former kings that superior men should labour with their

LI VERSUS LAW

227

Since mental work was highly esteemed and physical work greatly disparaged, and since one group was served while the other served, a line was inevitably drawn between the superior and the inferior which led to a relationship of subordination and superordination. Hsiin-tzi? said, “The young serve the old; the inferior serve the noble; the degenerate serve the worthy.—This is the pervading rule of the universe.” Furthermore, satisfaction of all kinds and the rights of consumption differed according to the individual’s work and status.‘ Mental labor

minds, and smaller men labour with their strength” (Tso chuan chu-su, 30, 16a; Legge, Chinese Classics, V, Pt. 11, 440; Couvreur, Tso Tchouan, II, 242). “In an age of good government, men in high stations prefer ability, and give place to those who are below them; and the lesser people labour vigorously at their husbandry to serve their superiors” (Tso chuan chu-su, 32, 2b; Legge, Chinese Classics, V, Pt. II, 458; Couvreur, Tso Tchouan, I1, 285). “The great men devote themselves to governing, and the small men devote themselves to labor" (Kuo Yu, 4, 1a). “The commoners [i. e., the farmers], the artisans, and the merchants, each

attend to their profession to support their superiors” (ibid., 1, 16a).

2 Hsin Kuang 4j 2 (Fourth and third centuries B.C.). Also known as Hsiin Ch’ing 4 #9 or Sun Ch’ing $f #9. For his life and philosophy, consult: Shik chi 74, 5a-6a; Wang Chung jf #1, Shu hswich it Ht, pu-i Hh HW, 8a-13a; Ch'ien Mu BE FB, Hsien-Ch'in chu-tas hsi-nien k’ao-pien He H— 2 F- WE te ¥ HE, 301-302, Pung piao 3if, 9g 37 ff., 103; Hsiao Kung-ch'iian fj ZS HE, Chung-kuo chéng-chih ssii-hsiang shih Hp [Bl ii 34 HE AB gh, 1, 65-06, 75-83; Liang Ch’i-chao, History of Chinese Political Thought During the Early Ch'in Period, trans. by L. T. Chen (London,

1930), 63-72; Fung (Féng) Yu-lan, 4 History of Chinese Philosophy,

trans. by Derk Bodde, Vol. I (Peiping, 1937), 279ff.; H. Dubs, Hsiintze, The Moulder of Ancient Confucianism (London, 1927); J. J. L. Duyvendak, “The Chronology of Hsiin-tzii,” T’oung Pao, Vol. XXVI (1920), 73-95; Henri Maspero, La Chine antique (Paris, 1920), 563-576; Marcel Granet, La Pensée chinoise (Paris, 1934), 561-573-

8 Hsiin-tzit, 3, 28a; Dubs, The Works of Hsiintze (London, 1928), 89. 4 Differentiations in consumption are justified by the principle that the virtuous should be honored. In the minds of Confucianists the distinction between the humble and the noble served to mark off physical from mental labor, ignorance from wisdom, vice from virtue. The wise and virtuous occupied a high status and saw to the task of governing; the stupid and unworthy had a low status and were expected to support the former and be governed by them. The state appointed officials according to their ability and virtue and rewarded them with ranks and salaries. Thus Hsiin-tzii said, “One's virtue must correspond to his rank, and his rank must correspond to his salary (Hsiin-tzi, 6, 4b). All ranks and salaries were in accordance with one’s wisdom and virtue. The greater one’s virtue the higher his rank and salary (Hsiin-t2i, 8, 7a-b). This viewpoint was explained more fully by Hsii Kanf # (171-218), aHan scholar, who said, “For those whose merit is great the salary is high; for those whose virtue is great the rank is high. For those whose merit is small the salary is low; for those whose virtue is small the rank is low. Therefore when we see one’s rank we know his virtue; when we see one’s salary we know his merit. Inquiry would be unnecessary. That is why the great men 15°

228

THE CONFUCIAN SCHOOL AND THE LEGAL SCHOOL

should receive more pay and be accorded a better level of consumption.

The more intelligent and the more virtuous a person was, the better was

this consumptive level. Certain individuals were destined to enjoy good clothing, eat good food, live in beautiful houses, and ride in comfortable carriages, while others less well endowed were permitted to use only coarse clothing, eat only vegetables, live in poorly built houses,

of ancient time respected rank and salary” (Hsii Kan, Chung lun rf if, A, 27a). Ina kingly state a man without virtue would never be honored; a man without ability would never be made an official; and a man without merit would never be rewarded (Hsiin-tzit, 5, 9a-b; Dubs, Works of Hsiintze, 131-132). On the other hand, if one’s virtue does not correspond to his rank, one’s ability does not correspond to his office, and one’s reward does not correspond to his merit, these are the greatest misfortunes (Hsiin-tzit, 12, 7b-8a; Dubs, works of Hstntze, 194). With this as a guiding principle, a fair social order and good government could be attained only when it was certain that the virtuous were noble and honorable and that the unworthy were poor and humble. In such an ordered society, poverty and humbleness would be indices of unworthiness and inability and were things of which to be ashamed. That is why Confucius said, “When a country is well governed, poverty and a mean condition are things to be ashamed of” (Lun yit chu-su, 8, 3a; Legge, Chinese Classics, 1, 76). Thus a person would be ashamed of his wealth and nobility only when the state was ill governed and corrupt (loc. cit.). Hsiin-tzii also related consumption to the scarcity of goods. Human beings have the same wants. As wants are numerous and things few, men strive for things. Strife leads to disorder (Hsiin-tzi, 5, 3b-9a; 6, tb-2a; 13, 1a-b; Dubs, Works of Hsiintze, 124, 152, 213). How then to meet human wants and keep society in order? Hsiin-tzii thought that the problem could not be solved by treating all human beings alike and distributing things equally among them. He said, “When social standings are equal, there will not be enough for everybody. When men’s power is equal, there will be no unification. When people are equal, no one will be able to command the services of others ... Two nobles cannot serve each other, and two humble persons cannot command each other. This is a law of nature. When people's power and positions are equal, and their likes and dislikes are the same, things will not be sufficient to satisfy everyone, and hence there must be strife. Strife will lead to disorder and disorder will lead to distress (Hsiin- t2it, 5, 3b-5a; Wang Hsien-ch'ien, Hsizn-tot chi-chieh 4 = 4g RR, 5, 3b; cf. Dubs, Works of Hsiintze, 123-124). Thus the only way to solve the problem and maintain social order was to distribute things according to statuses. Some would enjoy more, some less. It was necessary to keep people together but make social distinctions plain (Hsin-tzit 6, 2a; Dubs, Works of Hsiinize, 152). Distinctions between poor and rich, humble and noble were essential to social harmony. This was the purpose of the /i (for discussion of the term, see below). Each would assume his duty, satisfy his wants, and find his correct position (Hsiin-tzit, 2, 22a-b; 5, 5a; Dubs, Works of Hsintze, 65-66, 124). Only by establishing social distinctions, Hsiin-tzu believed, would it be possible ‘‘to nourish men’s desires and meet men’s demands so that desires would not exhaust things, and things would not be exhausted by desires” (Hsiin-t2it 13, 1a. Cf. Dubs, Works of Hsiintze, 213).

LI VERSUS LAW

229

and travel by foot. Thus the man whose reward is the whole empire will not think it too much for himself; nor will the man who is a gatekeeper, innkeeper, guard at a pass, or night watchman consider his reward too little.> Hsiin-tzit said, “In the past the early kings made distinctions, thus making things unequal. Therefore some are favored, some are disgraced, some are honorable, some are mean, some are leisurely and happy, and some are toiling and tired.” The distinctions between noble and humble, superior and inferior were, as noted above, based upon the talent and virtue of each member of the society, and constituted a type of social selection conditioned by social success. In addition further differences found expression in the kinship system. These were based on criteria of generation, age, degree of relationship and sex. Status and modes of behavior in the larger society were determined by the fact of superiority and inferiority, in a family, by the degree of nearness and remoteness, superiority and inferiority, and seniority and juniority. The primary rights of consumption belonged to the father as against the sons, to the elder brother as against a younger brother, all types of labor or services being demanded from the junior groups,’ thus establishing relationships of subordination and superordination. The so-called rules of filial piety and brotherhood, and also of feminine behavior, were based on this. To the Confucianist the differences in nearness and remoteness, in

superiority and inferiority, and in seniority and juniority which oper-

ated within a kin group, and the differences in superiority and infe-

riority which operated in the society at large were of equal importance. Both classes of differences were indispensable to the maintenance of the

social order. To them the social order was but the sum total of these

5 Hsitn-tzi,, 2, 22b; Dubs, Works of Hsitntze, 66. © Hsiin-tzu, 6, 5b; Hsin-tzit chi-chieh, 6, 4a.

7 Thus Confucius said, “When their elders have any troublesome affairs, the “young take the toil of them, and ... when the young have wine and food, they set them before their elders” (Lun yit chu-su 2, 2b; Legge, Chinese Classics, I, 12). Hsiin-tzit also said, ‘“Now the nature of man is that when he is hungry, he desires repletion; when he is cold, he desires warmth; when he labors, he desires rest. This is man’s nature. Now when a man is hungry, he does not dare to eat food before his elders for he wishes to yield to them. When he is laborious, he does not dare to seek rest for he wishes to work for them. The yielding of the son to his father, the yielding of the younger brothers to their elder brothers, the working of the son for his father, and the working of the younger brothers for their elder brothers—these two kinds of behavior are contrary to human nature and contradictory to human feeling. Nevertheless these are the way of a filial son and the principle of /i and righteousness” (Hsin-tew 17, 3b-4a. Cf. Dubs, Works of Hsiintze, 304). It was commonly understood that feeding and serving were the minimum requirements for filial piety.

230

THE CONFUCIAN SCHOOL AND THE LEGAL SCHOOL

two kinds of social differences. Confucius said, “Benevolence

is (the

chief element in) humanity, and the greatest exercise of it is in the love of relatives. Righteousness is (the accordance of actions with) what is

right, and the greatest exercise of it is in the honour paid to the worthy.” A society in which honorableness and humbleness, superiority and inferiority, seniority and juniority, nearness and remoteness

were clearly defined constituted the ideal society; and conversely, a lack of distinction between these various features was extremely repugnant to the Confucianists. It was said that the main reason for Con-

fucius’ writing the Ch’un-ch’iu was to censure those rebellious officials

and sons who disregarded the prescribed distinctions. Hsiin-tzi says,

“Not to differentiate causes the greatest injury to human beings. To

differentiate forms the basic advantage of the world.”® He lists three

kinds of misfortune: the young who are not willing to serve their elders;

the humble who are not willing to serve the noble; and the unworthy

who are not willing to serve the virtuous.” Therefore the most essential thing is that men’s statuses shall be

clearly defined, and that their expected roles shall be properly carried

out. This' depends upon the presence of a body of approved behavior

patterns.” The

Ji," which

may

be defined

as the rules of behavior

® Li chi chu-su, 52, 1b; Legge, Texts of Confucianism, IV, 312; Couvreur, Li Ki, I, 449-450. ® Hsim-tzit 6, 5a-b. » Ibid., 3, 4b. 1 The term /i fj is usually translated rites, ceremonies, or propriety. That this is inaccurate can be proved by the remarks of two ancient statesmen. Criticizing the Duke Chao of Lu 4% ZS, a person who had correctly observed all details of ceremony from his arrival in the suburbs to his departure but who did not know the li, Ju Shu-ch’i 4 Jy # said, “These are ceremonies and should not be called /i. Li are those things by which [a ruler] maintains his state, carries out his policy and order, and does not lose his people” (Tso chuan chu-su 43, 4a-b. Cf. Legge, Chinese Classics, V, Pt. II, 604; Couvreur, Tso Tchouan, ITI, 103). Once Tzii Tai-shu -f- was asked by Chao Vang fH ## about the /i of bowing, yielding, and intercourse. He replied, “These are ceremonies, not i.” He defined Hi as “‘the rule of heaven, the principle of earth, and the actions of men.” Under these he named nearly everything: the enjoyment of food, of color, of music, the grades between the ruler and ministers and between the superior and inferior, the institution of husband and wife, the system of kinship and relatives, politics and punishment (Tso chuan chu-su, 51, 4a~5a. Cf. Legge, Chinese Classics, V, Pt. II, 708-709; Couvruer, Tso Tchouan, IIT, 379). From the above descriptions it can be seen clearly that rites and ceremonies should not be confused with li; at most they are but “the tips of li’ (Li chi chu-su, 38, 10a-b. Cf. Legge, Texts of Confucianism, IV, 116; Couvreur, Li Ki, II, 85). Obviously li are rules of behavior to satisfy and to regulate human needs. Thus li have been frequently referred to as. “rules of conduct” or “‘rules of proper conduct” (Fung, op. cit., I, 68; Dubs, Works of Hsientze, passim). But as we shall see later in the following discussion,

LI VERSUS LAW varying in accordance with one’s status of social relationships, were formulated purpose. They are the means by which are maintained.!? “When a person's title

Ji used are also different.’

231

defined in the various forms by the Confucianists for this differences in status and role and position are different, the

Unlike music, whose function isto achieve homogeneity," the function of li is to achieve differentiation. We find the following in the Classics:

the li is a body of special rules of behavior which vary according to one’s status.

We feel that “‘rules of conduct” is too general a definition. Moreover, the term #é in its broadest sense has the meaning of “institution.” In view of the remarks of Ju Shu-ch’'i and Tzit Tai-shu and the passages found in the Li chi, which associate li with marriage, kinship, government, official system, court audience, archery, chariot-driving, hunting, military ceremonies, funerals, sacrifice, etc. (Li chi chu-su, 21, 4a; 22, 11a; 50, gb-10a; Legge, Texts of Confucianism, 111, 367, have reason to believe we 80), Li Ki, I, or, 529; II, 379-3 388, IV, 272; Couvreur, that Ji are social and political institutions, including law and government (cf. Fung, op. cit., I, 68; Chung-kuo chéng-chih ssti-hsiang shih, 1, 44, 75-76). Thus we read in the Li chi that Ji and i are used “'to establish the institutions” J} #¥ if] [E (Li chi chu-su, 21, 3a-b. ifi] JE was translated by Legge as “‘buildings and meas-

ures,” and by Couvreur as “des ordonnances et des réglements (concernant les Edifices, les vétements, les voitures, ...)""—Legge, Texts of Confucianism, III, 366; Couvreur, Li Ki, I, 499. K’ung Ving-ta fl, $f] 3% does mention buildings, clothing, flags, carriages, food and drinking in his commentary. However, it refers to the institutionalized system of distribution of these things rather than to the things themselves. He makes it clear that it is the system of the greater or Jess share enjoyed by the superior and the inferior and the noble and the humble EF RNS & & & Z ib th. Thus both Legge’sand Couvreur'stranslations seem to be somewhat misleading); that /i is used “to implement the institutions” 4 % iti] IE (Li chi chu-su,21, 12b.In this quotation, Couvreur’s translation is the same as the previous one, but without the parentheses, whereas Legge’s translation has “statutory arrangements”—Couvreur, I, 512;

Legge, III, 375);

and that “institutions are [embodied] in the /i”” {J J& 7p gH (Li chi chu-su, 50, r1b. Legge’s translation reads, “The determinate measures are according to the rules,” and Couvreur’s, ‘‘Le cérémonial prescrit les mesures & garder’—Legge, IV, 275; Couvreur, II, 386. However, according to K’ung, the above phrase means that “the system of the superiority and the inferiority and the upper and the lower of LF dll IE FF CE WS BB Li chi chu-su, a nation exists in the Hi” Rl $< 4 0, 13a). ; ae no English equivalent could include all these features of li, we prefer to transliterate. For general discussion of the meaning of li, see Fung, of. cit., I, 68, 337-341; Chung-kuo chéng-chih ssit-hsiang shih, 75-7712 Hsign-tait, 22, 22a. 18 Tso chuan chu-su, 9, 8b. Cf. Legge, Chinese Classics, V, Pt. I, 97; Couvreur, Tso Tchouan, I, 168. 1 [i and music were different instruments utilized by the Confucianists for purposes of governing, but they were also inter-related. Li distinguished between different social statuses, while music appealed to man's feelings and by so doing

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THE CONFUCIAN SCHOOL AND THE LEGAL SCHOOL

Music aims at homogeneity; /i aim at differentiation.1*

Music embraces what is equal; /é distinguish between what is different.1® Music unites the homogenous; /i distinguish between differences.” Li are not the same.'®

This function of the /i to discriminate between persons according to their different statuses has been formulated by Hsiin-tzii. “Wherein is it that man is truly man? Because he makes distinctions. ... Hence the path [tao] of human life cannot be without its distinctions; no distinction is greater than social divisions; no social division is greater than the rule for proper conduct [/#].”!® Similar emphasis on this point is also found in many other sources:

[Li] are the rules of propriety, that furnish the means of determining the (observances towards) relatives, as near and remote; of settling points which may cause suspicion or doubt;

of distinguishing where there should be

agreement, and where difference; and of making clear what is right and what is wrong.??

The decreasing measures in the love of relatives, and the steps in the honor paid to the worthy, are produced by (the principle of) properity [Jé].** Hence the rules of proper conduct (Ji) are to educate and nourish. When the superior man has gotten its education and nourishment, he also esteems sought to produce group sentiment. In the Li chi we read, “Therefore in the ancestral temple, rulers and ministers, high and low, listen together to the music, and all is harmony and reverence; at the district and village meetings of the heads of clans, old and young listen together to it, and all is harmony and deference. Within the gate of the family, father and sons, brothers and cousins, listen together to it, and all is harmony and affection” (Li chi chu-su, 30, 1b; Legge, Texts of Confucianism, IV, 127-128; Couvreur, Li Ki, I, 108). Both li and music were essential to social organization and neither of them could be dispensed with. Thus the Li chi says, “Similarity and union are the aim of music; difference and distinction, that of ceremony [li]. From union comes mutual affection; from difference, mutual respect. ... Through the perception of right produced by ceremony [li], came the degrees of the noble and the mean; through the union of culture arising from music, harmony between high and low”” (Li chi chu-su, 37, 7a; Legge, IV, 98; Couvreur, IT, 55-56). 18 Li chi chu-su, 37, 6b-7a. Cf, Legge, Texts of Confucianism, IV, 98; Couvreur, Li Ki, I, 55. 16 Li chi chu-su, 38, 9a. Cf. Legge, Texts of Confucianism, IV, 114; Couvreur, Li Ki, 1, 83. ¥ Hsitn-tzit, 14, 5a. Cf. Dubs, Works of Hsiintze, 254. %8 Li chi chu-su, 23, 8b. Cf. Legge, Texts of Confucianism, IV, 401; Couvreur, Li Ki, I, 550. © Hsiin-tzit, 3, 5>-6a; Dubs, Works of Hsiintze, 71-72. ae chi chu-su, 1, 6a; Legge, Texts of Confucianism, IIL, 63; Couvreur, Li Ki, +3. *} Li chi chu-su, 52, 10b; Legge, Texts of Confucianism, IV, 312-313; Couvreur, Li Ki, I, 450.

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its distinctions. What are meant by its distinctions? There are the classes of the noble and the base; there are the inequalities of the senior and the younger; there is what is appropriate to those who are poor and those who are rich, to those who are unimportant and those who are important.2 Hence the ancient kings invented the rules of proper conduct (/i) and justice (yz) for men in order to divide them; causing them to have the classes of noble and base, the disparity between the aged and the young, and the distinction between the wise and the stupid, the able and the powerless; all to cause men to assume their duties and each one to get his proper position.% The ancient kings hated any disorder, and hence established the rules of proper conduct (/i) and justice (yi) to divide the people, to cause them to have the classes of poor and rich, of noble and inferior, so that everyone would be under someone’s control.*# The Ji are for the purpose of distinguishing the superior from the inferior, and of discriminating between the noble and the humble.25 (Zi) are the interactions between the ruler and his ministers, between the father and his sons, through which the noble and the humble, the virtuous and the unworthy are distinguished from each other.?*

(Zi] arrange the rank of the superior and the inferior, of the noble and the humble, and the great and the small in order to distinguish the grades of the external and internal, the remote and the near, and the new and the old.??

There is justice between the upper and the lower; there is distinction

between the noble and the humble; there are grades between the elders and the young. There is a [difference in] standing between the rich and the poor. The above eight are the essentials of 17.2

Li arrange the people in their ranks.%* [Li are used] to order the upper and the lower, to regulate the ways of human life.%

To advance and to retire within boundaries, to have distinction between the superior and the inferior, this is called i."

Some scholars have tried to explain the characteristic and function of Ji mainly in terms of subordination and superordination. Hsiin-tzi said, “Li signify to respect the noble, to be filial to the old, to be submissively fraternal to the elders, to be kind to the young, and to be

22 Hsiin-tzu, 13, 1b-2a; Dubs, Works of Hsintze, 214. His basic assumption was that there were not enough things to satisfy the unlimited wants and that the only way to meet the situation was to distribute things according to social statuses (see above, note 3). % Hsiin-tzit, 2, 22a; Dubs, Works of Hsuntze, 65. 2 Hsiin-tait, 5, 4a; Dubs, Works of Hsiintze, 124. 23 Huai-nan hung-lich chich He i PS Fl FR, 11, 1a. 2 Kuan-tzii, 3, 13b2 Ch'un-ch’iu fan lu, 9, 6b. 2 Ibid., 6, rb. ® Tso chuan chu-su, 4, 13b. Cf. Legge, Chinese Classics, V, Pt. I, 33; Couvreur, Tso Tchouan, I, 60. ® Pai-hu t'ung, 2, 6b-7a. Cf. Tjan, op. cit., II, 390. % Hsin shu, 6 3 Hsiin-te, 19, 4b. % Han shu, 58, 3b.

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gracious to the humble.”** In the Hsin shu we read, “Li are what the subordinates and inferiors followed in serving their superiors.’ Thus “it is by the universal application of the Ji that the social standing [of different persons] is fixed.” And only “through the estabishment of /i and i came the degrees of the noble and the humble.”

Kou 3&, a Chou official, said, “If i are not practiced, then the upper

and the lower will be confused.’’** And we also read in the Li cht,

“Without them [li] there would have no means of regulating the services paid to the spirits of heaven and earth; without them there would have no means of distinguishing the positions proper to father and son [ruler and minister], to high and low, to old and young; without them there would have no means of maintaining the separate character of the intimate relations between male and female, father and son, elder brother and younger, and conducting the intercourse between the contracting families in a marriage, and the frequency or infrequency (of the reciprocities between friends.)’** Obviously /i were formulated to regulate the expected, reciprocal attitudes and behavior between persons occupying different social statuses. There are then /i for the superior, /i for the inferior, /i for the elder, li for the younger. They are extremely complex and cannot be used

arbitrarily. Each individual must select those /i which are proper to his

social status. Invoking any other would be improper, that is, anti-li.

The Ch’un-ch’iu period is known for its rebellious ministers and sons

because during this time, the humble used the Ji of the noble, the inferior the /i of the superior.

According to /i, only the king offered the great sacrifice, ti, to his

ancestors.** Thus the Duke of Lu was criticized by Confucius for making the great sacrifice.** In the Li chi we are told that it is non-/i for the

i chi chu-su, 22, tb. Cf. Legge, Texts of Confucianism, UII, 378; Couvreur, I, 515. In another chapter we also read: ‘‘[the statuses of] ruler and minister, high and low, father and son, elder and younger brother, cannot be determined without /i’” (Li chi chu-su, 1, 6b. Cf. Legge, III, 63; Couvreur, I, 5). 3 Li chi chu-su, 37, 7a. Cf. Legge, Texts of Confucianism, IV, 98; Couvreur, Li Ki, I, 56. % Tso chuan chu-su, 13, 10a. Cf. Legge, Chinese Classics, V, Pt. I, 158; Couvreur, Tso Tchouan, I, 283. % Li chi chu-su, 50, 4a; Legge, Texts of Confucianism, IV, 261; Couvreur, Li Ki, II, 362-363. i chi chu-su, 34, 1a; Legge, Texts of Confucianism, IV, 60; Couvreur, Li Ki; For detailed explanations of fi ji, see Li chi chu-su, 12, 9b-12b; 32, 4b: 34, 1a-b; Chou li chu-su, 18, 5b-Ob; Kang-yang chu-su, 13, 3b-4a; Lun yit chu-stt, 3, 3b-4a; Wén-hsien t’ung-k'ao, 100: 912-915;

101: 917-920.

® Li chi chu-su, 21, 1ob-11a; Legge, Texts of Confucianism, III, 372; Couvreur, Li Ki, I, 508.

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officers of prayer, sorcerers, and recorders to keep the words of prayer and blessing; for the officials to use the chien HE cup and chia %¥ cup

and for the private families (ministers) to keep the hat with pendants and the leather hat or military weapons in their own houses; for great officers to maintain a full staff of officials, to have so many sacrificial vessels that they do not need to borrow any; and to have a complete set of singers and musical instruments.*° Why are these actions considered non-li? Obviously because the words of prayer and blessing were to be kept only by the state; because the hat with pendants and the leather hat and weapons were to be owned only by the ruler; because the chien cup and the chia cup were to be used only by the king; and

only the king and the feudal lords were entitled to maintain a complete

staff of officials, own sacrificial vessels, and have at their disposal a

complete set of singers and musical instruments. In short, the words of prayer and blessing, the chien cup and the chia cup, the hat with pend-

ants and the leather hat, the weapons, the sacrificial vessels, the music,

all, in and of themselves. are /i. They become non-li, or improper, only

when they are used by improper persons. Li is never an absolute stand-

ard, but is relative to one’s status. Other examples of non-/i can be cited: the eight-row dance,*! the screen erected in front of the gate, the fan-tien,** properly used, these are all i. The eight-row dance was the /i of the king, and Confucius

considered its performance by the three families of Lu, the families of ministers, completely objectionable." Screens erected before the gates and fan-tien were li for the feudal lord, and it was therefore completely

proper for the Duke of Ch’i to possess them. But Kuan Chung 4 f#, a minister, who permitted himself to use these articles was severely

criticized by Confucius for not understanding the /7.*4 Similarly a king was expected to use a decorated bow, a feudal lord a red bow, and a

high officer a black bow,*5 and any deviation would be anti-li. Confu-

cius was equally specific regarding the manner of address: he spoke in a straightforward way to the lower official, and in soft tones to the

higher official.6

© Li chi chu-su, 21, 11a-b; Legge, Texts of Confucianism, 111, 373-374; Couvreur, Li Ki, I, 509-510. 41 The Eight-row A fff dance which had sixty-four dancers was the exclusive right of a king. Dukes were allowed to have six rows with six men in each row, marquises four men in each row only (see Kang-yang chu-su, 3, 2a-b; Pai-hu tung 2, 9a). 42 Fan-tien J Jj was a stand for holding cups. 43 Lun yit chu-su, 3, 1a; Legge, Chinese Classics, 1, 18. 44 Lun yi chu-su, 3, 7b; Legge, Chinese Classics, I, 27. * Lun yit chu-su, 10, 1a; Legge, Chinese Classics, 1, 91. 43 Hsun-tri, 19, 2a.

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THE CONFUCIAN SCHOOL AND THE LEGAL SCHOOL

Within the family a similar principle operates as between superior

and inferior, elder and younger. To warm the comforter in winter and to cool the mat in summer; to inquire after the health of his parents morning and evening ;*” to inform them when going out and to present himself before them on his return;4* to keep no private property ;#° not to occupy the southwest corner of the building; not to sit in the middle of the mat, not to walk in the middle of the road; and not to stand in the middle of the doorway, these were the /i for a son. To take care

of the cooking and to hold the broom and the pan were the /i for the wife. When questioned by the elder, to reply by acknowledging one’s incompetence, this was the /i for the young.5! Thus each was expected to act in a different way according to his status. The Confucianists trusted that such differentiations would finally lead to a realization of their ideal society based upon the principle of ” society in which the ruler acted as a ruler, “human relationship—a the minister as a minister, the father as a father, the son as a son, the elder brother as an elder brother, the younger brother as a younger brother, the husband as a husband, and the wife as a wife.5* Confucius

laid the greatest emphasis upon the five human relationships. Mani-

festly the so called wu-lun Fi. fff, the five human relationships, are but concrete types of reciprocal relationships derived from the more

general categories of “noble and humble,” “superior and inferior,” “elder and younger,” ‘‘near and remote.” The relationship between

noble and humble and between the superior and inferior is quite complicated and of many kinds, but it can be represented by the ruler and the ministers. In a family or ésw the relationship of superior and inferior is also of many kinds, but among them that between the father

" Li chi chu-su, 1, 1ob; Legge, Texts of Confucianism, III, 67; Couvreur, Li Ki,

I, 10-11.

* Li chi chu-su, t, 12a; Legge, Texts of Confucianism, II, 68; Couvreur, Li Ki, Li. * Li chi chu-su, 13b; Legge, Texts of Confucianism, III, 69; Couvreur, Li Ki, I, 14. ® Li chi chu-su, 1, 13a; Legge, Texts of Confucianism, III, 68-69; Couvreur, Li Ki, I, 13. . Li chi chu-su, 1, 10b; Legge, Texts of Confucianism, III, 67; Couvreur, Li Ki, , 10. = Lun yit chu-su, 12, 4a; Chow i chu-su JB ¥} 34 Bi, 4, 9b; Legge, Chinese Classics, » 120.

59 The so-called chiin-ch'én #} [5 includes not only the ruler and his ministers but

also any relationship between a subordinate and his superior. Thus Confucius said, “‘To serve my ruler as I would require my minister to serve me, I am not yet able” (Li chi chu-su, 52, 5b; Legge, Texts of Confucianism, IV, 306; Cou-

vreur, Li Ki, IT, 437). In the Ta-Tai li chi fe §& #@ fewe read, “When one,

being the minister of someone, cannot serve his lord, he will not dare to say that

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237

and son and between the husband and wife are the most important. In

the relationship of elder and young, there are brothers. These four of the five basic relationships postulated by Confucians are all formulated in terms of superordination and subordination, the fifth, the relationship between friends being the only one that rests on equality. The first three

relationships have also been called san-kang = #4, the “three bonds”,

by Han scholars.54 The different human relationships can only achieve perfection through the operation of /7. We read in Li chi “As a ruler, he rested in benevo-

lence; as aminister he rested in respect ; as a son he rested in filialpiety;

as a father he rested in kindness; in intercourse with his subjects, he

restedin good faith.”’*> And again, “Kindness on the part of the father,

and filial duty on that of the son; gentleness on the part of the elder brother, and obedience on that of the younger; righteousness on the part of the husband, and submission on that of the wife; kindness on the part of elders, and deference on that of juniors, with benevolence on the part of the ruler, and loyalty on that of the minister.”>*

Obviously these various abstract qualities can only be realized through concrete behavior patterns set up by i. This had been phrased by Yen

Ying as follows:

That the ruler order and the subject obey, the father be kind and the son dutiful, the elder brother loving and the younger respectful, the husband be

harmonious and the wife gentle, the mother-in-law be kind and the daughterin-law obedient—these are things in propriety [Ji]. That the ruler in ordering

order nothing against the right, and the subject obey without any duplicity; that the father be kind and at the same time reverent, and the son be dutiful and at the same time able to remonstrate; that the elder brother, while loving, be friendly, and the younger docile, while respectful; that the husband be righteous, while harmonious, and the wife correct, while gentle, that the mother-in-law

be condescending,

while kind, and the daughter-in-law be

winning, while obedient ;these are excellent things in propriety [Ji].

a lord is unable to command his minister. ... One should speak of how to command ministers when one speaks before his lord, and of how to serve a lord when ‘one speaks before his minister” (4, 8b). That is why Liang Ch’i-chao says, “The term should not be used only in reference to king or feudal lord. No social organization can be without a relationship of leader and subordinates” (Hsien-Ch’in chéng-chih ssit hsiang shih, 75). 54 See Pai-hu t’ung, 17, 15a; Tjan, op. cit., II, 559-

5° Li chi chu-su, 60, 2a; Legge, Texts of Confucianism, IV, 416; Couvreur, Li Ki, IIL, 621-622. 5¢ Li chi chu-su, 22, 2b; Legge, Texts of Confucianism, 111, 379-380; Couvreur, Li Ki, I, 516-517. % Yen Ying J J (T. P'ing-chung 7 (ip) (sixth and fifth centuries B.C.). See Shih chi, 62, 3a-5a; Giles, op. cit., No. 2483. 58 Tso chuan chu-su, 52, 7b; Legge, Chinese Classics, V, Pt. II, 718-719; Couvreur, Tso Tchouan, III, 419-420.

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THE CONFUCIAN SCHOOL AND THE LEGAL SCHOOL

In the Li chi we read:

The rules of propriety [Ji] and of what is right are regarded as the threads by which they seck to maintain in its correctness the relation between ruler and minister; in its generous regard that between father and son; in its harmony that between elder brother and younger; and in a community of

sentiment that between husband and wife.** We also read:

Therefore when the services in the ancestral temple are performed according to them [Ji], there is reverence; when they are observed in the court, the noble and the mean have their proper positions; when the family is regulated by them, there is affection between father and son, and harmony among brothers; and when they are honored in the country districts and villages, there is the proper order between old and young. ...

The ceremonies at the court audiences of the different seasons were intended to illustrate the righteous relation between ruler and subject ; those of friendly messages and inquiries, to secure mutual honor and respect between the feudal princes; those of mourning and sacrifice, to illustrate the kindly feelings of ministers and sons; those of social meetings in the country districts, to show the order that should prevail between young and old; and those of marriage, to exhibit the separation that should be maintained between males and females. As li enable men to regulate human desire, to eliminate disputes and

disorder, and to distinguish between different social statuses and differ-

© Li chi chu-su, 21, 3a; Legge, Texts of Confucianism, III, 366; Couvreur, Li Ki, I, 499. © Li chi chu-su, 50, 2b-3a; Legge, Texts of Confucianism, IV, 258-259: Couvreur, Li Ki, IT, 358-359. % The Li chi says, “Li regulate the mind of the people” (Li chi chu-su, 37, 6b. Cf. Legge, Texts of Confucianism, IV, 97; Couvreur, Li Ki, II, 55). It further explains, “Thus we see that the ancient kings, in their institution of ceremonies [Ji] and music, did not seek how fully they could satisfy the desires of the appetite and of the ears and eyes; but they intended to teach the people to regulate their likings and dislikings, and to bring them back to the normal course of humanity. It belongs to the nature of man, as from Heaven, to be still at his birth. His activity shows itself as he is acted on by external things, and develops the desires incident to his nature. Things come to him more and more, and his knowledge is increased. Then arise the manifestations of liking and disliking. When these are not regulated by anything within, and growing knowledge leads more astray without, he cannot come back to himself, and his Heavenly principle is extinguished. Now there is no end of the things by which man is affected; and when. his likings and dislikings are not subject to regulation (from within), he is changed into the nature of things as they come before him, that is, he stifles the voice of Heavenly principle within, and gives the utmost indulgence to the desires by which men may be possessed, On this we have the rebellious and deceitful heart, with licentious and violent disorder. The strong press upon the weak; the many are cruel to the few; the knowing impose upon the dull; the bold make it bitter for the timid; the diseased are not nursed; the old and young, orphans and soli-

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239

ent degrees of relationship within the kin group, they also make it possible to reach the stage of good government. The elimination of disputes and disorder is the minimum requirement for maintaining the social order; it is also the common aim of all normative behavior. How-

ever, the correct operation of the five human relationships which are

at the core

of Confucian

ideology

constitute

the final goal of good

government. Duke Ching of Ch’i # #% 2 once questioned Confucius on this matter of good

government.

Confucius

replied,

“When

the

prince is prince, and the minister is minister; when the father is father, and the son is son.” Another time when the same question

was asked by Duke Ai of Lu 4§ $8 Z, he answered, “Husband and wife

have their separate functions; between father and son there should be

affection, between ruler and minister there should be a strict adherence to their several parts. If these three relations be correctly discharged, all other things will follow.’’®* Mencius’ statement, “If each man would love his parents and show the due respect to his elders, the whole land would enjoy tranquillity,’ carries the same message. The importance of /é in governing was emphasized in all the ancient writings of the Confucian school. Confucius himself said: “For giving security to superiors and good government of the people, there is nothing more excellent than the rules of propriety [Ji]. He also said:

“{li] form a great instrument in the hands of a ruler,” and it is by them

“that governmentis rightly ordered, and his own tranquillity secured.”

Shu-hsiang® also said: “[L] are the king’s great canons.” Yen Ying told the Duke of Ch’i that ‘‘Li for a long time have been possible for governing the country.”® Shih Fu’ said: “Li are embodied in the

taries are neglected :—such is the great disorder that ensues. Therefore the ancient kings, when they instituted their ceremonies [/i] and music, regulated them by consideration of the requirements of humanity” (Li chi chu-su, 37, 5a-6b: Legge, Tests of Confucianism, IV, 96-97; Couvreur, Li Ki, II, 52-54). 2 Lun yi chu-su, 12, 4a; Legge, Chinese Classics, 1, 120. *3 Li chi chu-su, 50, 5b; Legge, Texts of Confucianism, IV, 263-264; Couvreur, Li Ki, I, 366-367. * Méng-teti chu-su, 7B, 2a; Legge, Chinese Classics, 11, 178. % Li chi chu-su, 50, 2b; Legge, Texts of Confucianism, IV, 258; Couvreur, Li Ki, II, 358. “ ehi chu-su, 21, 12b; Legge, Texts of Confucianism, III, 375; Couvreur, Li Ki, I, 511-512. fy fa] was a minister of the state of Chin # around the sixth © Shou-hsiang

century B.C.

© Tso chuan chu-su, 47, 7b; Legge, Chinese Classics, V, Pt. 11, 660; Couvreur, Tso Tchouan, 111, 260. ® Tso chuan chu-su, 52, 7a. Cf. Legge, Chinese Classics, V, Pt. I, 713; Couvreur, Tso Tchouan, III, 419.

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THE CONFUCIAN SCHOOL AND THE LEGAL SCHOOL

practice of government.’ by which

Ju Shu-ch’i said: “Propriety [/1] is that

(a ruler) maintains his state, carries out his government

orders, and does not lose his people.””* Hsiin-tzit said: “Li are the pinnacle of governing, the basis of a strong nation, the way of majesty, and the sum of merit and fame; it is by them that a king is able to acquire the empire, or without them to lose the country.””* For these reasons the Confucian school has always considered the i as primary and fundamental in government. Confucius said: “The J are the first thing to be attended to in the practice of government, and

li are the foundation of government.’?5 Kuo said: “[Zi] are the stem

of a state.”7* Hsiin-tzii said: “The life of the state lies upon 77.7 The

indispensability of the /i was compared to a carriage without which the government could not proceed,”$ and to a steelyard which determined what was light and what was heavy, or toa carpenter’s line which determined what was crooked and what

was straight, or to a circle and

square which determined what was square and what was round.” Therefore “a man without /¢ will have no life; a matter without li will not be accomplished; a state without /i will not be peaceful.’ It was said that “the ruin of states, the destruction of families, and the

perishing of individuals are always preceded by their abandonment of

the rules of propriety [/i].”$t The Confucianists firmly believed that “when /i and righteousness [its principle] are predominant and esteemed,

the state will be in good order; when /i and righteousness are disre-

® Shih Fu fifi R was an official of the state of Chin around the eighth century BC. 1 Tso chuan chu-su, 5, 11a. Cf. Legge, Chinese Classics, I, Pt. I, 40; Couvreur, Tso Tchouan, 1, 74. 7 Ju Shu-ch’i was an official of the state of Chin around the sixth century B.C. % Tso chuan chu-su, 43, 4b; Legge, Chinese Classics, V. Pt. I, 604; Couvreur, Tso Tchouan, III, 103.

74 Hsiin-tzit, 10, 15b.

% Li chi chu-su, 50, 5b. Cf. Legge, Texts of Confucianism, IV, 266; Couvreur, Li Ki, Il, 370. % Tso chuan chu-st, 13, 10a; Legge, Chinese Classics, V, Pt. 1, 158; Couvreur, Tso Tchouan, I, 282-283. 7 Hstin-toi, 11, tb, 23a. % Tso chuan chu-su, 34, 10b; Hien-tzi, 19, 6b; Legge, Chinese Classics, V, Pt. I, 492; Couvreur, Tso Tchouan, II, 372. % Li chi chu-su, 50, 2b; Hsiin-tzi, 19, ob; Legge, Tests of Confucianism, IV, 257 Couvreur, Li Ki, 357. © Hsin-t2a,2, 17b. Wealso read, Not to follow the course of /i causes the loss of a state’ (10, 15b).

% Li chi chu-su, 22, 1b; Legge, Texts of Confucianism, III, 389; Couvreur, Li Ki, I, 530.

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garded and undervalued, the state will be in disorder.”*? The order or

disorder of a state thus depends completely upon the maintenance or the decay of li.

The importance of /i thus leads to the conclusion that it put a great instrument in the hands of a ruler. The so-called “governing by li” is much more than the application of abstract ethical and moral principles.

Law and the Legalists The Legalists neither denied nor objected to the distinctions between the noble, the humble, the superior, the inferior, the elder, the younger, the near and the remote, but they considered these matters minor and irrelevant, and even a hindrance to the business of governing. They were mainly interested in maintaining legal and political order, and they asserted that the governing of a state depended primarily upon the rewards which encouraged good behavior and the punishment which discouraged bad behavior.“ Meritorious deeds had to be re-

2 Hsiin-tz, 10, 4b-5a. Similar expressions are also found in the Li chi, “Where such ceremony [li] prevails, all government is well ordered; where it is neglected, all falls into disorder and confusion” (Li chi chu-su, 50, 13a; Legge, Texts of Confucianism, IV, 276; Couvreur, Li Ki, II, 388). ** For instance, the Han Fei tzu says, “The noble and the humble do not trespass against each other, and the simple and the wise each has his place—this is the perfect order” (2, 2b). In the Kuan-teti we read, “When there is no strictness in the court, no discrimination between the noble and the humble, no distinction between the elder and the younger, no accuracy in measurement, no grades in {the wearing of] garments, and the superior and the inferior are oppressing each other, it would be impossible to ask the people to esteem the political order of the sovereign” (2, gb). It also says, ““When there is no righteousness between the superior and the inferior there will be disorder; when there is no discrimination between the noble and the humble there will be strife; when there is no gradation between the elder and the younger there will be rebellion; when there is no limit for the rich and the poor there will be no regulation. When there is disorder between the superior and the inferior, strife between the noble and the humble, rebellion among the elder and the younger, and no regulation among the rich and the poor, I have never heard of such a state that is not in disorder’ (3, 13b-14a). * The Kuan-tzi names orders, punishments, and rewards as three instruments for governing a nation (5, 10a). “If it is impossible to give a reward when someone has merit, and impossible to punish when someone is guilty, it will be impossible to govern the people” (2, 1a). In the Shang-chin shu we read, “The idea of punishments is to restrain depravity and the idea of rewards is to support the interdicts” (2, 8b; Duyvendak, The Book of Lord Shang, 223). Punishment and reward were considered by Han Fei tzii as two tools for ruling the people (Han Fei tzii, 2, 4a; W. K. Liao, The Complete Works of Han Fei Tzu (London, 1039], I, 46). “When reward is insufficient to encourage, and punishment is insufficient to prohibit, the state, however large in size, will be in danger” (Han Fei tz, 5, 8a. Cf. Liao, op. cit., I, 161). 16

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warded and faults had to be punished. What actions were to be rewarded or punished were determined by objective, absolute standards

which permitted no differentiation on the basis of personal differences. Only when there was uniform law, a uniform reward and punishment*> could everyone be made to obey. Only thus could justice be maintained.

Consideration of such factors as the status of the noble, the humble, the superior, the inferior, the elder, the younger, the near, and the re-

mote was contradictory to this principle and made the goal of uniform reward and uniform punishment impossible to realize. The Legalists did not deny the reality of social differentiation, but they refused to permit this reality to exert any influence over the law. The statement of Han Fei tzii,5* ‘There are people who are virtuous and who are unworthy, yet we have no love and hate for them’®? illustrates this point. The Kuan-tzi* mentions relatives and nobles as two of the six

threats to government.*

It insists that only when

“neglecting the

[differences between] the close, the remote, the far, the near, the noble,

the humble, the beautiful, the ugly” and evaluating all by the same measurement, was it possible to govern.“ Therefore the Legalists maintained that all must be equal before the law. The Shén-tzi says, “The beloved one should not violate the law.’’®? Kuan-tzit considers that

government would be successful when the ruler, the minister, the superior, the inferior, the noble, and the humble all followed the law.

* Shang-chitn shu, 4, 52; Duyvendak, of. cit., 274. * Han Fei #% 3 (d. 233 B.C.), for whose life and thought see Shih chi, 63, ta-Sa; Hsin-Ch’in chu-tzu hsi-nien, 441-443, t’'ung piao, 50-57, 104; Chung-kuo chéngchik ssi-hsiang shih, 1, 171 ff.; Fung, op. cit.,1, 312; Liao, op. cit., 1, xxvii-xxix; Escarra, Le Droit chinois, 39-55; Giles, op. cit., No. 614.

© Han Fei tzit, 8, 6b. Cf. Liao, op. cit. I, 261. '§ Kuan-tzi, a work attributed to Kuan Chung (seventh century B.C.). For his life and thought, see Shik chi, 62, 1a; Chung-kuo chéng-chih ssti-hsiang shih, I, 146 fi.; Giles, op. cit., No. 1006. For discussions on the authenticity of this text, consult: Ku-chin wei-shu k'a0, 37b-38b; Ku-chin wei-shu k'ao pu-chéng, 257-264; Chung-kuo chéng-chih ssi-hsiang shih, 146, 162; Lewis Maverick, T’an Po-fu, and Wen Kung-wen, The Kuan-Tzu (Carbondale, 1954), 226-261 (the latter part is a translation of Huang Han’s work, Economic Thought in the Kuan-izt, Shanghai, 1936). ® Kuan-tzit, 5, 10a. * Ibid., 15, 7 ° Shén-tou tif F-, awork attributed to Shén Tao 4it $3 (fourth and third centuries B.C.), for whom see Shih chi, 74, 4b-sa; Han shu, 30, 17a; Hsien-Ch’in chu-tzuhsi-nien, 389-392, t’ung piao, 35-49, 102; Fung, op. cit., 1, 153-159. For discussions on the authenticity of the text, consult Ku-chin wei-shu kao, 22a; Ku-chin wei-shu k’ao pu-chéng, 156-157; Hsien-Ch'in chu-tzti hsi-nien, 390. % Shén-tzu, 4b. 9° Kuan-toi, 15, 6a.

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“TA wise king] never changes the law for his relatives, old acquaintances, or the nobles. . . Aruler considers the law more important than

his relatives.’ The Lord of Shang® said, ‘What I mean by the unifi-

cation of punishments is that punishments should know no degree or grade, but that from ministers of state and generals down to great

officers and ordinary folk, whosoever does not obey the king’s com-

mands, violates the interdicts of the state, or rebels against the statutes

fixed by the ruler, should be guilty of death and should not be pardoned.’”** Han Fei tzit said, “The law does not favor the nobles. ... However the law is applied, the wise have no way of avoiding [punishment] and the brave do not dare to argue. To punish a fault does not exempt the great officials. To reward merit does not exclude the commoners.”*? Such a formulation is diametrically opposed to the tenet of the Confucianists that the great officials are above punishment. The Lord of Shang, commenting further on this point, has also said, “Merit acquired in the past should not cause a decrease in the punish-

ment for demerit later, nor should good behavior in the past cause any derogation of the law for wrong done later. If loyal ministers and filial

sons do wrong, they should be judged according to the full measure of their guilt, and if amongst

the officials, who have to maintain the

Jaw and to uphold an office, there are those who do not carry out the

king’s law, they are guilty of death and should not be pardoned, but their punishment should be extended to their family for three generations [three ¢su].’"*

% Tbid., 17, 5b. ®5 Kung-sun Yang Z\ 7¥ 8, also known as Wei Yang {fj or Shang Yang 7fj $k (d. 338 B.C.) For his life and thought, see Shih chi, 5, 23b-25a; 68, 12-9} Hsien-Ch'in chu-tzi hsi-nien, 212-213, tung piao, 26-37, 101; Chung-kuo chéngchih ssti-hsiang shih, I, 171ff.; Duyvendak, op. cit., 1-130; Gilies, op. cit., No. 2296. For discussions on the authenticity of the Shang-chun shu, consult Ku-chin wei-shu k’ao, 21a; Ku-chin wei-shu k'ao pu-chéng, 147-149; Hsien-Ch'in chu-tzt hsi-nien, 211-213; Duyvendak, op. cit., 131-159. % Shang-chiin shu, 4, 6b; Duyvendak, op. cit., 278-279. Han Fei tzu, 2, 4a. Cf. Liao, op. cit., 45. % Shang-chiin shu, 4, 6b-7a; Duyvendak, op. cit., 279. The puishment for three tsu j= was first introduced in 749 B.C. by the Ch'in ¥¥ government (Shih chi, 5, 6b; E. Chavannes, Les Mémoires historiques de Se-Ma Ts'ien, 5 vols., Paris, 1895-1905, II, 17-18). There were different explanations of the scope of the three tsu, In the I i Chéng holds that it covers ego’s father’s brothers, own brothers, and son's brothers (I li chu-su, 6, 6a), and in the Li chi he identifies it with three generations: father, sons, and grandsons (Li chi chu-su, 50, 9b). In commenting on the punishment of the three fs, Ju Ch’un %j 7% named the father’s su, mother’s st, and wife’s isu (Shih chi, 5, 6b). Chang Yen ifg % gives still another definition, according to which the three ‘su included in the punishment were one’s father and mother, siblings, and wife and sons (shih chi, 6, 6b). 16"

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A spirit such as this which never compromises, refuses to consider the private affections, andis determined entirely by objective standards,

contrasts strikingly with the Confucianist principle of government whose judgments are based on considerations of differences of many kinds.” The Legalists objected to deliberations of this kind. The Kuan-

tzit says, “Order cannot be changed because of the will of the ruler. Order is more important than the ruler.”1° The Lord of Shang also said, ‘The rulers of the world frequently give up the law and trust to private deliberations. This is why the state is in disorder. The early kings hung up the scales and fixed the length, and they are still followed until now because their measurements are clear. If the scales are discarded in measuring the weight and the rule is abolished in judging the length, even if accurate, [the method] will not be employed by the merchants because of its uncertainty. Those who turn their backs upon

the law and depend upon private deliberations do not recognize the

analogy. Only Yao # was able to judge the wise, the able, the vir-

tuous, and the unworthy without the law. But not all persons in the

world are Yao. Knowing that personal deliberation and private approval were not reliable, the early kings formulated laws and made the

On the basis of certain statements in the Shi chi and Han shu, Chang’s commentary seems the most acceptable (cf. Ch’éng Shu-t¢ #3 ff 48, Chiu-ch'ao liz Raoft Att %,2:25). According to Han law, in cases of ta-ni pu-tao jt A, one’s parents, wives, children, and siblings, whether old or young, had to be publicly executed (Han shu, 5, 3b; 81, 19). When Emperor Wen attempted to abrogate the law for the arrest and punishment of the criminal’s wives and children, both he and his two chancellors mentioned the punishment of “father and mother, wives and children, and siblings” (Han shu, 23, 18a). Actual punishment involved the same relatives. In the case of Ch’ao Ts'o fag &, his parents, wives and children, and siblings, without discrimination of age, were all executed (Han shu, 49, 25a). In Li Ling’s 2 fu case, the list included his mother, wife and children. (Cf. Shih chi, 100, 10b; Han shu 54, 14a. The Han shu included also his younger brother, but this could not have been so for Li Ling was the posthumous child of his father, The Shih chi is correct.) In the case of Chi Hui-yiieh $2 §% Ht, the edict shows clearly that had he not sought to bring about the death of his father, the Marquis of Hsiang P’ing ¥f 43 {%, by rebellion, the Marquis, his wife and other sons (i.e., the criminal’s parents and siblings) would not have been pardoned and exempted from the joint punishment; only Hui Yiieh and his wife and children were executed (Han shu, 5, 3b). For a detailed discussion of this punishment see Hulsewé, of. cit., I, r12fi. ® The principle of deliberation wasdescribed by a statesman in 536B.C. as follows: “The ancient kings deliberated on (all the circumstances), and determined (on the punishment of crimes); they did not make (general) laws of punishment” (Tso chuan chu-su, 43, 8b; Legge, Chinese Classics, V, Pt. U1, 609; cf. Couvreur, Tso Tchouan, III, 117). 3 Kyan-tzti, 6, 8b.

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distinctions clear. Those who are in accordance with the standard will be rewarded and those who are ruining the public will be punished.” To the Confucianists, the degree of intimacy between relatives was

the foundation of human relationships." Confucius said, “When those who are in high stations perform well all their duties to their relations, the people are aroused to virtue. When old friends are not neglected by them, the people are preserved from meanness.’ Mencius said, “If each man would love his parents and show the due respect to his elders, the whole land would enjoy tranquillity.” But the Legalists held that ‘‘when one loves his relatives he will show discrimination; when one loves a private [person], he will be partial. If the people are numerous and engaged in discrimination and partiality, this will lead to disorder.” The Shéng-tzu said, “Blood members can be punished, relatives can be punished, but the law can never be put aside.’ The Lord of Shang analyzed the disadvantages of affection towards

relatives as follows:

[To rule] by means of virtue, the people will love their relatives; [to rule] by means of evil, the people will love the regulations. ... When [the 31 Shang-chiin shu, 111, 120-13; Chu Shih-ch’é 4 fifi if, Shang-chiin shu chich-

ku Wi 3 EW Bk. 57; Ch’én Ch'it'ien i Gk A, Shang-chiin shu chi-shih py = air 4 FB, 02-93. Ci. Duyvendak, op. cit., 261-262.

32 In the Li chi we read, ‘“Thus the course of humanity was all comprehended in the love for kindred” (Li chi chu-su, 34, 7; Legge, Texts of Confucianism, IV,

66; Couvreur, Li Ki, I, 787), and “Benevolenceis (the chief element in) humanity, and the greatest exercise of it is in the love of relatives” (Li chi chu-su 52, 10b; Legge, IV, 312; Couvreur, IT, 499-450). ‘Affection towards relatives” was considered one of the nine standard rules to follow for a government (Li chi chu-su,

52, 11b; Legge, IV, 314; Couvreur, II, 453). 33 Tun yit chu-su, 8, 1b; Legge, Chinese Classics, I, 72. 14 Méng-t2t chu-su, 7B, 2a; Legge, Chinese Classics, 11, 178. 15 Shang-chiin shu,2, 10a; Shang-chiin shu chi-shih, 56.Cf. Duyvendak, op. cit., 225. 106 Shén-tzit, 2b. by Ze HU DR BY IL itil FH and ff were understood 207 FAY MG SU IR BE BR. AE

Duyvendak

as “‘to employ”, and 2¢ and % as the virtuous and the wicked of-

ficials. Thus his translation reads, “If virtuous officials are employed, the people will love their own relatives, but if wicked officials are employed, the people

will love the statutes.

If the virtuous are placed in positions of evidence,

transgressions will remain hidden; but if the wicked are employed, crimes will be punished” (Duyvendak, op. cit., 207). Grammatically Duyvendak’s translation is correct. However, judging from the context, }fj and ff could not have the meaning of employment; otherwise the whole

statement become meaning-

less and can hardly be understood. Why did the Legalists want to employ the wicked officials in the government? How could the wicked make the people

love the statutes ? The Legalists did not think that government had to be in the hands of virtuous men, but neither did they hold that a government should be organized by wicked officials. The function of law, as they saw it, was not to

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government] displays virtue, transgressions will remain hidden; when (the the government rules] by means of evil, crimes will be punished. WhenWhen transgressions remain hidden, the people are superior to the law. the crimes are punished, the law is superior to the people. When the people are superior to the law, there will be disorder. When the law is superior to the people, the army will be strong.1°° Han Fei tzii also considered private virtue as an evil not to be tolerated —one in fact which was in conflict with the national good, and for this

reason to be avoided. He said, “To act with partiality for old acquaintances is considered [by the Confucianists] as not forgetting them. ..To bend the law to suit one’s relatives is considered as good behavior ... Being not unmindful [of old acquaintances] means that the offi. ‘Good behavior’ means to destroy the legal insticial is dishonest. tutions. ... These eight [actions] make for the personal reputation of the common people but for the great failure of a ruler. Something opposed to these eight makes for the personal blame of the common people, but is to the public advantage of a ruler. If a ruler considers not the advantage and disadvantage and applies what is the private reputation of the common people, it would be impossible for a country not to be in danger and disorder.” There is a story about a man of Lu who fought alongside his ruler in three battles, withdrawing, however, each time. Confucius asked the reason for this. The man replied that his father was old and that no one would care for him if he, the son, were killed. Confucius considered the son filial, and recommended him to his ruler. In the state of Ch’u there was a man who reported to an official that his father had stolen a goat. The official killed the son, considering that while he was loyal to his tuler, he was disloyal to his father.¥° This view was essentially Con-

encourage and reward the good, but to prohibit and punish the evils. Thus they were primarily concerned with the evil. The Lord of Shang made a clear statement on this point. He said that a good ruler “seeks offences and not virtue” 3 3 AS ke 2G (Shang-chun shu, 2, 14b; Duyvendak, op. cit., 233), and “punishes the bad people, but does not reward the virtuous ones” Jf] Ax 3 iii ABP 3 (Shang-chiin shu, 4, 1b; Duyvendak, op. cit., 288). This is also what he meant here in ff] 3 and {¥. #f. These refer to the method of governing, not the employment of officials. The statement may be explained as follows: If a government is concerned with virtue, then to love one’s relatives will be considered virtue, and people will tend to conceal their faults. If a government is concerned with evil, the evils will be discovered, and people will be encouraged to report them and to consider law of primary importance. This leads to the further conclusion that people should be treated as evil and governed as evil. See below note 212. ¥8 Shang-chitn shu, 2, 1a-b. Cf. Duyvendak, op. cit., 207. 39 Han Fei tzii, 18, 4b-5a. U0 Tbid., 19, 4a.

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fucian and Confucius himself had once exhibited a similar attitude in the case of a goat-stealing father. Differing from the viewpoint of those who approved of the action of bearing witness against one’s father, he

said, “Among us, in our part of the country, those who are upright are

different from this. The father conceals the misconduct of the son, and the son conceals the misconduct of the father. Uprightness is to be found in this." Such stories serve to underline the multiple roles of the individual in society and the conflicting views regarding good and bad social behavior held by the Confucianists and Legalists. The latter made the remark that the upright minister of a ruler was at the same time the cruel son of his father, and the filial son of a father was at the same time the rebel minister of a ruler.1? Han Fei tzii commenting on this situation said, ‘‘The minister executed [the son] and [as a result] the crimes against the state of Ch’u were not reported to the ruler. Confu-

cius rewarded [the soldier] and [as a result] the people of Lu tended to

run away and surrendered. The advantages of the ruler and the ruled are contradictory in such cases. If a ruler recommends the behavior of the common people and yet hopes to bring about a benefit to the nation,

it will never be attained.”""3 In summary it may be restated that the Confucianists relied on

which distinguished between individuals according to certain recognized

criteria for the maintainance of social order. The Legalists, on the other hand, opposed the use of such discriminatory rules and insisted on

“uniformity” or equality under the law for all alike. 2. Virtue and Punishment

How were the Ji implemented? How were the violations handled? The

Confucianist believed that no matter whether human nature was good or bad,™4 it was possible to bring about improvement by moral and

41 Lum yit chu-su, 13, 4b; Legge, Chinese Classics, I, 134. u2 Han Fei tzi, 19, 4a. 113 Loc. cit. 114 Mencius believed that human nature was good, that feelings of commiseration, shame and dislike, reverence and respect, approval and disapproval were inherited by all human beings. Men became evil and vicious only when they lost their original nature (Méng-tzit chu-su, 11A, 2a, 4b; 11B, 1a; Legge, Chinese Classics, 11, 271-272, 278-279). Thus education was necessary for maintaining the good in human nature. Hsiin-tzii believed that human nature was bad, and therefore education was most important to prevent men from doing evil. Thus he said, “Now the original nature of man is fond of profit. If this is followed spontaneously, strife and grasping result and courtesy and yielding disappear. Man is born with envy and hate; if these are followed spontaneously, cruelty and

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THE CONFUCIAN SCHOOL AND THE LEGAL SCHOOL

educational influences. enabled a man to become out, however, suffering was the most thorough, ful way to attain their been variously stated:

To improve the heart"? through education good and to become conscious of shame, withfrom evil intentions. To the Confucianist this the most fundamental, and the most successsocial aims. Its advantages over the law have

Lu Chia™* maintained, “law is used to punish the evil, not to encour-

age the good.” The law is able to punish men, but unable to make

men uncorrupt; it is able to kill men but is unable to make men kind."

All good behavior is derived from education. Only when the people are

led by virtue will they have a sense of shame and become good.

Thus it was argued that the filial piety of Tséng and Min,” and the

injuries result and loyalty and faithfulness disappear. Man is born with the desires of the ear and eye, is fond of music and beauty; if these are followed spontaneously, lewdness and disorder result, and 1i, i [righteousness], manners and order disappear. Therefore if people are allowed to indulge their nature and to follow their feelings, the inevitable result will be strife and grasping, violation of manners, confusion of order, and leading to violence. Thus there must be the influence of teaching and principles, the guidance of /i and i, and then it will be possible to have courtesy and yielding in accordance with manner and order, and leading to good government” (Hsiin-tzi, 17, 1a-b. For the meaning of 40, 4 the author adopts the interpretation of Vii Viieh fff #{& who suggests the character A instead of 4}. See Hsien-tzit chi-chich, 17, 1b. Cf. Dubs, Works of Hsiintze, 301). To those who believed that human nature might be either good or bad, education was also indispensable. Hsin Yiieh was the representative of this school. Considering that both good and bad were inherent in human nature, he admitted that “it is easier to be bad than to be good” and “‘if people are allowed to indulge their nature and follow it spontaneously, then most people will sink to the bottom” (Shén chien, 5, 8a). Thus both education and law were absolutely necessary to prevent people from being evil. He said, “Human nature, although good, has to be completed by education. Human nature, although bad, will be offset by law. Only the wisest and the stupidest will remain as they are. For those between them there is a struggle between good and bad; thereupon education supports what is good and law stops what is bad. This can be applied to [all] nine grades of people. Half of them would follow education, three-quarters would be afraid of punishment, and only about one-ninth will remain unchanged. And in this one percent we still find those who change slightly. Thus by the means of education and law nearly all the people are influenced” (Shén chien, 5, 7). 48 Thus Wang Fu said, “The superior sage does not intend to rule the acts of people, but to rule the hearts of people” (Ch’ien-fu lun, 8, 11a). 46 Lu Chia pi ff (third and second centuries B.C.). Sce Shih chi, 97, 62~-0a; Han shu, 43, 52-8b; Giles, op. cit., No. 1404. 47 Lu Chia, Hsin yit 9 3%. A, 10a.

8 Huan K’uan ij 9, Yen t'ich lun BBM BR 3, 10, 6b-7a. u° Lun yit chu-su, 2, 1a-b; Legge, Chinese Classics, I, 10. + Tséng Shén and Min Sun (Bq 4fj Tzii-ch’ien -f- #) (sixth and fifth centuries B.C.). See Shih chi, 67, 3a, r4b-15a; Giles, op. cit., No. 1533, 2022.

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purity of Po-i and Shu-ch’i!! were not due to any fear of death but to the efficacy of education. Said Wang Fu,!5 “If people are kind to each other they will not have the desire to harm each other; if they are thinking of righteousness they will not have an evil mind. A state like this is not commended by law, nor enforced by punishment, this is the result of education.”’!** Obviously law and punishment, the Confucianists held, could not induce people to do good. They could only function negatively and by intimidation to keep the people from doing wrong. At most, as Confucius asserted, the people ‘‘will try to avoid the punishment, but have no sense of shame.’’> Whenever the net of legal entanglements could be by passed, or whenever jurisdictional controls could be avoided, or whenever there was no question of intimidation, the individual would

still be evil since he had undergone no change of heart. Thus it was argued that “Ji prevents what is going to happen, while law [attempts to] prevent what has already happened.’ The value of education, according to Confucius, resides in its power ‘‘to prevent evils before

they occur and to arouse respect in trifling matters. Thus the people

are made to approach the good and keep away from the evil, day after day, while they themselves are not conscious of 227 By so doing,

the people will not be motivated by evil and no evil action will occur.

Consequently there is no need for law, just as there is no need for medication if there is no illness present. Confucius, for these reasons, con-

sidered the state of no litigation as the ultimate end,** and believed

that “if good men were to govern a country in succession for a hun-

421 Po-i {fy fj and Shu-ch’i fy #F (twelfth century B.C.). See Shih chi, 61, 7a-8a; Giles, op. cit., No. 1657. 422 Hsin yit, A, 10a. 483 Wang Fu (first and second centuries A.D.). See Hou-Han shu, 49, 2a-b; Giles, op. cit., No. 2168.

32 Ch'ien-fu lun, 8, 11a-b. 35 Lun yit chu-su, 2, 1a; Legge, Chinese Classics, I, 10. 128 Ta-Tai li chi, 2, 1b. 327 Loc. cit. In the Li chi we also read, ‘Therefore the instructive and transforming power of ceremonies [li] is subtile; they stop depravity before it has taken form, causing men daily to move toward what is good, and keep themselves farther apart from guilt, without being themselves conscious of it” (Li chi chu-su, 50, 3b-4a; Legge, Texts of Confucianism, IV, 259-260; Couvreur, Li Ki, II, 361). 128 Lun yit chu-su, 12, 4b; Legge, Chinese Classics, I, 121. Later there was a man who really believed in this doctrine. When Chia Hun #¥ jZ showed Téng Yu 9f Aig a legal case and asked him to give a judgment, the latter quoted Confucius’ statement and refused to read the case. Chia considered his behavior so worthy that he gave him his daughter in marriage (Chin chu, 90, 7b).

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dred years, they would be able to transform the violently bad, and

dispense with capital punishments.” Hsiin-tzi held the same view:

Therefore when a ruler is devoted to the Ji and to righteousness, esteemares virtue, employs the able and is without a covetous heart, then those who inferior to him would yield to him, would be loyal and faithful, and would be careful in performing their duties as minister. This being the case, then even the little men would be faithful without the presence of credentials and documents, would be fair without resorting to lots, would be just without relying on measures of weight, and would be honest without relying on measures of capacity. Therefore the people would be encouraged without receiving reward and submissive without receiving punishment. Officials would not be tired and the affairs [of the country] would be in order. Political orders would be few and the customs good. The people would not date not to obey the regulations of the ruler, or not to imitate his intentions and would be diligent in the affairs of the ruler, and would be peaceful and harpy.!” Tung Chung-shu"*! also said, “In ancient times the office of the instructions was encouraged to influence people by virtue and good.

When the people were greatly influenced there was not a single person

in jail.”

Although the process of education and influence takes time, once

this process is completed and people’s minds are corrected, they will do no evil as long as their minds remain unchanged. Therefore educa-

tion can bring perpetual ease by one supreme and continuous effort, making

the society permanently

peaceful. The law in contrast only

exerts a temporary effect, and for this reason is inferior to education. Chia I'4 explained the longer peace enjoyed by T’ang % and King Wu

1” Lun yit chu-su, 13, 3a; Legge, Chinese Classics, I, 131. 19 Hsiin-teti, 8, 2b-3. 31 Tung Chung-shu (second century B.C.), for whom see Shih chi, 121, tra-12a; Han shu, ch. 56; Giles, op. cit., No. 2092. A detailed discussion of Tung’s philosophy is found in Fung Yu-lan, 4 History of Chinese Philosophy, trans. by Derk Bodde, Vol. II (Leiden, 1953), 16 #. For a discussion of the authenticity of the Ch'un-ch'iu fan-lu $e $kFE FH, which is attributed to him, see Ku-chin wei-shu Kao, 43b; Ku-chin wei-shu Rao pu-chéng, 301-305. 182 Han shu, 58, 15b. 153 Shun spent one year on each of his journeys. See below. Confucius firmly believed that if he were employed by any state he would have accomplished a great deal in the course of a year and that in three years the government would be in a state of perfection. He once said, “If good men were to govern a country in succession for a hundred years, they would be able to transform the violently bad, and dispense with capital punishments ... If a truly royal ruler were to arise, it would still require a generation, and then virtue would prevail” (Lun yit chu-su, 13, 3a; Legge, Chinese Classics, I, 131). 3 See Shih chi, 84, 82-15; Han shu, ch. 48; Shu hsiteh, nei-p'ien Py $e, 3,6b-8a; Giles, op. cit., No. 32.

VIRTUE AND PUNISHMENT

251

GK E and the short reign of Ch’in entirely in terms of the difference in tuling by virtue and ruling by law. He said:

‘The king of Ch'in placed the empire under [the control of] law and punish-

ment; he had not a single virtue, and resentment and hatred were rife in the world. Those below him hated him like an enemy. Distress approached him closely, and his descendants were killed and perished. This was seen

by all in the world. ... Someone says that /i and righteousness are inferior

to law, and that education and moral does influence are inferior to punishment. Why not the ruler take the history of Yin, Chou, and Ch'in into consideration.1°> Tung

Chung-shu

explained

the difference similarly: “Tao

[way]

is

the method by which governing is carried out; benevolence, righteousness, /i, and music all constitute its means. Therefore when the sage king had passed away, his descendants enjoyed peace for many years.

This is the merit of /7, music, and education.” In the K’ung Ts’ungtzi7 we read, “The influence of Yao and Shun did not perish for a hundred generations; this is because the wind of benevolence and righteousness reaches far. Kuan Chung employed law, but the law

became inoperative as soon as he died; this is because he was severe

and lacking in kindness.” This quotation suggests that not only was

it impossible for a cruel ruler like the first emperor of Ch’in to hold his

empire for a long time, but that not even so intelligent and able an

official as Kuan Chung could assure, by law alone, the maintenance of

order for a long period of time.

Since moral influence could function so broadly and so permanently, the Confucian School strongly advocated ruling by virtue. Confucius

drew an analogy between governing by virtue and the character of the north polar star which remains fixed in its place while all others turn toward it.! “If the people be led by laws, and uniformity sought to be given them by punishments, they will try to avoid the punishment, but have no sense of shame,” said the master. “If they be led by virtue, and uniformity sought to be given them by the rules of propriety [i], they will have the sense of shame and moreover will become good.”#° Even if the people violate the rules, the Confucianists do not feel that these erring ones should be punished by law, for law can never be effec-

388 [bid., 56, 3b. 385 Han shu, 48, 21a-b. 187 K’ung Ts'ung-t2% FL 3% J-, a work attributed to K’ung Fu 71, fiff (thirdcentury B.C.). See Shih chi, 47, 30a. For discussions on the authenticity of this work, consult Ku-chin wei-shu k'ao, 22b-23a; Ku-chin wei-shu k'ao pu-chéng, 160-165; Hsi-Ch’in chu-tzi hsi-nien, 451-453. 38 K'ung Ts'ung-tzit, 2, 30b. 19 Lun yii chu-su, 2, 1a; Legge, Chinese Classics, I, 9.

28 Lun yit chu-su, 2, 1a-b; Legge, Chinese Classics, 1, 9.

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THE CONFUCIAN SCHOOL AND THE LEGAL SCHOOL

tive in keeping a society from deteriorating. It can neither prevent

evils from occurring nor remedy them after they have occurred. It would be as little effective as an effort to stop water from boiling by

adding hot water or an attempt to extinguish a fire by adding a bundle

of wood. Moreover, when people are guilty the fault is not theirs, but

the ruler’s, for their guilt is due to an inoperative or only partially operative system of education. “To put the people to death without

having instructed them ;—this is called cruelty. To require from them, suddenly, the full task of work, without having given them warning ;—

this is called oppression.”4? Therefore Confucius maintained that to govern properly, a country must rid itself of punishment and killing, and the ruler must exercise greater moral influence to attain the ideal political order.

This was the way in which the ancient rulers proceeded. The farmers of Li-shan trespassed on each other’s paths; the fishermen of Lei-tse

fought each other for land; the pottery made by the potters of the riverbanks was coarse. The great Shun went to Li-shan and farmed

and a year later the farmers yielded the paths to others. Shun went to

Lei-tse and fished; and a year later the dwellers yielded their places to others. Shun went to the river bank and made pottery and a year later all the pottery made there was of good quality.** Instead of punishing the people, Shun did not hesitate to spend three years’ time and energy

in cultivating them. This was the best way to exercise moral influence

when the people had not been given a thorough education. Confucius also operated on this principle. When he was the judge of Lu, a case was brought before him in which a father and son accused

each other. Confucius had the son arrested and held him for three months without questioning. The father then asked that the case be withdrawn. Confucius complied with his request and released the son.

When Chi-sung 2 4 heard of this he was displeased, and said, “This old man deceives me. He once told me, ‘A country must be ruled by filial piety.’ Now to kill one man would be a punishment to the unfilial, and yet he released him.” Jan-tzi 4} + told this to Confucius who sighed and answered, “Alas, the upper [the ruler] loses its way, and the lower [the ruled] are executed. How can it be? Not to instruct the people and to put them on trial is to kill the innocent. When

all the

three armies are badly defeated they should not be executed. When the law is improper the people should not be punished, for the guilt is

not on the side of the people.””#*

1 Han shu, 56, 8a. 42 Lun yit chu-su, 20, 2b; Legge, Chinese Classics, I, 217. 43 Han Fei tzii, 15, 2a; Shih chi, r, 22a, ut Hsiin-tzt, 20, 3a-b.

VIRTUE AND PUNISHMENT

253

The story of Shun reveals a positive attitude, that of Confucius, a negative attitude. Both, however, are firmly based on the value of education and moral influence in ruling the people. Many scholar-officials in the later dynasties acted similarly. They

also sought to fulfill their judicial duties by moral suasion and not by

arbitrary punishment. This is clearly indicated in the following historicalincidents:

Ch’ou Lan ff $f, a scholar in his youth, was later appointed chief of his canton. A native of the district was accused by his mother of being unfilial. The chief, convinced that the pair had not been sufficiently exposed to moral influences, visited them. He drank with the mother and son, explained the principle of filial piety to them, and gave the son a volume of the Book of Filial Piety. The man saw the evil of his ways and became a filial son.14 A case in which a mother and son accused each other was brought before the magistrate, Wei Ching-ch’un # #& Bg. Wei told the man, “I lost my parents during my youth. Whenever I see others who are supporting their parents I regret that I have had no such chance. You are fortunate to serve your parent. Why behave like this? When people are unfilial it is the fault of the magistrate.” He wept, gave him the Book of Filial Piety, and asked him to study it. Thereupon the mother and the son were impressed and became a good mother and a good son.™#6 Some

of the officials were even ashamed

of the failure of moral in-

fluence and took the blame themselves. Wu Yu 32 fifi was the Chan-

cellor of the Kingdom of Chiao-tung. Before he went out to hear a case, he always closed his door and placed the blame on himself. Sometimes he went to the village to effect a compromise. Thereafter litigation was

greatly reduced. resigned.147

Some

officials even acknowledged their faults and

During a trip of inspection to a country, a case in which two brothers accusedeach other over land was brought before Han Yen-shon #}iE #, a governor. Han was deeply grieved and said, “I am lucky enough to be the example for the whole province, yet Iam unable to demonstrate the moral influence, thus bringing about litigation among relatives. This is not only harmful to the customs, but it also brings shame to the virtuous magistrate, the local officials, and those who are ‘filial and fraternally submissive’ in the community. The blame is on the governor of the province. I should be the first to resign.” He stopped going to his office, closed the door and contemplated his fault. The whole county was puzzled. The magistrate and other local officials bound

themselves

and

waited for punishment.

All the kin of

the prosecutors rebuked the two men. The brothers regretted this very much, shaved their heads, bared their backs, and apologized. Han Yen-shou treated his subordinates sincerely but strictly. When he was deceived by them he rebuked himself, believing that he had been unfair to them. All his subordinates were impressed and two of them committed suicide.

485 Hou-Han shu, 76, 24b-258. 407 Hou-Han shi, 64, 34.

M6 Chiu T’ang shu, 185A, ob. MS Han shu, 76, 10a, 11a.

254

THE CONFUCIAN SCHOOL AND THE LEGAL SCHOOL

Lu Kung 4 4§ was a magistrate who depended entirely upon moralit. influence. Once a chief of a canton borrowed an ox and refused to return not The owner sued. Lu Kung urged the man to return the ox, but he could be persuaded to do so. Lu Kung sighed and said, “This is because education has not been in operation.” He intended to resign. All his subordinates wept and asked him to stay. The borrower was ashamed of himself and returned the ox. There were two brothers who accused each other because of property. Hii Ching #f 38], the governor of the province, sighed and said, “The failure of education is the fault of the governor.” He then ordered his subordinates to present a memorial and asked to be sent to the Ministry of Justice for punishment. The two brothers were sorry and apologized. As the Confucian School firmly believed that the good or bad

inten-

tions of the people depended on education, and that this education resulted from the moral influence exerted by some one or two indivi-

duals at the top, the principle of “ruling by man” was derived from the principle of “ruling by virtue.” “Ruling by virtue” refers to the process of moral influence; “ruling by men”’ refers to the man who puts this

process into operation. The two are seen as identical. The man who

held the highest position was the one with the greatest ability to in-

fluence. His personality was admired by the whole population; his behavior was imitated by all, becoming in this way the foundation of the country’s folkways. The relation between superiors and inferiors was held to be like that of the wind and the grass: “The grass must bend when the wind blows across it.”

Thus folk behavior was good or bad depending upon the personality

of the ruler. “A ruler has only to be careful of what he likes and dislikes.

What the ruler likes, his ministers will practise; and what superiors do, their inferiors follow.’’?5? “When the likes and dislikes are shown,

the people will know what is prohibited.’25* Confucius said, “If a superior love propriety [Ji], the people will not dare not to be reverent.

If he love righteousness, the people will not dare not to submit to his example. If he love good faith, the people will not dare not to be

sincere.” Mencius said, “When the ruler is benevolent, all will be benevolent. When the ruler is righteous, all will be righteous. When the ruler is correct, all will be correct.” Hsiin-tzi said, “As the ruler is

8 Hou-Han shu, 25, 6b. 180 Tbid., 76, 17a. 151 Lun yi chu-su, 12, 5a; Legge, Chinese Classics, I, 123. 3 Li chi chu-su, 39, 2b; Legge, Texts of Confucianism, IV, 119; Couvreur, Li Ki, + OI. ™83 Hsiao ching chu-su ¥ $K 7: Hf, 3, 3a- Cf. Legge, Texts of Confucianism, Vol.1, The Hsiao King (Sacred Books of the East, Vol. III, Oxford, 1879), p. 474. 14 Lun yit chu-su, 13, 2a; Legge, Chinese Classics, I, 129. 385 Méng-tu chu-su, 7B, 5b. Cf. Legge, Chinese Classics, 11, 186-187.

VIRTUE AND PUNISHMENT

255

ashamed of being poor, the people will decorate themselves secretly. As the ruler loves wealth, the people will risk their lives for profit.”15% “Never has there been a case of the superior loving benevolence, and his inferiors not loving righteousness.’”15? The relation of the ruler to his subjects was also compared to the relation of the sun dial and the shadow, to the source and the stream, and to the mould and the molten metal. If the sun dial was correct, the shadow would be correct. If the source was clear, the stream would be clear. And it was the mould which determined the shape of the metal in the pot. In short, the behavior of the inferior was merely a response to the behavior of the superior. Stories emphasizing this relationship were eagerly invoked by the Confucianists. Those concerning Shun were

the most famous.1* Since the behavior of the ruler was of primary importance, the actual principles of governing, according to the Confucian School, were quite simple: First and foremost was the rectification of one’s self.1

Thus when Chi K’ang-tzii 4 HE Y- asked Confucius about government,

the sage replied, “To govern means to rectify. If you lead on the people with correctness, who will dare not to be correct ?””!61 When asked the same question by Duke Ai of Lu, Confucius said, ‘Government is recti-

186 Hsiin-toti, 19, 14b.

181 Li chi chu-su, 60, 6b; Legge, Text of Confucianism, IV, 42 ouvreur, Li Ki, II, 633-634. 48 See Hsiin-tott, 8, 4b-5a; Han shu, 56, 5a; Ch’ien-fu lun, 8, 15a. 18 Han Fei teit, 15, 2a; Shih chi, 1, 22a.

1 Self cultivation, however, should not be confused with individualism. Tt is merely the foundation for governing others. Its role in the sequence was clearly stated in the Great Learning: “The ancients who wished to illustrate illustrious virtue throughout the kingdom, first ordered well their own states. Wishing to order well their states, they first regulated their families. Wishing to regulate their families, they first cultivated their persons” (Li chi chu-su, 60, 143 Legge, Tests of Confucianism, 1V, 411-412; Couvreur, Li Ki, II, 156). Self cultivation was important because of its political function. This correlation was mentioned clearly by Confucius who said, “(The great man] cultivates himself so as to give rest to others . . to give rest to all the people” (Lun yiz chu-su, 14, 10a; Legge, Chinese Classics, I, 156). Mencius said, “The principle which the superior man holds is that of personal cultivation, but the kingdom is thereby tranquillized” (Méng-tat chu-su, 14B, 3a; Legge, Chinese Classics, II, 371). This was the reason that the Doctrine of the Mean emphasized the importance of selfcultivation to such an extent that it was one of the nine standard rules for the government to follow (Li chi chu-su, 52, 11b; Legge, Tests of Confucianism, 1V, 314, Couvreur, Li Ki, II, 453). Hsiin-tzu was once asked about the ways of governing a country. He replied, “I have heard only about self-cultivation, but

never about ways of governing a country” (Hsin-tzii, 8, 4b).

381 Lun yii chu-su, 12, 5a; Legge, Chinese Classics, I, 122.

256

THE CONFUCIAN SCHOOL AND THE LEGAL SCHOOL

fication. When the ruler is correct himself, all the people will follow his government. What the ruler does is what the people follow. How should they follow what he does not do ?’’1 Mencius said, “Once rec-

tify the ruler, and the kingdom will be firmly settled.’ If the ruler

himself is not correct,

he cannot expect others to be correct. “The

ruler must himself be possessed of the good qualities, and then he may require them in the people. He must not have the bad qualities in himself, and then he may require that they shall not be in the people.”"1% Thus Confucius said, ““When a prince’s personal conduct is correct, his government is effective without the issuing of orders. If his personal conduct is not correct, he may issue orders, but they will not be followed.’!65 Again he said, “If a minister makes his own conduct cor-

rect, what difficulty will he have in assisting in government? If he cannot rectify himself, what has he to do with rectifying others ?”’1*Once

Chi K’ang-tzit asked Confucius about government, saying, “What do you say to killing the unprincipled for the good of the principled?” Confucius replied, “Sir, in carrying on your government, why should you use killing at all? Let your evinced desires be for what is good, and

the people will be good.”"!*" Chi K’ang-tzi, distressed about the number

of thieves in the state, asked Confucius for advice. The master replied somewhat

critically, “If you,

Sir, were

not

covetous,

should reward them to do it, they would not steal."

although

you

“Yao and Shun led on the kingdom with benevolence, and the people

followed them. Chieh 4 and Chau [Chou] #f led on the kingdom with violence, and the people followed them.’’® “From the loving example

of one family a whole state becomes loving, and from its courtesies, the whole state becomes courteous, while, from the ambition and perverseness of the one man, the whole state may be led to rebellious disorder.’ Since moral influence was so great, the Confucian school maintained that “‘only the benevolent ought to be in high stations. When a man destitute of benevolence is in a high station, he thereby disseminates his wickedness among all below him.’!7 “When the ruler is virtuous,

the country

is well governed;

when

he is unworthy, his

382 Li chi chu-su, 50, 5a-b; Legge, Texts of Confucianism, IV, 263; Couvreur, Li Ki, IT, 366. 163 Méng-tzi chu-su, 7B, 5b; Legge, Chinese Classics, II, 187. 184 Li chi chut-su, 60, 5a; Legge, Chinese Classics, 1, 371; Couvreur, Li Ki, IT, 626. 18° Lun yit chu-su, 13, 2b; Legge, Chinese Classics, 1, 130. 186 Lun yit chu-stz, 13, 3a-b; Legge, Chinese Classics, 1, 132. 18" Lun yit chu-su, 12, 5a; Legge, Chinese Classics, 1, 122-123. 1 Lum yit chu-su, 12, 5a; Legge, Chinese Classics, I, 1 1® Li chi chu-su, 60, 5a; Legge, Chinese Classics, I, 371; Couvreur, Li Ki, 11,625. 1 Loc cit. 11 Méng-tzti chu-su, 7A, 2a; Legge, Chinese Classics, IT, 166.

VIRTUE AND PUNISHMENT

257

country is in disorder.”17? For the same reason, “when people have a

good official they will all be loyal, faithfull, benevolent, and honest.

When they have a bad official, their minds will be evil and their beha-

vior will be contemptuous.” Thus, do not let the man lacking in benevolence have a chance to rule and the country will not be in danger. When

there is a virtuous

ruler and good officials, it is certain that the

customs will be good and the nation will be in good order. The order or

disorder of the nation depends entirely upon whether we have the

right person in government.

Thus the basic

principle of “ruling by

men,” may be rephrased as ‘the government, lies in man.’!7! The school acknowledged the existence of ‘‘a ruling person,” but denied

the validity of ‘‘a ruling regulation.” As long as the leader remains, the government will function. Confucius said, “Let there be the men,

and their government would flourish; but without the men, their government must cease.’’!75 Hsiin-tzii said, “There is a ruling man but not a ruling regulation. ... Law cannot stand alone and regulation cannot

be exercised by itself. By getting the [right] man, it lasts; by losing the [right] man, it perishes. Law is the tip of government, and the great man is the source of governing. Therefore by having the great man [in control], although the law is incomplete, it will be sufficient to cover everything. Without a great man, even if the law is complete, the sequence of its application will be in disorder and will be unable to meet the change of events, and will lead to disorder.”176

He also said, ““There are cases of disorder despite the existence of good law, but since ancient times there has never been a case of disorder

when there was a great man [in control]. The Book said, ‘Order derives from great men; disorder derives from small men’. This is what it means. ”’177 The Legalists’ position, as noted before, was diametrically opposed to that of the Confucianists. The former denied that moral influence alone could determine the social order and that some one or two per-

sons could wield enough power to transform the customs of the land and create either order or disorder within the state. They strongly rejected the rule-by-man principle which held that government could only function while the man-ruler was alive, and that it ceased to function when he died. Instead they sought a principle of governing that would assure

12 14 Li ¥%5 Li

Hsin-t2ii, 10, 4b. 178 Chrien-fu lun, 8, 15a Li chi chu-su, 52, tob. Cf. Legge, Tests of Confucianism, IV, 312; Couvreur, Ki, U, 449. Li chi chu-su, 52, 10a-b; Legge, Texts of Confucianism, IV, 312; Couvreur, Ki, 1, 449.

16 Hsiin-tzi, 8, 1a-b. Ww

177 Tbid., 5, 3a-d.

258

THE CONFUCIAN SCHOOL AND THE LEGAL SCHOOL

a long, even a permanent peaceful order of society, and not one whose uncertainties could only lead to intermittent periods of order and disorder. The Yin Wén tzi”” says, “If peace appears when there is the virtuous, and disorder appears when there is the stupid, then the order or disorder depends upon the virtuous and the stupid, not upon /i and

music. Then the method of a sage-king perishes with the sage-ruler, and the method of governing cannot be used by another dynasty. Thus most periods will be in disorder and seldom in order.’”1® Since Yao and Shun happen only once in a thousand generations, then according to Han

Fei tzii, “If it is peaceful only when Yao and Shun come, this means

that there will be one period of peace in a state which will be in disorder for a thousand years.” Waiting for Yao and Shun to change a bad situation was compared to waiting for grain and meat to save the hungry, or waiting for a skilled swimmer from Yiieh to save a drown

ing man. Neither the hungry not the drowning would survive by such methods.#81

As far as the Legalists were concerned, Yao and Shun had lived only

once in a thousand generations. Ordinarily men were “‘average persons who were not as good as Yao and Shun, but not as bad as Chieh and Chou.” These average persons, of and by themselves, were not powerful

enough to do either good or evil, but with the help of the law they

could govern a country. ‘To keep the law and be in a powerful posi-

tion then there will be order; to give up the law and do away with the

powerful position then there will be disorder.”8? They argued that “If

the powerful position and law are done away with and Yao and Shun are awaited, there will be order with the coming of Yao and Shun. This means that there will be one period of peace in a thousand generations of disorder. If the law is preserved and a powerful position maintained,

and Chieh and Chou are awaited, then there will be disorder with the

coming of Chieh and Chou. This means that there will be one period of disorder in a thousand generations of order.”1*? True, a good horse and a sturdy carriage driven by Wang Liang™ could cover a thousand /i in a day, but the Legalists held that if a station were placed at every fifty and an ordinary man sat in the driver’s seat, a thousand li would also

eventually be covered. If it was impossible to take any steps while

08 Vin Wen taii Ft 4 F-, a work attributed to Yin Wén Jt 3 (fourth and third centuries B.C.). See Han shi, 30, 17b-18a; Hsien-Ch’in chu-tzti hsi-nien, 215-218, 344-346; f'ung piao, 41, 102; Fung, op. cit., 1, 148-153; Ku-chin wei-shu R’ao, 20a-b; Ku-chin wei-shu h’ao pu-chéng, 137-142. 19 Yin wén tei, 6b-7a. 380 Han Fei tzii, 17, 2b. 381 Tbid., 3a. 482 Loc. cit. 189 Loc. cit. 18 Wang Liang =£ f& was an expert driver.

VIRTUE AND PUNISHMENT

259

waiting for Wang Liang, why wait for him?!> A country could not be ruled by such a principle. That the country only suffered from recurring, but short, cycles of order and disorder, but was not threatened by long periods of disorganization and disintegration was due to the combined

efforts of average persons who ruled successively by means of law. “The ruling of the world continued because of the averages.’!** Han Fei tzit said that to formulate law was “‘to enable an ordinary ruler to stop the robbers.”’1*7 “‘Let an average ruler keep the law, and let an unskilled artisan keep the compass, square, and ruler; they will never lose.” Furthermore it was said, ‘In reforming the corrupt, Shun spent one year in putting an end to one fault, and spent three years in overcoming three faults. Shun has only a limited number of years to live and then his life will come to an end, but the faults of the world are without end. By pursuing the endless with the limited, very little can be ac-

complished.’

Since Yao and Shun lived only once in a thousand

generations, the period of disorder certainly exceeded the period of order, and the people it required localities.

the need for a reformer was already most urgent. Even when had been fortunate enough to have Yao and Shun with them, three to five years to reform the people of some three to five How could the people of other places wait?

If so virtuous a man as Shun had to devote a year to onerous living in order to influence the people, how much more time would be required of those of less virtue. Han Fei tzii said, “It is difficult for Yao and Shun

to influence people by their painstaking example. It is easy for an ordinary ruler in a powerful position to be supercilious to his subordinates. One who rules the empire, gives up what is easy for an ordinary ruler, and assumes what would be difficult for Yao and Shun, is not competent to govern.’ All that would be necessary was to “have the rewards and punishments exercised in the empire. Let the order be: ‘Those who

are in accordance with the regulation will be rewarded;

those who are not in accordance with the regulation will be punished.’ The order arrives in the morning, the change goes into effect in the evening. The order arrives in the evening, the change goes into effect in the morning. In ten days it will be spread to all within the boundary of the sea. Why should one year be required ?”11 Moreover, even if a man were as virtuous as Yao and Shun, the Lega-

lists questioned the effectiveness of his moral influence for improving others. The Lord of Shang said, ‘The benevolent may be benevolent

48 187 188 189 az

Han Fei [bid., 8, Han Fei Han Fei

tii, 17, 3a. 186 Tbid., 2b. 8b. Cf. Liao, op. cit., I, 268. tz, 8, 9b. Cf. Liao, op. cit., I, 270. 190 Loc. cit. tzit, 15, 2b.

11 Loc. cit.

260

THE CONFUCIAN SCHOOL AND THE LEGAL SCHOOL

toward others, but cannot cause others to be benevolent; the righteous may love others, but cannot cause others to love.’’!® To look within.

and examine oneself, as advocated by the Confucianists, cannot affect

an unreasonable man. Han Fei tzii argued: “If it was necessary for Shun to reform a deteriorating society, then Yao was at fault. If we

consider Shun virtuous, then we must deny the intelligence of Yao; if

we consider Yao a sage, then we must deny the moral influence of Shun. We cannot have it both [ways].’” Therefore the Legalists did not believe in the principle of “ruling-byman.” They claimed that “‘a sage ruler relied upon law, not upon or again, that he “‘relied upon law, and not upon himself.’"1% wisdom ;” And if it was impossible for even a wise ruler to govern without laws,

what

could be expected

of the ordinary

sovereign?

The

Legalists

usually drew an analogy between the workings of law and the compass

and the square. A sage could no more give up law in governing than an artisan could correct a circle without a compass, or a square without a square.!7 “To put aside laws and to rely upon one’s heart in governing would make it impossible even for Yao to rectify a country.’2%

182 Shang-chiin shu, 18, 142; Duyvendak, op. cit., 203. 189 The Confucianists firmly believed that ‘‘he who loves others is constantly loved by them. He who respects others is constantly respected by them” (Méngtet chu-su, 8B, 3a; Legge, Chinese Classics, II, 209). An unfavorable response was

considered to be the effect of ego’s fault. Thus Mencius said, ‘‘Ifa man love others,

and no responsive attachment is shown to him, let him turn inward and examine his own benevolence. If he is trying to rule others, and his government is unsuccessful, let him turn inward and examine his wisdom. If he treats others politely, and they do not return his politeness, let him turn inward and examine his own feeling of respect. When we do not, by what we do, realize what we desire, we must turn inward, and examine ourselves in every point” (Méng-tzt chu-su, 7A, 5a; Legge, II, 170-171). He gave a further illustration: ‘Here is a man, who treats me in a perverse and unreasonable manner. The superior man in such a case will turn round upon himself—T must have been wanting in benevolence; I must have been wanting in propriety;—how should this have happened to me?’ He examines himself, and is specially benevolent. He turns round upon himself, and is specially observant of propriety, The perversity and unreasonableness of the other, however, are still the same. The superior man will again turn round on himself— ‘I must have been failing to do my utmost.’ He turns round upon himself, and proceeds to do his utmost, but still the perversity and unreasonableness of the other are repeated. On this the superior man says, ‘This is a man utterly lost indeed! Since he conducts himself so, what is there to choose between him and a brute? Why should I go to contend with a brute ?’” (Méng-teti chu-su, 8B, 3a-b; Legge, I, 209-210). 1% Han Fei tzi, 15, 2a-b. 85 Kuan-teti, 15, 4a. 26 Shén-tzil, 6a. ¥" Kuan-tzii, 6, 6a. Han Fei tzii also used similar comparisons in his discussion (Han Fei tzit, 8, oa-b). 1 Han Fei tzu, 9a. Cf. Liao, op. cit., I, 260.

VIRTUE AND PUNISHMENT

261

Moreover, “Without the encouragement of reward and the threat of punishment, giving up the power and the laws, and instead being persuasive to family by family and man by man, even Yao and Shun would not be able to rectify three families.” Since the Legalists were very much opposed to “ruling-by-man” and placed all importance on objective instruments, certain of them went so far as to say that “even if a law is bad, it is better than none.” Keen eyes and skillful hands are less dependable than a poor compass or square," and a law, even if bad, is able to “unify the mind of the

people.”’*? Thus it was The Legalists denied and morality as means These virtues were the

better than no law at all. the usefulness of benevolence, righteousness for ending disorder or as aids to governing. concern of moralists and educators who could

spend their days in exercising moral influence, in discussing man’s ultimate aim, and in advocating ways of achieving it. Such actions, however, did not fall within the scope of law. On their part, the Legalists

sought to maintain the legal order by the most certain processes, the most direct methods, and within the shortest periods of time. The

function of the law, according to them, was to prevent evil,2° not to encourage good behavior. A good ruler therefore “seeks offences and not virtue,’ and “‘punishes the bad people, but does not reward the virtuous

ones.’

And

whenever

legal mechanism was sufficient to

discover and punish crime, when they kept the people from committing evil deeds, then the purpose of the law had been accomplished. From

the point of view of the Legalists there was no difference between the

good man who committed no crime and the bad man who feared punishment so much that he dared commit no crime. In each case, the overt behavior was the same, and there was no need to concern oneself with what was in the heart. Han Fei tzit said, “When a wise man rules the country he prohibits people [from being evil] by laws and not by being stopped by purity.’’°* He gave his reasons as follows:

In ruling a country a sage relies not upon [the principle] that a man may be good but upon [the principle] that he is unable to commit wrong. To depend upon men being good, there will be no more than ten such men in the 21 Kuan-tzi, 6, 6a. 3 Shén-tzii, 2b. 1 Han Fei t2ii, 17, 2b-3a. 22 Shén-tzii, 2b. 22 Therefore the Lord of Shang said, “Punishments and executions are the means whereby wickedness is stopped” (Shang-chiin shu, 2, 8; Duyvendak, op. cit., 224). Han Fei tzti also said, “[the purpose of the law is] to assure the certainty of punishments in the hearts of the people ... and to apply the punishments to those who violate the ordinances” (Han Fei tet, 17, 5a). 24 Shang-chiin shu, 2, 4b; Duyvendak, op. cit., 233°° Han Fei tzti, 18, 2a. 25 Shang-chiin shu, 4, 11b; Duyvendak, op. cit., 288.

262

THE CONFUCIAN SCHOOL AND THE LEGAL SCHOOL

e territory; to depend upon men being unable to commit wrong, theityentir nation can be regularized. Governing employs what is for the major ande gives up what is for the minority. Thus rulers do not engage in virtu but in law. If we have to rely upon an arrow grown straight by itself, there will be no arrow for a hundred generations; if we have to rely upon a piece of wood grown round by itself, there will be no wheel in a thousand generations. There has not been a single arrow grown straight by itself nor a single piece of wood grown round by itself in a hundred generations. Yet how is it that the whole world is riding in carriages and shooting birds? It is because the process of bending wood by heat has been employed. Even if there were an arrow grown straight by itself or a plant grown round by itself without the use of heat to bend it, these would not be respected by a good artisan. Why? Because there is more than one rider and more than one shooting. ‘A people relying not upon reward and punishment, but upon their own goodness is not respected by a good ruler. Why ? The law of the nation cannot be given up and the people to be ruled are more than one person. Therefore a ruler possessing methods [of ruling] follows not the casual good but practices the definite ways.2” When

a moralist or educationalist is able to reform a few people, he

can claim great success. But since the Legalist aimed to keep the whole population from crime, he paid attention, not to the few who might

become good, but to those who were already evil or who might become

so. The good of the small number had little meaning for and was irrelevant to the ultimate aims of government. School “does

Therefore

the Legalist

not rely on the death of Pi-kan?°8 because of his moral

integrity and does not hope for a rebel minister to be honest.” Rather

“St relies upon that to which a coward will be submissive and maintains

what an ordinary

ruler can

easily uphold.”°® When

“none

of the

people will dare to do wrong, everyone in the whole country will be virtuous.””#!° Why should a ruler take the minority as his object? If a ruler pays attention only to the good of a few persons and neglects the

majority, “the purity of Po-i will be honored, but [the country] cer-

tainly will not be free from the danger of bandits.’241 Therefore the evil people were the chief concern

of the Legalists.

Their policy of government is clearly set forth by the Lord of Shang:

“A country where [the method of governing]

the good is applied to

govern the wicked will be in disorder and lead to weakness. A country where [the method of governing] the wicked is applied to govern the good will be in order and lead to strength.” Another passage claims 297 Thid., 19, ob-10a.

© ™ 210 * FE

Pi-kan Jt: -F. See Shih chi, 3, 12b; Giles, op. cit., No. 1645. Han Fei tzit, 8, 8b. Cf. Liao, op. cit., I, 268. Shang-chiin shu, 4, 11; Duyvendak, of. cit., 288. Cf, Han Fei tzu, , 8, 8, 8a; 8a; Wangis Hsien-shén =F 4 tit,it, Han Fei t2a chi-chieh -chieh #$f8 4 HE, 66-67; Liao, op. cit., I, 267. =

VIRTUE AND PUNISHMENT

263

similarly: ‘‘Applying [the method of governing] the good people to the governing [of the people] leads to disorder and weakness. Applying [the method of governing] the wicked people to the governing [of the people] leads to order and strength.’"?!2

Since their objectives and scope differed so radically, it would seem reasonable to assume that the Legalists on the one hand, and the educationalists and moral reformers on the other, could act separately and without mutual interference. The Confucianist, however, was not

merely a moral reformer and educationalist. He was also a statesman; and

whether

he sought

to cultivate

himself,

to influence others,

or

govern the country, he operated on one principle: moral suasion. His ultimate aim was to influence the world by li, music, benevolence, and

righteousness—and in some states these principles had considerable political force. Thereupon direct political conflict was inevitable. The Legalists not only denied the importance of benevolence and righteousness in politics, saying, “A sage king does not value right-

eousness, but he values the law.’’2!8 They further insisted that these

two virtues had only negative values, as far as government was concerned, and that ultimately they could only bring harm to the country.

The Lord of Shang considered Ji and music as symptoms of idleness,

and kindness and benevolence as the mother of faults.?4 He also con-

sidered Ji and music, odes and books, morality and virtue, filial piety

and brotherly love, sincerity and faith, chastity and incorruption, benevolence and righteousness as national parasites, and claimed that a country with such parasites could only perish.*”* In conclusion he said, “Tf you govern by punishment the people will fear. Being fearful, they will not commit villainies; there being no villainies, people will be happy in what they enjoy. If, however, you teach the people by right-

212 Shang-chiin shu, 1, 4a~b. This is merely a further conclusion based on the assumption that a state should be concerned with evils rather than virtue (cf. above, note 108). The statements:

fl yy 3

Rw

&

K

%

a

aL

se fl: a

Yu

wa EA US Rit RS OREM BREE 34 7 Bj mean the same thing. Both refer to the methods of govering the people, i.e., either the method of governing the good people or that of governing the wicked people is employed to govern the people (cf. Ch’én Ch’i-t’ien, Shangchin shu chiao-shih, 32; Chu Shih-ch’é, Shang-chiin shu chieh-ku, 19). They cannot be interpreted as “the virtuous govern the wicked’ or “the wicked govern the virtuous,” and “governing through good people” or “governing through wicked people,” as suggested by Dr. Duyvendak (of. cit., 200, 207). There is no logical ground to assume that a country in which the wicked govern the virtuous will be orderly and become strong.

219 Shang-chiin shit, 4, 14a; Duyvendak, op. cit., 204. 214 Shang-chiin shu, 2, a; Duyvendak, op. cit., 206. 218 Shang-chiin shu, 3, 10b; Duyvendak, op. cit., 256.

THE CONFUCIAN SCHOOL AND THE LEGAL SCHOOL

264

eousness, then they will be lax, and if theyare lax, there will be disorder; if there is disorder, the people will suffer from what they dislike.’”21¢ Han Fei tzii attacked the principle of benevolence and righteousness

even more severely and compared it in absurdity to the actions of

witches.

Now if a man tell someone, “I will make you wise and make you live longer,” the world will consider him crazy. Wisdom is one’s nature, and long life is one’s fate. Nature and fate cannot be learned from others. This man urges the impossible for a human being to do. Therefore it is considered crazy by the world. . To teach the people by benevolence and righteousness is the same as to urge others to be wise and long-lived; it will not be accepted by a ruler who possesses regulations. Therefore to admire the beauty of Mao Ch'iang € fff and Hsi Shih pj hf will not help my face; if rouge, powder, and eye shade are used, the merit will be doubled. To talk about the benevolence and righteousness of the early kings will not help the governing; to make clear my laws and statutes and to ascertain my rewards and punishments is the rouge, powder and eye shade of the nation. Therefore an intelligent ruler is eager about what will help and is remiss about praise, and thus does not mention the benevolence and righteousness. Now a witch and an invocation bless others, saying, “You will live for a thousand years.” The sound of “a thousand years’ fills the ears, but the blessing of one day produces no evidence for men. This is why witch and invocator are disregarded by the world. The Confucianists of the present world, while urging the ruler, talk not about the way to govern nowadays, but state the merit of the best ruling. They consider not the affairs of the official regulations nor the conditions of evil, but declare the traditional reputation of the earliest ancient times and the success of the early kings. The Confucianists ornament their statements and say, “By listening to my words it is possible to be a mighty and princely ruler.” This is the witch and the invocator among the theorists, and will not be accepted by a ruler who possesses regulations. Therefore an intelligent person emphasizes facts, dismisses what is useless, does not mention benevolence and righteousness, and does not listen to the word of the Confucian scholars.2!? The

Confucians,

on

the

other

hand,

said,

“The

ancient kings had

this commiserating mind, and they, as a matter of course, had likewise

a commiserating government. When with a commiserating mind was practised a commiserating

government,

to rule the kingdom

easy a matter as to make anything go round in the palm,.”28

was as

The Legalists, as just noted, strongly opposed a benevolent govern-

ment of this kind, considering that it differed little from a mother’s doting love?" which by its over-indulgence nourished evil and led to

28 Shang-chiin shu, 2, 12b; Duyvendak, op. cit., 229-230. 27 Han Fei t2i , 19, 10a-b. 38 Méng-t2ii chu-su, 3B, 4a; Legge, Chinese Classics, 11, 77. 2° Han Fei tzii frequently used the analogy of a mother's doting love in his argument against the principle of benevolence (see Han Fei tzti, 18, 6b; 19, 3a, 9b).

VIRTUE AND PUNISHMENT

205

crime. The Kuan-tzit says, ‘When people are covetous and their actions cruel, but their punishments too light and crimes are not exposed, this behavior nourishes disorder and makes it easy for the vicious. At

heart it has the love for the people, but it actually does the people harm.” Han Fei tzii said, “It is not benevolence and righteousness which save a country. The benevolent is kind and merciful. ... Being kind and merciful one will be tender-hearted. Being tender-hearted, he will pardon most of the punishments. ... Therefore when the benevolent is in the position of ruler, those below him will be indulgent, will tend to violate the prohibitions, and will seek for lucky escapes, expecting this from their ruler.’’*#! He gave the example of the kings of Ch’i and Wei whose states become weak and dismembered because of their benevolence and kindness.*#* For similar reasons, the Legalists objected to pardons. To them, the best way of encouraging people was to pardon no fault, and to neglect no good. If a small fault were pardoned, they argued, crimes would be

numerous. “If pardon is given, the people will not show respect; if kindness is practised, crimes will accumulate day by day. When kindness and pardon are applied to the people, even if prisons are full and

executions numerous, it will be impossible to overcome evil.’’** Thus small benefit and great harm will result from pardons, for, while there

will be ease at first, there will be difficulties, later, and in such degree

that it will be impossible to counteract the harm done. On the other

hand, little harm and great benefits will accrue from the denial of pardon. While there will be difficulties at first from this policy, there will be ease later, and the advantages will be unlimited. Mercy, therefore, was the enemy of the people; law was their parent.?%4 Advocacy of heavy punishment was a logical consequence of such a program. The Kuan-tzit says, “The putting into effect of an order

depends upon severe punishment.”’?*5 The Lord of Shang said, “Nothing

is more fundamental Han

in removing

evil than severe punishment.”?6

Fei tzii maintained that severe punishment was the best means

of governing.®*’ All insisted that when the punishment was too light it could not prevent crime or evil. Thus it was said:

When people are reckless and their actions dissolute, then the reward cannot but be heavy, and the punishment cannot but be heavy. Thus a sage is not extravagant in giving a heavy reward and is not cruel in formulating heavy 22 222 2% 226 227

221 Han Fei tei, 18, 6b-7a. Kuan-tzit, 15, t0b. 28 Kuan-teu, 6, 1b. Ibid., 9, 7a-b. Cf. Liao, op. cit., 1, 296-298. 8 [bid., 6, 8a-b. Tbid., 6, 2b-3a. Shang-chiin shu, 2, 13b. Cf. Duyvendak, op. cit., 233Han Fei tzit, 4, tob. Cf. Liao, op. cit., I, 124.

266

THE CONFUCIAN SCHOOL AND THE LEGAL SCHOOL

punishments. When the reward is light the people will not be interested in

profiting from it; when the punishment is light, vicious persons will not be afraid. Trying to command by what is not considered profitable, the people will not make any effort for it. Trying to prohibit by what is not feared, the vicious persons will not hesitate [to do evil]. Thus the law and the command

issued will not be obeyed by the people. Therefore, if a reward does not encourage, the people will not be ready for employment, and if a punishment

does not inspire fear, cruel people will violate the prohibitions readily. The people will obey only when they are submissive to power and execution, they will be usable only when there is profit, will be correct only when they are governed, and will be quiet only when they have obtained what is peaceful. Han Fei tzii commented:

Heavy punishment is what people dislike. Therefore the sage displays that which they fear in order to keep them from depravity, and puts forth what they dislike in order to prevent them from doing evil so that the nation will be peaceful, and that disturbance and disorder will not arise. For this reason I want to make it clear that benevolence, righteousness, love, and mercy are useless and that severe and heavy punishment can serve the purpose of governing a country. Without the power of the whip and the equipment of the bit, even Tsao-fu%® would be unable to control a horse. Without the means of compass, square, and inked string, even Wang Erh®° would be

unable to draw a circle or a square. Without the majestic power and the law of reward and punishment, even Yao and Shun would be unable to govern, while all the present rulers dismiss severe punishment, exercise love and graciousness, and then expect the merit of a mighty and princely ruler. How can this be realized? Therefore a ruler who knows well how to rule

displays rewards and puts forth profit in order to encourage them so that the

people will be rewarded because of their merit, but will not have rewards bestowed upon them because of benevolence and righteousness, and prohibits them by severe and heavy punishments so that the people will be punished on account of their guilt, — but will not be pardoned because of kindness and mercy. Thus those who have no merit will not expect [rewards], and those who are guilty will not hope for a fortunate [escape].?5" In addition, some Legalists advocated “heavy punishment for minor crimes” in the belief that not only would light punishment for serious

crimes indicate a tolerance of guilt, thus encouraging delinquent behavior, but that even a punishment that fitted the crime would be no aid in governing and no prevention

of Shang said:

to criminal action. The Lord

Therefore in the application of punishments, light offences should be regarded as serious;if light offences do not occur, serious ones have no chance of coming. This is said to be “ruling the people while ina state of law and order.”

28 Kuan-tati, 15, 10a. 28 Tsao-fu 3 4¢ was a good driver, 29 Wang Erh

was a

skillful artisan.

25 Han Fei tit, 4, 11b-12a. Cf, Liao, op. cit., I, 128-129,

THE CONFUCIANIZATION OF LAW

267

Ifin the application of punishments, serious offences are regarded as serious, and light offences as light, light offences will not cease and in consequence, there will be no means of stopping the serious ones. This is said to be “ruling the people in a state of lawlessness.”’ So, if light offences are regarded as serious, punishment will be abolished, affairs will succeed and the country will be strong; but if serious offences are regarded as serious and light ones as light, then punishment will appear; moreover, trouble will arise and the country will be dismembered. And in the Han Fei tzit we read:

Now those who know not how to rule, all said, “Heavy punishments are harmful to the people. Light punishment is able to prevent evil. Why should we use severe ones ?”” This is the result of not knowing how to govern. That which is to be prevented by severe [punishment] is not always prevented by light ones, but that which is to be prevented by light [punishment] must also be prevented by heavy ones. Therefore when heavy punishment is applied, all crimes will be prevented, and as all crimes are prevented, why will it be harmful to the people 228 Since severe punishments served the function of ‘‘abolishing penalties by means of penalties,’ the Legalists believed that although the Jaw was cruel, there was no other way to apply it. Morever, if pain was

suffered for a short time the benefits would be permanent.” 3. The Confucianization

of Law

In the two preceding sections we have discussed at some length the dependence of the Confucian School on /i to maintain the social order

and their implementation

by moral education,

while the Legalist

School invoked law for the same end and employed punishment as the enforcing agent. Li and law are obviously different rules of behavior, and since the Confucian School strove to maintain a clearly differen-

tiated social order and relied on differentiated modes of behavior (i.e.,

li), while the Legalist School strove only to maintain the legal order

of the state and relied on a uniform standard of behavior (i.e., law), no compromise was possible at this point. If the Confucianists had abolished their /’, they would have been compelled to abandon their ideal social order. Similarly, if the Legalists had abolished their law, they would have been compelled to abandon their ideal social order.

Under these circumstances, the serious arguments put forth by both

schools are quite understandable.

232 233 234 235

Shang-chiin shu, Han Fei t2ti, 18, Shang-chiin shu, Han Fei tatt, 18,

2, 2a-b; Duyvendak, op. cit., 209. 3a. 3, 1tb; 4, 10a; Duyvendak, op. cit., 259, 285. 2b.

268

THE CONFUCIAN SCHOOL AND THE LEGAL SCHOOL

The conflict between ruling by moral influence and ruling by punishment is of a different kind. Moral influence and punishment are merely different agents of enforcement. The problem of the /i or law is fundamental; the problem of whether to use moral influence or punishment for enforcement is secondary. In other words it is not impossible to enforce the same norm by different sanctions. The li can, of course, be enforced by moral influence, but if they are enforced by legal means

they would not lose their original character, and the ideal goal of the Confucianist would still be attainable.

Actually the Confucianists never completely rejected the legal sanction. They only objected to replacing moral influence by punishment. Yao, Shun, Yii #, T’ang, Kings Wén

and Wu, the Duke of Chou, and

Confucius were held to be the figures of Confucianism, and according to Confucianist legend, Yao and Shun had executed Kun ff and

exiled Kung-kung JE I. and Huan-tou Hi 92. Moreover, Shun appointed Kao Yao ft Bij as judge. The five punishments (tattooing,

cutting off the nose, cutting off the leg, castration, and capital punish-

ment), as well as whipping and the demand for ransom were all institutionalized during this ancient period.**

Punishment was mentioned by T’ang when he addressed his forces.*8? The Duke of Chou executed Kuan-shu # 4 and exiled Ts’ai-shu 3 44.28 And although Confucius sought a social order without litigation,

he still said, “In hearing litigations I am like any other body.” Once

he praised his disciple, Tzii-lu - if,

for his ability to settle a lawsuit

in a few words.*® In fact, Confucius himself, while officiating in the state of Lu, had Shao-chéng Mao 4 JE jl executed.2# The sage obviously was not one to absolutely oppose the use of punishment, but he

held that moral influence was basic, punishment supplementary.

He

said, “If names be not correct, language is not in accordance with the truth of things. If language be not in accordance with the truth of things, affairs cannot be carried on to success. When affairs cannot be carried on to success, proprieties [/i] and music will not flourish. When

proprieties [Ji] and music

do not flourish, punishments

will not be

properly awarded. When punishments are not properly awarded, the

people do not know how to move hand or foot.’ It is significant that

2% Shih chi, 1, 18a-19a, 24b, 25b-26a; Chavannes, of. cit., I, 65-68, 83-84.

287 Shih chi, 3, 4b-5a; Chavannes, op. cit., I, 177.

2 Shih chi, 4, 16a; 33, 3b; Chavannes, op. cit. 1, 246. 2 Lun yit chu-su, 12, 4a-b; Legge, Chinese Classics, I, 121. 4 Shik chi, 47, 10a, However, the reliability of Shao-chéng Mao's “> jf Slf.case was questioned by many scholars. Cf, Hsien-Ch’ien chu-tzti hsi-nien, 22-23; Chavannes, op. cit., V, 326-327, note 7. #41 Lun yii chu-su, 13, 1b; Legge, Chinese Classics, I, 128.

THE CONFUCIANIZATION OF LAW

269

Ui, music, and punishment are treated together and correlated. What Confucius opposed was improper punishment. When punishment was properly meted out, there was no need for argument. Later

Confucianists

made

even

more

compromises

regarding

the

problem of law. Mencius said, “Virtue alone is not sufficient for the exercise of government ; laws alone cannot carry themselves into practice.”

In Hsiin-tzii’s conceptions, many legal principles had a place—and it was no accident that the great Legalists, Han Fei and Li Ssii*3 were his disciples.

Hsiin-tzii did not underestimate the value of law and punishment

as did the earlier Confucianists.

“The

origin of punishments is to re-

strain violence, to hateevil, and to be a warning against the future {occurrence of violence and evil].”*45 Evidently he understood that punishment had a particular function in maintaining the social order and that it could not be replaced by moral influence. Such a conception

differed little from that held by the Legalists. Moreover, Hsiin-tzit believed in the inherent badness of human

beings and the need for

moral influence to induce people to be good. But not all people would accept and follow instruction of this kind. While some might be influenced by moral principles, many others had to be warned by punish-

ments. “Treat those who come with goodness by politeness, and treat

those who come with badness by punishment.’’™46 He also said, ‘A ruler must first rectify what is in himself; only then can he expect the same in others and warn them by punishment.’47 The viewpoint expressed in these statements was neither that of those Legalists who disregarded education and relied entirely upon punishment nor that of those Confucianists who emphasized merely the principle of self-examination. But he must still be considered a Confucianist, since for him /i and moral influence were fundamental. Like other Confucianists, he considered it improper to punish with-

out education, but he also thought it inadvisable to educate without

punishment. Thus he said, “If people are punished without education, penalties will be enormous and evil cannot be overcome; if they are educated without punishment, evil people will not be punished.’48 “If a murderer is not put to death, and if a man who wounds another

22 Méng-tzti chu-su, 7A, tb; Legge, Chinese Classics, 11, 165. 24 Li Ssii 2 JU; (d, 208 B.C.). See Shih chi, ch. 87; Hsien-Ch'in chu-tait hsi‘nien, 440; Derk Bodde, China’s First Unifier, a Study of the Ch'in Dynasty as Seen in the Life of Li Ssu (Sinica Leidensia, Vol. III, Leiden, 1938); Giles, op. cit., No. 1203. 244 Shih chi, 63, 1b; 74, 6a; 87, Ta. 8 Ibid., 15a. 7 Ibid., 6, 14b. 46 Tbid., 5,2a. 285 Hsin-teti, 12, 7b.

THE CONFUCIAN SCHOOL AND THE LEGAL SCHOOL

270

is not punished, this is being kind to cruelty and generous to thieves, and does not show hatred of evil.” Thus he maintained that without punishment injustice was certain,

and if justice were the aim, neither punishment nor education could

be eliminated. Li, righteousness, and punishment are often mentioned

together in his work:

Anciently the sage-kings

knew

that

man’s

nature

was

evil, that it was

partial, bent on evil, and corrupt, rebellious, disorderly, without good government; hence they established the authority of the prince to govern man; they set forth clearly the rules of proper conduct (li) and justice (yi) to reform him; they established laws and government to rule him; they made punishments severe to warn him; and so they caused the whole country to

come to a state of good government

and prosperity,

and to accord with

goodness. This is the government of the sage-kings, the reforming influence

of the rules of proper conduct (//) and justice (yr). Now suppose we try to

remove the authority of the prince, and be without the reforming influence of the rules of proper conduct (Ji) and justice (vi); suppose we try to remove

the beneficent control of the laws and the government, and be without the

restraining influence of punishments. Let us stand and see how the people of

the whole country would behave. If this were the situation, then the strong

would injure the weak and rob him; the many would treat cruelly the few

and rend them.

disorder.?5°

The

whole

country

would

be in a state of rebellion

and

Li and punishment are the fundamentals of governing. With them the great men will be able to rule and the people will be peaceful. There should be

virtue, and punishment should be careful. When a state is governed, the

whole empire will be pacified.25"

Hsiin-tzi furthermore held that the severity of punishment depended upon the situation. ‘When rewards do not correspond to merit and punishments do not correspond to crimes, there is no misfortune greater than this. ... When punishments correspond to crimes there will be government; when they do not correspond to crimes there will be disorder. Therefore punishments are severe in the state of government and light in the state of disorder. Offences in a state of government naturally would be major and in a state of disorder minor. The Book said, ‘Punishments at times are severe and at times light.’ This is what it means.”25? Hsiin-tzit lived in the last decade of the Warring States, when the powerful state of Ch’in was about to unify the empire; and it was in this crucial period that the principle of ruling-by-law was developed. Hsiin-tzit's formulations must be read against this background, It is equally necessary for an understanding of the Han Confucianists’ position to remember that the law had been codified before Han times and

2 Tbid., 12, 7b. 21 Hsitn-tati, 18, 3b.

+ Tbid., 17, 7a-b; Dubs, Works of Hsiintze, 308. ** Ibid.,12, 7a-8b, Cf. Dubs, Works of Hsiantze,194-195-

THE CONFUCIANIZATION OF LAW

271

that the Han Code itself had been published before the reign of Emperor Wu, the outstanding supporter of orthodox Confucianism. Even in the important Confucian classic, the Li chi, the function of punishment was discussed either separately or in combination with li and music, basic means of the Confucianists. This latter procedure suggests not only a common aim, but the possibility of joint and harmonious operation as well. The following passages make the point explicit:

Therefore the superior man framed rules of ceremony {Ji] for the conservation of virtue; punishments to serve as a barrier against licentiousness; and declared the allotments (of Heaven) as a barrier against evil desires.2% And so (they instituted) ceremonies {/i] to direct men’s aims aright; music to give harmony to their voice; laws to unify their conduct; and punishments to guard against their tendencies to evil. The end to which ceremonies [Ji], music, punishments, and laws conduct is one.254 Ceremonies [Ji] afforded the defined expression for the (affections of the) people's minds; music secured the harmonious utterance of their voices; the laws of government were designed to promote the performance (of the ceremonies and music); and punishments, to guard against the violation of them. When ceremonies [Ji], music, laws, and punishments had everywhere full course, without irregularity or collision, the method of kingly rule was complete.255 Tung Chung-shu, who was a specialist in the study of the Ch’unch’iu and a scholar believed in the principles of Yin and Yang and the Five Elements, drew an analogy between virtue and the principle of Yang (masculine) and between punishment and the principle of Yin (feminine). Spring and summer, the period of growth and nourishment, were equated with kindness and virtue, while autumn and winter,

periods of destruction, were equated with punishment. Since there must be four seasons in the natural order and since Yin and Yang were supplementary he claimed that law had a special function and could not be replaced by virtue, which alone could not implement government. Virtue, however, was fundamental, and punishment, secondary.*5¢

The belief that punishments were supplementary to virtue and moral

influence became quite popular among Han Confucianists. Liu Hsiang®®”

258 Li chi chu-su, 51, 4b; Legge, Texts of Confucianism, IV, 284; Couvreur, Li Ki, II, 400. 254 Li chi chu-su, 37, 2a; Legge, Texts of Confucianism, IV, 93; Couvreur, Li Ki, HI, 47-

289 Li chi chu-su, 37, 6b; Legge, Texts of Confucianism, IV, 97; Couvreur, Li Ki, 1, 55. 286 Cf, Han shu, 22, 4a-b; 56, sb-6a; Ch'un-ch'iu fan lu, 11, 6a-b, tob-11b; 12, 2b; 13, 1a-b. 257 Liu Hsiang $j fa} (77-6 B.C.). See Han shw, 36, 6a~32b; Ch'ienMu, Liu Hsiang

Hein fu-tai nien-p’u Bi ja) tik 2

> 4

Fer, 1-50; Giles, op. cit., No. 1300.

272

THE CONFUCIAN SCHOOL AND THE LEGAL SCHOOL

said, “Moral influence is the means of governing, and punishment is used to help in governing. Now to abolish the means and to set forth the help alone is not the way to reach peace.;/255 Wang Fu, a scholar who gave primary importance to virtue and moral influence, also held that a ruler could not depend solely upon them and had to start from the bottom before the highest state could be reached.2 At the same time he admitted that extreme evil could not be reformed,?® and that consequently education could have no influence on them. He noted that law had its function “‘to encourage the virtue of the good people and make them enjoy the government, and to make

the vicious people sorry for their straits and regret their actions,’2t

and conversely, that being generous to the vicious would be harmful to the good people, for evil would spread if the vicious were not elimi-

nated.2” “If policy and orders are carried out definitely, and prohibitions are truly effective, the nation

cannot

be in disorder.’’**3 Thus,

“When law and order are operating, there will be good government; when law and order are by-passed, the nation will be in disorder.”

Again closer to the thought of the Legalists, Wang Fu pointed out the need for severe punishment, “During a period of deterioration, the good would not be encouraged if the reward were not large, and the

vicious would not be deterred if the punishment

were not severe.?®

And finally, and in contrast to the other Confucianists, he opposed the

use of the pardon.¢

Another Han Confucianist, Hsiin Yiieh?*” should also be mentioned. He considered that human nature was a combination of good and bad,

and that men would find it easier to do evil than do good if spontaneous action were permitted. Consequently wrongdoers would be numerous.?* Moreover, while a good nature could be cultivated by moral influence, the bad must be held in check by the force of law. He believed that some part of the people would be affected by education, becoming good, and that the majority would so fear the sanctions of the law that they would refrain from criminal action. ‘“By means of education and punish-

ment nearly all of the people will be affected.’”289

Thus to Hsiin Yiieh education and punishment each had a

function,

and through combining the two it was possible to cultivate the good and prevent the vicious from doing evil. Thus, ‘Virtue and punishment used together is the normal way.” And, ‘The fundamentals of

28 281 24 *7 28

Han shu, 22, 6a. 29 Ch'ien-fu lun, 5, 6a-b. 20 Tbid., 4, 6b. Tbid., 5, 4a. 82 Tbid., 4, 53; 5, 3a-b. 288 Thid., 5, 6b. Thid., 4, 7b. 28 Tbid., 4, 13a-b. 286 Tid., 4, 4afi. See Hou-Han shu, 62, tob-15b; Giles, op. cit., No. 811. Shen chien, 5, 8a. 39 Tbid., 5, 7b-8a. 2 [bid., 2, 6a.

THE CONFUCIANIZATION OF LAW

273

government are nothing but law and education.’"?7! He also did not care which was applied first.27* During the time of Emperor Chao of Han i 1% “ff (8x B.C.) an edict ordered a court debate between the scholars of Virtue and Literature*?3 and the Grandee Secretary, Sang Hung-yang 4& 9) 35;274 the latter advocating severe law and punishment, the former emphasizing the greater significance of virtue. But these scholars of Virtue and Literature did not reject the law. They compared it to the whip in driving and they recognized that punishment was an instrument for implementing moral influence, whenever moral influence was insuffi-

cient of and by itself. But, in addition, they argued that as soon as the process of moral influence was complete, the function of the law would cease. ‘“The sage depends upon law for the completion of education. When the education is completed, the punishment will not be applied. Therefore it is stern, but will not kill. Punishment is set up but no one transgresses it.”’275 This ultimate goal or ideal, as formulated by the scholars of Virtue

and Literature, should be recognized as the general viewpoint of the

Confucian scholars of the time, and not merely as the opinion of a few dignitaries. The argument, itself, was phrased in relative terms. It was not concerned with the retention

or abolishment

of punishment,

rather with the problem of its primary or secondary importance.

but

In

other words, which should be applied first education or punishment ? Similar views are also found in Pai-hu ¢’ung, the publication in which the Erudites and other scholars of Later Han set forth their opinions after a series of court discussions. It reads, ‘‘Why must a sage employ punishment in governing the empire? It is for the purpose of supple-

menting virtue and helping Obviously, and from the jected by the Confucianists, function of punishment was

the governing.”?7° very beginning, punishment was not reand, as time passed, the supplementary increasingly emphasized.

272 Thid., 2, 6a-b. 271 Tbid., 1, 1b. 273 The‘‘Virtue and Literature’’ if f2 3¢ 44 was one of the categories under which Han scholars who had such qualifications were recommended by the various kingdoms and provinces, sent to the capital, and thereby entered the official

career, They were often required to answer questions. See Hsi-Han hui-yao, 44, ra-2b; T’ung tien, 13: 73-74. For the court debate, see Han shu, 6, 4a; 24B, 18a-b; 66, 7b; E. M. Gale, Discourses on Salt and Iron, a Debate on State Control

of Commerce and Industry in Ancient China (Sinica Leidensia, Vol. II, Leiden, 1931), XVii-Xxx,

274 Han shu, 24B, 10a-b, 12a, 17a-18b.

25 Yen t'ieh lun, 6, 16a, For a discussion of this text and its author, Huan K’uan,

see Gale, op. cit., xxxi-li. 276 Pai-hu t’ung, 8, 17b; Tjan, op. cit., II, 603. 18

274

THE CONFUCIAN SCHOOL AND THE LEGAL SCHOOL

From the above discussion it is evident that the fundamental argument between the two schools revolved around the problem of the

modes of behavior to be maintained, and not around the problem of

whether moral influence or punishment should be used, for the same norm could be enforced by different agents. If the differentiated

modes of behavior advocated by the Confucianists could be enforced by legal sanction rather than by moral influence, the same end could be attained, and no objections would be raised by the Confucianists. Thus when the law, which

was formulated by the Legalists, was actually

adopted by the government, the Confucianists ceased spending their

energies on vain arguments and fought for practical and achievable goals. When the situation was critical they did not argue against the

value of the law. Instead they tried to introduce into the code the principle and spirit of the /i together with its concrete rules of behavior and to enforce them by legal sanction. The laws of Warring States,

and of the Ch’in and Han dynasties were formulated by the Legalists,27 and naturally reflected the ideas and attitudes of that school which,

as we

have

noted,

were

strongly

opposed

by

the

Confucianists.

But in Han times, especially under Emperor Wu, whose policy it

was to promote Confucianism, members of the Confucian school gained

political power to influence the laws of their time to a considerable

degree. The Shih chi reads, ‘Many laws and ordinances were revised. . . .

All the suggestions were initiated by Chia I.’?’8 No details of these revisions have come down to us, but it is known that Chia I was an outstanding Confucianist and that therefore any

proposals made by him would have been made from a Confucianist

standpoint. This is shown in his memorial setting forth the merits of the ancient policy of not punishing officials, a policy which had been

operative in feudal times and which held it improper to mete out punishments given to commoners to nobles and ministers as well. When Emperor Wén of Han approved Chia I's suggestion and permitted all great officials from then on to commit suicide instead of being subjected to regular punishment ,?”° he obviously modified earlier Han ways of

dealing with this matter. Hsiao Ho, the lawmaker and first chancellor

*7 According to the Treatise on Punishments in the Chin shu, the law code, Fa ching 1: #86, written down by one of the earliest Legalists, Li K’uei a ip (fifth and fourth centuries B.C. Cf. ante, p. 170, note 3), was the father of later codes, It was used as a basis by Shang Vang, who formulated the Ch’in code, which was adapted by Hsiao Ho (infra) in drawing up the Han code (Chin shu, 30, 5a-b. Cf. T'ang liu tien, 6, 3a-b; T’ang lit su-i, 1, 8a-b). 28 Shih chi, 84, 8b; Han shu, 48, rb. 2° Han shu, 98, 22a~25).

THE CONFUCIANIZATION OF LAW of Former Han, had been chained and imprisoned,? and Chou

275, P’o, a

chancellor also, had been imprisoned and tried in the jail at Ch’ang-an.?8! Considering his fate, it seems more than certain that the law code of Hsiao Ho contained no regulation exempting high officials from punishment.

Further evidence of the readiness of Confucians to accept the reality of the law can be adduced from the fact that during the Han dynasty explanatory notes to the law were written by some ten or more Con-

fucian scholars, Shu-sun Hsiian, A 4

%%, Kuo Ling-ch’ing 9] 4 #9,

Ma Jung,?s* Chéng Hsiian,*# and others. Their commentaries, applicable in judicial judgments, comprised some 26,272 articles and more than 7,732,200 words.**4 Laws, under their explanation and interpretation,

must undergo significant changes. They supplied the means for manipulating the law. Wang Ch’ung®*® once remarked that the Legalists of his time were also Confucianists.*8¢ Confucianism exerted an even more direct influence on the adminis-

tration of justice. As officials, the Confucianists assumed judicial re-

sponsibility and contributed to the discussions of legal problems. Legislative and judicial duties were not separated from executive ones in this early time. All local chief executives were judges, and theoretically speaking, all officials, no matter what their functions, were permitted

to discuss legislative and judicial problems and make suggestions. Frequently, judicial judgments based on Confucian theory went beyond

the article of the code, for the ancient Chinese system allowed for con-

siderable freedom in interpreting and applying the law. Besides, Confucianism was still held in the highest esteem, and its ethical principles were accorded more respect than legal authority.

20 Shih chi, 53, 5b; Han shu, 39, 5b. Hsiao Ho #ff faf (d. 193 B.C.) was the compiler of the Han code, the Chiu-chang li fy #.fft. See Han shu, 8, 11a, Wen Ving’s 3¢ $f note; 23, 12a; Féng-shu t’ung-i, quoted in Pei-t'ang shu-ch'ao jl. at gp, edited by Vii Shih-nan fff {il}, 45, 9a; also quoted in I-wén lei-chi, 5a; Fu-tet ff f-, quoted in T’ai-p’ing yi-lan, 638, 7a; Chin shu, 30, 5b; T'ang liu tien, 6, 3a-b; T'ang lit su-i, 1, 8b. Cf. note 277. For Hsiao Ho's biography, see Shih chi, ch. 53; Han shu, 30, 1a-6b; Giles, op. cit., No. 702. 281 Shih chi, 59, 6a; Han shu, 40, 25a; 48, 25b. For the life of Chou P’o Jk} 4h (d. 169 B.C.), see Shih chi, 59, 1a-7a; Han shu, 40, 21a-26a; Giles, op. cit., No. 422. %2Ma Jung (A.D. 79-166). See Hou-Han shu, 60A, 1a-19b; Giles, op. cit., No. 1475

288 Chéng Hsiian (A.D. 127-200). See Hou-Han shu, 35, 15b-22a; Giles, op. cit, No. 274. 24 Chin shu, 30, 5b. 285 Wang Ch’ung (b. 27 A.D.). See Hou-Han shu, 49, 1a-2a; Giles, op. cit., 6 Lun héng, 12, 15a. No. 2166. 18°

276

THE CONFUCIAN SCHOOL AND THE LEGAL SCHOOL

I K’uan,%? in judging law cases, always applied the ancient classical doctrines.** Tung Chung-shu, another famous Confucianist, invoked

the principles set down in the Ch’un-ch’iu, the Confucian classic. His work, the Ch'un-ch'iu chiieh yti 4€ ® Ue TK (Judging Cases by Ch'un-

chiu), included 232 cases. After his retirement, the Minister of Justice,

Chang T’ang,*** was often sent by the government to consult with him.

In Later Han times, the Confucianist Ying Shao* also wrote a book, the

Ch’un-ch’iu tuan yit $§ BK Wot

which advocated

judging cases by

the Ch’wn-ch’iu.2®? Besides these two, there were many others who used

the same principles in making judgment.?** After Han times, the formulation and revision of the law fell into the hands of Confucian scholar-officials?* who seized the opportunity to incorporate as many as possible of the essentials of Confucianism (li) into the codes. J. Escarra has rightly observed, “Despite the

297 T I’uan $a Pf (d. 112 B.C.). See Han shu, 58, 110-142; Giles, op. cit., No. 906. 28 Han shu, 58, 11b-12a. *9 Chang T’ang af YR (d. 115 B.C.). See Shih chi, 122, 5b-11b; Ham shu, 59, 1a-6b. 2 Han shu, 30, 7b; 56, 22b~23a; Hou-Han shu, 48, 18b; Han li chih i, 22, 3b-5b; Chiu ch'ao lit k’ao, 7: 1-4. For a discussion on the application of classical doctrines to judicial decisions and interpretation, see Escarra, Le Droit chinois,

273-279.

21 Ying Shao (Second century A.D.). See Hou-Han shu, 48, 14a~20b; Giles, op. cit., No. 2498. 2 Hou-Han shu, 48, 18b-19a. 288 Chine ch’ao lit kao, 7: 4-22. ™ For details, see Ch’én Vin-k’o (Tschen Vin-koh) [iff 43g 4%, Sui T’ang chih-tu

yitan-yitan lieh lun hao Wis JAF if) IE Tal WW ie Hj» 73, 75-81; Ch’ T'ung-tsu,

“ Chung-kuo fa-lit chih ju-chia-hua” va Bl ps: flt (aE Fe {L, 0-14. Professor Ch’én remarks that the imperial family of Chin (265-420) was itself a great Confucianscholar family in the latter part of Later Han, and that therefore the law formulated by the dynasty was highly Confucianized and was copied by the Southern Dynasties and Northern Wei and Northern Ch’i, from which it was again copied by Sui and T’ang, becoming the orthodox Chinese law (Ch’én, op. cit., 73). 29 Since the codes which were formulated before the T'ang dynasty were lost long ago we cannot say in detail how Confucian elements were introduced into the codes of the various dynasties. But it is possible to reconstruct a brief outline. To modify the Han law, the Wei dynasty (220-265) introduced the following articles into their code, The historiographer tells us that they followed the ancient principle which permitted the children of an injured person to avenge a parent by killing his murderer who had been convicted but who had escaped (Chin shu, 30, 7a). By the so-called “‘ancient principle” he clearly refers to the doctrine of revenge mentioned in the Chou li and the Li chi (Chou li chu-su, 35, 13b; Li chi chu-su, 3, 6a-b; 7, r0a; Biot, op. cit., 352; Legge, Tests of Confucianism, III, 92, 140; Couvreur, Li Ki, I, 56, 147-148), a doctrine which was not adopted in the Han law. (The Han law did not allow revenge—Ante, pp. 80-81). The Chin shu also mentions the abrogation of the law which regulated that the

THE CONFUCTANIZATION OF LAW efforts of the Legalists,

however, the Confucian

2977 conception

came

to

dominate all ancient Chinese legislation.’ The connection between

father and sons were to live separately in order to prevent their having separate properties (ff 42 J FY, (i42 FANE 4 IU ln) (30, 7a). Evidently this was to abolish the Han regulation taken over from the Ch’in code which was in contradiction to the principle embodied in the Li chi (Li chi chu-su, 1, 13b; Legge, III, 67; Couvreur, I, 14). The decree demanding that a father and son live separately was first announced by Shang Vang of Ch’in (Shih chi, 68, 3b-4a). This law of Wei was followed by all later dynasties; no law then permitted sons to live separately from their father and to have separate properties (Ante, pp. 20-30). Punishment for beating an elder brother or sister was more severe than in Han law (Chin shu, 30, 7a). Furthermore, the most important change in Wei law was the introduction for the first time in the history of Chinese legislation of the pa-i, the eight conditions embodied in the Chou li under which a man of special privilege was given special consideration as regards punishment (Chow li chu-su, 35, 2b-3a; Biot, op. cit., IT, 320-321). This regulation was incorporated in all codes of later dynasties (see T'ang liu tien, 6, 7b-8a). One of the most important changes in the Chin (265-420) code was the introduction for the first time of the principle of setting up the degree of punishment according to the five degrees of the mourning system (Chin shu, 30, 8b), and this was also incorporated in all later Chinese codes. The law also permitted a parent to accuse and ask the government to kill an unfilial son (Sung shu, 64, 16a. The death penalty had been exacted for impiety since Han time—Ante, p. 42—but this seems to be the first time that a child could be executed at his parents’ request. This law was quoted from the Sung shu, but since Sung had no code of its own and followed the Chin code entirely, this may be considered a law of the latter). Chin law also increased the punishment for adultery with a paternal aunt (Chin shu, 30, 8b). In the main, Sung (420-479) followed the Chin code, but new elements were introduced by the Confucianists. For instance, Ts'ai K’uo g& JBff once suggested that children of the prisoner should not be used as witnesses during the trial. His suggestion was accepted by the government (Sung shu, 57, 2b). In the Northern Wei dynasty (386-535), under the systematic work of outstanding Confucianists (see Sui T’ang chih-tu yitan-yitan, 76-81; Ch’i, “Chung-kuo fa-lu chih ju-chia hua,” 9-12), the regulations for the non-execution ofa criminal in order to allow him to serve his aged and helpless parents and for the cancellation of punishment by giving up one’s title or rank were introduced (Wei shu, 111, 11a, 12b-13a). Northern Ch’i (550-577) first introduced the article of the unpardonable “‘ten offences” (shih 0), among which were included murder of parents and other senior family members, unfilial behavior, and incest (Sui shu, 25, 13a). This was later adopted by Sui with only one slight change and was then copied by all later codes (Sui shu, 25, 17b; T’ang ii su-i, 1, 14a fi.). ‘The code of Northern Chou (557-581), which was fundamentally based upon the text of Chou li, was most Confucianized. However, it was considered too dogmatic and impractical, and for this reason was not followed by the later dynasties (Sui T’ang chih-tu yuan-yian, 65-67). 28 Jean Escarra, “Law, Chinese,” Encyclopedia of Social Sciences (New York, 1933), IX, 251. Cf. idem, Le Droit chinois, 13-19, 70, 435-

THE CONFUCIAN SCHOOL AND THE LEGAL SCHOOL

278

the li and the law is apparent in the codes of the various dynasties. To study the ancient Chinese law we must compare the codes with the books of Ji; only in this way can we trace its origin and real meaning. The distinction between the superior and the inferior was strongly emphasized by the Confucianists. It was basic in the development of the li. Therefore the regulations governing special considerations as regards punishments as well as requests for the emperor’s approval were incorporated into the law. The noble and the mean were subject to different punishments, and the officials were permitted to use their rank to cancel their punishments. Also, according to /i, clothing, ornaments,

houses,

horses and

carriages,

marriage

rites, funeral rites,

and sacrifices varied with political and social status. Thus all manner

of sumptuary laws found their way into the codes.

The Confucianists also emphasized familism and gave importance to distinctions between seniority and juniority among family members, and between nearness and remoteness. All these features were, therefore, given consideration in law, and the degree of punishment adjusted to them. The mourning system, which made explicit these varying degrees of relationship, became an important factor in litigation.

Filial piety implicit in the familistic ideal was also strongly stressed

by the Confucianists. The Hsiao ching reads, ‘‘There are three thousand

offences against which the five punishments are directed, and there is

not one of them greater than being unfilial.”**? Therefore the punish-

ment for being unfilial was necessarily severe. Not only were special

articles on this point formulated in the codes, but the crime of “not being filial” was even included in the Ten Offences listed in the introductory chapter of the codes from the time of Northern Ch’i to that of Ch’ing. According to Ji, children should serve their parents dutifully. Therefore “‘not supporting the parents” was defined in the law. According to Ui, children should not have private property. Therefore “having private property” was punishable. According to /i, three years’ mourning was required of a son on the death of his parents. Therefore, to marry, to be an official, or to be entertained with music during the period of mourning was punishable. Confucius said that the father should conceal the crimes of his sons, and the sons, the crimes of

their father. Therefore such concealment

was permissible,

and the

law did not ask that a man’s children bear witness against him. Nor

were children permitted to bring accusations against their parents. According to /i, a man could not live under the same sky as his father’s enemy. Therefore, although the law failed to mention the subject,

*7 Hsiao ching chu-su, 6, 2a; Legge, Teats of Confucianism, I, 481.

THE CONFUCIANIZATION OF LAW

279

cases of blood revenge were often pardoned. And also according to li, there were seven conditions for divorcing a wife and three conditions under which a wife could not be divorced, and these conditions

became the legal basis of divorce. The li, then, formed the basis for all

laws dealing with the family, marriage, and inheritance. The Ssi-k’u ch'tian-shu tsung-mu t'i-yao notes that the T’ang code was based entirely on the Ji. This is obviously correct, but we must remember that this observation is equally applicable to many other ancient Chinese codes. Originally, these rules of behavior were regulated in detail in the books of i. Later, when the law was formulated, the behavior prescribed

by di was incorporated into the codes.

What was approved by li was

thus also approved by law and considered as legal; and what was not tolerated and was tabooed by Ji was also prohibited and punished by

law. Thus Ch’én Ch’ung,?® the Minister of Justice in the first century, said, “What is left by Ji is covered by punishment. To go beyond Ii means to enter punishment. The two are but the outside and the in-

side of the same thing.” The ancient people frequently mentioned /i and law together, and

such their We later

terms as li fa #@ %: or Ji Lit #8 #1" (li and law) were common in writings. The relation between /7 and law was obviously close. may say that originally /i were enforced by social sanction, and by legal sanction. A rule of behavior enforced by social sanction

is i; the same rule of behavior is law when legal sanction is introduced.

It is obvious that the same normative behavior may be subsumed under li and law at the same time. Thus the later Confucianists used political and legal power to enforce their rules of behavior, but these norms were still included in their books of /i, and they still sought to enforce them by morality and education. Li and law, while separate entities, were supplementary to each other.

As the norms were simul-

taneously sustained by both social and legal sanctions, they imposed a strong compulsion on the members of the society.

28 2 3% 31

Ssii-h’u ch'itan-shu tsung-mu t’i-yao 9 Mi A Br #8 FUE BE, 1735Ch’én ch’ung fifi J (d. A.D. 106). See Hou-Han shu, 46, 72-142. Hou-Han shu, 46, 134. Chin ch’ao lit R'a0, to: 11-12.

CONCLUSION The study we have presented supports the hypothesis that the family and the class system were fundamental features in Chinese traditional Jaw. This law fully recognized the parents’ authority in controlling and chastising their children. The latter had no independent right to own private property, to live separately from their parents, or to choose their own spouses. The law also recognized the supremacy of seniors and husbands over junior relatives and wives. Disputes between and persecution of family members were always judged according to an individual’s status in the kin group. The law of concealment and other laws discussed in Chapter I similarly indicate the dominance of family ethics in Chinese law. The

law also recognized

the differing

statuses of nobles,

officials,

commoners, and the ‘mean’ people. There existed the sumptuary laws, which regulated a person’s style of life in accordance with his social and legal status. Above all, people of different status were not treated alike before the law. Nobles and officials enjoyed certain legal privileges, whereas the “‘mean’’ people were legally unprivileged. The emphasis on status led to the development of a part of the law which was specific as to status, whether family or social. It was this part of the law that was given first consideration. The general law (law not particularized as to status) was invoked only when a specific law could not be applied. A primary importance was given to particularism. Such a body of law corresponded with the doctrine of the Confucianists, who considered that family and social status were the essential themes of /i and the backbone of the social order. We conclude that Confucianism, especially the doctrine of Ji, dominated both law and society in traditional China. This does not mean, however, that Confucianism pervaded the body

of Chinese law from the very beginning. The elements of /i were absent in the ancient law made by the Legalists, and were incorporated into the codes by the Confucianists only at a later date. The Confucianization of law was a gradual process, one which began in Han times and continued through the Southern and Northern Dynasties. The Sui and T’ang law represented the fullest development of this process. The traditional Chinese law of the various dynasties, as treated under the main topics in the present study, also supports our hypothesis that,

after that law had been crystallized by the Confucianists, there were no

CONCLUSION

281

fundamental changes in it throughout the history of China, as far as family law and class differences are concerned.

In other words, the law

retained its general characteristics for centuries, until the promulgation

of modern law. This stability resulted from the fact that the social structure, in particular the family and class system, was static. The Jaw maintained the existing order, and thus it reflected a static society.

BIBLIOGRAPHY Chinese and Japanese Sources* 1. General Works

Chang Cho aff fig, Chao yeh ch'ien tsai 83 BF Se We (in Ts'ung-shu chi-ch'éng Xe Be FEA AG, Ch’éng-yang tsa-li 478 5 HEB (in Vang-shih chiien-ch'ies pai-érh-shih-chiu ho chai ts'ung-shu (M @8 7-6 A — AD th BE e B)Chang T'ing-yii i $E 3 ef al., Ming shih (§ sh (Pai-na Fy #4 ed.). Chao Erh-hsiin jf fi $E et al., Ch’ing shih kao $53 #5 (1927)(in Chao Ou-pei ch’ ian-chi HiBH Chao I BY 3, Kai-yid ts’ung-k’a0 py We HE At 2 $6, 1799). —, Nien-érh shih cha-chi > — sf 35 Gi, (Chao Ou-pei ch’iian-chi).

Chao-lien [3 fil, Hsiao-t’ing hsii-le Wk He $4 Gf (1880).

in tei chiu f {fj, Yin-lu man-ch’ao 2 9G WB (in Shé Chao Ven-wei fit UE BH AE BF. reprinted by Han-fén lou ji ZF BE, 1924). Ch’é Kai 8 4%, Nei-wai fu-chih t'ung-shih Py A AR if Sua FR (in Che ‘pi ts'ung-shu Wk 28 he )ch’én Ch’i-t'ien [if BE IK, Shang-chitn-shu chiao-shih Wj # AE BE RE (Shanghai, 1935). Ch’én Hung-mou fifi BH, Ts’ung-chéng i-huei 6 Bi 30 $8 (1790). Chung-kuo hun-yin shih vfs BBY 45 48] $2. (Shanghai, Chén Ku-yiian i BA

1935).

Ch’én Shou fifi 2, San kuo chih = [pg (Pai-na ed.). Ch’én Vin-k'o [pli $Y, Sui T'ang chih-tu yuan-yiian leh lun kao [iJE iB IS Val Wis i Fj

(Chungking, 1944).

Chéng Ch’iao $i HE, T'ung chih 3h Gs (Wan-yu wén-h'u BS Az3 Mili ed.). Cheng Chii-chung if fi Fp et al., Chéng-ho wu-li hsin-i Be Fil Fa pO Ri (HE (in Soit-h'te ch’sian-shu chén-pén PY fii A BW YS AL, Shanghai, 1935). Chéng Tuan $f tj, Chéng hsizeh Iu i BE Bie (in Chi-fu ts'ung-shu $8 iff HERE). Chéng Wén-jung {ff 3¢ fh and Chéng Hsiian Wf 4-4, Chéng-shih huei-fan $M Ke FH (in Hsiich-hai lei-pien BL Hg Ha). Chéng Yung $f jk, I-mén Chéng-shih chia-i 3% PY RG KE Fe (4 (in Hit Chin-hua ts'ung-shu $4 > ite 3 ae). h’éng Yao-t'ien #3 3%; [I], Psung-fa hsiao-chi #2 J: /}y #2 (in Huang-Ch’ing chingchich ©3335 8 fiz). Chiang 1 3% ft, Chiang-shih chia-hsiin #8 JK # jl (in Chieh-yieh shan-fang huei-ch'ao 45 J 1M Bi Ait Bh)-

Been

at

Jai).

3p, Nan-pu

» Chitan is abbreviated as

hsin-shu 7p

Pf MH

“‘ch."’ throughout,

(in Hsieh-chin

t'ao-yian

aye

BIBLIOGRAPHY

Ch'ien Mu Q& #§f, Lin Hsiang Hsin fu-tzi nien-p'u Bi fi Hk 1947).

—, Hsien-Ch'in chu-toti hsi-nien 33 Ch’ien Ta-hsin 8& fc Jj, Shih-chia-chai yen-t'ang ch'iian-chi YE Wf He Ae 4fe, (Ta) Ching li-ch'ao shih-Iu Ke 35 IRE WB 1937)-

283

-J- 46 BY (Shanghai,

2K F- BE 4 (Shanghai, 1935). yang-hsin lu -}- $8 Wit FE WiB (in Ch’'ien1884). BE BK (Ch'ing shih-lu FEE BR), (Tokyo,

(Ta) Ching tung li BB FB (1824). Chou Ch’ii-fei Ji] 3: JE, Ling-wai tai-ta 3h Hp 4 Me (in Chih-pu-tsu-chai ts'ungshu 5 As Ie HE 3B). Chow i chu-su J8} $4 HH (Commentaries and sub-commentaries by Wang Pi = fy, Han K’ang-po of Me ffi, and K’ung Ving-ta 4, $f H), (in Ssti-pu pei-

yao PY i{iti 32).

Chow li chu-su J] #8 UE Bi (Commentaries and sub-commentaries by Chéng Hsiian $f ye and Chia Kung-yen pf ZS #5), (in Ssti-pu pei yao). Chou Mi ij #, Ch'i-tung yeh-yia 9g HR WF BH (in Hsiteh-chin t’a0-yiian). Chu Hsi 3 3, Chu Wén-kung chéng-hsiin Je 3C BS Bk MM (in Ts'ung-shu chich’éng). Chu Kuo-chén Jf fi ffi, Yung-ch'uang hsiao-p'in 3 hii As Gh (Tu-ku t'ang it HF ed.) Chu Shih-ch'é Jf fifi Gf, Shang-chiin shu chich-ku ij#$ BE MRF (Canton, 1948). Chu Yi 36 Bg, P'ing-chow h'o tan ¥% YH WY B (in Shou-shan-ho ts’ung-shu

“oF 1s Fl ite iP)

Chu Yiin-ming ig 70, Wi, Yeh chi WF 82 (in Li-tai hsiao-shih JRE 4% sb $B)Ch'u. Huang Sung-hu Ch'én-shik hsit-pien pén-tsung p'u gs $e HS WA BRS BA Ba AB az at (1918). Ch’ii Hsiian-ying $f Gf $l, Chung-kuo shé-hui shih-liao ts'ung-ch'ao ¥p BB jit 4 SKF HEB, 3 vols., (Shanghai, 1937). Ch’ii Tung-tsu 9 fi] ji],Chung-hwo féng-chien shé-hueixf py $5 Mt ik @ (Shanghai, 1937). Ch'un-ch’iu fan le Ag Bk $F BR (in Ssit-pu ts'ung-k'an PY Hf H Fi)-

Chi'un-ch’ia Ku-tiang chu-su 3g ®k He WH: Bk (Commentaries and sub-commen-

taries by Fan Ning ¥fj Sf and Yang Shih-hsiin #§ + fij), (in Ssti-pu pei-yao). Ch'un-ch’'iu Kung-yang chu-su 36 $k Bs 2: 7: Hk (Commentaries and sub-commentaries by Ho Hsiu fof ft and Hsii Yen ff #5), (in Ssi-pu pei-yao). Ch'un-ch'iu Tso chuan chue-su ¢ Bk Fe (4 7 Hit (Commentaries and sub-commentaries by Tu Yii ff #j and K’ung Ying-ta), (in Ssii-pu pei-yao). Chuang Ch’o ff $4, Chi lei pien $f th #3 (in Ts’ung-shu chi-ch’éng).

¥ Bit (Commentaries and sub-commentaries by Kuo P’u Erh-ya chu-su He

BPH" and Hsing Ping Hf Pq), (in Ssw-pu pei-yao).

Fan Chréng-ta 9 mk, Kuei-hai yi-héng chih HE ihe PR AE (in Ku-chin i-shih fj 4 sh). Fan Yeh 7 if, Hou Han shu 4% yi (Pai-na ed.). Fang Hsiian-ling i 3 ji, Chin shu 24 x (Pai-na ed.). Fang Ta-chih Fj > YB, P’ing p’ing yen A ASH (1887). Feng Vu-lan wG gj, Chung-huo ché-hsiteh shih vf BB] Pf Hk st (Shanghai, 1934).

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Han Fei tei #8 3 F- (in Ssvi-pu ts'ung-h'an). Ho Shih-chi fa If, “‘Pu-ch’ii k’a0”” $f lly 3%, Kuo-hsizeh lun-ts' ung Ba BPE ite HEE, I, 1 (1927), 123-62. Ho ‘ T’ao @z bbhq, 2)Ho Wei-yai chia-hsion BE WH fit H WM (in Han-fén-low pi-chi et al., Ch'ing-ch’a0 wén-hsien t'ung-h’ao $f ORC RH foes (Huang-ch'ao wén-hsien Vung-k'ao $2. $3 XX BRIE), (Wan-yu wén-k'u ed.). Hsii t’ung tien $34 3ih, th. (Wan-yu wén-h'u ed.).

(Wan-yu wén-k'u ed.). —, Hsit wén-hsien t'ung-h’a0 $3XC BRS Hsi-ying 47 &§, Hsiang-shan yeh le jy ly BFS (in Ku-shu ts'ung-h'an EB SEF, chia chi Hp 44s).

Hsiao ching chu-su 3¢ 88 Y- fff (Commentaries and sub-commentaries by Emperor Hsiian-tsung of T’ang fig ¥ #4 and Hsing Ping), (in Ssti-pu pei-yao). Hsiao Kung-ch’iian jff ZV HIE, Chung-kuo chéng-chih ssii-hsiang shih +p BR ik 34 3 48 gh

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—, Tung-Han hui-yao H&K @ BE (in Wu-ying-tien chie-chén pan ch'itan-shu). Hsii Tung ¢% ffi and Ting Jih-ch’ang J fF] By, ed. Mu ling shu chi-yao Ry Ay 3 Gif BE (1860). Hsin-teit 4j =F- (in Ssii-pu ts'ung-k'an). Hsin Yiieh 49 3, Shén chien thi HB (in Ssii-pu ts’ung-h’an). Huai-nan hung-lich chieh Ye V9 3 Fy fi (in Ssii-pu ts’ung-R’an). Huan K’uan fa 9, Yen t'ich lun Bi GE Hy (in Ssii-pu ts’ung-k’an). Huang Liu-hung 3 7X py, Fu-hui ch’aan-shu jij YE Zs BF (1803). Huang Yiin-mei_ $i 3 Jij, Ku-chin wei-shu k'ao pu-chéng #3 2 (5 BH % Hi (Institute of Chinese Studies, Nanking University, Nanking, 1932). Hung Hao jt (i, Sung-mo chi-wén pe We #E | (in Hsiteh chin t’a0-ywzan). Hung Mai Pk 38, Jung-chai hsit pi 2 HE M4 fe (in Ssii-pu ts’ung-h’an, Second Collection).

11 chu-su {96 #@) 24:6 (Commentaries and sub-commentaries by Chéng Hstian and Chia Kung-yen), (in Ssti-pu pei-yao). K’o Shao-min jaf Bh AG, Hsin Yuan shih 397 FE sp (Shanghai, 1935).

Ku Ven-wu jg 8g, Jih chik le chi-shih [4

—,

Ju-ch’éng 3% Ye pK), (1877).

Tien-hsia chiin-kuo li-ping shu FR Third Collection). DE

Kuan-teis 9 5f- (in Ssti-pu ts'ung-h'an).

8 $e RB (Chi-shih by Huang

ih in Ssti-pu ts'ung-k' ha stelle

BIBLIOGRAPHY

285

Kung Tuan-li §8 $i i), Wu-fu t'u-chich 7 BR [Bl fiR (in Hsizan-yin wan-wei pieh-

tsang ssti-shih-chung 33 Ell ge Ze 3!) GK VO 1- Mi, Ku-kung po-wu-yiian fi vy

ti 7 Be, Peiping, 1935). K'ung Ts'ung-tatt FL, 3% ¥- (in Ssii-pu ts'ung-h’an). K'ung-tzt chia-yit Fl, f- HR He (in Ssvi-pu ts'ung-h’an). Kuo yi [Bj HE (in Ssii-pu ts'ung-k'an). Li chi chu-su gf $2 2E bf (Commentaries and sub-commentaries by Chéng Hsiian and K’ung Ying-ta), (in Ssii~pu pei-yao). Li Fang 2 yj et al., T'ai-p'ing yu-lan fc AB BE (in Ssvi-pu ts'ung-h'an, Third Collection). Li Hsin-ch'uan 2 ,{ {ij Chien-yen i-lai ch'ao-yeh tsa-chi pie 3 VA 26 Gi BF ME BR, (in Wu-ying-tien chit-chén-pan ch’itan-shu). Li Kung 2¢ JJ, Hsiieh 1i Bh gi) (in Chi-fu ts’ung-shu). Li Shih-chén 2p} #%, Pén-ts'ao Rang-mu Ay # $9 |] (Wei-ku-chai pp J; HF ed., 1885). Li T’ao 4 jf, Hsu tzii-chih Vung-chien ch'ang-pien $4 FE 143 3 9E $E HG (Chekiang shu-chii #f {L 3 Jaj ed., 1881). and Li Pai-yiieh 4s fy ME, Pei Ch'i shu Jt Hf BE (Pai-na ed.). Li Té-lin 4 $f Li Ven-shou 4: RE 38, Nan shih jf gs (Pai-na ed.). —, Pei shih Jt sf (Pai-na ed.). Liang Ch’i-ch'ao 9: Bk 38, Hsin-Ch'in chéng-chih ssii-hsiang shih 3 Fe By 3 Wh 481 sh (Shanghai, 1936). Liang Ssu-ch’éng 92 ig, Ch’ing-shih ying-tsao tsé-li ye SUE 325 fu) Bil (Peiping, 1934).

(Pai-na ed.). Ling-hu Té-fén 4p 4h fi 3 et al., Chow shu JE) Liu Chin-tsao $i $f {, Ch’ing-ch’ao hsit wén-hsien t’ung-k' ao Hs WY BG SC RS AS (Huang-ch'ao hsit wén-hsien t'ung-k'ao © 8 $4 3C BRIG), (Wan-yu wén-k'u ed.). Liu Hsi $i) BR, Shih ming $84 (in Ssii-pu ts'ung-k'an). Lin Hsiang $1 fay, Shuo yan Bt Bj (in Ssti-pu ts'ung-R'an). Liu Hsii ij fit) et al., Chiu T'ang shu $5 fife (Pai-na ed.). Lo Ta-ching $2 cK, Ho-lin yic-lu #t fk >E HE (in Ts'ung-shu chi-ch’éng). Lou Viich pif 9, Kung h'uei chi Dy Ha de (in Ssti-pu ts'ung -k’'an). Lu Chia B& YY, Hsin yar $f HF (in Ssw-pu ts'ung-h’an). Lu Hsin-yiian PB sty ff, Sung shih chi-shih pu-i Je BE ADB AD HL (1803). Lu Té-ming [i (i W)], Ching tien shih-wen $x th #F IC (in Ssit-pu ts'ung-h'an). Lu Yu [i yj, Fang-wéng chiahsiin fi 25 He iM (in Chih-pu-tsu-chai ts'ung-shu). —, Wei-nan wén-chi W} Tei 3 Me (in Ssit-pu ts'ung-k'an). Li K’un #3 bh, Féng-hsien yiteh Jp 98 #9 (1803). —, Shih chéng lu "PE Be Hm (Kiangsu shu-chii {Tf HE Jy €4., 1872). Lit-shik ch’un-ch’iu 32, KE fg BK (in Ssii-pu ts'ung-h’an). Lun yit chu-su i #7 He (Commentaries and sub-commentaries by Ho Yen {iJ @ and Hsing Ping), (in Ssi-pu pei-yao). Ma Tuan-lin B§ $i ffi, Wén-hsien t'ung-k'ao 3¢ IBR3G % (Wan-yu wén-k'u ed.). Makino Tatsumi #y BF $E, Kinsei Chitgoku sdcohu henkyit jie {ik PB 43 We BE HE (Tokyo, 1949).

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Mao Chi'i-ling =, 2p fA. Chili t’ung-su p'e #2 98158 YE WB (in Mao Hsi-ho hsienshéng ch’isan-chi 3, 9G iol SE AE Z> $)-

ch’ tan-chi). éng —, Ta hsiao tsung t'ung-shih fc \s 2 3 FF (in Mao Hsi-hohsien-sh Mao

shih

chu-su 3G #¥ 7: He

(Commentaries

and

sub-commentaries

Héng >, ¥¢, Chéng Hsiian, and K’ung Ving-ta), (in Ssti-pu pei-yao)

by Mao

Meng Ssii-ming 4% KE A, Yiian-tai shé-hui chich-chi chih-tu eA jit: 1 PE Bk Hi J (Yenching Journal of Chinese Studies, Monograph Series No. 16 7 #4J $f, Harvard Venching Institute, Peiping, 1938).

Méng-tzit chu-su

€ -¥- HE HE (Commentaries

and

sub-commentaries

Ji3

by Chao

Ch'i ff he and an anonymous Sung scholar), (in Ssii-pu pei-yao). Ou-yang Hsiu Bik pi (ef ef al., Hsin T'ang shu $f HAE BE (Paina ed.). —, Hsin Wu-tai shih 3% 7 AX 2 (Pai-na ed.). Ou-yang Hsin Bik Pi Hi ef al., F-wén lei-chit $§ 3 HEM (Hung-ta t'ang Ye 3 ed., 1879). Pai (Po) Chii-i fy # $Y, Pai-shih Ch’ang-ch'ing chi (4 KE EE BE HE (in Ssi-pu ts'ung-h'an). Pai-hu t’ung té lun £4 fe 36 $B Be (Pai-hu tung £3 eH), (in Ssu-pu ts'ung-h'an). Pan Ku 9f [a], Han shw ft @ (Pai-na ed.). Pan Ku, Liu Chen $f) x et al, Tung-kuan Han chi $e Qi EE (in Wu-ying-tien chit-chén-pan ch'tian-shu).

Pi Chung-hsiin Se fp jj, Mu-fu yen-hsien le $e iF HE DH BR (in Shuo fu 3 FR,

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Shen Té-fu pe HAF, Pi-chowhsian shéng-ya WE BER) HG (in Hsieh-hai lei-pien).

Yeh huo pien BF $e 43 (1827).

Shén-tzi Afff- (in Ssii-pu pei-yao). Shén yiieh py #4, Sung shu 4238 (Pai-na ed.).

Shih Su ii $f et al., Chia-t'ai 1926).

K’uai-chi chih $e. # @ #¥ A (Reprint of 1808 ed.,

Shimizu Morimitsu $9} 7K HR IG, Chitgoku zokusan seido ko vf BB] ie FE thi) KE FE (Tokyo, 1949).

—; Shina kazoku no hoz 3

Wp RE HK D Hf stk (Tokyo, 1942).

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Sun Hsing-yen $f J2 fj, Shang-shu chin-hu wén su §§j Wp 4 fy 3C i (in P'ingchin-huan ts'ung-shu 2B Yt (i 3% BE). Sung hui-yao kao 92 yf Yi Hj (National Peiping Library, 1036). Sung Lien 4¢ yj et al., Yuan shih 3¢ sf (Pai-na ed.). Sung Pai § f ef al., Wén-yitan ying-hua 3 Hii HEHE (1567). Ta-Tai ti chi > 9& #8 FE (in Ssit-pu ts'ung-h’an). Tai Chén 9 $B, Méng-tzu tev-i su-chéng fe ¥3 HERE (in Anhui ts'ung-shu BH FH,

series 6, 1036).

T’ao Ch’ien fig 7, T’ao Yiian-ming chi phy YA Wh Af (in Sst-pu ts'wng-h'an). T’ao Tsung-i Pi $34 ff, Cho-Aéng le BEBESE (in Chin-ti pi-shu Hest Was). T’o-t’o fift Jf and Ou-yang Hsiian jk [i x, Chin shih & sh (Pai-na ed.). —, Liao shih 3% ss (Pai-na ed.). Sung shih 3% sf (Pai-na ed.). Ts'ao Vin Wy $i ef al., ed., Ch'iian T'ang shih Ze fie 3 (1707). Ts'ui Pao # Fy, Ku chin chu $j 4}: (in Ssit-pu ts'ung-K'an). Tu Yu ff ffi, T'ung Tien 3h a (Wan-yu wén-k'u ed.). Tuan Vii-ts’ai BY 3 #&, Shuo wén chich teu chu i 3 PR} YE (in Kuo-hsizeh chipén ts'ung-shu [il Bt Te AS HEE).

Wang Ch’éng = (jf, Tung-tu shih-lich fe $f HE Ws (in Sung Liao Chin Yuan ssii-shih 9g 3X¢ 4> FE POs, Sao-yeh shan-fang $F HE {ly FR). Hf, Hii wén-hsien t'ung k’ao $33X BR BH (1603). Wang Ch'i (Wu-hsin t’ang Wang Ch'in-jo =F $k 9% et al., Ts'é ju yuan huei Mt Af FC i Mh HE ed., 1672). Wang Chung 7¥ tf, Shu hsieh Sit At (in Ssit-pu ts'ung-k'an). Wang Ch’ung =F 9€, Lun héng iq fj (in Ssii-pu ts'ung-k'an). Wang Fu =F $f, Ch'ien-fu lun YB Je Hy (in Ssit-pu ts'ung-k'an). Wang Hsien-ch'ien 7 $f Hf, Chuang-tzti chi-chich $f -f- Se ff (1909). —, Hsiin-tat chi-chich 4 f- fe ff (1891).

Wang Hsien-shén =F 3 fff, Han Fei tot chi-chich i Je f- Se JMR (in Kuo-hsiteh chi-pén ts'ung-shu). Wang Hui-tsu 7 Hl if], Wsieh-chik i-shuo Sp 345 ji a (in Wai g Lung-chuang

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‘Yang Chung-i ff fs —, “Pu-ch’ii yen-ko k'ao 3 lh Yi HE,” Shih huo $e $H I. I, 3 (1935), 21-31. Yang Viin-ju $2 98 Mu, Chiu-p'in chung-chéng yit lie-ch'ao mén-fa Ju fits HE. *

(Shanghai, 1930).

‘Yao Ssti-lien gk M8 fie, Liang shu 3 gp (Pai-naed.). eae Yao Chi-héng fk i fW, Ku-chin wei-shu k'ao fj 4 (§ BZ (in Chih-pu-tsu-chai ts’ung-shu). Vao Ssii-lien jf HE ff, Ch'én shu [fi p (Pai-na ed.). Yen Chih-t’ui ffi HE, Ven-shike chia-hsien fF K He Hill (in Ssti-pu ts'ung-h'an). Yen K’o-chiin J iy #3, ed. Ch’tian Han wen 4 Bt 3 (in Ch'ttan shang-hu San-tai Ch'in Han San-kuo Liu-ch'ao win Be | fi = {CHEW = BA HX, 1804)—, Ch’tan Hou-Han wén Ae $e WBC (in Chan shang-ku San-tai Ch'in Han Sanhuo Liu-ch’ao wén). Ven-tzit ch’un-ch'iu HB F- 4g Bk (in Ssit-pu ts'ung-F’an). Yen Yu-hsi fi 4y ji, Shu-hua sui-pi HK HE RE Ae (in Chieh-yiteh shan-fang hiich’ao) Vin wén teit FtIL F- (im Ssii-pu ts'ung-k'an). Ying Shao jf Wy, Féng-su t’ung-i JB Yep Hh 3E (in Ssii-pu ts'ung-k'an). ‘Vii Chi-téng $e Bi Xf, Tien-hu chi-wén MM Hc $2 Bl (in Chi-fu ts'ung-shu). Vii Shih-nan ft #ik 7, Pei-t'ang shu-ch'ao jt, WH B (1888). Viian Mei $¢ Hy, Hsiao-ts'ang shan-fang wén-chi sv $F (ly FF 3C ME (in Sui-yaan shan-shih-liu chung Rj BR = ++ fs FH, Shanghai, 1892). Yiian Ts’ai #48, Yuan-shih shih-fan $e KE {i @i (in Chih-pu-tsu-chai ts'ung-shu), Viich Shih #é hr, T’ai-p'ing huan-yii chi fe AB '$E F Fe, (Preface dated 1803). Yun-yang Chang-shih liu-hsiu tsung-p'u 2 BBS WE EX 6 8 A (1887). Il. Works on Law A. Codes and Commentaries

Emperor Hsiian-tsung of Tang pif ¥ #4, T’ang liu tien jie 7silt. Commentaries by Li Lin-tu 4 $f qf ef al. (Kuang-ya shu-chii ed., 1805). Chang-sun Wu-chi J $f a6 ER, T'ang la sui iF $e RE (Lan-ling Sun-shih Wii BE FR JK ed.) Koremune Naomoto fff $2 iff 4x, ed., Ryd no shuge 4p 4 fy (Tokyo, 1912). This work is a collection of commentaries on the Japanese codes, Taihorys KF A (promulgated A.D. 7or) and Yororys #4 A (718). However, it is helpful to the study of Chinese law since references were frequently made to the T’ang laws, which served as a model for the Japanese legislation at that time.

Sung hsing-t’ung 42 Fpl $6 (Liu-shih Chia-yeh-t’ang $i] JE 3% 3 4 ed.). Fu Lin {Q$g, Hsing-t'ung-fu chich Fp $96 Wik fi. Commentaries by a man whose a was Hsi if and Wang Liang = & (in Chén-pi ts'ung-shu fo 38 38 ap, 1913). Shén Chung-wei pk fi} Mf, Hsing-t'ung-fu su Fh] GER Bie (in Chén-pi ts’ ung-shu). Méng Kuei sf 48, T's'u-chich hsing-t'ung-fue 1 f¥t FP ESR (in Chén-pi ts’ung-shu). Pien-pén hsing-tung-fu chich $i} Ax Fl WE BRA (in Chén-pi ts’ung-shu).

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289

Ta-Yiian shéng-chéng kuo-ch'aotien-chang FFE HE Be pj WH MH (Yiian tien-chang FE HL) and Yuan tien-chang hsin-chi FEM #5 Bp ME (Shen Chia-pén LE RA ed., 1908). Ch’én Yiian Bi di, Shén-k'o Yuan tien-chang chiao-pu yf Hi Te Me HE HG (Peiping, 1931). T’ung chih t'iao-ko 3 iil] {4 #% (National Peiping Library, Peiping, 1930). Ta-Ming hui-tien FW} 7 ai (1587 ed.). Hsii Hsiieh-chii $% 4 3%, Kuo-ch'ao [Ming] tien-hui [i] $3 He (Preface dated 1601). Ta-Ming ling W) Ap (in Lu-an ts'ung-shu We He He B)Ta-Ming lit Wi 44 (Japan, 1922) Su Mao-hsiang fi PE 44], Ta-Ming la-lilin-min pao-ching Fe Wh 44 Bil PE I PE BE (Preface dated 1632). Ming lit chi-chieh fu Ti W) 44 Se WWE FAS Bi (Hsin-ting fa-li kuan gE Zp YE FE AE ed, Peking, 1908). Chia-ching hsin-li $f, 35 %f Ga] (Handwritten copy, East Asiatic Ccollections, Columbia University Library). Hsing-pu shih-i Fpl $M. (1537)Wang K’én-t'ang = }f #, Wang K’én-t'ang chien shih 4% SFE (1680). Ta-Ch'ing hui-tien e $9 @ Mt (1809). Ta-Ch'ing hui-tien shih-li 3 fy MAE Gi (1809). Ta-Ch’ ing liz chi-chich fu li eH 448 Me WE HAE | (Imperial preface dated 1725). Ta-Ch'ing lie li HAE BA (1740). Ta-Ch'ing lie-li tséng-hsiu t'ung-tsuan chi-ch'éng 343 FE Bi HB WE ETE He 1k. edited and re-edited by Shén Chib-ch’i pj 2 #, Yao Jun Hb WB, Jén P’engnien ff¥ 4¢, T’ao Chiin [ig Jpg and T’ao Nien-lin pty 4: Ff (1878). Ta-Ch'ing li-li ch’itan-tsuan chi-ch’éng hui-chu Fe $8 4 Gi] Ae WE AS We SHE RE, ed. by Wang Yu-huai F 3% fg and Sun Kuang-lieh £# 3; #i) (Preface dated 1801). Ta-Ch'ing lit-li hui-t'ung hsin-tsuan Fc 34 HE Bl $F Hh Pi BE (1842). Ta-Ch'ing lit-li hui-chi pien-lan Fe py HE Pl He Hi (HE (Hupeh yen-chii Hf 4t Bi ie ed., 1872).

Ta-Ch'ing lit-li chien-shih ho-ch’ao Fe 345 44 il % FR FB (1705). 44 (hii RG (Author's pa Bf dated 1676). Wang Ming-té > fj 44, Tu lu pei hsi Shén Chih-ch'i pf & #f, Ta-Ch'ing la chi-chu -k ¥§ $I WE RE (1755)Ta-Ch’ing li-li an-yit > 3 $F AK HF (Hai-shan hsien kuan fg {ly {il} fie ed-, 1847. In an 1851 ed. the same book was entitled Ta-Ch’ing li li an-yit kén-yiian a8 RY) re lt-li t'ung-k'ao Fe 7S AE I HB -% (Preface dated oe 1836).

Ting-li hui-pien 92 Qi $e #4 (Kiangsi an-ch’a-ssti ya-mén {0 py 1% # wl fH] F)Ting-li ch’tian-pien 5 All 4 $8 (1715).

Ting-li hsit-pien 52 il #4 4 (1745)Li T’ai 4¢ $f ed., Hsin li ch’iuan-pien $F pil 2 $B (1753)Hsieh Yiin-shéng £¥ Jo Fr, Tu li ts’un 1 HY fil 46 BE. Tsun-i Man Han ’ung-hsing hsing-lit 369 3% 3 WG 47 JA GE (Hsiv-ting fal kuan, 1907). 19

290

BIBLIOGRAPHY

Hsing-pu cho-i li-li nei ying-hsing shan-ch'u ko-t'iao tsou-chun tung-hsing ché HA SE BB 47 FB (2905). FN Bs BG HEE AEE) PS MRE A 3 BA45 FA AE (1910). Ta-Ch'ing hsien-hsing hsing-lit ‘Tzit-liang shih Ff fh JE, ed., Ch'iu-yen chi-yao Hk MB tit BE (1884). Yiian K’uei-shéng fig, 3 ZE, Ch’ite-yon chih-liteh Bk BR 3 We (in Ch'iu-yen chi yao). Ch'iu-shén pi-chiao Viao-k’uan $k FE $e BE VE RK (1879)Hsieh Ch’éng-chiin yp Gy, ed., Ch'iu-shén pi-chiao shih-huan Viao-k'uan AKSe BE RE HE aK (1887). Shén Chia-pén jf 9% AE and Vii Lien-san fy ff =, Ch’iu-shén Viao-k'uan

AE HE (1910). an-yit AK HEn, WERKCh’iu-s hén t’iao-k’uan

Shén Chia-pé

ju an $k Fe {ee HK Pi HK (1906).

Hsing-pu ch’iu-shén shih-huan pi-chiao ch'éng-an Fpl 3h k WE EE He BE eR (1876). Chiu-shén shih-huan pi-chiao hui-an $k #8 PE &E He BE HE KLi-pu ch'u-fén tsé-li i $f BR FFBU Bi] (1820).

Hu-pu tsé-li Fi $j ij (1831). Li-pu tsé-1i 982f BU Bi) (1844). Kung-pu tsé-1i [$B Bil (1884). Chung-shu chéng-k'ao ¥ ff ie % (1825). Ping-pu ch'u-fén tsé-li 5 96 BE FP $A Bi) (1823) Hsing-pu t’ung-hsing tiao-li Fpl $f 3a 47 KE Gil (1869). Hsing-pu t’ung-hsing chang-ch'éng Fpl $f 38 45 Ht FE (1900). Tu-pue tsé-1i €% Hj MN GA) (Memorial dated 1743). Te't-tett Viao-li SF PE Bi) (1895). Hstieh-chéng ch'iian-shu ¥ ff 4 je (Memorial dated 1812). K’o-ch'ang t'iao-li #438 Gil (1887). Ta-Ch'ing Kuang-hsit hsin fa-ling 35 He #8 Hi WzAP (Shanghai, 1909). Ta-Ch'ing Hsitan-t'ung hsin fa-ling 5 YH EL. BER WAP (Shanghai, 1909). Ta-Ch'ing fa-kuei ta-ch’ttan Y¥§ Wz BAK A> (Shanghai, 1911). Ta-Ch' ing hsing-lit ts'ao-an i fis FP AE HE (Hssiu-ting fa-laa kuan, 1907). Ta-Ch'ing hsin hsing-lit K 38 3 INGE (Hsien-chéng pien-ch’a kuan Be 4

Hsin hsing-lit hsiu-chéng-an hui-lu $e FATE AES TE HE BE (Peking, 1910). Ta-Ch'ing hsing-shih su-sung lit ts'ao-an 3% Ff Ae We ah At A HK (Hsin ting fa-lu kuan, 1910). Ta-Ch'ing min-shih su-sung lit ts'a0-an > fi (eHE DE GA AE AN BE (Hsiu-ting fa-lu kuan, 1910). Ta-Ch'ing mien-tii ts'ao-an > #5 FR Aft 4 AE (Hsiu-ting fa-lii kuan, 1911).

B. History of Law and Administration of justice Hsing-fa chih in the various dynastic histories: Han shu, ch. 23. Chin shu, ch. 30. Wei shu, ch. 111. Sui shu, ch. 25. Chiu T'ang shu, ch. 50.

BIBLIOGRAPHY

Hsin T'ang shu, ch. 56. Chiu Wau-tai shih, cb. 147. Sung shih, ch. 199-201. Liao shih, ch. 61-62. Chin shih, ch. 45. Yuan shih, ch. 102-105. Hsin Yiian shih, ch. 102-103. Ming shih, ch. 93-95. Ch'ing shih kao, ch. 148-150.

Hao Lhsing #R @& 47, Pu Sung-shu hsing-fa-chih ph

29

GE Ff We

(in Hao-shik

i-shulRR FE SABE and Vizeh-ya-t’ang ts'ung-shu Wa fe Ye ae Wang Shih-to Ff [i 9¥, Hsing-ja chih, Nan-pet shih pu-chih wei-k’an kao Fpl Uz ae IG dt AE AFUE (in Evh-shih-wu shih pu-pien — + Shanghai, 1936-7, V, 6533-6547)-

sb HG,

Ch'iu Han-p'ing fF YK 2p, Li-tai hsing-fa chik KE {€ JM YW ws (Shanghai, 1938). Data in the various encyclopedia: Pei-t’ang shu-ch'ao, ch. 43-45. T-wén lei-chii, ch. 54. Ch'u hsiieh chi, ch. 20. Pai-shih liu-t'ich shih-lei chi £3 JG 7st WRI 4K, compiled by Pai Chiii4 JE & (in Ssi-pu ts'ung-k’an), ch. 13. Pai K’ung liu Vich (4 $LPsih, compiled by Pai Chi-i and K’ung Ch’uan FL{& (Ming Chia-ching ed.), ch. 45-48. T'ai-p’ing yit-lan, ch. 635-652. Ts'é fu yiian kuei, ch. 609-619. Yié hai >¢ jf, compiled by Wang Ving-lin 3 jf && (Chekiang shu-chii ed. 1883), ch. 65-67. Ku-chin t'u-shu chi-ch'éng ~#; 4B BE MEW. compiled by Chiang Ting-hsi 385 HE GB and others (Chung-hua shu-chii ed.) 4s'é 765-780: Hsiang-hsing

tien E JH Hh.

Data in the Shih-t’ung: T’ung tien, ch. 163-170. Tung chih, ch. 60. Weén-hsien t'ung-k'ao, ch. 162-173. Heit 'ung tien, ch. 107-120. Hsit t'ung chik, ch. 144-151. Hsit wén-hsien t’ung-k'ao, ch. 135-140. Ci'ing-ch’ao Vung tien, ch. 80-89. Ch'ing-ch'ao Vung chih, ch. 75-80. Ch'ing-ch’ao wén-hsien t’ung-k'ao, ch. 195-210. Ch’ing-ch’ao hsit wen-hsien t'ung-k'ao, ch. 242-256. Data in the various Hui-yao: Hsi-Han hui-yao, ch. 61-63. Tung-Han hui-yao, ch. 35-36. 19

292

BIBLIOGRAPHY

€f BE, compiled by Yang Ch’én $f £2 (1900), ch. 18, San-kuo hui-yao Trang hui-yao, ch. 39-41. Wictai hui yao, ch. 9-10. Sung hui-yao kao, ts'é 165-172. Ming hui-yao {9} 7 $E, compiled by Lung Wén-pin fff ZC HF (1887), ch. 64-67. C. Interpretations, Statements of Decision, and Judicial Cases Chang Chiu-t@ a i %@, Ché-ya yao-pien $f HK BE fi (Preface dated 1626, Handwritten copy, East Asiatic Collections, Columbia University Library). Chang Cho #§f%, Lung-chin jéng-sui pian HERG BBAPl (in Hu-hai-lou ts'ung-shu 3 HE EE B)Chang Kuang-yiich #

3{; FJ

and Sun Hsiang-shén

7% & #8, comp., Li-an

cRitan-chi fil $B Ae He (1734)Cheng K’o if #3, Che-yiz huei-chien $f 9k 5 HE (in Ts’ung-shu chi-ch’éng). Ching-ch’ao shih ta ming-li p'an-tu 33 63 eH Me AA (Va-tung shu-chii ‘ii He AE Jey, Shanghai). ¥ fe FE (T’ang-yiieh Chu Ch'ing-ch’i jj Bt jt, comp., Hsing-an hui-lan Fpl Shen-ssii-t’ang 3 HA 4t HL 4 ed., 1834). A collection of more than 5000 cases, covering the period 1736-1833. Hsiz-tséng hsing-an hui-lan $33 38 FASE HE FE (1840). A collection of 1670 cases, covering the period 1833-1838.

Ch’tian Shih-ch'ao 4 -}- @ et al., comp., Po-an hsin-pien Wi RH $F (Preface dated 1781). A collection of cases covering the period 1736-1784. Po-an hsit-pien Wh 3s $4 HB (covering the period 1796-1815).

Ho Ning 41 $e and Ho Méng #1 fe, L-yiz chi EE HK Me (4851). Hsin-li ch'éng-an ho-chien 3% fil we & Ay HG (1734)Hsing-an hsin-pien Ff 3 ¥ # (Lan-chou kuan-shu chu jj # # @F fy, 1902). Hsii Lien jf: fifi and Hsiung O #& 4, comp., Hsing-pu chia-chien ch'éng-an Fp & JM PR we AE (1834) and Hsing-pu chia-chien ch'éng-an hsii-pien Fpl BMW 3 $M , compiled by Hsii Lien (1843). Hsii Lien, comp., Hsing-pu pi-chao Ff 8h He WB (1834).

Hu T’iao-yiian jj]

(1833).

FC, comp., Hsing-pu shuo-t'ieh chich-yao Fpl Sf 8 hh AW BE

Hung Pin Jt #Z, comp., Po-an ch'éng-pien WEHE je HB (1767). A collection of cases covering the period 1736-1770. Kuei Wan-Jung ££ f§ 48, T’ang-yin pi-shih We Jt Hf (Shang-yiian Chu-shih It K ed).

Kuo Wei $f jf, ed., Ta-li-yitan chieh-shih-li ch'ttan-wén > $B BE fA FR BI Se BC (Shanghai, 1930).

li-yilan p'an-chiteh-li ch’ tan-shu Fe HB BE “P| Ye Gil 4B (Shanghai, 1931).

Kuo-ying [i] 3&, Li Tsung-keng 4: #2 fe et al., comp., Tséng-ting hsing-pu shuoich 3S SYJH 8b BE hi (Kwangsi nieh-shu jf pk 4 3B, 1883).

ing-yiian Bf MH 7G, Lu-chou kung-an fe YH ZX (Preface dated 1720). én 2 XE fe, comp., Chia-chien ch’éng-an hsin-pien yy BR we Pt $B

(1833).

Ma Shib-lin Ji ik $a, comp., Ch g-an so-chien chi ye 3 He A Ae. First Collection %] 46 (covering the period 1736-1780); Second Collection — 4f¢ and Third Collection = §¢ (covering the period 1781-92). (Tsai-ssii-t’ang

BIBLIOGRAPHY

293

Mk 4g ed., preface dated 1792). Fourth Collection py 4, compiled by Hsieh K’uei gj} 4e and Wang Yu-huai =F X fy (covering the period 1793-1805). (San-yii-t'ang = (fp # ed., preface dated 1805). Ming-kung shu-p'an ch'ing-ming chi 4%, ZoBe 4 Pay WIE (in Heit ku-i ts’ ung-shu 80-6 3 SEW, Han-fén lon). Pran Wen-fang 7% 3C fff, comp., Hsin-tséng hsing-an hui-lan 3 3 FE HE GE (Tzii-ying shan-fang 3 H€ jl] fF ed., 1890). A collection of cases covering the period 1842-1885. Pi pu chao i $t 8K 44 HE (reprint, 1034). Shuo-t'ich 3¥ yj (Handwritten copy, East Asiatic Collections, Columbia University Library). Cases included in this official record of the Ministry of Justice cover the period 1784-1833. Shuo-t'ieh lei-pien 3 iby HAG (Lit-li kuan #f¢ fyi (x, 1835). Sun Lun $§ £5, comp., Ting-li ch’éng-an ho-chien 9 fA] we HE A GG (Preface dated 1707). Ta-li-yiian chieh-shih-li yao-chih hui-lan -k #} BE f¥ FR GI BEG HE BE, 3 vols. (Peking, 1919). Ta-li-yitan p'an-li yao-chih hui-lan > HP Be +i P| BEF HE VE (Peking, 1910). Ta-li-yiian p'an-li yao-chih hui-lan hsii-pien

ER Be Pi P| SET HE EA.

2 vols. (Peking, 1924). T'ung-té [i] {@, comp., Ch’éng-an hsti-pien s& 3z $FHB (1755). A collection of cases covering the period 1746-1753. Wang Chin-chih Jf 3f€ 2, comp., Shuo-t'ich pien li 3 hh HE Bil (1836). Wu Ch’ao 38 #f and Ho Hsi-yen faj $8 {, comp., Hsing-an hui-lan hsii-pien Fpl Se HE SE HG (Tui-ssi-hsien 3f HA Ff ed., 1887). A collection of cases covering the period 1838-1871. Vii Chiieh 4 $f, ed., Ta-li-yian fa-li chieh-shih lei-pien & #f BE WEA A RR #i4G (Peking, ror9). D. Studies

Abe Takeo 3 if fit, “Dai Gen tsitsei kaisetsu gakuhd Yi jj Bt $B, Kyoto, 1 (1931), 249-284.

k Ft 3h il

BE," Tone

—, “Genshi keihdshi to Gen ritsu to no kankei ni tsuite 3¢ 3 JA Peak & IC tL

D PAGER AK BE WT,”

Tohd gakuhs, Kyoto, 2 (1931), 251-273.

Asai Torao 38 Jf fe HK, Shina hosei shi 3 Hf Us ffl] sk. (Tokyo, 1900). Chao Féng-chieh ff Jl 0, Chung-kuo fu-nit tsai fa-lit shang chih ti-wei op $8 Ac Te HEF LE & 4h fix, (Shanghai, 1034). Ch’én Ku-yiian ii i BE, Chung-kuo fa-chik shih vfs [Bl BY: ipl) st (Shanghai, 1934)MR FItH%, 2 vols. (Shanghai, eo ee FERLIE, Chiu ch'ao lit k’ao fy 1927). chit ee BE al fill. Chung-kuo fa-l yit chung-huo shé-huci fs Bi PE fAE SL *B BB it@ (Shanghai, 1947). ‘Chung-kuo fa-lii chih ju-chia-hua rp [By 2 44 & 4B HK AL,” Kuo-li Pei-ching 5B 4 St ta-hsiich wu-shih chou-nien chi-nien lun-wén chi V0 tt 3 $8.4 He CM no. 4, College of Arts (National Peking University, Peiping, 1948).

294

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Hysich Viin-shéng §§ Jt Ft, T'ang Ming lic ho-pien if W\ 4 & Hg (Peking, 1922). AK OF BEE Hsii Ch’ao-yang £& $j [B}, Chung-kuo ku-tai su-sung-fa ¥p Bl [ (Shanghai, 1927). —, Chung-kuo hsing-fa so-yiian ¥p [BY Fp 2: W) WA (Shanghai, 1929). —, Chung-kuo ch’ing-shu-fa so-yitan Ff [Bq 82 JB) TE BH WE (Shanghai, 1930). Hoii Shih-kuei fp 3% 4, Chumg-huo ta-shé k’ao vp BAK AMA (Shanghai, 1934). Huang Chang-chien “#f #% (if, ““Ta-Ming li kao k’ao KW) (HE B,” Bulletin of the Institute of History and Philology (Academia Sinica) Hp JU Gf % BE Fil, 24 (1953), 77-101a eee way fa-li hsiieh fa-ta shih lun rf [BQ 3: BE AL BE SE & (in Vin-ping-shih wen-chi (K Pk ¥ 3 46)Naitd Kenkichi py §§ #% &, “Dai Min ryo kaisetsu Je BH 4p fH BE.” Toyoshi , V, 2 (1937), 35-61. xe Kenkya Kuwabara heede a ER Shina hosei shi ronsd 3 Hs Ue tpi) We He se

(Tokyo, 1935).

Niida Noboru {= JE fi RE, Toryd shai ple 4p Hh 3

—, To So horitsu monjo no kenkya iEFEY: FE CB

(Tokyo, 1933).

D BF F (Tokyo,

1937).

, Shina mibunkd shi 3 Hs Hf Fp wz Ws (Tokyo, 1043). , Chagokit hosei shi Hp Bl 3: ffi] $2 (Tokyo, 1953). —, Chagoku shakai no ho to rinri +p Bi] it fF D HE L fa HE (Tokyo, 1954). #E HH Ri Kai hokei ko 25 47 PGK 2%," Tahd gakuhs, Ogawa Shigeki fy JI] Kyoto, 4 (1933), 266-314. Shiga Shaz6 jf $y Jy =, Chitgoku hazohuhd von vp [wl FR Hk W: Hx (Tokyo, 1953). fH 1E fi, Ryo sei no Renkya 2ffi] © BEA (Tokyo, 1045). Shimada Masao Shén Chia-pén jf; $e AL, Chi-i wen-ts'un $e FH FF. (in Shén Chi-i hsien-shéng i-shu wh Bs $B HG AE RB, chia-pien FB $3, 1920).

—, Han-lit chih-i 3 ft tle 3p, Hsing-chik tsung-k'ao Ffl Hi) $84 %, Hsing-chih fénWao Fpl iil 5p 2, lid ling Ht Ap, shé k’a0 jp H%, and a number of other studies on Chinese law are included in his collected work, Skén Chi-i hsien-shéng i-shu, chia-pien, under the heading, Li-tai ksing-ja k'ao [pf {t Ff %: %Takigawa Masajiro ji )I| Be A MB, Shina hései shi kenkya e Hy Ps til St WEI (Tokyo, 1940). Takigawa Masajiro and Shimada Masao, Ryd ritsu no kenkya 3¢ 44 2 WER (Tokyo, 1944).

‘Téng Ssii-yii $f gel #&, “Ming ta-kao yi Ming-ch’u chih chéng-chih shé-hui J is SW) BZ Be Hes HL, “Yenching Journal of Chinese Studies Pe sx S$, no. 20 (December, 1936), 455-483. Tu Kuei-ch’ih $f $¢ $f, Han lit chi chéng yt ft if AF (Hsiu-ting fa-lu huan, 1843). Vang Hung-lich $5jf i), Chung-huo fal fa-ta shih vp Bl EGE BE ESB 2 vols. (Shanghai, 1930). —, Chung-kuo fa-lit ssii-hsiang shih vfs fi U5: 44 W. AB sft (Shanghai, 1936). E. Miscellaneous

Ch’én Fang-shéng Bij 35 “fz, Hsi-yiian-lu chi-shuo 3 $e Gk Me BE (Ch'ien-lung ed.). Ho Kéng-shéng fof Ik $i, Jén ming \ fp (in Mu-ling shu chi-yao A Ay it ij HE).

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Hit Lien ff $28, Hsi-yiian-lu hsiang-i 7 % BR HH (Kweichow nich-shu f J]

SLR ed., 1883).

Ko Yiian-hsii $§ 5¢ BQ, Hsi-yian-le chih-i ye $e $i tle ee (Kweichow nich-shu ed., 1883). Lang Chin-ch’i

¥f $9 Bit, Chien-yen chi-chéng BR Bs 4fe #F (Preface dated 1840).

—, Chien-yen ho-ts'an RR is Py £8 (Preface dated 1849). Lii K’un 3 hip, Hsing-chieh Fp 7 (in Tsung-chéng i-huei YE Be 38 BL, compiled by Ch’én Hung-mon fii 442 2%, 1790).

Mu-han

8 iif, Ming-hsing Ruan-chien lu 1) FR EE ba, $i (in Hsiao-yizan ts'ung-

shee Wi [BL $82)

Shén-li tsa-an 9 $B ME Be (in Mu-ling shu chi-yao). Sung Tz’ $e RE, Sung t’t-hsing hsi-yidan chi-lue Fe #2 FIP Be FE Me GH (in Tai-nan-ko

ts'ung-shi 48 Wel [B38 BF).

Wang Yu-huai F 3 ff, Li Kuan-lan 4 @y jf, and Viian Ch’i-hsin fe Jt $f, Pu-chu hsi-yitan-lu chi-chéng $f RE Ye BE Fk M6 HE (Chekiang shu-chii, 1879). Wang Vii =E Sl, Wu-yian lu Sue $e BR (in Chén-pi ts’ung-shu). We No 32 3, Hsiang-hsing yao-lan § Ff BE BE (1834). Western Sources

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Biot, Edouard, trans., Le Tcheou-li ou Rites des Tcheou, 2 vols. (Paris, 1851). Bodde, Derk, China's First Unifier, A Study of the Ch'in Dynasty as Seen in the Life of Li Ssu (Leiden, 1938). Chang Chung-li, The Chinese Gentry, Studies on Their Role in Nineteenth-Century Chinese Society (Seattle, 1955). Chavannes, Edouard, trans., Les Mémoires historiques de Se-Ma Ts'ien, 5 vols. (Paris, 1 895-1905).

Ch’ii T’ung-tsu, “Chinese Class Structure and Its Ideology,” in J. K. Fairbank, ed., Chinese Thought and Institutions (Chicago, 1957), 235-50. Convreur, S., trans., Li Ki, ou Mémoires sur les bienséances et les cérémonies, 2 vols. (Ho-chien fu, 1913). —, trans., Tch’ouen Ts'iou et Tso Tchouan, 2 vols. (Ho-chien fu, ror4). —, trans., Cérémonial (Hsien-hsien, 1928). —, trans.,

Chou King (Hsien-hsien, 1934).

Dubs, H. H., Hsiintze, the Moulder of Ancient Confucianism (London, 1927). —, trans., The Works of Hsintze (London, 1928). —,trans., The History of the Former Han Dynasty, 3 vols. (Baltimore, 1938-1955). Duyvendak, J. J. L., trans, The Book of Lord Shang, a Classic of the Chinese School of Law (London, 1928). —, “The Chronology of Hsiin-tzii,” T’oung Pao, Vol. XXVI (1920), 73-95. Fei Hsiao-t’ung, “‘Peasantry and Gentry: An Interpretation of Chinese Social Structure and its Changes,” American Journal of Sociology, LII (1946), 1-17. “Harvard Journal of Asiatic Studies Feng Han-yi, “The Chinese Kinship System, HI, 2 (July, 1937), 141 ff.

Fung (Féng) Yu-lan, A History of Chinese Philosophy, trans. by Derk Bodde, Vol. I (Peiping, 1937; Princeton, 1953); Vol. II (Leiden, 1953).

BIBLIOGRAPHY

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Gale, E.M., trans., Discourses on Salt and Iron, A Debate on State Control of Commerce and Industry in Ancient China (Leiden, 1931). Giles, H. A., A Chinese Biographical Dictionary (London and Shanghai, 1898), Granet, Marcel, “Coutumes matrimoniales dans la Chine antique,” T’oung pao. XII (1912), 517-558. —, La Polygynie sororale et le sororat dans la Chine féodale (Paris, 1920). La Civilisation chinoise (Paris, 1929). La Pensée chinoise (Paris, 1934)La Féodalité chincise (Oslo, 1952). —, La Religion des Chinois (Paris, 1922). Groot, J. J. M.de, The Religious System of China, its Ancient Forms, Evolution, History and Present Aspect, Manners, Customs and Social Institutions Connected Therewith, 6 vols. (Leiden, 1892-1910). Hu Hsien-chin, The Common Descent Group in China and its Functions (New York, 1948). Karlgren, Bernhard, trans., The Book of Odes (Stockholm, 1950). Lang, Olga, Chinese Family and Society (New Haven, 1946). Legge, James, trans., The Chinese Classics. 5 vols. in 8 vols. (Hongkong and London, 1861-1872). I. Confucian Analects, the Great Learning and the Doctrine of the Mean. Il. The Works of Mencius. IIL. The Shoo King or the Book of Historial Documents, in 2 parts. IV. The She King or the Book of Poetry, in 2 parts. V. The Ch’un Ts'ew with the Tso Chuen, in 2 parts. —, The Texts of Confucianism (Sacred Books of the East, ed. by F. Max Miiller, Vol. 3, 16, 27, and 28), 4 vols. (Oxford, 1879-1885). I. The Shu King, the Religious Portions of the Shih King, the Hsiao King. Il. The Yi King. TIL-IV. The Li Ki. Levy, M. J., Jr., The Family Revolution in Modern China (Cambridge, 1949). Liang Ch'i-ch’ao, History of Chinese Political Thought, during the Early Tsin Period, trans. by L. T. Chen (London, 1930). —, La Conception du droit et les théories des Légistes @ la veille des Ts'in, trans. by Jean Escarra and Robert Germain (Peking, 1926). Liao, W. K., trans., The Complete Works of Han Fei Tzit, a Classic of Chinese Legalism. Vol. 1. (London, 1939). Maspero, Henri, La Chine antique (Paris, 1927). — Mélanges posthumes sur les religions et Uhistoire de la Chine, 3 vols. (Paris, 1950).

Maverick, Lewis, T’an Po-fu, and Wén Kung-wén, trans., The Kuan-tzu (Carbondale, 1954). Mayers, W. F., The Chinese Government (Shanghai, 1897). Steele, John, trans., The I-li or Book of Etiquette and Ceremonial, 2 vols. (London, 1917). Swann, N. L., Pan Chao: Foremost Woman Scholar of China (New York, 1932). ‘Tjan Tjoe Som, trans., Po Hu T'ung, The Comprehensive Discussions in the White Tiger Hall, 2 vols. (Leiden, 1949-1952). Wang Yi-t’ung, ‘Slaves and other Comparable Social Groups During the Northern Dynasties (386-618),"” Harvard Journal of Asiatic Studies, XVI, nos. 3-4 (December, 1953), 203-364.

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207

‘Weber, Max, From Max Weber: Essays in Sociology, trans. by H. H. Gerth and C, W. Mills (New York, 1046). See chapter XVII: The Chinese Literat Wilbur, C. M., Slavery in China During the Former Han Dynasty (Chicago, 1943). Wilhelm, Richard, trans., Fridhling und Herbst des Lit Bu We (Jena, 1938). —, trans. Li Gi; Das Buch der Sitte des dlteren und jiengeren Dai (Jena, 1930). Wittfogel, Karl A. and Féng Chia-shéng, History of Chinese Society, Liao (Philadelphia, 1949). II. Works on Law

A. Translations of Codes, Decisions, Interpretations and Other Documents Balazs, Btienne, trans., Etudes sur la société et l'économie de la Chine médiévale, IL, Le Traité juridique du ‘‘Souei-chow” (Leiden, 1954). Boulais, Gui, trans., Manuel du code chinois (Shanghai, 1924). Biinger, Karl, trans., Quellen cur Rechtsgeschichte der T’ang-Zeit (Peiping, 1946). Giles, H. A., trans., ‘The Hsi Viian Lu or Instructions to Coroners,” The China Review, 3 (1924). Gulik, R. H. van, trans., T’ang Yin Pi Shih, Parallel Cases from under the Peartree (Leiden, 1956).

Ratchnevsky, Paul, trans., Un Code des Yuan (Paris, 1937). Staunton, G. T., trans., Ta Tsing Leu Lee; Being the Fundamental Laws, and a Selection from the Supplementary Statutes, of the Penal Code of China (London, 1810). The Chinese Supreme Court Decisions, First Instalment Translation Relating to General Principles of Civil and Commercial Law (1912-1918), trans. by F. T. Chang (Supreme Court, Peking, 1920). Recueil des sommaires de la jurisprudence de la Cour supréme de la République de Chine (1912-1918), trans. by Jean Escarra et al., 2 vols., (Peking, 1924— 1925) and Recueil des sommaires ..., Supplément (1919-1923) (Peking, 1926). Interpretations of the Supreme Court at Peking, Years 1915 and 1916, trans. by M. H. van der Valk (Batavia, 1940). B. Studies

Alabaster, Ernest, Notes and Commentaries on Chinese Criminal Law and Cognate Topics, with special Relation to Ruling Cases (London, 1899). —, Notes on Chinese Law and Practice Preceding Revision (Shanghai, 1906). Bodde, Derk, “Authority and Law in Ancient China,” in Authority and Law in the Ancient Orient (Supplement to the Journal of the American Oriental Society, no. 17, July-September, 1954), 46-55. Escarra, Jean, Chinese Law and Comparative Jurisprudence (Tientsin, 1926). —, Loi et coutume en Chine (Paris, 1931). —, “Law, Chinese,” Encyclopaedia of Social Sciences, IX, 249-254 (New York, 1933)-

—, Le Droit chinois (Peking and Paris, 1936). Hoang, Pierre, Notions techniques sur la propriété en Chine, avec un choix d'actes et de documents officiels (Shanghai, 1897). —, Le Mariage chinois au point de vue légal (Shanghai, 1898).

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Peake, C. H., “Recent Studies on Chinese Law,” Pilitical Science Quarterly, LI (March, 1937), 117-138. Pelliot, Paul, ‘Notes de bibliographie chinoise, II, Le Droit chinois, Bulletin de V' Ecole Francaise d’Extréme-Orient, IX, 1 (1909), 123-152. Rianovsky, V. A., Fundamental Principles of Mongol Law (Tientsin, 1937).

INDEX

Amnesty, 215-7 Ancestor worship, 33-4, 37, 91, 102, 168-9 Ancestral temple, 35, 37, 101-2 Artisans, 120, 134, 130-40, 145, 154 Autumn trials, 45n. Butchers, 129, 138

Chang, Emperor, of Han, 219 Chang T’ang, 276 Chang Yen, 243n. Chao, Emperor, of Han, 273 Ch’én Chung, 71 Ch’én Ch’ung, 279 Ch’én Hung-mou, 218 Ch’én Ku-yiian, 96n. Ch’én Tzii-ang, 216 Ch’en Yin-k'o, 276n. Chéng Hsiian, 16-17n., 275 Chéng Tuan, 08, 184 Ch’éng, Emperor, of Chin, 76 Chia I, 172, 174, 250 Ch'i-ch’u (seven conditions for divorcing a wife), 118-22 Ch’ien Mn, 17on. Ch’i-shih (execution in the market), 1 Chu Hsi, 218 Chu Shan, 96 Chu Viin-ming, 75 Classes, social, 127 {f.; bases of, 133-5; consciousness of, 127; endogomy, 154ff.; and legal privileges, 172, 17 ff., 202 ff.; and style of life, 135 ff. Collective responsibility, of relatives, 243-4n.; of women, 111 Concubines, 35, 66, 92, 123-7 Confucianists, and administration of justice, 275-6; on benevolent government, 264; and interpretation of law, 275; on law and punishment, 248-9, 268ff.; on li, 226ff.; and legislation, 274ff.; on moral influ-

ence, 247 ff.; on rule by men, 254-7;

on self-rectification, 255-6 Confucianization of law. See Law Confucius, 70, 144, 171, 230, 235-6, 230-40, 245-7, 249, 251-2, 254, 255n., 256-7, 268 Cross-cousin marriage, 95-6

Daughters-in-law. See Parents-in-law Death penalty, detention in prison for beheading, 45n.; detention in prison for strangling, 45n.; dismemberment, 46n.; immediate beheading, 45n.; immediate strangling, 45n. Degree holders, 182 Divination, 92, 101 Divorce, 107, 118-23 Duyvendak, J. J. L., 245-6n., 263n. Endogomy, or, 154% Entertainers, 129, 134, 137-8, 154, 16 Escarra, Jean, 276 Exogomy, 91 Family, 15 f.; head, 20, 29-31, 36-41; large households, 19-20; genealogy, 155, 157; property, 29, 31, 36-7, 104; regulations, 38; see also Marriage; Tsu Fang Ta-chih, 218 Farmers, 129, 134, 139 Father's authority, 20ff., 30-1, 100-1

Fei Hsiao-t'ung, 133n. Filial impiety, 25-6, 29-30, 42-3, 72, 91, 119, 179n., 278 Filial piety, 26, 70, 74 Fratricide, 55 Government runners, 129, 134, 137-8

Han Fei tzii, 171, 241m., 242-3, 246-7, 258-61, 264-7

Han Vii, 87

INDEX

300

Ho Hsiin, 34-5 Hsia-hou Chien, 16n. Hsia-hou Shéng, 16n. Hsiang-hsing (symbolic punishment), 173 Hsing-tsung, Emperor, of Liao, 217 Hsiao Ho, 274n., 275 Hsiao-wu, Emperor, of Sung, 75 Hsien-ch’ing (previous request), as a legal privilege, 178 Hsii Kan, 227 Hsiian-tsung, Emperor, of Ch’ing, 28 jian-tsung, Emperor, of T’ang, 15,86 Hsiin-tzii, 227, 229, 230, 232-3, 240, 247N.,

250, 254, 255N., 257, 269

Hsiin Viieh, 87, 172, 114, 272, 248n. Hu Chih-t'ang, 86 Huan T’an, 80 Husband's authority, 31, 103

I-chiieh (breaking the bond of matrimony), 107, 122-3

I K’uan, 276 Illicit

intercourse,

187-8 Incest, 65-6, 179n. Infanticide, 23 Inheritance, 37

64-7,

110,

120,

Jén-tsung, Emperor, of Sung, 215 Jen-tzu. See also yin Ju Ch’un, 243n. Kai-hu (beggars), 129, 130n. Kan-ming jan-i (offending against status and right principles), 105 Kao-tsung, Emperor, of Ch’ing, 82 Kao-yao, 210 Kao Yiin, 218 Killing, by accident, 48n.; by mistake, 48n. K’o-nid, 159-60, 187, 108 Ku, as black magic, 222-4 Ku Yen-wu, 16-170. Kuan-hu, 159n., 186-7 Kuan-tang (to cancel a punishment by surrendering one's official post), as a legal privilege, 181-2 Kuan-tail, 241n., 242-4, 265

Kuang-wu, Emperor, of Han, 191 K’ung An-kuo, 16n. K’ung Chih-kuei, 214 K’ung Ving-ta, 231.

Kuo Ling-ch’ing, 275

Law, Confucianization of, 274-9; and

custom, 95-6; of the feudal states, 170ff.; and li, 279; and magic and religion, 207ff.; sumptuary, 136ff., 150-4

Legal privileges. See Classes, social

Legalists, on benevolence, 263-5; on

law, 241-7; on moral influence, 25960; on promulgation of law, 171; on rule by men, 257ff.; on punish-

ment, 263, 265-7; on virtue, 261-2 Levirate, 97-9 Li, conflict between law and, 87; defined, 230-1; distinction between ceremonies and, 230n.; function of,

231-2, 234; incorporated into law, 274, 276-7n., 278-9; and institutions, 231n.; and government, 239— 41; and law, 279; not applicable

to commoners, 172; and social differentiation, 231-4

Li L-fu, 157 Li K’uei, r7on., 274 Li Ssii, 269 Li-tsung, Emperor, of Sung, 215 Liang Ch’i-ch’ao, 175, 236n. Liv Hsiang, 271 Lu Chia, 248 Lii K’un, 61, 08, 154 Lu Té-ming, 16n. Lu Yu, 128n.

Ma Jung, 16n., 275 Magic, black, 222-5 Maine, H. S., 207 Marriage, orff.; preferential, 95-6; prohibited, o1ff.; see also Crosscousin marriage; Divorce; Endogomy; Exogomy; Levirate; Matrilateral parallel cousin marriage Maternal relatives, 15, 67; see also Outside relatives Matrilateral parallel cousin marriage, 95-6

30r

INDEX

“Mean” people, 127,129,131,133-4,137

Mencius, 18, 70, 80, 91, 119, 226, 230, 245, 2470., 254, 256, 260n., 269

Merchants, 127, 129, 133-4, 137-40, 145, 153-4 Ming, Emperor, of Han, 76 Mother's authority, 21, 30-1; see also Father's authority Mourning, five degrees of, 17 Mu-han, 209 Mutilating punishments, 174 Natural

order, and

justice, 213-7

administration

of

Oath, and law enforcement, 207, 211-3 Officials, 127, 134, 13748; 173, 177 ff. 193; family members 152-3, 185, 194n.

of,

140-1,

O-ni (perverse offence), 43, 56, 179n. Ordeal, 209-11 Outside relatives, 15, 63-4, 67 Ou-yang shéng, 16n.

Pa-i (eight conditions for consideration), as a legal privilege, 177-9 P’an (statement of judgment), ro6n. Parents-in-law, relation to daughtersindaw, 11rff., 120-1 Parricide, 46 Patri-lineage. See Tsu Penal servitude. See T's Power of life and death, 21-2, 35,39-40 Prayers, and administration of justice, 211-3 Primogeniture, 32 Prostitutes, 129, 134, 137-8, 154, 161 Pu-ch’it, 159-60, 186-7, 189-90, 192, 196 ff. Pu-mu (discord between relatives), 53, 179n. Punishment, not applicable to ta-fu (officials), 172 Pu-tao (massacre, or practice of black magic), 179n., 224

Revenge, 78. Robson, W. H., 78, 209 San pu-ch’ié (three conditions forbidding divorce of a wife), 118

Sanction, legal, 224, 268, 274, 279; ritual, 223-4; social, 173, 279: supernatural, 211-3

Sang Hung-yang, 273

San-kang (three bonds), 237 Scholars, 127, 134-5

Secret merit, belief in, 217-8

Servants, hired, 194-8; pawned, 194; see also Shih-p'u Shang, Lord of, 171, 174, 2410., 243-5, 259, 261n., 262-3, 265-6 Shén Chia-pén, 23n. Shén Chih-ch'i, 100

Shén-tsung, Emperor, of Sung, 178 Shén-t’u P’an, 80 Shén-tzit, 242, 245 Shén Viieh, 156-7 Shih (upper class) and shu (lower class), social distance between, 154-5 Shih-o (ten offences), 43, 65, 179n., 224 Shih-p’u (permanent servants), 131n.

Shih-tsung, Emperor, of Chin, 77

Shih-tsung, Emperor, of Ch’ing, 130n.

Shu (lower class). See Shih

Shu-hsiang, 170, 239 Shu-sun Hsiian, 275 Slaves, 129, 137-9, 159-61, 186ff., 193 4, 196ff.; killing of, 191-4; see also K'o-nii;

Kuan-hu;

Pu-ch't;

Tsa-hu

Sororicide, 55 Ssii-ma Kuang, 30 Stronach, W. T., 209 Su Hsiin, 154 Suicide, 49-53, 57-60, 109, 113-4; involuntary, 22-3, 176 Sumptuary law. See Law Sun Hsing-yen, 16n.

Taboo, connected with punishment, 218-20; of names, 88-9 Tai Chén, 60 Tai-tsung, Emperor, of Sung, 214-5 T’ai-tsung, Emperor, of T’ang, 15, 215 ‘T’ai-wu, Emperor, of Northern Wei, 81 Tan-hu (boatmen), 130, 131. Teng Hsi, 17mm. Theft, among relatives, 67-9 To-min (‘‘lazy people”), 130. Tssa-hu, 159 Ts'ai K’uo, 71, 2770.

302

INDEX

Ts'ai Yung, 19 Ts'ao Ts’ao, 81 Tsu (patri-lineage), 15-20, 36-40, 53: head, 31, 36-41; nine, 16; property,

31, 36-7; see also Family Tsu Chi-chén, 155 Tsung-fa, 22, 31-6 Tsung-tzi,

T’u (‘‘imprisonment,” or penal servi-

tude), 23n. Tu Yai, 16n. Tung Chung-shu, 44, 191, 250-1, 271,

276

Tzii-ch’an, 171 Taii T’ai-shu, 230n. Vinogradoff, Paul, 78

Wang An-shih, 145, 216 Wang Ch’ung, 275 Wang Fu, 249, 272 Wang Hui-tsu, 212

Wang Mang, 221 Wang Ying-k’uei, 163 Weber, Max, 133

Wén Chung, 154

Wen, Emperor, of Han, 174, 244, 274 Wen, Emperor, of Sui, 215 Wen, Emperor, of Wei, 81 ‘én, Emperor, of Western Wei, 95n. Wéen-tsung, Emperor, of T’ang, 158 Widows, 77, 96-7, 99, 104; see also Levirate Wu, Emperor, of Han, 274 Wu, Emperor, of Liang, 81, 217 Wau, Empress, of T’ang, 216 Wu-lan (five human relationships), 236, 230 Yen-mei, as black magic, 222n., 225 Yen Ying, 237, 239 Yin privilege, 88, 158; see also Jén-t2it Yin Wén tzii, 258 Ying Shao, 276 Ying-tsung, Emperor, of Yiian, 72 Yin-yang theory, influence on legal thought, 219, 271 Viian Mei, 98 Viian Pin, 218 Yiian Ts’ai, 95 Yiteh-hu (singers and music players), 129, 130n.

ERRATA

Pp. 19, n. 12: Tao, read: T’ao

Pp. 40, line 16: tsu, read: tsu p. 44, line 18: Ch’un-ch’iu, read: Ch'un-ch'iu

line 20: ch’ing, read: Ch’ing

. 55, line 33: year, read: years . 59, line 1: Jung, read: Jung’:

. 72, line 21: Vin-tsung, read: Ving-tsung 3, line 35: and maternal grandparents, read: or maternal grandparent . 75, line 32: Yun, read: Viin

. 81, line 1: vevenge, read: revenge

line 5: Yu, read: Yii p. 83, line 15: ch’u, read: ch’ii p. 92, line 24: Ch’un-ch’in, read: Ch’un-ch’iu

P. 95, n. 22, line 7: Shu-i, read: Su-i

Pp. 99, line 18: howover, read: however p. ror, line 17: have, read: having P. 105, line 19: ch’ing, read: Ch’ing

106, line 27: 108, line 40:

ch’ang-ch’ing, read: Ch’ang-ch’ing hitting, read: hit

pe PUP

114, line 35: Kao’s, read: Kao . 116, n. 141, line 2: Boulaid, read: Boulais

. 129, N. 2, line 3: chiu, read: Chiu . 130, n. 4, lines 38-39: woman, read: women . 135, line 22:

£53, 155, 156, 160, 161, 162, 164, 165, 167, line 20: were, read: was 168, line 13: temples. Officials, read: temples, officials n. 266, line 2: tse, read: fsa p- 176, line 14: Fu Su, read: Fu-su p. 180, n. 53: Boulain, read: Boulais p. 182, line 32: present, read: presence

yur

pur

. . . . . . . . . .

utnsils, read: utensils Tsoist, read: Taoist xaminationsi, read: examinations n. 164, line 1: T’ung, read: T’ang line 17: geneological, read: genealogical line 18: show, read: shows N. 202, line 3: Ju, read: lit line 1: Ching, read: Ch’ing line 29: were, read: was N. 237, line 1: T’ung, read: T'ang line 13: T’ang, Yiian: read: T’ang, Sung, Yiian

p. 183, line 12: occured, read: occurred p. 185, line 32: a parent of wife, read: a parent or wife

304

ERRATA

PUPP PPP PP yD

. 188, n. 93, line 19: throught, read: thought . 204, lines 18 and 20: tung, read: t'ung . 205, lines 2 and 8: tung, read: t’ung 208, line 32: determing, read: determining . 222, n. 100, line 18: $A, read: $9 . 223, line 1 . 226, line 9: are, read: were 227, n. 2, line 6: chao, read: ch'ao . 234, lines 8, 9, and 12: there, read: they . 237, line 34: chao, read: ch’ao . 243, n. 98, line x: puishment, read: punishment p. 250, line 15: harpy, read: happy P. 251, line 8: moral does influence, read: moral influence line 9: why not, read: why does not P. 252, line 30: Chi-sung, read: Chi-sun P. 257, line 2: faithfull, read: faithful