The Enlightened Judgments: Ch'ing-ming Chi: The Sung Dynasty Collection 0791442438, 9780791442432, 0791442446, 9780791442449

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Enlightened Judgments Chmg-ming Chi The Sung Dynasty Collection translated by Brian E. McKnight and James T.C. Liu

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The Enlightened Judgments Ch'ing-ming Chi 清明集

SUNY series in Chinese Philosophy and Culture David L. Hall and Roger T. Ames, editors

mm PMBf

he Enlightened Judgments Ch'ing-ming Chi The Sung Dynasty Collection

Translated by Brian E. McKnight and James T.C. Liu Annotated and Introduced by Brian E. McKnight

STATE UNIVERSITY OF NEW YORK PRESS

Cover illustration: Traditional Chinese Court Scene by Joan Saridin

Production by R u th Fisher M arketing by Patrick Durocher

Published by State University of New York Press, Albany © 1999 State University of New York A ll rights reserved Printed in the U nited States of America No part of this book may be used or reproduced in any manner whatsoever w ithout written permission. No part of this book may be stored in a retrieval system or transm itted in any form or by any means including electronic, electrostatic, magnetic tape, mechanical, photocopying, recording, or otherwise w ithout the prior permission in w riting of the publisher. For inform ation, address the State University of New York Press, State University Plaza, Albany, N Y 12246

Library of Congress Cataloging-in-Publication Data Ming-kung shu_p’an ch’ing-ming chi. English Selections The enlightened judgm ents : C h ’ing-ming c h i : the Sung dynasty collection / translated by Brian E. M cK night and James T.C. Liu. p. cm. — (SUNY series in Chinese philosophy and culture) Includes bibliographical references and index. IS B N 0-7914-4243-8 (alk. paper). — IS B N 0-7914-4244-6 (p b k .: alk. paper) 1. Law reports, digests, etc.— China. 2. Law— C h in a S o u r c e s . 3. C hina— Social life and custom s~ 960-1644~Sources. I. M cKnight, B rian E. II. Liu, James T.C., 1919- . III. Title. IV Series. KNN63.4.M56213 1999 306'.0951— dc21 97-17960 C IP

10 9 8 7 6 5 4 3 2 1

Dedicated to my late colleague and friend, James T. C. Liu, who suggested we do this book together and without whose contribution it could never have been completed.

CONTENTS

List of Charts and Illustrations Preface Introduction The Enlightened Judgments (Ching-ming thi) Contents of the Translation

^

Part 1. Officials Part 2. Taxes and Services

.

Part 3. Academic Affairs Part 4. Households and Marriage Part 5. Human Relationships Part 6. Categories of Persons Part 7. Chastising Evil Appendix A. Appendix B. Appendix C. Notes Bibliography Index

Sung Local Administrative Units and Their Major Functionaries Conversion of Penalties during the Southern Sung Sung Measurements

vii

LIST OF CHARTS AND ILLUSTRATIONS

Chart 1.

Mourning Degrees

Map

Sung Circuits with Districts and Prefectures

Chart 2.

Place Names in the Ch’ing-ming Chi Circuits and Macro-regions Districts and Prefectures

Chart 3.

Key for Family Charts

FAMILY CHARTS Ts’ai Family Wang Family Tai Family Wu Family

,

Huang Family Wang Family Tseng Family Hsieh Family

viii

PREFACE

Few vivid and realistic descriptions of ordinary life in traditional China exist today, especially for the era prior to the rise of the Ch， ing dynasty (1644-1911). Those gems of description that are extant，works like Dreams o f the Eastern Capital, focus a lm o s t exclusively o n th e b r ig h t side of life. They are celebrations, and wonderful ones, of the excite­ ment and panache of popular customs. For a darker，if still colorful, portrayal of local Chinese life scholars can now turn to the recently re-discovered complete text of the Sung dynasty work, Collection of Enlightened Judgments (Ming-kung shu-p， an ch'ing-ming chi). Until the last decade scholars had available only a very truncated version of this work. Then in the 1980s a complete version was discovered. Shortly afterwards, my old friend and colleague, the late Professor James T.C. Liu of Princeton, suggested that we two might collaborate on a partial translation of this important text. The National Endowment for the Humanities awarded us a three year translation grant. Work on the project began in the late 1980， s. Prof. Liu concentrated on providing draft translations of the pieces we selected. In the final version at least three-quarters of the draft trans­ lations are his work. I did the rough translations of the remaining pieces, working on matters that especially interested me. It was also agreed that I would provide polished translations, annotate the text, and write the introduction. Fortunately for me, Prof. Liu's “rough” translations were so well done that doing final translations was an easy task. I do not mean to imply that we did not have some passages which were difficult to understand. The Chinese of the text is usually relatively straightforward. The relationships among the parties, who is related to whom and in what way, and who does what to whom, are by no means always obvious. Indeed, my students in the Chinese Col­ loquium at the University of Arizona, who have read through some of the translations in my classes, have on a number of occasions pointed out places where both Prof. Liu and I failed to understand exactly

ix

X

Preface

what was going on. I know I speak for Prof. Liu also in thanking them for their advice. I do hope that we have eliminated all such problems but I fear that in a text so drenched in matter, where relationships are sometimes only seen when they are graphed on paper and other times are fundamentally ambiguous, mistakes may remain. All such flaws are of course my responsibility alone. No doubt James would have found many such had he lived long enough to comb carefully through our final text. In 19901moved from the University of Hawaii to the University of Arizona. Shortly afterwards Prof. Liu became ill, dying in 1992: The project made no progress for several years. Fortunately, Prof. Liu had 4one his work well. It only remained for me to finish some rough and final translations, do the annotations, compose introductory essays to the sections of the work, write a general introduction and provide headhotes for the selections. In 1996， as I prepared to step down after six years as Head, of the Department of East Asian Studies at the University of Arizona, I finally carved out time in my schedule to complete my end of the work. What follows is'a translation of approximately half of the text of the Enlightened Judgments. The translation is a,work aimed at a divers^ audience. It is our hope that people with an interest in the workings of traditional Chinese society but whose major specialization is in the study of other cultures will find this book informative and useful; we hope that colleagues teaching undergraduates about Chinese history will find this# valuable source of materials; specialists in comparative law may j&n

a. 3 years b. 1 year c. 5 months

(grades b through d were performed for collateral relatives)

d. 3 months Ta-kung

9 months

Hsiao-kupg

5 months

Ssu-ma

3 months

*

tionships with others. Such relationships could be based on friend­ ship, shared work or residence, or most importantly, on ties of kin­ ship through blood or marriage. The closeness of these kinship ties were precisely defined in terms of a set of “mourning degrees” that determined both the appropriate rituals and the length of mourning owed to different relatives. The Sung people spoke of the Five De­ grees of mourning, which ranged from three months up to a nominal three years. The closer the degree the longer the mourning period and the more elaborate the rituals (see Chart 1). The “self” was thus seen in terms of others. To preserve and promote this self was not just to preserve and promote ego but to bring honor to the ancestors and to protect one^ descendants. The tensions between Confucian social commitment and concern for the self was complicated by a new emphasis on the importance of self-discovery and the self-improvement of the individual. Many men who were committed to the Confucian vision wanted to make them­ selves exemplary individuals. Certainly there could be strong com­ mitments to promoting the welfare of relatives and the society at large; to this was added a desire to mold the individual personality like a work of art, so that one might become an exemplary gentleman (chuntzu) or even a sage. During the Southern Sung thinkers espoused a variety of views on the best way to apply the lessons of the Classics to the life of the individual and his place in society and state. Eventually, after the fall of the Sung, the views of the group of thinkers who advocated the views of Chu Hsi (1130-1200) would come to dominate the thinking of the more articulate members of the Chinese elite. However, during

28

Introduction

the years when the Ch ，ing-ming chi decisions were being made, this branch of the Neo-Confucian movement was by no means the domi­ nant group. The decisions to be found in our text reveal a variety of positions on social issues taken by magistrates. Some show little sense of being torn between their ethical values and decisions in accord with the current rules; others feel compelled to stick close to the writ­ ten law even though they disagree with it; and then there are those who simply override the written law in pursuit of their social agenda. The complexities and tensions inherent in Sung society run through the following p^ges of translated text like vivid threads, appearing only briefly in some of the cases and seeming to dominate others. It is this very lack of simplicity and agreement which makes the Ch'ingming chi such a v a lu a b le source (see map and charts 2 and 3).

,

、 ^ y j\ / ® i ^

C H IN G -H U^

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KUANG-NAN WEST \

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KUANG-NAN EAST

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C hart 2.

PLACE NAMES IN THE CHING-MING CHI

CIRCUITS AND MACRO-REGIONS Che-hsi 浙西 Che-tung 浙東 Chiang-nan East 江南東 Chiang-nan West■江南西 Chiang-tung 江東 Ching-hsi South 京西南 Ching-hu North 荆湖北 Ching-hu South 荆湖南 Fu-chien 福建 * Ho-tung 河東 Hu-nan 湖南 Kuang-nan East 廣南東 *Kuang-nan West 廣南西 - K’uei-chou 夔州 Li-chou 利 州

4

'

^

、

Liang-che 兩浙

, •

‘

DISTRICTS AND PREFECTURES i.

An-chi District 安吉

(Hu Prefecture, Liang-che Circuit)

1

An-fu Industrial District

(Nan-chien Prefecture, Fukien Circuit)

2

(Jao Prefecture, Chiang-nan East Circuit)

3

安福監 ’ An-jen District 安仁

'

An-lu District 安陸

(Te-an Superior Prefecture,

Ch’ang-shan District 常山

(Ch'u Prefecture, Liang-che Circuit)

4

Ching-hu North Circuit) "Chi Prefecture 吉 Cliia-hsing Superior

*

,

5

(Chiang-nan West Circuit)

6

(Liang-che Circuit)

7

Prefecture 嘉興府 Chiang Prefecture 江

(Chiang-nan West Circuit)

8

Chiang Prefecture 絳

(Ho-tung Circuit)

9

Chien 建

(Fu-chien Circuit)

10

Chien 劍

(Li-Chou Circuit)

11

Chien-ch’ang Military

(Chiang-nan West Circuit)

12

Prefecture 建昌軍

30

人,

•

Chien-k’ang Superior

(Chiang-nan East Circuit)

13

(Fu-chien Circuit)

10

Prefecture 建康府 Chien-ning Superior Prefecture 建寧府 Chien-yang District 建陽

(Chien-ning Superior Prefecture,

Ch’ien-shan District 給山

(Hsin Prefecture, Chiang-nan East

Ch’ing Prefecture 青

(Ching-tung East Circuit)

15

Ch’ing-yOan Superior

(Liang-che Circuit)

16

Ch’u Prefecture 處

(Liang-che Circuit)

17

Ch’ung-an District 崇安

(Chien Prefecture, Fu-chien Circuit)

10

Fu Prefecture 撫

(Chiang-nan West Circuit)

18

Fu-yang District 富陽

(Lin-an Superior Prefecture, Liang-che

Fu-chien) Circuit)

10 14

Prefecture 慶 元 府 ‘

Circuit)

19

Heng Prefecture 衡

(Ching-hu South Circuit)

20

Ho Prefecture 賀

(Kuang-nan East Circuit)

21

Hsi District 歙

(Hui Prefecture, Chiang-nan East Circuit) 22

Hsiang-yang District 襄陽

(Hsiang-yang Superior Prefecture,

Hsiang-yin District 湘陰

(T*an Prefecture, Ching-hu South

Ching-hsi South Circuit) Circuit)

23 24

Hsiang-hsiang District 湘鄕

(Tan Prefecture, Ching-hu South

Hsien-chii District 仙居

(T’ai Prefecture, Liang-che Circuit)

Hsin Prefecture 信

(Chiang-nan East Circuit)

14

Hsin Prefecture 新

(Kuang-nan East Circuit)

26

Hsin-hua District 新化

(Pao-ch’ing Superior Prefecture,

Circuit)

Ching-hu South Circuit) Hui Prefecture 惠

(Kuang-nan East Circuit)

Hung-tu District 洪都

(Ch*ien Prefecture, Kfuei-chou

I-huang District 宣黃

(Fu Prefecture, Chiang-nan West

Circuit) Circuit) 1 I-yang District 戈陽

(Hsin Prefecture, Chiang-nan East

; Jao Prefecture 饒

(Chiang-nan East Circuit)

Circuit) Kuei-ch’i District 貴溪

24 25

27 28 29 18 14 3

(Hsin Prefecture, Chiang-nan East Circuit)

31

14

Li-ling District 體陵

(T’an Prefecture, Ching-hu South Circuit)

Lin-an (Superior Prefecture)

(Liang-che Circuit)

24 19

臨安俯） Lo-p'ing District 樂平

(Jao Prefecture, Chiang-nan East Circuit)

Nan-an Military Prefecture

(Chiang-nan West Circuit)

30

3

Nan-k*ang Militaiy Prefecture (Chiang-nan East Circuit)

31

南安軍 南康軍 Pa-ling District 巴陵

(Yueh Prefecture, Ching-hu North

Pin Prefecture 賓

(Kuang-nan West Circuit)

33

P’ing-chiang Superior

(Liang-che Circuit)

34

Circuit)

32

Prefecture 平江府 P’o-yang District 鄙陽

(Jao Prefecture, Chiang-nan East Circuit)

P’u-chiang District 浦江

(Wu Prefecture, Liang-che Circuit)

35

3

Shao-wu Military

(Fu-chien Circuit)

36

Prefecture 邵武軍 Shao-yang District 邵陽

(Pao-ch*ing Superior Prefecture, Ching-hu South Circuit)

27

Shun-ch'ang District 順昌

(Nan-chien Prefecture, Fu-chien Circuit)

T， ai Prefecture 台

(Liang-che Circuit)

2

T’ang Prefecture 唐

(Ching-hsi South Circuit)

37

T’ai-p’ing Prefecture 太平

(Chiang-nan East Circuit)

38 24

25

T’an Prefecture 潭

(Ching-hu South Circuit)

T'ing Prefecture 汀

(Fu-chien Circuit)

39

T'ung-ch'eng District 通成

(E Prefecture, Ching-hu North Circuit)

40

Wen Prefecture 溫

(Liang-che Circuit)

41

Wu-i District 武義

(Wu Prefecture, Liang-che Circuit)

35

Wu-kang Military Prefecture

(Ching-hu South Circuit)

42

Wu Prefecture 娶

(Liang-che Circuit)

35

Yen Prefecture 嚴

(identical with Chien-te Superior

Yung Prefecture 皇

(Kuang-nan West Circuit)

Yung-hsin District 永新

(Chi Prefecture, Chiang-nan West Circuit)

Yuan Prefecture 袁

(Chiang-nan West Circuit)

武岡軍

Prefecture, Liang-che Circuit)

32

43

44 6 45

C hart 3.

KEY FOR FAMILY CHARTS

Male

Female

Blood Relationship

Relationship through Adoption

Deceased

A elder

Age Differences within a Generation

younger

33

The Enlightened Judgments Ch'ing-ming Chi 清明集

CONTENTS OF THE TRANSLATION

官吏 Part 1* Officials 申儆 Admonitions DISPATCH TO PREFECTURAL CONTROLLERS GENERAL

(t’ung-p’an 通判) AND ALL SECTIONAL OFFICIALS author: Chen Hsi-shan (CMC 1/1)

申牒

Rebukes

THE FILES OF CIRCUIT COMMISSIONERS OUGHT NOT TO BE DEMANDED author: Ts’ai Chiu-hsiiap 蔡 久 軒 （ CMC 1/16) CARELESS REPORTS FROM PREFECTURAL OFFICIALS author: not available

獎排

(CMC 1/17-18)

Commendations

ON THE FOUNDING OF THE MEMORIAL HALL FOR THE HONORABLE MR. TS’AO author: Ts’ai Chiu-hsiian

(CMC 1/18)

REWARDING A TAX SUPERVISOR WITH A BANNER FOE HAVING REFUSED BRIBERY author: n.a.

(CMC 1/19)

儆飭

Warnings

REPRIMANDING A DISTRICT MAGISTRATE author: n.a.

(CMC 1/21)

NOTICE TO THE STAFF MEMBERS (OF THE JUDICIAL OFFICE) author: n.a.

(CMC 1/23)

Contents of the Translation

38 禁戢

Prohibitions

RESTRICTIONS ON SUBORDINATE OFFICIALS IN THE PREFECTURES AND DISTRICTS WHO ARE NOT TO BREAK THE LAWS ON INFLICTING PUNISHMENTS

t

author: Hu Shih-pi 胡 石 壁 （ CMC 1/36)

f

A BAN ON PEOPLE’S ACCLAMATION OF A DISTRICT MAGISTRATE author: Ts’ang-chou 滄 洲 （ CMC 1/37-38)

澄汰

Remedial Removals

,

APPOINTING AN ACTING OFFICIAL IN PLACE OF AN AGED INCOMPETENT DISTRICT MAGISTRATE author: Hu Shih-pi

(CMC12/39) '

T

ORDERING A CAPRICIOUSLY CORRUPT OFFICIAL TO SEEK MEDICAL CARE (tantamount to forcing him to accept a medical discharge) author: Hu Shih-pi

周給

(CMC 2/40)

Compassionate Aid

SENDING HOME THE COFFIN OF A JUDICIAL OFFICIAL author: Hu Shih-pi

頂冒

(CMC 2/43)

Presumption

PRESUMPTUOUSLY ESTABLISHING AN OFFICIAL HOUSEHOLD BY CLAIMING ANOTHER PERSON’S ANCESTOR AS O N ES OWN author: n.a.

(CMC 2/44)

驚爵

Purchased Rank

THE ORIGINAL CERTIFICATE OF PURCHASED RANK

'

SHOULD NOT BE RETURNED TO A CONDEMNED MAN author: n.a.

(CMC 2/46-47)

WAIVING THE SURRENDER OF THE CERTIFICATE OF OFFICIAL RANK AND PUNISHING THE SERVANTS ' AND REPORTING THIS TO THE OFFICE OF THE FISCAL COMMISSIONER AND THE MINISTRY author: n.a.

(CMC 2/48)

*

1

Contents of the Translation 借補

Filling Lower Posts

’

A CLERK ACTING AS A TAX SUPERVISOR TOOK BRIBES author: Fan Hsi-t， ang 范 西 堂 （ CMC 2/48-49 )

權攝

Acting Officials

CORRUPT BRUTALITY author: Ts’ai Chiu-hsiian

(CMC 2/49-50)

ARASH OFFICIAL, CONTRARY TO LAW, AVAILED HIMSELF OF ACTING IRREGULAR POSTS TO GAIN OFFICIAL RANK author: Fan Hsi-t’ang

受贓

(CMC 2/50-51)

Corruption

SELLING COUNTERFEIT CERTIFICATES (FALSELY INDICATING RECEIPT OF TAXES INCLUDING TAXES PAID IN GRAIN) author: Ts’ai Chiu-hsuan

(CMC 2/52)

PATROLLING INSPECTORS TAKING GRAFT '

DURING AN INVESTIGATION

author: Sung Tzu-mu 宋 自 牧 （ CMC 2/53-55)

對移

Exchange of Posts

EXCHANGING POSTS BECAUSE OF CORRUPTION author: n.a.

(CMC 2/57)

ANUNFIT MAGISTRATE author: n.a.

^

'

,

■

(CMC 2/59)

昭雪

Rectifying Injustices

A DISTRICT MAGISTRATE FALSELY ACCUSED OF TAKING SILK BY A CLERK author: Wu Yu-yen 吳 雨 巖 （ CMC 2/60)

r

奉留生祠立碑

Petition for Extension of Tenure

FLATTERING OF MAGISTRATES SO AS TO SEEK ADVANTAGES IN THE FUTURE author: Ts’ai Chiu-hsuan

(CMC 2/61)

A-LIVING HALL OF HONOR author: n.a.

(CMC 2/61)

Contents of the Translation

40

賦役 Part 2. Taxes and Services 財賦

Tax Revenues

THE METHOD OF COMPILING TAX ROLLS author: Chen Hsi-shan

稅賦

110

(CMC 3/62)

Land Taxes

FORBIDDING EXCESSIVE CHARGES BY TAX AGENTS author: Hu Shih-pi

催科

(lan-hu 攬戶）

(CMC 3/63)

111

Pressing for Tax Payments

PREFECTURES AND DISTRICTS IMPROPERLY COERCING PEOPLE INTO PAYING THEIR TAXES IN ADVANCE author: Liu Hou-ts’un

劉後村（ CMC 3/64-65)

113

UNRULY HOUSEHOLDS WHO REFUSE TO PAY TAX ARREARS 115

author: Hu Shih-pi (CMC 3/67)

受納

Deliveries of Taxes

ELIMINATING FRAUD AND FAVORS IN THE RECEIVING OF TAXES 117

author: Fang Chlu-yai 方 秋 崖 （ CMC 3/69-70) PAYMENT OF RIGHTEOUS RICE CANNOT EASILY BE STOPPED AND MUST BE CONTINUED ACCORDING TO THE PRECEDENTS author: Hu Shih-pi

綱運

(CMC 3/70-71)

^

119

Transportation

LOSSES DURING TRANSPORTATION DUE TO THE DISHONESTY OF CREW MEMBERS author: Hu Shih-pi (CMC 3172-73)

差役

121

Requisitioned Service

LAW ON SERVICE PROPORTIONAL (TO HIGHER TAX ASSESSMENT) author: Fan Hsi-t’ang

(CMC 3/75)

123

Contents of the Translation

41

THE SEPARATION OF HOUSEHOLDS AT THE END OF THE MOURNING PERIOD FOR PARENTS author: n.a.

(CMC 3/75-76)

限田

124

Exempted Properties

THE CALCULATION OF SERVICES OWED ACCORDING TO PROPERTY, EXCLUDING EXEMPTED LAND author: Kuan Tsai-chin 關 宰 環 (CMC 3/77)

126

A REPORT WITH ALL DOCUMENTS author: Assistant Magistrate of Chien-yang 建 陽 （ CMC 3/79)

文事

Part 3. 學校

127

Academic affairs

Schools

A SCHOOL OFFICIAL SHOULD NOT ON HIS OWN ACCEPT PEOPLE’S DONATIONS author: Fang Ch*iu-yai (CMC 3/93-94)

132

THE CLOTHING ON THE CLAY IMAGE OF HIS EXCELLENCY, LU WEN-AN 陸文安 IN THE PREFECTURAL SCHOOL author: Judicial Commissioner Yeh

書院

(CMC 3/94-95)

133

Academies

LANDS OF THE WHITE DEER ACADEMY author: Ts’ai Chiu-hsiian

祠堂 THE SHRINE

(CMC 3/95)

135

Shrines

(ts,u-t’ang 祠堂）HONORING CHU HSI (1130-1200)

author: Ts’ai Chiu-hsGan

(CMC 3/96)

136

SHRINE IN HONOR OF HUNG (M AI) 洪 邁 （ 1123~1202), THE ACADEMICIAN OF THE TUAN-MING PALACE author: Ts’ai Chiu-hsuan

科舉

(CMC 3/97)

137

Examinations

ON BEING INADMISSIBLE TO THE EXAMINATIONS BECAUSE ONE’S NATIVE PLACE IS IN DOUBT author: Hu Shih-pi

(CMC 3/97-98)

138

42

Contents of the Translation

EXAMINATION OFFICIALS ARE SUED BY SCHOLARS FOR FAVORITISM AND FRAUD author: Wang Shih-chai 王 實 齋 （ CMC 3/98-99)

戶婚 Part 4. 爭業上

Households and Marriage Property Disputes~Part 1

WU MENG 吳盟 DISPUTING THE SALE OF LAND B Y W U H SI 吳錫

，

author: Fan Hsi-t,ang (CMC 4/100-101) MUTUAL DISPUTE OVER LANDED PROPERTY BETWEEN CHANG CH’UN 張椿 AND CHAO YUNG 趙永 REFERRED TO THE I-HUANG 宜黃 DISTRICT BY THE COMMISSIONER author: Fan Hsi-t'ang (CMC 4/101-2) YU CH'ENG 游成 SUES YU HU^G-FU 游洪父 FOR HAVING CONDITIONALLY SOLD LANDED PROPERTY ( author: n.a.

(CMC 4/104-5)

LU WEN-TING 呂文定 ACCUSES LU PIN 呂賓

>

OF ILLEGALLY OCCUPYING LANDED PROPERTY author: n.a.

(CMC 4/106)

HSIUNG PANG 熊邦 AND HIS BROTHER DISPUTING OVER PROPERTY WITH THEIR SISTER-IN-LAW, THE WOMAN KAN author: n.a.

(CMC 4/110-11)

CHANG MING 章明 AND YUAN AN 袁安 MUTUALLY DISPUTING OVER LANDED PROPERTY author: n.a.

(CMC 4/111)

WRONGFUL PLAINT OVER LANDED PROPERTY author: Hu Shih-pi

(CMC 4/123)

WHEN A SON IS UNABLE TO SUPPORT HIS PARENTS IN A FILIAL WAY SO THAT THEY MUST DEPEND ON A SON-IN-LA THEIR PROPERTY SHOULD GO TO THE SON-INauthor: n.a.

(CMC 4/126-27)

THE IMPROPRIETY OF BUDDHIST MONKS DISPUTING OVER PROPERTY author: Fang Ch ， iu-yai

(CMC 4/127)

t

IEN

Contents of the Translation

43

TAKING ADVANTAGE OF A CRISIS TO SEIZE HOUSE PROPERTY author: Wu Yti-yen (CMC 4/131-32)

159

CASES INVOLVING UNCLEAR CONTRACTS OR IN WHICH THE BUYER OR THE PROPERTY OWNER IS DEAD SHOULD NOT BE ACCEPTED author: Fang Ch’iu-yai

爭業下

(CMC 4/132-33)

162

Property Disputes—Part 2

PROPERTY DISPUTE BETWEEN A NEPHEW AND AN UNCLE WHO HAD BEEN ADOPTED BY ANOTHER FAMILY author: Weng Hao-t'ang 翁 浩 堂 （ CMC 4/135-36)

163

CLERGY RETURNING TO LAYMAN STATUS AND TAKING AN INHERITANCE SHARE author：Weng Hao-t'ang (CMC 4/138-59)

165

PROPERTY BOUGHT BY THE W IF E ^ OWN FUNDS IS NOT SUBJECT TO DIVISION author: Weng Hao-t， ang

(CMC 5/140)

168,

WILL OF STEPMOTHER BEQUEATHING H； ER PENSION LAND

(yang-lao t ’ien 養老田）TO HER OWN DAUGHTER

author: Weng Hao-t*ang (CMC 5/141— 2)

,

REFUNDING A LOAN ON MULTIPLE TRANSACTIONS

170 >

INVOLVING THE SAME PROPERTY author: Yao Li-chai 姚 立 齋 （ CMC 5/142*43)

, ,

172

REDEMPTION OF CONDITIONALLY SOLD PROPERTY IS NOT ALLOWED WITHOUT DEEDS FOR PROOF author: (Official from) P’u-yang (District)莆 陽 （ CMC 5/148-51) MAKING CHANGES IN WORDING

174

，

author: Jen-ch4ng 人 境 （ CMC 5/154)

179

FALSELY DESIGNATING THE FOUR BOUNDARIES OF DISPUTED HILLSIDE author: Liu Hou’ts’un

(CMC 5/157-59)

180

DOCTORING A CONTRACT DOCUMENT TO ENCLOSE HILL LAND ILLEGALLY author: Weng Hao-t’ang (CMC 5/159)

*

*

183

CORROBORATIVE EVIDENCE NEEDED IN A DISPUTE OVER HILL LAND author: n.a.

(CMC 5/160-62)

184

Contents of the Translation

44

CASES CLAIMING INEQUITIES IN CONDITIONAL SALES ARE NOT TO BE HEARD IF TWENTY YEARS HAVE PASSED author: n.a

(CMC 5/162-63)

贖屋

188

Repurchase of Houses

NOT VACATING A PROPERTY ALREADY SOLD author: Wu Shu-chai 吳 恕 齋 （ CMC 6/164-65)

190

Collateral for Loans

抵當

USING PROPERTY AS COLLATERAL FOR A LOAN WITHOUT VACATING THE PROPERTY author: Wu Shu-chai

(CMC 6/167-68)

193

TEMPORARY COLLATERAL FOR A LOAN author: Yeh Yen-feng 葉 岩 峰 （ CMC 6/170-71)

爭田業

195

Land Disputes

BUYER RENEGING AFTER PURCHASE BECAUSE OF HIGH PRICE author: Han Ssu-chai 韓 似 齋 （ CMC 6/175-76)

198

ACCUSING A NEPHEW OF FRAUDULENTLY SELLING LAND author: Wu Shu-chai

(CMC 6/183-84)

200

TO END A DISPUTE BY TURNING DRY LAND OVER TO THE GOVERNMENT author: Wu Shu-chai

(CMC 6/187-86)

203

Disputes over Buildings

爭屋業

DISPUTE BETWEEN A MATERNAL UNCLE AND A NEPHEW author: Yeh Yen-feng (CMC 6/191-92)

賃屋

206

Rental of Houses

ARBITRARY OCCUPATION OF A RENTAL BUILDING author: Yeh Yen-feng (CMC 6/196)

爭山

208

Disputes over Hill Lands

DISPUTE OVER A HILL author: Wu Shu-chai (CMC 6/197-98)

210

Contents of the Translation

45

Disputes over Boundaries

爭界至

DISPUTING BOUNDARIES author: n.a.

(CMC 6/198-99)

立繼

213

Establishing Heirs

WHEN AN HEIR ORIGINALLY

OF ANOTHER SURNAME

HAS BEEN ADOPTED DURING ONE’S LIFETIME IT WILL BE DIFFICULT TO REMOVE HIM THROUGH A CHALLENGE author: Wu Shu-chai

(CMC 7/201-3)

215

AN ELDER AND A YOUNGER BROTHER, ONE POOR AND ONE RICH, HAVING THEIR CASE DECIDED BY THE DRAWING OF LOTS author: Wu Shih-chai

(CMC 7/203-4)

219

WU TSUNG-CHOU 吳從周 AND OTHERS SUE WU P’ING-FU 吳平甫 TO DEMAND MONEY author: Wu Shu-chai

(CMC 7/204)

221

DRAWING LOTS TO CONFIRM AN HEIR author: Wu Shu-chai

(CMC 7/205-6)

222

WHEN HEIRS HAVE BEEN INSTALLED THEY OUGHT NOT TO BE DISPLACED BY THE SON OF A CONCUBINE author: n.a.

(CMC 7/206-7)

226

ONE MAN CANNOT BE THE SUCCESSOR TO TWO SEPARATE HOUSEHOLDS THAT SHOULD CHOOSE AND ESTABLISH THEIR RESPECTIVE HEIRS SEPARATELY author: Wu Shu-chai

(CMC 7/208)

228

ON CONTENTION WITHIN A LINEAGE OVER THE INSTALLING OF AN HEIR author: Han Chu-p’o 韓 竹 坡 （ CMC 7/209-10)

229

ONE WHO CONTENDS TO BE INSTALLED AS HEIR IS DENIED PERMISSION author: Yeh Yen-feng (CMC 7/211-12)

234

A DISPUTE RAISED BY A SON-IN-LAW author: Yeh Yen-feng (CMC 7/212-13)

237

Contents of the Translation

46

WHEN AN HEIR HAS BEEN CLEARLY ESTABLISHED THEN THE FAMILY DOES NOT DIE OUT author: Draft decision

(ni 擬）by the judicial inspector

(CMC 7/215-17) DUAL INSTALLING OF HEIRS,

.

ONE BEING A SON CHOSEN BY THE ORDER OF THE MOTHER, AND THE OTHER BY THE PATRILINIAL DESCENT GROUP author：Draft by the T’ung-ch’eng District (present-day T*ung-ch’eng in Hu-nan) magistrate

歸宗

(CMC 7/217-18)

、

Returning to the Descent Line

AN UNWORTHY ADOPTEE IS ORDERED TO RETURN TO HIS NATAL FAMILY author: n.a.

(CMC 7/224)

檢校

Auditing (for Trusteeship)

,

IMPROPER REOUEST FOR AUDITING author: Yeh Yen-feng (CMC 7/228)

Orphans and Minors

孤幼

MAKING OFFICIAL ARRANGMENTS author: Han Ssu-chai 韓 似 齋 （ CMC 7/230-32) PATERNAL BRANCH HEAD AGAINST FATHER OF CONCUBINE ON INFRINGING ON PROPERTY author: Han Ssu-chai

孤寡

(CMC 7/232-33)

Orphans and Widows

PATERNAL RELATIVES MISTREATING ORPHANS AND TRANSGRESSING ON PROPERTY author: Wu Shu-chai

女受分

(CMC 7/236-37)

Women Recieving Shares

THE WOMAN SHEN AND KAO WU-ERH 高 五 二 （ “Fifth-second” ） DISPUTE OVER REVENUE GRAIN author： Wu Shu-chai

(CMC 7/238-39)

Contents of the Translation

47

Posthumous Births

遺腹

FALSE CLAIM OF ILLEGITIMATE DESCENT AND ATTEMPT TO REJOIN THE FAMILY author: Yeh Yen-feng (CMC 7/241-42)

Foster Sons

義于 A FOSTER SON

268

{Utzu 義子）TAKING AWAY PROPERTY (ch’in-tzu 親子）

FROM A NATURAL SON author: n.a.

(CMC 7/242-43)

立繼類

Establishing Heirs

THE HOUSEHOLD HEAD SHOULD DETERMINE WHO IS TO BE HEIR author: Ts’ai Chiu-hsiian

(CMC 8/244)

AN ADOPTED CHILD RAISED DURING ONE’S LIFETIME author: Chao Yung-chai 趙 庸 齋 （ CMC 8/245) AN UNCLE WHO URGED A MOTHER NOT TO ESTABLISH AN HEIR, SO THAT HE COULD TAKE OVER THE PROPERTY author; Hu Shih-pi

(CMC 8/246-47)

274

A FALSE ACCUSATION BY A KINSMAN AGAINST AN HEIR OF APPROPRIATE GENERATION author: Weng Hao-t*ang (CMC 9/247)

戶絕

Extinct Households

A WIDOW CARING FOR A SON SHOULD NOT BE CLASSIFIED AS AN EXTINCT HOUSEHOLD author: Judicial Commissioner Yeh

歸宗

(CMC 8/272-73)

Returning to the Descent Line

A SON AFTER FOLLOWING HIS MOTHER IN HER RE-MARRIAGE SHOULD RETURN TO HIS OWN DESCENT LINE (OR COMMON DESCENT GROUP) author: Ts’ai Chiu-hsiian

(CMC 8/274-75)

282

AN ADOPTED HEIR WHO BEHAVED IMPROPERLY IS ORDERED TO RETURN TO HIS OWN DESCENT GROUP author: Weng Hao-t'ang (CMC 8/276)

284

48

Contents of the Translation Division [of Property]

分析

MARRIED-IN HUSBANDS DO NOT PARTICIPATE IN THE DIVISION OF THE FAMILY PROPERTY OF THEIR WIVES author: Liu Hou-ts’un

檢校

(CMC 8/277)

Auditing (for Trusteeship)

INFRINGEMENT ON AUDITED PROPERTY TO BE TRIED UNDER THE LAW ON ILLEGAL TAKING OF COURT-SEALED PROPERTY author: Hu Shih-pi

孤幼

(CMC 8/280-82)

Young Orphans

COUSINS IN THE SAME TRADE OUGHT TO SHARE THEIR WEALTH author: Ts’ai Chiu-hsiian

(CMC 8/283-84)

PROPERTY SEIZED BY THE FAMILY TEACHER TO BE RETURNED UNDER SUPERVISION author: n.a.

(CMC 8/285)

女承分

Women Inheriting Shares

DISPOSITION OF THE LANDED PROPERTY INHERITANCE OF FEMALE ORPHANS author: Fan Hsi-t’ang

(CMC 8/287-89)

遺 囑 Wills FALSELY CLAIMING THAT THERE WAS A WILL SO AS TO MAKE A SHOW OF MOURNING AT A FUNERAL author: Ts’ai Chiu-hsuan

(CMC 8/289-90)

SEVERAL NEPHEWS DEMANDING SUBSIDIES ACCORDING TO A WILL author: Fan Hsi-t’ang (CMC 8/291-92)

別宅子

Sons Raised Elsewhere

LACK OF EVIDENCE FOR A CLAIM author: Fan Hsi-t’ang (CMC 8/293-94)

Contents of the Translation 義子

Foster Sons

MISCONDUCT THROUGH DISOBEDIENCE TO A MOTHER author: Ts’ai Chiu-hsuan

違法交易

(CMC 8/294-95)

Illegal Transactions

SELLING FAMILY PROPERTY AFTER HAVING BECOME HEIR IN ANOTHER FAMILY author: Ts’ai Chiu-hsuan

(CMC 9/297-98)

A JUNIOR DISPUTING A PROPERTY SALE BY HIS NATURAL FATHER author: Ts’ai Chiu-hsiian

(CMC 9/298-99)

CLANDESTINE SALE OF FAMILY PROPERTY PRIOR TO FAMILY DIVISION author: Weng Hao-t’ang

(CMC 9/303-4)

INSTIGATING AND TEMPTING A WIDOW TO SELL ILLEGALLY THE PROPERTY OF HER LATE HUSBAND author: Weng Hao-t’ang

取贖

(CMC 9/304-5)

Redemption after Conditional Sales

REDEMPTION AFTER CONDITIONAL SALES SHOULD BE IN CASH, PAPER CURRENCY, OR HALF IN EACH, ACCORDING TO THE PATTERN OF THE ORIGINAL TRANSACTION author: Hu Shih-pi

(CMC 9/311-12)

REFUSAL OF REDEMPTION AFTER CONDITIONAL SALE BY DOCTORED CONTRACT author: n.a.

(CMC 9/314-15)

CREDITOR DELAYING UNTIL COURT IS IN RECESS author: Hu Shih-pi

(CMC 9/317-18)

墳 墓 Graves SURREPTITIOUS BURIAL author：n.a.

(CMC 9/328-29)

Contents of the Translatiori

50 墓木

Graveyard Woods

DONATING WOOD FROM A GRAVEYARD TO A MONK author: Ts’ai Chiu-hsiian

(CMC 9/330)

327

*

DEATH CAUSED BY A FIGHT OVER GRAVEYARD WOOD author: Ts’ai Chiu-hsiian

賃屋

328

(CMC 9/330-32)

Rental Houses

UNAUTHORIZED CONSTRUCTION ON A RENTAL HOUSE author: Hu Shih-pi

331

(CMC 9/334-35)

Pawnshop Capital

庫本錢

INTEREST ON CAPITAL AT PAWNSHOPS DIFFERS FROM THAT ON PRIVATE DEBTS author：Hu Shih-pi

爭財

333

(CMC 9/33&-37)

Disputes over Money

DEBTORS TRULY UNABLE TO PAY TO BE RELEASED FROM INVESTIGATIVE DETENTION author: Hu Shih-pi

婚嫁

(CMC 9/338-39)

1

335

Marriage

SURREPTITIOUSLY MARRYING AN ALREADY MARRIED DAUGHTER author: Ts’ai Chiu-hsiian

336

(CMC 9/343-44)

BRIDAL FAMILY’S RETRACTION

. ,

AFTER THE EXCHANGE OF ENGAGEMENT CARDS author: Liu Hou-ts'un

338

(CMC 9/346-48)

SETTLING DISPUTED MARRIAGES author: Liu Hou-ts’un

離婚

341

(CMC 9/348-49)

Divorce

*

ILLEGAL MARRIAGE OF A DIVORCEE author: Weng Hao-t'ang (CMC 9/352-53)

接腳夫

343

Summoned-in Husbands

A PREVIOUSLY MARRIED WOMAN SEEKING TO CONTROL PROPERTY THAT HAD BELONGED TO HER FORMER HUSBAND

author: Liu Hou-ts*un (CMC 9/353-56)

345

Contents of the Translation 雇賃

51

Employees

LEGAL PROHIBITION AGAINST AN OFFICIAL’S BUYING HUMAN BEINGS author: Ts’ai Chiu-hsiian

人倫

(CMC 9/357)

351

Part 5. Human Relationships 父子

Fathers and Sons

尤SON WHO IS NOT COMPLETELY FILIAL SHOULD BE TRANSFORMED THROUGH EDUCATION author: Ts’ai Chiu-hsiian (CMC 10/359)

母子

Mothers and Sons

MOTHER AND SON MUTUALLY ACCUSING ONE ANOTHER WITH REGARD TO A FAMILY INHERITANCE

朽ithor: Ts’ai Chiu-hsiian (CMC 10/360) READING THE

CLASSIC OF FILIAL PIETY t

author: Ts’ai Chiu-hsiian

(CMC 10/360)

A SON WHO HAS BEEN REBELLIOUS AGAINST HIS MOTHER AND ELDER BROTHER OVER A PROPERTY DISPUTE MAY TENTATIVELY BE FORGIVEN BUT IS SUBJECT TO RETROACTIVE SENTENCING IF HE DOES NOT CORRECT HIMSELF author: Hu Shih-pi

(CMC 10/362)

NOT PUNISHING A SON SUED BY HIS MOTHER BECAUSE SHE STILL LOVES HIM author: Hu Shih-pi

兄弟

(CMC 10/363)

Brothers

DISPUTE BETWEEN BROTHERS author: Ts’ai Chiu-hsiian

(CMC 10/366-67)

LAWSUIT BETWEEN BROTHERS author: Hu Shih-pi

(CMC 10/366-67)

BROTHERS DISPUTING OVER PROPERTY author: Liu Hou-ts’un

(CMC 10/374-75)

■

Contents of the Translation

52

REQUIRING RELATIVES AND FRIENDS TO HELP RESOLVE THE DISPUTE BETWEEN BROTHERS OVER THEIR FATHER’S BURIAL author: (pseudo.) T’ien-shui 天 水 （ CMC 10/376-77)

夫婦

Husbands and Wives

A WIFE WHO HAS BEEN DISOBEDIENT TO HER HUSBAND AND PERVERSE TO HER FATHER-IN-LAW IS TO BE PUNISHED AND A DIVORCE IS TO BE PERMITTED author: Hu Shih-pi

(CMC 10/379)

HUSBAND WISHING TO DIVORCE HIS WIFE ON THE SLANDEROUS PRETEXT OF ADULTERY author: Hu Shih-pi

孝

(CMC 10/380-81)

K lial Piety

ENCOURAGEMENT OF A FILIAL SON AND PUNISHMENT OF AN UNFILIAL SON author: Chen Hsi-shan (CMC 10/383-84) SAVING A MOTHER BY CUTTING ONE’S OWN FLESH author: n.a.

(CMC10/385)

不孝

Unfiliality

A SON SUED BY HIS MOTHER IS TO BE PUNISHED AND WILL BE PUNISHED MORE SEVERELY IF HE DOES NOT REFORM author: Hu Shih-pi

(CMC 10/386)

SLANDEROUS ACCUSATION OF KINSHIP MEMBERS AFTER FAILURE TO PROVIDE FOR A GRANDMOTHER AND FOR BURYING HER author: Fang Ch ， iu-yai

(CMC 10/386-87)

亂 倫 Incest DIVORCE ORDERED TO BE PERMITTED BECAUSE OF A LAWSUIT OVER ALLEGED INCEST author: Hu Shih-pi

(CMC 10/388-89)

Contents of the Translation 叔娃

Uncles and Nephews

NEPHEW SUED BY HIS AUNT FOR HAVING DAMAGED A FARMHOUSE author: Hu Shih-pi

(CMC 10/390-91)

UNCLE AND NEPHEW IN A PROPERTY DISPUTE TO LISTEN TO INSTRUCTION AT THE SCHOOL author: Hu Shih-pi

宗族

(CMC 10/391)

Kinship Groups

RICH MEMBER HUMILIATING A POOR KINSHIP GROUP HEAD author: Ts， ai Chiu-hsiian

(CMC 10/392)

ACCUSATION OF A THEFT BY A KINSMAN author: Fang Ch'iu-yai

鄕里

(CMC 10/393)

Community

PERSUADING NEIGHBORS TO SETTLE DISPUTES IN HARMONY author: Hu Shih-pi

Part 6.

人品

宗室

(CMC 10/393-94)

Categories of Persons

Imperial Clan Members

GUILTY IMPERIAL CLAN MEMBER SENT UNDER GUARD INTO CUSTODY AND HIS GANG BANISHED author: Wu Yu-yen 吳 雨 巖 （ C^IC 11/398-99)

士人

Scholars

A SCHOLAR SUMMONED TO TAKE AN EXAMINATION author: n.a.

(CMC 11/404)

SCHOLAR WORKING AS A TAX AGENT author: Ts’ai Chiu-hsiian

(CMC 11/404-5)

54

Contents of the Translation 僧道

Buddhists and Taoists

MONK SLANDERED BY AN IMPERIAL CLAN MEMBER author: Ts’ai Chiu-hsuan

(CMC 11/405)

391

A DISPUTE OVER AN ABBOTSHIP author: Ts'ai Chiu-hsuan

(CMC 11/406)

392

GUEST MONKS HAVE BROUGHT DISORDERLY ACCUSATIONS SEEKING TO SPLIT OFF A HALL FROM THE KAI-FU TEMPLE author: P’eng Ts’ang-fang 彭 倉 方 （ CMC 11/407-8)

牙僧

393

Brokers

PUNISHING A BROKER AND HIS SON FOR THE CRIME OF CHEATING author: Hu Shih-pi

(CH'I-MAN 欺瞞）

(CMC 11/409-10)

398

公 吏 Clerks HARMING PEOPLE BY VIOLATING THE LAW author: Ts’ai Chiu-hsuan

(CMC 11/412-13)

400

TEN “TIGERS” INJURING THE PEOPLE author: Ts’ai Chiu-hsiian

(CMC 11/413)

CONVICTS SERVING AS CLERKS UNDER FALSE PRETENCES author: Ts， a i Chiu-hsiian

402

,

(CMC 11/414)

404

FORGING AN OFFICIAL RED-COLORED SCRIPT author: n.a.

(CMC 11/422)

405

PROTECTING A WICKED TOWNSHIP SCRIBE author: Wu Yu-yen

(CMC 11/424)

406

DECISION OF A JUDICIAL COMMISSIONER (ON A CLERK AND A MINOR OFFICIAL) author: Hu Shih-pi

(CMC 11/431)

407

FORMER CHIEF CLERK OF NAN-KANG IMPERSONATING A MAN OF COURT RANK author: Liu Hou-ts， un

(CMC 11/432-33)

409

CLEVER CORRUPT CLERKS TO BE BANISHED AS A WARNING TO THE REST

author: n.a. (CMC 11/433-35)

000

Contents of the Translation

55

Soldiers

軍兵

BECAUSE ARCHERS AND LOCAL SOLDIERS HAVE DISTURBED THE RURAL PEOPLE THEY ARE FORBIDDEN TO GO INTO THE COUNTRYSIDE EXCEPT WHEN SENT ON URGENT MILITARY MISSIONS author: Hu Shih-pi

(CMC 11/438)

414

Borough Patrollers

廂巡

A RESTRICTION FORBIDDING BOROUGH PATROLLERS TO ABUSE AND ARREST ORDINARY PEOPLE WITHOUT AUTHORIZATION author: Hu Shih-pi

(CMC 11/439)

415

廂 牢 Jails REPAIRING THE BOROUGH JAIL author: Hu Shih-pi (CMC 11/439-40)

懲惡

Part 7.

察穢

417

Chastizing Evil

Adultery and Obscenity

FORCIBLE r a p e

>

author: Ts’ai Chiu-hsuan

(CMC 12/441)

(

419

BUDDHIST FUNCTIONARY DETAINED SOMEONE’S WIFE AND ACCUSED HER HUSBAND OF BEING A THIEF author: Weng Hao-t’ang

(CMC 12/445)

420

AN ADULTEROUS CLERK author: Liu Hou-ts’un

(CMC 12/446-47)

422

A BRIBED INVESTIGATOR MAKING NO REAL EFFORT TO FIND A SOLDIER’S MISSING WIFE author: (staff of) Wu 婺 prefecture (present-day Ch'in-hua in Che-chiang)

誘略

(CMC 12/449-50)

424

Seduction

SEDUCING SOMEONE’S MAID FOR EMPLOYMENT OR SALE

pthor: n.a. (CMC 12/451)

令

427

Contents of the Translation

56

豪橫

Violence and Tyranny

VIOLENCE AND TYRANNY author: Ts’ai Chiu-hsiian (CMC 12/457-58)

429

VIOLENT MEN AND CORRUPT CLERKS TO BE PUNISHED ARE TWO SEPARATE MATTERS author: Wu Yii-yen (CMC 12/460-61)

430

DRAFT BY THE LEGAL RESEARCHER author: n.a.

(CMC 12/466)

432

NONPAYMENT OF TAXES, ARBITRARY OPPRESSION, HIDING ESCAPEES, AND THREATENING OFFICIALS author: Hu Shih-pi

(CMC 12/470-71)

434

MOTHER AND SON VIOLATING THE LAW AND COMPOUNDING EVILS author: Liu Ssu-ch’eng 劉 寺 丞 （ CMC 12/471-73)

把持

435

Usurping Control

A DEVILISH LAW TRICKSTER author: Ts， a i Chiu-hsiian

(CMC 12/473-74)

440

SPECIALIZING IN USURPING CONTROL TO CHEAT THE GOVERNMENT IN VIOLATION OF THE LAW author: Weng Hao-t’ang (CMC 12/474)

441

RELYING ON PRESTIGE TO USURP DISTRICT ADMINISTRATION author: Hu Shih-pi

(CMC 12/475)

443

FIRST PRIORITY IS TO PUNISH INSTIGATORS author: Hu Shih-pi

譁徒

(CMC 12/478-79)

444

Agitators

FORGING OF OFFICIAL DOCUMENTS author: Ts’ai Chiu-hsiian (CMC 13/482-83)

445

AGITATORS INDULGING IN UPSIDE-DOWN TRICKS AND CRISSCROSS MANEUVERS author: Ma Yii-chai 馬 裕 齋 （ CMC 13/484-85)

448

吿言于 Accusations FALSE ACCUSATIONS

author: Ts’ai Chiu-hsiian (CMC 13/485)

450

Contents of the Translation

57

COACHING SOMEONE TO BRING A SLANDEROUS CHARGE OF HAVING CAUSED DEATH author: n.a.

(CMC 13/490)

451

UNCLE ACCUSING A NEPHEW OF POISONING HIS OWN FATHER AND ALSO OF HAVING FATHERED A BABY BORN DURING THE MOURNING PERIOD author: Hu Shih-pi

妄訴

(CMC 13/493)

453

False Litigation

NO REDUCTION OF PUNISHMENT FOR FALSE ACCUSATION OF PLUNDERING BY THE COMMON PEOPLE author: Hu Shih-pi

(CMC 13/497-98)

454

FALSE ACCUSATION ON ACCOUNT OF A DAUGHTER’S DEATH author: Wu Yii-yen (CMC 13/498)

456

MALICIOUS FALSE LITIGATION AND MISTREATMENT OF A WIDOW AND ORPHAN ^uthor: Controller-general of Chien(-yang) (present-day Chien-yang in Fu-chien)

拒追

(CMC 13/504-5)

457

Resistance to a Summons

ENCLAVE PEOPLE RESISTING A SUMMONS BY HIDING IN DIFFICULT TERRAIN author: Hu Shih-pi

(CMC 13/506-7)

459

誕束員 Fraudulent Accusations USING SOMEONE’S DEATH AS A BASIS FOR FRAUDULENT ACCUSATIONS author: Ts’ai Chiu-hsiian

(CMC 13/508)

462

FRAUDULENT ACCUSATION AFTER AN UNCLE’S DEATH FROM UNKNOWN CAUSES author: Hu Shih-pi

(CMC 13/508)

463

A COUSIN’S FRAUDULENT DEMAND FOR PROPERTY ALLEGEDLY BELONGING TO HIS DEAD BROTHER author: decision by the staff of the stabilization fund supervisor (CMC 13/515)

464

58

Contents of the Translation 蔡惡

Outrageous Crimes

MURDER AND ARSON author: Ts'ai Ch'iu-hsuan

(CMC 14/523)

,

VIOLATING A FISH-SAVING POND AND ITS SACRED PAVILION author: Ts'ai Chiu-hsiian

(CMC 14/524)

假 僞 Fraud FAKE MEDICINE author: Hu Shih-pi

鬥毆

(CMC 14/528-29)

Assaults

COMPETITION IN SELLING FISH RESULTED IN ASSAULTS author: Weng Hao-t’ang (CMC 14/529)

賭博

Gambling

'

THE PROHIBITIONS AGAINST GAMBLING

'

ARE BASED ON REASON author: Fang Ch’fu-yai

(CMC 14/533)

r

GAMBLERS WHO CONFESS AND TURN INFORMER RECEIVE ONE HALF OF THE REWARD MONEY author: Hu Shih-pi

宰牛

(CMC 14/533)

Slaughtering Oxen

,

BAN ON KILLING OXEN TO BE FULLY ENFORCED author: Hu Shih-pi

妖敎

(CMC 14/534)

Devilish Teachings

SPREADING DEVILISH FAITH AT A LOTUS HALL author: Ts’ai Chiu-hsiian

淫祠

(CMC 14/535-36)

Licentious Temples

PLOT TO PRESERVE A LICENTIOUS TEMPLE FOR WICKED GAIN author: Hu Shih-pi

(CMC 14/543-44)

,

Contents of the Translation Licentious Worship

淫總

ORDER THE CIRCUIT TO BAN HUMAN SACRIFICES TO DEMONS author: n.a.

(CMC 14/545-46)

Swindlers

誑惑

LIU LIANG-SSU 劉良思 USURPING THE ROLE OF A TEMPLE SUPPLICANT author: n.a.

(CMC 14/546)

Witchcraft

巫親

JUDICIAL COMMISSIONER’S REMANDING OF THE CASE OF TS’AO WAN-SHENG'S 曹萬勝 CHARGING TS’AO CHIU-SHIH 曹九師 WITH FORBIDDEN ACTS author:

Fan Hsi-t’ang

(CMC 14/548-49)

Trafficking in Living Persons

販生口

BAN ON SELLING LIVING PERSONS author: Wu Yu-yen

匿名書

(CMC 14/549-50)

Anonymous Writings

EXPLANATION ATTACHED TO ANONYMOUS PLACARD author: Weng Hao-t*ang

競渡

(CMC 14/550-51)

Causing Fear at Ferries

THIRTEEN DEATHS RESULTING FROM A BOAT RACE author: Ts’ai Chiu-hstian

霸渡

(CMC 14/551-52)

Being Tyrannical at Ferries

TYRANNY AT A FERRY author: Ts， a i Chiu-hsiian

(CMC 14/553)

Part 1 Officials r

Official matters

J It perhaps reflects the author’s assessment of his potential audience that he opens his work with a section concerned largely with official ethics, good and bad, and the appropriate responses of superiors. This section appears to consist largely of materials not drawn from judg­ ments (shu-p， an 書判) . Rather it contains official messages and in­ structions from superiors to their staffs, beginning (in section 1) with praise, blame, and warnings, and going on in the second section to portray instances of appropriate official responses to a selection of problems. These pieces are of especial interest as a corrective to historians， tendency to focus on the higher levels of government, especially the central government. Such a focus distorts our picture of traditional Chinese reality. The imperial administration was elaborately designed, and subject to a plethora of rules. There is a great temptation to as­ sume that any bureaucratic structure so intricately built must have exercised significant and effective control over the governed. The including in particular these pieces materials in the Ch,ing-ming chi， on governance, can serve as a salutary reminder that local govern­ ment was a matter of continuous negotiation between the so-called governed and the officials, mediated through groups of people, clerical personnel, village officers, and local notables, who were by no means fully committed to the goals of the administration. We should remem­ ber that the lowest major center of civil service administration in the Sung was the district, a unit whose population could range from a few thousand households, each probably with an average of about five

61

62

Officials

persons, to many tens of thousands of households. These districts were often sizeable regions and all were tied together by premodern transportation and communication systems. The district magistrate was supported by, at most, about four civil service subordinates. To exercise any degree of control at all required the use of non-civil ser­ vice subordinates who outnumbered the formal officials by a factor of perhaps a hundred to one. This clerical and service level of the local government was staffed by men who were stereotyped by their civil service superiors as incorrigibly yenal. These men made the more ethical among the civil servants deeply uneasy since they combined bureaucratic skills, legal knowledge, and local contacts with an absence of Confucian indoctrination. And beyond this clerical level of admin­ istration, in the world outside the office walls, the administration had to rely on the support of axi even larger number of generally uncompen­ sated village officers serving only because they had been drafted. Clerks and village officers by no means saw eye to eye with the civil service officials in their views of what was proper and what was important. One result of this was the tendency, in fact if not in theory, for local administration to stay out of most aspects of people’s lives. Another result was a penchant, among the more energetic and concerned offi­ cials, on the one hand to pay special attention to the quality of their subordinates and on the other to foster attempts to improve local behavior through the use of rewards and the manipulation of sym­ bols. Qnly with truly effective subordinates was there any hope at all of influencing local life; only by inducing local people to change their own ways could pfficials hope to “improve” the quality of local life, that is to make local life correspond more closely to the norms at least verbally supported by the elite. * *

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Admonitions DISPATCH TO PREFECTURAL CONTROLLERS GENERAL (rung-p’an 通判p AND ALL SECTIONAL OFFICIALS2 author：Chen Hsi-shan (眞西山)3 w This piece， although lengthy, appears to be.rather simple in its intent. /The writer, presumably 技 newly arrived circuit Commissioner serving concurrently as the prefect ofthe prefecture where hi^ commissioner's 5广gffice had its headquarters (apparently a rather common practice in the Southern Sung), is sending a message to his subordinates about his priorities and about the sorts ofproblems which will attract his parti.cular attention. He notes that he has already issued a public statement of his views. At this time such a public notice would have been posted 'at conspicuous places for all to read. He then goes on to say that the achievement of his goals is the responsibility of his subordinates and warns them about certainundesirable behaviors. The general categories 1 are predictable to anyone familiar with the working ofbureaucracies— disdain for clients, impatience, laziness, bias, inattention to.theirduties, i^Jack of kindness and sympathy, and a^tendency toward using office for : personal gain. It is worth noting that when he passe自 on fo-listing -specific problem areas, seven of the ten concern inappropriate judicial •actions, two deal with oppressive fiscal practices, and one with the failure to use subordinates in an appropriate way (so that they were in a position to abuse the people). The author also states some of the ^fundamental premises of Chinese views of governancethat human nature isan unchanging given, tJhat leadership (and the education that . results from its proper exercise) is a matter of example, and thaf bpen arid honfest commuhication is fundamental to propef- administration.

^ a mediocre and feeble person mistakenly given a trust by an Imperial jorder I am anxious day and night about how I might deserve the^grace of the Imperial Court and fulfill the expectations of the local literati and common people.4 The only way to accomplish this task would be to rely upon the cooperative efforts of the officials. This is why I dare to make known to you what is on my m in d ..

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The foundation of good government, I have heard, puts priority on the transformation of customs and on cultural influences. Here in T’an Prefecture 澤 州 [an area centering on the modern Ch， ang-sha in Hu-nan Province] the local customs have long been reputed to be pure like those of antiquity. Travelling through the countryside re­ cently I observed how the people, plain and sincere, have a style close to that of ancient times. It shows that what earlier people said in praise of this place was no exaggeration. My hope now is to promote these good customs and make them excellent. The essay of exhortation I have composed and posted for public notice aims to encourage filial piety5 and brotherly conduct, reinforce cordiality in kinship and neighborhood relations, and permit unfortunate offenders to reform themselves (tzu-hsin 自新)6 so that they will not remain mired in their old bad practices. As to the pro­ motion of these ideals and their realization among the people, these are the responsibility of the magistrates and their associates.7 From now on it is to be hoped that whenever local people raise some issue before a government office, the officials will not mind its being tedious but will patiently give explanations, impressing the people by being completely sincere. Maintaining such an attitude over a long time will inevitably promote virtuous conduct. If among the people individuals are known for the purity and extent of their filial piety, much renowned for their brotherly love, or widely admired for either the harmony of their kinship relations or their charitable deeds in the community, the officials are hereby asked to gather the facts and report them to the prefecture so that these people may be highly commended as a way of encouraging praiseworthy behavior.8 With regard to lawsuits (sung 訟)， one should be especially attentive to proper status and good social customs. Long ago the academician Ch， en Hsiang 陳 襄 （ 1017-1080)， 9who was serving as the magistrate at Hsien-chu District 仙 居 [present-day Hsien-chu in Che-chiang], taught people how to be just as fathers, benevolent as mothers, kind as elder brothers, and respectful as younger brothers. The population was persuaded and transformed by him. People, past and present, have the same nature endowed by Heaven. How then could something which was accomplished in the past (by Mr. Ch， en) not be capable of being accomplished nowadays? Be sure not to treat the people disdainfully; then the people them­ selves will not be able to endure treating themselves in a disdainful manner. This is what I expect of my colleagues. However, if we have

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not done the utmost in rectifying ourselves and the people are not convinced of our concern for them then they may not follow us, in spite of our instructions and notices. This is w h y I wish m y colleagues to join me in exhorting ourselves to do four tasks and at the same time to get rid of ten practices that are injurious to the people. What are the four tasks? The first is to discipline oneself in finan­ cial integrity. For someone known as a scholar-official even a hundred percent financial honesty is but a small merit Yet one speck of corrup­ tion is a major demerit A corrupt official, covered by filth, even if he has other good qualities, cannot redeem himself. This is why among the four tasks this is the very first The second task is to console the people by means of benevolence. Administrators should embody the kindness ofHeaven and Earth, which promotes the growth ofall things as well as the love ofparents for infants. To perform the slightest act motivated by cruelty or resentment is to be nonbenevolent The third task is always to be fair-minded. The classic Tradition of Tso says, “Fairness begets clarity. ” Once selfish motives arise, right and wrong will change places and it will no longer bepossible to treat the matter according to principle. The fourth task is to work diligently. When an official does not apply himself，even if only for a day, someone below will inevitably suffer from his default The ancient sages and worthies went so far as forgetting to eat supper or getting up before dawn. One can imagine how hard they worked the rest of the time. Yet at present people scorn those who work hard on administrative matters as being mundane and call elegant and charming those who enjoypoetry, wine, and banquets. We should realize that this is why the administration has many defects and why the people suffer so much. What are the ten injuries? The first is injustice in criminal case sentences. Criminal case sentencing affects peoples，lives. How could it be possible to permit even the slightest crookedness or partiality? The second is poor judgment in hearing lawsuits. In lawsuits there is both the true and the false. I f there is poor judgment in hearing them then the truth may be dismissed and the falsehoods accepted. Can care­ lessness bepermitted? The third is allowing people to languish in jail.10 A single man in ja il destroys the livelihood of his whole family. Every day he suffers in the cell torments him as if it were a year. How is it permissible to let it go on for a long time? The fourth is tolerating cruel corporal punishment. Punishment is only a last resort The body that suffers it is just like one’s own body. How can one bear to inflict cruelty upon it? At the present time many officials administer punish­

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ment according to their own moods. In the worst cases they do so because they have been bribed. They forget that punishment comes from the law of the state,vjhich, on behalfof Heaven, corrects offenses,11How is it permissible for officials either to vent their own anger or to pursue selfish interests? Such things must be forbidden. The fifth injury is widespread use of summons to detention.12Going after one man causes panic in his whole family. Being brought in under escort costs him something; remaining at the government quarters likewise. This drives poor families into debt. Some of them become bankrupt. Is it permis­ sible to make such a practice widespread? The sixth is the inviting of accusations (kao-chieh 考言干).Accusations lead to the deterioration of customs and social relations. While offenders naturally should be strictly punished, how is it permissible to invite people to lodge accusa­ tions ?At the present time some officials will accept sealed plaints that make accusations f without anyone’s being aware of these plaints) or they will postpublic notices calling on people to expose crimes commit­ ted in secrecy. Such are not lawful practices and should not be done. The seventh is to issue repeated demands for tax payments. Tax rev­ enues are deriued from the land. In one year they are collected once. Is it permissible in.one year to collect taxes again ? I f someone owes taxes and does notpay them, this is an offence by his household. However，to have collected thetrt,once and again to seek to collect them, whose offence is,this?^ At tKe present time some prefectures and districts that have alrecMy taken in taxes fail to issue tax receipts or, if they do provide receipts,\fail to register the payments in a tax book. The taxpayers may then be summoned again to the government office where they will have to pay for a new tax receipt How troublesome that is! In the worst cases, the previous tax. receipt is simply ignored and the trouble will notbe over until the same tax is collected for a second time. This often leads to family bankruptcy, loss of all properties, and even the selling of wives and children into bondage. How could anyone with a conscience do such things ?13The eighth is the imposing of fines to generate reve­ nues. The government should not take anything from the people beyond the two tax payments in spring and autumn. At the present'time many districts have a policy ofimposing fines and even unlawfully add various other levies. All these abuses hurt the people deeply and must be elimi­ nated. The ninth is sending clerks (li 吏）into the countryside. Humble villagers fean the clerks like tigers• Sending such personnel into the countrysideds like letting tigers out of their cages. Similarly archers (kung-shou 弓手A14and local soldiers (t9u-ping 土兵)15are especially

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67

i/i need of restraint They should not be sent out except when going to arrest bandits. The tenth is the buying of goods at reduced prices. Identical items should have identicalprices. Whether they avepurchased by the public authorities or privately should make no difference. At presentprefectures and districts have so-called “offices of market directors” (shih-ling ssu 市令司).16They also have the so-called [licensed] guild merchants. When the government buys through such agencies it pays twenty or thirty percent less than the market price. Sometimes it does not pay immediately. In the worst cases it fails to pay at all. How can the supplying households endure such treatment? I, being humble, dare not but to redouble my efforts with regard to the four tasks. There are of course worthy colleagues who have always known how to exert themselves without being told to do so. Yet are there not some colleagues who know what ought to be done but are unable to bring themselves to do it? The classic Tradition of Tso says, “When faults are not corrected then they are truly faults.” It also says, “Who claims that it is hard to be virtuous? Making efforts will get one close to it_” The distinction between worthy and unworthy lies in making or not making the effort. In the days ahead I will use this as the yardstick in career recommendations17and in evaluating my colleagues.18 Whether some of the Ten Injuries exist in this area or not is not yet entirely clear to me. If perchance they should exist, we ought to approach them as we would the task of saving someone who is drown­ ing or putting out a fire, losing no time at all, and being neither mired in old customs nor hindered by consideration of private interests. If the matter concerns the prefecture you ought to inform and consult one another, sparing no effort until the grievance of the people has been removed. This is what I expect from you, my colleagues. I also wish to raise another point. Prefects19and district magistrates are basically like members of the same family. Ranldng officials and subordinates are parts of the same body. If a superior officials arro­ gant in manner and too self-pleased then he will fail to communicate with those below him. They in turn will deyelop a passive attitude and remain silent without bothering to keep him informed. With such barriers between the high and the low and the absence of information on what is right and what is wrong, how would it be possible to cope with administrative defects and the people’s hidden complaints? Centuries ago Chu-ko Wu-hou 諸 葛 舍侯 [i.e_，Chu-ko Liang 161234], in setting up his office of governor in the Ssu-ch’uan region,

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made his first priority the creating of consensus so as to obtain honest and helpful opinion on a broad basis. While incapable of serving as well as he did, my lifelong ambition is to keep an open mind without egotism and to welcome good advice. From now on I wish you would tell me what I should know about this circuit,20its good as well as bad features. I also wish you would tell me which of my actions are unrea­ sonable or do not agree with local custom. Any appropriate advice will be respectfully followed. If I have not yet followed it, please go over it again and again. This is for the people of the nine prefectures around the Tung-t’ing Lake21and the Hsiang River valley.22They will be grateful to you for your help and I will thank you for reducing the number of my errors. This is an honest communication. If you under­ stand this, it will be most fortunate. This dispatch is to be sent to the prefects, prefectural controller-generals, and to the officials and sub­ ordinate officials of the varitms sections.

Rebukes THE FILES OF CIRCUIT COMMISSIONERS23 OUGHT NOT TO BE DEMANDED24 author: Ts’ai Chiu-hsiian 蔡久軒25

This piece appears to have been written when Ts’ ai Chiu-hsuan was serving as a circuit commissioner, probably a judicial commissioner. A colleague serving as the acting fiscalcommissioner ofthe circuit appar­ ently had written demanding certain legal case files. Ts’ ai first makes itvery clear that commissioners were not hierarchically subordinated. They *could request assistance from their fellow commissioners, but they could'not order them about. Although matters of marriage and landed property were not ordinarily in the purview ofjudicial commis­ sioners (like him), Ts’ ai had previously accepted some cases because the parties involved lived close to his offices but far from those of the legallyappropriate commissioner, the fiscal commissioner. (As a matter of policy Sung circuit commissioners were usually headquartered at different prefectural seats in their circuits.) W e apparently have here

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an example of a turfwar. The fiscal commissioner in question, a figure of considerable consequence whose amour propre was affected,*seems to have been miffed when his colleague, Ts’ ai Chiu-hsuan, decided cases on fiscalmatters. Hence, we suspect, this imbroglio. When the demands of his colleague arrived, Commissioner Ts’ ai attempted to comply, but, in seeking to justify his actions, felt it appropriate to inform his col­ leagues, including the fiscal commissioner whose demands provoked his response, about his reasons and his own stature.

Except when an order has been issued by the Imperial Court, the censorate，or a ministry, the files of one of the various circuit commissioner’s offices can be made available to the other circuit commissioner’s offices of the same circuit only according to the prece­ dent (li 例）used for loans.26They may not then be taken as if it was a question of dealing with subordinate prefectures and districts. After my arrival in this territory last winter I accepted certain plaints in lawsuits concerning marriage and landed property. This was because I took into consideration the distance, the parties being far away from the office of the [appropriate] commissioner. And all I did was to hasten the taking of proper measures by the prefectures and districts. Among them were a few cases that had not been settled be­ cause my predecessor, although he had sent for the parties and detained them for a long time, did not act on the cases. I had no choice but to settle them without meaning to infringe upon other jurisdictions. Although the Imperial Court appoints separate offices with their re­ spective duties, their functions to save the people are the same. When there is fire or drowning, how can one refrain from saving the victims? Recently the office of a circuit commissioner demanded the records in the case of Shao Yuan-yu 邵元笠. On seeing that the opinion be­ hind the demand seemed out of the ordinary, I accordingly passed on the information in my office and ordered my subordinates to submit their files，while cautioning the clerks to hasten the transmission. Nevertheless, my humble office is an office that exists because it was properly established by the state. My prestige and my qualifications may be lowly. Still, the basic procedures of the government may not be disregarded. As I formerly said with a sigh, the military staff of the area com-. mand (tu-tsan 督晋)，the reader-in-waiting (shih-tu 侍讀)， 27who has the title of supervisor of the ministry (p’an-pu shang shu 判部尙書)， 28

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as important as he is, should not take over concurrently the duties of circuit fiscal commissioner. Even if he were to assume those duties concurrently，he must not disregard the law of the court. In addition to what has already been reported up concerning the military staff of the area command, I have also notified the fiscal commissioner.

CARELESS REPORTS FROM PREFECTURAL OFFICIALS29 author：not available

The official writing this rebuke was probably a judicial commissioner. He was concerned because a homicide case had been forwarded to his office without an accompanying report from the prefect of the prefec­ ture involved and indeed without even an impression of the prefect’ s seal. The author is at some pains to make clear that he cannot deter­ mine whether the error resulted from the inaction ofthe prefect or the choice ofhis subordinate, the controller-general, not tobring the matter to the prefect’ s attention. (We should note that the controller-general was the official in charge ofjudicial matters in a prefecture but at the same time was directly subordinate to the prefect.) He goes on to point out that when he was serving in a subordinate position he always signed such documents before they passed on to his superiors and indicated his position. He allows both the controller-general and the prefect to sidestep the question of responsibility but he does makes itclear that the controller-general must i-eplyimmediately about the situation. On close reading we are led to suspect that he feels that prefect was trying to duck a tough case. Can we not see an ironic tone in his comments about how “ knowledgeable an observer”the prefect is? And is he not givinga none too obscurely veiled warniiig about the future by suggest­ ing that such behavior could harm a person’ s later career? He informs the prefect, who m we think he felt to be the likely root ofthe problem.

The ojjly docuipent concerning the case of Ho Ya-yiian 何亞願， who was beaten to death by Ho Chi the Eleventh 何季 — , is signed by the controller-general, Mr. Chang, and the notary of the administra­

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tive assistant (ch'ien-t'ing kuan 簽廳官)30. There isno report from the prefect himself, nor are his seal or his signature [present on the other report]. This matter concerns a case calling for capital punish­ ment. Not only have sages and worthies since ancient times beerrmost cautious about such matters, but His Majesty has also warned all under Heaven to be aware of their serious nature. Yet there is no way for us to tell whether the controller-general, afraid to file the prefec­ tural report, bypassed the prefect, or the prefect, having looked at the case, did not care to affix his seal to it. I recently served in the Chiang-tung 江東 region.31 My superiors governing T’ai-p’ing 太平Prefecture [which bordered the Yangtze and lay to the west of the Great Lake]32were Mr. Wu and Mr. Ch， en， who had the ranks of minister (shang-shu 尙書)33and ^ice-director (shihlang 侍郎)34respectively. Another superior governing Chien-k’ang 建 康 Superior Prefecture [the present Nan-ching] was Mr. Chao, who ranked as military commissioner (shu-hsiang 樞相).35They belonged to either the category of principal attendants (cheng-jen shih-tsung 正任侍從)36or the category of a commissioner of fhe bureau of military affairs serving to oversee a prefecture (shu~shih 如 楓 使 督 府 ).37 When I reported [to the above-named superiors], cases of capital punishment I always indicated clearly my official rajnk.and title and personally signed my name. One can verify the practice in the files. This was for me the way to show respect for the legal process an由the appropriate application of the law, indicate my deep concern for the lives of the people, maintain the system of the state, and respond to His Majesty’s concern that the people be soothed. *Ch’ing-yfian 慶兀 Superior Prefecture [in the Arek surrounding the present-day Ning-po]38is governed by a man w ithth^ rank of vice difector whd is knowledgeable and observant. He sutely would not put his official career firs£ and treat the lives of the people lightly, nor would he practice bureaucratic sycophancy at the expeflse of administrative effectiveness. Not only can I not fail to respond to such* a befuddled and confusing matter, but I also feel concern that it might lead to cliticfsm from the*outside which might in turn adversely afiect the future prospects of the governor. Furthermore, the correcting of this wtong has been done in a spirit of sincerity, harmoniousness, and respect, in accord with the ideal of helping each other to reach perfection. Moreover, the document submitted contains errors in reasoning. Nine out of ten characters were written with incorrect strokes. Con­ ceivably the superiors without looking at it left the writing to the

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clerks. A man’s life is at stake here. How can such carelessness be permitted? This notification goes to the controller-general, Mr. Chang, for him to order the responsible clerk to submit another report, within one day. The prefect is simultaneously notified for his information.

Commendations ON THE FOUNDING OF THE MEMORIAL HALL FOR THE HONORABLE MR. TS'AO39 author: Ts’ai Chiu-hsiian

This brief piece probably was written when Ts’ ai Chiu-hsiian was a prefect. Itreflects a penchant that traditional Chinese administrations had forrewarding the relatives ofnoteworthy individualsby appointing one of their number to an officially compensated post and by publicly supporting memorial institutions as visible symbols commemorating desired behaviors.

Upon the founding of the memorial hall in honor of the honorable Mr. Ts， ao the district also appointed his nephew, Ts’ao Kuang-pi 曹光 弼，to serve as an instructor in the “Study of Extensive Meanings/， where he will take care of the rites conducted at the hall annually and on other appropriate occasions. The order of the director (t，ai-p， an 台 步Ij)， 40[here transmitted] commends what the magistrate has done [i.e., appointeAan instructor~tr.]，since it reinforces its moral influence. In truth, no district administration can function well without having a scholar to serve it.

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73

REWARDING A TAX SUPERVISOR WITH A BANNER FOR HAVING REFUSED BRIBERY41 author：n.a.

All Chinese dynasties were plagued by the tendency of officials to mis­ use their official positions to solicit payments. Men in official positions often seem to have felt that their regular state salaries were insuffi­ cient. They expected people who came to them for services or to whom they went in the course of business to offer gratuities. To expect and collect such gratuities was not feltto be corrupt. Corruption only began when someone demanded more than the traditional amounts. The ideal was the man who accepted nothing. Thus, the magistrate who wrote this commendation isespecially impressed with the tax supepdsor who refused all offers. This was the more impressive since tax supervisors were not regular members of the bureaucracy. They were recruited from a variety of nonofficial groups, probably including many mer­ chants, that were stigmatized by regular officials as being concerned with wealth and worldly success.

Recently the tax supervisor (chien-shui 監稅)， 42Mr. Lo, went to a village on official business. We have heard that someone gave him a gratuity~a piece of deep-knit embroidery, a bundle of silk, and two chickens. When he declined to take anything all of the villagers could not help but express their admiration for an extended period of time. In similar circumstances, when the person serving as the sheriff (hsienwei 縣尉)43in the eastern section of the district goes to this place，in addition to those sorts of things that are considered regular gratuities, the people would probably also have to provide some leather and woven fabrics. f The contrast between integrity and corruption can be seen in this. Thus it is appropriate to award a banner in order to commend the former and serve as a warning about the latter. To Mr. Lo is sent a special gift of paper money worth one hundred strings of cash and two bottles of wine.

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Warnings REPRIM ANDING A DISTRICT MAGISTRATE44

author: n.a.

This briefpiece isprobably from the office of a circuit commissioner. It reflects the sorts of local judgments that might be sent forward from the district level aAd thfepower of certain superiors to remand matters to subordinates and specifically appoint individuals to deal with them. It also clearly shows that district magistrates were expected as a mat­ ter of course to question complainants in legal cases. Because one of the cases involved a crime, gaihbling, itseems probable that the supe­ rior in question was a judicial commissioner. Complaints by higher au­ thorities about subordinate 'offices sending alp cases in inappropriate ways were not uncommon during the Sung.

A district magistrate, incapable of settling some cases, has simply used this office as an escape by passing them on to us. For example, in the case in which Chang Ch’i 張填 Wa^ the complainant, the magis­ trate did not question him to verify fthe facts. [In another case], how could Hsiang Hsin-i 項辛一 (“ife W rst” )， who stopped at a gambling place, not know who led him thtere?ln another example, the accused, Shao Hsin-erh 邵 辛 二 （ “the Setond”)，was given no chance at all to respond to the complainant. Instead, the magistrate feent under guard t6 this office all the parties inVolved like a long chain. All these acts betray a faulty administration. 〜 The original guard who brought these persons here shall be re­ sponsible for taking them back and keeping them secure. A change is ordered: the assistant magistrate (hsien-ch'eng 縣承)， 45Mr. Chao, is appointed to take charge and by his best efforts to question all the essential parties one after the other in drdeh to verify the facts. Those persbns of no particular involvement may be set free to go home. The magistrate is not to interfere anymore. The cases should be concluded in ten days. Failure to meet this deadline will make the responsible clerks liable.

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NOTICE TO THE STAFF MEMBERS [OF THE JUDICIAL OFFICE]46 author：n.a.

This piece provides a rare view of the actual daily working prQcedures in a circuitjudicialoffice. Officialsconcerned with judicial mattery could enter the office on a regular basis, bringing with them personal atten­ dants. It is apparent from the concerns expressed by the author ofthis piece that these officials at times were accompanied by a number of personal attendants and that these attendants themselves sometimes handled the case materials or asked for information about them. U n ­ authorized persons were also entering the legal section and intervening in undesirable ways in the processing of cases. We also learn that the judicial office in a prefecture could process cases without its activities necessarily being closely monitored by the prefect.

This office is where the legal cases of the nine prefectures, which involve serious consequences, converge. However, officials from else­ where often come into the circuitjudicial office. Without understanding what is appropriate with these various matters, and following their personal feelings, they misuse the law. They communicate by letters and even send them along with officials’ messages. Such entering into theliotary office to ask for favors in lawsuits converts this office into a marketplace where corrupt bargains are made. My views on this have b^en expressed to you on several occasions in the past and your acceptance of them is much appreciated. However, because many days have gone by I am afraid some laxness may ap­ pear. I hope that you will continue to behave steadfastly without the slightest deviation. For example, the vice minister of justice iyu-ssu 右司)，Mr. Ch’en，let me know that a certain case before the judicial bureau in this office had already been settled. Upon reflection I must say that I never asked the circuit judicial bureau or the^prefectural staff about anything connected with this case and simply do not under­ stand why the vice minister told me about it.47 Ofx another matter, every day, when, you enter the judicial office，would you please bring with you only a single reliable personal attendant to wait upon you.

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Meanwhile, ask the chief clerk (tu4i 都吏）separately to send you a filing clerk (t’ieh-ssu 貝占司）to attend to your needs inside the office. For instance when you want a certain file, just tell the scribe to report the request to the desk, ask for the file，and bring it to you. Your personal attendant should not be allowed to intrude when a case is in progress in an attempt to obtain information. To make sure that the tasks of this office will not be improperly compromised, even in the smallest matters, and that security will be maintained, it is earnestly hoped that you will be understanding and concerned with such minute details.

Prohibitions RESTRICTIONS ON SUBORDINATE OFFICIALS IN THE PREFECTURES AND DISTRICTS WHO ARE NOT TO BREAK THE LAWS ON INFLICTING PUNISHMENTS48 author: Hu Shih-pi49胡 石 壁

One of the general charges ofjudicial commissioners was to supervise the conduct ofjudicial matters in the prefectures and districts in their circuit. This could involve on the spot inquiries by the commissioner himself or by designated subordinates. Local personnel and even men being held in jails would be interviewed. Commissioners also super­ vised subordinate units using a variety ofpaper reporting requirements. Commissioners were supposed to be especially concerned with judi­ cially improper actions by prefectural and district officials. The use of excessive1punishments was explicitly forbidden by law. The rules on inflicting penalties, spelled out clearly in the code and in subsequent legislation, should have been well-known to responsible local officials. The author mentions one such rule, an otherwise unknown ordinance that mandated the procedure to be used to obtain authorization to inflict disciplinary punishments on clerks or guards. The particular abuse in the case he investigated clearly involved the use of excessive beatings, beatings patterned after military practices, in disciplining

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such personnel. In the last paragraph he notes that certain responsible local officials did have military responsibilities, seemingly suggesting that they might employ the harsher military rules on,penalties when this was appropriate.

I have investigated and found that the officials in the office of the administrative assistants {p’an-kuan 判官)50have repeatedly broken the laws in carrying out punishments, so that in carrying out beatings and the like the blows may be as many as a hundred. Reference is made to the law, which says that beatings with the light and heavy rod follow fixed numbers. Nominally, beatings with the light rod stop at fifty blows, but in practice they stop at ten blows [administered with the heavy rod]. Beatings with the heavy rod have an upper limit of one hundred blows, but in practice stop at twenty.51 They never reach a hundred blows. Only in the army are there more severe rules than those implemented under the regular law.52 Even so, such instances must be limited to cases of death penalties that have been reduced one degree. Only under these circumstances would there be a beating of one hundred blows administered with the light rod.53How could this possibly be a regular practice? Now, the prefectural and district authorities are not army com­ manders nor are the rules violated by their clerks and guards54army ordinances. Thus, one ought not to resort to military law in order to inflict cruel punishment. This defect stems from a lack of discipline in prefectural administration. Restraint is in order. In accordance with the ordinances {ling 令)严 all officials serving in the pffices or bureaus, when they find that someone in the ranks of the guards or among the clerical personnel has been guilty of offenses punishable by beating with the heavy rod or less, may report to the chief official in writing and get his authorization to borrow the rod in order to carry out the punishment. From the way in which the Imperial Court established the law, exhaustively considering its complexities, its intention of being merci­ ful in inflicting penalties can easily be seen. From now on, the various offices, in inflicting upon tlieir clerks and guards penalties of twenty blows or less, may exercise their discretion in implementing the pun­ ishment. However, if the penalty involves the use of the heavy rod, they should, as the ordinance stipulates, report in order to borrow

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the use of the rod. It is no longer permissible for them to do as they please as has been the case in the past. The district magistrate is the chief official. His duties include exer­ cising concurrent control over military affairs. The patrolling inspec­ tors (hsiln-chien 巡檢）and the district sheriffs control the local sol­ diers and the archers, and so are equally concerned with military af­ fairs. They should be allowed to consider cases carefully and weigh the penalties to be implemented.

A BAN ON PEOPLE’S ACCLAMATION OF A DISTRICT MAGISTRATE56 author：Ts'ang-chou57 渰洲

Traditional Chinese administrations had devised a number ofprocesses by which ordinary people could bring problems to the attention of the authorities. People also,at times petitioned in irregular ways about grievances. However, as this piece suggests, officials who would listen to complaints about abuses or inequitiesmight summarily rejectattempts to interfere in the regular process of personnel evaluation. Since pre­ imperial times, Chinese governments had been employing regularized patterns of assessment. The prefect who wrote this piece was angry at what he seems to have feltwas improper pressure being put on him to support a district magistrate. The piece does, however, reveal that lo­ cal people did in fact express their opinions about local administrators by public demonstrations and by posting public statements.

Originally I did not believe what I had heard about the customs of this local area not being good, in that they allowed rioting and quar­ relsome litigation. However, when I reentered its borders former offi­ cials, literati, and members of upper-grade households such as Fan Wen 范文, Wu Hsin 吳鋅， and so on, a total of sixty-seven men, came leading a crowd of more than five hundred villagers and planted a long spear with a red shaft on which there was a white flag. They intercepted me on my way and presented their petition.

Prohibitions

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At first I thought it might be due to the Imperial Court order for the recruiting of soldiers or it might be a case of injustice# suffered by some commoner or official households who saw no recourse but to make a poignant appeal upon the arrival of a new prefect in the area. When I read their petition I found it was nothing but laudatory praises of the district magistrate's achievements. This magistrate has served here only for about a year. Moreover, ai 漕台)58and the stabi­ his superiors, the fiscal commissioner (ts，ao-t， lization fund supervisor {ts，ang-t， ai 倉台),59 are very enlightened in their supervision. How could they fail to know the merits and demerits of the local administration? If they have to depend upon the gathering of the literati and the common people to furnish proof that he deserved acclaim, they would hardly deserve their places as supervisors. There was an old custom in Ch’ing 青 Prefecture [present-day I-tu in Shan-tung]. When a prefect arrived the people would hold bricks to kowtow in greeting him by the roadside in order to express their grati­ tude for his forthcoming favorable and virtuous measures. When the prefect left, they would throw the same bricks at him to humiliate him.60How can one be sure that those who acclaim this district mag­ istrate today will not someday throw bricks at him, stage a riot, and raise allegations against him? In serving at various places I resent most those who shamelessly covet profit. Often they praise the administration, erect halls in honor of the official during his lifetime, and make use of various excuses to flatter him. All they want is rewards of money and wine, which they bring home to show off to their womenfolk. If an administrator ac­ cepts what they have done then they put on an arrogant air, boasting of their having done the magistrate some favor. If they thereafter make some demand that is hard to satisfy or some request that is hard to refuse how would the magistrate cope with it? These people are not only after profit; it is obvious that in manipulating officials they have no scruples. District magistrates ought to prohibit such activities. Moreover, suppose they tolerate them but secretly use m ili­ tary methods to control the crowds, can one be sure that there would not be some treacherous strong men silently harboring conspirato­ rial plots?61This makes prompt punishment even more imperative. A note is to be sent requesting that the concerned offices send personnel to go after all such posted materials and statements of ac­ clamation that are to be found at the inns and marketplaces in the area. All these things should be washed away without trace and the

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number of such instances reported. This should be done within one day. This note is to be sent to all the seven districts. In addition send a report to the two superior officials [i.e. the fiscal commissioner and the stabilization fund supervisor].

Remedial Removals APPOINTING AN ACTING OFFICIAL IN PLACE OF AN AGED INCOMPETENT DISTRICT MAGISTRATE62 author: Hu Shih-pi

H u Shih-pi, clearly serving at this time as a circuit commissioner, is seen here exercising one of the powers of that office, the temporary replacement of incompetent subordinate officials. His remark that his tenure in office was just beginning suggests the possibility that one of his early acts in his new posts was to carry out a review of all those holding subordinate administrative positions in his area of responsi­ bility, in part at least by soliciting the opinions of the immediate supe­ riors ofpersonnel, in this case the opinion ofthe relevant prefect, about' the character of district magistrates.

The duties of a district magistrate are most demanding. Those not excelling in talent, knowledge, and intelligence can hardly hope to serve well. Mr, Wang, the magistrate, is advanced in age and lacks energy. Yet he finds himself in a place where the workload is heavy arid affairs are urgent. Understandably, he has offended the prefecture by falling short in the performance of his duties. From the opinion of the acting prefect I can gain a general picture of what sort of man the magistrate is. The beginning of my tenure here is just the time when I need to depend upon the cooperative efforts of colleagues. How can I rely upon a magistrate like this man? However, a sudden dismissal is contrary to the idea of respecting the aged. Hence I am especially asking the

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81

judicial inspector (ssu-fa 司法)， 63Mr. Liu, to take temporary charge of all district affairs for two months, so that he can correct administrative errors quickly and be prompt to curb clerical abuses. The magistrate, Mr. Wang, may retire to his residential hall and continue to draw his income without being bothered by work, enjoying a comfortable life. How pleasant for him. The judicial inspector, Mr. Liu, whose distinguished talents are well known to the commissioner, can surely fulfill my earnest expectations. This is to be reported to the various offices, with a separate note for the information of the acting prefect.

ORDERING A CAPRICIOUSLY CORRUPT OFFICIAL TO SEEK MEDICAL CARE [tantamount to forcing him to accept a medical discharge]64 author: Hu Shih-pi

This isone ofthe many passages from the Ch ，ing-m ing chi that provide us with a rarely recorded slice ofthe behavior ofnonelite city people in the Sung. An assertive woman, speaking a patois that offended upperclass ears, presumptively greedy, married to a man who could not or chose not to control his wife’ s behavior, deeply offended H u Shih-pi. He is contemptuous of the husband, obviously a man with successful elite relatives (from w hom he had received a lowly official position through the use of the protection privilege). The piece also indicates that H u Shih-pi did not have the authority to dismiss the man sum­ marily, even though H u accuses him ofmisconduct and corruption. He threatens to impeach the tax supervisor, which would probably result in dismissal but offers a face-saving way out. ■BMP丨 ¥ 闇n 丨 觀

ll_ _ 丨 _ _ 丨 『 _ »_1丨 1 _丨 1_ 圆 11丨 ||_ _ _ 關|__ ||lllllllliM iWllili|||«IIIIIIIU||| _ _ _ |丨 丨 丨 _ _ __ _ IIIII__丨 丨 _PIIII| Mil

The tax supervisor who entered the civil service by the inherited privilege of his family65 knows generally the rules of conduct. The misconduct and corruption of all sorts that he has now committed were actually caused by his wife. She, the woman Ch’u， 66 lived for a

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long time in the entertainment section of the city.67Having been ex­ posed to the lifestyle there, she no longer cares about preserving fi­ nancial integrity. When a man cannot straighten out his domestic situation, how can he enforce rites and propriety?68 When she holds a document and comes to the office, wagging her tongue in endless contention, she uses the language of the perform­ ers in roadside variety shows. I had heard about it before. Now I have seen it and known it. This kind of minor official should not be kept in the civil service for there is no hope of his mending his faults or reforming himself. He is ordered to obtain and to submit within two days a medical certificate (showing him to be unfit to serve). If he does not obey this order, I will promptly send up a formal impeachment.

Compassionate Aid SENDING HOME THE COFFIN OF A JUDICIAL OFFICIAL69 author：H u Shih-pi

1

This piece illuminates some aspects of the Sung postal service and the kinds of practices through which officials solicited the aid of their col­ leagues in unusual circumstances. The Sung postal system was staffed by army personnel. These men were stationed at posts separated from one another by set distances. The posts probably containedliving quar­ ters for some of the personnel and for visitors as well as offices and stables for horses or docking facilities for boats where appropriate. People making use ofthis system had to carry special passes that appar­ ently would permit them to make certain use of the facilities. H u Shihpi also solicits the cooperation of his colleagues, the commissioners, in overseeing the travel of the mourning group in areas beyond hisjuris­ diction.

Compassionate Aid

83

The judicial inspector arrived in office and before he had completed his first year it came to this. His family is poor, his son young. The way back to his home is long and difficult. In today’s world there is no Chii Ch’ing 巨卿7° to depend upon in handling this death. Who will aid them in taking the corpse back to the original home for burial? I， although unworthy, served as a colleague ofthe deceased. There­ fore, I would not presume to evade my responsibility for helping with the funeral but after they leave my area ofjurisdiction, then what can I do? Formerly Shen-t’u Tzu-lung 申屠子龍71sent a member of his house­ hold for the mourning of Wu-tzu Chii 伍子居 to return him to his native village. They met an official who was serving as an attendant at Ho-kung. This attendant made for him a postal station pass to serve in escorting him. Now, the traveling coffin of this judicial official has been put on board a boat in Hsiang-hsiang District 湘 鄕 [near the present Ch’angsha in Hu-nan] and must pass through the watery districts of Li-ling 體 陵 [present-day Li-ling in Hu-nan] and An-lu 安 陸 [present-day An-lu in Hu-nan]. A postal station pass can serve him in his escorting. The fiscal commissioner-in-chief and the high military officer serving as military commissioner {an-fu ta-ch， ing 安撫大卿)72 will certainly be accommodating. We have prepared a report to the office of the fiscal commissioner asking that he instruct the authorities in Hsiang-hsiang to provide the party with a boat and at Li-ling with a hired laborer. Generally, the party will provide its own regular expenses, not pre­ suming to bother the two districts, but especially asking that the au­ thority of the officials be used to ease the management of this busi­ ness. Wang Ch， eng 王誠 is an official clerk. He would be willing to go even ten thousand li. Of course there is no concern about a mere one thousand. If he should go only part way and then return, he will defi­ nitely be punished.

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Presumption PRESUMPTUOUSLY ESTABLISHING AN OFFICIAL HOUSEHOLD BY CLAIMING ANOTHER PERSON’S ANCESTOR AS ONE’S OWN73 author: n.a.

The culprit in this case, a man named Li K’e-i’ lived in a remote part of the author’s area of jurisdiction. Li K， e-i had falsely claimed to be the descendant of an illustrious official in order to be classified as an **offi­ cial household” (kuan-hu 官戶)，a status that was granted certain fis­ cal and legal privileges. This fraud apparently came to the attention of the authorities when Li K’e-i ordered some of his followers to cut down the trees growing on his family’s gravesite. Presumably an aggrieved relative reported this to the authorities. In the initial trial Li K， e-I escaped punishment because of the legal privileges associated with his official household status, though his agents were sentenced to beatings. The author o f the Ch， ing-ming chi decision was especially offended

because, in asserting his descent from an illustrious official, Li K ，e-i was renouncing his descent from his actual ancestors, a thoroughly unfilial act. The official reversed the earlier verdict, spared the agents on the grounds that they had recently been punished for an unrelated matter, canceled Li K ，e-i， s official household status, and ordered him brought (presumably for punishment) to the judicial offices.

In antiquity those who built palaces did not cut the trees on the hillsides. This was their way of spreading blessings. Li K， e-i 李克義 wanted to build a cave temple and for that reason did injury to the pine trees growing on the graves of his ancestors， which understand­ ably gave rise to strife. Li K ’e-i was originally ordered to be beaten one hundred blows with the heavy rod. But in light of his illustrious ancestors who had extraordinary good qualities and of the special pleas of his descendants, his punishment was commuted. Chiang Ts， ai-chin 蔣才進 and Liu Wen-t’ung 劉文通 had irresponsibly believed what Li KJe-i said and in a disorderly manner seized their axes and recklessly

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cut [the trees] down. Even though they said they were caused to do it, still, since the pines as a consequence were destroyed, how could they not be guilty? Each of them was to be beaten twelve blows with the ing 少 light rod. Li K’e-i falsely claimed the vice minister (shao-ch， 卿)74as his distant relative and thus falsely called himself his descen­ dant. He established his household name in order to assert a false claim to official status and to rely on his influence to act arbitrarily in the remote countryside. If one looks at his offenses in the light of the law then they are unforgivable. His offences toward his forebears are also great. Not to love one’s own kin but to love the kin of others， this is contrary to virtue. Not to reverence one’s own kin but to reverence the kin of others, this is contrary to rites. Kuo Ch， ung-t， ao 郭崇韜 wept at the grave of Kuo Tzu-i 郭子儀75 and so became a laughing stock forever. Ti Wu-hsiang 狄武襄 was unwilling to recognize pre­ sumptuously the Duke of Liang as his ancestor. People praise him for this down to the present. Our ancestors are those who bequeathed to us our bodies, unalterably fixed in the origins of our lives. Whether they were men of obscurity or eminence, of talent or not, their descen­ dants love and honor them and that's that! For the posterity of Hsiang to belittle Hsiang and to count Shun as their ancestor; for Kuang and Ts， a i， s posterity to belittle Kuan and Ts’ai but to count the Duke of Chou as their ancestor, for Sung to take has his ancestor Ti-i, and for the Prince of Huang to take as his ancestor Cheng, these also each are cases of supposed ancestors. Now Li K， e-i belittles his own ances­ tors and takes another person as his ancestor. How can this not be deprecating his own forebears and glorifying the forebears of someone else? It being thus, then this descendant diminishing his forebears is contrary to virtue and contrary to rites. His offense is so great! I have stressed the rendering of judgments as a way of rectifying customs and strengthening the human bonds. Moreover, because of their having recently been punished by beating for having been involved in a fight, I have especially spared them trial. The official accusation that has been lodged does not stem from this minister; all these things simply follow from Li K， e-i， s76assertion of control, so the notary office should note and return them. By written order Li K， e-i should be sent under guard to the district. The household records on which he has falsely taken the name of the vice minister are to be rectified.

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Purchased Rank77 THE ORIGINAL CERTIFICATE OF PURCHASED RANK SHOULD NOT BE RETURNED TO A CON DEM N ED M AN78

author: n.a. BmBM MBBIBIBM BM BSSSBIBHBBBGBIIBM BBM mSM BfllBM RHM BSmiBnM IBBIBHBimHBBIHIB

As this piece makes clear, the Sung government regularly sold certifi­ cates that gave their purchasers low official rank. Such rank carried with it a variety of fiscal and legal privileges and no doubt had social value on the local level. The culprit in this case had used the authority vested in the village service position he occupied to profit from illicit trading and from bribes connected with the so-called equitable-purchase system under which the authorities could buy needed goods’ sup­ posedly at fairprices but in reality at a discount. He was sentenced for his crimes by the prefecture, but then had his sentence reduced as a result of the privileges attached to his purchased rank. He also tried to have tlte record of his punishment deleted and sought return of his certificate of purchased rank， which would have been sent to the min­ istry of revenue after his conviction. He did this without appealing to the ministry ofjustice for a formal cancellation of his criminal record. The author of our case record intervened and ordered that the certifi­ cate be formally canceled and destroyed. Clearly the culprit was a wealthy man since he paid a huge sum for the certificate and, the au­ thor implies, attempted to bribe local clerical personnel.

According to the original report from Yueh 嶽 Prefecture， 79Cheng Ho 奠P河 [translators’ note: the individual who had purchased rank], while serving as a superior guard leader (fu pao-cheng 都保正)’80en­ gaged in the illicit trading of the spice known as frankincense. More­ over, when there were purchases at less than the market price, he received bribes. For the prefecture to have punished him by a beating with the heavy rod and a sentence of registered control (pien-kuan 編 管)81was not a faulty judgment. At the time that the case was closed, after he received his sentence, he was beaten twenty blows on the arm.82This is very clear in the file.

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Later, however, he conspired with the office where he had been beaten to make it appear that he had been spared the beating. He was already seeking a way to reverse his fortune. If he had not been wealthy, how could he have done that? Those who, being guilty of private crimes (ssu-tsui 私罪 X83are pun­ ished by being beaten with the heavy rod and remaining in registered control (pien-chih 編 置 are former convicts. They are not to be al­ lowed to participate in the civil service examinations. For what purpose then, does he now seek his original certificate of purchased rank? The ministry of justice (hsing-pu 刑部.）has nothing explicitly recorded that removes his guilt by rectification. Yet he bypasses the ministry of justice to go over to the ministry of revenue (hu-pu 戶部）so>that his original certificate of purchased rank may be returned to him. This is an attempt to cheat the ministry of revenue, unless fby proper proce­ dures] he requests an appeal. Or he might obtain an official action of rectification [to have his guilt canceled]. All such provisions serve to protect the quality of officials. , Cheng Ho bought a silk-gauze certificate of official rank by paying ten thousand and seventeen strings of coins. [On account of this rank] the sentence he received was already reduced to a minimum.85As for the certificate, it should not be returned to him. The ministry of rev­ enue should cross it out and destroy it in order to end his false hopes. It is no small matter to insist on these punitive steps according to the legal regulations. This judgment is so reported.

WAIVING THE SURRENDER OF THE CERTIFICATE OF OFFICIAL RANK AND PUNISHING THE SERVANTS AND REPORTING THIS TO THE OFFICE OF THE FISCAL COMMISSIONER AND THE MINISTRY86 *

麵 IJI 丨 鋤IIIMW M B B I —

author: n.a.

.

—

It appears that the accused party in this case, probably a merchant, had purchased a title of nobility in hopes that it would provide him immunity from the actions of local tax officials. When one such official

88

Officials attempted to visit the boat on which the accused was shipping goods, this tax supervisor was physically attacked in the street, apparently by the man with purchased rank, possibly aided by his servants. When the man with purchased rank was brought to the government offices he continued to behave in an inappropriate and offensive manner. De­ spite his actions, however, the official writing the decision returned to him his certificate of rank. It is not made clear in the opinion why the official chose not to enforce the proper sentence.

Using a large amount of money to purchase a title of nobility (chileh 爵)87 is something looked down upon by the literati class. However, since the purchasers of such titles get into officialdom, they should observe the proper code of conduct. Yet this individual misbehaved recklessly, making himself appear like a rogue. Though I myself am unworthy, [my jurisdiction,] Yuan 袁 Prefec­ ture [present-day I-ch’un in Chiang-hsi] is still a part of the empire [t r .—so the offender should respect it, if not me]. When he entered the office hall; he seemed unable to contain himself, speaking loudly and even shouting, without the least restraint. This attitude of his signified* disrespect for the prefect. Mr. Liu, the tax supervisor, by prefectural order went to inspect boats. This is an official duty. How could this debased minor official have the audacity to damage Mr. Liu’s hat and rip his clothing while he was passing along the main street of the metropolis, creating a horrible scene there? This showed disrespect for government officials. The Imperial Court established the hierarchy of ranks in order to encourage officials to exert them­ selves in endeavoring to move up. How can it possibly permit a bogus claim of inflated rank? This individual is a commandant (hsiao-wei 校 尉)严 yet he often claims to be ranked at the level of a gentleman of trust (ch，eng-hsin lang 承信郎)• Indeed he has no respect for the Im ­ perial Court. Even supposing it to be all right to show no respect for the prefect, is it permissible to show a lack of respect for government officials? Even supposing it to be all right to show no respect for gov­ ernment officials, is it permissible to show disrespect for the Imperial Court? To take proper action, I should order him to surrender his certifi­ cate of official rank and report it to the Imperial Court for disposal. However, I am aware that one does not have to use the strongest of arrows to shoot at a small rat. In returning his silk-gauze certificate

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to him with a reprimand, I am ordering him to have all the items he has been carrying checked. After having been checked, the goods should be returned to the passengers and the boat to its owner. An official file is to be kept. As to his two servants, the notary office will administer twenty blows to each before releasing them. My way of dealing with him is most lenient and forgiving. However, when this kind of mean person goes up to Hung-tu 洪 都 [modern Nan-chang in Hu-nan], he might spread some falsehood around superior offices. Hence the details of this case are reported to the fiscal commissioner as well as the ministry of revenue for their information.

Filling Lower Posts (Chieh-pu

借 勘

A CLERK ACTING AS A TAX SUPERVISOR TOOK BRIBES89 author: Fan Hsi-t’ang 范 西 堂 90

This piece presents an almost stereotypical picture, the corrupt but clever clerk who connives with people in office to gain money through corruption and who lords it over local people. The case indicates that clerks dismissed for cause were not supposed to be reappointed. This particular clerk, by illegal means’ not only gained reinstatement but made fraudulent use of privilege to secure a court rank. He behaved like an official, traveling in a covered carriage surrounded by his reti­ nue. Because ofhis power and connections he was able to secure bribes, presumably from people who wanted him to use his influence on their behalf. Caught, he confessed (one suspects after the use ofjudicial tor­ ture) and in the end was sentenced like a common criminal.

Li Chun-ming 李俊明 was originally a prefectural clerk who was dismissed for cause. How can he be allowed to serve again? Through the office of the stabilization fund supervisor he got himself reinstated in a way that was not regular. That was already illegal. Yet he dared

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to use a borrowed privilege to get himself the rank of a gentleman of trust and become an irregular (she 攝)91tax supervisor at a place called Pao Family Cliff. He lives, comes and goes like a high official. His covered vehicle is protected by attendants and servants, running on both sides. Awesofnedike a deity, he makes onlbokers afraid. And he takes what he wants, victimizing the traveling merchants who pass through. No one, whether traveling east or west, can avoid it. The complaints are wide­ spread, and yet the prefect does not know of them. Outside the office, Li links himself with certain people from inside the office, so it is much like the case of the two legendary beasts who acted in concert in devouring people. To bring charges against Li is as difficult as reach­ ing for the sky. In this metropolis of prosperous trading and shipping,. Li goes on to fulfill his insatiable selfish desires. With clandestine malice he injures people; such victims are numerous. Of course the setting up of tax stations was something even the ancients could not avoid, but what is generated here is the most extreme. I happened recently to pass though these parts and became familiar with the situation. Mr. Lo, the judicial official, conducted a retroactive investigation. According toJ LVs confession, he had taken as bribes seven strings of a thousand coins in one particular case. One could hardly estimate what he took altogether, both before and after this case. He is sentenced to twelve blows of the heavy rod on the back. He is to be tattooed/and svfbjected to penal registration at one thousand U. The booty from his corruption is to be impounded and kept under guard. His certificate of official rank is to be surrendered and destroyed. But the confiscation of his family property is waived. T an Kung 譚拱， Chu Pa 朱八，T’apg^Hsing-tsung 唐 興 宗 ，and Kuo T’ung 郭通，a ll habitually followed Li、conspiratorial directions, taking bribes them­ selves. Each is sentenced to one hundred blows of the heavy rod and the tattooing of a round ring behind their ears.92

Acting Officials

91

Acting Officials CORRUPT BRUTALITY93 '

author：Ts’ai Chiu-hsuan

The incidents in this piece indicate that when itwas written Ts'ai Chiuhsiian was serving as a circuit commissioner, probably a fiscal commis­ sioner since the duties ofa recorder concerned fiscalrecords and affairs. One key duty of the circuit commissioners was to monitor the quality ofthe local administrators in the units under theirjurisdiction, reward­ ing and. recommending those who performed well in their positions, and reprimanding or replacing those who were incompetent or corrupt. Commissioners could themselves investigate, however, as this piece shows, they might send the charges to the prefectural authorities, assigning to them the responsibility for taking formal action. These prefectural authorities, in turn, might resistthe thrust ofthe commis­ sioner^ instruction, especially ifhe was calling on them to discipline an official who had influential backers.

Mr. Huang, the acting recorder, is a native of the prefecture and is irregularly serving as an official there. Vicious, obstinate, violent, and tyrannical, he so usurped the. power in the district that the, district magistrate became helpless. His accumulated wrongdoings and noto­ rious evils have made the people hate him to the extreme. Even when overseeing autopsies (chien-yen 檢驗)94he took bribes, indulging his covetousness without restraint. When I had him recalled from his office, hundreds and thousands of ordinary people gathered, throwing bricks and filth at him, spitting at him and cursing him. The district magistrate, considering the interest of the prefecture [in preventing incidents], personally escorted Huang on his journey for several tens of li. That was how he was spared. Have the prefectural judicial staff alone not heard of this? i Since the beginning of my administration in this circuit, countless numbers of accusations were made against Huang; the total amount of his alleged corruption reached who knows how many thousands. I

Officials

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sent these cases to the prefecture for investigation. Has the prefec­ tural judicial staff not seen them? Yet that staff, without abiding by my directive to get to the bottom of the matter, sent up detailed reports on how Mr. Huang, the acting recorder, had come with recommend­ ing letters of their excellencies Huang Tang 黃堂，the vice minister, 95Mr. Pieh. Does this imply a and his excellency (hsiang-kung 相公)， threat [against my taking punitive action]? For no good reason, to advocate that such a person be an unqualified irregular official governing the people, in no way serves the interest of [the vice minister] Huang T'ang and the other patrons [ofthe acting recorder, Mr. Huang]. It does victimize the people. Now that his wrong­ doings have been exposed, is there still an intention to shelter him? A repeated excuse is that there was an honorable martyrdom in his family background.96Since Huang belongs to a family of such honor, he may be granted some privileged consideration. However, what about some consideration for the fellow citizens of this district? Repeated mention is made of Mr. Huang T*ang and other honorable officials. Did they ever want him to become so covetous and cruel? A note is to be sent to the prefecture, requesting strict investigations according to my previous communication. No one will be allowed to slight this case because they expect that I will leave this office shortly. Filed in the tin dispatch box. A report is due in two days.

A RASH OFFICIAL, CONTRARY TO LAW, AVAILED HIMSELF OF ACTING IRREGULAR POSTS TO GAIN OFFICIAL RANK97 author: Fan Hsi-t’ang —

BB—

— B— W B — BBiiB—

—W

l

—

The story behind this involved piece isobscure. Itwould seem that the official first mentioned, Mr. Yeh, after securing official credentials by fraud and evading the regular bureaucratic processes, eventually was appointed the acting magistrate in a district. When the prefect sent an agent to the district, apparently to expedite the shifting of a lawsuit to the prefectural offices, the acting magistrate, the man who had brought the suit, the prefect’ s agent, and others, conspired together to free some districtprisoners, presumably in return forbribes. In the investigations

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stemming from a suitbrought against the acting magistrate by another party, evidence ofthis and other crimes came to light. The ruling trans­ lated here is especially interesting as an example of the format of a decision. After laying out the crimes and charges involved, the official writing the decision, who was probably a judicial commissioner, cites at length a variety of relevant penal laws not known from other con­ texts, and ends by handing down sentences and giving directions for the appropriate reporting ofthe results and the necessary bureaucratic steps to close the case.

The currently dispatched acting irregular official at Shang-lin Pass in Pin 賓 Prefecture [present-day Pin-yang in Kuang-tung], the gentle­ man of trust, Mr. Yeh, violated the law while in office. When Li Hsiaochung 李孝忠 and others brought a suit and the prefect sent the chief clerk, Lu Yii 盧餘， to the district to issue a prompt summons [for him to report to the prefect], Li Hsiao-chung and the others seized this opportunity to manipulate the authority of the district, in seeking their own ends. They conspired with Lu Yii and arbitrarily set free twelve prisoners guilty of serious crimes. The judge (t ，ui-ssu 推司） ， Ch， en Chiin 陳俊, and the jail functionary, Hsu Hsi 徐席， also became involved in allowing this to happen. Up to the present six of these men have not yet been recaptured. The cases of several of these men, who were guilty of capital crimes, cannot be satisfactorily closed. Recently, the gentlemen of trust, Mr. Yeh, Li Hsiao-chung, Lu Yii, Ch， en Chun, and Hsu Hsi have been sent to jail for interrogation within the proper time limits, and all have confessed. Now, as for Yeh, he gained office by fraud. Originally he^resumed upon events in Yung 星 Prefecture [the present Nan-ning area in Kuang-tung]. He claimed a reward for the acquisition of horses as a basis for being appointed assistant sheriff-designate (fu-wei 副尉）at Chin-yung 進勇.98And yet, in the end, he did not arrive at Heng Moun­ tain [in Pa-ming-hsien in Kuang-hsi]. Next, after having falsely imper­ sonated Cheng Wen-tai 鄭文代 to claim a reward for transporting horses and after being appointed assistant sheriff at Chin-yung, he never in fact reported to the capital at Lin-an 臨 安 • When the judicial commissioner Mr. Chu died, Yeh depended on notices provided by someone in the village to qualify for appointment and styled himself a gentleman of trust. He availed himself of this to be an acting irregular official, simply being greedy in his demands.

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The commoner families of Liang Meng-lung 梁夢龍 and others brought charges against him. Upon investigation, he confessed to thirty-eight counts of corruption, involving a total of 352 strings of cash. He also defrauded the government of 726 strings in salaries, making a grand total of 1,718 strings. Wei Hsi-tsai 韋熙載， who was in mourning for his wife，was inves­ tigated and sent to jail. He paid seventy-two strings worth of coins and silver [presumably in bribes to Yeh—tr.], but since it was difficult to find an excuse to spare him, in the end he was held in jail until he too died. To cause the death of someone simply out of a desire for material gain would be unforgivable even among the common people. How could an official in charge of an area be forgiven for such a crime? According to law: “All those who fraudulently make use of the protection privilege (yin-pu 陰補）are liable for three years of penal servitude {t， u 徒 Defrauders who have qualified as officials may have their sentences reduced by two degrees. Also, according to law，“A ll those who have received appointments, either as a result of fiscal con­ tributions or because they have received benefits following the death [of a relative] in the defense of the state, who, not having observed the ordinary procedures of official recruitment, [are appointed] court gentleman for ceremonial service (chiang shih-lang 將仕郎严 and have been dispatched as acting irregular officials, as well as the dispatcher, are to be considered guilty of breaking regulations (wei-chih 違芾!I)•” Furthermore, according to the law: “Officials or officers who defraud the government and accept bribes, if the booty is worth fifty rolls 疋）of silk, are to be judged after reporting for an imperial decision. In other lesser cases functionaries are to be registered as convicts in their original locations.” Again, according to the law: “When the position of district magis­ trate is vacant, and in an irregular way someone temporarily dispatches a temporary resident or an expectant candidate to serve in an acting irregular capacity, both the man appointed and the person who ap­ pointed him may be tried for having broken regulations.5*100 According to law: “All those who, in violation of the ordinances have dispatched officials to serve concurrently in acting positions, in addition [to their other posts], may be tried for corruption according to the amount of the salary thus involved.” According to law: “All irregular prefectural assistant instructors,, who are guilty of public misdemeanors which call for a penalty of exile (liu 流）or of private crimes that call for a penalty of penal

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servitude, should have their documents of appointment cancelled. Those who had received an imperial decree of appointment should be punished by having the documents that certify their contribution can­ celled.» ’ Lu Yii, Ch’en Chiin, and Hsu Hsi are each to be beaten fifteen blows on the back with the heavy rod and sent for penal registration at one thousand IL Li Hsiao-chung is to be beaten on the back twelve blows with the heavy rod and sent for registered control at five hundred IL Yeh Ssu-ch’ang who is liable for three years of penal servitude is to be sent for registered control to Ho 賀 Prefecture [centered at presentday Ho District in Kuang-tung]. The report on corruptioxvis 吃o be submitted. The borrowed supporting documents are to be cancelled and put into the file. This department’s three documents， are to be cancelled according to the rules. A report is to be Submitted to this department, and notification of cancellation is to be sent to* the de­ partment of state affairs. • -

Corruption i

SELLING COUNTERFEIT CERTIFICATES [FALSELY INDICATING RECEIPT OF TAXES INCLUDING TAXES PAID IN GRAIN]101 author: Ts’ai Chiu-hsiian

This entry is a fine example of the double standard applied by officials to corrupt acts of clerks and officials and of the influence of pressure from colleagues on the making ofjudicial judgments. Although Ts’ ai Chiu-hsiian clearly recognizes that the official who was responsible at the time that the corruption started was himself an active participant, in the end he only punishes the two clerks involved. The guilty assistant magistrate gets off without his action being reported to the central authorities and receives merely a written admonition. Having influen­ tial officials as friends is sufficient to ward off any real penalty.

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Ch’eng Ch’iian 程全 and Wang Hsiian 王選，two district clerks， conspired illegally to cut a square seal,102and then to print and sell counterfeit certificates of tax receipts, taking the proceeds themselves. The investigation has clearly revealed their criminal acts. Although the wrongdoing had started with the previous magistrate, Mr. Chang, it was the assistant magistrate, Mr. Li, in the days when he acted as the magistrate, who participated in Ch’eng Ch， iia n ， s con­ spiracy. On a single day they often printed counterfeit certificates worth two hundred piculs [shih 石：one picul weighing about 133 pounds] of rice. The money from selling the certificates was said to be for the building of the office for the assistant magistrate. Actually, some six hundred strings of coins were successively transferred to his household’s coffers. Because he, who was the one responsible for su­ pervision, himself stole，is it any wonder that the two clerks openly and without fear took their share? It is amazing how he, the assistant magistrate appointed by court order, is blind to the need for observing the law. However, several retired officials who are prominent and distinguished residents of this district have praised him as enlightened, efficient, dependable, and of rare talent. As I have no wish to blemish his past record, which has except for this been clean, I will waive the reporting of his case to the Imperial Court. Nevertheless, an admonition is hereby given to this official. He should live a clean and modest life, beginning anew his career, in which he may hopefully go far. Ch’eng Ch’iian，who collected sixty-eight rolls of silk as his share of the graft, is sentenced to fifteen blows of the heavy rod on the back and is to be registered at one thousand li. Wang Hsiian, whose share of the graft was thirty-three rolls, is sentenced to twelve blows of the heavy rod on the back and also is to be held under registered control at one thousand li. All the proceeds from these corrupt acts are to be confiscated.

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PATROLLING INSPECTORS TAKING GRAFT DURING AN INVESTIGATION103 author: Sung Tzu-mu 宋自牧

Not being able to get good help is a universal problem. Sung Tzu-mu is here dealing with a pair of outlaws, father and son, who had some years before raided and pillaged in Chiang-hsi. They had eventually been seized and imprisoned but, in some undetermined way, they secured their freedom. It may have been after this that the two, in cooperation with some militant Buddhist monks, again raided the re运 on. As hap­ pened all too often in traditional China, the responsible local officials bought the two men off, offering among other enticements an official appointment for the son, apparently by the device of allowing the two men to purchase two certificates of official rank. Sung Tzu-mu, who had previous knowledge of the pair, when he reached his new post in Hu-nan found the son’ s name in a list of current officials. The man was serving as a patrolling inspector, a military police official. Sung Tzu-mu found an opportunity to act when the patrolling inspector was accused of various crimes by local people. During the investigation, the authorities also learned that he had taken bribes in a homicide case. Evidence of other crimes also emerged. In his ruling, Sung Tzum u cites several laws that would have allowed very severe sentences to be handed down. In the event, Sung Tzu-mu sentences the patrolling inspector to perpetual imprisonment after a beating. Perhaps he felt that imposing on a man who had been an official the severe sentences called for by the law would have had a bad effect on official prestige.

When serving in Chiang-hsi, I had already heard the names of Fu Yu-sung 扶友嵩 and [his son] Fu Ju-lei 扶如雷• Th0y were the ones who, at one time, had seized for themselves the seat of the commandergeneral (t，ung-ling 統領)1()4 at Chiapg 江 Prefecture [near presentday Chen-chiang city in Chiang-hsi]. They ravaged two circuits and raided Yung-hsin 永新 Prefecture [present-day Yung-hsin in Chianghsi]. Some years ago Fan Hsi-t’ang 范西堂，the acting commander (shuai 帥） ， 105 personally exposed their wickedness, reported to the Imperial Court, and had them detained in the stockade. Yet for reasons unknown, they by bogus claims got official rank. Again for reasons

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unknown [Fu Ju-lei] received his current appointment. Naturally, given his previous mentality as a bandit, he has done harm to the people. That was not the only offense. The confession of P， i Ch’ien-ssu 皮 千 四 [“Thousand-four”] [as will be brought up presently] haS made this abundantly clear. How can Fu Ju-lei, relying upon his martial strength, resist legal proceedings? The investigation will proceed ac­ cordingly: arrest the parties who are not yet at hand，and put Fu Julei on trial again for his offenses. Recently, when I was serving in Chiang-hsi these bandits, father and son， allied themselves with mad Buddhist monks.106They gathered crowds to commit acts of sedition that shook the two circuits and brought destruction to their districts. Yet the officials， accustomed to inaction, bought the bandits off with official resources and rewarded them with generous gifts, just to get them pacified.107But their arro­ gant behavior flared up even more. If we look at the consequences for Chiang Prefecture, not a single year has passed without some distur­ bance. It has been a matter of constant regret. Upon my. undeserved appointment to Hu-nan circuit, I suddenly discovered in the list of the officials and officers the name of the young desperado, Fu Ju-lei. He was still serving in the circuit as a patrolling inspector. Since people had not yet raised accusations against him, I tolerated his presence for the time being. However, once I had assumed my duties, one household after another accused Fu of illegal acts. Some alleged that he accepted unsubstantiated testimony; others accused him of letting the soldiers from the stockade engage in looting. I ordered the nearby prefecture and districts to investigate, still with the hope that he might somehow restrain his evil behavior. Recently, according to the investigative report of the judicial office (chou-yilan 州院）at Heng 衡 Prefecture [near present-day Heng-yang city in Hu-nan], Pi Ch’ien-ssu, because of a dispute over an irrigation water-wheel, assembled an armed crowd and killed Yang Pai-erh 楊百 二. Fu Ju-lei, as the patrolling inspector, was dispatched to investi­ gate. In conspiratorial cooperation with the stockade clerk, T’an Shen 潭伸， he had his personal guard attendant, Ho Chao 賀照， make threats in order to extort [from Pi Ch’ien-ssu] a payoff of one thousand strings of coins in large denomination paper currency and, in addition， three hundred strings in small denominations. ^ r I ordered the district to arrest the patrolling inspector, Fu Ju-lei, and the stockade'clerk, T’an Shen, for investigation. Next, from the

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same district, Feng T， ien-lin 馮天麟，Ch’en Tsung 陳宗，and others, also accused the patrolling inspector, Fu Ju-lei， ,o f taking graft. When questioning was about to begin at the court, Ju-lei shouted in defi­ ance and openly cried that to be an officer was not as free as to be a looter, and that he would feel much happier not being an officer. The case was sent to the prefectural judicial office for thorough investigation. Afterward, on the basis of the prefectural judicial author­ ities investigation of the patrolling inspector, Fu Ju-lei, this office, while it acknowledges that graft and corruption can never be entirely avoided, came to feel that this case could not be compared with ordinary corruption. This case involves a bandit who became an official by bogus claims and who, as an unworthy official, conspired to seize and steal wealth. Such is his beastly nature, like a tiger or a wolf, unrepentant throughout his life. According to law: “One in command of a stockade who accepts graft worth fifteen rolls [of silk] is punishable by strangulation upon the report of his superior officer and a judicial decision, Fu Ju-lei re­ ceived graft worth more than fifty rolls of silk; even the death penalty does not match his crime. Also according to law, (yHu Ying-mao， s attempts to redeem his conditionally sold garden. According to the law “A person who condi­ tionally sells land or houses draws up a deed, one copy for the creditor and one copy for the owner.， ，As everyone knows, this is done every­ where. Hu Ying-mao and his father live in the district town. How could they not know this? Yet they claim that they conditionally sold their garde,n and house at Hsiao Encampment to the honorable Mr. Tseng, a former prefect, without a single word of documentation. Even people who take some clothing to a pawnshop in order to borrow a hundred odd coins will have to produce the pawn ticket to redeem the article.44 If the pawn ticket should be lost then there will be no way to redeem the clothing. How could it be that land and house conditional sales could be redeemed without proof? Previously，the district office has allowed. Hu to deposit exchange guarantee money (chiao-ch， ien 交錢）at the district treasury, for which he received a certificate to manage the property. On what documen­ tary proof did this action of the district office rely? We do not kjiow. But, in the judgment of the fiscal commissioner, the consignment of money and the grant of the certificate were based on H u， s one-sided, argument. All the arguments on both sides-from the very beginning should be written up and reported and further orders awaited. To pursue this line of enquiry, there has evidently been clerical fraud. It has been asserted that originally the younger Tseng brother, a district sheriff, loaned five strings of coins. However, it is not known what documentary proof Sheriff Tseng holds to prove that it was a conditional sale for which he loaned the money. When people hold property, they always care for it. Unless they have no choice they would not let it be redeemed. The father of Tseng the sheriff acquired land, garden, and house. Why should the sheriff

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help to make sure that Hu Ying-mao would get it? What could be the motivation? , Tseng Yiieh, the elder brother, has asserted that the garden and the house at Hsiao Encampment were bought by his father. Although there are no deeds, there is a receipt for the money paid. Magistrate Chao has previously considered it acceptable as a supplementary docu­ ment. A search has been made on the background of this property as previously held by Ting Tzu-chao 丁子昭.According to both the record at the district and at the appropriate bureau, it was sold to Mr. Tseng, the prefect. This being so, Tseng Yiieh has three supplementary items of proof that the garden and house at Hsiao Encampment was sold. How can the government disregard these three proofs and endorse the claim that is was a conditional sale, a claim that lacks a single word of documentation? Those who side with Hu Ying-mao merely argue that Tseng Yiieh does not have a formal deed. Yet Tseng Yiieh has produced a response from his younger brother, the sheriff, saying that when the deed is found it will be submitted. Mr. Ch’en，the former recorder, has cor­ rectly surmised that the deed is in the hands of the younger brother. How then could Tseng Yiieh get hold of a formal deed? Investigation also finds that the disputed house and garden are not in a very productive area. Why does Hu Ying-mao insist on having it? It is because the younger Mr. Tseng, the sheriff, wants Hu Ying-mao to have it. The elder Tseng expelled the younger Tseng so thafc the younger Tseng had to set up a separate household elsewhere, without getting money and rice from the common supply. The house in the garden at Hsiao Encampment is precisely where the common family grain supply is stored. This is why the younger Tseng, feeling resent­ ful, insists on seizing [the property] and turning it over to Hu Yingmao, resulting in endless lawsuits. Now the case comes before the present office. Because it involves on both sides well-known officials and gentlemen, no effort has been spared in repeated attempts to persuade the parties to accept a har­ monious settlement, in order to preserve grace and righteousness. However, it has been most difficult to discuss this with the parties involved. Therefore, although my rank is humble and my post low, I can no longer be afraid [of dealing with the case]. My only option is to hold fast to a sense of public spiritedness and to speak truth to the fullest. Then, even if this should cause enmity and resentment, I would not feel disturbed.

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*A11the arguments of Hu Ying-mao concerning Tseng Yiieh’s having redeemed the garden and house at Hsiao Encampment, in the absence of the deed and other documents, make it unacceptable that redemp­ tion be permitted [at this time]. The certificate the district office gave to him without itself having seen any proof [ofhis assertions] is ordered to be returned to the appropriate bureau of the district office where it is to be destroyed. The district office is to be informed that the escrow deposit Hu Ying-mao has made to the district treasury should be re­ turned to him. He may wait for the settlement of the property division. If the property goes to the younger Tseng, the sheriff, it would not be too. late at that point for Hu Ying-mao to redeem the property from him. As to the dispute about the mulberry tree leaves, according to the testimony, it was Hu Ying-mao and his father who led P ’ei Pingtzu 裴丙子 and others to do the picking. Since the grove will have been restored to the elder son, an heir to Prefect Tseng, what is pro­ duced omit,should also belong to that family. After this case, P’ei Ping-tzu shall be ordered tam ake restitution to the Tseng family. Furthermore, I am merely a small official on the prefectural staff. Even iftl discuss that exhaustively and without reservations, I will not be able to solve the probtem of the lawsuits in which the Tseng brothersr£U,e mired. Nor would .this eliminate their disputes. Thus, in my opinion, the government cannot eliminate the,disputes in the Tseng family. However， can it continue to tolerate those partisans who have helped to intensify the disputes, people such a这Hu Ying-mao, witli-i out subjecting them to discipline? A report is to be bent to the district offices, asking that a placard be publicly posted. I t should say that henceforth, in any plaint or lawsuit that involves the Tseng brothers, in which either the younger brother gets someone to accuse his elder brother or the elder brother gets someone to lodge a plaint against the younger brother, the origins of the dispute will be thoroughly in­ vestigated. Those who Have conspired to support it, or who have in­ stigated it, will be severely punished. In this way the lawsuits of the Tseng family may diminish. All the documents on file are to be handed back to the^parties involved in the view of the court, except the dis­ trict certificate given to Hu which is to'be destroyed. Hsii Pa-wu 徐八 五 [^Eight-five， ， ] is to be detained for further questioning on the pick­ ing of mulberry tree leaves. AIL the rest are dismissed.

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MAKING CHANGES IN W O R D IN G 45 author: Jen-ch'ing 人 境

As this document reveals, the Southern Sung local governments had at their offices plot registers of land-holdings in which the individual pieces were numbered. It appears that these numbers may well have been given consecutively to adjoining pieces of land. This at least is one way ofinterpreting the arguments in this case. Itwould seem that one of the parties altered the wording in his land documents so that they showed him owning ten mou instead of five. Thus his property would have usurped a large part ofthe property owned by his neighbor. This had apparently happened rather recently, for although the parties had owned their neighboring plots for long periods of time, no earlier dispute had arisen. By comparing the land documents with the govern­ ments own plot registers the investigators are 这ble to ascertain what had happened. This piece also reflects the role of the formalized but unpaid structures through which the government attempted to control the countryside. In this case the settlement is to be made in public before the members of the local control group called the large guard.

Concerning the dispute between Kung Fu 龔敷 and Yu Pai-hsi 游 伯熙 about the three parcels of land numbered 287, 288，and 289, in the number one [large] guard of the forty-eighth superior guard, both sides stood by their positions, so that the authorities initially were not able to determine who was right and who was wrong. When we take the harvest plot registers of this office and analyze them together with the land documents of the two families, we can see that plots numbers 287 and 288 are held in tenancy by Kung Fu, and plot 289 is held in tenancy by Yu Pai-hsi. Plot 287 is calculated to contain five mou forty-five pu. Two eighty-eight contains four mou one chiao 角 thirty-two pu. There is absolutely no discrepancy be­ tween this assessment and the official register. As for J)lot 289，ac­ cording to what is recorded on the land document held by Yu Pai-hsi, it contains ten mou fifty-five pu, but according to the official register it only c o n ta in s five m ou fifteenp u . When this situation is thoroughly examined in terms of the deed, it would appear that, within the land document itself additional mou

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were added and characters changed. The intricacies of this can easily be seen. How is it then that when each man has been in possession of his property for a long period of time, there have been no declarations or plaints heretofore? It is clear that this stems from Yu Pai-hsi， s current intent to seize control of the property of Rung Fu. The two parties involved in the dispute are to be brought together before the local chief, the members of the neighborhood guard unit are to be assembled, and in a public way the situation is to be re­ established as it has been in the past. Control over the properties is to be returned to the two families. Now, according to the statement ofKung Fu, Yu Pai-hsi has already chopped down the trees planted as a palisade. Thus, the traces of this chopping down can surely be examined, and this together with the mandated public settlement, admit of no hesitation. If there should again be declarations or plaints, the neighborhood guard is to be charged with investigating and settling them.

FALSELY DESIGNATING THE FOUR BOUNDARIES OF DISPUTED HILLSIDE46 author: Liu Hou-ts'un

This rather confusing case revolves around control of a hill on which there were some family graves. A previous hearing had already ruled in favor of one of the parties when the younger brother of the other party raised a plaint concerning the boundaries of the property. Liu Hou-ts’ un was about to punish the man whose younger brother had entered the plaint about the boundaries when he was dissuaded from doing so by a retired official who was a maternal relative of the two plaintiffs. The sheriffwas sent to investigate. This retired officialappar­ ently offered a subtle bribe to him and was outraged when this was refused. He interfered with the investigation. Itthen became clear that the suit about the properties, which apparently claimed that theyjoined one another, had no basis in fact since the properties were separated. The court ruled against the plaintiffs but they refused to accept the verdict, abused the current owners of the plot they coveted, and sup­

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posedly bribed the village functionaries to support them. Liu Hou-ts'un ruled that it was a clear case of a powerful local family presuming on their local influence to encroach on other people’ s property.

The lawsuit between Yii Hsing-fu 俞行父 and Fu San-ch’i 傳三七 [“Three-seven”] disputing a hill [on which there are graves] has already been settled [by the court]. Yet Yii Hsing-fu got his younger brother, Yu Ting-kuo 俞定國，to raise without good reason a plaint about the issue of the four boundaries of the allotted piece and devised a plot with the guard group scribe (pao-ssu 保司)• His deliberate inten­ tion is to confuse right and wrong. I was about to sentence Yii Hsing-fu severely when a former recorder named Tsu paid a visit. He said that he was a maternal relative of Yii Hsing-fu and Yii Ting-kuo. He felt that the Yii brothers were in the right and Fu San_ch’i in the wrong. In hearing lawsuits, it is my normal practice not to insist on my own views but solely to agree with what is correct. Thinking that what was said by Tsu, the former recorder, might be correct, I assigned the district sheriff to conduct an investigation. When the district sheriff himself went to the spot, Tsu wanted to give him a gift. When the district sheriff declined it, Tsu became very angry. He put the neighbors of immediate relevancy [who could have supplied information] into hiding and openly used strips of paper with “Recorder Tsu” on them to seal their doors, thus preventing the official mission from summoning these neighbors. Then the district sheriff found that between this hill bought by Yii Hsing-fu and the land bought by Fu San-chi there is a dividing ditch. The two properties are located in two separate places, and clearly have nothing to do with each other. The recorder Mr. Tsu, Yu Hsingfu, and Yu Ting-kuo, knowing their case was crooked, still refused to abide by the official decision. They often threw refuse across on to the new grave of Fu San-ch’i to pollute it, though the Fu family are just humble people who bought the land to bury their parents, without ever offending the Yu brothers, Hsing-fu and Ting-kuo. The Yii brothers at first fabricated a red annotation by the guard group scribe, to provide a false verification of their claim, thus changing white into black and turning things awry. Next, they bribed the guard group scribe to join in the cheating scheme. Finally they presumed upon their influence to assure their victory in their case. But why

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would this former official surnamed Tsu interfere with the lawsuit between Yii and Fu, two different surnames, when it is none of his business? As to the sealing up of the doors of neighbors and the throw­ ing of dirt on the grave of someone else, are these acts of which a worthy official would approve? . Chien-yang District [now Chien-yang in Fu-chien] has a reputation as an area that respects moral education, ritual, and justice. While earlier masters are gone, [living examples of admirable conduct are present]. The Hon. Mr. Yu, a former bureau director in the ministry (lang-chung 郎仲),47 lives right behind the district office. He never visits the office, nor does he ever communicate with the current officials. The Hon. Mr. Chu is a former vice minister who stood high at the Imperial Court. Whenever he writes to the district office, he conveys his earnest anxiety that his agents and servants not be allowed to take advantage of the village people or to disturb them. [In the present case] Mr. Tsu, a former recorder, has far less senior­ ity than these gentlemen, Mr. Chu and Mr. Yu. His title and rank are much inferior. Yet he has dared to behave in an overbearing and intim­ idating way, attempting to impose an arbitrary settlement on the community by pressure. This is because I am merely a humble district magistrate, with little prestige, and am unable to do what is right for the people, so that the village people are oppressed by a resident former official. I feel ashamed of myself. , Yu Hsing-fu's grandfather, an Imperial Court gentleman, bought three hills that have twelve parqels from Liu Te-ch’eng SlJ 德成 for three hundred strings. There is something questionable about this, however. Generally, in buying land, the previous background document should be produced. Liu Te-ch’eng looks like a beggar. When he sold the three hills with their twelve parcels he produced instead some certifying documents made out by the large guard chief. These are not sufficient evidence. At present we do not have time to go into that. However, Fu San-ch'i got his land from Liu Pa-ssu 劉 八 四 （ “Eightfour”). It has nothing to do whatsoever with the hill of Yu Hsing-fu. First, it is ordered that Fu San-ch'i should manage this land and arrange for burials. Yii Hsing-fu and Yii Ting-kuo, who have relied on their power and wealth to oppress the common people, and on the influence of a former official in residence to resist the government offices, are each sentenced to one hundred blows of the heavy rod. . Their land deed is to be kept for the time being in the files, pending the outcome of the investigation of the background of the land that

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will occur when Liu Te-ch’eng is summoned for interrogation. The servants of the Yii family, after having been warned, are to be required to submit statements.

DOCTORING A CONTRACT DOCUMENT TO ENCLOSE HILL LAND ILLEGALLY48 author: W eng Hao-t,ang

The uncle ofthe defendant in this case had acquired a piece ofhillland through conditional sale from the uncle of the plaintiff. At the time of the sale the sellerhad not produced an original deed. The dispute there­ fore revolved around an understanding of the receipt produced at the time of sale. The notary office that had initialjurisdiction in the case had the document evaluated by the document store experts. They found that the document had been altered, presumably by the plaintiffs. Weng Hao-t， ang reconfirms the rights of the defendant and orders that the ] plaintiff be beaten. It seems clear that part of the problem stemmed from the powerful local position of the family of the plaintiffs.

The dispute between Fang Po-ta 方伯達 and Hsii Ying-ch， en 徐應 辰 over Kang-t’ou Hill has gone on for a long time without a settlement. Now the various parties have been summoned to produce their land documents. It is found that Fang Liu-i 方六乙， the uncle of Fang Po-ta, conditionally sold the said hill to Hsii Ch， ien-ssu 徐 千 四 [“Thousandfour”]，the uncle of Hsii Ying-ch， en. Hsii Ch， ien-ssu is survived by a son named Hsu Yeh 徐燁. Fang Po-ta, because his ancestral grave site was on the hill, acted in 1240. With eight strings and four hundred coins, he redeemed the property from Hsu Yeh, the owner. This is clear from the contents of Hsii Yeh^ receipt of money at that time. The receipt also states that a search fdiled to turn up the registered land deed. Then Fang Po-ta used this receipt to have the land officially registered [as his]. The Hsii clan got the money, yet they objected to the redeeming of the conditional sale. Hsii Ying-ch’en is a distant cousin. Though it is

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not his business, he interfered in the case to dispute the property. Taking a conditional sale contract of an earlier generation he had one line erased and substituted four different characters signifying the local name of the property, which in effect would enclose one addi­ tional mou of land owned by others. Next he also put in another line regarding the hill plantation on the outskirts of the property with the intention of seizing it. The notary office of the administrative assistant ordered the docu­ ment store experts to examine this contract. It evidently shows erasing and rewriting. The so-called hill plantation on the outskirts does not agree with the local name in the official tax records. The four added characters imply a desire to get one mou of land from others. Hsii Yeh hid himself and would not appear at court. He simply let Hsii Yingch， en come to make arbitrary arguments. If one branch of the Hsu clan gets the money and another branch occupies the hill land so they are able in this way to achieve their aims then all powerful elements can do what they like in the community and the law of the state may be set aside. Hsii Ying-ch， en is sentenced to one hundred blows of the heavy rod. The contract is to be kept in the files. The hill property goes back to Fang Po-ta, as his property through redemption. A notice and placard is to be issued to the security personnel to bring in four additional persons who did not come forward after being summoned.

CORROBORATIVE EVIDENCE NEEDED IN A DISPUTE OVER HILL LAND

author: n.a.49

This piece and the following one both involve some of the same per­ sons. Fan Seng is a principal in both and Tseng Tse-hui from this first piece isalmost certainly the “ former prefect, Mr. Tseng”of the follow­ ing entry. The Fang Pa of this piece is also clearly the elder brother of Fan Seng, in the next case referred to by his formal name, Fan Yiianchih. This first case concerns the sale of a piece ofproperty that occurred long before the suit was brought. The official writing the opinion feels he cannot rule on some of the issues involved because, according to

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law, the government would not accept suits over conditional sales if twenty years had passed or ifthe owner or creditor was dead. He none­ theless recognized that the documents produced by one side seemed to be valid on their face, while also giving some credence to the position of the other party, that the plaintiffwas too young and too ill to have given his informed consent to the arrangement, creating a presump­ tion that his mother may have been coerced by circumstance into making the sale and faking the approval of her son. Despite the time limit he then moves on to consider the case. In the end the case is sent to another unit so that certain documents can be compared. One clue to the process here is the remark by the official writing the opinion that he was working with a deadline set by his superior. Thus he asks that someone else be appointed to arrive at a finaljudgment.

In reference to the dispute between Tseng Tzu-hui 曾子晦 and Fan Seng 范僧 over some hill land, two separate parcels are involved. One, at “Chicken-coop H ill， ” already has been finally settled by the commis­ sioner concurrently serving as prefect and leaves no further questions. The other parcel, now in dispute, concerns only the “Sung Family Springhead H ill.” This hill was originally the property of Yang Sanliu 楊 三 六 [“Three-six”]，but was then sold to Fan Tsung 范崇. The deed, dated the twelfth month of 1190， clearly specified the four bound­ aries and recorded the price of six strings. [The land] was officially registered in the fourth month of 1192. This is the basis of Fan Seng's claim. Later Fan Seng and his mother sold the “Yellow Nut Grove” together with the hill land to the house of Tseng, the secretary-general under the commissioner, for the price of six strings two hundred coins. Yet the contract fails to specify the four boundaries. Registration was applied for in the ninth month of 1209 and taxes began to be paid in the eighth month of 1229. This is the claim of Tseng Tzu-hui. According to the law，“Transactions depend solely on deeds and certificates.” Since Fan Seng and his mother sold this hill by contract to the family of Tseng Tzu-hui, after the sale every inch of it and every plant on it naturally came under the management of Tseng Tzu-hui. The original deed has no more validity. What can Fan Seng have to say? However, when Fan was questioned concerning his contention，[his claim] was found to be not entirely without reason. The contract Tseng

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now holds clearly states that Fan Seng, when he was a boy, suffered from convulsion attacks. His family had no money for his medical care. Apparently his elder brother, Fan Pa 犯 八 [“Eight”]， during the childhood of Fan'Seng, transcribed the contract. The contract was actually drawn up by his mother, the woman Huang. They simply put Fan Seng， s name on it. While Tseng Tzu-hui holds that Fan Seng personally signed the contract, Fan Seng contends that he never signed it nor took the money. While Tseng holds that Fan personally accepted the money, Fan Seng contends that he never did. In support of the claim of Tseng it may be argued, if the sale contract was not valid, why did Fan fail to dispute it during the last thirty years but disputed it only when Tseng complained? In support of the claim by Fan，it may be argued that if the sale had indeed occurred, why during the half year of this dispute was Tseng Tzu-hui unwilling to produce the contract at court but tried to use a fabricated docu­ ment to back his false claim? According to the law, “The government cannot take a case of con­ ditional sale aftertwenty years or if the creditor or the owner are no longer alive,50 Now the contentions of the two parties are like a square and、 cirfcle. They simply do not mesh. Furthermore, none of those involved with the contract is alive to be a witness. This notary office finds it impossible to get to the bottom of the case or ascertain the actual situation. Having no other option, this office orders the two families to recon­ cile their differences out of court.51 Our intentions are simple. Tseng is the family that gains and Fan is the family that loses. Everyone, even the most ignorant, must see that the Fan family, like the small state of Hsi 息， cannot^ seek to attack the Tseng family, which is analo­ gous to the mor6 powerful statd of Cheng 鄭.52 For this reason the court has repeatedly urged the two parties to follow examples of the peaceful [resolution of disputes] as in the case of the dispute betwefen the Yii 虞 and Ju i 西 states [in ancient history as praised in the A-ya sectioiibfthe Book of Poetry].53 Our hope was that they would forever end this litigation and that the government would never be bothered again. Because the two cbntending parties have defended what they believe to be th^ir respective advantages, I have no choice but to settle the matter in fairness. The “Sung Family Springhead H ill” has little value, but the pine and fir planted on it are worth a good deal. Before Fan cut down the trees with axes no one bothered to ascertain who was

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the owner. Once Fan sold the wood, Tseng Tzu-hui began to complain to the government. Obviously the dispute revolves around the wood rather than the hill. • ^ By going back and forth over the contentions of both families I was eventually led to the following even-handedjudgment. Tseng Tzu-hui， s claim to this hill is correct on the basis of the sale contract of 1209 drawn up by the woman Huang, Fan’s mother. Fan’s claim is incorrect in claiming it on the grounds of a document for the division of family property left by his father, a former prefect. That is because this docu­ ment specified the local name of the hill as the “Sung Family Spring.” This is not the same place, I think, as the “Sung Family Springhead.” Furthermore, this hill [specified in the Tseng family document as the “Sung Family Spring”] has one boundary that reaches the hill owned by Sung Wu 宋 五 [“F ifth ， ， ]，w hile another boundary borders upon the hill of the Fan family. It is not known whether Tseng Tzuhui’s transaction with Sung Wu preceded that with the woman Huang or came afterwards because Tseng Tzu-hui from the beginning declined to produce the contract for official examination but used his family document as a substitute. Understandably J'an would not stop arguing. It also leaves the court in doubt about the family document as well as the contract. In addition, another point may have corroborative value. According to Fan Pa, the elder brother of Fan Seng, the ^Yellow-Nut Greve” was at one time conditionally sold to Tseng Tzu-hui. By the local custom of Chieh-yang [present-day Chien-yang in Fu-chien], such transactions usually lead to the invalidation of family documents for property divi­ sion. Tseng Tzu-hui thinks that neither the “Yellow-Nut Grove” nor the “Sung Family Springhead” property have been so invalidated. Yet Fan Seng insists that the “Yellow-Nut Grove” has been so invalidated but that the other property has not as yet been sold. Now, Fan Seng*s family document of property division is kept by the household revenue office of the prefecture. If the hill in question and the grove,have not had their documents invalidated, then Tseng Tzu-hui， s argument is right and the hill should be turned over to the Tseng household for management. If on the other hand the document on the “Yellow-Nut Grove” alone has been invalidated [but that other has not], then Fan Seng’s argument is the right one and the contract held back by Tseng Tzu-hui is particularly subject to doubt. The documents in this case are difficult to examine in detail. On the other hand I do not dare to exceed the time lim it set by the

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commissioner-prefect. This report gathers the facts as well as the rea­ soning involved. The commissioner-prefect is requested to appoint another official to double-check this case and to bring it to an end in all fairness. The docrnnents are to be returned to the parties who shall acknowledge their receipt.

CASES CLAIM ING INEQUITIES IN CONDITIONAL SALES ARE NOT TO BE HEARD IF TWENTY YEARS HAVE PASSED54 author: n.a.

The facts ofthis case are rather confusing. Three brothers divided their family estate many years before this case arose. One of the brothers sold a hill to another family. The brother who sold the property died shortly thereafter, without an heir. It would seem that one ofthe other brothers brought a suit claiming a right to the hill property that had been sold by his brother. His suit is dismissed because he did not raise the issue until some thirty years after the event. The authorities were not supposed to accept such suits ifthey were lodged more than twenty years after the event. The case reflects the general penchant of Sung judges to weigh actual possession, and use very heavily in attempting to establish ownership.

The scholar, Mr. Wu, has accused Fan Seng 范僧 of falsely laying a claim to a hillside that contains graves. The deeds and certificates of the two families, produced on demand, were formerly sent to the office of the revenue manager for detailed examination. According to the report of that office, there were three brothers, Fan Ch， eng-chih 范誠 之，Fan Yuan-chih 范元之，and lastly Fan Seng. In 1207，the family property was divided and the document [of division] was officially reg­ istered and sealed. In the tenth month of the following year, the house of Tseng bought from Fan Yiian-chih the hill below the “Chicken-coop H ill， ” the broker being Fan Ch， i-liu 范 七 六 [“Seven-Six”]. That was more than thirty

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years ago. Since the seller, Fan Yiian-chih, is already dead, there is no way to check on this business. A report to the prefectural official and a directive to the district office asked that an unbiased superior guard leader be assigned to get the neighbors together for a fair investigation. Now, Chien-yang District reports that, according to the statements of the assigned superior guard leader, Ch’ang Chi 常吉， the neighbor, Chung Wu-chiu 鍾 五 九 [“Five-nine”], and others, Fan Yuan-chih died in 1211, leaving no heir. The statement also asserts that at the base of “Chicken_coop H ill” there are three graves that have been there for more than thirty years. They are the graves of the former prefect, Mr. Tseng, and his two wives，Madame Lu and Madame Chiang. In addi­ tion, there is the ancient grave of the Wang family. The witnesses have never seen Fan Seng burying anyone at this hill. It was also said that, in 1207，while Fan Yiian-chih was still alive, Fan Seng had already sold parcels of the land that would have been part of his inheritance; a late harvest field to Mr. H sia，a scholar of the first degree; a grove to the son of the Hua family; and the “YellowNut Grove” together with the hill to the house of the former prefect, Mr. Tseng. I have found that Fan Yiian-chih, having sold the hill that is now under dispute to the house of Tseng in 1208，died in 1211. Yet the basis on which Fan Seng rests his case is an old deed from 1176， which says that the hill has two graves: that of his mother, the woman Huang, and that of his eldest brother, Ch， eng-chih. On the other hand the house of Tseng has pointed out the ancient graves of the Wang family. Why did Fan Seng not initiate his dispute at the time when the house of Tseng made their burials and yet did so after the house of Tseng complained to the government? The investigation reveals no evidence of Fan Seng’s having graves on the hillside, whereas the house of Tseng has managed the property and made burials for many years. The property should be ordered to be restored according to the deed to the house of Tseng for their man­ agement. However, the house of Tseng should not open any grave that lies on the hill. A directive is to be sent to the district for its information. At the same time, the superior prefectural office is re­ quested to make its final ruling. The judgment of Prefect Wang, who holds the rank of vice minister， has arrived. “The government is not to hear cases involving conditional sales of land and houses that occurred more than twenty years ago, or those in which the terms of the dispute are obscure. Mr. Tseng, the

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former prefect, bought the burial hill from Fan Yiian-chih thirty years ago. If it were an inherited property of Fan Seng, why did he not lodge a plaint at the time of Tseng’s purchase? Moreover, the buyer and the seller are both dead and the time lim it for hearing this type of case has passed. A notice to Fan Seng shall be posted on the office gate. The rest shall be in accord with the draft order of the notary office.”

Repurchase of Houses NOT VACATING A PROPERTY ALREADY SOLD55' author: W u Shu-chai

Most ofthe facts in this case are clear. The woman Chang sold outright the house in which she lived with her young grandsons. Two years later her cousin, Hsii Sftili-erh, exercised his rights as a relative to redeem the property. Some years later the widow Chang approached the court e^king that she be allowed to redeem the house from Hsu Shih-erh, claiming that her original alienation had merely been a conditional'sale. From the courfs point of view there are several problems with her position. First, as a widow with minor grandsons, she was not allowed by law to alienate the,property that would be h^r grandsons’ inheritance. Second, the documents clearly show.that she had sold the property outright, not conditionally. Finally, the time limit had passed for state acceptance of a dispute over the property. Having clarified all this thejudge, nonetheless, is seeking some way ofprotecting the inter­ ests of the widow and her grandsons, now young men, on the grounds that the current owner, Hsii Shih-erh, isher cousin and that she appar­ ently stilloccupies the property. He remands the matter to the district with a request that they investigate.

_|— 11— —

iiii i鯽【

圃

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

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

The woman Ohang, during the Shao-ting reign period (1228-33), made three contracts that sold the two-room house in which she lived and the land on which it stood to Hsii Lin 徐麟 for 105 strings of cash. At the time 6f the sale the woman Chang was a widow living alone.

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Her grandsons, Hsu Ting-sun 徐鼎孫，[and his brother] were chil­ dren. According to the rules of the statutes and ordinances’ the woman Chang should not have sold the property nor should Hsii Lin have purchased it.56 However, the woman Chang was desperately poor and without other means. With her husband and son both dead，and with two young grandsons, she was anxious to sell whatever she could in order to feed her dependents. Essentially she had no alternative. Two years later, Hsu Shih-erh 徐十二 availed himself of the stipula­ tion in the law which gives neighbors and relatives [the right of prior option] to repurchase property at the original sale price. A further nine years passed, yet the woman Chang still did not lodge a complaint. Suddenly, in the first month of this year, she and her grandson, Hsii Ting-sun, filed a plaint. On the grounds that at the time she had merely conditionally sold the property to Hsii Lin and had not sold it outright, she wanted to redeem it. The district magistrate has already ordered Hsii Shih-erh to return the property upon repayment [which would compensate him for his investment]. Now Hsii Shih-erh has filed a counterplaint in the prefecture. It alleges that Hsii Lin, seeing the repairs and improvements to the prop­ erty and resenting the fact that years ago [the family had been able] to force him to sell the property back to them at the original price because he was an outsider, has deliberately helped the woman Chang and her grandson Hsii Ting-sun in their false claim that the original sale had only been a conditional sale. Hsii Shih-erh has also submitted to the court three officially certified purchase contract documents57 of voluntary sale that he received from Hsii Lin when [Hsii Shih-erh] repurchased the property. A detailed examination of this lawsuit shows that the woman Chang did make the sale to Hsu Lin. A certified contract clearly carries the two characters “alienated through sale.” She cannot say that she did not sell it. Ten odd years have already passed. Even if we wished to give some consideration to a widow with a minor grandson, it is still beyond the legal lim it for government consideration of the case. Suppose that through a series of transactions an outsider of another surname had succeeded in getting hold of this property, the woman Chang, having alienated [the property], would have absolutely no way of redeeming it. However, if we think of this in terms of humane moral sense, the woman Chang and Hsii Shih-erh are cousins by marriage. There are

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thus still two veiwpoints on whether redemption should be allowed or not.58 According to the testimony of the woman Chang, she and her grandsons have been living continuously in the house. From the begin­ ning they never vacated the property. If the situation is really like this then Hsii Shih-erh should have some sympathy for his cousin who sold the property because there was no alternative and be pleased that the grandsons have grown up so well and now can hope to recover the old property to be a haven for themselves. [As the proverb says] “a man of Ch， u lost a bow, but a man of Ch， u eventually got it back/5 How could [Hsu Shih-erh] be so unfeeling as to throw them out, making homeless an old woman and two orphans? This is why the woman Chang thinks she should still be able to redeem the property. However, according to the evidence presented by Hsu Shih-erh, the woman Chang quit herself of the property long ago. It is Hsu Lin, motivated by a desire for revenge, who has prompted her to bring this plaint. If this is really the situation, then [the woman Chang] has fallen into a trap set by the crafty scheme of a petty person who has promoted this groundless lawsuit. Generally speaking, the government has to make a yes or no deci­ sion. It ought not to be ambiguous and leave both arguments open. However, I ， as prefect, do not clearly know whether or not the woman Chang has indeed vacated the property. This makes it difficult to arrive at a definite conclusion. At present the two plaints have not yet both reached this prefectural court. Since it is summer I do not wish to summon and interrogate those involved, which would be necessary for an investigation of a dispute among kin.59 I will order the assistant magistrate of Ch， ang-hua 昌花 District6。again to make a fair exami­ nation of the contracts and to report his preliminary finding within five days.

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Collateral for Loans U SING PROPERTY AS COLLATERAL FOR A LOAN W ITHOUT VACATING THE PROPERTY61 author: W u Shu-chai 舗

........................................................ 丨 ...........................................................................................................................................................................................................................................

In 1215 a m an nam ed H su Tzu-cheng loaned a sum o f money, to be repaid in cash, to a farm er nam ed Yang Yen. To disguise the fact th a t this loan was earning m ore interest than was allowable, the docum ents called the transaction a conditional sale. Yang Yen, and after h im his son, never vacated the land; H sii Tzu-cheng never paid taxes. Instead the farm er and his heir paid H sii Tzu-cheng annu al interest. Then in 1241 H sii com plained to the district office th a t he was owed back rent and dem anded th a t the re nt be paid in rice. H is move was apparently prom pted by an attem p t by Y ang Yen’s son to redeem the lan d through paym ent o f the origin al price, a legally perm issible act if in fact the original agreement had been a conditional sale. W u Shu-chai recog­ nizes th a t H sii Tzu-cheng， s dem and th a t the paym ent be m ade in rice is based on the change in the price o f rice and rules th a t since past paym ents had been in money，H sii has no righ t to ask for a change in the type o f paym ent; in structs the farm ers to pay the back “re n t” they owe (w hich is really interest on the original loan); and finally, in a neatly ironic tw ist, rules th a t since H sii originally disguised the loan as a conditional sale, the court w ould treat it as a conditional sale, and allow the farm ers to redeem the land by paying back the am ou nt o f the original loan of 1215.

According to law “Those who conditionally sell their land or houses must vacate the property.” Also, “After a piece of land or a building has been conditionally sold, when it has been certified by an official seal and becomes taxable, the authorities will calculate the taxes, list the amounts due, and collect them .， ， This procedure must be followed to make the conditional sale proper. Hsii Tzu-cheng 徐子政 in 1215 paid 280 strings of paper money to hold an alleged conditional sale on a piece of land of seven-odd mou

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owned by Yang Yen 楊衍. Although the contract was certified with a seal, Hsii did not pay taxes for twenty-six years between the Chiating (120&-24) and the Ch'un-yu (1241-52) reign periods and Yang (Yen) neither left tl^e property nor gave up his tenancy. His side con­ fessed that from the day of the conditional sale a fake rental contract was set up by which he promised to pay Hsu thirty strings in paper currency every year. This shows that Yang Yen merely turned this land into collateral for a loan from Hsii Tzu-cheng. Hsu benefited because he received more interest than he would have otherwise. Yang Yen died in 1225. Before that date he made his payment of interest every year and Hsii never complained. After that date Yang Wang-t'ing ‘ 王廷, Yang Yen’s son, did the same. Though on occasion he was behind a little, yet Hsii still had no complaints. However, in 1241，Hsu went to the district office with a plaint, demanding from Yang Wen-fing and other sons of Yang Yen the rent in rice of one thousand catties [a catty is equal to approximately one and one quarter pounds] for every year from 1225 on, a period of eighteen years. The total would come |o eighteen thousand catties. Deducting the 210 strings Yang had paid h^m, he now wanted the balance due him, all in rice. Hsu with good reason demand arrears in rent. However, he has suddenly converted the demand for a cash payment into a pay­ ment in kind. In, recent.year§, because of famine^, the price of rice has risen sharply. If it were to be used to figure the payments, this would multiply the payments to an uncountable amount of money. How very inhumane he is! If the original transaction had been a proper conditional sale, stipu­ lating the payment in rice,.then even though the price of rice later rose a hundredfold, Yang Wang-fing and the other sons would have to pay in rice and not in cash. But Hsii did not pay the taxes, nor did he manage the property. The reason why he did not collect rice in the interval clearly was because the property was used as collateral for a loan and was not the object of a proper conditional sale. Besides, during the twenty-six years while Yang Yen was alive he paid ,cash and after he died Wang-t'ing and the other sons did the same. Never once did they pay in rice. Why did Hsu never complain? Hsu is covetous. Because in recent years paper currency has lost value and the price of rice has risen, he wants to bypass paper cur­ rency and cash money and seeks rice, which is high in price. Or, if this is not the reason, [it may be that] Hsii sought to inflate the amount of rent arrears in order to thwart Yang Wang-t'ing and the other sons

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who were trying, through official channels, to redeem the land. He should know that a conditional sale always allows redemption. How much more should this be so in this case, when no tax was paid and the original owner did not leave the property, so that it Was not a proper conditional sale, but from the beginning merely a matter of collateral for a loan of 280 strings? The original loan has over twentysix years accumulated a large amount of interest. When will Hsu stop coveting excessive interest? This magistrate, in following the latest courtjudgment, hereby orders Yang Wang-t’ing and Yang Wang-lieh 楊王烈 to pay, excluding the rent they have already paid, the additional sum of sixty thousand cash in new paper currency. Also, in order to remove the recent restrain­ they should provide 280 ing order (yiieh-shu 約束）dating from 1225， strings, 30 percent in new paper currency and the rest in the old issue, in order to redeem the so-called conditional sale contract made by their father. This is appropriate, although from the beginning it was wrong to treat what was truly collateral for a Joan as a proper condi­ tional sale. The successive court judgments in the past have riot pointed out how Hsii did not pay taxes, how the management of the property was not transferred, and how the use of this land as colldteral for a loan was not in accordance with the regulations. Consequently, as nothing stopped him from coveting more, Hsii had the audacity to persist in his selfish desires and bother the government. A directive will be issued to the district office to follow through on this judgment and instruct Hsii Tzu-cheng accordingly. If [Hsii] should wrongly peti­ tion again, he will be punished according to the regulations.

TEMPORARY COLLATERAL FOR A LOAN62 author: Yeh Yen-feng

Like the preceding piece，th is case concerns an attem pt to disguise the use o f lan d as collateral for a loan by calling the transaction a condi­ tio n a l sale, thus allow ing the lender to dem and interest rates abbve those allowed on loans. Yeh Yen-feng, having exam ined the dodum ents subm itted and questioned some o f the parties, decides th a t the p lain ­ tiffs are sim ply u sing the fake conditional sale docum ent in an attem pt

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to take over the property, w hen in fact the original loan has largely been repaid already. As he sees it, the only real area o f dispute left concerns the value o f some goods sent to the lender as p a rtia l repay­ m ent. He suggests th a t these be returned to the debtor and the debtor then send the rem ainder o f the am ount owed in currency and cash.

It is reported that after the death of Yeh Wei-sou 葉渭叟 his family sent their agent to enter a statement at court bringing suit against Sung T’ien-hsi 宋天錫 and Li Yu-chJiian 李與權 for having cheated in a transaction. What is termed cheating means acting dishonestly by not carrying out agreed terms in an exchange. A statement of Li Cheng-ta 李正大， the son of Li Yu-chiian, states that his father used his land as collateral for a loan. The act of provid­ ing collateral for a loan is not a formal conditional sale. According to the custom of this district when people use land as collateral for a loan, they always set up two contracts: one as collateral for the loan and the other [as if] for a formal conditional sale. After a long time has passed people may just use the one contract and conceal the other， using the conditional sale contract to claim ownership of the prop­ erty. People do not realize, though they should, that a transaction involving collateral for a loan differs from a conditional sale [trans.: since it does not lead to a claim of ownership]. How can such affairs not hinge on written documents to serve as evidence and on a checking of the circumstances? Li Yti-ch5uan in 1218 sold thirty-three mou of land to Yeh Wei-sou at the price of 450 strings, with Sung T， ien_hsi serving as the broker. The contract looks like a formal conditional sale and not a document of collateral for a loan. However, an acquisition of property, regard­ less of size, should definitely lead to the vacating of the property by the current occupants and a change of tenants. Thirty-odd mou is a property of considerable size. Why didn’t Yeh have his agent take over the [management of] the land? Why did he instead use the broker, Sung T， ien-hsi， to serve as guarantor and to collect rents? This looks suspicious. Besides [to make the matter more complicated] SungT， ienhsi appended to the transaction paper a land deed of his own as collat­ eral for the loan. Then, Yeh Wei-sou himself wrote an annotation that said, “Sung T’ien-hsi and Li Yii-ch， lia n have turned over their deeds as security for what they have borrowed. The deeds in question will

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be returned to them when the money is fully paid back•” Thus it may be seen that the whole case was a question of collateral, not condi­ tional sale. Li Yii-ch’iian, under the pressure of paying both rental and interest for three years, became afraid of getting into too much debt. In the winter of 1220 he paid back the first item of what he had borrowed. Again Yeh Wei-sou wrote an introductory note saying, “Sung T， ienhsi and Mr. Li have repaid 300 strings. This is hereby acknowledged.” Both his writing and seal are very clear. O f course, some balance re­ mained still unpaid. According to Li Cheng-ta， the son, he sent over a screen with an ancient painting of birds on it, four large sized scrolls of landscape paintings by the scholar-official Kao, four regular-sized scrolls of paintings of sparrows and magpies in bamboo，and two famous calligraphy rubbings from T’an Prefecture [the present-day Ch’angsha] and Chiang 絳 Prefecture [near present-day Hsin-chiang on the Fen River in Shan-hsi], all of which was intended to cover the remainder of the debt. This time there was no introductory note by Yeh Wei-sou, but his agent said that these articles had been received by Li Hsi 李喜，a fellow agent at the Yeh estate. It may be seen that the debt was cleared up. Li Yii-ch’iian，after returning the money in cash and paper cur­ rency, has neither managed the property nor collected rent for these past fifteen years. What he said about the collateral for loan and how he paid the debt as promised is quite believable. Were Li Yii-ch， uan and Yeh Wei-sou still alive, certainly there would be no dispute; nor would they have bequeathed this terrible trouble to their descendants. Unfortunately both of them died in the same year, leaving no knowledgeable head in either family. How much does Yeh， s widow know or his grandson, a mere child? There must be some­ one else mastermiilding this household who has searched out this contract and wants to use it to take over the property from Li Chengta. Whoever it is does not realize that it is absurd now to demand management of the property and the right to collect rent since the property was used as collateral for a loan, and the loan was repaid, without there having been any plaints or accusations for fifteen years. But there is another point. The original amount was 450 strings, half in cash and half in paper currency. Li paid back 300 strings in cash. That more than covered the cash part. The sum over the cash part [300 minus half of 450] would cover one third of the currency part.

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Although the paintings and calligraphy rubbings counted toward the remainder of the debt, estimates of their value may vary. They might be valued highly according to one side but low according to the other. This is^why Li contends that he has overpaid, but Yeh argues that the^articles are not worth much. Such disputes never end. Why not have all these articles returned to Li Cheng-ta? He shall in turn make the effort to assemble the money needed to pay, in paper currency, the balance due the family of Yeh Wei-sou. The proper way is to pay cash for borrowed cash and pay paper money for borrowed paper money. How could there be any argument?

Land Disputes BUYER REN EG IN G AFTER PURCHASE BECAUSE OF H IG H PRICE63 author: H an Ssu-chai

The p la in tiff in this case, feeling th a t he had paid too m uch for a piece o f property, approached the authorities on two occasions, asking th a t the contract be voided arid his origin al price be returned to h im . H an Ssu-chai finds his p la in t com pletely unreasonable. The buyer made the deal w ith due forethought and care. H e wrote in to it provisions against reneging and a clause signed by one of the sellers sw earing th a t he had no younger brother (who m ight be able a t a later p o in t to contest the sale). H an Ssu-chai asks for thp issuing o f a court order, one copy going to the sellers ordering them not to interfere w ith the buyer’s use o f the property and one to the buyer to reassure h im o f his control.

Li Chen-ch， ing 李震卿 and His mother (nee Ni) during the third month sold to Lu Hsing-ssu 盧興嗣 land that harvests eight piculs and six pecks (tou 斗) of rice. The price was 550 strings. Lu Hsing-ssu personally went there to measure the land. He also got the tenant to

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acknowledge the sale and fixed the rental arrangement. Only then did he draw up the contract and pay the money. It may be said that Lu Hsing-ssu took careful precautions after much forethought. When he initially drew up the contract, Lu was concerned that Li Chen-ch， ing might wish to renege. He had it written into the contract explicitly that the one who first reneged would pay the government a fine of one hundred strings. This shows that at the time when Lu Hsing-ssu bought Chen-ch， ing’s land his only concern was that he would not get his hands on it. He also got Li to write into the contract an explicit statement that Li had no younger brothers or other junior family members. It is seen that even though he later complained about the high price of this transaction, his actions were wholly voluntary when he entered into it. Li Chen-ch’ing did not conspire with a broker to swindle him. Five months went by, a rather considerable span of time. Lu then brought the contract, which was not yet Registered, and complained to the court. It was he himself who violated the provisidns of the contact by reneging first. Should the punishment for him be just a light one? Lu Hsing-ssu began by accusing Li of lying about not having a jun­ ior member in his family. Because that [complaint] did not work, he recently submitted a plaint through the notary office charging that Li Chen-ch’ing has a brother who is not yet of age. However, according to Li’s testimony, his brother as a child had been adopted by his uncle, a younger brother of his father. By adoption his brother became a member of the other family, inherited this uncle’s property, and had nothing to do with the property that Li Chen-ch’ing inherited from his father. Moreover, Lu， s early plaint at the prefecture did not raise the issue of a younger brother. How can we now allow him to add on gradually more entangling issues to his plaint just to confuse the government? Obviously Lu Hsing-ssu knew Li Chen-ch， ing to be of mature age and he dealt with Li in this transaction. But after some one hundred and fifty days he brought a plaint in which he raised the argument about L i， s having a brother not yet of age. Lu came to court yesterday with his unregistered contract. Asked about the reason behind the litigation, he stated orally that the land he bought from Li Chen-ch’ing was slightly overpriced. He wanted Li to refund to him the original price under court supervision. This is particularly unreasonable, whether one considers humane moral feel­ ing or the intentions of the law. Generally speaking, poor families sell land because they lack other alternatives [to raise money they need].

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If Lu had reneged before the time lim it of sixty days then the money Li had received from the transaction might still have been there. But the fact is that the money changed hands half a year ago and Li has already used it to pay for the expenses of burying his father. He prob­ ably does not have any of it left. If the court compels him to refund the money to Lu, it means that the court will be disregarding the provision on time limits in the contract of the transaction. If Lu Hsing-ssu insists on Li’s refunding the money then Li will have to sell more land, even at a very low price, hoping some big wealthy household will buy it. However, potential buyers, knowing about the legal problems that beset his previous transaction, will inev­ itably decline to pay cash. Someone might even suspect that he might be trying to sell the same land twice. I will summon Li Chen-ch’ing and his mother nee Ni and issue to them a court order for the land to be restored to Lu Hsing-ssu, explic­ itly stating that Lu shall manage the property according to the contract. Should there be disputes over the matter of Li’s brother who was adopted by his uncle’s fam ily，L i Chen-ch’ing will be responsible for finding a separate piece of his land, commensurate in size and in rental income, with which to compensate his brother. In any event, this has nothing to do with Lu Hsing-ssu. This ruling ought to remove any suspicions he may have. Hence the court order will also be given to Lu. However, he should begin to pay taxes on the property. If he should dare to submit more plaints, unnecessarily burdening the commissioner-prefect, he will be first punished for his offenses and then told to carry out the order. This should serve to discourage those apt to start noisy lawsuits.

ACCU SING A NEPHEW OF FRAUDULENTLY SELLING LAND64 author: W u Shu-chai

T his case centers around a dispute over property originally belonging to a m an nam ed H ua Yung. In 1206 H ua Yung divided his property am ong his four sons. Two o f the sons sold six o f th e ir share o f the

mou

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property to an outsider over the course o f some ten years. N o issue was raised about these sales for more th a n th irty years, u n til after the two brothers died. Then a th ird brother brought suit alleging th a t his two deceased brothers had sold lan d th a t really was comm on lan d be­ longing to the family. The district court issued at order th a t the p la in ­

m ou.

tiff be allowed to redeem tw o W u Shu-chai, probably serving as a fiscal comm issioner a t this tim e, reverses th a t order. The district ought to have demanded th a t the parties produce documents to show w hether the land had in fact been divided. I f it had been, the p la in tiff had no rig h t in law to redeem the property. The district was also incorrect in allow ing him to redeem tw o since his share o f the inheritance w ould have been one quarter o f six I t seems odd th a t the p la in tiff did no t raise the issue o f being a party o f related concern who had rights to preem ptive purchase or to redem ption.

mou,

mou.

H u a Kang 華綱 and H u a Wei 華緯，together with H u a Wei-te 華惟 德 and Hua Wei-chung 華惟忠、 ，th e ir respective sons, turned over in conditional sale to ChJen Shun-ch^n 陳舜臣 land in excess of six mou through no less than ten contracts between 1229 and 1239. Moreover, the deeds were officially registered by being stamped with an official seal. The brothers, Hua Kang and Hua Wei, died. So did Ch， en Shunch’en. However, [a third son of Hua Yung] Hua Ta-ch,eng 華大成 regarded the land in question as common property left by the late grandfather, H u a Yung 華詠，without its having been divided among the family members. He contended that the land had been fraudu­ lently sold by Hua Wei-te and Hua Wei-chung to the son of Ch， en Shun-ch，en, named C h ， en K ，e_chiu 陳可久. The district office summoned all the parties to give testimony. Hua Ta-ch， eng contended that the property was bequeathed undivided by the grandfather [and therefore was common property]. On the other hand, Hua Wei-te and Hua Wei-chung argued that it was land inher­ ited by their late fathers, Hua Kang and Hua Wei, through division. The district official should have ordered the two parties to produce the land documents in order to determine whether or not this was indeed undivided property, thereby settling quite clearly the right and wrong of the respective claims. Why would there be uncertainty about whether it was already divided or not divided? whether a division had taken place or not? The district ordered Hua Ta-cheng to pay the

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price for two mou of land to redeem it from the family of Ch’en K ， echiu. But the rights and wrongs were not yet clarified, nor was the ambition of Hua Ta-ch’eng limited to these two mou. Neither was Ch’en KJe-chiu, who wished to keep the whole property intact, willing to surrender the two mou. This is why the suit did not come to an end. The idea of allotting two mou as settlement is not quite appropriate as a meajis of clarifying the dispute as to whether or not there had been an inheritance division.， Supposing that there had been undi­ vided common property and that Hua Yung had fathered four sons, then what the grandfather, Hua Yung, left would have been divided into four portions [for the four sons]. This [disputed] land would also have七een divided into four shares for purposes of redemption. Why should Hua Ta-ch'eng^ single share entitle him to redeem two mow?65 It is known that the old man, Hua Yung, who had four sons, di­ vided his property in 1206. The brothers, Hua Kang and Hua Tach’eng, in turn divided their property during the Chia-ting reign period (1208-24). Why after the divisions thirty years ago, would there still be undivided properties? And why did no dispute arise during the thirty year period wKen Hua Khng was alive? And why did the other parties not dispute but only Hua Ta-ch’eng come forward? What evidence do the authorities have which would lead them to believe that this disputed land was not divided by inheritance? If it should be said that the grand^ither left it undivided then the various family members must hbfd some written documents to that effect, along with documents of their divisions, with cross-references. It is appropriate for the court to demand that such proofs be produced. In this way, those who do not have ipopf will have nothing more to say. However, numerous family members have become involved in the two sides of this dispute. It would causae undue disturbance to summon every one of them to the prefectural offices. The case is to be sent to Fu-yang 富陽 District [present-day Fu-yang southwest ofHang-chou], which will carefully check all the subpoenaed documents and issue a preliminary finding. W ithin five days the district is to report back.

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TO END A DISPUTE BY TURNING DRY LAND OVER TO THE GOVERNMENT66 author: W u Shu-chai

This dispute revolves,around the attem pt by two m en to gain control of some property th a t had belonged to a m an who died w ith o u t heirs. O ne m an, C hu An-li, had some years before lent m oney to the deceased m an, w ith the lan d in question serving as collateral. In W u Shu-chai’s opinion he fraudulently had alterations made in the contract for the loan to m ake it appear to be a conditional sale. The other m an compet­ in g for the land was a nephew o f the deceased who moved in to the household after the death o f the property owner and was c laim ing th a t he had been adopted as an heir. H is claim was dism issed on legal grounds since he was the only h eir to another p a trilin e and could not under S ung law be adopted out. Moreover, none o f the relatives o f the deceased were w illin g to testify th a t he had been adopted. ‘T he case is a clear example o f local ju d ic ia l process. The judge examines the rel­ evant docum ents, takes oral testim ony from the parties, and examines the case files from both the district and the prefectural level. In the end he rules th a t the property had belonged to a p a trilin e th a t died out leaving no heirs, m ale or fem ale. D uring the S ung the issue o f such households was a subject of considerable debate and generated m uch legislation. There clearly were differing opinions am ong m em bers of the elite, w hich resulted in various changes in the laws. O ne party seems to have favored confiscation by the authorities of a larger or sm aller portion o f the property, a proportion th a t depended on the exist­ ence o f different sorts o f relatives. However, another party seems to have sought to distribute such properties rather widely, u nder some rules, no t only to blood relatives b u t even to tenants and other unre­ lated parties. A t the tim e w hen this opinion was delivered, a t least in the m ind o f this p articu lar judge, the governm ent ought in law to con­ fiscate a ll the property, if there were no qlear heirs (si\ch a§，for ex­ am ple, daughters liv in g a t hom e). The law as understood by th is judge is thus different from the law as it existed at some points d u rin g the Sung and also different from the basic rules th a t stem m ed from the codes o f the T*ang.67 T his m ost im portant aspect o f S ung law is s till in neeS of adequate clarification.

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Chang Ch’ing 張清 died without heir. He had two mou of dry land in the area of an alkaline pond. The dispute over it between Chu An: li 朱安禮 and Chang Ch， i-ssu 張 七 四 [“Seven-four”] went on from the district to the prefecture for two years. Chu never stopped arguing his plaint and Chang was twice beaten during interrogation. Chu An-li, in his oral testimony, said that he had used eighty strings in paper currency to get the conditional sale of the dry land in ques­ tion during the second month of 1240 and that he started paying taxes on it during the eleventh month of the same year. Chang Ch’i-ssu，in his oral testimony, claimed that he had joined the family of Chang Ch， ing as his adopted son. While Chang Ch’ing died in the tenth month of 1245，Chu An-li did not register the con­ tracts till the eleventh of the following month of the same year. While it was true that prior to this, during the second month,68 Chang Ch’ing did use the land as collateral for a loan from Chu An-li, he h^d repaid both the principal and the interest of the loan during the fifth month. Chu An-li did not give him back the contracts, because the contracts contained forged passages written by Chang Ch’ing’s since deceased son, Chang-Pai-san 張 百 三 [“Hundred-three”]，who committed the forgeries under the threat of Chu An-li. Upon carefully examining the case files of both the district and the prefecture, we have learned that neither Chang Ch’i-ssu nor Chu Anli should get the dry land originally owned by Chang Ch’ing. It should be regarded as the property of an extinct household and turned over to the government. What are the reasons? Chang Ch， ing， s using the land as collateral for a loan was in accord with local precedents. His mistake was in not getting the contracts back after he had paid both the principal and the interest on the land. The death of Chang Ch’ing led Chu An-li to conspire to try to appropriate the land as his own. This was why he had the contracts registered [as if they were still valid]. He did not realize that the fraudulent steps he was taking were easily detected. Now I have examined the two contracts. Both had their dates ret­ roactively filled in. Moreover, this was done by the same person. This is one indication of fraud. The contracts were executed in the second month but the registration was done some ten months later, after the death of Chang Ch’ing. This is the second indication of fraud. Because the transactions of Chu An-li are so unclear, there is no reason at all to go along with what he says.

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Nor is it permissible for Chang Ch’i-ssu to covet this land. He is the true son of Chang Liu-i 張 六 一 （ “Six-first”). Chang Ch， ing is only his uncle. Prior to the death of Chang Ch， ing， Chang Ch， i-ssu left his own household and lived apart in a different superior guard. After Chang Ch， ing ， s death, Chang Ch， i-ssu entered into the house of the deceased but he is not really his son. This is one point. While he claims to have moved over to be the heir, neither elders in the kinship nor anyone among the community neighbors dares to so testify. Nor is there any official document about the adoption. It so happens that in an unrelated matter Chu An-li holds a district judgment of 1238. That judgment explicitly names Chang Ch， ing as an uncle of Chang Ch’i-ssu. This is the second point that shows that Ch’i-ssu is not the son of Chang Ch’ing. The claim of having moved over as the heir does not hold, for the law states that “An only son who is the [sole] heir by the legal wife cannot be adopted by another household•” In the genealogical table drawn by Chang Ch’i-ssu himself he is the only son of his father. How is it reasonable or permissible for him to move over to an uncle’s household and thereby sever the line of descent of his own parents? Chang Ch’ing died without heirs. Chang Ch， i-ssu knowing this and also aware of the lack of clear title in the transaction of Chu An-li, sought to seize the property using as his excuse the alleged adoption. It is clear that he merely aimed at his own profit. Whenever something is to be gained, even if it is very small, people inevitably fight over it. Such a mentality drove Chu An-li, without scruple, to insert forgeries in the contracts. It also made Chang Ch’issu pretend without shame that he was the son of someone else. If such misconduct is not uprooted, how can the government expect to transform bad social customs into better ones? It is ordered that Chu An-li surrender his bogus contract to be officially destroyed and that the district by this directive investigate and audit Chang Ch’ing’s property as well as confiscate all of it accord­ ing to the legal provisions on extinct households, perhaps to be turned over to the district school to help support scholars. Chang Ch’i-ssu shall be sent under guard to the household of his father Chang Liu-i for the continuation of that family line. The land being disputed has little value. The government confis­ cates it not for profit. It merely wants petty people covetous of gain to understand that they must learn proper respectfulness so that they will not exceed what the law permits or violate ethical principles.

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Disputes over Buildings DISPUTE BETWEEN A MATERNAL UNCLE AND A N EPHEW 69 author: Yeh Yen-feng

Yeh Yen-feng, in describing this case, highlig hts two guidelines th a t were used by Sung m agistrates in ru lin g on cases th a t dealt w ith b u ild ­ ings. F irst, such cases should be based on the evidence in docum ents. Second, the authorities also had to take in to account how the property had been m anaged. O ne party, the m aternal uncle, bases his claim s to the house entirely on his possession o f contracts of purchase o f the house, llis nephew, the son o f his elder sister, bases his claim s in part on having m anaged the property for some twenty-eight years. The uncle asserts tHat, although he had purchased the bu ilding , he allow ed his sister to live tliete^ and collect the rents out of concern for her; the nephew asserts th a t his m o ther was the actual purchaser o f the property. Fearful th a t others m ig h t try to take advantage of her if she purchased the property in her ow n nam e, she hadrplaced it in the nam e o f her brother (the p jain tiff). Yeh Yen-feng decides for the nephew. He is particularly swayed by the question o f m anagem ent. The p la in tiff s sister had herself inanaged the g ild in g for m any years; in the two years since her death, her fam ily has continued to m anage it; and the te n a n t’s in the bu ild in g , in the ir testim ony and in th e ir re ntal agree­ m ents, refer to the house as the property o f the sister and her son.

Chang Ch’eng-tao 張誠道 is the maternal uncle and Chung Ch’enghsin 鍾承信，also known as Chung Wan-ch’iin 鍾萬釣，is the nephew. For uncle and nephew to dispute the ownership of a house violates propriety. According to Chung-s testimony, his mother bought two buildings, a total of seven rooms, in “Yang Family Alley” and rented theln out. But Chang Ch’eng-tao has testified that he bought, within that compound, two rooms in the front plus a small one inside. Both parties dispute the property.

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Generally speaking, house transactions are to be judged not only according to the written contracts but also according to how the prop­ erty has been managed. Chang Ch， eng-tao never managed the property, not even for a single day, though he holds a sale contact from Chang Hsiin-cheng 張 洵 正 [t r . note: presumably the previous owner]. His argument is that a person with a contract should prevail over a person without a contract. Chung Ch’eng-hsin holds only three papers of previous land docu­ ments from Chang Mo 張模 and others [t r . note: earlier owners]. He has no formal contract of either conditional or outright sale. Still, he has managed the building for twenty-eight years. His argument is that the one who manages the property should not lose it. The two arguments offset one another, so that it is difficult to judge the right and the wrong. Chang, in attacking the argument of the rights derived from man­ agement, asserts that Chung, the nephew, has long been absent from home, and that he, Chang, out of consideration for the poverty x)f Chung’s mother (who is Chang’s elder sister), temporarily loaned the house to the Chung family so that his sister could collect the rental income to buy food. This argument does not seem plausible. In recent times human relations have deteriorated. Brothers and sisters look upon one another like strangers. I cannot believe that Chang has gen­ erously sacrificed his own property for the maintenance of his sister. Chung Ch’eng-hsin， in defending his position against the argument that he has no formal contract, explained that when his mother bought the house she was afraid that, because she was a widow living by herself, other people might try to deceive her. Therefore, she set up the contract in the name of her brother, Chang Ch’eng-tao. This seems probable. Customarily, in An-ku 安固， people use a different surname in buy­ ing property. This practice can be found in many leg^I files from past lawsuits. Furthermore, Chung Ch’eng-hsin’s mother herself managed the property for many years. In the two years since her death the Chung family every day has counted the rental money it collects. An account book of the rents proves this. Both old and new tenants who rent rooms in the house， such as Chang I-lao 張溢老， H sii Shih-san 徐 十 三 [“Ten-three”]， and others all say that they rented in “the Chung house.MThis is proven by their rental agreements and their testi­ mony. Is not the clear-cut evidence of management more important

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than the mere title on a contract? Between these two opposing posi­ tions it is clear which is the winning side. However, the propriety between maternal uncle and nephew should be weighty enough to preserve their harmonious relationship from injury. It is not so necessary to argue whether or not one has the contract, nor to debate who has managed the property for a long time. We will revert to what Chang Ch， eng_tao claimed as his original in­ tention. He says he originally turned over the house to support his sister; why then can he not restore this house to her son who is his nephew? As the proverbs say, “the bow lost by a man from Ch’u even­ tually was found by a man from Ch， u ” and “the blanket that belonged to the Wang family eventually found its way back.” This is the way of [moral] principles. Thus does the Book of Poetry describe the proper sentiment a maternal uncle felt toward his nephew on the northern bank of the Wei River.70 What more need be said? It is ordered that Chung Ch， eng-hsin continue as before to manage the renting of this building. This is also to preserve completely the moral standing of Chang Ch， eng-tao. The issuance of an official con­ tract [deed] to Chung will make everything proper.

Rental of Houses ARBITRARY OCCUPATION OF A RENTAL B U ILD IN G 71 author: Yeh Yen-feng

This piece is a “flowery ju d g m e n t,” a decision w ritten in a special elabo­ rate style em ploying p arallel sentences, essentially for the apprecia­ tio n o f other scholar-officials. Such pieces were w ritten more often in the T’ang period (618-907) th a n in the Sung. In the follow ing tra n sla ­ tio n we have concentrated on conveying the m eaning o f the m aterial rather th a n the stylistic elaboration. In Yeh Yen-fang， s opinion th is case arose because a tenant in a house owned by C h ’en C h ， eng-chih h ad refused to pay the rent. The te n a n t even came to the court, arguing th a t the property had belonged to his w ife’s fam ily and th a t he was in te n d in g to redeem it and raising a num _

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ber o f extraneous issues in an attem pt to confuse the case. The judge dismisses the te n a n t’s allegations on two grounds, th a t the lan d deeds he brought forward to prove ow nership by his w ife’s fam ily concerned transactions th a t had occurred generations earlier and were no longer relevant and th a t the current ow nership was made clear in the rental agreem ent he had signed w ith the current owner. The te nant escapes punishm ent because o f an intervening am nesty b u t is ordered to pay his back rent. H e is also threatened w ith eviction if he again raises the issue.

Ch’en Ch’eng-chih 陳成之 has inherited from his ancestors a house of eight or nine bays (chien 間)_72 Huang Ch’ing-tao 黃清道 has lived there as a tenant for ten years. Since Huang is there protected from the elements, he should distinguish the difference in status between the owner and himself, who is a guest. Yet being insidious, ungrateful, and without a sense of justice, he refused to pay the rent. Ch， en， s small servant, when he came to ask for the arrears, suffered the humil­ iation of being assaulted. Huang does not understand that he should be circumspect, for fear that in striking out at a small object he might cause greater in­ jury.73 Instead, he has dared to take the offensive and like a loosed hunting eagle, attempted deceitful infringement. His statement boasts various side arguments but all of them have no basis. He forgets that as the tenant he personally wrote a rental agreement. Yet he argues that the property originally belonged to his wife’s family [the Yangs] and that he intends to redeem it. Then he brings in another extraneous matter. He raises a question concerning another property in order to create confusion about the boundaries. He has even gone to the point of bringing suit, accusing the owner of having encroached on part of his land. He moves in a direction exactly opposite to where one should go. [Huang] does not realize that the background of the property has a long history. The Yang family occupation occurred three or four gen­ erations ago. It would be impossible to recover the property on the basis of deeds that were moot years ago. For instance, the transaction in the Ch’ien-tao reign period (1165-73) occurred some eighty years ago. There is no basis in law for the court to hear such cases. Clearly, after being accused, Huang in a stupid and reckless way just raises plaints to create stumbling blocks.

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Gentlemen certainly will have difficulty gaining the upper hand over mean persons [because mean persons are unprincipled] as when at times a visiting monk will try to displace the temple master. If those in the marketplace should imitate the bad example of Huang, behaVing like beasts, then all those who have houses and storefronts to rent would suffer losses through arbitrary tricks. To prevent such deterioration in social customs, the crime has to be properly punished. However, since the grace of an amnesty has reduced punishments, I will be lenient in weighing the sentencing and spare Huang. It is expected that Ch， en Ch1eng-chih will keep the control of the property handed down to him by his successive ancestors. Under court super­ vision Huang Ch， ing-tao will pay the accumulated monthly rents he owes. If he should submit another plaint on this matter, he will be evicted from the house.

Disputes over Hill Lands DISPUTE OVER A HILL74 author: W u Shu-chai

In 1213 the brothers C h ’ien Chu-mao and C h ’ien Chii-hung divided th e ir inherited property. Chu-mao received the h ill lan il; Chii-hung received the arable land. Before Chii-mao died he wrote a w ill in w hich 1242 the husband o f the daughter buried his m other on the h ill land. H e was sued, first in district court and th e n 5at the prefectural level, by a son o f C h ’ien

The gave'the h ill lan d to his daughter as her dowry. In

Chu-hung, who asserted th a t the w ill was a fake, and the n added th a t some relatives wished to redeem the land in question. Wu^ Shu-chai rejects the suit on several grounds. F irst, he has com pared the h an d ­ w riting on the w ill and on the 1213 docum ent of lan d division and determ ine^ th a t they were w ritten by the same m an, so the w ill is genuine. Second, the law of the redem ption of land by parties o f re­ lated interest, that is, relatives and neighbors, perm its redem ption when lan d is to be sold to outsiders. I t in no way was intended to perm it redem ption from fam ily members, even members by m arriage. Finally,

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the m an who wrote the w ill was survived by his widow and a n a tu ra l son. I f any objection was to be raised to the son-in-law’s b u ry in g his m other on the h ill land, it w ould have to come from them , n o t from some other relative, and they have in no sense indicated th a t they dis­ approve o f the bu rial. T his piece is an interesting proof o f the ab ility of a father to alienate lan d by a w ill to his daughter even though he has a liv in g wife and a n a tu ra l son. O f course, if the wife and son had raised objections after the m a n ’s death, they m ight well have won a reversal.

Niu Ta-t’ung 牛大同 is the son-in-law of Ch’ien Chii-mao 錢居茂. Ch’ien Hsiao-liang 錢孝良 is the son of Ch’ien Chii-hung 錢居洪. The brothers, Chii-mao and Chii-hung, signed a document in 1213 to diwde their family property. They also maintained separate households: That was thirty years ago. In 1242，N iu Ta-t’ung buried his mother on the property of Ch， ien Chii-mao, his father-in-law, which is located on a hill in Auspicious Bird township. But Ch’ien Hsiao-liang, his first cousin [by marriage]，accusing him of having made a fake will attrib­ uted to his father-in-law and have encroached on the hill land, sued at the district office:When the district turned him down, Ch’ien Hsiaoliang went up to the prefecture. The present official believes that the principle of the matter, what is right and what is wrong, should come first and that the will, genuine or faked, should come next. It is learned that the hill where Niu Ta-fung buried his mother belonged to Ch’ien Chii-mao. Though Chii-mao was dead, he is sur­ vived by his wife nee Wang and his son, Ch， ien Hsiao-chung. If Niu Ta-fung indeed forged the will of the deceased and arbitrarily occupied the hill land, it is permissible for his widow and his son to sue. But neither the widow nor the son has any complaint. Then what gives Hsiao-liang the right to interfere, asserting that the will is a faked one, and sue? Nothing has caused it except the ignorance of a mean person. The grave built there leads Ch’ien Hsiao-liang to suspect that it must be a site that would bring good fortune according to the beliefs of the art of geomancy. At first he tried to interfere with it by muddling the matter. Then in his statement of the lawsuit he alleged that some relatives and neighbors would like to redeem the land. Actually，he wanted to grab it for himself.

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What he does not understand is the rule that stipulates that rela­ tives and neighbors, reluctant to see the ownership change after a family’s property division, may have the right to redeem it, provided it has been sold to outsiders. But in this case Niu Ta-t， ung is the sonin-law, not an outsider. Since the deceased gave the land to him through a will and neither the widow or the son thinks it is wrong, what objec­ tion could Ch’ien Hsiao-liang have? In addition，upon scrutiny the will turns out to have been written by Ch’ien Chu-mao before his death. In it he allotted the land to his daughter, Ch， ien She-niang 錢 捨 娘 [the wife of Niu Ta-t’ung] as her dowry. The language of this will is unpolished and colloquial, but it conveys an earnest and precise intent. Although the document is not entirely appropriate in principle, Ch’ien Chii-mao personally wrote it and put his seal on it. Comparing it with the document dividing the family property thirty years ago, the two handwritings are identical. There is no ground to question its authenticity. Moreover， the document that provided for the division of inheritance between Ch’ien Chii-mao and Ch， ien Chii-hung is extremely lucid. Ch’ien Chii-mao got the hill but no land, while Ch’ien Chu-hung got the land but not the hill. Even if Ch’ien Hsiao-liang should covet some­ thing, he really has no way to get it. A directive along with the files and documents is sent to the dis­ trict. The order is for Niu Ta-t’ung to manage the property on the basis of the will. The purpose is to differentiate between what is right and what is wrong and to make it clear who should be given the prop­ erty and who should not so as to make mean persons in rural areas realize they should each be content with their lot and refrain from noisy lawsuits that seriously damage the cordiality among relatives.

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Disputes over Boundaries DISPUTING BOUNDARIES75 author: n.a.

This case is a straightforw ard example o f the way property disputes were handled at the local，probably in th is case the district, level. The exam ining m agistrate examines the land deeds. Like m ost such deeds in trad itio n al C hina, the relevant deed contained language to define the boundaries o f the plot. H e also through an agent exam ined the actual topography o f the area o f dispute. Finally, he questioned the neighbors. He has no doubt in ru lin g for one o f the parties. H e does, however, suggest, though he does no t m andate, th a t the w in n in g side agree to rent the contested strip o f lan d to the loser if the loser so desires. No doubt w ith an eye to the specific problem s between the parties in the case, as w ell as in the nam e o f general prudence, he sug­ gests th a t any rental agreem ent be explicit and clear in its term s. The case also reflects another penchant o f S ung m agistrates, to ask the parties to subm it w ritten agreem ents no t to litigate again about the m atter and threatening th a t if they should do so, they w ould face p u n ­ ishm ent according to law.

Fu Liang 傅良 succeeded to the Pao family property，while Shen Pai-erh 沈 百 二 （ “Hundred-two”）rented the neighboring house from the Chiao family. Both sides sued, disputing the boundary, and an official was assigned to investigate. Studying the report of the recorder we find Shen to be in the wrong on three counts. First, in examining the land deeds we find that the deed of the Chiao house which Lu Yung 盧永 has produced specifies its four edges. One of the edges stops at the walk of the Pao family. Since the word used is “the walk,55obviously the boundary does not reach the Pao house itself. Yet Shen has belatedly built a new bamboo fence and wants to let it turn so that it can be nailed to a post of the Pao house. This is the first wrongful point.

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Judging by the topography, it is not simply that the high and low levels are uneven but that alongside the Pao house there is a ditch from the old days that runs straight into the public thoroughfare. Apparently this ditch forming a straight line marks a boundary of the Pao family property. Now Shen wants his new fence to go around a curve so as to enclose half of the ditch inside the fence. This a second point upon which he is in the wrong. Shen Chiu-erh 沈九二 [“Nine-two”] and other neighbors have testi­ fied that the old fence was fixed on the post of the Shen house and the outlet of the ditch was located outside that fence. All of them have known for a long time that the ditch belongs to the Pao family and the fence was pegged to the Shen house. Yet Shen now of a sudden wishes to hang the fence so that it will cross the ditch in order to encroach in a roundabout way on what is beyond his property. Even if Shen could cheat Fu Liang, he cannot possibly hoodwink the whole neighborhood. This is the third point on which he is in the wrong. Because Shen， s assertions are so void of good reason, as reflected in the relevant land documents, as judged by the topography, and as indicated by the neighbors testimonies, for what purpose is he attempt­ ing this encroachment? The explanation lies in the background. Fu Liang’s father when he was alive once loaned this strip of land to Shen. At the time the sentiments between the two families were so close that they didnot care to look at the boundary to determine which part belonged to whom. But Slien, after borrowing the strip of land, did not return it. Instead he regarded it as his own and even wanted to build a house on it. When Fu Liang in a friendly way wanted the land occupied by Shen to be restored to him, Shen responded to him vehemently, even using foul language, and resisted his request strenuously. Because the case has come to court, it can only be settled by reason and principle. Our decision is that Shen Pai-erh ought under supervision to dis­ mantle the new fence and surrender that strip of land in accordance with the .true boundary as specified in land documents. It might be hoped that this would end the dispute. However, the disputed strip of land is only a few feet wide. It would be far better if those involved could cherish friendship and harmony between neighbors. If Shen wishes to rent that strip of land then Fu Liang should, in the interest of neighborly cordiality, agree to this. If so, they should put it into a contract in explicit language and clearly communicate with each other.

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Both of them are to file a statement, promising to have no more plaints. When this has been done, it should be reported to this court. If on the contrary either of them does not follow principle, he is to be punished according to the regulations.

Establishing Heirs W H E N AN H EIR ORIGINALLY OF ANOTHER SURNAME HAS BEEN ADOPTED D U RIN G ONE’S LIFETIME IT W ILL BE DIFFICULT TO REMOVE H IM THROUGH A CHALLENGE76 author: W u Shu-chai

This case had a little b it o f everything. A nephew, adopted, from a fam ily o f a different surnam e, brings su it against his uncle, accusing h im , am ong other things, o f adultery. The uncle, who is the younger brother o f the (deceased) father o f the young adopted m an, brings su it to dis­ place the adoptee as heir to his late elder brother, w ith someone o f still another surnam e. W u Shu-chai sees in a ll this the m achinations o f wicked-minded m aids and collateral relatives. The problem seems to have begun when the younger brother refused to let one of his two sons be adopted in to the fam ily o f his sonless elder brother. A fter the death o f the elder brother, the selection o f an heir was, by law, in the hands o f his widow. In this case she, apparently after consultation w ith her ow n sister, selected a young m an from the fam ily o f her mother-in-law. T his was contrary to the established law th a t adoptees over the age o f three years (the young m an seems to have been seven) m ust come f^om the same p a trilin e a l group. The official dismisses the uncle’s su it for four reasons. F irst, no one from the patrilineal group objected a t the tim e o f the adoption or d u rin g the ensuring eight years. Second, the young m an no t only lived as the adopted son of the fam ily, he also on three occasions perform ed m o urn­ in g ritu als for m embers o f his adopted family. T hird, the uncle only sued after the deaths o f the tw o principal women involved, thu s deny­ in g the women the possibility o f defending the ir actions. F ourth, to

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displace the adopted h eir w ould leave the deceased elder brother w ith ­ out an heir.

It is the law that “All those who are without sons or grandsons are permitted to adopt someone of the same patrilineal group who is of appropriate age and generation.” Hsing Lin 开琳 and Hsing Nan 开P枏 are elder and younger brother. The elder brother, Hsing Lin, had no son. Hsing Nan, even though he had two sons, was unwilling to have either of them established as the heir of Hsing Lin. When the elder brother died, Hsing Nan accepted an order from his mother, nee Wu, and his mother’s sister, nee Chou， that a nephew from the family of the grandmother, nee Ts’a i，be established as the heir of Hsing Lin. This is the person who today goes by the name of Hsing Chien 邢堅. To adopt a son of the Ts’ai family as the heir of the Hsing’s is not in accord with the intent of the law. However, at the time this was the determined wish of the grandmother nee Wu, and the mother nee Chou. Hsing Nan himself carried out the order. Because it was these persons who broke the law in installing him as the heir, no blame attaches to Hsing Chien. Had someone from the patrilineal descent group who understood propriety, considering the choice to be against the law, strongly dis­ puted the establishing of the nephew as the heir, this would have been permissible. However, to remove the heir today，eight years af­ ter he has been established, is not permissible. If the action had been brought prior to the deaths of [the grandmother, nee] Wu and [the mother, nee] Chou, this would have been permissible. To expel the heir now, after the deaths of the ladies Wu and Chou, is not permissible. Moreover, during those eight years not only did his grandmother and mother raise and love him without any word of criticism, but his paternal uncle Hsing Nan also never raised a plaint pointing out Hsing Chien’s faults. Furthermore, Chien has been a son in the Hsing family for eight years and on three occasions he performed the duty of wear­ ing mourning clothing, for his father, for his grandmother, and then for his mother. Yet now that the grandmother and mother are gone, Nan, without cause, wants to establish a certain Wu Te-sun77 吳德孫 as a younger

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brother to Hsing Chien. What sort of an intention does this show! The lineage, taking advantage of the rift opened up by Hsing Nan， has joined in the plaint to expel Hsing Chien, ostensibly basing them­ selves on the rule that no one of a different surname should be adopted as heir. What sort of a viewpoint is this really? Furthermore Nan alleges that Chien is young and weak. His grand­ mother and mother, in ordering him established as heir at seven years of age did not consider him to be young and weak. And now he is fourteen! Can we allow Nan to reverse himself and now consider Chien young and weak? Nan also maintains that Chien has faults and has behaved badly. Presumably a boy like Chien, just fourteen years old, who has been called young and weak, could not be free from the faults youngsters usually have. As his paternal uncle, Hsing Nan at precisely such times should have instructed him and disciplined him. How could the uncle suddenly go so far as to expel him without cause? The heir is not yet an adult. His offenses are not yet manifest, nor is there actual trace of his ever having spoiled family wealth or dissipated family property. To expel suddenly without any cause this heir of eight years, who was installed by his grandmother and mother while they were still alive, is on the basis of reason absolutely impermissible! The offices of the judicial commissioner and the fiscal commissioner have already one after the other rendered decisions. Both disapproved Nan’s suit. However, Nan, without examining himself, dares directly to name the officials of the prefecture. Without restraint he brings forward slanderous charges, persisting in his private feelings, while disregarding the public-spirited law. To expel this boy Hsing Chien and return him to his natal family [the Chous] would not be difficult. However, if Chien is expelled then Hsing Lin will have no heir. Could the grandmother and mother then rest without regret in their graves? The paternal uncle, Hsing Nan, was not only unable to bring up his nephew properly. He really did not understand filiality and brotherliness as they apply within the family. The nature of man and the principles of Heaven are immutable. In my opinion, Hsing Nan, since he is a remote clan member related to an empress, should be expected to conform to reason and tt\e prin­ ciples of the law and certainly ought not to neglect them. In reality he has been provoked to act in this way. jChou Yao 周耀 is Hsing Chien's mother’s brother. Wang Yen-hsi 王燕喜 is Hsing Chien’s mother’s maidservant. After the deaths of the grandmother nee Wu

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and th6 mother nee Chou, Chien, being still young and not yet of full understanding, put his trust in the maternal uncle and the maidser­ vant. They Certainly were incapable of teaching him the proper ritual behavior for acting respectfully toward his paternal uncle [Hsing Nan]. How could Chien have been capable of following and adjusting to what thfe^atertial uncle wished. From this time on the dispute arose. Farthermore, [Hsing] Chien, because [his uncle] Hsing Nan inter­ vened to establish Wu as his younger brother、has on several occasions also brought plaints to the officials. Chien has alleged that his paternal Un6le has sotight to injure him and usurp his family property [through this iinposition of a younger brother]. Also [Chien] has claimed that hi幺paternal uncle has improperly altered things and concealed facts. These are charges that Chien ought not to have brought.78 However, tHsing] Chien himself really could not have been the one who initiated them.79It must have been the maid, Wang Yen-hsiycontfentiously nagging from the inside and Chou Yao inciting from the outside that eventually led to these sorts of illegal plaints that offended the senior [uncle]. ^feecause bf this Hsing Nkn wals angry and so accused Chou Yao and W ing Yen-hsi of having had an adulterbus relationship, of stealing, ancPbf secretly mortgaging：[property]. What has so angered Hsing Nan isthat-it is Hsing family property and yet it has not been under the Control bf thfe elders of the Hsihg family but rather under that of an outsider. Now, there have b6eb several investigative interrogations. According to the verbal replies and the personal written ^deposition of Hsing Natn, he did not originally feel aUgry towkrd his nephew. Rather, [he bedame angiy] because Chien was not^grat^ful for^Nan^ role in having hiiA Established [as heir], and because [Hsing Chien] listened to and believed 0lis mother’s brother]; Chou Yao, and accepted the instruction of [the' irtedd] Wang Yen-h^i, and thus brought to the district these false plaints about Nan. This being the case, Chien also must bear some of the blame. n W , this court exhorts Hsing Nan to rid himself completely of all his long-hafb位ed animosity. He ought to care for his nephew like a son. lW存also admonish Hsifig Chien to correct all his former .faults. He should respect his uncle like a father. The family property must be examined atid its value assessed.'Chou Yao and Wang Yen-hsi must be separately *dealt with so that further contention at some later time will be preluded and the righteousness of the Heavenly Bonds will

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be secured.80After the investigation Chou Yao is to be beaten eighty blows with the heavy rod and to be made to submit a statement of obligation stating that he will never again interfere in the affairs of the Hsing family. We also wish to enforce our order that in a few days negotiations be undertaken for the marriage arrangement of the maid, WangYen-hsi, who is to be wedded to someone from another place. As to the family property in question we order by document that Chia-hsing Superior Prefecture 嘉 興 喷 [present-day Chia-hsing in Che-chiang] assign an honest and forceful official to gather together the lineage elders and conduct an impartial investigation and assess­ ment. He is to divide the property into two portions and set up the records for both to be sealed and signed.81 For the present the man­ agement of Hsing Chien’s share of this property will be in the hands of Hsing Nan. Later on, when Chien comes of age it shall be turned over to him. It will not be permissible in the future to break up these properties through conditional sale. It is to be hoped that the uncle and nephew will restore the natural relationship between them, so that no one living or dead will have any regrets. This really would be no small gain for moral influence and social education.

AN ELDER AND A YOU N GER BROTHER, ONE POOR AND ONE RICH, HAVING THEIR CASE DECIDED BY THE DRA W IN G OF LOTS82

author: Wu Shih-chai

We have here a classic struggle over property between two brothers, each claiming that his actions are based on ethical concerns. A man died without a son. Apparently his mother wanted to adopt a young man from her natal family, the Sun’ s, or else a young man surnamed W u (quite possibly from the family of the widow). This was disallowed by the district authorities. Their ruling may have been provoked by the,actions of two paternal uncles, who are suing in court to force the establishment of their respective sons as the Ijeir. Each uncle claims that his own son has already been adopted as heir ofthe deceased (and apparently relatively well-to-do) cousin and that the son of the other

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uncle was adopted to be the heir of their deceased (and poor) brother. W u Shih-chai has no trouble recognizing that the two men are really after the property of their deceased cousin and do not want their own boy to be declared the heir of their dead brother because he had died poor. W u orders that a decision be made by drawing lots.

Yeh Hsiu-fa 葉秀發 does not have a son. The authorities in this district, citing the Classics and basing themselves on the law, have said that [the two parties surnamed] Sun and Wu, being of a different surname [from Mr. Yeh] cannot be established [as his heirs]. It would only be appropriate to choose [an heir] in the appropriate order of descent and generation83 within the same patrilineal descent line.84 This may be said to be “having the names correct and the words in accordance with the truth of th in g s.， ， 85 If we speak of this case in terms of appropriateness of age and generation then both Yeh Jung-chih 葉容之 and Yeh Yung-chih 葉永 之 are fine male first cousins on the father’s side and the son of Jungchih, named Yeh Hui-sun 葉藝 孫 ，and the son of Yung-chih, named Yeh Chi-sun 葉寄孫，are both qualified to be chosen [as heirs]. Now， each ofthe cousins [Jung-chih and Yung-chih] contends that his son should be the heir of Yeh Hsiu-fa. Jung-chih says that his son, Huisun, has already been so established for three years. Yung-chih says that it is his son Chi-sun who has already been established for three years. However，the elder brother [of these two men], Yeh Jui-chih 葉瑞之， is also without an heir. Jung-chih asserts that Yung-chih’s son, Chisun, has already been established as heir of Jui-chih; Yung-chih makes the counter-claim that the chosen heir is Jung-chih^ son, Hui-shih. These two versions are in conflict. The two men are struggling because each wants his son to be set up as the heir to Hsiu-fa rather than Jui-chih. When we examine in detail the testimony of the grand­ mother, nee Sun, [it is clear to begin with that] neither of the brothers had ever secured an official confirmation. Thus the basic situation is that nothing definite has been settled concerning who should be the heir. So much is clear. The general ethical principle in all this is that it is more serious for the elder brother, Jui-chih, to be without an heir than it is for the elder paternal cousin to be without an heir. When someone sets aside ties with close relatives and seeks ties with someone more distant, is

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their intent to seek to do what is appropriate or are they rather seeking after profit? Because Yeh Hsiu-fa was quite prosperous, whereas the family of Jui-chih was impoverished, Jung-chih and Yung-chih are both seek­ ing their own profit, and forgetting what is ethically appropriate. They do not mind quarreling within the family and are not ashamed to have brought lawsuits before the officials, even to the point where they slandered their mother as having been biased. When human dis­ positions become like this, the situation is indeed ugly. If the authorities do not deal with this situation quickly and in an even-handed manner, not only will Jui-chih and Hsiu-fa have no reli­ able heirs to whom they could entrust their family’s line of descent, but also the propriety that should exist between Jung-chih and Yungchih who are brothers will be lost and they will be perpetually alien­ ated from one another. This is not the way to console a mother’s heart or improve local customs! We wish to summon Jung-chih and Yungchih and in this court have Hui-chih and Chi-chih burn incense and draw lots, letting Heaven decide the issue, one son being made heir to Jui-shih and the other to Hsiu-fa. This will automatically put an end to the plotting, make evident the principles of Heaven, rescue the line of the deceased, keeping it from being cut off, pacify the old and soothe the young, and leave no remorse among the living or the dead.

WU TSUNG-CHOU 吳從周 AND OTHERS SUE WU P’ING-FU 吳平甫 TO DEMAND MONEY86 author: Wu Shu-chai

As we read this case, three men had been candidates to be heir of a deceased man. Apparently the man who was selected to be the heir by the drawing of lots (with appropriate ritual in an official setting) had agreed to pay offthe losers. They are now suing for enforcement of the terms of this written agreement. W u Shu-chai rejects the validity of the document and confiscates the money involved.

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In general, the establishing of an heir should be based on wishes of the family elders with the open concurrence of the leader of the lin­ eage branch. When hard pressed it is permissible to accept appoint­ ment as the heir of someone else.87 Now, the plaintiffs in the present case wear the caps and gowns of scholars, yet they have belatedly disputed the choice of an heir after an official decision has been made. Are they doing this on the basis of proper ethics? Or are they seeking selfish gain? Wu Tsung-chou and Wu Wen-fu 吳文甫 both have submitted plaints stating that Wu P， ing-fu， the heir, formerly had personally written an agreement promising to give them money. This occurred after Wu P^ng-fu, in this office, in the appropriate room, with incense burn­ ing, had drawn the lot [which made him the heir]. The candidates should righteously yield to him. All of this was open and fair. Why then* should Wu P’ing-fu give them further compensation? It is ordered that the three items of money involved in this lawsuit be taken into the charge of the authorities and then turned over to the school of the military prefecture to help pay the costs of repairs and ne\Vconstruction.

DRAWING LOTS TO CONFIRM AN HEIR88 author: Wu Shu-chai

Chart 1 will help to make the following case clear. Essentially it con­ cerns W u Shu-chai^s mandating that l^eirsbe established for two m e m ­ bers of the Ts’ ai family who had no living sons when they themselves died (see Ts’ ai family chart). W e should point out that W u wants to do this for two reasons. First, at least in rhetorical terms, is a desire to establish descendants who could continue to perform family rituals. However, as a second (though perhaps not secondary) issue, W u wants to establish heirs to preclude continuing disputes over the property owned by the two deceased men. The case is interesting in what it reveals about Sung attitudes toward married-in sons-in-law, that Is, men who marry into families and become a part of the kin structure of their wives. As the incident described here suggests, there was popu­ lar sentiment against such people using patriline resources. But it is at least as important to note that W u Shu-chai, basing his decision, he

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says, on the rules, awards these married-in sons-in-law (or from an­ other perspective their wives, the daughters of the deceased men) half of the family estates (the other half going to the posthumously chosen heirs).

The plaint concerns the confirming of an heir by the Ts’ai family and the cutting down of trees. Although they may be said to involve two matters, they actually are interrelated. The dispute over the cutting down of trees arose only because the succession situation is unsettled. The Ts’ai family has four major branches. The [head of the] number three branch, Ts’ai Lu_yiian 蔡 轄 院 ，had two sons. The older son, named Ts’ai Ju-chia 蔡汝加， himself had a son named Ts’ai Tzu 蔡梓• The younger son, named Ts’ai Ju-li 蔡汝勵, had a son named Ts， ai Ch， i 蔡杞. Both Tzu and Ch， i are dead. They both had uxorilocal sonsin-law89 [who move in with the family of the bride as proxy or substi­ tute sons], but since these sons-in-law themselves have no sons, no heirs have been chosen. Yang Meng-teng 楊夢登 and Li Pi-sheng 李必勝 are Tzu’s uxorilocal sons-in-law, whereas Chao Pi-ch， ieh 趙必恨 was the uxorilocal sonin-law of Ts’ai Ch， i. Recently Yang Meng-teng was ordered by his grandmother-in-law [the natal mother of his father-in-law], nee Fan, to cut down some trees for firewood on a hillside that belongs to his branch of the family. Basically this action had nothing to do with the other branches of the family. However, Meng-teng and some others were beaten up by a group of younger men from the other branches of the family who thought that the wood belonged to the Ts’ai^s and should not have been cut down by someone named Yang. Moreover they asserted that the grandmother, nee Fan, had been a mere slave girl of IV a i Ju-chia before he married her, and had never been acceptable'to the Ts， ai， s. Now this woman nee Fan has stated that she nierfely wants to be supported in her old age by the two uxorilocal grandsons [Meng-teng and Pi-sheng]，and that she does not desire that heirs be set up for Ts’ai Tzu and Ts’ai Ch， i. How could a woman like her understand the principles of the law? While this old woman plans well for herself， what would be the situation of the Ts’ai family if it had no heirs? If steps are not taken to establish heirs1for Ts’ai Ch’i and Ts’ai Tzu, then disorder will continue among the various members df the

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TS’AI FAMILY

b ra n c h #1

b ra n c h # 3

b ra n c h # 4

Ts， a i family and disputes will not be confined to such current matters as the chopping down of trees. As to the trees which have already been cut down, it was done on the orders of the old woman nee Fan. Her branch of the Ts’ai family truly could themselves cut them down. Since in the fighting that took place no one was seriously injured, this matter need not be discussed further. Ordering the establishing of heirs is the issue on which this office ought to render a judgment in order to prolong the bloodline of suc­ cession in that branch of that section of the family, and in order to put a stop to the covetous conflicts of interest among the various branches of the family.

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The deposition submitted jointly by the family elder Ts’ai Yu and others proposed the choice of Ts， ai Yeh 蔡燁，a son of Ts’ai K， ai 蔡指 of the first family branch to be the heir of Ts， ai Ch， i. This seems thoroughly suitable. However, Ts’ai Ping 蔡秉 of the fourth family branch disputes this, and wants his own son, Ts， ai Chao 蔡诏，to be the heir. This is entirely unreasonable, as has already been made clear in the proposed decision of the district recorder, Mr. Wang. However, it still leaves some unfinished aspects that await judgment. When an heir has been established for Ts， ai Ch’i，how can Ts’ai Tzu be left without an heir? There are two uxorilocal sons-in-law in Ts’ai Tzu’s branch so that resources would be somewhat reduced by the division. Because there is only one uxorilocal son-in-law for TVai Ch’i the resources seem more adequate. Thus both of the candidates are willing to be the heirs of Ch’i but neither is willing to be the heir of Tzu.90When we examine the lineage descent chart drawn up by the Ts’ai family, among the four family branches only Ts’ai K， ai and Ts， ai Ping have three sons, so that one son from each could leave the family to serve as an heir elsewhere. Now we wish that a document be sent to the district instructing them that Ts， ai K， ai， s son, Yeh, and Ts’ai Ping’s son, Chao, draw lots in the district offices to determine which will be appointed the heir of Tzu and which will be appointed the heir of Ch’i. When the two lines of succession have been established, the district is requested to appoint an official to make an equitable division of the family property，arable fields and woodlands. In this way the decision concerning succession will have been made by Heaven, and there will be no complaints of unfairness because the settlement has been ineq­ uitable with one poor and one rich heir. In conformity with this [arrangement] one half [of the property] should go to the confirmed heirs, and one half to the uxorilocal sonsin-law, because the married daughters are the family’s own blood and the uxorilocal sons-in-law also have been living [in the families of their wives] for many years. I have looked into the rules and they all support such an equal division. The woman nee Fan, who is aged and has no one to support her, is to be pitied. We expect that the sons who are established as heirs will, in accordance with the law, continue to support her. Various fai^iily members should save small amounts toward the time when she will pass away. Since both the living and the dead will be at peace, conten­ tious lawsuits will cease.

226

Households and Marriage W H E N HEIRS HAVE ALREADY BEEN INSTALLED t h e y o u g h t n o t t o be d is p la c e d BY THE SONS OF A CONCUBINE91

author：n.a.

This case reflects 6ne of the tensions in Sung society that was much be­ moaned by the more rigid Confucians— •the tendency forpeople to place the interests of their owji immediate family above any concern for the welfare of the larger extended patrilineal kin group. Here we have the almost classic case of the paternal uncle scheming to get control of the property of his elder brother, which would in the ordinary course of things go to his brother’ s heirs. The author objects to the uncle’ s suit on several grounds, which reflect Sung laws as well as standard Sung legal principles ttot are applied in many ofour cases. First, the adoption of their heirs followed the orders of parties competent to name heirs, in the firstinstance a grandfather and in the second a father and grandrfiother. Second, relevant documents were properly certified by the authorities. Third, testimony from appropriate witnesses.supported the case ofadoptees. Finally, \he author enunciates the common prin­ ciple that the passage ofm^iny years without the raising ofobjections is of itselfofweight in making a judgment In this, as in some otherjudg­ ments, we can see reflected the Sung understanding of the role that paternal uncles were expected the play in the raising oftheir nephews.

Yang Meng-lung 陽夢龍 is the heir of Yang Pa-erh Hsiu 陽八二秀 on the orders of his grandfather. Yang P， an-lin 陽攀鱗 is the七eir of Ydng Pa-wuHsiu 陽八五秀 because of the coders 6fMs father and his grandmother Many years have parsed [since they weref named h^irs]. Persdnally written testaments of becjuest have passed through official hands for certification. They are clearly verifiable. Furtherniore the head of the lineage branch who verified them did not dispute them .J And yet their paternal juncle, Yang Ju i 陽兌，suddenly wants to expel these heirs, and set up his sons by k concubine as the Jieirs. How cruel! Supposing he were to take as his pretext that thfe&e two riepHews were careless and unruly and made th6 sorts 6f mistakes youngsters do make, yet he as their pateFnal uncle should haVe pitied

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them and instructed them. Or he might have beaten them to admonish and warn them. How cotild he go to the length of overturning their father’s and his elderbrother’s settled intention, completely changing it in this disorderly way! This is nothing more than a product of his own selfish intentions. He only cares about his sons by a concubine and cares not at all about the sons of his elder brother! The judgment of the district magistrate and the proposed ruling of the revenue manager are right on the mark. Human nature and the Principles of Heaven, who is without them? I have been in this office for two years. In lawsuits involving people w h o are closely related, I have always instructed those inVolvfed about the proper way and what is reasonable. Even inferior and lowly people feel remorseful and regret their errors, returning to the good natures with which they were endowed by Heaven.92Now Tor a long time we have had no lawsuits between people of the same surname. This has been very pleasing to the chief administrator. For Yang Jui, who calls himself a Confucian scholar, toinitiate this lawsuit is astonishing even to bystanders! What is needed is the res­ toration of a harmonious atmosphere,93without this causing any vio­ lation of the principles of the law, the destruction of blood relations, and the squandering of family wealth, all of which merely fatten the clerical personnel [through bribes].94 Yang Pa-erh Hsiu’s property should go to Yang Meng-lung. Yang Pa-wu Hsiu’s property should go to Yang P’an-lin. . The district is instructed to act in accord with what has been decided. Moreover, property certificates were reissued to Yang Wu-sun 陽戊孫 and Yang Pao-fti 陽保福，the sons of Yang Ju i， s concubine. This was an error by the minor officials in their treatment of Yang Jui. They should go after those documents, repossess them, cancel them, and attach them as an appendix to the files of±he presentxase. When Yang Meng-lung and Yang P’an-lin return home thdy should invite to a gathering members of their patrilineal descent ^roup and other relatives.95With proper etiquette and polite words they should greet their grandparents, thank them, and promise to obey their instruc­ tions in order to strengthen their resolve to^repent their past faults and to renew themselves. If there should in the future be donbrete evidence that they have again indulged themselves and misbehaved， bringing disgrace and shame upon themselves, they should be sum­ moned in person, investigated, and tried for unfiliality. They would find it at that point too late for repentance.

228

Households and Marriage ONE MAN CANNOT BE THE SUCCESSOR TO TWO SEPARATE HOUSEHOLDS THAT SHOULD CHOOSE AND ESTABLISH THEIR RESPECTIVE HEIRS SEPARATELY96

author: Wu Shu-chai

This caseConcerns the attempts by two men to be declared posthumous heir to a deceased uncle. One man has used the ambiguous language of a testament by his grandmother to resist the attempt to name an heir for his uncle, a situation that apparently leaves him in control of the dis­ puted property. This man appears to have testifiedthat his grandmother wanted to end the uncle’ s descent line. The other man had already been adopted out of his natal family to be someone else’ s heir and now wants to be made the heir of a second descent line. W u Shu-chai orders that an heir be chosen from one of two closely related households.

To continue thdline of descent by having someone appointed as a successor is a practice known since the law of the ancient Han period. Furthermore, every elder and younger brother, every son and nephew, ought to keep in mind the Heavenly, Bonds. There must not be one iota of avarice in their hearts when they are dealing with kin relation­ ships. Wu Lieh 吳烈， relying on an ambiguous interpretation of the testa­ ment of his grandmother， has been unwilling to install an heir for [his late uncle], Wu Chi the Eighth 吳季八. He wants to take possession of all of the property, without regard to the wishes of the deceased. [His cousin] Wu Teng-yiin 吳登雲 has already become the son of Wu Chi the Fifth 吳季五 by leaving the succession line of his own natal father.97 Now he also wants to be the heir to Wu Chi the Eighth. This is nothing more than a covetous scheme to get the property for himself. How could he really have in mind the posthumous welfare of the deceased! The hearts of these two men, which are filled with avarice and forgetful of righteousness, are greatly to be condemned. How much more is this so when the testament,of the grandmother is taken into consideration! Knowing beTorehand that she could hardly trust anyone

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after her death, she simply set aside some property to cover the expenses of her own burial. But she never said anything about not installing an heir for Wu Chi the Eighth. Wu Lieh has thus distorted words in violation of the law. His slan­ dering of his grandmother by saying that she wanted to sever the line of descent of his late uncle Wu Chi the Eighth is especially culpable. As for Wu Teng_yiin， who although a single person wants to combine in himself the properties of the two deceased uncles, what conceivable basis in law could this have? The former acting official, Mr. Teng, dealt with the true circum­ stances of this case in his decision. Two years have passed. Why has the decision not been enforced? This has left the two families em­ broiled in endless lawsuits. The recent decision by the revenue manager, which takes into ac­ count both the facts and the humane moral feelings of those involved, is particularly comprehensive and appropriate. With the exception of the portion allotted according to the testament of the grandmother, nee Chu, the remaining portion of the property should be given to a separately installed heir for Wu Chi the Eighth. Then the deceased may close his eyes in peace, and both Wu Lieh and Wu Teng-yiin, with their covetousness expunged, may revert to their natural state [of goodness]. From the closely related households of Wu Chi I-hsiu 吳季 —秀 and Wu Chi Ch’i-hsiu 吳季七秀 one person should be selected to serve as heir. What has been decided here should be reported first to the commissioner for his information.

ON CONTENTION W IT H IN A LINEAGE OVER THE INSTALLING OF AN HEIR98 author: H an Chu-p， o 韓竹坡

The followingcase can best be followed by using the Wang family chart. Essentially it concerns a dispute within a lineage about naming an heir to an old but presumably relatively wealthy man. The first heir chosen by the old man died. The old man then chose another person to serve as the heir of his now deceased adopted son. The man, wh om we

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should probably call an adopted grandson, had served as heir for four years. Then another relative managed to talk the old man into trying to dismiss his adopted grandson and to name this new man heir. Han Chu-p!o, although he seems to find the adopted grandson’ s position as sole heir legally sound and the other presumptive heir a thoroughly unpleasant person, nonetheless, in the hope that in this way the dis­ pute can be fully put to rest, accepts the suggestion of a lower official that both men be declared heirs, one to the deceased grandfather, and one to the deceased father, with the proviso that they not be allowed to divide the property. '

The grace of patrilineal descent groups among the men of antiquity went on for a hundred generations without an end. This was because even those who were only distantly related, so that they wore only the minimal ritual clothing in their observance of mourning, were still descended from the same ancestors. How much closer shoujd be uncles and brothers in one family, whose ties of blood are so close! How could there be divisions among them? Now I have looked at the mutually disputing plaints in the family of Wang Wen-chih 王文植• They really are enough to make one sigh with sorrow. Wang Wen-chih had no sons. Initially, Wang Po-ta1王伯大，the sec­ ond son of Wang Wemchih’s elder brother, Wang Wen-shu 王文樞， was installed as heir. However, Wajig Po-ta1died. Thereupon, [Wang Wen-chih] chose Wang Chih-tao 王志道， the son of his nephew Wang Chih-hsiieh 王志學， 99who lived in the same household, to be installed as heir. The choices of both the heir and the successor, coming from within the same family, were coinpletely in harmony with the law. At the time when Wang Wen-chih first chose Wang Chih-tao as his heir, the eldest son of his brother, Wang Wen-shu, named Wang Po-ta2 王佰達，wanted the choice to be his own younger brother, Wang Poch， ien 王侣謙. He was not successful. Wang Poch’ien is the person now called Wang Ho-weng 王鶴翁• In the past, Wang Wen-chih had lodged before this court a plaint against Po-ch’ien, accusing him of breaking into pieces the^itual incense burners of the family. Wang Chiji-tao held the position of descendant of Wang Wen-chih， s [descent line, as the heir of the deceased adopted son] for four years. During these four years Ho-weng continued to covet the family property

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WANG FAMILY

of Wang Wen-chih, and sought to get his finger in the pie. Therefore he watched for disputes and sotight to sow discord concernin'g Wang Chih-tao. Not a day passed that he did not entertain such ideas. When Wang Wen-chih suffered a minor illness, Ho-weng leaped at the chance. Dismissing the two maidservants, he himself served the

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medicines and soft food. As a rule，the elderly delight in those who cater to them with respect. Wang Wen-chih fell for Ho-weng， s strata­ gem, without being aware of it. From this situation stemmed his likes and dislikes, his pleasures and displeasures. Therefore Ho-weng’s plot succeeded. Wang Chih-tao, as the legal heir of Wang Wen-chih [through his son], observed mourning for his grandmother. Moreover, when he had married and his wife had given birth to a son, he lived together in harmony with his grandfather and the grandson for four years without any complaints. Suppose that Wang Chih-tao had constantly kept in mind his grandfather's advanced age, responding to his anger with pleasing manners to ease his feelings, doing his utmost to carry out any orders given him, and when [the old man] was ill, staying up with him with­ out even undressing, personally tasting the soups and medicines in order to serve him. This being so, then the mood of the old man would naturally have been quite happy. When in a family there is the enjoy­ able atmosphere of spring, how could anyone drive a wedge between them? Now I note that when Wang Wen-chih first installed the successor to the heir, he said that the young man was likeable, and when he sent him away he said he could hardly bear to do this. Things that go against the way of Heaven must in the end revert. How much more is this the case when the principles of these Heaven-sent natures were in accord and were without any basic division! I have retrieved and carefully examined the case file. I find that all the negative statements about Wang Chih-tao in the plaint of Wang Wen-chih stem from Ho-weng. They do not reflect the true intention of the old man. To remove Wang Chih-tao and instead to install Wang Ho-weng as successor would not be in conflict with the articles in the law on install­ ing a successor and expelling a son or grandson.100However, Ho-weng had at one time caused Wang Wen-chih to bring a lawsuit against him. In the past to have brought a lawsuit against [Ho-weng] and now to establish him as the heir [shows that] Wang Wen-chih has contradicted himself, [though] there is no great harm in that. On the other hand, Wang Chih-tao has already been installed as the successor and given a certificate to that effect. After having long been recognized as heir, he has now been expelled from the family. Ho-weng is like the man in the proverb, who not only “treads on his

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fields, but also snatches his oxen.” How can Ho-weng feel at peace in his heart? I also note that the plaint of Wang Wen-chih about Wang Chih-tao does not list any serious charges but merely says that the young man is vicious and self-willed. That is all. Viciousness can be quelled. Selfwilled disobedience can be reformed through instruction. If Wang Chihtao were to come, leading his wife and his son’s wife, to express in front of his grandfather his repentance for the offenses and faults then the principles of Heaven would flourish. Nevertheless, if we keep Wang Chih-tao as the sole successor, Howeng will certainly not desist from his plaints, because he has long coveted the family property, regarding it as if it were already meat on his table or things in his bag. Hence it will be better to follow the recommendation of the notary of the administrative assistant in the prefecture to make both parties successors of the family line, in order to bring the lawsuits to an end.101 Wang Wen-chih’s prospects, like Mount Yen-tzu,102face toward the sunset in the near distance. Filiality and respect on the parts of his son and grandson will make his old age enjoyable in a pleasant and leisurely style. If he should listen to Wang Po-ta2 and Wang Chiehch’en 王節臣， 103who would take turns in masterminding plots, spread­ ing tales, and stirring up plaints and accusations, then he will inevitably see the destruction of his family and the division of its property. This would be a great misfortune for the Wang family. Yet all this might happen, because of an old man who said that something bothered him. Such an outcome would be pitiful. An ancient poem says, “How long is a lifetime or a century? It is no more than a fragile candle in the wind•” If an understanding filiality is there to support the lineage, then parents will be spared rapid aging. Wang Wen-chih, who is already more than eighty years old, may live in a carefree manner for some years, enjoying the pleasures of lon­ gevity. His son and grandson should be as one in following the teachings of the Classic of F ilial Piety on nurturing elders in order to make them happy. Day in and day out they should take care of his needs so that he lacks nothing. They should gratify his wishes and maintain the ethical bond so that nothing will occur that might hasten his aging. This is the way to transmit the lineage. Now, the two parties, Wang Ho-weng and Wang Chih-tao, are both to be installed but they are not to be allowed to divide the family property by having separate registrations.104While each of them is to

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have his own share, they should be bound perpetually by the rules of filiality. Filiality is the root of the ten thousand blessings of this world. If these two^men can reorient their feelings and practice the way of filiality， Heaven, earth, and the spirits will protect them, and the Way 、 of this family will flourish more day by day! Should they fail to do so, and they again appear in court, the laws of the state are quite clear, and the officials could not practice favorit­ ism in applying them.

.

ONE W H O CONTENDS TO BE INSTALLED AS H EIR IS D EN IED PERM ISSIO N 105 author：Yeh Yen-feng

This interesting1case isa fine illustration of the power and standing of the matriarch bf a fafmily. The old lady, nee Liu, had born three sons to her husband. THe eldest sontnarried but died before producing an heir. The other brothers片 he old lady, and the widow ofthe eldestbrother lived on together. Then a paternal cousin, a son of a brother of the old lady’ s deceased Jiusband, entered a-suit asking to be named the heir of the old lady’ s deceased eldest spn. The old lady objected repeatedly and effectively against,this suit, on three grounds. First, the man bringing the suit had followed his widosw,ed mother into a new marriage and been adopted into the family ofthe new husband. Second, ifthe plaintiff wanted to become an heir within the lineage, he should become the heir of his own dece^ed natal father, whose other son was already d^ad. Third, according to very clear Sung law, “ installinganlieir should follow the orders of the grandparents and parents.”In this case this would obviously meah the choice of the inatriarch and the widow of her s6n. Yeh Yen-feng is-also'impressed by the fact that the testimony on the plaintiffs behalf was submitted" by a man who, according to a lineage chart drawn up by the plaintiff himself, seems clearly to be only a distant relative. The judge is finally and especially outraged by the requests in the suit brought by the plaintiffthat his elder relatives be punished by law and the elderly matriarch be legallydeclared senile. Yeh not only rejectsthis suit,he orderg the plaintiffbeaten eighty blows of the heavy rod. .

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As observed in the information received, Chang Chieh-jan 張介然 had three sons. He died, but is survived by his wife, nee Liu. His eldest son, Chang Ying 張迎，married a woman nee Ch， en，but died early without sons. Because the old lady nee Liu is healthy and strong, while the elder and younger brothers are living together and have not divided the family property, all family affairs follow the orders of the Liu clan’s matriarch. Therefore, although the eldest son died, his widow is comfortable with the situation. This is something fortunate in the midst of misfortune. Now, we have a petition from the lineage member, Chang Ta-shan 張達善，saying that the line of his deceased uncle, Chang Ying, needs to be continued, and that he himself, being ritually appropriate in age and generation, ought to be the heir. But the matriarch of the Liu clan, although she is aged, has repeatedly brought lawsuits to the court, declaring her unwillingness to see Chang Ta-shan installed as heir. Her plaints have considerable merit. , In carefully examining what has been submitted, I find three rea­ sons that Chang Ta-shan ought not to become the successor. Accord­ ing to the petition of the matriarch nee Liu, Chang Ta-shan went with his natal mother after the death of his father when she married a doctor named Cheng. Because he was raised in that other house­ hold, he thus became a son of the Cheng family. A district case docu­ ment proves this.106Again, according to the petition from the old lady nee Liu, Chang Ta-shan originally was one of two natal sons of Chang Tzu-shou 張自守. His elder brother, Chang Ch’iian-lao 張全老，left home and never returned, dying somewhere along the Huai River. Chang Tzu-shou’s line of descent was thus ended. [As the old lady argues], if Chang Ta-shan wants to be an heir within the Chang lineage, he ought to be the heir to the defunct house­ hold of his natal father Chang Tzu-shou. This assertion also is reasonable. How could someone abandon the family that adopted him and in which he was raised, leave the family of his natal father with­ out a successor, and yet desire to be the heir of still another man? This is the first objection to his desire to be made heir. According to law, “Installing an heir shcfuld follow the orders of the grandparents and parents. If a family line has become extinct then it should follow the opinions of the blood relatives who are respected leaders in the paternal lineage line.” In the present case, the grandmother, nee Liu, sits well in the family hall, and the widowed wife, nee Ch’en， is still in good health. If they wish, they can themselves

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select from within the patrilineal descent group a well-behaved young man. Qne should listen to their wishes one way or the other. Chang Ta-shan does not think along these lines. On the contrary, he took advantage of the submission of a petition submitted by the lineage head, Chang Hsiang-tao 張翔道， that he ought to be established as heir. How can we be sure that this is not a biased plaint with crooked testimony? How much more dubious is it when, in a lineage chart drawn up by Chang Ta-shan himself，Chang Hsiang-tao initially did not appear? Clearly Chang Hsiang-tao is not a close blood relative. How can Chang Ta-shan disregard the order of his grandmother and mistakenly act on the statements of a distant relative, obstinately seeking to be the heir? This is the second objection against his claim to be made heir. Again, in light of the evidence that Chang Ta-shan has submitted, the old lady nee Liu is his great aunt107and the widow nee Ch， en is his aunt.108Chang Hsiao-hsiang 張肖祥 and Chang Hsiao-tzu 張肖梓 are both his uncles. The hierarchical order of high and low and their respec­ tive statuses are clear and inviolable. Now Chang Ta-shan， s petition firstly seeks to have the widow nee Ch’en banished. Secondly, he wants his two uncles to be sent away under escort. Thirdly, he wants to have his very elderly great aunt, the woman Liu; officially declared senile. His offenses against harmonious relations {pu mu 不睦)109are truly extraordinary! He has even gone so far as to charge them falsely with having disposed of some family property through disguised arrange­ ments. His intention is to harass them so that under his threat they will install him as heir. All this may be called rude behavior. This man, who is so disrespectful of his senior relatives, if he should now be made the successor, would hereafter certainly not be filial in his support of the two generations of his female relatives, nor would he act respectfully toward his two paternal uncles. He would surely act in a refractory way toward those who are his superiors and trample on those below him. He would dispute over wealth and fight over property, so that the harmonious atmosphere of peaceful times would vanish altogether. This would exhaust the family’s resources. How could someone who would banish a widow who was the daughter-inlaw of a great aunt and would plot to take over the property, be qualified to serve as the family descendant? This is the third objection to his claim to be made heir. The customs of the world are now lax and impoverished, and few people understand ritual propriety. The installing of heirs is a serious

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matter. In general there are some people who are legally qualified to be heirs who will not condescend to be so named. It is unheard of to compel the choice of an heir through a lawsuit. When someone has attacked senior relatives in a lawsuit as if they were enemies, how could that person then shamefully reverse him­ self and perform the duties of a younger family member? How could this sort of behavior not lead to an evil and rebellious environment? Bad customs of this sort must be reformed! Now, we expect the matriarch nee Liu will succor and care for her daughter-in-law. If she wants to appoint an heir to be her grandson, her willingness or unwillingness should be respected. Chang Ta-shan is to be sentenced to eighty blows of the heavy rod.110 Furthermore, this case is closed and the files are to be sealed. Should another offence occur then the seal will be broken so that the files can then be used as the basis for a judgment.

A DISPUTE RAISED BY A SON-IN-LAW111 author: Yeh Yen-feng

The facts of this case are relatively clear (see Tai family chart). After the death of his younger brother, an elder brother raised the adopted son of his younger brother, and divided the family property equally between this young man and his own son. And then his son-in-law came forward to dispute the division, putting his own son forward as the appropriate heir. In Yeh Yen-feng’ s opinion this son-in-law lodged some truly outrageous complaints against his in-laws. Not only does Yeh dismiss the suit, he orders that the son-in-law be beaten eighty blows of the heavy rod, a sentence that suggests that the man was sentenced under the provision for having “ done what ought not to be done.”

Tai Tseng 戴贈 had a natal younger brother named Tai Sheng 戴 盛. They lived together and cooked together on the same hearth in complete harmony. Tai Sheng never married and had no children. He

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raised Ch’en Ya-liu 陳亞六 from infancy to serve as his adopted heir. Ch’en Ya-liu, who is now forty-seven years old, married a woman sur­ named Ts’ai，who has borne him two sons. Unfortunately Tai Sheng died before his brother， so Tai Tseng raised his nephew [Ch， en Ya-liu] as if he were one of his own sons. In dividing up the property he gave his nephew one half of it. This may be said to be the best example among the common people of observing propriety in awarding portions. Who would have expected his son-in-law Hsu Wen-chii 徐文舉 to harbor covetous designs on the property! Appearing repeatedly before

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various authorities, he has accusing the Tai lineage on his wife’s side of having deliberately refused to accept his second son as the heir of Tai Sheng. Tai Tseng， his father-in-law, who is eighty-seven years old， felt so moved by a sense of righteousness and so enraged,by these unjust accusations that he grasped his staff and came to the district and prefectural offices to enumerate the faults of his son-in-law as well as to protect in good faith the interests of the adopted heir. Upon examining the case documents we find that Hsu Wen-chii has brought a fabricated plaint mid a spurious lawsuit. He has not observed in the slightest degree the cordiality that should exist be­ tween relatives by marriage. For example, his lawsuit accuses his wife’s brother, Tai Liu-ch’i 戴六七，of having committed adultery with the wife of a younger brother. This is the first culpable point. It further accuses his wife’s uncle, Tai Sheng，of illegally establishing a household under a false name. This is the second culpable point. It then falsely accuses his wife’s younger brother, Tai Ying-sun 戴 應 孫，of having chased him with knife in hand in an attempt to kill him. This is culpable point number three. These accusations are disgraceful. Because Hsu Wen-chli looks upon the lineage members on his wife’s side as if they were enemies and treats his father-in-law as if he were a stranger, how could he possibly have his second son appointed as the heir to his wife’s uncle! How much worse that he wants to set aside an already existing heir so that his own son can be installed. Could this be permitted by the law? If he is not punished then his plaints will not cease, the lineage members on his wife’s side will continue to be bothered and the old father-inlaw, even when he dies, will not be able to close his eyes in peace. It is ordered that Hsii Wen-chii be beaten eighty blows with the heavy rod. If he transgresses again, this should be dealt with as a separate offense. So inform the offices of the commissioner and the prefecture.

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Households and Marriage W H E N AN HEIR HAS BEEN CLEARLY ESTABLISHED THEN THE FAMILY DOES NOT DIE OUT112 author：Draft decision (ni 擬 ）by the ju dicial inspector

This case involves an attempt by daughters to dispossess the son of their adopted brother as an heir. In the opinion ofthejudicial inspector the evidence isclear (seeW u family chart). There isabundant documen­ tation to demonstrate that the deceased son had been properly adopted by the father. The inspector cites the relevant laws governing these matters. He also raises the issue ofthe adoptee having performed appro­ priate mourning rituals and the fact that the issue was not raised while this heir was alive but only after his death when the property might pass to his son. In the inspector’ s view, the case of the plaintiffs was designed by one ofthe married-in sons-in-law and hinged on the under­ standing that ifthe patriline were to be declared to have died out, the family patrimony would be divided among the daughters. There is,how­ ever, another way to see the case, which was originally brought by the youngest, as yet unmarried, daughter. This daughter knew that the second to the youngest daughter had been sold into a minor marriage (as a so-called foster daughter). She hoped that she might avoid being sold in her turn and so entered a plaint asking that the family prop­ erty be divided. The case having been brought, the others join in a scheme to dispossess the son of the adopted male heir. The inspector raises a variety of evidential and legal problems with their plaint and in the end dismisses it.

When the documents concerning lawsuits about households and marriage are numerous and yet are not in agreement, and the official charged with rendering straightforwardly worded decisions is not able to act in accord with the law while taking into consideration the humane moral feelings involved so as to settle the controversy fairly, then lawsuits motivated by insatiable covetousness will continue to flare up.113This will not stop until the families involved are destroyed. This particular case now comes before this office. The relevant laws are readily available. It merely remains to clarify right and wrong with a view to making the decision conform to humane moral feelings.

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Wu Ch’en 吳琛 has four daughters and one son. It is so recorded by the lineage branch. The eldest child is a daughter, called the Fourth Maiden of the Twentieth Generation, who is married to Shih Kao 石 高. The second daughter, named the Fifth Maiden of the Twentieth Generation, is the wife of Hu Yin 胡闉. The third child was a son who was called the sixth of that generation, and had the formal name of Wu Yu-lung 吳有龍• He was established heir although originally he had a different surname.114 Next is the daughter called the Seventh Maiden of the Twentieth Generation, who according to the report has already married into the Hsu clan. The last and youngest daughter is called the Eighth Maiden of the Twentieth Generation. She submit­ ted the initial statements [about this case] and is unmarried. If the birth order of the siblings can be made clear then this can help in settling this lawsuit over property. Shih Kao and Hu Yin are the married-in sons-in-law. Customary propriety regards such men as semi-sons. If Wu Ch’en had considered both of the sons-in-law trust­ worthy, then he would have had no reason, while he was still alive, to install a boy of a different surname [as heir of the household]. And yet he did so establish [the boy born with the surname] Lii-ch， iu ，in order to continue the descent line.115In addition, the old man had his heir marry a girl from the Li family. There was substance to his having this girl chosen as the wife. As time goes on, the grandchildren as branches will stand up well. For a number of years the members of the family got along peace­ fully without arguments, each in his proper role as father or son, elder or junior. Suddenly a lawsuit is initiated. What is the cause of this? Is it not because of the assertion that Yu-lung should not have been considered the son of Wu Ch’en? In this case, what of the threeyear (chan-ts， ui 斬衰）mourning rites [which a son should perform for a father] performed after the death of the Wu Ch， en? Were they performed by the two married sons-in-law? Or were they performed by Yu-lung? In truth, was it not Yu-lung who performed them? Again, is it not because of the assertion that Yu-lung should not have been considered the brother of the fourth maiden and her younger sisters? In this case, when Yu-lung died, were not the three year mourning rites [which should be performed for a brother] performed by these sisters? Or were they performed by someone else?116 Moreover, since Yu-lung waited upon his father in life and buried him when he died, performing all the duties of a son, it is absolutely

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impermissible not to call him a son. If one wanted to say that Yu-lung was not a natal son, but only an adoptee then why did the Fourth Maiden of the Twentieth Generation not make her accusation at the time of Wu Ch， en， s death when the legal position of heirship was not

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fully confirmed? Instead, why did she file her complaint about Yulung only after Yu-lung， s death? According to law, “In cases involving [deceased] adoptive sons， when the adoptive grandparents and parents of an adopted son have died, or, even if the adopted son himself is still alive, the parents and grand­ parents who raised the child during their lifetimes are all dead, the authorities are not allowed to take up such cases, whether the allega­ tions are raised by other persons or by the adoptive sons themselves.’ ， Also, according to law, “All infants under three years old who are of different surnames may be adopted. Because they are following their [new] family, the adopting parents are allowed to petition the officials to append their names to the family register. Legally they have the same status as natal sons and grandsons. This same legal provision applies even if the names have not been so appended, if an official investigation verifies the facts.”117 Yu-lung, although called a boy of a different surname, changed his surname at the time when he was first established [as heir]. After the death of the father, on the basis of Wu Ch’en’s statement, an official certificate was given to confirm the correct status [ofYu-lung as heir]. Since the situation is like this, Yu-lung cannot be referred to as a foster son.118 Hu Yin also claims that the property of the Wu family has benefited from the labors of the two married in sons-in-law who have managed and increased it using the wealth that came from their wives’ family. Therefore he wants to have it divided equally among ihe four daugh­ ters. However, it cannot be so under the law. According to the law, “All married in sons-in-law who in the process of managing the prop­ erty of their wives have increased its value are to be given three tenths of the total [as their share], if the family dies out." However, in the present case, Wu Ch’en has left male a descendant.119The family cannot be treated like one which has died out. How can we make a division according to the rules for a family that has died out? A step by step investigation of the evidence presented in these two depositions reveals that the evidence consists of statements by the deceased and the district certificate. As to the so-called statement of the deceased, was this a verbal statement? or is it on paper? If it is on paper then it must be submitted to the government office so that the matter may be straightened out. If it was merely a verbal statement, then we fear that it will be unsystematic and thus inadequate to serve as evidence. How could it be sufficient to stop the arguments of various

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people? As to the district certificate, there are two copies issued by the present office. The one held by the woman Tu lists the infant as one year old, but the one held by Wu Lin 吳琳 12° is rather different, listing the child as seven years old. If Yu-lung really had been seven years old, by law he ought not to have been established as the heir and the district offices would have had no reason to provide a document indicating that he was one year old. If, on the other hand, he indeed was only one year old and so could according to law be established as heir then Wu Lin ought not to have changed the one into seven121and an infant into a boy‘ The rights and wrongs involved can be seen clearly. The steps that led to this lawsuit must have begun because Wu Teng 吳登122 and his mother could not create harmony among the senior and junior members of the family. Also, the failure in a proper and timely fashion to give in marriage the Eighth Maiden of the Twen­ tieth Generation created anger that was difficult to suppress. Such one-sidedness is hardly helpful. This is what caused the eighth maiden to lodge a complaint asking that the family property be sold. The district magistrate, Mr. Chao, who had a deep understanding of the situation, thereupon issued a decision calling for the equitable division of the property and the marrying off of the maiden. Yet the Fourth Maiden and her sisters, caring little about propriety among siblings, have attacked this decision. They have really given no thought to the fact that there is no clear provision in the rules concerning the inheritance of portions by women who are already married, whereas for those not yet married there is already a settled law under which they all receive equal shares of the property.123As to the various shares in property division, those who have not yet taken-a wife are given a “betrothal fund” (p’in-ts， ai 聘財) .Paternal aunts124and those sisters who have been married and then return to the original household are given “marriage endowments^ (chia-tz’u 嫁資） . Those who are not yet married should separately be given property, which is not to exceed in value that given as marriage endowments. Also, according to law, “When a family line comes to an end, its property is wholly given to the girl艮who are still at home, with those who have returned to the home being given half shares•” The Fourth Maiden of the Twentieth Generation and the others have not thought about the difficulties the father faced in establishing a-patrimony and overcoming problems and dangers so as to continue the line of the Wu family. Suddenly, they were misled by Hu Yin. They want to reverse the settlement, so that the property left to the heir

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chosen by the father will be divided up among themselves. Should offspring behave like this? Now, as to the matter of Wu Yu-lung having been established as heir by command of his father, this is proved by the evidence of the district certificate. He is entitled to his share of the inheritance in accordance with the rules. The Eighth Maiden of the Twentieth Gen­ eration is already of marriageable age. According to law, “Males at age fifteen and girls at age thirteen are allowed to marry.” She should be given a marriage endowment in accordance with the rules.125 On the other hand, although she should be given a marriage endowment, if she lives long in the Wu family, it will surely slip from her control. This would be contrary to the granary commissioner’s intention of arranging for the care of an orphan. It is suggested that Wu Teng and his mother be made responsible for arranging her marriage. They should, without delay, and with strict observance of the propriety of aunt and nephew, seek for her a spouse so that there will then be no more plaints. Hu Yin and others should not covetously eye profit to the neglect of what is proper, nor should they intervenejin Wu family matters] in contravention of law. Certainly they should not manipulate a fiveinch writing brush to disturb the offices with evil lawsuits. As to the Seventh Maiden of the Twentieth Generation, some say she is al­ ready married to someone in the Hsu family, while others say that she has been sold as foster daughter (i-rtil 義女) .Since the beginning of these complaints, nothing has dealt, in a fundamental way, with this question, nor is there a marriage agreement that could serve as evidence. Relevant documentation should be solicited from T’ungch， eng通城 District [present-day T， ung-ch， engin Hu-nan].126Separate action on it can be taken later. In the files of this case, officials have cited draft decisions concern­ ing the divisions of the property of a family that has died out and the dividing of property among females. This official finds them difficult to investigate and evaluate.127It is proposed that they be submitted to the office of the stabilization fund supervisor for his reference. This is my humble opinion. I await the decision of my superior.

246

Households and Marriage DUAL INSTALLING OF HEIRS, ONE BEING A SON CHOSEN BY THE ORD ER OF THE MOTHER, AND THE OTHER BY THE PATRILINIAL DESCENT GRO U P128 author: Draft by the T’ung-ch’eng District [present-day T， ung-ch， eng in Hu-nan] magistrate

This report was written by a district magistrate to inform his superior， the judicial commissioner, of the carrying out of the commissioner’ s orders on an inheritance case. (See Huang family chart.) The case arose because a young widow with no son maintained her commitment to the very oldConfucian idealofwidow chastity.Of her survivingbrothersin-law, one was mentally illand had never married. Another had three sons but had been on bad terms with his younger brother for many years. In,addition, his sons were of the wrong age to serve as adopted heirs to the deceased younger brother since they were of roughly the same ^ge as the deceased man. Thus, about six months after her husband’ s death, the widow asked a family to which she was related to let her adopt an infant s6n as her husband’ s heir though apparently she did not complete all the legal formalities. This conformed to Sung law. The magistrate writing this report finds himself in a quandary. ^The adoption was legal. There was even a lawlthough the official making the basic decision perhaps did not know of it)that such adoptions were legal even ifthe adopting family did not register them with the author­ ities. However, ithad become clear that some of the close relatives did not approve. There was strong sentiment, among some groups in tradi­ tional Chinese society, against adopting children ofa different surname. Thp magistrate himself seems tg lean strongly toward the more rigid Confucian position opposing such adoptions. On the other hand, the magistrate does know of the Sung law that a widow had the power to select an heir for her husband. Furthermore, he understands the legal principle that long existence ofa situation without complaints can serve as1evidence of its propriety. Two of the deceased husband’ s surviving brothers had not objected and indeed had helped the young man by providing teachers. But, after their deaths, the son of the surviving brother, with the support of his father, sued repeatedly in an attempt to get the property from the widow. Eventually the case reached the judicial commissioner who has sent his decision down for implementa­ tion to the district. The commissioner sets aside the clear intention of

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the law, which was all on the side of the widow, and orders that the estate be divided into two parts, one part to remain with the adopted son and the other to be given to a new heir chosen by the widow from eligible patrilineal group members. It seems impossible on the basis of the information we find in the decision to decide whether the commis­ sioner was moved to evade the law by a desire to bring to an end a festering dispute even at the cost of bending the rules or whether he bent the law because he was strongly committed to the increasingly influential body of Sung opinion that stressed the sanctity of the patrilineal line. The eventual settlement resembles one above where the authorities established a second heir even though this was not de­ manded by the laws, either in an attempt to preclude future troubles or because of personal aversion to the adoption of “ outsiders”(or per­ haps a combination of the two).

As we have learned, Heaven and earth created the proper roles and the sages used these as models in organizing ritual propriety and in establishing the law. Thus it is that a woman follows her husband much as a minister serves his ruler.129As the proverb says, “A virtuous woman will not follow two husbands, as a loyal minister will not serve two rulers.” Indeed, this is a far-reaching righteous standard of Heaven and earth and a great principle of chastity among the people. Thus, Rung Chiang made her pledge to her husband Po (never to remarry)130 and Lady Li defended her chastity by cutting off her own arm. These acts make illustrious the custom of chastity in our country and are made renowned in the histories. How can one merely say that these were individual acts of chastity and leave it at that! How ardent was Mistress Mao. She almost rises to the, heights [displayed by Kung Chiang and Lady Li]. Huang T， ing-chi 黃廷吉 was one of four brothers. The two elder brothers were Huang T， ing-chen 黃廷珍 and next in age Huang T’inghsin 黃廷新. He has one younger brother, Huang T’ing-shou 黃廷壽• Hung T’ing-chi married a woman of the Mao clan. In the fifth month of the first year of Tuan-p， ing [May 30 - June 27,1234] he died young, leaving no children. His widow， nee Mao, was only twenty-three years old. Moreover, she had no son who could have supported her for the rest of her life. She only had the two girls, neither of whom lived to adulthood. Yet she spiritedly declared that she would not remarry. This would truly be difficult for an ordinary person. To be of mature

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years and preserve one’s chastity is praiseworthy. How much more is this so when a young v^idow does so? Those who have sons and pre­ serve their chastity are worthy of our respect. How much more so is a woman who preserves her chastity without a son!131There might be some who would say that she coveted the Huang family property, yet it paid only seven thousand coins in taxes, so the Huangs at the be­ ginning were not wealthy. Were there not many other families in the empire who had more? Initially she installed Huang Chen 黃绩 as heir because she had no other option. At that time, T’ing-hsin，although he was married, as yet had no heir. T， ing-shou，who was mentally disturbed, remained unmarried [at the tinie'of this adoption, though he later married and had sons~t r .]. Although the eldest brother, T， ing-chen， had three sons, unfortunately they were about the same age as T’ing-chi.132Moreover,

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T’ing-chi during his lifetime never got along with Tsing-chen. Severing all relations, the brothers had nothing to do with each other. When T， ing-chi died, T， ing-chen and his sons just put their hands in their sleeves like spectators and looked on. Not one of them came to offer condolences or comfort the new widow. Besides these three sons did not behave properly. As a result, in the eleventh month of that year, the woman Mao asked the Liao family to which her cousin belonged133 if they would allow their second son, who was originally named Liao Fa-lang 寥法郎，to be installed as the heir to her husband T， ing_chi and to have his name changed to Huang Chen. [Note in the original: This conforms to the rule concerning relatives of the three-months (ssu~ma 總麻）mourning degree or closer, but of a different surname. If a child of three years or less is adopted then the child takes the surname of the adopting family.] However, upon examination we find that installing Huang Chen as heir did not enjoy the full public consensus [of the patrilineal descent group]. Now it is claimed that the father had adopted him during his lifetime. This is nothing more than an attempt to conceal the fact that originally he had a different surname. First, there is no document certifying his transfer from one family and his addition to another family. Second, there are no elders of the patrilineal descent group to bear witness. Using only the accounting book for erecting the grave stele set up after the death of TJing-chi and the plaints submitted by Mao Ching-shan 毛景山 and Huang Chung-yiian 黃仲元， the district has certified the heir. How could such evidence -suffice to convince people? I have heard an apt saying of the men of antiquity that “the spirits of the dead do not enjoy the sacrifices of those who are not of their kindred and that people only sacrifice to those who were of the same ancestry as themselves.， ， 134Thus, when the Viscount Tseng took Duke Chu as his heir, the Spring and Autumn Annals135records that “the men of Chu extinguished the principality of Tseng. ” It is not the men of Chu who in truth extinguished T的 ng. Rather, the men of Tseng, when they in an open and ostensible way adopted someone outside the proper blood relationship to be the heir and pretended that this was a legitimate succession, in a hidden manner extinguished themselves. This being the case, might it not be said that the installing of Huang Chen meant the extinguishing of the Huang family by a member of the Mao family? When the Huang ancestors worked hard to accumulate property and then someone of different surname came to enjoy

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the possession of it, how could Huang T'ing-chen refrain from bringing a lawsuit? However, when, a husband is dead and the wife is alive, the wife is to be followed in family matters. There is a clear stipulation on this point in-the law. Huang Chen has been installed as the heir for eighteen years. Mother and son have been amicable, with no grudge between them. In the. managing of the household, in discharging their corvee duties, and in additional acquisition of their landholdings, the son has not shown one iota of misbehavior. The elder uncle, T’ing-hsin， and the younger uncle, T， ing-shou，invited tutors year after year to teach and enlighten him. It was also they who decided on his engage­ ment and marriage. From the beginning this family has had no dis­ agreements. Recently, because T^ng-hsin and T^ng-shou died one after the other, the woman Mao and Huang Chen had no one on whom they^ could rely. Thereupon, T， ing-chen， s son, Huang Han-lung 黃漢龍, began to scheme to get their property. He connived with his father, T’ing-chen， to lodge endless lawsuits. *His intention was simply to displace Huang Chen and become heir in his place. Therefore he has taken his previous plaints from prefecture to district* and from the district to the prefec­ ture.136 Huang T， ing-chen never himself'appeared in person, so in each case it was his son Huang Han-lung who did it all. Both uncles, T’ing-hsiruand T^ng-shou, had sons oftheir own [who might have been potential candidates to be named as heir— t r .]. Why was it that during their lifetimes there was not a single plaint? And then, soon after these two men died, the lawsuits began. This also Clearly reveals Huang Hair-lung， s hidden* covetousness toward the family property. Because the honorable coftimissioner was thorough and brought to light the hidden motivations, he did not fall in with Han-lung， s scheming trap. He ordered that the woman Mao and Huang Chen be brought to the district and in the presence of the eight nephews who are the sons of Huang T， ing_hsin and Huang T’ing-shou, the woman Mao herself would in court select one ofithem to be the heir. Besides this order, the commissioner had further instructed that the property currently七elonging to the Io nian Mao'be divided into two equal parts with clear boundaiftesfor distribution. The documents concerning the divided part&were to be officially certified with seals and given to Huang Cheir And the newly established son for safe­

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keeping, with each receiving a copy. As before, the woman Mao was to have the management of the whole property. j I ，as district magistrate, honored the instructions of the commis­ sioner, brought in the woman Mao, Huang Chen, and summoned the eight sons and nephews belonging to the two branches of Huang T， ingshou [and T， ing-chi]. This district then affirmed the selection by the woman Mao of the second son of Huang T， ing-hsin，named Yii-lung 黃禹龍，as another heir of hers along with Huang Chen. We required her to submit to this office a sworn petition to this effects As to the division of the property, this office has searched for and located the deed received by the woman Mao， s husband, Huang T， ingchi， when he inherited the land, as well as documentation concerning additions to this property subsequently made through conditional sale. We are now ready to send an official runner named Wu Chieh 郞節 to supervise the matter on the spot and a housing broker, Tung Tingchieh 董丁傑， to prepare the required guarantee. In the presence of a gathering of the elders of the Huang patrilineal descent group, the property of Huang T’ing-chi is to be divided. In an equitable way equal portions are to be given to the two heirs.

Returning to the Descent Line AN UNW ORTHY ADOPTEE IS ORDERED TO RETURN TO HIS NATAL FAMILY137 author: n.a.

This case begins with the striking assertion that*there \vere circum­ stances in which a son, adopted in this case, could initiate a lawsuit that was partly a suit against his mother. It also provides information on the actual functioning of the bureau called the notary office. Suits involving family and property seem to have been heard by this office, one supposes acting under the direction ofthe administrative assistant. In this instance the person writing this opinion isconcerned primarily to uncover evidence about character. The evidence, which seems to

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have been based exclusively on the testimony of witnesses, show that the plaintiffwas lazy, unfilial, self-indulgent, greedy, disobedient, and abusive. The judge here has no difficulty making a decision, basing himself on the clear law that dictates the grounds for and process of expelling an adoptee.

Yesterday was the day to select for hearing some cases before the notary office. Among them was the case of the woman nee Ho, who lodged an accusation against her son, Shih Ch， i-tzu 石豈子. He in turn has submitted an accusation against his brother, Shih Kuo-tzu 石國子，an accusation that also involves his mother. For mother and son simultaneously to accuse one another violates principle and harms the Confucian way. However, we must give the matter some consid­ eration, since it might be that the mother has preferred one son to the other. The disprized son might, through this suit, be expressing his tearful cry to Heaven. This would make it a permissible appeal. The parties were ordered to confront each other at the notary office. As a result we know that Shih Chu-ching 石居敬 was the late husband of the woman nee Ho. Before he died he adopted as his heir Shih Ch?itzu, a natural son of a fellow clansman named Shih Pi-hsien 石必先. A year ago the Shih family with its three members was due for a halfa-year service obligation with the neighborhood labor service group.138 According to witnesses, the woman nee Ho, who took her turn during the sixth and the tenth months, did her duty on time. Shih Ch， i-tzu， on. the contrary, only took care of the bare essentials, while using the available funds to go around for his own pleasure. He even took it on himself to sell the family ox [without the knowledge of the other family members—tr.], rented out some land the same way, stealthily dis­ posed of some silver bracelets and silk items, and borrowed money in paper currency from a certain Sun K， e 孫客 and others. Even all these are not so serious as his offense in not observing proper mourning. His grandfather, Shih Yun-yii 石騷玉， and his father, Shih Chu-ching, died one after the other. While their bodies were not yet cold, before he had even taken off his mourning clothes, at a time when he should have been staying at home and studying the rites, Shih Ch， i-tzu violated propriety in various ways. Leaving home in the ninth month of this past year, he did not return till the following year. When his mother sent a servant named Wu Wu

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Ch’ien-i 吳 五 千 一 [“Five Thousand-one， ， ] to get him, he not only refused to obey his mother’s order, he also beat up the servant. How could he ever be a comfort to his mother? The trees around the graves of his grandfather and father are within sight, yet the heir loafed about without a thought of returning at the proper times to pay respects in front of the graves. O f what use is such an heir? Worse yet, on the fourteenth day of the fifth month, he appeared at the house gate and cursed his mother, making accusations against her. He even held a knife and a club in his hand. What did Shih Ch， itzu intend to do? Several witnesses, Ch， en Shih 陳 十 [“Ten”]，Chai Ch， i-liu 霍 七 六 [“Seven-six”]，and Chou Shih 周 十 [“Ten”]，on being called, all testified clearly to every detail. When the affidavits of the head of the paternal descent group and others are examined, the proofs are even more explicit. According to the ordinance, “Those adoptees of the proper genera­ tion in the same clan who have taken good care of thein adopting grandparents or adopting parents may not be expelled from the family without cause. On the other hand, if an adoptee, grandson or son, squanders family property, does not take care of the adopting elders, or commits obvious offenses, an accusation may be lodged with the government. The government will conduct an investigation which will include the testimonies and verification of the elderly close relatives. Upon confirmation of the charges the adoptee may be expelled from the adopting family.M Now the offenses of Shih Ch， i-tzu are really detrimental to social customs and education through culture. The case should be dealt with in accord with regulations. It has been proposed that Ch， i-tzu be sent under guard to his natural parents in Pa-ling 巴陵 District [presentday Yiieh-yang in Hu-nan], who shall be required to file a statement pledging supervision. Prefect Hsu, having heard the report of this proposed decision, issues the following order: “When Shih Ch^-tzu has behaved so improperly, can he go unpunished? He is to be beaten one hundred blows of the heavy rod and is under explicit orders to leave the adopting family and to go back to his natural family. The rest follows what has been proposed.”

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Auditing [for Trusteeship] IMPROPER REQUEST FOR AUDITING139 author: Yeh Yen-feng

This is the clearest passage in the Ch ，ing-m ing chi about the Sung practice of government auditing of the property of orphans and of the rule allowing appeal when such audits were inappropriately conducted. The facts of the case and the rules are straightforward. A cousin of an orphan, now an adult raising two children, petitions for an audit in order to prevent the transmission of the estate of the deceased. (We must assume that the father* of the orphans had died recently.) Yeh Yen-feng finds his petition frivolous and based on greed and envy.

Chang Wen-keng's 張文更 father has died. A cousin of the deceased, Chang Chung-yin 張仲寅，on the grounds that he was the cousin of the deceased, has asked for an investigation of the family property which will come to the junior members. His intent is to induce an official audit. According to thq stipulations of the law, under the prac­ tice called “auditing” (chien-chiao 檢校)，which is intended to apply to the affairs of young orphans, “the government will audit or take an inventory of properties, .estimate the needs of the orphans, and intrust a reliable relative to care for them and, to return to them all their property when they come of age.” This is the law. Moreover, the impe­ rial decree says, “if the prefectural or district authorities improperly resort to auditing when they should not, 狂direct appeal to higher authorities is permitted.” This is to prevent the overexercise of legal authority. In the present case Chang Wen-keng is already thirty years of age. He is fully capable of managing the affairs of the family. Although his younger brother and sister are not yet ten years old, naturally they can be brought up by him, because he is the elder brother. This situ­ ation fits precisely under the provisions of the stipulations that rule out auditing.

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Chang Chung-yin has petitioned, supposedly moved by his sense of righteousness. Is this really so or do his actions stein from his selfish purposes? In the past he vilified the mother in a misleading way, which caused Chang Wen-keng， s father to separate from her. Now he inter­ feres in the family affairs again； preventing the son from taking over the patrimony. He has seized on a misfortune to exact revenge and used kinship seniority to coerce his young kinsmen. How cruel are his intentions! An improper resorf; to law is merely disturbing. But witness the craftiness of his motives and the poverty of his sense of kinship righteousness. The way of Heaven’s functions is immanent. How can he not think about the future of his own sons and grandsons? It is ordered that Chang Wen-keng should manage his father’s prop­ erty and bring up his brother and sister. If in the future they should wish to divide the household, there are laws to follow. No one else should interfere. f

Orphans and Minors M AKING OFFICIAL ARRANGMENTS140 t

author: H an Ssu-cliai

似齋

This opinion is Han Shih-chai’ s unfavorable review ofa decision made in the notary office. In his view that office relied too heavily on the desires and testimony ofa ten-year-old girl rather than enforcing state law. The circumstances are moderately complicated. A man died without a male heir, leavingbehind only a daughter l^orn to a maid. T^ie author­ ities established a male heir, which they were not compelled to,do but could do under some circumstances. They also audited the deceased father’ s property and set aside a portion to be used for the support and dowry of the daughter. Her natural mother used part of that property to arrange a marriage for herself. The daughter, at age ten, ended up in the household of the kinship branch head. He in effect sold her to another family. Under such arrangements a young girl would be sold to a family that would raise the girl, often using her as an ufipaiid ' servant, and eventually marry her to one of their sons. This practice,

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though apparently disesteemed, was not uncommon. It was probably most commonly practiced by poorer families who wanted to avoid the costs associated with a normal marriage. The girl’ s mother gave her written blessing to this arrangement. One may suspect, in light of the history of this affair, that she was paid off for doing so. Then, seizing her opportunity at the father’ s funeral, the mother took the girl away with her. She and her new husband then arranged a betrothal to another man, in effect resellingthe girl,by now twelve years old, and petitioned to have the money being held for her daughter’ s marriage released to her. Han Shih-chai declares that the marriage arrangements in both cases are no longer workable, orders the refunding of appropriate moneys, and punishes one of the persons involved in instigating the legal process. Nothing is done for the moment to either the mother or her husband, though they are threatened with punishment if they persist in causing problems. But one apparently peripherally involved person, Lin Tuan, is heavily punished. Why? We would suggest that Lin Tuan was a “ litigation trickster， ”perhaps associated with 压 docu_ ment shop, whose crime was to have been a legal advisor and a writer of legal documents.

Li Chieh-weng 李介翁 died. He had no son, only a daughter named Li Liang-tzu 李良子, born by his maid, Cheng San-niang 鄭 三 娘 [also known as the woman Cheng]. The government installed an heir, audited the property, allocated the share due Liang-tzu, and ordered the woman Cheng to look after Liang-tzu till she married. The cash, paper currency, and silverware were, however, put in government custody. This was a comprehensive plan to assure the proper care for the orphan. Yet the woman Cheng, because she has the base nature of a maid­ servant, disregarded the young orphan girl. Instead, she took a part of the share that had been allocated to provide for Liang-tzu's eventual marriage and used it for her own marriage.141Without waiting for the burial of her master, she married a Li clansman named Li Hsi-k， e李 希河. The orphan Liangrtzu had no one on whom to depend. She was taken to the house of Li I-ta 李義達， the head of the kinship branch, to be raised there. Subsequently, in accord with negotiations for a child­ hood betrothal, she was made to accept the engagement gift of Yii Chen-tzu 余震子，a son of Yu Jih-ying 余日榮• For,half a year, she

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lived with the Yii family. Li I-ta was responsible in negotiating this arrangement. Han Peng 韓風 was the matchmaker. As the woman Cheng had already married she ought not to have taken part in Li family matters. But she obviously did. She even set up a written contract to be kept by the Yii family [signifying her consent to the arrangement] • Then again, she fell in with the greedy conspiracy of Li Hsi-k’e， her husband. Taking advantage of the opportunity, when the orphan Liang-tzu came for her father’s funeral, they seized her and took her with them. The woman Cheng no longer had any right to say where the orphan should live. How much less so Li Hsi-k， e? Li Hsi-k’e，who has no standing in that family, knowingly violated the law. He married a family maid, without feeling ashamed of the disgraceful match. He brought shame upon himself and risked detesta­ tion in pursuit of his personal profit and power. When he seized a girl engaged to someone else, he cared not that he was breaking the law. At this point, the officials should have followed legal provisions in settling the arrangements according to principle. Instead, they listened to the plaint of the woman Cheng. While they also questioned Liangtzu, what could a ten-year old girl know? For the time being she was glad to be back with her natural mother. How could she have any idea about her fortune or misfortune in the future? Whatever the woman Cheng said came from Li Hsi-k'e. Whatever Liang-tzu herself said came from her natural mother, the woman Cheng. The officials, with­ out considering carefully Liang-tzu’s future, merely asked her for her own preference and so unavoidably listened to what she said. Furthermore, in conspiring to change her betrothal from the Yii Chen-tzu to Chao Pi-kuan 趙必慣 and in applying for the release from government custody of her father’s goods, Li Hsi-k， e，L in Tuan 林端， and others acted falsely in the name of Liang-tzu, repeatedly deceiving the officials. Now, if the procedure suggested by the notary office were to be followed, for example consulting with the office in charge of imperial clan members because Chao Pi-kuan is a clan member, and questioning him to see if he has or has not sent betrothal gifts, this would be no different from the previous procedure of questioning Liang-tzu herself. She is now only twelve. One knows without asking that she is being cheated. If the government wants to get to the bottom of the conspiracy of Li Hsi-k’e and others, it should have all the parties involved brought to court.

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Should Liang-tzu be sent back to the head of the kinship branch, there to wait for Yu Jih-ying to select a good date for her to be married to his son? To this settlement who would say no? However, Li I-ta, the head of the kinship branch, is not someone to be entrusted with an orphan. Moreover, Li Hsi-k， e，in the affidavit purportedly submitted by Liang-tzu, has raised uncountable allegations against Yu Jih-ying. How can .Liang-tzu then marry into his family? As for Yu, he ought now simply to give up Liang-tzu as no longer worth fighting for. As to the government, it also cannot save this betrothal for Liang-tzu. However, since Yii Jih-ying cannot see his son married to Liang-tzu, by law and reason the betrothal gifts he, originally sent and the halfyear maintenance expenses Liang-tzu incurred at his home should be given back to him. Li I-ta, who in the beginning received this betrothal gift from Yu Chen-tzu, has now switched and come out in favor of the betrothal with Chao Pi-kuan. In his vacillation, he has been guided by nothing but profit. The government, wishing to pursue the matter further, should order him and the woman Cheng together to make a detailed accounting, pay Yu back, get a receipt, and report it to the government. If Li I-ta and the woman Cheng do not wish to submit to this decision, further investigation may lead to punitive measures. Lin Tuan originally used the name Lin Te 林德 in filing a petition asking for the release from government custody of Li Liang-tzu’s goods. Now he is using this new name, Lin Tuan. He tried to cheat the gov­ ernment while hoping to escape from punishment and assisted a mem­ ber of the imperial clan to engage in excessive misconduct. He should be beaten one hundred blows of the heavy rod. 1 It is regrettable that this decision cannot restore Liang-tzu’s proper marriage: The decision does, however, exact penalties that may serve to .warn others who might attempt to seize and cheat illegally.

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PATERNAL BRANCH HEAD AGAINST FATHER OF CONCUBINE ON INFRINGING ON PROPERTY142 author: Han Ssu-chai

This following case throws interesting light on the position of concu­ bines in Sung China. After her master died, the concubine in the case turned for help to the head ofthe patriline branch. However,-this man, who had managed the funeral of the deceased, had gone on to piake improper use of the dead m a n’ s property. The concubine then turned ,to the local government, asking for an audit of her late master^ prop­ erty, so that the interests ofhis two daughters by her might be protected. She also turned to her own father for help in managing the affair. Han Shih-chai issues a series of orders: the concubine^ father is not again to interfere in the affairs of his daughter’ s late master; the patriline branch head is to vacate his deceased relative’ s property; the* concubind is to be the controller of the property, collecting the rents, har­ vests, and profits and using them to raise her two daughters; the capi­ tal of the two pawnshops owned by the deceased is to be*put into the local government’ s storehouses where they wilt be prptected from official corruption and pilferage by a system of annual audits and held for the children until they come of age; the subsidies that the deceased had been paying to his concubine’ s father and to the head ofhis patriline are to be resumed. It may be especially noteworthy, in light of the on­ going discussion about women and property in Sung China, that Han Shih-chai issues the order that the two girls are to be given back all of the assets held by the government when they come of a彦e, not when they marry. In short, in his view, this istheir property and has nothing to do with any dowry fund.

Generally speaking when it comes to property, those'who disgrace themselves, though they are not necessarily completely selfish, cannot conceal the traces of their selfishness, and those who want to remain clean, though not necessarily completely fair, cannot fail to disclose their intention to be fair. Liang T’ai 梁太 belongs to the same paternal branch as the late Liang Chix-cheng 梁居正. However， once he had served as the manager

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of the funeral, he then brought his own family over to live in the house of the deceased. There his family used the resources of the deceased to cover the costs of their daily consumption, meals, and beverages. Liang collusively joined forces with the pawnshop monk to manage [the estate’s] affairs and called upon the tenants to send pay­ ments to him. While handling these financial matters, it would appear that he often pocketed something for himself. Although he did perform some modest services, his selfish motives were apparent to others. The woman nee Cheng was the concubine of the late Liang Chlicheng. When Chii-cheng died, not knowing any better, she called upon Liang T， a i to help because he was the head of the paternal branch. When she later found him to be unreliable, she went to the govern­ ment, asking first of all for an official audit, so that there might be provision for the raising of the two children. However, although she complained of Liang T， a i， s selfishness, she could not avoid her own. She called upon her father, Cheng Ying-jui 鄭應瑞，to manage the affairs of the Liang family. How could such a move fail to provoke a plaint from Liang T， ai? The concerned officials took due note of her testimony, both earlier and later, her trust in the government as the guardian of the family interest, and.her intention of protecting herself from infringement. Our aim now is to separate fairness from selfishness and to determine what is right and what is wrong in this dispute between Liang T’ai and the woman nee Che^ig. Now, Liafig T， di did not cease to press his argument. He vigorouslyattacked the woman nee Cheng because she was not the wife but only the concubine of the deceased. Naturally, she was not proud of her concubine status. Still, when she asked the government for an audit of the property, clearly at that point she did not claim to be the wife. If she had ever falsely claimed to be the wife, why would she need to have an audit?143If Liang T， a i had really felt sympathy for the family and pity for the orphans and was not plotting to further his own selfish interests, why would he have opposed the audit? The notary office has proposed the issuing of the following orders: Liang T， a i is to move back to his own home; Cheng Ying-jui [the father of the concubine] is not to come to the Liang house; the woman nee Cheng herself is to manage the rents and the profits, using them to defray the costs of raising the two children; and the two pawnshops are not to open for business because this might lead to improper schemes. These proposals are quite proper and to the point.

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However, when Liang CM-cheng was alive, he gave a monthly sub­ sidy to the parents of the woman nee Cheng, At present, Liang T， ai has been taking three thousand coins a month from the pawnshop. A clear stipulation is hereby ordered, that every month， from the incomes managed by the woman nee Cheng, five strings should be given to Liang T’ai and as in the days of Liang Chu-cheng, three strings five hundred coins should be given to Cheng Ying-jui for his support. The family land deeds have already been deposited at the district trea­ sury for safekeeping. In the pawnshops there is currently capital to the amount of 3,608 strings. Unless precautions are taken, it may disap­ pear through the embezzlement of Liang T'ai and the managing monk if it does not silently disappear through withdrawals by Cheng Yingjui. It would be better to deposit this amount with the district treasury. However, when the official treasury holds monies deposited by the people, these are often stolen or removed in some fraudulent way over time as the supposedly responsible officials come and go. Even if one holds an official receipt, it is just a worthless document. Therefore, the district should issue to the two children a receipt that will permit them to petition the office every year to appoint an official in charge of payment who will, together with the parties concerned， go into the treasury to examine and verify the deposits. As soon as the children reach adult age, they will be given these exact amounts. In the pawnshop business it is always necessary to have boxes and shelves. The official who did the original audit is to order the monks in charge to submit all the books and accounts. Once the account has been verified, it is to be disposed of as described. The assets'include a monthly income of thirty-five strings, an annual harvest of thirtyseven piculs of grain and a rental income of one hundred and sixtythree strings. This should be quite enough to support the woman nee Cheng, to raise and educate the two children, to pay taxes, and to cover the monthly subsidies for Liang T， ai and Cheng Ying-jui. Liang T’ai is to be permitted to visit only on proper occasions, when looking after the general welfare of the family. He is not to interfere in financial matters. Cheng Ying-jui is merely to be permitted to live in the house originally borrowed from the deceased, Liang Chu-cheng, and to enjoy a subsidy equivalent to the original amount. He is not peririitted to visit the Liang family at inappropriate times or to inter­ fere with family affairs. In handling lawsuits pertaining to orphans, I certainly do not dare to be careless. I seek decisions that are appropriate in terms of humane

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moral feelings, are in agreement with law and principle, and that will prevent troubles in the future. The other matters may follow the pro­ posal [of the notary office]. The district is ordered to act accordingly and to post the decision on a placard at the marketplace.

Orphans and Widows PATERNAL RELATIVES MISTREATING ORPHANS AND TRANSGRESSING ON PROPERTY144 author: W u Shu-chai

This piece opens with an interesting reflection on the role of affinal kin in Sun^life. Wu Shu-chai begins by expounding the appropriate behavior of both affinal and agnatic kin toward widows and orphans. He then goes on to castigate curretit practice in which relatives by marriage as well as blood i*61&tives scheme callously to exploit the weak situation of these unfortunates. The circumstances of the case are fairly straightforward. A man with one son and one daughter dies. The son, now married, and the daughter, now married to a married-in husband, botl\die. A struggle ensues between the son’s widovy and the marriedin son-in-law over control of the patrimony. The son-in-law actually takes over control of the property, selling some, mortgaging some, and encroaching on some. Under Sung law, since the father died without leaving a testament and without kavin^ made pre-mortem gifts to his daughter and son-in-law, all the property should have gone to his son’s widow. Wu Shu-chia so rules, an& orders the iihproperly alienated prop­ erty returned to the widow, butnadds an injunction that the widow is not to alienate any of the property. She must hold it until*her adopted son reaches adulthdod.

It is a matter of the utmost concern when someone among pater­ nal relatives or relatives by marriage unfortunately dies before old age, leaving behind helpless widows and young sons or no heir at all. To grieve for the dead and manage his funeral and to continue his

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descent line by selecting an heir for him should be faithfully done with a compassionate heart, as fairly as possible, and with the 七est effort. This is the righteous duty of relatives,paternal or by marriage. Yet recent litigations indicate that this is not so. Before a m an， s corpse is cold, brothers，sons-in-law，and relatives, who do not even take the time to ask a single question about the funeral and burial, think only about how they can take advantage of the widow and orphans. Some stealthily remove valuables, some conceal deeds and documents, some fraudulently sell his land, some forcibly harvest the crops, some without basis claim a share of .his inheritance, some allege in spite of his having a son that he has none andx;ovet the place of his heir. To forget righteousness in pursuit of selfish gain is to be without a humane heart. This sort of behavior is a most vicious social custom. And it is not just petty persons such as are involved in the legal suit of Liang Wan-san 梁 萬 三 [“Ten-thousand three”]， the woman Tsao, and the like. Even those who wear the clothes of scholars are involved in such litigations. I as the prefect am deeply ashamed of it. At this time I shall single out for decision the matter concerning the woman Tsao so that it may serve as a warning against such vicious customs. • Liu Ch， uan_ch’ing 劉傳卿 had one son and one daughter, the daugh­ ter being named Liu Chi-wu 劉季五 and the son, Liu Chi-liu 劉季六• Chi-liu was married to the woman Tsao. The daughter, Chi-wu, accepted Liang Wan-san as a married-in^usband.145Liu Ch’uan-ch’ing， Chi-liu, and Chi-wu died one after the other. The family property, by right, should properly have come under the management of the woman Tsao [the daughter-in-law]. But at present she has not been able to gain control over it, while Liang Wan-san has sought to takedt all. How in the world can this be reasonable? » Even if the daughter Chi-wu were still alive, since Liang Warj-san is a mere married-in son-in-law, he would have no righLto condition­ ally sell, sell outright, or transgress upon the Liu family, property. In fact the daughter is dead and her husband Liang Waii-san has for some time been living elsewhere/Jiow could he presume to dispose of the property? Yet he seized the family wealth, fraudulently sold the family property, took over the teashop the family owned, and collected the rents from the family lands. As to the deceased son, Liu Chi-liu, and his own wife, their corpses even now remain exposed without burial. Liang Wan-san never paid any attention to this. How can some­ one with a humane heart bear to be like that?

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Liu Chung-kao 劉仲高 and Liu Chi-an 劉季安， though members of the Liu descent group, often sought to profit by encroachment and hoped to benefit by becoming the family heirs. Hence they sided with Liang Wan-san and attacked the woman Tsao. She wanted to observe chastity. They slandered her as wishing to remarry. She has a child named Liu Ch’un-ke 劉春哥. They alleged there was no son. These two belonged to the generation of nephews but shared no sentiment of common ancestry. On the contrary， they joined forces with a person of a different surname to mistreat, perhaps even to destroy, the widow and orphan. What kind of hearts do they have? Liang Wan-san deserves to be punished. However, since despite everything he is a relative and ties of sentiment should not be sev­ ered, we will spare him punishment. It is directed that all the indi­ viduals implicated should be sent to Mr. Chu, concurrently the notary of the administrative assistant, who shall thoroughly verify the prop­ erty, deeds, and documents of Liu Ch’uan-ch’ing， assessing how much of it has been conditionally sold or sold outright and how much still remains. If the woman Tsao wishes to observe chastity and Ch’un-ke is indeed her adoptive child, then all the remaining property is to be accounted for and officially registered and entrusted to the woman Tsao to manage, under the injunction that she is never to condition­ ally sell or sell it outright, but rather to keep it until her son becomes an adult. While going over the accounting of the property, some funds should be given to the woman Tsao for the speedy burial of her husband, Chi-liu. A small amount should be entrusted to Liang Wan-san for him to buiy his wife. All the land that Liang Wan-san had conditionally sold， sold outright, or improperly encroached upon should be identified and restored to the family, so that the situation will be in accord with the principle of Heaven and with humane moral feelings. If Liang Wan-san should somehow dare to remain obstinate, the notary office should report him and send him up to the jail for investigation at which point he will be dealt with according to the regulations. This decision, to be posted on a placard at the marketplace, is in­ tended to serve as a persuasive warning.

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Women’s Receiving Shares THE W O M A N SHEN AND KAO WU-ERH 高 五 二 （ “Fifth-second” ） DISPUTE OVER REVENUE G RA IN 146 author: W u Shu-chai

This opinion concerns an attempt by a man’s posthumously named heir to cheat the man’s daughter of her share of the patrimony. The deceased, who apparently died in 1233，was survived by a younger brother and a daughter born to a maid. The authorities, at the request of the younger brother, named his son heirto his deceased brother and made him responsible for raising the daughter. Shortly thereafter the maid married, taking her daughter with her. In 1238 the posthumously adopted heir asked the authorities to divide the property. The authori­ ties awarded the heir three-quarters of the property and reserved one fourth for the raising of the daughter. However, despite this ruling the posthumously adopted heir and his father conspired with the tenant to cheat the daughter by refusing to pay the rents due to her. Wu Shuchai issues orders that the men are to pay to the mother, under gov­ ernment supervision, the back rents due and that in the future the mother is to collect the rents. When her daughter comes of age the property will be turned over so that it may be used to cover the mar­ riage costs of the daughter. Nothing in this is remarkable, except the proportions. Other materials suggest that the girl should have received more, the adoptee less, and the state a portion through confiscation. Under the law, at least as it appears in several other Ch’ing-ming chi decisions, a posthumous heir would have received one-quarter of the estate with the surviving daughter receiving the remainder. It seems plausible that the key factor in this case is the fact that the daughter was born of a liaison with a mere maidservant.

Kao Wu-i 筒五一 [“Fifth-first”, the first born of the fifth generation] died without having any sons. At the time of his death he only had a one year old daughter, named Kao Kung-sun 高公孫， bom of a maid­

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servant, the woman Shen. The woman Shen in 1233 asked for an investigation of the family landed property. In that same year Kao Wu-erh 高五二 [“Fifth-second”]，who was the natal younger brother of Kao Fifth-first, asked that his second son, Liu-ssu 高 六 四 [“Sixthfoiirth’’] be designated the heir of Kao Fifth-first. The revenue manager was sent out to investigate. Then the case was turned over to the legal officials to decide on the succession. They installed Kao Sixth-fourth as the heir, and ordered Kao Fifth-second to be jointly responsible for raising and supporting [the orphaned daughter] Kung-sun. Shortly after this the former maid, the woman Shen, married Wang San 王 三 [“Wang the Third”]， taking her daughter with her. In 1238 Kao Sixth-fourth, having come of age, asked that he be given his share of the family property. The authorities, in accordance with the rules, gave him three quarters of the property, reserving one quarter for the daughter, Kung-sun, and ordering the former maid, the woman Shen, to collect,the rents from this portion for the ensuing years, and use this income to raise Kung-sun.147 In vthe. ensuing nine years, the former maidservant, the woman Shen, has received only^thirteen bushels. The tenant on the property, named K ’ang I 康 」 [“K’ang the F irst， ， ]，is a relative by marriage of Kao Fifth-second. The rest of the grain owed [to the the woman Shen] eithfer went to Kao Fifth-second or to Kang the First. The woman Shen repeatedly demanded payments but received nothing, and could hardly restrain her anger. Yet Kao Fifth-second also sought to tempt the woman Shen by offering lier thirty strings of cash in paper cur­ rency and pressed her to let him take the girl, now twelve years old, to his home. Wl^at was his intention? Apparently, Kao Fifth-second and Kao Sixth-fourth will not be satisfied until they have seized Kung-sun， s quarter share of the family property. This is why the woman Shen, feeling this to be unfair, has brought this plaint. According to the testimony of the woman Shen, after the initial tax investigation of the property [in 1238], she did not realize at first that Kao Sixth-fourth was to be the heir. Nor did she put her seal on any document to that effect. She only saw that Kao Fifth-second, father and son, had occupied the property. However, the numerous documents turned up in thp search indicate that this was not so. The legal officials had named Kao Sixth-fourth as the heir and had allotted to him three

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quarters of the property. The various documents that went back and forth clearly show this. It cannot be said that Kao Sixth-fourth was not installed as heir. The former maidservant, the woman Shen, now remarried, prob­ ably has some other females behind her instigating and prompting her in this case. However, Kao Fifth-second and Kao Sixth-fourth have totally ignored proper humane moral feelings. Having already received three quarters of the property of Kao Fifth-first, they also yearn to appropriate the other portion. What an extremity of inhumanity! The tenant took advantage of the widow, the woman Shen, and her orphaned daughter. Kao Fifth-second and Kao Sixth-fourth should have been responsible for collecting the arrears. Yet they conspire with the tenant, Kang the First, to keep what he owes. In nine years he has given her only thirteen bushels of rice as income. How could one bear to mistreat people like this! We hereby propose that Kao Fifth-second, Kao Sixth-fourth, and Kang I are to be escorted to the office of the administrator of the diplomacy section of the bureau of m ilitary affairs (tu-hsia 都 轄)， 148which will oversee the reimbursement of the appropriate amount of rice to cover the deficit rents for nine years. All of this is to be paid to the woman Shen for the raising of Kung-sun. A report concerning this is to be sent up when it is completed. The woman Shen is to manage and collect the rental income from this quarter of the family property. Kao Fifth-second is not to interfere. Afterwards, when Kungsun has reached adulthood, the woman Shen may ask the authorities for registered deeds, so that the land can be sold to provide the endow­ ment for Kung_sun， s marriage.

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Posthumous Births FALSE CLAIM OF ILLEGITIMATE DESCENT AND ATTEMPT TO REJOIN THE FAMILY149 author: Yeh Yen-feng

(TR. note: The term i-fu 遺 腹 as commonly used means posthum ous birth，that is， birth after the death of the father, literally “left in [the mother’s]belly.” Here it is used with a twisted meaning—an illegitimate son born of a pregnancy that began before the mother left the father and married someone else.) This brief piece, which speaks for itself, concerns an attempt by a tenant to claim that he was the son of a landowner by a woman who had been the landowner's maid, having been sired by the landowner but born after the maid had left to become the wife of a tenant. 圖

關

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Ch， en Ya-mo 陳亞墨，a trickster, wanted to claim Sun Hua 孫華 as his real father. Last winter he changed his name to Sun Ching-jen 孫 景仁. According to the investigation of the district sheriff he was a tenant of Sun Hua and chanted his name for no good reason. His intention was quietly to place a footing there to be the grounds in the future for him to rejoin the Sun family. Sun Hua discovered it and submitted a plaint through the district. When Ch’en Ya-mo was summoned to the court [of the notary] and interrogated, he indeed referred to Sun Hua time and again as his father. Moreover, he claimed that his physical features looked like those of Sun Hua. As to landed property, he said that Sun Hua had camouflaged it to keep him out. So eloquently did he argue that Sun Hua was no match for him. An exact examination ofthe detailed situation reveals the following: Ch’en San-ssu 陳 三 四 [“Three-four”]， the father of Ch’en Ya-mo, took as his wife a maid of Sun Hua who gave birth to Ch’en Ya-mo, now forty-five years old. During the forty odd years, not a single word was said about this birth being illegitimate. At that point he suddenly had this idea. Sun Hua was getting old. Once Sun Huei closed his eyes,

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Ch’en Ya-mo could falsely claim to be his son and rejoin the Sun family, occupying some family property and engaging in endless disputes with Sun Hua’s various sons. The scheme was deep and dangerous. Upon examination in the ja il，Ch’en Ya-mo himself wrote a confession, making it clear that he is not an illegitimate son of Sun Hua. Fortunately, Sun Hua, old but thoughtful, forestalled the wicked scheme. Otherwise, how could the trouble have been prevented in the future? Ch’en Ya-mo shall be beaten eighty strokes， as a warning against the offense of changing surnames to make false claims. A report is to be made to the commissioner and the prefect for their information.

Foster Sons A FOSTER SON (I-tzu 義 子 ）TAKING AWAY PROPERTY FROM A NATURAL SON (CMn^tzu 親 子 )150 author: n.a. iwiiiiiiwggaBaBiaaMMgaMBaiBHMBiBiwBBMiii— g—

丨

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— H im n n p ig j^ g im n

This case is important because it makes clear the distinction in law between a fostered son (i-tzu 義子） and an adopted son (yang-tzu 養子). An adopted son by law became an heir to his adoptive father, took his father’s surname, and was legally indistinguishable from a natural son. A fostered son, that is a son raised by a man but not formerly adopted, did not become an heir (though in practice such boys seem often to have informally taken the surnames of their foster parent). This case concerns the attempt of one such foster son, after the death of the man who had raised him, to cheat the natural son of that man, born of a concubine. One other issue is also interesting, the comment at the end by the official who wrote this, that the settlement would be publicly posted ''because the case involves social customs.wSung local govern­ ments had message walls on which they regularly posted materials of public concern. In a number of Ch，ing-ming chi cases the authorities order a public posting of the results. Presumably settlements meant to serve as didactic examples were the ones so published.

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Many women, upon remarrying, bring with them sons of their former husbands to be brought up in the homes of their second hus­ bands.151 According to the regulations, “Whether or not a son has lived with his foster father he still has mourning ritual obligations towards his foster father to express his gratitude for the foster father’s support.” Moreover, it is unheard of for such a foster son [from a former marriage] to create confusion by assuming the surname of the foster father, usurping the descent line, mistreating the natural son and forcibly assuming his role. Yao Yiieh 姚岳 in his late years married the woman Cheng who brought her former husband’s son, Hsiao Chen-sun 蕭眞孫， w ith her. The son, then five years old, was thereafter brought up in the Yao home. Yao Yiieh, because of his affection for the woman Cheng, took care of this boy till he came of age, arranged for his marriage, and treated him well. Although Yao Yiieh treated the foster son well, he did not neglect precautionary measures. After the marriage of the foster son，Yao Yiieh installed him in a separate house. Recently, because of the death of the woman Cheng, he loaned the house next door to the foster son as a temporary lodging, but he kept the connecting sidegate locked to prevent unauthorized access. What he did may be said to be very benev­ olent as well as righteous. The reason [for this behavior] was that Yao Yiieh had, by his concu­ bine, a natural son named Yao Yii-tso 姚虞佐• He took precautions to guard against Chen-sun precisely because he feared that in the future Chen-sun might make trouble for Yu-tso. Soon after the woman Cheng’s death, Yao Yiieh also died, and Chen-sun implemented his wicked covetous schemes. Taking advantage of the youth and weakness of Yu-tso, Chen-sun falsely assumed the name of Yao Ch， ung 姚崇，dominated or enticed the servants and maids of Yao Yiieh, and coercively seized control of the family’s wealth. He waited until Yii-tso had gone and forcibly seized one hundred and sixty taels worth of silverware that had been dis­ played on the mourning table of Yao Yiieh, removed six trunks and boxes, and took bolts of silk, calligraphy and paintings, paper cur­ rency, and clothing and scrolls that had been left by Yao Yiieh. Finally, taking with him a maid, Ch'un-hsi 春喜， he took flight into the capital [Lin-an]. There, using his assumed name， he posed as the heir of Yao Yueh, and sought service in a household that had been Yao Yiieh’s patron.

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Little did he know that names may be changed but the law cannot. If Hsiao Chen-sun is allowed to succeed in his covetous lust for Yao Yiieh’s wealth and in his false claim that he is Yao Yiieh’s son then in general all those who follow their mothers in remarriage may abandon their own fathers and claim to be the sons of someone else. This would be to forget one’s roots just for the sake of material gain. It would muddle kinship ties, throw ethical relationships into chaos, and move our human society back toward the ways of animals. The valuables belong to the Yao family. So do the servants and the maids. How can Hsiao Chen-sun be allowed to get control of them? Now, in his explicit confession, Hsiao Chen-sun, alias Yao Ch'ung, has admitted to turning his back on his true father, assuming a false name that resulted in the termination of his natal descent line, failing in his obligations to his foster father, and seizing the valuables and property, in short, to his offenses against both the living and the dead of the Yao family. All these offenses require heavy penalties. However, he is after all a petty person whose violations o f the law stemmed from covetousness, something that does not itself warrant severe pun­ ishment. We will be lenient. He shall be beaten one hundred blows of the heavy rod. Under supervision he shall restore what he removed from the Yao family，silver, paper currency, trunks, boxes, and other items. Yao Yiitso shall submit a statement upon receiving them. In addition Hsiao Ch’en-sun shall be required to sign a statement pledging that he will never again falsify his name or call at the Yao family residence to make trouble. All the baggage and clothing that had belonged to the woman Cheng [the legal mother of both men] should be divided equally between them. Ts’ai Fu 蔡福，Ch’en Shun 陳順, Ch’un-hsi， Lai-hsi 來喜， the little attendant boy, and other servants and maids who had served Yao Yueh, dared to side with Hsiao Ch’en-sun in moving the valuables and prop­ erty of their master’s family. Ch’un-hsi in particular dared to take flight together with Hsiao Ch， en-sun. Their betrayal of their master and their disloyalty are worse than the offenses of Ch， en-sun. Since assuming my post here, I have always used light penalties in sentencing people. Theseservants and maids are therefore to be dealt with leniently. Each shall be beaten one hundred strokes. The little attendant boy， who is only fourteen, shall be beaten twenty strokes with the light rod. Because this case involves social customs, the judgment is to be sposted on a placard at the marketplace.

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Establishing Heirs THE HOUSEHOLD HEAD SHOULD DETERMINE W H O IS TO BE HEIR152 author：Ts’ai Chiu-hsuan

The content of this brief piece is self-explanatory. Sung law on the matter was clear. The widow had the power to name the heir to her husband. The case suggests that the plaintiff was aware of this law. He claimed that the widow was senile, so that the general rule that people had to be of sound mind to make legally valid decisions would invali­ date her choice. It also throws some interesting light on Sung local judicial process. It would seem that the plaintiff brought his original action at the district level. The matter has passed on to higher author­ ities, probably because the accused challenged the plaintiff s position. The prfefectural bureau is ordered to review the plaints and submit a preliminary report and suggested decision. Such reports were regularly prepared by lower authorities and submitted for approval to superiors.

The method by which heirs are established must be based on the causes that led to the act. Because the lady nee Li is the household head [of the Liu family], the decision on an heir must come from her. According to her plaint, Liu Hui 劉恢 was established as the heir more than ten years ago. It is Liu Pin 劉賓 who has secretly written some documents, conspiring to seize the heirship. Liu P in’s plaint makes two points. First, various respected elders [in the common descent group] established Liu Ming-sun 劉明孫，a son of Liu Pin, as the heir. Second, the Lady n6e Li is aged, ill, and senile. Clearly, the establishing of Liu Ming-sun stems from the private schemes of various partisans [in the common descent group]. It was not the Lady nee Li’s original intention. The report submitted by the district does not examine all the under­ lying details. The prefectural notary of the administrative assistant

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is hereby directed to review the plaints, draw up a preliminary finding and decision and then report.

AN ADOPTED CHILD RAISED D U RIN G O N P S LIFETIME153 author: Chao Yung-chai 趙 庸 齋

The legal point being made in this brief passage is that adoption of an heir during the adoptive father’s lifetime and the establishing of an heir for a deceased man who had no son are distinct legal matters. One of the reasons they are distinct is that an adopted son becomes legally identical to a natural son. Therefore after pre-mortem adoption there is no reason for the posthumous appointment of any third party as heir.

According to the law, “To adopt a child during one， s lifetime and to set up an heir to avoid extinction of the family line are two entirely different matters.” Ting I-chih 丁一之 had no son. While alive, he took the son of Wang An 王安，not yet three years old, as his adopted child. This arrangement conforms to the law and the ordinances. After the death of Ting I-chih, his brother Ting Yung-chih 丁用之 wanted to have his own son become the heir of I-chih. But the adopted child brought up by I-chih during his lifetime has the same status as a natural son. Since the line of I-chih has this son, Yung-chih is not permitted to interfere. If he should again resort to legal plaints, he will be sentenced to punishment.

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AN UNCLE W H O URGED A MOTHER NOT TO ESTABLISH AN HEIR, SO THAT HE COULD TAKE OVER THE PROPERTY154 author: H u Shih-pi

This piece seems to reflect one of tKe debates going on in Sung society. For many centuries there had been sentiment among some groups in the Chinese population, perhaps most notably among some of the elite, that it was improper, dangerous, and unethical to adopt a person of a different surname as heir. This sentiment, however, does not seem to have been strong among a large segment of ordinary people in the Sung. We have in the Ch/ing-ming chi a multitude of examples of such crosssurname adoptions, many of which appear to have involved the adoption of affinal kin. Hu Shih-pi represents the more ethically rigid Confucians who find the notion of cross-surname adoptions abhorrent. He accepts the argument of the widow, that the candidate put forward by the grand­ father as the heir was unsuitable because he was of the same genera­ tion as the deceased (the heir ought to be of the generation of a possible son) but in his decision awards half the patrimony to this person. The other half is to be under the control of the mother and her other son, waiting on the possible adoption of a suitable, same surname heir.

Li Hsiieh-wen 李學文 married and then died. Because he was already an adult, his grandfather established an heir for him. However, some time ago the woman Chang [the mother of Li Hsueh-wen and Li Hsuehli] argued in a plaint that because the heir named was a first cousin of Li Hsueh-wen, he was not in the proper generation order to be the heir. This prefectural office thereupon ordered the heir to return to his natal family so that another person might be selected to be the heir. Now the woman Chang has stated further that from the brother of the deceased downward no one wants to become the heir for the deceased. If so, Li Hsiieh-wen will not have any descendant at all. The woman Chang, an ignorant person, does not know anything. [This scheme] must be the idea of [her son] Li Hsueh-li 李 學禮， who intends to seize control of the property of his deceased elder brother and thus has urged his mother to submit this plaint. Forgetting the

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mutuality of brotherhood, he disregarded his obligation to establish an heir for a descent line. Thus he would end memorial services for the deceased and leave nothing for his spirit. Were such an intention tolerated, what would not be tolerated! It would be an act like that of a beast. I hate such creatures as if they were my mortal enemies. Were it not for the upcoming amnesty, I would sentence such an offender to registered control. Furthermore, Li Hsiieh-li was sent in fetters to the notary of the administrative assistant. There, together with respected elders from his common descent group, he was required to list those individuals of appropriate age and generation who might be selected to be the heir. However, when summoned, the elders testified that there was no one available of appropriate age and generation. They asked that someone of a different surname be made the heir. When control of a state is usurped by someone of a different sur­ name this is termed “extinction.” When a family establishes someone of a different surname this is termed “loss.” During the Spring and Autumn period (722-481 b.c.e.), when the men of Chu are said to have “extinguished” Tseng this referred to their having established someone of a different surname [as heir to the throne].155 In later times this [attitude] was embodied in the law, although there was a stipulation which allowed the adoption of someone of different sur­ name if the child was less than three years old. Generally speaking complying with this exception runs counter to people’s feelings. Sup­ pose a widower or widow was dependent on others and initially did not petition the authorities concerning the fact that when he or she died the family line would be cut off， then an heir of a different surname might be established. Now, Li Hsueh-wen had no one qualified by age and generation [to be his heir] and his mother, the woman Chang, also had brought a plaint indicating that she was not willing to see the establishing of an heir. How could the authorities compel the select of someone of a different surname? However, the household property ought to be divided, with one part going to Li Wei-hsien 李惟賢156and the other part going to the woman Chang and Li Hsiieh-li for joint management by mother and son. If hereafter Li Hsiieh-li should have two sons, one of them should be established as the heir to Li Hsueh-wen: If he also Jacks sons then permit the woman Chang to make the decision. Li Hsiieh-li is to be released.

276

Households and Marriage A FALSE ACCUSATION BY A KINSMAN AGAINST AN H EIR OF APPROPRIATE GENERATION157 author：W eng Hao-t'ang

The facts of this case are clear as is the law. A man, who had no chil­ dren of his own， adopted the second son of his brother as his heir, in all ways the perfect choice. (See Wang family chart.) When this adoptee died without having produced an heir, the man adopted a grandson of his brother to be the heir of his adopted son, again by law and social norm the perfect choice. The choice was, however, disputed by a greedy relative. Wang Hao-t， ang has no difficulty ruling against the plaintiff. What is interesting about the case is the process. It is significant that despite the clarity of the facts and the law, the plaintiff managed to keep the suit alive for an extended period. He did this by the simple expedient of ignoring summons to appear in person at court. Ordinarily such an appearance was necessary. In a number of Ch’ing-ming chi cases, decisions could not be reached or punishments handed out be­ cause key figures would not come to court. The state obviously lacked the power to force attendance. Clearly we should not overestimate the actual effective power of the authorities on the local level. The other procedurally interesting point in the case is its resolution. Although local officials often avoided making decisions when key figures refused to appear, Weng Hao-t， ang， s action makes it abundantly clear that a commissioner, in this case almost certainly a fiscal commissioner, did have the power to rule on a case without the testimony of a key figure, if the facts and law were evident.

According to the ordinances, “Those who have no son or grandson are permitted to adopt in their place members of the same descent group who are of appropriate age and generation.” The ordinances also provide that, “When a line has been cut off for lack of an heir to continue the descent, that family may continue its descent by appoint­ ing an heir approved by close relatives and respected elders.^ Fur­ thermore, “If the wife survives her husband, her wish is decisive in designating the heir.” Given these three provisions, the lawsuit of the Wang family could have been decided immediately. Why should there

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WANG FAMILY

have been so many documents and files submitted, over months and even years, which created such confusion.? Wang Ssu-chung 王思中，an academic instructor (hsiieh-cheng 學 正)，married the Lady nee Chiang. Because they had no offspring， they adopted the second son of Ssu-chung， s brother, Wang Hsueh-lu 王學錄，to be their son. They named him Wang Tso-lin 王作霖. Wang Tso-lin was married twice but had no sons. [The old couple], Wang Ssu-chung and his wife, established the second son of their nephew, Wang Tsung-erh 王宗二，to be the heir of Tso-ling and named him Wang Hua-lao 王華老•The generation order and age of these arrange­ ments was quite appropriate.

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Wang Yung-hsi 王永錫 is an uncle of Hua-lao. The genealogical table he drew up and the contents of his written statement both support the above with no point of dispute. The Lady nee Chiang was to be the grandmother of Hua-lao. This is not disputed. Through the care of the grandfather and father, by the orders of the respected elders, and the decision of the grandmother, Hua-lao became the heir of Tso-lin. All of this rested on a firm foundation. Who could possibly shake it? Yet Wang Tsung-ch’iian 王宗權 was avaricious. Disregarding what reason and the law prohibit as improper and aiming solely at the seizure of the property, he mistreated the widow and the orphan by covetously stirring up a case against them. He asserted falsely that Hua-lao had previously become the heir of someone else named Wang Hsing-tsu 王 興 祖 . Checking the genealogical table proved the accusation to be false. The one who had become the heir of Wang Hsing-tsu was not Hua-lao at all, but rather Wang Kuei-lao 王貴老. Wang Tsung-ch’tian，knowing himself to be in the wrong, failed to appear [at court] in spite of the repeated summons by the previous magistrate. This has caused the lawsuit to remained unsettled. After a detailed studyi of the old files, I find the principle involved in this case to be perfectly clear. The decision can be made without waiting for Wang Tsung-ch， iian to appear.158 The Lady needhiang has also accused Wang Tsung-ch'iian of forc­ ibly taking from the family such items as a sedan-chair, clothing, and utensils. I will now rectify the broad principles while letting such minor wrongs be forgiven. Wang Tsung-ch'iian is put on notice th at，if he should hereafter step beyond his proper role and improperly stir up trouble, he will be subject to official investigation and punishment. A copy of this notice is to be given to the Lady nee Chiang for her records. The heir is officially confirmed. The sentence is to be publicized on a placard to be posted on the district gate. A report is to be sent to the prefect and the judicial commissioner for their information.

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Extinct Households A WIDOW CARING FOR A SON SHOULD NOT BE CLASSIFIED AS AN EXTINCT HOUSEHOLD159 author: Judicial Commissioner Yeh

This case is valuable for several reasons. First, itcites a variety of the laws that governed the adoption of heirs and the distribution of prop­ erty ifa man died without an heir. The number and specificity of these laws, most ofthem unknown from other contexts, clearly demonstrates that the old view that traditional Chinese governments did not cpncern themselves with and intervene in civil law matters is hardly ten­ able. Second， the case reflects something about legalprocess. The plaint was brought at the district level. In it the plaintiff charged that the household of the deceased man should be declared a “ cut-off”house­ hold, that is, a household with no heir (in which case the state might confiscate at least a part of its property). The district magistrate ruled in favor of the plaintiff. The judicial commissioner overruled the mag­ istrate on a number of grounds, all spelled out below, but the district did not abide by this decision. Instead itreopened the matter, sending up an incorrect report. The opinion we are reading is the judicial commissioner’ s second set of orders to his subordinates.

It is obvious that the woman Kan [formerly married to the late Ting Ch， ang 丁 昌]，although she has accepted a second husband, col­ loquially known as a “heel-following husband” (chieh-chiao 接腳 夫)，still has a son less than three years of age under her care and therefore [the household of her 4eceased husband] is not to be con­ sidered an extinct household. The district has been directed to return to her and her son the property that was previously confiscated by the government [as if the household had become extinct]. The circuit su­ pervisor has also been so informed. In continuation, considering the written report of the Ning-tu 寧 都 District [present-day Ning-tu in Chiang-hsi] and its stated argu­

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ments, the judicial commissioner makes the following decision. Accord­ ing to the report of the district, Ting Ch， ang, before his death had already adopted a child under three years of age. Therefore his house­ hold is not extinct. Thus the accusation by Chu Hsien 朱 先 [t r . note: the person who had purchased the property belonging to the household] is false. District Magistrate Lin obviously understood the situation. However, he put the case in a problematic state by holding that the law on ch ，ufu 除 附 [literally, “detach-attach”] had not been followed. How can these villagers understand what the law on “detach-attach， ，implies? Current scrutiny even suggests that perhaps District Magistrate Lin himself does not fully understand the legal implications of the term. It refers to adopting a child from another family of the same common descent group. Both households being regularly registered families, household A, having no son, may take a son from household B as its adopted son, whereupon the child is “detached” from the registration of household B and “attached， ，to the register of household A. Hence the term “detach-attach.’ ， Hou Ssu 侯 四 [the second husband] was poor. He may not have had a registered household of his own.160Also, when a child of a different surname under three years of age is adopted, it is explicitly permis­ sible under the law for the child to take the surname of the adopting family without asking from whence the child came. This situation has nothing to do with the law on “detach-attach.” If it is held that Ting ChJang adopted the child, it may be objected that he ought to have reported the adoption to the government so that it could be registered. However, the law has a provision that “Those who have failed to complete this step in the procedure for ‘detach-attach， ， when an investigation determines that the situation otherwise is appropriate, may be treated as if they have practiced ‘detach-attach.”， District Magistrate Lin ignored this rule. He simply ruled that the household of Ting Ch’ang was extinct and condemned its property. This deprived the wife and the son of Ting Ch’ang of their -holdings and thereby helped misbehaving people to create trouble. This is quite unreasonable. It has been said [presumably by District Magistrate Lin] that since the woman Kan had already accepted a second husband, she should no longer have cared for her late husband’s adopted child and thus it followed that the household’s property ought to be confiscated. This argument is even more unreasonable. If a womai). with no one on

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whom to depend, cares for a child so as to continue the descent line of her late husband, but entrusts her own care to a second husband, this act deserves sympathy. Moreover, there is nothing in the law that prohibits this. Even if it should be argued that because the woman Kan has a second husband, she should not raise the child, there is a rule concern­ ing provisional usufruct that indicates that the household property should not be confiscated. According to the ordinances on households, “A widow who has neither sons nor grandsons nor other inheriting relatives and who has accepted a second husband, may temporarily receive the usufruct of the property after the land and the properties of her late husband have been officially examined and registered. However， the total value of the property must not exceed 5,000 strings. The law on extinct households applies only when the woman willingly wishes to join the family of her second husband or when she dies.” The property of the late Ting Ch’ang is worth no more than two hundred odd strings. It is obvious that it should be given to the woman Kan. Chu Hsien， the troublemaker, taking advantage of a young child with a shaky family situation, has made the false accusation that the household had become extinct. And the government officials, tempted by the trifling benefit to be received,161have disregarded righteousness and reason, acted contrary to the laws and ordinances, and condemned the property. Both the officials and the petty person [who brought suit] were after the profits. What this office [of the judicial commissioner] had [previously] de­ cided was based upon both reason and law and in accordance with the rectifying judgment that followed upon the initial recommendation of the circuit supervisor (t'i-chii ssu 提舉司) . This followed the usual procedure. Yet the district did not comply with this latest decision of this office. It just took up the original files of the circuit supervisor and in a confusing way sent up an erroneous report. The clerks respon­ sible for this error should be beaten eighty strokes of the heavy rod. The district is directed for the second time to act according to the regulations and return to the woman Kan for her management all the property of the late Ting Ch’ang. Her receiving of this property is to be reported to higher offices. Chu Hsien’s false accusation is a punishable offense. However, he is to be spared owing to the intervening amnesty. He has paid for the purchase of the property the price of two hundred and fourteen strings plus. It is not clear, however, what kind of receipt he received from the government office that mistakenly accepted the

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money. Chu Hsien is to be notified to use whatever receipt he has to secure the return of his payment. As to the official certificate of the property previously given to him, the district clerk is under orders to demand it and to forward it to this office for cancellation and then attachment to the files. This decision with its reasons is issued to the woman Kan for her safekeeping. A report is to be sent to the circuit supervisor and to the prefecture for their respective information.

Returning to the Descent Line A SON AFTER FOLLOWING HIS MOTHER , IN HER RE-MARRIAGE SHOULD RETURN TO HIS OWN DESCENT LINE (OR COMMON DESCENT GROUP)162 i.

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This case touches on seyeral points of law and process. First, itmakes clear the fact that the mere fostering of sons, that is raising them but not formally adopting them, did not in law create for them claims on a part of the patrimony jeyen ifthey had taken on the name oftheir fosterfather and lived in thisway for many years. (One should perhaps assume in this 'case tHat the two sdns brought into a secorid marriage were at that time already more than three years old, making them legally ineli­ gible for adoptfotf•)Second, it throws further light on the functions of the notary assistant. This-individual was clearly charged with* doing tljedetailed law searching needed to find the rules and precedents that wouldpennit the case to be prQperly closed. Third, as happened in many cases reported in the Ch,ing-n^ing chi, the parties are required to file signed affidavits^certifying their willingness to abide by the decision.

The proposal made by ihe staff official under the judicial commis­ sioner has already correctly assessed the situation. In the past the Literary Duke, Fan (Chung-yen)范仲淹， 163 in following his mother who remairied into tlie Chu family, took the Chu surname. After he

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grew up and found out about his own family background, he wept and left. However, throughout his life he never forgot the kindness he had received from the Chu family. What this worthy man did in times past is a shining example for others to emulate. Shu Ch’ang 舒常 allowed his second wife, the lady nee Fu, to bring with her two sons [by a previous marriage] who took his surname, Shu. Although this was not in accord with the law, for nearly twenty years there was no dispute about this among the older or younger generations. The family seemingly possessed the sincerity and gener­ osity characteristic of the ancient lifestyle but all too rarely found in present-day society. However, after the death of the foster father, Shu Ch’ang，Hsiieh Lung-sun 薛龍孫 and his brother should have returned to their natal descent group. Also, the lady nee Fu, for righteousness，sake, should have sent them away. Yet the two sons have lingered on and do not leave. Understandably the members of the Shu descent group view this as unfair. The old lady is ignorant. She simply assumed that because the sons she had brought with her had taken on the Shu surname, a situation of many years standing, they were entitled to some share of the inher­ itance of the Shu family property. Morebver, Hsiieh Lung-sun [a foster son] who happens to be the eldest, manages the family affairs. The natal sons, contrary to what might be expected, have nothing to do with the management except to obey orders. Where under Heaven is the principle for such a situation? This is the reason that Shu Hsishuo 舒希說 and others have brought thi§ lawsuit. Shu Ssu-i 舒思義， the natal son of Shu Ch’ang， is already an adult. According to his affidavit, he is aware of the proper affection he should feel for his mother and he regards Shu Hsi-shuo and the others [who instigated the litigation] as aggressive disturbers of the family. This is a man of sound views. Precisely for this reason, there is no more need for Hsiieh Lung-sun to act on his behalf by usurping the man­ agement of family affairs. Hsiieh Lung-sun and Hsueh Lung-ti 薛龍弟 are both Ordered to return to the Hsiieh descent group. They should neither retain the Shu surname nor interfere in the affairs-of the Shu family. Lady Fu should carefully bring up the three Shu sons while carefully avoiding all entanglements with Hsueh Lung-sun and his brother. If these two Hsiieh sons return to their own surname group thfen the lawsuit brought by Shu Hsi-shou will naturally be moot. On the

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other hand if they continue to argue forcefully, this means that they intend to take advantage of the widow and her orphans. This is a separate matter that would be subject to punishment. Feng. Chingyang 瑪景揚 is actually Shu Ch’ang’s son-in-law. Instead of mediat­ ing, he induced his wife to sue her mother. This he did largely for his own benefit. How could this really serve the interests of the Shu fam­ ily? The notary assistant has proposed the theory of dividing the in­ heritance into three shares. He was not certain about the legal basis for this theory and will report on it separately. When all the parties involved have filed the required affidavits of compliance they will then be released. Subsequently, the notary assistant will submit his report and when the decision of the judicial commissioner has been received, the inheritance may then be divided by drawing lots.

AN ADOPTED H EIR W H O BEHAVED IMPROPERLY IS ORDERED TO RETURN TO HIS O W N DESCENT GRO U P164

author: Weng Hao-t'ang

T his b rie f case illustrates how an adopted heir could be expelled after the death o f his adoptive father if he had acted in ways th a t m ade h im an u n fit son. W eng H ao-fang orders the p atriline elders to select an appropriate posthum ous heir. The authorities were not required to issue such an order. Perhaps W eng is moved to do so by the illustrious ances­ try of the m an involved or perhaps o u t o f concern th a t in the absence o f an h eir further disputes over the property w ould be unavoidable.

Lu Kung-ta 盧公達, grandson of a vice-director, unfortunately was without sons. Therefore he adopted as his heir Lu Ying-shen 盧應申， the son of Lu Chiin-yung 盧 君 用 ，a man who bore the same surname.

However, this heir unfortunately behaved in a degenerate manner. Relying on the protection of being a descendant of a vice director, he stirred up trouble in the neighborhood. Disobeying his adoptive father but following his natural father, he was guilty, of securing ill-gotten

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gains and theft. The prefecture sentenced him to a beating on the back with the heavy rod and registered control at Fu 撫 Prefecture [the region surrounding present-day Fu-chou city in Chiang-hsi]. Could such a person serve as the descendant of a vice director and perform the memorial sacrifices? If not, could he still be called the heir of Lu Kung-ta? Fathers beget sons so that they may receive support during their lifetimes and burial upon death. Under questioning, Lu Ying-shen confessed that he and his [adoptive] father, Lu Kung-ta, had their meals separately，a sign of the absence of support during the father’s lifetime. After the father’s death, a foster son named Ch’en Jih-hsiian 陳日宣 through the district magistrate accused Lu Ying-shen of refus­ ing to provide money for managing the burial of the old man. Such behavior negates the ties of humanity and the principles of Heaven. Now Lu Ying-shen and Ch’en Jih-hslian have each introduced wills made by Lu Kung_ta before his death, in fact before Lu Ying-shen had become guilty. The wills made up during the sixth and seventh months of this year appear to contradict the affidavit. Because they reflect Lu Kung-ta， s confused state of mind on the eve of his death, they have no credibility.165 The case can only be decided by applying broad prin­ ciples of righteousness. Both Lu Ying-shen and his natural father, Lu Chiin-yung，have suffered punishment. He definitely should not transmit such hum il­ iation to this family of gentlemen. Moreover, because he neither supported Lu Rung-ta during his lifetime, nor buried him after death, Ying-shen can hardly remain as his son. It is ordered that Lu Yingshen return to his own descent group as the son of Lu Chiin-yung. The accounts of Lu Kung_ta’s property shall be turned over before the court to Lu Ching-yu, the head of the family branch, and others. They shall in fairness select an appropriate person from among those in the branch of the proper age and generation to be the heir of Lu Kung-ta. Then, under official supervision, the documents of Imperial Court honors that the vice director had received shall be entrusted to this heir. Lu Ying-shen sold some land and expended some money. These are exempted from investigation. Ch， en Jih-hsiian belongs to another sur­ name. He-simply followed his mother when she married Lu Kung-ta. He is not allowed to interfere with or to cause controversy with regard to any property belonging to Lu Kung_ta’s household. This judgment is to be reported to the prefecture and the supervisorate for their information.

286

Households and Marriage

Division [of Property]

，

MARRIED-IN HUSBANDS D O NOT PARTICIPATE IN THE D IV ISIO N OF THE FAMILY PROPERTY OF THEIR W IV E S166

author: Liu Hou-ts’un

T his is a m ost interesting case. It suggests th a t the S ung law w hich specified th a t daughters were to receive inheritance share h a lf the size o f those awarded to m ale heirs m ay have applied no t ju s t to unm arried girls b u t also to m arried daughters, though this reading w ould only be applied in cases o f m arried-in sons-in-law who were liv in g uxorilocally. It is also notew orthy th a t no attem pt is made to p unish the married-in son-in-law and his father, despite the fact th a t they apparently forged docum ents in an attem pt to seize a ll o f the property. It is also an in te r­ esting case in th a t it shows a district sheriff m aking a ju d ic ia l decision. I t m ay be th a t we are here dealing w ith sm all district in w hich the sheriff was serving concurrently as the m agistrate.

According to the law, “When the parents are dead, the sons and daughters divide the property, with the daughters receiving shares half as large as those of their brothers. Posthumously born sons are also treated as sons.” After the death of Chou Ping 周丙 his property was divided into three portions. His posthumously born son was to receive two shares and the Chou Hsi-i Maiden 周細乙娘 was to receive one share. A division in this manner would be fully in accord with the intention of the law. Li Ying-lung 李應龍 is the married-in son-in-law. He and his wife, seeing there was this orphaned son, were not willing to look to the stipulations of the law nor did they feel pity for this young orphan. In a wrongful manner they took the wife’s father’s rich properties and for the outer relatives falsely made a parental distribution plaque. How in the world can a married-in son-in-law participate in the division of property belonging to his wife’s father? The district sheriff has

Auditing (for Trusteeship)

287

cited the precedent of Chang Kuai-yai 張 乖 崖 in giving one of three shares to a married-in son-lin-law, that is complying with the current ordinance which says that girls receive shares half those of their brothers. The attachment deputizes the eastern sheriff to take possession of the records for those fields and orchards falling under Chou Ping’s family and all the lists of moyable property. The fertile and barren, good and bad, are to be divide^ into three portions. The above named coparceners are to be summoned, and in the district office are to draw lots [for these shares]. The notary office shall beforehand take possession of Li Ying-lung， s family’s record, which is in violation of the law, cancel it, and append it to the case file.

Auditing [for Trusteeship] INFRINGEM ENT ON AUDITED PROPERTY TO BE TRIED U NDER THE LAW O N ILLEGAL TAKING OF COURT-SEALED PROPERTY167 >

author: Hu Shih-pi

T ranslator’s note: The relationship o f the individuals involved in th is case m ay be confusing because it is no t always explicitly stated. We include the Tseng fam ily chart here w ith added notes on the portion o f the inheritance eventually received by each individual. Tseng Shih-shu 曾 士 殊 (deceased father and property owner) Tseng Erh-ku 曾 二 姑 (daughter, received h a lf o f the property, plus her fath er’s private savings) , Tseng Shih-liang 曾 士 亮 (received a quajrter o f the property, th a t is a h a lf share of the am ount w hich legally m ig h t have been expropriated by the state). Tseng Shih-chen 曾 仕 珍 (also received a quarter o f the property

iA

under the arrangem ent described abover. He died prison so th a t his son Tseng Yiian-shou 曾元收 received the share awarded to his father). H u Shih-pi, in dictating a settlem ent in this case, shows a tendency to apply some facets o f the law to the letter,.for example specifying th a t the daughter (as the only descendant o f a household th a t had been

288

Households and Marriage

“cut o ff”）receive one h a lf of the property. H aving done that, however, he does not order the authorities to confiscate part of the property. Instead he awards h a lf of the re m ainin g h a lf to the (deceased) father o f the crim inally guilty p la in tiff and h a lf to another person whose nam e suggests th a t he m ight be the brother o f the plaintiff. Given the am ount, one quarter o f the estate, this person m ig h t have been a posthum ously established heir. We also are given in th is piece a rare glim pse o f the distrib u tio n of private funds owned by an in dividual. Conceivably H u Shih-pi is here referring to property bought w ith the dowry funds of the mother. One other nice legal p oin t is raised in the decision. A t the tim e w hen the case arose the daughter was m arried. B ut H u rules, appropriately, th a t the status to be considered in arriving at a settlem ent is her status at the tim e o f her fath er’s death. She was the n u n ­ m arried and so should be treated as an unm arried daughter liv in g at home.

Many people in Hu-nan and in the Hsiang River valley like to resort to lawsuits. [The people of ] Shao-yang District [the present Shaoyang in Hu-nan], although the region is remote and humble, have not been backward in displaying this penchant for writing litigation docu­ ments. However, since my arrival at this post I have always used reason in providing explanations and the law in making decisions. Many who were known to be daring and aggressive in lawsuits have wholly sub­ mitted, withdrawn, and complied with my decisions. None has ever returned to resubmit a lawsuit. The only exceptions have been Tseng Shih-chen and his son [Tseng Yixan-shou]. Rapacious, irascible, and disorderly, they have recklessly challenged both righteousness and punishment. At a time when the prefecture had not yet concluded their case, they hastily took it up to the fiscal commissioner. The fiscal commissioner was just asking for the files when they took it up to the military commissioner. The mili­ tary commissioner had just sent down word about it when they took it to the judicial commissioner.168 Even if they truly had suffered injustice, they still ought to have waited for each government office to tajce the proper steps. Only there­ after might they appeal through,the successive stages. What could have been their reason for goingto each government office all within the short span of two months? How much more questionable is this

A u d itin g (for Trusteeship)

289

TSENG FAMILY

(1/4 share)

Tseng Yuan-shou (1/4 share)

o

Tseng Erh-ku (1/2 share)

when this prefect, without presuming to permit the slightest hint of selfish ideas or personal opinions, issued a decision based entirely on the stipulations of the ordinances! Furthermore, Tseng Yiian-shou’s escape from jail was pardoned with magnanimity and without further investigation. This was most accommodating. Yet this petty person, who has no sense of guilt, be­ lieves in his own ability to fight lawsuits and will not desist until he wins his case.

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Households and Marriage

If in his lawsuits at the various offices, he had alleged that the prefect had not decided the case properly, that charge would have been permissible. Instead, he now repeatedly has charged that impris­ onment caused the death of his father. Does he not realize that officials, clerks, and fellow prisoners were present in the jail? If his father had not died of natural causes, there would have been numerous witnesses to raise the issue. [In their absence], how can he raise this false charge? How much more is this so when, after his escape from the jail, he was seen by relatives and neighbors and also hidden by some of them. These people could be called upon for interrogation.169All of this can be known from the file. This being so, how can he raise this false chargfe? And yet Tseng Yiian-shou has had the audacity to fabricate this accusation, appealing to the military commissioner and other superior officials and slandering the prefect. These activities'may be seen as corroboration of his usual wrongdoings, supporting the ve­ racity of his neighbors' reports and that of his cousin who has brought a lawsuit against him.170 Because that part of this case is in the hands of the judicial commis­ sioner I will set it aside without further comment. However, according to the edict, “One who on his own appropriates audited property and expends it shall be tried under the same law as one who takes money and property that are sealed in the treasury under court order. The punishment is two years of penal servitude.” In addition, according to the statutes，“One who forges official documents, including adding to or deleting from their contents, shall be beaten one hundred strokes.” Now TsengYiian-shou illegally appropriated from the audited property over six hundred strings and twenty silver vessels. He also erased arid(changed the contents of six officially certified deeds. What respect does he have for the law? If I do not punish him according to the regulations, those who hear of it will say that he has such a hold over me, the prefect, that I dare not pursue the investigation. From then on, all crafty people might imitate his example. How can I possibly refrain from censuring and punishing him by [following the example from the Han dynasty of] strictly enforcing the letter of the law.171 When two offenses have been committed, the accused is to be tried for the more serious of the two.172Tseng Yiian-shou shall be beaten fifteen strokes on the back.173 As to the,sharing of the property of the late Tseng Shih-shu, accord­ ing to the regulations half of it should be awarded to hi§ daixghter, Tseng Erh-ku. Now the notary assistant and the judge propose that

Young Orphans

291

she be given only one third of it. This certainly would not be in accord with the law. In the dispatch from the higher authority, the judicial commissioner explicitly ruled that although the litigation took place after she had been married, the household had become extinct prior to the marriage. This being so then it is appropriate to apply the rule under which she should be treated as an unmarried daughter at home. According to the rules on children inheriting tHeir father’s property she should receive half of the property. The other half of the property is liable for confiscation by the gov­ ernment. However, I have an aversion to such a measure, because it might seem that the government had done it for profit. I would rather allow Tseng Shih-chen and Tseng Shih-liang each to take equal por­ tions of the other half of the property. Moreover, the late Tseng Shih-shu had used his private funds to buy some of the property. According to the law on extinct households this should be awarded entirely to Tseng Erh-ku. All such property matters shall be verified within three days. This decision, along with a special messenger, the clerk respon­ sible for document transmittals, and all the parties involved in the litigation, together with the complete files, shall be sent to the judicial commissioner.

Young Orphans COUSINS IN THE SAME TRADE OUGHT TO SHARE THEIR WEALTH174

author: Ts’ai Chiu-hsuan

This case concerns property divided, some years before the case arose, am ong three m en, two o f w hom are older th a n the third. Ts’ai Chiuhsuan finds sufficient evidence to convince h im th a t the division had been inequitable. He orders a redivision in to equal thirds. The youngest, and poor, boy is to be raised by his m other. G iven the nam es involved it seems reasonable to assume th a t th is young boy is the son o f the (deceased and probably elder) brother o f the other two. These men

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Households and Marriage

themselves are apparently s till relatively young though old enough to live by themselves. The relationships are som ewhat obscure. O ne way to interpret the situ atio n is th a t there had originally been three bro th ­ ers liv ing together w ith undivided jo in t property. The eldest, w ho had a son, N iu-li, died. H is surviving two brothers then divided the estate, cheating th e ir nephew out o f his fa ir one-third share. niiiiniiii h n

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

If one simply looks at the listed affidavits of evidence by neighbor­ hood witnesses, showing that Li Ch， un-wu 李春五 and Li Ch， un-liu 李春六 live in a large house with a tile roof and have numerous oxen and other animals, whereas the woman Ch’eng，the woman Ch’en, and [the boy] Li Niu-li 李牛俚 live in a small thatched hut and own no animals, one can see great inequity. Although a division of inherited property took place some years ago, Li Niu-li， s share actually was not equitable. Li Ch， un-wu and Li Ch， un_liu should bear in mind that they and Li Niu-li had the same ancestors. And since they are all in the same trade, they should share their wealth. It is hereby directed that the district sheriff and the precinct officer {yil-kuan 隅官)175named Ts’ao proceed according to what is listed in the affidavits, assembling the family’s property including in addition to landed property all other belongings such as rice, grain, livestock, and animals. They shall then divide the aggregated property into three shares. One of the shares shall be allotted to Li Niu-li, with the details to be listed and registered with the government. The woman Ch’en， his mother, shall be entrusted with his upbringing. Li Ch’un_wu and his brother shall be required to produce all the land deeds. These are to be sealed and deposited in the district treasury. The brothers shall be given certificates of deposit. The documents will be returned to them when they reach adulthood. Everyone shall submit a statement of compliance.

Young Orphans

293

PROPERTY SEIZED BY THE FAMILY TEACHER TO BE RETURNED U N D ER SUPERVISION176

author: n.a.

T his u n e d ify in g glim pse o f S u n g society shows a protegee o f th e deceased m an and wife try in g to cheat the young orphans o f the couple out o f the ir meager inheritance. The official w riting the opinion orders the re tu rn of the goods taken and asks a respected com m unity figure, apparently not a relative, to see th a t the orphans are fairly treated. As happens rather often in the cases, he does no t order any punishm ent o f the protegee, even though crimes have clearly been com m itted.

C h’ing-m ing chi

Over a long period of time Ts’ao I 曹頤 had received much kindness from Mr. Chang, the notary assistant. Now, upon the deaths of Mr. and Mrs. Chang, one after the other, he has taken advantage of their vulnerable orphans and seized all the money and articles they had with them. It is so apparent that Ts’ao acted in one manner when the Changs were alive and in the opposite manner when they were de­ ceased. How much worse is this because the family of the notary assis­ tant, Mr. Chang, is very poor. They have held the funeral but have not yet returned home nor have they sacrificed. On whom could the orphans depend? Even among mere passing wayfarers there were none who were not moved by pity. How much more concern should have been felt by a guest who had received their support for decades? When a scholar’s behavior sinks this low it has really hit rock bottom! He is ordered to return to the Chang family the amount he confessed to having taken, some 595 strings of cash and nine boxes of clothing and articles. The family should acknowledge the receipt. However, the coffins of Chang, the notary to the administrative assis­ tant, and his wife have as yet no resting place. When Ts’ao has re­ turned the money, the family is charged with the responsibility for taking care of the burials as their matter of first priority. The two orphans are not capable of bearing this serious responsi­ bility. Unless someone is chosen to supervise the matter from among the respected elders of the common descent group or relatives or good

294

Households and Marriage

friends who have long valued righteousness, how can the burials be successfully managed? Mr. Wang, the instructor of the hostel for im­ perial kinsmen (tsung-chiao 譴敎） 177has high standards of friendship and has long been respected by the community. Should he know of this case, he would exert his efforts to rectify the matter. We hereby ask that instructor Wang do so promptly.

Women Inheriting Shares D ISPOSITION OF THE LANDED PROPERTY INHERITANCE OF FEMALE ORPHANS178 author: Fan Hsi-t’ang __

............. ......................... ' M 丨丨丨 I P

I

III 1 ..................................

This piece concerns the H sieh fam ily, o riginally headed by H sieh Julin 解 汝 霖 (deceased) and h is w ife (deceased), and c o n tain in g an adopted daughter, H sieh C h’i-ku 解 七 姑 ，who had the original sur­ nam e o f Cheng 鄭 and a son who is no t m entioned in the text although m ention is rtiade o f the son’s daughter, H sieh H siu-niang 解 秀 娘 • Also involved are the heir, H sieh Pan-ko 解 伴 哥 ，established by a nephew nam ed H sieh C h’in ，who m anaged the fam ily estate. This colorful tale involves a forejgn invasion of the northern defense line p f C h in a near Hsiang-yang on the IJa n River. The father and m other in th is case died as a result o f th a t invasion. T heir son and his w ife as w ell as the adopted daughter o f the older couple apparently were cap­ tured. A fter the invasion, a military^ officer at Hsiang-yang rescued the granddaughter on the battlefield and took her in to his own household where he raised fier, w itfi the in te n tio n o f m arrying her to his own son. The adopted daughter was later able to re tu rn to Sung territory where she apparently became a w ard o f the nephew o f the deceased m other and father, whofhad t^cen control o f the fam ily property. A t some point after th is the nephew was sued by another m an who contended th a t the fam ily had died out. Thus, the ir property should be confiscated by the authorities. Possibly he hoped th a t he could purchase it in the ensu­ in g sale. A t about this point the nephew had the granddaughter brought back to h is hom e. Fan H si-t， ang suspects he did th is in order to strengthen his position in th 兮co ntinu ing legal battle over the property. ••

•

*

Women Inheriting Shares

295

The nephew had taken the precaution o f establishing a m ale heir for h is uncle, albeit b ringing in a boy from another patriline. Fan Hsit ’ang cites in detail the relevant rules on the division of the property o f households th a t have died out. The property is divided in to four parts. In accord w ith law the posthum ously nam ed heir receives one quarter and h is sister and niece split the other three quarters. Each receives a certificate to verify the ir ow nership. (See H sieh fam ily chart.)

It has been verified that owing to the invasion of barbarians179 both Hsieh Ju-lin and his wife died and all their family members became captives. Only after a number of years did their young daughter, Ch， i_ ku, and their granddaughter, Hsiu-niang, return [to their home in the interior]. Their nephew, Hsieh Ch’in 解懸，cared for them there in his own family and also managed the family estate. It might be said that he valued the righteousness of being kind to his kin and the duty of looking after orphans. Yii Jung-tsu 余榮祖180year after year submitted statements assert­ ing that the household of Hsieh Ju-lin had become extinct and that Hsieh Ch’in had seized the property, making it his own. Yii argued that the property should be officially confiscated. My predecessors have already taken some steps in this matter. From the collected rent money a sum, to the amount of 1,000 strings, has been turned in to the government. After the return of Ch， i_ku and Hsiu-niang the gov­ ernment waived the possibility of confiscating the property arid turned it over to Hsieh Ch’in to manage as before. However, Yii Jung-tsu until the present has refused to end his law­ suit, charging that the decisions that the prefecture could collect the rental income and allow Hsieh Ch’in to treat the property as his own were both improper. The lawsuit has continued for ten years. It has merely created opportunities for the clerks to practice corruption. Since the two girls are here, by law they should inherit. It is not right for the government to collect the rental income. The entrusting of the property to a kinsman who thereby profits from it is the origin of this continuing litigation. The property of [the late] Hsieh Ju-lin annually receives its main incoirfe in rice to the amount of at least two hundred piculs. This cannot be said to be a small amount. Hsieh Ch， in ha台been personally responsible. However, he has not kept accounting books showing recent宮 and payments. Neither has he assumed the initiative inmegotifitmg

296

H ouseholds and M arriage

HSIEH FAMILY

(3/8 share) marriage arrangements for the two girls. He has simply established a boy named Hsieh Pan-ko as the heir for this household, which would otherwise have become extinct. This heir would be the successor to the property of Hsieh Ju-lin.

Women Inheriting Shares

297

Although respected elders who are related to an extinct household may establish an heir, this heir has to be under three years of age if he is not of the same surname as the deceased.181We will set this issue aside. However, when Hsieh Ch， in holds onto a young child in order to occupy the property of his uncle and lets the two girls remain unmar­ ried without giving thought to their future, he cannot avoid censure. Because Hsieh Ju-lin had no natural son, his household ought to be treated as extinct. By law “When families become extinct, an adopted heir, as son or grandson, may be established by the orders of close relatives and respected elders.” As to the property of such extinct families, if there are unmarried daughters, the [posthumously] adopted heir shall be given one fourth of the property. If there are in addition previously married daughters who have returned to the original family he shall be given one fifth of the property. All the daughters, unmarried and returned, shall together receive four fifths of the property according to the regulations on extinct households. If there are only returned daughters [and no other daughters] then in addition to the amount coming to them under the law on extinct households, they should in addition be given half of the remainder, with the other half being confiscated by the authorities. If there are only married daughters, the total property shall be divided into three portions. The adopted heir and the married daughters shall divide equally among themselves two of the portions while the remaining portion shall be confiscated by the government. If there are no daughters at all, neither unmarried, returned, nor married, the adopted heir shall be given one third of the total property to a lim it of 3,000 strings. Should the total of the value reach 20,000 strings he should be given an additional 2,000 strings.182 In the present case Hsieh Ju-lin had only a young daughter and a granddaughter, both unmarried and living at home. According to the regulations on extinct households, “The equitable portions are not to exceed a value of3,000 strings.” Pan-ko as the adopted heir should be given one quarter. The remaining three fourths should be equally divided between the two unmarried girls for their support. Ch， i-ku，although originally surnamed Cheng, had been adopted by Hsieh Ju-lin himself as his daughter. Her status is the same as that of a natural daughter. At present she is twenty-five years of age but has as yet received no marriage proposals.183If her marriage should

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Households and Marriage

be delayed for another twenty-five years she would be approaching the end of her life. What could be the intention of her cousin184 in keeping her at home? ’ How much more serious is this [in the case of] Hsiu-niang? When in the past she had been a captive and abandoned on the battlefield, she was taken home and raised for eight years by Wang Chang 王璋， an officer serving at Hsiang-yang 襄陽， 185who treated her as his own child. Hsieh Ch’in went to bring her back only because otherwise he could find no grounds to defeat the lawsuit of Yu Yung-tsu. His origi­ nal intention of keeping her at home simply fits in with his scheme to occupy the landed property. If the litigation of Yii Yung-tsu had not arisen, or if Hsieh Ch’in had had some other grounds for holding onto the property of Hsieh Ju-lin, he would have left Hsiu-niang in Hsiangyang without trying to satisfy her desire to return to her native place. If we look at the [official] message from Hsiang-yang, Hsiu-niang, who lived in the Wang family, was expected to become the wife of his second son. This is well intended. Hsieh Ch， in， when he took her before the court there, also said that she would return home only temporarily in order to §ettle the matter of the family landed property and that he would not dare Weak the agreement concerning her marriage. Now he has detained Hsiu-niang at home. This indeed suits his strategy for keeping controttrf*the property. He no longer is concerned about th e m a rria g e a g re e m e n t -w ith 1th e JW ang fa m ily . I f H s iu - n ia n g in h e r

time of danger had not met W a n g tUhang广she probably would have long since been dead. Now she is alive and has returned to her home. How could she in righteousness forget her gratitude? If his grave could be opened, her bid grandfather, one may assume, would definitely not allow the breaking of the marriage promise. In the past Wang Chang, in wishiiigHsiir-niang to become his dau^iterin-law, had no designs on her wealth. Now that Hsiu-niang will receive a share of the inheritance as a granddaughter, she will be able, in an appropriate way, to repay the virtuous actions of W a n g Chang. r Hsieh Ch’in is ignorant. He has schemed for his own aggrandize­ ment while teing stingy toward others. He was himself the cause of the lawsuits that eventually were b r o u g h t. ， In the presence of this court the landed property of Hsieh Ju-lin is, in according With the statutes, to be equally divided and recorded in three certificates. One certificate shall be given to Ean-ko as an official endorsement of the wish of Hsieh Ch， in that 上e be adopted as heir, of this household, which would otherwise become extinct. The second

Wills

299

certificate shall be given to Ch’i-ku. Relatives are to be asked to arrange for her marriage. The third certificate shall be given to Hsiu-niang to be kept as the record of her property. The district sheriff is directed to survey the landed property, divide it equally into four portions, and report back in preparation for the drawing of lots.186A message is to be sent to the government at Hsiangyang to summon Wang Chang. He will be allowed, accbrding to the original understanding, to take Hsiu-niang back to be married to his son. There are specific rules to deal with extinct households. The government’s decisions should strictly follow the rtiles and ordinances not only to end lawsuits but also so that the dead can be unburdened of their spiritual concerns and the living of their concerns about mutual aggression. Even if someone seeks to continue the argument [about this matter] through a lawsuit, there will be nothing left to be said.

Wills FALSELY CLAIM ING THAT THERE WAS A W ILL SO AS TO MAKE A SH O W OF M O U R N IN G AT A FUNERAL187 author: Ts’ai Chiu-hsiian

A ne’er-do-well, w hom one suspects m ay have been a d istant relative, incited (or at least eagerly joined in ) a disguised pillaging of the property o f a recently deceased high official, seizing the opportilnity o f a m ourn­ in g visit to the hom e o f the deceased to take money and other valuables. The case speaks for itself. We assume the m an, Fan Y ii, was a relative because other m embers o f the Fan lineage appealed for lenience.

Fan Yu 范瑜 was a vagabond with no vocation. Taking advantage of the death of the senior Fan who had been the intendant of the Shen-yu Temple with the of rank gentleman for court service, he

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recklessly concocted covetous schemes. When the senior Fan, the gentleman for court service {ch，ao-feng lang 朝奉良|5)， 188was about to die, Fan Yii incited the kinsmen to come to the residence to make a show of mourning and thereupon to appropriate cash and paper money. Furthermore, Fan Yii himself now has had the audacity to depend on the excuse of his having fallen into poverty to indulge himself in cheating and broken promises. When he was put to the question in jail, his reasoning was specious and his arguments weak. There was no such thing as a will [from the senior Fan]. [Fan Yu] made it up out of thin air as his grounds for getting money and property by swindling. A high official of the state passed away. His body was not yet cold yet his unworthy kinsmen crowded in to devour his possessions. This was a great offense against social customs. It deeply offended every­ one. If it were not severely punished there would be no preventive warning for the future. Fan Yu was liable for a beating of one hun­ dred strokes of the heavy rod and banishment to a neighboring pre­ fecture for registered control. In order to provide a basis for investi­ gation, the prefect was directed simply to report a list of the names of all individuals who illegally appropriated money and property at the time when the senior Mr. Fan, the gentleman for court service, was passing away. At the time when the office of public order (yiian-ssu 院司）was in the process of issuing an interim decision pending implementation, Fan Huan 范渙，a presented scholar of the directorate of education (kuo-tzu chien 國子監)189and other kinsmen jointly submitted a peti­ tion. In addition, the junior Fan，the intendant of Shen-yu Temple and a gentlemen for discussion, presented a memorandum. All the petitioners asked that the punishment be reduced to a minimum. Fan Yii ought to have been beaten and sentenced to registered con­ trol. However, because the amnesty edict issued on the occasion of the ceremonies in the hall of light {ming-fang 明堂）has just arrived and because of the joint requests of the respected elders of the Fan common descent group and the junior Fan, the gentleman for discus­ sion, I have agreed to be lenient. Fan Yii is to be sent to the prefectural school where he will be beaten twenty times by bamboo grid (chu-pi 竹篤)，after which he is required to attend the school for three months before he will be released. In other respects the [preliminary] judgment stands.

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SEVERAL NEPHEW S D EM A N D IN G SUBSIDIES ACCO RD IN G TO A W ILL190 author：Fan Hsi-t'ang

The facts o f the case are straightforw ard. A rich m an, w ith an in fa n t son and four nephews, prior to h is death began paying his nephews a n n u a l subsidies. W hen he fe lt h im se lf to be near death he also wrote o u t a testam ent in w hich he instructed th a t these subsidies were to continue after his death. The w idow continued this for some years and th e n stopped. The nephews sued. In his decision Fan Hsi-t’ang seems to be saying that if the docum ent had been official certified, the payments w ould have to continue. However, it was n o t so certified. Therefore, to settle the m atter he had to seek out w hat we m ight call legislative in te n t. H e decides, on the basis o f the inform ation available to him , th a t the old m an had in effect bought o ff his nephews to keep them from p u ttin g pressure on his w ife and her in fa n t son. Now that.th e son is older and the w ife more experienced in ru n n in g the fam ily’s eco­ nom ic affairs, Fan rules th a t the subsidies m ay be stopped.

Liu Ching 柳環 and his three elder brothers long ago, without any legal trouble, divided their property into separate households. His three brothers all died， leaving behind a total of four nephews. At the time when he felt himself near death, Liu Ching’s household alone had become wealthy but his son was still very young. Out of concern for the poverty of his four nephews Liu Ching gave to each of them an annual grant of 10,000 strings. He wrote down the details of this arrangement. The subsidies became routine. After a number of years his wife declined to honor the original arrangement. The nephews brought charges demanding [a continuation of the old arrangement]. Subsequently the head of the common descent group produced the document that was in Liu Ching’s own handwriting. If legally this is taken to be a certified document, there would seem to be no question that payment of the subsidies should continue. However, if we fathom the original concerns [of the old man], we find that there was indeed an underlying intent [on his part].

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In the past there was a man who had a young son and an adult sonin-law. Prior to his death he divided his family property, giving his son-in-law twice as much of the property as the share he bequeathed to his own son. Later on, when a disagreement occurred, a plaint was brought to court. The scholar official [Chang Yung 張詠,191courtesy name] Kuai-yai 乖崖 recognized the wisdom of the old man in devising this arrange­ ment as a way of posthumously protecting his young son. Accordingly he reversed the inheritance shares [awarding the son-in-law only one third]. The goal desired by the old man then in his grave was finally realized. When Liu Ching died, his son was a mere babe in arms. He knew very well that his several nephews could not be entrusted with the welfare of the orphaned baby. This was why he appeased them by giving them subsidies. The wording of his will is revealing. He begins by saying that because the nephews were not well employed, he was willing to help them with money. He ends with a sentimental plea for his widow and orphan who had no one on whom to depend. He even added that， should his widow and orphan be spared infringement and cheating, he could close his eyes without regret. When someone writes like this, it can easily be seen that he had no other option. The intent was identical with that in the former case in which [Chang Yung] redistributed the inheritance. What Liu Ching considered and arranged may be said to have been very foresighted. The several nepHews did not understand the original intention of their late uncle. Although many years have passed, they still hold onto the document and ask for subsidies as in the past, without recogniz­ ing that Liu Ching’s son has grown older and that Liu Ching’s wife has become familiar with the management of family affairs. Because the household now has those on whom it can depend, there is no longer any need to appease others by subsidies and therefore no reason to keep the old promise. My decision is to follow the idea of [Chang Yung]. The original document is hereby cancelled. From now on everyone should live by his own inheritance share. If there is infringement or cheating this will be punished.

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Sons Raised Elsewhere LACK OF EVIDENCE FOR A CLAIM192 author: Fan Hsi-t’ang

As in a case cited earlier, we have here a m an claim ing to be the n a tu ra l son o f a deceased (and relatively w ealthy) m an, saying th a t his l?irth m other was already pregnant by the deceased w hen she left h is house­ hold. Fan Hsi-t’ang，apparently a circuit comm issioner revie^ving a pase already ruled on at the district and prefectural level, is concerned about the facts rather th a n the law. He cites evidence th a t convinces h im th a t there was no behavioral evidence durin g the lifetim e o f the de­ ceased m an to indicate any such relationship. H e upholds the lower courts.

Jao Tssao 饒操 was without sons. He adopted Jao Ying-shen 饒應 申 as his son. It would have been contrary to the humane moral sense for him, having fathered a natural son by a concubine, not only not ta care for this [natural] son but even to expel the child along with his mother, permitting her to marry his tenant, Li San 李 三 [“Three”]. Now Li Wu 李 五 [“Five” ]，the son of Li San, alleging that his mother was already pregnant before she left Jao， s house and married Li San, claims his right as Jao Ts’ao’s natural son to return to the Jao family. What^evidence is there to support his case? According to the law, “Officials are not allowed to rule on cases in which sons of deceased fathers have [supposedly] been raised in separate households when there is no evidentiary basis [for a claim].， ， '>Li Wu, who was raised in Li Saii’s family, is already over twenty years of age. His alleged father [Jao Ts’ao] never recognized him as a son. Thus there is no evidence on which to base a ruling. Li San was a servant of Jao Ts’ao. He must have in the last twenty years gone to his master’s house innumerable times. The distinction of status be­ tween master and servant must have been strict. Was that the way it would have been for someone claiming to be a son?

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According to Li Wu’s testimony, his natural mother left the Jao house because she was actually expelled by the wife of Jao Ts’ao，the nominal mother. This certainly seems reasonable. However, [Jao Ts’ao’s] wife died ten years after that and Jao Ts’ao himself died after another ten years. This was not a short interval. Why did Jao Ts’ao continue to reject both Li Wu and his natural mother? In the past when Jao Ts， ao， s wife died, Li Wu did not observe mourn­ ing for her as his [legal] mother. Now, when Jao Ts’ao himself has died, Li Wu wants a share of the property from him as his father. Can such a thing be done? For over twenty years Li Wu has obviously lived in Li San’s family and yet he claims that secretly he was a son of Jao Ts’ao. How can there be any country under Heaven in which a person recognizes no father? The father-son relationship is a natural one. It cannot be put together arbitrarily. Even if someone were a natural son, if his father does not recognize him, there is no principle by which the father can be compelled to do so. Would this not be still more true of a false claim? In antiquity，[a man claiming to be] Prince Wei [of the Han period] returned to the northern court. Although he had an official escort that submitted a report, it was not possible to ascertain whether his claimed identity was true or false. Various officials found it difficult to reach a decision on this case. However, Chiian Pu-i 雋不疑， the metropolitan prefect, had no doubts and promptly ordered his attendants to have the man arrested. He said that the real prince, who had offended the former emperor, would have had no option other than to commit suicide. The one who comes forward now is still a guilty person. An investigation was ordered by the court. In the end the man was found to be an imposter. Where great righteousness is at issue there is no difference be­ tween antiquity and the present. Although family and state are dif­ ferent, their principles remain the same. If righteousness i贫used to judge the present case, there will be no room for arguments. Li Wu visited the households of many kinsmen, some of whom were given to indulging in instigation. As a result, if elderly kinsmen were to be questioned, some of them would come forward to testify that Li Wu’s claim was true. It seems most probable that, when Jao Ts’ao went outside the family to choose Ying-shen as his adoptive son, many kinsmen regarded this as unfair. They have seized on this present opportunity to create a dispute that thereby allowed [Li Wu] to proceed with his claim. If

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these kinsmen had really valued kinship’s rightful relationships and sought to act fairly, why did they not rectify the status of his son during Jao Ts’ao’s lifetime? If that had been done, it would have pre­ vented troublesome disputes in the future. Why did they wait until after the death of Jao Ts’ao and then move to support one another in the hopes of eventually winning the lawsuits? No poverty of rightful kinship relations could be worse than this. The judgment of the district and the prefecture, in their sifting of the agreement and evidence, have gone to the heart of the case. The issue at hand arises not from the difficulty of knowing what is in­ volved but from the necessity for action. By the time this lawsuit reaches its end, the family will already be lost. This would be the fulfillment of the wickedness of these evil kinsmen. Li Wu is to be beaten one hundred blows of the heavy rod and banished to a neigh­ boring prefecture for registered control. Li San, who was originally a tenant of Jao Ts’ao，is to be expelled from the district boundary with a separate order for registration.

Foster Sons MISCONDUCT THROUGH DISOBEDIENCE TO A MOTHER193 author: Ts’ai Chiu-hsiian

In th is interesting and som ewhat com plicated case, a w om an, by her nam e o f good family, m arried a w ealthy m an and bore him a son. B ut her husband died early, leaving her alone w ith her in fa n t son. She re­ m arried, th is tim e to a m an who brought w ith h im a son. A t some point after th is, her child by her first husband died. W hen her second hus­ band, w ho had become quite w ealthy by u sin g the capital brought in to the m arriage from the first husband, was near death, he dictated a testam ent to his son. In Ts， a i Chiu-hstian， s opinion he was seeking thereby to forestall abuse o f his w ife after his death. However, after his death, h is son did abuse the position o f the widow. Furtherm ore, at the legal proceedings, another m an pushed his way in to the process,

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claim ing to be the n a tu ra l father of the adopted son. Ts*ai Chiu-hsiian w ill have none o f this. The ostensible n a tu ra l father is punished, prob­ ably under the statute against “doing w hat ought not to be done.” The adopted son is ordered to desist from h is u n filia l treatm ent o f his mother.

We have examined the lady Wang’s testimony. Originally she was the wife of Chang Hsien-chih 張顯之• At the time when Hsien-chih died she had only one son, Chang Ta-ch， ien 張大謙. Because she was a widow with an orphan son, she accepted Hsu Wen-chin 許文進 as tier second husband. Hsu Wan-san 許 萬 三 [“Ten-thousand three， ， ]， who was the foster son of Hsu Wen-chin, was taken by him into the h o u se h o ld o f th e la d y W ang . H s u W en- chin [the second h u sb a n d ] used

the capital of the lady Wang’s first husband and became quite wealthy. When Hsii Wan-san grew up, Wang arranged for his wedding and also entrusted him with the management of the family. Although her natu­ ral son by her previous marriage had died, she did not establish an heir for him. All this shows how extremely kind the lady Wang was in helping Hsu Wan-san. During the fourth month of this year Hsii Wen-chin became seri­ ously ill. He orally instructed Hsii Wan-san to write down a testament concerning the arrangement of affairs. He did this precisely for the purpose of forestalling Hsii Wan-san， s intention to turn against the lady Wang, the mother.194 Hsu Wan-san not only stole the will，already an offense, but also encouraged his wife, the woman Tai, to mistreat [the lady Wang], her mother-in-law. He even gathered all the salt certificates and departed.195 How unprincipled. The lady Wang had no alternative but to sue. The prefecture sent Officer Lin, the military director in chief (tuchien 都 監 )196 to investigate the facts. Not being able to rectify the status and the relationships between the mother and the son, the officer merely inquired about the depositions on the wealth and goods. To do this was to neglect the fundamental while focusing on mere details, thus disregarding righteousness and merely talking about wealth. He understands goods and wealth but does not know the natu­ ral [heavenly] principle between mother and son. How despicable! How could a military man adequately understand this?

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Something even more strange happened. When the lady Wang appeared before the court of this commissioner, suddenly a man called Hsu Wen-t’ung 許文通 came forward with a statement and dragged the lady Wang forward as if he were dragging a thief. When he was escorted to a lower office for interrogation, it became known that he claimed to be the natural father of Hsu Wan-san. But the handwriting of his testimony differs from the handwriting on the statement. Without reason he has intervened in a family matter of a widow. This is his first impermissible action. Then he entered a lawsuit on behalf of a [supposed] son who had long ago become the heir of some­ one else. Thus he was in fact leading the son to attack his foster mother. This is his second impermissible action. In violation of fair principles he intervened in pursuit of selfish gain. He still clutched and abused the widow in open court. One can imagine how he would act in pri­ vate and how he how might abet his [supposed] natural son in the mistreatment of the mother who had raised him. I myself have witnessed his improper behavior. I resent it bitterly. Who does not have parents? Who is not affected by the adoption of sons? How can the principles of Heaven and human relationship degen­ erate to this degree? Hsii Wen-t’ung is to be beaten eighty strokes. His case is to remain on file. If he dares to interfere again in the matters of the Wang family, the case will be reopened for sentencing. The prefecture is directed to send someone to escort him under guard. Hsii Wan-san and his wife, bringing with them the family wealth, shall resume living in the same household with the lady Wang and look after her with care. If they should again raise their voices in anger or violate filial piety so as to cause discomfort to the lady Wang during her life, both the son and his wife shall definitely be subject to equal punishment for the offense of being unfilial. This decision shall be posted at the office gate.

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Illegal Transactions SELLING FAMILY PROPERTY AFTER HAVING BECOME HEIR IN ANOTHER FAMILY197 author: Ts， a i Chiu-hsuan

T his b rie f case is perhaps m ost interesting for the lig h t in throw s on the power o f in flu e n tia l fam ilies to ignore the law. A m an, who had already been adopted out to another fam ily, illegally sold some o f his n a ta l fam ily’s property to a fam ily related to a pow erful official. T his latte r fam ily knew th a t the deal was no t legal b u t w ent ahead anyway. The n a tu ra l m other o f the adoptee, who was the head o f the fam ily to w hom the lan d rig h tfully belonged, sued. For fifteen years the purchas­ in g fam ily ignored the orders of official bodies a ll the way up to the censorate in the capital. They held onto the property and continued to collect the rents. Now it'w ould seem th a t this fam ily has had the gall to ask th a t the ir purchase m oney be returned to them . Ts’ai Chiuhsuan orders th a t the m an w ho illegally sold the lan d and another m an, probably the broker o f the sale, are to be beaten eighty strokes of the heavy rod, th a t is, they are judged g u ilty o f having done w hat ought no t to be done. The deed is to be cancelled and the land returned to its rig h tfu l owner. We w ish we had a later report on this case. D id she ever really get the land back?

What has already been proposed by [subordinate officials in subor­ dinate jurisdictions] is quite detailed and complete. Yii Tzu-ch’iang 余自强 left his family to become the heir of Yu Tuan-li 余端禮 in 1232. This was reported through the district to the office of the judi­ cial commissioner, which detached his registration from the register of his natal family and attached it to that of the adopting family. When this sort of procedure was followed so openly who could fail to know about it? The house of Li [see below] bought the land under dispute [from Yii Tzu-ch， iang]. The officially certified deed is dated the first month

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of 1233，one year after he had left his natal family to become the heir of another family, yet he clandestinely sold his natal family’s land. The house of Li evidently knew the transaction to be illegal but still openly entered into it. Even if Yii Tzu-ch， iang had not become an heir in another family， his selling the land behind the back of his mother would have led to official confiscation of the payment, with the property being restored to her, the lawful owner. How much worse is the actual situation, with him being the heir of a different family and yet clandestinely selling property belonging to his natdi family. This violates the law and contravenes principle. What could be worse than this? The house of the military commissioner, Mr. Li, has refused to accept the decisions of regional and prefectural officials as well as that of the censorate, which ruled the illegal deed void and ordered that it be cancelled. For fifteen years this house of Li has refused to come to court and yet it has continued to collect the harvest from this land. How recalcitrant! Even if the harvest were not to be restored by the house of Li to the lady nee Hsii [the proper owner], there is no reason to return to the house of Li the money it paid for the land. Yii Tzu-ch’iang and Hsia T’an 夏潭198are each to be beaten eighty strokes of the heavy rod. The grain and money are to be confiscated by the authorities. The bogus deed is actually a forgeiy. Not only did it falsify an abbre­ viated signature of the lady nee Hsti, but it also had words written on top of the red official seal. Nor was there any date giving the year and month. It does not look like a deed at all and merely reveals the clumsi­ ness of the forgery. It is to be cancelled and put in the file. The property is to be restored to the lady nee Hsu for her to manage the tenancies. All the other matters of this case shall be implemented as had already been proposed. A report is to be sent to the censorate for its information.

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Households and Marriage A JUNIOR DISPUTING A PROPERTY SALE BY HIS NATURAL FATHER199 author: Ts’ai Chiu-hsiian

This case involves a m an who was adopted out o f his natal family. Given general practice we should assume th a t at the tim e of adoption he had liv in g brothers. However, these p otential heirs apparently died, for w hen his n a ta l father died the fam ily was declared to have been cut­ off. The son who had been adopted o ut then sued to be m ade heir to his deceased n a tu ra l father’s property. There are some factual m atters in th is case about w hich we are unsure. It seems possible th a t the adop­ tive father, before his death, sold some property w hich the son later claim ed belonged to h im alone. Despite these confusing questions of fact, the case is interesting as a reflection on the procedural relations between various com ponents o f the S ung local ju d ic ia l system. The case m ay have originated on the district level, b u t we learn about it only a t the prefecture, where it is given to the notary office w hich pre­ pares a recom m endation. Ju d g in g by other examples, th is w ould have included legal citations and a recom m endation for settlem ent. The m atter the n w e n t on to the circuit ju d ic ia l commissioner. W hy? I t is no t clear b u t it seems m ost likely th a t one o f the parties concerned refused to accept the position taken by the notary office. We also do n o t understand w hy it should have gone to the ju d ic ia l com m issioner rathe r th a n the fiscal comm issioner. A t tl^e ju d ic ia l commissioner*s office the case was reviewed by a legal researcher, who the n forwarded h is recom m endation to Ts’ai Chiu-hsuan, w ho overturned a ll the recom m endations o f the lower offices b u t refused to m ake a final deci­ sion, leaving th a t to his colleague the fiscat commissioner.

On this matter, the property dispute originally raised by Ch’i Yiiankuei 齊元龜，both the decision of the notary office of the prefecture and the proposal of the legal researcher of this judicial commission have missed the point. In this world what possible principle could permit someone to have two fathers or two roots? One should of course feel deep gratitude for the gift of upbringing, but the sense of righteousness that accompanies being an heir should be even more weighty. Having become the heir

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of someone else, a person can no longer concern himself with his natu­ ral parents. It would have been improper for Ch， i Yiian-kuei to dispute with his natural father about the disposition of the family property of his natal parents [after he had been adopted by another family~ t r .]. For a sim­ ilar reason, he has no right to take everything from that family back to his adopted family，that of Ch’i Kung-tan 齊公旦• If he did that, he would hardly be behaving like the heir of Ch’i Kung-tan, who was a former judicial official, since he would be acting in complete disregard of the regulations on heirs to extinct households as well as those on official auditing. This would not only create legal difficulties but also would violate principle. This sort of thing is what causes people to neglect the great ethical relations between fathers and sons. When a junior has his property illegally sold by a senior, the law allows him to appeal to the government without a time limit. How­ ever, Ch’i Yiian-kuei appealed after the death of his adoptive father, Ch’i Kung-tan. Thus the above rule may not be applicable in rectify­ ing this situation. However, as the judicial commissioner I do not wish to infringe upon the jurisdiction of the fiscal commissioner. It is difficult for me to render a decision. A certifying document shall be given to Ch’i Yuan-kuei so that he may make his appeal through the prefec­ ture [to the fiscal commissioner].

CLANDESTINE SALE OF FAMILY PROPERTY PRIOR TO FAMILY DIVISION200 author: Weng Hao-tfang

The events o f this case seem to have occurred w ith in two years after the death o f the father, Fang Wen-liangi H is eldest son, who m anaged the fam ily properties, attem pted to seize control over the entire estate by “adopting” the (only) son o f the deceased m iddle brother, w hile still apparently co ntro lling the property rig h tfu lly due to the youngest brother. The son o f the m iddle brother behaved in a rebellious way, gam bling, b u ild in g up debts, and illegally selling some fam ily property. W eng Hao-t*ang rules th a t the “adoption” was illegal. U nder S ung law the only son o f a fam ily line could no t be adopted out, w hich w ould

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result in the ending o f his n a ta l p atriline . So the basic S ung law comes in to effect, equal division between the eldest brother, the only son of the m iddle brother, and the youngest brother (who was the son o f a concubine). W eng Hao-t’ang, no t w anting the wastrel son o f the m iddle brother to benefit from the inheritance w ith o u t paying some price for his illegal sale o f land, orders th a t the young m an be beaten one h u n ­ dred blows and th a t the money in his possession be confiscated. This case reveals th a t the law w hich awarded sons o f concubines the same size share as sons o f the principal wife was enforced in practice. Even more interesting is the provision m ade for the concubine and the basis on w hich this arrangem ent is made. She is provided w ith some lan d to be used to support her d u rin g her lifetim e. M ost significantly for w hat it says about the actual fu nctio ning o f the Sung legal system, th is decision to provide her w ith a life estate is made on the basis, no t o f w ritten law issued by the central governm ent, b u t o f a precedent set by a nearby prefecture in deciding a sim ilar case th a t had been selected by the office for the editin g of im pe rial pronouncem ents for inclusion in w hat seems to have been a collection o f precedents.

FangWen-liang 方文亮 had three sons: the eldest, FangYen-te 方彥德， and the second, Fang Yen-ch’eng 方彥誠， by his former wife nee Huang, and the youngest, Fang Ytin-lao 方雲老， by his concubine nee Li. Yench^eng is deceased, but he is survived by a son named Fang Chung-i 方 仲乙• Fang Wen-liang’syoungest son, Yun-lao, is now only two years old. All the family property has been managed by the eldest son, Yente. Recently, according to Yen-te’s affidavit, the young man, Chung-i, has behaved in an unprincipled way, gambling and clandestinely sell­ ing some landed property. When Chung-i was summoned and a detailed examination was made of his testimony and of the genealogical tree traced by the head of the common descent group, it was found that Chung-i was not the natal son of Yen-te, but his nephew [that is, the son of the second son， Yen-ch， eng]. However，Yen-te claims that he had adopted Chung-i as his own son. Certainly it is reasonable to adopt a nephew as one’s son, yet Yen-te already had established his natural son named Fang Chungerh 方{中二 as his heir. Yen-ch， eng，who was the natural father of Chung-i, had no other sons [so his line would die out if his son was a d o p te d b y som eone e ls e ~ t r .]. H o w w as it fittin g fo r [Yen-te] fo r n o

apparent reason to confuse the descent branches and to sever the descent line of his deceased brother, Yen-ch’eng?

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This whole problem arose because Yen-te intended to annex [his brother’s property] so that he could benefit from the whole family estate. His designation of his nephew, [Chung-i], as his son when such a status was improper and the fact that the reasons he gave did not reflect the real situation were the causes for Chung-i， s unsubmissive behavior. This is why he squandered money in an unreasonable manner. Hu Yuan-shih 胡遠元，Chu Wan-wu 祝 萬 五 [“Ten-thousand five， ， ] and the like seized the opportunity to conspire and make profits. They tempted Chung-i to gamble. He lost as much as seven hundred odd strings of cash. Then clandestinely he signed some land deeds and some promissory notes for loans with interest. The authorities have obtained three land deeds, which are not officially certified by being sealed. Upon examination we find that they were clearly signed and sealed by Chung-i. Certainly he is not free from guilt. [On the other hand] it is also true that his uncle, Yen-te, drove him to act in this way. The investigation has shown that the mourning period for the late Fang Wen-liang is not yet completed and that his concubine surnamed Li, who is the mother of Yuji-lao, is still alive. It is appropriate that we follow the previous decision of the office for the editing of imperial pronouncements (ch，ih-ling so 敕令所)201 in the case of a certain Ch'en Shih-jen 陳師仁 in P’ing-chiang Superior Prefecture 平 江 府 [the region west of present-day Shang-hai] and thus allot some land to Li, the concubine, for her support, dividing the rest of the land and prop­ erty into three equal shares to be given to the three separately estab­ lished households [of Yen-te, the line of Yen-ch， eng，and Yiin-lao].202 This arrangement will accord both with humane moral fe e lin g s and with the intention of the law. No conflicts should arise again in the future. On the question of Chung_i’s three illegal deeds of conditional sale, if he were the natural son ofYen-te and would thus not be entitled to an inheritance [from Yen-ch^ng] then the proper solution would be not to seek for the money he has already spent but to restore the land [he illegally sold] to the rightful owner. However, Chung-i is the son of Yen-ch^ng and is due his share of the inheritance.203 [However], if his violation of the law through illegal conditional sale, discovered by his seniors, is not be to punished by the repayment of the money and he still will receive the landed property, then what will restrain other unworthy juniors [from imitating him]?204 This would amount to encouraging misconduct.

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In accord with the regulations, Fang Chung-i shall be beaten one hundred strokes of the heavy rod. The money in his possession will be confiscated by the authorities. The other parties to this matter, who have not yet been apprehended, as well as the promissory notes of the loans with interest signed by Fang Chung-i, shall be obtained within three days by the offices of the patrolling inspector or the sheriff.

INSTIGATING AND TEMPTING A WIDOW TO SELL ILLEGALLY THE PROPERTY OF HER LATE HUSBAND205 author： Weng Hao-t*ang

T his piece throw s lig h t on the rules governing the force of w ills in tra n sm ittin g properties and on lim ita tio n s on the a b ility of widows to dispose o f prbperty. The deceased, who had a daughter by his first wife, later m arried a w om an who bore h im no children b u t brought w ith her a son fi^om her previous m arriage (a no t uncom m on pattern in Sung society if we m ay judge from the

G h'ing-m ing chi). The husband, be­

com ing concerned about the disposition o f property, drew up a w ill and had th is w ill certified by 4he authorities. U nder its term s he made provision for his second wife d u rin g her lifetim e and for her funeral arrangem ents and divided the rem ainder ofl^iis property between^his daughter and his sister. U nfortunately, shortly after his death the widow was prevailed upon to sign some deeds o f sale for the property. W eng Hao-t’ang points out th a t these sales were illegal under Sung law and th a t the w ill as w ritten was valid. In the absence o f a w ill the usufruct of the property w ould have passed to the widow. I t w ould have been treated as property belonging to a cut-off household only after her death, supposing she did no t in the in te rim adopt an heir for her late hus­ band. W eng Hao-t’ang orders the land restored to the sister and daugh­ ter and sentences the wife, the buyer, and the broker, to beatings (but in the end spares the wife because o f her age.) Since the wife, the buyer, and the broker a ll share the same surnam e it seems possible th a t we are dealing w ith collusion between relatives.

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Hsu Erh 徐二 [“Second”] first married the woman Ts’ai and had a daughter named Hsii Liu-wu 徐 六 五 [“Six-five”]. Then he married the woman Feng who bore no offspring [to Hsii Erh] but brought with her a son named Ch’en Pai-ssu 陳 百 四 [“Hundred-four”）from her previous marriage with Ch’en Shih-san 陳 十 三 [“Ten-three”]. Hsii Erh should have established an heir but did not do so because the woman Feng and her son dominated the household and would not let him do so.206 Hsii Erh after much consideration was concerned lest his family property after his death fall into the possession of someone of a differ­ ent surname. Consequently in 1242 he drew up a handwritten will leaving his house and gardens to his own younger sister and to his daughter. Moreover, he made provision for the woman Feng including meeting her funeral expenses. Although concerned with his family property, he was not unconcerned with the woman Feng. The will he made may be said to cover all angles and it leaves the woman Feng no room for regret during this life or thereafter. Shortly after Hsii E rh， s death, before his body was cold, a man in the community named Ch’en Yuan-ch^ 陳元七， cruelly taking advan­ tage of the woman Feng’s being a solitary widow, greedily plotted against her. He got a certain Ch’en Hsiao-san 陳 小 三 [“Little-three”] to act as the middleman and induced the woman Feng to sign a deed for the clandestine sale of Hsii Erh， s family property. In law, “If there is no heir for a piece of property, it may be be­ queathed by a testament to any relative, paternal or maternal, who is in the group of mourning degree relatives from three months up­ ward.207When such 汪party so reports this situation, the authorities will issue to him a public certificate.， ， Also in law “A widow without a son or grandson who arbitrarily conditionally sells or sells outright lands or houses is liable for a beating of one hundred strokes of the heavy rod, with the property being restored to its rightful owner. The party giving the money [the buyer] and the middleman who knows the situation shall be punished equally.” Now Hsu Erh’s property had already been bequeathed to his sister, Hsii Pai-erh niang 徐 白 二 娘 [“the maiden hundred-two”] and to his daughter, Liu-wu. Because the will is certified by an official seal, it is fully legal. Yet Ch’en Yuan-ch^ induced the woman Feng to make a clandestine sale. Even a simple arbitrary sale, which would be gov­ erned by the law already mentioned, would lead to the punishment of

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the crime and the restoration of the property. How much worse is a clandestine sale! Ch， en Yiian-ch， i, Ch’en Hsiao-san, and the woman Feng are to be sentenced to one hundred blows of the heavy rod. However, because the woman Feng is already aged, her punishment will be waived. The money involved is forfeited [to the authorities]. The property is to be taken back and restored to Ms. Hsii Pai-erh and to Ms. Liu-wu for their joint management. In addition, they will be given a copy of this judgment for their protection. We would expect that Ms. Hsu Pai-erh will follow the intent of the will by providing for the woman Feng during her lifetime, without doing anything to harm her. All the illegal deeds shall be cancelled and destroyed on the day that the approval arrives from the prefectural notary of the adminis­ trative assistant.

Redemption after Conditional Sales REDEM PTION AFTER CONDITIONAL SALES SHOULD BE IN CASH, PAPER CURRENCY, OR HALF IN EACH, ACCO RD IN G TO THE PATTERN OF THE ORIGIN A L TRANSACTION208

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T his piece points out, am ong other things, how unconscionably long suits could drag on d u rin g the Sung. A dissatisfied p la in tiff had no disincentives to raising the same issues again in another forum even w hen the authorities had repeatedly disallowed his case. There were no penalties for such behavior. H u Shih-pi, in attem pting to b rin g a resolution to the m atter, cites another principle used in S ung law, th a t real estate debts should be paid back in the u n its in w hich they were created, money for money, rice for rice, and so on. It is notew orthy th a t H u is aware o f the.use o f this principle in the settling o f another recent local case. In this present case, a m an nam ed L i P ien had conditionally sold lan d for cash. U nder S ung law he could redeem the land by giving

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back to the lender the am ount of the original conditional sale. H e w ants to do so in a m ixture o f cash and paper money. Because o f the low current value o f the paper money，th is w ould in effect have allow ed h im to redeem the lan d for less th a n the loan he received against it. H u Shih-pi rejects his dem and, orders th a t the redem ption be m ade in cash, and th a t the p la in tiff be beaten one hundred blows. (It is not clear w hat p articular law he h ad broken.) In the process o f this reso­ lu tio n it is also made clear th a t those who could in some way claim m em bership in the lite ra te e lite m ig h t claim exem ption from or reduction o f sentence. In th is case the claim is refused since the p la in tiff cannot dem onstrate a level o f literacy th a t w ould support his contention.

The lawsuit of Li Pien 李籩，who is seeking to redeem his condi­ tionally sold land, has gone on for nine years. The decision of the district magistrate and the judgment of the fiscal commissioner both held him to be in the wrong. Having read the documents in the file one by one, I too have found Li Pien to have been excessively improper. In oral testimony he cited regulations and invoked principles, not only to confuse the creditor in a dishonest way, but even to attempt to force the hand of the officials. In his main argument he insisted repeatedly that to devalue paper currency is in violation of an imperial edict. Even though the officials knew him to be in the wrong, they were frightened and dared not find him guilty. The creditor evidently suffered because of Li Pien’s dishon­ esty but, blocked in this way, he dared not fight back. If Li Pien were not an experienced villain and a major knave experienced in litigious skills, how could he create this scheme and cause such delay? But he really has completely failed to understand that the intent of the law and humane moral feelings are really completely at one. While it is not permissible to accede to humane moral feelings if this violates the intent of the law，it also is not permissible to follow the intent of the law if this violates human feelings. If one strikes a balance between these two, without violating the intent of the law or doing violence to human feelings, then the decision may be followed without causing any problems. The Imperial Court does have laws on promoting and stabilizing paper currency. Certainly these rules cannot be violated. In the col­ lecting of tax revenues by the local government and the trading of

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merchants, paper currency at legitimate value circulates interchange­ ably with cash. However, for the mortgaging and sale of land and houses among the people and for those items held as earnest guarantees at the gov­ ernment treasury, officials everywhere do take human feelings into partial consideration. If the original transaction was in cash, the re­ demption should also be in cash. If it was originally in paper currency then p^per currency should be used to pay it back. If originally it was half in paper money and half in cash then the redemption should also be half and half. From the capital city to remote areas everyone abides by these rules. They are considered well established. For example, this was how the stabilization fund supervisor recently made the decision in the case of Yen Shih-sheng， s 顏時昇 redemption of land from Li Sheng 李昇• Now Li Pien wants to pay fifty strings of cash and the equivalent of sixty-five strings in paper currency to redeem land from T’ang Chungchao 唐 仲 照，who had received the conditional sale by paying 120 strings of cash. How extremely contrary to human feelings! Under pressute, Li refused'to compromise. Instead he sued T’ang for delib­ erately putting a low value on paper currency [which would have been contrary to the imperial order—tr.]. After his suit was turned down by the district magistrate and again by the fiscal commissioner, he still did not know enough to stop but once more approached the prefecture. That such an insignificant indi­ vidual under normal government jurisdiction neither complied with the disapproval of the district magistrate nor submitted to the disap­ proval of the fiscal commissioner shows clearly that he is very cunning and crafty. Looking at the other side of the case, T， ang Chuiig_chao， s reason for his unwillingness to return the property simply rests on the propo­ sition that, because cash was used to establish the conditional sale, cash should also be used to redeem it. He never said anything about the devaluation of paper currency in terms of its market value. How can Li perversely and falsely accuse him of the offense of lowering the worth of paper currency? Supposing we assume that the original deal was half in cash and half in paper currency. At that time [one string of] the old paper cur­ rency was valued as equivalent to 770 coins in cash. Now its value has fallen to 200 coins. This being so, Li Pien would pay back five units of

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paper currency as equal to one unit of cash. Besides the fifty strings of cash he has offered to pay back he should also pay back the remain­ ing 450 odd strings of the old paper currency.209 Even if it should be argued that at the time when he attempted the redemption the Imperial Court had not issued the new paper currency and the value of the old paper currency had not yet'gone down, how could Li Pien propose to use sixty-five strings in paper currency to pay back the equivalent of seventy strings of cash? Even a small child would know that is nonsense. Li Pien, faced with this embarrassment, and having no pretexts left, produced the contract that called for an “added conditional sale ， ， 210 alleging that he had amount for redemption after the due date， been fooled by it when he was young and ignorant, as had his brother. But how could an officially certified document be overthrown by empty rhetoric? The stupider his falsifications are the more evident his attempts to cover them up. He merely wants to be the victor, for­ getting the admonition that such behavior often leads to misfortune. If we do not severely punish him，what will curb his wickedness? I，the prefect, received yesterday an order from the fiscal commis­ sioner that Li Pien should under supervision prepare the funds to pay back to T’ang Chung-chao and th at，if Li Pien should refuse to comply, he should be detained for investigation according to the rules. In the present case, the notary of the administrative assistant has indicated that Li Pien is liable for a beating of one hundred blows of the heavy rod. However, at the top of the affidavit he claims formerly to have been a student and thus perhaps a member of the literati class. Therefore, he says his punishment should be waived.211 When I examined them I found that both the affidavits and testi­ monies of Li Pien, past and present, were full of vulgar expressions, much like those of the legendarily uncultured inhabitants of East Ch’i. There is not the slightest hint of the classics or poetry. How could he be included among the ranks of Confucian scholars? How much more is this so if one pays attention to general opinion, which says the he has been aggressive in litigation for years. He has thereby accumulated aplethora of offenses. If he should, through luck, be spared again at this time then all kinds, of ugly fellows and bad elements who are habitually inclined to violate rules would, on the basis of knowing one of the simple characters，claim to be self-styled scholars. They would freely indulge in misdeeds that violate principles

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and harm the moral way. The officials would be unable to do anything about them. This is a path toward the growth of evil. How could it be the direction of a proper administration? It is ordered that Li Pien shall be beaten one hundred strokes of the heavy rod according to the rules. Under supervision he shall return the original amount to T， ang Chung-chao. Thereafter, the conditional sale contract will be returned to him, and after the fall harvest, the land will be returned to him.

REFUSAL OF REDEMPTION AFTER CONDITIONAL SALE BY DOCTORED CONTRACT212 author：n.a.

T his straightforw ard case exem plifies several aspects o f Sung ju d ic ia l process in dealing w ith civil issues. The official issuing the decision clearly has exam ined the docum ents involved to learn the ir contents and to detect illegal alterations. H e considers as relevant the failure to raise issues in a* tim ely m anner, cites the applicable laws, and states his conclusions. For having occupied lan d through deliberate delay and altered a docum ent, the p la in tiff is sentenced to a beating in addition to the ending of his conditional sale, though the beating is to be fore­ gone if he confesses. (A confession w ould be o f benefit to the accused and the authorities since it w ould m ake it more difficult for h im to raise these issues again.)

The laws on conditional sales are as clear as the sun and stars. When the date for redemption arrives, what reason could justify eras­ ing some words and making changes in the contract so as to continue in occupation of the land and refuse redemption? The copy in the files of the district office has been brought out so that it might be compared with the conditional sale contract. It is abundantly clear that the words for “hold the property” have been changed to “hold the conditional sale document.” In doing that, Wu Shih-yiian 吳師淵 was deliberately dishonest. The judgment of the

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district magistrate, based on the proposal of the revenue manager, was extremely fair. Now, however, Wu Shih-yiian has brought another plaint, alleging that the land conditionally sold to him by Yeh Yun-fu 葉雲甫 did not have a prior red-sealed officially certified deed [to prove ownership]. During the Chia-hsi reign period (1237-40), at the time when the conditional sale transaction was completed through the exchange of money, no question was raised about the existence of a red-sealed officially certified deed. Now, when the term of the conditional sale has come due for redemption, the issue of the officially sealed deed is raised. Why now? Furthermore, the land has been recorded as an inheritance share and this record has an official seal on it. This is proof enough that the land originally belonged to Yeh Yun-fu, without there being a need to show a red-sealed deed. Wu Shih-yiian has argued further, alleging that the land Yeh condi­ tionally sold to him was not his own but a property the owner of which had previously sold it conditionally to Yeh. Now, since the previous owner has died, Yeh should have no right to redeem the property. We have investigated the various principles relevant to suits con­ cerning landed property to be found in the ordinances and clarifying edicts.213The government will not hear such cases if the deed is unclear, if the cases originated more that twenty years ago, or if either the creditor or the owner is already dead. In the present case, Yeh, the mortgaging owner, is not dead. Nor is there anything unclear in the deed. Even if Yeh had previously secured the land through conditional sale from another party, it is still proper to permit him to redeem the land. Furthermore, the contract as established merely states that Yeh “holds the property” as an inheritance share he has received. What doubts could remain? Judging by principle and by law, [Wu Shih-yiian] does not have a single point on which he is correct. He has committed two offenses: occupying the land by deliberate delay and doctoring the document. Wu Shih-ytian has been investigated and judged according to the regu­ lations. He shall be beaten one hundred strokes of the heavy rod and sent,to the district in custody. There he shall take the money and paper currency of the redemption that has been held as security at the district treasury and return the document of conditional sale, thus ending it.

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If he should repent and admit his fault, he may be spared the beat­ ing. The conditional sale agreement and other documents are to be returned to Yeh Yiin-fu who will manage the property. As to the side issue of clerks asking for bribes, it will be reported and dealt with separately.

CREDITOR DELAYING UNTIL COURT IS IN RECESS214 author: Hu Shih-pi

T his case reflects the problem presented by the ability o f the rich in ru ra l areas to take advantage of the legal process in order to abuse th e ir poorer neighbors, in this case by delaying re tu rn o f a conditional sale. It also reflects the weakness o f the governm ent w hen faced w ith such abuses. H u Shih-i5i recognizes the game th e w ealthy current occu­ pier o f the property

is playing. Clearly the state authorities had faced

this problem before. A specific pointed rule is cited by H u w hich was designed to deal w ith th is form o f abuse. A n d yet in the end, although the occupier is obviously guilty o f an offense th a t calls for a punishm e nt，he is spared.

Reference is made to the decision of District Magistrate Sun, who, during the twelfth month of last year, ordered that Ah Lung 阿龍 should wait until the opening of the session of the court to redeem the land conditionally sold to Chao Tuan 趙端. Chao Tuan, of course, should have complied with the district order and returned the condi­ tionally sold land on time. Now he gives the excuse that to do so would interfere with his tilling and sowing of the land. I have observed that everywhere powerful people, when they plot to take over the landed property of the poor, always think up some scheme and make moves like this. It is always thus. When the court is in session, tKey will just seek delays, using all kinds of pretexts. Some of them claim they have been searching for the deed but have not yet been able to find it. Others assert that their household head has not returned from travel.

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When ordinary people lodge plaints, the powerful ones use con­ spiracies with the clerks involved to extend the time of the documents. At each deadline they find another excuse and never appear before the officials. When this has gone on for several months, the time when the court will go into recess arrives. Thus the day when the poor family which has conditionally sold land can redeem it never arrives. Every inch of the land of poor people from low-grade households has been earned through their sweat and blood. If, one day, it must be conditionally sold to someone else, the whole family, young and old, feel a deep heart-rending pain. This goes without saying. Day and night the husband tills the fields and his wife attends to the silk­ worms. They will not eat a spoonful of grain more than is necessary to just fill their stomachs. They will not use a single thread of silk to make clothing for themselves. They would rather suffer from hunger and cold in order to save bit by bit so that they might plan to redeem their old property. Their situation deserves a great deal of sympathy. Yet wealthy people who are not benevolent do not harbor the slight­ est compassion. They create evil plots to force the poor into difficulties, causing them to expend on the costs of lawsuits the money they had been saving up in order to redeem the land. Even supposing that the poor family should win the case, they will have no money left to ex­ change for the land. Thus for the wealthy a victory [in the lawsuit] is a victory but a defeat is also a victory. For the poor, it they lose they lose, and if they win they also lose. This is why the properties of the wealthy spread across the countryside while the poor lack even enough tiny space on which to stand. Now it is precisely this kind of technique that Chao Tuan used to get Ah Lung into difficulty. Ah Lung conditionally sold the land, four mou in size, to Chao Tuan’s family for ninety-eight strings.215 Only after eight years did Ah Lung manage to save enough money to make the redemption. One can easily imagine the hardships he suffered. Once Ah Lung had the money in hand he was only concerned about not getting the land back promptly. Yet Chao Tuan wants to wait until after the fall harvest before releasing the land. His position is inten­ tional. He, knows that Ah Lung had great difficulty gathering* the money but that it could all too easily be dispersed. From the present to the fall harvest is a long half-year interval. During that time, Ah Lung might have to spend some of his money for other purposes, to the advantage of Chao Tuan. If so, then when the court comes into session again, Ah Lung, though summoned to come to redeem his

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property, would not know what to do. Chao Tuan’s motivation is evil but I see through it as if I were looking into his vitals. Furthermore, Ah Lung received the favorable decision of District Magistrate Sun last spring and petitioned again to the district in the first month of this spring. Both occasions were during the court session.216 According to the law, “When the time lim it of conditionally sold land expires, the owner is allowed to redeem it before the court session deadline. If the creditor deliberately delays and continues to occupy the land, he is to be beaten one hundred strokes of the heavy rod.” Chao Tuan according the regulations ought to be penalized. How­ ever, because of his old age, we will close the file [thus sparing him the punishment~ t r .]. In addition, Chao Tuan forged tax receipts to cheat the government, a most unscrupulous wrongdoing. We do not here desire to total up his offenses one after another. We simply direct that the two forged receipts be destroyed before the court. Chao Tuan is under strict orders to accept the conditional sale money and return the property in the next few days.

Graves SURREPTITIOUS BURIAL217 author: n.a.

O ne more example o f the great difficulty the state had in bring ing civil issues to closure. The facts are fairly sim ple. Tenants o f an official owned a sm all, undefined parcel o f lan d located between two larger parcels owned by the official. They are accused o f encroaching on his property to carry out a b u ria l there. The case also reflects the im portance S ung people attached to findin g b u ria l sites w ith supposedly good geom antic characteristics. It is especially notew orthy th a t the state has been pow­ erless to b rin g the re sulting law suits, in itiate d by the official and later h is widow, to a successful conclusion despite the fact th a t the p la in tiff was a high official and the accused were tenants. We also meet in th is case a figure w ell know n from later Chinese history, the litig atio n expert who functions as advisor to the defendants. Such people were anathem a

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to traditional Chinese officials, one suspects because they knew enough about the law and its process to hamstring official action. The official writing this piece recommends to his superior, the fiscal commissioner, who will be responsible for making the finaljudgment, that the grave be moved and that the guilty parties be beaten.

Reference is made to a time when the late grandson of the Grand Preceptor Wu (wu t ，ai-shih 吳太師)， 218then newly married to the lady Tuan, still lived. He at that time accused the tenants, Hsieh Wu-i 謝 五 乙 [“Five-one”] and his brother, of having conducted a surreptitious burial on Wu family property. The Wu family had bought the property from Hsii Yang 徐洋， who is the son of an official, from Yu Ts’ai-ch’ing 游才 j|P, and others, because of the property’s desirable geomantic characteristics. The case has lasted for six years. Although the officials have made some decisions, as of now the matter is not yet settled. I have traced the background of the surreptitious burial as well as the reasons for the refusal to move the grave. In the main it happened because Wu Ssu-ching 吳思敬，the late grandson who was married to the lady Tuan, lived in the capital city of the prefecture. The disputed land is located in the thirty-second superior guard of this district, which is located some four hundred odd li away [from the prefectural capital]. Ordinarily it was difficult for the Wu family to look after the place. This enabled Hsieh Wu-i and his brother to achieve their selfish purpose of conducting a surreptitious burial. When the Hsieh brothers were accused by the house of Wu, they ignored the proper status relationship between landlord and tenant. They dared to hatch innumerable schemes, disputing and contending, insisting that the [disputed] part of the land was their own. Several years ago Wu Ssu-ching died, leaving the lady Tuan a widow with a young orphan son. The Hsieh brothers became even more reckless in their behavior. Now I have again had the land documents of the two places sent up, together with maps for reference, so that I might examine the location of the disputed hilly land. The grave of Grand Preceptor Wu is located on two parcels of property. One was bought from Hsii Yang in 1181 and the neighboring one was bought from Yu Ts， ai-ch， ing in 11&6. Both deeds list the sizes, corners, and the four boundaries. They are clear in every detail.

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What the Hsieh brothers bought from a certain town supervisor (chien-chen 監鎭)219 named Chiang is a small parcel, one mou, one chiao seventy-three pu in size.220 However, this parcel is located be­ tween the two pieces of land on one of which the grave of the Grand Preceptor Wu is located. The illicit burial actually lies in the imme­ diate shadow of the hill [on which Grand Preceptor Wu’s grave is located—tr.]. The Hsieh brothers acquired the land deed in 1206， years after the Grand Preceptor Wu had purchased the land. Moreover their land deed does not locate the four boundaries of the Hsieh property, nor whose properties it abuts. It is obvious that the Hsieh brothers，after the surreptitious burial, followed it up by writing a deed in vague and unclear words so that they might use it as a device for disputing and occupying some Wu land. According to the testimony of Chou Ch’ing 周慶，an agent now in the service of the lady Tuan, since 1212 his master had repeatedly sued at the district and at the prefecture. Yet the Hsieh brothers colluded with Ku Liu-shih 古 十 六 [“Six_ten”]， an aggressive expert in lawsuit matters. They had him fraudulently forge a statement as if it were by the Wu family, conceding the dispute. This affidavit was sub­ mitted through Jung An 榮安， the superior.guard leader. Fortunately, former District Magistrate Ch， en investigated and verified the true facts. He has already sentenced the superior guard leader, Jung An to sixty strokes. This makes it even more evident that the Hsieh brothers wanted through compulsion to assure their use of that spot for their burial even to the point of resorting to crafty schemes and fraud. It is also pertinent to note that Hsieh Wu-i and his brother are tillers on land owned by the lady Tuan, the latter being the landlord and the former her tenants. Their respective statuses are cle^r. In the past they encroached on her property through an illicit and surrepti­ tious burial. Now they are taking advantage of her being a widow with an orphan. Hitherto they have persistently refused to move their burial. This in turn has led to repeated lawsuits. If the officials do not take charge of this matter, this will prevent the lady Tuan from burying her late husband. Furthermore, hence­ forth when families own landed property far from their homes, other people may occupy it by compulsion. If this were to be so, what purposes would it serve to appoint some officials here and station others there?

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It is appropriate that Hsieh Wu-i be liable for a beating of one hun­ dred strokes of the heavy rod. The patrolling inspector of the Ting River Stockade is directed to set a strict time lim it for the supervised removal of the grave. If Hsieh Wu-i should in a disorderly way use excuses to cause delay then he and his brother, Hsieh Wu-erh 謝五二 [“Five-two”]，shall be taken into custody and given the same punish­ ment [of one hundred blows]. Our purpose is to warn all those who would use forceful compulsion to seize hilly lands [belonging to others]. Ku Liu-shih illicitly forged a statement of concession. In the past, the former District Magistrate Ch’en was negligent in not having him arrested and punished. He also shall be beaten sixty strokes. This judgment is to be reported to the fiscal commissioner, to await his decision. Hsieh Wu-i, Ku Liu-shih, and the others shall be kept under house surveillance while awaiting the arrival of further orders from the superior office. This report is respectfully submitted, with the request that the fiscal commissioner issue an order for implemen­ tation.

Graveyard Woods DONATING WOOD FROM A GRAVEYARD TO A MONK221 author: Ts， a i Chiu-hsiian

This brief passage throws an interesting light on the role of family status relationships in Sung law. One general legal principle involved here is the principle that family status inferiors are not supposed to bring legal actions against thqir superiors. This principle was clearly the basis ofthe decision ofthe districtmagistrate, to disallow the plaint of a nephew against his uncle. However, as the deciding official indi­ cates, there is a second principle, that family status will not protect seniors who have committed crimes that are very threatening to the social order. The sanctity of the gravesite should weigh more heavily than the sanctity of family relationships.

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As we will see in the next piece, gravesites seem to have commonly served as woodlots for the rural people in Sung China.

Anyone who donates to a monk wood from the [family] graveyard, the cutting of which is forbidden, is an unfilial descendant. A monk who would tempt someone to do this is ignorant of the law. If we were to enforce the decision of the district magistrate then a senior family member would be permitted to donate wood from the graveyard and his nephew would not be permitted to bring an accusation against him for having done so. This would be greatly at variance-with the intent of the law. Ch’eng Tuan-ju 程端汝 shall be beaten one hundred strokes of the heavy rod. The monk named Miao Jih 妙日，having committed a wrong, shall be beaten sixty strokes. The district is directed to follow this decision.

DEATH CAUSED BY A FIGHT OVER GRAVEYARD WOOD222 author: Ts’ai Chiu-hsiian

The piece provides us with a stark picture of the power of rich rural families and their capacity to abuse their neighbors and evade the force of the law. In the end Ts’ ai Chiu-hsiian orders the man, whose orders precipitated an incident that ended in homicide, sent to the judicial commissioner but does not himself suggest a punishment for him. He does, however, severely punish several ofthe man’ sagents. The punish­ ment of the man guilty of homicide is an interesting example of the impact ofthe Sung amnesty system on penalties. The statutory penalty for homicide in an affray was strangulation but this was increased to beheading if a weapon was used and the killing was intentional. In this case an amnesty, probably what was styled an “ ordinary”amnesty, intervened between the killingand the sentencing. A so-called “ great” amnesty would have spared the man entirely; under the terms of a lesser amnesty his sentence was reduced to a beating, tattooing, and penal registration at a relatively great distance.223Itisalso noteworthy

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that the father of the man had been specifically spared by an order of the ministry ofjustice.

In deciding legal cases involving death sentences it is essential to discover the cause of the dispute which led to the act of the violent criminal. This is the meaning of the phrase, “the original situation determines the crime•” Yii Hsi-san-shih 余 細 三 十 [“Small-thirty”]，his son Yti Tsai-liu 余 再 六 [“Twice-six”], and his nephew Yu Tsai-san 余 再 三 [“Twicethree”] have woods at their ancestral graveyard. It is situated next to the property of a man named Hu Hsiao-ch’i 胡 小 七 [“Small-seven”] who has purchased official rank. The graveyard of the Yii family has been their property for generations; the land of the Hu femily was acquired only in recent years. The YuJs graveyard woods being luxu­ riant unavoidably cast shadows over the neighboring property that belongs to the Hu family. The same situation exists at many other locations. If the land in question was overshadowed by woods, Hu Hsiao-ch’i had the option of not purchasing it. However, after he had acquired this parcel of land, the tenant there, a man named Hung Tsai-shiherh 洪再十二 [“Twice-twelve”] [pretended that he] wished to withdraw from his tenancy [presumably on the pretext that the land was over­ sh ado w ed t r .]. Actually this was no more than an act of collusion with a certain agent, to be used in bargaining with the owner, Mr. Hu, to have the rental fee reduced. Hu Tsai-wu 胡 再 五 [“Twice-five”]and Chou Hsien 周先， both aggres­ sive servants of Hu Hsiao-ch’i， wrote out a report on this situation to their master. Hu Hsiao-ch， i forthwith wrote a command on this report, dispatching his various aggressive servants to lead a hundred odd tenants [to go to the Yii graveyard]. They claimed to be tilling but actually they carried knives and axes. Roaring, they went straight to the part of the Yu family graveyard woods that bordered upon their land. They cut down the woods and left the hillside treeless. When they heard about this, Yii Hsi-san-shih, his son, and his nephew, hurriedly went to protect the graveyard woods. This stemmed from their understandable human feelings. However, they ought not to have gone forward carrying tube-knives, sticks, and clubs. By the

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time they reached the graveyard slope, they saw the whole littered disorder of the woods after the cutting. They also saw that the cut wood was being moved to the home of Liang Hsing-erh 梁興二, another agent of the Hu family. Wei Hsin-i 危辛乙 was merely a helper to one of H u， s tenants, but he followed the crowd in cutting down the woods. When Yu Tsai-liu, the son, found that he was too late to chase or catch anyone on the hill, he turned back toward home. Just at this moment he encoun­ tered Wei Hsip-i, who was coming uphill with an axe. The two began to fight [with weapons]. At first, Wei Hsin-i used the axe to defend himself against his oppo­ nents. Then Yti Tsai-liu stabbed him with the tube-knife, while Yii Tsai-san, the nephew, struck him with a long club. Subsequently Wei Hsin-i died as a result of a knife wound in his vitals. If we analyze the cause that led to the fight, it all stemmed from Hu Hsiao-ch， i， who issued a written command to his aggressive servants, backed up by the prestige and influence of the Hu family. Without justification he ordered them to cut down the graveyard woods of other persons. Yii Tsai-liu， s anger was aroused224and he sought to protect his graveyard woods. People defend graveyard woods in order to protect their ancestors. Who does not have graves [that should be protected]? This being the initiating cause [of the homicide], the circumstances indeed warrant compassion. After the incident, for a year and a half, Hu Hsiao-ch’i，who has a purchased official rank, has failed to appear in court. Even though he was summoned by the prefectural administrator for public order he responded, surprisingly, by excusing hiniself on the grounds that he is currently serving under a Mr. Hsin, on the staff of the judicial commissioner of Shao-hsing. He seems capable even of buying the support of the gods, and has secured for himself an official decision to exempt him from obedience to the Summons. How powerful and strong he is! It is noted that Yu Tsai-liu committed his crime before an amnesty that reduced sentences. His brother, Yii Tsai-san, has already died in jail. His father, having changed his name to Yii Ch， ao 余超，has had his life spared by a special order from the ministry of justice.225 [Yii Tsai-liu] shall be beaten tweftty strokes on his back, tattooed, and banished to a prison citadel of a commandaiy or prefecture at a distance of two thousand li. Hu Tsai-wu and Chou Hsien, who relied on the prestige and influence of the Hu family, and assembled various tenants [to commit

Rental Houses

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the offense] shall each be beaten thirteen strokes on the back and sent for registered control at one thousand li. Fang Hsin-ssu 方辛四 and Liang Hsing-erh, who both assisted Hu Hsiao-ch， i in doing evil, shall each be beaten one hundred strokes of the heavy rod and sent for penal registration in the neighboring prefecture. The district clerk, Chou Yuan 周元，and the prefectural clerks, Hsu Pi-hsuan 徐 必選 and Chou Ssu-min 周思民，are to be spared further investigation. They shall each be beaten one hundred strokes and dismissed from service. The prefecture is directed to follow all these decisions. What kind of petty person is this Hu Hsiao-ch’i with his purchased official rank? He had the audacity to use his power to incite a disaster that resulted in a homicide. The prefecture is directed to send a special emissary to seize him and convey him in custody to the judicial com­ missioner. If this is not done within two time limits, the chief clerk of the prefecture will be held responsible. All the wood that was cut down and the accounting books dealing with the property shall be returned to the members of the Yu family who hold shares in the family inheritance. Their receipt shall be kept in the file. All the other individuals involved may be released.

Rental Houses UNAUTHORIZED CONSTRUCTION O N A RENTAL HOUSE226

author: Hu Shih-pi

This piece throws some interesting light on customary rental prac­ tices in Sung China. A new tenant makes a number of changes in the property he has rented. Itwould seem, on the basis ofthe discussion in the case, that under such circumstances, the tenant could ask the land­ lord to cover the costs, or at least some of the costs. The landlord initiated a suit. H u Shih-pi concludes that he only did so as a device for getting his tenant to reduce the amount of the costs demanded. H u Shih-pi’ s reaction is noteworthy. There is a widespread views among scholars oftraditional China that the state often depended on unofficial

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mediation to resolve legal disputes. This may have been the case in later dynasties but in the C h'ing-m ing chi cases, although there are occasional calls for mediation, itseems relatively rare except when the magistrate involved finds the law or facts of the case too obscure to permit clearjudgment. Here, however, we do have a forthright demand that the parties, perhaps in part because they are relatives，resolve their dispute through the mediation of their neighbors.

Li Mao-sen 李茂森 rented a building to use as a store. Waiting neither for documents to be drawn up nor for the order of the owner, he hastily proceeded to raze some older parts of the building and build new ones. He certainly is not immune from charges of acting on his own without due authorization. However, the construction work began in the first part of the tenth month of last year and lasted to the end of the third month of this year. Given this long period of time, how could Chiang Pang-hsien 蔣邦先, the owner, not have known about it? If Chiang considered the work unacceptable, he should have sued without waiting a single day. Why has he waited until now to file his complaint? Moreover, after the construction work was completed, Chiang sent Li a short note asking Li to let him know the amount of the expenses for the construction. If we look at the situation in light of this, it seems certain that there must have been some prior under­ standing between the two parties. If it was not this way then why would Li Mao-sen, who is not a stupid or ignorant person, take the risk of spending a considerable sum of money and incur great ex­ pense to engage in work for another party? The lawsuit, if it did not arise for this reason, must have arisen because Li Mao-sen has enumerated sums that are excessive and that among them not every item is genuine. Therefore Chiang brought suit to counter him. His intention is simply to compel Li to reduce the amount he is asking. He does not intend to dismantle the building. The deceitful situations which may arise among petty mean people are not hard to see through. The two parties happen to be relatives. They certainly ought not to lose what is important [i.e., good relation­ ships between relatives] over a petty issue. They shall be sent to their borough227under escort and neighbors shall be summoned to mediate fairly between them.228 [The resolution] should be equitable to both sides. It should not be biased in favor of either party. This shall be done within five days.

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Pawnshop Capital INTEREST ON CAPITAL AT PAWNSHOPS DIFFERS FROM THAT ON PRIVATE DEBTS229 author: Hu Shih-pi

H u Shih-pi is not at all impressed by the decision of his subordinate, the district magistrate. Not only did the magistrate fail to call for and examine documents criticallyimportant to making an appropriate deci­ sion, he also misunderstood the nature of the situation, applied an irrelevant law, and showed himself to be ignorant of a later law that exactly covered the circumstances of the case. Case dismissed. This case takes on added interest because the principal characters involved also appear in the following selection. Between the time when H u Shih-pi wrote this opinion and his writing of the following opinion his view ofthe matter involved changed dramatically. In this firstopin­ ion he clearly tended to believe the assertions of the creditor and to question the veracity of the two brother debtors. By the time of the second opinion he has had second thoughts about the matter.

Generally speaking, when dealing with lawsuits over increases in the value of money and property, the officials, in investigating what is fact and what is not, will rely on documents and in determining right or wrong will abide by the stipulations of the law. If an official does not abide by these principles but decides by his personal opinion, he can hardly attain the ideal of settling legal cases in an expeditious manner. Huang Kung-ts’ai 黃公才 initially deposited 100,000 cash [one hun­ dred strings] with Li Ssu-erh 李四二 [“Four-two”]. However, Li’s sons, Li Wu-san 李 五 三 [“Five-three”] and Li Wu-ch， i 李 五 七 [“Five-seven”] admitted only to a deposit of fifty strings. The district magistrate be­ lieved their statement. But, as for the statement that what was given was ojxly fifty strings, I ask what documentation there is to show this to have been the case and thus to provide evidence to support their one-sided assertion? The magistrate has not relied on documents in investigating what was false or true.

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When Li Ssu-erh initially received the money, the agreement was that there would be 20 percent annual interest. If we calculate at this rate over fourteen years, the interest earned should be 280 strings. According to Huang Kung-ts’ai’s testimony, during this period he withdrew twenty-seven strings. Thus the principle and the interest, minus the withdrawal, should come to 353 strings. This should be the amount on deposit at the pawnshop, given the accumulation of interest over the years without other withdrawals. From the beginning this was a deposit for interest and not a capital investment of money and property for use in trading. In his decision, the district magistrate cited a law which stipulates that interest should not exceed the original amount, no matter how long the capital sum is held. Has he not seen the Imperial Court decree of clarification issued in 1187? The clarification states that if family A provides one hundred strings of money and employs family B to open and operate a pawnshop, family A will be permitted to receive interest in excess of the principal. This is because the employee will have used the principal to operate and earn a profit. The pawnshop receives from various people numerous articles such as clothing, goods, gold, embroidery，and so forth. This means that the equivalent of the principal remains in the shop. This situation is different fundamentally from loaning money at interest to someone else, a transaction in which the interest should not exceed the original amount of the loan. In other words, the case should not have been decided as if the investment was in the same category as a private loan. The money Li Ssu-erh owed Huang Kung-ts’ai is precisely an invest­ ment made to earn interest at the pawnshop. Yet the district magistrate has decided the case as if it were a private loan. In this way he did not follow the stipulations of the law on determining right and wrong. How then can the lawsuit be settled? The notary of the administra­ tive assistant shall again call the two parties together and demand that Huang Kung-ts^ produce Li Ssu-erh^ original receipt in order to determine exactly the true amount of the debt. If it is found that there are no other unfinished complications then under supervision the Li family should be ordered to make the repayment to settle the account according to the rules. There is no need to seek other wit­ nesses or .proof.

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Disputes over Money DEBTORS TRULY UNABLE TO PAY TO BE RELEASED FROM INVESTIGATIVE DETENTION230 author: Hu Shih-pi

This decision and the preceding decision, also by H u Shih-pi, are two parts of the same situation. Both pieces involve a man named Li Wusan and a man named Huang Kung-ts，ai. In the preceding piece Huang Kung-ts’ ai is an well-off investor and Li Wu-san the son of an appar­ ently reasonably well-offpawnshop owner. And yet in this piece Huang Kung-ts’ ai is said to be the creditor of the members of the Li family, which had “ never had a means of livelihood” .What in the preceding piece was spoken of as a deposit for interest in the pawnshop of the Li family has been transformed in this piece into a fake loan agreement from the purported creditor, Mr. Huang. One possible interpretation is that the father, in serious financial trouble at one time, put himself into a servile position to Mr. Huang. Later Mr. Huang established or perhaps helped fund a pawnshop run by his man, Mr. Li. When Mr. Li died his sons wanted to throw offMr. Huang’ shold on them. Mr. Huang, wanting them to remain under his control, is suing on the basis ofthis supposed loan/contract. H u Shih-pi is obviously deeply disturbed by the physical condition ofthe two Li brothers who have been held injail for several months during his investigation into their supposed debt, especially since he has doubts about the genuineness of the alleged debt they are said to owe to their creditor. H u isthoroughly acquainted with Sung law. He cites a relevant rule which he takes to mean that being kept in jailwas not an appropriate penalty for debt, releases the two brothers, and provides them with some rice.

Li Wu-san 李 五 三 [“Five-three”] and his brother are in debt to their creditor’s family for some investment funds. The authorities certainly have reason to pursue them. However, the Li family has never had a means of livelihood. Their father because of famine begged the house of Huang Kung-ts’ai 黃公才 to accept them [in servile status].

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It seems questionable that Huang Rung-ts’ai would suddenly entrust them with several hundred strings. It must be that in Huang’s estimation they were like hungry eagles who would stay for food for the time being but would fly away once their hunger was satiated. Therefore, he sought to guard against that possibility by creating a bogus contract alleging that he had given them money. This was merely a device for keeping them under con­ trol. If this was not the case then how could Huang have been so very careless? I ，the prefect, had the brothers held in the district jail for investi­ gative detention. Several months have passed. They still do not have a single coin to pay toward the debt. Weeping for hunger and crying because of the cold, they have been close to death. Even if they did owe the debt, they still have no way to make restitution for what they owe. How much more serious is this when we have no way of knowing whether the claim that they owe this debt is true. According to law, “The offense of a debtor who violates a contract by failure to pay is punishable after official investigation with a penalty not to exceed a beating of one hundred strokes•” The penalty does not include imprisonment. The appearance of the brothers is now most miserable and sickly. Not only should they no longer be kept imprisoned, even the beating should be foregone. It is appropri­ ate to release them from investigative detention. Each shall be given a peck of rice from the relief food for the poor and dismissed.

Marriage SURREPTITIOUSLY MARRYING AN ALREADY MARRIED DAUGHTER231 author: Ts’ai Chiu-hsuan

In this rather unpleasant case a father-in-law’ s behavior, which we would no doubt label sexual harassment, leads the woman’ s father to spirit his daughter away, marry her to someone else, and (apparently) accuse the father-in-law of having in some way caused his daughter-

Marriage

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in-law to disappear. Fortunately for the father-in-law the facts come out in the course of the investigation. One has the feeling that Ts’ ai Chiu-hsiian would liketo punish the father-in-law forhis sexual harass­ ment but cannot do so. The woman’ s father is clearly guilty under the Sung laws which mandated that people who made false accusations were (in most instances) to be punished with the penalty attached to the crime ofwhich they had falsely accused others, in this case a penalty ofbeating and registered control (a sort ofhouse arrest) in a neighbor­ ing prefecture. Ts’ ai recognizes that itwould be extremely difficult for the woman to return to her husband. He approves ofthe recommenda­ tion of the district magistrate, who suggested treating the marriage as ended (perhaps thinking in terms of the rules governing the statemandated divorces called “ righteous separations” ）and asked that the woman be remarried under the auspices of the official matchmaker.

Hu Ch’ien-san 胡 千 三 [“Thousand-three”]made obscene fun of his daughter-in-law. Although no adultery was committed, his miscon­ duct was veiy much in violation of principle. Understandably it would be difficult for the woman Wu, the daughter-in-law, to return to the Hu family. However, this version is only based on what she herself has said. There has been no proper official enquiry. However, her father, Wu Ch’ing-i 吳 慶 乙 ，instigated by his elder brother, Wu Ta-san 吳大三， hurriedly put the woman Wu into hiding and then surreptitiously married her to someone in another prefecture. Finally, he falsely reported to this office of the judicial commissioner that his daughter was missing. Had the facts not been discovered, would it not have been a grave disaster for Hu Ch’ien-san? According to the law, Wu Ch’ing-i should be liable for counterpunishment (fan-tso 反坐)‘232 He thus might be liable for a beating of one hundred blows of the heavy rod and regis­ tered control in a neighboring prefecture. If the making of the false report was instigated by his brother, Wu Ta-san, then Wu Ta-san should be beaten and sentenced to registered control in place of Wu Ch， ingi who will be exempted. The district is directed to summon Wu Ta-san for thorough investigation after which he shall be sent to this office for disposition. If the woman Wu should return to the family of Hu Ch， ien-san there might be a danger of her committing suicide by drowning or hanging. Furthermore, having been coercively married elsewhere with­ out the knowledge of her husband, how could she return to the Hu

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family? Once a status is violated it can no longer be put right. The district magistrate has asked the official matchmaker to arrange another marriage for her. This is a correct decision and should be expeditiously carried out. Hu Ch， ien-san，who is not under investigation, can hardly be punished. However, should there again be any plaints, the district magistrate is directed to imprison him, rectifying his offense against principle. The magistrate is to be strict in his actions, as a warning to those fathers-in-law whose behavior is in violation of morality.

BRIDAL FAMILY’S RETRACTION AFTER THE EXCHANGE OF ENGAGEMENT CARDS233

author：Liu Hou-ts’un _TO—

H—

11

11■ 丨 丨 丨

Traditional Chinese law had rules specifying what acts constituted for­ mal commitments^to marry. Thqse who did those acts could not renege without paying some sort ofpenalty. Liu Hou-ts’ un finds himself in 狂 difficultposition. The law on the matter isquite clear. The bride’ s family is obviously in the wrong and the marriage should go forward. But in practical human terms to enforce the law would create a most difficult situation for the new couple. Marriages, after all, do require a mini­ m u m level of trust and mutual good will. He repeatedly appeals to the parties to settle their differences out of court. The case gives us one of the clear examples ofthe kinds ofcircumstances in which Sung officials did press for mediation. In the end the poor judge is left with com­ pletely recalcitrant parties. The succession of ruling after ruling in this case gives us a unique (and depressing) picture of a judge trying again and again to reach an amicable, workable solution and again and again failing. So much for the power of the law. It does look like the marriage will go forward. Looking backward, we pust agree with Liu Hou-ts， im in seriously doubting its hopes for success.

Although Hsieh Ti 謝適 has refused to acknowledge the engagement card, an examination by experts from the document shop has identified this card as having been written personally by Hsieh T i， s son, Hsieh

Pi-hung 謝必洪. The preliminary plaint of Hsieh Ti himself also reluc­ tantly mentions sending a card in response [to the groom’s family]. Now [Hsieh Ti] wishes to conceal this, refusing to acknowledge alto­ gether the matter of ever responding to the engagement card. What so troubled his heart that his early and late statements are inconsistent? According to law, “To promise a daughter in marriage and then to retract the promise after accepting a marriage agreement or after having made a private promise is punishable by sixty strokes of the heavy rod. Should that daughter be then promised to yet another party the penalty is one hundred strokes. If her marriage with the other party has been consummated, the punishment is to be imprisonment for one year with the girl being taken back to the husband to whom she had originally been promised.” The drawing up of an engagement card，even though it is not the creating of a marriage agreement, cannot but be considered a private promise. The text of the statutes also states that “Although there is no document which promises marriage, the acceptance of betrothal gifts also constitutes such a promise.” An additional note explains that “The amount or value of the betrothal gifts makes no difference•” Thus in this present case one roll of gauze silk was accepted. How could this not be a betrothal gift? How much more clearly true is this when the engagement card lists the number of dowry boxes and clearly says that the Hsieh daughter will marry the instructor, Mr. Liu, who is a court gentleman for instruction (chai-hsiian chiao-i 宅宣敎議)？ The language is detailed and explicit. I t is definitely not like that of a draft document. It is not the wish of this official to bind the parties by the letter of the law. It is hoped that the Hsieh father and son will by themselves reflect in detail on the intention of the law and consider the long­ term implications. If they cannot and must wait for officials to deal with the case by applying the law to the letter as was donein the prece­ dent from the Han period234 then it will be too late for regrets. The two disputing parties are dismissed to allow them to deliberate under supervision. A report shall be submitted within the next few days. Additional decision: Since the handwriting on the card cannot be concealed, how can it be alleged to be a bogus card? It is no small matter to arrange for sons and daughters to be married. Why was there not thorough consideration prior to the negotiation of the mar­ riage proposal? The retraction came after the response to the engage­ ment card had already been made. Whether this marriage is to be

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completed or not is be determined by the law, not by this district magistrate. Please study in detail the original decision. In light of the original promise consider the long-term implications. Liu Ying 劉潁， the pro­ spective groom, and his mother should be advised that having had this lawsuit, even if the marriage were to take place it would be rather awkward for the two families to face one another. It seems appropriate for the two parties to seek some kind of mutual settlement. Because no definite decision has been reached tonight, the parties must be temporarily detained. Additional decision: For there to be an amicable settlement, there must be community friends and relatives who can act as mediators. The district magistrate is not someone who should be involved in mediating such a case. In accordance with the previous decisions, the flower-patterned engagement card shall be submitted within a day. Additional decision; The engagement card is quite clear, so are the stipulations of the law. However, the parties have not considered the long-term consequences. Nor have they surrendered the flowerpatterned engagement card. Do they wish to undergo investigation, punishment, and imprisonment? Why? Additional decision: When an official case gets to court, it must be decided according to principle and law. What role do prestige and influence have to play? Hsieh Ti has widely solicited letters written in his behalf and also asked someone to come in person to appeal to me. This might be seen as relying on prestige and influence. He returned the engagement card to the other family and tried to renege. If we follow the stipulations of the law, the marriage must take place. I will deal with this matter separately this evening. Additional decision: According to the law, “When a previous promise is broken, and the woman is married to another person, she shall be apprehended and returned to the original husband as promised.” As such restoration is applied to women already married, it goes without saying that the same is applicable to one promised but not yet married. If Liu Ying, the prospective groom, has no intention of ending the marriage engagement then Hsieh Ti has no option but to fulfill his promise. Otherwise the lawsuits would be endless. It is to be hoped that the parties will study the legal situation and arrive at a mutually agreeable settlement on the basis of long-term considerations. Additional decision: The parties shall accordingly be released. Each shall be given a documentary record of the case.

SETTLING DISPUTED MARRIAGES235

author: Liu Hou-ts， un

This case smacks of the repeated selling of a young girl. All ofthe par­ ticipants seem to have been relatively poor. The young girl, taken into the home of two brothers when her mother died while her father was away, was soon sold to another family where she presumably was to be raised to become the wife of a son in the family. The father, who mean­ while had returned, raised no objection to his daughter’ s living in the brothers’household nor did he initially object to their selling her. Indeed, he accepted money from the brothers. But then he afterward took the girl away and sold her to another family. In law the later mar­ riage should have been annulled, with the girl returning to the family ofher original husband-to-be. Unfortunately, she was already pregnant by the first man when she married the second man. Liu Hou-ts’ un ， concerned about the specter of lawsuits over paternity, orders the girl to stay with the second man, but orders the brothers to return to the first family the money they had received as “ betrothal gifts.”

The family of Wu Chung-wu 吳重五 was poor. He happened to be away when his wife died. The brothers Wu Ch’ien-i 吳 千 乙 [“Thousandone， ， ] and Wu Chlen-erh 吳千二 [“Thousand-two， ， ]，who happened to share his surname, came to an ^reement and took his young daugh­ ter to their home. When Wu Chung-wu returned he was pleased that his daughter had a place to live and did not raise any questions. Soon afterwards the Wu brothers sold the girl, the woman Wu, to Weng Ch， i-ch， i 翁 七 七 [“Seven-seven”] to be his daughter-in-law. Wu Chung-wu knew about this. This took place during the eleventh month of 1220. However, in the eighth month of last year Wu Chung-wu took his daughter home and by the eleventh month had married her again to Li San-chiu 李 三 九 [“Three-nine”]. This led Weng Ch， i-ch’i to sue at the district and then at the prefecture. When Wu Ch， ien-erh and others were apprehended, Ch’ien-erh stated that he had originally planned to take the woman Wu as his own wife but realized that this was improper because they happened to share the same surname. This was why the brothers married her

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to the son of Weng Ch， i-ch， i. Because marrying someone of the same surname violates the laws, he acted correctly in sending her off [through a permissible marriage]. However, in altering the marriage, he ought not to have received valuable ritual gifts. Wu Ch’ien-erh married the woman Wu to the son of Weng Ch， i_ ch’i. This clearly was contrary to the law. However, her father later knew about the situation and moreover accepted from Weng Ch， i-ch， i two strings worth of paper currency. How could he then seize her and marry her elsewhere? It would be appropriate if the woman Wu were returned to the son of Weng Ch’i-ch’i. Moreover, when the woman Wu married Li San-chiu she was already pregnant. The baby when born would belong to the Weng family. But if by chance the woman Wu died in childbirth then her father Wu Chung-wu and her new husband, Li San-chiu, would inevitably sue. Not only would the family of Weng Ch’i_ch， i have no peace, the government offices would also be troubled. Weng Ch， i-ch， i has been summoned before the court and told the above considerations. He has gladly agreed to withdraw the suit with­ out there having to be further investigation or anything further to do with the woman Wu. However, he has asked that the original betrothal gifts be returned to him under supervision so that he can arrange an entirely different marriage for his son. The woman Wu is to be sent back to Li San-chiu where she will be under his care. The Wu brothers, Ch， ien-i and Ch， ien-erh，as well as Wu Chung-wu committed their offenses before the amnesty. Thus they are exempted from punishment. Under official supervision these three shall provide the cash and paper currency they received originally which shall be returned to Weng Ch， i-ch’i.

Divorce

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Divorce ILLEGAL M ARRIAGE OF A DIVORCEE236 author: W eng H ao-fang

Basically this case is simple. A poor man sells his wife to another man. He does itby writing her a divorce document and then accepting funds from the man to whom she was to be married (providing that man with a receipt for the funds). Weng Hao-t， ang cites the statutes that govern this sort of affair, which would have made the men involved liable for penal servitude. He also holds the wife guilty, apparently be­ cause she did not object to the deal, and remarks that some of the other people who participated in the process might also be liable for penal servitude. In the end he simply orders beatings for some of the men and remarriage for the woman.

The statutes, cited carefully, say that “Both the one who under­ takes to marry the wife of someone else and the one who gives her in marriage shall be sentenced to two years of penal servitude. A husband who himself marries off his wife shall be identically sentenced. Both marriages are to be annulled.” The statutes also stipulate that “A wife who deserts^her home of her own volition shall also be sentenced to two years of servitude•” Yeh Ssu 葉 四 [“Four”]， unable to support his wife, the woman Shao, himself wrote a document of divorce and a receipt for funds. He sealed both with his own fingerprints. He then married the woman Shao to Lu Yiian-wu 呂兀五• Lii and his father gave Yeh three hundred strings in paper currency and put the balance of two hundred strings of paper currency as a security deposit with the family of Yeh Wan-liu 葉萬六 [“Ten_thousand-six”]. After the document was written and the money paid, this was reported to the government. If a wife may be taken in this way then it means that wives can be sold casually. Lii Yiian-wu covetously plotted to make the woman Shao his wife. He asked P， ei Ch， ien-ch， i 裴 千 七 [“Ten-thousand-seven”] and his wife [the woman Cheng] as well as Yang Wan-i 楊 萬 一 [“Ten-thousand-

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one”] to induce Yeh Ssu to agree to the deal. Although Yeh wrote the document he was not without reservations. Yet Lii Yiian-wu hastily sequestered the woman Shao in. his home. If a wife can be taken like this, it means that wives can be taken by force. Just for this reason the statutes provide for the annulments of both such rnsrriages. The woinaii Shao is the wife of "Ybh Ssu.. Al­ though her husband is no good and she should have gone back to her mother, [the woman Shao] hastily gave herself to Lu Yuan-wu because she feared that her re-marriage would not occur quickly enough. If such misconduct may be exempted from punishment then wives can desert their homes without authorization. The three guilty parties [the two husbands and the wife] under the law are liable for penal servitude. They shall at this district be beaten, one hundred strokes of the heavy rod. Both marriages are to be an­ nulled. Neither Yeh Ssu nor Lu Yuan-wu is allowed to keep this wife. The woman Shao，after sentencing, shall be sent to a professional matchmaker to look for some party willing to marry her. Yang Wan-i, P ， ei Ch’ien-ch’i，and Yeh Wan-liu did not mind their own business. They created conflicts that separated man and wife. They too might be liable for penal servitude. Yang Wan-i and P’ei Ch， ien-ch， i，who had knowledge of the whole matter, signed their names on the agreement. Each of them are liable to be beaten one hundred strokes. P， ei Ch， ien-ch， i237 and his wife the woman Cheng, although guilty of participating in arranging a divorce and remarriage that were in violation of the law, deserve some consideration owing to their advanced ages. They shall be exempted from the beatings. I will in the future retroactively deal with P， ei， s case. Meanwhile, all the illegal money shall be surrendered and forfeited.

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Summoned-in Husbands A PREVIOUSLY M ARRIED W O M A N SEEKING TO CONTROL PROPERTY THAT HAD BELONGED TO HER FORMER HUSBAND238 author: Liu Hou-ts’un

This rather complicated case concerns the affairs ofa family surnamed Wei, consisting of three brothers, Ching-hsuan, Ching-mo， and Chinglieh， and apparently a sister named T ’ ang-tso. One way of interpreting the document isthat the brother named Ching-hsiian had initiallymar­ ried a woman surnamed Chao and had by her a son (Ju-chi) who lived to adulthood and himself married a prostitute and had a son. After the death of his first wife, when Wei Ching-hsuan was a relatively elderly man, he married another woman with the same surname, Chao, and the given name, Tsung-chi. When Wei Ching-hsuan died, hisyoung widow, the lady Chao named Tsung-chi, summoned in a husband, a man named Liu Yu-kuang. This was done with unseemly haste. The real problem, however, was that the late widow sought to control some properties that the surviving brothers ofher late husband, Wei Ching-mo and Wei Ching-lieh, thought belonged properly to their family line. Each side maintained that the properties were rightfully theirs. The lady Chao on her part eventually claimed that her late mother-in-law by her former marriage, a woman (deceased at this point) referred to as the lady Huang, had made a bequest directing her surviving sons to give a share of the family prop­ erty to the newly brought-in husband of the lady Chao. The lady Chao also asserted that the properties she controlled had been purchased and built up by her after her marriage to the late Wei Ching-hsuan. The case also provides brief ifat times confusing pictures of some colorful characters, most notably the son Wei Ju-chi, who by himself arranges his own marriage to a prostitute, and who, presumably to finance his way of life, sold offproperties that were his father's share of the joint family patrimony (even though apparently the property had not yet been properly divided and despite the fact that a good part of the property ought to have been preserved as dowry property for his maiden sister).

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Liu Huo-ts'un picks his way through this complicated affair more surely than we can. In the end his decision isrelatively straightforward. The lady Chao, now remarried, cannot claim control over property from her late husband. (It is noteworthy that Liu makes a major point of the fact that the property came to the family from arrangements made before the arrival of the lady Chao Tsung-chi as wife. What would he have done if,as she claimed, she had a major role in creating the proper­ ties?) Liu also reprimands the wastrel son, has him beaten, mandates a dissolution of his illegal marriage to a prostitute, orders him back to his family, has him sign an agreement never again to consort with prosti­ tutes, but also awards him the property (to be held without sale under the watchful eye of his uncle). Liu is also concerned about the unmar­ ried daughter, and orders her uncle to see to itthat a suitable dowry is provided.

Liu Yu-kuang 劉 有光，who appears in a preceding case， 239 and a daughter of the Chao family named Chao Tsung-chi 趙宗姬，were in love and wished to marry. In talent and appearance they certainly were compatible. However, in seven days they got through the betrothal and on the feighth day they were married, which seems excessively hasty. How much more is'this in that the rite of distinction offering was complete^ after having already finished the rite of presenting qualifications,即 d the ^ite ofexchange was done prior to the sharing of the nuptial cup?240How is this different from personally forcing the marriage through? Since the resolution of this must inevitably follow [from the rest of our decision] we need not dwell on this problem. The lady Chap had initially married Wei Ching-hsiian 魏 景 宣 • Ching-hsuan then died. The lady Chao might have preserved her chastity, living out her life in the Wei family. This would have been appropriate. Now she has remarried, taking Liu Yu-kuang whom we may call a heel-following husband. The magpie’s nest is occupied by a pigeon. [Given these circumstances] how could the lawsuit by Wei Ching-mo 魏景謨 not have been lodged? According to the document submitted by Liu Yu-k\iang and written by Yang Kuei 楊奎 there had been a prior agreement concerning(summoning him. as a husband into the household. [On ftjie other side] Wei Ching-mo has submitted a written/iocument of Liu Yu 劉預 on the pretext that this family had already completed a marriage arrangement.241 One side is right and the other wrong. The two are contradictory. However, if we consider

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the matter according to principle and law, the lady Chao’s former husband had a son, Wei Ju-chi 魏汝揖， who moreover had produced a grandson. The co-dwellers, Wei Ching-mo and Wei Ching-lieh 魏景烈， are coparcenors [with their deceased brother, Wei Ching-hsuan], The contents of the assessment document clearly say that [the estate] was not yet divided. Liu Yu-kuang was not a member of this kin group. Yet he wanted to take control of the buildings. This really was troubling. How much worse it was when, with suspicion already having been borne of their dislike, he reentered this family and lived in their midst so that they were not merely brought face to face with the shameful affair but were also insulted in the eyes of onlookers?242Anyone with any moral sensibilities would have looked at the situation and withdrawn. The lady Chao considers these buildings to be properties built up by her after her former marriage. If we examine the plaint of Wei Ching-mo then we find that in 1198 the three brothers joined in build­ ing them. The lady Chao married into the family in the year 1200. There is no reasonable basis [for her assertion] because the Wei family had done the construction before she married into the family. As for what is said of the testament [of the lady Huang], it is very difficult for the authorities to find it trustworthy. From the time of the plaint it merely asserts that the lady Huang had a testament that ordered Ching-mo and the others to assess the [family] wealth, give a share to the summoned-in husband, and provide a dowry for the girl named Wei Jung-chieh 魏榮姐• There is not one word about this in the so-called written agreements. Suddenly, in the fifth deposition it says, “Last winter, when a husband was summoned in, Wei Ching-mo ordered the young man, Wei Ju*chi，to establish a written agreement [which specified] the distribution to the children of the returned bequest wealth. This is the written agreement received by Wei Chinglieh, which has as a witness the aunt, Wei T’ang-tso 魏唐佐■ ” But all the involved givers of testimony say “this is not so.” Still, there is the written agreement that the lady Chao signed as a witness. Carefully, one by one, if the matters are analyzed, one can ^extract what is ap­ propriate. This should have been brought forward initially. Why was it only heard of in the fifth deposition? Also, regarding the written agreement compcrsed at that time, why didn’t Wei Ching-mo and Wei Ching-lieh endorse it? Why did they have the son write it? How could this be credible? Even more, in an agreement worth fifteen hundred strings of cash, if it was created so as to make it possible to get the

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most valued prize, [it certainly being a device for seizing this], why then did Wei Ching-lieh himself serve as custodian so that all is ifi a great muddle? Why prior to this was there not a single word of com­ plaint? Furthermore, if it is said that suddenly, at this time, a concern arose because of the illness [of lady Huang] resulting in the receiving of the bequest, yet the continuation says that she was bedridden for four years. The bequest conceals something. The dead cannot be revived [so] the testimony of the lady Chao has these sorts of discrepancies. On what grounds can the authorities investigate the people involved? If we carefully examine the initial plaint of the lady Chao, she merely spoke of counseling the two uncles to provide some slight amount of care. Now there has been a flurry of complaints. [Each side] of course wants to emerge victorious. Their clumsy errors accumulate day by day with no one thinking about the ruin entailed. These go as far as the statement that Wei Ching-mo lent money at interest to the young man, [his nephew] Wei Ju-chi, with the landed property, vehicles, and mills eventually being distrained. And yet again it is said that the property 4s the undivided property of the lady Huang and ought not to have been subject to conditional sale. Initially it was said that the market shipping controlled by the lady Chao was something that had been established by the former wife of Wei Ching-hsuan. But yet again it was stated that Wei Ching-mo fraudulently established the house­ hold of Chao Tsung-chi, so as to purchase the property of Kuo Shenyii 郭神與 and others.243Again it is asserted that, because the property in dispute was purchased by the lady Huang, it should revert to the other lady for control. And again Wei Ching-mo is accused of buying the property by illegally establishing the household of Tsung-chi. There are other similar sorts of things so that, generally speaking, under­ standing is impeded and interrogations are fruitless. Up to that point the officials did not want to settle this matter in a hasty manner, suggesting that it be settled through mutual consulta­ tion. Moreover, they wanted the two families to act amicably. HoweVer, the plaints daily became more complex and intertwined and be­ came completely vexatious. Now, on the basis of what has been writ­ ten in the case records, it is simply a question of understanding the principles and the law. As for reprimanding Wei Ching-mo, it is better not to speak of his inability to instruct properly his nephew, Wei Ju-chi, so that Ju-chi became dissolute or of Ching-mo， s acquiesence in the remarriage of the lady Chao into another family. The sons and younger brothers

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have cultivated ill will among themselves. Even though they are rela­ tives, their elders are unable to revive their virtues as sons. How can they be considered sons? Chao Chung-i 趙忠翌，the elder brother of the lady Chao, in the sixth month of last year had already said that the agent, Ts’ ao Pa 曹 八，had beguiled the younger sister of the Chao family. He took hair o rn a m e n ts a n d o th e r v a lu a b le s w o rth tw o th o u s a n d s trin g s a n d se t fo rth in th e n a m e o f p le a s u re see kin g, in d u lg in g h is w illfu l desires fo r

an extended time. The written materials from the district files are available and can be consulted about this. Thus the lady Chao in the p a s t w as n o t a b le to b r in g tr a n q u illity to th e h o u se h o ld .

Were the Wei’s able to deny her permission to remarry? Wei Chinghsuan was not lacking in male descendants [who could have supported her within the family— t r .]. Moreover, there were in his household co-dwelling coparcenors. In law a heel-following husband ought not to have been summoned. As for [the summoned husband], the scholar Liu, the authorities should have been anxious to act according to what was important and conversely to put aside minor things. In this trifling choice [the author­ ities] could not decide courageously. Instead, their roundabout behavior provoked accusations that simply subverted their original intentions. How can this not be profoundly pitiful? The lady Chao remarried. In terms of righteousness she had al­ ready severed [her ties with her former husband]. She ought not to have again controlled the patrimony of her former husband. What is merged with the family of the scholar Mr. Liu, serves both the woman and the man. This then would be in conformity with law and humane moral feelings. The share of the landed property that fell to the branch of Wei Ching-hsuan was largely sold off in conditional sales by Wei Ju-chi. Wei Jung-chieh is still an unmarried girl living at home. The fields that have already been disbursed ought to have been given out as her dowry. According to the testimony of Wei Ching-mo, the market ship­ ping management and the landed properties of the households of Tsung-chi and Tsu-chi, as listed by the Chaos， had been purchased by the [first] lady Chao who had been the previous wife of his younger brother, Wei Ching-hslian. However, even if wrongs occurred, a long time has since passed. Wei Ching-hsiian and his previous wife are both dead. When the [new] household [involving Chao Tsung-chi] was established, Wei Ju-chi was still young. It is difficult now to punish

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him for wrongdoing. All [the property] as dealt with in the report of the village scribe should revert to the original family [of Ju-chi], The [second] lady Chao ought not to have control over the patrimony of the previous wife of Wei Ching-hsuan. It would be appropriate if it were returned to his male relative, Wei Ju-chi, to be managed by him. We expect the lineage elder, Wei Ching-lieh, to exercise supervision. [Wei Ju-chi] will not be allowed again to alienate the property through conditional sale. Wei Ju-chi also violated the law when he married a prostitute. Be­ cause we are lenient his penalty will be reduced to eighty blows of the heavy rod. He is to be divorced. If we examine the marriage document, Wei Ju-chi himself managed the wedding. The elders of the family were completely uninvolved. Wei Ju-chi’s statement of obligation will be entered into the case file. He is to return immediately to his family. If he should again tarry in the town and consort with prostitutes, he will be pursued and judged as harshly as [the prostitute], T'ang Saisai湯賽賽. The lady Chao’s statements concerning the bequest of the lady Huang andthe lands that have already been transferred are without any evidentiary basis. It would be difficult to act upon them. However, [the maiden] Wei Jung-chieh is a blood member of the Wei family and ought earlier to have been sent out [in marriage]. We expect Wei Chingmo to cherish his brother and to feel proper sympathy for the girl. From the property of those in the cult group, through discussions about the provision, the needed amount for a dowry should be set aside so as to soothe the concerns of the dead. This should all be set out in order in the documents. W ithin the appropriate time limit, the reasons for these decisions should be communicated to the offices of the commissioner and prefect. As to Liu Yu-kuang, who has already submitted [an accusation] at the district against Wei Ching-mo for having defrauded the household, this naturally is a different affair. It should be dealt with separately.

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Employees LEGAL PROHIBITION AGAINST AN OFFICIAL’S BUYING HUM AN BEINGS244 author: Ts， a i Chiu-hsuan

A district sheriff purchased three maids. His crime was the worse be­ cause he purchased girlsfrom within his own jurisdiction. Itisordered that he be beaten and expelled from the district. The girls are to be returned to their relatives. We should note that the sheriffisunable to use his privileges as an official to avoid the punishment.

The buying of human beings by officials on duty is an offense espe­ cially disallowed by legal prohibitions. When Huang Yu 黃友 was sent to the district for questioning he confessed that he was responsible for asking the official middleman to find and buy three maids. The confession was reported to the judicial commissioner who made the decision. For an official on duty to trade in human beings is already in viola­ tion of the law. And it happened that these were girls of the towns­ people in the district. How can the law permit it? Huang Yu shall be beaten one hundred strokes of the heavy rod and under escort be banished from the borders of the circuit. The three girls are to be sent to the district. The magistrate is requested to summon their relatives to assume their care. In each case a statement of custody shall be submitted. The district sheriff, not observing the stipulations of the ordinances, employed girls whom he bought from among the people under his juris­ diction. His offense shall be reported to the Imperial Court for inves­ tigation. For this a detailed account should be prepared and reported within one day. The district magistrate is further requested to apprehend the middleman named Pan and the middlewoman named Ch’eng. Each of them is to be beaten eighty strokes，with a report to follow.

Part 5 Human Relationships O fficial matters Members of the elite in traditional China tended to conceptualize society as a structure composed of a number unchanging roles—father, mother, son, daughter, nephew, uncle, brother, sister, husband, wife. Of course a normal individual could pass through a number of these roles during a lifetime, from daughter (and possibly at the same time sister) to wife to mother to grandmother. But in the orthodox view the emotional, moral, and behavioral content of the roles did not change，only their players. Some of the most intractable problems arose, therefore, when people did not act in accord with their role, when fathers did not behave as a patriarch should, when brothers were unbrotherly，when uncles did not adopt at avuncular attitude toward their nephews, when sons were unfilial. The potential readership of the ChVing-ming chi was composed of men who no doubt knew from their own family experience of many of the ills that could stem from the violation of role expectations. What the Ch'irtg-ming chi could give them was illustrations of what hap­ pened when such breakdowns reached a point where the state formally intervened.

353

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Human Relationships Fathers and Sons A SON W H O IS NOT COMPLETELY FILIAL SHOULD BE TRANSFORMED THROUGH EDUCATION1 author：Ts， a i Chiu-hsiian

Perhaps we must assume that the father had already divided the family property and that the son thereafter not only took his father’ s ox with­ out permission but also sold it. Otherwise itis difficult to see how the act could be defined as theft. W e may surmise from Ts’ ai Chiu-hsiian’ s , comments that a lower court, presumably the district, recommended that the young man be sentenced to registered control. Ts’ ai finds this excessive. He recommends a punishment that will shame the boy but also some daily observances that are intended to rebuild an appropriate relationship with his father.

The son who stole his father’s ox should be beaten with the light rod.2 As to his not being filial, this prefectural office should do some­ thing to educate and transform him. Why should we sentence him to registered control? He should be sent to the prefectural notary office. There he will wear the cangue about his neck on certain days. He shall also be ordered to perforin daily formal greetings to his father. He shall thereafter be freed from supervision when his father treats him with kindness and he himself demonstrates filial piety.

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Mothers and Sons M OTHER AND SON MUTUALLY ACCUSING ONE ANOTHER W ITH REGARD TO A FAMILY INHERITANCE3 author: Ts， a i Chiu-hsiian

Perhaps we can read between the lines in this case and see a family in which the son grossly misuses family funds. The situation is so ba(d that his widowed mother sues Him in court. She has a much better relationship with her daughter and son-in-law. Ts’ ai Chiu-hsuan, rep­ resenting the orthodox Confucian position in which relationships with £imarried daughter and her husband should be less strong than those with a son, chides her for her behavior. He approves a recommendation from the notary office, apparently that the parties sign an agreement not to continue the dispute.

Chiang Tzu-ch’ao 姜子朝， the son-in-law, has actively carried tales

and misquoted words [between family members] in an attempt to ter­ minate the ancestral sacrifices of his wife’s family. And Hsii Yen-fu 徐 巖甫，th e so n , th r o u g h h is fa ilu r e to be fa ir w ith re g a rd to fa m ily property and income has so agitated his mother that she has sued him. The lady Li, the mother, has been unrestrainedly selfish. She sides with her son-in-law, not with her own son. She sides with her daughter and not with the family of her husband. All three of these people are not without their respective offenses. We shall adopt the proposal of the notary office. Each party shall submit a statement acknowledging compliance with the admonition. Should their quarrels not end，Chiang Tzu-ch’ao will promptly be summoned to be punished for his offense of sowing disharmony between the mother and son. Hsii Yen-fu will be summoned to rectify his offense of being disobedient to his mother. If their quarrels even then do not come to an end this will mean that the lady Li intends to sever her relationship with the family of her husband. The govern­ ment in that event will have no way to forgive her. Each must do his

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or her best, the son following the Way of a son and the mother the Way of a mother so as not to have regrets at a later time.

READING THE CLASSIC OF FILIAL PIETY4 author：Ts’ai Chiu-hsiian 麵 麵 瞧 〖 ■r_ n T

rn iw rrrHB"^ iail^

l『 l'w丨

One possible interpretation of this brief piece is that the man men­ tioned at the end of ithad pressed the young man involved to arrange the sale of some family property. Perhaps the young man had in some fashion gotten into debt. His mother’ s father objected to the sale so the young man behaved in an inappropriate way. The interest in the piece is in his sentence, to read passages from the C lassic of F ilia l Piety at the local school, an alternative penalty designed to make him reflect on his duties to his elders.

The admonition order issued by the district office is hereby returned with our approval. However, because the son should render filial pi­ ety to his mother, he should also respect those whom his mother re­ spects. How much more should this be true of the respect due to his grandfather on his mother’s side? The family property, however, should not be sold under compulsion. As to a few other details in family mat­ ters, they are not worth mentioning. Under supervision, the son shall go to the [district] school, stand in place of the instructor, Mr. P’eng, and read aloud the Classic of F ilial Piety for a month. The district is further directed to summon and interrogate Hsu Li-chih 徐 立 之 [t r . note: perhaps the person who applied pressure to have the family property sold] within three days.

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A SON W H O HAS BEEN REBELLIOUS AGAINST HIS MOTHER AND ELDER BROTHER OVER A PROPERTY DISPUTE MAY TENTATIVELY BE FORGIVEN BUT IS SUBJECT TO RETROACTIVE SENTENCING IF HE DOES NOT CORRECT HIM SELF5 author: H u Shih-pi

This piece reflects one apparently enduring truth, that money matters lie at the heart of many family problems, and one characteristic of traditional Chinese approaches to family problems, reducing them to correctable moral weaknesses. The Sung elite seems to have accepted as fact that most people behaved badly as a matter of choice and that the incorrect choice they made was the result ofpoor moral education. This view was basically optimistic, since itassumed that ifpeople could be brought to repent of their mistakes, they could correct themselves. The men who write our opinions also foreshadowed some psychological theories now current in believingthat ifpeople went through the proper motions they would in time be affected by the ritual involved and be transformed.

People, living between Heaven and earth, differ from the birds and beasts because they know that there are rituals and propriety. What we call rituals and propriety are nothing other than filial piety toward parents and brotherly affection; that is all. If on the other hand one is without filial piety or brotherly affection then he is simply a beast. Li San 李 三 [“Three”]，as a younger brother, has been rebellious toward his elder brother and, as a son, toward his mother. Considering the law, there could hardly be adequate punishment for his offenses. However, those in office must strive to transform people through education as their top priority. Punishment has a low priority. More­ over, if we probe the motivation of Li San we find that it is his desires concerning such minor matters as property and profit that have led to the creation of these conflicts. It is after all rather commonplace for petty persons to see profit without seeing propriety.

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If we forgive his past faults and show him th6 way to renew himself, in time his heart inay become calm and his mood stable. Then the principles of Heaven may return to his mind and the relationship between mother and son and between the brothers may revert to what it had been in the past. We will especially spare him from a sentence this one time and have him escorted under guard by borough functionaries to his home. There he shall express his thanks to his grandmother-in-law, his mother, his brother Li San-shih-erh 李三十二 [“Thirty-two”] and L i， s wife. The neighbors are requested to join their efforts to promote harmony among the parties. If Li San should in the future fail to correct himself, he should be dealt with according to the stipulations of the law. ,

NOT PU N ISH IN G A SON SUED BY HIS MOTHER BECAUSE SHE STILL LOVES H IM 6 author: H u Shih-pi

The problems presented to the Chinese judicial system by young men who abused their parents were very serious, threatening the whole structure of hierarchical subordination and obedience on which the state depended. The penalties in law for such behavior were heavy. Enforcing them was a delicate matter. The authorities were well aware of the possibility that the accusations were overstated or misdirected. And even ifthey were accurate, harsh punishment might provoke re­ sentment from observers. When opportunity offered, the authorities seem to have preferred to avoid punishment in favor of some settle­ ment that left open the possibility of reconciliation.(

I serve at this po尹 t though I am of limited abilities. To begin with I am not skilled in good administration that might touch the people. In

m y o wn limited way I merely put enrichment of h u m a n relations and improvement through educational transformation as my top priority. This is the method I follow in hearing lawsuits. When they are between

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father and son I persuade the father to be kind and the son to be filial. When between brothers, I persuade them to be loving and affection­ ate. When among relatives, common descent groups, or neighbors, I persuade them to be harmonious in their relations and to be respon­ sive in helping people in difficulty. When I advise them, sometimes repeatedly, I dare not let myself feel the slightest anger or resent­ ment against those who resist my persuasion. According to what one overhears people saying in the streets, schol­ ars and common people have both been affected and awakened. Im ­ perceptibly the lifestyle is shifting toward what is good and away from what is offensive. Even those who have been habitually cruel, arrogant, ignorant, or lacking in filial piety or brotherly love, have altered their motivations and changed their minds. Just when I felt myself fortunate, suddenly the woman Chou brought suit against her son for being unfilial. Surprised and shamed, I consider the blame to be mine. I should examine my own faults. I am the official leading this district and yet.a nearby neighborhood has produced this rebellious son. To this extent I have failed in the trust given me by the military commissioner. For this reason I have thought upon the time in antiquity when Ch’ou Hsiang 仇香 was the magistrate at P'u-fing 蒲亭. A commoner named Ch’en Yuan P東元 was accused by his mother of being unfilial. Being surprised, Ch’ou Hsiang remarked that when he had passed by Ch， en， s plac谷he had seen the house in neat order and the tilling going on in season. This would suggest that Ch’en Yuan was not a bad fellow. The problem probably arose because education and moral influence had not reached him. Thereupon Ch， ou Hsiang personally went to the Ch’en house. He drank with both the mother and the son and explained ethical relations to Ch’en Yiian, telling him how fortune and misfortune depended upon them. Ch’en Yuan was greatly moved and awakened. Eventually he became a well-known filial son. People in that countiy created a saying， “Where are the parents? They are right here in our yard. They trans­ form us from unfilial young owls by nurturing us. ” Down to the present this has remained recorded in history, a beautiful story for a thou­ sand generations. The current case in which Ma Kuei 馬圭 has been sued by his mother might have been similar to the case in this story. It might also have been a question of his not having received good moral and edu-1 cational influences. I hastened to have the mother appear before me

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and asked her about the situation. She described Ma Kuei’s misconduct. When the parents gave him land, he sold it. When they encouraged him to find gainful employment， he rebelled against them. When the parents forbade him to gamble, he disobeyed the order. Ten years ago the father brought suit against him so that he now has a record for having been beaten. Now he not only has no intention of reforming， he even resents his mother. Among the episodes she described were ones I could hardly endure hearing. When we look at his behavior, we can see that he is truly an evil man. He is unlike the Ch， en Yiian in the story who was capable of being transformed. I became so angry that I was inclined to grant his mother’s request that he be punished in the marketplace and cast out of the community.7 The next morning the mother returned with the will ‘o f the late father. Its words fully convey his feeling of sadness, forgiveness, com­ passion, and tenderness. Reading it brought tears to my eyes. It made me believe more deeply than ever that in the world there are no unkind parents, only unfilial sons. Ma Kuei could not possibly repay, even with the sacrifice of his own life, this utmost kindness. However, the father had previously asked that his son not be ban­ ished and the mother once again felt intense pity and was unable to cease caring for her son. I am certainly as sympathetic and respectful of these aged persons as I would be of my own elders. What could be better than for these two to again be mother and son as they had been at the beginning? I do not wish to sentence Ma Kuei criminally. He shall be sent home in custody. There he shall implore neighbors and relatives to escort him to greet his mother and thank her. He shall treat his brother with love. If he should again violate standards of good conduct, even in the slightest degree, so that his mother brings a plaint，he shall then certainly be punished for filial disobedience. One copy of the will left by the father shall be made on white paper for our files. Another copy shall be given to Ma Kuei so that, after he has returned home he may read it from time to time. Thus he may realize how his father loved him to the utmost. This may induce the gathering of the heavenly principle in him. The district by special dispensation gives him as a gift twenty strings in paper currency and four bottles of wine8 so that when he gets home he may use these to entertain the relatives and the neighbors.

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Brothers DISPUTE BETWEEN BROTHERS9 author: Ts’ai Chiu-hsiian

We seem to have here the case of three brothers, one clever and indus­ trious and two rather stupid. Already during the lifetime ofthe parents the clever brother had begun to build up for himself a fund of wealth. Apparently, at the time after the death ofthe parents when the property was divided, he attempted successfully to protect property he had acquired as a result ofhis own efforts.In effect,Ts， aiChiu-hsiian offered him an opportunity to reach a settlement with his brothers before the law stepped in to redistribute property. He made an offer to his two brothers. They refused. At the end ofthe piece itappears that the courts will have to be involved.

The draft proposal [from the notary office] is already clear. However, judging on the basis of my own human feelings, Huang Chu-i 黃居易 appears to be crafty and sly, while his two younger brothers seem to be dull and slow-witted. Huang Chii-i is relatively well off. His two brothers are poor. It may be surmised that when the parents were still alive Huang Chii-i dominated the management of the family property and kept the brothers away from it. He did not necessarily refrain from using the parental wealth to acquire personal property for himself. Then he tried to use his cleverness to cover up his crafty schemes. The jdocument on the division of inheritance explicitly states that the property he had accrued privately had nothing to do with the rest of the family members but in his affidavit for mediating settlement he declared that he had no savings other than what was reported. This is indeed like [the joke that when a man buried gold at a place he erected a post there that said] “so-and-so many pieces of gold are not buried here.” These people should realize that the stipulations in the state ordi­ nances cannot be circumvented by arguments and inconsistencies.

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Brothers are born of the same parents. Only a certain type of ignorant person in this world will fight over trifling gains and look upon his brothers as enemies. If brothers are as strangers how very sad that will be! Huang Chii-i ought to consider the righteous principle that brothers stem from the same spirit like the connected branches of a tree. He should put aside the thought of drawing boundaries between the brothers and help his two younger brothers so that they may again be united in harmony. Otherwise, the officials, applying the legal prin­ ciple that no private property may be owned by children while the parents are alive will demand to see all the land deeds and send the brothers to jail [for investigation]. If the stipulations of the law are applied it will then be too late for them to feel regret. A notice was issued for all three brothers, advising them each to submit a statement that there would be no more contention. When the three were summoned and the notice read to them, all of them refused to comply. As a result they were told to submit affidavits about the dispute. Also， Huang Chii-i submitted a supplementary affidavit, expressing his willingness to provide from his own money a sum of one hundred strings in paper currency of the recent seventeenth issue as a subsidy for his two brothers. This affidavit of Huang Chii-i was sent belatedly to the notary office. The draft proposal of that office gives all the details. However, as the judicial commissioner I have decided that since this matter involves landed property, it is not under my jurisdiction. As for the conflict among the brothdrs, my original desire was to stop the litigation in order to preserve the family relationship. Now it appears that the three brothers simply care for their selfish gains without having any sense of shame. Because they are so obstinate they can hardly be transformed [by educative persuasion]. They shall be sent in custody to the prefecture for that office to decide the sen­ tences according to the regulations.

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LAWSUIT BETWEEN BROTHERS10 author: H u Shih-pi

W e have a case involving three brothers and their stillliving mother. The eldest brother has behaved in a responsible and concerned way in dealing with the fortunes ofthe middle brother. The youngest brother, about whom we learn very little,supports the eldestbrother. The middle brother is a source of discord, apparently arguing over control ofprop­ erty and even being physically abusive to the eldest brother. H u Shihpi is so incensed at the middle brother that, despite the pleas of the older and the younger brother, he sentences him to a beating. Feeling that there is no chance for continuing cooperation with the middle brother, H u accepts the mother’ s willingness to see the family estate divided as an opportunity to approve the division of the estate, hoping thereby to avoid continuing problems.

Two months ago Tsou Ying-lung 鄒應龍 personally appeared be­ fore the court to institute a suit against his elder brother. Having read his plaint and looked at his appearance, I already knew him to be an unreasonable person. The judgment I handed down at that time was intended to be a warning admonition, Shortly thereafter his elder brother, Tsou Ying-hsiang 鄒 應 祥 ， accused him of being disrespectful, while [Ying-lung] accused Tsou Ying-hsiang again of lacking brotherly love. This was no more than I had anticipated. “Twisting the arms of an elder brother and snatching his food” [as the saying goes] is impermissible. How then could it be permissible [as in this case] to take a swing at a brother and knock out his teeth or to beat a brother’s legs with a club? Moreover, Ying:hsiang had raised a son of "Kng-lung as his own son. Unfortunately the boy died young. Then Ying-hsiang cared for a daughter ofYing-lung as his own daughter and married her off when she came of age. An elder brother who has done all these things certainly cannot be said to lack brotherly love. Why does Ying-lung not ponder the evident way of Heaven but instead show so much disrespect for his elder brother? Nor is it simply

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a matter of being disrespectful. Their mother is over sixty years old. When in this way he deviates from the identity of spirit which unites brothers，what evidence of filial behavior can he use to comfort her? Because at heart he burns with a love of money and selfishly cares for his own wife and sons, he has become unfilial toward his mother, disrespectful towards his elder brother, and unloving toward his younger brother. Name any evil under Heaven, he dares to do it without feeling concerned. Such a person is indeed not as worthy as a beast. How can he have the gall to live under Heaven and upon the Earth? Now Ying-hsiang and the youngest brother, Tsou Ying-lin 芻随麟， wishing to spare their mother’s feelings, do not want to pursue the lawsuit to its conclusion. This shows that they do not harbor hidden anger or old enmity. However, [the middle brother] 'Kng-lung, having committed innumerable offenses, can hardly be forgiven. To act with grace so as to protect righteous relationships is an expression of the deepest consideration among brothers. However, to administer ex­ plicit punishments in order to reinforce moral education is the public law for which we officials are responsible. These two aspects must both be kept in balance. Tsou Ying-lung, because we are lenient, shall be beaten one hundred strokes of the heavy rod.

As to the rules on the division of property, although by law, during the lifetime of grandparents and parents, their descendants may not register as separate households and divide up the common property, still according to the detailed ruling of the ministry of revenue of the ninth day of the third month of 1192, division is permitted if the grand­ parents and the parents are willing to have the property divided by the assignment of lots, with each descendant being given proper docu­ mentary certification. In enforcing this we should not be ambiguous since this would give rise to disputes. As to the property of the households of Tsou Ying-hsiang and his brothers, since the mother is willing to divide it by assigning lots, there is no obstacle to them doing so as is made clear by the cited clarified instruction of the ministry of revenue. If the household could be kept together, this would be ideal. However, the obstinate and quarrelsome nature of Tsou Ying-lung cannot be expected to change. The good intentions of today in not dividing the household will not necessarily stop disputes from arising in the future. Hence it would be better for the brothers to draw assigned lots for division [of the property]. Each of them should manage his o wn property. This will avoid troublesome disputes. This [course of action] isof course not for an official to dictate. The mother and the brothers must plan what is best for them.

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BROTHERS DISPUTING OVER PROPERTY11 author: Liu Hou-ts’un

This case contains an intriguing story. It concerns three brothers, two of whom are able to enter the official elite, while the middle brother remains at the family home serving eventually as a clerk. This middle brother isdeeply resentful ofthe expenditures ofthe youngest brother, which have eaten deeply into the total sum of the family’ s estate. The parents have apparently now died. The estate is to be divided and the middle brother isdemanding some compensation for the large expenses of the youngest brother. Liu Hou-ts’ un, all too predictably， sides with the scholar-official brothers, dismissing the middle brother as a mere clerk unable to understand the finer things. Liu does, however, stop short ofdictating a settlement, preferring to pass the buck by approving the recommendation of the notary office that a settlement be sought by mediation.

“The flowers of the cherry tree, are they not gorgeously displayed? Of all the men in the world there are none equal to brothers.’’12 Is this not because [the relationship between brothers] is the most profoundly caring among all the natural ethical relationships? Hsii Tuan 徐端 has a younger brother and an elder brother, both of whom have blossomed in prominence through Confucian learning. This we may say is an extraordinary achievement, when an ordinary household rises to become an outstanding family. The younger brother is an instructor at Hsin_an 新安.13They have been like elegant geese that in a single day cover hundreds of miles flying in a column. [Just so rapidly] has this family become increasingly glorious and pros­ perous. How can [the middle brother]， Hsii Tuan, be concerned about keeping himself well fed and well clothed, when his younger bother could not bear to sit idly while his elder brother was in want? When the wind instrument begins, the bamboo flute accompanies it. This is the natural response of the mechanism of Heaven. Now Hsu [Tuan] is recklessly disturbing this peaceful relationship. He regards his younger brother as an enemy. Taking advantage of his brother’s tour en route home, he has humiliated and abused him in an astounding and unheard of way.

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Their family began in poverty and simplicity, with little means of support. This is common knowledge in the community. Hsii Tuan claims that in the days of studying and traveling for this purpose his brother used up no less than one thousand strings of the common fund. At the time both parents were still living. For the family to pay for the educational expenses was indeed a decision to be made by the father. Now Hsii Tuan had demanded compensation. Where is the grace and love in this demand? Moreover, the younger brother who is the instructor has presented as evidenqe the correspondence of his oldest brother written to be sent home. These letters vividly reveal how hard-pressed the family was. Hsii Tuan, who has humbled himself to serve as a mere clerk， knows nothing other than greed. Even so, how can he not understand the great righteousness of the identity that exists in spirit between brothers? How can he be so perverse, ignorant, erroneous, and con­ fused? The two previous prefects have in their decisions commented in exhaustive detail. I ， as the commissioner, must be concerned about, the damage the shameful case could cause to moral education. Thus I would rather follow the report of the notary office to settle the case by mediation. If in the future Hsii Tuan should cause trouble through his insatiable desire and disturb tranquility by lodging lawsuits with­ out ceasing, he shall be formally punished according to the law. The government cannot possibly tolerate such misconduct.

REQ U IRIN G RELATIVES AND FRIENDS TO HELP RESOLVE THE DISPUTE BETWEEN BROTHERS OVER THEIR FATHER’S BURIAL14 author: [pseudo*] T’ien-shui 天 水

This piece isa straightforward example ofthe kind ofsituation in which the authorities felt impelled to seek for mediated solutions. No clear crimes have been committed. The parties are both members of the scholar-official elite. They are brothers. To allow the case to enter the regular court not only would create difficult legal problems, it would

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also expose the unsavory side of elitebehavior. The officialwriting this piece is only too happy to pass the responsibility on to a group ofpeers.

The late Prefect Tseng, in managing his sons, lost his sense of equity and balance. This has led to the disastrous situation that exists today. After his death, bygones should have been bygones. The date of his burial had been determined. Surely this was the proper time for the two sons to be equable of mind and spirit, so that they might complete this ritual and fulfill this important task. Yet they each revived old grudges. Whenever one would insist on his own argument, the other would seek to prevail over it. They did not realize that thereby they were failing in their righteous duty to honor their parent by taking him to his last resting place. The more selfish desires intensify, the more the principles of Heaven become confused. Their relatives and old friends should have repeat­ edly explained righteousness and principle so as to enlighten them. Once the innate heart is awakened then all thoughts will be proper. How then could the principles of Heaven remain in eclipse? And yet there are those who are partisan. They not only do not help to rectify the situation, they resort to flattery. This all adds fuel to the fire. It is worse than useless. If a government office in administering the law for the state renders its decisions fairly, of course it ought to be obeyed. However, we should consider that the brothers are descendants of an illustrious house. With their father dead but unburied, if they have to seek the help of the government in settling the dispute, this would remain as a disgrace for the rest of their lives. The way of a gentleman is to be concerned with people in a,virtuous way so that righteousness can exist as the fundamental principle. The two brothers have brought together six persons. Some are schol­ ars and others are from families of officials. Why should they take the trouble to be partial to the one to whom they are close， thus actually putting themselves in the wrong? Now we ask that these six men， because the Tseng household is an illustrious one, and because the burial of a parent is a great task that should be of overriding concern, act in fairness. They should do their utmost to mediate so that the * brothers may fully feel the love that is the outcome of the heavenly bonds and so that the burial- of the parent may be expedited. ‘

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Not only would this avoid the embarrassment of having an official correct the fault but it could also stand forever as an admirable act in the community. This office now sets a five-day time limit. We will await a report on how appropriately they work on this matter. If on the other hand they do not understand the intention of our admoni­ tion then the law still remains available and will be enforced.

Husbands and Wives A W IFE W H O HAS BEEN DISOBEDIENT TO HER HUSBAND AND PERVERSE TO HER FATHER-IN-LAW IS TO BE PU N ISH ED AND A DIVORCE IS TO BE PERMITTED15 author：H u Shih-pi «

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It may be that we have here the case of a woman married to an exceed- ' ingly stupid man with a lecherous father-in-law. She sues in court both against her husband and against her father-in-law. This would seem to be flatly against the law. And yet the magistrate deals with the case, castigating her for her temerity, and indeed ordering her beaten, but we should note that at the end she get what see seeks, a divorce. —

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The woman Chang has been Chu Ssu’s 朱 四 [“Four”]wife for eight years. The way of marriage is that, as soon as one is married, there should be no change for the rest of one’s life. Should this npt be even more true of people who have been married already for a considerable number of years? Even if her husband had a disgusting disease, as in the case of the legendary man from Ts’ai，the woman Chang should have followed the example of the woman of Sung who declared that the misfortune of her husband was her misfortune and who* therefore saw no reason to desert him. In this case Chu Ssu can see, hear, talk, use his hands；and walk. Nor does he have any such disease as that of the legendary man of

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Ts’ai. Yet the woman Chang, for no apparent reason, called him idiotic and stupid. She wants a separation. This is already contrary to the righteousness of the relationship between husband and wife. In addition she slanderously accused her father-in-law of having adulterous intentions toward her. How extremely perverse this accu­ sation is! According to the Book of Rites， when a son is very compatible with his wife but the parents do not like her, the son will divorce her. The woman Chang has already sued her husband, so she is no longer com­ patible with him. She has also sued her father-in-law, so that she no longer pleases him. Given such a situation how can they be forced to stay together? The woman Chang shall be beaten sixty strokes of the heavy rod and granted a divorce. All the other persons are to be released. *

HUSBAND W IS H IN G TO DIVORCE HIS W IFE ON THE SLANDEROUS PRETEXT OF ADULTERY16 author: H u Shih-pi

H u Shih-pi, a judge of much experience, takes the real root of this divorce case to be the fact that the son’ s wife offended her mother-inlaw. He has serious doubts about the accusation that the wife has com­ mitted adultery, seeing it as a pretext. His sympatHy is entirely with the wife. She has been defamed in a completely unacceptable way by a petty man (and his unpleasant mother). There is a hint that the hus­ band is seeking for some reason for at least a temporary reconciliation but H u will have none of it. H u grants the wife a divorce and orders that the husband be beaten eighty blows, presumably for having done what ought not to be done.

According to the Book of Rites when a son is very compatible with his wife but the parents do not like her, the son will divorce her. Accord­ ing to the law, “There are seven specific grounds for divorcing a wife. Among them the most serious is the offense of adultery•”

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The lady Yii offended her mother-in-law. This led to a lawsuit. The pertinent accusation was her adulterous relationship with someone. In light of these two connected charges it is evident that the husband and wife cannot be reconciled. Now Chiang Pin-yu 江濱臾 in carrying forward the affidavit of his mother, the lady Kung, has concealed the charge of adultery. He has merely asked that he be allowed to escort his wife, the lady Yii, home where she could attend his mother. I can­ not understand how the lady Yu could have the^temerity to return to his home. It is fitting that the authorities investigate in order to ascertain the truth. Only then can the lady Yii be cleared. A directive was sent to Shao-wu Military Prefecture 邵武軍 to apprehend the husband, Chiang Pin-y^，and escort him to this office to report. After he ar­ rived, Yu Shih-hai 虞 士 海 [t r . presumably the father of the lady Yu] was also summoned so that their testimonies could be compared. After Chiang Pin-yii had been escorted back a second decision was handed down. According to the law “Adulterers must be caught by the husband.” This means that what has happened must be evident and that another party be apprehended. However, Chiang Pin-yii has raised an affair that is not at all clear and slanders his wife. On what basis can the authorities reach a judgment? Chiang Pin-yii is a petty man who works as a broker. His failure to understand what was fitting is not sufficient grounds to have him punished. However, once an official accusation has been lodged, a con­ clusion has to be reached. Chiang Pin-yu himself knew that the charge [of adultery] was deceitful. He did not dare to press this previous matter further. Yet he also claimed that the lady Yu had in the past ordered a concubine to remove various precious articles from the boxes in her room. He thus was asserting that the lady Yii was guilty of both adultery and theft. It seems probable that he fabricated all these accusations so as to prolong the trial [thinking that] if the lady Yu was troubled in this way she might not want to be reconciled and thus the initiative for a divorce would not be considered to be his. This was the extreme pettiness of a petty person. As to the various articles, socalled, they had to be itemized. Chiang Pin-yii was sent under escort to the notary office to make a true deposition. With this testimony recorded, a third decision can be issued. Hus­ band and wife constitute the primary human relationsliip, which is much stressed in the Book of Rites. It therefore says: “To name her the wife means to be together. Once created [the relationship] never

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changes for a lifetime.” Chang Pin-yii has schemed and plotted to abandon his wife. Lacking a pretext he brought slanderous charges of adultery. This is a grave offense under Heaven. When his- charges proved worthless and his reasoning specious, he then charged his wife with stealing because she had removed various articles from the boxes in her room. When under orders he had to respond, he admitted that these articles were the lady Y ii’s personal belongings. In ancient times no foul language was to be used at the severance of relationships. This meant that even though evil things had occurred, they were to be covered up. Now Chiang Pin-yii, acting like an animal, has fabricated alleged offenses and slandered his wife. The lady Yu possesses her own dignity as a person. How could she bear to return to his home? Yu Shih-hai has also stated that because the relationship is lacking in both sentiment and righteousness, he does not wish this marriage to be reconciled. The court can hardly compel a reconciliation. It is appropriate to allow the lady Yii to have a divorce. Yii Shih-hai is to be released. Chiang-Pin_yQ shall be beaten eighty strokes of the heavy rod and then sent to the prefectural school to be examined. This will be reported separately.

Filial Piety ENCOURAGEMENT OF A FILIAL SON AND PUNISHM ENT OF AN UNFILIAL SO N 17 author: Chen Hsi-shan

Confucius himself articulated a vision ofthe political order that was to become gospel for most members of the traditional Chinese political elite, that young people were socialized into an appropriate attitudes toward figures in authority by learning within the family how to behave toward their superiors, most importantly their parents. The habits of obedience, deference, and sacrifice were to be learned at home and ex­ tended to representatives ofthe state. Ifnot learned athome, they would perhaps never be internalized, laying the groundwork for resistance

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and rebellion. For this reason representatives of the state went out of their way to reward filialbehavior and could be brutal toward the un­ filial. Chen Hsi-shan’ s notice is a classic example of the use of example to propagandize the people.

In the recent past I instructed the people on three matters’ the chief of which was filial piety, including brotherhood. In the last several months repeated reports came from the eastern borough concerning Chou Tsung-ch， iang 周宗强， a gentleman of trust. His mother, Court Lady Ch， en， became dangerously ill. Chou Tsung-ch， iang cut a piece of flesh from this thigh [to use as a medication]. His mother subse­ quently recovered. Although this is not the sort of thing that the classics of the sages advocate, still his filial piety was so sincere and eager that it was indeed commendable. Now suddenly a commoner named Wu Shih 吳拾 and his wife, the woman Lin, have accused their son Wu Liang-ts， ung 吳良聰 of being unfilial. After repeated interrogations, their testimony has narrated all the details. I do not deserve to be prefect. I have not been capable of instructing the people in rites and righteousness and so have caused this sort of perversion to occur among the people. Day and night I can find no sanctuary from my shame and fear. In addition to the reward money which shall be given according to the regulations, Chou, the gentleman of trust, shall be especially invited to the prefectural offices to have three [ritual] drinks, in the manner of honoring a respected guest. Then he shall be sent home [in a parade] with banners, music including drums, and a riding horse with a decorated saddle under a colorful parasol. Wu Liang-ts， ung， though guilty of crimes deserving the death pen­ alty, shall through our leniency be punished rather lightly. He shall be beaten twenty stokes on the back, have his head shaved, and be put to supervised labor for a year. His punishment is to be made known to the public at the marketplace so that people will know that the officials will show respect to those who are filially devoted to their parents and that the law will punish those who are unfilial. Further­ more, the people in this region are basically easily amenable to trans­ formation. It is simply because the officials have not been wise enough to train them and to encourage them that some of the ignorant have casually committed offenses. To you, the people I am briefly stating [the principle of] great righteousness.

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SAVING A M OTHER BY CUTTING O N E’S O W N FLESH18 author: n.a.

This case, like the preceding one, isan example ofstate use ofexemplary behavior as a teaching tool, though itmust be admitted that members ofthe elitehad serious reservations about children voluntarily injuring themselves in attempts to aid their parents. Two points make this notice interesting. First, itmakes clear that the offering of rewards for cases of extraordinary filial behavior was treated in a thoroughly bureau­ cratic manner. The amounts ofrewards were already set down in rules available to local officials. Second, it throws some light on the Sung army. The Sung army was composed of several sorts of soldiers. One type, called provincial soldiers (hsiang-ping 廂兵)， although they might on occasion fight, were not usually warriors. They performed a whole host of government services. These soldiers were recruited in various ways. As this piece suggests, getting an appointment was viewed byordinary people as very desirable, so an official could offer such an appointment as a significant reward.

According to the borough officer’s report, the lady Chuang-erh, the wife of Chiang Kuang-chung 江廣忠，who is fifty-four years of age, had been seriously ill for a long time. Her son named Chiang Ying 江 應 on the eighteenth day of the fourth month cut a piece of flesh from his thigh as a cure for his mother’s illness. She has since recovered. The notary office has submitted a proposal saying that Chiang Ying, who cut his flesh from his own thigh to cure his mother, may aptly be styled a humble person who has embodied filial behavior. His uniquely outstanding conduct should be appropriately commended. According to the regulations he should receive silk and flour or by conversion cash and paper currency to the total of five strings, plus five pecks of rice and a bottle of wine. The borough officer should be directed to summon him to the court so that he may receive the rewards personally. A decision of the prefect orders the following: Although the cutting of the thigh is not an orthodox act of filial piety, yet risking one’s own life in order to save the mother’s shows extraordinary filial devotion. Such an act can truly serve to encourage [improvement in] mundane social customs. In this prefecture when soldiers die those who ask to

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be enrolled as their replacements must appear before the court for examination, registration, and tattooing.19Except for these cases, the military cannot expand its quota by admitting additional replacements. However，Chiang Ying has been so filially devoted to his parent that the officials should devise a way whereby he can sustain the livelihood of his parent during her lifetime. If Chiang Ying wishes to enroll as a soldier he may submit a statement and come forward. He will be made a soldier by exception. Recently I have been reading lawsuit files. There have been mothers who have sued their sons and sons who have harmed their mothers. One cannot help sighing. This present commendation of tl^is indi­ vidual case can exemplify all other such [laudable] cases. Those who hear about it should be duly encouraged.

Unfiliality A SON SUED BY HIS MOTHER IS TO BE PUNISHED AND W ILL BE PU N ISHED M ORE SEVERELY IF HE DOES NOT REFORM20 author: H u Shih-pi

According to the statutes, sons guilty of unfilial behavior could be severely punished. However, insofar as we may judge from the cases the authorities preferred to avoid harsh found in the Chfing-m ing ch i ， punishments in the hope that unfilial sons could be reformed through some educative process.

Hu Ta 胡大 is a son and yet he has been disobedient to his mother so that she has brought suit against him. A mother’s feelings for her son are the deepest under Heaven. There must have been an intoler­ able situation for this affair to have come to this point. It might be appropriate to respond with severity so as to rectify the offence of unfilial behavior. However, there is another consideration. It is to be

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feared that the mother and the son and the brothers too would then be unable to return to the state in which they were originally. The offender will be taken under escort by the borough to his house where he shall be beaten fifteen strokes and ordered to thank the woman Li [presumably his mother]. The neighbors are ordered to serve as peace­ makers. If Hu Ta does not reform, freeing himself from previous mis­ takes, he then will be sentenced according to the regulations.

SLANDEROUS ACCUSATION OF KIN SHIP MEMBERS AFTER FAILURE TO PROVIDE FOR A GRANDM OTHER AND FOR BURYING HER21 author：Fang ChMu-yai

A poor old woman was abandoned during her lifetime by her only liv­ ing descendant. She was fortunate enough to be cared for by other members of her common descent group and after her death they bur­ ied her. Some time after the burial, they decided the place was inap­ propriate and moved the grave. The descendant then appeared on the scene and apparently accused them for having moved the grave. Some ofthose involved were punished. The uncaring relativewas unappeased. He carried the case to higher authorities, probably in hopes of being bought offby the accused. Unfortunately for him, he went before Fang Ch’ iu-yai, who is thoroughly outraged by his behavior. Fang cites two laws on punishing those who do not care for their relatives but in the end sentences the man to a lesser, but still stiff，punishment.

The woman Wang in her old age was much alone. Sons and grand­ sons should have provided for her and should also have buried her after she died. And yet, among her descendants, who were few and scattered, only a certain Hu Shih-hsiu 胡 ®5诱 survived. He was a wanderer who left home and never cared for her. While she lived she was provided for by some members of the common descent group and when she died they buried her. What sense of worth can Hu Shih-hsiu have left that would allow him to stand between Heaven and earth?

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The kinship members collected money to bury the woman Wang. Then, because they considered the site of the grave undesirable, they moved it. This is in no sense comparable to an unauthorized excavation of a grave. If I were to issue a judgment in this case, I would find those who moved the woman W ang， s grave innocent. However, the official in charge at the time investigated and jailed the two responsible kin­ ship members and ordered the grave to be restored under supervision to the original site. This should have satisfied Hu Shih-hsiu. However he went as far as the judicial commissioner，initiating clamorous lawsuits without ceasing. But then are those who provided for his grandmother in life, and who buried her, his enemies? He cannot be said to understand gratitude or how to respond appropriately to those who were benevo­ lent. He sought to make a profit from her bones in the grave and yet he was unable to satisfy his greed. Not to care about the death of a grandmother but to use it for his profit, that is unfilial behavior. According to law “Failure to provide [for parents] is subject to two years of penal servitude.” This was the punishment Hu Shih-hsiu should have received during his grandmother’s lifetime. [Also accord­ ing to law] “One who abandons his own flesh and blood and does not personally take care of their funeral and burial is subject to from two years of servitude up to penal registration.” This was the punishment he should have suffered when his grandmother died. Although his offense is among the Ten Abominations, because of our leniency he shall be merely beaten one hundred strokes of the heavy rod and sen­ tenced to registered control in a neighboring prefecture. This decision is to be reported to the commissioner for his information.

Incest DIVORCE ORDERED TO BE PERMITTED BECAUSE OF A LAWSUIT OVER ALLEGED INCEST22 author: H u Shih-pi

Other forms ofincest are almost never mentioned in Chinese materials; incest between fathers-in-law and daughters-in-law, by contrast, does occur with some frequency in the legal materials of various dynasties. H u Shih-pi, we may suspect, feels that some sort of wholly improper sexual interaction occurred between the father-in-law and daughterin-law in this case but he wants to conceal as much as he can from the public eye while salvaging a future for the woman. Our feeling in reading this is that he is as completely on her side as he can be in his situation. He does not punish the man. To do so he would have to bring the whole situation into the open, and in any case he has serious doubts about his abilityto get reliable testimony, but he does mandate a divorce for the woman so that she may start anew.

The alleged illicit relationship between the father-in-law and the wife23 of his son is indeed an obscure one. The woman Huang, the wife, admitted the relationship in her plaint while on the outside but denied it when testifying in jail. If the court must depend on her earlier plaint or her later testimony in deciding whether the alleged relation­ ship existed or not, it can hardly avoid the danger of missing the truth. I myself attended the court and interrogated the parties one by one, listening to what they had to say while closely watching their expressions.24The woman Huang in responding appeared to be quite shy, as if she had something she did not dare to say. Li Ch， i-tsung 李 起宗， the father-in-law, stammered and struggled to find words during his argument, as if he felt ashamed and dared not speak. Even now I certainly would not dare to say decisively that the alleged relation­ ship did not exist. If the court insists on knowing whether it be true or false then beating and torture will have to be used. How could a woman, being frail, be able to endure this treatment at the hands of

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the jail clerks as well as a strong man could? She is certain to end by making a false confession. Furthermore, this kind of ugly accusation should be concealed and not made widely known, which would cause humiliation in the community. Between these two, a senior man and a younger woman, the rela­ tionship has already become so bad that, even in the absence of an illicit affair, they can hardly be reconciled. [As the Book of Rites states] “if the son is very compatible with the wife but the parents do not like her, she should be dismissed.” This is how the good instructions of the Book of Rites last forever. The woman Huang is definitely dis­ pleasing to her father-in-law. How can she stay for a lifetime with her husband? They are ordered to divorce. Huang Chiu-erh 黃九二 [“Ninetw o， ， ] may arrange a remarriage for his daughter. Li Ch’i-tsung shall be spared further investigation.

Uncles and Nephews N EPH EW SUED BY HIS AUNT FOR HAVING DAM AGED A FARMHOUSE25 author: H u Shih-pi

This appears to be a follow-up instruction to a young man who has been accused by his aunt of improper and destructive behavior. The day before this piece was written H u Shih-pi had apparently issued a preliminary decision accompanied by some oralinjunctions aimed atsooth­ ing the offended aunt and causing the offensive young man to behave himself. It would appear that H u ’ s initial effort did not fully satisfy the aunt (or possibly was scorned by the defendant), for H u finds itneces­ sary to repeat his suggestion that the man apologize to his aunt. Such apologies, as they are suggested by officials in Ch/ing-ming chi cases, were public affairs, to be witnessed by neighbors, relatives, and others. We should note that H u does not inflictother punishments on the defen­ dant despite the fact that he was abusive to a senior relative.

Uncles and Nephews

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The woman Liu, the aunt of Feng Ch， ien-shih-i 奉千十一 [“Thousand-eleven， ， ]，deserves the same respect from him as would his own mother. Now because of him she did not hesitate to come a distance of several hundred li to accuse him in a lawsuit. She must have a com­ pelling reason for doing so. If a nephew causes an aunt to go to that much trouble, how could he not know that he has much of which to be ashamed? My written decision of yesterday and the subsequent oral instruc­ tion were aimed at keeping intact the cordial relationships between the family of the uncle, the family of the nephew, and the cousins. My intentions were to be as kind as possible. Anyone with a human heart should have responded to them by reforming himself. However, the acts of which the woman Liu accused Feng Ch’ienshih-i, such as damaging the farm house and some other matters, probably occurred. Now, in order to relieve the anger of his aunt and to restore the happiness between cousins,26will he not admit his faults and apologize to her? Thus he could put aside the past and look forward to the future. Otherwise, because “there is no lim it to female virtue and no end to female resentment, the lawsuits will not cease. People like Liu Ssu-shih-wu 劉 四 十 五 [“Forty-five”], P’eng Kueishih 彭 鬼 師 [“Witchcraft master”]，and the like are evil people with whom one should not have dealings. They stick together the whole day, talking about illicit matters. Inevitably bad results follow. From now on，if this sort of people are kept away then no more quarrels should occur among the kinsmen. This written note is issued to Feng Ch’ien-shih-i. The district is directed to investigate Liu Ssu-shih-wu and P， eng Kuei-shih to see if they have committed recent or past offenses. If they have been the so-called “robbers of the state and injurers of the people， ” they should be arrested and sent under escort to this office.

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Human Relationships UNCLE AND N EPH EW IN A PROPERTY DISPUTE TO LISTEN TO INSTRUCTION AT THE SCHOOL27 author: H u Shih-pi

In this brief piece we have another example of H u Shih-pi’ s penchant for seeking mediation in cases involving close relatives when no serious crimes or property disputes lie at the heart of the matter. We do not learn what had happened between an uncle and nephew, only that they were estranged, that one of them had brought suit (probably the uncle or H u would have chastised the nephew for ignoring status rules), and that H u isordering the two men to submit themselves to the mediating influence of mutual friends. W e should take note of the fact that the people involved are members ofthe literaticlass. Officialswere at some pains not to harm the reputation of this group by airing unsavory dis­ putes in court.

Confucius said, “In hearing litigations, I am the same as anyone else. What is necessary^ however, is to cause the people to ,have no litig a tio n s.， ， 28With my feeble virtue and limited reputation I have been incapable of demonstrating moral influence or of setting an example for the lifestyle of scholars. As a result perversity, disputes, aggressions, and offenses regularly appear among our scholars. I feel deeply ashamed before the men of old. “If there is a wrong it should be deal with severely; if there is a beating, it should be recorded.” My fear is precisely that something may happen now after which I could not refrain from taking action. However, these friends may be able to promote the meaning of friend­ ship by calling for good deeds, by inspiring the conscience, and by restoring the feelings between an uncle and a nephew. Is this not why I place my hopes with the scholars at the school? The written instruction is given to you, Chou Te*ch’eng 周德成， the uncle, and to your nephew. I expect you from this day on to listen respectfully to the teaching and admonitions of these friends and to restore the uncle-nephew relationship as it was in the beginning. If you should fail to reform then I， as the one charged with your integrity, will have no option but to resort to punishment for the sake ofeducation.

Kinship Groups

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Kinship Groups RICH M EM BER HUM ILIATING A POOR KINSHIP GROUP HEAD29 author: Ts， a i Chiu-hsiian

The specificincident that liesbehind this report seems to have involved a richyoung man abusing a poor older relative, apparently among other things by usurping his irrigation rights. Ts， ai Chiu-hsiian is incensed enough at this violation of appropriate etiquette against both an older person and a relative to order the rich young man beaten; he treats the rich man leniently, or so he says, in order not to damage the dignity of scholars. '

I，the commissioner, with concurrent official responsibility for ag­ ricultural promotion and waterway affairs, should of course make decisions on irrigation [my primary responsibility]. However, I feel that the elucidation of punitive measures in support of moral educa­ tion is of foremost concern and that proper status relationships are particularly urgent matters. Fan K’uan 范寬 used his wealth to maltreat his kinship uncle30 who happened to be poor and helpless. Fan K’uan often excused him­ self [from behaving in an appropriate way towards his cousin] on the grounds that the relationship between them was a remote one beyond the mourning circle. If such an excuse were valid, could one then humiliate any elderly and senior kinship member who was not within one’s mourning circle? A young man, born in a later generation, he may not understand the meaning of kinship and the relationship of flesh and blood. Al­ though he is liable for punishment, I do take into consideration his ability to study and do not wish to damage his dignity as a scholar. He shall be escorted to the notary office with the request that Mr. Wu, concurrently the administrative assistant, beat him twenty times with a stick, as a warning to those who are wealthy yet mistreat elders in their kinship groups.

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The district is further directed to enforce the order strictly that none of the wealthy and powerful are to be permitted to usurp the benefits of irrigation to the distress of the common people. Fan Ch’i31 范啓 shall as a special case be exempt from further investigation. Those involved in the plaint shall be released.

ACCUSATION OF A THEFT BY A KINSMAN32 author: Fang C h， iu-yai

Apparently we have here a case of a theft of minor items involving cousins. The victim of the theft apparently conducted a search for the missing items. In the course of this he kept some people bound for several days. Fang Ch ，iu-yai isdistressed that an affairbetween people who are members of the literate elite ever reached his court. He feels that the victim of the theft behaved in an excessively harsh manner. He orders him dismissed from the register of the local school.

Lo Pai-yu， s 駱伯友 plaint concerning losses involved nothing more than tin bottles and cloth bags. After a search among the kinship group [the culprit] was found to be a fourth or fifth degree (kung-ssu 功緦）member within the mourning group. In ancient times a man who had been robbed said [to the robber] “Fortunately because it is the middle of the night no one knows about this. If I were to arrest you then you would bear the epithet of thief for the rest of your life. I cannot bear to let that happen.” This man in ancient times was this magnanimous to a stranger. How much more should this be true of an incident that occurred between an uncle and a nephew?33Both are descendants of the same great grandfather. This case involved several other persons who were kept bound by ropes for several days.34 A scholar should not act in such a way. The school officer is directed to dismiss Lo Pai-yu from the student register. All the others are to be released.

Community

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Community PERSUADING NEIGHBORS TO SETTLE DISPUTES IN HARM ONY35 author: H u Shih-pi

This case reveals a typical attempt to mix exhortation, written pledges ofgood behavior, and exemplary punishment in an attempt to get people to modify their behavior. Two farming families become involved in a suit during the farming season. H u Shih-pi orders punishment for the unrelated man he sees as the provoker of the trouble, pledges of good behavior from the two families involved, and uses this ruling as an opportunity to write an extended exhortation concerning the crucial importance of harmony among neighbors. Given his purpose here, to exhort ordinary people to change their behaviors, H u writes this piece in easily understood colloquial Chinese.

Generally， community and neighborhood must get along in harmony. Only when there is harmony can those who have lend to those in want. Only when there is harmony can they aid one another in emer­ gencies. Only when there is harmony can they assist one another in sickness. The benefits are mutual. When there is no harmony, no longer will there be lending back and forth, aid in emergencies, or assistance during illness. Both sides will suffer injury. Few people in the world today understand this principle. Most of them merely compete to get ahead in the short run without considering long-term advantages or disadvantages. If there is the slightest quarrel, they want to go to court， without considering what this will do to the community. Moreover, it should be asked, what can possibly be gained by going to court. One has travel expenses, neglects his vocation, acts deferentially toward the office personnel, pays money or goods, receives an awesome shock from being faced with the officials presiding over the court, and suffers beatings or chaining. Whether or not one wins the case depends upon what the official writes. Who can be certain of

Human Relationships this? Even if one wins this time, the grievance will beget more griev­ ances. When will they ever end? As a person living in this world, how can you be certain that no adversity will ever befall you? If you ordinarily are on good terms with the people in your community, they will of course give help and protection. Potentially major problems will become small. But if you are on bad terms with your neighbors, they will find fault and pick fights， creating storms and stress. Then something small may become a major problem. This being so, today’s victory may lead to a great defeat in the future. In my home community I have often taught people with these words. People all agreed that my remarks were exactly on the mark. Now I am temporarily serving at this post. Every day I receive many plaints and accusations. Often they started as verbal quarrels and developed into lawsuits. The plaints initially sound very awesome and yet when testimony is taken it reveals that many of the supposed events did not really happen. This is because the sort of people [who bring suit] neither mind their own business nor do they understand righteous principles. They are men who only focus on who is stronger and who is weaker. I deeply dislike them. I am about to punish one person in order to warn a hundred others. I have examined the cause of the plaint of T， ang Liu-i 唐六一 [(