This book focuses on the roles of law enforcement and the treatment of criminals in the functioning of traditional Chinese society. More narrowly, it examines the enlistment methods of the enforcers of the law, differences between rural and urban law enforcement, changes in law enforcement over time, and the changing balance between the military and the civil authorities in law enforcement. This study explores law enforcement within the context of Sung society. Professor McKnight describes the group of criminals who were the core of the habitual criminal group in Sung China: young, unskilled, and unattached males, just as they are today. In addition, he looks at the fate of the criminal after capture and conviction, including the various punishments used by the Sung government.
Cambridge Studies in Chinese History, Literature, and Institutions General Editor Denis Twitchett
LAW AND ORDER IN SUNG CHINA
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Donald Holzman Poetry and Politics: The Life and Works ofJuan Chi (A.D. 210-63) C. A. Curwen Taiping Rebel: The Deposition of Li Hsiu-Chang Patricia Buckley Ebrey The Aristocratic Families of Early Imperial China: A Case Study of the Po-ling Ts'ui Family Hilary J. Beattie Land and Lineage in China: A Study of Tung-ch'eng County, Anhwei, in the Ming and Ch'ing Dynasties William T. Graham, Jr 'The Lament for the South': Yii Hsin's At Chiang-nan fu
Hans Bielenstein The Bureaucracy of Han Times Michael J. Godley The Mandarin-Capitalists from Nanyang: Overseas Chinese Enterprise in the Modernisation of China 1893-1911 Charles Backus The Nan-chao Kingdom and T'ang China's Southwestern Frontier A. R. Davis Tao Yiian-ming (A.D. 365-427): His Works and their Meaning Victor H. Mair Tun-huang Popular Narratives Ira E. Kasoff The Thought of Chang Tsai (1020-1077) Ronald C. Egan The Literary Works of Ou-yang Hsiu (1007-1072) Stanley Weinstein Buddhism under the T'ang Robert P. Hymes Statesmen and Gentlemen: the Elite of Fu-Chou, Chang-hsi, in Northern and Southern Sung David McMullen State and Scholars in T'ang China Arthur Waldron The Great Wall of China Hugh R. Clark Community, Trade, and Networks: Southern Fujian Province from the Third to the Thirteenth Century Denis Twitchett The Writing of Official History Under the T'ang J. D. Schmidt Stone Lake: The Poetry of Fan Chengda (1126-1193)
Law and Order in Sung China Brian E. McKnight University of Arizona, Tucson
j | § CAMBRIDGE ;';P UNIVERSITY PRESS
Published by the Press Syndicate of the University of Cambridge The Pitt Building, Trumpington Street, Cambridge CB2 IRP 40 West 20th Street, New York, NY IOOI 1-4211 USA 10 Stamford Road, Oakleigh, Victoria 3166, Australia © Cambridge University Press 1992 First published 1992 Printed in the United States of America Library of Congress Cataloging-in-Publication Data
McKnight, Brian E. Law and order in Sung China / Brian E. McKnight. p.
cm. - (Cambridge studies in Chinese history, literature, and institutions) Includes bibliographical references (p.
) and index.
ISBN 0-521-41121-1 (hardback) 1. Law enforcement - China - History. 2. Corrections - China History. 3. China - History-Sung dynasty, 960-1279. 1. Title. 11. Series. HV8260.A2M35 1992 91 -34373 363.2*0951'09021-dc2o CIP A catalog record for this book is available from the British Library. ISNB 0-521 -41121 -1 hardback
Contents
List of figures, maps, and tables Preface
ix
List of abbreviations
4
7
vi
xiv
i Introduction i 2 The historical context 34 3 Crimes and criminals 67 Informal and semiformal agencies of law enforcement 5 Formal civil agencies of law enforcement 147
6 The role of the military in law enforcement 191 Supervision of law enforcement - the role of the intendants 8 Personnel selection 251 9 Urban crime and urban security 283 10 The Sung penal system 321 11 Jails and jailers in the Sung 353 12 Penal registration 385 13 The death penalty 446 14 Modifications of penalties 472 15 Conclusion 507 Glossary
524
Bib liography Index
533
548
117
228
Figures, maps, and tables
Figures
9.2
2.1 Mourning chart 54 2.2 Sung local administrative structure 64 5.1 Chart to be used in preparing inquest reports 156 5.2 Archery practice 182 5.3 Weapons 185 9.1 Kaifeng about 1021: schematic arrangement 295 Command structure in Kaifeng after the mid-eleventh century 10.1 Judicial torture 338 10.2 Judicial torture 339 10.3 Prison instruments 342 10.4 Wearing the cangue 344 11.1 Chinese jail 354 11.2 Tiptoe cell 360 13.1 Beheading 448 13.2 Beheading 449 13.3 Strangulation 450 13.4 Death by slicing 451
298
Maps 2.1 Sung, Liao, Hsi Hsia, and Koryo borders in the eleventh century 39 2.2 The Southern Sung state and its neighbors by the mid-twelfth century 43 9.1 Plan of Hangchow (Lin-an) 313 12.1 "Distant evil" prefectures 410 12.2 Sramana Island 411 12.3 Sung circuits 432-33 12.4 Transfers of amnestied convicts 434-35 14.1 Early expansion of the heavy-penalty jurisdictions 476
vi
Figures, maps, and tables
Tables
12.1
2.1 Types of Sung laws 62 3.1 Numbers of penal rules 68 3.2 Numbers of bandits reported 113 5.1 Sample reward information 169 5.2 Numbers of archers in selected districts 173 6.1 Numbers of soldiers in selected districts 221 10.1 Sung fetters 348 11.1 Numbers of prisoners and of deaths from disease 373 Sample figures for prison citadel troops and other military units 12.2 Remuneration of soldiers in provincial army units 443 13.1 Numbers of persons sentenced to death 466-67
vn
397
Preface
All human associations face some problems of deviance and must respond when they feel threatened. When looking at the responses of any human group, we can see commonalities, people doing things in the same way for the same reasons. As the focus of inquiry narrows, the shared traits of the broader levels are retained, but in addition other characteristics appear that are specific to the level of inquiry. For example, all known societies abhor murder, but what sorts of homicides do they classify as murder? Such differences affect not just the definitions of crimes but also the law-enforcement responses. The law-enforcement systems of all formally organized states share some traits that we cannot find in simple societies. And preindustrial agrarian bureaucratically organized states, like traditional China and the Byzantine Empire, again share some law-enforcement problems and responses to problems peculiar to states of their type. In moving down through this nested hierarchy of organizational types, we reach one of the key steps at a level where the social units are distinct as unique cultural and political entities. What was peculiarly Byzantine, or peculiarly Chinese, about the perception of law-enforcement problems and responses and about the ways in which lawbreakers were treated? These attributes, which distinguish one such political entity from another, are simply parts of our definition of what it is to be Chinese or Byzantine or Roman. Such defining attributes evolve over time. The Chinese language has changed from the time of the Shang dynasty to today. However, the changes in these fundamental attributes are evolutionary, not revolutionary. Despite the ways in which it has changed, the Chinese language has remained the Chinese language. On this level of cultural distinctiveness, the direction of inquiry may change. Instead of looking synchronically across a set of distinct states, we can look at the ways in which the institutions, beliefs, and practices of a single society evolved over time. The practices and beliefs of the ix
Preface Chinese altered in a variety of ways across the centuries. When studying Chinese beliefs and institutions, historians have often divided their materials according to the succession of major dynasties. Although this approach has serious drawbacks as a framework for examining such areas as economic or intellectual history, it remains useful in the study of politically determined matters, matters decided at least in part by the government. For this reason, studies of politically shaped institutions can profitably concentrate on single dynasties. The Sung dynasty (9601279), because of its pivotal position in the evolution of early modern Chinese institutions and because of the wealth of available nonofficial sources, is a particularly important and attractive period for study. Sung history has already attracted the attention of scholars, who have focused especially on socioeconomic developments, philosophical changes, and the arts. Relatively little work has been done on the legal and law-enforcement systems, though these systems clearly affected other facets of Sung life. A thorough analysis of Sung law-enforcement and penal systems would find traits from all these different levels of responses to deviance, some common to all human societies, some to all states, some to all traditional bureaucratically organized agrarian empires, and so on. To isolate the different levels, however, and to describe points of similarity and difference, we would need a host of studies on similar topics, not only for other periods in Chinese history, but also for other societies. At our present stage of inquiry, an effort like this can thus only be a preliminary exploration. Despite their obvious importance to the working of society, law enforcement and penal policies have been relatively little studied in China. Rather, most of the research on legal matters has concentrated on analysis of legal codes. Such studies are important as foundations for further work, but they deal at best only with normative situations and have little to say about actual historical experience. Perhaps because of the underdeveloped state of the field, some of these studies also tend to generalize about social phenomena in misleading ways, glossing over significant differences among different historical periods. Scholars who write on Chinese history often speak about the "Confucian attitude toward law" or even the "Chinese attitude toward law," as if there were a shared view of law held by all Confucians or even all Chinese. Surely this is not the case. Attitudes toward law differed within Chinese society from social group to social group and within a single social group from individual to individual. Furthermore, these attitudes changed over time. The most we can say is that at any one time the members of a given social group might have shared a number of core values, a worldview, and ways of acting, but even then such sharing could never have been
Preface
complete between any two individuals, nor could their views on the relevance of those values to specific legal cases have been identical. Such sharing should probably be thought of as a standard distribution with a modal commitment to a given position, but with members of the group distributed around that modal point. A further problem in studies of Chinese law has been a tendency to treat attitudes toward law as if they were simply parts of a more general intellectual position, as if they existed without having reference to realworld situations. Again, for most of the Sung individuals whose writings are left to us, this clearly was not so. If we were to identify one characteristic shared by almost all writers whose works are extant, it would be that they were actively concerned about and participated in the political as well as the intellectual debates and actions of their time. Like Marcus Aurelius or Cicero, they were deeply involved in governance and theorized in terms of their commitment to politics. Because they were involved with the practical questions of their times, even when they wrote what appear on the surface to be abstract discussions, they were in reality discussing current or foreseen worldly problems. Abstract ideas were used to give coherence and order to their understanding of real-life data, but these data in turn shaped the actual understanding of these abstract ideas by burdening them with content. This interrelationship between abstract ideas and real-life situations is true to some degree for all societies, but it was especially important in a society that was culturally resistant to a theory-praxis distinction. In this study, the problem represented by changes in ideas and practices over time has been reduced by focusing on a single era, the Sung dynasty. In providing both analyses of the abstract conceptions underlying one large area of law, and descriptions of some of the institutions used to enforce the laws, I have attempted, where possible, to highlight the real-world referents that were the (often unarticulated) backdrop against which men set forth their more abstract discussions of right and wrong and their suggestions on how to deal with problems of deviance and disorder. I have concentrated on crime and its punishment. The study of crime and criminals emphasizes some key aspects of attitudes toward more general questions of deviance and correctness; the study of the police and penal systems illustrates both attitudes toward the meaning and role of punishments and the types of practical constraints that helped shape Sung responses to deviance. Because this is the first attempt to deal at length with the problems of law enforcement and penal policy in the Sung dynasty, it necessarily cannot be a comprehensive study. In analyzing law-enforcement institutions I have chosen the most important agencies. At one time or another xi
Preface and in one place or another, literally dozens of different kinds of officials were involved in law enforcement. I will deal here principally with the three most important formal offices in the police system - the (civilian) district sheriff (hsien-wei), the (military) patroling inspector (hsun-chien), and the judicial intendant (t'i tien hsing-yii shih) (a civilian post, though it was at times filled by military officers). It has been necessary also to limit the kinds of crimes and criminals examined in any detail. Some problems, such as the wrongdoings of bureaucratic functionaries, are so important, so complex in their effects, and so interrelated with political and economic questions that they deserve a book of their own. Here they can be touched on only briefly. Furthermore, many of the topics in the chapter on crime and criminals deserve more extended treatment than they receive in this book. For the most part, like James Q. Wilson and Richard Herrnstein, in their important book Crime and Human Nature^ I have focused on those crimes, such as murder, robbery, rape, and violent assault, which are seen as crimes in all known societies (though I have also briefly described a few types of acts, like gambling, which are not universally seen as criminal). I have also generally avoided any extended discussion of the trial process in Sung China, except where information is needed to make the main topics of this work understandable, as there is already a competent if brief survey of the Sung trial system available in English.2 In short, my object here is both to portray as clearly as possible the general patterns of law enforcement and penal policy characteristic of the Sung period and the ways in which they changed (and the ways in which they did not), and insofar as it is possible at this early stage of studying these phenomena, to reveal their ideological foundations and the interactions of these ideological factors with political, social, and economic conditions in determining the shape and functioning of these systems. I am asking who the criminals were, what sorts of acts they are said to have committed, why (in the opinion of Sung writers) people violated the laws, and how the people and the government of the Sung reacted to their deviant behavior. 1 James Q. Wilson and Richard Herrnstein, Crime and Human Nature (New York: Simon & Schuster, 1985). 2 Ichisada Miyazaki, "The Administration of Justice During the Sung Dynasty," in Jerome Alan Cohen, R. Randle Edwards, and Fu-mei Chang Chen, eds., Essays on China's Legal Tradition (Princeton, NJ: Princeton University Press, 1980), pp. 56-76. This essay is a development of Miyazaki's longer article, "So-Gen jidai no hosei to saidan kiko" (Law and judicial system in the Sung-Yuan period), Toho Gakuho 24 (1954): 115-225. Other aspects of the Sung trial system are also described in a series of articles by the late Hsu Dau-lin, published under the title Chung-kuo fa-chih shih lun-chi (Taipei: Chih-wen ch'u-pan she, 1975).
xii
Preface I have tried to make this book accessible to people whose primary area of interest is not Sung history or even Chinese history. For this reason, when describing the locations of events, I have used the names of the modern Chinese provinces when these provinces' boundaries approximate the boundaries of Sung circuits (as in the case of Fukien) or in cases in which a province can serve as a sufficient indication of the general location, even though during the Sung period the region was divided into several circuits (as in Szechuan). In these cases I have followed the postal spelling system. To make the book more useful to students I have also, in most cases, adopted the translations of Chinese official titles listed in Charles Hucker's A Dictionary of Chinese Officials' Titles in Imperial China?
As in any work of this sort, I am indebted in innumerable ways to the scholars and writers of the past and, as the footnotes make clear, to a number of modern Chinese, Japanese, and Western students of Chinese history. I am indebted to Professor Robert Hartwell for giving me price lists that make it possible to provide at least a rough picture of the practical meaning of rewards offered or salaries paid. The use of such prices in a historical study is fraught with potential problems, and I alone am responsible if they are misleading. Other colleagues have sent me suggestions and information, but I am particularly grateful to those who have been kind enough to read the manuscript in whole or in part and give me their suggestions and criticisms. I wish especially to thank Professors Roger Ames, Harry Ball, Herbert Franke, Kenneth Kipnis, James T. C. Liu, and Winston Lo, Drs. Charles Benn and Richard Vuylsteke, and Mr. Lewis Mayo for their advice and counsel. 3 Charles Hucker, A Dictionary of Official Titles in Imperial China (Stanford, CA: Stanford
University Press, 1985).
Xlll
Abbreviations
CHTK CYKC HCP
HNYL
SHT SHY
SKCS SKCSCP SPPY SPTK
ss STCLC
SYTFCTS TFSL TITC TLSI TSCC WHTK WTHY
Chou-hsien Vi-kang Che-yii kuei-chien Hsu tzu-chih t'ung-chien ch'ang-pien Chien-yen i-lai hsi-nienyao-lu Sung hsing-t'ung Sung hui-yao chi-kao Ssu-k 'u ch 'iian-shu Ssu-k }u ch 'uan-shu chen-pen Ssu-pu pei-yao Ssu-pu ts'ung-k'an Sung shih Sung ta-chao ling-chi Sung-Yuan ti-fang chih ts'ung-shu Ch'ing-yuan t'iao-fa shih-lei Tso-i tzu-chen T'ang-lu shu-i Ts'ung-shu chi-ch'eng Wen-hsien t'ung-k'ao Wu-tai hui-yao
XIV
1 Introduction
Politics and law This book is about social control. More specifically, it is about certain law-enforcement and penal institutions, practices, and policies used by the Chinese of Sung times to support the social order. It describes these institutions, practices, and policies during the Sung dynasty. It also tries to illuminate some of the ways in which they were shaped by the ideas and attitudes of the ruling elite, the fiscal situation of the state, the nature of the economy, political realities, local geography, bureaucratic skills, and technology. It seeks to show what functions these institutions, policies, and practices played in Sung society and why they were needed. The topic also illuminates, incidentally, the character of the traditional Chinese state. Western thinkers on the origins and continuation of states are divided into two opposing camps. One tradition stresses the integrative nature of the state. From Plato and Aristotle to English writers of the eighteenth century to some modern sociologists like Talcott Parsons, these thinkers have emphasized the origins and continuing role of the state as a positive integrative system. Such thinkers tend to view stability and order as normal, with conflict an abnormal distortion of the natural order. The other tradition, more specifically modern, from Hobbes to Marx to some modern anthropologists like Maurice Freedman, sees the state as a system born out of violence and coercion. For such thinkers the state is created from conflict and continues as a mechanism by which the majority is subjected to external control through fear or force. These opposing lines of thinking are deeply embedded in the Western tradition. The central tradition of Chinese culture - with its belief in a world of complementarity rather than contradictory opposites, a world in which change defines stability and stability defines change, a world in which integration is the organically interrelated counterpart of dis1
Law and order in Sung China integration, and cooperation is not conceivable without conflict or conflict without cooperation - is a much more realistic vision of the human world as it is and has been. This traditional Chinese view of the world, in which the appearance of disorder and conflict are embedded in a higher level of integration, made possible a measured response to disorder that could legitimately be modified to accord with current conditions. Law-enforcement and penal institutions are surely quintessential instruments and symptoms of conflict in society, but as we shall see, the Sung Chinese envisioned and constructed law-enforcement agencies in ways which fostered the integration of disparate elements of society. Furthermore, Sung Chinese penal systems, while embodying the state's power to outcast wrongdoers from normal society, also were designed to allow and encourage the reintegration of the reformed into ongoing community life. People who break widely shared social norms threaten the common good, but they are still people. The problem is not simply how to stop their abuses but also how to save them from themselves. The Sung Chinese reaction to the threat of disorder posed by those who violated important social norms was conditioned by the interaction of their beliefs about the nature of people, the level of managerial and physical technology, the state of economic development, the collective perception of the lessons of the past and the character of the present, and their control over resources. Ideology, finances, and technology interacted to create a constellation of institutions and practices designed to preserve the social order and the political power of the ruling group. Some of these institutions and practices were educational, having as their aim the inculcation of "proper" views and patterns of behavior. Some were legal, in that they were concerned with determining the boundaries of permissible behavior and the appropriate treatment of those who promoted disorder by going beyond those boundaries. The ways in which a society deals with its deviants reflect both fundamental intellectual commitments and the historical situation. We cannot adequately understand the traditional Chinese view of their place in the world or the evolution of their society without understanding how those deviants who violated laws were controlled through the organized use of force. Relatively little has been written on this problem for traditional China. Some reasons for the paucity of studies are clear. In part it mirrors and perpetuates the tendency of the traditional Chinese elite to ignore or minimize the importance of law and the police power in society. The self-justification and self-image of the elite in traditional China stressed their moral superiority over the common people. They systematically downplayed the importance of the formal judicial system
Introduction
and law enforcement. They were remarkably successful in disguising the degree to which law and force governed Chinese society in times past. As a result, among ordinary Chinese today and even among scholars concerned with China, there is a widespread misunderstanding of the importance of the judicial system in premodern China. This misapprehension can be overcome by the work of legal scholars, but so little has been done that for the moment we need to explore limited periods and special topics within the Chinese tradition in preparation for the more general works which will make possible a more balanced understanding of the patterns of the Chinese past. The Sung dynasty makes a particularly attractive starting point in studying how the premodern Chinese dealt with these problems. Because printing became widespread in the Sung period, a larger quantity and greater variety of sources have survived from this period than from earlier eras. In particular, we have more and larger sets of the collected papers of individuals, more collected government documents, and more detailed annalistic histories based largely on government archives. Furthermore, a study of Sung institutions provides a benchmark for examining the institutions of later dynasties. In some ways the Sung was very different from later times. In others, the Sung experience helped shape late imperial institutions, the institutions that existed when the Chinese empire came into conflict with the Western powers in the nineteenth century. An exploration of Sung sources can illuminate not only the particularities of the Sung experience but also the more general problems that plagued succeeding Chinese dynasties. In one sense the problems of lawbreaking faced by the Sung Chinese were universal problems, and the Sung responses therefore share certain basic characteristics with law-enforcement and penal strategies used elsewhere. We shall be concerned with the ways in which the specific responses of the Sung Chinese show how answers to universal problems are idiosyncratically shaped by a society's particular constellation of means and goals. Some usages may seem hauntingly familiar because they are used in our own culture. Others are distinctively Chinese, not in the sense that they are unknown elsewhere, but that they are grounded in commitments that were common to the Chinese elite under the empire. Still other usages are especially characteristic of Sung people. An examination of the Sung Chinese experience can be of value as an example of a specific response to general problems. All societies in all times and all places face problems of disorder. The view that order in society is normal and disorder abnormal is fundamentally naive. Order implies stability, but in society, as in nature, the world is constantly in flux. People have to work very hard to create a recognition of a social
Law and order in Sung China
order that persists through time. Furthermore, at any given moment in any given social system, the sharing of values, worldviews, and ways of acting is never complete. The human problem is to create and recreate, moment by moment, a sense of continuity and of a shared life sufficiently convincing that social organization becomes possible. The idea of social order is an indispensable collective creation, but the idea, though indispensable, always and everywhere corresponds only in an imperfect way to real life. "Society," whether in China or elsewhere, is in reality an aggregation of discrete individuals experiencing a sequence of unique and unrepeatable moments. People have to learn to see enough continuity in this flux to enable ongoing social organization. One key to the successful creation of a sufficiently compelling vision of order in society is the adequate education of newcomers, whether infants or significant outsiders. Education in turn is dependent on communication. Each individual new to the social group must be schooled in its patterns of communication, verbal and nonverbal. More than this, each individual must be imbued with sets of ideas, attitudes, beliefs, feelings that will make possible ongoing if ever faulty communication. To live together we must be socialized. People learn patterns of behavior at the primary level that enable them to function reasonably well beyond the family. An appreciation of this is one of the hallmarks of the early Confucians and was a widely held belief among later members of the Chinese ruling elite. Later Confucian statesmen thought in terms of "educational transformation" (chiao-hua), which meant for them the molding of people through the power of example and exhortation into patterns of behavior more like those advocated by the elite. One prime element in this belief was the conception that people mirror authoritative exemplars and can learn proper behavior within the family by observing others. If a person has learned the appropriate patterns of behavior in a primary-level setting, he or she can then extrapolate the learned patterns to other people who are filling roles in some sense analogous to the roles first encountered in the home. A disciple of Confucius in the fourth century B.C. stated: It is rare for a man whose character is such that he is good as a son and obedient as a young man to have the inclination to transgress against his superiors; it is unheard of for one who has no such inclination to be inclined to start a rebellion. The gentleman devotes his efforts to the roots, for once the roots are established, the Way will grow therefrom. Being good as a son and obedient as a young man is, perhaps, the root of a man's character.1 1 Confucius, The Analects, trans. D. C. Lau (New York: Viking Penguin, 1979), p. 59. 4
Introduction
Socialization is absolutely necessary, but it never succeeds in making one individual like another. Because communication is always imperfect, because each particular is unique, and because each time and place is different, teaching and socialization are always imperfect and incomplete. Although the majority of the members of a given social system may be in general agreement on some norms, it is important to remember that such agreement is never total between any two individuals. By definition, individuals differ. Even when they share a given value, worldview, or way of acting, individuals will weight it differently and see it differently reflected in the affairs of everyday life. The differences may be, in a given instance, too small to affect a decision, but they nonetheless are there. More than this, a society of any size is composed of subgroups whose members share certain values, attitudes, ideas, feelings, and patterns of behavior which are not shared equally by outsiders. Like individuals, subgroups not only differ in values, views, and behaviors but also weight differently those that they do share with the larger society. The law, in China as elsewhere, is able to function because individuals are able to place their own views and the views of the subgroups to which they belong in a hierarchy and to subordinate inevitable differences in nuance or detail on specific subjects to higher levels of broad agreement. Despite their unavoidable disagreements in detail, juries continue to bring in verdicts of guilty or not guilty, and magistrates agree on judgments. When people say a society continues, they mean that the imperfections of communication, failures of socialization, and the resulting conflicts are insufficient to destroy the basic ground of agreements among a sufficiently large number of aggregated individuals. In real life there is much miscommunication and failed teaching. The order created and recreated by endless labor always threatens to break down in the face of the failures in socialization and the incommensurable aims of social subgroups. Forces of disintegration and disorder lurk behind the facade of stability. Individuals and groups repeatedly violate norms that are widely shared within society. Worse, some important and widely shared norms, under some conditions, are in practice incompatible with other widely shared norms. The problems are particularly acute when external conditions such as warfare or economic dislocations put unusual strains on the social order. The Confucians recognized this from the beginnings of their tradition, but it was stated with special clarity by the philosopher Mencius (372289). After discoursing on the importance of government policies that support a healthy economy, he remarked that if these policies were followed,
Law and order in Sung China
when the people have more grain, more fish and turtles than they can eat, and more timber than they can use, then in the support of their parents when alive and in the mourning of them when dead, they will be able to have no regrets over anything left undone. This is the first step along the kingly way. 2
Basic beliefs Mencius, and indeed most thinkers in traditional China, believed in the immanence of order in the world. Correct behavior was behavior consonant with this immanent order. Man's uniqueness consisted of his ability to be consciously participatory and creative in his responses to this immanent order. Man makes himself: Only man is fundamentally a creature of art rather than instinct. His ability to create appropriate behavior by performance (/fa) is not, of course, unlimited. 3 The immanent order sets boundaries to appropriate responses, though within these boundaries men can respond in somewhat different ways. "Normal" people usually respond within the boundaries; deviance is going beyond them. For some behaviors the law, fa, defines the boundaries, and the punishments, hsing* state the potential cost to the individual of exceeding them. But we should not overstate the distinction between these two concepts of law and punishment. In Chinese the word fa, which is often translated as "law," also means "model," a word that implies boundaries and edges, and the word hsing* which is usually translated as "penalties," is in many classical contexts interchangeable with another word, hsing,h which means "form," "model," or, as a verb, "to shape." The Chinese, like other peoples, have created the boundaries in law through legislation, indicated what particular acts fall within the boundaries through adjudication, and attempted to coerce people to staying in bounds by means of punishments. In China the behavior of those whose acts accorded with what was orderly was cheng - "orderly," "straight," "correct." The behavior of those whose acts did not accord with what was orderly was hsieh - "not correct," "deviant." The state of the world was determined by people's behavior, either correct or deviant. An emphasis on the importance of not being hsieh, "deviant," can be traced to Confucius, who quotes a line from the Book of Poetry to emphasize the fundamental need not to go astray and to keep to the correct path. 4 The degree of disorder intro2 D. C. Lau, trans., Mencius (Baltimore: Penguin Books, 1970), p. 51. 3 For this insightful understanding of the relationship of men and /i, a I am indebted to Roger Ames and David L. Hall, Thinking Through Confucius (Albany: State University of New York Press, 1987). 4 This line from the Book of Poetry, ssu wu hsieh, is translated in radically different ways, but in all cases the word hsieh itself is not so problematical. It implies leaving or deviating
Introduction
duced by deviant behavior varied with both the importance of the deviant individual within the social system and the seriousness of the misbehavior. According to this view, the misdeeds of the emperor, even relatively minor ones, might have serious repercussions, whereas misdeeds by an ordinary man, though not unimportant, would hardly have the same impact on the world. Given the Chinese view of the importance of role modeling in the teaching of behavior, and the key place played by authority figures in setting standards by the proper performance of their duties, it is hardly surprising that so much attention was paid to the moral weight of imperial acts. The Classical Confucian thinkers differed in their views on how people knew and why they observed or violated the boundaries of appropriate behavior. For the Mencian tradition the roots of such knowledge and the tendency to behave well were innate but could be obscured. For the tradition of the last of the great Classical Confucian thinkers, Hsiin-tzu (fl. 298-238), such knowledge was not innate, and people by nature tended toward evil, but the knowledge of the boundaries could be learned, and the commitment to stay within them could be instilled. For Han (and most later) Confucians, people by nature possessed the potential for recognizing and observing these boundaries, but also the potential for violating them. This conception of a mixed human nature, containing the capacity for both proper and improper behavior, was widely accepted by members of the Sung elite. It was expressed most coherently by the philosopher Chu Hsi (1130-1200), who was in part repeating widely shared views when he described people as being composed in part of principle (lih) - by definition the regularity that constituted continuity in the immanent order of the universe - and in part of what we might call material force (ch'i), which varied in its purity. 5 Because people's actions were affected by their material force and because some people's material force was less clear than the material force of others, the level of ethical behavior varied. 6 When looking at the problems of deviance and disorder, Sung from the correct path. See Confucius, The Analects, p. 63; James Legge, trans., The Analects (Hong Kong: Hong Kong University Press, i960), The Chinese Classics, vol. 1, p. 146; James Legge, trans., The She King or Book of Poetry (Hong Kong: Hong Kong University Press, i960), The Chinese Classics, vol. 4, p. 613. 5 The appropriate translation for ch'i is a much debated question. In a recent collection of writings on the philosophy on Chu Hsi, the editors have chosen to offer their readers a menu of possibilities - material force, ether, vital force, breath. See Wing Tsit-chan, Chu Hsi and Neo-Confucianism (Honolulu: University of Hawaii Press, 1986), p. 618. 6 These conceptions are reflected in various works by Chu Hsi but are perhaps most clearly accessible in the records of his conversations with disciples that were gathered together under the title Chu-tzu yu-lei. See Chu Hsi, Chu-tzu yu'-lei (Taipei: Wen-lu ch'u-pan she, 1986).
Law and order in Sung China
Confucians accepted the validity of both the internal roots of evil a la Hsiin Tzu and the impact of environment a la Mencius. In either case, appropriate education, which could properly be received only within Chinese culture, was needed to lead people to good behavior. For all these thinkers, an educative process, what we would call socialization, was necessary. Education was an intellectual process in part, but always and more importantly, it was moral. The aim of education was to produce good people. Whether this process uncovered innate goodne°s or inculcated a penchant for behaving properly in creatures that were by nature amoral was not of decisive importance. Preserving the process of education itself was. The learning of good behavior and the reformation of bad behavior were clearly possibilities. Human behavio was voluntary and subject to formation and reformation. People could learn where the boundaries of appropriate behavior were and how to act within them. If they were provided with appropriate models and had placed before them the proper mixture of rewards and penalties, the people could be led toward transformation. The thirteenth-century official Yuan Fu wanted the government to "reward the village officials so that the people will be pleased and will mutually encourage one another, so that customs will gradually be transformed. . . . By rewarding the good, the evil can be made to feel ashamed." 7 Toward those who would learn, the authorities could be forgiving; toward the willfully intransigent, they would be ruthless. Environmental influences For Hsiin Tzu, with his belief that human beings were basically amoral and driven by desires, the problem was how to train them to goodness. The existence of bad behavior was not an intellectual problem. The basically optimistic Mencian view, that people were by nature good, had raised the problem of the origin of evil. Mencius traced evil - the knowing violation of those norms and behavior patterns that were in accord with the roots of human nature - to the influence of the environment. Environmental influences were both short term, embodying people's reactions to their immediate surroundings and problems, and long term, reflecting both long continuing relations with individuals and social systems and continuing physical environmental problems. The short-term problems included such things as the temporary devastation of the economy resulting from warfare or natural disasters, or currently associating with undesirables. Long-term problems included having been 7 Yuan Fu, Meng-chai chi, Ts'ung-shu chi-ch'eng (hereafter cited as TSCQ) ed., 3.33.
8
Introduction
improperly raised from childhood or growing up in an impoverished region. Geography molded character. The Sung Chinese firmly believed that people had regional characters determined by their environment. Thus a Sung official, writing about Ching-hu South Circuit, could say that "the terrain is dangerous and the people hard." 8 Types of lawbreakers In their writings about the problem of current criminal behavior, Sung thinkers began by dividing lawbreakers into types based on their motivations. One group consisted of those who were basically good, in that they had been so socialized that their proclivity for appropriate behavior would ordinarily be dominant. Under normal conditions they would be law-abiding, though they lacked that special intensity of moral commitment which kept the superior person moral in adversity. They might err but would not be evil. In the words of the Southern Sung official and poet Lu Yu, "When the four quarters are without troubles and the autumn grain is like a cloud, who would be a bandit?" 9 In hard times, this line of thought ran, such people could be driven to crime by their will to survive. The second Sung emperor, T'ai-tsung (r. 976-97), speaking to his chief minister in the autumn of 985, observed: "The people are the foundation of the state; the people know food to be their lifeblood. . . . Recently because of natural disasters in Chiang-nan, conditions are terrible. . . . As a result there is the calamity of refugees and bandits." 10 This view was the dominant one among the Sung literati when faced with widespread unrest. Indeed, there are numerous essays by Sung officials that reflect this widely shared belief. In the words of the official Fan Chun (1120-50), the people in years of drought and locusts "flee death and seek for themselves. They pilfer gold and steal provisions. They know no shame. At worst they gather together to do evil. . . . In this way they become bandits. They are compelled by circumstance. Surely they should be soothed and pacified, and their punishments should be minimized." 11 Many others, such as Su Ch'e (1039-1112), Ts'ai Hsiang (d. after 1128), Ch'en Yuan (d. 1145), Li Mi-hsiin (10898 Ts'ai Kan, Ting-chai chi, Ch'ang-chou hsien-che i-shu ti-i chi ed., 2.13b. Sung circuits were units of local supervision, many of which corresponded geographically if not functionally to the provinces of later dynasties. For more about these circuits, see Chapter 2 in this book. 9 Lu Yu, Wei-nan wen-chi, Ssu-pu ts'ung-k'an (hereafter cited as SPTK) ed., 13.11b. 10 Li Tao, Hsu tzu-chih t'ung-chien ch'ang-pien (hereafter cited as HCP) (Taipei: Shih-chieh shu-chu, 1964), 26.3a-b. 11 Fan Chun, Hsiang-ch'i chi, TSCC ed., 15.149.
Law and order in Sung China 1153), P'eng Kuei-nien (1142-1206), and Liu Yuen (1144-1216), also appealed to this common wisdom in suggesting answers to banditry. 12 In times of troubles, the government might even be able to forestall banditry if it dealt expeditiously with these economic roots of unrest. 13 In the Northern Sung, Ch'in Kuan (1049-1100) voiced a traditional refinement to this analysis, saying that "since antiquity, robbers have arisen because floods and droughts had occurred, while the taxes are still fully collected and the labor services vexatious. Therefore the people become robbers." 14 Ch'in Kuan was following a famous tradition. A fellow official speaking in the same vein quoted the T'ang emperor T'aitsung (r. 627-50) - seen by some as a paragon among rulers - as stating that "people become robbers because the taxes are high and the demands for labor services vexatious. Officials are corrupt.... If the people have sufficient food and clothing, they will not be robbers." 15 An almost identical position was taken by Li Kuang (1077-1155), who wrote that the answer to the constant banditry in Ch'ien and Chi prefectures in Chiang-nan West Circuit was simply to send in prefects and district magistrates who would lighten taxes and service burdens. 16 The problem was in part economic. Bad conditions allowed the potential for evil to surface, exposed the results of improper socialization, and drove even basically decent people to commit crimes. However, the impact of such conditions was exacerbated by the inappropriate responses of incumbent officials. Abusive officials could create the preconditions of lawbreaking even in good times. In bad times their jurisdictions were often plagued by serious uprisings. The state was faced with a dilemma: It had to secure resources, but excessive demands would lead to unrest. During the troubles of the 1040s, the official Yii Ching (1000-64) P u t t n e dilemma neatly: "The best policy would be to head off trouble by offering tax relief and by guarding against bandits, but with the current troubles on the border, it clearly will be hard to reduce taxes." 17 To survive, the state needed revenues, but it also needed good administrators, men capable and desirous of balancing the requirements of the government against the 12 Su Ch'e, Luan-ch'eng chi, SPTK ed., 36.12a; Ts'ai Hsiang, Tung-ming chi, Ssu-k'u ch'u'an-
13 14 15 16 17
shu chen-pen (hereafter cited as SKCSCP) ed. 1973, 23.9b-10a; Ch'en Yuan, Mo-t'ang chi, SKCSCP 1972, I4.i9b-22b; Li Mi-hsun, Yun-ch'i chi, SKCSCP ed., g.iobff; P'eng Kuei-nien, Chih-Vang chi, Ssu-k'u ch'uan-shu (hereafter cited as SKCS) ed., n . 137; Liu Yueh, Yun-chuang chi, SKCSCP 1971, 7.15a. Yu Ching, Wu-ch'i chi, SKCSCP ed., tsou-i shang 7b-8a. Ch'in Kuan, Huai-hai chi, SPTK ed., 17.4a. Fan Tsu-yii, Fan-t'ai shih-chi, SKCSCP ed., 22.1 ia. Li Kuang, Chuang-chien chi, SKCSCP ed., 12.17b. Yii Ching, Wu-ch'i chi, tsou-i shang 7b.
10
Introduction
capacity of the people. A stress on the role of bad administration in causing unrest is one of the most common themes in the critical writings of Sung officials.18 To critics who charged that the root problem was an excessively harsh legal system, Fan Chung-yen (989-1052) and Han Ch'i (1008-75) replied that the problem was not that the legal system was too harsh but that the administrators were incompetent. If the administrators were good, then the people would benefit from the legal system. If the administrators were bad, then the people would suffer.19 Individuals driven by want represented many - perhaps most criminals, but not all. There were also those who were by nature recalcitrantly evil. In the words of Wang Chih (1127-89): Bandits arise from three causes - because people are hungry, because people are thoughtless, or because people are evil. Hungry people are seeking to survive. Thoughtless people are seeking riches. Evil people are seeking personal advantage {If). The origins thus emerge from what people are seeking to avoid and from what they want, yet with regard to the ultimate end points of these feelings, some can be reversed and some cannot. The feelings of the hungry can be reversed. The feelings of the thoughtless and evil cannot. Why is this so? Hungry people who become bandits do not have any great desire to do so. They have no way of living, and so thay are willing to face death. It is not that at heart they do not value life and fear to die but that because they are pressed by circumstance, they repress their feelings. They feel that if they are to continue living, they must be willing to die, and so they become bandits. When placed between living and dying, who at such a time, except the pure and upright, will sit quietly and wait to die? Thus when they suffer a year of dearth, they must make shameless plans, attack and pillage. . . . When it is a good year, they again become peaceful.. . . Hungry people are to be pitied rather than hated, to be helped rather than killed, to be grieved over rather than feared. On the other hand, thoughtless people who covet riches have no self-control. They would seek riches from the Buddha and still would not consider them enough. They would seek riches from ghosts and goblins and still would not consider them enough. Therefore they are deluded heterodox people. The Manichaeans are this sort of people. Trouble is born when these thoughtless people seek riches without being sated. The evil people, who seek personal advantage without stopping, are lazy and will not farm. They are crude and will not work as artisans. .. . Therefore they come together ungovernably, with swords, depending on good fortune to grasp tenfold advantage. Such people will not even regret dying if they can gain personal advantage.20 18 Compare Ch'in Kuan, who said that one problem was the overemphasis on using examination graduates. He advocated using the able, including clerks, thereby following the T'ang practice of letting local officials choose their own subordinates and sparing local officials corporal punishment for errors. Ch'in Kuan, Huai-hai chi, 17.5b ff. See also, for example, Wang Shih-p'eng, Mei-ch'i chi, SPTK 2.10b-lib. 19 HCP I 4 i . i 2 b - i 3 b (1043). 20 Wang Chih, Hsueh-shan chi, TSCC ed., 3.25-26. On the Manichaeans in China at this time, see Chapter 3.
11
Law and order in Sung China
The Chinese thus made a clear analytical distinction between those who erred and those who were evil, and they stressed the importance of treating these two types of lawbreakers in different ways: The errant were to be helped; the evil were to be suppressed. Leaders and followers In part, this distinction between the basically good and the basically evil was equated with a distinction between leaders and followers. From very early in the Chinese written tradition, a distinction was drawn between evil leaders who had to be destroyed and followers who might be saved. The mid-eleventh-century official Yii Ching remarked that "since antiquity, when bandits have caused injury, the authorities have always pardoned the followers while strictly punishing the leaders." 21 The Southern Sung official Li Kuang, concerned about the unrest which had followed the invasion of north China by the Jurchen tribesmen who founded the Chin dynasty (i 115-1232), argued for mercy for some and extermination for others. He quoted a widely known passage from the classical Book of Historical Documents:
"When the fire blazes over the ridge of K'uan, the gems burn equally with the stones. . . . I will thus destroy only the chief criminals and will not punish their forced followers." . . . When the Sung founder came to the throne he followed this Way. Therefore his ability to unify the districts and pacify the world stemmed from winning the people's hearts and nothing else. Since the Chien-k'ang period (1125), the men of Chin have oppressed the people, who have lost their livelihoods and have no way to support themselves. The weak die in the ditches; the strong gather together to become bandits. Thus they do not have hearts that hate the ruler or detest the emperor. Their evildoing stems only from their want.22 In practice, the Sung authorities adopted policies that reflected both this belief in the importance of the division between leaders and followers and their belief that in the case of followers in particular, the impetus to wrongdoing was want and suffering. This Sung analysis was admirably summarized by the official Ts'ai K'an, who also articulated the widespread belief among the traditional elite that judicial abuses could upset the balance of the natural order symbolized by the harmonious ethers: I have heard that although the bandit gangs of Kuang-nan West Circuit contain many men, the key evil leaders and those who arose with them are but a handful. The rest are simply coerced followers. How important this is! For these latter 21 Yii Ching, Wu-ch'i chi, tsou-i shang 5a. 12
22 Li Kuang, Chuang-chien chi, 11.12b.
Introduction
are the children of your majesty. They are the stupidly honest and ignorant, oppressed by hunger and cold. Being credulously deluded, they fall in with the bandits. I am concerned that if they should inappropriately suffer injury and death, the harmonious ethers will be harmed. I hope that the Court will inform the bandits capturing officials that if they are wholly able to spare such men's lives their merit will be the greater. It is not necessary to exterminate [them]. 23
Incorrigible wrongdoers Although most men might behave well except when twisted by environmental pressures, there were always some who would violate the social order even under the best conditions. The appropriate response to the first sort of lawbreakers was to alleviate the conditions that had led them to break the laws, to persuade them to change their ways, and to make possible their reintegration into normal society. The appropriate response to the second sort of criminals depended not on persuasion but on control or elimination. Sung officials, like judges everywhere, sometimes came to have a jaundiced view of the nature of many people. In the thirteenth century Yuan Fu remarked that whenever lawsuits were heard, it became abundantly clear that many people loved money and paid no attention to propriety. They were willing to act with force and valued life lightly, breaking the laws and violating principle. 24 For this reason the mechanisms for socialization, for creating order, always had to be accompanied by mechanisms for preventing or punishing deviance.
Political implications It is important also to recognize the political implications of this view of deviance. If moderately good men, many of whom had rather limited opportunities for a proper education, could be driven into doing evil only by the stark demands of survival, then those who behaved improperly when not so driven must be basically flawed. Wrongful behavior among members of the official elite could hardly be excused on the grounds of immediate physical environmental pressures. The bitterness of Sung partisan politics in part reflects the underlying feeling that political opponents, whose views were seen as deviant, were behaving in illicit ways despite the best physical conditions. During the late Northern Sung (960-1126), with its bitter political struggles, the problem of disorder loomed large in the minds of officials. They were especially concerned by what they saw as deviant behavior by 23 Ts'ai K'an, Ting-chai chi, 1.20a.
24 Yuan Fu, Meng-chai chi, 3.32.
13
Law and order in Sung China
members of the official elite. The high positions of such men meant that their misbehavior, which could not be blamed on their personal sufferings, would have serious repercussions on society. As a result, attacks on individuals and on specific policies often contain more general expositions on the interrelationship of ethical orientation and social order. In writing about practical problems, officials phrase their analysis in terms of the general origins of disorder, without needing to describe the violations in detail. Sharing a common culture and a set of values, they did not need to go beyond generalities. The intended audience knew full well who the objects of attack were and the kinds of wrongs implied. In the words of the Northern Sung official Sun Sheng: In the world, good order and disorder stem from the rise and fall of correctness [cheng] and deviance [hsieh] and on the appropriateness of rewards and penalties. If the correct and the deviant are mixed together confusedly, this will give birth to disorder. If right and wrong [shihfei] are not distinguished, then the just Way will be lost.25 It was crucial that those with power establish policies which recognized the distinction between the proper and the deviant, kept them distinct, suppressed the wrong, and practiced the correct. Responses to deviance The general response to social disorder can take four forms - persuasion, prevention, cooptation, and suppression. The persuasive answer consists of and depends on education. In theory at least, most people can be raised and socialized so that they will behave properly under most circumstances. And even if they act improperly, weaning them away from evildoing and back to propriety may depend heavily on their previous training. The classic Chinese teaching tools were rites and music: rites to teach people the proper observance of distinctions in status and condition, and music to demonstrate the commonality that ties all men together as parts of a harmonious whole. The preventive answer involves both attempts to reduce socially destabilizing factors through such measures as famine relief and attempts to make disorderly behavior seem inadvisable, by making it more difficult to commit or by increasing the chances of its being followed by negative sanctions. Cooptation is buying off those committing the infractions. Only when these strategies fail is there need for suppression. The Sung Chinese saw the cooptation strategy as a facet of educa25 HCP 445.9a. 14
Introduction
tional transformation, since they assumed that the wanted men who surrendered in return for promised rewards had in fact been changed, a view that reveals the deep Chinese belief that wrongful behavior was under the voluntary control of the person in question. Thus a bandit chief who surrendered in return for a commission in the army was seen as someone who had "renewed himself" (tzu-hsin), at least until his behavior proved otherwise. Sung Chinese also saw prevention as one aspect of punishment. Prevention through building walls or relieving the distressed was clearly not punitive, but prevention which rested on the deterrent effect of threatened penalties was understood to be part of the punitive side of law enforcement. Sung officials spoke of the general approaches used to control deviance as a combination of transformation - achieved through the appropriate use of rites and music, which was possible as long as the state ensured the minimal livelihoods of the people - and the punitive, which was embodied in penalties. Effective responses to undesirable behavior demanded an appropriate mixture of the two approaches. Justifying a change in current bandit suppression policy, a decree from the mid-eleventh century asked: Why is it that the transformative power of rites and music are not used and we simply rely on punishment? Confucius said, "If the rites and music do not flourish, then the punishments will not hit the mark. If the punishments do not hit the mark, then the people will not know where to put their hands and feet" [i.e., will feel apprehensive and not know how to behave].26 Role of the emperor In the Chinese traditional political and social schema, the highest figure capable of creating the greatest degree of disorder through deviance, and at the same time of bringing about the greatest good order through proper behavior, of dealing in a fundamental way with the struggle between cheng and hsieh, was the emperor. He was the person chiefly responsible for providing a model of correct behavior in his own acts and for distinguishing between the correct and the deviant in the acts of others. In the basic traditional Chinese political myth, the emperor was the Son of Heaven, invested by heaven with power because he was the individual most able to provide for the welfare of humankind. This welfare was both physical and spiritual. The emperor was a shaper of economic and social policies, but given the technological limitations of traditional times, he was more importantly a moral and religious leader. 26 HCP 143.29a.
15
Law and order in Sung China
He led in part by serving as an exemplar of proper behavior. By displaying his virtue he could transform the world. This transforming power is at times described almost mystically. Most Chinese thinkers saw the universe as innately orderly. As long as each participant played his or her role properly, order would be maintained. But people are possessed of free will. They can fail to play their roles properly either because they are ignorant through lack of proper education or because they are willfully obstructive. The roles played by different actors in the human drama naturally differ in their importance and in their potential effects on the achievement of good order. As the central actor, the emperor had the greatest effects on the universe. His influence was so great that he could bring about good order simply by fulfilling his proper role. Confucius reflected this belief when he noted: "If there was a ruler who achieved order without taking any action, it was, perhaps, Shun. There was nothing for him to do but hold himself in a respectful posture and to face due south." 27 On a more pragmatic level the Chinese recognized early that example, not injunction, was the most effective way to educate. The emperor set an example, most immediately for his court and officials. They in their turn were models for those under them. All officials in traditional China were familiar with Confucius's comments in the Analects. When asked by a ruler about robbers, the Master replied, "If you yourself were not a man of desires, no one would steal even if stealing carried a reward." When asked further about the value of killing the unprincipled for the sake of the principled, he answered, What need is there for you to kill? Just desire the good yourself and the common people will be good. The virtue of the gentleman is like wind; the virtue of the small man is like grass. Let the wind blow over the grass and it is sure to bend.28 Ideally, this radiating process of inculcating proper behavior that stemmed from the emperor would transform all those that it touched, leading to general good order, marred only by the remnant group of the truly evil. In reality, however, the state always faced a problem of endemic disorder.
Pacifying versus suppressing bandits Because of his mediating position between Heaven and man, the emperor also possessed to a supreme degree the capacity to cleanse wrongdoers and to reintegrate them into normal society. Given the emphasis on the 27 Confucius, The Analects, p. 132. 28 Ibid., pp. 115-16; quoted by Fan Tsu-yii, Fan-t'ai shih-chi, 22.11a.
16
Introduction
division between types of bandits, between the incorrigible and the salvageable, this power was reflected in a regular policy of summoning bandits to surrender in return for amnesty. The way in which this practice worked was described by the twelfth-century official Liao Kang (1070-1143): I have taken note of the Court's concern about the bandits in Fukien and its desire to dispatch officials to soothe and pacify the region. . . . Such officials, before they enter Fukien, ought first to display notices, recruiting men to enter the area of banditry to proclaim the amnesty offered by the Court. Thus the bandits' feelings will be moved, and they can surrender.29 In practice, forgiveness was sometimes an offer extended not just to followers but more importantly to leaders, who on surrender might not only be forgiven but even awarded offices and ranks. Suppression by force was supposed to be a last resort for use against the fundamentally recalcitrant. The Southern Sung official Wang Hsiang (doctor of letters degree, 1153) put it this way: I have heard that there are two basic approaches to getting rid of bandits. For petty bandits you should seek means whereby to lead them to peace, not ways to defeat them. For major bandits you should seek the means whereby to defeat them, not ways to lead them to peace. Why is this? Petty bandits and skulking thieves form groups of hundreds and thousands, at times because they have lusted after profit or because they could not endure some petty anger. You should soothingly lead them toward peace. Thereupon, they can reform themselves. . . . If they are major bandits, part of a network that penetrates the prefectures and bestrides the districts, calling together a crowd without being exhausted and pillaging the good people, these are the sort that the four barbarians see as harbingers of our decline. . . . They must be suppressed without a thought of being merciful.30
Selection of personnel The emperor had to serve as the supreme exemplar, transforming those around him. At the same time Chinese commentators were sensible enough to recognize that it might be more immediately important if he chose wisely to begin with, picking moral subordinates. The emperor was the ultimate personnel recruiter. Political struggles over the appointments of individuals were seen as specific examples of the more general processes of selecting morally correct subordinates. In theory, the role of the emperor - his importance in the choice of the good and the moral was an article of faith among Sung officials. In the late eleventh century 29 Liao Kang, Kao-shan wen-chi, SPTK ed., 1.23b. 30 Wang Yang, Tung-mou chi, SKCSCP ed., 10.13a.
17
Law and order in Sung China
the official Fan Tsu-yii remarked that "the virtue of the king is like Heaven. There is nothing that fails to respond to it. It is like Earth. There is nothing that it does not sustain. Within the Four Seas everyone is his child. No place is distant. All are one."31 In practice, for Sung officials, the emperor exerted his power and showed his commitment to propriety through his choice of subordinates. According to the late Northern Sung official Liang Tao (1034-97), For the virtue of the ruler, nothing is more consequential than knowing men, and in the ruling of the Court, nothing has precedence over stressing those who are sagely. Virtue has intelligence as its epitome, and ruling has solid trustworthiness as its root. One who, in a judicious way, is able to distinguish between those who are deviant and those who are correct and who promotes the worthy and restricts the deviant, so that what is correct cannot be disordered, may be called intelligent. 32
The emperor could lead by example, and in theory the resonance of his exemplary influence would reform the world. As a practical matter, however, he had to use a large number of subordinates to control an enormously larger number of ordinary people. He needed methods to encourage appropriate behavior and to discourage inappropriate behavior. It was especially important that his subordinate officials behave appropriately. The emperor had to rely on a cadre of subordinates whose values and goals, reflected in their administrative behavior, would support the perpetuation of dynastic power, which in the final analysis could be endangered if discontent with the government became too widespread. Examination system In pursuit of this goal, traditional Chinese governments developed a variety of policies and mechanisms. The most renowned, and in some eras the most important of these mechanisms, was the competitive civil service examination system. This system was unquestionably the most sophisticated premodern device for indoctrinating a cadre of supporters. This superb device promised enormous social and political (and economic) rewards to the successful. For century after century, key social groups voluntarily and at their own expense subjected their younger members to a process of training in the values that the state wanted to 31 Fan Tsu-yii, Fan t'ai shih chi, 24.2a. 32 HCP 468.22b. See also the similar sentiments expressed by Liu Ch'ang (1019-68): "The Way whereby ministers are controlled consists of separating the correct and the deviant. Correct ministers are used as close advisers; deviant ministers are kept at a distance." Liu Ch'ang, Kung-shih chi, TSCC ed., 31.374.
18
Introduction
promote. The state itself did not have to bear the bulk of the costs of this training. Although state schools did exist in the Sung period, and perhaps played a more crucial role in the late Northern Sung than in any other comparable era of traditional Chinese history, for the most part the costs of education were borne by private individuals. For a trifling expenditure the state was able to mold educational aims to its own uses. Successive dynasties adopted and sponsored the promotion of values and views supportive of a stable, hierarchical, and generally authoritarian political order. By espousing views initially developed by certain groups within the literati class and by granting political powers to those certified to be adept at discoursing in terms of these views, the authorities were able to promote the spread, among the literati and to a remarkable degree among other groups in Chinese society, of an ideology whose values buttressed the imperial system. The result was the creation of a ruling class that acted within a shared universe of discourse, the character of which had been heavily influenced, by if not determined, by the needs of the central authorities.33 Those who were able to demonstrate their mastery of this type of discourse were granted degrees by the state, which certified them as qualified for high government office. During the Sung dynasty such men thoroughly dominated the policymaking levels of the government.34 The state set before the society a goal and reward for a certain style of education. The relatively well-to-do, who bore the greatest economic costs of education and so could set its tone and agenda, by and large wanted to see at least some of their offspring enter government service. In pursuit of the goal of entering the charmed circle of the civil service elite, they chose to educate their sons in those texts and traditions that might enable success in government. They, of course, recognized that success in the examinations was not an everyday event and that often several generations might pass without any family member's being successful. Indeed, no family member might ever succeed at the final stages of the examination process. Still, the prize was so great that a continuing investment in pursuing it seemed worthwhile. Furthermore, sons who were able to enter government service by other routes needed to be able to associate in a competent way with the government elite dominated by examination graduates. Even sons who would never 33 On the examination system, see John Chaflee, The Thorny Gate of Learning in Sung China (Cambridge: Cambridge University Press, 1985); Thomas Lee, Government Education and Examinations in Sung China (Hong Kong: Chinese University Press, 1985); and Miyazaki Ichisada, China's Examination Hell, trans. Conrad Shirokauer (New York: Weatherhill, 1976). 34 See Brian E. McKnight, "Administrators of Hangchow Under the Northern Sung," Harvard Journal of Asiatic Studies 30 (1970): 185-211.
19
Law and order in Sung China succeed at the lower levels of the process needed to be trained in the proper traditions and values if they were to be accepted as members of the literati class, so that they could deal socially with members of the government. For all these reasons the examination system had an enormous impact, far beyond the ranks of those who achieved degrees. Chinese education from the primary level upward was concerned with inculcating a shared range of values and view of the world. In assessing the role to be played by those, even the educated, who had not passed through the examination system, the problem for the state was the practical impossibility of evaluating objectively the degree to which the appropriate values had been absorbed. However, given the curriculum, the authorities could hope for some level of appropriate training among the educated.
Control of the commoners Not so for the illiterate masses. The state authorities could and did use various devices to try to promote traditional values supportive of the status quo, but they were always chary of their degree of success. Various dynasties tried to stimulate the inculcation of desired values and attitudes by rewarding individuals who displayed exemplary behavior, by encouraging institutions like the community ritual assemblies, or by posting moral exhortations or having edifying precepts read aloud to the people. However, from very early in Chinese history the records reflect a recognition that some people had internalized the desired values, views, and behaviors either insufficiently or not at all. Some groups might fail to be properly socialized because they were not part of the Chinese social world. Such people, whether internal non-Chinese enclaves or foreigners beyond the borders, became a problem for the military if they acted in ways that threatened the state's power. But because the Chinese state was the core of the civilized world, problems from non-Chinese sources were peripheral. In the Chinese phrase, they were diseases of the skin, whereas internal Chinese enemies, those supposed to be under state control, could become diseases of the vitals. 35 Such enemies needed to be identified and, if they could not be reformed, had to be isolated and neutralized.
Role of law A firm faith in the importance of appropriate education through the provision of models of proper behavior was coupled in the minds of the 35 Compare Wang Shih-p'eng, Mei-ch'i chi, 2 . 1 0 b - n b .
20
Introduction
Sung bureaucrats with the recognition that law enforcement also was necessary. As the Southern Sung official Lou Yueh (i 137-1213) put it: Confucius said, "Guide them by edicts, keep them in line with punishments, and the common people will stay out of trouble but have no sense of shame. Guide them by virtue, keep them in line with rites (/ia), and they will, basides having a sense of shame, reform themselves."36 However, Mencius said, "A ruler should take advantage of times of peace to explain government and punishments to the people."37 Confucius considered the government and punishments to be secondary. Mencius considered the government and punishments to be primary. Men sometimes wonder about this, but really there is only a single Way. Confucius did not think that government and punishments could be dispensed with. Mencius did not think that virtue and rites could be forgotten. If government and punishments are not cultivated, there will be no state. When they have been established, transformation can occur.38 Chinese rulers sought to maintain power over and make use of groups which did not always share their interests. After the rise of the examination system, the most heavily indoctrinated group consisted of examination graduates, but even their ethos was by no means always consonant with imperial desires. Furthermore, examination graduates as officials did not always live up to their professional ideals. The second major group was composed of those numerous officials, a majority at all times, who did not enter the civil service through the examinations. Their commitments were more problematic. Even more so were the loyalty and support of the locally influential elites. Probably most of their male members had been exposed to Confucian education, but this certainly did not ensure their loyalty to or compliance with the government's wishes. Other important groups, especially the military and the common people, were even less trustworthy. In trying to deal with this situation - the inadequacy of educational transformation alone to ensure compliance with imperial desires - the emperors employed the strategies and ideas of another influential group of classical thinkers, the fa-chia, or legalists. Written law began early in China. 39 Long after the rise of written law, a group of thinkers began systematically to analyze the role and uses of such law in society and government. In the chaotic conditions of the Warring States period 36 Confucius, The Analects, p. 63. 37 My rendering basically follows the translation of Lau, Mencius, p. 81. 38 Lou Yuen, Kung-k'uei chi, TSCC ed., 20.311. Confucius's opinion is often referred to in Sung memorials stressing the importance of educational transformation. 39 For a discussion of the early origins of written law in China, see Herrlee Glessner Creel, "Legal Institutions and Procedure During the Chou Dynasty," in Cohen et al., eds., Essays on China's Legal Tradition pp. 26fT.
21
Law and order in Sung China
(403-221), these thinkers espoused the use of realpolitik in relations among states and the use of law in the internal control of bureaucracies and commoners. Their proposals covered a variety of approaches to control, two of which are of special interest to us here. First, the legalists promoted, if they did not originate, the idea of organizing the common people into small groups that were to be held mutually responsible for the actions of any member. This cellular system of organization, aimed at both suppressing the deviant behavior of members and isolating outside troublemakers, continued to be used by many Chinese regimes down to the present. T h e Sung dynasty was no exception. Second, the legalists advocated the reasoned use of written law as a control device. During the dynasties after the fall of the Ch'in dynasty ( 2 2 1 - 7 ) , legalism was denigrated and seen as the root of the abuses attributed to the Ch'in. However, men of Confucian persuasion continued to be interested in the law. Indeed, during the H a n dynasty, the most important teachers of the law were Confucian scholars. 4 0 During later dynasties, in seeking ways to acknowledge the fundamental utility of law while remaining critical of the use of law in practice, Chinese thinkers developed a mythos about the evolution of the law. During the late eleventh century the official Liu Chih summarized this conventional wisdom: The laws [fa] are the Great Commands of all under Heaven. When the Former Kings systematized the law, their intention was to cause men to reform themselves [tzu-hsin], so that they might avoid penalties, and to make crime difficult. Therefore the laws were extremely simple and extremely correct, and yet they were adequate to fulfill the principle of Heaven and Earth. When in later times men systematized the laws, they were merely fearful that the guilty might occasionally escape. Therefore, their laws were numerous, extensive, and closely meshed so that the people did not know where they might put their hands and feet.41 Properly understood and used, the law could be a valuable tool for helping people become better. Improperly understood and abused, it could cause increased disorder. Laws and their enforcement are questions of boundaries. Legislation creates the boundaries by defining them, stating what acts are within and what acts are outside the boundaries. Adjudication clarifies the boundaries by determining whether specific actions or classes of actions 40 On the relations between the Confucians and legal thought in this period, see Ch'ii T'ung-tsu, Law and Society in Traditional China (Leiden: Mouton, 1965), esp. chap. 6. 41 Liu Chih, Chung-su chi, TSCC ed., 6.81; HCP 373.2a. 22
Introduction
fall within the general boundaries set by legislation. Law enforcement provides the mechanisms for enforcing the state's commitment to its laws, and penal policy is the menu of possible responses the state might make if the boundaries are violated. Legislation, adjudication, and law enforcement play these same roles in different societies. In different societies many of the functions of laws so created, interpreted, and enforced are similar. If we want to understand how these laws worked in practice, their actual social functions, we must examine how they were related to the promotion of state goals, especially social and political stability. Like most laws in most times and places, most Chinese laws were concerned with preserving the political power of the ruling group, both directly and by promoting the interests of other groups who would in turn support the rulers. Rules directly supporting imperial power included not only laws concerned with subversion or sedition but also an enormous number of administrative rules whose purpose was to assure those at the top that the political apparatus would operate in ways that would preserve the power of the rulers. Administrative rules preserve authority partly by injecting predictability into government and government-influenced operations. Predictability permits superiors to control subordinates, by defining the subordinates' powers and their degrees of discretion. Predictability is also one value that the ruling group trades to those outside the state apparatus in return for fiscal contributions, for passive acquiescence, or for active support. To those outside the state apparatus, the predictability of state-enforced rules allows the efficient organization of their own affairs. Another large set of rules promotes stability by inducing large groups in society to support the current political arrangements. Some of these rules are designed to support the interests of influential social groups; in the traditional Chinese case this meant, most importantly, the literati families that were not themselves currently involved in officialdom but that were major landowners and influential in the affairs of their home areas. Another set of rules was concerned with the enforcement of those social norms that were shared widely, though not universally, within the society, by most peasants, merchants, artisans, and urban working people, as well as landlords and members of the political elite. One of the goods provided to society by the political machinery was this enforcement of widely shared social norms. Here is the domain of what we often call "the law": Thou shalt not kill. Thou shalt not commit adultery. Thou shalt not steal. Thou shalt not bear false witness against thy neighbor. Thou shalt not covet thy neighbor's house. Thou shalt not 23
Law and order in Sung China
covet thy neighbor's wife, nor his manservant, nor his ox, nor his ass, nor any thing that is thy neighbor's. At this point the moral leadership of the emperor coincided with the strictures of the codes. He was the ultimate locus of the sovereign power which sought to create a morally proper society by exemplifying propriety and punishing misbehavior. Reward and punishment In seeking to promote obedience to these various sorts of laws, the traditional Chinese fell back on another of the devices advocated by the legalists. The legalists' view of human nature was more simpleminded than that of the Confucians: They felt that most people were dominated by self-interest, which in practice meant that their actions would only adventitiously be in conformity with the desires of the state. Most people had to be encouraged to behave properly by means of rewards and discouraged from behaving badly by means of severe penalties. Acceptance of this idea — that positive and negative sanctions are the key of guiding behavior — was not, of course, necessarily in conflict with the belief that most people have within them the basic stuff of goodness. Most members of the Chinese elite in Sung times had been socialized to accept both the Mencian dictum that every man by nature contained the roots of goodness and the conflicting, but not contrary, belief that the composition of men also supported a tendency toward deviant behavior.42 This formulation had not been clearly articulated at the beginning of the Sung dynasty and, indeed, is missing from the works of the earliest of those whom we classify as Neo-Confucians. However, in the works of Ch'eng Yi (1033-1107) the concept of li,h the pattern which runs through all things and joins man to the universe, is given the central position among Confucian concepts. This new formulation was the foundation on which Chu Hsi built his ideas about human nature which were to remain orthodox until the end of the empire. As used by the Ch'eng-Chu school, lih is always good, perfect, and unchanging. If it is fundamental to man, as to all else, what then can explain deviance? The key here is the concept of ch'i, material force, the stuff through which the disembodied lih takes shape and form. Ch'i can be pure or muddied, and so the behavior of things can also be pure or muddied. Therefore, when generating men and other things, there is a difference of coarse and fine. Speaking in terms of the ch'i as one, both men and other things are 42 For a discussion of this problem, see A. C. Graham, "What Was New in the Ch'engChu Theory of Human Nature?" in Wing-tsit Chan (ed.), Chu Hsi and Neo-Confucianism, pp. 138-58.
24
Introduction
generated by receiving this ch 'i. Speaking in terms of the coarse and the fine, men get ch'i that is well adjusted and permeable, and other things ch'i that is ill adjusted and impeding. Because man alone gets the well adjusted, the li b in permeating him is nowhere impeded; because other things get the ill adjusted, the lih being impeded, they know nothing. . . . But speaking in terms of man's own endowment, here too there is a difference of dull and bright, clear and murky. Therefore the highest in knowledge, who know from birth, are so constituted that their ch'i is clear, bright, pure, choice, and without a trace of the dull and murky. As for the next in degree, who are second to those who know from birth, they have to learn before they know, have to practice before they attain.43 The Sung official Hua Chen (i051-after 1110) indicates the way in which a Confucian belief in the possibilities of goodness in men could be combined with an acceptance of the necessity of using a legalist policy of rewards and punishments to deal with the majority: The elite man [shih]e acts from righteousness, and his motivation derives from this. He does not act with his eye on benefits. He does not smell rewards and feel thereafter encouraged. He does not become mired in unrighteousness. He does not see injury and avoid it. He does not wait to be penalized and afterward stand corrected. The rules of reward and punishment may be engraved, but they are not used. Such men are thus. . . . Middle-grade men, seeing their own good, are moved to action. Seeing what will harm them, they are thereupon corrected and refrain from bad behavior. Therefore even the Sage Emperors Yao and Shun [mythical rulers whose traditional reign dates are 2357 to 2205] could not govern without rewards and punishments. Indeed, if you have rewards without punishments, then impropriety will gradually come to be tolerated. If you have punishments without rewards, then through stinginess goodness will be lost. If rewards are not awarded for goodness, then the people will harbor doubts and will not feel admiration. If punishments are not carried out against the guilty, then those below will be suspicious and yet not stand forewarned.44 And in the mid-thirteenth century the official Yuan Fu (doctorate of letters degree 1214) remarked: Whenever we hear legal cases, we can see that the people love money and forget about righteousness. They rely on forcefulness and make light of life. They violate the law and transgress against principles. Certainly we must be cau43 Chu Hsi, Chu-tzu jyu-lei, 4.10b. Chu Hsi was the Sung Confucian thinker who explored this problem most thoroughly. He and like-minded Neo-Confucians did arrive at a widely accepted solution. His thoughts on this problem are reflected with especial clarity in the collection of his supposed discussions with disciples. These discussions, though not as reliable as the works written by Chu Hsi himself as sources for evaluating his philosophical ideas, are valuable here because of their attempts to deal with concrete problems and examples of behavior. 44 Hua Chen, Yun-ch'i chi, SKCSCP ed., 17.8a.
25
Law and order in Sung China
tiously apprehensive, thoughtful morning and evening on how we may use customs to influence such people. By rewarding the good, we can cause the evil to feel shame. Men's hearts are not fundamentally evil. The principle of Heaven is not basically unclear. 45
In the 1040s, when the state was faced with disorders associated with the border wars in the northwest, the Sung statesman Sung Ch'i (9981061), borrowing from the legalist text Han Fei Tzu, stated with great simplicity the basic position of most of the Sung elite: To control the people, the Son of Heaven had only two handles, "punishments and rewards, that is all." 46 Sung's contemporary YCi Ching (1000-64) noted that "the Court controls the world through the system of rewards and punishments. Nowadays, the empire being large and the officials lax, the people gather together and become bandits. Punishments do not suffice to stop them. This is because the system of rewards and punishments has not been practiced." 47 A century later the official Wang Chih (112789) wrote that he "had made a study of the methods of opposing and controlling robbers that have been in use historically. Although they are detailed and numerous, the important points do not go beyond using punishments to serve as warnings, and rewards to serve as enticements." 48 This stress on rewards and punishments is so widespread as to be a fundamental article of faith. The Southern Sung official Wu Ching (1125-83), who had himself seen the problem firsthand while serving as a district sheriff and a district magistrate, commented that if the authorities wanted to capture bandits, there was only one answer, the effective use of rewards and punishments. 49 "Why are there so many troublesome bandits?" the great Confucian scholar-bureaucrat Ou-yang Hsiu (1007-72) asked in the middle of the eleventh century, and answered his own question: "Because the state is ill prepared, and rewards and punishments for the responsible officials are not enforced." 50 45 Yuan Fu, Meng-chai chi, 3.32. 46 Sung Ch'i, Ching-wen chi, TSCC ed., 25.355. 47 HCP 141.16a (1043). A few months later he rephrased the same sentiments (HCP 150.5a). See also Chao Shan-k'uo, Ying-chai tsa-chu, SKCSCP 1975 ed., 1.2b; Hsu Ying-ling (doctorate of letters 1224), Tung-chien chi, SKCSCP ed., 8.ia~4b; T'ang Keng, Mei-shan T'ang hsien-sheng wen-chi, SKCSCP 1976, 1.15a; Ch'en Ch'un, Pei-ch'i
ta-ch'tian chi, SKCSCP 1973, 45-5a-b; Ts'ai Hsiang, Tuan-ming chi, SKCSCP ed., 9.i9b-2ia. 48 Wang Chih, Hsiieh-shan chi, 3.24. 49 Wu Ching, Chu-chou chi, SKCSCP 1973, 8.3b~4a. See also Wang Chih-tao (10931169), Hsiang-shan chi, SKCSCP ed., 22.5a, who said that "the problem today is not the border raiders or the bandits; it is that the rewards and punishments are inappropriate." 50 HCP I4i.i4b-i5a.
26
Introduction
The use of rewards and punishments was universal, running through all aspects of Sung governmental operations, and could affect anyone inside or outside the government, but Ou-yang Hsiu quite properly stresses its relevance to officials. Without appropriate and timely official actions, the whole edifice of government would collapse. Many if not most of the important policy decisions of Sung rulers were aimed at establishing a system that would place the right officials in the right positions and also would motivate them to act appropriately. An elaborate system of rewards and punishments was used as a basic device for motivating their behavior. The rewards were potentially of considerable significance to the officials, because they might affect their advancement within the civil service; the penalties were mitigated by a system of official privileges. These privileges, which varied with rank, assured active officials and some other persons closely tied to the government that in many instances they could avoid the regular system of penalties. There were, however, circumstances and classes of crimes that might bar them from using their privileged status. Rewards and the state's fiscal situation The ability to use rewards and punishments is intimately connected with the fiscal strength of the state. The unwritten first commandment of any government is preserve thyself. To preserve themselves, governments must mobilize resources sufficient to resist attempts to overthrow them. These resources are used to reward supporters, to mollify the discontented, to prevent those not mollified from becoming dangerous, and to destroy or at least to fend off those who do become dangerous. Within limits set by revenues, technology, ideology, organizational sophistication, and environmental constraints, governments seek to maximize the number and power of their supporters, minimize the number and power of their inveterate opponents, and neutralize those in between. To do so they must manipulate both values and valuables, both ideas and wealth. The use of values involves governments in instilling, or in encouraging and supporting others who instill, values supportive of the regime's continued power. The use of wealth includes both financing the means for suppressing enemies and purchasing the allegiance or at least the toleration of the majority of society. If all people could have been properly socialized, so that they always acted in accord with the immanent order of the world, good order would have reigned. Because the political order was a natural part of this natural order, people would also have absorbed beliefs, values, 27
Law and order in Sung China
behaviors, and views of the world that supported the imperial system. The state would have had no opponents, so there would have been no need for the less savory side of government, that which bribes and persecutes. But because all of the people were in reality not fully inculcated with the traits supportive of this system, the use of wealth to subvert, control, or destroy opponents was vital to the continuation of government power. Like other premodern states, the Sung government was able to secure only a small fraction of the gross national product for its use. Even if the authorities had wanted to increase their revenues, the technological basis for greatly increasing the proportion of the social product flowing to the government did not exist. The Sung empire was a remarkably effective fiscal organization by traditional standards. It apparently was able to secure a considerably larger share of the economic product of society than were other Chinese dynasties. Still, by modern standards it was very limited in the proportion of national income that it could secure and distribute. The total social output had to be shared by the primary creators - who at worst had to be kept above the level of bare subsistence - by the rentier class, by the local political machinery, and by the central government. Moreover, the ability to gain and distribute wealth was limited not just by technical and financial factors but also by the very breakdowns in the government-supporting social order that made this use of wealth necessary in the first place. Many of those charged with securing resources for the state's use were themselves inadequately committed to its interests. Given the opportunity, they would divert to their own uses those revenues supposedly destined for the state. Therefore the state had to depend on, and within limits set by its capacities and resources seek to promote, the appropriate socialization of the people under its jurisdiction, but at the same time it had to prepare to defend its authority (and its taxing abilities) through the use of force. Law enforcement Dealing with criminals, particularly with those who are incorrigible, raised the classic conundrum of law enforcement: How are we to find out that the law has been broken, and having found out, how are we to get a sufficient number of effectively led, adequately armed, and properly motivated men to the needed spot at the critical moment, at a cost we can afford, given other demands on our resources? The statement of the problem of law enforcement is deceptively simple. The practice of law enforcement is very complex, because the components are interrelated 28
Introduction
and interdependent. The actual functioning of the law-enforcement system depends on both general conditions and the particular culture, place, and time. The authorities want to bring to bear just enough force to accomplish their goals. Too little will not succeed in suppressing the disorder. Too much will not only be economically wasteful but also may entail further problems. Getting this right amount of force to the needed place at the right time entails a whole host of problems. The answers to these problems depend in part on the technologies of transportation, communication, and armaments. How can we get accurate information about violations of the laws in a timely manner so that we can respond effectively? Who will give us the needed information? And what will move them to do so? To whom should such informers report? Having found out about crimes, how do we get orders to the appropriate lawenforcement agents? When these agents have been given their orders, how do they get to the proper place? And having gotten there, what weapons do they use to suppress the violations? How many agents will be needed? Who should lead them? And perhaps most crucial of all, how are we to motivate both law-enforcement leaders and their subordinates so that they will use their control over force in proper ways for the ends that we seek? Finally, how are we supposed to pay for all this activity, without diverting to it resources that are needed for other social purposes? A weakness in any link of this chain of actions can jeopardize the whole enterprise. Ordinary people may know of violations and not tell. State-mandated mutual security groups may be informed but not pass on the information to the officials. The officials may be aware of the problem but not prosecute. 51 When finally called in, law-enforcement agents may be unwilling or unable to respond or may respond in excessive or dangerous ways. All parts of the general problem statement are important, but two have precedence. First, the law-enforcement system must be fiscally tolerable. It will do us no good to understand what is needed if what is needed costs more than can be afforded. The ability of the authorities to squeeze revenues out of the populace has an upper limit. To go beyond it is to risk both the long-run impoverishment of society and, more immediately, the revolt of those being squeezed by the government. The Sung period, especially the Northern Sung, was fortunately an era of 51 See, for example, a memorial by the official Chou Tzu-chih. In a report on the frequent practice of infanticide, he noted that "the local security organizations know but do not report. The officials learn of it but do not prosecute." Chou Tzu-chih, T'ai-ts'ang t'i-mi chi, SKCSGP 1971, 49.3a.
29
Law and order in Sung China
rapid economic growth. Despite this, the government had serious fiscal problems by the middle of the eleventh century. The proportion of revenues which a government can devote to lawenforcement organizations also has a ceiling set by competing demands for funds that the state simply cannot ignore. In China, as in most civilizations, a substantial amount of the revenue was spent on external defense. During the Sung this might run to half the total budget. Large amounts of revenues also went to support the bureaucracy and the Court, leaving relatively little for other purposes. The state also had to devote some revenue to raising still more revenues and some to generating or retaining the support of people not part of the formal government, by promoting the interests of various influential groups. Furthermore, even in a mythical world in which the state apparatus had access to limitless resources, the civil elements in its structure would set limits on the resources given to the professional users of force, whether military or police, if only to protect themselves. The problem of who will guard the guardians is a universal one. Intelligent civilian politicians recognize that an excessively powerful military or police establishment is a constant danger. The Sung rulers were especially sensitive to this issue, because they felt that the disasters of the late T'ang (618-907) and the Five Dynasties (907-60) had stemmed from the military's possession of too much power. Civil and military The effective use of rewards and punishments was central to motivating officials and also to motivating and controlling the people. Two principal types of agencies, the civil and the military, embodied the state's potential for rewarding or punishing. The question of the appropriate relationship between the civil and military authorities in maintaining order goes to the heart of deeply rooted traditional Chinese attitudes toward the state, its government, and the appropriate tools to be used in governance. The basic Chinese political myth, enshrined in the Classics and developed by the great Confucian thinkers, held up as a model those rulers who were able to transform men primarily by example and benevolence and who resorted to force sparingly, with complete justice, and as a last resort. Force was necessary. Even the Sage Kings of antiquity had used it on occasion. Some individuals and groups who refused to accept their appropriate place in an orderly world were large and radical enough in their defiance of propriety to require suppression by violence. But the victories won through violence were felt to be more fragile than those 30
Introduction
that followed the conversion of the recalcitrant into good subjects by means of persuasion and education. The balance between military and civil which corresponded partly, but not wholly, to the distinction between the use of force and the use of gentler measures was always delicate. If the central government moved too far toward emphasizing the civil, it risked weakening its ability to withstand violence from within and without. If, as in the late T'ang and the Five Dynasties, the military came to dominate politics and the central authority lost its control over large regions, it became incapable of promoting in those areas the kind of educational and persuasive socialization that was needed for the long-term stability of the centralized political order. To deal with the immediate problem - the decentralization of power during the preceding era — and to respond to the overweening role of the military in the governments of his predecessors, the founder of the Sung, T'ai-tsu (r. 960-76), strengthened the civil side of local government. He and his successors set out to solve certain pressing practical problems. The policies they established reflect both their assessments of the immediate situation and their fundamental beliefs about the roots and nature of deviance, as well as about the appropriate roles of the civil and the military. The Chinese viewed (and continue to view) deviance as a continuum measured by the degree of the threat to the existing order of society. At the low end of the continuum, at which the deviance does not constitute an immediate threat to the social order, the proper response is persuasive and educational. First within the family and then at the level of the village, disputes and deviance are handled through discussion and persuasion if possible, but by some application of force if necessary. This level is largely the responsibility of social associates. As the degree of threat increases, the state begins to apply measured force through the police function of the civilian government. Even at this level there is a preference for the mediation of disputes. In modern America the police are frequently involved in the informal mediation of disputes; in Sung China the police apparatus would not normally have been involved in such mediation, which was the preserve of nongovernmental groups (though in contemporary China the police may indeed be involved). When informal mediation by extragovernmental agents fails to resolve the problem, the next step is often the courtroom. However, in traditional China, cases which did arrive at the lowest levels of the hierarchy of courts were often sent back by the presiding magistrates with an order that they be settled out of court. If mediation fails and the threat of disorder is serious, formal police action becomes necessary. 31
Law and order in Sung China
Finally, when the threat is too immediate and too extreme for the police agents of the civil authorities, it becomes the responsibility of the military. In general, this sort of response is hardly unique to China, ancient or modern. However, the particular forms it took in traditional China were conditioned by both the given conditions of a premodern peasant society and the cultural inheritance of the Chinese tradition. In promoting law enforcement, one obvious response to the technological limitations of premodern communications and transportation would be to disperse agents for enforcing order at many points within the area to be controlled. Ideally, this could be done in such a way that no spot was too far removed from the forces of law and order to be helped by them in need. However, if these agents were to be effective, they had to be kept in such concentrations that they would have sufficient collective force to respond to probable threats. And if they were to be so constituted that they could devote their time largely to enforcing order, they would have to be remunerated. In some times and places the central authorities dealt with these dilemmas by allowing the local authorities to own the means of administration, a feudal system. The Chinese authorities in imperial times chose a different course. They allowed the local authorities to deduct a proportion of the tax revenues for their own use, including the support of a police apparatus, while reserving for the central authorities enough funds to permit the creation of a military force sufficient to prevent rebellion by local authorities or malcontents. Allowing local authorities to retain income lowered the handling costs that would have been entailed in a system of central distribution, but it carried within itself the risk of the growth of local power centers. Centralizing revenues would have reduced the dangers of local resistance to the center but would have greatly increased the cost of administering the tax system. The long-lived Chinese dynasties generally dealt with this problem by playing a delicate balancing game, allowing the local administrative units to retain some income but directing much of it to the central authority. Control of local functionaries This pattern of income distribution highlights one of the central political problems of traditional empires, how to ensure adequate levels of performance by their functionaries, especially their local functionaries, who were serving in posts far from the watchful eye of the central government. At the same time, local organizations had to be effective if the 32
Introduction
central government was to remain healthy and yet under control, so that they could not threaten the center. Local officials might be interested in increasing their own personal power, or they might act in collusion with influential groups among the commoner populations in their jurisdictions, against the interests of the centralized state. Traditional Chinese states responded creatively to this dilemma. The response involved attempts both to instill internal controls in the individuals in question and to detect and suppress bureaucratic deviance. The examination system, with its assumption that knowledge of the Confucian Classics was a surrogate measure of ethical commitment, is the outstanding example of the internal emphasis. The elaborate bureaucratic organization created by traditional Chinese dynasties provided the mechanism for exercising external controls on behavior. This bureaucratic pattern served the central authorities' control purposes in several ways. By specifying functions it made possible the objective evaluation of performance. An official who began to abuse his role by going beyond his specified functions thus could be stopped early. It set minimum standards of performance so that ineffective officials could be detected. Such a centralized bureaucracy also was designed to tie the long-term interests of the bureaucrats to the health of the central apparatus, by integrating a system of rewards for loyal service. Finally, the government established surveillance agencies that oversaw the work of subordinate personnel, to detect wrongful or ineffective performance, and to make recommendations and evaluations for rewards and punishments. This system, like all such systems, can be viewed as an informationprocessing system. At the bottom the local functionaries generated a mass of detailed information about conditions in their area and sent this up through the hierarchy. Those at the top evaluated this information and sent down a smaller stream of more general guidelines for behavior, as well as specific orders for dealing with individual situations. There was always a tension between the desire of the center for predictability and its need to generalize on the basis of what it perceived as common problems and conditions, and the perception by the local authorities of the distinctiveness of local circumstance and their desire for a degree of autonomy that would allow them to respond to unusual situations. The traditional Chinese imperial state responded to this dilemma of core versus periphery by creating general guidelines, while in practice allowing a degree of local flexibility in their enforcement.
33
2 The historical context
Historical situation In some fundamental ways traditional Chinese society was extraordinarily stable. At no time is this more striking than during the Sung dynasty. This was a time of startling technological innovations, of great creativity in the arts, sciences, and philosophy, a period during which the basic claim to political legitimacy was successfully challenged for centuries by the continuing presence of powerful Sino-foreign states to the north, a period of major population shifts and growth, and a period of enormous increase in both the numbers of urbanized areas and the urban character of the cities. And yet the structures of Chinese society, its basic values and attitudes, survived this kaleidoscope of intellectual and economic change, foreign competition, and scientific advance. Why? What were the strengths of the underlying social structures which allowed Chinese society to ride out centuries of radical change with relatively little alteration in the basic commitment to what it was to be Chinese? Certainly one element was the strength of those structures in Chinese society that were concerned with inducting new members (whether the young or significant outsiders) into the central traditions of the society. This crucial aspect of social control, the pattern of socializing people into being "Chinese," is beyond the scope of this book. The subject of this work, the other side of social control, which buttressed socializing agencies by placing the weight of the law and law enforcement behind them, can be understood only against the background of the problems faced by the people of the Sung and the changes with which they had to wrestle. The foremost task faced by the Sung founder and his immediate successors was the reassertion of central political power. From the middle of the eighth century the power of the central government in many local areas had begun to decline. Despite the partial recovery of 34
The historical context
power during the late eighth and early ninth centuries, the T'ang (618907) central government never recaptured full control of all of the empire. The rebellion of Huang Ch'ao in the 870s effectively destroyed T'ang central control, though the government dragged on in name for several decades before formally ending in the early tenth century. The most important agents in weakening the Court were the military commissioners, the major military commanders stationed in north China, each of whom held concurrent control over the civil administration in the key prefecture under his jurisdiction. During the closing decades of the T'ang, these military commissioners usurped power in their jurisdictions. This process of political decentralization continued during the early Five Dynasties (907-60). However, by the middle of the tenth century, despite the appearance of continuing discord, the rulers of the Five Dynasties states had begun to develop policies to recapture power. By the Later Chou period (951-60) the basic tools for reasserting control were already in existence. Only his untimely death prevented the Later Chou emperor Shih-tsung (r. 954-59) from completing the process of recentralization. When in 960 Chao K'uang-yin usurped the throne and founded the Sung dynasty, the stage thus was set for the building of a strong central government. The Sung founder, Chao K'uang-yin (r. 960-76), and his immediate successors on the Sung throne had as their overriding priority the reassertion of central authority, against the other states occupying what had been T'ang territory and against the military commissioners who still retained considerable internal power. Early Sung policies governing law and order have to be seen as one aspect of a larger policy aimed at reestablishing full central government control in local areas. From the late T'ang the military commissioners had controlled the principal local government functions in their jurisdictions, including the collection of taxes, defense, and the maintenance of law and order. l On the local level they had inherited the old T'ang structure under which the key local officials were the prefects and district magistrates, and the actual maintenance of local order was the responsibility of a civil service subordinate of the magistrate called the sheriff (hsien-wei). In subverting this inherited system, the military commissioners retained most of the T'ang offices in vestigial form but appointed their own personal followers to the positions of real power, as garrison troop commanders (chen-chiang) in the local garrison towns (chen). 1 On criminal justice and law enforcement at the end of the T'ang and during the Five Dynasties, see Muronaga Yoshizo, "Godai gunbatsu no keigoku kiko to setsudo saibanken"(The standard jurisdiction and system of criminal law of the military cliques in the Five Dynasties) Kyushu daigaku bungakubu, Toyo shusaku 28 (1965): 61-75.
35
Law and order in Sung China
During the late T'ang and Five Dynasties periods, the garrison towns evolved from military outposts located at strategic points into multifunctional urban centers. Because they were often located at nodes of transportation such as fords, bridges, river mouths, or passes, these garrison towns became increasingly important as economic centers. At times, they rivaled the older subprefectural seats. The military commissioners extended their control into the local areas by dispatching retainers appointed as garrison troop commanders (chen-chiang) to oversee these towns and the surrounding countryside. These commanders, often close personal associates of the military commissioner, ruled their areas using dispatched units of the commissioner's army. They fulfilled all of the functions of the district administrators: collecting taxes; seizing, trying, and punishing criminals; and providing military protection of their domains. 2 Early in his reign the Sung founder began to reemphasize the role of the regular civil system. In 962 he ordered the establishing of a district sheriff (hsien-wei) to maintain order in the district, including its rural areas. 3 The Sung office of hsien-wei was thus to be similar in function to the office of hsien-wei as it had existed from the Han period to the time of the Emperor Wen of the Sui (r. 590—604), and not to the office of that name as reformed by Emperor Wen and as continued in use to the end of the T'ang. 4 The garrison troop commanders retained control only over disorders in the garrison's environs. 5 2 On garrison towns and their commanders, see Hino Kaisaburo, "Godai chinsho ko" (A study of the garrison commanders of the Five Dynasties), Toyo gakuho 25 (February 1938): 54—85; Hino Kaisaburo, "Todai hanchin no bakko to chinsho" (The dominance of the military commissioners in the T'ang, and the garrison commanders), Toyo gakuho 27 (February 1940): 153-212; Umehara Kaoru, "Sodai chiho shotoshi no ichimen, chin no hensen o chushin to shite" (One aspect of the small urban markets of the Sung Dynasty - with emphasis on the transformation of the garrison town), Shirin 41 (1958): 475-91; Sudo Yoshiyuki, "Godai no setsudoshi no shihai taisei" (The system of control of the regional commandants of the Five Dynasties), Shigaku zasshi 61 (April 1952): 1-42 and (June 1952): 20-39; Edmund Worthy, "The Founding of Sung China: 950-1000" (Ph. diss., Princeton University, 1976), esp. chap. 6. 3 HCP 3.123b-14a. See also Hsu Sung, ed., Sung huiyao chi-kao (hereafter cited as SHY) (Taipei: Shih-chieh shu-chu, 1964), chih-kuan 48.92a. These two works contain by far the largest body of material on the post of sheriff and so have provided much of the information for my study. In the following notes, when figures appear in parentheses after source citations, they give the Western-style year date of the memorial or order. See also Ma Tuan-lin, Wen-hsien t'ung-k'ao (hereafter cited as WHTK) (Taipei: Kuo-hsiieh chi-pen ts'ung-shu edition, 1968), 63.1467. The post of sheriff itself first appeared in the Ch'in dynasty. Pan Ku, Han shu, Po-na ed., 19 shang, mentions several oflices associated with law enforcement whose titles included the term wei and which began in the Ch'in. 4 On the hsien-wei in the T'ang and earlier, see Tonami Mamoru, "Todai no ken-jo" (The hsien-wei of the T'ang dynasty), Shirin 57 (1974): 79-105. 5 HCP 3.13b-14a. A few years later the tie between the military commissioners and the garrison troop commanders was broken when the military commissioners were ordered no
36
The historical context
To appreciate the impact of this order, we need to keep in mind the existing local political situation. As the Sung regime assumed control over areas in south China, it replaced the officials and officers of the preceding states with its own personnel. Since the south was largely free of military commissioners, this meant in effect that local control was immediately assumed not simply by the Sung regime but by the Sung civil authorities. In north China, however, there were some forty military commissioners. Although the powers wielded by the remaining commissioners were much weaker than they had been earlier, they still were able to exercise considerable influence over local affairs. Thus, for the south the impact of the decree of 962 was principally to give the newly appointed district magistrates a mandated civil service subordinate to control police duties. In the north this decree also subverted the powers of the military commissioners by greatly reducing the powers of their subordinates, the garrison troop commanders. The early Sung emperors also used other policies and devices to diminish the influence of the military to manageable proportions. In a famous incident the Sung founder began this process by withdrawing power from the hands of his leading generals, pensioning them off handsomely, and seeing to the welfare of their descendants. 6 The Sung government also instituted a system under which officers and men did not serve together for extended periods, to preclude the growth of strong bonds of solidarity. These policies, plus a system of rotating commands and a skillful use of the law, succeeded to a striking degree. Of all the long-lived dynasties in Chinese history, the Sung dynasty is the only one never threatened by internal unrest among the military. Foreign problems This treatment of the military, though it did respond effectively to serious internal problems, actually increased the external dangers threatening the state. When the Sung founder, Chao K'uang-yin, who had been serving as the "controller general before the palace," displaced the last boy ruler of the Later Chou and ascended the throne, he succeeded to control over only a part of the North China Plain. The longer to appoint their followers to these posts. Such posts were to be filled only by men from the prefectural staffs. See SHY, chih-kuan 48.92a. We do have reports, however, that the commanders continued to seize "village bandits" in the encampments in Hsin, Li, and K'uei prefectures and to hear complaints. See HCP 61.2b. They also continued to hear cases and punish offenders, at least as late as 1013. See HCP 80.9b and also SHY, chih-kuan 48.92a. 6 There are various descriptions of this famous series of incidents in secondary works. See, for example, Worthy, "The Founding of Sung China."
37
Law and order in Sung China
regions beyond his control held both opportunities and dangers. All of south China was occupied by a group of long-lived states called the Ten Kingdoms. To the north the Sung position was threatened by a powerful state called Northern Han located in what is today Shensi Province. To the northwest the Sung forces faced a state dominated by the Tibetan group called the Tanguts, a state that in the eleventh century was to assume the name of Western Hsia. To the north and northeast the Sung territory was bounded by the Khitan-dominated Liao state. The Tangut state, a cultured Buddhist state with an economy based on irrigation agriculture, was primarily interested in self-preservation. Despite the propaganda of Sung officials, it was a threat to Sung power only when the Sung leaders sought to destroy it. 7 Indeed, the first Sung-Tangut war began in 982 when the Sung attempted to bring the western state into subjection, and it continued with some interruptions into the eleventh century. In 1006, during the reign of the third Sung emperor, Chen-tsung (r. 997-1022), this war was settled by a treaty which inaugurated an era of peace lasting until the 1040s. The territory controlled by the Western Hsia was a temptation to the Sung leaders but not a threat. During this same era, however, a truly dangerous threat existed to the north and northeast. There the Sinoforeign state of Liao, dominated by the Khitan tribes, controlled one of the most formidable armies of its age. 8 The Liao state, although its center of power lay to the north of the present Great Wall, also held territory south of the wall, centering on the area of present-day Beijing, and governed a population that included almost 2.5 million Chinese. 9 The Liao forces were an acute danger to the Sung state because no natural defensive barriers lay between their area of control and the Sung capital at Kaifeng (see Map 2.1). The authors of the Liao History estimated that the Liao military machine numbered more than 100,000 cavalrymen. 10 In an age of cavalry superiority (in appropriate territory), this was a truly formidable force. Defense of the Sung capital thus required the use of very large standing armies, to be placed across the path of a possible Liao advance. The second emperor had attempted to drive the Liao from their foothold within the Great Wall. The third 7 Evgenij Kychanov, "Les Guerres entre les Sung du Nord et le Hsi-Hsia," Etudes Song
(The Hague: Mouton, 1971), 1st series, no. 2, pp. 103-18. 8 Karl A. Wittfogel and Feng Chia-sheng, History of Chinese Society: Liao (Philadelphia: American Philosophical Society, 1949). For further information on Sung-Liao relations, see especially Jing-shen Tao, Two Sons of Heaven (Tucson: University of Arizona Press, 1988). 9 Wittfogel and Feng, History, p. 58. 10 Ibid., p. 515.
38
The historical context
Scale 1:15,000.000
a
» State boundary
Map 2.1. Sung, Liao, Hsi Hsia, and Koryo borders in the eleventh century. Based on Albert Herrman, An Historical Atlas of China, new ed. (Chicago: Aldine, 1966), p. 35.
39
Law and order in Sung China
emperor, Chen-tsung, also involved the Sung armies in wars against the Liao but in the end was forced to conclude a humiliating peace. Political history This third emperor, Chen-tsung (r. 997-1022), was the first Sung ruler to have been born in the palace. 11 Conscientious but in his later years mentally unstable, Chen-tsung fortunately was able to rely on the judgment of the statesman Wang Tan (957—1017), who served as a councillor of state for seventeen years (eleven of them as chief councillor). Chen-tsung, embarrassed by the demeaning peace treaty concluded with the Liao dynasty in 1004, fell under the spell of the official Wang Ch'injo (962-1025), who encouraged the emperor to perform a series of elaborate rituals as a way of reasserting Sung values. 12 Early in 1008 when a message from "Heaven," in the form of a yellow silk scroll, was found hanging from a roof tile of a gate of the imperial palace, the emperor was prompted to begin an increasingly expensive series of religious observances. Despite the more and more bizarre behavior of Chen-tsung during his later years (which the cautious Wang Tan did not oppose), his reign and the early years of the reign of his successor Jentsung (r. 1022-63) were a prosperous and peaceful era. Jen-tsung was the longest-reigning Sung monarch. During the first eleven years of his reign, he was under the tutelage of the empressdowager, nee Liu. After her death he himself held power for another thirty years. Impetuous in his youth, he became more cautious with age but ruled without great firmness and with limited understanding. His reign is a watershed, marked by renewed warfare and the growth of serious fiscal problems. In 1038 when the Western Hsia ruler took the title of emperor, the Sung armies renewed hostilities. Four years of warfare was followed by a peace in which both sides compromised. This war had cost the Sung state dearly in terms of the level of internal peace within the empire and the fiscal health of the state. These problems encouraged a cadre of thoughtful officials to continue their rethinking of the meaning of the Confucian heritage and to propose reforms of the state based on their new perceptions. The reform movement was largely unsuccessful but set the stage 11 The interested reader can find more information on most of the individuals mentioned in the general description of Sung developments in Herbert Franke, ed., Sung Biographies (Wiesbaden: Franz Steiner Verlag, 1976). 12 For a description and a sympathetic interpretation of these incidents, see Suzanne E. Cahill, "Taoism at the Sung Court: The Heavenly Text Affair of 1008," Bulletin of Sung-Yuan Studies, no. 16 (1980): 23-45.
40
The historical context
for more radical reforms later in the dynasty. Jen-tsung's successor, Ying-tsung, was sickly and reigned for only four years, from 1064 to 1067. Like Jen-tsung, he relied heavily on distinguished officials of long service. In 1067 Ying-tsung was succeeded by an emperor of a very different cast of mind. Shen-tsung (r. 1067—85) was an energetic and opinionated emperor. He inherited an empire faced with an accumulation of internal fiscal problems; he dreamed of a strengthened state that could recapture the lost territories then under foreign control. Recognizing that the conservative policy of more of the same would never be able to solve the problems facing the state, he threw his support behind a program of radical reforms shaped by the statesman Wang An-shih (1021-86). In a variety of ways these reforms were aimed at creating a fiscally healthy state, a prosperous population, and an effective but less costly military machine. Despite a period of reaction during the minority of Shen-tsung's successor, Che-tsung (r. 1085-1100), the reforms inaugurated under Shentsung were continued in part and were reinstituted when Che-tsung took personal control of the administration upon his coming of age. Unfortunately, in the political struggles which marked the era of reform and counterreform, the earlier policy of treating political enemies with some care and respect gave way to vicious factional infighting. This struggle left a heritage of bitterness that was to help shape internal politics for the remainder of the dynasty. Che-tsung died in 1100. His place as ruler was taken by a man who, at least in legend, was far more concerned with aesthetics and artwork than with governing the empire. During most of his reign this emperor, Huitsung (r. 1100—26), kept as his chief minister a man who initiated a series of institutional reforms in the tradition of Wang An-shih while mercilessly persecuting those who opposed him. Although the settlement with the Western Hsia in the 1040s had promised an era of peace, Sung leaders were never able to resist for long the temptation to try to exploit signs of foreign weakness. They were at peace for a generation, but then, during the later decades of the Northern Sung period, there were repeated clashes with the Western Hsia. More ominously, some Sung leaders continued to think about the reconquest of territories controlled by the Liao. Then during the reign of Hui-tsung, when a new tribal group, the Jurchen, became increasingly powerful in the region of present-day Manchuria, the Sung leaders were tempted into forging an alliance aimed at destroying the Liao. 13 With 13 On the Chin state, see Jing-shen Tao, The Jurchen in Twelfth Century China (Seattle: University of Washington Press, 1976); Jing-shen Tao, "The Influence of Jurchen Rule 41
Law and order in Sung China
the help of the Sung military, the Jurchen drove the Liao out of north China and established the Chin dynasty, but the Jurchen armies did not stop at the old Liao southern border. Emperor Hui-tsung, faced with the Jurchen invasion, abdicated the throne, but both he and the young man who had taken his place as emperor were captured by the invading armies, ending the period known as the Northern Sung. A Sung prince, fortuitously absent from the capital when it was captured, took the throne as Emperor Kao-tsung (r. 1127-62), the first ruler of the period known as the Southern Sung. For some years the fortunes of the Sung state were precarious. In the late 1120s, Sung armies were driven south of the Yangtze River. At one point the new emperor barely escaped capture by fleeing to sea. Only after a series of successful Sung counterattacks in the 1130s did the frontier stabilize, along the Huai River (see Map 2.2). In the treaties that punctuated these years of warfare, the Sung emperors recognized their inferior position and agreed to pay a sizable annual tribute to the northern state. 14 For the next two decades relations between the two states were relatively amicable. Until 1155 the Sung Court was dominated by the powerful official Ch'in Kuei (10901155), who had built his career on accommodation with the Chin. Even after his death and subsequent vilification by his long-suppressed bureaucratic enemies, the peace remained in effect, until shattered briefly by the ambitions of the Chin leader, Prince Hai-ling (r. 115061), who had seized the Chin throne through intrigue and assassination. The aging emperor Kao-tsung, weary of the burden of office he had carried for so long, abdicated at this point in favor of his heir, who reigned as Emperor Hsiao-tsung (r. 1162-89). Hsiao-tsung was one of the most effective of the Sung emperors. He carefully kept ultimate power in his own hands, in part by frequently changing his chief ministers. Within a few years of his accession a new peace treaty was drawn up, inaugurating four decades of peace along the northern borders, a peace which lasted until the abortive attempt to invade the Chin state during the first decade of the thirteenth century. The Sung defeat was followed by two more decades of peace, but a peace made problematic by the advent in the 1220s of a new foreign tribal power, the Mongols. on Chinese Political Institutions," Journal of Asian Studies 30.1 (1970): 121-30; and Jing-shen Tao, "Political Recruitment in the Chin Dynasty," Journal of the American Oriental Society 94.1 (1974): 24-39. 14 For the early treaties signed, see Herbert Franke, "Treaties between Sung and Chin" in Etudes Song, 1st series, no. 1 (The Hague: Mouton, 1970), pp. 55-84. For the politics of this era, see Richard L. Davis, Court and Family in Sung China, g6o-i2yg (Durham: Duke University Press, 1986), esp. pp. 46 fT.
42
The historical context
Map 2.2. The Southern Sung state and its neighbors by the mid-twelfth century
The Sung Court found it very difficult to create a workable policy to respond to the altered power situation created by the rise of this new tribal group. 15 A belated and probably foredoomed attempt to exploit Chin weakness by allying with the Mongols only set the stage for Mongol attacks against the Sung territories. From the time when the Mongols were able to destroy the Chin state in the late 1220s until the 12 70s, the Mongols fought an intermittent war against the Southern Sung, which ended only with the final collapse of the Sung dynasty in 1279. Despite these occasional wars, the Sung period overall was an era of peace and prosperity. It was a time of great economic growth and change and of technical advances. This era of growth and development,
15 See Charles Peterson, "First Sung Reactions to the Mongol Invasion of the North, 1211-1217," in John W. Haeger, ed., Crisis and Prosperity in Sung China (Tucson: University of Arizona Press, 1975), pp. 215-55.
43
Law and order in Sung China
which had begun in the T'ang and continued through the Northern Sung, did not begin to slacken in pace until the twelfth century. Money and credit During this remarkable period of more than two centuries, from the late T'ang into the mid Southern Sung, China developed a thoroughly monetized economy, with the invention and spread of the use of paper money, the widespread use of a variety of other paper instruments for commerce, an enormous increase in minted coinage, and the use of other media of exchange, including precious metals and silk.16 These increases were truly astonishing. The major type of coinage in imperial China was a round bronze coin with a square hole in the center. A string holding iooo such coins was a standard accounting unit. Already by 997 the Sung government was annually minting 800,000 strings of coins, two and a half times the largest output of the T'ang. By 1085 this had risen to over 6 million strings, the greatest annual output ever under the Chinese empire. It is estimated that over 200 billion coins were cast during the Northern Sung. In addition, the use of silver increased greatly, as reflected in increases in government collection of silver in taxes, from 884,000 ounces in 1021 to almost 3 million ounces in 1075, and a staggering 18 million ounces in 1120.17 The most noteworthy monetary innovation was the creation of a government system of paper money. The initial invention of paper money was stimulated by the peculiar coinage situation in Szechuan.18 In that region, iron rather than bronze was used for coinage. Because per unit of value such coins were much heavier than bronze coins, merchants were greatly inconvenienced. In the late T'ang, therefore, merchants in the region began using as money the certificates of deposit that they received from the deposit shops at which they had left money or goods. The early Sung authorities awarded a monopoly on the issuing of these certificates to a small set of shops and then in the 1120s took over the system and issued the world's first official paper money. Although there were periods during which the government incautiously issued money without sufficient backing, leading to serious inflation, by 16 L. S. Yang, A Short History of Money and Credit in China (Cambridge, MA: Harvard University Press, 1952); Robert Hartwell, "The Evolution of the Early Sung Monetary System," Journal of the American Oriental Society 87 (1967): 280-89; and Mark Elvin, The Pattern of the Chinese Past (Stanford, CA: Stanford University Press, 1973). 17 These figures are taken from Peter Golas, "Sung Financial Administration," unpublished manuscript, n.d. 18 Cristoph Schifferli, "Le systeme monetaire au Sichuan vers la fin du Xe siecle," T'oung Pao 72 (1986): 269-90.
44
The historical context
and large the Sung system was kept under careful control, which helped enormously in the growth of Sung commerce. Internally the rise of commerce changed the face of Sung China. The goods gathered and distributed by itinerant merchants had in the past been largely limited to luxury goods for the rich. During the Sung period they came to include daily necessities, which were sold not just to the rich but also to the majority of the population. Farmers, most of them no longer self-sufficient subsistence producers, became tied into a wider market and so were subject to its price fluctuations. As producers they supplied the urban trade; as consumers they also regularly purchased necessities.19 Externally, from the beginning of the dynasty, the Sung authorities enacted policies designed to stimulate overseas commerce. The Sung founder took care to assure merchants of his protection, to fix tax assessments, and to formulate commercial regulations. The Sung leaders soon began establishing officials charged with overseeing and encouraging foreign trade. Court officials were sent on missions to southeast Asian countries to encourage their traders to come to China. Money generated by foreign trade thus came to play a significant role in the government's total income, especially in the Southern Sung. Perhaps more importantly in the long run, this new orientation toward the sea contributed to the rise, for the first time in Chinese history, of a powerful blue-water navy and to a displacement of south and southwest Asian merchants by Chinese merchants sailing on Chinese ships as the principal commercial figures in east and southeast Asian waters. 20 Demographic changes The rise of a money economy and the commercialization of Chinese life were accompanied by some remarkable demographic changes. The whole rural demographic pattern had changed from the late T'ang into the Sung, with the rise of a vast number of small market towns, which served as markets for rural products and as suppliers of rural needs. 19 For more on these changes, see especially Yoshinobu Shiba, "Urbanization and the Development of Markets in the Lower Yangtze Valley," in Haeger, ed., Crisis and Prosperity, pp. 1 3 - 4 8 ; Yoshinobu Shiba, Commerce and Society in Sung China, trans. Mark
Elvin (Ann Arbor: University of Michigan Center for Chinese Studies, 1970); Yoshinobu Shiba, "The Commercialization of Farm Products in the Sung Period," Ada Asiatica, December 1970, pp. 77-96; Lawrence J. C. Ma, Commercial Development and Urban Change in Sung China (g6o-i2?g), Michigan Geographical Publication no. 6 (Ann Arbor: University of Michigan Department of Geography, 1971). 20 For a classic description of this process, which still holds good a generation after it was written, see Jung-pang Lo, "Maritime Commerce and Its Relation to the Sung Navy," Journal of the Economic and Social History of the Orient 12 (January 1969): 57—101.
45
Law and order in Sung China
Many of these towns began as "grass markets," small periodic markets that were sometimes far from the district or prefectural cities. These markets attracted teahouses, shops that sold daily necessities, and a growing population. Eventually they often attracted the attention of the government, which would establish tax collection offices there. 21 These changes in the distribution of the population also seem to have been accompanied by a continuous overall growth in population. Although the available statistics bristle with problems, it still seems quite possible that the Chinese population doubled between the middle of the eighth century and n o o , reaching a total of about ioo million in the latter year. 22 Industrial development In addition, great regional markets developed and, with them, significant industrial enterprises employing large work forces of hired laborers. Many of these enterprises, in which ownership was separated from management, manufactured goods for mass distribution. 23 In the words of Robert Hartwell: By the time of Wang An-shih (1021-86), alum making, salt processing, quicksilver and cinnabar production, shipbuilding, papermaking, and printing were all businesses in which the scale of operation and the absolute level of physical output were greater than was common in any other national economy before the last decades of the eighteenth century. But progress in the extraction and refining of metallic ores was even more astonishing. In 1067, 331,500 tons of iron, copper, lead, and tin were fabricated into articles to be used in construction, production, and destruction.24 Urbanization This industrial transformation was accompanied by an unprecedented increase in urbanization. The most economically advanced region of 21 Kato Shigeshi, Shina keizaishi kosho (Studies in Chinese economic history) (Tokyo: Toyo bunko, 1952), vol. 1, pp. 299-421. 22 Hans Bielenstein, Chinese Historical Demography, A.D. 2-1982 (Stockholm: Museum of Far Eastern Antiquities, 1987), vol. 59; and Ping-ti Ho, "An Estimate of the Total Population of Sung and Chin China," Etudes Song, 1st series, no. 1 (The Hague: Mouton, 1970): 33-53. 23 Robert Hartwell, "A Revolution in the Chinese Iron and Coal Industries," Journal of Asian Studies 21 (1962); and Robert Hartwell, "A Cycle of Economic Change,''' Journal of the Economic and Social History of the Orient 10 (July 1967): 162-59. 24 Robert Hartwell, "Markets, Technology, and the Structure of Enterprise in the Development of the Eleventh-Century Chinese Iron and Steel Industry," Journal of Economic History 26 (March 1966): 32.
46
The historical
context
China, the section of the delta south of the Yangtze River known as Chiang-nan, was probably the most highly urbanized area in the world before the rise of industrial Europe in the late eighteenth and early nineteenth centuries. The few cities of T'ang times had been predominantly governmental in character, planned in form, and kept under tight security control. Internally these T'ang cities had been divided by interior walls. Travel on the open thoroughfares was forbidden during the curfew hours of the night. The state attempted, with some success, to exercise control over the market systems that supplied these cities. Sung cities were radically different. Gone were the interior neighborhood walls with their police posts at the gates. Gone for the most part were the restrictive zoning rules and the curfews. Wide open, bustling, expanding outside the old walls and reaching into the surrounding countryside, Sung cities were a wonder of their times. Their people merchants, artisans, entrepreneurs, entertainers, soldiers, foreigners jostled one another in the crowded streets, 25 in which a new culture was being born. Indeed, the traveler Marco Polo, trying to describe the great city of Hangchou to his fellow Europeans, was continually concerned that the marvels he described would be discounted as fabulous. 26 This urbanization, reflected in the rise of great cities and the enormous increase in the number of market towns, is perhaps the single most striking trait of Sung demographic change. Still, in order to understand the problems of law and order in the Sung, we should keep in mind that even after this unprecedented urban growth, there were large sections of Sung China that were still quite wild and sparsely populated countryside, where tigers haunted the forests and bandits could roam almost at will.
Sung style of life Surely it is no accident that in these centuries there were changes in the ways in which the Chinese lived their lives. Before this period the Chinese knelt on grass mats, like the Japanese. By the Sung they were sitting on chairs. This led to other changes. The Chinese began to use higher tables. They no longer used mats on their floors, which now were often made of stone or tile. People could wear their shoes inside the house. Easily doffed slippers gave way to boots. If we look at Sung paintings, even those from the early years of the dynasty, we can see men 25 Jacques Gernet, Daily Life in China on the Eve of the Mongol Invasions (Stanford, CA:
Stanford University Press, 1970), gives a good picture of these great cities. 26 Marco Polo, The Travels of Marco Polo, trans. Henry Yule (London: Murray, 1921), vol. 2, chaps. 76, 77.
47
Law and order in Sung China
wearing such boots, sitting on chairs and eating and drinking from high tables. 27 The austere and somewhat heavy architecture of the earlier periods becomes lighter and taller. 28 In the Sung the straight roof lines characteristic of earlier buildings, at least in north China, gave way to gracefully curved eaves. The emphasis on lightness is also reflected in the Sung penchant for building soaring pagodas. In addition, the restrained color scheme of the past began to disappear when the Sung artisans solved the puzzle of glazing colored roof and floor tiles. Their golden roofs and green tiles began to pave the way toward the garishly painted red, green, blue, and gold buildings of later times. Then at some time in the Five Dynasties the gruesome custom of binding women's feet began. Girls had bandages tied around their feet, bending their toes over toward their insteps, so that eventually their arches broke. During the extended period before their feet became painless, girls suffered acutely. Often flesh sloughed away from the instep and one or more toes dropped off. The origin of this custom and the reasons for its widespread acceptance remain unclear. Still, it does seem to be connected with a greater degree of subordination of women in the Chinese elite classes. Until the end of the traditional empire, and even beyond, generations of Chinese mothers inflicted the burden of bound feet on their daughters. 29
The arts The Sung dynasty was also a period of changes in the arts. New poetic forms became the rage. Based on the patterns of popular melodies, these songs were freer in prosody than the older styles of poetry had been. 30 Sung poets also took the older forms in new directions. Sung poetry in the old style continues the earlier tradition of expressing certain emotions but now came to reflect intellect as well. Many poems were narrative in character, dealt with the minutiae of daily life, or expounded philosophical issues.31 Among the newer forms, the Sung writers carried furthest the development of songs. These originally were entertainment 27 For this development, see C. P. Fitzgerald, Barbarian Beds: The Origins of the Chinese Chair (New York: Barnes, 1965). 28 For Chinese architecture in this era, see Lawrence Sickman and Alexander Soper, The Art and Architecture of China (Baltimore: Penguin Books, 1956), chap. 35. 29 Howard S. Levy, Footbinding: The History of a Curious Erotic Custom (New York: Rawls, 1966). 30 James Hightower, Topics in Chinese Literature (Cambridge, MA: Harvard University Press, 1953), esp. chaps. 13, 14. 31 Kojiro Yoshikawa, An Introduction to Sung Poetry (Cambridge, MA: Harvard University Press, 1967).
48
The historical context
songs, words set to already existing tunes, and were intended to be sung by women. Along with a new prosody deriving from its lines of unequal length, the song form as developed in the Sung introduced the theme of romantic love into the realm of poetic discourse. In the world of the visual arts the Sung contribution was distinctive. Its most renowned figures were literati who turned to calligraphy and painting. Of course, in times past there had been many men who dabbled to some degree in the worlds of both the visual and the written arts, but in the Sung there is for the first time the presentation of such balanced participation as an ideal. In contrast to earlier times, the ideal of the Sung man of letters was to be skilled also in the visual arts. This aesthetic approach to the building of a proper Confucian life is epitomized by the figure of Su Shih. Poet, calligrapher, and writer of fine prose, he was also one of the leading statesmen of his age. Indeed, in his lifetime he was a leading figure in a group of Sung thinkers who stressed the positive role of aesthetic sensibility in the pursuit of the ideal of a Confucian gentleman. Only in the following century were the views of this group decisively defeated by the advocates of the philosophical and moralistic movement known as Neo-Confucianism.32 Sung pottery, too, reached levels of aesthetic refinement that many feel were never attained again, despite later improvements in technical skills. Indeed, a major Japanese intellectual historian has taken Sung poetry, calligraphy, and painting, and most especially ceramics, as the key to explaining changes in Sung Confucian thought. The central search among concerned Sung thinkers was for a synthesis of insight and expression that could be revealed in the arts as an outward expression of an internal transformation of the self. The objects of art should be the coming together of learned forms and inner vision and should stand in some sense for the self, which was also the product of learning and vision.33 Theater An urbanized culture with urbane tastes set the stage for the explosive growth in the popularity of the drama that marked the succeeding era of Mongol ascendancy. In his description of life in the Sung capital, Nai Te-weng wrote about the plays called tsa-chu: 32 On Su Shih, see Peter Bol, "Culture and the Way in Eleventh Century China" (Ph.D. diss., Princeton University, 1982). 33 Okada Takehiko, So-Min tetsugaku no honshitsu (The essence of Sung and Ming philosophy) (Tokyo: Mokujisha, 1984).
49
Law and order in Sung China
In the tsa-chu the actor director is senior, and there are always four or five people in one performance, first performing a section of the usual, familiar things, called "charm sections," then performing the "tsa-chu proper," also known as "the two sections." The actor-director role directs the general settings, the playleader role gives the specific directions, the clown role does the fooling, the jester role the quipping, and sometimes another actor is added to play the "mandarin role." . . . In general their performances are nothing but farcical comedy about matters old and new.34
The great popularity of such performances in the Sung is shown in the comment of Meng Yiian-lao describing the life of the Northern Sung capital, that in three of the city's amusement parks there were some fifty stages or theaters. The largest was said to hold several thousand people. 35
Technology and science The Sung dynasty was also an era of technological and scientific advance. Extensive use was made of explosives in construction. New techniques were employed for deep mining. Copper became so valuable that technicians designed systems for its hydrometallurgical extraction from mine waters. For the first time China became a sea power, with its bluewater navy becoming especially important after the loss of the north in the 1120S. An overall admiralty was established in 1132, and the Sung navy grew to a force of hundreds of ships manned by thousands of men and armed with trebuchets that could hurl gunpowder missiles. 36 Advances in ship construction, such as watertight bulkheads, and the use of the magnetic compass in navigation (definitely in use by 1070), made the Chinese ships of the day doubtless the safest in the world. The text which mentions the use of the magnetic compass in navigation before the end of the eleventh century also mentions the use of astronomical navigation, soundings, and studies of samples of the sea bottom as navigational aids. Also, because of the type of sail that they used, Chinese ships were particularly effective in taking advantage of winds coming from almost any quarter. 37 34 Nai Te-weng, Tu-ch'eng chi-sheng, in Meng Yiian-lao, Tung-ching meng-hua lu, wai ssu-
chung; quoted by William Dolby, "Early Chinese Plays and Theatre," in Colin Mackerras, ed., Chinese Theatre from Its Origins to the Present Day (Honolulu: University of
Hawaii Press, 1983), p. 20. 35 Dolby, "Early Chinese Plays," p. 25. 36 Joseph Needham, Science and Civilization in China (Cambridge: Cambridge University Press, 1965), vol. 4, no. 3, p. 476. See also Jung-pang Lo, "The Emergence of China as a Sea Power," Far Eastern Quarterly 14 (1955): 489-503. 37 Needham, Science and Civilization, vol. 4, no. 3, pp. 563, 602.
50
The historical context
Explosive weapons began to be used in warfare: From at least the eleventh century, Chinese armies were using flame-throwing weapons. Soon they developed grenades and bombs and by the thirteenth century were using firearms and cannon. 38 There also were advances in mathematics. Most notably in the last half of the thirteenth century, a brilliant group of algebraists worked independently on such problems as indeterminate analysis, the computation of complex areas and volumes, alligation problems, and arithmetical progressions.39 These examples could be almost endlessly multiplied. The Sung dynasty was one of the great eras of scholarly and scientific curiosity in Chinese history, its writings containing numerous treatises on archeology, architecture, and other scholarly and scientific topics. Printing One development with great long-term consequences was the rise of printing. Printing, invented in the T'ang and further developed during the Five Dynasties, reached its full potential only under the Sung.40 By making possible the wide dissemination of approved versions of the Classics, it set the stage for a revival of widespread interest in the Confucian canon; by lowering the price of books, it laid the foundations for a great expansion of literacy. The first printing of the Confucian Classics, undertaken by the official Feng Tao during the Five Dynasties, was completed only a few years before the founding of the Sung. Early in the Sung, scholars working at the Directorate of Education printed the Five Classics with Commentaries (in 988) and the Nine Classics with Commentaries (in 1001). Printing of Buddhist writings was also supported by the government. The Sung founder in 971 ordered the printing of the Buddhist canon, a task not completed until early in the next decade. The text ran to five thousand volumes.41 These were only the largest projects in an era that also saw the printing of several histories, dictionaries, and other such works. Both block printing and movable type were in use. A 38 L. C. Goodrich and Feng Chia-sheng, "The Early Development of Firearms in China," his 36 (1946): 114-23; and Wang Ling, "On the Invention and Use of Gunpowder and Firearms in China," his 37 (1947): 160-78. 39 Needham, Science and Civilization, vol. 3, pp. 38 ft0. 40 For information on printing, see Thomas F. Carter, The Invention of Printing and Its Spread Westward, revised by L. C. Goodrich (New York: Ronald Press, 1955); Paul Pelliot, Les debuts de Vimprimerie en Chine (Paris: Imprimerie nationale, 1953); L. C. Goodrich, "The Development of Printing in China and Its Effects on the Renaissance Under the Sung Dynasty," Journal of the Hong Kong Branch of the Royal Asiatic Society 3 (1963): 36-43. 41 Kenneth C. S. Ch'en, Buddhism in China: A Historical Survey (Princeton, NJ: Princeton University Press, 1964), p. 375.
51
Law and order in Sung China
regular book industry grew up, catering to the vastly increased number of literate people. Sung intellectual life During the Sung dynasty China's intellectual life was transformed. The stress on the examination system as a route to office under the Sung prompted an increase in education geared to earning degrees. Because passing the examinations depended heavily on a knowledge of the Confucian Classics and commentaries, a growing pool of men devoted themselves to studying these works. Though it would be a mistake to underestimate the importance of Buddhism and Taoism to the male members of the Chinese elite in the Sung, nonetheless it is fair to say that Confucian values and attitudes became more and more important. During the reign of the fourth Sung emperor, Jen-tsung, these developments began to bear fruit. A group of scholar-officials arose who adopted a different approach to the Classics: They began to emphasize the importance of directly understanding their basic message, thereby bypassing the learned commentaries of the Han and T'ang. The insights gained in this way were to be applied to the reformation of social and political life. The last four decades of the Northern Sung, when this movement blossomed, were one of the most creative eras in the history of Chinese thought. The ideas discussed in these decades were further refined during the Southern Sung, until they provided the agenda and corpus that were to dominate the thinking of Chinese leaders into the seventeenth century. This new interest in the classical heritage raised with renewed sharpness the continuing tensions in China between duty to self and duty to society. From its beginnings Confucianism had strongly emphasized the idea of service to society. Indeed, this is one defining characteristic of the Confucian persuasion. The ideal is superbly expressed in the epigram of the statesman Fan Chung-yen, who stated that "a scholar should be the first to become concerned with the world's problems and the last to rejoice in its happiness." 42 Such an emphasis on service is characteristic of most of those involved in the Confucian revival at this time. However, Confucianism also underscored the need for considering oneself. It was possible to be too selfless, like the thinker Mo-tzu, of whom the Confucian Mencius had said that "Mo Tzu advocates love without discrimination. If by shaving his head and showing his heels he could 42 Translation in James T. C. Liu, "An Early Sung Reformer: Fan Chung-yen," in John K. Fairbank, ed., Chinese Thought and Institutions (Chicago: University of Chicago Press, 1957), P- " I -
52
The historical context
benefit the Empire, he would do it." 43 Certainly, individuals have social responsibilities, but these should not lead them to abuse their bodies, which are a sacred gift from the ancestors. To disfigure oneself so that one looks like a convict was beyond the reasonable. A balance was needed between service to self and service to society, but the very idea of self was ambiguous. In one sense, self in the Chinese context was not the isolated individual but, rather, the individual as a creature defined by interrelationships with others. Such relationships could be based on friendship, shared work or residence, or, most importantly, ties of kinship through blood or marriage. The closeness of these kinship ties were precisely defined in terms of "mourning degrees," which were reflected in the various mourning rituals owed to different relatives. The closer the relative was, the longer the mourning period and the more elaborate the rituals should be (see Figure 2.1). The "self" was thus seen in terms of others. To preserve and promote this self was not just to preserve and promote ego, but also to bring honor to one's ancestors and to protect one's descendants. At the minimum, such a self encompassed duties and ties to progenitors and descendants. The corporate character of the core kinship group in traditional times could be seen in customs, mores, and laws. Before the establishment of the empire in the third century B.C., and to a lesser degree thereafter, this corporate character meant a duty to avenge wronged relatives. This duty is closely bound up with the practice of joint adjudication and punishment. In preimperial times the prudent victor in one of the innumerable conflicts of that age often exterminated all the relatives of the loser that his power could reach. Even after the beginning of the empire, such joint adjudication and punishment were retained for certain classes of crimes. Those involved through association might have their patrimonies confiscated or be severely punished, even enslaved by the state or executed. Such joint adjudication affected certain related groups, most commonly people living in the same household and close relatives. Under some circumstances it might be extended to other members of certain types of organizations such as state-mandated mutual security and surveillance groups, a clear indication of the felt importance of corporate identities. Given the existence of such corporate groupings, and the identification of the self in terms of ties to other members of the group, the possibilities for conflict between these corporate, especially family interests and the public interest, are obvious. The tensions between Confucian social commitment and concern for the self was complicated by a new emphasis on the importance of self43 Lau, trans., Mencius, p. 188.
53
b d f m s S w
brother daughter father mother sister son wife
fffm
fffs 5
ffm
fffbd 5 or none
ffs 4 or 5
fm
fffbSd 5 or none
ffbd 4 oi 5
fs 2b or 3
m 2a
ffbSd 4 or 5
fbd 3 or 4
s 2b or 3
ffbSSd 5 or none
fbSd 4 or 5
dbd 2b or 3
Sw 2b or 3
fbSSd 5 or none
bSd 4 or 5
SSw 3 or 5
Sw son's wife ff father's father and so on
fffbSSd 5 or none
ffff
For female relatives the variations in mourning depend on whether they are still living at home or have married out.
fff
fffbw
2d
fbSSSd 5 or none This chart is based on the assumption that ego is male. There would be some relatively minor variations if ego were female.
2c ff
ffbw
f 1
ffb
fffbSw fffbS 5
fbw fb 2b
ffbSw ffbS 4
bw 4
b 2b
S 1 or 2b
bSw 4
bS 2b
SS 2b or 3
bSSw 5
bSS 4
EGO
For sons, grandsons, and their wives the variations depend on whether the son or grandson involved is eldest or not.
4
2b
SSS 5
fffb 5
fbSw
fbS
ffbSS 4
fbSS 4
ffbSSS 5
3 fbSSw 5
fffbSSw fffbbS 5 fffbSSS 5
fbSS 5
bSSS 5
SSSS 5
Figure 2.1. Mourning chart. From Yuan tien-chang. Reproduced by permission from Brian E. McKnight, "Song Legal Privileges," Journal of the American Oriental Society 105 (1985): 105. The numbers 1-5 indicate mourning degrees. Numbers followed by letters indicate subdivisions within mourning degrees.
The historical context
discovery and the self-improvement of the individual. Many men who were committed to the Confucian vision wanted to make themselves exemplary individuals. Certainly there could be strong commitments 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 (chun-tzu) or even a sage. Until the middle of the eleventh century this movement was present only in embryo. A century and a half of avid pursuit of and debate about Confucian goals and the ways to reach them began in the 1040s. During this period of 150 years, a variety of answers were proposed. One group, especially prominent during the Northern Sung, saw artistic creation as the proper avenue to the Confucian realization of the Way. Its leader, Su Shih, "made himself important because he concerned himself with standards for culture and cultural activities at a time when literati believed that culture was central to the organization of national life and the foundation upon which literati maintained themselves as the political, social and intellectual elite of China." 44 This artistic orientation was soon challenged by men who emphasized the primacy of moral and ethical self-cultivation. Despite differences among some of the Neo-Confucian thinkers of the late eleventh and twelfth centuries, they did share a sense of the central importance of the moral cultivation of the self. Chu Hsi (1130-1200), who synthesized the ideas of many of his predecessors into a philosophy that was to become and remain orthodox in much of East Asia until the twentieth century, wrote: Confucius spoke of "the conquest of self and return to propriety." The Doctrine of the Mean says, "Advance toward equilibrium and harmony," or again "Prize the virtuous nature and pursue the path of inquiry and study." . . . Man's nature is originally clear, but it is like a pearl immersed in impure water, where its luster cannot be seen. Being removed from the dirty water, however, it becomes lustrous of itself as before. If each person could himself realize that it is human desire that causes this obscuring, this would bring enlightenment. It is on this point alone that all one's efforts must be concentrated.45 This group of thinkers redirected the focus of the interests of the Chinese elite.
44 Bol, "Culture and the Way," conclusion, p. 1. 45 Chu Hsi, Chu-tzu yu-lei, 12.8. Translation from Fung Yu-lan, A History of Chinese Philosophy (Princeton, NJ: Princeton University Press, 1952), vol. 2, pp. 559-60.
55
Law and order in Sung China
Political and social changes Such intellectual changes were interwoven with a momentous transformation in the character of the Chinese political and social elite. Although there are disagreements about the details of this transformation, it is widely recognized that between the T'ang and the Sung the nature of the ruling class changed.46 Until the late T'ang, political power was predominantly in the hands of a relatively small group of families, which intermarried with one another and dominated life at the Court. In the provinces a larger group of regional elite families reproduced this pattern on a smaller scale.47 This situation began to change in the late T'ang, especially after the rebellion of Huang Ch'ao in the 870s. New powerful regional military lords arose, who, in the ensuing Five Dynasties period (907—60), dominated politics.48 It was in this Five Dynasties era that the older aristocratic families finally lost their position of power. Military men, often from humble backgrounds, used other military men as subordinates in key posts, and even the civilian advisers that they employed came less and less frequently from the old families. When the Sung founder and his successor succeeded in reducing the influence of the military on politics, the civilian cadre of officials was in a position to emerge as the decisive group in the political equation. 49 Although the details of the changes are not wholly clear, it does seem that between the T'ang and the Sung periods there was a significant transformation of the family system. With the decline of the older aristocracy, the older practices for ensuring the continuity of the elite families' fortunes across the generations changed in their emphasis and in their particulars, if not in their general character. In traditional Chinese families the patrimony was divided equally among sons after the death of the father, with unmarried daughters receiving smaller amounts (usually in the form of dower portions). Because of this, it was necessary to work continually if the family's economic position was to be preserved. Furthermore, as the group of relatives grew larger over the generations, 46 David Johnson, "The Last Years of a Great Clan: The Li Family of Chao Chun in Late T'ang and Early Sung," Harvard Journal of Asiatic Studies 37 (1977): 5-102; Robert Hartwell, "Demographic, Political, and Social Transformation of China, 750-1550," Harvard Journal of Asiatic Studies 42 (1982): 365-442; and Robert Hymes, Statesman and Gentleman (Cambridge: Cambridge University Press, 1986). 47 Denis Twitchett, "The Composition of the T'ang Ruling Class: New Evidence from Tunhuang," in Arthur Wright and Denis Twitchett, eds., Perspectives on the T'ang (New Haven, CT: Yale University Press, 1973), pp. 47-87. 48 Wang Gung-wu, The Structure of Power in North China During the Five Dynasties (Stanford, CA: Stanford University Press, 1963). 49 Worthy, "The Founding of Sung China."
56
The historical context
affective ties declined in strength. By the Sung period, elite families no longer had the overweening sense of status pride that, despite these centrifugal tendencies, had tied together members of the great T'ang choronyms (groups of relatives tied together by both surname and identification with the family ancestral home, e.g. the Kennedys of Hyannisport). How were kin beyond those most closely related to be held together? Institutionally, the most revealing example of a device for encouraging kin solidarity was the endowed clan estate. Such estates, administered by managers, produced revenues that were supposed to be used for projects and activities that would promote the kin group, such as shared ritual feasts, schools for the children, and relief for poorer members. The prototype of these estates was that founded by the great eleventh-century statesman Fan Chung-yen (989-1052). Himself an orphan in childhood, he eventually sought out his natal relatives and endowed an estate as a means of encouraging their solidarity. That these estates frequently did not work as intended by their founders — that the rich and powerful among the kin tended to usurp control - points up the very problem of lack of kin solidarity which the estates were established to remedy. Nonetheless, they stand as symbols of a renewed emphasis on the longterm preservation of kin power and solidarity. 50 The families that tended over time to dominate such enterprises were the same group of relatively well-to-do landowning families who dominated local life.51 The basis of the influence of these families was usually landownership, the income from which they used to reinforce their role in local life by taking leading roles in local charitable activities, organization of local self-defense forces, construction projects, and other local activities. Ideally, a family in this group wanted to pass on its patrimony and occasionally to place a member in the civil service elite through the competitive civil service examinations. Although graduates of these examinations were never numerically dominant in the Sung civil service, they were overwhelmingly important on the higher policymaking levels of government. It has been suggested that during the Northern Sung, this official elite was dominated by a group of families who had close connections by marriage. These families sought to preserve their family fortunes by obtaining national offices for their members. 52 In the late Northern Sung and the Southern Sung, when gaining national office 50 On these estates, see Denis Twitchett, "The Fan Clan's Charitable Estate, 10501760," in David S. Nivison and Arthur F. Wright, eds., Confucianism in Action (Stanford, CA: Stanford University Press, 1959), pp. 97-133. 51 On the local elites, see Hymes, Statesman and Gentleman. 52 Hartwell, "Demographic, Political, and Social Transformations of China."
57
Law and order in Sung China
through the examination system became more difficult, and the offices so gained less secure, Sung elite families began to focus their concerns more on their home areas, intermarrying with their neighbors and concentrating to a greater degree on local concerns. The increased competition in the examination halls, which made ordinary examination degrees harder to earn, coincided with an increase in the use of less regular channels of recruitment and more importantly with an increase in the importance of irregularly selected officials. It also coincided with the spread of a new interpretation of the Confucian message, which emphasized the importance of education as a path to personal salvation through the cultivation of the self, rather than as a route to success in the examinations. This interpretation was only one among a number of new interpretations of the Confucian message that competed for the allegiance of educated men in the Sung. However, under the social and political conditions of the Southern Sung, in its formulation by the philosopher Chu Hsi (i 130-1200), this interpretation became more and more influential. In the decades after Chu Hsi's death, it became the dominant strain of thought among the educated. It appealed to some people because it validated education for personal development and a withdrawal from political involvement; it appealed to the government because of its stress on obedience and loyalty. Government administration The Sung regime also reconfirmed the traditional Chinese imperial attitude that governing was a matter for officials. People who were not members of the government were not supposed to concern themselves about political questions. Furthermore, in the Sung period the reproduction, distribution, or possession of laws or edicts by nonofficials was illegal. Sung commoners were not citizens in the Western sense. They were subjects. But although the basic relationship between rulers and ruled did not change, the governmental institutions through which power was exercised continued to evolve. The change most relevant to the processes of the law was the trend toward the centralization of power, combined with a continuing imperial respect for bureaucratic opinion. Centralization of power was reflected in the organization of the central offices, the relation of the center to local areas, and the role of the ruler. The main change in the way that the central government was organized was the gradual increase in the powers of its chief ministers. During the first century of Sung rule the most important central government organs were the SecretariatChancellery, which controlled government administration (except for 58
The historical context
military and fiscal administration), the Finance Commission, which controlled fiscal and economic affairs, and the Bureau of Military Affairs, which planned and directed the national defense. T h e principal policy g r o u p under this arrangement was the Council of State, a body composed of a varying n u m b e r of councillors. It was headed by chief councillors, who most often n u m b e r e d two, though sometimes there was only one a n d occasionally as m a n y as three. These chief councillors were the heads of the Secretariat-Chancellery. T h e y were assisted by men who were the heads of the Bureau of Military Affairs and by their own assistants from within the Secretariat-Chancellery. This group met regularly to discuss affairs that had only their importance in common. 5 3 T h e n , during the reform era under Shen-tsung, the powers of the chief ministers were expanded. Control over financial policy and then over personnel policy became more centralized. In the words of J a m e s Liu, Another aspect of further centralization was the concentration of power in the executive branch at the very top of the government organization . . . the executive department no longer observed the former division of jurisdiction; it now had direct control over the Finance Commission, and without its approval no regulations pertaining to state finance could be put into effect.54 T h i s increase in the powers of key ministers was carried further during the Southern Sung, when during military emergencies, the chief minister came to hold concurrently the position of head of the Bureau of Military Affairs or its equivalent, thereby giving him control over all vital areas. T h e three top organs at court, the Imperial Secretariat, the Imperial Chancellery, and the D e p a r t m e n t of State Affairs - which in the Northern Sung had been kept separate as a part of a deliberate balancing of powers - in the Southern Sung were consolidated under the control of the chief minister. Furthermore, he came to have control over m a n y cases of bureaucratic promotion and demotion, giving him a powerful device for controlling his subordinates. At the same time it was during the Sung that the trend toward an increasingly autocratic emperor emerged. This change is usually traced to the change in the social origins of the officials. During earlier times the officials were themselves usually members of politically powerful families, and the emperor was often only the first a m o n g equals. D u r i n g the Sung, when the officials came to be d r a w n from a much larger g r o u p of less politically powerful families, the emperors had relatively 53 For a good brief description of this system, see E. A. Kracke, Jr., Civil Service in Early Sung China (Cambridge, MA: Harvard University Press, 1953), chap. 3. 54 James T. C. Liu, Reform in Sung China (Cambridge, MA: Harvard University Press, 1968), pp. 86-87.
59
Law and order in Sung China
greater power. Although during the Sung itself the emperors treated their officials with respect, the growing gulf between emperor and bureaucrat was already being demonstrated in Court ritual. Whereas the T'ang grand councillors had sat with their sovereign to discuss policy, Sung Court officials stood at attention. The emperor's potential power was also less hindered by the power of his relatives. Imperial relatives, with the exception of some empresses-dowager, were generally less influential than they had been in earlier times. Until quite late in the dynasty, members of the imperial Chao clan were kept from participating in the powerful offices of empire, and though by the time the empire fell to the Mongols there were many Chao family members in office, and a few had risen to high office, they in no way exercised an amount of power analogous to that of the imperial relatives in such dynasties as the Han and T'ang. Despite the planting during the Sung of the seeds of later autocratic rule, this dynasty is known for the degree of respect paid by the emperors to their ministers. Perhaps this stems from the high quality of many leading officials; no doubt it also derives from the example of respect set by the founding emperors and from a sensitivity to the importance of imperial cooperation with the bureaucracy. This is not to say that emperors were not sometimes at odds with the general opinion of their officials. Emperors might resist the climate of opinion for considerable periods of time, but in the end they usually surrendered. 55 On several occasions they also backed down when officials remonstrated with them for making exceptions to the laws and precedents. 56 And periods like the reign of Hui-tsung, when the emperor often intervened to decide legal cases by decree, were looked on as unfortunate aberrations from generally accepted imperial practice. During the Southern Sung this desire for a cooperative regime was carried even further. James Liu characterized the political style of this era as one of accommodative politics, in which the emperors preferred to gain their ends by indirection, rarely allowing confrontational politics. Instead, they pigeonholed unwelcome recommendations, asked those involved to reconsider in search of some grounds for agreement, or 55 For example, Emperor Jen-tsung's retention of his chief minister Ch'en Chih-chung despite a continuing attack by censors and others, for almost six months. But in the end Jen-tsung gave in to the weight of opinion. See Brian E. McKnight, "Crime in High Places: The Case of Ch'en Chih-chung," in Kinugawa Tsuyoshi (ed.), Liu Tzu-chien hakase soshi kenkyu (Studies in honor of Dr. Liu Tzu-chien) (Kyoto: Dohosha, 1990), pp. 499- 51556 This happened repeatedly when emperors wanted to exclude specific individuals from the benefits of amnesties. Officials argued successfully that this would undermine public confidence in the sovereign's word.
60
The historical context
openly agreed with suggestions but did nothing about them. Only as a last resort would the emperors move strongly against unwelcome critics. Even then they sometimes did so by subtly soliciting criticism of the critics, feigning reluctance as they supported such reports. 57 Role of law O n e characteristic of this bureaucratic system was an elaborately developed system of laws, both proscriptive and prescriptive. 5 8 T h e Sung administration had inherited its body of proscriptive laws from the T ' a n g , which in turn had built on the developments of preceding dynasties. T h e key rules were enacted as lu, or statutes, and were included in a published code. T h e earliest Sung Code, issued in the early 960s, was largely a copy of the T ' a n g Code of 737, with the addition of some laws created after 737. In its thirty chapters it set down the principal crimes and specified the penalties that were to be attached to them. More important for controlling the functionaries, including the legal functionaries, was the enormous elaboration of prescriptive rules, specifying who was to do what, how, when, and where (see Table 2.1). During the Sung these prescriptive rules were divided into three types. T h e broadest were the ling (ordinances), which were general procedural rules for the conduct of government business. T h e Sung Code compiled in the early thirteenth century (which preserves rules from much earlier) contains many examples of ordinances. An example pertaining to the penal system offers some idea of the character of such rules: All those who are to be convoyed so that they can be penally registered [for labor] in the army, upon the arrival of the date that marks the start of winter, may be temporarily detained for labor at their place of judgment or in the prefecture at which they have arrived. They should be given stipends. When the second month arrives, send them on. When the circumstances of their crimes are serious, or they are to be registered in Kuang-nan and they have already entered the circuit where they are to be registered, do not apply this ordinance. 59 T h e second type of Sung prescriptive rules were called ko (regulations). These rules were concerned (during the Sung) with determining 57 See James T. C. Liu, China Turning Inward: Intellectual and Political Changes in the Early Twelfth Century (Cambridge, MA: Harvard University Press, 1987). 58 For a more detailed description of the pattern of Sung laws, see Brian E. McKnight, "From Statute to Precedent: An Introduction to Sung Law and Its Transformation," in Brian E. McKnight, ed., Law and the State in Traditional East Asia: Six Studies on the Sources of East Asian Law (Honolulu: University of Hawaii Press, 1987). 59 Hsieh Shen-fu, Ch'ing-yuan Viao-fa shih-lei (hereafter cited as TFSL) (Tokyo: Koten kenkyu kai, 1968), p. 523.
61
Table 2.1. Types of Sung laws Category
Character
Lu (statutes)
Fundamental rules governing some aspects of governmental organization, legal procedures, and what we would consider crimes. All "criminal" in the sense that the rules take the form, "If you do (or fail to do) act A, you will be liable for punishment B." Basic procedural rules. These rules governed many aspects of governmental activities. They were prescriptive rather than proscriptive. Ordinarily the texts of such rules did not specify the penalty that would follow infraction. (These penalties were set by a separate rule, and were very light.) In the Sung these rules were concerned with questions of quantity or amount. They determined such things as the complement of clerks in an office, the amounts of rewards, the lengths of mourning leaves that officials should observe for categories of relatives, and so on. Excluding the handful of rules in this category which the Sung administration had taken over from earlier dynasties, most specifications determined the specific characteristics of certain materials used in communication. Thus they determined the formats of official documents, but they also determined the specific characteristics of objects involved in ritual communication. In Chinese thinking this meant that specifications fixed the nature and dimensions of imperial buildings, since such buildings were ritually significant. During the Sung the use of this term is sometimes ambiguous. It is used simply to mean an edict, any edict, and thus in terms of content might describe rulings which would fall in any one of the categories listed above. However, during the eleventh century the term also came to be applied specifically to rulings which had the character of statutes, that is to say rulings which specified a particular punishment for doing or failing to do a particular action. Precedents became increasingly important in this era, These precedents were the responses to specific cases or issues which were promulgated by the central administration and which nominally indicated imperial decisions. Such rulings were more and more often cited by Sung officials in determining cases, and eventually were compiled into regular sets of laws. Because the word indicates their origin rather than their content, precedents could resemble in content any of the above sorts of substantive categories of rules.
Ling (ordinances)
Ko (regulations)
Shift* (specifications)
Ch'ih (edicts)
Lf (precedents)
62
The historical context
levels or quantity. T h a t is, regulations determined such questions as the personnel quotas of government units, pay scales, the amounts of money or goods to be used in rewarding the meritorious, and the lengths of mourning leaves for officials. T h e third type of prescriptive rule, a type peculiar to the Sung as a formal category of law, was called shih* (specifications). These rules determined the specifications of aspects of systems of communications. They thus encompassed a wide spectrum of activities which the Sung Chinese conceptualized as communications patterns, including all aspects of ritual behavior as well as more m u n d a n e matters like documentary formats. 6 0 Some idea of the vast size of these bodies of rules can be conveyed by noting that a collection of the rules concerning the imperial Hall of Light, a ritual building used by the emperor, totaled twelve hundred volumes. Another compilation, of rules bearing on the reception of tributary envoys from Korea, ran to almost fifteen hundred volumes. 6 1 These various categories of laws were administered by a hierarchy of administrative and judicial officials who staffed the central government organs or were posted to the three principal levels of local administration. Sung local administration was heir to a long tradition. From late in the Chou dynasty (1027-256) some kingdoms governed local areas through a nested hierarchy of territorially defined units staffed by centrally appointed officials. T h e officials in charge of the lowest levels of these hierarchies generally had catholic responsibilities, including general administration, judicial administration, and revenue collection. Although there were some changes over time in terminology and character, generally the system used in imperial China was based on local units called districts (hsien). Although in some eras (including the Sung) the districts did have some subunits staffed by formal government agents, the hsien remained the fundamental units of local control (see Figure 2.2). During the Sung a district was headed by a district magistrate who had general responsibilities for district affairs. He was (usually) assisted by a recorder concerned primarily with taxation and other documentary matters, a sheriff concerned with law and order, and at times an assistant magistrate. This rather simple distribution of offices and duties was in practice made more complicated by a pattern of sometimes-overlapping functions and, in the smaller districts, by a policy of having a single official hold several of these offices concurrently. 60 Brian E. McKnight, "Patterns of Law and Patterns o£ Thought," Journal of the American
Oriental Society 106 (1982): 323-31. 61 McKnight, "From Statute to Precedent," p. 122.
63
Law and order in Sung China
Figure 2.2. Sung local administrative structure: circuits (lu or tao) (between fifteen in the late tenth century and twenty-three in the reign of Shen-stung, 1165-1085); prefectures (approximately ten to twenty per circuit); districts (hsien) (from two to twenty per prefecture)
In trying to visualize the functioning of these offices one should bear in mind that many local functions were actually carried out by unpaid local agents working below the district level. The population of China had long been divided into small subunits for purposes of control. The administration therefore called on some members of these local population groups to perform needed functions. A number of such hsien would be grouped together to form the next higher-level administrative unit, the prefecture. This middle, prefectural, level of government had been a key level of administration in pre-Sung times. During the Sung a pattern developed in which greater emphasis was placed on the districts and on the larger units called circuits, with the prefectures playing a somewhat smaller role. During most dynasties the prefectures in turn were grouped together to form the largest local units, called circuits in the Sung (when they were only partly administrative in character) and provinces under the later dynasties (when they were basically administrative). This largest unit did not exist as an administrative entity under the early dynasties. 62 Instead, in the Han period the prefectures were grouped together as units for purposes of inspection and surveillance. The officials charged with these inspection duties were in no sense the line superiors of the prefects. Indeed, they were of much lower bureaucratic rank, and did not have administrative (as opposed to surveillance) duties. Such grouping of prefectures for purposes of oversight continued in use sporadically under ensuing dynasties, but only in 62 On the circuit system and its antecedents, see the excellent description in Winston Lo, "Circuits and Circuit Intendants in the Territorial Administration of Sung China," Monumenta Serica 3 (1974-75)- 39—107.
64
The historical context
the Sung did the officers in charge of such units begin to have some administrative responsibilities. The Sung units, headed by officials called circuit intendants, were usually termed circuits (lu). In many cases the boundaries of these Sung circuits correspond roughly to the boundaries of the provinces of the later dynasties, and indeed, Sung circuits should be seen as the progenitors of the provinces. However, although ancestral to the later provinces, Sung circuits were not provinces. First, the duties of the circuit intendants remained basically inspectorial, despite the accretion of some administrative responsibilities. Second, despite the trend in practice toward multifunctional circuit intendants, the Sung circuit intendants were in name, and largely in practice, functionally specialized. Thus a given circuit might have a fiscal intendant responsible for the efficient mobilizing of resources, a judicial intendant charged with seeing that justice was fairly administered, a military intendant overseeing certain military matters, and perhaps other sorts of intendants with special duties. No intendant had line superiority over his colleagues, and so no intendant corresponded exactly to the later governors of the provinces. In general the number of circuits into which the empire was divided grew over time. Finally, the circuit boundaries of the intendants also did not necessarily coincide, so that the area overseen by a military intendant, for example, might be different from the area overseen by his colleague the judicial intendant. The judicial hierarchy in local areas corresponded to this administrative hierarchy. Although the heads of subunits of the district occasionally might have some minor judicial responsibilities, the basic level of judicial administration was the district. The staffs of these districts varied somewhat depending on size. As described, in the most populous Sung districts there might be several civil service officials but in less-populated places some of these posts would not be established, and single individuals might serve concurrently in two or more of the posts that were mandated. Most legal cases probably entered the district court as the court of first instance, although it was possible for cases to begin at the prefectural level. The magistrate had the power to rule on and carry out penalties in all cases in which the punishments did not exceed one hundred blows of the heavy rod. This would cover many minor crimes and most of the cases that we would classify as civil. Cases involving crimes calling for penalties heavier than beating with the heavy rod had to be sent up to the prefecture or higher levels for review, although the magistrate issued a preliminary ruling and a recommendation for sentencing. Sung prefectures had control over a number of districts. The least 65
Law and order in Sung China
important prefectures might control only one or two districts, but the average was closer to ten. Prefectural administration was headed by a prefect, assisted by one or two controllers general (t'ung-p'an) who dealt with general administrative matters and headed the judicial administration. Under these prefectural heads there were several staff organs. These included organs primarily concerned with judicial administration, which sometimes served as courts of first instance but did not specifically deal with law enforcement. 63 The Sung state thus had a relatively complex structured judicial system and a law-enforcement system that partly paralleled and partly diverged from the pattern of this judicial system. Both rested on informal and semiformal mechanisms among the people that settled disputes and captured and sanctioned wrongdoers, and both were the product of current problems and inherited practices. The structure of law-enforcement agencies that evolved during the Sung, with its mixture of civil and military agencies, can be understood only in light of its historical background. The problem was set by the complex, vital, creative, and rapidly developing society of Sung times. The response of those in the government who established the actual policies regarding law enforcement was conditioned by their views on the nature of deviance, known technological and fiscal limitations, and a shared historical understanding that suggested certain possible responses. These, combined with an analysis of the historical mistakes of the Sung predecessors, led to the creation of a complex interlocking set of law-enforcement institutions. 63 A good brief description can be found in Kracke, Civil Service, pp. 45-53.
66
3 Crimes and criminals
Crime as a function of law During the early 1960s the conventional wisdom of criminology - the positivist school which adopted the view that crimes were the objective properties of certain types of acts - was challenged by a new school of thought. This new approach, labeling theory, took the position that "crimes" were created when certain individuals defined certain examples of behavior as falling into categories of forbidden and punishable actions. 1 In one rather simple sense their approach was rather like that of Thomas Szasz, who in his controversial book The Myth of Mental Illness maintained that the mentally ill are created by definition. 2 The labeling theorists focused on how categories ("criminals") are socially constructed from the outside. People are ill or are criminals because their society has defined certain behaviors as evidence of illness or criminality. These misbehaviors are legislated into existence. These recent theorists are unconsciously echoing here a theme reminiscent of the classical Taoists. Men create deviance and crimes by defining propriety and legality. In simple terms a crime is a violation of state rules that makes the perpetrator liable for sanctions. "A crime is any act committed in violation of a law that prohibits it and authorizes punishment for its commission." 3 The more laws there are, the more crimes there will be, and the fewer laws there are, the fewer crimes there will be. In Western jurisprudence this attitude is expressed by the legal principle of nullum crimen sine lege, that without a law against it no act can be considered a crime. The Sung period itself provides a classic illustration of this process of creating new crimes through legislation. The Sung History 1 For a good brief discussion of labeling theory, see Gary D. LaFree, Rape and Criminal Justice: The Social Construction of Sexual Assault (Belmont, CA: Wadsworth, 1989), pp. i8ff. 2 Thomas Szasz, The Myth of Mental Illness (New York: Harper & Row, 1974). 3 Wilson and Herrnstein, Crime and Human Nature, p. 22.
67
Law and order in Sung China
Table 3.1. Numbers of penal rules Penalty Date
Death
Exile
Penal servitude
Heavy rod
Light rod
Penal registration
Death with appeal
1029 10411056-
17 48 108
34 55 105
106 211 272
58 326 399
76 88 126
63 144 189
53 91
remarks that in the period 1008 to 1016 there were 40 items of Sung law
that called for the punishment of penal registration (registration in certain labor battalions of the army); by 1041 to 1047 t n i s had increased to 70 items; and by 1174 to 1189 it had reached 570 items. Therefore, "because the laws on penal registration were numerous, violators increased day by day. Men being punished by penal registration were everywhere" 4 (see Table 3.1). English law in the eighteenth century showed a similar pattern of development, with an enormous increase in the number of laws. 5 In the English case we know that these new laws were laws to protect private property and reflected the rising power of the capitalist class. Given the rapid economic growth in China during the Sung period, the influence of those seeking to defend property rights might have been a factor in the increased number of laws, but since the laws themselves are no longer extant, we cannot know for certain. The labeling theorists were also saying something rather more subtle than this question of legislating crimes. They were suggesting that crimes are created by adjudication, when some person or persons with the power to make a ruling declares that a specific instance of behavior falls within the scope of previously enacted legislation. These advocates of the labeling theory appeared in force in the 1960s. In the following decade the problem of defining crime was further complicated by the appearance of conflict theorists, who went beyond the position of the labelers to point out that those doing the defining were the ruling elites and that those with power made the rules and set down the definitions as devices designed to defend their privileges. States create crimes by enacting laws, laws that serve to protect the power of the ruling group. 6 4 T'o T'o, Sung shih (hereafter cited as SS) (Beijing: Chung-hua shu-chu, 1977), 201.5020. 5 E. P. Thompson, Douglas Hay, Peter Linebaugh, John G. Rule, and Gal Winslow, Albion's Fatal Tree: Crime and Society in Eighteenth Century England (New York: Pantheon, I976)6 LaFree, Rape and Criminal Justice, chap. 3.
68
Crimes and criminals
To a historian the dispute among the positivists, labelers, and conflict theorists seems to result primarily from their particular perspectives on the problems of deviance. Certainly, some forms of "deviance" are created by labeling, whether legislative or adjudicative, if we use that term broadly to include all the rules that can lead to punishment by the state. Driving fifty miles an hour on some American highways is not punishable. Driving sixty miles an hour on those same roads is, because of a defined speed limit. When deciding that A committed certain acts against B and that those acts fall within the scope of a statute, judges or juries are defining a particular act as being a crime. But the conflict theorists are also right. It can be argued that almost all laws, to one degree or another and in one way or another, serve to buttress the social system dominated by the current ruling elite. And yet a great many laws punish behaviors disapproved by large segments of society. Certain objective actions - the deliberate killing of one person by another, the forcible seizure of property viewed by the community as belonging to another person, and violent sexual assault - seem to be behaviors abhorred by all known societies. The fact that in a specific instance we may have difficulty deciding whether the act falls within our definition of rape or robbery or murder is a commentary on the complexity of making judgments in the real world, not an argument against the general agreement that such acts are seen as crimes. In this book we shall focus largely on these categories of universally abhorred crimes, because they dominate our sources and also because such a focus enables us to make comparisons with other cultures. Who were the criminals? Even with this narrower focus on major, and usually violent, crimes, we would like to know what sorts of crimes were committed, how often, and by whom. It is a truism of contemporary criminology that the typical criminal is a young, unattached, adult male. 7 The same pattern seems to have held true in Sung China. Although the sex and age distribution in individual and idiosyncratic crimes - most homicides, for example appears to be relatively wide, when we look at comments on banditry the crime of most concern in Sung China - it is clear that the authorities envisioned the criminals as relatively young adult males, usually unattached, and frequently deserters from the armed forces.8 Such criminals 7 Wilson and Herrnstein, Crime and Human Nature, p. 26. 8 See, for example, WHTK 168.1460, in which a twelfth-century official is quoted as saying that in recent years a great many people had been sentenced to penal registration, largely for having committed robbery, and that "in each case those involved are deserters." See also SHY, hsing-fa 4.63a.
69
Law and order in Sung China
ranged from those who probably were in their teens - "evil youths" in the Chinese phrase - to men presumably in their twenties and thirties who had escaped from the armies. 9 Soldiers are often accused of crimes, ranging from killing commoners and claiming rewards on the grounds that the dead were bandits, to fraternizing and cooperating with bandit gangs, to illegally taking public property, to being themselves robbers. 10 Ts'ui Tun-li (doctorate of letters degree 1160) noted that many of the soldiers stationed in the Huai River area, which formed the boundary with the Sino-foreign state of Chin, would regularly cross the border into Chin territory to steal horses. 11 And of course, soldiers committed at least their share of other crimes, such as gambling, theft, and homicide. Deserters were an even bigger problem. 12 The danger of deserters' committing crimes was an old one, and rules concerning it occur in the T'ang and the early Sung codes. There was a common assumption that many such men would attempt to return to their native places. Thus one of the ordinances regarding arrest recorded in the early Sung Code states: When prisoners, men being sent on military expeditions, or men being transferred desert and join up with bandits, the officials nearest their route should send a report to the jurisdiction in which the families of the escapees live, as well as to the prefectures and districts near where they deserted that are responsible for pursuing and arresting them. The jurisdictions that receive these notifications should forward them to the villages and mutual security units, ordering them to increase their vigilance while trying the capture the men.13 During the Sung period, the rate of desertion could be extraordinarily high. A report from 1083 s a ^ t n a t m seven months 3382 men had deserted from a single prefecture!14 This startling figure vividly indicates the limits on the state's ability to control the movements of its people. 9 On "evil youths," see Ch'in Kuan, Huai-hai chi, i 7 4 a - 5 b ; Han Yiian-chi, Nan-chien chia-i kao, SKCSCP 1975, 10.15a. Ch'in Kuan also comments on the role of army deserters in banditry. Note also the comment in the HCP 309.5a for a description of the "young hoodlums" near the capital city. 10 For soldiers as robbers, see, for example, SHY, hsing-fa 4.15a, 5.1b, 7.1a; SHY, ping 11.6b. 11 Ts'ui Tun-li, Kung-chiao chi, SKCSCP 1972, 5.i7b-i8b. Cattle theft was another common crime. See Ch'en Chun, Huang-ch'ao pien-nien kang-mu pei-yao (Taipei: Ch'engwen ch'u-pan she, 1966), 40.4b, 48.11b. 12 Ch'in Kuan, Huai-hai chi 17.4a. Deserters are frequently mentioned as criminals. See, for example, HCP 53.9a, 293-8a-b, 4 6 5 . u b - i 2 a ; SHY, ping i3.27b-28a, 28a-b; TFSL 502. 13 Tou I, Sung hsing-t'ung (hereafter cited as SHT) (Beijing: Chung-hua shu-chu, 1984), 28.464. 14 HCP 338.10a.
70
Crimes and criminals
Soldiers apparently could desert almost at will and, under the law, could return within a set period of time without fear of penalty. Many criminals were deserters from the military; most soldiers came from the working classes of rural and urban China. When discussing military deserters as criminals, it is important to bear in mind, however, that a substantial number of men serving in the military labor battalions called the provincial armies (hsiang-chiin), and some of those in the fighting units called the imperial armies (chin-chun), had been sentenced to register in the armies to serve as laborers after being convicted for major crimes. Thus, when the sources say deserters, they may in fact be referring to recidivist criminals, men sent to perform forced labor who were soldiers only in an extended sense. An official commented in 1204 that "of those sent to penal registration, many flee while en route, and when they get to their place of registration, they dread having to find sufficient food. Often the authorities deliberately tolerate the escapees and do not recapture them." 15 As this material on escaping from registration in the armies suggests, the Sung judicial administration was plagued by the problem of recidivists, men who were in many cases habitual criminals guilty of a succession of crimes. The general response to recidivism was to increase the penalties for such individuals and to reduce their chances of benefiting from the various devices that the state created to enable the reintegration of ex-criminals into society.16 The general pattern is reflected in a policy sometimes in force, under which a criminal twice guilty of robbery was to be sentenced to death, even if he were a follower and not a leader. 17 Whether escaped convicts from the provincial (labor battalion) armies or runaway soldiers, when deserters cooperated with solders still in service, the problems were doubly compounded. During the Northern Sung a Buddhist monastery in Ssu Prefecture on the Grand Canal had been given the task of burying the many corpses that were taken from the canal. An investigator in the late eleventh century reported that the problem was especially serious because there are many evil deserters hidden in the post stations above and below the river dikes, who cooperate with the post station troops to commit robbery. They take the clothes and goods from their owners, kill them, and throw the corpses 15 WHTK 168.1462. See also SHY, hsing-fa 4.64a-b. On the punishments of officials who allowed escapes, see TFSL 528. For other comments on deserters as criminals, see, for example, SHY, ping 13.29b; SS 35.670; SHY, hsing-fa 4.56a. 16 See, for example, SHY,, hsing-fa 4.5a; HCP 143.27a; TFSL 502. Hsueh Ying-ch'i, Sung-Yiian t'ung-chien (Taipei: Commercial Press, 1973), 88.10b repeats the policy reported in SS 35.684, under which anyone guilty twice of robbery was to be executed, even if he were a follower and not a leader. 17 SS 35.684.
71
Law and order in Sung China
into the water. The bodies come to the surface only after several days, by which time they are already several hundred lid [a lid was approximately one-third of a mile] from the place where the robbery occurred. Therefore few robbers are caught. 18
Ex-militiamen or constables also reportedly sometimes became robbers. In 1086, in an attack on the policies of Shen-tsung's reign, Liu Chih spoke of the militia-constabulary group called archers (kung-shou) who, having been mustered out of service and lacking a means of livelihood, became bandits. 19 Writing in the Southern Sung and describing a major bandit, Ts'ai K'an observed that he "in the beginning was just an archer who stole arms." 20 Such men quite naturally formed themselves into gangs and exerted some discipline over their members. As ex-military men they recognized the importance of weapons. Often deserters took weapons with them when they fled, and gangs of robbers sometimes attacked towns, not only looting them of various valuables, but also seizing weapons. In the last half of the twelfth century the official Ts'ui Tun-li (doctorate of letters degree 1160) described a road in Huai-yin District (in Huai-nan East Circuit) where travelers were terrorized by a large gang of bandits, who "killed, burned, set free one prisoner from the district jail, and also took official army bows, crossbows, implements, and staffs."21 Another report from about the same time recounts an incident in which local officials, in order to provide an escort to an arriving guest, took the local constables away from their posts. Local bandits seized their opportunity, entered the district town, freed the prisoners from the jail, stole military equipment, killed some people, and fled. The responsible officials in this incident were demoted. 22 This combination of rudimentary organizational skills and skills in arms made these groups especially frightening. Those charged with enforcing the law sometimes responded by punishing deserters with great ferocity. We are told of military authorities in the northwest who beheaded deserters, but only after having branded them and broken their legs. Another report, from the early Southern Sung, says that when prefectural authorities captured bandits who were military deserters, they also executed their families. 23 Finally, in his Po-chai pien, Fang 18 19 20 21 22
SHY, ping 12.13a. HCP 3 8 9 .6b-7b. Ts'ai K'an, Ting-chai chi, 1.14b. Ts'ui Tun-li, Kung-chiao chi, 5.17b. SHY, ping 12.19b. The improper use of constables as escorts is reported elsewhere also. See HCP 120.18a. 23 WHTK 167.1453.
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Shao describes a sheriff who "in all cases when he seized military deserters immediately executed them, so that in his district there were no robbers." 24 Other criminal types Such deserters were not, of course, the only criminals of concern. The illicit salt dealers of the capital region around Lin-an in Liang-che Circuit were characterized as vagabonds, who came from the state-licensed commercial families called shopkeeper households (p'u-hu), from temples and monasteries, from military encampments, or from families of either commoners or literati. 25 The dangers of illicit dealers in salt was a traditional concern. Sung leaders were certainly aware that the great uprising in the late T'ang, which broke the central power of the state, was supported by criminals involved in the salt trade. Like many societies at many times, Sung China also had its share of juvenile criminals. The problem of youthful offenders existed throughout the dynasty. The Northern Sung official Ch'in Kuan (1049-uoo), in describing the origins of criminals, refers to some as "evil youths in the villages, who are ill tempered, who beat people to death and bury the bodies, or who practice counterfeiting and who will not fit in again with ordinary people." 26 An early Southern Sung official, Han Yiian-chi (1118-after 1178), wrote of the "youthful banditti" then infesting the roads to Yen Prefecture in Liang-che Circuit. 27 In the early 1160s such youths are blamed for illicit dealings in tea and salt. 28 Finally, an official writing in 1214 described a market at which "the number of residents increases day by day and there are many merchant hostels. Juvenile delinquents [o-hsiao] cause trouble, and there are many fights." He petitioned, successfully, for the appointment of a sheriff at the market. 29 We do not know the social status of these young criminals. Many of them may have been from the lower strata of Sung society. However, it is clear that not all wrongdoers were from the working classes of Chinese society. Indeed, Sung authors warn against the dangers represented by the literati shih-ta-fu class. 30 Given the chance, members of this group would use their local power to oppress others, indulging in person or 24 25 26 27 28
Fang Shao, Po-chai pien (Beijing: Chung-hua shu-chu, 1983), 2-3b~4a. SHY, hsing-fa 2.127a. Ch'in Kuan, Huai-hai chi, SPTK ed., i7.4a-5b. Han Yiian-chi, Nan-chien chia-i kao, 10.15a. Li Hsin-ch'iian, Chien-yen i-lai hsi-nienyao-lu (hereafter cited as HNYL) (Beijing: Chunghua shu-chu, 1956), 3407. 29 SHY, chih-kuan 48.85b. 30 Hsu Yuan-chieh, Mei-yeh chi, SKCSCP 1975, 4.6a.
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through their gangs of hangers-on in robbery and extortion. 31 A report from the late twelfth century speaks of gangs who trafficked in illegal goods being protected by powerful families that concealed them and assisted them in their pillaging. 32 Another report from the opening years of the thirteenth century describes "rich and powerful households who promote the evil doing of gangs." 33 The collection of case reports called Che-yii kuei-chien speaks of upper-class bullies, one of whom kept several tens of hangers-on who would attack or kill to intimidate the local people, so that "for years the people of the countryside feared them and did not dare to report about the problem." 34 Such families also bribed the local clerks to be their agents: "In causing injury to the people, nothing is worse than rapacious clerks. . . . The literati families of today nourish such people. The rich families use them as their dogs." 35 A report from the opening years of the twelfth century even speaks of powerful families who had made their own prison instruments and who chained and tortured their poorer and weaker neighbors. 36 And in the capital area it was reported that relatives of officials, and even members of the imperial clan, were involved in illegal activities, including robbery. 37 The thirteenth-century official who said that "Liu-tu Fort is not a fort controlled by the public authorities but, rather, a jail for the use of the powerful families; Yii-shan District [present-day Yii-shan in Kiangsi] is not a district controlled by the authorities but, rather, a flogging place for the powerful families" 38 was speaking hyperbolically but certainly in earnest. Finally, the authorities were well aware that a great many officials committed crimes. The general impression given by the sources was that the great majority of such crimes by officials involved in one way or another some abuse of their powers. Perhaps most commonly they were guilty of corruption in office. There is even one fascinating, but unsubstantiated, statistic on officials and crime. The collection of random notes called the Po-chai pien says that in the years 1075 *°I 0 7 ^ some 2592 officials had been sentenced to penalties, from tattooed penal registration to commutation, 39 this at a time when the total number of civil service officials probably did not exceed several tens of thousands. 31 32 33 34 35 36 37 38 39
Fan Chun, Hsiang-ch'i chi, 15.149-150. SHY, ping 13.25b. SHY, hsing-fa 4.63a. Cheng K'o, Che-yii kuei-chien, TSCC ed. (hereafter cited as CYKC), p. 66. SHY, hsing-fa 4.6313-643. SHY, hsing-fa 2.133b. SHY, hsing-fa 2.147a (1133). Ming-kung shu-p'an Ch'ing-ming chi (Beijing: Chung-hua shu-chu, 1987), p. 33. Fang Shao, Po-chai pien, p. 58.
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Religious groups Traditional Chinese governments were notoriously hostile to the transmitters of many popular magical, religious, or quasi-religious beliefs. This category included individuals who were teaching and practicing black magic sorcery or groups devoted to religious ideas traceable to the major world religions but espoused and expressed in ways that were felt to threaten the state and its established values. "People who have adopted heretical beliefs" are commonly accused of becoming criminals. 40 Private households were forbidden to possess prognosticatory texts, astrological charts, or books on divination, for fear that such works would lead them to question the legitimacy of the existing order. 41 All those who made books on prophecy or portents, transmitted them, or used them to delude others were to be severely punished. 42 The mere ownership of such works, even if they were never used, carried with it a penalty of two years of penal servitude. 43 Even works that resulted in harmless prophecies, for example, predicting floods or droughts, were forbidden, and their possessors were liable for one hundred blows of the heavy rod. 44 A decree of the Later Chou (951-60), which was copied into the early Sung Code, specifies that books of this sort were to be seized and burned. 45 Another much feared and related practice was black magic sorcery, especially the making or use of the magic poison called ku. In The Vermillion Bird, Edward Schafer describes it as follows: Ku was evil sorcery, erotic charm, malignant disease - and the artful or natural causes of these things. It was the black magic of Nam-Viet. Usually it has been described as a poison, concentrated from the venoms of insects and reptiles.. . . In medieval times it was the common belief that the poison was prepared by 40 Ch'in Kuan, Huai-hai chi, i7.4a~5b. 41 Chang-sun wu-ch'i, T'ang-lii shu-i (hereafter cited as TLSI) (Taipei: Commercial Press, 1970), 2.82; SHT 9.155. See also a decree dated 1004. Anonymous, Sung ta-chao ling-chi (hereafter cited as STCLC) (Taipei: Ting-wen shu-chu, 1972), p. 733. And see a case of 1016 that involved an official who was expelled from the civil service and sent into penal exile (SHY, hsing-fa 4.8a). 42 According to the T'ang Code and the early Sung Code, such criminals were to be strangled. By the time the TFSL was compiled in the early thirteenth century, the penalty had been reduced by one degree, to exile at one thousand li.d TLSI 3.56; SHT 18.289; TFSL 251. 43 TLSI 3.56; SHT 18.289. 44 TLSI 3.56; SHT 18.289. 45 SHT 18.290. Such book burning was a regular Sung practice. See, for example, an order dated 1121. SHY, hsing-fa 2.83a-b.
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putting poisonous creatures in a sealed vessel, where they ate each other until their poisons were concentrated in a single survivor.46 In the T'ang and early Sung codes, people who practiced or taught this magic were severely punished. Women sentenced to exile for other crimes were allowed to remain in custody at home, but "those who make or teach the making of ku poison, together with all those living as coresidents in their households, are to be sent into exile, even if an amnesty has been issued." 47 Other sorts of magic aimed at killing people were also heavily punished, even if no one had actually been killed. "All those who hate someone and for that reason make 'hate demons' [yen-mei] or amulets for cursing, in order to commit murder, are to be punished as if guilty of premeditated murder, with the penalty reduced by two degrees." 48 Despite the severe penalties laid down in the codes, people continued to transmit the arts of •
•
4-Q
incantation. Individuals who performed such acts of sorcery were severely punished; organized groups whose members or leaders claimed supernatural powers were even more worrisome. Their members, and especially their leaders, might be punished with great severity. 50 Chinese dynasties in traditional times were always chary of any organized religious groups not under their control, recognizing that the combination of formal organization and religious commitment could be especially dangerous to the state. Such religious groups were seen as likely to resort to antisocial or politically disruptive behavior. Such problems were often on the minds of Sung leaders, because China in the Sung seems to have been filled with some rather bizarre religious cults. Their practices could directly contradict the ideas of the dominant social system. An official wrote in 1115 about members of a sect whose members burned their foreheads and backs and cut themselves, mutilations similar to those practiced by some Taoist priests today in Taiwan. T h e decree responding to his report is thoroughly Confucian in tone: "Mutilation is injurious to good customs. How much worse is it when barbarian customs are practiced among Chinese?" 5 1 An even more bizarre cult was found in the valleys of northern H u n a n . A report from the early 46 Edward H. Schafer, The Vermillion Bird (Berkeley and Los Angeles: University of 47 48 49 50
California Press, 1967), p. 102. SHT 3.45. TLSI 3.53; SHT 18.284. STCLC 735. See, for example, an order dated 1019 calling for the execution of cult leaders. HGP
51 SHY, hsing-fa 2.65a. See also a report of a cult in Yiin Prefecture in Chiang-nan West Circuit, which mutilated women and children. SHY, hsing-fa 2.122a.
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eleventh century describes a religious cult in this region that practiced human sacrifice; it was probably the same religious cult described during the Southern Sung in the same region. According to the Southern Sung reports, this group, during each year that included an intercalary month, kidnapped and murdered children, a practice they called "choosing the living." 52 Cult leaders from such groups were very harshly punished, often being executed. 53 Some of these groups can be traced to heterodox offshoots of Taoism or Buddhism. 54 But even when such groups could be clearly associated with these accepted religions, Chinese lawmakers often thought that their members, who were forced to meet clandestinely, were guilty of outrageous social and sexual behavior. A report from the late 920s, on heretical Buddhist believers, comments that "sometimes Buddhist clergy and laity are ignorant and thoughtless. Men and women live together illicitly, forming themselves into groups, gathering at night and dispersing at dawn, speciously proclaiming and handing down a 'Buddhist law society' [fa-hui], clandestinely being loose in their morals." 55 The phrase "gathering at night and dispersing at dawn," with its overtones of illicit association between the sexes, recurs frequently in Sung sources. The authorities were obviously very worried about this sort of behavior. Indeed, an edict in 1035 offered a substantial reward, thirty strings of cash, to anyone who was able to seize such sectaries or who informed on them leading to their capture. (We can get some idea of the value of this reward by noting that thirty strings was the estimated cost to the state of supporting a postal worker for one year.) This report concerned the western circuits but people accused of similar practices could also be found in the east. 56 During the Sung dynasty, the authorities were even more concerned about the Manichaeans. 57 Mani (215-73) drew on elements from a number of traditions to found a dualistic religion, which asserted that good and evil were engaged in an all-but-eternal struggle. Man, a crea52 HNYL 2636; SHY, hsing-fa 2.152a. 53 See, for example, STCLC 638, 736. For a further description of cults practicing human sacrifice, see Kawahara Masahiro, "Sodai no sai-jin sai-ki ni tsuite" (On cultic human sacrifice in the Sung dynasty), Hoseishi kenkyu 19 (1969): 1-18. 54 This would seem to have been the case with the groups discussed in a memorial of 1114 in which an official asks for stricter controls over Societies for Fasting and Incense Burning. See SHY, hsing-fa 2.61b. 55 SHT 18.290. 56 HCP 117.19a; SHY, hsing-fa 1.49b, 2-78a-b, 81a, n i b . 57 For a discussion of the Manichaeans in the Sung, see Brian E. McKnight, "The Rebellion of Fang La" (M. A. thesis, University of Chicago, 1964), chap. 2. For a more general discussion of Manichaeans in China, see Samuel Lieu, The Religion of Light (Hong Kong: University of Hong Kong Centre of Asian Studies, 1979).
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ture born of this struggle between light and darkness, contains the seeds of light, which can be liberated if the proper religious practices are followed.58 This new religion spread rapidly in the centuries after his death, from the shores of the Mediterranean to the borders of China. 59 Manichaeism, which first entered China during the closing years of the seventh century, became most widespread and open during the first half of the ninth century, under the protection of the Uighur Turks who had adopted Manichaeism as their state religion. When the Uighurs lost power in the early 840s, the Chinese authorities moved quickly to suppress Manichaeism. The surviving believers thus became part of an underground cult which attempted with some success to disguise itself as a Taoist sect. There is little information on the history of this religion in China during the period from its suppression in the 840s until it reappears in Chinese records from the eleventh century onward, though its members were involved in one unsuccessful rebellion in the early tenth century. In the eleventh century, however, there are reports about the prevalence of the religion in southeast China, where local authorities were accused of being indecisive in their suppression of the illegal sect. During the Sung the Manichaeans, who seem to have been especially numerous in eastern Chekiang, were often involved in trade, and, in addition to offending Chinese sensibilities by failing to observe proper decorum between the sexes, were stereotyped as people who would do anything for a profit, without being concerned about its legality. They thus affronted espoused elite values on almost every level. The state authorities repeatedly tried to suppress the religion. An early Southern Sung official, Chang Shou (d. 1138), recommended tactics that epitomize the standard state response to such dangerous cults. The authorities, he said, should first separate the leaders from their followers, severely punish the leaders, and publicly and widely announce the punishment. Second, prohibitions against nighttime gatherings for worship should be publicly proclaimed and enforced.60 By cutting off the leadership and forbidding the functions that would allow the continuing transmission of the doctrines, the state could in time suppress the movement without having to punish all its adherents. It seems likely that in some areas the local authorities did attempt to suppress the religion, for the Manichaeans were involved in a number of uprisings against the 58 On Manichaean theology, see F. G. Burkitt, The Religion of the Manichees (Cambridge: Cambridge University Press, 1925). 59 Some authorities believe that Mani "translated" his ideas into two different idioms, gnostic Christianity in the West and Iranian speculation in the East. See Geo Widengren, "Mesopotamian Elements in Manichaeism," Uppsala universitets arsskrift, no. 3 (1946). 60 Chang Shou, P'i-ling chi, TSCG ed., 3.33.
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government. In the Sung, Manichaeism was a classic example of an illegal religion forced into functioning like a secret society and also into covert or overt resistance to the state. 61
Non-Han criminals Most of those involved in criminal activities were Han Chinese, but in border regions non-Han minority peoples also participated in crimes. Along the northern frontier this meant such things as cross-border smuggling, horse theft, and the sale of illegal goods. In the south both the non-Han minority people called the Man and the Li b minority people of Hainan Island were accused of criminal behavior. Such peoples might be punished differently than the Chinese were. The Man, for example, were allowed to pay fines rather than suffer the regular Sung penalties. 62 Dangerous incidents in the regions inhabited by the Man peoples were endemic, occurring most frequently in the middle of the eleventh century but never dying out entirely. 63 The great writer and statesman Ou-yang Hsiu estimated in 1043 t n a t m t n e half-dozen or so prefectures that were most affected, there were several thousand Man bandits in all, the gangs ranging in size from about ten men to several hundred. 64 At the same time the official Yii Ching wrote a number of memorials on the Man problem. In one he reported that of the whole group, only a hundred or so could be classified as leaders. The appropriate policy would be to follow the traditional pattern, prosecuting only the leaders and pardoning their followers. He referred to the Mencius: "I have heard that Mencius said, 'A policy of benevolence can protect all within the Four Seas; a policy without benevolence will not be capable of protecting your wife and children.' " 6 5 He also agreed with Ou-yang Hsiu about the importance of selecting good officials for the region. "If the court selects chief officials and they select bandit-catching officials and patroling inspectors, who gather together courageous officers to seize the bandits, and if these men are repeatedly granted rewards, then the bandits will certainly be destroyed." 66 Inappropriate action by such officials could exacerbate the troubles: 61 For the later history of the Manichaeans in China, see Paul Pelliot and Edouard Chavannes, "Un traite manicheen retrouve en Chine," Journal Asiatique, 10th series, vol. 18 (1911) and n t h series, vol. 1 (1913). 62 H C P 4 6 2 . i a - b . 63 See, for example, HCP 147.40-9^. 64 HCP 143.30a. 65 Yii Ching, Wu-ch'i chi, tsou-i shang 12a. 66 Ibid., tsou-i shang 12a-13a.
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I inquired and learned that in Ching-hu South Circuit, because the Man bandits have come forth from their dwelling places, the judicial intendant, Chao Shih, has ordered those people who lived near the mountains not to till their fields, to burn their dwellings, and to enter the cities to live. Thus these people have lost their patrimonies and so have joined with the bandits.67 In another essay Yii Ghing expanded on this theme: I have heard that because of the bandits in Ching-hu South Circuit, the people are forbidden to farm within twenty lid of the hills. I do not know from whom this order came, but it forces people to become bandits. I feel that from the middle rank down, people simply have no accumulated wealth. For their daily expenses they must depend on farming. If they do not farm for a single year, they will suffer hunger and cold. Now the bandits burn their homes and pillage their goods, and the government forbids them to farm. They have nowhere to turn. They do not want to be robbers, but what else can they do? . . . When the bandits first arose, there were only a hundred of them. The authorities called in troops to suppress them, and the troops killed the commoners near the mountains. Those who survived this were forbidden to plant crops, so for a thousand lid people lost their livelihoods. If they did not turn to banditry, what could they do? Therefore in half a year there were three to four thousand bandits. This is a matter of wanting to suppress bandits but instead forcing people to become bandits.68 In this region another key to the continuing ferocity of the resistance was that the officials and the military kill ordinary people in order to claim rewards. Therefore the residents do not enter the cities but instead join with the bandits to avoid being killed. The countryside has been deserted by the farmers, so that the bandits have nowhere to pillage and must attack the towns. Fortunately they have not taken any towns. If that happens, the evil consequences will be great, for even if you wanted to pardon them you could not. It would be necessary to summon people to surrender, to soothe their feelings, and to indicate clearly that they would be forgiven by the authorities. 69 The authorities in these areas were especially concerned about the dangers of collusion between non-Han criminals and Han criminals, especially army deserters. Acting together, such criminals could pose dangerous security problems. In the early twelfth century an official wrote about an uprising among the Li b people on Hainan Island, where many of the worst Sung criminals were sent for registration. He commented: 67 Ibid., tsou-i hsia 19b. 68 Ibid., tsou-i shang 16b. 69 Ibid., tsou-i shang 5a. In another memorial on the same subject he expanded on his interpretation. Ibid., shang 17b-18a.
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Crimes and criminals
In the various prefectures on Hainan there are escaped registered criminals who go into the Lib borderlands. Men who are registered in the prefectures of Hainan are criminals whose crimes were marked by truly evil circumstances, or they are men sentenced to death and spared. Recently, from both the East and West circuits (of Kuang-nan), troops have advanced to attack the bandits, but before anything happens the men fraternize and are made welcome. Many of these criminals are men who bear large tattoos [i.e., are very serious criminals]. They add to the bandits' authority, and the borders are disturbed. The Court approved his suggestion that serious criminals who would ordinarily have been sent to Hainan for registration would temporarily be sent elsewhere.70 What were the crimes? The kinds of crimes recognized or created by the state reflect the concerns of both rulers and ruled and are embodied in complex literate societies in codes of laws. Codes are normative. They spell out what the codifiers say should and should not be done. Although they tell us relatively little about actual social behavior, they do mirror to some degree the attitudes and feelings of their creators. Chinese law codes, like law codes elsewhere, were founded on the lessons of experience. They reveal the forms of wrongdoing that had plagued the state authorities in earlier times, to which lawmakers had responded by generalizing from specific instances to create general rules. Any attempt to understand the concerns of the people of Sung times should begin by analyzing the earliest Sung criminal code, the Sung hsing t'ung of 962. This code, compiled almost at the beginning of the dynasty and based on earlier prototypes that had long been in use, contains many of the penal rules used during the Sung, though by no means all. Large numbers of penal rules that applied specifically to the military were excluded from the code, and a host of other penal rules were compiled in collections of edicts. 71 This early Sung Code is largely a repetition of the T'ang Code of 737 and, like that T'ang Code, contains twelve sections. Excluding the sections on general principles, arrest and flight, judgment and prosecutions, and miscellaneous articles, there are eight substantive sections, those on (1) the imperial guard and prohibitions, (2) administrative regulations, (3) households and marriage, (4) public storehouses and granaries, (5) 70 SHY, hsing-fa 4.33b. 71 For examples of such penal laws for the military, see Tseng Kung-liang, Wu-ching tsung-yao, SKCSCP ed. On the compilations of edicts, see McKnight, "From Statute to Precedent," pp. 111-32.
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unauthorized levies, (6) violence and robbery, (7) assaults and accusations, and (8) frauds and counterfeits.72 These eight sections are composed of two large groups. Four sections contain rules that are concerned with the acts of those in government service (imperial guards and prohibitions, administrative regulations, public storehouses and granaries, and unauthorized levies), and the other four apply to the people at large as well as to government servants (households and marriage, violence and robbery, assaults and accusations, and frauds and counterfeits). A proper study of violations of the first four sections, most of whose rules are applicable primarily to government servants, would require an in-depth analysis of Sung government systems. We shall be concerned largely with the last four sections. The section on households and marriage contains twenty-five articles in its three chapters. These pertain to crimes in the technical sense, because the statutes give penalties for infractions but include acts which in our system would not be classed as crimes. The rules concern such questions as the proper disposal of the goods of foreign merchants who die in China, how to treat people who become Buddhist or Taoist clergy under improper circumstances, punishments for those who illegally divided households in order to escape taxation, encroachments on property, and illegal marriages. Most of the major crimes are found in the remaining three sections. The nineteen articles under violence and robbery cover such crimes as sedition, rebellion, homicide, the manufacture of poisons, certain assaults and batteries (including sexual assaults), burglary, grave robbing, heresy, robbery, destruction of property, theft, arson, and extortion. The twenty-six articles under assaults and accusations include some homicides, some assaults and batteries, some deprivations of property, and false and improper accusations. Frauds and counterfeits has only ten articles, covering the illegal manufacture of seals, the impersonation of officials, improper manufactures, coercion of people into criminal behavior, the illegal misuse of government horses, and improper reporting to the authorities. In short, these four sections contain many of the rules on the major crimes. The penalties given in this code are the traditional Five Punishments (wu-hsing) inherited from the T'ang, beating with the light rod (ta) in five degrees from ten to fifty blows, beating with the heavy rod (chang*) in five degrees from sixty to one hundred blows, penal servitude (t'u), exile (liu), and death (ssu). 72 I am using the translations of these terms suggested by Wallace Johnson, The T'ang Code: General Principles (Princeton, NJ: Princeton University Press, 1979).
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Historiography When we turn from the code to other sources to see what crimes Sung men (almost exclusively Sung elite men who served as officials) discussed, there is a marked difference in emphasis. This is hardly surprising. Codes are normative. In China they aimed at covering all possible wrongdoings. Therefore, crimes that would have been considered truly shocking and terrible may occupy no more space in the code than do trifling misdemeanors, and crimes thought of as dangerous may be covered in only a few lines of text. Edicts were responses to specific immediate problems. Repeated edicts on a topic reflect the authorities' failure to deal with a serious situation. The numbers of examples we have on a specific topic thus suggest the continuing concern of the state. When men feel it necessary to describe in detail the methods that they have used to handle a particular situation, presumably they feel that others might benefit from their experience. Because they were members of the ruling elite, the men who created the records were less concerned with the frequency of crimes than with whether the particular crime in question threatened their positions and values. Like most groups of people they did not hesitate to identify their own interests and understandings with the general social interest. Sometimes, no doubt, their interests were in fact the same as those of most groups in Chinese society. Most people, in China as elsewhere, whether or not they are members of the elite, abhor homicide, robbery, rape, and other serious felonies. When there were clear differences between the interests of the Chinese elite and other groups in society, the response of the elite was that the values of the others were simply wrong and so needed to be changed. When they felt that perhaps their values, the "correct" values, were not shared, they responded by trying to educate people to propriety, through what they called "educational transformation" (chiao-hua) and by punishing improper behavior. Because members of the ruling group viewed their relationship to ordinary people as analogous to the relationship of parents to children, the transformation they sought was reflected not simply in their attempts to suppress what they saw as social crimes (like gambling) but also in their attempts to promote "good" mores, which would make ordinary people conform more closely to the elite ideal. These reformers stressed filial obedience, the proper hierarchy of power distributed according to age and sex, and, in general, a respect for superior authority, perhaps out of a concern that the common people might not truly support these buttresses to social stability. 83
Law and order in Sung China
In their writings about the need to remold the people and on lawbreaking, Sung writers concentrate most often on those crimes and customs that seemed to threaten social order (and thereby their own positions). As a result, scholars studying law and order in traditional China face a serious historiographical problem. Some types of crimes, like minor assaults, gambling, fraud, and extortion, are little discussed in the sources, though they seem in fact to have been quite common. 73 Assaults against officials, which were punished with great severity, seem to have been relatively rare, and our authors, who were almost all officials, were little concerned with the brawling of commoners or their other minor wrongdoings as long as they did not escalate into widespread unrest. Because the Sung authors were overwhelmingly preoccupied with acts that seemed to them to threaten with special urgency the control of the ruling elite, they usually described two general categories of crimes — corruption among government officials and clerks and robbery-banditry - far more often than all other crimes combined. Corruption A thorough study of the problem of corruption among officials and clerks would have to describe the spectrum of attitudes toward corruption, the variety of corrupt practices, the social and other characteristics of those found guilty, and their treatment by the state (with appropriate analyses of the ideological implications of these matters). Before answering these questions we would have to know more about the functioning of the Sung civil, clerical, and military services. Here, however, we can touch on only a few aspects of this important topic. In brief, corruption or rapacity most commonly meant the taking of bribes from the people or the misappropriation of public goods. The authorities were extremely concerned about the taking of bribes, and nowhere more so than when judicial officials were involved. A rule contained in the thirteenth-century code called the Ching-yuan t'iao-fa shih-lei states: "Supervisory officials who accept valuables in return for perverting the legal process are liable for strangulation if the goods in question have a value of twenty lengths [pi] of cloth (or twenty-five lengths if the functionary is unsalaried)." For simple corruption not involving perversion of justice, the penalties were not quite so severe. The passage just quoted goes on to say: "If the appropriate sentence calls for exile, or if it involved corruption but not perversion of justice, for a value of fifty lengths of cloth, the sentence should be criminal 73 Wang Chih, Hsiieh-shan chi, 3.24.
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registration in a base citadel command." 74 At approximately the time when the Ch'ing-yuan t'iao-fa shih-lei was published, a length of cloth would have been worth (very roughly) four strings of cash, so the authorities were talking about corruption involving perhaps eighty to one hundred strings of cash. 75 The seriousness of misappropriating funds is clearly indicated by a decree from the early thirteenth century that modifies the earlier rules: In all cases, those who are indicted for rapacity according to the statutes, because they have used official goods that ought not to have been used, from now on are to be tried for having committed a private infraction [i.e., an infraction committed for the sake of personal advantage] if they have taken the goods for their own private uses. If they have taken the goods for public purposes, they should be tried for having committed an administrative misdemeanor [literally, a "public crime"]. 76
Both bribery and misappropriation for private motives could be punished very harshly, depending largely on the value of the materials in question. The penalty could even be death. Beating plus exile, sometimes accompanied by enslavement of the families of the guilty, was a common punishment. Less serious cases often led to expulsion from the civil service, exclusion from holding certain sorts of posts in the future, or confiscation of the property of those guilty. 77 The severity of these penalties was in fact even greater than appears on the surface. Officials guilty of many sorts of crimes were able to commute their sentences to various administrative sanctions or to payments of fines. In many such cases the penalties would be automatically reduced because of the criminal's official status. However, for certain crimes, corruption among them, such privileges were not allowed. 78 Banditry Contemporaries who wrote on crime in Sung China clearly felt that suppression of banditry {tao-tsei) was central to the problem of law and 74 TFSL 537. On base citadel commands, see Chapter 12. Although the text here and elsewhere in the TFSL does not specify the kind of cloth involved, passages from the T'ang Code (which were adopted in the early Sung Code) suggest that the measure referred to chilan, a thick, loosely woven, raw silk fabric. Where the T'ang Code does specify the type of cloth being referred to in determining sentences, this seems always to be chuan. For these references, see Wallace Johnson, T'ang-lii shu-iyin-te (An index to the T'ang-lii shu-i) (Taipei: Wen Hai, 1964), pp. 144-45. 75 I am basing these very approximate estimates on price figures kindly supplied to me by Robert Hartwell. 76 WHTK 167.1456. 77 WHTK 167.1453; SS 199.4991. 78 The Sung system of privileges will be discussed in more detail in Chapter 14.
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order. The attitudes underlying the reaction of the elite to the problems presented by bandits are expressed in numerous memorials on bandit suppression. They provide us with our most vivid portrayal of the bandits in action. The official P'eng Kuei-nien (i 142-1206) wrote of the campaign against the bandits in Fukien: On the twenty-sixth day of the eighth month the bandits came by way of Liangtzu Gully in An-fu. They crossed P'ing Riding79 and divined at the Dragon King Shrine in Ta-an. When their divination did not succeed, they gathered a crowd at the home of the Chou family in Tung-kang. On the twenty-ninth, Hsieh Yenhsiang ordered four soldiers to reconnoiter. They encountered the bandits at the embankment of the Chou family and were captured. Two of them were killed, but two escaped and returned to report. These men were from the command of Ma Hsi, a military officer serving as the border control patroling inspector. Hsieh Yen-hsiang was familiar with the place where the bandits were located. Therefore he used Ma Hsi's troops to guard the village, and he himself led a group to the east ridge. The bandits were lined up in the fields before the gate of the Chou family. The fields were all muddy, with a path only a foot or so wide. The bandits were camped by the fields. Our troops drew out their bows and crossbows. One bandit was tall and bearded. He advanced to the fore, and Hsieh Yen-hsiang shot him with an arrow, so that he fell forward into the mud. Our troops cut off his head. . . . The [other] bandits lost heart and our troops were inspired. By the late afternoon they had captured twelve bandits. The bandits gradually retreated. . . . When I reached the area of the White Cloud Temple, the bandits had recently withdrawn. I questioned the local people. They all said that the bandits had remained in the ridge area for three days. Forty or fifty had been wounded. The bandits themselves killed the wounded who could not withdraw quickly and then left. At Small Mountain there is a locally influential man named P'eng Tao. He carried out the order to capture bandits. He searched the mountain ridges and found a number of bodies under the trees. They all had suffered grievous wounds and died. This was the first time that people realized that the tea bandits in P'ing Riding were not a trifling matter.80 The officials were sometimes concerned not just with the bandits themselves but perhaps even more with the possible increase of local vigilante power among the local elites, who could use their power to abuse ordinary people and even threaten the control of the state. The official Li Kou (1009-59) wrote: Bandits are not capable of causing a disaster to the world, but they can summon 79 Ridings (hsiangh) were one of the types of territorial subdivisions of districts in use during the Sung. 80 P'eng Kuei-nien, Chih-t'ang chi, 11.135- These bandits were called tea bandits, apparently because of their violations of government controls on the production and distribution of tea, though in practice they also seem to have engaged in ordinary banditry.
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forth such disasters. Those who kill in order to eat are hated by others. How could such men cause a disaster to the world? When robbers are numerous, there are many killings. The ordinary people who are the enemies of such bandits are unable to take revenge. Therefore treacherous scoundrels arise among local leaders. The bandits are the enemies of the people, but these treacherous scoundrels use the excuse of exterminating the bandits to oppress the people. . . . Those who murder the people are bandits of the people; those who suppress the bandits are bandits against the state.81 The great frequency with which these men discuss banditry is not, of course, an index of how common it was relative to other crimes. In any society, only an indeterminate fraction of crimes committed are reported to the authorities. 82 It also seems clear that the rate of reporting varies with the types of crime and the social circumstances. Some crimes, like rape, are apparently greatly underreported in the contemporary United States, and we may be almost certain that they were even more underreported in traditional China. If we consider why banditry loomed so large to the authors of our sources, some obvious reasons stand out. First, banditry was often obvious. Even if the locally responsible authorities wanted to conceal such crimes, it would have been difficult for them to do so. Second, banditry was a type of crime that the state found particularly threatening, because it involved violence and presumably some degree of organization and cooperation. The traditional Chinese state was always particularly sensitive to the growth of any organized centers of resistance to its own powers, especially if those centers had the potential for growing into significant threats to the state's own pretensions. Therefore, banditry, smuggling, the production and distribution of illicit goods, and other forms of criminal activity that required the cooperation of a number of individuals were of special concern to the state. Third, banditry may have seemed an "attractive" crime to the Sung bureaucracy because it could be quantified. The numbers of bandits captured or not captured could, at least in theory, be counted, and so the local officials' success rate could be measured, thereby giving a (perhaps spurious) objective appearance to their personnel evaluations. Finally, the bulk of reports on banditry is swelled by the officials' tendency to describe both foreign raiders and native criminals as bandits. The problems presented by banditry were made more intractable by the character of the official responses. When few in number, bandits could, in the words of one twelfth-century official, "hide in the moun81 Li Kou, Chih-chiang Li hsien-sheng wen-chi, SPTK ed., 22.3a. 82 See Wilson and Herrnstein, Crime and Human Nature, pp. 30 flf.
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tains, coming out at night to make minor raids and scattering again by the time the officials are informed." Worse yet, ordinary people, seeing the official inaction, did not report what they knew. Or they might be driven by official brutality into alliance with the bandits. In words that sound all too familiar in this century of guerrilla wars, this official went on to say that the soldiers complained that because the bandits had no fixed locations, they were difficult to catch. [But] the bandits do have to eat during the day and sleep at night. They have goods they must sell. In coming and going during their plundering, the bandits at least must cover some miles. How is it possible that no one sees them? However, if people say they have seen the bandits, the officials will just think that the informers are working with the bandits [and so will] seize them, bind them, and beat them. Having gotten nothing from them, the authorities will release them. The officials thus block up their eyes and ears, so that the plans of the bandits are numerous and the plans of officials are wanting. After a year or so of such punishment, the people, even if they were very close to the bandits, would not be willing to say anything to their neighbors, much less the officials. Therefore, the bandits are given advance notice of official troop movements, whereas the official troops would not know it even if the bandits were ten feet away.83 State response to banditry The state was supposed to have a measured series of responses to banditry. The first step was to attempt to split leaders from followers by offering amnesty to those who surrendered. This was to be accompanied by steps to alleviate the conditions that had led to banditry in the first place. If these actions were ineffective, the state would begin to employ force, gradually, increasing the level of force as necessary until the bandits were destroyed. Unfortunately, in practice the local authorities frequently waited for the arrival of major military units, and even these often proved ineffective. The Southern Sung official Chao Shan-k'uo vividly described the process and its flaws: South of the lake and west of the Yangtze River several tens of poor people have become bandits, taking up bows and knives, harassing the prefectures and districts, and causing concern to the Court. The regional military commissioner has, over an extended period of time, sent in generals with several thousands of troops, [but] to no avail. Still, the Court's urgent orders have been delayed. Why so? Is it not a case of "swatting at oxflieswill not kill lice" or "a crossbow built for cave rhinoceroses cannot kill rats"? . . . The regular armies must be fed and housed according to fixed arrangements. They must move in an ordered way. 8 3 L u Y u , Wei-nan wen-chi, 13.11b.
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Halberds and spears are their weapons, and armor their clothing. Without orders they will not advance. Without drums they will not line up. Yet you wish them to move swiftly into dangerous mountainous terrain. Their opponents can leap over crags and valleys, walking on thorns. . . . Their hideouts are difficult to locate, and their patroling can never be comprehended. . . . Can the regular system be used to respond to this? The mountains' loftiness and the forests' thickness are like a screen. The climate is unhealthy. It is easy to catch diseases from the miasma. The soldiers come and go. The officers and men arrive but do not fit into this region, so many die. . . . What do the bandits have to fear? . . . In this area of several hundred lid the powerful families have numerous followers. Because this is bandit country, the powerful all have strongholds to protect themselves from attack. They also safeguard their houses. The people and the bandits understand the situation and exchange things with each other. Yet, on arriving, the official troops seek food for their stock. They order local households to provide labor. They even kill people's dogs and chickens. Sometimes, because they are suspicious, they abuse their authority to the point of killing people. Thus they terrify the people, whose anger is extreme. Because of this the bandits' sources and growth remain a secret. No one is on the side of the government troops. If the troops move even an autumn hair's worth, this will be known to the bandits. . . . Moreover, the troops say "if we fight and win, this will not necessarily be considered martial, and so our rewards will not necessarily be good. If we fight and lose, then our punishments will certainly be heavy." 84
Terminology The word banditry as I am using it here is a translation of the Chinese tao-tsei. The terms tao means "robbery," "taking openly." To take openly with the threat of force was called chiang-tao, "robbery by strength," but the threat of force did not necessarily mean the force of arms. The authorities thus can speak of robbery with force, but without weapons, just as they can speak of thieves, that is, those who steal clandestinely, as either armed or unarmed. 85 (Theft, to steal without confrontation, also included burglary.) Tsei, "pillaging," which is used by itself to describe foreign enemies, seems in the Sung usually to imply the use of arms. Within the categories that resulted from the coming together of these factors, the Sung authorities distinguished the seriousness of the crimes by comparing the value of the goods taken, using measures that were stated in terms of lengths of cloth but were convertible to coinage at set rates. A brief history of the crimes of theft and robbery from the T'ang through the Sung may illuminate more general problems in under84 Chao Shan-k'uo, Ying-chai tsa-chu, i . i 8 a - i g a . 85 See, for example, a report from 1098 that speaks of trying certain criminals according to the laws on "forceful robbers who do not carry weapons." HCP 5oo.5b-6a.
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standing crime and criminals in Sung China. The relevant section of the T'ang Code of 737, and the early Sung Code, Sung hsing-t'ung, contains a number of provisions concerned with thefts and robberies. These are arranged in order of descending seriousness, from theft of major imperial ritual objects, to the taking of religious objects including Buddhist images, to the opening and robbing of graves, to ordinary robbery. These T'ang rules, as reaffirmed in the Sung hsing-t'ung, form the foundation of later Sung laws against robbery and related crimes. The statute pertaining to robbery and theft is as follows: In all cases of [unarmed persons] committing robbery by strength (chiang-tao), if no booty at all was taken, the penalty for the robbers is two years of penal servitude. If booty worth one bolt of cloth [ten Chinese feet] was taken, the penalty is three years of penal servitude. If booty worth two bolts was taken, increase the penalty by one degree [to exile at two thousand lid]. If the value of the booty reaches ten bolts of cloth or someone is injured, the penalty is death by strangulation. If there is a homicide in the course of the robbery, then the penalty is death by decapitation. ("Robbery" means to take valuables with threat or when armed, whether one is first forceful and thereafter takes the valuables, or takes the valuables first and is thereafter forceful. This also applied to those who add drugs to drink or food, and then abusively take goods . . .). The statute goes on to explain that it is meant to cover robbers who use threats or force as long as property was taken. It also covered extortion under duress. The phrase about taking property and thereafter being forceful was designed to cover cases in which someone, unbeknownst to the victim, stole property but, upon being discovered, used force or threats of force to resist arrest. The text as written is a little misleading, because it does not state specifically that the penalties will apply only if the robbers were unarmed. However, the sentences following the section just translated indicate that the penalties listed are for robberies by unarmed criminals, saying that "if the robbers are armed, even if they get no booty, they will be liable for the penalty of exile to three thousand lid [approximately one thousand miles], and if they cause injuries, they are to be beheaded." 86 Theft, that is, the clandestine taking of others' goods, was a less serious crime than robbery, as measured by the sentences involved. As with other crimes against property, the sentences were determined in part by the amount of goods taken. According to the early Sung Code, a thief who did not take any valuables was punished by fifty blows of the light rod (which in the Sung period would have been converted to a penalty of ten blows of the heavy rod on the buttocks). By contrast, a 86 SHT 19.300.
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robber who got no booty was liable for a penalty one degree heavier, sixty blows of the heavy rod, which in Sung practice would have been converted to thirteen blows on the buttocks. The sentence for thieves was increased by one degree when the booty was valued at one length of cloth, which in the late tenth century would have been worth less than one string of cash. For each added length of cloth this sentence was increased by one degree, in theory adding ten blows of the heavy rod. Then when the total reached one hundred blows, the sentence shifted to levels of penal servitude. Thus, a thief whose booty was worth five lengths of cloth (roughly four to five strings of cash in value) would be liable for one year of penal servitude (which in practice meant forced labor at some relatively nearby prefecture). For each additional five lengths, this would be increased by one degree, reaching a penalty of exile with added labor for a theft with a value of fifty lengths of cloth. 87 (The basic difference in T'ang law between penal servitude and exile was the freedom of those sentenced to penal servitude to return home after completing their sentences, and the distances to which convicts were sent. As will be described in Chapter 12, during the Sung dynasty these sentences were in practice converted to penal labor in certain military units.) Though less serious as measured by the penalties attached to it, theft was endemic in Sung society. Yuan Ts'ai advised his kinsmen to guard against robbers and thieves by arming themselves, patroling their property, being cautious in displaying their wealth, and keeping it securely locked up. 88 The point of his advice is reinforced by sayings attributed to the criminals of the age: "We do not fear your iron walls, only your eviltempered dogs and robust men," and "if silver and gold are in a great chest with iron fastenings, then bandits will not be able to get to them." Burglars had their own sayings: "When entering a house at night there are three things to be afraid of, old people, children, and nursing dogs." 89 Cases of theft with special circumstances were occasionally reported in detail, illuminating some facets of Sung crime and law enforcement: At one time there was a Buddhist monk who passed through a village late in the day. He sought a place to stay with a family, but the head of the household would not allow it. The monk then asked to be allowed to sleep outside the gate in the carriage stall and was permitted to do so. That night a thief entered the house. From the top of the wall he helped a woman up, and they went away 87 SHT 19.302. 88 Patricia Ebrey, Family and Property in Sung China: Yuan Ts'ai's Precepts for Social Life (Princeton, NJ: Princeton University Press, 1984), pp. 278-81. 89 T'ai-ping lao-jen, Hsien chung chin (Hsiieh-hai lei-pien ed.), p. 73.
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carrying a sack. The monk, who had not been able to sleep, saw this. He thought to himself, "I was not admitted by the master of this house, although I pleaded with him that I be allowed to stay the night. Now in the night the master of the house has lost his wife and his valuables. Tomorrow he will surely seize me and later turn me over to the district." The monk then fled. Not daring to go by the regular routes, he walked through the wilds. Suddenly he stumbled into a well. The body of the wife, who had already been killed, was in the well. The next day the head of the household searched out the missing monk and found him with his wife's body in the well. He seized the monk and sent him to the district to be questioned underflogging.The monk falsely accused himself, saying that he had seduced the wife and fled with her. Fearing that he would be captured, he had killed the wife and thrown her body into the well but had lost his footing and also fallen into the well. The booty had been abandoned beside the well, and he had no idea who had taken it. In this case a clever official on the prefectural level who was reviewing the case was eventually able to learn the truth and in the end captured the youth who had actually committed the robbery and murder. 90 The statutes just described indicate the general character of traditional Chinese laws against theft and robbery. Other statutes in the T'ang Code of 737 and the early Sung Code, Sung hsing t'ung, spell out special situations, for example, setting penalties for those who assault others without initially having any intent to rob but who then do steal goods, or those who having left goods behind when going away from a place, later return, and must dispute the ownership of the valuables. Later Sung additions to these rules generally take one of two forms. Either they created special rules for limited areas or for specific sorts of crimes, or they changed the amounts of booty needed to determine levels of penalty. The general trend of Sung changes in these laws was toward lessening the severity of the laws inherited from the Five Dynasties, but not to the degree of lenience characteristic of the T'ang period. The official Fan Tsu-yii observed: Under the Later Chou ruler T'ai-tsu [r. 951-54], a thief who stole booty worth three lengths of cloth would be executed. When the Sung founder took over, he made the laws on robbery and theft more lenient. A succession of benevolent sages [i.e., the succeeding Sung rulers] progressively reduced this. Therefore thieves were not executed. However, at present in the compiled edicts the penalties for robbers are still three times as heavy as the penalties laid down in the [T'ang] statutes. We inherited our system of penalties from the Five Dynasties and have reduced the harshness of that era, and yet our "lenience" is still like this.91 90 HCP 65-2ia-22a.
91 Fan Tsu-yii, Fan t'ai-shih chi, 22.1 ia.
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The penalties were reduced primarily by increasing the amounts of booty that thieves or robbers had to take in order to make them liable for a particular punishment. Not all officials were satisfied with the system of depending principally on the amounts of booty taken to determine the penalties. There was concern that penalties so determined did not place sufficient weight on the circumstances of the crime, whether or not, for example, the criminals had been abusive to their victims. The late Northern Sung statesman Tseng Pu (1035-1107) memorialized to complain about the system then in use: The circumstances of a robbery may be serious or not serious. The booty may be large or small. At present we just use the amount of the booty to determine the penalty. Thus, if a poor family is pillaged, even though the circumstances are serious, because the amount of booty taken was small the robbers avoid major penalties, whereas someone who pillages a rich family will be executed because of the large amount of the booty, even though the circumstances are not serious. Thus whether robbers live or die depends on whether the family robbed was rich or poor. When Tseng Pu became chief minister, his ideas were, for a time, put into practice, but they were reversed after he fell from power. 92 It is noteworthy that robbery differed from most other crimes in that no distinctions were drawn among those who participated. Ordinarily in Chinese law the principal in a crime was punished the most heavily. All those who were accomplices, which included those who harbored fugitives as well as secondary actors in the major crime, were punished less severely. The rule for robbery, however, was that all those who participated were to be punished equally, and each was to be punished as if he alone had stolen the whole amount taken. Only those who did not participate but who did receive a share of the proceeds were to be treated according to the rules for principals and accomplices. 93 If we look at what the officials recommended, in addition to the constant litany about the need for appropriate rewards and punishments, we find that they recognized the endemic nature of robbery. Wu Ching, an official active in the later half of the twelfth century, who had dealt with bandits with conspicuous success while serving as a sheriff and then as a district magistrate, advised his contemporaries that the world's having bandits is like a house having rats or a man's being ill. Houses will always have rats; you keep them under control with cats. Men will always have illnesses; you use medicine to help them get better. If you raise a cat 92 SS 1994978-79.
93 TLSI 3.76; SHT 20.11a. 93
Law and order in Sung China
and it will not catch rats, then the rats will dance in the morning. If you take medicines but not soon enough, then the disease will become more serious. 94
This simile of bandits as rats is common among Sung commentators. Ch'in Kuan (1048-noo) suggests in an essay different responses to the foreign enemy and internal bandits. The foreigners are tigers who must be destroyed with traps and weapons. The bandits are like rats who should be surrounded and smoked out. The bandits are easy to pacify at the same time that they are difficult to get rid of entirely. The state should respond by cutting off their sources of support, dispersing their gatherings, and striking quickly at the beginning in order to break their spirit. 95 Economic crimes The great upsurge of the economy in the late T'ang, Five Dynasties, and the Sung periods was accompanied by unprecedented concern by the state authorities with economic crimes. In earlier times there had been laws against counterfeiting, the illicit production of state monopoly goods, and the like. However, during this era of rapid economic growth the authorities seem to have been especially worried about enforcing such laws. During the Sung, the government was concerned about counterfeiting but even more so about illicit dealings in tea and salt. The tea and salt monopolies produced a substantial amount of revenue for the state. Because in this era the state tried to maintain high prices for these restricted goods, men willing to risk the penalties continued to manufacture and distribute them. In both the Northern and the Southern Sung, organized groups of men engaged in this illicit traffic. At times the authorities report that the criminals forced local people to buy their products, but for the most part the officials recognized that these illegal activities were provoked by the high prices of official goods. 96 The penalties for breaking these laws could be very severe. Before 979, people who bought a single pound {chin) of illegal tea were liable for one hundred blows of the heavy rod. For twenty or more pounds - a figure presumably set to distinguish dealers from users - the penalty was execution. (An order of that year reduced the penalties somewhat.) 97 94 Wu Ching, Chu-chou chi, 2.2a. 95 Ch'in Kuan, Huai-hai chi, i7.2afT. 96 There is a huge amount of material on these kinds of crimes. A proper study of them would require of book by itself, but see, for example, the kinds of reports found in SHY, ping n . 2 6 a - b ; SHY, shih-huo 25.22a; HNYL 3407. 97 HCP 20.20b.
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Arson Arson as a crime was closely associated in the minds of Sung lawenforcement officials with robbery and looting. The early Sung Code even contains a specific rule designed to cover those who "deliberately set fire to people's houses and buildings or to collections of goods in order to commit robbery." When such people were to be punished under the laws on robbery, the amount used to determine their sentences included not only the value of what they had taken but also the value of the losses suffered by the owner as a result of the fire.98 One magistrate described in the collection of case solutions called the Che-yu kuei-chien was determined to register all the juvenile delinquents in his jurisdiction in mutual security groups, in order to prevent them from committing arson with looting." As we might expect, arson seems to have been especially a problem in urban areas with their dense populations and crowded housing conditions. The urban soldiers used in fire fighting were themselves notorious for looting burning buildings while supposedly engaged in fighting the fires. The authorities wanted people to start fighting fires as soon as they arrived on the scene, yet they hesitated to let the soldiers begin before their superiors arrived, for fear of looting. In the end the threat of uncontrolled fires forced them to authorize immediate action, without waiting for the officers to arrive. 100 In one case a commoner from the capital city who had attempted to commit arson was stopped by his wife. In a later incident, when he ordered her to rob a neighbor and she refused, he threatened her with a knife. She was so terrified that she reported him to the authorities. The case had a very traditional Chinese ending. Under the statutes any wife who accused her husband of a crime was liable for execution. The prefectural authorities who were charged with settling the case were very disturbed by what they saw as a gross miscarriage of justice, because the wife, even with mitigation, would be liable for exile, but the husband, the real criminal, would be released unpunished. They asked for an imperial ruling. The emperor ordered that the husband be beaten, tattooed, and sent to Kuang-nan for penal registration. The wife was freed.101
98 SHT 19.304-5. 99 CYKC n o . There are a number of reports on the problem of looting following arson. See SHY, hsing-fa 4.5a (1010); SHY, ping 3.2b (1020); SHY, ping 2.i7a-b. 100 SHY, ping 3-ia-b, 4b; HCP n o . i b . 101 HCP 106.15a.
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Law and order in Sung China
Crimes of violence — assaults and batteries Minor crimes of violence against the person are said to have been common. In a memorial about banditry in two prefectures in Chekiang the Southern Sung official Wang Chih (1127-89) remarked that "never a day goes by without there being cases of beating; never a year goes by without there being cases of assault with a knife or saw." 102 However, such crimes are little noted in the sources, compared with some other crimes. Since for most such assaults and batteries the penalties were relatively light, they could be assessed and inflicted by the district magistrates without being reviewed at higher levels. Thus they would tend to come less often to the attention of important officials, and so records of them would be less likely to be preserved in the sources. Although most assaults and batteries were relatively minor crimes, as measured by the penalties inflicted, they were of greater concern when they involved organized groups. In late imperial China the state was plagued by organized feuding and violence. The origins of violence have been traced back to the Sung dynasty, particularly the Southern Sung. Such feuding seems to have originated at least partly because the state had given local people in the pao-chia militia system training in weapons. The state also persecuted local religious organizations, some of which used weapons as part of their ritual paraphernalia. As a result of these two developments, there were in the Sung countryside both large numbers of ordinary people who had had some training in arms and the experience of being organized for combat, and the kinds of stimuli that might cause them to band together to cause trouble. Such feuding by groups could continue for extended periods, especially if it reflected disputes among locally influential kin groups who used sizable gangs, including pao-chia militia groups, to carry on their fights.103 Situational character of crimes When assaults and batteries were committed by individuals or casual groups, they were relatively minor matters. Although the penalties were usually light, the category itself clearly displays some basic characteristics of traditional Chinese views of crime and criminality. It is appropriate to call these traditional Chinese, and not merely Sung, views, as the rules used by the Sung were adopted unchanged from the T'ang, 102 Wang Chih, Hsiieh-shan chi, 3.24. 103 See Sogabe Shizuo, "Sodai no ketsu-kan" (Concerning feuds in the Sung Dynasty), in Ishida Hakushi Koki Kinen Jigyokai, ed., Ishida Hakushi shoju kinen Tqyoshi ronso (Tokyo: Ishida Hakushi Koki Kinen Jigyokai, 1965), pp. 311 ff.
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who in turn had inherited them from earlier dynasties. Similar rules continued in use in later times. The rules for punishing assaults and batteries reveal the Chinese concern about the situational character of crime. That is, the seriousness of a crime was measured only in part by the degree of violence done or the size of the booty taken. Equally important were the social statuses of the perpetrator and victim, and their relationship. Generally, crimes committed by status inferiors against superiors were punished more heavily than were crimes against equals, and crimes of status superiors against status inferiors were punished more lightly. The most basic rule, found in both the T'ang Code and the Sung Code of 962, states that the penalty for battery (by an ordinary person against another ordinary and unrelated person) was forty blows of the light rod. This penalty would be increased if injuries had resulted or if weapons other than fists had been used. The statute states: If there are wounds or if weapons other than the fists are used, the penalty is sixty blows of the heavy rod. If the wounds reach to the loss of a square inch of hair or more, the penalty is eighty blows of the heavy rod. If blood is drawn from ear or eye or there are internal injuries with the spitting of blood, increase this by two degrees [to one hundred blows of the heavy rod].... When those who commit battery cause a broken tooth or the loss of an ear or nose or of some vision in one eye, or if toes or fingers are lost, or if bones are broken, or if boiling water or fire is used to injure someone, [the sentence is] one year of penal servitude.104 It should be noted that with the exception of the last provision, which calls for penal servitude, all the other cases, which involved penalties of one hundred blows of the heavy rod or less, could in Sung times have been adjudicated on the district level without being reviewed by higher authorities. As this passage indicates, in addition to differentiation according to the degree of injury, the sentences also varied depending on the weapons used. The statute cited also states that when weapons other than fists were used, even if no injury resulted, the penalty was sixty blows of the heavy rod, not forty blows of the light rod. If a military weapon was used to attack someone, without any injury having been inflicted, the penalty was one hundred blows of the heavy rod. Similarly, if boiling water or fire was used to commit battery, the sentence was one year of penal servitude. Naturally these two factors could be combined, so that if a
104 SHT 21.324*1:
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person actually wounded someone with a knife, the penalty would be two years of penal servitude. 105 Equally important in sentencing, and indeed having logical precedence, was the question of the parties' status and their relationship. Status considerations, which were based on age, sex, and membership in certain social groups (officials and their relatives, relatives of the imperial family, certain religious orders, ordinary people, unfree groups, and so on) helped determine whether a crime had been committed and the penalties to be inflicted. The relationship between the parties was even more important. Certain actions, for example, the striking of one person by another, might be an extremely serious crime, a minor crime, or no crime at all, depending solely on the relationship between the parties. A passage from the T'ang law, copied into the Sung Code (even though some of the categories of persons named no longer existed in Sung times) serves as an example of these principles: When a pu-ch'ii [a type of unfree personal retainer] assaults or injures a commoner, his penalty is to be one degree heavier than that for an ordinary person. For slaves in similar circumstances, increase it by another degree. If slaves fight with commoners [literally, "good people"] and break a bone or injure an eye, they are to be executed by strangulation.106 Thus a commoner injuring another commoner in these ways would suffer one year of penal servitude, whereas a slave injuring a commoner would be executed. The reverse also held. This statute goes on to say that when an ordinary commoner injured another person's pu-ch'u, the penalty was one degree less than for having injured a commoner. Masters also were legally entitled to beat their unfree dependents and would be punished lightly even if the dependents died. Those masters who beat pu-ch'u to death without having intended to kill them were liable only for one year of penal servitude (the ordinary penalty for the crime of homicide in an 105 SHT 21.326; TLSI 3.81. In a puzzling passage recorded in the Sung History, the late Northern Sung official Tseng Pu argued for an increase in the severity of penalties for certain sorts of assaults, stating, "There is certainly a difference between using the hands or feet or strike someone and using a sword, boiling liquid, or fire; yet all of these are called 'injury'." He seems to be implying that people were being punished more or less equally no matter what they used in their assaults, which would have been flatly contrary to the rules in the statutes. However, he also was concerned because some such cases were being sent up for central review and some were not, perhaps fearing that the culprits who used weapons such as swords or fire, but whose cases had been memorialized, would be punished less heavily than would those whose cases were not sent up, even though they had only used their fists (see SS 199.4978— 79). 106 SHT 22.341.
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affray was strangulation). If they had deliberately killed the pu-ch'u, the penalty would be increased by one degree, to one and a half years of penal servitude. If the death resulted from the pu-ch'u's having been beaten as punishment for their wrongs or if the death was accidental, the masters were not to be tried. 108 This should be contrasted with the treatment ofpu-ch'u or slaves who accidentally killed their masters. They were strangled. They also were strangled if they committed battery against their master's mourningdegree relatives or his grandparents-in-law or parents-in-law. 109 The same status differences protected the elite. Assaults and batteries against imperial relatives or officials were punished more heavily than were ordinary assaults and batteries if they were committed by status inferiors.110 Relationship, especially the kinship relationships defined according to the system of five degrees of mourning, also affected the character of a crime. In the usual case, when a kinship relationship also involved relations of inferiority and superiority, the principles just discussed applied. Husbands who assaulted and injured their wives were liable for penalties of twenty blows of the light rod, that is, penalties two degrees less than those called for in cases of ordinary assault. By contrast, wives who merely struck their husbands were liable for one year of penal servitude, and if serious injury resulted, they were to be punished three degrees more heavily than the penalty for having injured ordinary unrelated persons. 111 The state also mandated divorce for such crimes. The closeness of the relationship, usually as measured by the system of mourning gradations, also affected the weight of penalties, with a closer relationship generally having a greater impact. The T'ang and Sung codes contain many more rules in this same vein, spelling out the degrees of liability associated with various statuses and relationships, but the principles behind them are identical with those just described. 112 Finally, the circumstances were supposed to affect the penalty. Chinese laws from the Sung very often say that whether the circumstances were "heavy" or "light" should affect the judgment. In part what was to be considered heavy or light was set down in the Sung laws themselves. Unfortunately, almost all the rules that specified such circumstances are no longer extant. 107 108 109 110 111 112
SHT 21.328. SHT 22.343. SHT 22.343. SHT 2i.334flT., 22.339, a n d passim. SHT 22.346. See, for example, the statute from SHT 22.351, which specifies penalties for such crimes as assaulting an elder brother's wife.
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In addition to such formal rules, it appears that Sung magistrates were supposed to take into account the particular facts of a case. One official wrote in the late twelfth century to complain about the failure of his colleagues to deal adequately with cases in which there were mitigating circumstances that made the stipulated penalty excessively harsh. He used three hypothetical examples: the case of a man who had killed someone in a fight when prior to the fight the man killed had invaded and injured the killer's fields or crops; a case in which the man killed was a debtor who, prior to the fight, had vilified the man accused; and a case in which the man killed had attacked the elders or parents of the man accused. All such things could cause the case to be labeled light circumstances.113
Major crimes of violence — homicide Many of the same principles applied in the treatment of more serious crimes of violence. In homicides as in assaults, attacks by social inferiors against their superiors were more severely punished than were attacks between equals in status, and those by superiors on inferiors were treated more lightly, though a husband who killed his wife was treated as a case of ordinary homicide. Homicides were also differentiated according to the killer's intent. T'ang and Sung law distinguished between homicide committed in an affray (tou-sha) (in which there had been no intent to kill), deliberate homicide (ku-sha) (which did not involve premeditation but in which the killer at the time of his act recognized what he or she was doing), premeditated homicide (mou-sha), homicide occurring during horseplay (hsi-sha),114 and homicide through accident or mischance (wu-sha). The most serious crime was premeditated homicide, which carried a statutory penalty of beheading. The next most serious was deliberate homicide, which also carried a penalty of beheading. Then, in order, homicide during an affray earned a penalty of strangulation; homicide in horseplay (hsi-sha) had a penalty of exile; and homicide through accident or mischance carried a penalty of one and a half years of penal servitude, though in this last situation people could usually commute the penalty. 115 113 TFSL503. 114 For homicide in horseplay, see Benjamin E. Wallacher, "The Chinese Offence of Homicide Through Horseplay," Han-hsiieh yen-chiu 1 (June 1983): 259-316. On the system of commutation, see Chapter 14. 115 SHT 17.275; 23.360; 21.328. Of course, I am giving here the simplest cases; the actual law was more complex. The penalty for homicide in an affray was ordinarily strangulation but if a knife were used, the penalty was beheading. The laws for other crimes are similarly complex.
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As a more serious crime, homicide, though probably far less common than simple assault and battery, is described quite often and in some detail in Sung sources. The hidden potential for violence which ran under the surface of Chinese life sometimes exploded for trivial reasons and ended in death. Seng Fa-tuan was outraged at the price that a fisherman demanded for his fish. Seng ordered Seng Shou-kung to kill his estate's dog and then went to the officials and falsely accused the fisherman of being a robber (who had killed the dog) and fled the district. Runners were dispatched. They seized the fisherman and his father. They bound the two men and sent them to the estate, where Seng Shou-kung beat them to death. He also bribed the district records clerks to gather the village officers to go to arrest the two younger brothers of the fisherman and had them killed. He also wounded the mother of the fisherman with a knife. Then he informed the sheriff that he had killed some bandits in trying to capture them.
In this grim case the investigation by the sheriff and the magistrate eventually uncovered the actual facts, and the criminals were executed. 116 Then as now, murders often followed in the wake of sexual abuses. Adultery followed by killing is a recurrent theme: A commoner of Hsiian Prefecture named Yeh Yuan strangled his wife and his elder brother with whom he had lived, because the elder brother had previously committed adultery with Yeh Yiian's wife. He also killed his elder brother's son and forced his own father and the elder brother's wife to agree not to inform the authorities.
In this case the neighborhood mutual security group found out about the killings and informed the prefectural authorities. The case became something of a cause celebre. The legal problems were difficult to disentangle, because the reputed adulterer and the wife were dead. It was therefore impossible to determine whether the elder brother had raped the wife, which would certainly have justified some mitigation in the sentence of the murderer-husband, or whether the adultery was consensual. In the end the emperor himself intervened and ruled that the man should be executed. It was no longer possible to determine whether the wife had been raped. Therefore the case had to turn wholly on the behavior of the defendant. If he had killed only the supposed adulterer, there might have been grounds for mitigation, but he had also killed the adulterer's son and coerced his own father. Therefore, even if the
116 HCP87.i7a-b.
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adultery could have been proved, it would have been insufficient to mitigate the sentence. 117 Because homicides called for more serious penalties, they inevitably entailed scrutiny by higher officials. They sometimes also raised serious questions of formal legality and legal process. In a case from Shou Prefecture in Huai-nan West Circuit, a man had killed his wife's parents and his elder and younger brothers. The prefectural authorities felt that it was a case falling under the category of "depravity" (pu-tao). As such it required the joint adjudication and punishment of the man's wife and his son, along with the murderer. The circuit judicial authorities reversed this decision. Their reasons are thoroughly lawyerly. They said that under Sung law if a man beat his wife's parents, the state automatically mandated that the couple be divorced under the system called righteous separation. If beating automatically created such a separation, then murder certainly would do so also. Therefore, because the wife had, through the act of her husband, been divorced from him, she was no longer his wife under the law and so could not be jointly adjudicated. 118 Adultery could lay bare the kinds of tensions that divided some households. In the late tenth century an adulterous widow, worrying about people finding out, became ill. Fearful that her son would report her, she accused the son of having put poison in her food. When the incident was investigated, the widow bribed the investigators to arrest her son. The son was held in jail for months. Eventually, the emperor issued an order of disposition. However, the accused continued to protest his innocence and demanded that the corrupt functionaries be punished. Finally, many months later, the truth was uncovered. 119 With all their various circumstances, homicide cases often raised difficult legal questions. Settling them was important not only to the accused but also to the officials involved. Officials could be sanctioned if they made serious errors in judicial judgments. A case that involved a mixture of adultery and murder reflects this aspect of the legal system. In the late eleventh century an adulterer plotted with her lover to murder her husband. After the plotting had been completed, the husband unexpectedly returned, and the lover killed him. Most of the legal officials in the capital who dealt with the case felt that because the wife had not herself participated in the actual killing, she should be treated as an accomplice. This would have spared her execution. However, one 117 Hung Mai, Jung-chai sui-pi (Shanghai: Shanghai shu-tien, 1984), 5th collect., p. 147; SHY, hsing-fa 5.10b; HCP 303.17a. 118 Chiang Hsiao-yii, Huang-ch'ao lei-yuan (Beijing: Chung-wen ch'u-pan she, 1981), 22.1a. 119 SHY, hsing-fa 5.2a-b.
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official in the Ministry of Justice argued that because of the prior plotting, the woman should be executed. This same official, apparently at approximately the same time, also contradicted his colleagues in a case involving another homicide. A father had brought some grain to feed to his wife, who was ill. When their son then ate the grain, the father beat him to death. The legal authorities felt that because the son had in effect stolen the grain, beating him to death fell under the category "miscellaneous crimes calling for the death penalty," which meant that the criminal would be eligible for, and spared by, an amnesty that had been issued between the time the crime had been committed and the time of the trial verdict. The hard-line official again disagreed. In the end the official who had disagreed with his colleagues was fined, apparently for being inappropriately harsh in his judgments, and the more lenient penalties were inflicted. 120 Crimes of violence - rape Rape almost certainly was regularly underreported in Sung China. The work of Vivian Ng on rape in Ch'ing China discusses both the practical and the ideological reasons why the authorities made rape a difficult crime to prosecute, and therefore a crime even less likely to be brought to light in China than elsewhere.121 As Gary LaFree notes in his book Rape and Criminal Justice, because rape cases rarely include eyewitnesses, the processing of the cases "is often reduced to a direct confrontation between accuser and accused." Such a two party confrontation in which each party insists on a different reconstruction of an event is likely to be highly ambiguous. Without eyewitnesses processing decisions may depend less on an assessment of whether a rape has occurred than on a perception of whether the victim and the assailant are the kind ofpeople who could have been involved.122 In Chinese law the burden of proof that the victim resisted the advances of her attacker rested on the woman. When the woman could not prove her resistance, the crime would be classified as adultery by mutual consent. Under these conditions it is hardly remarkable that rape cases were underreported. Indeed, many cases seem to have come to the attention of the authorities only because they were accompanied by other serious batteries that could not be concealed. 120 WHTK 170.1476; SS 201.5010-11. 121 Vivian Ng, "Ideology and Sexuality: Rape Laws in Ch'ing China," Journal of Asian Studies 46 (1987): 57-70. 122 LaFree, Rape and Criminal Justice, pp. 27-28 (italics in the original).
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In Sung law, rape was treated as adultery with force, and the crime is listed at the end of the statute on adultery: For committing adultery the penalty is one and a half years of penal servitude. If the woman is married, increase the penalty to two years. For people of unfree status who commit adultery with ordinary commoners, the penalties should be increased by one degree. For adultery with an official slave or private slave, the penalty is ninety blows of the heavy rod. For committing adultery with another man's pu-ch'u\ wife or the wives of men belonging to two other unfree categories [tsa-hu or kuan-hu], the penalty is one hundred blows of the heavy rod. For rape, increase these penalties by one degree. If injury occurs, use the penalties for battery and injury increased by one degree.123
Social crimes - gambling The state was concerned about gambling because the authorities believed that it contributed to other sorts of crimes. Gambling often involved drinking too much and exchanging insults, with fights breaking out among the gamblers.124 Wang Yung speaks of "corrupt petty men who have no sense of responsibility and who are unrestrainedly evil." They may be gamblers; they may illegally butcher oxen or make counterfeit money. "If they lose money through gambling and have no means to pay their debts, then they will become thieves or, if they are numerous, bandits and arsonists."125 His comment was echoed by an official who commented in 1087 that "the rustic, lazy people of the prefectures and districts gamble and, when they have lost, become bandits."126 In one well-known and illustrative incident, three soldiers who were serving as night police in the capital pawned their clothing in order to gamble. When they lost their stake, they seized a passerby, killed him, threw his body into the canal, and pawned his clothing to raise money so that they could redeem their earlier pledge.127 The collection of thirteenth-century case decisions entitled the Ch'ing-ming chi also provides us with a colorful description of a gambling house. A man of Ch'ii Prefecture in Liang-che Circuit who was married to a "singing girl" (prostitute) installed her on the first floor of a building that fronted on the marketplace. There she presided over a tea house. Upstairs he set up a regular gambling operation. Men who were originally attracted to 123 124 125 126 127
TLSI 4.38 ff; SHT 26.421 ff. Wang Chih, Hsiieh-shan chi, 3.24. Wang Yung, Sung-ch'aoyen-i i-mou lu, Pai-ch'uan hsiian-hai ed., 2.5b. HCP 398.12a-13b. SHY, ping 3.1b.
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the tea house and its mistress stayed on to gamble, usually at dice games. Swindlers and sharps set about fleecing the customers. Large sums were gambled and lost. One man lost 250 strings, a true fortune when you remember that the state figured that the total cost of supporting a member of the postal system was about 30 strings a year. Others also lost large sums before the authorities cracked down and arrested the proprietor. 128 Little wonder that the authorities tried, but without success, to stamp out gambling operations. Locations of crimes - piracy To speak of "crime in Sung China" is somewhat misleading. Sung China was a diverse empire, and crime varied depending on the regions concerned. Urban crime (and law enforcement) are distinct and will be covered in a separate chapter, but the patterns of crimes in other areas were also sometimes quite distinctive. Piracy posed its own problems, and as we noted, crimes in areas with substantial non-Han populations also demanded some adjustments in law enforcement and legal patterns. Piracy presented peculiar problems of law enforcement. A number of Southern Sung officials wrote in detail about the methods of suppressing piracy. Their suggestions indicate that policies like those used against land-based bandits were used but modified for the problems of dealing with an enemy who could strike quickly and with little warning. The use of mutual security groups among the people,129 the elimination of the underlying economic and political problems, government support for local self-defense, proper training and equipping of government forces, an emphasis on unified leadership and on the importance of cooperation among state agencies - all these were elements in the regular pattern of bandit suppression. Their importance was merely underscored by the difficult problem of stopping sea-based criminal bands. 130 Even the chain of command was also the same, from the local patroling inspector to the prefecture, to the circuit, to the central authorities. 131 But in addition to these general policies, the authorities also acceded to requests by local officials that boats and ships be registered, as a control device.132 128 Ming-kung shu-p'an ch'ing-ming chi, vol. 2, p. 530. 129 For the use of this device in areas threatened by piracy, see SHY, ping 2.43a, 46a. 130 For some of the sources, see, for example, essays in Ch'en Ch'un, Pei-ch'i ta-ch'iian chi, 45.3b ff; Cheng Hsing-i, Cheng-chung su tsou-i i-chi, SKCSCP ed., shang 17b; Ts'ai Hsiang, Tuan-ming chi, 21.9a; Chen Te-hsiu, Hsi-shan hsien-sheng Chen wen-chung kung
wen-chi, SPTK ed., 8.5b, 17.20b; Wu Ch'ien, Hsu kuo-kung tsou-i, Pai-pu ts'ung-shu chi-ch'eng ed., 4.1a. 131 Chen Te-hsiu, Hsi-shan hsien-sheng Chen wen-chung kung wen-chi, 8.5b-10b. 132 SHY, ping 2.46a, I2.i7a-b, 13.33b. See also Wu Ch'ien, Hsu kuo-kung tsou-i, 4.1a.
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Piracy also reveals another facet of Sung crime, its seasonality. In the case of piracy along the south and southeast coast, the criminal season corresponded to the period of fair winds that brought merchants from southeast Asia to the ports of southern China. In other areas criminal activity by gangs occurred during the agricultural off-season, suggesting another aspect of peasant criminal culture. Presumably, the gang members in such areas worked as farmers during the growing season, joining together in the winter to rob. 133 Much of our information on piracy comes from the Southern Sung. This is hardly surprising, considering the importance of water-borne commerce during that period and the proportion of state revenues that were derived from taxes on overseas trade. It is also not unlikely that piracy actually increased as the numbers and values of water-borne cargoes increased. Toward the end of the dynasty, the problem of piracy became entangled with problems of national defense. The state had to preserve its control over the sea lanes for fiscal reasons but understandably had to limit its commitment of resources to the coasts so that it could effectively combat the Mongol enemy. The official Cheng Hsing-i (1126-99) summarized the special problems of suppressing pirates: The methods useful against bandits on land are not useful against pirates. How so? The sea is vast, who knows how many thousands and tens of thousands of li.A Roving criminals take advantage of the winds to arrive unexpectedly, spy out the unprepared, destroy the people's homes, and steal their food. The prefectures bordering the sea are frequently raided. The Court dispatches troops to suppress them, but these are men sent from the interior. How could they arrive in the morning and go out in the evening? The troops man their positions, but the sea raiders are like the winds and clouds. In the twinkling of an eye they have struck and vanished. If you want to pursue them amid the vast waves, they have no fixed place. How could they be effectively attacked?134 Like other sorts of bandits, pirates were frequently bought off by the state. It even was common practice for the authorities to give honorary ranks to major bandits when they surrendered. A report from 1135 notes briefly: The Fukien pirate Chu Tsung was awarded the rank of a Pao-i dignitary (rank 9A). His followers were given awards of official rank by degrees. During the first month of this year Chu Tsung gathered a group of thirty ships on the sea, with two hundred or so men, and entered the various districts of Kuang-tung to burn and kill. After this the Court empowered the general of Fukien-Kuang-tung to 133 SHY, pine 13.37a. 134 Cheng Hsing-i, Cheng-chung su tsou-i i-chi shang. 17b. 106
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devise methods for summoning him to surrender or for capturing him. At this point Chu Tsung came in with his followers and surrendered.135 As this material suggests pirate gangs perhaps included somewhat larger numbers of members on average than did other sorts of bandit groups. Other sources confirm this possibility. 136 Most such pirate gangs probably operated along the seacoasts, but piracy was an inland occupation also, especially on the larger lakes and rivers. The authorities of Lu Prefecture in Huai-nan West Circuit asked in 1175 that boats and families be registered there, to prevent piracy under the guise of fishing.137 Penalties for piracy seem to have been determined by a separate set of rules, the "precedents on piracy" (hai-tsei li).138 Men convicted of piracy and sentenced like other robbers to penal registration were sometimes registered in naval units or in riverside prefectures where their skills would be useful. A report from the 1160s indicates that at this time many were being sent to the "distant, evil prefectures" on the coast of Kwangtung. The official who submitted the report was concerned because, he said, at the seaside they often built boats and caused trouble. He asked that they be sent to serve in naval units in the Liang-Huai region of central China. His request was approved. 139 Another twelfthcentury document lists a set of prefectures to which certain pirates were to be sent for registration. All of them bordered the Yangtze River. 140 How often were crimes committed? True crime rates are notoriously difficult to establish. Even in contemporary states, reported crime rates are not completely trustworthy. 141 The crime situation in Sung China must remain problematic. Impressionistic and indirect evidence, however, may allow us to comment tentatively on changes in crime rates. Clearly there were periods during which crimes, especially organized crimes like banditry and smuggling, were more widespread. In some cases, the 1040s and the late 1120s, for example, the rise of internal unrest and accompanying crime waves were 135 SHY, ping 13.18a. 136 Wang Chih-wang (d. 1170), reporting on seizing a pirate gang in T'ai Prefecture in Liang-che Circuit, says that fifty-seven men were arrested. See Wang Chih-wang, Han p'in chih, SKCSCP 1975, 7.24a-25a. 137 SHY, ping 2.46a. 138 SHY, hsing-fa 4.47a. 139 WHTK 168.1460. 140 Ibid. 141 See the discussion of crime rates and the problems associated with their interpretation in Wilson and Herrnstein, Crime and Human Nature.
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associated with external military problems. More generally, I think, we can argue that the long-term general increase during the Sung in the number of local police officials and their supporting soldiers and constables reflects a decrease in local security. Surely a state with only limited resources would not invest them in police activities if it were not necessary. More crime seems intuitively to be the most satisfying explanation, though of course there are other possibilities, for example, that the authorities felt it important that a higher degree of security be maintained in the empire and thus raised the number of police personnel, even though the amount of crime itself had not increased. No doubt other possibilities can be imagined, but none seems as likely as the simplest, that more crimes were being committed. The general impression given by the sources is that the Northern Sung period was somewhat less disturbed by crime than was the Southern Sung, with the exception of the 1040s and the reign of Shen-tsung (1067-85). In the first Northern Sung period of high crime rates, the Sung state was involved in a very expensive foreign war, and in the second the accumulated fiscal problems inherited from earlier reigns had created an internal governmental crisis, to which the reforms of Wang An-shih responded. Because the sources are of uneven quantity and quality, it is possible that some of the apparent rise in the rate of crime may reflect differences in the amount of information that has come down to us. Thus we have far more information on the reign of Shen-tsung than on any other period in the Northern Sung and so should expect to find more reports of criminal activity, and indeed of all kinds of activity. Still, the sheer volume of complaints does suggest that the rate of crime rose in this period. The Southern Sung sources are much less full than those for the earlier period. Given this disparity, the frequency with which Southern Sung officials discuss crime and its suppression suggests that its incidence had in fact increased, a suggestion most strongly supported by the larger numbers of police officials appointed. Such an increase seems probable also if we generalize from the findings of modern criminologists. It seems clear from their work that the typical criminal in all societies that have been subjected to study is not only young and male but also urban. 142 If this trait — which seems to hold universally, judging from recent evidence — was also true of traditional societies, then a rise in crime rates would be predictable from the increasing urbanization of Sung times. In the preceding chapter we described the demographic transformation from 142 See ibid., p. 26.
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the T'ang to the Sung periods, marked by an enormous increase in the number of small market towns and by the breakdown of internal controls within the larger cities. During the Sung period itself the number of larger cities grew, and therefore a much larger proportion of the population lived in urbanized areas. This implies that if and when we are able to learn the origins of an appropriate sample of Sung criminals, we will find that Sung criminals came in disproportionate numbers from cities and market towns. There are a variety of reasons that an increase in urbanization may (but does not always) lead to an increase in crime. One is simply the density of criminal opportunities: An individual encounters opportunities to commit crimes at varying rates as he goes about his daily business. Crime rates may go up or down because of changes in the density of such opportunities or their accessibility to criminal penetration or both, all without any change in the dispositions of the individual.143 Regional variations in crime rates Some kinds of areas - borders, coasts, boundary regions, marshes, mountains - seem to have been especially attractive to organized criminals. However, even within those parts of rural China where the topography was not unusual, there seem to have been major regional differences in crime rates. Some areas were notorious as homes of unruly populations and havens for criminals. Hsiu-ning District in Chiang-nan East Circuit was, in the words of Wu Ching, "a violent district," 144 and Tu Fan (doctorate of letters degree 1208) said that in the I-ch'eng and Ning-kuo districts of Ching-hsi South Circuit, "pillaging and killing by bandits are widespread." 145 Crime rates no doubt varied from place to place even in relatively small regions. In 1157 Hsiieh Chi-hsiian describes serious banditry problems in Hsing-kuo Prefecture in Chiang-nan West Circuit. Two decades later Chu Hsi, writing about Tu-ch'ang District in Chiangnan East Circuit, an area only about one hundred miles from Hsing-kuo Prefecture, derided a request for establishing another police fort. He said that the area had been peaceful for the last century. There had indeed been one gang of robbers, in all three men, who came along the river but were too afraid to land on shore and who had promptly been captured by the local sheriff.146 Certain districts were thus seen as basically lawabiding. 143 144 145 146
Ibid., p. 410. Wu Ching, Chu-chou chi, u . 8 a - i o a . Tu Fan, Ching-hsien chi, SKCSCP 1971, 19b-20b. Hsuch Chi-hsuan, Lang-yu chi, SKCSCP 1971, 20.9b-11 a; Chu Hsi, Hui-an hsien-sheng Chu Wen-hung wen-chi, SPTK ed., 20. nb-14a.
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This regional variation is probably related to one important exception to the characterization of the typical Sung criminal as an unattached, young adult male. In certain regions of China there existed what we might call a culture of peasant crime. This seems to have been especially true in areas where the geography made escape from the authorities easy and life itself hard - mountainous regions or swampy places, for example. People in these regions exhibited behaviors that in the European tradition are sometimes thought of as characteristic of the peasants of some parts of southern Europe. In times of plenty most people would be law-abiding, but they were always ready when opportunity offered, or when circumstances demanded, to turn to crime as a way of life.147 It is to this penchant that Liu Chih (1030-97) was referring when he said that "the people nourish the hearts of bandits," so that evil men could recruit from among ordinary villagers as well as from among military deserters. 148 This problem was beyond the power of the state to settle definitively. The authorities could try only to reduce it somewhat by indirect means, for example, by outlawing the ownership of certain sorts of weapons. 149 Furthermore, in Sung China, as in many other times and places, criminals tended to cluster along jurisdictional boundaries. This may have been a geographical phenomenon. Such boundaries often ran along watersheds, that is, in the highest and least accessible locations, which also often were the most heavily forested and mountainous terrains in the region.150 An official writing in 1117 characterizes a bandit stronghold in typical fashion as being located in "one of the most inaccessible and mountainous places in Ho-tung Circuit." 151 In other parts of China, jurisdictional boundaries ran through marshlands, also excellent hideouts for gangs. 152 This pattern was also political, because it allowed the criminals, if pressed by the law-enforcement apparatus of one jurisdiction, to slip across the border into another jurisdiction. Then, as now, cooperation among the law-enforcement officials of neighboring jurisdictions was mandated in theory but often ignored in practice. 153 In the early twelfth century an official remarked: 147 For some comments on this marginality of people in certain regions of China, see John W. Haeger, "Between North and South: The Lake Rebellion in Hunan, 1130-1135," Journal of Asian Studies 28 (May 1969): 469-84. 148 HCP 365.3a-4b. 149 HCP 117.19a. 150 See, for example, the comments of an official writing in 1113 about problems in Yung-hsing Chun Circuit: SHY, hsing-fa 4.34b-35a. 151 SHY, hsing-fa 4.36a-b. 152 SHY, hsing-fa 4.36b. 153 See Wu Ching, Chu-chou chi, n . 8 a - i o a , on the role of boundaries and borders. See also, for example, SHY, ping 13.47b, on the problems of cooperation among jurisdictions. In the American West, at the place where the states of Colorado,
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In the area of the western mountains along the northern banks of the river, the forests are heavy. There are many fugitives hiding out there. If there is any weakening of control, then many of them will turn to banditry. Generally, when this happens, because the boundaries are unclear, the prefectures mutually avoid them, neglect to exercise control, and stay away from the distant places.
He recommended that in hard-to-control areas such as forests, mountains, swamps, areas with lakes, places where horses were raised, and places where there were abandoned buildings that might serve as headquarters for bandits, the circuit intendants should cooperate in determining the boundaries and should have maps drawn of especially difficult areas. The Court approved his proposal. 154 However, we may suspect that the impact of policies such as these would be minimal. The key problem was probably that an official's career was harmed only by crime committed within his jurisdiction. If he could succeed in driving criminals over the border into his colleagues' territories, he might benefit from his apparent success in preserving law and order. He thus would have little to gain by cooperating with his colleagues in neighboring jurisdictions, as their joint efforts might fail, and in the worst case the criminals might end up back in his jurisdiction. Criminals might cluster in regions difficult to reach. They also might be found in disproportionately large numbers in places where the opportunities for crime were greatest, such as the large cities. Finally, in any area they tended to seek out certain sorts of places as bases. The early twelfth-century book of advice to local officials, entitled the Tso-i tzu-chen, recommends that local officials have abandoned kilns blocked up, so that criminals could not live in them, and a decree from the early eleventh century instructs officials concerning certain unregistered temples, which "have no abbot to manage them and are located in hidden, solitary, and mountainous areas. Those that serve as the hideouts of bandits should all be destroyed." The passage continues, "At this time in Fang Prefecture [in Yung-hsing chun Circuit] there was a bandit gang that had gathered at a Buddhist center in the mountains." 155
Number of criminals Occasionally the sources give us figures on the number of criminals. 156 These figures, widely scattered and of differing degrees of reliability, Wyoming, and Nebraska come together, nineteenth-century horse thieves and cattle rustlers usually had three hideouts, one in each state, and, when pressed hard by the authorities in one jurisdiction, would simply cross the line into another. 154 SHY, ping I2.i6b-iya. 155 SHY, ping u . 8 b . 156 The figures we have must be used with caution. It is important to bear in mind the
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cannot be of much help in tracing long-range changes in criminal behavior, but they still offer some glimpses of the difficulties faced by the law-enforcement system. In 968, for example, in one sweep of the capital city, the authorities arrested 367 juvenile delinquents and deserters who had turned to robbery. 157 About a century later, an official wrote that in Ching-tung Circuit some 80 forceful robbers had been arrested in some fifteen months, this in a region that at this time had a population of almost 7.5 million. 158 Without trying to push these figures too far, we can probably say that the arrest rates were low relative to the population. One thing this indicates is the ability of even small numbers of troublemakers to disturb local tranquillity. The numbers of men held in jails may also help in trying to form a picture of the numbers of criminals in an era. We learn of the numbers held in the capital because the emperor periodically examined cases there and freed or reduced the sentences of most prisoners. In 995 it is noted that when he had inspected the records of the prisoners held in the various jails in Kaifeng, "those who received mercy numbered several hundred." 159 This figure seems to have been not unusual for the capital area. In 1005 when the emperor repeated this process, there were again two hundred prisoners. 160 In 1078 the jail of the State Finance Commission had more than seventy criminals, and the offices of the Kaifeng Prefecture had more than one hundred. 161 This rather large number of prisoners in the jail of the administration of the capital prefecture is perhaps not surprising. Kaifeng was certainly the largest city in the empire at the time, and the number of prisoners held in the numerous jails there could be very large. In addition to the jails belonging to local
157 158
159 160 161
process by which the figures were generated and that the officials who created them might have reason to alter the facts. An official writing at the turn of the twelfth century commented that the Court had been receiving reports that suggested that the numbers of robbers had decreased since certain changes in the laws had been enacted but that in fact the reduction "really is the result of subordinates fearing to report robberies for fear of being censured or having their actions reversed, not really because robbers are fewer in number" (WHTK 167.1451). HCP 12.11b. HCP 310.12a. The men had been arrested since the last Hall of Light amnesty, which seems to have been on the fifteenth day of the tenth month of the second year of the Yiian-feng reign period (November 11, 1079) (see STCLC 53-54 and SS 15.23a). The population figure is only very approximate. I have used the figures originally from the Wang Ts'un, Yiian-feng chiu-yu chih (Taipei: Wen Hai, 1967), for 1080, as cited in Hope Wright, Geographical Names in Sung China (Paris: Ecole pratique des hautes etudes, 1956), supplemented in the case of Ch'i Prefecture by the figure from the Sung shih which is dated 1102. The household total derived in this way was multiplied by a factor of five to give a rough population total. HCP 37.6b. HCP 6 1 . n b . HCP 288.9a.
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Table 3.2. Numbers of bandits reported
Place
Numbers
Households
Shih Prefecture in K'uei-chou Circuit Hua Prefecture in Ching-hsi North Circuit Wei Prefecture in Ho-pei West Circuit Yuan-ch'u District in Ho-tung Circuit T'ai-p'ing District in Ho-tung Circuit Wang-wu District in Ching-hsi North Circuit Chi-lu Garrison Town in Yung-hsing Chun
400 bandits 40 bandits 70 bandits 80 bandits 153 bandits 100 bandits 60 bandits
19,802 (A.D. 1102) 13,542 (ca. 1000) 10,482 (ca. 1000) (nofiguresavailable) (nofiguresavailable) (nofiguresavailable) (nofiguresavailable)
Source: HCP 42.9a-lla. administrative units, because a number of central government offices and army units had their own jails, the total number of prisoners could be huge. A complaint from 1091 indicates that in that year there were almost one thousand prisoners in the capital and its surrounding prefecture.162 At those times when the emperor was reviewing cases in the capital, he also usually sent officials out to the circuits to review cases and extend mercy. In 998, as a result, 3000 prisoners were freed.163 A few years later the emperor himself examined the lists and freed 4606 men. 164 The large numbers in these two cases, early in the dynasty when Kaifeng was considerably smaller than it was to become later in the eleventh century, suggests that the emperor examined the lists for the outer circuits as well as those for the capital in these instances. This may also have been the case in 1076. In that year, as a result of his review, 1726 men out of a total of 2500 were freed or had their sentences reduced. 165 Another source which throws some light on the prevalence of crime is the figures given by local officials, who were required by law to report on the incidence of banditry in their jurisdictions. Other concerned officials also could and did send in their own figures. In 997, for example, officials commenting on bad omens provided the figures on bandits that are given in Table 3.2. Scattered individual reports suggest that gangs could range from a handful of men to hundreds. In 1042 the "border bandits" in the capital 162 163 164 165
HCP 459.1a. HCP 43.5b. HCP 55.18b. HCP 42.9a—1 ia. A comment from 1036 mentions a dozen bandits in Fu Prefecture (HCP 63.13b), and from 1049 we have a mention of some twenty-two bandits in Tz'u Prefecture (HCP 166.17a).
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prefecture itself were said to number some 690 men. 166 A gang of 100 men was reported for Kuei-yang Industrial Prefecture (a special type of prefectural unit in which industry, such as mining, dominated the economy) in Ching-hu South Circuit, and another gang of 400 men in Chien-ch'ang Military Prefecture in Chiang-nan West Circuit. In the following century, Wang Chih-wang (d. 1170) reported on the capture by the authorities in Wen Prefecture of a gang of 96 pirates, and by the authorities of T'ai Prefecture of a gang of 57 pirates (both prefectures in Liang-che Circuit). 167 Clearly, gangs of such size were beyond the power of the regular law-enforcement agencies. This information reinforces the evidence just presented that even small groups of men were capable of seriously disrupting local life. Even the smaller gangs were a serious problem. The official Yii Ching complained in the 1040s that although in Chieh Prefecture in Yunghsing Chun Circuit and in Ch'ih Prefecture in Chiang-nan East Circuit, the bandits numbered no more than ten, they still were able to enter the towns openly. In Teng Prefecture of Ching-hsi South Circuit, although the bandits numbered not more than twenty, they had been able to elude capture for several years. An official reported that in the strategically vital circuit of Ching-tung, the larger bandit gangs numbered no more than fifty to seventy men, whereas the smaller ones numbered only twenty to thirty men. 168 In deciding how to respond to gangs, ten or more bandits seems to have been a key number in the thinking of Sung officials. There is some evidence that when there were gangs of this size or larger, the officials could mobilize the military. 169 This response was presumably based on the belief of higher authorities that the patroling inspectors and sheriffs could not handle even the smaller gangs effectively. Local authorities seemingly often simply waited for the arrival of major military forces, but when faced with bandit incursions, even the military officers in some areas "withdrew and would not go out of the gate." 170 Therefore, the effects of bandit gangs were worse because the authorities sometimes had great difficulty eliminating them, so that a gang might continue to plague an area for years. One comment in the institutional encyclopedia Wen-hsien t'ung-k'ao mentions gangs that had been "noted on the rolls ten or more times." 171 The ability of such small groups to persist over time 166 167 168 169
HCP 12399.25b. Wang Chih-wang, Han-p'in chi, 7.24a-25a. HCP 141.16a. See also a report of 1074 in which a decree commented on a rash of reports of gangs of ten or more bandits (HCP 253.3a). 170 HCP 141.16a. 171 WHTK 167.1452.
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and, as we stressed, to cause trouble all out of proportion to their numbers, perhaps demonstrates the difficulties of law enforcement under premodern conditions of transportation and communication, as well as other factors such as local sympathies for the bandits and dissaffection from the government, and the protection of bandit groups by locally powerful figures.
Conclusion Crime is a mirror of society. Many acts - homicide, robbery, arson, fraud - are crimes in most societies. However, if we look at what crimes were felt to be especially worrisome, we can see reflected the image of those issues of greatest concern, especially to the ruling elite that creates the legal system. The elite is concerned both with acts committed by its members which undermine its position and with acts of outsiders which threaten to weaken the hold of the rulers on the ruled. For the traditional Chinese government elite, abuse of office, a threat from within, included various criminal acts such as the abuse of prisoners and the disobedience of orders, but it was corruption, the abuse of office for personal gain, that troubled Sung officials the most. The other crime category of greatest concern was banditry, organized robbery by groups of people outside the elite and implying the use of force. Sung society suffered from many other general types of criminal actions familiar from other cultures homicide, rape, theft, assault, economic crimes such as counterfeiting but banditry was particularly troublesome, because it implied violence plus organization. Bandits were also worrisome because of who they were, young unattached males, often with some military skills though probably little formal education. Such men were capable not only of causing trouble by themselves but more dangerously of rallying behind a leader with larger and more dangerous aims. The same concern marked Sung government attitudes toward religious groups. Officials were clearly aware of the explosive potential of religious commitment combined with seditious aims. A religion like Manichaeism — secretive, intensely solidary, and espousing values sharply in conflict with some of the values of the Chinese elite - was the very archetype of the threatening cult. The Sung authorities attempted to repress Manichaeism in that part of southeast China where it flourished and fulfilled their own prophecy by pushing the Manichaeans into repeated revolt. The very existence of widespread Manichaean influence in some regions of China reflects another important truth about Sung China. Looking backward we tend to overestimate how thoroughly settled 115
Law and order in Sung China
China was and the degree of local control exercised by the authorities. In practice, Chinese society, especially rural society, continued on its own way without official interference as long as the people paid their taxes and did not cause too much trouble. The pattern of de facto local autonomy meant that the local common people feared the locally powerful families more than they did a distant formal government. Among themselves these same commoners might come to view all outsiders as fair game. In good times the people in some areas had no reason to break the laws; in bad times the shift to banditry was an easy and natural one. The society in Sung China was also loosely knit. Certainly, for most Chinese, kin groups and neighbors were of great importance. And yet because of the increase in trade, urbanization, and improvements in transportation, the Sung dynasty was an era of unprecedented personal mobility. People moved around in large numbers. Soldiers, merchants, itinerant artisans, Buddhist and Taoist clergy, officials, and even people who were in essence tourists, traveled about the Sung domains to a degree certainly unequaled in earlier times and possibly not exceeded in later dynasties. Controlling this bubbling, adventurous population was a knotty problem for a government that had only limited resources and had some doubts about the agents it would have to use for such control. This combination of a relatively open society and limited formal repressive institutions helps explain why the state could be so worried about gangs as small as ten men that it would sanction mobilizing the military. It also explains why, despite such authorization, the local authorities could fail year after year to root out criminal groups and how such groups could occasionally grow to number hundreds or even thousands of members. The government really had no choice. It was forced to rely not just on its own formal mechanisms but also on the people themselves and groups organized among the people that would work for law and order. Many aspects of Chinese life thus did not, in practice, fall under the purview of the formal government. Still, despite this caveat the amount of control exercised by the central authorities was truly impressive for a premodern society. Certainly, crime was endemic, but the ability of the Sung state to keep it under some control is striking. This ability partly reflected the effectiveness with which people were socialized into values supportive of good order, but it was also a tribute to the effectiveness of the law-enforcement agencies and a penal system that seemed to succeed in many cases in turning violators toward new noncriminal behaviors.
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4 Informal and semiformal agencies of law enforcement In the abstract, the problem of law enforcement can be simply stated. Those with a monopoly of legitimate force must receive accurate and timely intelligence of wrongdoing and must be able to mobilize a sufficiently large force of adequately armed, trained, and properly motivated men and to move them to the affected area in a timely fashion, at a cost acceptable to the state. The problem lies in the practice. For economic and ideological reasons, the level of applicable force is usually inversely related to its closeness to the triggering events and to information about those events. Most crimes occur at some remove from the major centers of state force, which are the most highly trained government military units. Those most likely to have accurate information are victims, witnesses, and neighbors. They could react most immediately to the commission of the crime and inform higher authorities. But would they? Even today, with the speed (and anonymity) of electronic communication, a great many crimes are not reported or are not reported immediately. If the authorities come to depend on self-defense by parts of the society outside the formal government apparatus, how can they ensure that these outside agencies will not become too powerful? For premodern Chinese states this was always a dilemma to be lived with, not eliminated.
Self-defense In the past as in modern times, the first line of social defense was the people themselves. In modern China as in the Sung period, walls go up as wealth goes up. In much of the contemporary Chinese world the tops of walls around houses are studded with glass fragments, and high-rise China covers its outer windows with steel gratings, creating dreadful firetraps but deterring burglars. Now, as in premodern China, given the incomplete success of socialization, the problem is first how crimes can 117
Law and order in Sung China
be prevented or at least discouraged and, second, how to respond effectively to crimes in process or already committed. Obviously, the ideal is to keep crimes from being committed. But crime was endemic in traditional Chinese society. The burial pottery of Han times and later, with its models of houses built like small fortresses, vividly demonstrates the price to be paid for personal security in traditional times. That the men of Sung also subscribed to the English adage that an ounce of prevention is worth a pound of cure is made abundantly clear in the writings of the Southern Sung official Yuan Ts'ai (fl. 1140-95): Solid houses
In managing a family, you should see to it that the fence walls around your house are high and sturdy, the hedges dense, and the window, walls, doors, and gates secure. Repair any damage promptly. If there are drainage outlets for water, put grates over them. Keep them new and strong and do not neglect them. Even though clever thieves will be able to find ways to enter in a moment by boring holes in fence walls, cutting through hedges, knocking holes in house walls, and breaking open doors, you will at least not be inviting them in as you would by allowing dilapidated fence walls, broken hedges, rotten house walls, and worn-out doors. Moreover, through these maintenance efforts you will avoid the problems caused by slaves running off, or unworthy sons sneaking out at night. Although the authorities can deal with robberies, runaways, or trouble caused by unworthy sons, the cost will be high.1 Estate tenants
Your residence may be off by itself in a quiet rustic spot in a mountain valley. If so, be sure to set up estate tenant houses at strategic spots in a circle around the house. Recruit families with several adult men to live in the houses. Then if there is a fire or an intruder, the tenants can come to your aid when you call for help. At this primary level, early knowledge was crucial. Yuan Ts'ai continues his advice: Raising alarms at night
The barking of dogs at night is not always a sign of the arrival of intruders. Yet because there could be a thief making a test, you must not assume an innocent explanation and fail to raise an alarm. The same holds true for strange noises heard at night; do not simply attribute them to mice and fail to raise alarms. Patrols
You ought to see that there is a passable road in a full circle around your house. At night have ten or more patrols on this path. Careful planners live near the city wall and away from empty lots. In addition they have a double set of walls and send someone to patrol in between them. Within the house itself, you can have the young men and the bondservants take turns making patrols. 1 For this and the following quotations see Ebrey, Family and Property in Sung China, pp. 278-81.
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Potential victims sometimes created more problems by tempting criminals or by fostering animosity among their poorer neighbors. In Yuan Ts'ai's opinion, crime could be reduced if people treated their neighbors humanely and if they exercised a sensible restraint in displaying their wealth. Tempting thieves
Families with great accumulations of goods are the ones thieves love. And because the people in these families often like to display their magnificence, they set out their treasured articles; this makes the thieves salivate even more! Rich and substantial families may store money and grain but should not collect precious objects of gold, jewelry, or silk. That way, even if they are robbed, their losses will not be large. Oppression as a cause of robbery
Although robbers are the clearest examples of inferior people, they also have rationales. Rich families who normally are not oppressive and moreover are able to be charitable and to do good deeds will be spared during disturbances created by fighting or fire. The robbers will be merciful to them and not burn down their houses. Generally the families robbers derive satisfaction from burning, looting, and debauching are those of people who have done many evils. Rich families each ought to examine themselves in this regard.
However, even if people behave in a humane and prudent way, there will still be crimes. Those most immediately affected should be armed, trained, and ready to react. Chasing thieves at night
If you hear a thief at night, you should immediately shout "There's a thief" and proceed to catch him in a deliberate fashion. The thief will surely try to escape. You should not try to hit him in the dark, for there is the danger that the thief's panic will lead him to wound you with a knife, or by mistake you might hit someone in your own family. If you take a candle to look at the thief, there will still be time to strike him. When a thief is captured, naturally you should abide by the law. Do not beat him excessively. In case of armed robbery
Some robbers come in the middle of the night, with torches and unsheathed knives; they force open the door and enter the house. It is essential that you be prepared for such incidents. You should send people to keep a lookout at the entrance to nearby roads. If anything out of the ordinary occurs, they can warn you. Also, arrange for a side exit that the old, the young, and the women can use for escape in case of emergency. You should also, as a routine matter, have the young men in your family and the male servants maintain the weapons and know what steps to take to defend against attack. If they can withstand an attack, they should do so; if not, they should avoid confrontation. But by no means let the robbers capture any family members. If someone is taken, he or
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she will be made a hostage, and the local mutual security group and the police will not dare pursue the robbers. Yuan Ts'ai's analysis suggests that he felt the level of security during his era was not especially high; his advice suggests that the formal apparatus for maintaining law and order could not be relied on to defend property in a timely fashion. The first line, therefore, had to be selfdefense. When feasible, people also needed to make preparations to resist criminals. Occasionally the sources describe such self-defense. In i o n a patroling inspector, the chief local military law-enforcement agent, reported that a commoner in his jurisdiction, when bandits attacked, had "rallied the people, who grasped clubs and fought." The patroling inspector was eventually able to seize all of the bandits, and the commoner's family was rewarded by imperial decree. 2 Resistance was mandatory, but it still was risky. Adequate force did not mean excessive force. Yuan Ts'ai's advice against beating robbers excessively was very much to the point. According to Sung law, killing a robber might be prosecuted as homicide and could lead to a death sentence. 3 Cooperative self-defense was necessary, because the formal authorities obviously would arrive too late to be of any immediate help in protecting persons and property. Furthermore, in the absence of modern communications, even if local people did try to report a crime, time would pass before the police agencies could react. The investigative stage of law enforcement and the pursuit of the criminals ordinarily could begin only some time after the events in question. As Lu Yu (i 163-1210) remarked about petty bandits, "They hide in the mountains and forests, and come out at night to raid. By the time the officials learn about it, they are already scattered." 4 Even when they did learn quickly, officials still had to mobilize in order to respond, with all the delays that this entailed. Although traditional Chinese empires had, by premodern standards, exceptionally good systems of communication and transportation, they were nonetheless premodern. The most important sorts of communications could be forwarded very quickly during Sung times, reaching a standard of 175 miles per day. This extraordinary speed was ordinarily used only for sending out imperial grants of amnesty. Messages classified under the general category of urgent, including most messages reporting local unrest and crime, were carried only 140 miles a day (using runners who traveled day and night between posts that were relatively close 2 SHY, ping n.6a-b. 3 Compare CYKC 54.
4 L u Y u , Wei-nan wen-chi, 13.11b.
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Informal and semiformal law enforcement together), and the regular horse post moved at only 105 miles per day. These rates are far better than those reached by the Romans, better even than those of the runner system of the Incas, and were exceeded in premodern times only by some of the postal systems of the Sino-barbarian empires of east Asia. 5 Transmitting information about local problems took time, and then more time would be spent in the formal process of mobilizing troops. Mobilization required formal authorization from the regular chain of command. Finally, even after mobilization, the troops would ordinarily have to march to the area affected. In short, in most cases official help could hardly be expected to arrive in time to help the immediate victims. Mutual responsibility The need for timely and effective action is a constant in law enforcement. One traditional Chinese answer to this problem, which fit well with the desire of the state to minimize expenses, was to make each man his brother's keeper. In the words of Liu Yueh (1144-1216), "When one family has a robber and cannot seize him themselves, then the group of neighbors is to arrest him." 6 Again, the very process of law enforcement both encouraged and depended on cooperation. The ideological roots of this commitment to mutual responsibility go back to Chinese antiquity. There was a deep-seated, though rarely articulated, conviction in premodern China that everyone participated in the creation of good order. This clearly implies the responsibility of all, but it also suggests on another level the feeling that guilt was shared, that lawbreaking was in some way and to some degree the responsibility of those close to the lawbreaker, in terms of both physical distance and relationship. This attitude is akin to the Western legal concept of due care. People have a responsibility to exercise due care to prevent harm. This implies a duty to supervise appropriately people with whom they are associated. The Chinese belief in the analogous responsibility, which underlies some of the current police practices on the China mainland, goes back to classical times in China. From a legal point of view this belief was embodied in the rules which made bystanders responsible for intervening to halt lawbreaking and punishing them if they failed to do so. In premodern China, witnesses and neighbors (and victims if they were still able to help) were expected to attempt to apprehend criminals committing major crimes or at least 5 See Peter Golas, "Courier Transport System," Harvard University, East Asian Research Center, Papers on China 20 (1966): 1-22. 6 Liu Yueh, Yiin-chuang chi, 7.6a.
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to go to the aid of those attacked. (For minor crimes they might report the matter to the authorities.) 7 Rules concerning this sort of responsibility can be found in some of the earliest examples of Chinese written law, from the preunification Ch'in state. 8 Such rules can also be found in the T'ang Code and the earliest Sung Code (which reproduces the T'ang Code almost unaltered): When neighborhoods and administrative villages receive a report of a robbery or homicide but fail to render assistance, [the responsible agents] are liable for one hundred blows of the heavy rod. When they merely hear of such an incident, this penalty should be reduced by one degree. If their strength is insufficient to render assistance, they must immediately inform the nearby offices. If they do not report it, they are to be tried according to the rules on not having rendered assistance.9 The sources rarely mention anyone's actually being prosecuted under this rule or the analogous ones that mandate the responsibility of neighbors in cases of fire, but again Yuan Ts'ai suggests that people might indeed be punished. In advising the rich to be charitable, he states: There are gentlemen-officials [shih-ta-fu] who in ordinary times use their official influence to maltreat and bully their neighbors. One day an enemy may come and attack their family or burn their house, but the neighbors will warn each other, "If we put out the fire, afterwards not only will we receive no reward, but that man will bring charges against us, saying we stole his family's goods. Who knows how long the case will be at court? If we do not go to his aid to put out the fire, all we'll receive is one hundred blows."10 The code provisions called for a twofold responsibility: to resist crimes and seize the criminals if possible and to inform the authorities in other cases. Getting information, the key to effective action, was always a problem for the authorities. Crimes were supposed to be reported, under threat of sanctions, but then as now the authorities had reservations about the willingness of local people to involve themselves in such matters. Modern studies indicate that only a fraction of crimes committed are reported to the authorities. In part this reflects the age-old unwillingness to get involved with the law. Such involvement meant inconvenience and loss of time, for little apparent benefit. This general distaste was strengthened in the Sung, as it would be in most societies, 7 SHT 28.451; see also TLSI 4.59. 8 See A. F. P. Hulsewe, Remnants of Ch'in Law (Leiden: Brill, 1985), p. 146. 9 SHT 28.451. This rule was taken over from the T'ang Code. For such systems in the T'ang see Wallace Johnson, "Criminal Procedure at the County Level in T'ang China," paper presented at the conference "The Transformation of Chinese Law, T'ang Through Ming," Bellagio, Italy, August 10-14, l9^110 Ebrey, Family and Property, p. 282.
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when neighbors were implicated or the criminals were dangerous. 11 In n o o , commenting on the recent reduction of penalties for robbery, a censor said that because of this, "ordinary people are afraid to report robberies, because they know that the robbers will not be executed, and the local neighborhood groups are unwilling to seize such men for fear of their vengeance." 12 Even before the empire was founded in the third century B.C., Chinese governments responded to the unwillingness of the local people to give information by establishing among them groups whose members were mutually responsible for reporting on and suppressing one another's wrongdoings. 13 The origins of this practice are often traced to the legalist reformer Shang Yang. The biography of Shang Yang in the Historical Records reports that on his advice, the people of Ch'in were "organized into groups of fives and tens mutually to control one another and to share one another's punishments," and the Han Fei Tzu says that "Lord Shang taught Duke Hsiao of Ch'in to organize groups of ten or five families and established a system of denunciation of crimes and joint responsibility for offenses."14 Shang Yang sought to prevent the growth among the people of any organized centers of resistance to state power. By mandating mutual responsibility groups, he helped pulverize society by sowing the seeds of mutual distrust among neighbors and associates. In ancient China as in the People's Republic today, the question of whom you can trust with your inner feelings was an agonizing one. Such formal devices for applying negative sanctions (and positive sanctions in the form of rewards) were one creative (if, from a contemporary perspective, distasteful) answer to the continuing problem of inadequate information about crimes. Such mutual surveillance organizations continued to play a role of varying importance from that time on. Sources concerning the early Sung suggest that such groups were not a major concern to the authorities. This paucity of references may mean a lack of sources for this era, but it also probably means a relatively low level of lawlessness in many areas of the empire before the 1040s. In the second half of the eleventh century, and especially after the introduction of the pao-chia militia reform in the 1060s, such mutual security organizations proliferated. During the Southern Sung most categories of people, including 11 Compare CYKC 66.
12 WHTK 167.1451; see also SHY, ping 12.3a. 13 See Hulsewe, Remnants of Ch'in Law, passim. 14 J. J. L. Duyvendak, The Book of Lord Shang (London: Arthur Probsthain, 1928), p. 14; W. K. Liao, trans., The Complete Works of Han Fei Tzu (London: Arthur Probsthain, i959)> vol. 1, p. 115.
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officials, clerks, students, miners, soldiers, and fishermen, as well as the peasantry, were supposed to be enrolled. The frequency with which Sung officials discussed such organizations indicates that they not only became more numerous but also were seen as more important as devices for social control. By mandating the organization of such groups and making their members mutually responsible for one another's behavior and for reporting the presence of wrongdoers in their jurisdiction, the state could hope to intensify its degree of control at little cost. In addition to mandating groups for purposes of mutual responsibility, the state also linked the culpability of members of certain involuntary associations, most importantly families and official bureaus. Members were held responsible for (and therefore had a motive to stop or report) the illegal activities of fellow members. 15 When such systems failed in their purpose, the security of the state could be endangered. Thus officials were quick to complain of ineffective enforcement of mandated systems. In 1080 an official complained that because the pao-wu militia system was not functioning properly, young hoodlums remained concealed among the people. 16 And a decree in 1078, reflecting the deliberate use of such groups as a control device, stated that "these miners . . . are riff-raff from all over. If they are not organized into mutual security groups [shih-wu], with the members subject to joint adjudication for the concealing of wrongdoing, then the evildoers will stay hidden among them, and it will be difficult to investigate." 17 This passage highlights one weakness of such systems. The groups within which crime was most likely to occur were those comprising men outside the usual stable structures of Chinese traditional agrarian society. Yet such men, themselves strangers in their communities, were perhaps least likely to have good information on wrongdoing by anyone outside their immediate circle and almost by definition would have little incentive to inform the authorities. The settled people, the peasantry that formed the great majority of the population, might have a better idea of local wrongdoing, but their close ties with relatives and neighbors, which made possible their superior knowledge, at the same time might dampen their willingness to inform, especially if local people were involved in the criminal acts. 15 Brian E. McKnight, "T'ang Law and Later Law: The Roots of Continuity," Journal of the American Oriental Society 112.3 (1991). 16 H C P 309.5a. 17 H C P 293.8a.
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Information systems The system of mutual security units was thus a device for generating information about crime and criminals. The desire for a regular flow of information on local conditions may have been one reflection of the general Sung government mania for compiling records. As a political system the Sung is famous for its attempts, which had considerable success, to control local functionaries. These attempts were based on an elaborate system of records. Such records were compiled not only within the formal government but also by the local units into which the population was divided. These local records served to control strangers, who were always considered suspicious persons, by locating all legitimate people within groups, so as to isolate those who were not legitimately residents of a particular area. Chu Hsi speaks of ordering the village officers called superior guard leaders and their assistant leaders to recompile the guard registers so as to ferret out concealed deserters or roving criminals. The village officers were to refer such cases to the chief civil law-enforcement official, the sheriff, who would see to their apprehension. 18 Chinese investigators were not so naive that they were willing to depend exclusively on such groups; they were well aware that local people tended to protect their own. 19 They therefore made regular use of spies and informers to gather information. The Sung casebooks have numerous anecdotes about the skillful use of such agents. 20 The early Sung statesman Wen Min-chung is said to have doubted the guilt of the aforementioned Buddhist monk who had confessed under torture to having murdered a woman. So he sent to the village in question a clerk dressed not in his usual clerk's clothing but in the kind of clothing that might have been worn by a bandit. The clerk ate at the local inn. When the old woman working there heard that he was from the prefectural city and did not recognize him as a clerk, she asked about the monk. The clerk said that the monk had been beaten and killed the previous day. The old woman asked what would happen if the real bandit were caught. The clerk replied that since the prefecture had already made an error, it would not dare to raise the issue if the real bandit were caught. The old woman then said that the real killer was a youth of the village, from such and such a neighborhood guard unit. The clerk asked her to 18 Chu Hsi, Chu Wen-hung wen-chi, 99.15a ff. 19 See SHY, ping 11.7b, for a report on how the failure of local village officer leaders to report crimes contributed to an increase in banditry. 20 For examples, see Robert Van Gulik, trans., T'ang-yin pi-shih: Parallel Cases Under the Pear Tree (Leiden: Brill, 1956). See also Li Kuang, Chuang-chien chi, 12.17b; CYKC 66.
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point out the youth's house, and when she had done so, he seized the culprit. The monk was freed.21 Motivation was as critical to promoting a flow of accurate information as it was to all other facets of law enforcement. Given the understandable reluctance of the local people to get involved, the authorities had to provide both positive and negative sanctions to promote popular cooperation. The spies and informers on whom the authorities depended were paid through an elaborate system of rewards for information. And the authorities paid well for what they needed. Reports from the 1030s indicate that anyone who brought an accusation of homicide was given fifty strings of cash (presumably after the criminals were convicted), and those who reported the deaths of prisoners from abuse by their jailers were to be given one hundred strings (each string being valued at one thousand coins). 22 In this same period any person reporting on a group of ten or more bandits who had killed some of their victims was to be paid ten strings. 23 A decree from the late 1020s indicates that people could be given other things besides money. Those in the army might be granted increases in rank. Commoners might be spared taxes. Men liable for corvee might be exempted from performance. And if the report resulted in the capture of the whole gang, the informers might be given commendations in addition to their other rewards. 24 Rewards were graded according to the sentences eventually given to the criminals. According to the rules of the 1090s, people were rewarded with ten strings of cash for robbers whose sentence was beating with the heavy rod, twenty strings if the sentence were penal servitude, and thirty strings if it were exile.25 The meaning of rewards of this size may be made clearer by comparison. In the late eleventh century a postal courier in Sung service is said to have cost the government approximately twenty strings per year in salary and benefits. 26 In the relatively early part of the Northern Sung, one string of cash would buy from two to three bushels (shihh) of rice, enough to feed a single person for the better part of a year. The state also wanted to establish procedures that would facilitate the timely and effective use of this information-gathering system and its attendant system of rewards. The central authorities were not sanguine about the commitment of local officials to the effective execution of orders. In their search for methods to control local functionaries, the 21 22 23 24 25 26
CYKC 16-17; see also CYKC 66. HCP 114.19b; SHY, ping ii.i5~a-b. HCP 107.4b. SHY, ping, ii.nb—12a. HCP 453.13a. Golas, "Courier Tranport," p. 12.
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Informal and semiformal law enforcement Sung central government depended on an elaborate network of administrative regulations that specified the requirements of government functions. Such administrative laws were established to implement the reward systems. Guidelines were provided for the officials, and penalties were drawn up for those who hindered the effective working of the reward system. Officials who sought to block rewards might suffer penalties, albeit relatively moderate ones. One report from the last years of the eleventh century says that the penalty was to be equivalent to one hundred blows of the heavy rod, and another from the early twelfth century says that they would be liable for a penalty equivalent to eighty blows.27 As officials, the men so charged would have been able to commute such penalties into relatively minor administrative sanctions, though the entry would not look good on their dossiers. Eventually the officials were ordered to certify and process reward claims according to fixed time limits. In the early twelfth century an official complained that no time limits had been established except for the thirty-day time limit for processing rewards in cases involving robbery. He petitioned successfully to have these limits fixed, in a system analogous to that used in setting time limits for capturing criminals. 28 The state's perennially weak fiscal position also influenced its policies on rewards. By the standards of most other premodern states, the Sung empire had a very effective taxation system, but there still were limits on its ability to raise revenues. Much of what was raised had to be devoted to national defense (which absorbed about half the annual income) or to supporting the civil bureaucracy and the Court. Relatively little was available for other uses. In many areas of government concern, including the financing of rewards, the authorities responded by trying to shift the burden. Although such rewards might be paid from official funds established to reward those who informed about or helped capture criminals 29 or might be drawn from various other official sources, 30 they seem more often to have come from monies gathered by village officers31 or from property confiscated from the accused or his followers.32 In 1097 27 SHY, hsing-fa 2.86a; HCP 494.10a. 28 SHY, hsing-fa 2.85b-86a. 29 See, for example, the request of the judicial intendant of Yung-hsing chun Circuit that a quota of four thousand strings of cash per year be set aside as reward money (SHY, ping 12.9b). 30 HCP 374.6b-7a, 398.9a. See also SHY, ping 12.2b-3a, in which the report says that Hopei East Circuit had only two thousand strings per year of official reward money. This was insufficient, and it was decreed that it be supplemented. 31 Ts'ai K'an, Ting-chai chi, 5.1b; see also SHY, ping 13.20b-21 a. 32 The use of the criminal's property was a traditional practice. See, for example, the rule in the early Sung Code, SHT 28.451. It continued to be standard Sung practice in later
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the emperor approved a suggestion by the Ministry of Personnel that in cases in which the robber was truly indigent or had insufficient resources, the needed goods could be taken from his followers or from people who had been aware of the crime but had done nothing. 33 Rewards might also be taken from the illicit goods involved. In the 1080s in an attempt to suppress the smuggling of Korean goods by the people of Wen Prefecture in Liang-che Circuit, the authorities instituted a policy of giving informers three-tenths of the goods recovered. 34 The never-ending search for information also affected other lawenforcement policies. Because the criminals themselves knew more than any others about their own activities, the state also tried to induce criminals to inform on other criminals. Under one policy, enacted in 1087, when a person had been convicted of a robbery, a sign was to be hung on his gate describing the crime. However, if such a person, having been sentenced to penal servitude, was able to supply information leading to the arrest of one robber or two thieves also liable for penalties of penal servitude or exile, his family could be spared the shame of such a notice. A criminal sentenced to beating with the heavy rod also would be spared the posting of the sign if he could accuse or enable the arrest of one thief liable for penal servitude or exile. 35 (The authorities were, of course, aware of the temptations of bringing false accusations. The general rule was that anyone who brought a false accusation would be liable for the penalty that would have been inflicted on the supposed criminal.) This information-generating function of local people was coupled with the responsibility for restraining or seizing criminals when this was possible. Again the state used a complex pattern of rewards as an inducement for capturing or, in some circumstances, killing criminals. Ordinary people, as well as militiamen, constables, and soldiers, might be richly rewarded for their work. State authorities also recognized the necessity of compensating those who were injured while trying to enforce the law. A decree of 1023 stated that "from now on, the [constables called] archers, [the village servicemen called] elders, [the elders' aides called] stalwart men, and commoners of the various circuits, who in the course of capturing bandits suffer medium or serious injuries, should be times; for the rule, see TFSL 186. See, for examples, HCP 132.1a, and SHY ping 11.15a—b. One problem of using the bandits' booty for rewards was that it prevented the robbery victims from being recompensed. See an order of 1012 that official funds be used, so that the booty could be returned to its rightful owners (SHY, ping 11.6b). 33 HCP 493.25b; see also HCP 5oo.5b-6a. 34 HCP 302.6a. 35 HCP 398.12a-13b.
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Informal and semiformal law enforcement given two thousand coins. Those who suffer light injuries should be given one thousand coins." 36 As noted, even the criminals themselves could use the reward system to reduce or eliminate their penalties. These rules for rewarding criminals were in regular use. 37 Under the rules in force in 1077 for Ho-pei and Ching-tung circuits, even if robbers themselves had killed people, they could benefit. A bandit leader who captured or killed two bandits, or a regular bandit gang member who captured or killed a single bandit, might be rewarded as well as forgiven crimes if he surrendered and confessed. (This policy was soon made somewhat less lenient.) 38 Weaponry These rules on seizing lawbreakers assumed that the local people had the means to respond quickly and effectively to immediate threats, without having to appeal to some distant center. Obviously their ability to respond would vary directly with their degree of military training and the weapons they possessed and inversely with the dangerousness of the criminal situation. Unarmed witnesses might have no trouble subduing an unarmed petty thief; even a single armed bandit might be beyond the power of witnesses to control unless they were themselves armed. Yuan Ts'ai indicates that the wealthy kept weapons in their homes and might encourage both male family members and other male dependents to learn how to use them. Other sources also suggest that weapons and a knowledge of their use were quite widespread among the people. 39 However, any diffusion of power through the possession of weapons by those outside the government ran counter to the feeling among Sung officials that the presence in local areas of armed groups not under direct official control might dangerously weaken the center. The idea of the people in arms was always a specter to Sung authorities. The traditional response was to try to walk a thin line between allowing local people so 36 HCP 100.8a. 37 See, for example, an incident recounted in the Che-yu kuei-chien in which an initial death sentence for a robber who had killed his partners and stolen their booty was reversed on the grounds that a robber who killed his fellows was to be spared. Admittedly, this was an arguable point in this case (CYKC 52). 38 HCP 282.2b, 282.9b. See a story in CYKC that says that a robber had killed his associates and taken the stolen goods, after which he was captured. Some legal officials wanted to spare the man because he had killed his partners, but another official pointed out that only those who surrendered and confessed could be spared (CYKC 52). 39 Brian E. McKnight, "The Rebellion of Fang La" (master's thesis, University of Chicago, 1964), p. 58.
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little power that they could not protect themselves from lawbreakers and giving them so much that they could ignore higher authorities. An armed populace might be able to suppress criminals, but it might also go into business for itself. The problem of ideology appears again. Confucius had said that the people should be led with rituals and virtue. In the real world, the coterie of people working for the interests of the emperor could promote order by using rituals and the example of virtuous behavior only to a limited degree. The emperor might want to have as subordinates men who would act in his interest. Given the numbers of those needed in the bureaucracy, it was clearly impossible for the emperor to assess their qualifications himself. Furthermore he had to compromise with the interests of those from among whom officials were to be chosen. The Sung emperors dealt with this problem by selecting one large group of subordinates in ways that clearly demonstrated their power. These men entered the civil service as a result of the emperor's grace, not as a result of their own objectively verified qualities. To balance this group the emperor then brought into the civil service, and indeed gave the greatest power to, a second group of men who entered through the civil service examination system. These examination graduates understandably felt that their selection rested at least in part on their own abilities. The civil service examination system served to certify the candidates' knowledge of the Confucian Classics. The rulers might at least hope that such knowledge in most cases could serve as a surrogate measure of socialization into appropriate attitudes. If officials acted in accord with the values enshrined in the Classics, they could at least be trusted to behave in predictable ways which would not often threaten basic state interests. The loyalty of the more well-to-do among his subjects - though perhaps less certain than that of members of the civil service - might seem relatively reliable, since they depended on the state to defend their privileges and wealth and had been exposed to one degree or another to Confucian education. The danger was that if members of the wealthy classes proved disloyal, they would be fearful enemies, because they possessed the organizational and educational skills needed to threaten the state. A twelfth-century official, analyzing the difficulty the state had in controlling the ordinary inhabitants of two prefectures in Liang-che Circuit through the standard mixture of rewards and punishments, commented that he had heard a local pointing out that the men of these two prefectures "do not fear the officials of the emperor but fear the powerful people of the villages." Therefore they cannot be controlled by the 130
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officials but obey the orders of the powerful families. Generally, the power of the powerful families has three bases. They surpass others in knowledge, in courage, and in worldly goods. Having these three, they can overawe the commoners, who cannot but bow their heads, submit in their hearts, act obsequiously, and follow the lead of the powerful.40
The official's solution was to win over the local elites by giving them rewards and honors and then to use them in controlling disorder. The problem with this approach had been described a century or so earlier by another official, who wrote of the dangers of having "traitorous scoundrels," that is, local elite leaders, use the excuse of exterminating bandits when committing outrages. 41 However, since the authorities needed the help of the wealthy in controlling the peasantry and as unofficial law-enforcement leaders, they overlooked violations of the rules on owning weapons. In good times, ordinary peasants also had a major stake in maintaining the local order. They might at most times feel for the ruler, and the elite which represented the ruler, a sense of awe and respect. However, they were often living on the edge of bitter poverty. When times were bad, for whatever reason, the officials of Sung times felt that the loyalty of ordinary people was very questionable. At such times, because they had neither wealth to defend nor values inculcated by Confucian education, they were viewed with mistrust. The state probably could not have disarmed the elite families even if it had wanted to do so. Peasants were another story: They were less able to afford arms and training, and so despite their numbers, they were more easily disarmed. The question was, To what degree could the state presume upon the loyalty of these people whose indoctrination was problematical? The overriding aim of the authorities was to maintain their power. In the event, they understandably chose the safer course. It might be neither possible nor desirable to keep the rural rich from possessing arms; certainly, the authorities would seek to limit the ordinary people's ownership of weapons. Better a disarmed population, even at the cost of a higher level of endemic crime, than an armed population of doubtful commitments. This decision was reflected in laws that made it illegal for people to possess arms, though there were occasional exceptions. 42 The early Sung Code statutes provided that
40 Wang Chih, Hsueh-shan chi, 3.25. 41 Li Kou, Chih-chiang Li hsien-sheng wen-chi, 22.3a. 42 HCP 81.5a. Indeed, the local authorities at one point even attempted to punish the state-selected archers in Szechuan for having armed themselves (HCP 86.17b; SHY, chih-kuan 48.62a).
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all those who privately possess forbidden military materiel are liable for one and a half years of penal servitude. [Note: This refers to weapons other than bows, arrows, knives, spears, and short spears.] For a single crossbow the penalty is increased by two degrees. For one suit of armor and three crossbows, the penalty is exile to two thousand lid. For three suits of armor and five crossbows, it is strangulation. For privately manufacturing, the above penalty is increased by one degree. 43
This rule was specifically reaffirmed later in the dynasty. 44 Military knowledge and skills among the people were also greatly feared. Books on military topics were proscribed; men with military skills were regarded as even more dangerous. According to the tenth-century Sung Code, owners of forbidden military texts were liable for two years of penal servitude. 45 By the time of the early thirteenth-century code, the penalty had been increased to exile at three thousand li.d46 Actual military skills were much more frightening. A decree in 1041 ordered the beheading of the leaders of groups that gathered to study the martial arts. Their followers were to be registered on army rolls as laborers at the maximum-security location on Sramana Island, in the sea off the north coast of the Shantung peninsula. Anyone who seized them was to be given a reward of three thousand coins per person. 47 The fear of martial arts was greatly increased by their close association in traditional China with magical incantation and occult practices, which might lead to organized and disciplined resistance to the state. 48
Semiformal agencies Informal agents might be adequately informed and close to the scene, but they were likely to be inadequately armed, trained, and led, and of sometimes questionable motivation. One possible answer to this dilemma of the state was to have the local authorities select or sanction the selection of subsets of the people as a whole and to give these subsets some means of enforcing order. Such groups would have the advantage of involving fewer people, and so they would therefore be easier to control. Because they were presumptively easier to control, the auth43 44 45 46 47
SHT 16.264. HCP 117.19a. SHT 9.155; TLSI 2.82. TFSL 251. HCP 134.9a-b; SHY, ping 11.18a. The severity of these penalties is perhaps related to the particularly delicate internal security situation in the early 1040s when the Sung state, engaged in a war on the northwestern border, suffered a rash of internal disturbances. 48 See STCLC 735.
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Informal and semiformal law enforcement orities were not quite so concerned about these men being armed and trained. These groups in turn could perform functions which otherwise might have fallen to regular police or troops and, in practice, were called on to perform other necessary local duties. By creating such agents, the state was able to shift a large part of the cost of local control onto these men and their families.49 The state could also mandate the use of criteria that would tend to select as members of the subsets men who by their life circumstances might be better indoctrinated and more committed to social and political stability, choosing, for example, only men who owned land and requiring that those in leadership positions be the more wealthy. By moving from the informal to the semiformal, the state gained in security without sacrificing much in coverage. Allowing such unpaid groups to bear some local responsibilities would have the advantage of widely diffusing power without burdening the state with unacceptably high costs. In premodern China there were two types of such groups, local militia organizations, which aimed specifically at self-defense and crime prevention, and organizations of village officers. Village officers were fewer in numbers than militiamen and had broader functions. These village officers performed most important local government tasks, including not only law enforcement but also tax collection, population registration, and miscellaneous services. During the Sung the terminology and organizational forms used for these village officers varied considerably over time and from area to area, despite the similarity of their functions. 50 At the beginning of the Sung, the system in most widespread use closely resembled that in use under the T'ang. Unpaid functionaries were conscripted from certain types and grades of households to serve for limited periods of time in specific offices with specific duties. The key unit of control was the administrative township (lid), nominally composed of one hundred families. Of the five major types of village officers selected in the early Sung, some were concerned most especially with tax collection, some with law enforcement, and some with both duties. The key figures in the T'ang were the township leaders (li-cheng). During most of the Sung, their function in most places dealt with general administration and taxation, though a twelfth-century book of advice to local officials indicates that in 49 Liao Hsing-chih, Sheng-chai chiy SKCSCP ed., 5.18a. 50 Authors use terminology that varies rather widely. For example, the handbook of advice of magistrates called the Chou-hsien t'i-kang states that "the responsibility for pursuit and arrest often falls on the township leaders [li-cheng]." See Gh'en Hsiang, Chou-hsien t'i-kang, TSCG ed. (hereafter cited as CHTK) 2.19. This term li-cheng is derived from the T'ang and was used early in the Sung but was in disuse in most places at the time when the Chou-hsien t'i-kang was written.
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some parts of China they were heavily involved in law-enforcement activities: With regard to pursuit and arrest, the district officials often assign the responsibility to the township leaders. If a township leader exceeds the first time limit for arresting a fugitive, do not be hasty in beating him. Now suppose this is an urgent matter of pursuing someone and because a township leader has broken the first time limit offivedays, you have hastily beaten him. When again he does not make the arrest during the second time limit of five days, if you do not beat him a second time, he will not pay attention to your orders, and so the previous beating will have been meaningless. As to beating him a second time, the wounds from thefirstfloggingwill not have healed. To beat him again would not simply be contrary to law but would also cause excessive injury.51 Township leaders thus might be involved in law enforcement at some times and places, but the more typical pattern was to make law enforcement the particular responsibility of men called elders (ch'i-chang), assisted by unofficial constables called stalwart men (chuang-ting). The office of elder first appeared during the Later Chou (951-60) and continued in the Sung. 52 The elders were responsible for suppressing bandits, settling minor disputes, fighting fires, caring for roads and bridges, keeping logs of local affairs, managing message boards, seeing to the treatment of men who fell ill on the roads, caring for signal beacons, keeping weeds cut back at dangerous locations so that bandits could not lurk there and, for the same reason, blocking up empty unused kilns, and encouraging agriculture and handicrafts. They took part in revising the five-grade population registers on which, after 1022, rural households were ranked according to wealth, and in creating local maps, which included information on topography, boundaries, hamlets, temples, monasteries, shrines, pavilions, wineshops, river crossings, postal stations, remains of ancient buildings, guest houses, and the locations of police forces.53 In short, the elders had very broad responsibilities, but most of these were related to maintaining local security. Early in the dynasty these elders were chosen from first- or second51 CHTK 2.19. This use of township leaders may reflect the continuing influence in some areas of an order from the early 1070s that abolished the post of elder and transferred the duties of that post to the township leaders and their assistants (see HCP 257.8a). This is also reported by Ch'en Fu-liang, 21.3a; Chih-chai wen-chi, SPTK ed. and in Chen Ch'i-ch'ing, Chia-ting ch'ih-ch'eng chih, Sung-Yuan ti-fang chih ts'ung-shu ed. (hereafter cited
asSYTFCTS), 17.8a. 52 Sudo Yoshiyuki, To-So shakai keizaishi kenkyu (Studies on the economic history of T'ang and Sung China) (Tokyo: Daigaku shuppan kai, 1965), p. 570: Sogabe Shizuo, Sodai zaisei shi (Sung financial history) (Tokyo: Dai Nippon insatsu kobinshiki kaisha, 1941), p. 135; on Wu-tai hui-yao, chap. 25. 53 See Sogabe, Sodai zaisei shi, pp. 136-37. See also Sudo, To-So keizai shi kenkyu, p. 588; SHY, shih-huo 14.35b.
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grade households (in the nine-grade system of household registration used during the opening decades of the Northern Sung) or from households classed as "official households." First- and second-grade households would have been among the wealthiest local families. Official households were also important parts of the local elite, because they were households nominally headed by an official or ex-official. Only if people in these categories were insufficient in numbers were men drafted from third-grade households. They reportedly served one-year terms. 54 The assistants to the elders, called stalwart men, were chosen from fourth- or fifth-grade households, households of moderate means. 55 According to Ch'en Fu-liang (i 137-1203), during the late eleventh century these men were selected from households with two or more adult males and served in rotation for terms of half a year.56 These stalwart men helped the elders by running messages to and from the district, acting as their constables, escorting people to the district when necessary, subpoenaing witnesses in cases of fights, and otherwise supporting the elders in their law-enforcement duties. The stalwart men were thus the actual agents responsible for carrying out the orders sent from the districts to the elders. Serving in this way, the stalwart men were also used by elders as guards to escort participants in legal matters to the district town. These duties were managed through a regular system of documentary control, including a log of documents and activities. When, for example, an elder assigned a stalwart man to escort someone to the district seat, the date was marked on the escort document, which was then sealed and clamped shut to prevent abuses. 57 Village officers were also charged with escorting to the district town some men involved with the law.58 Generally, these men were not well trained or armed, though there are examples of groups armed with swords and bows who were to be actively concerned with seizing bandits. 59 For the most part, however, in most times and places, although such men might have been capable of dealing with a few troublemakers, for more serious problems they had to ask for outside help. Because it was the rule that if the criminals were too strong, the elders were immediately to inform the authorities, it appears 54 Ch'en Fu-liang, Chih-chai wen-chi, 21.2a; Li Yuan-pi, Tso-i tzu-chen, SPTK ed. (hereafter cited as TITC) 7.35; Ch'en Ch'i-ch'ing, Chia-ting ch'ih-ch'eng chih, 17.8a. 55 Ch'en Ch'i-ch'ing, Chia-ting ch'ih-ch'eng chih, 17.8a. For more about such men, see Sudo, T0-S6 shakai keizaishi kenkyu, p. 636. 56 Ch'en Fu-liang, Chih-chai wen-chi, 21.2a. 57 TITC, 7.35a. 58 Sudo, To-So shakai keizaishi kenkyu, p. 637. 59 SHY, ping 2.43a.
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that the primary role of such men was often simply to report to higher police authorities, who would arrest the suspects. 60 This early Sung system continued with only minor changes until the reign of Shen-tsung (r. 1068-85), w n e n it was profoundly affected by the move to pay village officers and even more by the impact of the pao-chia militia reforms that divided the populace into a nested hierarchy of small groups. Nevertheless, despite striking changes in some of the details of the system, its functions still had to be performed, and analogues of these early Sung officers continued to exist. Militia organizations Sung law and order also depended on militia organizations, some of which were closely tied to law-enforcement agencies and some of which were largely independent. Such organizations involved far more men than the village officer organizations. 61 They thus provided the state with a compromise solution to the problem of maintaining order. Members were usually armed (though not necessarily heavily armed), had some training, worked under leaders with a modicum of experience, were close to the people, and cost little. At their most martial, they blended with the Sung regular armies; at their least martial, they were in effect small-group mutual security organizations whose responsibilities were very like those of the village officers, providing information to the authorities while not necessarily being effective at law enforcement. In describing one such organization the Southern Sung official Liao Hsingchih (1137-89) commented: The duty of the sheriff is to control evildoers.... In doing this, nothing has priority over using the pao-wu [guard] units. . .. Members of the same guard unit support one another. Because they live together, it is easier for them to investigate. Also, the leaders of the superior guards are chosen from among trusted, powerful men. The leaders of the large and small units are also vigorous men from the multitude. The sheriffs and patroling inspectors are responsible for organizing them, for seizing the guilty and establishing rewards, and issuing rules. When there are wanderers, the small-unit leaders inform the large-unit leaders, and then the leaders of the superior guards tell the officials.62 60 C Y K C 19; Brian E. McKnight, Village and Bureaucracy in Southern Sung China (Chicago:
University of Chicago Press, 1971), p. 44. Huang Kan, Mien chai chi, SKCSCP 1971, 25.27a, remarks that the village officers' jobs were simple in practice. If the troubles were serious, they just called on the sheriff. Some documents make it clear that sometimes the local people dealt directly with the constables called archers and the clerks without the intervention of the sheriff, but it is not entirely clear how this worked (see HCP 97.11b). 61 HCP 307.18a. 62 Liao Hsing-chih, Sheng-chai chi, 5.15b-17a.
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During the first century of the Sung, there were more than twenty different militias scattered throughout China, although the majority were along the northern and western frontiers, regions of China with large unassimilated groups of minority peoples. The militiamen were usually farmers, who served in the off-season. For example, during the second decade of the eleventh century, in some of the northern border prefectures men were chosen from among the adult males to serve in units that guarded the river. Along some nine hundred lid (about three hundred miles) there were 26 forts and 126 post stations. Men patroled in rotation and in the agricultural off-season received rations while serving under a patroling inspector. 63 Some of these militias were established by the local people without official encouragement. Others were established with various sorts of state help, including remuneration and the use of state population documents to provide lists of eligible men. Such organizations of local people also were customary in parts of south China, such as Kuang-nan, where traditional organizations of adult men existed to preserve law and order. 64 Such militias played critical roles in periods of unrest such as the 1040s and 1120s. Pao-chia militia T h e most famous Sung militia organization was the pao-chia system m a n d a t e d as a part of the new laws of W a n g An-shih during the reign of Shen-tsung (r. 1067-85). T h e basic motive for creating the pao-chia was to reduce state expenditures. Even before the reign of Shen-tsung, the central government was unable to meet current expenses from current income. In 1064, under the reign of Shen-tsung's predecessor Yingtsung, the statesman H a n C h ' i wrote a long memorial advocating greater reliance on a militia system. Citing precedents back to antiquity and more recently from the T ' a n g fu-ping system, as well as the Sung's use of archers during the Hsi-hsia wars of the 1040s, he suggested that a militia could increase the n u m b e r of potential soldiers while decreasing the state's costs. 6 5 T h e most immediate impetus for founding the pao-chia^ however, was a report submitted in 1069 an official who had been ordered to survey conditions in the capital region. T h e report suggested that in order to strengthen security the villagers be organized into groups of ten. H e commented that in recent years there had been an upsurge of banditry. 63 HCP 8o.8a-b.
64 HCP 254.10a, 246.1 i a - b . 65 HCP 203.4b; see also HCP 203.5a for Ssu-ma Kuang on this issue.
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Although the villages had certain servicemen such as the elders, stalwart men, and other village officers, their forces were too weak to deal with the new threat. A mutual security system called pao-chia had existed in the past, and he wished to revive it. In the following year an edict ordered that the villagers in this area be organized into groups. Ten families were to form a guard {pao), led by an adult male from the resident household serving as the guard head. Five guards (fifty households) would form a large guard, headed by a large guard head. Ten such large guards (five hundred households) would form a superior guard, with a leader and an assistant leader. Each family with two or more adult males was to have one serve as a guard member. These men were not to be armed with certain weapons used by the regular military, though they could have bows and arrows. Under the pao-chia system, a substantial number of people who were supposedly concerned with maintaining law and order were scattered throughout the rural areas of China. In the early Southern Sung a prefect remarked that in his prefecture in each riding there were about twenty guard leaders and their assistants and some two hundred large and small guard heads. 66 These organizations were set up simply to serve as security units. From each large guard five men might be selected to serve in rotation as patroling police. In some areas, they were expected to establish a headquarters, beat the drum to announce the hours, and patrol at night. 67 When bandits appeared, the drum was to be beaten, and the men in the units were to assemble and give chase. If the bandits fled to another guard, the initially involved guard members were to cooperate in catching them. 68 The authorities again recognized the importance of creating positive incentives for effective performance. Pao-chia members who captured criminals were to be rewarded. Criminals guilty of crimes calling for penal servitude or worse were worth three strings of cash. Those guilty of crimes calling for beating with the heavy rod were worth one string, the rewards to be paid from the property of the criminals. The pao-chia members or their families were also compensated for injuries or deaths in the line of duty. For any injury a member was to be paid five strings of cash; for serious injuries, ten strings; for a disabling injury, twenty strings; and the families of pao chia personnel who were killed in the line of duty were given fifty strings of cash and forgiven three years of taxes.69 66 SHY, shih-huo 14.25b. 67 HCP 218.6a, 343.3b. There were areas where they did not patrol at night (see HCP 246.6a). 68 HCP 246.6a; see also SHY, ping 1.27b. 69 SHY, ping 2.8a.
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The guard also served as a device for securing internal information. If the people in a guard knew of fellow members who were guilty of robbery, theft, homicide, arson, rape, kidnapping, heresy, or the making of black magic (ku) poison but did not report them, then the guard members would be punished according to already-existing laws on small groups. 70 Even if the guard members claimed a lack of knowledge of such culprits, if three or more criminals were involved and they had remained in the guard for three or more days, the guard members were still to be punished for having been negligent in their investigation. The guard also served as a device for generating the kind of information necessary to control the people. If in a guard a family died out or fled, the guard was responsible for reporting this to the proper authorities. 71 Thus it is important to recognize that the original intent of the man who suggested the pao-chia system was not to create a true militia organization but rather an internal security system. A guard was to serve as a source of information and a system for policing its own area, not a type of military unit. But in any society, changes in the distribution of control over armed forces cannot be separated from politics. Emperor Shentsung, who had inherited an empire with extremely serious fiscal problems, was seeking to reduce government expenditures. At the same time he also sought ways to reincorporate territories under foreign control that Sung leaders thought of as rightfully belonging to the Sung. Much of the politics of his reign must be understood as revolving around attempts to arrive at policies that would relieve fiscal pressures and restore Sung military might. The pao-chia was suggested at a time when Emperor Shen-tsung was deeply concerned about foreign military problems. His chief adviser, the great reformist statesman Wang An-shih, though less bellicose than his imperial patron, was greatly concerned about the extraordinary strain that the military establishment placed on the state's revenues. The proposed pao-chia system appealed initially to the emperor and then to Wang An-shih as a way out of their dilemma. From the beginning they seem to have envisioned the transformation of this internal security device into a militiary system, a system that could maintain or even increase their available military forces while sharply cutting expenditures. Both men had been thinking about the possibilities of a militia system even before the pao-chia was proposed and so were enthusiastic about the possibilities. By simply arming the men of the guard units and giving them military training, the state could create, at relatively little expense, a vast reservoir of potential soldiers. In 1071 the
70 HCP 2664b.
71 HCP2i8.6afT.
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Law and order in Sung China pao-chia members in the capital area began to receive military training in mounted and foot archery. Later this same year this system was extended to certain other circuits along the northern frontiers. The trained personnel were expected to "volunteer" for ten-day periods of service under their local patroling inspector. During this time they were to receive state rations and pay. This training was vital if such men were to be successful against foreign soldiers or even against criminals, since many criminals were military deserters. The men chiefly responsible for training the local military groups were the patroling inspectors, 72 though they were at times aided or replaced by sheriffs,73 who might also take part in actual military actions. 74 In 1073, when the Court wished to assist certain prefectures in establishing the pao-chia militia system, it commissioned two former sheriffs to help the resident officials "in arranging the pao-chia system in accordance with the rules used in the Kaifeng Prefecture region." 75 Sheriffs might also be sent to inspect the working of the paochia system in remote border areas. 76 The advent of the pao-chia militia system affected various facets of the law-enforcement system and changed the character of the troops serving under the key local military officials involved in law enforcement, the patroling inspectors. In some areas at least, pao-chia militiamen were sent to serve under patroling inspectors, taking the places of the regular troops, who returned to their camps, 77 though the poorer pao-chia members were not supposed to be rotated for service or to be forced to undergo teaching and inspection. 78 Here again the state's desire to lower its expenses is clear. If professional troops could be freed for regular military duties and replaced by relatively low-cost pao-chia personnel, the military position of the Sung could be strengthened at little expense. The patroling inspectors were apparently allowed to retain a small complement of regular troops, perhaps because the state recognized their need for a personal guard and also because it recognized that the pao-chia members were simply not as well trained as the regular troops. One report from Ho-pei West Circuit
72 HCP 84.12b (1015), 237.12b, 26.14b. 73 See HCP 274.12b for the instructions of tribesmen during the slack agricultural season by the patroling inspectors and the sheriffs. See also SHY chih-kuan 48.67a ( n 16), 48.7ob~7ia (1141); HCP 309.12b (1080), 330.7b (1082). 74 HCP 284.8a. 75 HCP 235.13b. 76 SHY, ping 2.36b. 77 HCP 260.4a, 278.6a-b, 402.14b-16a. 78 HCP 281.14a.
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in 1076 indicates that the patroling inspectors there could keep twenty infantry and ten cavalry. 79 Pao-chia militiamen were also sometimes sent to take the places of some of the sheriffs and archers. In the late 1070s the number of archers in many areas was ordered reduced, with a small number, about 15 to 30, being left to serve as the sheriffs' personal attendants in the district. This was a reduction from the 70 to 140 used previously. 80 In 1076 in Ho-pei and Ho-tung circuits the pao-chia personnel were rotated for fifteen-day tours to take the places of the released men. 81 Again, this seems to have been an economy measure. Still, in many areas archers and pao-chia coexisted.82 By a decree of 1085 in the five northern border circuits the sheriffs were to retain approximately one-third of their previous quotas of archers. The places of those dismissed were to be rilled by pao-chia personnel rotated for service. 83 However, an order of the same year also called for the reestablishment of archers and troops according to the pre-pao-chia system, in the circuits around the capital. 84 Perhaps the overriding importance of security in the capital area convinced the officials that the money saved was not sufficient to justify using a group with lesser military skills. The pao-chia heightened in the minds of some the old specter of the people in arms. The Sung authorities had grave doubts about how far the people, including the locally influential elites, identified with the interest of the state. In Kuang-nan, pao-chia personnel were not allowed to have swords or spears. During training or when chasing bandits, they would receive weapons from the officials.85 It was necessary for such men to be adequately armed, but armed men were always seen as a twoedged sword. Ssu-ma Kuang spoke of "bandits among the pao-chia who take advantage of the pao-chia and the horse-raising system in order to pillage." 86 Presumably Ssu-ma Kuang was worried by the kinds of organizational connections formed within the militia and among the peasant families who raised horses for the state. He was especially concerned about the large numbers of men involved: 79 80 81 82 83 84
HGP 277.15b. HCP 279-i4a-b. HCP 274.12b, 279-i4a-b, 329.13b, 267.5a. HCP 327.10a. SHY, ping 2.12a. HCP 356.8b. From this time on the militia functions of the pao-chia became less important than their functions as local servicemen; see also HCP 364.2a. There is detailed information on the pao-chia in Hopei Circuit in 1083; HCP 337.6a-ga. The funds that had been used to pay the soldiers were diverted to other uses; HCP 276.9a. 85 HCP 327.11b (1082). 86 HCP 355.3a. Under the horse-raising system the state provided horses to commoner families, who became responsible for raising them.
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I have noted that although it is said that the soldiers came out from the people in ancient times, in antiquity out of eight hundred families there were only three men who served as armored knights and seventy-two as foot soldiers. . . . Now the villagers are registered, and one man out of two is inducted into the pao-chia. Each man is trained with weapons, making half of the adult men of peasant families into soldiers. . . . If these men are for catching bandits and guarding villages, why do we need so many? 87 It was not simply that the pao-chia rank and file might get out of hand but that they might be used by their betters. When discussing the causes of disorders, the official Feng Ching (1021-94) argued that the pao-chia would be dominated by locally powerful families. This danger, however, had to be weighed against the dangers of not having the people organized into mutual security groups. W a n g An-shih disagreed with Feng Ching, saying that it was when the people were not organized that problems arose and that when the people were organized, such problems did not arise. 8 8 T h e problem, however, had not been solved. Chu Hsi, in describing Sung local feuding, cited the example of two locally powerful individuals using pao-chia militia units to fight each other. 8 9 This situation exemplifies the dilemma faced by officials who were troubled by the arming of the people. How far could the people be trusted? T h e late Northern Sung official Liu Chih spoke in 1086 about the problem posed by archers who, being mustered out of service and finding no employment, had become bandits. 9 0 T h e same concern is reflected in Sung policies regarding the theft of weapons and regarding discipline within the militia. T h e authorities felt compelled to institute very severe penalties for such abuses. T h e concern about internal discipline is reflected in the rule that pao-chia soldiers who scuffled with their superiors were to be punished as if for fighting (tou*), with the penalty increased by two degrees. 9 1 Stealing weapons was even more severely punished. T h e penalty for forcibly stealing pao-chia weapons was death. However, if the circumstances were not serious, the case could be memorialized. For the theft of twenty arrows, the penalty was one year of penal servitude; for a bow, two years; and for a crossbow, exile to three hundred li.d (Those subjected to penal servitude were registered at five hundred li.d Exile meant registration for penal 87 HCP 355.7a-8a. 88 HCP 230.4a. 89 Sogabe Shizuo traces the rise of Sung feuds in part to the pao-chia reforms. See Sogabe Shizue, "Sodai no ketsu-kan" (Concerning feuds in the Sung dynasty), in Ishida Hakushi koki kinen jigyokai, ed., Ishida Hakushi shoju kinen Toyoshi ronso (Tokyo: Ishida Hakushi koki kinen jigyokai, 1965), pp. 311-18. 90 HCP 389.6b. 91 H C P 2 3 7 . i 2 a - b .
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servitude at one thousand li.d)92 The role of the pao-chia as a militia organization declined rapidly after the 1070s (though it was occasionally revived during times of crisis like the late 1120s and the 1130s). 93 In some areas pao-chia personnel became more purely village service officers and neglected their role as local security forces. The leaders of the pao-chia units became responsible for various local services, especially tax collection. However, they might also be in charge of investigating banditry, a law-enforcement function they sometimes shared with the elders of their area. 94 Where the pao-chia no longer performed military functions, their places were taken by other organizations, with structures and functions rather like the older pao-chia's, but with different names. The pao-wu militia, which though overshadowed by the pao-chia, had existed during the Northern Sung, again became important during the Southern Sung. 95 In other parts of the empire, organizations with similar functions but different names were established. A document from 1127, for example, indicates that in both rural and urban areas there were organizations called patrol societies (hsiin-she), small organized groups of men who were excused from serving in the pao-chia itself, who acted as mutual guarantors of one another's behavior and investigated banditry. 96 Documents from another time of troubles, the 1160s, show the establishing along the rivers and coasts of institutions, under a variety of names, which functioned like the old pao-chia. The authorities wanted to enroll all the coastal folk, as they were the ones who provided the pirates with their manpower. If a man refused to join such a mutual security group, he was to be taken to the officials, who would punish him. 97 Such variant forms of a general type of organization continued to exist until the end of the dynasty, since they fulfilled a real social need. Huang Kan describes a typical late Southern Sung system from Han-yang in Ching-hu North Circuit under which five families formed a small group (chia), five small groups a large group (ta chia), and four large groups a company (t'uan). Companies were joined together to form administrative villages (lid). Villages were grouped in turn into ridings (hsiang), with a 92 HCP 322.3b (1082). 93 Pao-chia acting as militia are noted frequently in annalistic sources on the early Southern Sung. See, for example, HNYL 204, 273, 494, 1101, 1621. 94 SHY, shih-huo 14.35b (1159); WHTK 13.138, 139. 95 See CHTK 2.23 for advice on creating pao-wu registers and on structuring such a militia. The author comments that the system was useful in case of bandits, if labor were needed, or in case of natural disasters. 96 SHY, ping 2.50a fT. See HNYL 2766 for a report on the pao-wu's being responsible for reporting illegal wine sales and production. 97 SHY, ping 2.43a.
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border officer (yu-kuan) charged with investigating wrongdoing and arresting those involved. 98 Thus in this region, for every few hundred families, there was a functionary concerned with law enforcement. Whether or not such organizations functioned effectively depended on the energy and initiative of the local officials. They often had to revive village officer organizations that had fallen into disuse. Yuan Fu (fl. 1237-40) reported on his own service in Ch'u Prefecture in Liang-che Circuit: I have heard it said that the pao-chia system is that whereby to unite the villages and bring the people closer to one another. It embodies the ancient intent of the neighborhood groupings and the kin associations (pi-lu tsu-tang) by promoting mutual aid. In recent years we have had the name of pao-chia but have been without the organizational reality. Although men live as neighbors, their hearts are scattered. . . . I have examined the situation in this prefecture. . . . Recently I took a careful look at the problem of fire control. I gathered together officials in the office and discussed it. Someone asked, "If we want to bring together the neighborhoods we already have the law, but how can this be done without people?" Subsequently I examined the riding (hsiang) records and selected a group, asking them to serve as riding officials and making them leaders. For each fort district there were three or four, or five or six men. . . . I examined what had been done according to the Offices of Chou, which described the practice of holding a monthly meeting, and gathering the people to read the law. Sometimes they read about the virtuous practices, or the practices of the Way, sometimes about being filial and so on. Now I wanted to imitate this goal, and so I set up a register, called the riding record. Within the villages, when admirable things were done that really were worth reporting, the neighborhood groups were to report them, and the riding officials were to certify them and report them to the prefecture, which would investigate the facts and enter them in the riding record. And for all wrongdoing, like gambling, fighting, killing or injuring, or banditry, the officials were to be at all times concerned with what went on in their jurisdictions, warning men to be peaceful and not to break the law. This also was to be entered in the riding record. At the end of each month we would examine what had been written in order to assess the leadership of the riding officials. Those who had good things entered and no bad things were the top class. Those with no good things but also no bad things were the second class. These two degrees were praiseworthy. This prefecture has separately set aside some official funds . . . in what is called the riding officials' reward money, so that the people will feel pleased and will mutually encourage one another and customs will gradually be improved."
98 Huang Kan, Mien-chai chi, 24.11b. There were also a variety of other militia organizations at this time, perhaps the most widespread being the organization called pao-wu. See Chang Shou, P'i-ling chi, 3.35; Hsiieh Ghi-hsiian, Lang-yu chi, 15.6b-7b. 99 Yuan Fu, Meng-chai chi, 3.32 fT.
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As Yuan Fu's report implies, the people on the spot were the ones who had the greatest knowledge of both good and bad behavior and could respond to it most quickly, but they were also - from the point of view of armaments and training - far weaker than full-time police or soldiers. The paradigm for the inverse relationship between the intensity of coverage and the level of power is reflected in relative numbers. A report from the late 1070s shows that there were many hundreds of village officers concerned with law and order scattered throughout each district, but only a few professional police officials (the sheriffs and the patroling inspectors) with their few hundreds of subordinate soldiers and archers concentrated in the district towns and a few rural forts, 100 and even these men might not really be doing police work. Thus militias and many village officers, both the pao-chia and others, had to be principally devoted to maintaining order. As Chang Shou wrote in 1138: From the time of the dynastic ancestors in the systems of capturing bandits, below we had the pao-wu [militia] and above the sheriffs and patroling inspectors. When someone committed a robbery, the responsibility fell on the pao-wu militia. If the robber was not caught, the blame fell on the sheriffs and patroling inspectors.101 * Conclusion The informal and semiformal levels clearly reflect some of the dilemmas of law enforcement. As in many bureaucratic structures, those with a knowledge of the problems often lacked the power to deal with them, and those with the power lacked the knowledge. The people with the most timely information on crimes - witnesses, bystanders, and neighbors who also were in a position to respond immediately almost always were not themselves members of the formal law-enforcement agencies. The arms they possessed and their skill in using them were usually inferior to the arms and skills of the regular formal agents. Despite these weaknesses, traditional Chinese states nonetheless had to rely on informal and semiformal agents. Lacking rapid systems of communication and transportation, the formal authorities were almost never in a position to respond sufficiently quickly to be of help with an immediate problem. They almost always had to follow a cold trail. Even if they had been able to solve the problems of communication and transportation, the authorities would still have faced fiscal and political problems that would have ruled out creating a body of armed state functionaries large enough to maintain order everywhere. The state 100 HCP 307.2a.
101 Chang Shou, P'i-ling chi, 3.37. 145
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simply could not pay for such a large force and in any case would no doubt have had grave reservations about creating an armed force of the required size. Traditional Chinese governments were also unwilling to see the people themselves sufficiently well armed and trained for full selfdefense. For good reason, Chinese regimes were deeply suspicious of local centers of power, especially the people in arms. Chinese dynasties were forced to try to walk a narrow line. They had to permit - indeed, they were probably not in a position to forbid completely - the arming of the people to a certain level. A completely disarmed populace would be easy prey for the sort of men who might fatten themselves on the helpless until they became a danger to the state. However, the central authorities also could not allow the people to become so well armed and trained that they were no longer under some state control. Chinese states early devised a compromise solution to this conundrum. They selected (or certified the selection after the fact) subsets of the local population that were allowed, encouraged, and even mandated to learn the martial arts and bear arms. These groups would then be used by the state as its semiformal agents to maintain order. These agents, village officers and militiamen, were important to the state's overall law-enforcement strategy. Of course, such groups themselves, especially the more heavily armed and numerous militiamen, could pose a threat to state control. Most of the dynasties tolerated the militias in times of unrest but distrusted them otherwise. The Sung is unusual in its attempt, during a time of peace, to create an empirewide militia system, the pao-chia, which was to be armed and trained by the state. This Sung pao-chia system soon evolved so that at most times in most regions its members served as village officers rather than as a militia. Still, the authorities' willingness to try to create this system demonstrates their underlying confidence in the stability of the Sung state. However, even when they were working well and as intended, such informal and semiformal systems usually only supplemented and did not substitute for the state's formal power. When they became so powerful that for extended periods they became the dispensers of law and order, the state itself was endangered from within. This did not happen during the Sung.
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5 Formal civil agencies of law enforcement Role of the sheriff Although they were clearly important to the general processes of keeping order, the village officers and militia personnel were hardly powerful enough to handle serious disorders by themselves, nor were they allowed to fetter people or hold them in detention. 1 The superiority of their sources of information and the advantage of being close to the scenes of the crimes were offset by their inadequate arms, training, and leadership. Therefore, above them the formal state apparatus took over the problem, using both civil officers and the military. A wide variety of officials and officers had some responsibilities for law and order during the Sung, the two most important field-level offices being the (civil) district sheriff (hsien-wei) supported by a group of several dozens of civilian constables called archers (kung-shou) and the (military) patroling inspector (hsiin-chien) with perhaps one hundred regular soldiers under his command; on the supervisory level most tasks were eventually the concern of the circuit intendants. Though such formal agencies could not be spread as widely as village officers, the authorities did station them at critical points where their very presence might deter lawbreaking. Sheriffs were usually stationed at the towns that were the district seats and sometimes at other towns. The patroling inspectors were mostly commonly stationed in forts located at dangerous and strategic places in the rural areas. Both sorts of officers on occasion were headquartered at other population centers such as fords, bridges, and markets. Finally, small complements of soldiers with law-enforcement duties were stationed at the postal stations that dotted the transportation routes. Some idea of the ways in which local civil officials might respond to reports of lawbreaking can be found in the advice given in a twelfthcentury handbook written to help local officials: 1 HCP 477.ib-2a. TFSL 537 says that if powerful families made prison instruments and detained people, they could receive a penalty of two years of penal servitude.
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Law and order in Sung China If you have cases that involved such unexpected things as fights, killings or injuries, floods or fires, or banditry, they should be handled one by one and not delayed. As noted previously, you should install a gong outside the district gate. Without regard to the time of day, when the gong is struck, you should have the person questioned and act on his complaint. If the matter is urgent and help is needed, provide that help. If criminals can be captured, capture them. If there is need for an inquest, go to conduct it so that the affairs will not be unsuccessfully handled because you have tried to deal with them following some sort of rigid order. This is the second key thing about administration. 2 The principal officials concerned with law enforcement were the district sheriffs with their complement of archers armed with bows and swords. When the founder of the Sung began to reemphasize the role of the regular civil system early in his reign, he chose to revive this earlier office. In 962, on the advice of the head of the Bureau of Military Affairs, Chao P'u, he ordered the establishment of a district sheriff (hsien-wei) in each district. 3 These officials received a salary equal to that given their colleagues, the recorders (chu-pu), but stood below them in the protocol order. Assisted by a body of clerks (chieh-chi) and constables called archers (kung-shou), the sheriffs were to maintain order in the district, including its rural areas. 4 The garrison troop commanders, who had been the key law-enforcement officials during the preceding Five Dynasties period, retained control only over disorders in the garrison's environs. 5 The sheriffs were usually stationed in the district towns. Their offices, although ordinarily located in the towns and often 2 Hu T'ai-ch'u, Chou-lien hsu-lun, TSCC ed., pp. 7 - 8 . 3 SHY, ping 11.1a. The post of district sheriff first appeared under the Ch'in (see Pan Ku, Han shu, 19 shang). Note that although the general Sung practice was to appoint one sheriff per district, some districts had more than one sheriff, most of the cases being from the Southern Sung. SHY, chih-kuan 48.66b (1114), 48.79b (1181), 48.81b (1192), 48.8ib-82a (1201), 48.85b (1214). Because all of these instances are from the twelfth and thirteenth centuries, it seems that this practice was a late development, although it also is possible that it occasionally occurred earlier and that the references to it have been lost. There are also cases of districts without sheriffs; see HCP 243.10a. Wu Ching explained the character of this position by referring to the Shuo-wen, where wei is defined as weih (terrifying). The word, he said, is composed of ts'un, which expresses the need to assess so as to show respect for superiors, shih,c which refers to the need to make instructional orders clear so as to guide inferiors, and shih,d which refers to defining the office so that it could be established; see Wu Ching, Chu-chou chi, 11.8a. 4 Initially clerks and archers were transferred to their control from the staffs of the garrison troop commanders; see SHY, chih-kuan 48.60a-b. The sheriffs general responsibility for maintaining the local peace is suggested by his responsibility for such related tasks as trying to prevent Chinese from causing trouble among the minorities; see an order dated 1090 to the effect that sheriffs were to prevent skilled Chinese from having contact with the Man tribes (HCP 442.6b). 5 HCP 3.14a. A few years later the tie between the military commissioners and the garrison troop commanders was broken when the regional commandants were forbidden to appoint their followers to these posts. Such posts were to be filled only by 148
Formal civil agencies of law enforcement within the headquarters itself, were frequently physically separated from the offices of the district magistrate. This independence may have contributed to the tendency of some sheriffs to act in a high-handed manner toward prisoners. 6 This problem reflects the inverse relationship that existed in traditional Chinese government between the level of socialization into civilian values and the possession of the authority to use physical force. The closer the formal governmental agents were to the criminal incident, the larger their numbers and the lower their level of civil socialization were likely to be. The sheriff's position was a compromise one. By origin the position of sheriff (wei) was a military office, a fact of which Sung officials were well aware. 7 The ambiguity of Sung law enforcement, with its mixture of civil and military agencies, is emphasized by this use of an originally military office as a civil office. This ambiguity became even more pronounced in the late Northern and the Southern Sung, when some of the men chosen for this post had military connections, but the post itself was part of the civil hierarchy. Throughout the period, these sheriffs were the main civil officials in law enforcement, though their civil superiors, the magistrates, prefects, administrators for public order (ssu-li ts'an-chun),8 and some circuit officials also were involved in supervision and, at times, in actually enforcing order. 9 The primary role of the sheriff is outlined in an order issued
6
7 8 9
men from the prefectural staffs (SHY chih-kuan 48.92a). We do have reports, however, that the commanders continued to seize "village bandits" and to hear complaints (HCP 61.2b) and, at least as late as 1013, to try cases and punish offenders (HCP 80.9b). See also SHY, chih-kuan 48.92a. See the maps in Ch'en Kung-liang, Yen-chou t'u-ching, TSCC ed., pp. 12, 14, 15, 16, 17, 136, 198-99. As these materials indicate, the sheriffs' offices were sometimes outside the headquarters area. For instance, in Yen Prefecture itself, "the sheriffs office was outside the Shen-li Gate" (Ch'en Kung-liang, Yen-chou t'u-ching, p. 5). This places it just outside the town wall. We also have examples of sheriffs' offices located far from the district towns (SHY, chih-kuan 48.69b, 756b, 80a). Hsiieh Chi-hsiian, Ken chai hsien-sheng Hsu'eh Ch'ang-chou lang-yu chi (Yung-chia ts'ung-shu ed.), 20.6b, 26.ia-b, gives a remarkably full picture of the process of petitioning for the establishment of such an office, since the two documents just cited refer to the same example. See, for example, the comments of Ma T'ing-luan, Pi-wu wan-fang chi, SKCSCP 1975, 17.8a. Compare WHTK 166.1444. See, for example, an order of 1088 that controllers-general in Ho-pei Circuit were to be allowed to select a dozen imperial soldiers to go out to arrest bandits as necessary, and in 1098 a similar order allowed the controllers-general to send out thirty armed imperial soldiers to capture bandits (HCP 417.b, 497.19a). One official even suggested that bandits could not be suppressed because the system of rewards and penalties focused too heavily on the sheriffs and patroling inspectors and did not cover higher local officials like district magistrates. He maintained that because the district magistrates had broader powers, they could plan campaigns and try to win back criminals through education. However, his plea itself demonstrates the predominant roles of the sheriffs and patroling inspectors (see Su Sung, Su-wei wen-Kung chi, SKCSCP ed., 19.ia-b).
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in 962, only two years after the dynasty was founded: "In all cases of banditry or murderous robbery, the district authorities are responsible for immediately trying to capture the criminals. If the sheriff has already gone out in pursuit of the criminals, then the responsibility for capturing them falls on the magistrate." 10 From the revival of the position of sheriff in 962 until the end of the dynasty in the thirteenth century, sheriffs overshadowed the other civil service officials serving in local posts in the police aspects of maintaining law and order. The initial edict of 962 decreed: "If there are bandits, the sheriff in person is expected to lead his followers to capture them and to transport them to the prefecture." 11 The sheriffs sometimes left routine law-enforcement tasks to their subordinates, but the records repeatedly take note of sheriffs who themselves fought against outlaws, like Shang Chih-chung, the sheriff of An-hsi District in Ho-pei West Circuit, who in 1016 "fought bravely against bandits. He was himself wounded by an arrow. When the bandits fled, Shang Chih-chung jumped onto his horse, grabbed his bow and arrow, and pursued them for seventy lid to the border to his district. He cut off two heads and returned." 12 If the bandits were in gangs too large for the sheriff to capture, the state faced the possibility of serious civil disorder and not merely robbery. The sheriff in such cases was "immediately to inform the prefectural bandit-capturing servitors [tsu-tsei shih-ch'en]." (Servitors were low-level officials in the military hierarchy.) These bandit-seizing servitors were charged with suppressing bandits and would be responsible for mobilizing the military for this task. 13 Though the specific position of bandit-seizing servitor was used only sporadically during the Sung, the principle that when the civilian authorities were unable to deal with disorders they were immediately to call on the military for help remained true. A decree of the 1080s further illuminates this chain of responsibilities, saying that prefectures or districts that had ten or more robbers and were unable to handle them could mobilize troops, beginning with the troops within their own jurisdiction. If these were insufficient, they then could call for outside help. 14 Thus, when major bandit gangs appeared, the sheriff was supposed to solicit help from his military colleagues. After the increase in the number of (military) patroling inspectors during the eleventh century, the sheriffs were to inform the nearest patroling inspector, as well as the prefectural 10 11 12 13 14
SHY ping u.ib-2b. SHY, chih-kuan 48.60a. SHY, ping 11.7b. SHY, chih-kuan 48.60a-b. HCP 348.10a.
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authorities, and ask for the dispatch of military personnel to aid in capturing the criminals.15 The prefectural authorities and the patroling inspectors were expected to send help to the sheriffs or, if their forces were insufficient, to request assistance from the regular military. If they did not aid the sheriffs, they might be punished.16 Patroling Patroling was one of the key tactics used by the Sung to maintain law and order in the empire. In effect, by moving police forces around the territory of a jurisdiction, the authorities multiplied the potential for deterring criminals while not having to increase the number of lawenforcement officials. Conversely, the lack of such patroling might lead to an increase in banditry. In 1072, archers were ordered not to patrol in the areas along the northern border and were returned to military camps. "As a result, the number of men on preventive patrol certainly was reduced."17 Banditry soared, necessitating the ending of this prohibition two years later.18 Patroling itself entailed some costs, and the potential for abuse of the helpless population was always present when armed men entered the countryside, but the returns were generally judged to outweigh the possible problems. Patrol systems had existed from the beginning of the dynasty and included, where appropriate, patrols at night and patrols by boat.19 These patrols might be conducted by the village officers,20 the militia, or the regular military. The military patroled from early in the dynasty. In 1019 an official reported on a settlement associated with the small rural market in Ping Prefecture of Ho-tung Circuit, which had a military camp but only four provincial army soldiers (hsiang-jen) assigned to patrol. He requested that the military intendant select an official with five assigned soldiers to patrol every night.21 In areas that were patroled by units under regular military officers, such as superior joint patroling inspectors (tu-t'ung hsiin-chien) or the 15 SHY, ping 11.2a. See also SHY, chih-kuan 48.6oa-b, 48.66a, 48.71b. I believe that there were two types of reports involved. One was a regular report to the prefecture noting any bandits active in the district, and the other was a specific report requesting assistance from higher authorities. 16 HCP 348.10a, 386.3b. According to an order of 1084, the key number for bandits was ten men. If the local authorities could not handle bandit gangs of ten or more, they might call for troops (HCP 348.10a). 17 HCP 260.4a. 18 HCP 2354b-7b, 242.4a, 257.4b. 19 HCP44.i5a-b, 193.12b. 20 HCP 7.13b. 21 SHY, ping 3.2a-b.
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servitors acting as inspectors general for seizing bandits (chu-po tsu-tsei shih-ch'en), the patrols were forbidden to stop at the district or garrison towns for more than a few days. The district was to report the patrols' arrival to the prefecture. When the district reported bandits, this was to be marked on the log of the patroling inspectors general (chu-po) and crossed off only when the bandits had been captured. 22 Although there were such patrols by regular military units from regular posts, the primary military figures in patroling, as in other aspects of law enforcement, were the patroling inspectors, who regularly patroled from the early eleventh century. 23 Followers of the sheriffs were also occasionally used for periodic patrols from early in the dynasty, 24 but it was not until the 1070s that sheriffs also took part regularly in such patrols. 25 Under policies that began at this time, the sheriffs were expected to pay monthly visits to each of the superior guards in their district, which would have taken them regularly into the rural hamlets as well as the markets. 26 This pattern of patrols was modified for a few years in the early 1080s, when the sheriffs were ordered to deal only with problems in the markets and district towns. In theory, this would have reduced their travels on tour, but in practice, according to one observer, since the sheriffs were responsible for the various small rural markets as well as for the tax collection stations, they still had to leave the district towns hundreds of times each year. 27 In rugged or large districts the patrol system greatly burdened police officials. The authorities responded by increasing the numbers of officials,28 or more systematically, by permitting the patroling inspectors and sheriffs to divide up their jurisdictions - each might cover a part of the required total area, or they might take turns touring. 29 Between 1111 and 1117a system was established under which the sheriffs and patroling inspectors kept registers of their tours of rural areas. Judging by the later system these registers probably were carried 22 SHY, chih-kuan 48.126b-127a. 23 SHY, chih-kuan 48.24a, 24b. See also an order of 1045 t n a t t n e P a o Prefecture, Kuang-hsin Prefecture, and An-su Prefecture police commissioners and directors in chief were every month to rotate the duty of patroling the border (HCP 155.12a). 24 See, for example, the tour orders for the capital area in 1002 (HCP 52.1 i a - b ) . 25 HCP 242.4a, 248.2b. Tseng Pu suggested that sheriffs and patroling inspectors in heavy-penalty places tour constantly, sending reports on the places visited to the prefecture at ten-day intervals. The prefectural officials would compare these reports quarterly with the road movement registers to see whether these officials were really complying with the policy. Tseng Kung, Yuanfeng lei kao (SPTK ed.), 32.6b. 26 SHY, chih-kuan 48.67a ( n 15), 48.68b (1127), 48.136b (1212). 27 HCP 349.2a. 28 SHY, chih-kuan 48.85a-b. 29 SHY, chih-kuan 48.7oa-b; TFSL 93.
152
Formal civil agencies of law enforcement into the rural areas by the officials on tour so that the local village officers could countersign the statement that a visit had indeed been made to a specific locality on a specific day. 30 In 1120 this system was refined. At the request of the intendant of salt, perfume, tea, and alum for the Ching-chi and Ching-hsi circuits, whitewashed notice-walls were ordered established in each hamlet according to the pattern used by the inspectors of postal relays. Every month the local village officer was to write on the face of this wall the month and day of the visit by the sheriff or patroling inspector. The officials in question then had to sign this wall.31 A further refinement was added in 1133 when the local superior guard leaders were ordered to be given sealed registers to keep as a way of recording the visits. When the sheriff or patroling inspector reached a particular superior guard, he would sign both the whitewashed wall and the sealed register, writing not only his name but also the date and his office. It appears that the police official also carried with him the register first mandated in the Cheng-ho period (1111-17) and that this too was validated at this time. This personal register (pen-shen li) was sent up to the prefecture when the police official returned from his monthly rounds. The prefecture official stamped and returned it on the same day. The responsible circuit intendants were expected to inspect this system quarterly. 32 A report from 1214 indicates that having the sheriff visit each superior guard in his jurisdiction once each month continued to be the customary practice. 33 Police officials who abused the system by not going on tour or by dispatching others to tour and sign in their places were to be punished. Initially, such offenders could incur a penalty of one hundred blows of the heavy rod, which was later increased to one year of penal servitude. 34 Officials also abused the system in other ways. In south China, with its many rivers and canals, police officials sometimes treated the patrols like excursions, taking their relatives along when patroling by boat. But under these circumstances when they did meet bandits, they were unwilling to fight.35 Although the rule seems to have remained that the sheriff was to patrol, some writers suggest that in practice it was the archers who did the actual work. Chu Hsi, writing around 1180, says that in Tu-ch'ang District in Chiang-nan Circuit, the actual patroling 30 31 32 33 34 35
SHY, SHY, SHY, SHY, SHY, SHY,
chih-kuan cjiih-kuan chih-kuan chih-kuan chih-kuan chih-kuan
48.68a. See also SHY, chih-kuan 48.85a-b (1214). 48.67b. 48.70a-b. 4 8.8 5 a-b. 48.67b, 48.68a; TFSL 92. 48.126b (1026).
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was carried out by the archers alone. Moreover, the fort soldiers simply guarded the town and did not go into the countryside. 36 Properly done, such patrols could be a law-enforcement aid, but this presumes that the men used were appropriately socialized and would not abuse their powers. In practice, however, problems arose almost immediately. According to the edict of 962 which revived the post of sheriff, sheriffs were not supposed to go into the countryside except to pursue bandits. 37 In 966 an order instructed the district sheriffs to forbid their subordinate clerks (chieh-chi) to go into the countryside, where, using the excuse that they were dunning people for taxes or were on regular patrol, they annoyed the people. 38 The abuses by touring sheriffs even inspired satirical verse. 39 The local villagers and village officers suffered because they had to provide for the touring parties, including not only the police officials themselves but also large bodies of armed followers. The rules against abusing the system thus were of doubtful efficacy.40 Despite earlier proposals, until 1121 there was no clear rule for sheriffs (as there was for patroling inspectors) concerning irregular trips into rural areas. The general regulation governing civil service officials, that they were not to enter the countryside except on official business, was applied only loosely to the sheriffs. As a result they used the excuse of chasing bandits and caused trouble to the villagers. In 1121 the Court approved an official's request that the word sheriff be inserted in the rule that made patroling inspectors liable for a beating with the light rod if they improperly entered the countryside. 41 Despite these rules, the problems continued, with the troops, particularly those using the excuse of patroling the countryside, still extorting money from the people. 42 Although the problems caused by patrols were never completely solved, such patroling continued to be one of the key crime prevention policies used by the authorities. Although the sheriffs and patroling 36 Chu Hsi Chu wen-hung wen-chi, 20.11b-14a. 37 HCP 3.13b-14a, SHY, chih-kuan 48.60b. See also McKnight, Village and Bureaucracy, p. 44; HCP 5.4a (964); SHY, chih-kuan 48.60b. In the twelfth century, patroling inspectors and sheriffs who used chasing criminals as an excuse for going into the countryside were supposed to be beaten with the light rod; SHY, chih-kuan 48.68a (1121); TFSL 93. See also HCP 7.13b (966), in which a similar complaint is recorded about the clerks and garrison troop commanders. 38 HCP 7.13b. 39 Yii Sou, Sung-jen hsiao-shuo lei-pien (Beijing: Chung-kuo shu-chu, 1985), hsiao-t'an lei 3-5a. 40 SHY, chih-kuan 48.68a; SHY, shih-huo i442b~43a; Liao Hsing-chih, Sheng chai chi 5.i7a-b. 41 SHY, chih-kuan 48.68a. 42 SHY, chih-kuan 48.71a (1135), 71b (1140).
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Formal civil agencies of law enforcement inspectors were the chief officials concerned with it, other agents could be involved. The 1259 gazetteer of Ming Prefecture in Liang-che Circuit mentions that during his tenure as administrator, Fan Ch'eng-ta had "established ten patrol huts, which enrolled four hundred stalwarts, with sixty boats. The ten huts each used groups of three men for night patrols." 43 The idea that crime could be deterred by having law-enforcement personnel close at hand was also behind some of the other functions of the sheriffs and their military counterparts. The sheriffs were responsible for convoying men and materials. Thus when "barbarian" envoys entered Sung territory bearing tribute, the prefectures and districts through which they passed were supposed to order the patroling inspectors and sheriffs to escort them. 44 Presumably the sheriff would escort such visitors from one border of his district to the other and then turn them over to the sheriff of the neighboring jurisdiction. In 1144 an official complained about the plundering of convoys: "When a convoy reaches the boundary [of the jurisdiction of] a sheriff or patroling inspector, these officials are immediately to inform the circuit offices of the next jurisdiction, to escort the convoy to the far border, and there to turn its security over to their counterparts." The appropriate offices were ordered to devise measures to implement this request. 45 (At times the convoying was less to protect the men being escorted than to defend the local populace from being despoiled by the retinues accompanying the convoys, who would demand hospitality and gifts from the local people.) 46 Patroling inspectors and sheriffs were also supposed to meet and travel with prefectural and circuit officials en route to office.47
Inquests Information gathering also required direct investigation by the police authorities. When deaths in unusual circumstances were reported, the sheriffs (or, in certain cases, other local officials) were expected to go immediately to investigate the situation. If they judged the death to have been accidental or the result of disease, this investigation was deemed sufficient. If, however, the death was suspicious or involved some breach of law (including, of course, homicide) then the case had to be reinves-
43 44 45 46 47
Mei Ying-fa, K'ai-ch'ing ssu-ming chih (SYTFCTS ed.)3 5413-5414. HCP 121.16a (1038). SHY, chih-kuan 48.72a. SHY, chih-kuan 48.72a-b (1144). SHY, chih-kuan 48.74b~75a (1167).
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Law and order in Sung China
| |
*'
Figure 5.1. Chart to be used in preparing inquest reports, ventral view. Wounds found on a corpse were entered in a chart such as this, summarizing the more exact indications of location given on a detailed drawing of the body surface. From the Hsiyuan lu hsiang i (preface dated 1854).
tigated by another official, ordinarily a man sent from the prefecture, 48 with the expenses falling on the local villagers and sometimes especially on the guard leaders. 49 These inquests produced a series of formal documents, prepared by the authorities and signed by witnesses, which would be used in any subsequent court proceedings. These documents eventually included outline sketches of the victims on which the locations 48 Brian E. McKnight, The Washing Away of Wrongs: Forensic Medicine in Thirteenth Century
China (Ann Arbor: University of Michigan Center for Chinese Studies, 1981), esp. pp. 57 49 Sun Ying-shih, Ch'in-ch'uan chih (SYTFCTS ed.), 2711.
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Formal civil agencies of law enforcement and characters of wounds could be marked 50 (see Figure 5.1). When the identity of the killer was known or suspected, the sheriff would normally be responsible for apprehending him. Investigation During the Sung, as during other dynasties, the district magistrate was the usual judge of first instance, 51 but in the Sung he was not the detective. Instead, the sheriffs seem to have had charge not only of apprehending suspects but also of the initial investigations. (Some investigations were handled by jail personnel.) Such investigations included the collection of physical evidence and the interrogation of witnesses. Of course, higher authorities also were occasionally involved in gathering evidence. During the trial, the district magistrates and prefectural legal officials also sought evidence when they reviewed the more serious criminal cases. Here, as in all aspects of Sung government, there was a deliberate policy of diffusing functions among offices.52 Like other aspects of Sung governmental operations, such investigations were governed by sets of formal rules. A typical rule, dating from 1114, established time limits for gathering men for interrogation, allowing five days in cases in which the crime called for the death penalty, three days in which it called for exile, and one day when beating with the heavy rod was the sentence. 53 During these investigations, beatings were often used to gain information. The number of blows allowable during judicial torture was limited by law to twenty (by an order of 1023).54 The authorities also tried to limit abuses of prisoners by punishing functionaries guilty of excessive or improper use of torture and by specifying that senior officials were supposed to be present when the torture was applied, though in fact this was often left in the hands of the clerks. 55 Thus, the jail functionaries were supposed to report to the chief local officials before they flogged prisoners. If they did not report, they might be punished. In 1018 the central judicial offices recommended a new system under which
50 See Cheng Hsing-i, Cheng chung-su tsou-i i-chi, shang 15b. 51 For a picture of trial on the local level, see Miyazaki, "Administration of Justice," pp. 56-76. See also Robert Van Gulik, T'ang Yin Pi Shih (Leiden: Brill, 1956), chap. 3 of the Introduction. 52 On the role of prefectural judicial offices, see Shih Hao, Mou-fang chen-yin man-lu, SKGSCP 1973, i7.6b-8a. 53 WHTK 167.1452. 54 HCP ioi.8b-ga. 55 Chang Nieh, Tzu wei chi, SKCSCP 1975, 25.15a.
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Law and order in Sung China
when robbers have been seized, if the functionaries managing the jails, without having reported to the chief officials, flog the prisoners but do not cause severe injuries and do get the facts, they should be tried only for having violated regulations through mistake (which carried a penalty of one hundred blows of the heavy rod). If they exceed the measure and yet do not get the facts, for extortionate private motives beating the prisoner and being avaricious, then try them for violating regulations for private motives (which carried a penalty of two years of penal servitude). 56
Those who caused the deaths of innocent people through judicial torture could be tried on a charge of deliberate homicide, 57 though the official involved could protest such charges, which might lead to a reconsideration. 58 Despite such threatened sanctions, the local functionaries did, however, use judicial torture far too freely. In one case during 1007, after a night robbery the neighborhood unit leaders reported on two men who supposedly had not been at home on the evening in question. "The district sheriff arrested them and interrogated them. The district clerk, Wang Ssu, tortured them without restraint, and as a result they died." (Shortly thereafter the prefecture seized the actual robbers.) 59 Two years later a sheriff who seized three commoners thinking them bandits was himself present when the clerks applied more than one hundred blows as judicial torture and used additional illegal punishments, thereby breaking the men's ankles. Yet the magistrate did not know how these men had been injured. The sheriff's office made up a false statement indicating that the prisoners' ankles had been broken during beatings by the father and elder brother of one of the suspects. 60 In some cases the sheriffs and others involved had prisoners tortured to death 61 or used gruesome (and illegal) instruments of torture. 62 We cannot now identify all these devices exactly, but even their names are all too suggestive. In 1091 we are told of a district magistrate who built instruments of torture including a "wooden steam cake" (mu hsiang-ping), a "wooden donkey" (mu-lu), a "wooden press" (mu-hsieh), a "wooden rack" (mu-chia-tzu), a "stone box" (shih-chia), an "iron wrapper" {t'-iehkuo), and "long fetters" (chang-chia). He also secretly increased the size of the heavy rod, with which he frequently beat prisoners. Many died. 56 57 58 59 60 61
HCP ioi.8b-ga. See HCP io6.2b-3a. HCP 67.14b. HCP 72.5b-6a. HCP 67.14b. In this case, the men killed were innocent, and the true story came out when the prefectural authorities captured the real culprits. 62 In theory the instruments of judicial torture were carefully regulated; HCP 65.5b; Wang Ch'eng, Tung tu shih lu'eh (Taipei: Wen hai, 1967), 4.4b.
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Formal civil agencies of law enforcement Beyond all this he himself stole government funds. His case became something of a cause celebre, with officials complaining that even distant banishment was insufficient punishment. 63 In other cases the instruments are said to have been illegally used by the jail clerks, though it is unlikely that this could have been done without the knowledge of the sheriff. There are complaints that such functionaries beat the hands and feet of suspects with wooden staffs; used throat presses made of wood and cloth; made suspects kneel while men jumped on a wooden staff laid across their legs; or applied the "brain hoop" by wrapping the suspect's skull in cloths and then squeezing it by inserting wooden wedges. 64 Another group of clerks was said to have wrapped a suspect's head in a belt of wet leather. As it dried it contracted, and when the prisoner could no longer bear the agony he signed a false confession.65 The central authorities did try to stop such abuses. For example, after the night robbery incident in 1007 they issued an order stating that "the rules on judicial torture have already been determined in detail. Illegally and without authorization to go beyond the rules is cruel. Officials in the various circuits are to see to the destruction of illegal instruments of torture." 66 Sometimes the authorities tried to reduce the incidence of abuses by heavily punishing the functionaries responsible. In 1028 a sheriff who had had a man beaten to death was himself beaten, tattooed, and sent to Kuang-nan to serve as a laborer registered in the provincial armies. 67 The state itself, however, certainly contributed to conditions that encouraged such acts, since sometimes it punished officials in only the most trifling ways for truly gruesome abuses. In the early 1080s a circuit judicial official who burned a man's face was merely fined and was subjected to a minor setback in his career - the authorities ruled that he had to serve one extra year in his post before he could seek promotion. After this it is said that he burned the faces of female slaves three times in one year, but even when an official impeached him, he was simply sanctioned by having five more years added to the seniority requirements needed for promotion. 68 The temptation to use excessive force stemmed in part from the key role that information gained in this way played in later trials. District magistrates frequently conducted trials largely on the basis of reports 63 64 65 66 67 68
HCP 45g.6a-b. See also HCP i6a-i8a, 460.7b, 9a-b, 9bff, 17a. SS 200.4996. HCP 67.5b. HCP 67.5b. HCP.106.10b. HCP 330.7b.
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drawn up by clerks using information secured by the sheriff and his staff. Although their primary functions were to capture criminals and gather information, occasionally the sheriffs might be called on to reexamine cases that had been appealed or to reinvestigate cases that had already been decided, though concern about possible conflicts of interest prompted the creation of a rule that only those men not involved in a case could be so used. 69 There even were some limited circumstances in which sheriffs not only functioned as the investigators but also were considered competent to judge minor cases and have punishments inflicted.70 In general, however, their power to adjudicate was severely limited, and officials who did conduct their own trials might be subject to quite severe sanctions. 71 According to an order of 986, "trials may not be conducted in district sheriffs' offices."72 The meaning of this order is made clear by a remark in Wang Yung's Sung-ch'aoyen-i i-mou lu: The sheriff's duty is the policing of robbers. When there were fights in the rural areas, the people, fearful of becoming involved with the [higher] prefectural and district authorities, often turned the culprits over to the sheriff's office. For this reason the sheriffs conducted trials in which men were subjected to the bitterness of judicial torture. Therefore in the Hsien-p'ing period [998-1003] there was a decree that forbade these trials and returned to the district magistrates the responsibility for all legal suits.73 Communications Traditional Chinese governments were acutely aware of the vital role of information transmission. 74 If the total system was to function properly, accurate messages had to be sent by the appropriate parties and received and understood by the appropriate parties at the proper times in the proper places. The pervasive traditional Chinese concern with this need was based both on a general underlying ideological orientation concern69 HCP 72.4a (1009). This incident provoked an order that officials involved in the initial stages of a case could not be called on to reinvestigate it. 70 SHY, chih-kuan 48.80a, records an order dated 1184 in which a sheriff's office was established at a distance from the district town. The sheriff was given the power to try and punish offenders when the sentence was seventy or fewer blows of the heavy rod. According to Miyazaki Ichisada, the general Sung rule was that district magistrates could administer punishments of the heavy rod or less. See Miyazaki Ichisada, S 6 Gen, p. 137. 71 See HCP 477.1b-2a, which says that such men were liable for one year of penal servitude. 72 SHY, chih-kuan 48.61a; HCP 43.10b. 73 Wang Yung, Sung-ch'ao yen-i i-mou lu, 1.8. For chih yu as "conduct a trial," see HCP 106.2b; 180.9b. 74 For some further commentary and illustrations of this awareness, see McKnight, "Patterns of Law and Patterns of Thought," pp. 323—31.
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ing the role of communication in the creation of order and on the practical character of bureaucratic politics. In the realm of law enforcement the need for efficient communications was even more immediate. T h e first part of the c o n u n d r u m of law enforcement is the need to learn about violations and to alert lawenforcement agents in a timely fashion. This problem was very much on the minds of effective local officials. W u Ching, whose effectiveness against bandits during his first appointment as a sheriff led to his promotion and transfer to the post of district magistrate, built d r u m towers in his area to be used to alert the constables and soldiers to the incursions of bandits. As a result, in a time of natural disaster when bandits were r a m p a n t in the surrounding areas, " t o the end not one m a n dared cross my b o r d e r s . " 7 5 In regard to transferring information within the bureaucracy, a properly working communication system of the type created by traditional Chinese empires functioned as an important tool of power, providing superiors with the information necessary to control their subordinates a n d limiting the subordinates' access to information that would increase their control beyond that needed for the tasks of their office. In practical terms, as exemplified by the Sung bureaucracy, this meant the voluminous production of reports, statistics, m e m o r a n d a , and suggestions generated at lower levels and sent u p through the hierarchy, with a smaller return flow of orders and guidelines. Within the law-enforcement agencies, local officials were required to submit regularly a series of reports on conditions in the areas under their jurisdiction. Early in the dynasty the rule was that if the bandit-seizing officials delayed in informing the prefecture, they were to be considered as having violated the system for private motives (wei-chih), which carried a penalty equivalent to two years of penal servitude. In 1018 as a result of an official complaint that this penalty was too harsh, the rule was changed so that such men were considered to have violated systems only by mistake, a lesser offense that carried a penalty equivalent to one h u n d r e d blows of the heavy rod. 7 6 A decree of 1043 clarified the procedures. Those officials in charge of capturing bandits, on the day that the attacks occurred, were to report to the prefecture the n u m b e r of persons plundered. T h e prefecture in turn was to report to its superior jurisdiction on the day that it received such a report. 7 7 After 1043, t n e officials were also supposed to report to the prefecture the capture of 75 Wu Ching, Chu-chou chi 8.3b.
76 HCP 91.8a—9a. See also SHY, hsing-fa 1.17b, which indicates that this rule continued in force at least until the late eleventh century. 77 HCP 144.6b.
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Law and order in Sung China violent bandits on the day they were seized. The prefecture in turn was supposed to notify the higher authorities on the day that it received the district report. Failure to do so was a punishable offense,78 but predictably, the officials locally responsible for capturing bandits continued to conceal crimes because they were afraid that they would suffer sanctions. 79 The prefects also had to submit semiannual reports on the numbers of robbers in their jurisdictions. Under a system started in 1090, the Ministry of Justice was to use these reports to compare the numbers arrested and at large during the preceding five years and to forward these reports to the Court. 80 These reports apparently were sent by way of the circuit intendants, who consolidated them, but also used them as evidence for distributing rewards in money. 81 If the time limits for such reporting were violated, the penalty was the equivalent of one hundred blows of the heavy rod. 82 Officials could be sanctioned for having failed to capture wanted men. And if their failure led to the spread of banditry, they might be severely punished. 83 From 1093 onward, prefects leaving their posts after having served one year or more, with some limited exceptions, had their records scrutinized for bandit capturing. If overall they had captured fewer than half of those at large, a report about this was memorialized, presumably so that they could be penalized. 84 For some years during the Yiian-yu period (1086-93) officials could reduce their penalties by balancing the number of men caught against those not caught. However, in 1099 this Yiian-yu proportional reduction law was abolished, and the policy reverted to the pattern followed in the Yiian-feng period (1078-85). 85 This policy on reporting bandits may have been strictly enforced during the Northern Sung, but by the 1130s it had fallen into disuse as a result of the military troubles of the 1120s. In 1138 Chang Shou suggested reviving a system of district records, which would record the names of the families who had been robbed and the dates of the incidents. Arrests would be noted in red ink on the bottom of the document. The record could be checked quarterly by the controller-general. At year's end, the circuit officials would check them to find out how 78 79 80 81 82 83 84
HCP 144.6b. SHY, ping i 2 . i g a - b (1126). HCP 437.21b. See HCP 300.6b-7a, 447.9a-b. HCP 460.1a. HCP 465.1a. HCP 481.1b. In the Yiian-yu period (1086-93) a policy was initiated under which only those bandits were counted whose activities had been initially reported after the last preceding amnesty. 85 HCP 310.12a, 437.21b, 507.16b.
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Formal civil agencies of law enforcement
many robbers there had been, how many had been captured, and how many were still at large, giving rewards and punishments in accordance with the number and the speed with which the criminals had been captured. 86 These policies were in part designed to deal with one of the general problems of law-enforcement systems. The interests of central authorities and local police officials may not be the same. In traditional China the center needed accurate information about local unrest, but the local officials were tempted to conceal or downplay such problems, because the appearance of bandits reflected poorly on their administration and so might adversely affect their careers. 87 If there were no reports of bandits during an official's term in office, then he would receive a commendation; if there were bandits who were captured within the allotted time limits, he would not be reprimanded; and if he failed to capture them in time, then he would suffer progressively more serious bureaucratic sanctions as time passed. 88 Because officials were tempted to ignore or downplay reports of unrest, the state instituted harsh penalties for failure to report. Even in ordinary areas, not reporting might carry a penalty equivalent to two years of penal servitude. 89 After n o o , in those vital areas of the empire where especially heavy penalties were inflicted, sheriffs or patroling inspectors who failed to report gangs of ten or more bandits were to be excluded from the group of those whose sentences could be reduced through amnesties. 90 Reports were, of course, part of a two-way communication system. Under Sung law, according to a report of 1091, the fastest communication method was used for amnesty documents, the imperial decrees sent from the capital that freed or reduced the sentences of many criminals. 91 These were carried by relays of runners at the rate of about 170 miles (500 lid) per day. Reports on border affairs or extraordinary banditry were carried by runners at about 133 miles (400 lid) per day. Ordinary banditry reports were sent by horse post at about 100 miles (300 lid) per day. If the carriers failed to meet their deadlines, they were to be beaten fifty blows of the light rod for being less than an hour late, eighty blows of the heavy rod for one hour up to one day, and one hundred blows for
86 87 88 89
Chang Shou, P'i-ling chi, 3.37-38. HCP 129.3b, 129.3b (1040). SHY, chih-kuan 59.1b (962). SHY, chih-kuan 48.66a. This ruling differed somewhat from the rules found in the Sung hsing t'ung; see SHT 28.448 ff. See also TLSI 28.57, 61; Niida Noboru, Torei shui (Collection of T'ang ordinances) (Tokyo: University of Tokyo Press, 1964), p. 729. 90 SHY, chih-kuan 48.66a; HCP 494.29a. For the heavy-penalty system, see Chapter 14. 91 Amnesties will be discussed in more detail in Chapter 14.
163
Law and order in Sung China one day, with an increase of one degree for each additional two days' delay, up to a maximum of three years of penal servitude. 92
Bureaucratic functions The state's ability to respond effectively to disorder was limited not only by considerations of power but also by fiscal constraints. With the sheriff, as with other offices, the state had to balance its desire that the sheriff (and, similarly, other law-enforcement personnel) perform as well as possible his principal role as a police official, against its desire to reduce the cost of local administration by burdening him with other tasks. At some times and places the sheriffs were assigned a variety of administrative, fiscal, or supervisory tasks, which complicated and interfered with their law-enforcement duties. At least during part of this period, the sheriff- like the recorder, the assistant magistrate, and the magistrate - was expected to go daily to the Senior Officials' Court (Chang-kuan t'ing) of the district headquarters to discuss affairs and endorse documents. 93 Sometimes in the less-populous districts, sheriffs were appointed concurrently as recorders (who managed the flow of documents, especially fiscal documents, in the district). These added responsibilities greatly broadened the sheriffs' duties, though their total workload may have been modest because of the small populations of such districts. 94 According to a rule of 970, districts with one thousand or more households were to have a magistrate, a recorder, and a sheriff; those with two hundred to one thousand households were to have a magistrate and a concurrent recorder /sheriff; and those with fewer than two hundred households were to have only one man serving concurrently as recorder and sheriff.95 In the early years of the Sung this system was applied only to districts of two hundred or fewer households, 96 but after 978, at least in Kuang-nan, it was used in districts with five hundred or fewer households. 97 Apparently over time there was a tendency in some areas for the recorders and sheriffs to share some types of duties, even when there were separate offices in the district. In 1070, as a result of a complaint about this situation, the Court reaffirmed the distinction in 92 HCP473.ua (1091). 93 SHY, chih-kuan 48.53b; HCP 499.9a. 94 HCP 118.4a. From 1001, in Shensi and Szechuan, all districts with fewer than five thousand households had registrars concurrently serving as sheriffs; see HCP 49.14a. 95 HCP 11.6b. 96 HCP 11.6b. 97 HCP 19.na.
164
Formal civil agencies of law enforcement tasks: The recorder was in charge of written records, and the sheriff had sole control over law and order. 98 Early in the dynasty (in 987) the sheriffs also were sometimes assigned the job of watching tax collection depots, but only three years later, as a result of complaints about the sheriffs' and archers' abusing their powers, this order was rescinded, and the village officers took over the task." From this time on, sheriffs were rarely associated with tax collection, though they occasionally were called on to manage tax depots or monopoly stations in outlying areas 100 or to dun recalcitrant households for tax debts. 101 Biographical reports from the thirteenth century also indicate that sheriffs might manage local welfare granaries, 102 and the 1208 gazetteer of Chen-chiang Prefecture in Liang-che Circuit mentions a sheriff who was responsible for supervising the management of two government estates. The sheriffs' miscellaneous duties might even include managing local temples. An order of 972 states that the magistrate or sheriff of the district in which a temple was located was to serve concurrently as the temple manager of temples such as those dedicated to the Five Sacred Mountains, the Four Rivers, or the Eastern Sea. 104 In the same general line of ritual duties, the recorders and sheriffs were ordered to manage the rites of gratitude performed in the schools. 105 In addition to these recurrent duties, the sheriffs might also perform extraordinary tasks. At certain times individual sheriffs submitted their advice on a wide variety of topics. Sometimes the advice seems to have been requested and dealt with the maintenance of order 106 or the prevention of disorder (in times of natural disasters), 107 but sheriffs also 98 SHY, chih-kuan 48.63b-64a; HCP 214.24a. 99 SHY, shih-huo 70.4a. 100 For instance, in 1208 there was an order for a sheriff to oversee a silver tax-collecting station and wine tax revenues; SHY chih-kuan 48.83b. And from 1165 there was a similar order for a sheriff to oversee a tax depot in Szechuan; SHY, shih-huo 18.3b. See also Hsiieh Chi-hsiian, Lang-yu chi, 20.6b, 26.ia-b. 101 Chu Hsi, Chu tzu ta ch'u'an (Ssu-pu pei-yao ed.) (hereafter cited as SPPY), wen 18.17b. 102 Yuan Fu, Meng-chai chi, 17.251-52. 103 Ch'en Ch'i-ch'ing, Chia-ting Ch'ih-ch'eng chih (SYTFCTS ed.), 2842. 104 HCP 22306.1 ia. The Five Sacred Mountains are T'ai-shan, Hua-shan, Heng-shan, Hang-shan, and Sung-shan. The Four Rivers are the Yangtse, the Yellow, the Huai, and the Chi. 105 This is an order of 1141, but it enjoins these officials to have general management "according to old precedents" and so must presume an earlier origin of the system. It is not at all clear what these ceremonies were; see SHY, chih-kuan 48.72a. 106 HCP 283.14a says (in 1077) that "the emperor took note of Huang K'o-chiin, the sheriff of Nan-feng District in Chien-ch'ang Prefecture. From the time when Liao En became a bandit, among the multitude of plans submitted for suppressing them, none was as good as that of [Huang K'o-chiin]." 107 See an order of 1074 that the patroling inspectors and sheriffs in the areas of Huai-nan
165
Law and order in Sung China
memorialized on topics only peripherally within their purview, such as foreign border problems or monopoly systems, and sometimes carried their zeal to the point of potentially dangerous effrontery. In 993 a sheriff memorialized asking that the number of imperial concubines be reduced. 108 They might also be specially ordered to go out for various commissions, to inspect such facilities as the ever-normal granaries, or the salt, tea, and alum monopoly systems. 109 Finally, the sheriffs might be called on to act as general district administrators when the other district officials were out of town on business. As an official pointed out in 1109, this could cause grave problems if, while a sheriff was filling this role, there was a major disorder in the district. As a result of his recommendations, it was ruled that at least one of the other district officials (the magistrate, the assistant magistrate, or the recorder) had to remain in the town. They all could not leave at one time. If under extraordinary circumstances there were no such men in these posts, then the prefecture should dispatch an official to act on a temporary basis. 110 Most of these data preserve the dry bones of the bureaucratically operated system. Occasionally the reports allow the personalities of these men to appear for a moment: The doctorate-in-letters graduate from Kaifeng, Sang Shih, who was appointed sheriff of Wei-nan District, was a courageous man from Hsiung-chiu. He was a man of great strength and skilled with the sword and iron rod. . . . In the neighborhood ofJu Prefecture the various districts had many bandits. Shih asked the help of the elders and went about investigating the evil behavior. Then he called together the juvenile delinquents of the village to warn them that he would not endure banditry. There was a father of Ch'ing hamlet. His son had died, and at night, before the son had been dressed for burial, a thief stole the burial clothes. The father was afraid to report it to the authorities. Shih suspected a juvenile surnamed Wang. At night he went to the Wang house and secured the stolen clothes, without the Wang boy's finding out. The next day Shih met him. "You promised me you would not steal. Are you not the one who stole these clothes?" The boy turned pale. Shih threw him to the ground and bound him. East that had suffered be allowed to send in memorials without regard to the regular system. When there had been a good harvest, then the older rules would come back into use; HCP 255.2b. 108 HCP 338.7b, 67.5b, 34.6b. In this particular case the man seems to have provoked the emperor's admiration rather than his wrath. In Chu Pien, Ch'u-wei chiu wen (Chih pu tsu chai ts'ung-shu ed.), 7.5b, it says that "T'ai-tsung spoke to the chief minister about it, observing, 'A petty official who dares to discuss the affairs of the inner palace, this is to be admired.'" 109 HCP 248.20b (1073), 216.13b-14a. In 1135 the newly added military sheriffs were ordered to tour and investigate illegal salt and tea dealing; SHY, chih-kuan 48.69b. 110 SHY, chih-kuan 48.66a-b. At times the sheriffs themselves were sent out to other districts to manage various affairs; HCP 104.13b (1026).
166
Formal civil agencies of law enforcement
He turned over the names of the criminals to the local authorities. All confessed their crimes. 111
Remuneration According to Winston Lo, the differentials in monetary salaries of Sung bureaucrats were relatively small, with the top grades receiving only about ten times the amounts given to those lowest in the hierarchy. 112 Still, the officials on the bottom of the pyramid, like the sheriff, were not well paid in money. The cash income of a sheriff seems to have been only slightly more than three times the income paid to one of his constables. Of course, as an official the sheriff also received substantial income in kind and in perquisites. Nonetheless, sheriffs can hardly be considered generously remunerated. Moreover, although the sheriffs' functions were clearly important to the proper functioning of local government, perhaps because of their lowly bureaucratic position the sheriffs often were forced to work in inadequate facilities. The sources often note the decrepit conditions of jails and offices.113 The sheriff of Sui District in Yen Prefecture in Liangche Circuit was at one point housed in an abandoned mail station. 114 And Mao P'ang commented about a prefecture in Ghing-hsi South Circuit: Officials in the nine grades view the post of sheriff as the lowest. Within the nine territories, this Ying is the most rustic. One hundred paces north of the prefectural wall there is the sheriff's office. This old building of ten bays [chien,h a traditional unit of architectural measurement equivalent to the distance between two upright pillars] was rotting and dark, bent and broken. When it rained, water came in, so that the clothes of those inside the building became wet.115 Even when there were adequate facilities, they seem almost always to have been created on the initiative of especially concerned and energetic sheriffs, who sometimes used their own funds to pay for improvements. 116 Particular structures are often traced to particular incumbents, who sometimes gave the facilities names that belied the grim overall 111 HCP 105.15b-16a. In another incident, Shih personally attacked and killed a number of bandits, tied up the rest of the gang, and later went to another area suffering from 112 113 114 115 116
bandits and again killed or captured a whole gang. For more on this heroic lawman, see CYKC 99. Winston Lo, An Introduction to the Civil Service of Sung China (Honolulu: University of Hawaii Press, 1987), pp. 160-61. See, for example, Li Liu-chien, Tan-chai chi SKCSCP 1971, 15.16b-17a. Cheng Yao, Ching-ting Yen-chou hsii-chih, TSCC ed., 7.78. Mao P'ang, Tung-t'ang chi, SKGSCP ed., 9.23a. For a similar complaint, see Shih Chieh, Tsu-lai chi, SKCSCP ed., 19.17b. See, for example, Yuan Fu, Meng-chai chi, 18.258.
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Law and order in Sung China
purpose of the office. The gazetteer of K'un-shan District in Liang-che Circuit, dated 1251, stated: The sheriff's office was located fifty paces south of the district headquarters. It once had had a Shadowy Hall, a Pavilion of the Laughing Moon, and a Separate Kingfishers Studio, all of which had been built by the Sheriff Wang Chi-yii. .. . In 1245-46 the sheriff, Ch'en Hsiao-sun, added a library east of the office.117 Rewards and punishments Like informal and semiformal agents, formal police agents could benefit from the system of rewards for capturing criminals. Like most aspects of Sung government these rules were periodically collected for more convenient reference by the authorities. These reward rules, which were governed by a type of law in the Sung called ko, might refer to specific areas or specific groups. In 1086 the Ministry of Finance compiled the Reward Laws for the Capture of Bandits in Cheng and Hua Prefectures.118 In the
same year the Bureau of Military Affairs petitioned successfully to have a recompiled the rules on rewards for capturing bandits applicable to Shensi and to Ho-tung Circuit. (The bureau was dissatisfied with the existing compilation because it had been created during the reform period when the partisans of Wang An-shih were in power.) 119 Such collections could be quite sizable. In 1179 an official submitted four separate compilations, the Reward Law for the Prefectures of the Various Circuits (Chu-lu chou-chiin shang-fa) in 139 chapters, the Circuit Intendants} Commendation and Reward Law (Chien-ssu chou-shang fa) in 47 chapters, the Generally Applicable Reward Law (T'ung-yung shang fa) in 13 chapters, and the Traditional Rewards for the Northwestern Prefectures (Hsipei chou-chiin chiu-shang) in 1 chapter. These compilations were issued as a unit entitled Individual Prefecture Individual Circuit Commendation and Reward Laws of the Ch3un-hsi Period (Gh'un-hsi i-chou i-lu chou-shang fa). The compilation was needed because officials had been faced with a welter of laws, some going back a century. Selecting the pertinent law was not always easy. Furthermore, many of the cases and recorded precedents which might have been used when deciding on rewards had been lost during the military troubles of the 1120s and 1130s.120 The sources contain many scattered examples of rewards (see Table 5.1). 117 118 119 120
Sun Ying-shih, Ch'in-ch'uan chih, p. 3809. SHY, hsing-fa 1.13a; HCP 373.17b. HCP 368.22b-23a. See also HCP 307.5a. SHY, hsing-fa 1.52a. This was clearly not the first time that the Sung had compiled such rules. On earlier compilations, see, for example, from 1133 a compilation of Ministry of Justice precedents on rewards for the capture of bandits; SHY, hsing-fa 1.36a.
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Formal civil agencies of law enforcement Table 5.1. Sample reward information
Date
Type of crime
1034 1034 1035
Prisoners killed Homicide Homicidal bandits 10 or more fewer than 10 Teaching martial arts Heresy Corruption (penalty) heavy rod penal servitude exile exile to Sramana
1041 1047 1070
Amount in strings
Source
100 50
HCP 114.16b HCP 114.19b
100 Proportionate 3 per man 500
HCP 117.4b
50 100 200 300
HCP 217.10b 214.27a
HCP 134.9a-b SHY, hsing-fa 2.27b-28a
Because the dates of the information given in this table are relatively close together, we can probably assume that the differences in amounts represent differences in the authorities' perception of the seriousness of the problems rather than changes in the value of money. The amounts are really quite large, up to ten times the annual pay of Northern Sung first-grade constables, who only earned about thirty strings per year. The rewards might come from the offenders' conscripted goods or from official funds. Sometimes the informers were rewarded with a proportion of the illicit goods recovered. 121 Extortion and bribery In the deceptively simple paradigm of law enforcement, one phrase says that the state must use men who are properly motivated. When men given power over others have not absorbed those values supportive of the interests of the state and therefore approach their tasks with "illicit" motives, the results are sure to be troublesome. The paradigm of law enforcement that calls for getting the proper number of men to the proper place at the proper time also assumes that the goals of those who lead these men will be the same as the goals of the central authorities. In practice, low-level officials usually have goals of their own. Among other things they may be tempted to use men supposedly intended for one task, like law enforcement, for their own general purposes. The problem, 121 See HCP 302.6a.
169
Law and order in Sung China
which can exist in any bureaucratic system, appears occasionally in the records dealing with Sung police agencies. The sheriff could legitimately use a number of archers as personal attendants, but there also are reports that the village servicemen called stalwart men, who supposedly had only constabulary duties, were sometimes asked by local officials to serve as personal guards. 122 The demands and dangers of the job, the opportunities for abuse, the inadequacies of the reward system, and the use of personnel from groups of doubtful motivation all combined to create a situation in which abuses were endemic. For police officials the temptation to abuse their power, extort evidence from the accused, or money from all was a serious one. The difficulty might have been reduced if the state could have attracted able, well-indoctrinated men to these posts; since the posts were at the very bottom of the civil service ladder and were poorly remunerated, the state had to try to fill them from a pool of men who often had dubious credentials. The problem of finding effective local officials was exacerbated when the central authorities left men in office for very short terms before transferring them elsewhere. Figures for magistrates from the Southern Sung show that these officials had terms averaging between one and a half and two and a half years. 123 How could men serving such short terms have had sufficient time to become familiar with their jurisdictions? Because of their low position, relatively few sheriffs have biographies, too few for a systematic survey of the men from any given district. We do, however, have some lists of names. The list from Ch'ang-shou District in Sua Prefecture suggests that in this area, during the twelfth century at least, the sheriffs, like Northern Sung prefects or Southern Sung magistrates, served for very short terms. In the seventy years between 1126 and 1196, thirty-three men were appointed sheriff in this district, which meant average terms of less than two years. 124 As with a number of other local offices in the Sung, these short tenures must have had a negative impact on the effectiveness with which the incumbent officials could perform their duties. 122 HCP 120.18a (1037). 123 See figures for the four districts in Chien-k'ang Prefecture, where the incumbents had terms averaging two and a half years, and the figures for the districts in Yen Prefecture where the average terms ranged from less than one and a half years to about two years. Chou Ying-ho, Ching-ting Chien-k'ang chih, SYTFCTS ed., pp. 114155; and Cheng Yao, Ching-ting Yen-chou hsii-chih, pp. 7042-43, 7050-51, 7054. 124 Sun Ying-shih, Ch'in-ch'uan chih, pp. 2690-92. For Northern Sung prefects, see McKnight, "Administrators of Hangchow," p. 208.
170
Formal civil agencies of law enforcement
Archers as subordinates of the sheriff It was necessary to move sufficient numbers of appropriately trained and armed and properly led and motivated personnel to the requisite places in a timely fashion, but the state faced both an economic and a sociopolitical dilemma. During the Sung district populations ranged from a few thousand people to fifty thousand people or more. A large proportion of these populations lived scattered in rural areas. To maintain order in such an area how many men would be needed and how should they be trained and armed? The state had only a limited fiscal base. What would it cost to provide the requisite number of men? And even if this fiscal problem could be solved, there was a potentially more worrisome social and political problem. Who was to guard the guardians? Armed men of any sort were a constant source of danger and unrest. They might themselves cause troubles, or even more dangerously, they might fall under the control of locally powerful figures, men who had the knowledge and organizational skills to be serious threats to the state. There were thus strict limits on the state's capacity to control its scattered populations. Approximately ioo million people lived in China in noo. State officials, civil and military, numbered a few tens of thousands, perhaps half of whom were serving in the capital city. Of those in local areas, only a fraction were primarily concerned with law enforcement. To exercise even a fiscally limited degree of control the state had to provide this handful of officers with forces of full-time constables and other law-enforcing subordinates. To understand the workings of Sung law enforcement, we must know who these men were, how they were recruited, and what functions they performed. The problem of how many such men should be used and how they were to be armed and trained was a perennial one. Both the sheriff and the patroling inspector relied on these armed subordinates in carrying out their law-enforcement duties and used both direct personal subordinates and militia forces only partly dependent on them. Archers: numbers and costs The sheriffs' most important support was a local constabulary of archers (kung-shou). These archers were armed, as their name suggests, with bows, but also carried staffs and other simple weapons. An order of 1016 indicates that in some parts of China the state was to lend each archer a crossbow. The archers were to supply their own swords. The sheriff was 171
Law and order in Sung China
to train them in arms, though they probably received less training than did the members of the regular armies. 125 The archers were to live at or near the offices of the sheriffs, who were ordered in 1005 to provide them with barracks. 126 The decree of 962 which reestablished the sheriffs also transferred to the sheriffs' control the archers who had previously been subordinate to the garrison troop commanders. According to the rules then promulgated, each district was to have a quota of archers that would vary according to the number of households. (We may roughly estimate that each such household numbered about 5 persons.) A district with 10,000 or more households was to have 50 archers, or approximately 1 per thousand people. A district with 7000 to 10,000 households would have 40 archers, and so on down to districts with fewer than 1000 households, which would have 10 archers. 127 In 968, on the grounds that conditions had become more peaceful, the quotas were lowered: A 10,000household district now had 30 archers, and so on down to a district with fewer than 1000 households which retained its old quota of 10 men. 128 Thus, if these quotas had been properly filled, there would have been approximately 1 constable for every 500 to 1700 people. These archers were probably slightly outnumbered by the soldiers who served under the patroling inspectors. Thus in a district there would be 1 law officer, constable, or soldier for every 250 to 850 people. This may be compared with the situation in the rural United States, in which the number of police, deputies, and other law officers is slightly less than 1 for every 450 people 129 (see Table 5.2). Archer quotas were increased in the 1040s when the Sung was fighting against the Hsi-hsia state to the northwest, possibly in response to a rise in general lawlessness within the empire, as well as to the immediate external threat. 130 In 1042 the controllers-general were ordered to select villagers with military talents, in order to triple the number of archers in certain circuits. 131 In some cases such men were apparently to be 125 126 127 128
HCP 86.17b. HCP 52.17a. SHY, chih-kuan 48.60a; HCP 3.13b-14a. HCP 9.11b; SHY, chih-kuan 48.6ob-6ia. Note that the higher authorities did not expect all the sheriffs to be pleased with this order. The decree specifies that sheriffs who resisted the implementation of the order were to be punished. 129 To arrive at a roughly approximate figure for comparative purposes, I used the number of police officials in the state of Mississippi (according to the Statistical Abstract of the United States 1988) and divided this figure into the population of the state. The figures are not all that different for Hawaii, a state in which the majority of the population lives in Honolulu. 130 HCP 125.14b, 126.12b, 127.15b, 131.20b, i33.ia-b. 131 HCP 132.21b orders this for Ching-tung West Circuit; see also HCP 132.21b, 133.1 ia, 12899.14b, etc.
172
Formal civil agencies of law enforcement T a b l e 5.2. Numbers of archers in selected districts
Date 1079
Place
Source
60
HCP311.5a-b
105
SHY, chih-kuan 48.67b
500
Sun Ying-shih,
Ta-ming Prefecture
Yuan-ch'eng District Ca. 1120
Number of households
Kaifeng Prefecture
Hsiang-fu District 1117
Number of archers
Su Prefecture
Ch'ang-shou District
Ch 'in-ch 'uan chih
1204
2709 Shao-hsing Prefecture
K'uai-chi District Shan-yin District Sheng District Chu-chi District Hsiao-shan District Yii-yao District Shang-yii District Hsin-ch'ang District 1228
95
35,406
95 98 113 70 100 70 67
36,652 39,792 42,424 29,063 30,833 30,303 28,820
K'uai-chi Chih 4.5b, 5.2a
Ming Prefecture
Ting-hai District
Lo Chun,
65
Pao-ch 'ing Ssu-ming chih
Yin District Feng-hua District Tz'u-ch'i District Ch'ang-kuo District Hsiang-shan District 1265
5320 5247 5274 5298 5336 5354
85 84 80 73 80
Lin-an Prefecture
Ch'ien-t'ang District
53
87,715
Jen-ho District Yii-hang District Yii-ch'ien District Fu-yang District Ch'ang-hua District
100 62 90 90 60
98,615 26,581 25,965 25,965 13,687
173
Ch'ien Yiieh-yo,
Hsien-ch }un Lin-an
chih 57.6a-b 58.2b ff
Law and order in Sung China
tattooed on the hand for identification purposes;132 in others they might be tattooed on the face. The Court in 1042 approved a request that in Ho-tung Circuit the archers to be inducted into the righteous warrior (iyung) units not be tattooed but that those in Shensi be tattooed on the face for use in the victorious protector (pao-chieh) commands. 133 (These tattoos indicated the name and location of a soldier's unit.) These newly recruited men, as distinguished from the archers previously employed, should be thought of as militia soldiers rather than as simple law-enforcement constables.134 They could also serve as regular soldiers, though supposedly only if they volunteered for such service.135 According to an edict of 1040, the newly organized archers' units on the northern frontiers were to be organized in units of twenty-five men called companies (t'uan). Four companies were to form a group (tu), with five groups comprising a command of five hundred men (the key unit in the regular Sung military organization), headed by a command officer (chihhui shih). The men so inducted were to serve from age twenty until age sixty. They were to receive one month of military training during the agricultural off-season and were to be given rations during training as well as when they were mobilized for other reasons. 136 It was in connection with this mid-eleventh-century expansion of forces that the state's dilemmas were described most eloquently by one of the truly brilliant scholar-officials of that era, Chang Fang-p'ing. At that time he was serving as the controller-general of a relatively backward prefecture in Chekiang. In 1041 he submitted a lengthy and detailed memorial concerning the newly adopted policy of expanding the number of archers. He began by detailing the underlying political and fiscal problems presented by the new measure. Under it, fifty archers would be drafted for every one thousand households. For prefectures with more than ten thousand households, the quotas were lowered somewhat. Still, a prefecture with fifty thousand households would have five thousand archers. Recruiting such a force would be a great burden on the people, and the potential threat to security posed by the very existence of such a large body of armed men was also extremely worrisome. The geography of some prefectures was such that control was intrinsically difficult. In other cases the force would be active in areas where there had been famines, thereby presenting opportunities for
132 133 134 135 136
HCP HCP HGP HCP HCP
132.19b, 12400.15b, 134.20b; see also 12399.7b. 12399.7b. 133.2b, 133.5b. 133.2b, 12399.7b, 15a, 12400.15b. i28.6b-7a, i 5 a - b .
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pillage. And there was always the danger of these men's falling under the sway of troublemakers and becoming mutinous. Moreover, under the new rules, during the agricultural off-season the archers were supposed to present themselves for one month of training in the use of weapons. During these periods they would be given rations by the state, 2 bushels (shihb) and 4 pecks (toub) of rice per man. This amounted to approximately 130 dry U.S. pints, that is, over 4 pints per day. This was a substantial ration. Subsistence was considered to be the equivalent of about one-half U.S. dry pint per day, and the regular ration of men in penal registration was about 2.5 U.S. dry pints per day. For Chang Fang-p'ing's prefecture - which for purposes of recruiting archers was considered to have a population of about twenty thousand households - this item alone would have meant an expenditure of almost 5000 bushels (shihb) of grain a year. For the empire as a whole, the burden would have run to about 1 million pecks (touh) per year. The cost of the archers was thus seen as excessive, especially in relation to their duties. The fiscal burden connected with such a force included not simply the costs of their rations and other remuneration but also forgone state income, since the families of the archers were forgiven certain fiscal obligations. If the archers were called from relatively well-to-do families, that would place the weight of the area's fiscal obligations onto the shoulders of the poor. If the men were called from the poor, their families could hardly afford the loss of a productive member of the household, and in addition such men were much more likely to be troublesome. Adding to this excessive cost, the new plan raised the specter of the men themselves stirring up local unrest. The edict called for appointing an officer outside the regular civil and military services to lead each group of five hundred archers. Chang Fang-p'ing considered such appointments reasonable in the border regions, where external security was a very real problem and where there was a tradition of militia leadership. But, he said, in the inner regions of the empire, although the local leaders were unfamiliar with military affairs, they were rich and oppressive to their poorer neighbors. Therefore, they unite as powerful villains and gobble up the poor and weak, doing injury to local areas. How much worse it will be if they are openly allowed to have management [over the archers]. Indeed, those who are called to be leaders of groups of five hundred men will, of necessity, be important and cunning men from the villages.137 137 HCP i3i.iob-i4a.
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Not all of Chang Fang-p'ing's suggestions were adopted, but it is clear that the number of archers inducted was never as large as it would have been if the law had been strictly enforced. After the emergency was over, the number again declined somewhat, though it does not appear to have fallen to the low level which had existed prior to the war against the Hsihsia. An official in 1070 complained that the number of Archers had been increased in the 1040s and had not been thereafter reduced, that the archers served for indefinite terms, and that in return for training for one month a year with the sheriff, they received complete exemption from taxes and other services. The authorities thereupon ordered an immediate reduction of the archer quotas in some southern circuits. 138 This reaction highlights a Sung dilemma. In times of unrest the authorities wanted to increase the number of law-enforcement agents, but such periods of crisis strained the state's finances, and so there was also a contrary desire to lower the number of government-supported functionaries. The number of police agents might be raised and shortly thereafter suffer from pressures to reduce costs. In the case of the archers this problem recurred during the reign of Shen-tsung (r. 1067-85). Although during the troubles of the early 1070s more men were again recruited, 139 the authorities were seeking some way of reducing their cost. For a brief period the state attempted to cut the number of archers and substitute pao-chia militia personnel. 140 In 1075, at least in Ho-pei and Ho-tung circuits, the number of archers was to be reduced, with fifteen to twenty being retained to serve as the sheriff's aides. The rest of the sheriff's constables were to be drawn from the pao-chia militia quotas. 141 Again, for a brief time in the early 1080s, when the sheriffs were not concerned with the rural areas, the quota of archers was cut to fifteen men. Some regions were exempt from this order, but in others the number of archers seems to have been reduced even further. 142 This policy was soon abrogated, at least in the regions surrounding the capital. By an order in 1085, m t n e capital and the three circuits surrounding the capital (Ching-tung, Ching-hsi, and Ching-chi), the sheriffs' archers and the patroling inspectors' soldiers were to be reestablished in accordance with the system in use before the advent of the 138 HCP 216.14b-15a. 139 HCP 4.23b (1077). A memorial of 1076 suggests that this order was generally enforced, because it cites quotas of 140 archers in large districts, 100 in medium districts, and 70 to 80 in small districts; HGP 27g.i4a-b. 140 HCP 358.4a ff. 141 HCP 267.5a; see also HCP 33i.i3b-i4a; SHY, chih-kuan 48.65a-b. 142 SHY, ping 12.18a. Sixteen districts in Ho-pei West in 1082 averaged ninety-four archers; HCP 329.13b.
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pao-chia militia system. 1 4 3 T h u s , just a few years after the fall of W a n g An-shih, the archers were fully reestablished, though on occasion paochia personnel were inducted as paid archers in place of those judged incapable of doing the j o b . 1 4 4 Figures from the late Northern Sung suggest that generally the quotas remained relatively close to those of the 1070s. 145 During the troubles of the 1120s the number of archers was again temporarily increased, but this trend was soon reversed 1 4 6 so that quotas of approximately the same size as those common in the Northern Sung seem to have continued in use under the rest of the Southern Sung. In this period the archers were paid from state funds, including money collected especially to finance labor services. 147 In 1160, three of the four districts of Ming Prefecture had quotas of 80 archers. T h e magistrate of Hsiang-shan District, which had a quota of only 45 men, petitioned successfully to have his jurisdiction's quota raised to 80, 1 4 8 and Chu Hsi, writing about 1180, comments that in his day a large district sheriff's office had 100 or so archers, whereas a small one would have several tens. 1 4 9 O n e judicial intendant, writing toward the end of the twelfth century, reported that according to his sources there were 2650 archers in Ching-hu South Circuit, who were responsible for some nine prefectures comprising thirty-eight districts, for an average of about 70 archers per district. 1 5 0 Quotas by district population were changed several more times during the dynasty, but in practice, in the Northern as well as the Southern Sung, the number of archers seems to have been determined only in part by population. It also depended on the amount of lawlessness in the district. 1 5 1 Quotas could also be temporarily increased in times of 143 HGP 356.8b.
144 HCP 364.25a. 145 See, for example, Yiian-ch'eng District which in 1117 had 105 archers; SHY chih-kuan 48.67b. Note also that Hsiang-fu District in Kaifeng had 2 sheriffs with a total of 60 archers; HCP 311.5a—b. Some districts had much larger quotas; see HCP 12507.11a. See also the quota of 500 men in Ch'ang-shou District in Ch'ang Prefecture in 1120s; Sun Ying-shih, Ch'in-ch'uan chih, p. 2660. 146 SS 24.9a, 27.16a; SHY, chih-kuan 48.33b-34a. A memorial by Wang Yang (doctorate of letters degree 1124) that criticizes the recent increase in the number of archers and the addition of a second sheriff perhaps dates from this period. See Wang Yang, Tung-mou chi, 9.19a-20a. 147 HNYL 15.325; Liao Hsing-chih, Sheng-chai chi, 5.23b; Pien Shih, Yu-feng hsu-chih, SYTFCTS e d , 7b. 148 SHY, chih-kuan 48.74a. 149 Chu Hsi, Chu wen-kung wen-chi, 20.11b. Hsiieh Chi-hsiian mentions that Ta-p'ing District had an eighty-man quota. Hsiieh Chi-hsiian, Lang-yu chi, 20.10a. 150 Ts'ai K'an, Ting-chai chi, 2.12a. 151 HCP 113.11b. For instance, in 1160 the district magistrate of Hsiang-shan District in Ming Prefecture submitted a memorial in which he stated: "This district controls
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troubles. In 1032, for example, the quota in Mi Prefecture was raised by twenty men because there had been a bad harvest, and the prefect feared an increase in robbery. And in the 1120s, during the Chin invasion, the quotas were increased everywhere. 152 Because the density of the population was greater in the Southern Sung, the ratio of archers to the general population actually declined from the ratio of the Northern Sung. This Southern Sung problem worsened when the quota of archers was left unfilled. Liao Hsing-chih (doctorate of letters degree 1184) complained that one district with a quota of 120 men had in fact only 59 in service. 153 The drop is especially significant in light of the increase in the number of military personnel concerned with law enforcement in the rural areas. The number of sheriffs did rise over time, especially during the Southern Sung, so that many districts had two, and some more than two, sheriffs. However, the number of patroling inspectors rose even more rapidly. Furthermore, these patroling inspectors had complements of soldiers that were generally larger than the sheriffs' complements of archers. Qualifications and character The policies on selecting and employing archers provide another example of the dilemmas faced by the Sung authorities. The early Northern Sung government felt that it could not afford to pay the archers from its own revenues and so had to levy the position as a form of labor service. The burden had to be laid on prosperous households that would not be ruined by the cost. Furthermore, moderately well-todo families were seen as more socially reliable than poorer families were. However, the use of drafted men ran counter to the general trend of Sung administration. More and more the government relied on longterm professional personnel. This trend toward using professional personnel itself was contrary to some of the postulates of traditional administration, and conservative broad and distant sea areas that abut the Wen and T'ai prefectures. In these regions there are constantly groups of bandit boats. I have humbly noted that the sheriffs' offices of the other five districts of this prefecture have eighty-odd archers, whereas my district has only forty-five. I ask that in accordance with the practice of these other districts, our quota be raised to eighty." The request was approved; SHY chih-kuan 48.74a. For further information on quotas, see HCP 131.10b-14a, 132.21b, i33.ia-b, 22399.14b, 216.14b-15a, 329.13b, 331.13b-14a; SHY, chih-kuan 48.63a, 65a-b, 67b, 70b, 86b; Gh'ien Yiieh-yu, Hsien-ch'un Lin-an chih (Gh'ien-t'ang Wang-shih chen-ch'it'ang blockprint ed., 1830), 57.6a-b, 58.2b-6b; Shih Su, Chia-t'ai K'uai-chi Chih (Chia-ch'ing blockprint ed.), 4.5b, 5.2a. 152 SHY, chih-kuan 48.33b-34a; HCP 113.1b; SS 24.446, 450, 451. 153 Liao Hsing-chih, Sheng-chai chi, 5.23b.
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Sung officials repeatedly decried the growing tendency to substitute other systems for those that used drafted men. These disagreements were reflected in occasional shifts in government policy, which did not, however, permanently affect the trend toward paying lower-level functionaries. At the beginning of the dynasty, at least in many areas, the post of archer was in theory filled by drafting men from local third-grade (moderately well-to-do) households for indefinite terms. 154 However, under most of these drafting systems individuals were supposedly to be called to serve for only limited terms. In IOIO a system was introduced in some parts of the empire under which archers were drafted to serve for three-year terms, and in 1033 the government approved a suggestion of the important statesman Fan Chung-yen that archers be given sevenyear renewable terms. 155 This seven-year system was enforced in some places, but a memorial by Ts'ai Hsiang, probably dating from the 1050s or 1060s, indicates that in practice the situation varied geographically. Ts'ai Hsiang wrote that by law, in the less-developed circuits of the south and west, archers were to serve three-year terms but that elsewhere the terms were indeterminate. While serving in Fukien, Ts'ai Hsiang had found the local practice was to have the men serve for seven years and, despite the problems associated with this practice, recommended its general use on the grounds that it attracted experienced men willing to work for the long term. 156 The desire for expertise no doubt contributed to the adoption of policies such as the use of seven-year terms that would allow longer service. Even under the three-year system that had been adopted in 1010, although the archers were required to serve for only three years, they could volunteer for further service at the end of their term. 157 The extension of the length of actual service was accompanied by policies allowing those drafted to hire substitutes, in the name of convenience for the drafted households and professionalism for the constabulary. In practice, despite rules that called for drafting archers for limited terms, from early in the dynasty if not from its beginning, many of these archers seem to have been in for the long term. Hu Su (996-1067) responded to Fan Chung-yen's seven-year term system: 154 SHY, chih-kuan 48.66b; HCP 73.16b. This report specifically refers to Szechuan, but I suspect that this was a more general practice. This policy was occasionally suggested in later periods; see HCP 285-5b-6a (1077). 155 HCP 113.15a. 156 Ts'ai Hsiang, Tuan-ming chi, 26.7a-b. 157 HCP 73.16b; SHY, chih-kuan 48.61b.
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Under the old system the districts originally established archers to guard against bandits, selecting men who were skilled with weapons to fill the jobs without, initially, having any regularly set term limits. Generally they wanted men to serve for long periods so that they would become practiced and skilled with weapons and become familiar with the local hills, waterways, and roads, and their trouble spots. 158 D u r i n g the early part of this period such men were the paid replacements of those purportedly serving as draftees, though there were orders in 1020 and 1026 forbidding this practice (in Szechuan). 1 5 9 As a regular practice it seems that hiring substitutes probably continued until it was replaced by a system of state-salaried archers during the labor service reforms of W a n g An-shih in the 1070s. Occasionally there were specific orders reviving the drafting of men for service in person, such as in 1040 when archers in Shensi were to be drafted from resident village households with three or more males. 1 6 0 T h i s a t t e m p t to revive the use of draftees was connected with the great increase in the n u m b e r of archers during the Hsi-hsia troubles. Again, during the antireform period that began in 1085, some officials argued in favor of returning to the practices of the early Sung, that is, drafted service fulfilled in person. Conservative officials argued for this return to past practices. In a diatribe against hiring personnel, Liu Chih mentioned in passing that these hired substitutes were frequently "guest households" (k'o-hu) - that is, households that in n a m e at least were migrants who owned no land. 1 6 1 H e called them "good-for-nothings." M a n y of those drafted, in his opinion, could serve in person but were prevented from doing so by overzealous officials who forced them to hire substitutes on the grounds that the substitutes had experience and also were worthy of pity because they were poor and needed the work. 1 6 2 Even when policies calling for drafted service in person were adopted, 158 Hu Su, Wen-kung chi, TSCC ed., 7.86-87.
159 HCP 96.3a, 104.14b. SHY, chih-kuan 48.62b. The order of 1020 is for Liang-ch'uan and that of 1026 for Szechuan. These substitutes were said to be "lazy farmers." 160 HCP 126.12b. 161 The meaning of this term in Sung sources is hotly debated, in large part perhaps because it was used with different meanings by different Sung authors. However, the meaning given here is perhaps the best general one. See Joseph Macdermot, "Charting Blank Spaces in Disputed Regions: The Problem of Sung Land Tenure," Journal of Asian Studies 44 (N984): 13-41. 162 HCP 389.6b-7b. There was also a complaint from the early twelfth century that many of the archers v/ere old, ill, or too young or were skilled artisans; SHY, ping 12.16a. The term k'o-hu has been the subject of much debate because in the Sung it was used in several different ways, including immigrant household, tenant, and the like. Here, from the context, "immigrant household" makes the most sense.
180
Formal civil agencies of law enforcement they were not long in force. By the late Northern Sung, important and powerful officials had come to feel that the hiring system had proved its worth. Su Shih, among others, argued strongly in favor of permitting hiring. 163 A decree in 1086 reversed the previous government stand, stating that "all those [drafted as archers] who do not wish to serve in person may hire substitutes. Their pay is not to exceed the amounts paid under the previous state's hiring system." 164 In these years it appears that the very well-to-do households classified as first or second grade were made responsible for this service.165 Thus, despite conservative criticism, hiring archers remained the general practice from this time on. 166 At times the state used its own funds, but sometimes the "drafted" households paid the costs (and were in return spared some state exactions).167 Whether draftees or hired personnel, the men serving as archers were chosen from the local population. The desire to use local people stemmed from the authorities' belief that their knowledge of local conditions and geography made them more effective policemen.168 Some officials even considered them more trustworthy than fort soldiers,169 and in arguing (unsuccessfully) for a return to the policy of forcing drafted households to serve in person, Liu Chih noted that such drafted archers were familiar with local conditions, were concerned about them, and had no incentive to flee. They would, moreover, involve their relatives by blood and marriage, and even their neighbors, in the process of apprehending criminals, for fear of the penalties that would follow failure. "As soon as the time limit (for capturing the criminals) has been established, everyone energetically uses his eyes and ears, going forth to search out the bandits." 170
Training The sheriff himself generally oversaw the training of his men. During the second half of the eleventh century, when the number of patroling inspectors in local areas increased, they too took an active part in 163 HCP 394.1 i a - b . 164 HCP 389.6b-7b. 165 HCP 39713a. There were conservative officials who did argue strongly for a return to a system of drafted personal service, but their arguments were rejected by the government; HCP 285-5b-6a. 166 HCP 285.5b-6a. 167 HCP 131.10b-14a, 331.13b-14a, 389.6b; SHY, chih-kuan 48.65a-b. A first-grade archer could earn thirty strings of cash per year. 168 HCP 188.133-1058. See also Su Ch'e, Luan-ch'eng chi, 35.2b. 169 Tu Fan, Ch'ing-hsien chi, 8.19b-20b. 170 HCP 389.6b-7b.
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Figure 5.2. Archery practice. From Tsang Mao-hsun, Yuan ch'u hsu'an.
182
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training their soldiers. 171 Such officials also sometimes helped provide the physical facilities for training exercises. During the Northern Sung, Tseng Kung describes a sheriff who, three months after he took office, "enlarged the four walls of his compound to make an archery pavilion, and when it was completed, trained his subordinate lawmen there." Such training fields were probably a common, though not a universal, adjunct of the sheriff's offices172 (see Figure 5.2). The sheriffs continued to play an important role in training during the Southern Sung. Yuan Hsieh (1144-1224) wrote: When I was first appointed to serve as sheriff in the district, someone commented that there were many bandits blocking the Yangtze. I was deeply disturbed by this, and when I arrived and checked the rolls of the archers, I found that there were many vacancies. Their military training had also been neglected for a long time. Then I hired some more men, oversaw the repair of the archery pavilion, and reviewed the practice system.173 Such constables certainly did not have the same level of training as did the more elite units of the Sung professional military; nonetheless they should have been more familiar with the use of weapons than were most of the adult male members of the general population. A memorial from the eleventh century indicates that the men were trained in the use of "bows and arrows, swords, wooden spears, and clubs." Groups of archers were trained in rotation, during the agricultural off-season, and were given rations during these training periods. 174 Here, as elsewhere, the rulings indicate only what was mandated. As suggested in the passage from Yuan Hsieh just quoted, what was practiced depended on the character and energy of the officials involved. Functions The main mandated task of the archers was to patrol the district, sometimes without the sheriff, with the intention of spreading the deterrent effect of their presence throughout the jurisdiction. 175 For a brief 171 In 1086 an official asked that the responsibility for training archers be assigned to the subordinate officials in the district, but earlier orders make it clear that such officials would ordinarily be sheriffs (see HCP 73.16b, 86.17b, 364.25a). See also Chu Hsi, Chu wen-kung wen-chi, 100.19.a-b; SHY, chih-kuan 48.61b. 172 See Sun Ying-shih, Ch'in ch'uan chih, pp. 2660, 2775. 173 Yuan Hsieh, Chieh-chai chi, TSCC ed., 9.138. 174 HCP i28.6b-7a, I 3 i . i o b - i 4 a . 175 SHY, chih-kuan 48.61b. The fact that archers sometimes patroled without the sheriff is revealed in complaints that the sheriffs were claiming credit for capturing bandits who actually had been caught by archers acting alone; SHY, chih-kuan 48.78a, 84b-85a. There is also one report, dated 1033, that says that patroling inspectors
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period in the 1070s, perhaps in an attempt to reduce the abuse of local people by the constables, archers were forbidden to patrol, but with the exception of this interruption, patroling was usually one of their principal tasks. 176 The archers might also serve in rotation to patrol the markets, as personal attendants for the sheriff or as jail functionaries. 177 The functions which took the archers out into the countryside reveal one of the ongoing tensions of the traditional Chinese political process. The state had to be able to project its power into rural areas. But its agents all too often abused their power. Guarding the guardians was one of the key conundrums of the Chinese past. In his book of advice to local officials, the official Chen Te-hsiu (1178-1235) put it succinctly: The little people of the rural areas fear the clerks like tigers. To allow clerks to go into the villages is like permitting tigers to escape from their cages. Archers and local soldiers must be strictly forbidden to go into the villages. Except when they are engaged in arresting bandits, they ought not to be sent out.178 At times these men might go beyond abusing villagers while serving as government agents. Sometimes they seized ordinary people, bound them, flogged them, and seized their goods by claiming that the people were bandits. 179 Sometimes they divided booty seized from criminals among themselves and let the criminals escape. 180 Sometimes they sheltered criminals in return for bribes. 181 And sometimes they themselves became bandits. Speaking of a major bandit active in southern China in the late twelfth century, the official Ts'ai K'an remarked that this man "in the beginning was just an archer who stole arms, yet he has raised a crowd of several thousand men, pillaged the prefectures and districts, and killed officials. His position is really fearsome." 182 The archer gone bad was a recognized figure in fiction as well as real life. In his book of miscellany, Sui-shou tsa-lu, Wang Kung recounted a story in which a ghost came to seek justice for a drowned woman. The ghost reported that two archers had chased her and caught up with her near a small river. They demanded that she strip, and when she refused, they pushed her into the river. In the end, with the intervention of the
176 177 178 179 180 181 182
sometimes used archers to capture bandits; even though the practice was forbidden (see SHY, ping 11.14b). See HCP 242.4a, 257.4b. For the continuation of such patroling during the Southern Sung, see, for example, SHY, shih-huo I4.42b~43a. Kung-ping in this passage is a synonym for kung-shou. Sun Ying-shih, Ch'in-ch'uan chih 2709; SHY, chih-kuan, 48 6ib-62a. Chen Te-hsiu, Hsi-shan cheng-hsun, TSCG ed., p. 3. SHY, ping 11.15a. SHY, ping 11.5b. SHY, ping n . n b . Ts'ai K'an, Ting-chai chi, 1.14b.
184
Figure 5.3. Weapons. From Chi Yiin, Chin-ting Ssu-k'u ch'uan-shu.
Law and order in Sung China
gods, the guilty men were brought to justice. 183 Then, as now, it seems that at times some of those engaged in police work and those engaged in crime were all too similar. Indeed, the constable gone bad was a staple figure in traditional China. Civil service officials expected that their underlings, given the chance, would abuse ordinary people. Arms If the archers were to be effective, they had to be at least as habituated to the use of arms and as well armed as were the criminals whom they were charged with capturing. To achieve this end, the authorities provided arms - bows, arrows, swords, spears, crossbows, and, in some cases, armor made of layers of paper glued together (see Figure 5.3). 184 These weapons were given to the archers who were supposed to hand them over to their successors when they retired from their posts. When not in use, the weapons might be stored at the sheriff's offices, where a system of registers was used to keep track of the weapons given out. 185 The system of having the state issue arms became policy early in the eleventh century after an official complained that the archers in some regions were being punished by their superiors for possessing swords and bows of their own. 186 Liao Hsing-chih (doctorate of letters 1184) described the situation when he arrived as a newly appointed sheriff: When I arrived to take up office, I inspected the sheriff's equipment and arms. We had, counting new and old, only fifteen flags, two bronze gongs, and three drums (large and small). According to an affidavit, these all were pieces of equipment the sheriff himself had collected. As to military equipment, armor, and staves, there were none.187 After 1002 the archers were supposed to be quartered in barracks which probably adjoined the offices and living quarters of the sheriff himself or were in the side halls in which the sheriff's clerks were housed. Yuan Hsieh outlined the real situation in his district. Puzzled by the fact that the archers arrived at military practice at different times, he looked for the cause and found that they lived scattered about. Some indeed did live beside the sheriff's office, but others lived various dis-
183 Wang Kung, Sui-shou tsa-lu, Hsiieh-hai lei-pien, p. 7. 184 On Chinese armor of paper, see Needham, Science and Civilization in China, vol. 5, pt. 1, pp. 114-16 and vol. 2, pt. 8, p. iii. 185 SHY, chih-kuan 48.61b; HCP 73.16b, 86.17b (1016), 127.2a (1040), I3i.iob-i4a; Hu Su, Wen kung chi, pp. 85-86; Liao Hsing-chih, Sheng-chai chi, 5.25a-6. 186 HCP 86.17b (1016); SHY, chih-kuan 48.62a. 187 Liao Hsing-chih, Sheng-chai chi, 5.25a.
186
Formal civil agencies of law enforcement
tances up to several miles away. Yuan Hsieh, however, was no ordinary official, and he aggressively set about improving the situation. I asked the intendant of ever-normal granaries, Mr. Lo, for seventeen hundred strings of unspent hiring money collected in recent years. With this and using the official fields, I could make a foundation. The intendant was delighted to help. Our sheriff's fields were scattered. I exchanged them for fields belonging to private owners, getting a width of thirty mou [a mou was approximately one-sixth of an acre] that bordered our practice field. It was high, dry, level land. I divined about its good fortune, assembled workmen, prepared materials, and checked everything carefully. At this time the censor, Mr. Wu, strongly argued for the value of archers and suggested that camps be built so as to redress this problem of their living scattered about. The emperor approved. The governor, Mr. Hou, received the order to carry it out carefully. . . . The work began in the second month of spring in the year 1187 and was completed by the winter of this year. In all there are 176 bays [chienh] of rooms. There is a room for the practice of Taoist-style breathing and calisthentics and a room for the night guard. The watchman has a pavilion. Generally, when assigning room space each man gets one space. Meritorious men get one and a half or two, and those with particular labors three. Those who do not yet have a room share with another. In this way, those who had been scattered about are [now] gathered together.188 Like the clerks, groups of archers serving by half-month turns provided personal services for the sheriffs. As with other groups of subordinate personnel, local officials sometimes abused this system and used the archers in excessive numbers as miscellaneous workers. 189 Grading and remuneration The state also had to establish policies that would keep men in service as archers and would encourage them to perform effectively. At a minimum the authorities had to provide the archers with a livelihood. Because the archers differed in the length of their service and in their skills, they were divided into grades and were remunerated accordingly. 190 The information on their rates of pay is scattered and contradictory, but it appears that during the late Northern Sung the average rate of pay was approximately thirty strings of cash per year for a first-grade archer. 191 During 188 189 190 191
Yuan Hsieh, Chieh-chai chi, 9.138. HCP i 3 i . i o b - i 4 a . SHY, chih-kuan 48.i27b-i28a. Some of the confusion perhaps stems from differences in the names and types of remunerations involved. For example, Ch'en Ch'i-ch'ing, writing in 1220, describes a sheriff's office as receiving thirty strings per month for rations, with a supposed quota of fifty-two soldiers (though in fact most were missing), whereas a report from 1127 says that each archer was to receive three strings per month of ration money (SHY,
187
Law and order in Sung China the brief period in the early 1080s when the sheriffs were not responsible for rural areas, the archers' salaries were supposed to have been reduced. Officials argued that the new policy had spared the archers the cost of traveling. But even in this period they are still said to have been paid thirty strings per year. 192 This accords with reports stating that uppergrade households were paying substitutes at the rate of thirty to forty strings. 193 This pay scale increased very slowly. A report dated 1219 from Hsi-an District in Liang-che Circuit indicates that the average archer under the newly established western sheriff there was to receive fifty-three strings of cash per year. 194 Archers might also receive special rewards if they demonstrated military skills during inspections by the intendants. 195 Furthermore, the households to which the archers belonged were spared various miscellaneous government exactions. 196 Figures from Robert Hartwell suggest that the buying power of those strings of cash, at least in terms of rice costs, had declined greatly, so that despite the increase in salary, the archer of the early thirteenth century was less well off than his predecessors of the late Northern Sung had been. 197 The archer system, like the militia system devised during the Sung, was intended to reduce the government's costs as well as to provide onthe-spot protection against disorder. Nonetheless, it was itself open to criticism, since those inducted were given rations during training and their families were freed from some taxes and from labor services. 198 The brief attempt during the reign of Shen-tsung to substitute pao-chia personnel for the archers is probably best viewed as an attempt to cut costs, but the archers proved to be irreplaceable, and in the late Northern and the Southern Sung the state responded by using regular state funds to pay the archers' salaries. These funds were usually taken from the special labor service moneys collected by local administrative units. 199 These payments were necessary simply to secure minimal services,
192 193 194 195 196 197 198 199
chih-kuan 48.33b—34a). It seems likely that either the report of Ch'en Ch'i-ch'ing is garbled or the men at that time received pay other than so-called rations. Another confusing report, from Ch'ang-shou District in Liang-che Circuit, states that the men received about nine strings per year (see Ch'en Ch'i-ch'ing, Chia-ting ch'ih-ch'eng chih, 2704). HCP 331.13b-14a; SHY, chih-kuan 48.65a-b says that first-grade archers received thirty strings per year in 1082. HCP 424.10a. Thirty archers were assigned to this new office, with an annual salary total of 1602 strings, an average of 53 strings per man per year (SHY, chih-kuan 48.86b-87a). TFSL 82. HCP 131.10b-14a. Personal communication from Robert Hartwell, April 1989. HCP I3i.iob-i4a, 2i6.i4b-i5a. See, for example, Pien Shih, Yiifeng hsii-chih, p. 7b; HNYL 15.325.
188
Formal civil agencies of law enforcement and even they sometimes were not given. At times, when the archers were not paid on time, they preyed on the people in order to survive. 200 The state also faced the problem of motivating its agents to act effectively and again fell back on a system of rewards and punishments. Archers who captured criminals were rewarded. However, like their official superiors and clerical colleagues involved with capturing criminals, they were liable for punishments, including beatings, if they failed to capture the criminals within the set three time limits. 201 The other side of motivation was the system of control. It was hoped that the archers would do a satisfactory job, but some way of supervising them was clearly necessary. In his early twelfth-century book of advice to local officials, Li Yuan-pi recommended that the district magistrate have a list of the archers' names. When they were dispatched for duties, they should be sent in the order of the list. This list should also note which men were capable of being used in serious situations. 202
Conclusion Among Chinese dynasties the Sung is especially noteworthy for the prestige, honor, and power given to civil bureaucrats by the ruling house. Rulers of some other dynasties gave more honor to the military, and others sometimes treated their civil bureaucrats harshly. In preceding Chinese and later foreign-dominated dynasties, prestige might derive as much from birth as from achievement. But in the Sung the civil bureaucrats - the important ones being mostly graduates of the civil service examinations - were treated with consideration and respect by the emperors and had a dominant hand in shaping policy. I do not mean that there were not some activist emperors who personally participated in making major policy, but clearly the careers and lives of Sung bureaucrats were safer, more honorable, and more powerful than were those of bureaucrats in many other eras. This situation was in part due to deliberate state policy. In seeking to reduce the role of the military in politics, the Sung founder and his successors deliberately fostered the prestige and power of civil officials. Their treatment of the problem of maintaining law and order makes this abundantly clear. Law-and-order functions in the dynasties before the Sung had often been mainly the responsibility of the military. In the Sung, however, although the authorities continued the tradition of using the military to enforce law and order in the cities, from the early years of 200 CHTK 2.26. 201 HCP 97.11b. 202 TITC 2.9a.
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the dynasty the emphasis in all areas outside the cities was on using civilian agents in law enforcement. The principal civil service figure was the district sheriff with his civilian constables. The office of sheriff, as revived by the Sung founder, resembled in its functions the office of sheriff during the dynasties before the Sui, and it was usually staffed by civilian officials. These men and their constables were to maintain order by patroling regularly in their jurisdictions and by actively pursuing known criminals. The sheriffs were also involved in some facets of the investigation process, including inquests. Because they were civil officials, they were seen as competent to perform a variety of minor bureaucratic tasks, and indeed the state regularly assigned to the sheriffs some bureaucratic functions or appointed one official to serve concurrently as sheriff and recorder. During the dynasty the growing role of the military in low-level law enforcement in rural areas presumably reflected both changes in the problem of maintaining law and order and the increasing confidence among the higher civil officials that the military was firmly under control. In terms of distributing functions, these state policies regarding law enforcement may seem well designed to achieve their goals. However, because the position of sheriff was very low in the hierarchy of civil officials and because the post combined this low position and prestige with duties that could be unpleasant and were often dangerous, the higher authorities often found it difficult to get enough good men to fill the vacant posts. This difficulty may have contributed, too, to the trend toward a more even balance between the law-enforcement role of the civilian sheriff and that of his military counterpart, the patroling inspector.
190
6 The role of the military in law enforcement Introduction - wen versus wu "The military and punishment are a single Way." 1 With this simple declaration a Sung official put the Chinese assessment of the role of the military in law enforcement in cameo. Since one facet of law enforcement is bringing to bear force sufficient to deter or suppress lawbreaking, the military clearly must play an irreplaceable role in dealing with disorders too large in scale to be dealt with by the regular police system. Although many modern states are almost always able to handle disorder without calling on the military, the use of military force always remains as a last resort. What was characteristic in the use of the military by many traditional Chinese dynasties, of which the Sung is a good example, was the integration of the military into the ordinary institutions of law enforcement. The military and punishments were seen as a single way in that they both embodied the sovereign's forceful responses to those who would disturb the social order. The distinction between police and the military (which the Chinese did recognize) was rooted in differences in the scope of the threat, not in differences in the type of threat. The role of the military in law enforcement was especially delicate in the Sung. Early Sung analysts, who sought ways of reducing this power, traced the social and political problems of the late T'ang and the Five Dynasties to the delegation of excessive power to the military. This reaction against excessive militarism was part of an overall pattern. In the second century B.C. the great Han historian Ssu-ma Ch'ien had searched for patterns in the Chinese past. He found there the continuing interaction of the unchanging, the cyclical, and the evolutionary. Some changes, he said, are caused by the leaders of each new dynasty as they seek to learn from the past and avoid its mistakes. Such reforms might 1 Liu Cheng, Huang Sung chung-hsing liang-ch'ao sheng-cheng (Taipei: Yee Wen, 1967), 10.12a.
191
Law and order in Sung China be cyclical, as each succeeding dynasty reacts against the excesses of its predecessor, only to push its own choices too far. Where there were pairs of complementary opposite tendencies, there would be an alternation of emphasis from era to era. When one tendency - military interference in politics, for example - had been pushed too far, a natural and strong impetus toward stressing the civilian side of government would arise. In traditional Chinese thinking, the world of politics and government was marked by tensions between the civil and the military, the wen and the wu. Members of the elite in traditional China distinguished between the nature and function of these two facets of the political world. To understand how the Sung Chinese felt about this distinction, we must recognize the associations surrounding the key terms. The philosopher J. L. Austin remarked that "a word never - well hardly ever - shakes off from its etymology and formation. In spite of all changes in and extensions of and additions to its meaning, and indeed rather pervading and governing these, there will persist the old idea." 2 The truth of this observation is especially striking to anyone who reads classical Chinese, in which words have many layers of meanings. Newer usage may overlie the meanings of the past, but these earlier layers almost always color the reaction to the newer meanings. The character wen in its original form was perhaps a representation of lines or cracks that came to mean ornamentation. It was used to describe cultivated, civilized things, as epitomized in writing, and was set off in Chinese minds against the character wu, which represents a footman holding a lance and stands for all that is martial and military. These concepts must not be understood as contraries. Rather, we would do better to envision the totality of felt reality for the Chinese official elite of the Sung (if not always of other dynasties) as a bounded solid figure, with wen at the core and wu at the periphery. No rigid internal boundary separated the spheres of the two concepts. At the center of the solid, wen was pure but contained the possibility of wu, and at the surface wu was pure but retained the possibility of wen. Between these contrasting points there was no fixed borderline. Among the leaders of the Sung, who embodied this tradition that contained both wen and wu? During the Sung, men representing wen, the civil side of this complementary pair, dominated government and society. Those representing wu were both topologically and psychologically at the periphery. In dealing with hsieh, or "deviance," the use of civilizing 2 J. L. Austin, "A Plea for Excuses," in J. L. Austin, Philosophical Papers (Oxford: Clarendon Press, 1961), p. 149.
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The role of the military change, wen, was the preferred response. This commitment to using wen coexisted with the recognition that deviance could reach a point at which resolution was beyond the short-run power of peaceful and civilized transformation. At that point it became necessary to invoke force. Because there was no radical break between these two concepts, it was certainly possible for carriers of the wen tradition to employ force in its defense, and men, basically civil in their orientation, could and did function as military commanders when needed. Only when the use of force by nonmilitary or paramilitary groups was insufficient did it become necessary to involve the specialists in wu, the professional military. Thus the line between persuasion and force was not identical with the line between civil and military. The military system depended almost exclusively on the use of force (or the threat of force). The civil authorities combined persuasion and education with the measures of intimidation, including the use of force, embodied in the police and judicial systems. The Chinese viewed (and continue to view) deviance as a continuum measured by the degree of the threat to the existing order of society. At the low end of the continuum, because the deviance did not constitute an immediate threat to the social order, the proper response was persuasive, educational, and largely the responsibility of social associates. As the degree of threat increased, the state gradually began to apply force through the police function of the civilian government. Finally, when the threat was too immediate and too extreme for the civil authorities, it became the responsibility of the military. During the Sung the harmonious working out of this tension between the civil and the military intersected with the problem of self-cultivation. The contrast between the wen and the wu, when embodied in individuals, was the contrast between the exemplary gentleman (chun-tzu) and the hero. Different thinkers might have somewhat different visions of the Confucian gentleman; they generally agreed that the gentleman embodied balance and measure and cultivated sobriety. Even when officials who were basically committed to the chun-tzu ideal took up arms, as they did on occasion and sometimes with marked success, their attitude toward the use of force and the characteristics they admired in people were radically different from those of the heroic warrior. During the Sung, even in the aesthetic-cultural wing of Confucians led by the Su brothers, there was a lack of extravagance and a concern for propriety. 3 3 For this group of Confucians see Bol, "Culture and the Way."
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The hero In contrast, the traditional Chinese also had a vision of the hero. Even in his Confucian incarnation the hero was a person who lived beyond the ordinary strictures and everyday rules of his contemporaries. As presented in Chinese literature and as imitated in life, heroes might be great warriors or generals, wandering knights-errant (yu-hsia), or even bandits, but they all shared a larger-than-life quality. Among knights-errant this heroic quality was expressed by an altruistic and total commitment to seeking justice as they understood it, even beyond the boundaries of normal morality, in defense of the weak and oppressed. The knightserrant, in the common Chinese phrase, "seeing an injustice on the road, would pull out their swords to help." Their contempt for ordinary conventions was often reflected in their haughty manner, absence of courtesy, and dissolute style of life, but this was coupled with a total commitment to their friends and acknowledged superiors, great personal courage, and a deep belief in truthfulness and mutual good faith. Generous to a fault, contemptuous of wealth, they sought honor and fame rather than the security and comforts valued by ordinary men.4 The deep sense of honor, the commitment to justice, and the loyalty to friends in these heroic figures were linked in Chinese minds with a penchant for disorder. The Sung founder, a hero in numerous stories, exemplifies this tradition in fiction. In "The Sung Founder Escorts Ching-niang One Thousand Li," the Sung founder is called a "chivalrous man, who would not hesitate to draw his sword, and offer help to right a wrong," but the next sentence calls him "a master of busy bodies and a leader of troublemakers."5 With minor variations, this same set of values and characteristics would fit the bandit-heroes of Chinese fiction or the great military figures of the Chinese past. These traits were not mere stigmata of stock characters in popular entertainments. Men could and did seek to model themselves after this heroic image. The Sung dynasty produced perhaps the greatest of all these military heroes - a man who set out to live a life that embodied these great virtues - General Yueh Fei (i 103-41). His career, from the time when he first took up arms at the age of twenty until his death two decades later, is the stuff of which myths are made. The picture of him that has come down to us presents a pattern characteristic not just of Chinese heroes but also of many heroes in many cultures: 4 For a more thorough description of these men and their values, see James J. Y. Liu, The Chinese Knight-Errant (Chicago: University of Chicago Press, 1967). 5 For information on this story, see Y. W. Ma and Joseph S. M. Lau, Traditional Chinese Stories (New York: Columbia University Press, 1978), p. 61.
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The forceful youth of almost unknown family background, as proud as he is naive, who overnight gains entrance into his chosen vocation; the loyal attachment to those who guide him in his activities; his somewhat ostentatious display of all the shining virtues the tradition demands; his always successful battles against the enemy which is devastating his country; his sudden reversal of fortunes at the peak of his success; and his end at the hands of villains of blackest hue.6 A poem by Yueh Fei, reflecting his feelings about the foreign invaders then ravaging north China, epitomizes his commitments and desires and contrasts starkly with the measured pattern of nonheroic figures: My hair bristles in my helmet I lean against the railing, the pattering rain has ceased. I raise my eyes, and toward the sky I utter a long-drawn shout. My breast is filled with violence. At the age of thirty fame and merits are but earth and dust, Eight thousand miles of land are like the moon covered with clouds. Do not tarry! The hair of youth grows white. Oh, vain sorrows. The shame of the year Ching-K'ang [i 126] not yet wiped away, When will the hate of the subject come to an end? Oh, let us drive endless chariots through the Ho-lan Pass. My fierce ambition is to feed upon thefleshof the Huns, And, laughing, I thirst for the blood of the Barbarians. Oh, let everything begin afresh. Let all the rivers and mountains be recovered, Before we pay our respect once more to the Emperor.7 The self-cultivation of the hero thus differed strikingly from the selfcultivation of the Confucian gentleman. Reaction to T'ang militarism In the eyes of early Sung leaders, the T'ang dynasty (618-907) stood as the exemplar of both the glories to be gained by military excellence and the price to be paid for military excesses. During the T'ang, military ideals permeated the ruling class, affecting their behavior and their understanding of and reactions to the political and social questions of the day. During the early T'ang this pattern had resulted in a vibrant and 6 Hellmut Wilhelm, "From Myth to Myth: The Case of Yueh Fei's Biography," in Arthur Wright and Denis Twitchett, eds., Confucian Personalities (Stanford, GA: Stanford University Press, 1962), p. 146. For his career in more detail, see Edward Kaplan, "Yueh Fei and the Founding of the Southern Sung" (Ph.D. diss., University of Iowa, 1976). 7 Wilhelm, "From Myth to Myth," p. 156.
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creative culture. But after the rebellion of An Lu-shan in the middle of the eighth century, the pendulum swung too far in the direction of transferring dominant military power into the hands of local leaders. This pattern became even more blatant after the rebellion of Huang Ch'ao in the late ninth century, and was characteristic of the Five Dynasties period that followed that end of the T'ang in 907. The leaders of the Sung wanted to swing the pendulum toward an appreciation of the civil. Accepting the idea that the principal problem of the recent past had been an excessive emphasis on the military, the Sung founder, himself a usurping general, continued the reforms that had been initiated by his predecessors. Following the pattern of the Later Chou (951-60), he selected men to form the imperial armies (chin-chun) by choosing the best soldiers from all his units. The remaining soldiers were organized into the provincial armies (hsiang-chun). The imperial armies functioned as the key fighting forces. Although some units of the provincial armies did occasionally take part in the fighting, they were primarily a reserve of state laborers. Despite the central authorities' concern about the dangers of military power, at the beginning of the Sung the military still played a significant role in law enforcement. Military men serving as garrison commanders, holdovers from the military-dominated system of the Five Dynasties, initially contiriued to have a significant day-by-day role in maintaining order, but the general trend was toward reducing their importance. Edicts issued under the Sung founder deprived the garrison commanders of much of their early power. Their loss of power was not, at first, matched by an increase in the power of other military figures. By the middle of the eleventh century, however, the curbing of the military on a national level had the unintended side effect of making it politically feasible to increase again the role of the military in low-level law enforcement, if and when this participation were desirable. From the 1040s onward, there seems to have been a deterioration of local order in rural areas, accompanied by the greater use as police officials of the military officers called patroling inspectors (hsun-chien). Thus, the role played by the military grew in importance over time until by the late eleventh century, the Sung had created a dual civil-military police system in most regions. During the Southern Sung the military came to dominate rural law enforcement, at least in the number of officials. The military played several roles in maintaining order in Sung China. It enforced a special military law on its own members 8 and might 8 See Brian E. McKnight, "The Military and the Law in Sung China," Second International Sinological Conference, Transactions (Taipei: Academia Sinica, 1990), pp. 855-74.
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sometimes be called upon to enforce this military law against the general population. The military patroling inspectors became increasingly important in regular day-to-day law enforcement. Finally, the military played a major role in enforcing the regular civilian laws by suppressing large-scale lawbreaking by the civilian population. In law enforcement, the military represents a means that is significant not because it is necessarily close to the scene of crime in either space or time but because it can bring to bear more than sufficient force. The police agents of the civil authorities - not to mention informal and semiformal agents - were often inferior in numbers, equipment, and training to the criminal gangs that they faced. Indeed, a Southern Sung official, commenting on the suppression of bandits in Ching-hu North Circuit, pointed out that the victims "summoned the adult males of the powerful families from the mountain areas, but they still could not handle the bandits. An effective response came only with the arrival of a large army from E Prefecture. Thereafter the bandits were destroyed." 9 At the same time and by the same token, the commitment of the military to the basically civil values of the dominant tradition was suspect. Many officers as well as almost all soldiers were drawn from the lower levels of Chinese society. The civilian authorities, themselves drawn overwhelmingly from the upper levels of Chinese society, hesitated to summon the military unless pressed to do so, since they feared, justifiably, that the military might be more given to persecuting the hapless peasantry than to fighting the bandits. Still, the military was superior in weaponry and technical skills. The authorities wanted to use the strengths of the military to advantage without paying an excessive price in terms of military abuses. In the end, therefore, they adopted policies that allowed the regular use of relatively small numbers of soldiers serving under the patroling inspectors, most of whom during the greater part of the dynasty were concerned almost exclusively with law enforcement. (Earlier in the dynasty patroling inspectors had been commanders of major military forces.) Larger units of the regular army were not called in unless the local situation threatened to get out of hand. The general rule, restated in a decree of 1084, was that only when the prefecture and districts could not themselves handle the situation could they call on other regular army units. 10 In the words of Chang Shou (d. 1138): When bandits arise, the responsibility falls on the sheriffs and patroling inspectors. If they cannot handle them, then the responsibility shifts to the prefects and their assistants. If the prefects and their assistants cannot handle the problem, 9 Ts'ai K'an, Ting-chai chi, 2.13a.
10 HCP 348.10a.
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the responsibility falls on the circuit intendants and the circuit military leaders. If they cannot handle it, then the generals are mobilized.11 At the lowest level the civilian character of the sheriff was balanced against the military character of the patroling inspector. On the intermediate level of the prefecture this tension between wen and wu was embodied in a single individual, the prefect, who was most often concurrently the commander of local forces. And at the highest regional level the civilian orientation of the circuit intendants was again balanced against the more military orientation of the circuit military leaders.
Patroling inspectors Although the sheriff was the initially responsible official charged with suppressing criminals, he was not alone in carrying out his lawenforcement duties. The garrison troop commanders themselves retained at least some of their former powers during the early decades of the dynasty. Furthermore, several sorts of military officers might take part in bandit suppression, especially when gangs were large or active in strategic areas. The most important officers involved on an everyday basis were the patroling inspectors. The term for the office of patroling inspector had long been in use as a verb, meaning "to inspect" or "to investigate," but as the name of an office, it appears to have been first used during the chaotic period at the end of the T'ang. Certainly it was in use during the opening years of the Five Dynasties. Such officers at this time seem mostly to have been men dispatched by the central authorities to deal with foreign incursions, to pacify disturbed localities, or to act as urban police functionaries in the capital. During the Five Dynasties the role of these men continued to evolve. They were appointed to local areas, to prefectures, and even to districts, where they had charge of units of regular army troops. They began to deal less with outside incursions and the pacifying of disturbed areas and more with regular law enforcement, particularly including the enforcement of state monopoly policies. The patroling inspectors' activities may have contributed to the gradual weakening of the military commissioners' powers and the strengthening of the central government, but they also undercut the power of the regular local officials. Their flexibility was due in part to the fact that the office was not a regular post in the bureaucracy but, rather, a kind of commission. 12 11 Chang Shou, P'i-ling chi, 1.14. 12 For the early development of the office, see Habu Kenichi, "Godai no jun-ken shi ni tsuite" (On the patroling inspectors during the Five Dynasties), Toyogaku 29 (1965):
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The role of the military At the beginning of the Sung dynasty the officers bearing the title hsiinchien seem to have been major military commanders. 13 The hsiin-chien frequently participated in the campaigns that led to the unification of China under the Sung. 14 These relatively important military officers were often titled superior patroling inspectors (tu hsiin-chien), and at least early in the dynasty they often held important local offices concurrently, sometimes including the post of administrators of one of the prefectures under their military jurisdiction. 15 A superior patroling inspector might have ten thousand men under his command. 16 During the early decades of the dynasty, the lowest-ranking patroling inspectors were responsible for several districts, whereas the highest-ranking ones might have charge of as many as ten prefectures. 17 Over time the size of the jurisdictions of the lower-level patroling inspectors shrank while their numbers increased. By the late eleventh century the lower-level patroling inspectors, with perhaps one hundred regular army soldiers under their command, seem to have become merely military and rural counterparts of the sheriffs. Appointing patroling inspectors to small jurisdictions continued to be characteristic of the system during the Southern Sung. Documents from the early thirteenth century even note a superior patroling inspector with responsibility for an area containing only three hundred households (his post was abolished), and from this same era the sources refer to patroling inspectors subordinate to individual districts. 18 Despite occasional and temporary reversals, this trend toward increasing the number of patroling inspectors while reducing the size of their jurisdictions continued from the late tenth to at least the late eleventh
13 14 15 16 17 18
45-55. The term itself could be translated in various ways. I am following the lead of the Japanese scholars writing on the office in assuming that the word hsiin should be read to mean "patroling." See also Wu Chien-fan, "Sung-tai hsiin-wei liang-ssu chih" (The system of the two offices of sheriff and patroling inspector in the Sung Dynasty), in Fa-chih shih yen-chiu shih, comp., Chung-kuo ching-ch'a chih-tu chien-lun (Beijing: Ch'un-tsung ch'u-pan she, 1985), pp. 174-75. Patroling inspectors continued to be important under later dynasties. Under the Ming they were closely identified with economic controls, but because of their corrupt activities they were eventually displaced. See Kawakatsu Mamoru, "Myodai jin shi no shi saku to jun ken shi seido" (Market towns, watergates, and the system of patroling inspectors in the Ming Dynasty), Tqyogaku 74 (1988): 101-15. For a general description of the Northern Sung hsiin-chien see Habu Kenichi, "H0-S6 no jun ken to hoko ho" (Patroling inspectors of the Northern Sung and the pao-chia system), Shien 92 (1962): 165-75. See, for example, HCP 1.12a, 4.14b, 5.4b. HCP 7.11a, 10.10b, 12307.ioa-b. HCP 151.10b. For more on these high offices, see Sun Feng-chi, Chih-kuan fen-chi, SPTK ed., 3543a48b. SHY, chih-kuan 48.135b.
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century. Although early in the dynasty there had been calls for reducing the numbers of these men as one part of more general calls for cutting the total number of local officials,19 their numbers were gradually increased through the piecemeal creation of new posts and the addition of new personnel to old posts. 20 Then in 1058, a key order greatly expanded the number of patroling inspectors. In that year it was stipulated that each prefecture should have from three to five regular patroling inspectors, and each group of from three to five prefectures or up to eight or nine prefectures should have a (military) director in chief concurrently serving as a patroling inspector (tu t'ung hsiin-chien) or an inspecting general for seizing bandits (chu-po tsu-tsei).21 (The office of military director in chief was normally a concurrently held title that gave territorially defined civil officials control over the military forces in their jurisdictions. 22 ) The Sung authorities used a variety of policies to try to resolve the jurisdictional issues created by the simultaneous presence of both civil and military police officials in many regions in the late Northern and the Southern Sung. By this time the difference between the bureaucratic rank of the sheriffs and that of the low-level patroling inspectors had become negligible. In a report of 1083 t n e t w o offices are referred to together, using the abbreviation hsiin-wei, an expression that thereafter becomes more and more common in the sources. 23 Because they both were offices acting on the same level and concerned with the same task, the possibility of conflict was certainly present. However, in some districts this was not a problem because there were no patroling inspectors; in others the jurisdictional boundaries were drawn geographically, with the sheriff handling one part of the territory and the patroling inspector another. In the thirteenth century the divisions occasionally were functional, with the patroling inspectors handling smuggling, illegal salt dealing, and so on, and the sheriffs handling ordinary banditry. 24 Most commonly the sheriffs controlled the towns, and although both sorts of officers might work in rural areas the patroling inspectors seem to have been concerned especially with large-scale lawbreaking such as banditry and with security in the immediate environs of their headquarters. Thus, in most parts of the empire in districts where both officials were present, the sheriffs were more closely tied to maintaining 19 20 21 22 23 24
HCP 43.16b. See, for example, HGP 74.6a. HCP 183.13a; SHY, chih-kuan 4 8.i28a-b. See Hucker, Dictionary no. 4687. HCP 356.8b. HCP 129.5a, 139.7a, 141.13b.
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order in towns and markets, and the patroling inspectors were especially concerned with rural crime. This was, of course, only a general pattern. There were exceptions, since patroling inspectors were stationed with some regularity in market towns, and from the Southern Sung onward there are reports that both sheriffs and patroling inspectors were stationed in the towns. 25 For this system to work effectively, both offices had to cooperate to deal with serious problems. Here as elsewhere in the Sung government, there was concern about two quite opposite problems. First, the offices simply might not cooperate, with potentially disastrous results. 26 Second, they might cooperate all too well. The Sung authorities were always haunted by the dangers of collusion between officials. Thus, the sheriff and the patroling inspector were to cooperate in capturing bandits, but not to deal with each other for any other reasons. According to the bandit-capturing ordinances, "except when it is matter of cooperating to capture bandits, the patroling inspectors are not allowed to exchange documents with the sheriffs' offices."27 Although the general line of evolution is clear, there were occasional experiments with different systems in some areas of the empire. In the early 1080s, for example, an attempt was made to confine the sheriff's jurisdiction to the district town and the district's markets, with the patroling inspector having sole control over rural areas, at least in the region surrounding the capital, including Ho-pei Circuit directly north of Kaifeng.28 However, a few years later the new system was modified. An official pointed out that along the borders, where the sheriffs were chosen from military men, the situation differed from that in the interior of the empire. He asked that in such areas the older system under which the two offices shared responsibility in rural areas be revived, though the sheriffs were still not to participate in training troops. 29 By the late 1080s the policy of confining the sheriffs to the towns and markets seems to have been abandoned. Duties of patroling inspectors Patroling inspectors were to be principally concerned with the actual seizure of wrongdoers, especially bandits or military deserters. 30 They 25 26 27 28 29 30
See, for example, HCP 118.3a (1036); Hsueh Chi-hsuan, Lang-yu chi, 2 0 . 9 b - n a . HCP 52.15a (1000). TFSL 237. HCP 311.5a. HCP 324.13b; SHY, chih-kuan 4 8 . 6 ^ - ^ . HCP 12307.10b, 23.17b.
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thus did not under ordinary circumstances share the evidence-gathering, inquest-holding, and general detection functions of the sheriffs. A decree pertaining to the patroling inspector in 1006 reveals their general character: Two servitors are to be selected to serve as patroling inspectors at Chang-ch'eng k'ou. Each is to be given one hundred soldiers. They are to divide their jurisdiction into two circuits and patrol [them]. This was done because the people of the border often concealed forbidden goods or stole border-area horses.31 The inspectors thus were to be concerned with the kinds of organized crimes represented by the smuggling of illicit goods or, near the border, the stealing of horses.32 Also, their principal focus was on groups of criminals rather than on individuals. One report, from 1076, shows that the inspectors may have been called out mainly to deal with gangs, stating that when ten or more bandits were involved, the soldiers were to be dispatched. 33 This emphasis is consonant with the state's general position, that the amount of force to be used should be adjusted carefully to the dangerousness of the lawbreakers. The authorities wanted to limit the amount of discretion granted to those who controlled major amounts of force. Training of troops T h e training of troops to support the law-enforcement process raised again the dilemma of creating men skilled in the use of violence whose ethical commitments were in doubt. Such men were both necessary a n d dangerous. T h e authorities treated the commitment of troops to acceptable values as an accomplished fact, and they used military officers to train them in violence. In connection with their duty to seize bandits and other lawbreakers, the patroling inspectors also had to visit military and paramilitary units to train or oversee the training of troops, 3 4 including those in the pao-chia militia (though some patroling inspectors were said to be incompetent to do so). 3 5 This general duty to supervise the training of troops was the inspectors' from early in the dynasty. A decree of 1015 ordered that the "prefectural administrators who are concurrently patroling inspectors in border areas are to go monthly to the various army encampments to oversee training." 3 6 31 HCP 64.3a. 32 HCP 64.3a.
33 34 35 36
HCP 273.1 ia. HCP 84.12*3-1015. SHY, ping 2.24a. HCP 84.12b describes a border-patroling inspector who was promoted to be an
202
The role of the military Patroling inspectors were first and foremost law-enforcement officers. Indeed, they seem to have been more exclusively concerned with the police aspects of maintaining law and order than were their civil colleagues, the sheriffs. Still, like others on the lower levels of the bureaucratic system, the patroling inspectors could sometimes be multifunctional. This policy of using them for nonpolice duties both reduced government expenditures and diffused the authority of the patroling inspectors, by giving them duties in several areas. In addition to seizing wrongdoers, they might also under unusual circumstances be used as investigating agents. When expedient, patroling inspectors might be sent to investigate reports of corruption by local administrators, 37 to report on the extent of natural disasters, 38 to assess possible problems among refugees,39 or to study other local problems. 40
Interference in trial functions The problem of the delicate balance between giving such men so little power that they could not perform their legitimate functions effectively and giving them so much power that they could be abusive was reflected in their penchant for intervening in areas beyond their purview. At times during the early years of the dynasty, these patroling inspectors took the law into their own hands, interfering in trial processes and punishing criminals when not authorized to do so. In 965 the patroling inspectors of Szechuan and Shensi were ordered to stop interfering in legal cases in the prefectures and districts, 41 but such interference clearly continued. Orders dated 975 and 982 expressly forbid them from holding and interrogating suspects. 42 At about the same time patroling inspectors and supervisors of militia who had seized salt smugglers were forbidden to punish them summarily. Rather, they were to send the suspects to their superior jurisdiction for trial. 43 As late as 1014 we have an order
37 38 39 40 41 42
43
audience-attending usher, a position ranked as a servitor major, as a reward for having captured twenty-two bandits. WHTK 167.1448. HCP 155.2b (1074). HCP 92.14a. In one case, a police commissioner was sent to learn why certain gold mining operations were not profitable. SS 201.5018. HCP 6.15b. See also SHY, chih-kuan 48.122b (967). HCP 12307.10b, 23.17b. Interference of military officials in the trial process was not confined to patroling inspectors. A report from 972 accuses the headquarters of the inspectors general of the armies (Ma-pu yuan) - men supposedly charged only with maintaining discipline in the armies - of conducting trials in some prefectures. This was strictly forbidden. See HCP 12306.11b. HCP 8.3b.
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Law and order in Sung China
concerning the patroling inspectors in the capital regions, forbidding them from passing sentence on and punishing certain offenders in the city.44 This tendency to act in a high-handed way, however, was difficult to suppress. As late as 1032 a superior patroling inspector reported that he had, on his own authority, executed six recidivist bandits by slicing. His report prompted an order that in future such cases were to be memorialized first.45 Such complaints do not appear in the record from later reigns, but because our sources are fragmentary, it would be difficult to argue from this absence of evidence that the problem had disappeared. And like the other agents arresting suspects, the patroling inspectors are said to have abused their powers on occasion by seizing commoners in the process of seeking criminals. 46 The extent of their power over ordinary people is reflected in an incident recounted by the official Hsu Ching-heng: I have heard that a commoner named Chu Chin from the district of Hsiang-fu in the capital city was seized and dragged away forcefully by four soldiers from the Capital West patroling inspector's office led by Lui Hsi. They ordered him to join the army. Chu Chin was unwilling, and the four men indiscriminately beat him. Subsequently the patroling inspector, Chang Shih-ying, ordered that he be bound and questioned under flogging. When he had been beaten a hundred blows, he falsely confessed to having bought cloth from a bandit. He was then tattooed and registered in the army. Fortunately for Chu Chin, his wife had the courage to complain to the authorities of Hsiang-fu, who investigated and uncovered the whole story.47
Numbers of patroling inspectors During the period in which lower-level patroling inspectors were increasing in number and importance, the higher levels of the patroling inspector system seem to have become less important. Their duties were assumed by units dispatched from the regular army. The expanding role of the lower-level patroling inspectors reflects both a renewed importance of the military to law enforcement and a general increase in the number of law-enforcement personnel. Early in the Sung the most common pattern was to appoint one sheriff for each district, often apparently without his having a military colleague to share the burden of law 44 45 46 47
HCP 83.5b. HCP 111.19b. SHY, chih-kuan 48.126a (1020). Hsu Ching-heng, Heng-t'ang chi, SKCSCP 1975, 10.8b.
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The role of the military
enforcement. By the late Northern Sung, however, most districts had a military patroling inspector who acted in concert with the sheriff. This general trend toward increasing the number of functionaries in local areas who dealt with law enforcement seems to have accelerated during the Southern Sung. Occasional specific reports make this clear, as in the case of Ch'ang Prefecture in 1133, which for its four districts had twelve men serving as sheriffs or patroling inspectors. 48 About a century later Tu Fan (doctorate of letters degree 1208) described I-ch'eng District in Ching-hu South Circuit and Ning-kuo District in Chiang-nan Circuit as having three forts with attached patroling inspectors. (He suggested that two of the forts and their officials be replaced by two new sheriffs' posts.) 49 This situation was common in the Southern Sung. The 1228 gazetteer of Ming Prefecture, which controlled six districts mentions nine currently active patroling inspectors in the prefecture. 50 Thus, during the Sung there was both a militarization and an intensification of lawenforcement patterns. Location and character Although there were complaints of patroling inspectors being housed in inadequate facilities, including temples, most of them were supposed to have been stationed at forts (chat) located at strategic points in the rural areas. 51 These forts seem to have been small walled enclosures, inhabited by soldiers and some local people. Forts were also established at the market towns (chen), which had originated as local garrisons in the T'ang and Five Dynasties period but by the Sung had become primarily market centers. 52 Gazetteers sometimes give us some idea of the number of such forts in an area and the size of their garrisons. In 1268 in Ch'ang-shou District 48 49 50 51
SHY, chih-kuan 48.70a. Tu Fan, Ch'ing-hsien chi, 8.19b-20b. Lo Chun, Pao-chHng Ssu-ming chih, SYTFGTS ed., 5111. Chu Hsi, Chu wen-kung wen-chi, 20.11b; SHY, chih-kuan 48, 133a, 134b, 135b. For the complaints, see, for example, Fu Ch'a, Chung-su chi, SKCSCP ed., 6.74-75. Unfortunately I have not found descriptions of the construction and cost of building these forts. But an interesting recent article does describe their economic importance as well as their security functions. See Huang Kuan-chung, "Nan-Sung shih-tai Yungchou te Heng-shan chai" (Heng-shan fort in Yung Prefecture during the Southern Sung), Han-hsuehyen-chiu 3 (1985): 507-34. 52 As befitted a unit that was primarily of economic importance, such market towns (and their forts) were sometimes headed by low-level officials called service agents, who were responsible not only for the collection of taxes, their normal duty, but also for patrolling their area to control bandits. One source even indicates that such men could administer punishments of beatings with the heavy rod or less. WHTK 63.574. See also SHY, chih-kuan 48.92b.
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Law and order in Sung China
in Liang-che Circuit, there were four forts. O n e , located outside the district town on the river bank by the Watergate, housed 150 soldiers. A second, about thirty miles south of the subprefectural town at a strategic mountain, held 175 men, and the third, about twenty miles south of the district town on a waterway, had 195 men. T h e fourth, about sixteen miles north of the town on the Great Lake, had 185 men. 5 3 From these forts the patroling inspectors, like their civilian counterparts the sheriffs, conducted regular patrols of their jurisdictions. Because they were intended to be rural officers, they were not supposed to visit the district or prefectural towns except on business. And when they did visit the towns, they were supposed to return to their own posts within two days. 5 4 T h e higher-level patroling inspectors, who had jurisdiction over a n u m b e r of districts, were also expected to visit the areas under their control. O n e official in 1029 a sked that they visit each district but not be allowed to stay in any one for more than a few days. T h e districts visited were to report to their superior prefecture on the progress of the tour. 5 5 These higher-level patroling inspectors were also required to patrol the northern borders. 5 6 Sometimes patroling inspectors' titles indicated their roles. O n e common title means literally the "patroling inspectors who control the borders." 5 7 They were also often helped maintain security along the waterways which were the principal highways for the transport of goods and people in many regions of China. A document from the late 1020s gives some idea of their role and distribution, suggesting that a patroling inspector be established every two courier posts along the Pien Canal from the capital at Kaifeng to Ssu Prefecture, a reflection of the vital importance of this waterway as the supplier of resources from the southeast. 5 8 In some areas, because of particular local problems, patroling inspectors were not stationed in the countryside. In 1019, the seaside patroling inspector in K u a n g Prefecture in K u a n g - n a n East Circuit was shifted to a spot near the office of the commissioner of overseas trade (shih-po ssu) to serve as a guard for the traveling merchants who congregated there, 5 9 and as we noted, the patroling inspectors were sometimes stationed at 53 Shih Neng-chih, Hsien-ch'un p'i-ling chih, SYTFCTS ed., 3560. 54 If they disobeyed this rule, they were liable for one hundred blows of the heavy rod; see TFSL 92-93.
55 56 57 58 59
SHY, chih-kuan 48.126b-127a. SHY, chih-kuan 48.127b (1043). HCP 243.10a. SHY, chih-kuan 48.126b. HCP 94.6b.
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The role of the military
garrison towns {chert) where they appear to have had general administrative responsibilities, including management of tax collection stations. 60 Finally, the 1268 gazetteer of Ch'ang Prefecture in Liang-che Circuit mentions a border fort located on the river "outside the western watergate" of the prefectural town, which housed a patroling inspector and his men. 61 Some writers give the impression that patroling inspectors were shifted to the towns because officials ignored government policy. In 1182 the official Yang Wan-li wrote: The prefectures of the empire are supposed to have patroling inspectors in outer forts, to control wild forests or to guard strategic places. This was to be a regular preparation for catching bandits. Nowadays it is not really so. In name there are outer forts, but in fact the officers and soldiers live in the towns.. . . Formerly I served as the judicial intendant in Kwangtung. At one point, because bandits had passed by the outer forts in Hui Prefecture, I investigated. The patroling inspectors' headquarters had become a field of rubbish. I inspected the soldiers' quarters. They were in ruins. I asked about the officers and men and learned that they all lived in the town. If the bandits live in the forests and mountains, and the officers and men live in the walled towns, the bandits will have nothing to fear.62 The number and variety of these positions in local areas are revealed in a report in the gazetteer of Ming Prefecture in Liang-che Circuit from the year 1228, which lists border or valley superior patroling inspectors, tribal or Chinese superior patroling inspectors, border patroling inspectors for a group of prefectures or a group of districts, and border patroling inspectors for single prefectures or districts. There were also knife-fish boat assault patroling inspectors. In all, in this prefecture, there were nine patroling inspectors, having under their command a total of about 900 men. 63 Appointment process We have far less information on the backgrounds of these patroling inspectors than we have for their civil service counterparts, the sheriffs. We do know that after 1007 the servitors (shih-ch'en) appointed as patroling inspectors or as supervisors of militia (chien-ya) were expected to go to the Bureau of Military Affairs to be examined. 64 They might also be 60 61 62 63
HCP 401.1a. Shih Neng-chih, Hsien-ch'un p'i-ling chih, 3560. Yang Wan-li, Ch'eng-chai chi, SPTK ed., 6g.8a-9a. L o Chun, Pao-ch'ing Ssu-ming chih, 5111. See also W a n g I-chih, Chih-yuan ts'o-yao, H s u Chin-hua ts'ung-shu ed., 59. 64 HCP 66.20a.
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Law and order in Sung China
subjected to physical examinations while on duty, perhaps because the higher authorities were concerned that some might be elderly or otherwise not physically capable of doing their jobs. 65 The Bureau of Military Affairs also participated in selecting some of the patroling inspectors, many of whom were drawn from among the ranks of the servitors minor (hsiao shih-ch'en), that is, low-ranking functionaries with credentials in the military hierarchy. 66 In name, the servitors were military officials, but recent research by Winston Lo has demonstrated that in fact many of these men had no connection with the military. 67 They were, for the most part, men without military connections who were entering the government through the use of the "protection" (yin) privilege (a Sung civil service practice that permitted officials of certain ranks to secure official rank for their assignees). Many of these men served in such lowly positions as service agents in charge of tax collection depots, though in the very early Sung they were also appointed to a variety of local posts. 68 However, servitors' backgrounds were indicated by a series of appellations that gave some indication of their qualifications. Those used as patroling inspectors are usually referred to as "militarily talented," and so they presumably were from that part of the servitor group whose members had some military connection. There was some concern that such men possess at least minimal literacy, and so the group of servitors, from which many patroling inspectors were drawn, was subject, from at least the middle 1040s, to a test of literacy, requiring the reading of the statutes and the writing of a family register.69 Again the authorities, ever sensitive to the predicament of the late T'ang when military men became dominant in local areas, tried to ensure that at least the rudiments of wen would characterize men chosen primarily for their commitment to wu. Of course, mere literacy did not necessarily mean that these men had been much affected by the civil culture of Sung times, but it did at least enhance the possibility that they might be touched by civil values. Ideally, the authorities looked to men with military officer's credentials for candidates. In 1014 when four patroling inspectors were appointed for the capital area, they were chosen from among the attend65 HCP 305.13a. 66 SHY, chih-kuan 48.67b. 67 Winston Lo, "A New Perspective on the Sung Civil Service," Journal of Asian History 17 (1982): 121-35. 68 On the Northern Sung shih-ch'en, see Koiwai Hiromitsu, "H0-S6 no shi shin ni tsuite," (On the shih-ch'en in the Northern Sung), Shukan toyogaku, October 1982, pp. 34-54. 69 HCP 156.7b.
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The role of the military
ant servitors (ch'i-pan shih-ch'en).70 In 1034 the Bureau of Lesser Military Assignments (san pan yuan) reported that " u n d e r the old system, the servitors minor who had served as service agents [chien-tang] for one term of office [jen] [probably for three years] could be appointed as patroling inspectors or supervisors of militia [chien-ya]." This agency asked that a second term as a service agent in nearby territories be added to the requirements. 7 1 Thirty years later it was the rule that servitors serving as service agents could be chosen as patroling inspectors if they had served in posts "close to the people," had bandit-capturing abilities, and had records that included only minor misdemeanors. 7 2 T h e state did try to find suitable candidates, specifying various criteria to indicate desirable qualifications and undesirable groups. Reports list the types of positions and bureaucratic levels required of candidates for different sorts of patroling inspectors. 7 3 As with many civil posts, one common method of identifying promising men was to ask the local circuit intendants to recommend candidates for such positions. An order of 1043 called on the fiscal and judicial intendants and the prefectural administrators to recommend militarily talented infantry and cavalry directors in chief (ma-pu tu chien) or servitors minor (low-level military-hierarchy officials) serving as taxing depot chiefs. 74 It was also in the power of these intendants to dispatch men to serve provisionally in vacant local posts, including that of patroling inspector. In times of troubles like the 1040s, intendants were frequently granted permission to appoint patroling inspectors (and sheriffs) without prior consultation with the Court. 7 5 Although the state wanted the best, it often took what it could get, 70 HCP 83.7a.
71 HCP 114.17a. 72 SHY, chih-kuan 48.129a. 73 See SHY, chih-kuan 48.129b-130a, which says that the state uses men with the rank of Court audience-attending usher (ko-men chih-hou, R8B) to serve as superior patroling inspectors, commissioned patroling inspectors, or (regular) patroling inspectors. Court audience-attending ushers ranked as servitors major. These officers had charge of from two to ten prefectures, as well as border forts or forts in strategically important spots. They took their titles from the names of the places where they were located. There were also jointly serving superior patroling inspectors. If they ranked from functionaries at the disposal of the emperor or below, they were not called commissioners. Near the borders there were also those called patroling inspector commissioners who had control over from one to nine prefectures or at times were distributed according to routes and not by territories. There were also joint patroling inspector commissioners. When they were palace attendants, they were not called commissioners. Areas with from two to seven districts or, in Kaifeng, each district, could have a patroling inspector. Groups of two or three districts could have a Chu-po patroling inspectors imperial trooppatroling inspector. 74 SHY, chih-kuan 48.i27a-b. 75 See, for example, HCP I43.i9a-22a.
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Law and order in Sung China
including men with dubious qualifications. As with the post of sheriff, the Court also preferred not to use men who had a prior history of legal violations. In 1043, f°r example, the Court approved a suggestion that circuit intendants not be allowed to send to local posts, including that of patroling inspector, men who had previously been demoted to serve as service agents. 76 As Ts'ai K'an (d. after 1195) remarked, "Patroling inspectors are servictors who have been weeded out of the army." 77 An order of 1211, in regard to having local administrators weed out old and infirm patroling inspectors, also says in closing that in the future, men qualified through imperial grace, men without military abilities, and men who entered state service as clerks or miscellaneous officials were not to be appointed, thereby indicating that such men had already been serving as patroling inspectors. 78 Nor was this problem confined to the Southern Sung. One official, writing in 1006, recommended the use of "militarily inclined vigorous and intelligent men," not those from clerical backgrounds or with civil credentials. 79 A few years later a decree ordered the Bureau of Lesser Military Assignments to select servitors to be prefectural superior patroling inspectors, because "prior to this time [the state] has often used men [for these posts] who entered office through protection [yin] and who had no recorded experience in administration." 80 Later in the eleventh century the Court approved the use of graduates of the military examinations, students in the military college, and men who had been awarded official qualifications for having submitted military plans. 81 About a century later there was apparently a policy that military graduates be appointed patroling inspectors in border areas. 82 The general trend seems to have been to raise the level of the candidates' formal qualifications, though there were exceptions. Occasionally men might even jump from the ranks of noncommissioned officers to the post of patroling inspector. 83 And in the middle of the eleventh century the post of patroling inspector was also used as a title for tribal leaders working for the Chinese. 84 The Sung authorities were fully aware of the potential dangers created 76 77 78 79 80 81 82 83
HCP 142.1a. Ts'ai K'an, Ting-chai chi, 1.21a. SHY, chih-kuan 48.135a. HCP 63.4b. HCP 77.7b. HCP 328.14b. HNYL, 181.3005. See the example of the Kuang Prefecture noncommissioned officer of the prison citadel command, who was appointed because of his merit in capturing bandits; HCP 302.5a. 84 HCP 152.1 ia, 156.2a.
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The role of the military
by using such men as police officials. Military men had been trained to accept a set of values that stressed the use of violence to achieve goals and at times had only the most tenuous commitment to the values embodied in the civil bureaucracy. We cannot understand the functioning of the Sung government without recognizing that a concern about controlling the military shaped many government policies. The feeling that military men might be dangerous to civilian control was certainly one factor in promoting the conscious and regular policy of using civil officials concurrently in military posts. As early as 971 two men who had served as district magistrates were appointed as patroling inspectors in the capital area. 85 And later in that same year, in a development related to the government's policy of reducing the role of the military, the prefectural cavalry and infantry offices were transformed into public order offices (ssu-k'ouyiian), which were to be staffed by new graduates of the doctorate of letters examination. 86 There are numerous examples of prefects' serving concurrently as patroling inspectors or superior patroling inspectors, particularly in sensitive regions such as the Hotung border north of the capital. 87 The problem of staffing this post highlights the tension in the paradigm of law enforcement. It is necessary to get to the appropriate spot those capable of exerting sufficient force, but at the same time such men must be properly motivated, not just to do an efficient job of destroying the enemy, but also to observe the civilian values on which the government rested. It was probably for this reason that promotions from the post of sheriff were common. As a civil official, the sheriff presumably had been more thoroughly socialized into elite civil values. If such men also had proven military abilities, then they would be ideal for the role of patroling inspector. In 1041 a sheriff who had captured a military bandit and been wounded in the process was promoted first to be a patroling inspector and then, when officials objected that this was too trifling a promotion for his merit, to the post of superior patroling inspector (tu hsiin chien)88 In 1079 another man was promoted from sheriff to patroling inspector because of his merit in capturing bandits. 89 In Kaifeng, where the post was of considerable importance, we find examples of men appointed after having served as district magistrates. 90 As with other Sung offices there seems to have been a set of policies that ranked candidates from 85 86 87 88 89 90
HCP HCP HCP HCP HCP HCP
12306.17b. 12306.18b. 82.i8a-b, 4O2.i4b-i6a (1087). i32.28a-b. 299.19b-20a. 12306.17b.
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Law and order in Sung China
various groups when filling positions. In an incident in 1187 t n e authorities approved the request of an official that all patroling inspectors serving along the coasts be either graduates of the military examinations or men who had entered the service as a result of military merit. They were to be no older than fifty years of age and to have recognized military capabilities. The Ministry of Personnel was to select the candidates, filling the vacancies first with men who had already had experience in sea warfare, second with graduates of the military examinations, and after that with men qualified under the then-current rules. 91 Terms of office The patroling inspectors themselves served for limited terms. The general practice, as exemplified by the patroling inspectors, supervisors of militia (chien-ya), inspectors general for seizing bandits (chu-po tsu-tsei), and service agent servitors (chien-tang shih-ch'en) of Szechuan, Shensi, and Kwangtung, was to appoint officers for two-year tours of duty, though they might be reappointed for a second or even a third term to the same post. 92 In particularly unhealthy areas they might serve shorter terms. Until 1090 in part of Yung Prefecture in Kuang-nan West Circuit, which was an especially unhealthy area, they were rotated every six months. In that year an official complained about the high death rate and successfully petitioned that they be sent to different locations each quarter. 93 Motivation The authorities also sought to create a system of incentives to maintain morale. On the most basic level they had to provide some regular system of support for their functionaries. Beyond that, in typical traditional Chinese fashion, they created a system of rewards for successful performance but then coupled this with a set of penalties for failures. The problem of attracting competent personnel was made more difficult by the low rate of pay. One report from the middle of the eleventh century says that the men were paid five strings per month, as opposed to the seven strings per month that had been paid to the recorders and sheriffs in the smallest districts more than two decades earlier. 94 Patroling 91 SHY, chih-kuan 48.133a. Men from "outside the stream" - that is, men who were not considered to be part of the regular structured civil service - were not to be appointed. 92 See HCP 94.1 ia for the Northern Sung, and SHY, chih-kuan 48.133b, for the Southern Sung. For added tours of duty, see SHY, chih-kuan 48.133b. 93 HCP 408.12a. 94 HCP 102.8b, 175.6a.
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The role of the military
inspectors probably received some income in kind, but still they were not paid well. The archers, mere constables who worked for the sheriffs, were paid at half the rate of patroling inspectors, earning two and a half strings per month. Thus it is hardly surprising that as with many of the other lesser offices in the Sung, the authorities sometimes had difficulty filling some of these bandit-controlling military posts. An official in 1185 complained about the long-unfilled posts, not only of patroling inspectors, but also of inspectors general for seizing bandits {chu-po tsu-tsei).95 The state faced a serious problem in trying to motivate officials to act effectively. The problem of incentives was especially delicate where lawenforcement personnel were involved. Such agents controlled by superior force. If they did not use it well, the state would be at risk. And if they overused it, the state also would be at risk. The first possibility is described laconically in a report of 1043 which states that "many patroling inspectors are military officers who are unwilling to capture bandits." 96 The root of the problem, as analyzed by a number of midcentury critics, was a failure in the system of rewards and sanctions. As Yii Ching pointed out, failure to pursue bandits was punished only with a fine, whereas actually pursuing them might get the official killed.97 The state responded to this by advancing the patroling inspectors' rank when they did capture bandits. 98 The government also regularly gave awards to the families of police officials who were killed in the line of duty. 99 During both the Northern and the Southern Sung, the state tried to tie rewards directly to the successful performance of duties. An order of 1024 stated that patroling inspectors and bandit-catching servitors minor who captured a whole gang of bandits or other evildoers should be granted commendations; 100 a complaint of 1185 pertaining to the saltproducing areas in Liang-che Circuit asked that rewards and advancement be tied to performance, by examining the salt quotas to determine whether or not they had been filled.101 The state also established negative sanctions, punishing unsuccessful patroling inspectors in a variety of ways. Like other police agents, they might be fined for not capturing wanted men. Moreover, fines were not the only penalties to which they were subject. Failure could also affect 95 SHY, chih-kuan 48.132b-133a. This document refers to conditions on the Szechuan border. 96 HCP 141.14b—15a, 142.23a—b. 97 Yii Ghing, Wu-ch'i chi, shang. 8b-9a. 98 See, for example, HCP 166.17a. 99 Compare examples from 1044 a n d IQ 6i of appointing their sons to official rank; HCP 146.20b, 192.1b, 293.7b. 100 SHY, ping u . i o a - u a . 101 SHY, chih-kuan 48.132b.
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Law and order in Sung China
their future careers. An order of 1024 s a ^ that "if they do not apply themselves and, as a result, bandits injure the people or if they make few arrests relative to those of other jurisdictions, they are to be severely sanctioned in accordance with the current regulations." 102 An order of 1033, for example, indicates that patroling inspectors who had three or more uncaptured gangs in their jurisdiction could be demoted to the post of service agent. 103 This was no empty threat. In a case from 1059 a patroling inspector was disenrolled and sentenced to the penalty called registered control, in which the convict performed penal labor for a fixed period while being registered in and controlled by a unit of the provincial armies, for having failed to attack a salt smuggler.104 Failure to report bandits could also be punished. Both sheriffs and patroling inspectors might be subject to a penalty equivalent to two years of penal servitude for such a failure. Under some circumstances this penalty might not be reduced through grants of imperial grace. 105 If bandits entered the towns, the patroling inspectors, along with the other local officials, were subject to penalties. 106 Failure to perform adequately was usually blamed on incompetence. There are repeated orders throughout the dynasty for inspections of patroling inspectors (and sheriffs) and the replacement of the unfit, even if they had not yet committed any infractions of the rules or failed in their duties. 107 In 1149, when the emperor was concerned about the failure of the authorities in Fukien to suppress piracy, he traced the difficulty to incompetent or incapable police officials and ordered the circuit intendants to investigate and replace the unfit.108 Sometimes the officials failed to perform, not because of incompetence, but because of corruption. The temptation to extort money must have been severe; those who were caught were usually treated very harshly. In 1006 a patroling inspector who had accepted a bribe from the father of an arrested bandit was beheaded. The punishment for his crime would normally have been strangulation; it was made more severe by special imperial order. 109 Inspectors might also have the statutory penalties reduced. In 1069 a patroling inspector, who had been sentenced to death for having 102 103 104 105 106 107 108
SHY, ping n . i o a - u a . HCP 113.12b. HGP 190.17a. HCP 494.29a, 129.3b. HCP 12400.24a (1042). See also HCP 113.12b. HCP 27i.i4a-io8o, 365.^-1086. SHY, chih-kuan 48.73a. See also a similar complaint in 1135; HNYL 84.1383, SHY, chih-kuan 48.71a. 109 HCP 64.1a.
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The role of the military accepted bribes, was spared execution and sent for registration to Sramana Island, the Northern Sung maximum-security location off the north coast of the Shantung peninsula. This particular incident was well known, because the patroling inspector in question had originally been sentenced to be beaten, tattooed, and then sent for registration. An official complained that it was shameful for a member of the government to be beaten and tattooed. As a result of this complaint, "from this time on active officials were to be spared the beating and tattooing," 110 though in fact officials were occasionally still punished in this way. 111 Later career paths The later career paths of these patroling inspectors frequently led to other law-enforcement positions, though they might first have served a number of two-year terms in a patroling inspector slot. 112 An order of 1020 indicated that the supervisors of militia {chien-yd) or patroling inspectors from distant border areas who ranked as palace auxiliaries (tien-chih) or lower (that is, in the bottom rank of the nine-grade civil service) and who had law-enforcement experience might be rotated for a term of duty as inspectors general for the seizing of bandits (chu-po tsutsei) in the inner parts of the empire. After finishing their tours they were to be returned to their "distant" territories. 113 In rare cases patroling inspectors could hope for appointments to the capital where they might have opportunities for further advancement. A report from 1049 records the case of a patroling inspector who was promoted to the rank of court audience attendant usher (ko-men chih-hou) because he had captured twenty-two bandits. 114 This position, although it was not a high one, was greatly coveted, in part because its incumbents took part in ceremonies at Court audiences and thus had good access to high Court officials.115 Other military As a matter of general policy, the Sung government did not confine the performance of any major duty to a single office, though there might be one official especially concerned with it. The role of the military in law enforcement reflects this penchant for balancing offices against one 110 111 112 113 114 115
SS 201.5018. See, for example, SS 200.4998 (1075). SHY, chih-kuan 48.133b. HCP 95.17a. HCP 122.17a. Lo, An Introduction, p. 67.
215
Law and order in Sung China
another. Patroling inspectors were clearly the most important military officials charged with the daily task of law enforcement, but many other military officials were also involved at various times. Prefectural directors in chief (tu-chien), a post sometimes filled by the men in the lower ranks of the military hierarchy who were called servitors major and minor, had charge of the training and dispatching of their town's contingent of military garrison soldiers. These officers could serve concurrently as patroling inspectors but did not always do so. Those with qualifications too low for appointment as patroling inspectors often served concurrently as service agents. As with the post of patroling inspector, civil officials were sometimes used for this post of prefectural director in chief, at least during the early years of the dynasty. 116 Other sorts of military men were also used in law enforcement. In 1027 t n e central government established an envoy for capturing bandits for every two post stations along the imperial canal, with a support force of seventy soldiers, 117 and in 1052 a supervisor of bandit capturing (t'ichu tsu-tsei) was established for the two prefectures of Kuang and Hui in Kuang-nan East Circuit. 118 Lower-level officials in the military hierarchy were also used in the early years of the dynasty, 119 and under a decree of 1012, in Kuang Prefecture, the military administrator (ch'ienhsia) was concurrently the overseer of security and bandit control within the city. 120 Finally, the desire to avoid an overconcentration of responsibility prompted the government to assign to civil administrators in many areas the concurrent responsibility for mobilizing troops to guard against bandits. Indeed, we cannot understand how the Sung government functioned without remembering that the central authorities, while understanding the importance of distinguishing between military and civil, blurred this distinction. They used civil officials in military roles in order to control the military system. 121 The problems that faced the Chinese a millennium ago in their attempts to use the regular military against bandits have a haunting familiarity in our age of guerrilla warfare. The Southern Sung official Chao Shan-k'uo, criticizing the use of regular troops against bandits in central China, listed their weaknesses. Regular troops, he said, would work only according to regular procedures. They were incapable of 116 117 118 119
Wang I-chih, Chih-kuan fen-chih, SHY, chih-kuan 48.126b. HCP 172.8b. HCP 52.1 ib 12a mentions a servitor in 1002 who was assigned a group of soldiers and the duty of patroling in the capital. 120 HCP 79.7a. 121 HCP 144.2b.
216
The role of the military
striking swiftly and stealthily, whereas the bandits, masters of their terrain, could come and go quickly. The soldiers in central China were demoralized by the unhealthy conditions and by the knowledge that even if they succeeded, they would be rewarded less than would those who fought in supposedly more difficult places such as the northern and western frontiers. And if they failed, they would be heavily penalized. Because the locally powerful people fortified their homes, the bandits left them alone and paid for what they needed. The soldiers, by contrast, abused their power, confiscating and seizing what they wanted. As a result the local people were sympathetic to the bandits; no one sided with the government. Thus the bandits knew all the movements of the government troops. Chao summed up his assessment: You cannot swat at ox flies and expect to kill lice. To this classic guerrilla situation he proposed a classic answer: Arm the local people, and build small scattered forts so that they could protect themselves. Offer ample rewards and military commissions to local fighters.122 Most of our reports on the workings of this military side of the lawenforcement process are based on dry official documents. Occasionally we have an opportunity to see the men themselves in action. In the Northern Sung a man named Sang Shih was appointed the patroling inspector in Yung-an District, which was at that time plagued by a gang of twenty-three bandits that had arisen in the wake of a plague of locusts and a drought. Shih was summoned to the capital by the Bureau of Military Affairs and given responsibility for the bandits. He said, "The bandits are afraid of me and will disperse. If they disperse, they will be difficult to seize. We should first announce my coming in order to frighten them." When he arrived at the post, he closed the palisade around the fort. He warned the officers that no one was to be allowed to leave the fort without authorization. Thus they remained for several days. His subordinates did not understand what was going on. Several asked to be allowed to go out and investigate, but this was not permitted. At night, with several soldiers dressed like bandits, Shih visited the bandits' former haunts. They entered people's homes and found that both old and young had left. There was only one old woman left behind to prepare food, as if there were to be a gathering of bandits. Shih went back and again shut the gate for three days. Again he went out, personally carrying utensils to the cook and gave the old woman a gift. The woman thought he really was a bandit. Then he spoke with her and mentioned the bandits. She said, "When they heard that Master Shih had arrived, they all went away. Recently they have heard that he has shut up the fort and will not come out, so they know he is not to be feared. Now all are returning, so-and-so to such-and-such a place, and so-and-so to such-and-such 122 Chao Shan-k'uo, Ying-chai tsa-chu, i.i8a-2ob. 217
Law and order in Sung China
another place." Shih again in three days went out with a handsome present for her. Then he spoke truly saying, "I am Master Shih. Investigate the truth for me. Do not let my secret out. In three days I will come again." Three days later he came again. The old woman had all the facts of the bandits' locations to tell him. The next day Shih divided his troops and seized all the bandits, including the most violent. Shih himself mounted his horse and captured them.123
Soldiers subordinate to the patroling inspectors The military side of law enforcement also needed sizable numbers of men to enforce the law. As the key local officers, the patroling inspectors were assisted by a body of cavalry and infantry soldiers (or, where appropriate, sailors). Not enough work has been done to allow us to describe exactly the backgrounds of Sung soldiers, though it is clear that some of them began as criminals. We can surmise that most of them were probably drawn from the same social strata from which the civilian archers came. The soldiers serving under patroling inspectors were often men from the regular imperial armies (chin-ping),124 though some might be "local soldiers" (t'u-ping) or a mixture of both sorts of troops. Patroling inspectors might also use non-Chinese tribesmen, in accordance with tribal law, under appropriate circumstances. 125 They were, on the other hand, specifically forbidden by an order dated 1019 to use criminals registered in the army as agents to try to catch bandits, an order that indicates that criminals actually were being used in this way. 126 The regular army troops sent to serve under patroling inspectors had received regular military training, which was presumed to be adequate in most regions. However, parts of China south of the Yangtze River were crisscrossed by canals and rivers and heavily dependent on water transportation, with a concomitant problem of piracy. For this reason, when appropriate, the soldiers serving under a patroling inspector might be given naval training. Under an order of 1015 the soldiers in Chiangnan and Liang-che who were serving under inspectors general (chu-po) or patroling inspectors were given training in fighting from boats, without which they could not succeed in capturing the local bandits. 127 In a report from the early 1050s, Ts'ai Hsiang stated that in the past the coastal cities in Fukien had had garrison forts to guard the inlets that led 123 124 125 126 127
CYKC 49 (in Beijing 1981 ed.). See, for example, HCP 83.7a. HCP 280.12a 1077. SHY, chih-kuan 48.126a (1019). HCP 84.17b.
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The role of the military
to them but that their troops had gradually been cut back during the time of peace. Those troops currently stationed at such places did not have naval training, and so when they encountered salt or tea smugglers they were often defeated. He asked that the troops be given appropriate training and arms and that the coastal patroling inspectors go to sea during the trading season in order to protect merchant vessels.128 In other cases the patroling inspector might be assisted by sailors rather than soldiers, as was the case in 1061 when a patroling inspector was established at a district in Kuang Prefecture in Kuang-nan East Circuit, supported by two hundred sailors. 129 Local soldiers When "local soldiers," that is, soldiers drawn from the local residents, first were used, it was assumed that they would be particularly effective in suppressing bandits, their familiarity with the area more than offsetting any inadequacies in their military training. Regular soldiers, although perhaps technically better trained, were at a disadvantage, because they were usually serving in unfamiliar areas. To some extent this was true. In 1080 an official from the southeast complained that many of the regular army troops being rotated in for service were from the northwest and so were unfamiliar with the southeast. Indeed, you dispatch such men for a year. They develop some slight familiarity with the roads, hills, waters, and people, and then they are compelled to rotate out. If they go to the seaside, they are not familiar with it. For these reasons they are unable to defeat their opponents when they meet them. I ask in the selection of local soldiers you order that one-half [of a unit's complement] be veterans from the provincial and imperial armies who are willing to fill out the number so that the new and the old can instruct each other.130 His suggestion may not have been immediately accepted. However, by the late 1080s, at the request of the Bureau of Military Affairs, it was specified that one-half the soldiers under a patroling inspector be men dispatched from the regular imperial army. 131 The bureau was concerned not about the incapacity of the local soldiers but about their tendency to become involved in the local community and thereafter to collude in breaking the law. 132 This half-and-half order seems to have been enforced. We have a slightly later approved request that when this 128 129 130 131 132
Ts'ai Hsiang, Tuan-ming chih, 21.10b-na. HCP 12428.12a. Lo Chun, Pao-ch'ing ssu-ming chih, p. 5155. HCP 395.20b. HCP 395.20b.
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Law and order in Sung China
new system required a reduction in the number of local soldiers, this cut was to be taken wholly from those who were in the infantry, with no cuts in the number of mounted troops. 133 There were problems associated with both local and regular army soldiers. Soldiers were trained to be violent and not necessarily to behave ethically. At times, they actively cooperated with robbers or became robbers themselves.134 Or else they might simply be disinterested in their work. Many of the imperial soldiers sent for such duty are said to have been looking forward to the day when they would be rotated out. 135 Local soldiers, by contrast, were sometimes said to be incapable. One official reported in 1083 that on a tour of local areas, he had found many local soldiers to be old and weak. Not even 30 to 40 percent of them were capable of fighting bandits. Many in fact were not even local men. 136 In any event, critics still charged that neither local soldiers (t'u-ping) nor imperial troops (chin-ping) were as effective as archers, because the archers, as locally recruited village officers, were themselves villagers. As a result the sheriffs' police work was said to be more effective than that of the patroling inspectors.137 Even this bad situation became worse. Writing about a century later, Chu Hsi remarked that in Tu-ch'ang District (in Chiang-nan East Circuit) the fort troops merely protected the town and did not go out to patrol the countryside.138 Numbers There are various figures for the numbers of such troops. In 1006, when two new patroling inspectors were established in a border area, they were assigned 100 soldiers each. 139 This figure probably is fairly representative. It appears again in a report from 1084,140 and in 1099 when new supervisors of militia (chien-ya) and patroling inspectors were being established at Ning-chai City, they were each given 100 troops.141 In the 133 134 135 136 137 138 139 140
HCP 4O2.5b-6a. Tu Fan, Ch'ing-hsien chi, 8.19b-20b. Lo Chun, Pao-ch'ing ssu-ming chih, p. 5515. HCP 340.15b. Su Ch'e, Luan-ch'eng chi, 35.2b. Chu Hsi, Chu wen-kung wen-chi, 20.11b-14a. HCP 64.3a. HCP 343.3b. During the Hsi-ning period, an official assessing local troop needs in Huai-nan and Liang-che reported on eighteen police commissioner jurisdictions, with a quota of 1613 men, that is, an average of about 90 men. Lo Chiin, Pao-ch'ing ssu-ming chih, p. 5155. 141 HCP 516.9b.
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The role of the military Table 6.1. Numbers of soldiers in selected districts Date 1196
Place Su Prefecture
Numbers
Source
705 (in four forts)
Sun Ying-shih, Ch'in-ch'uan chih 2660 Ch'en ch'i-ch'ing, Chia-ting ch'ih-
Ch'ang-shou 1221
1228
T'ai Prefecture
Hsien-chu Ning-hai Huang-yen Ming Prefecture
Cheng Chu-t'ai Tz'u-ch'i Ting-hai Ch'ang-kuo
40 484 (in four forts) 124 200 (in one fort) 118 (in two forts) 73 (originally 90) 320 (in two forts) 643 (in two forts)
ch'engchik 7206 ff. Lo C h u n , Pao-ch}ing Ssu-ming chih
5297 5274 5298 5320 5336
following century Chu Hsi reported on a patroling inspector who had 106 local troops. 1 4 2 T h e size of this complement may have been determined largely by the level of disorder and the strategic importance of an area; it also may have been influenced by a desire to maintain a balance between the number of soldiers engaged in law enforcement and the number of civilian constables. According to one report, the number of local soldiers in one circuit was about the same as the number of archers there. 1 4 3 T h e regular complement could be increased if the patroling inspector in question reported a large number of bandits and requested more men and if his report were verified by the appropriate pacification commissioner (an-fu shih)144 (see Table 6.i). In addition to their service under the patroling inspectors, local soldiers also helped in law enforcement by their presence in small numbers at the innumerable post stations that dotted the Chinese landscape. A report from the beginning of the thirteenth century suggests that such post stations were staffed by from three to ten soldiers each. 1 4 5 142 Chu Hsi, Chu wen-kung wen-chi, 19.42a. See also, from 1196, a report that Ch'ang-shou District had three patroling inspector forts, each with 144 soldiers and a report that the Ling-san patroling inspector had a quota of 100 men in 1084. Sun Ying-shih, Ch'in-ch'uan chih, p. 2660; HCP 343.3b. 143 Ts'ai K'an, Ting-chai chi, 2.12a. 144 HCP 398.13a. See the example from 1148 in Fukien of a patroling inspector with four hundred troops; HNYL 2567. 145 Ch'en Ch'i-ch'ing, Chia-ting ch'ih-ch'eng chih, pp. 7205, 7209.
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Law and order in Sung China
Selection The authorities needed men who were both adequately skilled in arms and physically capable. Therefore they established guidelines for the selection of soldiers and mandated continued training. When these soldiers were men dispatched from regular army camps, they were to be selected by senior prefectural officials. The patroling inspector in turn was responsible for informing his superiors in the military hierarchy of the names of the men under his command. 146 Such soldiers were trained under their patroling inspectors and were usually given training facilities rather like those available to the regular army. 147 The training results were examined periodically. In some regions, the patroling inspectors were supposed to inspect their troops every few days, 148 and the fiscal and judicial intendants of the circuit were to inspect them twice a year, in the spring and fall.149 Motivation Maintaining morale required positive incentives such as pay and rewards, negative incentives, and the provision of adequate working conditions. The Sung continued an ancient Chinese practice by rewarding soldiers for capturing or killing wanted men. This practice highlights the more general problem of motivating men not just to act but to act properly. The Sung paid for severed heads, but who was to know whether the head came from a bandit or an ordinary peaceful person? In the mid-eleventh century the official Yii Ching remarked: In Hunan, money and silk were paid out for the heads of the barbarian bandits who belonged to the Man tribes. Soldiers greatly profited from the liberal rewards, stopping people on the roads, treating them as bandits, and killing them. So people were issued identity passes to prevent their being injured by government troops. From this time on, the bandits killed those who carried the identity passes, and the troops killed those who did not.150 This was a recurrent problem during the Sung (and in other dynasties). The great Southern Sung poet (and official) Lu Yu reported that "fighting and taking heads has been practiced since the Three Dynasties [of Hsia, Shang, and Chou], so we cannot say that the practice is not an 146 HCP 398.13a. 147 HCP 380.3a; Shih Neng-chih, Hsien-ch'un p'i-ling chih, p. 3560, notes a training field in 1268 that was 14 changh (about 140 feet) wide by 80 changh (800 feet) long. 148 HCP 516.18b. 149 HCP 348.18b. 150 Yii Ching, Wu-ch'i chi, tsou-i shang. i6b-i7a.
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The role of the military
ancient one. However, in recent times those seeking bandits kill ordinary people and use this as a basis for claiming merit." 151 Motivation was also intimately related to troop morale, and that in turn was affected by the conditions of service. Security demanded that some units be stationed in unhealthy or dangerous regions. The authorities tried to reduce the demoralizing effects of such postings by limiting the length of tours of duty. All soldiers under patroling inspectors served for limited terms. In the most difficult and dangerous (and unhealthy) places they, like their officers, might serve for only six months before being relieved.152 In other, somewhat less unhealthy but still difficult and unpleasant areas, these men might serve one-year terms. Patroling inspector soldiers in Yung, Kuei, I, Jung, Ch'in, and Lien prefectures in Kuang-nan West all seem to have served one-year tours of duty, 153 as did the soldiers serving in patroling inspector posts concerned with controlling salt production in Hang, Hsiu, Wen, T'ai, and Ming prefectures (all in Liang-che Circuit) during the Huang-yu period (1049-53). By contrast, in most areas they seem to have served two-year tours. 154 Remuneration Motivation was also affected by the physical facilities and remuneration provided. Until 1004 in Szechuan and Shensi these troops, despite their vital role in maintaining local security, were without adequate quarters. In that year it was ordered that quarters be built. 155 The problem, however, continued. Liu Chih complained in 1086 that he had learned of soldiers' being quartered in temples because of a lack of suitable barracks. 156 Sung gazetteers provide some information on the forts that housed these soldiers. One fort built in Chen-chiang Prefecture late in the Southern Sung had fifty bays (chien) of buildings and 150 men (a chien, the space between two pillars, was the standard unit for measuring the size of buildings). 157 A fort in Ming Prefecture, first occupied in 1259 and dubbed "Perfect Peace," had three bays (chien) of gates, three of offices, three of halls, three of central halls, twelve of living quarters, and four of kitchens. The fort had been built under the management of the 151 152 153 154 155 156 157
Lu Yu, Wei-nan wen-chi, 13.13a. HCP 480.12a. HCP 380.3a, 393.6a-b. HCP 393.6a-b. HCP 57.4a. HCP 365.33-4^ Lu Hsien, Chia-ting Chen-chiang chih, SYTFCTS ed., pp. 2891-92.
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Law and order in Sung China
heads of two Righteous Service village officer groups, using 3000 strings of prefectural funds. T h e authorities also spent 250 strings to build beds a n d other needed items. 1 5 8 At times the soldiers did not receive a d e q u a t e rations and other remuneration. Although, as we noted, the soldiers in Szechuan and Shensi were supposedly given quarters by an order in 1004, not until 1018 did they have a regular system of rations. In that year it was ordered that they henceforth be paid 200 coins per m o n t h as "food m o n e y . " 1 5 9 In addition to this money income, soldiers also received some income in kind. In a report written sometime after 1178, C h u Hsi criticized a request to build a new fort with one h u n d r e d troops. H e said that the a n n u a l cost would be 1800 bushels (shihh) of rice, 500 strings of cash, 500 lengths (p'i) of silk, and 1500 ounces of silk floss; that is, for each soldier the cost would be 18 bushels of grain, 5 lengths of silk, 15 ounces of floss, a n d 5 strings of cash. 1 6 0 T h e i r cash income at this time, about 400 coins per m o n t h , was a b o u t double the pay scale of 1018, but was much less t h a n that of their civilian counterparts, the archers, who were receiving 2.5 strings per m o n t h . Each soldier would have received in rice rations of slightly more t h a n 2.5 pints per day, the same ration as men serving in the provincial armies received. This would have been more than a d e q u a t e for a single m a n , since the Sung estimated a full ration at 2 pints were day per m a n . H a d these men been remunerated at these rates, they would have had a comfortable, if not overlarge, income. Unfortunately, at various times there were complaints about deficiencies in rations and wages, making it difficult to keep u p with the quotas of men 1 6 1 a n d tempting those who did serve to practice extortion. 1 6 2 Effective performance of duty was rewarded; failure was punished. Since 1021 the rule h a d been that those who did not succeed in capturing criminals before the third time limit were to be punished by sixty blows of the heavy rod. 1 6 3 In addition to more general rules on rewards, in 1086 the government also instituted a series of rewards for capturing wanted men, to complement the already existing system for punishing those who failed to seize those wanted. Soldiers were to be paid two h u n d r e d coins for each deserter a n d five h u n d r e d coins for each bandit. 1 6 4 158 Mei Ying-fa, Pao-ch'ing Ssu-ming hsii chih, pp. 5473-74.
159 160 161 162 163 164
HCP 91.2a. Chu Hsi, Chu wen-kung wen-chi, 20.11 b— 14a. Tu Fan, Ch'ing-hsien chi, 8.19b-20b. Ch'en Ch'i-ch'ing. Yiin-chuang chi, SKGSCP ed., 4-3b-5a. HCP 97.11b. HCP 92.7a; SHY, ping 3.2a, says that this order pertained to the new city at the capital.
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The role of the military
Given their poor pay and other disadvantages of this service, why would men serve as local soldiers? One answer for some of the soldiers was that they could sometimes transfer into the regular army. An order of 1090 states that local soldiers who volunteered for such service - if found on inspection by the circuit authorities to be capable and under forty years of age - could change their registration and enroll in the imperial army. 165 Conclusion In The Origins of the Family, Private Property, and the State, Friedrich Engels r e m a r k s that t h e distinguishing m a r k of the state w a s first its organization on a territorial basis a n d second the institution of a public force, which is no longer immediately identical with a people's own organization of themselves as an armed power. This special public force is needed because a self-acting armed organization of the people has become impossible since their cleavage into classes. . . . This public force exists in every state; it consists not merely of armed men, but also of material appendages, prisons and repressive institutions of all kinds. 166 W e m a y disagree with Engels's analysis of the causes a n d n a t u r e of the growth of institutions of force. W e c a n certainly accept the fact of their existence a n d their most typical role as defenders of the existing social order a n d system, which at the s a m e time m e a n s as defenders of the existing political a r r a n g e m e n t s a n d the prerogatives of the ruling elite. Chinese states, including t h e S u n g dynasty, were n o exception. T h e S u n g military w a s very large a n d usually w a s effective enough to defend the state against enemies from within a n d without. Like other Chinese dynasties, the Sung also used its military in a variety of ways to enforce t h e law. L a r g e regular military units were used against major outbreaks of disorder. T h e military also enforced its own law, most i m p o r t a n t l y against its o w n m e m b e r s . Finally, smaller d e t a c h m e n t s of troops were active from t h e beginning of the dynasty in local law enforcement. Early in the dynasty, however, except in u r b a n areas where t h e military remained clearly d o m i n a n t , law enforcement was primarily a function of civilian agencies. I n time the military b e c a m e increasingly significant in t h e countryside, so that by the e n d of the d y n a s t y t h e sheriff a n d his supporting archers were o u t n u m b e r e d by the patroling inspectors a n d their troops. 165 HCP 449.8b. 166 Friedrich Engels, The Origins of the Family, Private Property, and the State (New York: International Publishers, 1972), pp. 279—80.
225
Law and order in Sung China Soldiers and constables differed in many ways. All constables were local men; many soldiers were strangers. Constables served for long periods at the same place; soldiers were rotated into and out of local posts. Soldiers were part of the military hierarchy; constables served under civil service superiors. The two groups also, however, had much in common. Both were concerned with using force to maintain order. Both ranked low on the scale of social prestige. Both were largely illiterate and uneducated. And both were known for their tendency to abuse the local people. The state authorities were faced with a dilemma. They could not avoid using such men, but they also could not hope to create a group that would be sufficiently skilled in the use of force and also be thoroughly imbued with the nonmilitary values of the civil government. What was desirable - a sufficiently skilled force of thoroughly trustworthy agents employed at a tolerable cost - was not possible. What was possible was sometimes dangerous. A force of men at least minimally skilled in the martial arts might be assembled at a bearable cost, but it might not be thoroughly indoctrinated with civil values. Some devices, therefore, had to be created to keep these men from becoming a danger. Some abuse of the local people was probably inevitable, but the armed men had to be kept from becoming a danger to the political system. The response of the state authorities to this problem reflects the specific application to this situation of the more general principles used elsewhere in the government - balancing group against group, and preventing strong internal bonds from forming between superiors and inferiors. Among the military involved in law enforcement, the regular rotation of both men and officers lessened the danger of the growth of strong ties between soldiers and, more importantly, between officers and men. The rotation of civil officials, with the sheriffs having relatively brief terms, also precluded them from establishing excessively strong bonds with local people or with their subordinates. And finally, balancing the civil against the military, the sheriff's constables against the soldiers of the patroling inspectors - combined with the policies that forbade the two offices from having contact outside the immediate needs of a lawenforcement problem - reduced the dangers of collusive misbehavior. The Sung authorities could not, of course, eliminate all the potential problems created by having such forces of armed men in local areas, but the dynasty's record of internal peace suggests that the policies they did use succeeded to a remarkable degree. Despite the growth in the role of the military, the Sung government was able to avoid the fate of the late T'ang and the Five Dynasties. By adjusting the ever-changing balance between the wen and the wu, 226
The role of the military between the role of the gentleman and the role of the hero in politics, the Sung authorities created a set of policies and practices that maintained civilian dominance while building a military and police apparatus sufficient to maintain a degree of internal order unmatched by any other long-lasting dynasty. The Sung were never seriously threatened by internal rebellions, and externally they were defeated only by the most powerful military machines of their age. The key to the control system was the intermixture and interlayering of civilian and military elements. The chief local military lawenforcement officials, the patroling inspector, was responsible to the prefectural military authorities, but in many prefectures the civilian prefect was concurrently a key figure in this set of military commanders, indeed was often himself the chief figure. The Sung authorities were thus able to devise a mixture of civil and military that allowed the military to be active in and important to law enforcement without deriving undue power from this responsibility. And the Sung civilian authorities were able to use the military without themselves being used by it.
227
7 Supervision of law enforcement — the role of the intendants General problem of control Governance is a control problem. We generally think of law enforcement as controlling those who are outside the ruling group, but actually control has two faces: control of outsiders and of insiders. Dual control exists in all parts of the political apparatus; nowhere is it more important than in those segments of the government that have access to armed force. Law-enforcement and military systems present the ruling group with a serious dilemma. It is necessary to develop effective users of force, to counteract those who want to do violence to the existing order, but this need must be balanced against the necessity of keeping the users of legitimate force from becoming too powerful. The Sung were unsurpassed among the major Chinese dynasties in dealing with this problem. Their success in creating a sufficient but not excessive system of the institutions of force is reflected both internally and externally. It is often said that the Sung were militarily weak. Certainly this was true in the sense that the Sung never succeeded in retaking the area inside the Great Wall held by the Liao dynasty. Then, in the 1120s the Northern Sung was disastrously defeated by the newly powerful Chin state and survived only as the truncated Southern Sung state. Finally, in the late thirteenth century the Sung were overthrown by the Mongol founders of the Yuan dynasty. However, strength and weakness are measures not just of the internal power of a state but also of the power of its enemies. The Liao, Chin, and Yuan armies were among the most powerful military organizations of their times, and so the survival of the Sung was itself a demonstration of impressive military power. The success of the Sung internally is even more striking. The Sung generals almost never were in a position to mold policy, and when, 228
Supervision - the intendants
as with the great general Yueh Fei in the early Southern Sung, they appeared to be becoming too powerful, they were quickly brought to heel. Furthermore, of all the six long-lasting Chinese dynasties, only the Sung was never seriously threatened by internal unrest. The most serious rebellion against the Sung was dealt with in a matter of months. l Banditry was endemic but never endangered the state. This meant, consistent with our paradigm, that the authorities were able to bring sufficient, properly led forces to bear on resisting elements. Proper leadership was crucial, both in the field and also at higher levels where there had to be men who had the skills to plan and supervise action. The Sung succeeded in keeping excessive power out of the hands of the professional users of force. They had inherited a group of traditional practices for guarding the guardians, and they used these practices in creative ways, with some special Sung variants. One was the dilution of military authority through the intermixture of civil agents in the chain of command. In the Sung this control device appeared in several guises. Civil officials might have concurrent control over military forces, and they also were appointed to perform military functions in the military chain of command. Moreover, for some functions the Sung established an interlayering of civil and military levels of action. This last practice was important to the supervision of law-enforcement systems. At the bottom of the hierarchy of groups concerned with law and order were the informal and nonmilitary village officers. Above them, in the sense of being able to muster greater force, were the quasimilitary militias. On the formal level the lowest agent was the civilian sheriff. Above him, in terms of control over force, was the military patroling inspector. Above the patroling inspector were the civil prefects, who usually concurrently held posts in the military hierarchy that gave them control over the local military forces. Also at the prefectural level were a cadre of regular military officers. Finally, at the top of the local hierarchy were the supervisory officials who were members of the civil service. Such officials played a critical role in overseeing the performance of officials in their jurisdictions and in transmitting information between the center and the local authorities. These were the men called intendants. They had authority over various aspects of the Sung law-enforcement and judicial systems. The evolution of the position of intendant, therefore, highlights the character of Sung political development.
1 McKnight, "The Rebellion of Fang La."
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Origins of the system of intendants The Sung founder, Chao K'uang-yin, was certainly one of the most perceptive of dynastic founders. He recognized the problems that had beset the late T'ang and, in seeking to reunify China, made a succession of wise choices. One of his early decisions was to concentrate first on recapturing south China before attempting to confront the Sino-foreign states on his northern and western frontiers. The military problems of reconquest in the rich southern region proved relatively minor. Chao had decided to move first in this direction so that he could gain control over the region's resources. Therefore he needed some mechanism whereby to take possession of southern wealth quickly and effectively. The device he used, the intendancy, was typical of his approach to governing. Chao borrowed an office and a function with ancient roots in the Chinese tradition and shaped them to his needs. Even before the unification of the empire in the third century B.C., the rulers of some of China's states were dividing newly acquired territory into units under direct central control (the chun-hsien system) rather than granting them to their supporters. These attempts by Warring States rulers to concentrate power at the center, and the countervailing resistance of local political figures seeking to retain their power, are early examples of a tension that remained constant in imperial China, between the desire of rulers to centralize power and the interest of local notables to decentralize it. Under the chun-hsien system of dividing China into units of administration staffed at least in part from the center, the territory of the state was divided into commanderies {chun) that were further divided into districts (hsien). After his victory, the first unifier of the empire, Ch'in Shih-huang-ti (r. 246-210), extended this practice to the whole state. Despite some minor changes in terminology in later times - the term commandery {chun) being replaced in most dynasties by the term prefecture (chou or fu) - this system has, in its basic outlines, remained in use ever since. The only major innovation introduced by later rulers was an intermediate level of administration between the level of the prefecture and the central authorities. 2 The successors to the Ch'in, the rulers of the Han dynasty (203 B . C A.D. 220), introduced this new element when they appointed inspectors to tour the empire. For this surveillance function they divided the empire into thirteen circuits, each made up of commanderies. These inspectors were members of the Censorate, charged with investigating administra2 For the material here on the intendants I am deeply indebted to Professor Winston Lo. Indeed, the background material on the position of the intendants is almost entirely from his article "Circuits and Circuit Intendants."
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Supervision - the intendants tive abuses, but they themselves had no power to discipline the governors of the commandaries and, indeed, ranked far below these governors in the bureaucratic hierarchy. In the Later Han, as the powers of the central government waned and instability in local regions put a premium on the state's ability to react quickly to problems, there was a tendency to allow those units originally charged only with surveillance to exercise some control over the mobilization of resources and general administration. Later dynasties borrowed the Han surveillance model, hoping to recreate the glories and powers of perhaps the most admired dynasty in Chinese history. Under these later states, however, as under the Han, this supervisory level of administration was at times irregular in status, staffed by individuals appointed on commission, and in general had no administrative functions. Sung intendants The creation of a permanent set of intermediate functionaries and the beginning of their use of administrative powers came only with the Sung. The Sung founder, needing to exercise surveillance over the southern regions during the course of reconquest, and also to mobilize the resources of the south for use in his further campaigns, used the earlier model of the intendancy of a circuit. The first category of Sung circuit intendant to be created, and the model for the others, was the fiscal intendant {chuan-yiin shih), created by the founder for his southern campaigns. The title itself had been in use under the T'ang for the officials whose original duty was to oversee the shipment on the Grand Canal of tax grains for the T'ang capital. These functionaries expanded their powers during the late eighth century until they became the key fiscal officials of the state. Eventually the title was used also for officials in charge of provisioning the army. The Sung built on this foundation. As the Sung armies moved into new territories, the fiscal intendant charged with provisioning the armies would take control of all local tax registers and other sources of fiscal information. After the effectiveness of these officials had been proved by experience in the newly acquired peripheral areas, they were appointed as regular officials in the core regions of the empire. By the end of the tenth century the Sung empire was divided into some fifteen circuits, their boundaries coincidental in many cases with the boundaries of the states that had formed the Five Dynasties or with the boundaries of natural regions. The number of these circuits increased somewhat over time, reaching twentythree by the reign of Shen-tsung (r. 1067-85). During the Southern Sung, after the dynasty had been driven out of the north by the Chin 231
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armies, there were seventeen circuits. There were occasional changes in the size and boundaries of some of the Sung circuits, though others were relatively stable, and some prefigured the provinces of later dynasties. Initially created to mobilize resources, these fiscal intendants proved useful also as agents for exercising general surveillance over local government officials. The fiscal intendants did at times perform nonfiscal functions, but their basic task, the mobilization of resources, remained clear and specific. Rather than grant them exclusive control over new and differing functions, the Sung authorities chose instead to create other sorts of functionally specialized intendants to share surveillance over other sorts of state concerns. This choice reflects the early Sung rulers' grasp of the problems of power. By appointing several types of intendants with overlapping (though not necessarily identical) territorial jurisdictions but with differing functions, the central authorities created a system with built-in checks and balances. Furthermore, it was quite common for the different sorts of intendants active in an area to have their headquarters in different cities within the circuit. At no time was any one of them placed in a superior position to the others. Intendants were colleagues, albeit sometimes jealous and competitive colleagues. Here, as in many aspects of the law-enforcement system, we can see one of the distinctive traits of the Sung pattern of governance: a willingness to sacrifice a degree of administrative efficiency and control in order to prevent the growth of excessive power in local hands. Military and fiscal intendants At various times and places during the Sung, different kinds of intendants were appointed. In addition to the fiscal intendant, two types stand out, the military intendant and the judicial intendant. In the core areas of the empire, the fiscal intendants remained the key circuit officials during the Sung. Although their functions were shared by others, they were at least first among equals. In the border regions, however, the fiscal intendants were overshadowed by the military intendants. 3 These officials had both military administrative and military command functions. Beginning with the reign of the founder, military intendants were appointed sporadically to circuits along the northern and western frontiers of the empire. By the beginning of the eleventh century they had been appointed to circuits along the whole northern frontier and in Szechuan. A number of new intendancies were created during the reign 3 The material on military intendants is from Michael McGrath, "Military and Regional Administration in Northern Sung China" (Ph.D. diss., Princeton University, 1982). 232
Supervision - the intendants of Chen-tsung (r. 997-1022), but it was under Jen-tsung (r. 1022-63) that they became a regular part of Sung administration. Finally, late in Jen-tsung's reign, military intendants were appointed in the interior circuits of the empire, where there were few imperial army troops and where they were overshadowed by their colleagues, the fiscal intendants. Like the fiscal intendants, the military intendants could at times be called on to exercise surveillance over areas outside their military concerns. This pragmatic use of intendants in differing roles fitted well with the general Sung distaste for allowing any single type of official to monopolize an important function. Furthermore, because they were military intendants, it is hardly surprising that they at times were involved in bandit suppression and other facets of the law-enforcement process. During the Northern Sung, however, the most important intendants for law enforcement were, without question, the fiscal intendants and the judicial intendants (t'i tien hsing-yii shih). They shared all of the lawenforcement-related functions. Indeed, the sources very often pair the two titles when describing the intendants' actions. If there were any differences, it was perhaps that the judicial intendants handled more of the routine aspects of judicial supervision. Judicial intendants The origins of the judicial intendants can be traced to the appointment by the first Sung emperors of special judicial envoys to tour the areas under Sung control. The sending of such envoys was an ancient practice, which began at the latest in the Han dynasty and had been used also by the T'ang and the Five Dynasties. 4 When in the Sung it became routine to appoint such men and their tours were confined to the boundaries of particular circuits, the office of judicial intendant was born. During the first century of the Northern Sung, the office of judicial intendant existed in most years but also was formally abolished on several occasions. By the late Northern Sung, the office had become a permanent institution and remained such during the Southern Sung period. 5 The sources give the impression that for the most part civil officials were appointed to this post, though sometimes officials from the military hierarchy were used. 6 4 For the Five Dynasties policy, which was the immediate predecessor of that of the Sung, see Ou-yang Hsiu, Hsin Wu-tai Shih (Beijing: Chung-hua shu-chu, 1974), 30.327. 5 See HCP 34.9a, 106.ib, 109.6a, 113.13b-14a; WHTK 166.1445; $$ 5-93> 9-9a> 9 J 2 a ; Sun Feng-chi, Chih-kuanfen-chi, 47.11b-13a. 6 HCP 120.ib (1037). See also Ss 34.649, in which in a comment dated 1136 it says that "the military official judicial intendants were reestablished."
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As their title indicates, the judicial intendants were concerned with judicial process. Their basic charge was to see that the judicial and lawenforcement processes were fair and effective. This charge included supervision, that is, the critical evaluation and direction of those officials doing judicial or police work in their circuits; surveillance, in particular the systematic observation of and reporting to superiors about the actions of law-enforcement and judicial functionaries; investigation of certain sorts of legally important matters; review of decisions made by judicial functionaries lower in the hierarchy; recommendations concerning subordinates, including recommendations that they be appointed to or removed from certain posts; verification and certification of the claims of subordinates regarding legal and police actions and claims that might lead to the granting of rewards; adjudicating and settling certain kinds of legal cases; appointing certain police officials under some conditions; and, especially during the Southern Sung, coordinating large-scale bandit-suppression campaigns. The judicial intendants' sphere of activities was wide but limited. The general Sung policy of not allowing the unification of functions was reflected in this office, as in others. The official Hsu Ching-heng, in attacking a judicial intendant's request for general control over administration in a section of the empire put it neatly: Judicial intendants travel around their jurisdictions. They may accept communications and cases for judgment, or they may examine punishments and jails. [But] matters not within the purview of their office, being matters of law, are all sent to the appropriate overseeing intendant's office for action. The judicial intendants do not dare assume sole control.7 Review of legal cases The judicial intendants' functions thus were very similar to those of the fiscal intendants when the latter officials dealt with judicial matters. As the general description in the Sung History indicates, earliest in terms of time, and always an area of concern for the judicial intendants specifically, was the surveillance of the legal process in the prefectures and districts. This involved supervising the trial process itself, in part by reviewing reports sent from subordinate units to the circuit headquarters. Under Sung law the magistrate of a district had the authority to make final judgments in cases in which the penalty did not exceed one hundred blows of the heavy rod. For cases calling for heavier penalties, from penal servitude and up, such officials could make provisional 7 Hsu Ching-heng, Heng-Vang chi, SKCSCP 1975, 9.3a. 234
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decisions, but these had to be reviewed at higher levels. Prefectural administrators had the authority to make final judgments on cases of penal servitude or less, but they also had to submit more serious cases, those calling for exile or death, to the circuit authorities for review. 8 An annalistic history of the Northern Sung reports a case from 1026 in which a commoner from Shang-tang District [in Ho-tung] whose surname was Wang was slandered with having secretly killed his stepmother. The case had already been written up, and the clerks all thought that the evidence was adequate and not in doubt. Only Wang Shu [the administrator of An Prefecture] said that there were some doubtful points. When the case reached the judicial Intendant, Tu Yen, he rechecked it and discovered the real killer. Because of this, Wang Shu wrote the "Record on Judging Cases" to forewarn judicial officials.9 Judicial intendants thus automatically participated in reviewing the capital cases submitted to them. Under a rule found in the early thirteenth-century code ChHng-yuan tyiao-fa shih-lei, they were to write out reports on these cases, giving the key facts and the sentence and indicating whether or not there had been delays in the case and whether or not it had been remanded for reconsideration and the date of such remanding. These reports were sent quarterly to the Secretariat and the Ministry of Justice. 10 This order was in fact obeyed at least sometimes. One source tells of a prefect who lost his position when someone at Court pointed out that his judicial intendant had had to remand forty cases in six months. 11 In addition to these automatic reviews at higher levels, the accused parties or their families could also secure reviews or retrials by raising accusations of judicial impropriety. Such initial retrials might be carried out at the prefectural level if personnel were available who were not debarred from participating because they had been involved in the initial investigation. If such people were not available, then the fiscal or judicial intendant of the area was responsible for selecting someone to conduct the retrial. 12 He also might be asked to investigate cases involving charges against officials in his jurisdictions. 13 Finally, the intendant could be ordered by the Court to investigate reported problems. In the early 1180s there had apparently been complaints that local adminis8 SS 199.4972; SHY, hsing-fa 3.13a.
9 HCP 104.6b-7a. It is perhaps worth noting that as a result of this case Tu Yen was appointed to an important position in the Ministry of Justice; see HCP 106.2b. 10 TFSL501. 11 HNYL1968. 12 SHY, hsing-fa 3.55b; HCP 72.4a. 13 WHTK 166.1445 (1014). 235
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trators were using village officers for inappropriate tasks. The Court ordered the judicial intendants to investigate. In the same document these judicial intendants were ordered to look into cases in which local administrators had confiscated the property of convicted criminals, to make sure that such confiscation was in fact justified under the law. 14 When people appealed cases to the central authorities, as they had the right to do, they still ordinarily had to pass through the circuit offices first. A decree of 1005 ordered that men who came to the capital to ask for a review of legal cases had to write descriptions of the ways in which they claimed that the cases had been mishandled on the district and prefectural levels and the date on which the matter had been reviewed at the offices of the circuit intendants. 15 The general practice seems to have followed a pattern described in a thirteenth-century order, which says that if the appeals were frivolous and aimed simply at evading punishment, the intendants should, after having conducted a thorough review, send down an order for enforcement. If, however, there was evidence of wrongdoing, delay, or incompleteness, they should write a memorial asking for a central judgment, which would then be enforced. 16 This role is reflected in a memorial from the judicial intendant of Ho-tung Circuit, who reported in 1012 that all the capital cases in the various circuits are, at the end of ten days, reported to the offices of the fiscal or judicial intendants. If the fortnight period is just starting and the office of the intendant involved is very far away from the reporting prefecture, the prisoner may then be held for half a month so that [by the time the intendant becomes involved] there may be uncertain circumstances that can no longer be elucidated. From now on it is our hope that the prefectures will report such cases to the intendant's offices on the very day [that their decision is made].17 The judicial intendants who reviewed cases were expected to write reports dealing with the facts and the law involved and report these to the relevant authorities. Some idea of this process is conveyed in the report on a case from the late 1070s. An acting judicial intendant reported on a case in which a son had been killed, but the parents had been persuaded to accept payments to settle the case out of court. For having settled out of court both parents had been sentenced by a lower court. The lower court cited a statute covering cases of mourning-degree relatives 18 who reached private settlements after their relatives had been 14 15 16 17 18
SHY, hsing-fa 2.121a. SHY, hsing-fa 3.13a. SHY, hsing-fa 5.48a-b. SHY, hsing-fa 6.53a. The Chinese differentiated relatives according to degrees of mourning. These degrees
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killed. Under this statute those guilty were liable for a sentence of two and a half years of penal servitude. The intendant in this instance goes on to cite a statute defining the meaning of the term son for legal purposes and a statute stating that those who deliberately kill their junior relatives could be punished with strangulation. He also used a statute stating that parents or grandparents who beat to death disobedient children were liable for one and one-half years of penal servitude. If the elders in these cases had intended that the disobedient ones die, the penalty would be increased by one degree, to two years of penal servitude. The intendant thus suggested that it was unjust to punish parents guilty only of having reached a private settlement after their children had been killed by someone else more severely than parents who did the killing themselves and so asked that the central authorities promulgate instructions to guide local magistrates in balancing conflicting rules that called for different levels of penalties. 19 On-the-spot investigations When the regularly submitted prefectural reports indicated that there were problem cases in a judicial intendant's jurisdiction, he was to go, or to send authorized subordinates, to investigate on the scene. Intendants had this responsibility from the late tenth century onward. A decree of 991 states that "where there are doubtful cases that have not yet been decided, the judicial intendants are to go to examine them." 20 Five years later the power of the intendants to send investigators is made clear in a description of the origins of the relevant decree: The emperor had heard that the various prefectures, when trying to pass judgments on capital cases about which the circumstances were in doubt, were afraid to send such cases because they feared that the cases would be reversed. Subsequently he [the emperor] issued a decree that in doubtful capital cases the fiscal intendants should select subordinates who were knowledgeable and experienced in the law to pass judgment on such cases. If there were cases that truly needed to be memorialized to the center, then that should be done.21 determined what mourning rituals were to be performed on the death of those relatives that fell within the mourning-degree circle. For examples of mourning charts, see P. L. F. Philastre, Le Code annamite (Paris: E. Leroux, 1909). This is a translation of the code of the Nguyen dynasty in Vietnam, but it is at almost all points a copy of the code of the Chinese Ch'ing dynasty. 19 HCP 299.i2a-b. 20 WHTK 166.1445. 21 SS 199.4972. See also the detailed decree dated 1003 and recorded in SHY, hsing-fa 3.11b-12a, and the description of an example of this process in Huang Huai, Li-tai ming-ch'en tsou-i (Taipei: Tai-wan hsiieh-sheng shu-chu 1964), 218.17b.
237
Law and order in Sung China The judicial intendants also participated in inquest procedures. They were to go - or probably, in the ordinary case, to send a subordinate - to conduct inquests on people who had died as a result of judicial torture during trial. This was certainly true in the Southern Sung, and a similar policy might have existed earlier. An order of 1159 also made judicial intendants responsible for investigating certain very difficult sorts of homicides, those in which there were no witnesses or in which the corpse had not been subjected to autopsy. Such cases were to be memorialized for a ruling from the central authorities. This order incidentally reveals the intendants' power to dispatch subordinates from their offices to conduct investigations. 22 This investigatory and judgmental responsibility was not confined to capital cases. People also could and did pursue legal settlements of other issues. We learn from an order of 1038 that people could come to the circuit intendants' offices to resolve disputes over property. In such cases the intendants were supposed to dispatch officials to investigate. However, such cases were supposed to be accepted only after the beginning of the tenth month, when the harvest was presumably completed, so that agricultural work would not be hindered. 23
Periodic visitations Intendants, and at times their designated agents, also were supposed to pay regular visits to the territorial units in their jurisdictions, accompanied by their retinues of soldiers. (An order dated 1037 says that if he were a Court-rank official, a judicial intendant was to have a guard of thirty soldiers; if a military official, twenty-five. 24) When this guard went with the intendant on tour, the local authorities were responsible for the costs. The central authorities were understandably concerned that local officials might attempt to influence the intendants' reports by giving them especially lavish treatment. Indeed, the order of 1007 that reestablished the office of judicial intendant specifies that "the prefectural officials are not allowed to go out to greet the arriving intendants or to assemble with them." Records of the tours were kept on logs written on imperially stamped paper, and they were reviewed at the capital. 25 When on such tours the intendants were expected to examine outstanding cases, review judicial records, and even interview prisoners in order to discover cases of judicial abuse (or judicial excellence). During 22 23 24 25
SS 201.5024. SHY, hsing-fa 3.45a. HCP 120.1b. WHTK 166.1445.
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their visits, the intendants were also expected to expedite cases, by rendering decisions on cases that seemed clear-cut. In the words of the twelfth-century official Li Kuang: On the day when the imperial order arrives, the judicial intendant should circulate in person through the subordinate prefectures, himself going to the jails and taking the names of the current prisoners. If among them there are some about which the major points are clear, with only minor points not resolved, he should weigh the facts and decide the case, not allowing any further delay. During these same visits the intendants or their authorized agents were to check on the physical treatment of the prisoners, including the enforcement of rules on the cleaning of jail cells, the washing of fetters, and the size and condition of the prison instruments. 26 Probably in many cases the intendants sent deputies to make these inspections. This is suggested by numerous comments in the sources about choosing appropriate subordinates for these tasks. Moreover, the inspections were supposed to be made annually, but a decree of 1090 specifies that the judicial intendant on his tour was to visit every prefecture and district once every two years. Presumably, deputies handled the other visits.27 Welfare of prisoners This system of visitations was only one of the intendants' more general responsibilities for the welfare of prisoners. Intendants reviewed the prisoners' records, which were to be sent to them every ten days, checked for doubtful cases, and impeached officials if there had been unjustified delays (or wrong decisions) in the judicial process. 28 According to the Sung History. At the beginning of the Ch'un-hua period [990-94] the office of judicial intendant was first established in the various circuits. These men had control over the prefectural reports of prisoner records which were sent in every ten days. When there were problematic cases that had not been settled, they were quickly to send an observer to look into the situation. If the prefectures and districts delayed and did not reach a judgment, or if on examination the information was not accurate, the chief officials were to be impeached.29 26 Li Kuang, Chuang-chien chi, 12.21-b. 27 HCP 442.8a. 28 WHTK 166.1445 (991)- For continuation of these functions in later times, see, for example, HCP 66.7a (1007); SHY, hsing-fa 6.55a-b (1047), 5 5 ^ - 5 ^ (1050); WHTK 167.1452 (1119). 29 SS 199.4971.
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The intendants were also responsible for conducting inquests on those who died in jail. In 1047 t n e fiscal intendant of Ho-tung Circuit reported: In recent years many of the men accused in criminal cases are incarcerated for months. They do not have [enough] food and drink, and they are subjected to judicial torture and die. These deaths are concealed by higher and lower functionaries, so that when it comes time for the inquest, the deaths are listed as deaths from illness. I ask that you order the fiscal and judicial intendants, when they go on their tours of the prefectures and districts, first to go into the jails and interrogate the prisoners. When prisoners die, inquest forms should immediately be sent up to the two intendancies' offices to be reviewed. If the circumstances seem unclear or if it is indicated that there are wounds from judicial torture, then an official should be dispatched to conduct a detailed inquiry and to secure justice.30 From at least the twelfth century, the intendants were also supposed to keep records of the number of prisoners in the jails in their circuits. An official active during the closing years of the Northern Sung suggested that the judicial intendants be responsible for annually reviewing the number of prisoners who had died. Mu-jung Yen-feng said: I have noted that the emperors, out of pity for prisoners, have established the law on the investigation of prisoners who have died of illness. . .. We ask that you order the various circuits' judicial intendants at the end of each year to assemble the records on the numbers of prisoners who have died of illnesses. On the basis of these reports, local officials might be either punished or rewarded. These figures would be reported to the Court and would result in sanctions against officials in units where the death rate was excessive and commendations for those where the death rate was very low.31 We know from other records that such systems were in fact used.
Rewarding effective jurisdictions The other side of this coin was the intendants' involvement in systems for rewarding jurisdictions that handled judicial matters especially effectively. Intendants participated in key ways in the investigation, verification, and certification of law-enforcement functionaries' applications for rewards for the successful performance of their duties. The intendants were responsible for verifying the accuracy of the claims and for guaranteeing the performance of law-enforcement agents. 32 They might also 30 SHY, hsing-fa 6.55a-b; HGP 73.2a (1010). 31 Mu-jung Yen-feng, Li-wen Vang cki, Ch'ang-chou hsien sheng ts'ung-shu, 10.2b. 32 SHY, ping n . i o a (1024), 13b (1032), 26a (1059).
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sometimes recommend new systems of rewards. 33 The best-known policy for rewarding such units was the "empty jails" system, a policy, described more fully in Chapter 12, according to which units that had no prisoners in jail, and therefore no caseloads, were rewarded. An imperial order establishing this policy was issued in the late tenth century and continued in force thereafter. Such reports of empty jails in local areas were forwarded to the Court by the judicial intendants after they verified the accuracy of the claims. 34
Recommendations on personnel and policy Their position in the hierarchy that dealt with the judicial process made the intendants key officials in submitting recommendations to higher authorities on all aspects of the judicial system. Such recommendations might pertain to judicial procedures, including procedures for investigation, the nature of case records, and ways of bringing accusations or of reporting cases. 35 The intendants' recommendations on personnel were part of general Sung policy, since candidates for promotion from the executive to the administrative class in the bureaucracy (the most important single step in promoting an official) required recommendations from their superiors, including circuit intendants. 36 The executive class, comprising the ninth and lower eighth ranks of the nine grades of civil service hierarchy, contained the majority of Sung officials. These functionaries mainly administered policies created by others. Promotion to the elite group of policymaking administrative officials was the avidly sought goal of most Sung bureaucrats. This step could not be made on the basis of seniority alone, nor simply on the basis of success in the more routine measures of achievement. Having a set number of recommendations from superiors was necessary. In addition to these special recommendations, the judicial intendants also made regular reviews of the officials under their jurisdiction. According to the rule found in the early thirteenth-century Ch'ing-yuan tyiao-fa shih-lei, they were to report twice each year, in the fourth and tenth months, on the conduct of the senior officials in their circuit. Given the timing of these reports, they probably were to be based on the twiceyearly investigation of judicial affairs in each prefecture and district. 37 33 HCP 129.5a, 2i6.i4a-b, 302.6a, 328.2a; SHY, ping 11.19a. 34 HCP 72.16a; WHTK 166.1445. 35 SHY, hsing-fa 3.11b (998), 4.7a (1013), 6.59a (1114); SHY, ping 11.15a (1034); HCP 302.6a (1080). 36 On this process, see Lo, An Introduction, pp. 165-70. 37 TFSL 226.
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In regard to law enforcement, the intendants frequently made recommendations about the establishment and locations of local law-enforcement posts and about jurisdictional boundaries between law-enforcement units. They sometimes recommended persons for bandit-suppression campaigns and made more general suggestions about personnel policies. Their knowledge of the men working as functionaries in a large region made the intendants uniquely qualified to render judgments about appointments. They might also be charged with supervising the provision of appropriate quarters for these law-enforcement personnel. 38 Intendants also investigated and made suggestions about militia personnel and constables. The official Mu-jung Yen-Feng asked that the emperor "especially order the judicial intendants to assign officials the responsibility for examining, selecting, and retaining strong stalwart men and dismissing the old and weak." 39 Perhaps most importantly, the judicial and fiscal intendants regularly assessed the capabilities of lawenforcement officials like the local sheriffs and patroling inspectors, and recommended the replacement of those unfit for duty. 40 This practice is indicated in a report from 1079: The emperor noted that because there had been natural disasters this year in the circuits of Huai-nan, Chiang-che, and Ching-hu, people would find it difficult to feed themselves come spring, and it would be easy for bandits to arise. An order was to be sent down that the various circuit fiscal and judicial intendants and the military administrator offices (ch'ien-hsia ssu) examine the physical conditions of those serving as patroling inspectors and sheriffs and memorialize the names of those found not competent.41 Supervision of penal practices T h e intendants' duties also extended to penal policies and practices. T h e intendants were to see that local authorities did not abuse their power to punish, for example, by increasing beyond the legal limits the number of blows inflicted. 42 They oversaw, as well, the proper and careful guarding of convicts in transit. 4 3 Early in the eleventh century, one intendant recommended a better system of supervising the transfer of convicts, so 38 Fan Ch'un-jen, Fan chung-hsiian chi, SKCSCP ed. 6.74. 39 Mu-jung Yen-feng, Li-wen fang chi, 10.1b. 40 SHY, ping 11.15a (1034), 11.23b-24a (1050); SHY, chih-kuan 48.64b; HCP 116.12b (1035), 216.14b (1070), 271.14a (1074), 275.4b (1076), 328.2b (1082), 334.19a (1083), 338.10a (1083), 34<>-5b (1083), 389.6b (1086). 41 HCP 271.14a. 42 HCP 82.16a. 43 SHY, hsing-fa 4.i2a-b.
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that people could no longer abuse the prisoners during transport. 44 This sort of concern is illustrated by a recommendation submitted in 1028: An intendant asked that when men were being taken to their place of penal registration, a record be made of the money and goods that they were taking along in order to defray their expenses en route. The escorting guards would be responsible for these registers and would deduct expenses as they were made from the register, to prevent theft of the convicts' goods. 45 Intendants might also be made responsible for assigning to specific prefectures men sent for penal registration. 46 This duty was related to their responsibility for seeing that no given prefecture was forced to accept a dangerously large number of serious criminals. An order of 1044 regarding the system of penal registration stipulated that the fiscal and judicial intendants were regularly to assess the working of the system, and if in a given prefecture "there are too many men, a report should be sent, on the basis of which men could be transferred to jurisdictions with few registered criminals." 4 7 In the mid-eleventh century the intendants in certain southern and central circuits were given the task of examining the men being held in various sorts of penal registration in their areas. If they found potentially dangerous convicts gathered together in certain prefectures, they were to transfer such men to other areas, in order to reduce the threat of collusive misbehavior. 48 Their access to and familiarity with the records of convicts in their areas made them the logical persons to report on convicts who were to be transferred. 49 The intendants were in an ideal position to recommend penal policies to the central government. They made suggestions about systems of communication and information 50 and about the treatment of prisoners. 51 It was an intendant who, in 1058, submitted a highly critical report about the treatment of prisoners at the Sung maximum-security facility on Sramana Island off the north coast of Shantung. 5 2 They also might advise using specific penalties in some areas, as when an intendant asked 44 SHY, hsing-fa 4.7a. 45 SHY, hsing-fa 4.15a. 46 SHY, hsing-fa 4.4b. Intendants could also ask that men be registered in certain specific prefectures in order to meet labor needs there. See HCP 256.2b. 47 SHY, hsing-fa 4.21a. 48 SHY, hsing-fa 4.21a. See also SHY, hsing-fa 4.31b-32a. 49 SHY, hsing-fa 4.25b. 50 SHY, hsing-fa 3.11b. 51 In 1007 it was an intendant who recommended standards for certain of the fetters worn by prisoners; see HCP 67.18b; SHY, hsing-fa 6.77b; WHTK 166.1445; Chiang Hsiaoyu, Huang-ch'ao lei-yuan 20.7b. 52 SHY, hsing-fa 4.23b-24a.
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that the families of evil habitual criminals in his circuit be confiscated by the authorities or when an intendant asked that those along the border guilty of kidnapping people for later sale outside the borders be executed. (His request was not approved.) 53 Or they might ask for lenient treatment of certain groups. An intendant petitioned successfully that in prefectures that had suffered natural disasters, people driven by want to commit robbery be spared the punishment due under the regular laws. If these people "had shared their spoils with their families, even if they were liable for heavy punishments, their cases should be examined individually. If they are not basically evil and the circumstances of the crime are not serious, they should be released after being beaten." 54 Intendants were also involved in the transferring or freeing of those benefiting from imperial amnesties. Amnesties, which will be discussed in more detail in Chapter 14, were issued frequently during the Sung. On receipt of a letter of amnesty the circuit authorities informed their subordinate subunits. These subunits in turn prepared statements concerning the behavior and crimes of those under their control. Those with good records could benefit from the amnesties; those with bad records could not. The assessment of who was to benefit was a duty shared by the intendants and the officials of the prefectures and districts. 55 The intendants also could ask the central authorities to extend grants of grace to areas under their supervision, especially in times of natural or other disaster, 56 and sometimes they were called on to investigate reports that some persons who ought to have benefited from amnesties were being improperly detained. 57 A decree of 1070 said: With regard to men held in [the kind of penal registration called] registered control, the judicial intendants are ordered to select officials for the various prefectures who will, together with the currently incumbent prefectural officials, investigate the original crimes involved and make judgments as to the law and the facts. They are to determine whether there really are men being held illegally in registered control by the prefectures. Such men are to be released as soon as is
Supervisory and administrative responsibilities The other side of this duty was the intendants' responsibility for reporting failures to capture criminals. At times they were required to submit 53 SHY, hsing-fa 4.20b; HCP 91.7b. 54 SHY, hsing-fa 4.19b. See also SHY, hsing-fa 4.5b, 19a. 55 SHY, hsing-fa 4.23a-b (1051), 24b (1063), 27b (1080); HCP 12428.14a (1061); SS 24.450 (1127). See also Huang Huai, Li-tai ming-ch'en tsou-i, 217.9a. 56 SHY, hsing-fa 4.5b (1012), 19a (1034), 19b (1034). 57 SHY, hsing-fa 4.24b. See also HCP 217.6b. 58 SHY, hsing-fa 4.25b. See also 4.45a-b.
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biweekly reports on the number of bandits captured, but usually the reports were due much less often.59 In 1066 the judicial intendants were ordered to review reports on the number of bandits caught and not caught, submitted when local officials had completed their terms in office, and, on the basis of these reports, to recommend either rewards or punishments. 60 It is not clear how well this policy was enforced, since in 1093 a judicial intendant recommended that when prefects who had been in office for a year or more were leaving their posts, their record for capturing bandits should be examined and reported to the central authorities.61 Finally, intendants were to oversee attempts by officials in their jurisdiction to capture bandits, to be certain that "if there were deficiencies in the pursuit and anyone dares to conceal them, those guilty would be punished for the crime of having violated regulations [which called for a penalty equivalent to two years of penal servitude]." 62 Officials naturally wanted to avoid becoming involved in this system and were tempted to conceal evidence of banditry in their areas. 63 As these examples should make clear, the intendants were key figures in transmitting reports on particular cases 64 and generalized statistical reports on the workings of the judicial and police systems passing from the circuits to the agencies of the central government, and transmitting via the circuits of some sorts of orders and instructions from the central government for enforcement on the local level. Intendants also provided the central authorities with a flow of information on affairs in local areas. They investigated and reported on such matters as cases brought against local officials, the numbers of prisoners currently incarcerated (including names, crimes, dates of detention and so on), the numbers and locations of vacant law-enforcement posts, the numbers and types of penalties 59 SHY, ping 11.21b, recommended frequent reports, but in the 1090s the Department of Ministries recommended that reports be submitted twice a year; see HGP 460.1a. 60 SHY, ping 11.27a. 61 SHY ping 12.13a. Such reporting systems may have fallen temporarily into disuse during the troubles that accompanied the fall of the Northern Sung. Between n 26 and 1131 the official Chang Shou asked that the districts be ordered to create registers recording the names of the victims of robbery and the date (Chang Shou, P'i-ling chi, 3.6a-b). 62 HCP 125.3b. 63 SHY, ping 11.25b; HCP 176.8a. Of course, the intendants themselves were also subjected to periodic evaluations of their performance. Lo, An Introduction, p. 243, translates the standard form for a merit evaluation of circuit intendants. As might be expected, it includes such items as whether the intendants had committed any improprieties in handling lawsuits, and whether they had impeached or failed to impeach subordinates guilty of crimes of bribery serious enough to warrant punishments of exile. 64 See, for example, an order of 1024 that the intendants inform the prefectures of a decree on the local investigation of bandits (SHY, ping 11.10a).
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inflicted in the area of their jurisdiction, problems with heretical religions, and other aspects of the general security situation.65 They evaluated the persons in their jurisdictions, not just the officials, but also the troops who were, after all, the basic force for suppressing large-scale disorder.66 As we noted, they sent in regular reports on banditry, sometimes twice a year and sometimes more often, giving the numbers caught and not caught. 67 When suggesting a general policy for keeping track of local crimes, the official Chang Shou gave the intendants an important supervisory role: I now ask that. . . each district establish a register on which will be written the name of the family robbed and the date. When the criminals are seized, a red mark should be made after the entry. The prefectural controller general [t'ungp'an] should examine these registers every quarter. At year's end the judicial intendants should assign officials to collect these registers and check to see how many bandits have been captured and how many have not been captured. In accord with the success in capturing [them] and the time spent in so doing, reward or punish the local officials.68 Intendants could also be asked to act as judges. Sometimes they were even given the power to condemn men to death, to execute them, and to report thereafter to the central authorities. 69 More generally they had the power to settle certain lesser cases without necessarily consulting the central authorities. In the late eleventh century when there was a major restructuring of the government, this power was reaffirmed by an imperial order that "local cases that do not require a memorial are to be settled by the judicial intendants." 70 During the Sung, intendants eventually began to make certain administrative decisions. In times of crisis they might be given the power to select and appoint local law-enforcement agents without waiting for the approval of the central authorities. 71 In response to an official who submitted a report concerning problems in mining regions, the Court ordered the fiscal intendants to assess on a regular basis the patroling inspectors, sheriffs, and bandit-capturing servitors. If among them there are some who are incapable by reason of illness, 65 HCP 133.2b (1040); SHY, ping 11.21b (1046), 27a (1066); SHY, hsing-fa 4.19a (1034) 6.55b-56a (1050), 57b (1094). 66 HCP 338.10a. 67 HCP 460.1a (1091), 443.1a (1090). 68 Chang Shou, P'i-ling chi, TSCC ed., 3.37-38. 69 SHY, hsing-fa 4.21a; HCP 1143.10a. 70 WHTK 167.1450. 71 HCP 143.19a-22a (1043). This also seems to have been the case in 1076; see HCP 275.4b.
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stupidity, and so on, the fiscal intendants are to select men from their jurisdiction to replace the incompetent. Then the intendants should submit a report.72 More significantly, especially during the Southern Sung, the intendants moved from monitoring the bandit-capturing activities of other officials to personally coordinating the major antibanditry campaigns. 73 The first step along this path was perhaps the order of 1043 gi y m g t n e judicial intendants sole control over the bandit-control activities of the patroling inspectors, and there are other examples from the Northern Sung. In 1062, for example, judicial intendants were given sole charge of controlling bandits in certain prefectures and, concurrently, of supervising the salt monopoly. Before this, "in Chiang-nan West and Fukien circuits the salt-smuggling gangs included thousands of men who have gone about openly pillaging, killing, and injuring, and the officials have been unable to stop them." 74 And in 1080, because of an increase in banditry in the area around the capital, the judicial intendant there was ordered to go in person to supervise their capture. In a decree issued a few months earlier, the intendants had been given the authority to dispatch fifty cavalry or infantry soldiers to capture robbers. 75 In the Southern Sung this became a general pattern. 76 A judicial intendant commented in 1180 that "recently commands have been sent down that from now on, in the various prefectures and districts, if there are places with many bandits, the judicial intendant of that region is to be personally responsible for mobilizing resources and capturing them." This official noted that the judicial intendants did not have control over the regular soldiers in their jurisdiction, but only over the local soldiers and the archers. He pointed out that the intendant might have to mount a sizable campaign at some distance from the location of these local soldiers and asked that a force of some 670 regular soldiers be placed under the control of the intendant for use in such campaigns. His request was approved. 77 The importance of such a coordinating official was underscored by the late Southern Sung official Hsu Ying-lung. In a passage that could be duplicated in modern books on management, he emphasized that the essential task of control is the proper selection of subordinates. A superior should choose capable men and rely on their judgments,
72 73 74 75 76 77
SHY, ping n.23b-24a. HCP 129.3b (1040). SHY ping 11.26a. SHY, ping i2.8a-b; HCP 305.13a. HCP 143.27a. SHY, ping i3.33a-b.
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thereby creating a unified chain of command to preclude infighting and competition/ 0 We can get an idea of how this system worked from a long memorial submitted by the Southern Sung official Ts'ai K'an (doctorate of letters 1166), who reported on his early tenure as a judicial intendant: Last year, on the twenty-sixth day of the eleventh month, I reached the border of I-chang District in Ch'en Prefecture [in Ching-hu South Circuit] to accept the handing over of the affairs of this office. Since my arrival I have examined the whole circuit's criminal cases, its judicial abuses, incarcerations, and delays for those who could be currently sentenced. . . . Circuit intendants are also responsible for capturing bandits. Recently there was an order that from now on if bandits secretly arise . . . the judicial intendant is himself to devise ways to catch them, so that they will not increase. With this order the responsibility of the judicial intendant becomes even heavier. But to carry it out we have only the local soldiers and the archers, and they are inadequate to destroy bandits. If you assign heavy responsibilities but provide inadequate forces, how can there not be trouble?... I have checked and found that in this circuit there are 2650 archers and 2429 local soldiers. This is a fair number, but they are scattered among nine prefectures and thirty-eight districts. This region has rugged terrain. If there is an emergency, they cannot be fully mobilized. . . . When we had trouble with Li Chin and Ch'en Tung we could dispatch only the archers and local soldiers from the nearest few districts, who were not very numerous and in any case were a rabble and not of much use. Therefore we called up the locally powerful groups, but they also were unable to manage the bandits, and so we had to wait on the arrival of a large military force from E Prefecture. Then the bandits were destroyed. . . . I have noted that the judicial intendant of Kuang-nan West Circuit, Hsu Hsu, has requested the transfer of regular circuit troops, some 500 men, to be put under the command of the judicial intendant's office and the other intendants' offices. . . . The Court approved this. . . . The Kuang-nan East judicial intendant. . . followed a precedent allowing him to call for the prefectures to dispatch 50 imperial soldiers per prefecture, or for fourteen prefectures a total of 700 men, to be used in arresting the bandits. . . . In this circuit we have no such precedent. . . . I do not dare to ask that a special force be put under my command, but I do hope that. .. you will allow me to order from among the prefectures a force of 50 men to be sent to work with the archers and local soldiers in making arrests.79
Conclusion The patterns of responsibility and function we have described, established during the Northern Sung, continued during the Southern Sung, 78 Hsu Ying-lung, Tung-chien chi, 8.16a-19b. 79 Ts'ai Kan, Ting-chai chi, 2.12a-14b.
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but the distribution of these duties among the various intendants differed. During the Northern Sung, the fiscal intendants played a major role in the law-enforcement and judicial process; during the Southern Sung, the fiscal intendants were much less important to judicial matters than the judicial intendants were. In Southern Sung material on legal matters, the fiscal intendants and other intendants such as military intendants are mentioned only rarely. Rather, during the Southern Sung it was the judicial intendants who submitted reports on bandits caught and not caught,80 who reviewed and reduced sentences,81 who handled the implementation of amnesties,82 who investigated rapacious clerks,83 who checked on the local handling of cases and impeached officials who erred in their judgments,84 and who reviewed cases and reported on delays.85 The judicial intendants or their appointed agents visited the areas under their jurisdiction and checked on current cases, expedited settlements, and freed prisoners or reduced their sentences. Eventually the judicial intendants performed this last duty not only during the summer heat but also during the dead of winter.86 The Southern Sung judicial intendants also participated in the inquest process that was used in cases of homicide. Indeed, it was a Southern Sung judicial intendant who suggested that all authorities use a standard form showing the outline of a body so that local officials could mark the location and character of wounds.87 They investigated the problem of escapees, enforced the prohibitions against heretical religious sectaries, oversaw the capture of bandits by the prefectures (setting their rewards and the time limits for capturing the fugitives), and kept watch over the quotas of men penally registered in their jurisdictions.88 Finally, the Southern Sung judicial intendants were charged with mobilizing local resources and capturing bandits.89 During the Northern Sung, the judicial intendants had also performed these functions, but during that earlier era they shared many of these tasks with fiscal intendants. During the Sung the office of circuit intendant became increasingly important to local administration. Intendants came to exercise certain 80 Chang Shou, P'i-ling chi, 3.6a-b. 81 SS 24.450. 82 SHY, hsing-fa 4 4 5 a - b (1131), 46b (1147), 51a (1165), 67a (1218); WHTK 167.1454 (1156). 83 SHY, hsing 4.63b (1203). 84 SHY, hsing-fa 6.78b (1142), 2.121a (1182). 85 HNYL 2568 (1148); SS 200.4994 (1174). 86 SHY, hsing-fa 5.39a (1163), 42b (1174), 41b (1189), 45a (1191), 4 6 ^ (1206), 47a (1212), 47b (1213). 87 SS 200.4994 (1174). 88 SHY, hsing-fa 4.53a (1174), 63a (1203); TFSL 502. 89 TFSL 500; SHY, ping 13.33a (1180).
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administrative powers. At the same time, the Sung government, ever concerned about losing power at the center, reduced the general role of the fiscal intendants, in part by emphasizing the roles of other intendants, such as the judicial intendants. The tension between the politics of centralization and decentralization is reflected in the growing importance of positions whose functions represented the interests of the center but whose incumbents had always to be kept from becoming too powerful. However, with the intendants as with other local officials, some policies actually made them less effective. The local gazetteers show that in the Sung, intendants, like prefects and other local officials, were in office for very brief tenures. Figures in the K'uai-chi hsu-chih indicate that in the late Northern Sung, from i ioo to 1123, 32 men were appointed to the post of judicial intendant in Liang-che Circuit, and in the 135 years from 1129 to 1264, 105 men were appointed to this post. Judicial intendants thus held their appointments for 1 year on average. Figures from the San-shan chih suggest that in the area covered by that gazetteer, judicial intendants during the Northern Sung served an average of slightly less than 18 months, and in the Southern Sung slightly more than 18 months. 90 We might have a better picture if we assumed that the bulk of the routine work continued to be done by subordinate officials and clerks and that the judicial intendants were truly useful only when there was a fortuitous combination of a competent and energetic official and a crisis that caused the state to leave him in his post long enough to be effective. 90 Liang K'o-chia, San-shan chih, SYTFCTS ed., p. 7843.
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8 Personnel selection
Introduction — general personnel patterns To deal with disorders, the authorities must get enough adequately armed and trained personnel to the site in time, but such men will be useful only if they are properly led. Proper leadership implies experienced leaders with sufficient training in practical skills, as well as appropriate aims and motivations. The worst possible situation would be to have field-level leaders with practical expertise who held goals hostile to the general aims of the state. The tension between service to state and service to self, family, or some other limited group was nowhere in sharper focus than on this low level of the bureaucracy. Many men on this level could never be held to high standards of behavior by the lure of high office. Their chances of advancement were slight, especially if they entered the civil service through one of the less preferred methods. Therefore, if they were to be kept from abusing their positions to enrich themselves and their families, they had to be controlled by superiors and adequately remunerated. But what was desirable might not be feasible. Given the limited fiscal base of the traditional Chinese state and other competing demands on its resources, its ability to remunerate its functionaries was also limited. Therefore selecting men who, by their characters, would be inclined to behave properly was all the more important. To select a few such men would have been no problem. With an empire the size of the Sung, in which low-level bureaucrats numbered in the tens of thousands, it was a formidable task. Recent research suggests that the total bureaucracy in the Sung may have numbered about forty thousand men, of whom the vast majority were in the lower-level offices.1 Tens of thousands of officials had to be selected. If the Court did 1 See Li Hung-ch'i, "Sung-tai kuan-yiian shu te t'ung-chi" (Statistics on the number of Sung dynasty officials), Shih-huoyueh-k'an 14 (September 1984): 227-39.
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Law and order in Sung China not want to delegate the power of selection to people away from the capital, if it wanted to maintain central control over appointments, it had to devise bureaucratic mechanisms for selecting skilled and motivated men for specific posts.
Sung system of offices The desiderata were easy to identify. Sung statesmen recognized the critical role of personnel selection in maintaining order. The rise of banditry was repeatedly blamed on the use of incompetent officials.2 Although the authorities recognized that circumstances beyond the control of local officials, such as widespread natural disasters, might contribute to disorder, they also felt that such underlying causes usually became truly threatening only when their effects had been exacerbated by the actions of ineffective or venal officials. The answer, to choose good officials, was simple in theory. However, in practice, getting the right officials to the right place at the right time was not always easy. Were the officials chosen equipped by background and training to perform their functions well? Did they have the requisite combination of bureaucratic skills, commitment to the proper values, and martial abilities? The history of the position of sheriff under the Sung reveals the difficulty that the government had in finding men who combined these somewhat disparate talents, so that people were usually selected on the basis of only one criterion or by the grim reality of the available pool of candidates. The Sung civil service, in which the sheriff played only a minor role, was heir to a bureaucratic tradition already more than a millennium old. The Chinese had early learned the enormous power of systematically organized behavior. This was reflected in a carefully structured formal political apparatus, composed of three segments: a civil government branch divided in the Sung into nine grades, a military service, and a clerical service that was despised and feared by many members of the regular civil service, feared perhaps because of its functional indispensability and its huge size and despised because its members were viewed as venal and unethical. The founders of the Sung had inherited from their predecessors a system of offices that had been functional in the T'ang but that over time had become titular. These offices were divided into nine grades (p'in) and each grade was subdivided into from two to four subgrades (chieh*). In the early Sung (before 1080) these titular offices were used primarily 2 See, for example, Wang Shih-p'eng, Mei-ch'i chi, 2.10b- n b .
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to determine salary and formal rank. They were periodically listed in rank order on protocol registers that provided in themselves a much more exact indication of formal standing. These titular offices were divided into two major groups, executory officials (hsiian-jen) and administrative officials (literally, "capital and court officials"; ching-ch'ao kuan). All the higher offices were staffed by the court officials. The capital officials included the middle group. The executory officials included local administrators, from the prefectural staff supervisors down to the district sheriffs, the recorders, the prefectural inspectors of education, and the teaching assistants who served in the state-supported local school system. Of the whole hierarchy of Sung titular civil officials (the protocol list of 1038 names nearly two hundred), the sheriffs outranked only the lowly educational inspectors and the teaching assistants. The rank of their military counterparts, the patroling inspectors, also was low. The sheriffs, being near the bottom of the hierarchy, were supposed to be drawn from among executory class officials, the men who formed the lower echelons of the civil service. 3 This group continued to be a major if not the major source of candidates for sheriff throughout the dynasty.
Profile of the Sung civil service During the Sung, the civil branch of the government was especially powerful. This bureaucracy of nine grades should be visualized as a sharply tapering pyramid, with most of the officials being in the lowest grades, lower eight and nine. Although the hierarchy of officials came to be based on the titular office held by an official, rather than the grade he held, for general purposes we can think of this grouping of officials in grades 8b and 9 as comprising the executory officials, with officials ranked at grade 8a and higher comprising a much smaller group of men occupying the policymaking levels of the government. The sharpest divide within the bureaucracy thus separated the capital and court officials - the administrative officials who made public policies - from the executory officials who carried out the policies. Almost all the men concerned with law enforcement came from the executory group. Men in the lowest grades far outnumbered their superiors, but this did not mean that the authorities found it easy to fill these low-level positions. First, because there were simply more positions on the bottom level than in the higher levels, large numbers of men were needed. Second, men nominated for positions could refuse to accept them, and often did so if the positions were unpromising. Men competed avidly for entrance 3 SHY, chih-kuan 48.65b-66a; HCP 385.3a. 253
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to the civil service, because this carried with it great prestige and the possibilities of power, but might decline to serve in posts in poor locations or with little chance of advancement.
Selection methods The Sung government used a variety of methods to select officials. Many of the methods used had been inherited from earlier dynasties, though some were carried further and given new importance under the Sung. The most famous selection device, and in many ways the most influential, was the traditional examination system. These examinations tested men on their knowledge of the Confucian Classics and on their ability to compose certain literary forms. The use of the examinations was based on the assumption that a knowledge of the Classics could measure the candidate's acquisition of appropriate values and of political acumen and that an ability to compose literature could indicate intelligence. Given the determination of top government leaders to reduce the power of the military and to emphasize civil values, and the absence of the aristocratic elite that had dominated T'ang politics, the examination system appealed to the emperor and his advisers. The Sung brought into the government an unprecedented number of examination graduates. The degree holders, although they were slightly outnumbered in the civil service as a whole by men who entered the civil service in other ways, dominated the policy-determining levels of Sung political life to an astonishing degree. An example is the position of prefect of Hang Prefecture, an important prefecture on China's southeast coast. Excluding those men appointed early in the dynasty, most of whom entered the civil service either during the Five Dynasties or in the opening years of the Sung, of the men on whom we have information, some 92 percent of the Northern Sung prefects were examination graduates. All seem to have been capital or court officials.4 The central authorities could assume that the graduates subscribed to the proper values and were qualified to perform the sheriff's bureaucratic duties, though they were open to criticism for not having military skills.5 A large number of sheriffs were selected because they had graduated from this civil service examination system. Some of these men were ordinary graduates. From at least the 980s, it seems to have been customary to nominate the lowest grades of graduates (both the doctorate in letters and other fields) to serve as recorders or sheriffs.6 4 McKnight, "Administrators of Hangchow." 5 HCP I 4 i . i 4 b - i 5 a . 6 HCP 21.3b (980), 24-ga-b (983), 29.8a (988), 46.13b (1000), 51.12b-13a (1002), 59.13b
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selection
During the Sung the regular examinations, given triennially, graduated an average of 140 men per year.7 Examination graduates were grouped in classes depending on their graduation level. Men from the lowest levels of graduates were the more likely candidates for the post of sheriff, with those in the higher brackets being offered more desirable posts. There were in the Northern Sung about twelve hundred districts, which suggests about an equal number of positions for district sheriffs. In the Southern Sung there was probably almost an equal number of sheriffs' posts, since there were then fewer districts, but many had two and some more than two sheriffs. Given the number of potential positions and estimating that on average a sheriff did not serve more than one term, the state would have needed approximately 300 men per year to fill the vacant positions. Graduates of the regular examinations could have provided at best only a fraction of the men needed. Examination graduates probably continued to be an important but numerically small source of sheriff candidates during the Southern Sung. Although there is little information on the use of examination graduates as sheriffs during this period, Tu Cheng (1166-after 1218) did submit a memorial recommending the use of new doctors-in-letters for longvacant sheriffs' posts. 8 Occasionally men were also appointed as sheriffs after special (as opposed to regular) examinations.9 Between 1140 and 1206 the sheriffs were also drawn from men who received their official ranks in the facilitated examinations. These facilitated examinations were special, relatively simple examinations given to men who had repeatedly (and unsuccessfully) taken the regular civil service examinations. When such men reached a specified age and had taken the regular examinations a specified number of times, they might be permitted to take the easier facilitated tests. Ostensibly the Court wanted to reward these men for their persistence in studying the canonical texts; the system also served to defuse the resentments of those who had studied long without success. The authorities recognized that such men might be of marginal competence, but because they were elderly, they would not long be a burden on the state. Graduates might be presumed to be thoroughly familiar with the Confucian Classics. Un(1005), 68.14b (1008), 71.25a (1009), 114.11b (1034), 204.14b (1065), 403.2b (1087). 7 The figures on which this very rough estimate are based are from Thomas H. C. Lee, Government Education and Examinations in Sung China (Houg Kong: Chinese University
Press, 1985), pp. 279ft0.My only intent here is to provide a very approximate picture of the relationship between examination graduates and potential candidates for the post of sheriff. The picture can be only sketchy, because the size of the bureaucracy changed over time and the figures for examination graduates are defective in various ways. 8 Tu Cheng, Hsing-chan Vang-kao, SKCSCP ed., 6.naff. 9 See HCP 276.9a.
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Law and order in Sung China fortunately, at least in the opinion of many regular officials, they also were not too bright. The use of such men as sheriffs increased during the Southern Sung, which may reflect the growing importance of this type of examination during the Southern Sung, when the regular examinations became more highly competitive. 10 All the reports we have about this practice are complaints about the problems caused by using such incompetent persons or directives that they not be appointed if over sixty, but the repetition of such orders probably means that in practice they continued to be used.11 Thus political reality led the Sung authorities to draw on a group whose qualifications for the position of sheriff were suspect at best. Despite the importance of examinations as a route to official rank, the emperors did not surrender the power to circumvent this relatively meritocratic system. Official status was frequently granted as a matter of imperial grace. This served to create a body of men whose status depended entirely on the goodwill of the throne. Unlike their colleagues who had graduated from the examinations, such men derived their power from, and were indebted to, their immediate sponsors and the emperor. The continued use of large numbers of such men in active government service was simply one more example of the Sung rulers' determination not to allow any group to have exclusive or nearly exclusive control over any vital political function. At times, appointments to the post of sheriff through the benevolent dispensation of the emperor came in response to the meritorious actions of the men so honored. Occasionally the appointees were men who had submitted proposals (usually dealing with suppressing disorders) that had received the attention of the emperor, and were given the position as a reward. Such attention might catapult commoners into office,12 or it might merely lead to a job for an unemployed examination graduate. 13 Such men had at least demonstrated a theoretical interest in and understanding of the problems of law enforcement. Others, who had no claim to such qualifications, might be chosen because it was socially and politically expedient. Thus grace was also extended to certain imperial 10 See Chaffee, The Thorny Gate of Learning in Sung China.
11 SHY, chih-kuan 48.71b (1140), 48.79a (1180), 48.81a (1185), 48.81 a-b (1190), 48.83a (1206); HCP 120.8b; SS 35.672 (1181). 12 See the case of a commoner from Chen Prefecture who was ordered appointed as a recorder or a sheriff because he had submitted an ingenious plan for taking over some troublesome southern barbarian areas (HCP 236.3a—b). 13 In 1080 a doctor of letters named Liu Tang was appointed sheriff of Hsiao District in Hsu Prefecture because he had sent up a memorial containing ten suggested regulations for controlling bandits (HCP 304.15a). See also a case dated 1075 (HCP 2506.21b).
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Personnel selection relatives. Such people were automatically accorded official rank, following specific rules. 14 At times they were actually awarded substantive offices, including that of sheriff,15 at least during the reign of the Emperor Shen-tsung (r. 1065-78), who approved a proposal that the most distant group of imperial mourning relatives (those with the three months of mourning obligation) be used as sheriffs.16 Men were also appointed through the "protection" (yin) system, under which high officials could gain official status for relatives. This was a very important tool for controlling the bureaucracy. In the words of Winston Lo: The prospect of being able to confer the yin privilege on one's heirs was one of the most powerful incentives that the Chinese civil service had devised. From the Han period on, it had become a standard part of the personnel practice of successive dynasties. If we may characterize the relationship between the emperor and his ministers as a contractual relationship, thejym privilege must be considered an important part of this contract. It was an integral part of the remuneration for which ambitious men were prepared to make the utmost sacrifice to enter to emperor's service and gain his good graces.17 Before 1002, high officials exercising their yin privilege could ask that appointments (including appointments as sheriff and recorders) be awarded to their protegees and in-laws. In 1002 it was decreed that officials could seek appointments through yin only for relatives with the same surname. 18 Despite such limitations, however, the yin system was the principal device, in terms of numbers, for selecting government functionaries. Such men outnumbered those who came in by other routes, though they did not outweigh them in terms of political power. According to Winston Lo, people qualified only through yin may have suffered discrimination in competing for posts calling for literary abilities. And in the Northern Sung at least, they seem to have been underrepresented in the higher levels of the civil government. The situation changed, however, during the Southern Sung. Figures for 1213 indicate that at that time 18 percent of those who had entered the civil service through the examinations had advanced to the elite administrative class of the bureaucracy, whereas 82 percent were in the lower executive class. 14 SS 159.4b-5a. See also Yang Chung-liang, Hsu tzu-chih t'ung-chien ch'ang-pien chi-shih 15 16 17 18
pen-mo (Taipei: Wen-hai, 1967), 35.4a. The Sung system was very like that of the T'ang. See Robert des Rotours, Traite des examens (Paris: E. Leroux, 1932). pp. 223-25. HCP 239.2b. HCP 239.2b. Lo, An Introduction, p. 103. Much of the following discussion of the civil service position of the sheriff is based on information from Professor Lo's book. HCP 53.16b.
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Thirteen percent of those who had entered the service through yin were members of the elite administrative class, and 87 percent were in the executive class. These figures suggest that entering by way of the examinations was not so important during the latter period. 19 Given the large number of men who entered through the yin privilege, the sharply tapering pyramid of power in the Sung bureaucracy, and the predominance of examination graduates in higher offices, at least in the Northern Sung (and perhaps to some extent in the Southern Sung), the majority of yin entrants were likely to spend a good part of their careers in low offices such as that of sheriff. Such people might be intelligent and fully conversant with the Confucian Classics and the values they enshrined. But because they had not gone through the examination process, the degree to which they were conversant with the cultural core of the Chinese tradition was problematic, though it might be supposed that such candidates, who came from elite families, shared the ruling class's values and so had gained some feeling for politics and bureaucratic processes as a result of their upbringing. Various sorts of officials with irregular credentials were also appointed as sheriffs. Su Ch'e, writing in 1086, reported that in Kuang-nan, irregular officials (she-kuan) with two formal recommendations from the circuit authorities could be used as recorders or sheriffs and could become regular officials if they had no faults during two terms of office.20 Irregular officials of this sort were peculiar to the far south, where the normal practices of the rest of China sometimes did not apply. Because of the scarcity of qualified officials from other regions willing to serve in this region, the central authorities made an exception to the general rule and allowed locally prominent men to move directly into government positions through the device of "irregular office." During the Northern Sung, locally resident functionaries who were "outside the career" (liu-wai), that is, not in the regular civil service, were also used as sheriffs. During the T'ang, such men had occupied positions of considerable responsibility, but by the Sung the position of this group had declined. Most such men seem to have served in subordinate staff positions in government offices, doing routine work and 19 See Lo, An Introduction, p. 85. The figures are from Li Hsin-ch'uan, Chien-yen i-lai chao-yeh tsa-chi (Taipei: Wen-hai, 1966), vol. 2, I4.i5a-b. There is one caveat to the implication of these figures: In the Northern Sung a significant number of those who initially gained entrance to the civil service through the yin privilege later succeeded in the examinations. I have no data on how frequently this happened in the Southern Sung, but presumably it did on occasion. Thus the figures given by Li Hsin-ch'uan, which pertain to the initial method of entrance, may not accurately reflect the impact of the examinations on career success. 20 HCP 368.9a.
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having little opportunity to exercise independent judgment. They were, however, occasionally appointed to responsible local posts. In response to a complaint in 109721 the central authorities in 1098 stopped such functionaries from being appointed sheriffs in districts in which they would have to serve concurrently as recorders. 22 Sheriffs were also sometimes chosen from men with clerical backgrounds. Clerks were the workhorses of the traditional bureaucracy. A typical Sung district, with from one to four civil service officials, might range in population from fewer than a thousand households to several tens of thousands of households. The civil government was headquartered in the district town, where the civil service officials spent most of their time. It is inconceivable that they could have exercised any degree of control at all over the affairs in their jurisdiction without the support of non-civil service subordinates who functioned as gatekeepers, wardens, secretaries, and clerical functionaries. Such persons certainly outnumbered their civil service superiors by as many as a hundred to one. The civil service functionaries, whatever their actual method of entry into service, were presumed to have been socialized into the higher ethics of governmental work. The non-civil service clerical functionaries, however, whatever the ethical level of their actual behavior, were systematically stigmatized as venal and inferior. In the documents of the period, written almost exclusively by civil service officials, clerks are stereotyped as dissolute and corrupt. At the beginning of the Sung, none of them seems to have been regularly salaried, and even after the reforms of the late eleventh century, most were not paid a living wage. They therefore had to gain their livelihood by squeezing payments from those who needed their services and support. The rabid denunciations of clerical venality that are sprinkled through the writings of Sung officials can be traced in part to actual abuses and excesses by clerks. It is equally certain that they reflected the fear and frustration of officials who recognized the passive power of the clerks, without whose efforts the government's daily operations would have been impossible. The civil service group not only denounced the improprieties of clerks. They also sought to place strict limits on clerks' upward mobility. Although from early in the Sung, a tiny handful of clerks were allowed to transfer into the regular civil service, this was possible only after extremely long and meritorious service. The use of such transferred clerks as sheriffs was forbidden by an edict of 1132,23 but a report dated 21 HCP 491.7a. See also SHY, chih-kuan 48.62b (1024). 22 HCP 494.6b; SHY chih-kuan 48.66a. The order was repeated in 1100. For the background of this order, see HCP 491.7a (1094). 23 Liu Cheng, Huang Sung chung-hsing, 11.4b.
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Law and order in Sung China 1206 states that when selecting sheriffs the authorities "frequently nominate men who have qualified through the facilitated examinations or who are ex-clerks." 24 Other irregular appointees were drawn from among men with official rank through "contribution," that is, men who had been granted rank because in times of great need such as famines they had made gifts to the state. 25 Men were also drawn from the relatives of sheriffs killed in the line of duty. 26 And at the beginning of the dynasty, sheriffs were appointed from ex-officials of the southern states conquered by the Sung. 27 All these irregular groups were less than ideal, being deficient in either experience or capacity or having dubious values and loyalties. Finally some men were appointed from those who had served previously in local offices - from district magistrates who were being demoted or from sheriffs and recorders being moved to new districts. These men were presumably capable, albeit not outstanding.
Civil versus military credentials These various sorts of candidates, with their predominantly civil backgrounds, might at best have had some qualifications for dealing with the bureaucratic side of a sheriff's duties. Ideally they would be gentlemen. The actual law-enforcement facets of the position, which called for military skills, required a different set of talents. For the military the state needed heroes, men with the training and inclination to use violence. Although men with the various civil backgrounds just described probably supplied the majority of sheriffs, from the 1070s to the end of the dynasty many sheriffs had military credentials. These men might be graduates of the military examinations, 28 men who apparently gained merit in battle without being members of the military officer corps, 29 or most frequently servitors minor (hsiao shih-ch'en) or servitors major (ta-shih ch'en) whose dossiers described them as militarily talented. 30 One quite large group of men classified as servitors were not in fact military men but, rather, those who had won their military officer 24 SHY, chih-kuan 48.83a. See also HNYL 904. 25 See an approved memorial dated 1219 in which the memorialist noted two men so chosen and asked that in future such men be used only as tax officials (SHY, chih-kuan 48.86a-b). 26 HCP 122.1 a, 130.5a, 2400.7b, 2400.24a, 140.6a, 1412.14b, 152.11a, 172.8b. 27 HCP 22306.4a (971). 28 SHY, chih-kuan 48.760-773, 48.81a, 48.83a, 48.85b, 48.87a-b; Liu Cheng, Huang-Sung chung-hsing, 47.15a. 29 SHY, chih-kuan 48.71b, 48.69b. 30 SHY, chih-kuan 48 et passim; HCP 290.5a.
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classification through the protection {yin) of relatives who were members of the imperial clan. Such appointments, which we might see as nepotism, were in the Sung context an expression of the emperor's familial concern and a device for counterbalancing the power of the examination graduates. There is no reason to assume that these men had military skills or interests. The second largest group of servitors, after the yin beneficiaries, was the men who had transferred from regular military officer positions.31 Moreover, the sources suggest that when men were chosen from among the servitors for law-enforcement posts, they were selected mostly from those with military backgrounds. The sources often specify that "men with military talents" were wanted for such posts. Those with other backgrounds may have clustered in nonmilitary jobs like those of the service agents who oversaw tax collection depots. 32 The split between civil and military sheriffs forms the heart of a long continuing dispute within the bureaucracy over the qualifications needed for appointment as a sheriff. Although all parties recognized that a sheriff had to be physically vigorous and possess military prowess, there were sharp differences over the importance of military versus civil skills. In part this dispute reflected the various problems in the empire. In areas where serious violent crime was a major problem, there was a tendency to favor military men as sheriffs. In regions where such major violence was less of a problem, Sung officials tended to stress the dangers of using military officers, whose commitment to appropriate values was questionable and who were moreover serving in a post that required many bureaucratic skills.33 Lack of bureaucratic skills was a very serious problem. A reading of the materials suggests that many of the servitors minor were barely if at all literate and thus would be unfit for the nonmilitary aspects of the sheriff's role.34 This dispute did not arise until the latter part of the Northern Sung. Because the sheriffs had originally been established as one means of reducing the powers of the military, there does not seem to have been a question of appointing military men to these offices before the reign of Shen-tsung (r. 1067-85). Then, perhaps as one part of Wang An-shih's 31 Winston Lo, "A New Perspective on the Sung Civil Service," Journal of Asian History 17 (1983): 121-35. 32 SHY, chih-kuan 48.71b, 73a-b, 74b, 129a; Yuan Shuo-yu, Tung-Vang chi, SKGSCP, 8.20a. 33 At times the bureaucratic treatment of these two types of sheriffs differed. In 1176 it was ordered that military sheriffs with five years of tenure be granted advancement under the rules governing acting police commissioners (SHY, chih-kuan 48.77b-78a). 34 SHY, chih-kuan 48.68-69a (1127), 48.69a (1127), 48.69a-b (1132), 48.71b-72a (1141), 48.72b (1145), 48.74b (1163), 48.74b (1163), 48.75a (1168), 48.75b (1170), 48.76b (1173), 48.79b (1181), 48.80b (1184), 48.81b (1195), 48.81b-82a (1201), 48.82b (1202), 48.83a (1204), 48.85b-86a (1215).
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general reorganization of some areas of the government, the state began to appoint military men. In 1077 there were requests that military officers be sent as sheriffs to certain northern border districts and to districts in Ching-tung Circuit that had suffered natural disasters, an area that corresponded roughly to parts of present-day Shantung and Ho-pei. 35 Two years later we find a list of eighteen districts along the northern and western borders for which the Bureau of Lesser Military Appointments was told to select servitors minor as sheriffs.36 This policy seems to have been due in part to a conviction that only military officials could do a competent job of giving military training to the men of the newly established pao-chia militia system. 37 In 1082 this practice of appointing military men as sheriffs was extended to all heavy-penalty areas (chung-fa-ti), places where certain types of criminals were subject to especially severe punishments. 38 Within a few years this policy was bitterly attacked by Su Ch'e, who was particularly worried about the insufficient ethical socialization of military men: According to the old system, sheriffs were always selected from among civil executory officials [hsiian-jen]. Recently, because the people have become impoverished, bandits have become numerous. Those who deliberated on affairs did not understand how to solve the problem. Therefore they asked that in heavypenalty places, military men be used as sheriffs. I have not heard that after this change the number of bandits decreased as a result. Moreover, the military men used are corrupt and harsh. They do not fear the laws and act oppressively. The archers do not have their hearts in law enforcement and bedevil the villages, troubling the people. I feel that in the art of capturing bandits, the most important step is first to gain the archers' commitment. Next in importance is to secure the aid of the villagers, for they spread the net. If beforehand the method is understood, it will be easy to complete the job. Under the old system in which civil candidates were appointed, even if they did not completely follow this, still they respected the laws and had good relations with the people. It was not necessary that they themselves be able to shoot and ride, but still they could capture the criminals. The reason for Su's objections is noteworthy. The military are especially criticized for behavior that reflects their incorrect values, whereas the civilian candidates are praised for the propriety of their behavior in office. The contrast is between the gentleman, albeit not a perfect gentle35 HCP 280.9b, 282.2a. 36 HCP 290.5a; SHY, chih-kuan 48.64b. 37 SHY, chih-kuan 48.67a. See Wu Ching, Chu-chou chi, n.8b-ioa, for a spirited argument that the position of sheriff was basically military by both nature and tradition. 38 HCP 328.2a; SHY, chih-kuan 48 65a.
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man, and the overbearing hero. Clearly the government had failed to devise institutional restraints that could control the police officials, or policies that would lead to effective indoctrination of its military personnel. Su Ch'e's request that civil officials again be used was accepted in part, and it was ruled that military officials be used only in border regions. 39 Such men continued to be used in border regions during the remainder of the Northern Sung, 40 although civil sheriffs were also sometimes appointed to these areas. 41 This reemphasis on civil officials was reversed during the period of troubles that began with the rebellion of Fang La in 1120-21 and culminated in the Jurchen invasions of the middle and late 1120s. Military men were sent to previously civil posts, 42 and for a brief period (1131—34) there seems to have been a general policy to increase the number of military sheriffs.43 Needing military sheriffs for their lawenforcement talents, the authorities still sought some way to counterbalance their bad qualities. A memorial by the official Wang Yang (doctorate of letters degree 1123) even suggests that there may have been a deliberate policy to create a dual system, with "a civil sheriff to guard the laws, and a military sheriff to press the attack." 44 Whether or not there was a policy to create a dual system, there was without doubt a move to increase the number of sheriffs, so that districts often had two, and occasionally more than two, sheriffs. Indeed, the Southern Sung official Yiian Yiieh-yu suggests that the accepted policy was two sheriffs per district. 45 As order was restored in the 1130s, the emphasis on military sheriffs declined. There was even a decree that they be replaced by civilian sheriffs,46 but during most of the Southern Sung, the state employed a mixture of civil and military men as sheriffs. The prefecture described by Gh'en Yuan-chin (doctorate of letters degree 1211) was probably typical, having some districts with only civil sheriffs and some with one civil sheriff and one military sheriff.47 This, like the increasing number of patroling inspectors, is another facet of the militarization of law enforcement during the Sung. 39 HCP 385.3a; SHY, chih-kuan 48.65b-66a. 40 SHY, chih-kuan 48.66a, 67b.
41 42 43 44 45 46
SHY, chih-kuan 48.67a ( n 15), 48.67a (1116), 48.67b ( n 17). SHY, chih-kuan 48.68a and passim. SS 26.19b, 27.17b. Wang Yang, Tung-mou chi, 9.19b-20a. Yiian Yiieh-yu, Tung-t'ang chi, 8.23a. SHY, chih-kuan 48.70b, 70b—71a; Liu Cheng, Huang Sung chung-hsing, 14.18a, 15.13a; HNYL 1257. 47 Ch'en Yuan-chin, Yu-shu lei-kao, SKCSCP i.2b~3b.
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In general, military men - sometimes limited to those younger than fifty years of age - were frequently used along the borders and the seacoast or in other regions where there were serious problems of lawlessness. 48 After 1159, graduates of the military examinations were apparently appointed as sheriffs in some border posts, 49 but civil officials were generally preferred in other areas. There continued to be the same sorts of complaints against military sheriffs. Ch'en Yuan-chin, reporting on some places in Chiang-nan West Circuit that had military sheriffs, said that such men were out of touch with the people, were wholly at the mercy of the clerks, were in some cases completely illiterate, were toadies to the local powers, and were abusive to their subordinates. 50 This dispute, never completely resolved, led in the Southern Sung to a complicated system under which the districts seem to have been placed in certain categories that determined the order of preference for different types of candidates. In a given district, preference might first be given to civil officials of the executory class. If none was available, the next choice might be servitors major, and if servitors major were not available, the choice would be servitors minor. 51 Within these categories of men, preference would be given to those characterized in certain ways in their official dossiers. There are many limited and partial reports on selection that provide tantalizing glimpses of the criteria and procedures used. Fortunately, a more complete report dated 1174, in combination with more scattered evidence, gives a more coherent picture of selection in operation. The initial nomination from among men on lists of candidates was to be made from men in certain specified civil service categories, by specific officials, within a set period of time (five days for initial nominations at the capital). If no men were found within the most preferred category, then the selection would pass on to the next most preferred group, and so on. The candidates generally had to be younger than sixty years of age. This seems to have been true from early in the Sung and remained so at least into the thirteenth century. 52 In certain cases, in which military talents were particularly needed, the age limit was fifty years. 53 48 SHY, chih-kuan 48.74b (1163). See also Yuan Yiieh-yu, Tung-t'ang chi, 8.23a; Tu Cheng (1166-after 1218), Hsing-shan t'ang-kao, 6.i6a-b. 49 HNYL 181.3005. 50 Ch'en Yuan-chin, Yii-shu lei-kao, i.2b~3b. 51 SHY, chih-kuan 4 8 ^ - 7 7 0 . 52 HCP 102.8b (1028), i 3 3 . i a - b (1041), 12899.14b (1042); SHY, chih-kuan 48.63a (1041), 48.63a (1042), 48.64b (1103), 48.74a (1164), 48.79a (1180), 48.81b (1192), 48.87a (1219). But see the anecdote in Wang P'i-chih, Sheng-shui yen-Van lu, Chih-pu tsu chai ts'ung-shu ed., 9.3a, about a seventy-five-year-old sheriff. 53 SHY, chih-kuan 48.73a-b (1156), 48.74b (1163), 48.82b (1202).
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They could not be found (on the basis of a physical examinations) to be ill, disabled, or otherwise incapacitated. They had to have records free from certain types of offenses. Men might also be excluded from service if their dossiers recorded convictions for public misdemeanors (kung-lsui), infractions committed in the line of administrative duty and not for any personal reason, or private infractions (ssu-tsui) in which the violation implied a desire for personal advantage. 54 Literacy became a problem during the late Northern Sung when military officials, many of whom were barely literate, were more and more frequently nominated; so in the Southern Sung tests of the candidate's ability to read and write were introduced. 55 In 1178 it was decreed that candidates for the position of sheriff or supervisor of a market town had to pass a test on reading the laws in order to demonstrate their literacy. 56 There were also problems in the Southern Sung with using supernumerary officials, men who held official credentials at the lowest levels of the hierarchy but who ordinarily were not active members of the civil service. They were said to be ill qualified.57 Finally, it seems that preference was given to men who had already entered on an official career (ch'u-shen), who were incumbent in office,58 who had had experience in police or military matters, 59 and who had been sponsored by higher officials.60 Selection ordinarily took place at the capital, where nominations of civilians, and sometimes of military officials also, were handled by the Bureau of Civil Nominations (Liu-nei ch'iian) within the Ministry of Personnel (Li-pu). At the beginning of the dynasty when military officials were not used, all central nominations were handled through the Ministry of Personnel; later in the dynasty the Bureau of Military Affairs entered the process. When the initially preferred candidates were civil officials but no acceptable civil candidates were available, the choice moved on to military candidates. The Ministry of Personnel still had
54 SHY, chih-kuan 48.62b (1027), 48.63a (1042), 48.63b (1068), 48.69b (1133), 48.83a (1204); HCP 12899.14b (1042). There are scattered instances in which men were rehabilitated and appointed; HCP 73.4a (1010), 80.2a (1013). 55 SHY, chih-kuan 48.76b (1174), 48.79a (1178), 48.880-893 (1178), 48.850-863 (1215). 56 SHY, chih-kuan 88b-89a. 57 Yuan Ytieh-yu, Tung-Vang chi, 8.23a. 58 SHY, chih-kuan 48.63b (1068), 48.71b (1140). However, the central authorities also chose men who were free and awaiting appointment; SHY, chih-kuan 48.82a-b (1201). 59 SHY, chih-kuan 48.71b (1140), 48.83a (1204). 60 In 1068 men were ordered chosen (for posts in the Kaifeng area) from among those who had already begun a career, who had already served one term in office and had thus collected three annual merit ratings without committing any public or private infractions punishable by a sentence of penal servitude or worse, and who had already had three sponsors (SHY, chih-kuan 48.63b).
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charge of the selection, but the Bureau of Military Affairs was sometimes asked to evaluate the nominations. 62 At other times, when military candidates were involved, the selection itself was apparently the responsibility of the Bureau of Military Affairs or the Bureau of Lesser Military Assignments (San-pan yuan). 63 In some cases the selection seems to have been made on the local level and was then forwarded to the capital for confirmation. Local appointment of local officials had a long history in China, but its role had been greatly diminished under the Sui (589-618) and T'ang (618-907) governments. The Sung, perhaps because the post of sheriff was at the same time lowly and important, sometimes permitted both permanent and temporary local appointments. At times during the Northern Sung there appears to have been a standard policy that local persons might be appointed by the intendants' offices,64 and a case from n 34 indicates that in the early Southern Sung, intendants were also able to make such appointments under certain circumstances. 65 The local authorities' prerogatives were greatest in cases in which they had been ordered to investigate incumbent sheriffs. If they judged these men unfit, they often could replace them with local candidates of their own choosing and have their choices reported to the Court for confirmation. 66 One report dated 1133 implies that such substitutes were subject to more stringent rules than were ordinary candidates, for it says that men could not be so used if the were "guilty of any crimes." 67 Irresponsibility was discouraged, by making the sponsors liable for punishment if their recommendations were unwarranted. 68 Under the rules of 1174 the first nomination was to be from among men described as "militarily talented and close to the people" (ts'ai-wu ch'in-min), 69 61 See SHY, chih-kuan 48.81b (1192), 48.73a-b (1156), 48.83a (1204), (1169), 48.74b (1163). 62 SHY, chih-kuan 48.73a-b (1156). 63 In 1117 there was an order that in border areas where the police commissioners and sheriffs were military officials, the Bureau of Military Affairs was to select those who had already served in border posts (SHY, chih-kuan 48.67b). For the Bureau of Military Nominations, see HCP 290.5a (1078), 432.8a-b (1089); SHY, chih-kuan 48.64b (1078), 48.79a (1178), 48.76b-77b (1169). 64 SHY, chih-kuan 48.64a; HCP 218.1a. 65 SHY, chih-kuan 48.70b—71a. See also SHY, chih-kuan 48.69a. Sometimes the local authorities merely recommended local candidates; SHY, chih-kuan 48.69a (1127); HCP I43.i9a-22a (1043). 66 HCP I43.i9a-22a (1043), 275.4b (1076), 365.1a (1086); SHY, chih-kuan 48.64b (1076), 48.68b (1127), 48 69b (1134), 48.70a (1133), 48.69b (1134), 48.71a (1135), 48.74b (1163), 48.79a (1180). In 1127 the fiscal intendants in Liang-che Circuit were told to depute nominees "within one month" (SHY, chih-kuan 48.68b). 67 SHY, chih-kuan 48.69b. 68 SHY, chih-kuan 48.69b (1134). 69 SHY, chih-kuan 48.76b. In a personal communication, Winston Lo suggested that
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Service agents with a military bent were the second choice.70 The number of possible combinations of qualifications was obviously very large. Because we lack a complete record, we will probably never be able to reconstruct this part of the system even for one period, much less trace its evolution through the Sung,71 but the general thrust of the policies is clear, a balance of priorities and abilities, in descending order of desirability. Functional importance and bureaucratic unimportance Although the post of sheriff was very low in the bureaucratic hierarchy, it bore heavy responsibilities. The importance of maintaining local order, combined with selection policies that filled many of these slots with either bureaucratic beginners or the aged and incompetent, led to an almost continuous litany of criticisms. Wu Ching (1125-83) is typical. Complaining of the appointment of new civil officials, he observed: Such men, if not doctoral graduates, are the sons and brothers of the local elite [shih ta-fu]. We use such civil officials to handle military matters, placing in lowly positions men who must handle weighty problems, appointing subordinate bookworms without administrative experience, men who because of their backgrounds are unfamiliar with the difficulties of rural life.72 The response of the central administration was a succession of orders that local administrative officials examine and test incumbent sheriffs so as to weed out those unfit for service, and the design of the detailed policy on selecting candidates just described. A system of physically testing sheriffs and patroling inspectors seems to have been introduced early in the dynasty. It is not clear whether all the men appointed to this office were so tested or only men in those regions from which officials had submitted complaints about the physical incompetence of police. Beginning in the 1040s a sequence of directives set higher standards for the original selection of sheriffs73 and ordered
70 71
72 73
these two terms may have been technical terms, with ch'in-min probably indicating that the person in question had served in general administrative posts. SHY, chih-kuan 48.76b; see also SHY, chih-kuan 48.70a. Such men were at least sometimes graduates of the military examinations; HCP 328.2a (1082); SHY, chih-kuan 48.81a (1185). This system was planned down to its most minute details. For example, we learn from one document that in the circuits of Huai-nan, for which either civil or military sheriffs might be nominated, if two men - one civil and one military - were nominated on the same day, the post was to go to the civilian (SHY, chih-kuan 48.76b-77b). Wu Ching, Chu-chou chi, u . 8 a - i o a . For example, that men to be appointed to these posts had no convictions for rapacity, were under sixty years of age, and so on (see HCP 133.1a—b).
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Law and order in Sung China superior officials to examine incumbent sheriffs and patroling inspectors and replace the incapable. Initially these inspections were handled by the circuit intendants. 74 During the Southern Sung, perhaps because the bureaucratic level of the patroling inspectors had been lowered, the investigations were frequently handled by prefectural officials75 and only occasionally by the intendants. 76 Men judged incompetent as sheriffs were not necessarily cashiered; frequently they were merely transferred to positions requiring less physical prowess, such as recorder or service agent (chien-tang).77
Motivation Sung authorities might devise guidelines for choosing men competent to be sheriffs (or patroling inspectors) and mandate tests to evaluate their physical fitness. A more difficult problem was how to encourage the men so chosen to accept the offices and perform the duties entailed without abusing their powers. In particular, in its law-enforcement services the Sung faced a perennial problem: how it could encourage its officers to carry out their sometimes dangerous tasks actively and aggressively while preventing them from exceeding their bounds. The Sung authorities responded to these potential problems in a manner typical of traditional Chinese bureaucratic empires, which we outlined when describing the reward system. They created large numbers of regulations that specified appropriate procedures and behaviors. Like all others aspects of Sung government, law enforcement was governed by a bewildering plethora of rules. No major set of such rules is now extant, but scattered through the sources we do have examples of the names of collections, such as the "Rules on Seizing Bandits" (Pu-tsei t'iao) of 962. 78 This pattern is a characteristic governmental device of the Chinese states. By specifying permitted actions, it allowed superiors to monitor the actions of subordinates and permitted the easy and early identification of dangerous tendencies. This forest of rules was characteristically Chinese in another way. By establishing these regulations the authorities created the appearance of a government of rules; by making the rules so numerous they also almost guaranteed that ordinary officials 74 SHY, chih-kuan 48.63a (1041), 48.65b (1086); HCP 144.2b (1043), 271.14a (1075), 305.13a (1080), 335.15b (1083), 365.1a (1086). 75 SHY, chih-kuan 48.71a (1135), 48.81a (1185), 48.83a (1206), 48.135a (1211); HNYL 84.1383 (1135). 76 SHY, chih-kuan 48.73a (1149). 77 SHY, chih-kuan 48.70a (1133), 48.83a (1206), 48.135a (1211); Hu Su, Wen-kung chi, pp. 85-86. 78 HCP 3.14a.
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would regularly be in violation, so that their professional welfare would in fact depend on their personal relationships with those with the power to sanction breaking the rules. A government of laws in theory became in practice a government of personal connections. One key element in the Sung strategy for securing effective police work was a set of rules defining not only the proper and improper performance of duty but also the rewards (and punishments) meted out to those who did well or ill. This policy is simply a specific example of a general traditional Chinese practice of using regulations and laws to control subordinates by limiting their discretion and defining their tasks, and associating these restrictions with rules for rewarding proper performance and penalizing failures. The original Sung rulings, established in 962 and 963, simply followed the "previous regulations," presumably inherited from the T'ang and Five Dynasties.79
Rewards and punishments Like informal and semiformal agents, formal police agents could benefit from the system of rewards for capturing criminals or suffer penalties for failing to do so. The system was by no means always fair in practice. The Southern Sung official Wang Chih-wang (d. 1170) wrote to complain about a recent order penalizing certain local officials when in fact they had just succeeded in capturing major bandit gangs. 80 Like most aspects of Sung government, these rules were periodically collected for more convenient reference by the authorities. These reward rules, which were governed by a type of law in the Sung called ko, might refer to specific areas or groups. In 1086 the Ministry of Finance compiled the "Reward Laws for the Capture of Bandits in Cheng and Hua Prefectures,"81 and in that same year the Bureau of Military Affairs petitioned successfully to have the "Rules on Rewards for Capturing Bandits Applicable in Shensi and Ho-tung" recompiled. (The bureau was dissatisfied with the existing compilation because it had been created during the Reform period.) 82 The rewards offered to officials usually took the form of advancement within the civil service but might also include gifts of money or goods; the penalties might include loss of salary, demotions, expulsion from office, or even criminal punishments. In a bureaucratic world, bureaucratic advancement was the most coveted prize. Unfortunately, there are 79 80 81 82
SHY, chih-kuan 48.60b. Wang Chih-wang, Han-p'in chi, SKCSCP 1975, 7.24a-25a. SHY, hsing-fa 1.13a; HCP 373.17b. HCP 368.22b-23a; see also HCP 307.5a.
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still so many obscurities surrounding the actual working of the Sung personnel system that at times it difficult to evaluate the meaning of the rewards offered to ambitious sheriffs. Promotion Movement upward through the civil service hierarchy was affected by tenure (usually measured in terms in office, jen), by annual merit ratings (k'ao), by recommendations from higher officials, and by the rewards and commendations earned by the official himself. The speed of the promotion was also affected by the method through which the man had originally entered the civil service and, in some cases, by special examinations for advancement (including examinations in law). Of all the factors influencing his bureaucratic advancement, the one most directly under the control of the sheriff or the patroling inspector was the accumulation of merit through the system of rewards and commendations. Ideally, sheriffs would spend their terms without outbreaks of banditry and would be rewarded. In the more usual case, sheriffs (and in a rather similar way, the patroling inspectors) could earn rewards if they killed or captured bandits (i.e., armed and violent robbers, not thieves) within the time limits set by law. The rewards and punishments were determined by the number of men captured, the percentage of the gang captured, and the dangerousness of the criminals. Conversely, those who failed to capture wanted men in the set time limits suffered a graded set of sanctions. 83 Under the 962 rules there were three time limits of twenty days each for capturing armed or murderous bandits. Apparently this limit was later extended to thirty-three days. The general pattern of three equal limits of approximately one month each remained in use during the rest of the dynasty. 84 Under the system inaugurated in 962, a sheriff who captured any of the wanted bandits within the first time limit was to be "forgiven one selection" (chien i hsuan). This presumably would have meant that unlike an official proceeding in the normal pattern, he would not have to wait for such an extended time on furlough before becoming eligible for another appointment. 85 If he captured some of the bandits 83 SHY, chih-kuan 59.1b. Because the Chinese government was thoroughly bureaucratized, hapless officials might also face the opposite problem. Men of merit were sometimes denied rewards or even penalized as a result of the nature of the reward procedures (see P'eng Kuei-nien, Chih-t'ang chi, n.135-36). 84 HCP 3.i4a-b; SHY, chih-kuan 48.60a. This system of three time limits does not wholly agree with the rules preserved in the Sung Code; SHT 28.1b. For the continuing use of three limits, see SHY, chih-kuan 48.61a (986); HCP 97.11b (1021). 85 See Lo, An Introduction, p. 133.
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within the second limit, he would be "moved forward one step in seniority" (ch'ao i tzu). If he captured some within the third limit, he would advance one subgrade in stipendiary office {chieff). If within these limits he seized the majority of the gang, the aforementioned reward would be doubled - he would be advanced two subgrades, forgiven two selections, and so on. If the sheriff or district magistrate personally fought with the bandits and captured them all, he was to be rewarded with a gift of dark red ceremonial clothing, clothing ordinarily restricted to officials of the sixth rank or higher. If the sheriff had done the fighting, he was to be appointed a magistrate. A magistrate who had fought was to be advanced in office. The meritorious officials were granted an additional two steps in seniority. If they personally fought with and captured half of the gang or the leader, they were to be "rewarded and commended" (ch'ou-chuang),86 86 Unfortunately, some parts of these rulings on promotion and demotion are more easily read than understood. During the T'ang dynasty, men newly entering the civil service and men finishing terms in office were required to take special examinations for placement in a new post. These examinations were called hsiian. See Rotours, Le Traite des examens, pp. 213 ff. By Sung times this system appears to have disappeared completely. Men were selected on the basis of the information included in their dossiers, without having to be examined. Indeed, after 972, executory-class officials did not even have to go to the capital to receive a new appointment (see Kracke, Civil Service, pp. 86-87). What would it have meant to a Sung official to be forgiven one (or two) "selections" or moved forward one or two steps in seniority? The answer can be found in part in the context of the Sung system of an advancement through a determined sequence of posts on the basis of fixed qualifications. First according to the Sung dynasty history, under ordinary circumstances, in order to be nominated as an executive inspector of a prefecture (lu-shih ts'an-chun), a sheriff who had entered office through the examinations had to accumulate two terms in office and four annual merits ratings; that is, he would have had to serve two terms in office, each of several years' duration. Sheriffs who had entered in some other way had to accumulate two terms in office and five annual merit ratings, and sheriffs of irregular status (she-kuan) had to accumulate three terms of office and seven annual merit ratings. Second, the importance of hsiian is connected with what Winston Lo called the "lapse factor." After serving a term in office, most officials in the executory level of the bureaucracy had to spend a number of years on extended furlough before they would be eligible for another post. Being forgiven a hsiian would spare them this furlough. During the Sung these measures of service had to be accompanied by separate formal letters of recommendation from superiors, for a candidate to be qualified for certain kinds of promotions. If these men had recomendations from four sponsors, or from two sponsors who were qualified to serve as commissioners, they might be nominated as district magistrates. The exact meaning of being moved forward one step in seniority remains somewhat unclear, but we may assume that it must have been a change that increased a man's chances for advancement, albeit less than "being forgiven a selection." Possibly we might argue by analogy here and suggest that in these reports a "step in seniority" was the equivalent of one annual merit rating. Being demerited one selection would mean condemning an incumbent official to an extra term before he might become eligible for advancement.
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According to Wang Yung, a decree of the 960s had stated that if a sheriff were himself wounded when pursuing bandits but seized the whole gang, he would be allowed to wear red clothing. If he caught twothirds of the gang, his waiting time for promotion would be cut by three "selections" (hsiian). For one-third of the gang it would be cut by one "selection," and he would be promoted one subgrade. If a magistrate captured the whole gang, he would be promoted to capital office status and given higher-grade clothing. If such men were killed in the line of duty, their sons or younger brothers would be given appointments. 87 After 986 a sheriff's success (or lack of success) in capturing wanted men could theoretically be determined by examining the calendrical log (/zf), on which the sheriff was supposed to note the date on which the criminals first became active, the times of their captures, and the judgments rendered. 88 The system introduced in 971 was refined when it was decreed that captures were to be entered on the official merit examination record. If a violent criminal were seized within the first time limit, this could be used to expunge two failures to capture other criminals. If the wanted man were seized within the second time limit, this would clear the official's record of one failure. However, when a capture was used in this fashion to expunge other failures, it could not also be used to claim rewards under the system of meritorious achievement. 89 During the eleventh century, various refinements were added to this system of rewards. Before 1017, if a magistrate or sheriff seized a complete gang of ten or more, or suffered injury while seizing a complete gang of fewer than ten, he would be rewarded and commended (ch'ouchuang). In 1017 the rewards were increased when it was ruled that a magistrate or sheriff who personally led a group of archers in killing or capturing ten or more bandits was to be rewarded and commended, even if this was not the whole gang. They were to be equally rewarded and commended for the capture of an entire gang of from seven to ten, or of a particularly violent gang of fewer than seven. 90 Ten bandits seems to have been a key figure in these calculations; when more than ten men were involved, regular army troops apparently were dispatched to seize them. 91 Other reports dating from the 1020s make clear that a sheriff who personally captured whole gangs of ten or more wanted men - depend87 Wang Yung, Sung-ch'aoyen-i i-mou lu, i.3b-4a. 88 SHY, chih-kuan 48.61a; see also HCP 144.6b. 89 SHY. chih-kuan 48.6a. As was the case with most other Sung officials, sheriffs (from 962) were subject to annual merit ratings (k'ao) by their superiors; SHY, chih-kuan 48.60b; see also HCP 34.14b. 90 HCP 90.10a; SHY, chih-kuan 48.62a. 91 HCP 273.11a (1076). See also HCP 348.ioa-b (1084), 386.3b (1086).
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ing on the sheriff's qualifications as recorded in his dossier - might hope to be rewarded with a new appointment to a higher substantive post, with honorary ceremonial clothing and an increase in titular status, 92 or merely with advancement in the lists of seniority. Seniority in the personnel lists was a key factor in selecting candidates for most posts (including the post of sheriff).93 According to the law of 1029, which remained in force thereafter, it was generally necessary for a sheriff (and presumably also a patroling inspector) to have been involved personally in the capture before he could claim rewards. 94 (There is however one decree, dated 1036, which says that men particularly adept at laying plans should be rewarded even if they did not take part in the actual captures. If their plans led to the capture of a complete gang of seven or more, an imcomplete gang of ten or more, or a group of three of more particularly violent criminals, they should be rewarded.) 95 Numerous examples in the sources indicate that successful sheriffs were in fact awarded promotions for having captured bandits. 96 Because such successes were important to their careers, sheriffs sometimes responded by falsely claiming to have been present when dangerous criminals were seized, though as Ts'ai K'an commented, "they often had sent out other men and were not themselves involved in the capturing." 97 The government's answer was a set of rules designed to show that a sheriff had displayed courage and military skill in personally seizing bandits, the ma-ch3ien san-pu (literally, "three paces in front of the horses") system.98 Despite such rulings, however, the government continued to be plagued by false claims. In 1177 Chou Pi-ta, after citing the rules promulgated in the Northern Sung, stated: 92 A decree of 1029 ruled that if a sheriff who was qualified for consideration for the post of district magistrate had captured an entire gang often or more men, he should receive the ceremonial clothing of a fifth- or sixth-grade official, with a fish pouch and titular status as a capital official (ching-kuan); SHY, chih-kuan 48.78a-b; see also HCP 337.15a. For the clothing, see SS 153.2b. In some cases at least these men were granted dark red banners. 93 SHY, chih-kuan 48.62b (1024), D U t n could be "skipped over"; SHY, chih-kuan 48.62b (1027).
94 SHY, chih-kuan 48.60b, 48.78a. 95 HGP 118.13a. 96 Compare HCP 216.3a, 13b, 299.io,b-2oa, 303.3b. A sheriff whose seniority and merit ratings qualified him for consideration as a district magistrate was to be appointed a prefectural judge in a regional command prefecture or a regional supervisory prefecture; SHY chih-kuan 48.62-a-b; HCP 95.7b. See also individual cases: HCP 4.15a, 83.1a, 94.7a (1019), 299.i9b-2oa (1078), 337.15a, 303.3b; or SHY, chih-kuan 48.60b (963), in which a sheriff was appointed as a district magistrate "as a reward for his merit in capturing bandits." 97 Ts'ai K'an, Ting-chai chi, 1.20a. 98 SHY, chih-kuan 48.84b-85a.
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Now the original system established in the T'ien-sheng period [1023-32] afterward became daily more and more corrupted. Generally, the sheriffs depended on the archers to capture the required seven men, but their memorials always said that they personally captured the bandits in accordance with the ma-ck'ien san-pu rules, submitting these to be treated according to the precedents for rewarding men who have achieved military merit in seizing violent bandits. Thus they want to receive advancement to the administrative class."
Chou Pi-ta complained that the sheriffs frequently resorted to bribery in pressing their claims. 100 They might also abuse the system by seizing innocent people in order to fill out their required quota, by listing nonviolent criminals as bandits, or by counting men seized by their predecessors.101 A Sung official suggested that abuses could be reduced by returning to the practice of granting seniority rather than changes in official grade. Presumably this would have lessened the incentive to cheat. 102 However, the Sung authorities chose to maintain the system of the 1020s, merely adding some qualifications designed to make cheating more difficult. Superior offices were required to submit documents vouching for the sheriffs in question, 103 and rewards were delayed until the sheriff's term was completed. At that time their records were examined. Only if they were free of faults were the men rewarded. 104 The ma-ch'ien san-pu system, presumably with the modifications just described, continued in use at least into the 1220s.105 Any sheriff who was rewarded under the system of rewards and commendations (ch'ou-chuang) could advance more rapidly. A commended sheriff in his first term could jump ahead in seniority and become eligible for a post as the administrator of a district, and a "commended" sheriff in his second term might be nominated for a post as a regular magistrate. 106 The most coveted prize in this game of bureaucratic advancement was 99 SHY, chih-kuan 48.78a-b. It seems that Chou Pi-ta is referring to kai-kuan advancement to the administrative class. The phrase he uses (kai-tzu teng-kuan) may in fact be the full term, kai-kuan being elliptical. 100 SHY, chih-kuan 48.78a-b; see also SHY, chih-kuan 48.84b-85a. 101 SHY, chih-kuan 48.78a, 79a, 84a-b, 840-853. See also HCP 364.2a (1086). 102 SHY, chih-kuan 48.79a. Although this suggestion was approved, it was not enforced. See SHY, chih-kuan 48.870-883 (1220). 103 SHY, chih-kuan 48.78b, 8ob-8ia. 104 See a document dated 1024 that recommended that sheriffs be commended and rewarded if, when they were being replaced after having finished their term in office, they left no "bequeathed deficiencies"; SHY, chih-kuan 48.62b. See also SHY, chihkuan 48.67b. 105 SHY, chih-kuan 48.87b. 106 SHY, chih-kuan 48.78a-b.
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promotion from the executory class to the elite administrative class. This move was called "changing office" (kai-kuan) . 107 Gaining "rewards and commendations" seems to have been crucial to securing this promotion. The Sung dynasty history says that to make this jump, a sheriff had to accumulate three terms in office, six annual merit ratings, recommendations from higher officials, plus personal citations of merit. 108 The rules governing these promotions changed occasionally, so this description should be taken as exemplary rather than definitive. For instance, the rules were reissued under Shen-tsung, at which time it was ruled that a sheriff who had received a first-class award under the system of commendations and who also had five annual merit ratings might advance to the administrative class. 109 We do not have any examples of these claims for the reward of advancement to administrative class, but a report from 1177 gives some icjea of the number of sheriffs who claimed rewards for capturing bandits. Five such applications were submitted in 1171 and 1172, eight in 1173, eighteen in 1174, sixteen in 1175, and thirteen in 1176,110 this at a time when there were probably approximately eight hundred sheriffs in the empire. To put these figures in perspective we should recognize that in the late twelfth century the annual total number of executive-class officials who were permitted to advance to administrative class was limited by law to about eighty. Furthermore, we should stress the extraordinary character of such promotions. Normally, to advance from executory to administrative class, a candidate had to pass through a laborious procedure, acquire considerable seniority, and collect at least five sponsors' endorsements, a process that usually took ten or more years. 111 From the beginning these rewards were coupled with negative sanctions for failure. Events in the decade after 962 had convinced the Sung leaders that the original system of penalties for failing to capture bandits 107 Winston Lo, personal communication. See also Lo, An Introduction, pp. 212-13. 108 SS 169.15a-b. The sources give numerous examples of men promoted for success against bandits. See, for example, Lin I-chih (1136-85), Kang-shan chi, SKCSCP ed., 4.5b- 7a, 1 ib—13a. These rules lend particular cogency to a suggestion of Professor E. A. Kracke, Jr. that at the time when the Sung regulations were being formulated, the government writers were using hsiian ("selection examination") as a synonym for jen ("term in office"), because in the T'ang a hsiian had been taken for each term in office. This regulation would thus be saying that a sheriff who had acquired merit enabling him to "be forgiven one selection" was in fact being credited with an extra term of service, so that he might be advanced more quickly to a higher office. 109 Chin Chung-she, "Pei-Sung chu-kuan chih-tu yen-chiu" (A study of the official organization of the Northern Sung), Hsin-ya hsueh-pao, vol. 9, p. 251. 110 SS 158.2a. 111 HCP 290.15a.
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was too harsh and rigid. In 971 an order was issued that if the officials who exceeded the time limits for seizing bandits eventually did capture the wanted men, this was to be entered on a register and could be used to reverse the punishments of the responsible officials. However, a man who had been expelled from office under the system of demerits (tienchiangfa) could not seek relief under this rule. 112 The authorities understood that sometimes locally responsible officials did not have sufficient force and so had to call on their superiors for help. However, if the law-enforcement authorities had enough armed strength to oppose the bandits but failed to do so - delaying so that the bandits escaped - then they were to be punished. Moreover, if the third time limit passed and no bandits had been caught, the sheriff was to be fined one month's pay, or the magistrate, half a month's pay. (The latter rule perhaps refers to districts in which there was no sheriff.) When the sheriff had been fined three times for this reason, or the magistrate four times, he was to be demerited one selection (Hen i hsiian). Three such demerits could lead to expulsion from office.113 A report of 1067 clarifies the penalties for failing to capture the wanted men within one hundred days, and some of the practical problems of administering the system: If it has been a bad year, then hungry people will gather to rob. If the jurisdiction reports this as banditry, then the officials charged with capturing the robbers will be bound by the precedent on capturing violent bandits within the time limits. If they do not capture them, then in accordance with the rules, they will be investigated and reprimanded, including the separate punishment of demotion in grade. Yet if they do capture the chief robbers and are eligible for commendations, the Court will take into account the impact of the natural disasters, and that the people were stealing food, and reduce the degree of the commendations. . . . I fear that under this system, it will be difficult to motivate
112 HCP 22306.2a. I think we must assume here that an official was simply returned to the status quo ante in these cases. If, for instance, it was a first failure for a sheriff and he had been docked a month's pay, it would be paid to him, and so on. 113 The most complete report on this set of rules in found in SHY, ping 1 i.ib-2a, but it is repeated in somewhat abbreviated form in SHY, chih-kuan 48.60a-b, and HCP 3.i4a-b. For an example of such rewards, see HCP 4.15a (963). More rules were set up in 968; HCP 9.2a; Wang Ying-lin, Yu'-hai (Chia-ch'ing blockprint edition), 66.21b. When serving as a prefect, Su Shih called in the sheriff to discuss some uncaptured bandits. He is said to have told the sheriff that if the bandits were captured, he would report it to the Court but that if they were not captured, he would see to it that the sheriff lost his post; Hsieh K'o, Chu'-yu chiu-wen (Chih-pu tsu chai ts'ung-shu ed.) 10.4a—b. 114 SHY ping n.27b-29a.
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selection
Remuneration Still, such negative sanctions were probably minimally effective. As the Southern Sung official Ch'en Ch'un (i 153-1217) observed about the ineffectiveness of the system of rewards, "How could the idea of someone posthumously receiving silver and silk overcome men's fear of death?" 115 Motivation was also affected by the level of the police officials' remuneration. At the beginning of the dynasty, as Wang Yung remarked, the pay of these officials was very low. Recorders and sheriffs received only 3 strings, 570 coins per month (with magistrates receiving no more than 10 strings). 116 In 1024 concurrent sheriff-recorders in small places (fewer than two thousand households) were in the 7-string-per-month salary range. This compares with the 10 strings paid to magistrates in these backward areas. 117 We can get some idea of the value of such a salary by noting that the archers who served under the sheriff were paid about 30 strings a year, or 2.5 strings per month. In addition to money, Chinese officials also received remuneration in kind. A ruling on grants of office land dated 1039 divided these properties into three types depending on regional prices. Sheriffs received 50, 100, or 150 bushels per year depending on the region (their superiors the magistrates received three times these amounts). 118 We may give these figures more meaning by noting that in the Sung the subsistence ration for people in times of dearth was half a pint per day and the ration for a regular soldier was slightly more than two and a half pints per day. Thus even the smallest of these figures, 50 bushels (five thousand pints, or more than thirteen pints per day), should have provided an ample rice ration for a household of half a dozen people for a year. In 1043 w e a r e given rates for hsien-kuan t'ien (limited office fields) under which sheriffs in districts with ten thousand or more households were limited to three ch'ing* (one ch'ing* was one hundred mou, approximately fifteen acres). Those in districts of from five thousand to ten thousand could have two ch'inga fifty mou, and those in districts with fewer than five thousand households could have two ch'ing (with magistrates having allotments twice this size). 119 According to the rules of 1073, recorders and sheriffs, in districts with ten thousand or more 115 Ch'en Ch'un, Pei-ch'i ta-ch'iian chi, 4 3 . 5 a - b . 116 Wang Yung, Sung-ch'aoyen-i i-mou lu, 2.2b. 117 H C P 102.8b. Their actual salaries were paid from regularly issued funds until 1043 and from specially issued current funds thereafter. H C P 141.11a, 146.3a. 118 H C P 123.3b. 119 H C P 145.14b-15b.
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Law and order in Sung China households, were to receive three ch'ing* (approximately forty-five acres) of office land; for districts with from five thousand to ten thousand households, two and a half ch'ing; and for those with fewer than five thousand households, two ch'ing* (magistrates received twice these amounts). 120 Allotments in 1073 thus ranged from two hundred to three hundred mou (about thirty to forty-five acres). These allotments, where provided, would presumably be rented out to tenants, with the official receiving the rents in money or in kind. We can get some feeling for this allotment by noting that under the equitable field-land distribution system used in the early T'ang, under which peasants were supposed to receive an allotment of land sufficient to support themselves, an adult male peasant was supposed to be allotted one hundred mou. The land allotment of the lowest grade of sheriffs was thus perhaps not especially munificent but, when added to his other incomes in kind and in money, should have made possible a comfortable life for a sizable household of family members and retainers. Southern Sung gazetteers also give us more specific information on income in kind. In Tang-t'u District in Liang-che Circuit, the concurrent sheriff-recorder received annually 33 ounces of silk floss, 4 bushels (shihb) of wheat, and 23 bushels of unpolished rice. 121 In Ch'ang-shou District in Liang-che, the sheriff's office received 284 bushels, 2 pecks (toub), 2 pints (sheng) of rice, and the two patroling inspectors received only 74+ and 123+ bushels, respectively.122 Thus, although sheriffs and patroling inspectors were not well paid by official standards, they were well off by the standards of ordinary people. Like many traditional Chinese officials they no doubt often set aside part of their income to increase their patrimonies, in preparation for the day when they would leave office. Even so, the more noteworthy sheriffs at times contributed from these incomes to repair their own offices.123
Conclusion The distinctiveness of the post of sheriff derived from a combination of functional importance (since the maintaining of law and order was sine qua non to the stability of the state) and bureaucratic unimportance (since these men were almost at the bottom of the bureaucratic hierarchy). The evolution of the personnel policies governing this post reflects both the interaction of these two traits and the more general political 120 121 122 123
HCP243.i4a-b. Ch'en Ch'i-ch'ing, Chia-ting ch'ih-ch'eng chih, p. 2843. Sun Ying-shih, Ch'in ch'uan chih, pp. 2707-8. Yuan Fu, Meng-chai chi, 17.251, 18.258-59.
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history of the Sung. At the beginning of the dynasty the rulers faced two overriding problems, enforcing order and restricting military power. The sheriffs were to play key roles in dealing with both of these problems, so the central government sought highly qualified men as candidates. They much preferred men from the elite group of examination graduates. Presumably highly indoctrinated, well-motivated, and civil rather than military in their attitudes, such men were the perfect choice, but they were few in number. Moreover, the combination of low bureaucratic standing with dangerous duties caused many candidates to decline appointments to the post. As early as 989 there was a complaint that a district with a population of five thousand households had been unable for seven years to secure a sheriff, having only a recorder serving concurrently. 124 In 1021 it was reported that there were 643 vacant posts for recorders and sheriffs,125 and in 1023 t n e Bureau of Civil Nominations reported that some of these posts had gone unfilled for more than seven years. 126 The Sung never did solve this problem. The Southern Sung official Tu Cheng (1166-after 1218) remarked that in his day there were sheriffs' posts that had been vacant for fourteen or fifteen years. 127 Again, not filling posts, like leaving sheriffs in their posts for very short periods, can only have weakened the effectiveness of the law-enforcement system. The growth of this problem coincided with the decline in the powers of the military and the rise in the number of men who lacked offices. The authorities responded by lowering the standards for appointment, filling many of these jobs with men who came from "outside the career" (liu-wai), or with graduates of the facilitated examinations. This in turn created a new problem. Many of these men were aged and incompetent. Therefore they could not effectively maintain order, and as a result there was an increase in lawlessness. These growing disorders caused some government leaders to favor a harder approach to the lawless, symbolized by increasing the quotas of archers and introducing the use of military men as sheriffs. This practice of using military sheriffs began on the frontiers, where the conditions perhaps required such officers, but it spread to other regions, where its usefulness was questionable. The authorities placed themselves in a dilemma. Military sheriffs were supposed to be more effective in suppressing disorder. But insofar as they succeeded and peace reigned, the duties of the sheriff became more bureaucratic, and the incumbent officers less qualified to handle them. 124 125 126 127
HCP 30.7a. HCP 97.11b. HCP ioi.5a-b. Tu Cheng, Hsing-shan t'ang-kao, 6.naff.
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The result was a compromise rather than a solution. This compromise, and the ruling that led to it, provide in miniature a picture of some of the problems of law and order in Sung China, and the devices that the state designed to deal with them. An elaborate scheme was created, specifying who, where, and in what order men were to be chosen, a scheme that also varied among regions, depending on the authorities' judgment about the need in an area for a "gentleman" or a "hero." Through this whole history run two threads, the steady increase in the numbers of police personnel and the increase in the number of military men relative to civilians in the law-enforcement process. At the beginning of the dynasty, order was maintained by one sheriff per district and one patroling inspector for a group of prefectures; by the middle of the Southern Sung some districts had two sheriffs, and many had two or more patroling inspectors as well. For example, in 1133, Ch'ang Prefecture in Liang-che Circuit, which had four districts, had a total of twelve patroling inspectors. 128 In 1181, Ning-tu District in Chiang-nan West Circuit had two sheriffs and four patroling inspectors. 129 No doubt some of this increase was simply a function of population growth - if a district's population doubled, it would presumably need more police to maintain order. But beyond this demographic factor we may also see an era marked by a growing disrespect for the law and for those charged to uphold it. The state was investing more revenue in law enforcement. The group involved in law enforcement might have been pressing for more resources as a matter of self-interest, or the state might have been seeking to reduce the level of lawbreaking either as a result of its own conceptions of the importance of local security or because local interests were more effective in demanding protection. Still, the simplest and intuitively most reasonable explanation for the greater size of the law-enforcement system, beyond that needed to keep up with simple population increase, is an actual deterioration in the standards of local order. The Confucians always insisted that the fundamental problem of governance was the selection of good men, not formal structures or accepted policies. Good men would do what could be done to create good formal structures and suggest appropriate policies, and they alone would be capable of using in a humane way whatever structures and policies there were. In the abstract this is a strong position. The problem is how to get enough men of proper character and ability. Given the qualifications of the good official, the policies for selecting and inducting officials, the pool of possible candidates, and the right of a nominated 128 SHY, chih-kuan 48.70a.
129 SHY, chih-kuan 48.79b. 280
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candidate to refuse appointment to an offered post, could the state authorities find enough men for the available positions? With approximately one thousand posts for sheriffs in the empire and average terms in office of about two years, the state had to appoint about five hundred sheriffs a year. Of course, some men did serve longer than two years, but many served less, and some men might be reappointed for a second or third term to a post as sheriff. Even so, there was clearly a need for many new men. At its most productive, the examination system could provide only a few hundred potential officials per year. Even if all of them had gone to sheriffs' posts, there would still have been a need for other sorts of men. Moreover, the higher graduates from the examinations did not go to sheriffs' posts but to more prestigious jobs. Numbers were a problem. The state authorities could have listed the desired qualifications for men to serve in law-enforcement positions. If they had done so, two problems would have been immediately apparent. First, some qualifications were not commensurate with others. The position of sheriff in particular, as compared with the position of patroling inspector, had a variety of responsibilities that called for somewhat different personality traits. The sheriff was both a bureaucrat and a law-enforcement agent. He needed both intellectual competence, for his investigatory and miscellaneous duties, and physical competence, for the pursuit and capture of criminals. The second problem was more general. The sheriff occupied a position almost at the bottom of the hierarchy of status and prestige in the civil service, but the post brought with it difficult and potentially dangerous duties. There was, for all the offices in the civil service, a limited pool of truly qualified manpower. When supernumerary officials who gained office through grace or contribution are counted, the Sung authorities certainly had a great many men whom they might in theory select, but a great many of these men were by no stretch of the imagination qualified for actual office. Furthermore, given the limited numbers of men in the pool of those with real qualifications for office and the availability of better positions, the more highly qualified men would certainly tend to avoid serving in an office with low prestige and burdensome duties. It is hardly surprising that the search for good sheriffs was never ending and only partially successful. Therefore the state leaders had to recognize that they could get the services of only a few of the best-qualified men. They had to be satisfied with men of lesser qualifications in many posts and to leave many posts unfilled. With this situation facing them, the central authorities tried to create the best possible arrangement for securing the best level of per281
Law and order in Sung China formance that could reasonably be expected. They created an elaborate system of rewards and punishments to encourage sheriffs (and patroling inspectors) to work effectively and to discourage abuse of office. Given the constraints within which they worked and the problems they faced, we should not be surprised that they sometimes failed but, rather, amazed that they succeeded as often as they did.
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9 Urban crime and urban security Introduction The preceding chapters have described the law-enforcement system of the Sung dynasty, principally as it operated in rural areas and small towns. The pattern of law enforcement, and the related aspects of maintaining security in the larger cities of Sung times, differs in a number of significant ways from the pattern in rural areas.1 The most striking change initiated by the Sung was a renewed emphasis on the use of civil officials, mainly the sheriffs, in maintaining order in rural areas. They were responsible for law enforcement in both the district towns and the surrounding countryside. However, in the cities of the Sung there was greater continuity from the practices of the T'ang and earlier and a concomitant reliance on the military as the principal agents in maintaining law and order. District towns were often quite small. In them the sheriff was the most important official concerned with law and order; the prefectural seats, usually larger urban centers than the district towns, also were the headquarters of army units that could be called on for law enforcement. Civilian sheriffs might also contribute, because the prefectural city was usually also the location of a district government with a sheriff on its staff, but the military were the dominant group. In the Sung some of the prefectural cities were quite large, forming part of a hierarchy of urban places culminating in the capitals, which were among the largest and most sophisticated cities in the world of that time. Much of our information on urban crime and law enforcement pertains to these capitals, Kaifeng and Lin-an. Fortunately, the scattered evidence we have for 1 An earlier version of the material appearing in this chapter can be found in Brian E. McKnight, "Urban Crime and Urban Security in Sung China," Chinese Culture 29 (December 1988): 23-66.
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other cities suggests that the patterns characteristic of the capitals were reproduced on a less elaborate scale in other urban centers. Crime and criminals The city, like the countryside, produced the usual crop of crimes. Fraud, extortion, homicide, arson, robbery, adultery - the whole spectrum of wrongdoings were committed, though some with a peculiarly urban twist. Robbery and theft by individuals were endemic in large Sung cities. Writing in the thirteenth century, an official described the situation in the capital city of Lin-an: Recently both inside and outside the city, we have had those who in broad daylight seize foodstuffs and those who rob women of their jewelry. There are also cutpurses who cruise the streets at night, taking people's valuables and even causing injuries. The reports are amazing. People are most disturbed. This is no way to serve the four quarters and repress evildoers. Individual robbers preyed on individuals; organized groups of robbers sought out larger targets. Sometimes robbers formed gangs to prey on the shipping that was the lifeblood of the capital. A report from the end of the Northern Sung said that in the capital the bandits often travel on the Three River boats, so that the men charged with arresting them do not dare to enter and investigate. From now on, both inside and outside the capital, all boats of the various rivers may be investigated, whether they are government or private boats. All previous commands forbidding such entering of boats for purposes of investigations are hereby changed. However, anyone who in a disorderly manner boards ships, not because of bandits, and causes trouble, destroying public or private goods or seeking bribes, is to be tried for violating an imperial order.2 The problem of gangs of predatory criminals could be traced to certain aspects of the Sung penal system. Perhaps the most common severe penalty in the Sung was penal registration in certain units of the provincial armies for a fixed term of labor. After having served the term of labor, those so punished had the option of continuing on in other units of the provincial armies. There they also would provide various sorts of labor or other services for the state, though they were only rarely used as soldiers. In addition, irregularly but frequently, young able-bodied men from the provincial armies were taken into the regular imperial armies as soldiers. Thus, in most prefectures, including the capital, there were rather large bodies of convicts who were serving out their sentences 2 SHY, ping i2.2ib-22a.
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and other men in the armies who had first entered the armies as convict laborers. This clearly posed security problems. A decree of 1009 observed: We have heard that in the capital there are stalwart young men who because they have committed banditry, have been tattooed. Frequently, because they are controlled loosely and without restraint, they cause trouble to the people. Kaifeng Prefecture is ordered to write out their names, seize them, and divide them up for registration in the outer prefectures.3 These problems were understandably acute in the capital. On the one hand the capital government needed substantial numbers of provincial army units for labor. In addition, a number of state enterprises headquartered in the capital needed large numbers of workers, who often were convicts, and also there were large imperial army garrisons. To meet this need for labor, the state would have had to bring in large numbers of convicts, but because it was the capital, there was a desire to be especially careful to preserve security. Early in the dynasty — continuing the pattern set in the Five Dynasties - the Sung had all those sentenced to penal registration sent initially to the capital. 4 From there, presumably, those not needed in the capital were sent elsewhere. Early in the eleventh century, however, this policy was changed, and men could be sent from the prefecture of their conviction to their place of registration. Still, a large number of such men were needed in Kaifeng. Criminals from Kaifeng itself were often sent elsewhere to serve sentences of forced labor, perhaps in order to prevent men from continuing their old, bad, associations. An edict of n 34 that deals with conditions in the Southern Sung capital of Lin-an states: The situation in Lin-an Prefecture is like the situation in Kaifeng. If there are those from this prefecture who are liable for penal registration, they should be provisionally registered in the neighboring prefectures. Accordingly, when there are men liable for registration in neighboring prefectures, do not register them in the capital.5 Such men were not supposed to be sent back to the capital on assignments. 6 In the capital itself, those men who were serving as laborers were, after 1083, rotated monthly among the major military organiza3 SHY, ping 11.6a. 4 See, for example, comments in WHTK 166.1443, SHY, hsing-fa 4.4a-b. 5 TFSL 526. An ordinance found in the same work also says that generally "for those who are supposed to be registered in the prefecture of conviction or the units of the provincial armies in that prefecture, in the case of the capital, they should be registered in prefectures near the capital" (TFSL 520—21). 6 SHY, hsing-fa 4.21b.
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tions in the capital, from service in the Capital Command, to service in the Metropolitan Cavalry Command, to service in the Metropolitan Infantry Command, and back again. Presumably this was done to help resolve the problems that might arise if such men stayed too long in one unit and thus became overly familiar with its staff and operations. 7 In 1168 the prefect of Lin-an remarked: Recently in the prefectures and districts, there have been petty thieves who have joined together in small numbers to form gangs that rob travelers. Basically this is because the men who have been judged and sentenced to penal registration escape before even reaching their places of registration, or they have already reached their places of registration, but the official charged with controlling them has let them escape, or they have been divided and sent to the garrisons in the various jurisdictions, and the armies have neglected to control them so that they escape. When they have no place to return to, they gather together to form gangs.8 The situation in the urban areas created by the presence of large numbers of registered criminals and ex-criminals serving in the armies was probably not amenable to any lasting solution. The convicts were certainly the greatest problem, but even ordinary soldiers who were not deserters could cause problems by their riotous behavior. 9 They were, after all, like the convicts, in their being young, frequently unattached males with limited akills and limited prospects. The combination of such men and a group of convicted criminals in close association was a dangerous one. It is thus not surprising that the authorities shifted back and forth, sometimes bringing convicts to the capital but periodically ordering that certain categories of criminals from the capital be sent to various different prefectures away from the city itself.10 The typical urban criminal was young, male, and possibly a recidivist or a deserter from the army. This would mean almost certainly that he came from the laboring groups in Sung society. But not all criminals were from the underprivileged strata of the Sung. A report dated 1133 describes how members of the imperial clan, or young men who because of their relatives' positions had the privilege of protection (yin), were opening up shops. There they sold privately produced liquor at night and robbed their customers. 11 And a century later, after describing a crime wave in Lin-an, an official recommended: 7 8 9 10 11
SHY, hsing-fa 4.28b. SHY, hsing-fa 4.52a. SHY, hsing-fa 7.1a. SHY hsing-fa 4.44a, 47~48a, 50a. SHY, hsing-fa 2.147a.
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In Lin-an Prefecture more police posts and fire stations should be established. There should be a strict system of patroling. A clear system of rewards and punishments must be established governing the capture of fugitives and determining the time limits for their capture, so that the capital can again be secure.12 Like the countryside, the cities also had their share of oppressive and extortionate bullies. In the capital city in the early eleventh century, a case was prosecuted that resulted in the demotion of a number of officials and the punishment of the principal criminal, a man named Ts'ui Pai, and his son: Ts'ui Pai's family lived in the capital. He was simply overbearing and coerced people, seizing their valuables to become rich. Formerly there was a man named Man Tzu-lu who was aggressive and abusive. His name was sent to the authorities. Also, a man named Chao Chien was incorrigible about submitting to the law. Ts'ui Pai said to people, "Man Tzu-lu is my follower. Chao Chien is my man. You others are not fit to deal with them." Liang Wen-wei was a neighbor of Pai. Pai wanted to force Liang to sell him his house, but Liang Wen-wei would not do so, and so Pai often verbally abused him. When Liang Wen-wei died, he left a wife, nee Chang, and two small children. Pai sent men, day and night, to throw stones and tiles at her house in order to frighten her. Mrs. Chang was unable to stop them and moved out. She then set a price for the house of thirteen hundred strings of cash. Pai made an offer of nine hundred strings and bought it. Mrs. Chang brought a suit against him in the capital court and subsequently was paid an additional three hundred strings. Then Pai secretly reduced the rental valuation [of the property], and sending a male slave as a witness, he brought suit in the prefecture against Mrs. Chang. Furthermore he heavily bribed the clerks. He toadied to [the erudite of the National University, Han] Chiu, who was the acting responsible official. Han Chiu therefore sent the case for trial to Ho Chiu-kung. Chiu-kung tried Mrs. Chang for having wildly inflated the rental value and had her beaten. Pai then bragged to his neighbors about the influence he had used in the case. An official of the Capital Security Office (Huang-ch'eng ssu) reported the matter, and a decree was issued that Pai be arrested and turned over to the Censorate for interrogation. The censors found out the truth. As a result all the men were found guilty.13 Adultery and its aftermath was both an urban and a rural problem. A case from the 980s reflects the suffering that might result and the ways in which the urban investigation and adjudication system worked. The case is far from typical, as it came to the personal attention of the emperor, but for that reason we have a relatively detailed record of what happened. We are told that a widow surnamed Liu committed adultery. Then fearful that she might be found out, she became ill. Furthermore, afraid 12 SHY, ping 3.11b—12a; See also SHY, ping 3.23b-24a. 13 SHY, hsing-fa 4.70a.
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that her son might accuse her, she ordered her serving maid to accuse the son of having poisoned his mother's food. While the mother was ill but not yet dead, the case came in some undescribed fashion to the attention of the right army patroller. When he could not get at the truth, he sent the left army patroling judge (tso chun-hsun t'ui-tien) to investigate. This man took a bribe from the widow to deal with the son. The mother eventually died, and although the son tried to maintain the truth, he was held for a number of months, without the matter's being settled. At this point the Records Office (Ssu-lu ssu) was sent to investigate the two army patrolers. As a result the false accusation again came to light. The emperor was disturbed by what seemed to him obscurities in the charge that the son had poisoned his mother and ordered that the son be spared the death penalty, beaten, and punished with penal servitude in Kaifeng. When he was about to be beaten, the son himself demanded that the officials and clerks return the bribes that he had given them. Another investigation ensued. The son had another accusation sent in for imperial attention. As a result the case was transferred to the Censorate, which investigated thoroughly. In the end, the abusive officials were punished and the son was exonerated. 14 Because the capital was such a sensitive area, the authorities there were also very concerned about people who spread disturbing stories or otherwise stirred up or misled the people. In 1012 in Kaifeng there was a scare involving men who were said to practice gruesome magic that gave them superhuman powers. The authorities were ordered to suppress them swiftly.15 Six years later there was a scare in the western capital because people believed that a witch had entered the city and was practicing cannibalism. The state's concern about this can easily be understood. As the report says, "the army camps were greatly disturbed," a worrisome situation at any time. As a result, several people were seized and eventually executed. 16 About a century later there was a similar scare in Kaifeng, where members of a heretical religious sect were disturbing the peace. Again, heavy rewards were established for those who cooperated in ridding the city of these people. 17 Finally, some of the guidebooks to Lin-an give us a less official picture of the kinds of underworld figures who lived and worked in the great capital city. The official Chou Mi (1232-after 1308), in his Wu-lin chiushih, said: 14 15 16 17
SHY, hsing-fa 5.2a-b. STCLC 735. HCP 92.4a. SHY, hsing-fa 2.65a-b. 288
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In the crowded neighborhoods there are a great many people; idlers who are crafty and villainous are really numerous. There is a gang called the Bureau of Beautiful People (which uses male and female prostitutes as beautiful concubines to entice young men). There is also a gang called the Gambling Chest Bureau (which depends on gambling and uses its skills to cheat people) and a Bureau of Watery Merit that creates disturbances [using the excuses of] seeking official positions or recommendations for official positions, of doing acts of mercy, of making transfers, of taking care of legal cases, or of carrying out commercial transactions, and then extorts money. One such gang would be too many. There also are merchants who substitute false goods for genuine, for example, using paper in place of cloth in making clothes, or copper or lead in place of gold and silver, or earth and wood in place of fragrant oils and drugs. They are supernaturally skilled in making substitutions. We might call them men who rob in broad daylight. If there are market gates, then there will be cutpurses, who are called "children who look for what is attached." There are, in addition, burglars. Each has a recognized chieftain. These fellows, such as the "Street Blocking Tiger" or the "Nine Striped Dragon," cause great harm in the marketplace.18
General security problems Preserving security in urban areas of any kind necessitates dealing with several problems, including welfare needs and fire protection as well as the maintenance of law and order. Because of the crowding together of buildings and people, cities face a number of problems. Their density of settlement, particularly if the buildings are made of wood, makes them especially vulnerable to fire. Special fire-fighting systems must be created, which stress early detection and a rapid response by people with appropriate equipment and skills. Because of their large, usually heterogeneous, and frequently socially disorganized populations, cities also often have public welfare problems. For these same reasons they may also have special problems with investigation and law enforcement. They need to have some judicial mechanisms for adjudicating the crimes committed. Finally, in the case of the Sung, law-enforcement problems were compounded by the fact that the Sung used convicts as a major source of common labor. Police personnel In a large city, the authorities need a considerable number of men if they are to carry out these security functions. One major policy issue, then, is 18 Chou Mi, Wu-lin chiu-shih, in Meng Yiian-lao, Tung-ching meng-hua-lu, wai-ssu pien, 6.444. See also the Tung Ssu-kao, Hsi-hu pai-yung, Wu-lin chang-ku ts'ung-pien ed., shang. iaff., for descriptions of prostitution in Lin-an.
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how the state is to find such men. The traditional Chinese answer to this problem touches on another characteristic of city life. Because of their great political and economic importance, cities, and especially the capital city, need to be defended against domestic and foreign military enemies. Therefore, all cities must have available some sort of military force. Under premodern conditions of communication and transportation, it was not possible to station these units away from the urban areas. Army units - of varying sizes depending on the degree of insecurity and the importance of the place - were always stationed at or near cities in traditional China. The presence of these units of fighting men meant that the authorities already had available a group of men who were of the proper age, who had had some professional training, who were already receiving state pay, and who were available for use in the security system. It was both logical and simple for the state in traditional China to draw on its existing military forces for those needed to man security posts. The changes that occurred in Chinese urban life during the T'ang-Sung transition in no way affected this situation.
Urban security during the T'ang Understanding the complex and changing patterns of urban law enforcement in the Sung would perhaps be easier if we described the simpler situation prevailing during the T'ang. The use of the military as suppliers of men for the security system was clearly the pattern in the T'ang cities about which we have information. There were relatively few large cities in the T'ang. The major growth of cities of all sizes occurred toward the end of that dynasty and in the ensuing Five Dynasties and Sung periods. Thus, almost all our information on T'ang cities and their security problems refers to the capital at Ch'ang-an. That city was divided into two districts by the north-south-running Red Bird Gate Street. The area to the east of this dividing line was called the Left Streets. The area to the west was called the Right Streets. Each area was divided into fiftyfour walled wards (fang).19 During the T'ang period, Ch'ang-an officials from the Censorate had charge of investigations (a responsibility occasionally given them also in the Sung), 20 and the Chin-wu Guard had special responsibilities for policing. The Comprehensive Mirror reports that "if there are deaths in the streets, the Chin-wu Guard will submit a report on them; if there are 19 Sung Min-ch'iu, Ch'ang-an chih, chap. 7.iaff. 20 HCP 233.12a.
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deaths inside the wards, the Left and Right Patroling Offices [tso-yu hsun-shih] will submit reports on them." 21 According to a note: The Chin-wu Left and Right Street officers divide responsibility for investigating and patroling in the Six Streets. Generally, within the city walls, in the wards and neighborhoods, there are military posts. One hundred guardsmen and cavalrymen guard the main city gates. Thirty men are stationed at each major police post. Twenty men are stationed at each of the lesser gates, and at the small posts there are five men. At sunset they beat the drum eight hundred times and close the gates. During the night hours the cavalry patrols the major streets on horseback and summons military officers to investigate. At two minutes past the fifth watch, the drum begins inside; the drums in the streets take it up; and the gates of the wards are opened. They beat the drum three thousand strokes and then stop.22 Once the gates, including the ward gates, were closed, it was illegal to move about the streets. In 808, in a famous case, an official who violated the curfew while drunk was beaten to death. This was extraordinary punishment, since the rule from the T'ang Code merely called for twenty blows of the light rod for those who violated the curfew without cause. The night guards were to be punished if they allowed men to move about who should have been forbidden to do so (though they were also liable for sanctions if they denied permission to those who had legitimate reasons for being excused from the curfew). 23 Only at the time of the Lantern Festival, that is, on the nights of the fourteenth, fifteenth, and sixteenth of the first month, were the gates left open and the curfew suspended. 24 The T'ang also sought to promote urban security by forbidding the carrying of arms in the city. The T'ang Code of 737 specified that people who shot arrows in the streets, byways, or buildings could be punished with sixty blows of the heavy rod. Even those who merely threw rocks or tiles could receive forty blows of the light rod. If as a result of their actions someone was killed, they could be punished with the penalty for killing in an affray, reduced by one degree. 25 After the An Lu-shan 21 Miyazaki suggests that the Chin-wu guards were especially concerned with problems in the network of streets separating the walled wards of Ch'ang-an, whereas the ten censors rotated for monthly terms as left and right patroling officers in charge of problems occurring within the walled wards themselves. See Miyazaki Ichisada, "Kandai no ri-shi to Todai no bo-shi" (The li system of the Han dynasty and the fang system of the T'ang dynasty), Toyoshi kenkyu 21 (1962): 27-50. 22 Ssu-ma Kuang, Tzu-chih Vung-chien (Beijing: Ku-chu ch'u-pan she, 1956), 239-2ob-2ia. 23 TLSI, 4.36. 24 See Wu Po-lun, Hsi-an li-shih shu-liieh (Sian: Shensi jen-min ch'u-pan she, 1980), pp. 166-67. 25 TLSI, 4.31.
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rebellion (756-63) there were several prohibitions against bearing arms. In 778 there was an order forbidding the carrying of weapons and in 792 a further order concerning the storing of weapons. Finally, in 806 there was an order for the arrest of men who, without cause, carried weapons in the streets of the city.26 Within the wards, maintaining local order was the responsibility of the ward chiefs (fang-cheng), who apparently were in some way subordinate to the censors rotated to serve as left and right patroling officers. Unfortunately, the sources tell us very little about how these functionaries operated or how effective they were. We do know that the richer and more powerful households had their own retainers to guard against intruders. During the late T'ang, the government's control over urban areas broke down. Strict enforcement of the walled-ward system began to decay, and security became more and more difficult to maintain. In urban police work, the imperial guards were overshadowed by regular army troops. During this same era the older army units of the emperor's guards, including the Chin-wu Guard, were less powerful than the new Army of Divine Strategy, which like the Ghin-wu Guard became active in law enforcement.27 The patterns of organization used in this capital-based army were mirrored in the areas outside the capital in the armies of the military commissioners (fan-chen), regional military leaders who came toward the end of the T'ang dynasty to exercise almost independent power in some regions of the empire. The man who displaced the T'ang and founded the Liang, Chu Wen, derived his power from his position as commander of one of these armies. Through it the patterns of command and organization characteristic of the T'ang were passed on to the succeeding Five Dynasties. 28 Urban security during the Five Dynasties The scattered information we have from the Five Dynasties (907-60) shows how these T'ang patterns persisted. Military units, organized according to patterns derived from the armies of the regional commandants, continued to dominate law enforcement. The armies in the capital of the Liang (907-23), like those in the T'ang capital, were 26 Wu Po-lun, Hsi-an li-shih shu-liieh, p. 167. 27 See Muronaga Yoshizo, "Godai jidai no gun-jun in to ma-ho in no saiban" (Adjudication by the army patrol office and the cavalry and infantry office in the period of the Five Dynasties), Tqyoshi kenkyu 24 (1966): 17-18. 28 Wang Yin-lin, Yii-hai 139.5a.
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divided into wings {hsiang*). According to Lii Tsu-ch'ien, there were four such wings, which "dealt with fire-fighting problems in the city and the suburbs." 29 This pattern of dividing the capital forces into wings and assigning them responsibility for security in sections of the city and suburbs persisted through the rest of the Five Dynasties and into the Sung. 30 Chu Wen formally displaced the T'ang in 907 and declared himself the emperor of the Liang, with his capital at Pien (later Kaifeng). Only two years later the police structure of Kaifeng was reorganized, dividing the capital into two large jurisdictions. The Collected Documents of the Five Dynasties (Wu-tai hui-yao) reports that "in the tenth month of 909 the left and right army patrol officers [tso-yu chu'n hsiin-shih] were established," and a note indicates that before this, although the various armies were supposed to dispatch men to maintain security in the capital at Kaifeng, in fact the men were often sent on different business, and enforcement of the system was lax. Therefore at this time these new offices were established, the Left Office being responsible for security to the north of the Pien Canal and the Right Office in charge of security south of the canal. 31 In some cases at least, these officers might be concurrently appointed patroling inspectors.32 The areas of responsibility were called the Left hsiang* and the Right hsiang*. Because by this time this word had really come to be a territorial designation rather than the name of a kind of military unit, the word hsiang* might best be translated as "borough." The Later T'ang (923-36), the successor to the Liang, attempted to imitate more closely the usages of the T'ang, of which it claimed to be the legitimate successor. The Later T'ang rulers reassigned to the censors responsibility for law enforcement. In name they also revived the Chin-wu Guard; in fact the city was divided into Left and Right Boroughs, and the Chin-wu Guard differed only in name from the army patrol system that had been in use under the Liang. 33 Despite the use of the term Chin-wu Guard, in Loyang, the capital of the Later T'ang, the police patrolers were called army patrols (chun-hsun). An edict of 927 29 Lii Tsu-ch'ien, Lit Tung-lai hsien-sheng wen-chi, Chin-hua ts'ung-shu ed., 20. 30 Thus, by the Sung period, the T'ang term "street" (chieh) for the major divisions of the capital had been replaced by the term hsiang. The term hsiang originated as a term in military administration. Lii Tsu-ch'ien says that "the left and right wings (tso-yu hsiang) originated in the T'ang. They were originally used in the military arrangement of Li Ching. The various armies were each divided into left and right wings for administration." This description is confirmed by the Yu-hai. Initially, the word was used only for military administration; it was not applied to the divisions of cities. 31 Wang P'u, Wu-tai hui-yao (hereafter cited as WTHY) (Shanghai: Shanghai ku-chi ch'u-pan she, 1978), 24.389. 32 Habu Kenichi, "Godai no jun-ken," pp. 45-46. 33 WTHY 12.204. See also Muronaga, "Godai," p. 19.
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stated: "We have heard that in the markets of the capital city and the military encampments there are those who deliberately violate the regulations, by killing cattle and selling the meat. We expect the prefectural and district army patrols to increase their investigations." 34 A few years later the Left and Right Army Patroling Offices in Loyang again appeared in the records, when they submitted a complaint about the ways in which private households were encroaching illegally on the public streets in the boroughs and wards. 35 The functionaries in these offices were also given some responsibilities for controlling abuses in trade. 36 The Southern Sung encyclopedia Shih-wu chi-yiian, quoting the Collected Sung Documents, confirms the origins of this patroling system: "At the end of the T'ang this position was first established. During the Later T'ang it was divided into Left and Right." 37 Military personnel thus continued to be the principal figures in law enforcement. During the Five Dynasties, only the Later T'ang had its capital at Loyang. The other dynasties had their capitals at Pien (later Kaifeng), which was strategically located on the canal that carried rice north from the agriculturally rich region of the delta south of the Yangtze River. The Shih-wu chi-yiian indicates that the office of army patrol also was used under the other Five Dynasties in the city of Kaifeng. In that city, during the Five Dynasties and the early Sung, the position was filled by lieutenants (ya-chiao) , 38 Army patrols were active in law enforcement in Kaifeng. In 939 an official concerned about the severe rules governing people who caused injuries by riding recklessly in the crowded streets of the capital asked that before such rules were rigidly enforced, the army patrols and the populace in general be informed about the nature of the law. Thereafter the army patrols might enforce the law without favoring the children of the powerful, who had often caused trouble because of their recklessness. 39 Sung administrative hierarchy in Kaifeng Although there are still some obscurities regarding the structure of the urban administration of Kaifeng in the Northern Sung, the overall pattern is clear. In line with general traditional Chinese practice, the city was part of the empirewide pattern of territorial administration. Kaifeng and a large surrounding area were under the control of a metropolitan 34 35 36 37 38 39
WTHY 9.156. WTHY 26.411. WTHY 26.415. Kao Ch'eng, Shih-wu chi-yiian (Taipei: Yee Wen, 1967), 6.25b. Ibid. Wang Ch'in-jo, Tse-fuyuan-kuei (Hong Kong: Chung-hua shu-chu, i960), 7362.
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\
NORTH NO. 2 t Word
\ \ \
WEST NO. 3
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RIGHT NORTH II Words \ 7,000 hth \
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2 Wards
LEFT NORTH 9 Words / ' 4,000 hsh /
I Ward
II
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RIGHT WEST"" 26 Words 8,500 hsh
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WEST NO. I JL
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9,800 hsh
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Figure 9.1. Kaifeng about 1021: schematic arrangement. Reproduced by permission from John W. Haeger, Crisis and Prosperity in Sung China (Tucson: University of Arizona Press, 1975), © Arizona Board of Regents, 1975, fig. 3.1.
prefect. Among the districts constituting Kaifeng Prefecture, two Kaifeng District and Hsiang-fu District - included the main urban nucleus of the capital city. 40 For purposes of administration, urban Kaifeng was divided into the old city (the inner city) and the new city (the outer city). The inner and outer cities were then subdivided (in different ways for different purposes) into boroughs {hsiang*) (see Figure 9.1). For most of the Sung period the boroughs remained the basic large 40 Kracke, "Sung Kaifeng," pp. 61-62.
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unit for most sorts of urban administration, not just in the capital, but in other large Sung cities as well.41 These boroughs were divided for administrative purposes into wards. The Sung, typically, continued to use the old term from T'ang times, even though in the Sung these units were no longer walled enclosures but simply areas. During the early Northern Sung the population of the city appears to have grown rapidly, especially in the suburbs. A single sheriff was the only official responsible for law enforcement in this suburban area. The authorities finally became convinced that the problems of law enforcement in these burgeoning suburbs were becoming too great for one official to handle. In 1008 eight outer boroughs were established for the capital, with functionaries who were drawn from the capital prefecture. 42 In the following year this was increased to nine outer boroughs. 43 Like the boroughs in the city proper, there were regular complements of lowlevel functionaries, whose number was determined by the size of the population in that borough. The general rule seems to have been that in these outer boroughs, for every five hundred households, the authorities selected four aides (so-yu), three street men (chieh-tzu), four street officers (hang-kuan), and one ward scribe (hsiang-lien). For areas with fewer than five hundred households, the number of functionaries was somewhat lower.44 Military command structure Integrated into this system of urban units and subunits was a military command structure. In most parts of the Sung empire, the smallest urban areas with significant numbers of troops stationed in or near them were the prefectural seats. In these towns, perhaps the most common 41 At the very end of the Sung these boroughs began to be displaced by units called precincts (yii). Initially these were special-purpose units for fire fighting, but in the Yuan period (1260-1368) they became the general urban unit of administration. For an excellent description of the evolution of this system, see Sogabe Shizuo, Chugoku oyobi kotai Nikon ni okeru kyoson keitai no hensen (The evolution of the form of villages in China and ancient Japan) (Tokyo: Yoshikawa kobunkan, 1963). See also the older but still useful work of Kato Shigeshi, Chung-kuo ching-chi shih k'ao-cheng (Beijing: Commercial Press, 1962). Many of these materials have been assembled in Cheng Shou-p'eng, Sung-tai Kai-feng fu yen-chiu (Taipei: Kuo-li pien-i kuan Chung-hua ts'ung-shu pien tsuan wei-yuan hui, 1980), pp. 343-416. For a general description of urban security works, see Michael Finneagan, "Urbanism in Sung China" (Ph.D. diss., University of Chicago, 1976). 42 SHY, ping 3.1a; HCP 70.19b. 43 SHY, fang-yii 1.12b. I think that we must assume that these outer wards were located outside the new city, in fact outside all the city walls. 44 SHY, ping 3.3a. This passage gives detailed population figures for the various hsiang and fang of Kaifeng and their complements of urban functionaries.
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pattern was to have a prefect who acted concurrently as the commander of the local military forces. In these prefectural cities the policing seems to have been managed, on the military side, by military unit officials. The thirteenth-century encyclopedia of institutions, Wen-hsien t'ung-k'ao, explains: The prefectural military directors in chief [tu-chien] were staffed by servitors major and minor [ta-hsiao shih-ch'en]. These officers had charge of the garrison troops, including their training and dispatching, and concurrently served as the patroling inspectors within the cities. Those with lesser qualifications were called supervisors of militia [chien-ya]. Earlier they sometimes used civil officials, but later only military.45 Supervisors of militia seem to have been widely used in urbanized areas in the Sung, providing the equivalent of the patroling inspectors in the rural areas. The late Northern Sung official Pi Chung-yu comments on their use in the capital, and material from other sources indicates their use in other cities. The Collected Sung Documents says that "the various sorts of prefectures all had supervisors of militia to exercise control over the central city as well as over the troops stationed in military agricultural colonies." 46 These low-level military officials used army troops as their police force, a practice that periodically caused problems because of the troops' tendency to abuse the people. A memorial from 1123 probably reflects a recurring issue: Recently soldiers have been sent into the markets to seize wrongdoers. They oppress the ordinary people. . . . I ask that there be a special order to the officials, to establish a law saying that in the prefectural seats, except for the borough patroling and arresting troops [hsiang-hsun pu-ping], other troops be strictly forbidden to go into the markets on the excuse of seizing wrongdoers. The proposal was approved. 47 Command structure in the capital In Sung Kaifeng and probably in some other larger cities, a different and much more elaborate command structure was used. The Sung founder, Chao K'uang-yin (r. 960-76), took over and modified for his own 45 WHTK, 59.541. See also SHY, ping n . i o a - n a , in which the fiscal intendants are assigned the responsibility for assessing the qualifications of "urban patroling inspectors." Also see a decree in 1012 that assigns responsibility for fire and law enforcement in Kuang prefectural town to the "military administrator" (ch'ien-hsia), a title frequently held concurrently by a civil or a military official; HCP 79.7a. 46 Pi Chung-yu, Hsi Vai chi, SKCSCP ed., I . I O - I I ; SHY, chih-kuan 49.iaflT. 47 SHY, hsing-fa 2.63b.
297
Law and order in Sung China Bureau of Military Affairs
acting with)
Ministry of War
Palace Command
Metropolitan Infantry Command
Metropolitan Cavalry Command
(supervised seizure of witnesses and investigations)
Commander in chief or deputy (serving concurrently as) chief patroling inspector of the New City
Commander in chief or deputy (serving concurrently as) chief patroling inspector of the Old City
East
South
West
North)
Borough deputy commander in chief (concurrently Four Quadrant patroling inspectors?)
North East
North West
South East
South West
Bureau deputy commander in chief (concurrently patroling inspectors)
Patroling Patroling Patroling Patroling Patroling Patroling Patroling Patroling inspector inspector inspector inspector inspector inspector inspector inspector (dealt with regular police patroling and control)
Figure 9.2. Command structure in Kaifeng after the mid-eleventh century
purposes the command structure that had been evolving since the early Five Dynasties. At the beginning there were two offices at the top of this military command structure, the Palace Command (Tien-ch'ien shih-wei ssu, frequently abbreviated to Tien-ch'ien ssu), and the Metropolitan Cavalry and Infantry Command (Shih-wei ch'in-chiin ma-chiin pu-chiin ssu). In the middle of the eleventh century this was increased to three, when the Metropolitan Cavalry and Infantry Command was divided into the Metropolitan Cavalry Command (Shih-wei ch'in-chiin ma-chiin 298
Urban crime and urban security
ssu) and the Metropolitan Infantry Command (Shih-wei ch'in-chun puchiin ssu). Taken together these three offices were known as the Three Commands (San-ya). These commands were headed by commanders in chief (tu chih-hui shih) and then deputy commanders in chief (fu tu chih-hui shih). They were under the supervisory control of the Bureau of Military Affairs (Shu-mi yuan), acting jointly with the Ministry of War (Pingpu). Although the command structure changed in some minor ways during the Sung, the basic pattern outlined here seems to have remained relatively constant (see Figure 9.2). It seems probable that initially the commanders in chief had responsibility, through their regular chain of command, for the capital's security and that they used regular troops from the imperial armies (chin-chun) for policing and other security matters. 48 The highest officials in the Palace and Metropolitan commands apparently had final control over policing powers in the capital for the whole of the dynasty (with the exception of one brief period in the 990s). Under the pattern that emerged in the middle of the eleventh century, the key to this supervisory control was concurrent service, with the heads of these high organs holding at the same time offices at the top of the regular police system. The commander in chief of the cavalry served concurrently as the chief patroling inspector of the old city (chiu-ch'eng tu hsun-chien)^ and the commander in chief of the infantry (tu chih-hui shih) served concurrently as the chief patroling inspector of the new city (hsin-ch'eng li tu hsun-chien).49 The Southern Sung encyclopedia Shih-wu chi-yuan describes this system: "Since the beginning of the dynasty, the four borough deputy commanders in chief have supervised and controlled the various policing activities within the capital city. At that time they were called borough 48 This system seems to have been modified somewhat in the late 980s. The great annalistic history of the Northern Sung known as the Ch'ang-pien reports that in 988 the Court established the four-borough commander in chief of the Cavalry and Infantry Dragon Spirit Guard (Ma-pu chiin lung-shen wei ssu-hsiang tu chi-hui shih), and the four-borough commander in chief of the Palace Command Supportive Heavenly and Martial Guard (Tien-ch'ien feng-jih t'ien-wu ssu-hsiang tu chih-hui shih). This was simply a clearer recognition of the important role of the commanders in chief in maintaining security in the capital. The emperor, however, was still dissatisfied with the arrangement. In 994 an attempt was made to return to a pattern more like that of the high T'ang. The capital was to be divided, as Ch'ang-an had been, into right and left streets. A special elite guard force of about six hundred men was selected and divided into four encampments. They might have been divided among the four boroughs, but in any case they were to serve, as the Chin-wu guard had in the T'ang, as the key policing force in the city. This experiment seems to have been short-lived. 49 For the practice of not appointing commanders, see a report from the Ch'ien-tao period (1165-73) cited in SS, 166.3929. During some periods it was apparently the practice not to appoint commanders in chief, and at such times their roles were filled by the deputy commanders in chief.
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leaders [hsiang-chu]. In cases of banditry or fires they then sent their subordinates to go to the sites." 50 One report suggests that each of these officials was aided by one inspector in chief {tuyu-hou) and that the next level of command was a varying number of borough patroling inspectors (hsiang hsiin-chien) who had responsibility for the actual daily maintenance of urban security.51 The borough patroling inspectors were presumably the top level of the police apparatus. A decree in 1009 indicates that in the capital the system of superior patroling inspectors (tu hsiin-chien) and patroling inspectors (hsiin-chien) was already in use at that time. 52 At least after 1014 there were four patroling inspectors appointed for the capital city, selected from lesser intendant servitors (ch'i-p'an shih-ch'en).53 These officials, the four quadrants patroling inspectors (ssu-mien hsiin-chien), were in charge of the four suburban sectors - east, west, north, and south - surrounding the city. They were given regular army troops to act as police.54 The importance of the office of patroling inspector increased over time, so in 1060 it was ordered that those men serving in it must be chosen from those who had had previous service in posts classified as "close to the people," who had no record of corruption, and who currently held the title of audience usher (ko-men chih-hou) or higher.55 The four official suburban subdivisions also had headquarters offices that were referred to as the police offices (chiin-hsiin yuan). These offices were headed by left and right military inspectors (chun-hsiin shih) who were assisted by left and right administrative assistants (p'an-kuan).56 Although the generally approved practice was to use soldiers, we know that sometimes the authorities used less savory urban types. Before 1009, homeless men had been registering with the borough offices. The offices gave them some money and used them to patrol and seize wrongdoers. These flunkies used their positions to cheat people, who did not dare to report the abuses to higher authorities. 57 In that year a decree ordered these men not to disturb the people. 50 51 52 53 54 55 56 57
Kao Ch'eng, Shih-wu chi-yuan, 6.30a. SS 166.3929. SHY, ping 3.1 a - b . HCP 83.7a. In times of crisis the number of these patroling inspectors could be temporarily increased. See Sun feng-chi, Chih-kuanfen-chi, 35.43a; HCP 182.13b, 183.6a. HCP 83.7a, 519.1b. HCP 191b; SHY, chih-kuan 48.128b. SHY, hsing-fa 6.77b. These administrative assistants had miscellaneous responsibilities, for example, for seeing that the rules on the proper construction of prison fetters used in the police office jails were obeyed. SHY, ping n.6a.
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Soldiers Under the patroling inspectors, there were apparently several sorts of lesser officers, as well as the common soldiers who formed the backbone of the policing and investigation systems. 58 Although the Sung had inherited a system in which the military provided the police, there was at first some conflict with the prefectural civil authorities about the status of these men, reflected in disputes about which office was to maintain discipline among them and to punish those who abused their positions. 59 This jurisdictional problem eventually seems to have been solved by involving both offices. According to a decree of 1007: In the capital city, in the various inner and outer boroughs and fire-fighting tracts, imperial army soldiers are dispatched to conduct investigations. In general they are to investigate theft and robbery. If it is learned that on the excuse of "spying out cases," they have taken goods, the Kaifeng prefectural authorities are to discover, apprehend, and severely punish them. The system will be supervised by the Palace Command [Tien-ch'ien shih-wei ssu].60 Under a system established two decades later, the persons involved in investigations were to have their work examined monthly. They were required to confine their function to writing down the facts of the original crimes and then turning over their information to their superiors for rechecking and action. 61 These soldiers filled dual functions, fire fighting and law enforcement. The system is well described in the guidebook to Kaifeng called the Dreams of the Eastern Capital (Tung-ching meng-hua lu): In each ward, about every three hundred paces, there is an army patroler's post [chun-hsunpu-shih], with five post soldiers. At night they patrol and receive cases. Also in high places there are brick fire-watch towers. Men keep watch from the tops of the towers. Below are several spaces of offices, with a hundred or more garrison soldiers, and equipment, like large and small buckets. . . . When there is a fire the cavalry quickly takes the news to the borough chief. The Cavalry and 58 Like other participants in the law-enforcement process, the soldiers serving under these capital patroling inspectors were rewarded for capturing wanted men. Under a rule established in 1018, captured deserters from the military were worth two hundred coins per man, and bandits five hundred; SHY, ping 3.2a. 59 SHY, hsing-fa 7.3b. Between 1004 and 1007 the palace command (Tien-ch'ien shih-wei ssu) complained that when its men (who were charged with seeking witnesses involved in legal cases) committed infractions, they were arrested by the Kaifeng prefectural authorities. The palace command asked for and was given the power to arrest, try, and punish such offenders when their crimes were minor. In more serious cases, a memorial had to be submitted to the Court; see SHY, hsing-fa 7.3b. 60 SHY, ping 3.1a. 61 SHY, ping 34b~5a (1025).
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Infantry commands, the Palace Command, and the prefectural authorities all lead soldiers to extinguish the fires. They do not burden the ordinary people.62 The Dreams of the Eastern Capital describes Kaifeng as it was near the end of the Northern Sung. The institution of police posts, however, had existed earlier. If we may judge from an order in 1068, which resulted in the closing of eighty-six of these posts, the average post was almost exactly as described, because in 1068 the number of soldiers averaged six.63 The use of soldiers as night patrols was an old practice. We are told that early in the dynasty those so posted had to arm themselves, buying equipment or borrowing it from others. Then in 1012, an order was issued that the state issue them truncheons. The authorities were to use a register to keep control of the weapons. 64 Patroling inspectors had supervisory control over both the fire-fighting forces and soldiers serving in law-enforcement jobs. The patroling inspectors may have had some disciplinary control over their own soldiers; they also sometimes, improperly, judged and punished other sorts of people. In 1019 additional army chiefs (chiin-chu) and inspectors in chief (tuyu-hou) were given charge of the fire-fighting soldiers. 65 The fire-fighting forces were a source of continuing trouble to the authorities. Looting commonly followed arson, 66 and the fire fighters themselves were well known for looting buildings while supposedly fighting fires. An order of 1024 sa*d: "If the fire-fighting soldiers or the men from the water guild loot valuables while fighting fires, the patroling inspector should immediately seize them and investigate. If the accusations prove true, the arrested men should be tried and sentenced as bandits by the Kaifeng prefectural authorities." 67 The authorities wanted people to begin fighting fires immediately yet hesitated to let the soldiers start before their superiors arrived, for fear of looting. In the end the dangers represented by uncontrolled fires forced the authorities to
62 Meng Yiian-lao, Tung-ching meng-hua-lu, wai ssu-chung (Shanghai: Chung-hua shu-chu, 1962), 3.22. 63 SHY, ping 3-5b-6a. 64 SHY, chih-kuan 4.123b. This pattern was also used in other urbanized areas, even quite small ones. In 1019, for example, an official remarked that south of the prefectural town of Ping Prefecture there was a market with more than two thousand households. There was also a military camp there, but only four provincial army soldiers patroled the area. The official asked that more men be assigned duties as police, including making night patrols (see SHY, ping 3.2a-b). 65 SHY, ping 3.3a. 66 See a report on this problem from 1020; SHY, ping 3.2b; see also SHY, ping 2.i7a-b. 67 SHY ping 3.4b.
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Urban crime and urban security permit people to begin at once to fight fires, without waiting for the officers to arrive. 68
Jails There were a number of jails in the capital in which people might be held after being arrested. During the late tenth century there seem to have been problems because of the lack of rules about what units could properly imprison people, so an order was issued in 997 stressing that the various offices in the capital city not be allowed to incarcerate people without authorization. 69 Many central offices, however, were allowed to establish jails. In addition, the local government entities of Kaifeng, such as the districts of the capital area and the prefectural government, had jails. The most important capital jails seem to have been those of the prefectural government itself and the jails of the borough patroling inspectors' offices. Early in the dynasty the jail (or jails) at the Censorate were important, and the Court of Judicial Review had a jail, but this was abolished, only to be revived during the reign of Shen-tsung (r. 1067-85), abolished again, and then again revived. 70 Finally, the armies undoubtedly had their own jails in the capital as they did elsewhere in the empire. From the beginning of the dynasty the emperors expressed concern aboui the treatment of those held in jails, a concern that was reflected in ait Increasingly elaborate set of rules governing jail personnel. A typical edict was issued in 969, when the emperor ordered the senior officials in the various prefectures of the two capitals to investigate the condition of those imprisoned, supposedly every five days. The jail cells were to be washed and swept, and the fetters of the prisoners washed off. Prisoners who were poor and unable to support themselves were to be given food and, if ill, medicines. When the crimes involved were minor, an immediate disposition was ordered. From this time on, the text says, such an order was issued every summer, and "it became a regular custom." 71 Prisoners in the capital (and in other areas) were also supposed to be given coal and warm clothing in the winter. 72 As described, in Chapter 12, the authorities' concern was also reflected in rules governing the various sorts of prison instruments. Fetters, chains, manacles, 68 69 70 71
SHY, ping 3-ia-b, 4b; HCP 110.1b. SHY, hsing-fa 6.52a. WHTK 166.1445, 167.1449-50; HCP 295.8a-b; SS 201.5021, 5023. SS 199.4968. See also, for example, HCP 61.lib; SS 199.4992. On the continuing concern about providing food and medicine, see orders (with regard to the capital area as well as the outer areas) from the Southern Sung; SS 199.4993. 72 SHY, hsing-fa 6.56b-57a.
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and the cangue all were governed by rules that determined their size, weight, and composition. And in fact, we know of cases in which responsible officials in the capital city were demoted for having improper instruments.73 Concern about abuses in the capital also prompted the emperor to order the appointment of a judicial intendant for the area in 1006. The Southern Sung encyclopedia Shih-wu chi-yiian says that during the previous summer the authorities of Kaifeng Prefecture had interrogated a doctor of letters, judicially torturing him and ripping open his back, without having the case statement supposedly necessary before torture could be legally applied.74 All this concern, however, did not prevent numerous deaths among prisoners in jails. The response of the authorities was to establish quotas. The rule for the capital said that if seven men died in the jails of the Kaifeng borough patroling inspectors' offices, the jail personnel there would be liable for sixty blows of the heavy rod. In places other than the capital, the functionaries would be punished if two men died in a year. The larger quota in the capital is presumably due to the larger numbers of prisoners. When in 1005, the emperor examined the prisoner records for Kaifeng Prefecture, he found more than two hundred persons currently being held in jail. 75 As we noted, the judicial intendants of the jurisdictions, including Kaifeng, had to submit an annual report to the Court, listing the number of prisoners who died in the jails under their jurisdiction.76 Adjudication T h e way in which adjudication of minor cases in the capital was handled early in the dynasty is n o t clear. It seems, however, that borough patroling inspectors h a d been j u d g i n g some minor cases. T h e Southern Sung encyclopedia Shih-wu chi-yiian observed: In the past, in Kaifeng, lieutenants [ya-chiao] were chosen to act as [magistrates]. In 973 this changed. For the first time, literati - Li O and Chao Chung-heng were appointed to this post. In his San-ch'aopao-hsun, Lii 1-chien says, "In 973 the emperor spoke to his advisers, saying, 'Until now only lieutenants [ya-chiao] have been appointed to serve as the Kaifeng Prefecture left and right army patrols and the various prefectural cavalry and infantry magistrates. Punishment 73 SHY, hsing-fa 6.79a; SS 199.4993.
74 Kao Ch'eng, Shih-wu chi-yiian, 6.19a.
75 HCP6i.nb.
76 SHY, hsing-fa 6.56a-b; SS 201.5021. The WHTK 167.1448 gives the figure as ten deaths. See also a modification of this system in 1093; SHY, hsing-fa 6.57a-b.
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deeply affects the people's lives. From now on we should appoint literati to doit.'" 77 The judgment of minor cases by the borough officers continued at least until 1029, w n e n it was forbidden. The report says that "at the beginning of the Chih-tao period [995-97] the generals in charge of regular army troops in the garrisons, and the borough officers, had, in a disorderly way, been judging legal suits and incarcerating men." 78 In 1029 the Court issued an order: "When there are fights or disputes in the capital, those involved are to be sent to the prefectural authorities for a hearing. The patroling inspectors of the borough in question are not allowed to render judgment." 79 In 1033, perhaps because the press of cases was overburdening the prefectural authorities, the Court ordered that judges be established in each borough, to handle minor cases. 80 This arrangement seems to have remained in use until the reforms under Shen-tsung.
Heavy-penalty system The Sung authorities also sought to increase security in the capital by creating special systems of laws and punishments for use there. The Sung commonly compiled sets of decrees and rules applicable to certain regions, including the capital. From the Northern Sung we know, for example, of the two-chapter "Hsi-ning Period Decrees Concerning the pao-chia System of Kaifeng Prefecture" and the ten-chapter "Recompilation of Decrees from the Hsi-ning Period Relevant to Kaifeng Prefecture" and, for the Southern Sung, of a twelve-chapter compilation of generally applicable laws for the eastern capital, which included decrees, 77 HCP 12306.17b; Kao Ch'eng, Shih-wu chi-yuan 6.25b. Lii I-chien was in a position to be well informed about these matters. In 1006, when the Kaifeng Prefecture judicial intendant's post was established, he was its first incumbent. See Kao Ch'eng, Shih-wu cki-yuan, 6.19a. A decree from the following year extended this system to the outer prefectures. The report states: "Before this, the prefectures in the various circuits had appointed lieutenants [ya-chiao] as cavalry and infantry inspectors in chief concurrently serving as magistrates for judging cases. They often were incorrect. In the autumn of 974 this was stopped by decree. The Cavalry and Infantry Office was changed to be the Public Order Office [Ssu-k'ou yuan]. Administrators for public order [ssu-k'ou ts'anchun\ were chosen from new graduates with the degree of chin-shih, nine Classics, or five Classics, or from among executory officials [hsuan-jen] who had the proper seniority." See HCP 12306.18b. 78 SHY, ping 3.1b. 79 SHY, ping 3.2a; HCP 83.5b. See also HCP 99.i4a-b, which records a decree specifying certain times during which the palace cavalry and infantry commands were not allowed to pass judgments. 80 WHTK 63.568.
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Law and order in Sung China ordinances, regulations, specifications, and clarifying decrees. 81 There were also special rules with special punishments for crimes committed in the palace area. 82 More importantly, however, the Sung introduced a system that increased penalties in the capital region, the "heavy-penalty" system, which will be described in Chapter 15. Although the system of law enforcement followed in the Southern Sung capital was patterned after that in Kaifeng, it is not clear whether the heavy-penalty system continued in general use. We do have one order from 1132 specifying that certain types of robbers or arsonists were to be "judged according to the laws used in Kaifeng." 83 People could also be punished with special severity by subjecting them to military law, which for most crimes called for beheading, a practice used in the Southern Sung against some arsonists. 84 In general, however, it seems that the ordinary laws were applied.
Reforms in the late Northern Sung During the reign of Shen-tsung (r. 1067-85), in this as in so many facets of governmental organization, there were significant reforms. The basic trend was to create a more complicated apparatus, by dividing up among the newly created offices some of the functions associated with maintaining security. Fighting fires, patroling, investigating crimes, measuring boundaries (which might be important to lawsuits regarding property), taking depositions, and adjudicating cases were divided among several offices. A separate system for adjudicating minor cases was the first step in this division. In the fifth month of 1070 the provisional prefect of Kaifeng, Han Wei, memorialized asking that the four borough servitors be abolished. To replace them he asked for the appointment of four civil officials of relatively high rank (capital or court officials, ching-ch'ao kuan), who had had experience as prefectural controllers-general or district magistrates, to act as judges for minor cases in the capital. These men were to have charge over the left and right boroughs of the new and old cities. They were to have the power to decide legal cases in which the penalties were sixty or fewer blows of the heavy rod. They were also to handle cases involving debts and marriages, plus some other miscellaneous duties. Under this system the previously appointed servitors, who had per81 82 83 84
SS 204.6a, 7a; SHY, hsing-fa 1.38b. HCP 493.3a. HNYL 917; SHY hsing-fa 2.109b. See HNYL 1185.
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formed a variety of tasks, were to be abolished. 8 5 Four months after submitting his initial proposal H a n Wei again memorialized. It had become clear that the new arrangement was overwhelming the remaining officials. In his memorial H a n Wei implied that the various services performed in the past by the servitors had now passed to others. T h u s , the dredging of canals had become the responsibility of the Metropolitan Water Office (Tu-shui chien). Fire fighting and relief work had become the responsibilities of the patroling inspectors' offices (hsiin-chien ssu). T h e miscellaneous duties, once the responsibility of the servitors, had fallen to the newly created magistrates, who were supposed to manage them in accordance with the practices of the previous servitors. However, H a n Wei said, these servitors had been responsible for conducting inquests and reinquests, measuring boundaries, investigating criminal cases, and distributing relief to the poor. They were, in short, functionaries with a variety of duties not appropriate to the newly appointed capital and court officials. H e asked that the servitors be appointed again, to handle such miscellaneous duties, leaving the newly appointed magistrates to concentrate on settling legal cases. T w o months later, after an official noted that the number of cases to be settled was really quite small, two of the positions were abolished, leaving two officials to handle the magistrate's duties. 8 6 Borough servitors continued to be involved in relief work. A decree dated 1070 said: It has been snowy and cold in and around the capital city. There are those who beg because they are old, ill, young, or solitary and have no sources of support. The authorities of Kaifeng Prefecture are ordered to apportion management to the four Bureaus of Fortunate Fields (Fu-t'ien yuan), who will note such people outside the regular quotas, in order to give them food. As before, we expect the administrative assistant servitors of the four boroughs, in accord with the old rules of the Bureaus of Fortunate Fields, to examine this process on a daily basis and, according to the amounts to be given to those within the quotas, to distribute money and save lives.87 In the following year the man who followed H a n Wei as prefect of Kaifeng was dissatisfied with the existing system and asked that the position of right borough magistrate be abolished. His ostensible reason was that the existence of two magistrates meant that people were being sentenced differently for the same crimes, though the sources suggest 85 SHY, chih-kuan 37.ga-b. 86 HCP 2ii.i5a-b, 2i5-i3a-b, 225-7b-8b; SHY, chih-kuan 37.ga-b, cjb-ioa; SS 166.3942; WHTK 63.568. There are some minor contradictions in the information given in these various sources. 87 SHY, chih-kuan 37.9b-10a. 307
Law and order in Sung China
that the question had been affected by the bitter partisan politics of that time. His idea was that the adjudicating functions be returned to the prefectural authorities and that the remaining single borough magistrate concern himself with the miscellaneous law-enforcement duties that had in the past been handled by the servitors. His request was turned down. 88 These changes had been prompted principally by concerns about settling minor legal cases. The servitors who acted as patroling inspectors had proved indispensable as a group, though there seem to have been occasional changes in their numbers. The texts suggest that some patroling inspector positions had been eliminated some time in the 1070s, since an order of 1081 called for the reestablishment of two patroling inspectors in the four outer areas around the city.89 In 1086 this number was raised by dividing the jurisdictions within the new city into left and right. The provisional prefect of Kaifeng requested the following: In the new and old cities of the capital, there are only the two boroughs. When at night there are incidents, the distances to be covered are great. I ask that in the new city the borough be divided into left and right, to make a total of four boroughs. Select two additional civil officials for these posts, and increase the number of clerical personnel. His suggestions were approved. 90 Four years later the statesman Su Ch'e wrote: At the beginning of the Yiian-yu period [c. 1086], when Han Wei had control of the government, Hsieh Ching-wen was selected prefect of Kaifeng Prefecture. Han Wei had previously been prefect of Kaifeng and had divided the city into two boroughs for administration. Hsieh Ching-wen wanted to flatter Han Wei, and so he asked that the city be divided into four boroughs. This policy was useless, indeed pernicious, and the Court recently has abrogated it.91 Su Ch'e was alluding to the abolition of the four-borough system in 1089, D U t m IO 94 ^ w a s reestablished. 92 This change might have been connected with an important, but undated, memorial by Pi Chung-yu. Pi Chung-yu was a well-known scholar-official who served, among other important posts, as judicial intendant in Ho-tung Circuit. In his memorial he said: 88 89 90 91 92
HCP 225.7b-8b. HCP 311.5a. HCP 381.23a; see also SS 166.3942; SHY, chih-kuan 37.10a. SS 166.3942; SHY, chih-kuan 37.ioa-b. SHY, chih-kuan 37.ioa-b; SS 166.3942.
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Urban crime and urban security
I have noted that the regulations for controlling banditry in Kaifeng Prefecture are very numerous, and yet major parts of the plans for stopping banditry are incomplete. If, for example, we look at this in terms of capturing bandits in outer circuits, we find that within the [outer prefectures'] cities themselves there are military directors in chief [tu-chien] and supervisors of militia [chien-ya], whereas outside the cities there are patroling inspectors and sheriffs. The arrangement of these officials cannot easily be changed. Nowadays, outside the city [of Kaifeng], the system of patroling inspectors and sheriffs in the outer prefectures is generally similar. Within the city, however, the duties of patroling inspectors are subordinate to the cavalry and infantry generals [shuai-ch'en] and the four borough chiefs. Even if the emphasis is on patroling in the capital, in the search for ordinary bandits in the past they have been ill prepared. Hitherto, under the old precedents of Kaifeng, the servitors were ordered secretly to pursue and arrest men. If they seize bandits, they will get rewards, but if they fail to do so, they will not be punished. Men therefore take their duties lightly. On the contrary, they often even have dealings with the bandits. The various borough servitors minor, although they are supposedly responsible for investigating bandits, are in reality involved in family welfare activities. They take legal depositions from people who are ill, take part in inquests, help with fire fighting, and perform similar miscellaneous duties. They are not really officers who capture bandits. 93 Pi Chung-yu recommended that six borough patroling inspectors be appointed, two in the old city and four in the new city, with the Kaifeng prefectural authorities having control. Thus, the servitors who served in the boroughs would continue to be selected by the prefectural authorities according to the pattern first established under Jen-tsung (r. 1022-63) and reaffirmed during the Hsi-ning period (1068-77). This is confirmed by an approved memorial dated 1099.94 Occasional grave concern about the state of urban security and law enforcement was reflected in the authorities' willingness to devote large amounts of their scarce resources to police needs. There were attempts to improve the physical facilities available to the law-enforcement apparatus. The boroughs, for example, had their own jails. Because of an increase in the number of men being held, an official in 1082 said that because "the left and right boroughs have many men held in detention and their jails are overcrowded, we ask that more jail cells be added." 95 In 1116 the problem was the barracks for the men serving as police. The prefect of Kaifeng wrote: 93 Pi Chung-yu, Hsi-t'ai chi, I . I O - I I (17b-18a). Military directors in chief and supervisors of militia also seem to have had charge of law enforcement in other cities. See Ou-yang Hsiu, Ou-yang Wen-chung kung cki, 12.16. 94 HCP 511.2a. Apparently at about this time the authorities also added investigators (Van-shih jen) to the eight boroughs. Their number increased until eventually the total reached sixteen men, but the posts were abolished in 1100; HCP 520.22a. 95 HCP 323.3a.
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In the four boroughs of the capital city that are under my control, there are many wards. There wards all have a number of patroling soldiers, who dwell in barracks. These barracks have been deteriorating for many years. Some are no longer in existence, and so there is no way for the men to shelter from the wind and rain or to avoid the cold or heat. The soldiers all live in other places. Often they huddle beneath people's bamboo fences. . . . Bandits can act without any fear. As a result, a major rebuilding program was initiated. 96 Civilian law-enforcement functionaries I n addition to these military functionaries, there were also some civilian law-enforcement personnel in u r b a n areas. T h e capital city itself included two districts, which like districts elsewhere, h a d civilian sheriffs (hsienwei) in c h a n g e of law enforcement. I n 1055 t h e authorities appointed a second sheriff in Hsiang-fu District of Kaifeng Prefecture, a n d a second one w a s a p p a r e n t l y also a p p o i n t e d in t h e other district of the capital. 9 7 A n order of 1081 reduced t h e c o m p l e m e n t to a single sheriff in each district, because t w o patroling inspectors h a d j u s t been reestablished for each q u a d r a n t of the s u b u r b s . 9 8 Cooperative action for law enforcement in s u b u r b a n areas between t h e sheriffs, w h o h a d charge of the whole district, a n d t h e b o r o u g h military, w h o h a d u r b a n responsibilities, w a s also characteristic of other S u n g u r b a n i z e d a r e a s . 9 9 U r b a n districts, like districts in general, h a d a c o m p l e m e n t of archers. T h e n u m b e r s of these constables varied from district to district, d e p e n d ing in p a r t o n t h e n u m b e r of households. F o r Kaifeng itself we know t h a t Hsiang-fu District h a d sixty archers in 1081. 1 0 0 F o r a brief period t h e n u m b e r of archers w a s lowered, u n d e r a policy that confined t h e sheriff's concern to u r b a n i z e d areas, thus leaving t h e rural areas solely to their patroling inspectors. I n t h e early 1080s in t h e capital, therefore, each sheriff h a d only twenty constables. 1 0 1 Some years later, however, t h e n u m b e r elsewhere w a s increased, in Kaifeng as in other regions. 1 0 2 Cities h a d their o w n sorts of drafted s u b b u r e a u c r a t i c functionaries, which corresponded to t h e village officers of rural areas. D u r i n g t h e T ' a n g period, p a r t of the b u r d e n of u r b a n law enforcement fell o n labor 96 97 98 99
SHY, ping 3.6a. WHTK 63.573. HCP 311.5a; SHY, chih-kuan 48.64b. See also HCP 331.13b-14a. An approved memorial in 1031 ordered such cooperation in the suburbs of Ting prefectural town in Ch'ing-hu North Circuit (SHY, ping 11.13b). 100 HCP3ii.5a-b. 101 HCP 311.5a; SHY, chih-kuan 48.64b.
102 HCP 364.2a (1086).
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service officials called ward chiefs (fang-cheng). Such men continued to be drafted during the Sung but seem to have been concerned with tax collection rather than law enforcement. In addition, in the districts that included Kaifeng there were also the usual village officers charged with maintaining law and order. Because these elders and stalwart men had received no particular training or support, it is hardly surprising that they are said to have been incapable of dealing with bandits. 103 An official remarked in 1070 that even though there were elders, stalwart men, and other village officers in the area around the capital, they were in fact too weak to resist bandits, and even if they did sometimes succeed in capturing them, this just caused the other members of the bandit gangs to come together to aid their fellow bandits, causing untold trouble. 104 In 1070 in the capital area, the new pao-chia militia system was instituted. Although this device was most developed in rural areas, its units also seem to have overlapped the suburban sprawl surrounding the capital. A decree of 1084 states that in Kaifeng Prefecture there were at that time 280 superior guards (tu-pao), with a total of 68,863 men. 105 Unfortunately, the materials do not usually distinguish the rural areas from the city, and so it is difficult to determine how actively the urban pao-chia participated at this time in law-enforcement activities. In theory, all urban populations were to be part of some such system, but in practice there were problems with solitary and unattached individuals in the cities. This is made clear in an order in 1082 by the prefectural authorities in Kaifeng: Those prisoners who are old, young, ill or disabled, as well as those who are alone and have no one to pay their commutations, are to be given surety and released. This prefecture daily must judge cases. Of those eligible for commutation, many are solitary or poor. Also, they lack membership in neighborhood guards. The borough patroling form should be used as the essential document to serve as surety so that they may have a convenient guarantee document.106 Southern Sung The patterns of urban law enforcement just described were the model for the systems used during the Southern Sung. In 1132, when the refugee Court had recently arrived in Lin-an, an official submitted a memorial on the security problems of the new capital: 103 104 105 106
SHY, ping 2 .6b-7a (1070). SHY, ping 2.6b~7a. HCP 346.12a. HCP 323.5b.
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Within the city and the district of Ch'ien-t'ang, there is a large area with many bandits. Also, in the aftermath of military problems, there are many refugees. Because they often are living in thatched huts, controlling fires is a very serious problem. Although there are two men who are supposed to serve as the left and right ward patroling inspectors, the system is defective. The men are appointed in name only. I ask that you have the Bureau of Military Affairs [Shu-mi yuan] order the Cavalry and Infantry Commands [Ma-pu chiin-ssu] to take responsibility for drawing up laws for patroling inside and outside the city. Divide the urban area of Ch'ien-t'ang into four wards, each having its own patroling inspector and provisionally dispatching talented commanders [Chih-hui shih] from the armies to fill these posts. In each borough, assess its area and decide on a certain number of police posts, assigning six imperial army soldiers and a commander. At night they will use a water clock to note the time and strike the drums. They will prepare the fire equipment. For every two posts, appoint an adjutant (chieh-chi), and for each thousand soldiers, assign a military officer to have general control over them. When legal cases are brought to the patroling inspectors, they are to be forwarded to the Lin-an prefectural authorities. As before, a daily security report should be sent to the Cavalry and Infantry Commands [Ma-pu chiin-ssu]. If in the area under their control there are bandits, then the patroling inspector and his subordinates should be punished in accordance with the law of the capital. 107
This proposal was approved. In this era Lin-an was organized according to the pattern used previously in Kaifeng (see Figure 9.2). The post of superior patroling inspector in the new city (outside the old walls) being filled concurrently by the man who was the head of the Infantry Office, and his colleague, the head of the Cavalry Office, served concurrently as the superior patroling inspector of the old city. 108 The pattern of four boroughs outside the city is indicated in a memorial dated 1167, in which an official commented that because of the large size of the boroughs, it was difficult for the sheriffs and patroling inspectors to handle law enforcement adequately. He asked that another patroling inspector headquarters be set up west of the city. 109 The Gazetteer of Linan from the Hsien-ch'un Period lists nine boroughs for the city: the Palace Borough, the Left No. 1 South Borough, the Left No. 1 North Borough, the Left No. 2 Borough, the Left No. 3 Borough, and the Right Boroughs Nos. 1 through 4. 110 As areas for law enforcement, these boroughs overlapped areas that were the responsibility of the men from the patroling inspectors' forts. The Meng-liang lu says that there were sixteen patroling inspectors' forts, with over thirteen hundred soldiers, but this passage 107 108 109 110
SHY, ping 3.7b-8a. SHY, ping 3.9a. SHY, ping 3.3a. Ch'ien Yiieh-yu, Hsien-ch'un Lin-an chih, 19.4070-71.
312
PLAN OF HANGCHOW
(Lin-an)
AFTER THE RECONSTRUCTION BY A.CMQUIE
C. 1274
.••:
AtUrforihc . sadrices of t/>& •southern suburb
Map 9.1. Plan of Hangchow (Lin-an). Redrawn from Arthur Christopher Moule, Quinsai: With Other Notes on Marco Polo (Cambridge: Cambridge University Press, 1957).
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seems to include forts not in the city or suburbs but in their environs (see Map 9.1).111 The central military and security authorities in the capital worked together with the prefectural authorities in staffing this police system. In 1132 the Palace Cavalry and Infantry Command (Tien-ch'ien ma-pu chiin ssu) asked that the left and right patroling inspectors work together with the Lin-an Prefectural Office of the military director in chief (tuchien ssu) to evaluate the imperial army soldiers manning the 102 police posts in the capital. 112 In fact, 115 police posts were set up in the capital, with 673 men, the Three Commands, and the prefectural troops each providing half of the complement.113 In 1152 this was raised to 150 posts, with more soldiers to be used for night patrols. 114 By 1171 there were 232 posts, each with 4 dispatched soldiers and 1 post jailor (ya-pu). An official writing at that time commented that the original order had called for the prefecture, acting in concert with the Three Commands (san-ya), to appoint the soldiers. He complained that the Three Commands were not doing a satisfactory job and suggested that the prefecture take sole charge of making these assignments from the imperial army soldiers under its command. Two years later the Three Commands and the prefecture again were given joint responsibility for making the assignments. Although there were some occasional changes in policy after this, the most common pattern was for these two offices to share the responsibility.115 The prefectural authorities and the Three Commands, acting jointly, selected the soldiers to be sent for tours of duty in these army patrols. 116 These tours of duty seem to have been one month long, though there was a complaint in 1167 t n a t m e n were not being replaced. As a result, the men became "thoroughly familiar with the streets and alleys, and frequently they got into trouble. Those repeatedly arrested have been numerous." The official asked that the superiors of these men be made to provide sureties of joint responsibility for the behavior of their subordinates, that only well-behaved men with families be chosen, and that 111 Wu Tzu-mu, Meng-liang lu, in Meng Yiian-lao, Tung-ching meng-hua lu, wai ssu-chung, 189, 214-15.
112 SHY, ping3.8a-b. 113 HNYL, 51.900. 114 SHY, ping 3.9a-b. SS 166.3944 s a v s t n a t there were 148 posts, but the reference is not dated. 115 SHY, ping 3.10b. An official had said: "I ask that in Lin-an Prefecture, in the alleys and byways, you again increase the number of police posts and fire stations. There should be a strict system of patroling. A clear system of rewards and punishments must be established governing the capture of fugitives and fixing the time limits for their capture, so that the capital can again be secure." SHY, ping 3.11b-12a. 116 SHY, ping 3.9b.
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they always be rotated at the end of their monthly tours of duty. The exceptions to this rule were to be the areas east and west of the city, where the men were to serve two-month tours. 117 The Southern Sung guidebook to Lin-an, the Meng-liang-lu, describes the situation: Lin-an city is very large and has a huge population. People's houses are like a forest. Their eaves almost touch each other. There is not an inch of open space. The canals and ditches are obstructed, and the streets narrow, being no more than paths. Many are in poor repair. The authorities have established army patroling posts about every two hundred paces, with a small number of soldiers assigned to each post. At night they patrol to control robbery and fires. If there are disturbances or other illegal activities, they make arrests, and then the boroughs conduct investigations, turning over their prisoners to the prefectural authorities for the hearing of the cases. There also are fire watches and people to stand guard at official buildings, to protect them against bandits. Generally, the authorities are very concerned about fires and, in the wards, have established security buildings with a staff of regular soldiers. In the wards they have built watch towers. From dawn to dusk they rotate, and troops keep watch. If they see smoke anyplace, they use flags to indicate its location and name. At night they use lanterns.118 As in the Northern Sung, the police were also involved in the city's welfare system. A decree of 1164 on the distribution of rice to the needy assigned responsibility to the prefectural authorities, working with the borough officials, to investigate and certify that those being aided really were poor. 119 And in 1181, in an order dispensing medicines and food during an epidemic, some of the personnel used were from the borough offices.120 Note that this use of borough personnel in welfare activities was not confined to the capital, as documents indicate a similar practice in the city of Shao-hsing at the beginning of the Southern Sung. 121 In addition to these regular army soldiers working as police within the city, Lin-an also had substantial numbers of "local soldiers" {t'u-ping) serving in forts in the city's environs. Some of the forts where these men were stationed seem to have been some distance from Lin-an, but of the 117 SHY, ping 3.9b-1 ob. 118 Wu Tzu-mu, Meng-liang lu 10.214-15. Later in the dynasty the administration of Lin-an became even more differentiated. The boroughs continued to be the lawenforcement units in the capital (and presumably in other cities also). However, fire control was increasingly administered through new units called precincts (yu). We should add, however, that one passage in Chu Hsi, Chu wen-hung cheng-hsun, TSCC ed., p. 4, suggests that precinct officials might play a role in maintaining the law. 119 SHY, shih-huo 60.12b-13a. 120 SHY, shih-huo 58.14b. 121 SHY, shih-huo 5g.22b-23a, 60.8a.
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ch'un Lin-an chih), five were located at the city gates. Two of these forts had 120 men; two had ioo; and one had 68. 122 Such men, even if not spending their time as police, formed part of the security system, as in their own way did the regular army soldiers stationed in the four major military camps at the capital. The authorities thus relied heavily on soldiers for police work. They also used other sorts of people, even ex-criminals. In his book of reminiscences about Lin-an, the Wu-lin chiu-shih, Chou Mi remarks that among the law-enforcement personnel used by the borough authorities, many of those who were bravest and had the most fearsome reputations "originally came from bandit gangs." 123 Perhaps because of its huge population, the capital also faced special problems in adjudicating legal cases. The rural system in which the district magistrate was the customary judge of first instance was simply not workable in a city of perhaps a million people. Therefore, during the Southern Sung as in the Northern Sung, additional judges had to be appointed. The Sung History stated that the men appointed as borough officials to hear people's complaints were to be selected from among capital and court officials "who were close to the people" and possessed the appropriate degree of seniority. 124 The Southern Sung encyclopedia Shih-wu chi-yuan says that such men could deal with cases calling for punishment with the light rod. 125 A decade later, in 1141, the Northern and Southern boroughs outside the city were divided into left and right, with personnel selected according to the previously used criteria. They were given the power to hear cases calling for sixty blows or fewer of the heavy rod. 126 In 1156 a censor stated: Lin-an Prefecture initially followed the precedent of Kaifeng Prefecture. Outside the city wall it established a Northern and a Southern borough for administration. Recently, within the city, we added Left and Right boroughs and two officials, out of a desire to reduce the caseload of court cases in the city. This prefecture each day has seventeen or eighteen law cases. All are sent for judgment to the two boroughs. The clerks in the boroughs play with the facts and distort the law. They pursue men without reason, in a wholly improper way bringing them in. Lawsuits are numerous. Those the borough officials cannot handle simply do not get judged. The prefecture does not decide the cases, and the two boroughs do not handle them, so that the people are disturbed. As a 122 123 124 125 126
Ch'ien Yiieh-yu, Hsien-ch'un Lin-an chih, 57.4403. Chou Mi, Wu-lin chiu-shih, 6.445. SS 166.3944. Kao Ch'eng, Shih-wu chi-yuan, 6.30a. Ch'ien Yiieh-yu, Hsien-ch'un Lin-an chih, 19.4071.
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result, the situation in Lin-an Prefecture is not so simple as was the situation in Kaifeng of old. This prefecture has many officials, but at present the offices in the Northern and Southern boroughs are unfilled. I ask that two officials be taken from the Left and Right boroughs within the city and transferred to the Northern and Southern boroughs outside the city. Lawsuits within the city should be sent to the prefectural authorities for judgment, according to the former practice. The suggestion was approved. 127 In the Lin-an area the pao-chia militia may have continued to perform some of their old security functions during the first new decades of the Southern Sung. In 1162 an order was issued provisionally abolishing their night patrols in Lin-an Prefecture. They were to be replaced by patrols of soldiers. 128 Two years later, however, the prefectural authorities submitted the following memorial: There recently was an order abolishing this prefecture's pao-chia guard organizations. This year the Great Rites will be performed. However, except for places in the city with separate guild organizations [hang], in the streets and neighborhoods of the northern and southern sections of the city there are no means for investigating evil robbers. We ask that in this prefecture, outside the city proper, you provisionally use the pao-chia guard organization so that they can patrol and investigate [in the suburbs].129 Less than a month later the prefectural authorities submitted another memorial, asking that the system be extended to cover the city itself: Within the city there is a multitude of people. We desire that the old system be provisionally revived. The people of the city should be organized into guards, with ten families forming one small guard and one hundred families making up a large guard, with the post of large guard head to be filled in rotation. Each night, in rotation, one of the small guards should patrol. If they see within their area a household in which there has been a crime, or if at night they meet men who are moving about, they should interrogate them, enter their names in order on a list, and give this list to the large guard head of the section where they live, for controlling.130 Both memorials were approved, so we can probably assume that for at least some time after this the pao-chia played an active neighborhood watch role in maintaining urban security. Other mutual security units were organized in the Sung. A report from 1127 mentions patroling societies (hsiin-she). The organizational 127 128 129 130
Ibid. See also HNYL 175.2891. For a general description, see SS 166.3944. SHY, ping 3.9b; see also SHY, ping 2.420-433. SHY, ping 2.433-430. SHY, ping 2.43b.
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scheme of these societies resembled that of the pao-chia, though the societies had five levels of organization rather than three. Ten men formed one unit, with a unit chief (chia-chang). Five units formed a squad, with a squad chief (tui-chang);fivesquads formed a section, with a section chief (pu-chang); five sections in turn formed a society, with a chief and an assistant chief (she-fu-chang); and five societies formed a group (tu) headed by two officers. The members guaranteed one another's behavior and were charged with investigating banditry. 131 Though the original societies seem to have been organized in rural areas, the report says that "all patroling societies organized among urban people should follow the pattern of the rural societies." Finally, the memorial from 1164 just quoted provides a tantalizing hint that the city's guilds (hang) helped maintain law and order. 132 In the T'ang these guilds had been sections of wards in which the practitioners of a particular craft or dealers in a particular commodity were concentrated. By the Sung period, with the breakdown of the controlled, walled-ward urban pattern, the guilds had become organizations of those engaged in a craft or in selling a commodity, regardless of the location in the city of their place of business. The Sung government used these organizations to collect certain taxes. In later dynasties such guilds did exercise discipline over their members. The brief passage that recommends reestablishing pao-chia units in the city - because no other organizations for law enforcement existed "except for those places in the city where there are separate organizations of guilds" - provides a rare indication that this later pattern already existed in the Sung. Sheriffs and archers continued to have a role in urban law enforcement during the Southern Sung, though they were overshadowed by the patroling inspectors. Some idea of their relative roles can be deduced from an official's complaint dated 1169 that says that the districts of Linan had a total quota of 1366 local soldiers for service under the patroling inspectors (though there were in fact at the time only 911 in actual service). The quotas for archers in these districts was slightly more than half the quota for local soldiers. There were supposed to be 782 archers, though there were currently only 737. 133 There sometimes were not enough archers. The well-known official Fan Ch'eng-ta reported in 1170 about an incident in which the archers of Yu-ch'ien District (partly in urban Lin-an) had tried to seize some salt smugglers, but because their forces were inadequate, they had been wounded or killed. 134 131 132 133 134
SHY, SHY, SHY, SHY,
ping ping ping ping
2.503-51 a. 2.433-43!). 3.27a. 3.27a-b.
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It is important, however, to see these sheriffs and archers as parts of a larger security apparatus, in which they were closely tied to the military side of security work. It is certainly not accidental that the sheriffs' offices of the two urban districts of Ch'ien-t'ang and Jen-ho were adjacent to the large East and West military camps. (There were four major military camps in Lin-an, the North, South, East, and West camps.) Furthermore, the superior patroling inspector's office for the city's Western Borough bounded the office of the sheriff of Ch'ien-t'ang District to the east and north. This complex of agencies was further integrated by assigning legal cases arising in the East and South military camps to the city's Southern Borough offices, and those arising in the West and North camps to the city's Northern Borough offices.135
Conclusion Over several centuries there were striking changes in the patterns of Chinese urban life. During the late T'ang and Five Dynasties, the character of Chinese cities was radically transformed. Ch'ang-an, the prototypical city of the T'ang, was laid out on a grid pattern, divided into walled wards, and subjected to strict curfew and other controls. It was the model of a tightly controlled urban area. However, in the late T'ang and thereafter these patterns began to change. The system of walled wards broke down. Individual houses now opened onto the streets. Curfew restrictions were relaxed. The state no longer attempted to control so strictly the locations of business activities. The attempts to regulate prices of goods were less and less effective. As city life became increasingly free from state interference, it seems that the security problems would have changed and that as the security problems changed, the state would have had to change the ways in which it tried to deal with urban crime, fire fighting, adjudication, and related problems. We must remember, however, that these changes took place piecemeal, over many decades. From the point of view of those alive at the time, they must have seemed quite gradual. Because the transformation came about in this way, the state responded by making a sequence of relatively minor modifications in its inherited repertory of policies for urban security and control. A large number of men were still needed to staff the security positions, and it was still true that the military was the obvious source for such men. The Sung understandably continued to depend on men from its military forces to enforce order in its cities. These were balanced to some degree by civil officials and constables, but in the 135 Ch'ien Yiieh-yu, Hsien-ch'un Lin-an chih, 19.4072.
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major cities the emphasis certainly was on the military. The personnel of the law-enforcement system thus did not change radically from previous patterns. With the growth of great cities and the opening up of closed neighborhoods, a regular underworld also formed. I think that we may also assume, judging from the evidence of contemporary developments, that "one cause of an increase in criminality is the increased urbanization of the population." 136 Associated with the urbanization during this era was a general rise in prosperity. But affluence can contribute to crime as well. In the words of Wilson and Herrnstein: In the individualistic environment of the cites that grow along with a nation's economic development there are targets for theft in some rough proportion to the general level of affluence. .. . But this may not be the whole story. The suggestion has also been made that it is not only affluence that fosters crime, it is relative deprivation, o r . . . inequity. Wealth tends to be accumulate unequally, and to those not possessing it, it may seem (and may in some sense be) inequitable as well as unequal. The contrast between the haves and the have nots becomes more, not less, palpable . . . as affluence grows, if people are separated by wider gaps in wealth, especially if they live side by side in cities. This is even more so if the family and community ties of traditional society have been dissolved in the impersonal exchanges of commercial society, and wealth has become the measure of individual worth.137 Wilson and Herrnstein are discussing the rise in crime in recent times, but all that they say also is relevant to the Sung. It may well be that the urban society of the Sung was not so individualistic and fragmented as urban society is today; it is certainly true that Sung urban society was more individualistic and fragmented than Chinese society as a whole had been in earlier times. The problems facing law-enforcement officers also were much more difficult, given the freedom with which people could move around Sung cities. The state reacted to these changes by increasing the size of the groups concerned with security maintenance and by introducing a certain amount of specialization in function and in territorial units. Still, the authorities acted rationally, not by radically altering their urban policies, but by gradually adapting old ways to new conditions. 136 Wilson and Herrnstein, Crime and Human Nature, p. 411, speaking of increases in crime rates in the modern world. 137 Ibid., p. 446.
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Introduction — functions of penalties The product of an effectively functioning law-enforcement system is captured suspected criminals, but this product is merely a means to a further end, the reduction to a tolerable level of socially threatening deviance. Insofar as the presence of law-enforcement agents actually discourages the commission of crimes, it directly contributes to the larger goal. The captured criminals pose a different problem: Assuming that they are found guilty, how should they then be treated? What sort of treatment will contribute most to the general aim of creating a society not threatened by serious deviance? More exactly, given the array of options that the ruling group can envision as both possible and acceptable, and within the constraints set by organizational skills, technology, fiscal limitations, and competing state goals, what responses will be most useful? For the majority of those captured and convicted, this comes down to the question of how they are to be punished. The answers given in a specific culture are bounded in part by contemporaries' visions of their own past history; in trying to understand their own time they look at the evolution from their cultural past to the present. The levels of punishment exacted in traditional China reflected a vision of the past and how the current practices evolved, the ideas of state leaders about the uses of penalties, and a perception of the current historical situation. Penalties are seen as useful in both internal and external terms. Internally, they might create a more stable and peaceful society. By reflection the resulting good order helps in the competition with external enemies. A Sung official quoted with approval a passage from Mencius: "If a ruler . . . takes advantage of times of peace to explain the laws to the people then even large states will certainly stand in awe of him." 1 1 Yuan Hsieh, Chieh-chai chi, 3.33. For the passage from Mencius, see Lau, Mencius, p. 81.
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Punishments also had to be adjusted to the conditions of the times. In the Sung, many officials accepted the traditional wisdom, that heavy penalties had to be used in times of disorder and that lighter penalties were appropriate in times of peace. In times of good order, excessively harsh penalties brutalize the people; in times of disorder, the use of inappropriately light penalties would not suffice to suppress lawbreaking. The eleventh-century official Wen Yen-po expressed a widely shared view when he said that heavier punishments were fitting in times of troubles but in times of peace would actually promote disorder. 2 Adherents of this view argued for appropriate measures by pointing to historical examples of rulers who persisted in using heavy punishments without in fact reducing disorder. 3 Some of these men went further and attempted to analyze how this situation had come to pass. In the words of Wen Yen-po: The system of penalties has a history. Thus the systems transmitted by the successive dynasties have differed. Minor penalties are used to restrain depravity; serious penalties to suppress disorder. I have investigated the situation of long ago and found that it was not then as it is now. In high antiquity people were by nature simple and pure. When those above made manifest a desire for peaceful transformation, their inferiors were not contentious. . . . The government was extremely simple. The people were naturally orderly. The penalties were extremely light, yet men did not transgress. After this the Sages, basing themselves on Heaven's punishing of the guilty, established the Five Punishments. Above this reached to the use of military force. Below it reached to beatings and whippings. Thus the five degrees of severity were clarified. This is the origin of the penalties.4 Thus, to be appropriate, penalties had to fit with the nature of the people and their times. Simple people need simple laws. We should note, however, that there were a minority of officials who argued to the contrary. Whatever might have been the case among the ancients, in more recent times the people were anything but simple and pure. Good order, these critics maintained, existed when the penalties were severe and the laws detailed. Disorder marked eras in which the laws were too lenient and not sufficiently detailed to guide behavior. 5 Both the advocates and the critics of strict laws had a vision of how this early system had deteriorated in later times. Some discussed the causes for this deterioration. The eleventh-century official Liu Chih, in a memorial concerned with the recompilation of the laws, wrote: 2 3 4 5
WHTK 167.1449; HCP 2 i 7 . 9 a - b . Fan Tsu-yii, Fan t'ai shih chi, 22.11 a. Wen Yen-po, Lu-kung wen-chi, SKGSCP 1976, vol. 295, 9.8b. See, for example, the arguments of Tseng Pu. Also HCP 214.19b.
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The laws [fa] are the great Commandments [ming] of all under Heaven. When the [exemplary] Former Kings [of the early period] systematized the laws, their intention was to cause men to change themselves and avoid penalties and to make crime difficult. Therefore the laws were extremely simple and extremely correct, and yet they were adequate to fulfill the principles of Heaven and Earth. When later times systematized the laws, they were merely fearful that the guilty might sometimes escape. Therefore their laws were numerous, extensive, and closely meshed, so that the people did not know where they might put their hands and feet.6
The determination of the state authorities not to let anyone who was guilty escape the net of the law led paradoxically to a situation in which many ran afoul of it. The government itself contributed to the people's loss of a state of simple purity. By enacting a bewildering multitude of laws, it guaranteed a steady supply of lawbreakers. The presence of these lawbreakers then faced the authorities with the question of how they should be treated. What in fact were the basic goals of punishments? The system of penalties was a partial answer to the question, what are we to gain from inflicting punishments on wrongdoers? The articulate part of the population in traditional China responded with answers that are common elsewhere. Deterrence, retribution, social defense, and rehabilitation all were viewed in one way or another and to one degree or another as goals in the Chinese conception of punishment. Deterrence The criminologists Wilson and Herrnstein remark that "there is . . . good though not yet entirely conclusive evidence that the behavior of offenders can be altered by altering the consequences attached to their behavior." 7 One way to alter such consequences is to link the behavior with negative sanctions. Like most people, the Chinese believed in the deterrent function of punishment. If men cannot be socialized to be good, then we must make them fear to do evil. The idea that punishments deter is so widespread in China and so casually accepted that it is rarely discussed in any detail. The basic premise, however, is implied in literary sources that most traditional Chinese scholars assumed stemmed from the most ancient times. The section called the "Punishments of Lu" from the Book of Historical Documents opens by remarking that "when the king had enjoyed the throne till he was of the age of a hundred years, he gave great consideration to the appointment of punishments, in order to 6 Liu Chih, Chung-su chi, 6.81. See also HGP 373.2a. 7 Wilson and Herrnstein, Crime and Human Nature, p. 396.
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restrain the people of the four quarters." 8 This attitude is echoed later in various writings. The legalist text called The Book of Lord Shang simply states, in words echoed by the legalist Han Fei Tzu, that "the nature of men is to like titles and emoluments and to dislike punishments and penalties." 9 It is hardly surprising to find these sentiments occurring repeatedly in the writings of Sung authors. At its simplest, this conviction reflected the belief that "if the laws are severe, there will be few bandits; if the laws are lenient, there will be many bandits" 10 or that "punishments are used to end the use of punishments; the death penalty is used to frighten men." 11 This simple view was a minority view. Most Sung officials had a more sophisticated understanding of the relationship of the weight of penalties to the maintenance of good order, believing, again, that different sorts of eras required different levels of penalties. In either view, the emphasis was on deterrence and was coupled with an underlying assumption that the greatest effect would be achieved when the severity of the penalty corresponded as closely as possible to the seriousness of the crime. During the middle of the twelfth century Emperor Kao-tsung (r. 1127-62) spoke for deterrence and appropriateness when he debated the current pattern of reducing most death sentences to penal registration. He said that he desired that the penalties fit the crimes and that if "we act only in a lenient manner, ignoring the law and using precedents [to reduce the penalties], then men will not be fearful. This is no way to use penalties to restrain evildoers."12 Despite the emperor's arguments, however, the practice of commuting most death sentences continued, in part because the influential Sung officials felt that the empire, despite its external troubles, was internally relatively peaceful. The men who argued against the emperor were also committed to appropriate penalties and to deterrence. However, they differed in their understanding of what was appropriate. The official Hsueh Ghi-hsiian, after having commented on the rise of the punishments of penal servitude and exile (in place of death sentences), noted that these punishments "served as warnings to draw people to the good and get rid of 8 Legge, The Shoo King, p. 588. What is important here is that later Chinese believed that the "Punishments of Lu" was an early and authentic document. H. G. Creel argues that the document in fact was a late forgery, but Sung writers certainly did not think so. See H. G. Creel, The Origins of Statecraft in China (Chicago: University of Chicago Press, 1970), p. 161. 9 Duyvendak, The Book of Lord Shang, p. 241; Liao, Works of Han Fei Tzu, vol. 1, p. 47. 10 Fu Ch'a, Chung-su chi, 6.74-75; HCP 214.20a. 11 HCP 43.1 i a - b . 12 HNYL 2972; see also HNYL 2944.
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evil." Deterrence was of central importance, but to be effective the deterrent penalties had to fit the offense committed. Therefore, in peaceful times, sparing men execution and sentencing them to the lighter penalties was appropriate. Indeed, the key to the debate was the concept of appropriateness, not severity. Kao-tsung was in no sense advocating indiscriminately harsh penalties. He simply felt that death was a just penalty for those who had committed homicide, and anything less was not. He himself recognized that the problem was not one of simple severity. The emperor, like many astute observers on penal systems, recognized that penalties felt to be excessively harsh often would not be enforced.14 On the other hand, officials were mindful of the Chinese tradition of mercy in punishing. In the Northern Sung the official Fan Tsu-yii cited the examples of both Confucius and the paragon of emperors, T'ang T'ai-tsung (r. 627-50), in opposing harsh punishments. Fan noted that when the ruler Chi Kang asked Confucius about "killing the unprincipled for the sake of the principled," Confucius replied: Sire, in governing, why should you use killing at all? Let your evinced desires be for what is good, and the people will be good. The relations between superiors and inferiors is like that between the wind and the grass. The grass must bend when the wind blows across it. Fan went on to note that when T'ang T'ai-tsung had first ascended the throne, the officials who discussed suppressing banditry asked that harsh penalties be established. "T'ai-tsung sighed, saying, 'People become robbers because taxes are high and the demand to provide public services is onerous and because officials are corrupt. . . . If the people have sufficient food and clothing, they will not be robbers. Of what use are heavy penalties?" 15 Men who insisted on harsh penalties risked brutalizing the people to the point that they would no longer be awed by severity.16 Retribution, rehabilitation, and social defense Deterrence was the key; retribution, rehabilitation, and social defense were minor but often present themes. The men of Sung China believed in punishment as a form of retribution. Wronged men demanded vengeance. Arguing against the issuing of an amnesty and after listing a 13 14 15 16
Hsiieh Chi-hsiian, Lang-yu chi, 16.23a-24a. Liu Cheng, Huang Sung chung-hsing liang-ch'ao sheng-cheng, 22.20a. Fan Tsu-yii, Fan-t'ai shih chi, 22.11a. Wen Yen-po, Lu-kung wen-chi, 9.9a.
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variety of serious crimes, an official pointed out that if the state would "requite these crimes with the regular penalties, then the anger of the people would be appeased." 17 By punishing the guilty itself, the state lessened the temptation of victims to seek private vengeance. State punishment not only appeased the living, it also might appease the dead. This is most apparent in cases of homicide. The state had to try to placate the angry spirits of the dead so that they would not plague the innocent living. Emperor Chen-tsung (r. 997-1022) was very concerned about the numerous bodies found in the Pien Canal that flowed through the capital. Some, he was sure, were those of murder victims. To soothe their ghosts, he ordered the Buddhist and Taoist temples in Ssu Prefecture, where the canal entered the Yangtze River and where many of the bodies first came to notice, to pray for the dead. 18 This idea of averting the anger of the spirits, as well as the belief that good order needed to be reestablished by a reversal of fortunes, seems to have been connected with the retributive use of the lex talionis. In arguing against lenient treatment of criminals, writers repeatedly said that "those who kill men should die; those who injure men should themselves be injured," 19 and again in the early Southern Sung Emperor Kao-tsung wondered, "How can it be the intent of the law that a killer not suffer death?" 20 The rehabilitation of wrongdoers was also a goal of punishment. Like most members of the articulate part of the Chinese elite, Sung writers were deeply committed to a voluntarist view of individual psychology. This attitude is implicit in the position of Ch'en Liang, that Sung penalties were "designed to instruct and based on benevolence." 21 Penalties were lessons designed to instruct and inform. Such a view necessarily implies that those so informed are educable, that they can learn and be transformed as a result. Wrongdoing was voluntary behavior under the control of the culprit. One implication of this was optimistic. Wrongdoers had the capacity to reform themselves - in the Chinese phrase that appears over and over in Chinese amnesty documents - they could "renew themselves" (tzu-hsin). Some Sung officials saw no conflicts or even tensions among these various functions of punishments. Su Sung (1020-1101), after advocating the revival of the T'ang penalty of exile with added labor, remarked that his system would not only punish the offender but would also "be a sufficient warning" to others. He went on to say that his reforms "would 17 18 19 20 21
Huang Huai, Li-tai ming-ch'en tsou-i, n 8 . n b - i 2 b . HGP 79.12a. Compare HCP i24-3b-4a. HNYL 1637. Ch'en Liang, Lung-ch'uan wen-chi, TSCC ed., 27.327.
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suffice to open up the road to self-renewal, to transform the evil into good people, and to change the stupid and vulgar through education." 22 Individuals were in control of their own behavior, but to the traditional Chinese, individuals were inextricably interwoven with and indeed defined by their relationships with others. That being so, individuals necessarily were sensitive to the reactions and attitudes of others. A modern sociologist concluded that among the population at large, the fear of informal sanctions, specifically the loss of reputation, is a more powerful deterrent than is the fear of formal sanctions.23 In traditional China, as in all traditional peasant societies with low horizonal mobility and great social and economic interdependence, the social group on which the individual depended for livelihood and emotional support could exercise enormous pressure for conformity. Such pressure was especially great in the family. This was true of all premodern peasant societies, but perhaps nowhere more true than in traditional China. Therefore, even when the individual himself was not overly concerned about his reputation, he could be pressured indirectly by actions against the family. The idea that men were subject to change through social pressure was also embodied in practices that shamed their families. During the late eleventh century the Sung authorities used a system under which after a criminal has been judged, a sign is to be nailed on the gate of his family, describing the crime and the punishment. If such a criminal, liable for penal servitude or worse, gives information that leads to the capture of two thieves liable for penal servitude or exile, or of one robber who has used force, or, if a criminal liable for a beating with the heavy rod gives information that leads to the capture of one thief liable for penal servitude or exile, his family may be spared the posting of the notice.24 Like the scarlet letter in Puritan New England, such a sign was both a part of the punishment and a reminder to others of the cost of wrongdoing. Social defense - the use of penalties not to deter or to reform the criminal or to avenge the injured, but simply to protect society against further abuses - was also part of Sung penalties, but its presence is shown in Sung practice rather than in theory. Like other Chinese dynasties, the Sung regularly used a system of fettering dangerous criminals, which was both a punishment in itself and a device to prevent them from committing more criminal acts. In addition, criminals in the Sung were 22 Su Sung, Su-wei wen-hung chi, 18.1 i b . 23 C. R. Tittle, Sanctions and Social Deviance: The Question of Deterrence (New York: Praeger, 1980). 24 HCP 398.12a-13b.
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often tattooed, again as both a measure for immediate security and a warning to those with whom they came into contact about their character. Social defense is also explicit in the suggestions of some Sung officials that hardened criminals not benefit from the liberal amnesty practices of the Sung, so that "evil people would remain government prisoners for years and could not harm the good people." 25 Wilson and Herrnstein call such measures "incapacitation." They note that "as long as legal punishment physically separates the convicted offender from the public, it may protect the public, though perhaps not fellow offenders. . . . In its pure form, incapacitation works, if it works at all, simply by removing opportunities for crime." 26 Penalties in early China A similar mixture of goals is present in the penalty systems of many times and places. The specific institutional form of the punishments designed to reach these goals is determined by different emphases on the different goals and by ideas, ideals, and technology. In early China the authorities speak about the desirability of reforming wrongdoers, but in practice they aimed at deterring crime by making examples of criminals so that their suffering could serve as a message to others and prevent further abuse by the criminals themselves. "Legal punishment as public spectacle strengthens noncrime by publicizing the risks of apprehension and convictions, and it weakens crime by inculcating disapproval." 27 To be effective as warnings, punishments had to be obvious, public, and of appropriate severity. Mutilating penalties provided vivid reminders of the costs of wrongdoing. The earliest sources describe somewhat different forms of corporal punishment. In the first Chinese records, the oracle bones of the Shang dynasty (traditional dates 1750-1122), the eminent historian Hu Houhsiian found evidence that the authorities often punished by cutting off limbs. One graph appearing in several forms shows a man with one leg shorter than the other, with the element meaning "saw" next to the shorter leg. The written evidence is supported by archeological evidence, the bones of a man whose leg had been amputated, a servant or slave perhaps, buried with his master. 28 In slightly later times, ancient Chinese states employed a variety of 25 26 27 28
HCP 214.17b-18a. Wilson and Herrnstein, Crime and Human Nature, p. 493. Ibid., p. 495. Hu Hou-hsuan, "Yin-tai te yiieh-hsing" (The penalty of amputation in the Yin dynasty), K'ao-ku, no. 2 (1973): 103.
328
The Sung penal system gruesome penalties. Many sorts seem to have executed the victims by slicing off their limbs. At the most extreme were penalties that seem to call for first subjecting the victim to a variety of mutilations, including tattooing, slicing off the nose, cutting off the limbs, and ending with the exposure of the head, and making the flesh and bones into a kind of meat preserve. This penalty was used against the highest ranks of society. 29 This belief in using mutilating penalties, implicit in much of the early Chou Book of Historical Documents, is stated most clearly in the Discourses of the States, written many centuries later: "The great punishments use armor and soldiers; the next lower level uses the ax (for executions). The medium punishments use knives and saws (for amputation); their next lower level uses awls and presses. The minor punishments use whips and rods, so as to warn the people." 30 This passage from the Discourses reveals the corporal nature of much early punishment. From war to death to amputation to various tortures to beatings, there are degrees of violence, but all aim at humiliating the body. Having failed to dissuade men from committing crimes, we must now make it more difficult for the culprit to commit more violations in the future and hope that the punishment may also deter others. This was surely part of the rationale for the mutilating punishments inflicted in ancient China. These penalties are intense, irreversible, and brief: When the head falls in the basket, the execution is over. The man whose feet are amputated is footless as soon as the saw has done its work, the noseless man when the knife has finished. Only beatings occupy an intermediate position, of the body, intense in their violence, but not necessarily obviously and permanently disfiguring. All these penalties share a common trait. They do not involve the political powers in maintaining physical control over their victims for any extended periods of time. In the section of the Book of Historical Documents called the "Punishments of Lu," the Five Punishments supposedly overused by the nonChinese Miao people are listed as death, cutting off the nose, cutting off the ears, castration, and tattooing. The Five Punishments used in the Chou period were death, castration, cutting off the feet, cutting off the nose, and tattooing. 31 In all cases the results were irremediable. The 29 Tu Cheng-sheng, "Ku-tai hsing-yu tsa-k'ao" (Studies on the punishments of antiquity), Chung-kuo shih hsin-lun, August 15, 1985, pp. 21-46. 30 Wei Chao, Kuoyii, SPTK ed., Lu Yu-shang. 31 For a description and comparison of the Five Penalties, with an analysis, see Uchida Tomoo, "Sho-sho Ryo-kei no go-kei ni tsuite" (On the Five Penalties in the "Punishments of Lu" of the Book of Historical Documents), Tohogakkai soritsu nijugo shunan kinen tohogaku ronshu (1972), pp. 1 1 1 - 3 0 .
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body was central. Reverence for the spirits of the ancestors reinforced the conviction that the body should not be mutilated. These punishments therefore form the most striking demonstrations of the power of the ruler, sending the loudest and clearest message to both men and spirits. They were of special force in a society that believed in the continued life of the spirit after death but that also believed that a mutilated body meant a mutilated spirit. Chinese practice seems to have been much more brutal than Chinese theory. In the most important Chinese myth about the history of penalties, the five classical mutilating punishments are said (in the Book of Historical Documents) to have been used by the Sage Emperors 32 but were supposedly applied only with great caution. The excessive and exclusive use of such cruel punishments is blamed on the non-Chinese Miao people, who in the end were destroyed because of their injustice.33 Thus the Sages were always chary of mutilations. Although the penalties they did inflict were often mutilations, the Sages are reputed to have always sought circumstances that would justify the substitution of less brutal punishments. They had a system of redemptions for cases with mitigating or doubtful circumstances and are also said to have used punishments based on restricting liberty, the so-called Five Exiles.34
Rise of labor penalties The Book of Historical Documents stresses the Sages' reluctance to apply corporal punishments: such punishments were in fact common during the Chou period (1027-256). Punishments calling for loss of liberty combined with labor became common only late in the dynasty. Although slave labor seems to have been used from very early on, few criminals seem to have been punished by being confined and used as laborers during the Western Chou and the early part of the Eastern Chou. But by the late Eastern Chou (771—256), rulers were exploiting the labor power of convicts.35 This momentous transformation is described in more detail in Chapter 12. In brief, during the late Chou the rulers of the modernizing states found it technically possible and economically attractive to use convict 32 33 34 35
Legge, The Shoo King, p. 38. Ibid., p. 591. Uchida, "Sho-sho," pp. 111-30. Li Li argues that penal labor was used in the early Spring and Autumn. The evidence seems ambiguous, but the author does bring forward considerable evidence that labor penalties were being used to some extent late in the Chou dynasty. See Li Li, "Chung-kuo ku-tai t'u-hsing" (The penalty of penal servitude in ancient China) in Chung-kuo hsiieh-tao pao 1 (1987): 3 7 - 3 8 .
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The Sung penal system
labor for certain tasks. The origins of this transformation thus predate the unification of the empire by the state of Ch'in in 221 B.C. The postunification Gh'in seems to have been a transitional period between a greater dependence on mutilations as penalties and a system in which the labor value of convicts dictated the wisdom of keeping them whole. In addition to their distinctive clothing and shaved heads (shaving the head being itself a mutilation), Ch'in convicts might be tattooed, have their noses cut off, or have one or both feet amputated. 36 Although mutilations continued to be practiced under the early Han, Emperor Wen-ti (r. 179-157) replaced the cutting off of the nose and feet with beatings and the wearing of foot irons. Convict labor was useful, and the authorities sought to avoid punishments that might lessen its value. Tattooing, a mutilation but not one that diminished a convict's labor value, was used during some of the dynasties that followed the Han, but mutilating penalties as a whole were less in evidence. Mutilating punishments during the Sung From the Han onward, mutilating punishments were used rather sparingly, though officials, including Sung officials, occasionally suggested reviving them as a way of cutting down the incidence of crime. They appealed to some as a solution to the law-and-order problem, whereas others saw them as a workable and merciful alternative to current practices. In recommending the revival of mutilating punishments in 1070, the Sung official Tseng Pu placed them in the context of the general utility of penalties: Yang-tzu said, "Mutilating penalties are penalties indeed." But in accord with the situation of the times, penalties need to be heavier or lighter. Thus lenience and severity will have principles, and we will not lose the intention according to which in antiquity the penalties were regulated. Generally, in a well-ordered world, penalties are severe, and in a disordered world they are lenient. Therefore, there were three thousand crimes under the Five Punishments and five hundred crimes calling for the death penalty under the Institutes of Chou. During the [disordered] era of King Mu, there were only two hundred capital crimes. Today the class of capital crimes is large. If among the crimes with this death penalty you seek those about which the facts are deserving of pity, and punish the guilty using castration [one of the classic Five Punishments], many people will be spared death. For military deserters who are due to be beheaded and for bandits for whom the amount of the booty is sufficiently large that they are due to be strangled, cutting off one foot would be a sufficient penalty.37 36 Hulsewe, Remnants of Ch'in Law, p. 15.
37 HCP 214.19b.
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Law and order in Sung China
Thus Tseng advocated mutilating penalties as a way of returning to the mercy of the ancients, arguing that mutilations were merciful because the alternative was execution. I have heard that the Former Kings — who in their system of penalties did not try things not rooted in humanity - practiced the cutting off of limbs and the carving of flesh, reaching to exterminating punishments, which were not abolished. . . . From [the Sage Rulers] T'ang and Yii and the Three Dynasties [of Hsia, Shang, and Chou], for many centuries, in times of order and of disorder, of flourishing and decline, of long reigns and short, still they had [the mutilating punishments]. . . . I say that it would be appropriate, below the death penalty, to add castration and the cutting off of the feet as substitutes for death when the circumstances [of the crime] are not serious and that we should inflict the law of tattooed exile in imitation of the ancient penalty of nose cutting and tattooing. For the next level, men should be sent into exile according to appropriate principles.38 In the debate occasioned by Tseng's proposal, the chief minister, Wang An-shih, temporized. He agreed that the mutilating penalties could be used under certain limited conditions, but even this less radical position did not go unchallenged. Some officials argued that although the mutilating penalties were ancient, they were hardly verities, since they had arisen in times of disorder and were associated with ineffective rulers. 39 In a debate of 1070 another official, Feng Ching, was an outright, outspoken opponent of mutilations. These opponents of reintroducing mutilating punishments continued to hold the rhetorical high ground in the controversy. In the following century Ch'en Liang commented: Those who discuss the flourishing of the mutilating punishments believe that they arose among the Miao people but that [the Sage King] Yao thought on them and made use of them, requiting thefierceso as to deter people. They were used to warn petty men but did not originate from the fundamental character of the Sages. Therefore [the Sage King] Shun often did not carry them out, so as to spare the people the penalties, and employed them only against those who persisted in wrongful ways. . . . How could such punishments coexist with a system designed to instruct and based on benevolence? Yet the Confucians of today who speak of antiquity always say that "the well-field system, feudalism, and the mutilating punishments all are the great principles and great laws of the Sages and cannot be abolished." . . . In antiquity the Sages distinguished the nature of men from the nature of beasts. . . . The mutilating punishments certainly existed in rough form, but as yet there was no system. The Miao people 38 HCP 2i4.i8b-2oa. 39 Wang Ling, Kuang ling chi, SKCSCP 1971, 3o.2b~3a. See also HCP 214.17b ff., 4.20a (1069), 5.24b (1070), 292.5a, 328.1b.
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The Sung penal system
began to make instruments for killing people and used them without restraint. Yao feared this might be taken as an example by the world. Therefore he ordered and regulated them. . . . [The founding Chou] Kings Wen and Wu were extremely cautious in the criminal trials of the people, and [their successors] Kings Ch'eng and K'ang renounced and did not use [mutilating penalties]. . .. When the Han commenced, it inherited the excesses of the Ch'in. The laws and measures of the Former Kings had been completely abandoned, yet the mutilating punishments alone were preserved. [The Han] Emperor Wen (r. 179-157), being moved by a woman's appeal, abolished them. Thereupon we can speak of a Way of complete transformation. . . . Now, because [these punishments] have been completely done away with, they cannot be revived. They were used only with great care and occasionally by the Sages. If we tolerate their use, will this not be reversing [the Sages'] system of order? If the people have a sense of shame, then the current laws will suffice. If the people no longer care for their lives, then even if the mutilating punishments are applied daily, they will still be no law.40 In the end these opponents of mutilating punishments carried the day. Mutilating penalties were not to be used. Convict laborers were a key element in the state's labor economy. To have reduced their numbers or usefulness through mutilation would have caused enormous inconvenience. Convict laborers were also men and so could be much more easily controlled if they were left in a condition that would encourage them to renew themselves and become useful citizens. The Sung debate over the mutilating penalties reflected a more general debate over the appropriateness of Sung penalties. Did they fit the circumstances of the Sung? Sung officials had a vision of the past history of punishments and saw their own practice against this understood background. In a long discussion of the evolution of the Chinese penal system from classical times down to his own era, the late Southern Sung official Lou Yuen (d. 1244) repeatedly stressed the importance of the fit between the conditions of the times and the penalties applied. Having brought his discussion from the Ch'in-Han through the T'ang and the Five Dynasties, he continued: As for the system used in our dynasty, it has become, day by day, more generous. Thus, looking at the situation from today's point of view, men comment on the severity of the laws of the Sung founder, T'ai-tsu. They fail to understand that in his own time, he was seeking to transform the corrupted laws of the Five Dynasties by making the penalties lighter. In his own day, he thought, men had become too concerned about the penalty's being overly severe, and the result was a tendency to memorialize 40 Ch'en Liang, Lung ch'uan wen chi, TSCC ed., 4.42-43. 333
Law and order in Sung China far too many cases, seeking from the central authorities a reduction in the penalty. 41
Sung penalties: law and practice For those who did commit crimes, the Sung state inflicted an elaborate variety of punishments. These reflect a mixture of goals. Initially the Sung used punishments inherited from the T'ang by way of the Five Dynasties. The basic penal laws enacted at the beginning of the Sung were contained in a code compiled two years after the founding of the dynasty. This code, the Sung hsing t'ung, was largely a reedited edition of a code from the Later Chou dynasty (951-60), which in turn reproduced the T'ang Code of 737. The Later Chou Code and its Sung successor simply added to the T'ang Code a variety of laws that had been enacted after 737. This Sung Code of 962 remained in use for various legal purposes under the dynasty. It was used in training legal officials, and when the officials concerned with legal education objected to the presence of passages that differed from the T'ang original, a new edition especially for students was issued in 1029, purged of materials added after 737. 42 The first code of 962 also continued to serve other purposes in the legal system and continued to be of concern to statesmen. During the reign of Shen-tsung (r. 1068-85), a period noteworthy for the large number of legal compilations issued, the powerful statesman Tseng Pu oversaw a revision of the text, supposedly eliminating items not currently being enforced by the Sung and clarifying the commentaries. 43 The Sung had inherited and enshrined in the code of 962 the traditional Five Punishments: death (ssu) (by beheading and strangulation), exile (liu) (in three degrees of three thousand, two thousand, and one thousand lid), penal servitude (t'u) (in five degrees of three, two and a half, two, one and a half, and one year), beating with the heavy rod (chang*) (from one hundred blows to sixty blows by groups often), and beating with the light rod (ta) (from fifty blows to ten blows by groups of ten). 44 The code also contained a set of equivalent fines, under which people convicted of crimes could in certain circumstances convert the ordinary penalties to payments to the government. There does not seem to have been any large-scale use of fines per se by the Sung state. Such 41 42 43 44
Lou Yiieh, Kung-k'uei chi, 22.333. Wang Ying-lin, Yu-hai, 66.28a-b. SHYhsing-fa 1.8b. SHT 1.1-5. For the T'ang system, see Wallace Johnson, The T'ang Code: Vol. 1, General Principles (Princeton, NJ: Princeton University Press, 1979), pp. 55 ff.
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The Sung penal system
collections always took the form of conversions from the regular penalties permitted by the authorities. Although in 962 the Sung government adopted this code based almost entirely on the T'ang Code, at almost the same time it altered the functioning of the penalty system by introducing a system of conversion. Early in 963 all penalties below death were ordered converted to beatings with the ordinary penal heavy rod, sometimes followed by penal labor. The following chart shows this early Sung conversion scheme: 45 Converted penalty
Code penalty
Exile with added labor Exile to 3000 lid Exile to 2500 lid Exile to 2000 lid Penal servitude 3 years 2.5 years 2 years 1.5 years 1 year Heavy rod 100 blows 90 blows 80 blows 70 blows 60 blows Light rod 50 blows 40 blows 30 blows 20 blows 10 blows
20 blows 20 blows 18 blows 17 blows
on on on on
the the the the
back back back back
plus plus plus plus
20 blows 18 blows 17 blows 15 blows 13 blows
on on on on on
the the the the the
back back back back back
20 blows 18 blows 17 blows 15 blows 13 blows
on on on on on
the the the the the
buttocks buttocks buttocks buttocks buttocks
three years of labor one year of labor one year of labor one year of labor
10 blows on the buttocks 8 blows on the buttocks 8 blows on the buttocks 7 blows on the buttocks 7 blows on the buttocks
This policy seems to have remained in effect until the closing years of the Northern Sung; in 1118 the schema was revised somewhat, to lighten some of the penalties. Under this policy the revised penalties were 46 Penal servitude 2.5 years 2 years 1.5 years 1 year
17 15 13 12
blows blows blows blows
45 HCP 4.6a-7a. 46 WHTK 167.1452.
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Law and order in Sung China
Light rod 50 blows 40 blows 30 blows 20 blows 10 blows
10 blows 8 blows 7 blows 6 blows 5 blows
This system of equivalencies continued to be used during the Southern Sung. Material in the early thirteenth-century code Ch'ing-yiian t'iao-fa shih-lei suggests some of its uses. Those who were eligible to commute penalties could use the system in calculating payments. The conversion policies were also useful in cases in which the person convicted had already suffered some sort of penalty. Conversion allowed the officials to assess how the penalty already suffered should be measured when deducting it from the amount of punishment still due. 47 The system of conversion put into place in the 960s was modified and refined, so that during the latter part of the dynasty Sung authorities could assess penalties according to the traditional categories of the Five Punishments and then mete them out in terms of penal registration, with each degree of a traditional penalty being comparable to a level of penal registration. They could also substitute some penalties for others. For example, men who had labored could use a certain number of days of work to lower the number of blows that they were to receive as a part of their sentence. Although the system was very useful for conversions, it seems that some of its provisions were not always used. Under its terms, the light rod should have disappeared entirely as an actual tool for punishment, yet it continued to be used regularly for punishments in the military. Furthermore, in 1108 the authorities again passed a law on beating with the light rod, under which the smaller rod was to be used in carrying out punishments, with a nominal ten blows actually being five, twenty nominal blows being seven, thirty being eight, forty being fifteen, and fifty being twenty. The heavy rod was not to be used for analogical conversion.48 The mid-thirteenth-century text of forensic examinations, the Washing Away of Wrongs (Hsi-yiian lu), also indicates the continued use of the light rod, saying with regard to deaths resulting from corporal punishment that "the marks from beating with light rod on the left side [of the buttocks] should have a crosswise length of three and a half inches and a breadth of three inches." 49 47 See, for example, TFSL 515. 48 WHTK 167.1452. 49 McKnight, The Washing Away of Wrongs. Because the military was deeply involved in the Sung penal system, it is certainly possible that such scars might have resulted from discipline inflicted on men while they were serving in military units.
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The Sung penal system
Names and realities in Sung punishments Actual penal practices often ignored both the code and the changes brought about by the conversion policy. The Sung took over the edicts and rules from the Five Dynasties, under which the penalties for many crimes were heavier than those found in the current code. For example, the code's punishment for falsifying official papers was exile to two thousand lid but under current laws outside the code the penalty was strangulation. 50 More generally, for many of those who under the code would have been liable for penal servitude or exile, the actual penalty inflicted was penal registration with added labor, a punishment that combined some of the characteristics of both of the earlier penalties. Despite the existence of these complicating factors, Sung officials continued to use the terms exile and penal servitude in their discussions, because these terms served as measures of the seriousness of crimes, and as noted, these traditional categories also provided the standards for converting penalties through commutation or privilege. 51 Thus, a report on the newly compiled Collected Decrees of the Ch'ing-li Era, indicating which categories of penalties were larger and which were smaller than those in the previously collected edicts of the T'ien-sheng era (1023-32), notes an increase of eight edicts calling for capital punishment, an increase of fifty-six calling for exile (liu), a decrease of sixteen calling for penal servitude (t'u), and increases of thirty-eight, eleven, and three, respectively, for the heavy rod, the light rod, and penal registration. Edicts in the category "death sentences or less that call for the submission of a memorial with an ensuing imperial order" were reduced by twenty-one.52 As this report makes clear, the Sung edicts might specify exile and penal servitude when in practice these would be converted to beatings or penal registration. Under Sung law, penal servitude was considered to be equivalent and was converted to penal registration in one of the prison citadel commands of the provincial armies at five hundred lid or more. Exile was equivalent to penal registration in one of the prison citadel commands located at one thousand or more lid from the place of jurisdiction. 53 Penal registration thus in practice took the place of these earlier penalties (see Chapter 12).
50 SS 201.5009. 51 On privileges, see Brian E. McKnight, "Song Legal Privileges," Journal of the American Oriental Society 105 (1985): 95-106. 52 HCP 160.2b. See also Wang Ying-lin, Yu-hai, 66.29b; SS 204.6a. 53 HCP 214.27a; see also HCP 322.3b.
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Law and order in Sung China
Figure IO.I. Judicial torture. From Lo Kuan-chung, Ch'uan-hsiang San-kuoyen-i.
Beatings as penalties As a form of punishment, beatings have several advantages from the state's point of view. If sufficiently public, they not only punish the offender but also serve as a deterrent. Moreover, they avoid the expense and difficulty of controlling wrongdoers for an extended period of time. Beating may leave scars, but they are not so disfiguring as the mutilating penalties are, which makes it easier to reintegrate the victim into regular society. Being beaten might be thought of as shameful, but its effects were supposed to be temporary, and the degree of shame attached was diminished by the common use of beatings during interrogation. Accord338
The Sung penal system
Figure 10.2. Judicial torture. From Li Pao-chia, Kuan-ch'ang hsien-hsing chi.
ing to a Later Chou decree reproduced in the early Sung Code, it was legal to beat someone up to fifteen blows on the back with the heavy rod, "in the course of public business." 54 Such beatings during judicial torture were to be administered by dividing the blows among the buttocks, thighs, and bottoms of the feet55 (see Figures 10.1 and 10.2). Under Sung law all sentences more serious than beating with the heavy rod had to be reviewed at judicial levels above the district. Beatings, however, could be mandated and carried out at the district level, the higher authorities requiring only that periodic reports be submitted regarding such punishments. The severity of beatings could also be adjusted to the severity of the crime. For these reasons, beatings were widely used in traditional China to punish relatively minor crimes. In Sung China, it was the sole penalty for many less serious crimes, including such misdemeanors as the illegal taking of religious orders or the taking of family goods by coresident juniors, most assaults, driving carriages or riding horses recklessly in crowded areas, and being drunk 54 SHT 1.21.
55 TFSL500.
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Law and order in Sung China 56
and disorderly. They might also serve as supplementary penalties. Convicts were often beaten before being sent off to do penal labor, and for some crimes, like thievery, the criminals were also tattooed before being released. 57 Numerous regulations governed these beatings, including their timing, who was to administer them, and the dimensions of the rods used. For example, beatings were not supposed to be inflicted while prisoners were ill or when they were still bearing wounds from previous beatings. 5 8 Such beatings were generally inflicted during the daytime, perhaps because when officials did carry them out at night, those sentenced to the punishment often hired substitutes. 5 9 When this happened, according to the rules found in the early thirteenth-century code Ch'ing-yiian t'iao-fa shih-lei, both the person for whom a substitute suffered the penalty and anyone who enabled the substitution were liable for one hundred blows of the heavy rod. 6 0 Local officials were also said to have sometimes illegally increased the number of blows in carrying out sentences. 61 Because they were concerned about the victims' suffering from the heat, the authorities specified that the beatings were to be carried out before seven in the morning or after seven in the evening (though if there were a great many cases, they might be carried out until nine in the morning and after five in the afternoon). If the beatings continued into the night, those functionaries responsible were liable for a penalty of one hundred blows of the heavy rod. 6 2 O n e document suggests that the beatings were carried out in groups - originally every ten days, but after a ruling in 1011, every three to five days. 6 3 Rules also specified the days when penalties could be inflicted. Apparently they were not supposed to be carried out on certain holidays, though after 1022, as a result of an official's request, beatings with the heavy rod could be inflicted on imperial birthdays. 6 4 During the Sung, as under the T'ang, the regular senior officials were supposed to attend interrogations at which judicial torture (in the Sung, legally restricted to beating with the heavy rod) was used. This rule was 56 SHT, passim.
57 58 59 60 61 62 63 64
Wang Yen, Shuang-ch'i lei-kao, SKCSCP 1972, 23-5b-8b. TFSL 499, 500. HCP 76.10a. TFSL 507. HCP 82.16a (1014). TFSL 499, 500. HGP 7 6 . i o b - n a ; WHTK 166.1446 ( i o n ) . HCP 99.4a. Note that Li Tao quotes a now-lost source as saying that "under the old system it was forbidden to carry out penalties on imperial birthdays. From the beginning of the T'ien-sheng period [1023] it was allowed to inflict the heavy rod" (HCP 99.14b). The fang in this passage should be read as chang.
340
The Sung penal system
presumably intended to prevent the abuse of prisoners by lower functionaries, though in practice the higher officials often left this duty to the clerks.65 Clerks, on the other hand, except for those actively serving as judicial clerks, were not allowed to go to the place of torture. These beatings were inflicted by special functionaries called heavy-rod wielders (chang-chih) (supposedly while being observed by the unit's chief officials). These functionaries were stationed at the prefectural and district seats. When needed by officials on tour or in offices without such people on their staffs, they were called up for temporary service, after which they were to return to their posts. 66 If such men increased the number of blows beyond what was called for, or added materials to the surfaces of their rods to make them more damaging, they could be punished with two years of penal servitude. When administering the beatings that preceded a sentence of penal servitude, exile, or registration, if they deliberately beat the convicts in such a way as to kill them, the heavyrod wielders were to be tried for deliberate homicide.67 The Sung retained from earlier dynasties the rule that the men administering the beatings could not be changed during the beating. 68 From the beginning of the dynasty, regulations specified the length and width of the several sorts of rods used for various penal and judicial purposes. An edict of 963 states that in the past these devices had been governed by the penal officers' ordinances {yii-kuan ling). When the law of rates of converting penalties was passed, the regular official heavy rod was ordered to follow the specifications of the Later Chou rules of 958, being three feet five inches long, with a thickness at the large end of two inches and, at the small end, a diameter of not more than nine-tenths of an inch. The light rod was not to exceed four feet five inches in length and to have a large-end diameter of not more than six-tenths of an inch and a small-end diameter of not more than five-tenths of an inch. The dimensions of the heavy rod remained unchanged during the dynasty, at least until the early thirteenth century. Those of the light rod remained almost unchanged, though in the code of 1202 this rod was ordered to be four feet five inches long, with a lower-end thickness of four-tenths of an inch. 69 There also were separate rules for the rod to be used in interrogation.70 Although these early rules set the other dimensions, not until 1029 w a s ^ decreed that the weight also be regulated. The standards 65 66 67 68 69 70
Chang Nieh, Tzu-wei chi, 25.15a. TFSL 500. TFSL 499. TFSL 500. TFSL 504; see also WHTK 166.1444. HCP4.6a-7a.
341
Law and order in Sung China
LONG FETTER
Figure 10.3. Prison instruments. Redrawn from Wang Ch'i, San-ts'ai t'u-hui.
were to be stamped on the face of the instruments, to show that they were regularly inspected by the responsible officials.71 (The rules found in the Ch'ing-yiian t'iao-fa shih-lei called for the incumbent officials to inspect them once a month and to certify their correctness by having them branded.) Moreover, in his early twelfth-century book of advice for district magistrates, Li Yiian-pi advises those newly arrived at a post to have someone weigh the judicial instruments to make sure that they conformed to the regulations. The weigher should be made to sign 71 HCP io8.8b-ga.
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his name or make his mark on them. The instruments would also be branded at this time to certify their correctness.72 The penalty for possessing illegal instruments was sixty blows of the heavy rod 73 (see Figure 10.3). Nonetheless, abuses were a perennial problem. A regulation found in the Ch'ing-yuan t'iao-fa shih-lei shows that the authorities continued to try to suppress such violations. As noted, those guilty of actually killing their victims could be tried for homicide: If those who administer beatings clandestinely increase the number of blows or on the surface of the heavy rod they add other materials, deliberately acting in a cruel manner, then they will be liable for two years of penal servitude. If motivated by rapacity or personal hatred, they beat men liable for penal servitude or exile, sentence [the functionaries responsible] to penal registration in their own prefecture. If they deliberately beat people to death, the guilty functionaries are to be tried for deliberate homicide.74 A twelfth-century official commented: Written rules governing the system of heavy and light rods exist. Their weight and size are not to be privately altered. However, in recent years, functionaries cruelly destroy the humane intent. In cases of putting prisoners to the question using the penalty rod, each application is not to exceed thirty blows, and the total is not to exceed two hundred blows. This is the intent of the law. But nowadays the prefectures and districts do not use the penalty rod but, rather, use the split rattan or double the penalty rod, binding two together as one, or they whip the haunches and feet. They sometimes apply as many as three hundred or five hundred blows. No punishment is more cruel than this.75 Fetters Social defense was not the main focus of premodern Chinese penalties, but fetters should be considered in this light, as devices that not only constituted punishments in themselves but also hindered known malefactors from committing new outrages. Those held for crimes with penalties greater than beating were often confined in various sorts of fetters, a common practice in premodern China. The basic rules for their use in the Sung, cited in the Sung Code of 962 from the penal officers' ordinances (yu-kuan ling), are repeated with minor modifications in the collection of approved memorials and edicts called the Collected Sung 72 73 74 75
TITC 1.4b. TFSL 499, 503. TFSL 499. WHTK 167.1454-55; see also TFSL 499.
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MMMSM Figure 10.4. Wearing the cangue. From Feng Meng-lung, Ku-chin hsiao-shuo.
Documents and were reaffirmed in the early Southern Sung under Kaotsung (r. 1126-62). 76 According to the rules in the Collected Sung Documents, men guilty of capital crimes were to be kept in fetters and manacles. Even men liable only for a beating with the heavy rod were sometimes required to wear fetters. Fetters, including both a special cangue and chains, were also used on prisoners during transport. 77 Fetters might in themselves be 76 On Southern Sung, see HNYL 2730. 77 See, for example, SHY, hsing-fa 4.6b~7a, 6.17D-18D, 6.78b.
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The Sung penal system
used as a minor punishment. In 1005 it was ordered that men who entered lawsuits that were none of their business might be beaten and put into a cangue for ten days (see Figures 10.3 and 10.4). 78 Some categories of lesser criminals or disadvantaged persons were to be exempted from wearing fetters. Those eighty or older or ten or younger, the disabled, the pregnant, or dwarves did not have to wear fetters even if guilty of capital crimes. 79 There were also circumstances under which prisoners in general were spared the fetters. Before being shackled, prisoners were supposed to be examined by a medical practitioner to see whether they were ill, disabled, or otherwise not able to wear the bonds. From the beginning of the dynasty, prisoners who were seriously ill were supposed to be freed from their fetters. 80 Such rules existed throughout the dynasty. The code of 1202 further indicates that prisoners in transport who were under the care of a doctor did not have to wear restraints. 81 If the prisoners were women, it was necessary to determine whether they were pregnant. Pregnant women, like the aged, ill, and disabled, did not have to wear fetters even if guilty of capital crimes. The dimensions of these fetters, which were to be inscribed on their surfaces, were governed by the category of laws called specifications (shih); the general rules for their construction, laid down as ordinances (ling), were occasionally reconfirmed. From the beginning of the dynasty the specifications of most sorts of shackles were fixed by law. However, until 1045 t n e interrogation cangue (p'an-chia) worn by prisoners in transit was not regulated, even though it was in regular use. A memorial in that year asking that rules be established was approved. Judging from an edict dated 1119, the weight of the instrument was not to exceed ten pounds. 82 The fetters were supposed to be made of dry wood; the joints were to be shaved off; and no nails or other protuberances were to be added. The most complete description of such fetters comes from the late Northern Sung official Li Yuan-pi. He advised Northern Sung magistrates that for serious offenders they should have artisans build "fourlayer cangues," with two layers of wrought iron and two layers of uncured thick cowhide attached while wet, each layer to be three fingers wide and thick. For lesser prisoners the cangue could be made simply of two layers of wrought iron. On both types, soft hemp ropes were to be 78 79 80 81 82
SHY, hsing-fa 3.12b-13a. SHT 2g.2b-3a; SHY, hsing-fa 6.51a; TITC 5.25b. SHT 29.471. TFSL 530, citing the tuan-yii ling. SHY, hsing-fa 6.77a~78a, 78b.
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fastened tightly through the front and back clasps. In the left, extended end of the cangue a hole three ringers large was to be drilled, so that at night when the prisoners had returned to their cells, a long iron chain with bells on it could be run through the hole and attached. Serious offenders were to be fettered with this iron chain, which was to be eight Chinese feet long, with a foot shackle at one end, made of good-quality wrought iron and as thick as the t h u m b . T h e shackle was to be pounded shut around the prisoner's foot but was to be wrapped in soft cloth so that it would not chafe. When the prisoner was released, a special tool could be used to open it. 8 3 T h e Sung also kept in force an earlier regulation that during the summer the fetters were to be washed every five days. This rule appeared in the Later T ' a n g in 923, was included in an edict of the Later Chou in 955, was incorporated in the Sung Code of 962, and was repeated in later memorials and edicts. 8 4 O n the day when the fetters were to be washed, one official was supposed to go in person to check the jails and their equipment, including fetters and other judicial instruments. 8 5 There was concern from the beginning that officials might be either overly lenient or overly harsh. They might allow prisoners to avoid wearing the required fetters, use ones that were excessive and illegal, or fetter prisoners who should not have had to wear them at all. 8 6 This concern seems to have been prompted on the one hand by fears that officials might take bribes to spare their charges of wearing fetters. T h e early Sung Code says that officials who exempted prisoners liable for the heavy rod from wearing fetters should themselves be liable for a penalty equivalent to beating with the light rod. When the crimes called for penalties of penal servitude or higher, the responsible officials should be liable for a penalty heavier by one degree. If they merely switched the kind of fetters in question, allowing those who were supposed to wear the cangue to wear chains instead (or vice versa), their punishment would be reduced one degree. 8 7 Officials might also abuse prisoners by using excessive or improper fetters. Higher officials were well aware that wearing fetters could easily lead to infection. Late in the Northern Sung a warning was issued that officials who detained in fetters men who should not be so detained were liable for a penalty equivalent to one hundred blows of the heavy rod. 8 8 83 TITC 2.9b.
84 85 86 87 88
See WTHY 161; SHT 29.471; SHY, hsing-fa 6.51a, 77a-b, HCP 10.7b. WHTK 167.1453. HCP477.ib-2a. SHT 29.465-466. HCP477.ib-2a.
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The Sung penal system Despite the threatened penalties, the problem was chronic, and officials occasionally were admonished to adhere strictly to the rules. 89 Concern about men being shackled too long was also one spur to attempts to speed up judicial process, especially at the review level. 90 Officials are accused repeatedly of using illegally heavy or injurious fetters. They might be perforated or of knobby, rough, or raw rather than dry wood.91 A report of 1118 says that the clerks in the detention houses sometimes used iron fetters and neck fetters. 92 In response, the central government ordered the chief authorities in each jurisdiction periodically to investigate the legality of the instruments being used. 93 According to the Ch'ing-yuan t'iao-fa shih-lei, senior officials were to make such inspections every month, to see whether the instruments conformed to the specifications. The instruments were branded to indicate their certification.94 When such investigations were conducted, abusive officials actually might suffer punishment. In the capital in 1142 a number of officials suffered penalties because the instruments in their jurisdictions were either under- or overweight or were improperly constructed, and in 1149 senior officials were again told to inspect the instruments in person and to certify their conformity with the rules. 95 The penalties inflicted on officials in these special cases were relatively severe; under the regular rules, as preserved in the Ch'ing-yuan t'iao-fa shih-lei, those having illegal fetters were liable for only sixty blows of the heavy rod. 96 The problem of controlling the system was caused partly by confusion about who was responsible. Even when there were rules for such responsibility, they sometimes assigned it to people who lacked the power to see that the rules were obeyed. It is an example of the classic problem of bureaucratic systems in which those who know what is wrong do not have the power to correct it, and those who have the power to correct it are ignorant. In some areas, the difficulty of preventing the building and use of illegal instruments was compounded by the policy of appointing archers rotated for one-month terms to be in charge of them. Such men were hardly in a position to resist pressure from the
89 90 91 92 93 94 95 96
HNYL 2588. HCP 65.16b (1007). SHY, hsing-fa 6.77b. WHTK 166.1452. SHY, hsing-fa 6.51a, 77a~77b, 77^, 78b-7ga. TFSL 503. SHY, hsing-fa 6.79a; SS 199.4993; HNYL 2588. TFSL 499.
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Table 10.1. Sung fetters Length Cangue (chia)
5'-6'
Interrogation cangue (worn during transport also) Press (chia) Manacles (ch'ou) Collar (chHen) Lock/chain
2'5"-6" l'6"-2" 1'-1'5" 8'-10'2"
Width
Diameter 3"
Weight 25 chin (death) 20 chin (exile/servitude). 15 chin (heavy rod) Wchin
3" 1"
3"
8 Hang-1 chin
Note and sources: SHY, hsiang-fa 6.77a; SHT 29.466. Initially there was no rule fixing the weight of the cangue used when dealing with recalcitrant prisoners accused of crimes calling for beating with the heavy rod, but in 1007 this was fixed at fifteen pounds. See also Wang Yii-ch'eng, Sheng-shuiyen-Van lu, cited by Shen Chia-pen, Shen ch'i-i hsien sheng (Taipei: Wen-hai, 1964), p. 514; Chiang Shao-yii, Huang-ch'ao leiyuan 20.7b, 21.10b; WHTK 166.1445; SHY hsiang-fa 6.77b; HCP 67.18b; WHTK 166.1445, 167.1453. permanent jail functionaries or the officials to permit the use of illegal instruments. 97 In central government offices, with their larger staffs, the authorities sought to avoid such problems by designating those who were to keep the fetters. For example, in the late 1080s, in the Censorate and other analogous organs, the storehouses for the fetters were under the direct control of civil service officials called recorders 98 (see Table I O . I ) .
Judicial tattooing Judicial tattooing also served as a mechanism for social defense. Tattoos were felt to be a form of mutilation. The knights-errant of Chinese tradition often had themselves tattooed as a permanent sign of their defiance of ordinary social conventions and political authority. A tattoo on a criminal, however, served to warn those whom he encountered of his status. They also served as a control device and a deterrent, since convict tattoos were felt to be shameful. Their deterrent effect, however, was reduced by the general Sung practice of tattooing soldiers, so that a 97 Sun Ying-shih, Ch'in-ch'uan chik, 2709.
98 HCP 374.15b.
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significant minority of the Sung adult male population bore tattoos of one sort or another. Furthermore, the tattoos used on criminals were, in many instances, deliberately designed to resemble military tattoos, in order to facilitate the transfer of ex-convicts into military units. Sung criminals guilty of crimes calling for more than beatings might or might not be tattooed. If they were, the size, placement, and text of the tattoos might differ. In using such markings the Sung government was following an ancient tradition. In both the Book of Historical Documents and in the Autumn Officer section of the Rites of Chou (c. 200 B.C.), one of the regular penalties was tattooing on the face. Here, the intent was to inflict a permanent stigma on the convict, shame the guilty, deter the tempted, and defend society against a potential lawbreaker by revealing his character. This penalty was supposedly eliminated by Han Wen-ti (r. 179-157), but it reappeared during the Southern and Northern dynasties (317-589). Under Ming-ti of the Liu Sung (r. 46573), criminals were tattooed on the face and leg, and under Wu-ti of the Liang (r. 502-50), on the face. The Western Wei (535-57) tattooed men and women escapees. During this same period the practice of tattooing army troops also began, probably under the Southern Ch'i (479—502). Under the T'ang, private tattooing was practiced but was not a regular punishment, nor was it used in the military. However, during the closing years of the T'ang, several rebel leaders revived the pre-T'ang practice of tattooing their troops. This practice remained current during the ensuing Five Dynasties period and was inherited by the Sung." Although the general traditional practice had not been to tattoo men sentenced to exile or penal servitude, the tattooing of criminals also reappeared in the Five Dynasties during the T'ien-fu period (936-43) of the Later Chin, when criminals sentenced to penal registration were tattooed on the face.100 The Sung inherited and retained this practice. We are told in an order of 1013 that unless there was an imperial order to use large characters, those sentenced to penal registration should follow the precedent of the small-character army tattoos. If the criminal already had a tattoo indicating that he belonged in an army command, the authorities could merely add the place of registration.101 Although the tattooing of large characters was said to have often seriously injured the criminals,102 for some very serious crimes large characters were still used. In 1024 t n e authorities in the capital area 99 See Sogabe Shizuo, "Sodai no shi-hai ni tsuite" (On penal registration in the Sung), Bunka 29 (1965): 1-23. 100 WHTK 168.1459. 101 SHY, hsing-fa 4.6b. 102 SHY, hsing-fa 4.7a.
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asked that evil robbers be tattooed on both cheeks with large characters so that it would be difficult for them to remove traces of the tattoos with drugs or cover them over with burns. 103 A decree of 1085 specified that men guilty of robbery were to have a ring tattooed behind their ears, apparently with the character "bandit" (tsei) inside. 104 If the penalty were penal servitude or exile (liu), a square was to be tattooed, presumably inside the ring, and if the penalty were beating with the heavy rod, this was to be a circle. For those recidivists guilty of three crimes calling for beating with the heavy rod, the tattoo was to be moved to the face. In size it was not to exceed five-tenths of an inch (fen).105 The same pattern continued during the Southern Sung. Wang Yen (1138-1218) noted that thieves who had been beaten with the heavy rod were tattooed with a circle and released. 106 During this period, for those to be sent for registration, the general pattern seems to have been to tattoo a phrase that included the place and unit of registration. A typical example would have read, "Penally registered in X prefecture, Y Military Agricultural Unit, for heavy labor." 107 There were occasional changes in the phrasing. Apparently before the early 1080s the phrase read "tattooed and made subject to X Command for penal registration in the army" (tz3u-ch3ung mou chih-hui pei-chun), but because the emperor was worried t h a t the soldiers might feel s h a m e d , this was changed to read simply " X C o m m a n d miscellaneous l a b o r e r " (mou chih-hui tsa-i).W8 For S o u t h e r n S u n g criminals, these characters were usually larger t h a n those used on a r m y troops, b u t if such m e n were for some reason freed a n d wished to r e m a i n in the provincial armies, the authorities could simply m a k e relatively minor alterations in the characters. 1 0 9 An O r d i n a n c e on J u d g i n g C r i m i n a l Cases - which dates from the N o r t h e r n Sung b u t is preserved in the Ch'ing-yuan t'iao-fa shih-lei - states: For all military [personnel] who are shifting their place of registration when the name of the unit is not the same, and for those who are being demoted and penally registered, the characters with which they are to be tattooed are not to exceed two-tenths of an inch. For deserters or men penally registered in the base citadels, it should be four-tenths of an inch. For prison citadel [commands], 103 SHY, hsing-fa4.na. 104 HGP 468.7a-b. 105 106 107 108 109
HCP 362.11b; SS 201.5018; WHTK 168.1460. Wang Yen, Shuang-ch'i lei-kao, 23-5b-8b. See, for example, SHY, hsing-fa 4.47a, 447a-48a, WHTK 168.1460. HCP 334.10a. See, for example, an order of 1189 that after an amnesty if there are registered men who are old, ill, or otherwise incapable of supporting themselves, they might on request have their tattoos altered and remain in the provincial forces (SHY, hsing-fa b-59a).
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five-tenths of an inch; for distant evil prefectures or for Sramana Island, seventenths of an inch. 110
As this indicates, large characters were used on certain very serious criminals. One large group was composed of robbers who would ordinarily have been sentenced to death but who had been spared. According to an order of 1167, they were tattooed with large characters. 111 An order of 1181 went further. Such men were to have the character "forceful robber" (chiang-tao) tattooed on their foreheads, with the other characters divided and tattooed on their cheeks. (If their foreheads were already tattooed, they could be spared being tattooed again.) 112
Conclusion Penalties are messages, messages to those who suffer, to those who observe, to those who execute, and to those who know of them only by rumor. Penalties inform both spirits and men, both the powerful and the weak, for good or ill. The messages may be deliberately spectacular and open, like the public executions of Europe (and China) until recent times; the closed sanitized executions of the contemporary world send with their silence as loud a message. Penalties are messages about power, about the capacity of the punisher to demean the punished. Penalties tell the victim of his powerlessness. They remind the bystanders of their own weakness. They even warn the executioner. They demonstrate resolve coupled with authority. The use of force is a message about the power to rectify and the power to cleanse. It is a necessary attribute of sovereignty, but in Chinese political mythology the Chinese sovereign was properly the sovereign of all, not just of the Chinese. To rectify meant to straighten out not just those within who were warped but also those without. Because those without were less immediately under the power of the sovereign, he could not punish them with police power. Greater force was needed. War was distinguished from punishment principally by its scope and intensity. War involved groups of men acting against other groups, using different methods to be sure, but still aiming to chastise the deviant. War was criminal punishment carried one step further; criminal punishment was war against those so powerless that their resistance did not call for the use of great force. 110 TFSL 520. This ordinance, like many of the rules found in this code, is from the Northern Sung, as is indicated by the mention of Shamen Island, which was lost to the Sung in the 1120s. 111 SHY, hsing-fa 4.51b. 112 SHY, hsing-fa 4.56a; WHTK 167.1455; see also TFSL 520.
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The voices of conservative traditional Chinese advocates of the strict and severe enforcement of penalties sound familiar. The official Liu Anshih remarked in 1089: I have heard that in antiquity, punishments were used to constrain those who injured the state by being disloyal or unfilial. Therefore, when the crime was great, the punishment was heavy. When the crime was minor, the punishment was light. It is also said that when the punishments fit the crimes, then evil will be stopped. This is the Way of great fairness. The practice of this was the same in antiquity as now. It has been called "awe inspiring authority," whereby to buttress virtue and to restrain evildoing.l ] 3 The great eleventh-century statesman Ssu-ma Kuang drew the political lesson even more sharply, saying to the emperor that the failure to enforce the law strictly would endanger imperial power. "If those who kill men are not executed, if those who injure men are not punished, under such circumstances even the great Sage Emperors Yao and Shun would not be able to govern." 114 The penalties to be used ran the gamut from horrifying executions to beatings, the use of fetters, and tattooing. All could serve as either separate or supplementary punishments. The Sung authorities clearly understood their penal character. Their role as deterrents and as instruments of social defense was recognized by thoughtful observers. Another facet of Sung penalties, which to us seems clearly punitive in effect if not in intention, was not so recognized - the time spent in jails. 113 HCP 427.7b-ga.
114 SS 201.5011.
352
11 Jails and jailers in the Sung Introduction - imprisonment and punishment The policies governing imprisonment in the Sung dynasty reflect a mixture of motives determined by the special uses of jails, by current views of the nature of criminals, and by some general characteristics of the traditional Chinese state. Jails were used primarily for those awaiting either trial or punishment. They might also hold witnesses or convicts in transport. Imprisonment, however, was not thought of as a punishment in itself. The widespread conviction that most people, including most criminals, were capable of acting properly conflicted with a tendency to dismiss those in jail as bad people who deserved their fate. After all, their being in jail was proof of something. In his book of advice to local officials, the thoughtful and compassionate Ch'ing magistrate Huang Liu-hung comments: "It is all too easy to say that criminals are wicked people who deserve nothing except death. Alas, Heaven creates tigers, leopards, wolves, wasps, and lizards, and they are all endowed with lives. How can human beings be deprived of an opportunity to live?"1 Concern for the lives of convicted and suspected criminals was part of a wider human concern. Furthermore, not all those held in jails were in fact either convicted or suspected criminals. Under premodern conditions (as indeed is still all too true under modern conditions) the difficulties of getting witnesses to the courtroom at the proper time are very serious. The traditional Chinese answer was to hold certain witnesses in jail. The willingness of the authorities to do this may have been buttressed by a feeling that some of the witnesses, though perhaps not all, shared in the guilt of the accused, especially if they were relatives or neighbors, who had obviously failed to prevent the lawbreaking. Given 1 Huang Liu-hung, A Complete Book Concerning Happiness and Benevolence, trans. Djang Chu (Tucson: University of Arizona Press, 1984), p. 313.
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Figure I I . I . Chinese jail. From Feng Meng-lung, Hsing-shih heng-yen.
the difficulties facing criminal investigators under the conditions of the time, and the state's desire for correct verdicts, it is understandable that the authorities often found it advisable to detain in jail those who had evidence as well as the accused, though this practice might also have worked to weaken the system by making people less willing to come forward with evidence for fear of being imprisoned. This situation may have contributed to the practice of not treating time spent in jail as part of the penalty. If punishments were inflicted on the guilty to deter others, to inflict retribution, to cause the guilty to reform, and to defend society against further depredations, how could time in jail count as punishment, when on occasion the innocent were 354
Jails and jailers in the Sung
also held? Significantly, no Sung official seems ever to have suggested reducing the time of the sentence by the amount of time spent in jail awaiting trial. Despite the authorities' desire to limit time spent in jail, stays were not always brief.2 People might be held for extended periods, under conditions that were at best uncomfortable and shameful and at worst dangerous (see Figure I I . I ) . One report on conditions in 1172 says that some men accused of crimes calling for penal servitude had already been in jail for more than three months, with no decisions on their cases,3 and an anecdote preserved in the Sung casebook Che-yu kuei-chien says that a clerk accused of theft had been kept in jail for three years without having his case resolved.4 Another report, from the early eleventh century, says that a man who had already been sentenced to registration had to wait more than forty extra days after his sentencing while a report on the trial was sent to the circuit intendant, even though the prefecture involved was close to the intendant's headquarters. 5 Such lengthy stays ought not have to have occurred if proper procedures had been followed. Although they probably formed only a small percentage of Sung cases, in absolute numbers they no doubt affected many prisoners. The higher authorities, considering them to be highly unusual and improper, did periodically complain about instances that were brought to their attention. Despite such official concern, however, the abuses continued. Thus, although imprisonment was not considered a form of punishment, the deterrent value of such extended "nonpenal" stays in jail should not be discounted. The authorities knew how dangerous time spent in jail could be, that many prisoners died, that some of them were merely witnesses, and that others, although accused, had not yet been convicted. The state authorities were, therefore, interested in trying to make life in jail bearable and the stay there brief. The thought of jail might be a deterrent to some criminals, and the time spent there in fact a punishment of the true criminals confined, but the authorities had practical as well as ideological reasons for not using imprisonment as a major form of punishment. The traditional Chinese states were able to secure only a small proportion of the total social product for their use. The income secured by the state had to be 2 For a good brief description of Sung jails and jail policies, see Tai Chien-kuo, "Sung-tai te yii-cheng chih-tu" (On the system of jails in the Sung dynasty), Shanghai shih-fan ta-hsiieh hsiieh-pao, no. 3 (1987): 89-96. 3 SS 200.4994. 4 CYKC 68. 5 SHY, hsing-fa 4.10b.
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committed first to the support of the officials who staffed the government and to the national defense. Despite theoretical commitments to support various social services and to achieve other goals, in practice the traditional governments rested lightly on society. Then, as now, imprisonment was expensive. Given the state's limited resources, the widespread use of imprisonment as a penalty would have been a serious drain on revenues. Thus in the early twelfth century when the authorities, citing ancient precedents, attempted to use prisons to punish certain classes of criminals, the new policy was soon abandoned. 6 Physical facilities To help ensure continued decent treatment of prisoners, the state enacted policies that required officials to inspect the physical condition of these jails on a regular basis. An approved memorial of 1097 states: "As to the jails in the prefectures and districts, the incumbent responsible officials are to come once each half-year to conduct personal inspections and to see to necessary repairs. It is important that these things be done." 7 Analogous rules seem to have remained in force throughout the dynasty. The rule was incorporated in the early thirteenth-century code Ch'ing-yiian t'iao-fa shih lei, which says that the incumbent officials in the prefectures and districts were to go twice a year to inspect the physical facilities of the jails and the goods provided to the prisoners. Regular allotments of money were earmarked for needed repairs and materials. 8 We can get some idea of the physical conditions of these jails from the occasional comments in Sung sources. In 1075 the emperor ordered that all units in the capital where men were imprisoned should build beds for those held. 9 Four years later the emperor, concerned about conditions in the jails in Kaifeng, ordered that the rooms be increased in size or some prisoners moved elsewhere. As a result, the jails are said to have been enlarged by some one hundred bays (chien - an architectural unit defined as the distance between two upright pillars). 10 About two decades later a memorial submitted by the Ministry of Justice and the Court of Judicial Review asked that all jails build airy towers with cooling windows. Gruel to drink and mats for sleeping should be provided. The inmates from time to time should be allowed to bathe and to eat. This is the regular pattern in warm weather. When it is cold 6 7 8 9 10
WHTK 167.1452. HCP 485.3a. TFSL 538. HCP 270.3b. HCP 246.15b.
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Jails and jailers in the Sung
they are to be given appropriate amounts of firewood. The poor may borrow clothes. In hot weather their fetters are washed once every five days.11 During the early Southern Sung, P'eng Kuei-nien (i 142-1206) described the completion of a new jail in Wu-ning District. It was "a building of a number of columns, with a number of jail cells running east to west, with a separate place for interrogation. The kitchen, bathroom, and living quarters are in the back." 12 In 1236 Liu Tsai described the repair of the jail in Chu-chi District in Liang-che Circuit, which opened up and widened the site, built up the foundations, and strengthened the walls with stone so that water could not wear them away. The walls were so constructed that men could not leap over them or cut through them. There were five cells. Men and women were separated, yet it was all spacious. In the center was the interrogation room. There were four separate storerooms for clothing, rations, and prison implements. On the surrounding sides were the living quarters. Also, the earth was covered with planks to keep out dampness, and the beds were varnished so that lice could not get in.13 These records were written especially to celebrate the building of proper jails; unfortunately they also are testimony to their unusual character. A report from the late Northern Sung probably describes more typical conditions. A circuit intendant reported that in his jurisdiction, in the districts located away from the prefectural seat, the local authorities often merely turned over their prisoners to the nearest units of the provincial armies for detention, or if there were no units available, they held people in such places as stores or shops. 14
Locations of jails All districts in theory had a jail, associated with the offices of the sheriff, though clearly some districts did not in fact have jails of their own. 15 On the level of the prefecture the office of the district whose headquarters was in the prefectural seat had a jail, and the office of the administrator for public order (ssu-li tsan-chun) had one and sometimes two jails. Chienk'ang Prefecture in Liang-che Circuit is said to have had six prefectural jails, including two associated with military encampments and two district jails attached to the district offices located in the prefectural city. 16 11 12 13 14 15 16
SS 18.347. P'cng Kuei-nien, Chih-t'ang chi, 10.129. Liu Tsai, Man-t'ang wen-chi, 23.27a-29a. SHY, hsing-fa 2.63b. SHY hsing-fa 2.63b. Chou Ying-ho, Ching-ting Chien-k'ang chih, 1057-58.
357
Law and order in Sung China Any circuit intendants in the prefecture also had jails where prisoners might be held for interrogation during case reviews. 17 The imperial capital, Kaifeng, had no central jail. Rather, at various times a number of central government organs had their own jails. 18 The chief urban police organs, including the Palace and Metropolitan Cavalry and Infantry commands (Tien-ch'ien ma-pu chun ssu) and the various patroling inspectors' offices, had jails attached to their offices. Judicial organs, like the Court of Judicial Review and the Censorate had jails, and so did such nonjudicial nonpolice offices as the Bureau of Water Transport (where they held transport laborers accused of crimes), 19 the Four River Transport Offices (Ssu p'ai an), 20 the Finance Office,21 and other units. 22 Furthermore, the offices of the sheriffs of the metropolitan districts presumably had jails, as did the prefecture. Kaifeng Prefecture's jails included jails in the General Executive Inspector's Office (Ssu-lu ssu) and the Left and Right Courts of Military Inspection (Tso-yu chiin-hsun yuan). 23 We may also assume that the armies stationed around the capital had jails. These Kaifeng jails had been of special importance at the beginning of the dynasty. At that time the Court of Judicial Review did not have its own jail, so its prisoners were held in these prefectural jails. Because of their growing numbers, the problems of crowding and illness in these Kaifeng jails increased. In 1078 Emperor Shen-tsung ordered the High Court jail reopened. It was to be staffed by one chief, two assistants, and four aides, who were to have sole control over interrogations. In addition, this jail had associated with it one recorder and two law-checking officials (chien-fa kuan).24 The jail was again closed in 1088 because of a variety of abuses, 25 only to be resurrected in 1096 (when it was organized after the pattern of the Censorate's jails). 26 The capital also had the east and the west jails of the Censorate, which in 1079 were located close to the Altar of Grain. 27 These capital jails were supposed to be inspected periodically and in rotation by officials from the Ministry of Justice and the Court of
17 HCP 71.19b; Wen T'ien-hsiang, Wen-shan hsien-sheng ch'uan-chi, Wan-yu wen-k'u ed., 9.292-293 (1259). 18 SS 201.5021. 19 HCP 52.17a (1002). 20 HCP 52.17a. 21 HCP 65.17a. 22 HCP 52.17a, 295.8a-b; WHTK 167.1450. 23 HCP 57.9a, 12306.17b, 324.9b. 24 SS 201.5021; HCP 295.8a-b; WHTK 167.1449. 25 HCP 418.2b; WHTK 167.1450. 26 HCP 410.6a; SS 201.5023. 27 HCP 2 9 8.3b- 4 a.
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Judicial Review. The great number of jails was advantageous in that no single one needed to be too large for reasonable security. But the large number could also cause problems, since it allowed officials worried about their supervisors' visits to conceal prisoners by transferring them to another jail.
Competing concerns and jail policies The policies specifically concerned with the structure and functioning of jails seem to be products of the sometimes competing concerns for security, the humane treatment of inmates, and the desire to limit corruption and abuses by jail functionaries and officials. Because those in jail might be dangerous and desperate, the authorities tried to design facilities that would prevent escapes, run them according to policies that would ensure decent treatment, and restrict the opportunities and temptations for officials and jail functionaries to abuse their powers. Central government officials repeatedly expressed their concern about the welfare of those held in jails. Some were innocent witnesses, who certainly did not deserve to suffer. And the underlying voluntarist view of human nature common to most members of the Sung elite led them to believe that many criminals could be salvaged, could in the standard phrase "renew themselves." If this were true, it behooved the authorities to treat prisoners with compassion, in hopes of their redemption. This recognition of the inmates' moral potential was also reflected in the policy of separating men from women and supposedly of separating minor offenders from hardened criminals. 29 Women were kept in separate cells with female guards. 30 By law these women prisoners were allowed to have a female servant girl accompany them. 31 The text says literally a "singing girl," that is, a prostitute. Possibly the authorities felt that such women would be better able to deal with the surroundings of the jails than would ordinary servants. The policy of separating women from men was continued throughout the dynasty. 32 In his twelfth-century book of advice for local officials, Li Yuan-pi underscores the importance of detaining minor offenders in a different place from serious criminals. He advises the district magistrate to build what he calls "upright cells" (li-hsiab) for petty offenders. These probably were like the "tiptoe" cells of the Ch'ing dynasty (1644-1912), 28 29 30 31 32
SS 199.4992, 201.5020. SHY, hsing-fa 6.51a, 52b. SHY, hsing fa 6.51a, 52b. TFSL 537. TFSL 537.
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I Figure 11.2. Tiptoe cell. From Wu Hsiang-chu, Tien-shih chai hua-pao.
from which the head of the offender protruded (see Figure 11.2).33 The separation of hardened criminals from minor offenders, however, was not always observed. A report of 1006 suggests that the brutality in prison in ancient China was all too similar to that in our own prisons. We are told that the hard-core criminals "coerce younger prisoners to feed them their food, so that the younger inmates are often hungry and thirsty. Without asking whether or not the crimes were serious, both sorts of criminals are 33 TITC 2.9a. 360
Jails and jailers in the Sung
held in the same jails." This complaint was followed several months later by an order that serious and petty criminals be kept in different cells.34 We can only assume that the kinds of physical and sexual abuses found in modern prisons also occurred in Sung jails. Perhaps the fettering of serious prisoners reduced the opportunity for predatory behavior. In any event, the sources are silent about this side of prison life. In later dynasties some of these problems were mitigated by having several sorts of facilities for holding prisoners. Huang Liu-hung, writing in the seventeenth century, says that in his time, jails by tradition were divided into four levels, from the "soft prison" for relatively minor offenders, through the "outer prison," the "inner prison," to the "black dungeon" that housed bandits awaiting execution. 35 In the eighteenth century the official Fang Pao, in his "Notes on Prison Life" also refers to dividing the prison of the Ministry of Justice into levels, to segregate prisoners, ostensibly on the basis of the seriousness of their crimes, though in practice in part according to the amounts they paid to the jailers as bribes. 36 The concern among Sung officials about abuses in jails, as well as about theft by jail personnel, led to a policy of keeping a register to record the new inmates' clothing and personal possessions, possessions that would be returned to them (and checked off the register) when they had been judged. Under the rules found in the Ch'ing-yuan t'iao-fa shih-lei, when a criminal arrived at a jail bringing goods with him, the officials were to inspect them and make a list giving the names of the prisoner and his possessions. They were then to be sealed and put into a storehouse for safekeeping. If the accused was found innocent, the goods were to be returned on that same day. They were not to be used as rewards or confiscated by the authorities. If the jail functionaries on their own authority distributed goods that had not been inspected by officials, they were to be punished with eighty blows of the heavy rod. And if they took advantage of the situation to steal the goods, they could be tried for theft.37 We do not have for the Sung the same sorts of descriptions of jail life that we have for the Ming and later, but occasional comments by officials do hint at the quality of prison life. The general practice seems to have been that when they could afford to do so, the family of the prisoner provided food, drink, and other necessities, a practice that 34 HCP 63.10b; SHY, hsing fa 6.52b. 35 Huang, Complete Book, p. 311. 36 Derk Bodde, "Prison Life in Eighteenth Century Peking," Journal of the American Oriental Society 89 (1969): 311-31. 37 TFSL 537.
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continued under later dynasties. T h e prison officials were responsible for seeing that the materials actually reached the prisoner. 3 8 Indigent prisoners were to be provided for by the state. According to an edict of the Later Chou ( 9 5 1 - 6 0 ) , which was incorporated in the early Sung Code, indigent prisoners were to be given two pints of official rice per day. 3 9 This was reaffirmed by a decree of 986. 4 0 Dangerous prisoners might have food brought to them in their cells. Less serious prisoners might be let out to eat. 4 1 T h e provision of food to the indigent was in all probability the one service to prisoners that was provided regularly. In descriptions of prison life from the Ch'ing, commentators do mention the regular system of rations. Even in this respect the Sung decrees in regard to feeding prisoners may not in fact have been enforced in all jails, and where food was provided there were still complaints that the functionaries substituted inferior grain. 4 2 Toward the end of the Northern Sung, Li Yuan-pi advised potential magistrates to "inspect the prisoners' food with special attention. Reductions are not to be allowed. T h e provisions in the jail should be checked once every few days. Extra [rations of] beans and rice should not be provided." 4 3 It seems possible that during the Southern Sung, prisoners were supposed to be given not only grain but also supplementary money for salt and vegetables. T h e Southern Sung handbook for local officials called the Chou-hsien t'i-kang says that prisoners were to be given two pints (sheng) of rice daily and ten coins of "salt and vegetable money." This amount of rice was about the standard Sung daily ration. It seems possible that the rice was regularly provided but less likely that prisoners always received the supplementary money. According to a decree of 1143, indigent prisoners in the capital were to be given twenty coins per day for food (which would have totaled more than seven strings of cash per year), and those in the outer prefectures were to be given fifteen coins (about five strings per year). 4 4 Since the local constables were being paid only about thirty strings per year, it seems improbable that such funds were in fact disbursed on a regular basis. Rice, on the other hand, probably was regularly provided. Information from K'un-shan District in Su Prefecture in 1251 suggests that in that district the administration's income in grain included a portion earmarked for prisoners. 4 5 38 39 40 41 42 43 44 45
SHY, hsing-fa 6.51a. SHT 29b. STCLC 742. CHTK 3.27.
HCP 52.17a; SHY, hsing-fa 6.6oa-b. TITC 2.26. SS 199.4993. For a report on providing food, see HNYL 2589 (1149). Ling Wan-ch'ing, Yufeng chih (SYTFCTS ed.), 3814. A matter of some 90 shih, 4 sheng.
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Prisoners were also to be given on occasion appropriate drinks to preserve their health. In line with the current government policy, Li Yuanpi in the late Northern Sung advised magistrates to see that prisoners were kept warm in winter and cool in summer and allowed to bathe regularly. In winter, when they were going back into their cells, they should be given a cup of hot boiled water to drink and in summer a draught of freshly drawn water. 46 The authorities were also responsible for providing for the other needs of indigent prisoners. The Sung Code of 962 contains a rule stating that prisoners were to be given mats, drugs for illnesses, and water for washing, 47 as well as clothing, including, in winter, padded jackets, robes, trousers, stockings, and gloves. In addition to food and clothing, prisoners supposedly were given firewood or coal during the coldest weather, though there are complaints that the prefectures and districts often ignored this rule. 48 Despite these rules and the examples from some local areas, it is clear that sometimes the prisoners were not adequately fed or always provided with other necessities. In some cases prisoners were said to have been deliberately denied food by the responsible personnel in efforts to get them to confess,49 a practice that sounds remarkably like the treatment of prisoners in the People's Republic described in Prisoner of Mao.™ It seems probable that hunger contributed to, if it did not itself cause, some of the prisoners' deaths in jails. Early in the thirteenth century an official complained that the prisoners in the districts suffer bitterly from a lack of food. This is at its worst in the district subordinate to the city. In law the officials are allowed to spend transportation money [on prisoners' needs], but often the districts do not dare to do so and so violate the precedent. Often those who share control in the jails privately take food from the households of corvee laborers, dividing it among the incarcerated men. When the food comes in, the men grab for small pieces. How pitiful!51 Health care Health care was a particular concern. In 932 under the Later T'ang an edict had ordered each prefecture to set aside a jail hospital room (pingch'iu yuan) for serious offenders. The Sung reaffirmed this policy at the 46 47 48 49 50 51
TITC 2.32, 2.33, 2.34, 2.36. SHT 29.8a; see also, from 986, STCLC 742. SHY, hsing-fa 6.51a, 56b~57a; SS 18.347; HNYL 2728 (1154). SS 200.4996—97. Bao Ruo-wang (Jean Pasqualini), Prisoner of Mao (New York: Penguin Books, 1976). WHTK 167.1455-56.
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beginning of the dynasty, in 996, and again in 1101. According to the request of 996, local authorities were to open clinics for prisoners being held for armed robbery calling for sentences of penal servitude or worse. Lesser offenders were to be released on bond for treatment outside the jail 52 (though at times it is said that some were unwilling to go out). 53 The policy was again affirmed in the Southern Sung and indeed remained standard practice under later dynasties. 54 According to the jail functionary ordinances cited in the early Sung code Sung hsing-t'ung, when a prisoner was ill, the functionary responsible was to inform the chief local official, who was to make a personal inspection. If the prisoner really was ill, then the official was to see to the provision of medicines and the care of someone with medical knowledge. Prefectures were supposed to have three such medical attendants, and districts one. These men seem to have been local individuals serving in this capacity as one form of requisitioned state service. We are probably safe in assuming that most were professional medical practitioners. 55 These men were to keep a log describing the symptoms of the prisoner's illness and its daily progress. 56 If seriously ill, the prisoner was to be freed from fetters. One member of the prisoner's family was to be allowed to enter the jail to help with the care. 57 An early twelfth-century order specified that ill prisoners were to be fed gruel made from fresh white rice. Local authorities were forbidden to substitute cheaper grains. The authorities' continuing interest in this problem is revealed in a decree of the mid-twelfth century that all the jails of the Court of Judicial Review and the capital prefecture should receive one hundred strings of cash to use for prisoners' medicines. Other prefectures were to receive sixty strings, the Three Commands (san-ya) (the Palace Command, the Metropolitan Cavalry Command, and the Metropolitan Infantry Command, which shared responsibility for security in the capital) were to receive fifty strings, large districts thirty strings, and small districts twenty strings. 59 These rules, phrased in terms of general health care, also probably were designed to help prisoners who were suffering the aftereffects of judicial or interrogatory torture. 52 53 54 55 56 57 58 59
SHT 3.51; HCP 48.8b; WHTK 166.1445; see also SHY, hsing-fa 6.52a-b. Li Kuang, Chuang-chien chi, i2.2ia-b. HNYL 2619. For later dynasties, see Huang, Complete Book, p. 311. Liang K'o-chia, San-shan chih, i4.hsien-i jen. TITC 5.28b. SHT 29.472; HNYL 2619; SS 199.4972. SHY, hsing-fa 6.60a-b. HNYL 2639. The money for such purposes was to be drawn from various sources, including money from fines or from regular official funds; see TFSL 74.
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Of course, we cannot assume that all such rulings were always enforced. For such systems to work they required the support of energetic and sympathetic local officials. In the late Northern Sung an official noted that "local officials may not be thorough in carrying out Your Majesty's merciful intentions" and, in typical bureaucratic fashion, asked that the circuit intendants be required to submit annual reports on the number of prisoners who had died of illness.60 Those outstanding local officials who promoted the humane care of prisoners were held up as exemplars. The gazetteer for T'ai Prefecture in Liang-che Circuit described the building in 1211 of prefectural facilities for housing sick prisoners: Before this, sick prisoners had no place to stay. They were scattered to sleep at places in the city buildings such as temples or Buddhist dwellings, and many died. Huang [Shou-sun] thereupon built these facilities so that they would have a place to sleep. All their daily needs were provided for. . . . They received rice, salt, medicine, and other foodstuffs, all paid for with money collected in fines. In cold weather they were given clothing and firewood.61 The most complete set of rules on the treatment of sick prisoners is found in the Ch'ing-yiian t'iao-fa shih-lei, which indicates that when a prisoner became ill, this was to be reported immediately to the officials, who were supposed to check out the situation in person. They were also supposed to recheck the situation every three days. Relatives of the prisoners were also to be informed so that one of them could come to care for the prisoner. If the prisoner were an official of the fourth rank or higher, or a woman holding official rank of enfeoffment with the district, two persons could come, including wives, sons, or grandsons. The jails were to have registers listing the names of their medical practitioners. Substitutes were not allowed. The jails kept a record in which they were to note the ill prisoner's symptoms, the names of the medical practitioners used, and whether the patient was cured or died. This rule also covered those who had been released on bond for treatment outside the jail if they died within ten days. If those let out for treatment died after this period, their names, the dates, and the cause of death were to be recorded. The incumbent officials signed these registers, which were reviewed annually. If these rules were not followed and many prisoners died, the responsible personnel were to be punished according to the rules for abusing prisoners. The authorities were all too aware of the possibilities of abusing prisoners and ruled that if the circumstances of an incident of illness seemed very serious, an uninvolved official should 60 Mu-jung Yen-feng, Li wen fang chi (Sung ming-chia chi-hui ed.), 10.2b. 61 Ch'en Ch'i-ch'ing, Chia-ting ch'ih-ch'eng chih, 7104.
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be dispatched to bring a medical practitioner under guard to perform an examination. 62 The system portrayed in this early thirteenth-century code is similar to the system found in early Sung materials, with a few significant differences. During the early Sung, criminals liable for penal servitude or worse were treated in jail, but by the early thirteenth century they could be allowed out of jail on surety, unless the circumstances of their crimes were quite serious. The Southern Sung materials also do not mention the special hospices mandated in the Northern Sung, which may help explain why such prisoners were allowed to leave the jails for treatment. Finally, one partial answer to prisoners' health problems was public health measures, such as giving prisoners reasonably cool and sufficiently large quarters and trying to avoid the more obvious causes of infection. In this regard, the Sung always continued the policy from earlier times of periodically washing down the fetters in which men were being held. 63 An early description of this system, from the summer of 969, says: The emperor thought about the great heat and the sufferings of those imprisoned. He issued a decree that in the various prefectures of the western capital the chief officials who managed the jails were to make an inspection every five days, to see to the sweeping of the cells and the washing down of the fetters. Those [prisoners who were] poor and unable to sustain themselves were to be given food and drink, and those who were ill were to be given medicine. Those accused of minor crimes were to be dealt with immediately so that there would be no delay. From this time on, every summer, during mid-summer, there was a clarification about this decree to warn officials [not to forget it].64 Some years later similar orders were issued regarding prisoners held in the Four River Transport Offices'jails {ssu-p'ai an)65 and orders regarding sweeping jails, washing fetters, and serving food were occasionally repeated. We have examples from 981, 986, and 1003.66 The system established for the prefectures was extended to the circuits when in 1005, they built centers for interrogating prisoners. 67 In 1090 Fan Tsu-yii reported: 62 63 64 65 66
TFSL 512-13. For this earlier practice, see SHY 29.472 (932). HCP 10.7b; STCLC 740; SS 199.4968. HCP 52.17a. HCP 55.11b. HCP 56.12b says every three days, but I suspect that this is simply a miscopying for the word Jive (see also STCLC 740, 742). 67 HCP 60.16b. This passage suggests that the pattern was every ten rather than every five days, as it says that the practice should involve "washing them every ten days after the pattern of the district jails."
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In accordance with the edicts of the Yiian-yu period [1086—93], during the hot months of summer the fetters on prisoners are to be washed once every five days. The prisoners are to bathe at this time. . . . I have looked into the ancestral system. Every year, in winter and summer, decrees were sent down ordering that prisoners be treated with mercy in punishing. From 986 during the time of T'aitsung [onward] this has been done continuously. In 1070 the Bureau for the Compilation of Edicts memorialized asking that each year, from the fourth month to the tenth month, the various circuits' judicial intendants inspect and certify that the various prefectures' chief officials [have complied with this system]. 68
Finally, one source suggests that prisoners were allowed out of their cells one day in ten. This would allow the authorities to clean the cells, to examine the health of the prisoners, perhaps to find men who ought to be released, and presumably to allow the prisoners an opportunity for exercise.69 Abuse of prisoners The authorities worried about abuses and corruption. Writing in the seventeenth century, Huang Liu-hung complains about a problem that had never been solved: Once a prisoner is sent to jail, his life is in the hands of the jailers. Some prisoners are killed by inhumane treatment at the hands of jailers who try to extort bribes without success. Other prisoners are killed by their accomplices who conspire to get them out of the way in the hope that their own cases will be settled sooner. Some prisoners are simply murdered by jailers who have been bribed by their enemies. There are also cases in which rapacious officials murder the prisoners to silence them and to appropriate their stolen property. When a notorious and dangerous criminal is jailed, officials sometimes fear that he might escape and cause further trouble, and so they simply have him killed, and report to their superiors that he died of illness.70 Sung prisoners, like these prisoners during the Ch'ing, were sometimes deliberately killed by their jailers. 71 The Sung History says that the authorities themselves would break the hands and feet (of prisoners) and chain them in the sheriff's stockade. The powerful could bribe the clerks to charge ordinary people falsely and then have them killed in prison. It reached the point that all trials on civil matters 68 HCP 443.21b—22a. The official Li Kuang (1078-1159) advocated a similar system: See Li Kuang, Chuang-chien chi, I2.2ia-b. 69 C H T K 3 . 3 1 . 70 Huang, Complete Book, pp. 308-9. 71 SS 200.4995, 4997; Chang Kang, Hua-yang chi (SPTK ed.), 14.1a.
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also were oppressive. Food and drink were not given, and so the prisoners died of starvation. They had no way to seek help against clerks who so maltreated them that they died. There were cases of suits involving two parties in which, because of bribery, one of the prisoners would be cruelly beaten to death. Fearing disclosure, the clerks would first send up an illness report, saying that the prisoner was ":under a doctor's care" when he was already dead; then they would say that [the prisoner] had "died of illness" when in fact he had been murdered. 72
Abuses seem to have been common, even in the capital city. One special torture device used in the capital is said to have so crippled its victims that after they had been tortured they were unable to raise their hands. 73 These Sung practices are similar to those so vividly described by the seventeeth-century magistrate Huang Liu-hung. He even gives the slang names for the abuses. A warden beating a new prisoner with help from the other jailers was called "sharing a community dish." Pouring water on the ground and forcing a prisoner to sleep in it was called "wearing a wet shirt." Hanging a prisoner by his feet with his head hanging down was called "climbing a tall tower." 74 Although we have less information from the Sung, the names used for Sung tortures suggest that the jailers were no less inventive in their tormenting of prisoners. Jailers certainly had ample opportunity to abuse prisoners, since they administered both the pretrial beatings, which were legally permitted during the investigation, and the beatings used during the trial. The legal interrogatory beatings were limited to twenty blows of the heavy rod, with civil service personnel as observers. In practice they often left this matter to the clerks, who abused their powers.75 Sometimes the clerks inflicted beatings without informing the officials. An order of 1023 says that jail personnel who beat prisoners without having informed the senior officials could be tried for having violated regulations, which carried a penalty of two years of penal servitude. However, if those so beaten turned out to be guilty, this would mitigate the punishment. Should innocent people die as a result of such abuse, the responsible functionaries would be liable for prosecution for deliberate homicide.76 The central authorities periodically reaffirmed the importance of having the officials personally present during interrogations with torture. 77 72 73 74 75 76 77
SS 200.4997. SHY, hsing-fa 5-2b-3a. Huang, Complete Book, p. 310. HGP 335.10b, 376.5b-6a; HNYL 2544, 2857. HCP ioi.8b-9a. Compare STCLG 741, 742, 744; WHTK 166.1444.
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Officials who were not personally present but had their clerks do the torturing could be liable for a penalty equivalent to two years of penal servitude. 7 8 In the mid-twelfth century the central authorities even ordered the circuit intendants to have the rules on judicial torture carved on placards that were to be hung in front of prefectural and district jails, perhaps to alert those who might be subjected to torture of the limits on its application, an order that also indicates the high level of literacy among Sung men. 7 9 Sung central authorities saw corruption and the abuses associated with it as primarily a problem among the clerical-level jail functionaries, who could manipulate the jail situation in their search for bribes. T h a t is, they might deliberately involve innocent people in cases, in order to squeeze money from them. T h e broader problem of abuse was not confined to clerks. It also often involved civil service officials. In the case of officials it was perhaps more often associated with excessive brutality toward inmates than with seeking bribes. T h e Northern Sung official Mu-jung Yen-feng wrote: In the circuits and in the capital the servitors who are charged with capturing bandits, although they have the duty of capturing bandits, sometimes because of momentary doubts seize witnesses who are not guilty and bind them. Under interrogation, many out of fear make false confessions and are sent to be jailed in the offices. Initially on the basis of the confession statement, they are fettered and subjected to judicial torture. Because of the time consumed in transmitting documents and so on, they are held for months.. . . Eventually they are released because they are innocent or convicted of some minor crime. 80 T h e situation was said to be even worse in the early thirteenth century. T h e censor Hsu J a n complained that "in recent years the officials in the prefectures and districts have been treating the jails like execution grounds. Those implicated in capital crimes or witnesses in violent robberies are bound and fettered. They are illegally subjected to judicial torture. They are arbitrarily imprisoned. This is brutal oppression." 8 1 In this same era it was the rule that officials who had been guilty of abusing prisoners could subsequently be appointed only to minor service agent positions. (Service agents, who oversaw local tax collection depots, were at the very bottom of the official status pyramid.) According to the general rule, if prisoners died as a result of deliberate abuse by officials, the officials could be tried for deliberate homicide. Even if the deaths were not deliberate and the officials were simply 78 79 80 81
WHTK 167.1453. HNYL 2832. Mu-jung Yen-feng, Li-wen t'ang-chi (Sung-ming-chia chi-hui ed.), 10.6b-7a. SHY, hsing-fa 546a-b. 369
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trying to elicit information, they could still be tried for deliberate homicide, with the resulting penalty reduced by three degrees.82 Those who assigned others to investigate or did not get their fellow officials to participate in the interrogation but simply conducted it themselves and did not take into account the evidence, were liable for a penalty of sixty blows of the heavy rod. 83 However, some officials felt that the rule was insufficiently exact, so in 1158 it was decreed that officials who from personal motives jailed the innocent, caused prisoners to die, beat them, broke the laws on making judgments, or illegally used the fetters or other judicial instruments so as to cause injury or worse all were to be held personally responsible. 84 Reports on abuses only occasionally tell why functionaries abused prisoners. Presumably it is partly a question of the kind of petty tyranny that happens in jails everywhere; it also often seems to have involved attempts to extort money from prisoners or their families. And sometimes it is said that enemies of those jailed paid the jailers to injure the prisoners. Deaths of prisoners Despite expressions of official concern, the problem of illness and death among jailed prisoners was a serious and continuing one. The higher authorities were understandably troubled about the abuses. Deaths among prisoners was one of the categories of deaths that automatically called for an inquest. Starting in 1034 the judicial intendant was supposed to investigate cases in which it was suspected that prisoners had died from mistreatment by jail personnel. The authorities seem to have been trying seriously to stop such abuses. They offered large rewards, one hundred strings of cash, to nonofficial informants who reported such abuses, or an additional full term in office equivalent (jen) to officials who did so. 85 At least after 1067, annual reports were to be compiled at year's end indicating the number who had died in jail. 86 From the Ch'ing-yuan Viao-fa shih-lei we learn: Officials should be dispatched to conduct inquests on all dying people who have no relatives of the ssu-ma degree or closer [i.e., relatives who were to do three months' mourning, the lowest group in the hierarchy of mourning grades] and on all dead prisoners. (Clerical personnel may be sent if the prisoners are slaves 82 83 84 85 86
SHT 29.478. SHT 29.474. HNYL 2973. HCP 114.16b; SHY, hsing-fa 6.55a. SS 14.267.
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and oral depositions have already been made.) In the cases of the deaths of prisoners and deaths from unnatural causes, a reinquest should be performed. When the inquest and the reinquest have been completed, the corpse may be buried. If relatives are known to live in other places, they should be informed. 87
The problem, however, continued. Early in his reign, Shen-tsung (r. 1068-85) complained about the number dying. He attributed this to corrupt jail personnel and to the lack of thorough investigations of such incidents. The emperor issued an order that if in the prefectural jails two prisoners sickened and died, or if in a prefecture with five or more districts three men died in a year, or if seven men died in the offices at the capital, the jail personnel were to be beaten sixty blows with the heavy rod. This was to be increased by one degree for each additional death, to a maximum of one hundred blows. The prison officials were responsible for investigating. If there were two such offenses, they themselves were to be tried for "breaking regulations" (wei-chih), a crime carrying a penalty equivalent to two years of penal servitude. 88 According to a report of 1093, before that time the local units did not have to report deaths of less than 5 percent of their prisoners. This practice was ended by decree. 89 It seems that thereafter the officials and clerks would be penalized if the death rate were 1 percent. However, the maximum penalty, one hundred blows of the heavy rod, was said to be insufficient to discipline the clerks. 90 The seriousness with which higher authorities viewed this continuing problem of high death rates among prisoners is suggested by rules such as the one promulgated in 1174 under which those functionaries to be punished could not commute their sentences by the surrender of their offices, nor could they benefit from amnesties. 91 Even so, such abuses and problems continued until the end of the dynasty, despite reported increases in the penalties used against the clerks.92 Because officials could be penalized for having too many deaths in jail, they were tempted to conceal them. Clerks would report prisoners as ill, and the districts would hide their deaths. 93 From early in the dynasty it was ordered that the officials conducting prison inquests must be from other offices.94 We know that later in the dynasty in the capital area, 87 88 89 90 91 92 93 94
TFSL 513. SS 201.5021; WHTK 167.1448; SHY, hsing-fa 6.s6a-b. SS 201.5023; WHTK 167.1451. Chang Kang, Hua-yang chi, i4.ia-2a. SHY, hsing-fa 6.70a; TFSL 74. SS 200.4997; SYTC 92.12b. The penalties inflicted were reportedly increased in 1195. Compare Chang Kang, Hua-yang chi, i4.ia-2a (1083-1166). HCP 76.10a. This order initially applied specifically to the prefectural Public Order Office (Ssu-li yuan) jails but presumably was followed elsewhere.
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Censorate officials were sent to conduct such inquests. 95 Like inquests in general, on prisoners presumably involved a physical examination of the corpse in the presence of the officials and the writing of an official report to be signed by those responsible. The death rates were sometimes frightful. From 1135 we have a report in which the worst prefecture is said to have had a death rate of 26 percent. 96 Among criminals accused of violent crimes, the death rate might have been even greater, perhaps because of abuse by jail functionaries. In 1139 a censor reported on a case of piracy in Lei Prefecture in Kuang-nan West Circuit for which seven commoners had been arrested. Five of them had died in jail. 97 In another incident from the early Southern Sung, thirty-four of forty-two men seized and accused of robbery died in jail. "The circuit intendants felt that the clerks had accepted bribes to practice coercion, imprisoning men who had been forced into joining the bandits, and causing them to die. They then altered the case reports to claim that these men had been among the principal bandits." As a result of the scandal caused by this case, a law was enacted under which prisoners who died before the final disposition of a case could not be counted as captured criminals for purposes of calculating rewards (thus giving jail functionaries an incentive to keep prisoners alive). 98 We do not have any complete reports on the numbers who died, but one document from the thirteenth century does give us some idea of both the number of prisoners handled by units on an annual basis and the number who might die. Because the figures were being used among other things to demonstrate how well jails could be run and to specify the ratios of deaths that would lead to penalizing the responsible officials, we cannot assume that the figures are typical, but they are illustrative (see Table 11.1). The higher authorities did try to keep a check on the number who died. In the late Northern Sung the official Mu-jung Yen-feng suggested a policy under which at the end of each year the intendants' offices were to receive a complete list of those who had been ill or died. They would then compare the records of the prefectures and districts under their jurisdiction, demoting the officials in those units with the highest death rates, promoting those with the lowest,99 and reporting the number of prisoners who died in their jurisdictions. 100 A similar proposal was 95 96 97 98 99 100
HCP 475.1b. SS 200.4993. SS I99-4993. HNYL 1630. SS 200.4992; see also Hsiieh Ying-ch'i, Sung-Yuan t'ung-chien, 105.3b. SS 201.5021; HNYL 1419; WHTK 167.1455.
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Table 11.1. Numbers of prisoners and of deaths from disease Date
Place
Number of prisoners
Deaths from disease
1135
Hsuan Hsiian Prefecture Prefecture Ch'u Prefecture Su-sung District Wu-i District Prefecture Lin-an Prefecture Chiang-yin Prefecture Yang Prefecture Prefecture Fu Prefecture Wu-p'ing District
355 618 7 72 1634 74 122 682 40
0 0 1 4 0 4 12 0
1136 1137
2
Source: Information from SHY, hsing-fa 6.65a-66a.
suggested in a memorial by Chang Kang (1083-1166), 101 and we know that at least from the 1130s the prefectures and districts were supposed to submit to the circuit monthly reports giving the names and the number of men held in their jails.
Security in jail As noted, the control of prisoners was made easier by keeping the more dangerous prisoners in fetters. Men guilty of capital crimes were to be held in fetters and manacles, though some categories of disability could excuse their use. When prisoners returned to their cells at night, these dangerous criminals would have their fetters chained to a support. Bells were attached to these chains, so that the prisoners' movements could be heard by the guards. Li Yuan-pi tells us more about the security and daily living conditions in such places when he suggests that privies should not be set up in the jail area because criminals could escape through them. He suggested simply providing buckets for the prisoners. 102 The district magistrate was advised to see that the inner and outer walls, doors, and windows were regularly and carefully inspected. For security reasons, paper, writing brushes, drinks, metal knives, or clublike objects were not allowed in the jails, nor were prisoners allowed to wear belts (perhaps to prevent suicide by hanging). 103 Such restric101 See Chang Kang, Hua-yang chi, n . i a - 2 a . Chang himself traced the general idea for such a system to the Han emperor Hsiian-ti. 102 TITC 2.9b. 103 SHT 29.472.
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tions continued in force throughout the dynasty. According to the rules found in the Ch'ing-yuan t'iao-fa shih-lei, prisoners were not allowed to have gold, knives, wine, paper, writing brushes, money, porcelains, or staffs with them in prison. 104 The porcelains and knives were presumably feared as potential arms, the paper and writing brushes as enabling communication with outside gang members, and the gold and money as materials to be used in bribing jail personnel. The authorities also worried about security issues involving jail personnel. Li Yuan-pi indicates that there was a policy of avoidance. If a prisoner were related to member of the a jail staff, he was to inform his superiors and would be excused from management. 105 The authorities were also concerned about the staff s becoming lax in performing their duties. These functionaries were not allowed to drink. And we are told that they were not allowed to use mosquito netting, the officials perhaps fearing that if the functionaries were too comfortable at night, they might fail to be on their guard. When the jails were closed at night, a single tablet was to be used, listing the names of those currently incarcerated. Each evening a report was to be turned in verifying that the prisoners had been secured in their cells. Overseeing this lockup was supposedly the personal responsibility of the local administrator. 106 Prisoners were supposed to be returned to their cells at three rounds after the beginning of the first watch (which started at 7 P.M.), with the cells being opened again at five rounds after the beginning of the fifth watch (about 6:30 A.M.). Functionaries who broke these rules regarding lockup could receive eighty blows of the heavy rod. 107 Jail staffing The staffing of these jails followed the pattern of other lower-level government services during the Sung. Staffed in the past by unpaid people levied from the local population, the jails gradually came to be staffed by long-term personnel paid either by the state or with money squeezed from those who needed their services. The case of T'ai Prefecture is illustrative. Early in the dynasty the prefectural jail had drafted households to provide members to serve as adjutants (chieh-chi) for two-year terms. During the reforms of the Hsi-ning period (1068-75) these men 104 105 106 107
TFSL 537. TITC 5.28b. TFSL 537. TFSL 537; WHTK 167.1454. In the winter, from the tenth month to the second month, the jails were opened at the third round after the fifth watch. I am presuming that the Hen in this passage refers to the five rounds that the watchmen were supposed to make during each two-hour watch period.
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were displaced by men from fourth-grade households (in the five-grade system, i.e., not ordinary peasants, but not the more wealthy, either) who were paid to serve one-year terms. During the anti-reform period that followed the death of Shen-tsung in 1085, the jails used "unpaid volunteers," probably long-term servicemen who squeezed a living out of their charges. This policy remained in force until the early years of the twelfth century when for a brief period, men, rotated in for tours of duty from other clerical posts, were paid "heavy salaries." When this salary system was stopped during the late Hsiian-ho period (1119-25), the system presumably returned most of the time to using "unpaid volunteers," though there is an order dated 1171 that capital jail functionaries be paid a total of ten strings per month plus six pecks (toub) of rice. 108 When these jail functionaries were paid by the state, the expenses must have been quite heavy. In the early Southern Sung the jail quota in T'ai Prefecture was seventy-three functionaries; at the time the gazetteer was written (1223) there were still seventy men employed. 109 If these jailers were paid approximately as well as were similar functionaries in the capital, their salaries would have totaled more than seven hundred strings per month, exclusive of payments in kind. These prefectural jail personnel were presumably divided among the several jails, usually three, in the prefecture, so there would have been about twenty-four functionaries per jail, which is close to the figures given for jails in Fu Prefecture in Fukien. 110 Some of these men served as regular guards for the prisoners. When numerous prisoners guilty of serious crimes were being held, the jail functionaries were not allowed to leave the jails. In case of emergency, they had to secure the permission of their superiors before leaving. According to the Ch'ing-yuan Viao-ja shih-lei, the rule was that if the responsible clerical personnel and jail functionaries did not stand guard at night, they were to be punished with eighty blows of the heavy rod. The clerical personnel were, however, permitted to stand guard by turns. If at night any men escaped or killed or injured others, the men off duty were not to be penalized. These guards were also responsible for seeing that the prisoners did not kill or injure themselves. If prisoners injured themselves, those responsible were liable for eighty blows of the heavy rod, a penalty that would be increased by two degrees (to one hundred blows) if any of these prisoners died as a result. 111 108 109 110 111
SHY, hsing-fa 6.62a-b; SS 200.4994. Ch'en Ch'i-ch'ing, Chia-ting ch'ih-ch'eng chih, pp. 7201 ff.; SHY, hsing-fa 6.62a-b. Liang K'o-chia, San-shan chih, pp. 7737, 7738. TFSL537.
375
Law and order in Sung China When the security of the jail seemed threatened by such problems as large numbers of prisoners, some jails could have special units of soldiers with noncommissioned officers acting as night guards in addition to the regular jail functionaries. There was also a general rule that when a jail held five or more men accused of banditry, men presumed to be violent and dangerous, a round-the-clock guard of soldiers was to be maintained. 112 According to an order of the early eleventh century, if there were in the capital numerous dangerous prisoners, the jails were to have fifteen guards under an overseer. 113 Except for the actual jail personnel and the dispatched guards, other people were not permitted to enter the jail area. 114
Length of time in jail The authorities were also concerned about the problem of prisoners being held for extended periods because of delays in the processing of cases. This flaw in the system is repeatedly discussed. One high official spoke in 1007 of one-hundred-day delays being common among cases under examination by officials in the capital. 115 Late in the century the emperor himself complained about the delays at the capital, noting that more than five hundred cases had accumulated that called for review but that had not yet been decided. 116 Sometimes the delays were deliberately created by jail functionaries, who tried to implicate large numbers of people in hopes of getting bribes. 117 This problem was exacerbated before 1033 because all men accused of crimes calling for registration had to have their cases memorialized for review and, while awaiting replies, were held in jail. After an official complaint, it was ordered that such cases be divided into serious and minor. 118 Presumably thereafter, some cases could be disposed of without such long delays. The state also tried in other ways to underscore the official recognition of the suffering of those held for long periods in jails and to alleviate that suffering. In the mid-1030s, for example, jail functionaries were forbidden to feast or entertain while there were many people held in their jails. 119 Such prohibitions served to emphasize the concern sup112 113 114 115 116 117 118 119
SHY, hsing-fa 6.51a, 53b- 54a. SHY, hsing-fa 6.53b~54a. Hu T'ai-ch'u, Chou-lien hsu-lun. HCP 65.16b. HCP 296.9b. Chang Kang, Hua-yang chi, 14.6b-7a. HCP 112.14b. HCP 115.15a.
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posedly felt by the authorities for those incarcerated. More importantly, the state set time limits for processing cases 120 and for forwarding reviews,121 which were designed to limit terms in jail. Despite these measures, however, the problem persisted. In the late 1070s, officials were disciplined for delaying in a case that had dragged on for a year without being settled. 122 An anecdote from the middle of the twelfth century tells of a woman held in jail for five years (during which there had been two major empirewide amnesties) without being released or having her case settled. 123 The "Treatise on Punishments" of the Sung History says that the situation was particularly serious under Litsung (r. 1224—64), 124 though clearly it had always been a problem. Investigating this situation was one of the major tasks of the circuit intendants. In the mid-twelfth century they supposedly submitted quarterly reports on the number and kinds of prisoners in the jails under their jurisdiction. 125 They were also to prepare an annual report giving the names and posts of those offices in the jurisdictions under their circuit in which there had been delayed judgments or complaints of judicial abuse. 126
Number of prisoners We also occasionally find reports that suggest something about the number of prisoners held. With its large population and numerous jails, the capital was home to the largest number of prisoners - early in the dynasty, they numbered at least in the hundreds. In the autumn of 1005, when the emperor examined the prisoner records {ch'iu-chang) for the capital, he found that there were over 200 people being held. 127 (These records were presumably similar to the prisoner rolls - ch'iu-pu128 - that the emperor examined in 1007 or to the jail statements -ju-chuang - that all jails in the capital were ordered to provide in 1077.) 129 Later in the dynasty this number rose dramatically. In 1084 Emperor Shentsung, disturbed to learn that the jails of the Court of Judicial Review and Kaifeng Prefecture held more than 1000 men, ordered a speedier 120 121 122 123 124 125 126 127 128 129
HCP 378.1a, 429.14a. HCP 2i9-3a-b. HCP 3o8.5a-b. HNYL 2808. Amnesties freed most prisoners in jails but probably affected an even larger number of men serving sentences of penal registration. SS 200.4996, 201.5015. HNYL 2475. TFSL81. HCP 61.nb. HCP 65.16b. HCP 270.3b.
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Law and order in Sung China 130
processing of cases, but another report seven years later again reported that i ooo were being held in the capital itself and its surrounding districts. 1 3 1 T h e situation in the early Southern Sung was similar. In 1135 it was reported that the capital prefecture held a total of 1634 prisoners. 1 3 2 In the outer prefectures the number of men being held at any given time was much lower. In 1003, after issuing an empirewide ordinary amnesty, when the emperor personally examined the lists of men held, he is said to have freed 4606 men (at a time when there were approximately 300 prefectures and the empire's population was probably between 35 million and 40 million). 1 3 3 Even if only a relatively small proportion of prisoners were freed, this still means that the number held was rather small. W e also have more specific information on some of the prefectures. In 1159 the judicial intendant of Fukien, inspecting Fu Prefecture, discovered and released 147 innocent people in the jail of the police inspector. 1 3 4 In 1135 all the officials in Hsiian Prefecture were awarded advancements because the judicial intendant had reported that during the previous year there had been 355 prisoners in the jail and not a single death from illness. 1 3 5 In 1135 Ch'ii Prefecture in Liang-che Circuit was reported to have held a total of 618 people. During the following year Chiang-yin Prefecture in Liang-che held a total of 74, and Yang Prefecture in Li-chou Circuit, a total of 122. 136 Of the areas about which we have information, Fu Prefecture was the outer prefecture with the largest number of prisoners. A figure for 1137 indicates that Fu Prefecture in Fukien had an annual total of 682 prisoners. If we assume that there were three jails in Fu Prefecture, each would have held about 230 prisoners during the year 1137. A rough calculation suggests that there would have been less than two dozen in each jail at any one time. T h e districts naturally held fewer prisoners than did the larger units. It was reported that during 1135 Wu-i District in Liang-che Circuit had held a total of seventy-two men, and Wu-p'ing District in Fukien had held some forty prisoners. 1 3 7 Perhaps the best we can say is that in the 130 HCP 349.6a.
131 HCP 459.1a. 132 SHY, hsing-fa 6.6 5 b-66a. 133 HCP 55.1b. The figure for the total population is only approximate. On Sung population statistics, see Hans Bielenstein, Chinese Historical Demography, A.D. 2-ig82 (Stockholm: Bulletin of the Museum of Far Eastern Antiquities, no. 59, 1987), pp. 46-78. 134 HNYL 3035. 135 HNYL 1498. 136 SHY, hsing-fa 6.65b-66a. 137 Ibid. Tai Chien-kuo uses these figures to try to calculate approximately how many
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Jails and jailers in the Sung
districts under ordinary circumstances, there seem to have been very few prisoners held at any given time, the number for a year being fewer than one hundred. In a prefecture, during one year, the prisoners might have numbered in the hundreds, but we must remember that the prisoners presumably would have been divided among at least three jails, and so the numbers per facility may have been rather like those in the single jail in most districts. The capital contained many more jails. It had two basically urban districts, each with a jail. There was also the prefectural government with three jails, and the several patroling inspectors' offices each with a jail. When added to the jails run by the armies, the Censorate, the Court of Judicial Review, and a number of other capital offices, these would bring the total of capital jails close to twenty, in either Kaifeng or Linan. Thus even one thousand prisoners would have averaged only about fifty per facility (though no doubt the distribution was far from even). This figure of one thousand prisoners is for men being held at a specific time. Even though these are only estimates, they do seem to indicate that jails in even the more important outer prefectures could be relatively small; perhaps some of the jails in the capital were larger.
Supervising jails The condition of the prisoners in the jails was also supposed to be monitored by the local officials (or in the capital by officials from the central judicial organs) through a regular system of frequent inspections. In 981 the central authorities ordered district officials to inspect the jail and its prisoners once every five days. They were to write a report on the number of prisoners held and released and submit this to the prefecture. They also kept a log, presumably listing the prisoners and their time of entrance and containing jail statements giving the crime and date of incarceration (yti chuang).138 The prefectural jails themselves were to have a separate log that would be inspected by the chief officials every few days. Every month a report was to be sent up to the Ministry of Justice. 139 In 984, because "conditions are again peaceful," the local jurisdictions were allowed to submit such jail statements every ten days. 140 We can get some idea of the nature of this process from Li prisoners might be expected to be in a jail at any one time. See Tai Chien-kuo, "Sung-tai," p. 90. 138 HCP 22.i6b-i8a. For the twelfth century, see also HNYL 2950. 139 HCP 270.3b (1070). 140 WHTK 166.1444 gives the date of this order as 982. It is given as 984 in WHTK 167.1453; SS 199.4969; and STCLC 741.
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Yuan-pi's early twelfth-century book of advice to district magistrates which suggests that "each section on local prisoners, which includes people released under local bond, should list [its prisoners] one by one and provide explanations. The executive secretaries are to verify all of the above." 141 Such reports dealt with ordinary prisoners. If officials or the wives of officials were being held, they were to be covered in separate 14-9
reports. These inspections by resident local officials were supplemented by visits from outside commissioners who came to examine the cases on the local docket, seeking to eliminate delays in sentencing. After Emperor T'ai-tsung in 985 remarked to his ministers that he was concerned about the condition of those being held in jails, he dispatched servitors to go to the various circuits to check on delays. 143 This is an early example of a practice that grew over time into a regular system of periodic inspections of prisoners and cases by the circuit intendants or their appointed agents. A report from the closing years of the eleventh century describes the prevailing policies for inspections by the circuit authorities: Concerning the stipulated systems for being merciful in punishing, in accord with the ordinance of the Yiian-feng period [1078—85], the judicial intendants' offices during the first fortnight of the fourth and the tenth months are to inspect [the jails] to see that the various prefectural chief officials have followed these systems and to report [on their findings].144 The circuit intendants interviewed prisoners, issued summary decisions in many cases, and in fact often freed prisoners. 145 This practice began in the Northern Sung but appears to have fallen into disuse late in that period, since Li Kuang (1078—1159) memorialized early in the Southern Sung asking that it be reestablished. Perhaps, as was the case with so many practices, it had lapsed during the troubles of the 1120s. 146 Reports indicate that it was in regular use during the later Southern Sung. 147 (Local officials who were holding people illegally sometimes evaded these inspections by temporarily moving such prisoners to other quarters during the intendants' visits.) 148 The Ch\ng-yuan tyiao-fa shih-lei gives a detailed description of these 141 142 143 144 145
TITC 1.31. SS 199.4992. HCP 26.3a. HCP 485.4b. See Brian E. McKnight, The Quality of Mercy: Amnesties and Traditional Chinese Justice (Honolulu: University of Hawaii Press, 1985), pp. 86—91. 146 See Li Kuang, Chuang-chien chi, I2.2ia-b. 147 Liu Tsai, Man-Vang wen-chi, SKCSCP ed., 23.27a; HNYL 2741. 148 HNYL 2741. This same charge is repeated early in the twelfth century; see SHY, hsing-fa 5.46a-b.
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tours. At that time, in addition to quarterly examinations, the judicial intendants at year's end were to tour their jurisdictions, checking on and releasing prisoners when appropriate. The code even specifies the number and types of their retinues, and a system of graded rewards for having saved men unjustly held. 149 The reports for these journeys even followed a particular format that included the number of prisoners, their crimes, and the names of the subunits where the intendant had reviewed and reversed cases. At the end it had a section in which the intendant could record the number of good clerks he had recommended. 150 In theory such a system should have kept higher authorities well informed of the current state of those in jails, but in practice, especially in the more distant areas, such duties were not carried out carefully.151 Empty-jails system From early in the dynasty, having empty jails was considered worthy of praise a n d reward. 1 5 2 According to the Collected Sung Documents: Whenever in the various prefectures the jails were empty, under the old regulations, decrees of commendation were to be issued. If the jails attached to the prefectural offices or to the Office of Public Order (Ssu-li yiian) were empty for three days or more, in all such places meditation halls were to be established. For the necessary daily provisions, official money was to be given out. 153 Meditation halls were Buddhist religious buildings used for meditation and ceremonies for the dead. T h e establishment of such a n institution honored both the locality a n d its officials. Although we d o not know the date of these " o l d regulations," we d o know that by 982 it was already an accepted practice for local officials to submit reports when their jails were empty, a n d from 992 we have a document that outlines regular procedures for reporting such empty jails, for verifying these claims by higher officials, a n d (apparently) for automatically granting rewards without requiring a special imperial decree. 1 5 4 This system was modified during the eleventh century a n d seems to have reached its final form by the end of the Northern Sung. By that time the judicial intendants were to submit monthly cumulated a n d verified reports on the claims of empty jails sent to them by the s u b 149 TFSL 86. 150 TFSL 87; HNYL 1664.
151 HCP 6.60a. 152 For more information on this system, see Brian E. McKnight, "A Sung Device for Encouraging Speedy Trial," Journal of the American Oriental Society 93 (1975): 483-85. 153 SHY, hsing-fa 4.85a. 154 SHY, hsing-fa 4.85a; HCP 23.13b; WHTK 166.1445.
381
Law and order in Sung China ordinate prefectures and districts. These claims were investigated by the Ministry of Justice and the Censorate in the capital. If approved, the reports were passed on to the Institute of History for possible inclusion in the state history. The Bureau of Academicians (Hsueh-shih yuan) would then issue an edict commending the responsible officials, who would also be given various rewards. 155 This system continued in operation during the Southern Sung. Some idea of how uncommon it was to have empty jails can be found in an essay written in 1259 by the late Southern Sung official and patriot Wen T'ien-hsiang, to commemorate the excellent record of a prefect of Chi Prefecture. Wen reports that according to the general memory of the older people of Chi Prefecture, the jails had been empty on only two occasions since the beginning of the Southern Sung in the late 1120s. And yet, says Wen, this present prefect has had empty jails in two separate months within only two years. "In the period of more than a century there were only those two former occasions. Now this gentleman, having held office for three years, has already been able to match that record." 156 Such a system invited attempts to abuse and misuse it. Local authorities are said to have moved prisoners around among a group of jails, so that inspectors always found empty jails when they visited. Local authorities are also accused of having hurried reviews and executions so that their jails would be empty. 157 Such problems were merely one more example of the endless struggle between the central authorities' seeking to concentrate their power and the local authorities' seeking to have more control over the affairs in their jurisdiction.
Conclusion The Sung system of jails and jailers was the result of the interplay of complex factors. Fiscal considerations, if not ideology, prevented the use of imprisonment for extended periods as a major penalty. The need for security, however, combined with the practical difficulties of investigations to spawn a system in which substantial numbers of people ended up in jails, whether as accused or convicted criminals or as witnesses. The need to hold and keep secure relatively large numbers of prisoners, at a bearable cost, dictated some aspects of physical conditions of the jail 155 SHY, hsing-fa 4.85b, 86a, 87b, gob-gia. The system continued to the end of the dynasty, despite the order of 1113 that the system be abolished, at least in the capital; SS 21.392; and see also HNYL 2578. 156 Wen T'ien-hsiang, Wen-shan hsien-sheng ch'uan-chi, 9.292-93. 157 HCP 72.16a.
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system. However, we shall miss one of the keys to understanding Sung justice if we fail to see the impact of ideology and especially of the deepseated belief in the capacity of at least most people to control their behavior and renew themselves, to cease being deviant and to become law-abiding, productive participants in the larger society. Of course, the practice never lived up to ideals, except perhaps temporarily under the guidance of especially concerned and effective officials. There is also no doubt that the low-level workers in the system, like the low-level workers in our penal system today, being exposed daily to the realities of the jail system and their clientele, were under pressure to become disillusioned and callous. The concern for security promoted the building of strong walls, systems of guards, the use of manacles and fetters, and all sorts of physical systems of restraint and control; the concern for the lives of people and their possible later reintegration into the outer society promoted policies for provisioning jails, offering health care, and maintaining hygiene. The interaction of these concerns was complicated by the fiscal problems of paying for such care and the tendency among many jail personnel and officials to view the prisoners as evildoers and the characters of those men attracted to service as jail functionaries. The bitterness of life in jail should not be minimized. No doubt it was usually frightening, dirty, and shameful, as well as extremely dangerous. Death, disease, and degradation were common currency. Life in a Sung jail was probably almost inevitably a brutalizing experience. The Southern Sung writer Chen Te-hsiu describes it: Sometimes the prisoners' food is insufficient, and their clothing inadequate so that hunger and cold beset them. Sometimes the fetters are excessively heavy and are not washed clean so that their necks become inflamed and abscessed. Sometimes their cells' roofs are leaky and go unrepaired, so that the wind and rain penetrate them. Sometimes the beds in the jails are crowded together so that in no time they suffer from lice. Sometimes the privies are inside the cells and have no covers, so that the stench is dreadful. When they fall ill because the prisoners sometimes do not receive early medical treatment, they die. Sometimes even though they are guilty of minor crimes, the prisoners are housed together with men guilty of capital crimes. These kinds of problems are simply innumerable.158 However, even if this is a reasonably accurate description, when compared with most other systems of imprisonment in traditional (and many modern) societies, the Sung system and the Chinese premodern systems generally had relatively good records. There is a tendency to belittle the impact of state rules in traditional China, to assume that many of them 158 Chen Te-hsiu, Hsi-shan cheng-hsiin, p. 7.
383
Law and order in Sung China were ignored if inconvenient for administrators. Yet when we read contemporary records by outside observers regarding the punctiliousness of Chinese bureaucrats, even in periods thought of as having relatively weak central control, the striking thing is the degree to which the rules were in fact followed carefully. I think that we must assume that the rules set down by the central authorities set a top standard for the treatment of prisoners and that in practice the jail policies fell short of the ideal but did not ignore it entirely. The key to this was the very widely shared conviction among the members of the Sung elite who participated in administration that prisoners were people, most of whom could remake themselves, people who could be salvaged to begin again in some fashion as integral members of society. In his essay on prison life in eighteenth-century China, Derk Bodde was struck by the unflagging faith of the prisoner Fang Pao in the basic goodness and worth of humankind. We should not be surprised at this attitude, which is closely interwoven with the fundamental tenets of the worldview of most members of the elite in late imperial China. Even in revolutionary China, this basic conviction underlies the avowed goal of punishment. In a culture in which threatening behavior is seen as willful and the elite sees only one correct path, the resulting action by the state authorities may be brutal, but it may also include earnest attempts to woo back the deviant through a process of education. As the warden of a contemporary prison told reporter Robert Elegant, "We take great pains to educate our prisoners - not only so they'll learn their errors, but also so they'll learn trades. Above all we treat them as human beings." And as for hard cases, "it may take a long time, years even, but almost everyone finally reforms." 159 The reality of Chinese jails has often been far more brutal than suggested by this self-serving assessment, but at their best this is what Chinese jails might be. 159 Robert Elegant, "Why the Chinese Stop Crime Better Than We Do," Parade, Sunday, October 30, 1988, pp. 6—7, quoting Han Shizhang, vice-warden of the Beijing Municipal Prison.
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12 Penal registration
Introduction The Sung government, like governments of all dynasties during the Chinese empire, frequently used deprivation of liberty plus forced labor as a penalty. The Sung punishment of forced labor resembled in many ways the forced labor the systems used before (and after) the Sung, but during the Sung these inherited practices were modified to create a distinctive pattern. During the Sung most laboring convicts were registered in special units of the army stationed alongside regular army units. Some of these regular units might be actual fighting troops, like the imperial armies (chin-chun). Many others were, like the convict units, actually labor battalions, the so-called provincial armies (hsiang-chun). Men serving in the nonconvict labor units of the provincial armies received distinctly better treatment than did the men in the convict units. The convicts were encouraged to behave well by the knowledge that they would have opportunities to move up into these better-treated units after completing their term of convict labor or after one of the frequent Sung acts of amnesty. They were encouraged by the constant presence of examples of how their lot might be improved and yet were kept under military discipline and control by the presence of other army men, who always outnumbered those in the convict units. Liberty penalties in early China The earliest Chinese sources describing punishments emphasize corporal punishments, making the body suffer; sources from later periods mention penalties based on the restrictions on liberty. The "Punishments of Lu" section of the Book of Historical Documents, a late Chou document that purports to be from the early Chou, speaks not only of the five corporal 385
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punishments but also of the Five Exiles.1 Exile is profoundly different from these corporal punishments. It does not disfigure, nor does it overtly distinguish the sufferer as an outcast from normal society. It does mean that the sufferer is not free to return home or to travel. Exile is not immediate or violent, but it endures. It stretches out the time of the suffering. To the convict every new day is a new demonstration of his powerlessness. The exile is humiliated in his relationship to the power of the ruler but is not necessarily shamed before ordinary people. Because he has not been disfigured, reintegration into the ranks of those fully free can be a matter of moments. Long before the "Punishments of Lu" was written, slaves and prisoners were used as laborers; indeed, forced labor was as old as the Shang. 2 But labor as a punishment for having committed crimes, as opposed to having been captured in warfare, does not seem to have been widely used at the time the first sections of the Book of Historical Documents were written. Perhaps there was some use of criminals as laborers, but exile - the penalty most closely linked to penal servitude among the Five Great Inflictions mentioned in early Chou sources - may in practice have been a penalty for the elite that did not entail labor. There does not seem to be any reliable evidence in the early materials that the men who were mutilated as punishment were used in large numbers as laborers, but by the late Eastern Chou, rulers were already exploiting the labor power of convicts. This was a momentous transformation. Why should the states of that time have shifted from primarily relying on mutilating punishments to primarily relying on penal servitude? In explaining the change from the spectacular (and corporal) punishments of early modern Europe to the systems of punishments now in use, Michel Foucault speaks of a change from punishment as a symbol of the sovereign's vengeance to punishment as an act of social defense by the dominant class. 3 But this can hardly explain the comparable Chinese phenomenon. The very earliest Chinese sources to comment at length on punishments stress the merciful penchant of the ruler, his hesitation to inflict punishments, his search for the circumstance that mitigates, the condition that explains. Indeed, the early tradition blames the common use of the mutilating penalties on a foreign tribe, a group beyond the bounds of civilized behavior. Furthermore, the transformation of penalties - their metamorphosis into forms of state-supervised labor - is 1 For the dating of the "Punishments of Lu," see H. G. Creel, The Origins of Statecraft in China. 2 See D. N. Keightley, "Public Work in Ancient China: A Study of Forced Labor in the Shang" (Ph.D. diss., Columbia University, 1969). 3 Michel Foucault, Surveiller et punir: Naissance de la prison (Paris: Gallimard, 1975).
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coincidental with the growth of sovereign power, with the emergence both in theory and in practice - of autocratic rule. In Ch'in, the state which has stood for two millennia as the symbol, the quintessence, of despotic institutions, the use of penal labor as the primary penalty appears before the unification of China in 221 B.C. The very names of the types of penalties are suggestive. Those sentenced to the heaviest penalty were called "wall builders" if men or "grain pounders" if women. The next most serious offenders were employed as gatherers of "firewood for the spirits" (if men) or as sifters of "white rice" (if women). Less serious yet was condemnation to service as a bond servant. 4 Why this change? The answer lies in both the aim of the punishment and the organizational technology of the time. The aim of the penalties was to prevent as far as possible further violations, to give criminals an opportunity and incentives to reform, to deter others by example, and to do all of these at a minimal cost to the state. Mutilating penalties might deter and might be relatively inexpensive, and some would certainly make further violations more difficult for the culprit, but they would hardly be conducive to reformation. Reform through labor not only provided an opportunity for repentance; it also, by promising the convict eventual redemption and reintegration into the general community, offered incentives for good behavior. The penalties of earlier times, with their emphasis on physical (and usually highly visible) mutilation, had among their effects the permanent exclusion of the criminal from ordinary life. To have one's feet or nose cut off was deeply shameful as well as disabling. Even a person who wanted to return to normal life could not do so. In the Sun Tzu book we are told that the ruler of Yen made a cruel mistake in his attack on Ch'i, because he cut the noses off his prisoners. Knowing this, "the men of Gh'i were enraged and conducted a desperate defence." 5 In the biography of Suntzu in the Historical Records, Ssu-ma Ch'ien wrote that when the ruler of Ch'i wanted to make the great strategist Sun Pin (who had been mutilated as punishment) the commander of his armies, Sun Pin refused. It would not be fitting, he said, for a man so mutilated to hold such a position. Mutilating punishments were designed to shame the criminal and to outcast him from society.6 Mutilating punishments had another purpose in a society that was loosely spread across a largely 4 A. F. P. Hulsewe, Remnants of Ch'in Law (Leiden: Brill, 1985), p. 14. 5 Samuel B. Griffith, Sun Tzu: The Art of War (Oxford: Oxford University Press, 1971), p. 756 For the story of Sun Pin, see Ssu-ma Ch'ien, Shih-chi (Beijing: Chung-hua shu-chu, I959)> 65.2163.
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Law and order in Sung China empty landscape: They were permanent and relatively inexpensive. The technology - fiscal, physical, and political - for punishing large numbers of men through long-term deprivation of freedom did not exist. One way to establish permanent control over a man was to deprive him of the means of free action, physically by amputating his feet or socially by tattooing him or cutting off his nose. The increasingly widespread use of labor penalties coincides with the growth of the state's ability to exploit large numbers of laborers for extended periods of time. In the Ch'in these labor penalties were accompanied by mutilating penalties as supplementary punishments, but thereafter mutilating penalties become less common. The wider use of labor penalties also coincides with a new military technology that made large quantities of labor a valuable asset, and a political ethos that saw men as useful tools. How stupid to blunt a useful tool deliberately. How much more sensible to make use of that tool. Reform through labor, to use the jargon of our own age, was cost effective. The exact form of the penalty was determined in part by the influence of past examples, by some aspects of technology (particularly weapons, transportation, and communications technologies, which affected the cost and the security level of the penalty), by the labor needs of the authorities, by the costs associated with the use of the labor involved, and by the need to maintain security. Technologies and economies determined; ideology explained. The earlier condition of society and economy may have encouraged the use of mutilating penalties, but their use always ran counter to some of the deep-seated axioms of political understanding. If the ruler was indeed the parent of the people and was responsible to Heaven for their welfare, how could he bear to mutilate his children? If criminal behavior resulted because these children had not been properly raised and cared for, then was it not an unfortunate reflection on the ruler if he used such disfigurements, which would remain permanent reminders of his lack of success? Furthermore, one of the sovereign's attributes was his capacity to forgive, to cleanse the outcast of his stigma, and to take him back into the social fold. But if the outcast were permanently disfigured, how could he be so reintegrated? The answer was simple. The outcast could be temporarily set apart, temporarily disfigured. But the possibility would remain for his reincorporation into normal society. The typical criminal — young, male, and having a short time horizon so that he tended to discount heavily both future rewards and future punishments - could be exploited through a system that controlled his behavior without permanently damaging his economic worth. With these reforms the rulers could at the same time gain a large and 388
Penal registration useful labor force, using policies that temporarily set these laborers apart from normal people and yet reduced their temptation to resist discipline by holding out the possibility, indeed the probability, of a normal future. Thus, in the Ch'in (and in some late dynasties), all convicts had their hair and beards shaved off. Given traditional Chinese beliefs about the body, these were mutilations, but not permanent ones. Convicts wore distinctive clothing and might be fettered, both temporary and quickly reversible disfigurements. The Ch'in seems to have been a transitional period between a greater reliance on mutilations as penalties and a system in which the labor value of convicts dictated the wisdom of keeping them whole. In addition to their distinctive clothing and shaved heads, Ch'in convicts might be tattooed, have their noses cut off, or have one or both feet amputated. 7 Under the early Han, some mutilations were still practiced, but the Emperor Wen-ti (r. 179-157) transformed the penalty system by replacing the cutting off of the nose and feet with beatings and the wearing of foot irons. Castration continued to be used as a rare punishment under the Han but seems not to have been thought of as belonging in the same class as the other mutilations. 8 Knowing the usefulness of convict labor, the authorities avoided punishments that might reduce its value. Being masterful politicians they naturally attributed the reforms to the benevolence of the emperor. Loss of liberty continued to be the mainstay of traditional Chinese penal systems after the Han; indeed, the system that was to be enshrined in the influential T'ang codes evolved from these Han practices. The Han system was described by A. F. P. Hulsewe: Hard labor in various forms was the principal punishment during the Han dynasty.. . . During the Han dynasty there existed the punishment of hard labor in the following series of gravity: ch'eng-tan (if the ancient explanations are correct: "building walls or fortifications and standing guard from early dawn") with in addition: having the head shaved, wearing an iron collar, undergoing the bastinado, and wearing legirons; the duration being five years, the bastinado varying between 500 and 300 strokes (as from 167 B.C.) or 300 and 200 strokes (as from 144 B.C.).... The iron collar and the shaven head were the main characteristics of this punishment.. . . Below the group of shaved and collared ch'eng-tan there is a group of hard labor punishments . . . involving shaving off the beard.. . . The ch'eng-tan served for four years. The three-year punishment was called kuei-hsin, "(collecting) firewood for (the sacrifices to) the spirits.". . . The two-year punishment was called ssu-k'ou, robber-guard. The one-year punishment was called . . ."penal labor in garrisoning." The general term for convict, 7 Hulsewe, Remnants of Ch'in Law, p. 15. 8 Hulsewe, Remnants of Han Law, pp. 127-28.
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specifically hard-labour convict, is Vu. [Note: This term was later used to mean penal servitude.] 9
Penalties of forced labor continued to be common under the states that ruled in China after the collapse of the Han empire. As under the Han, these penalties were differentiated in part according to the length of the labor demanded by the state and also might call for shaving the beard, wearing fetters, and receiving a preliminary beating. 10 The T'ang dynasty (618-907) inherited such a system from the Sui (581-618) and passed it on in outline to the Five Dynasties. One characteristic of some of these emerging systems was the division of levels of penalties according to the distance to which the convict was sent. Reflecting on this trait, Sung commentators assume incorrectly that the use of different distances originated because men found it a greater hardship to be farther away from their home locations. In fact, the use of distances was connected with the traditional Chinese practice of vendetta. As the bloody and honor-bound society of early Chou times evolved into the later imperial order, the tradition of the vendetta was rationalized and codified, so that by Han times the duty to avenge wrongs done to one's relatives or sworn master reached to only a certain distance. If the enemy lived beyond that distance, the aggrieved party was not honor bound to seek revenge. Thus, in setting distances, the codifiers were seeking to reduce the frequency with which private vengeance would be sought. Men of the T'ang and Sung maintained the old form for new reasons, without understanding why it had originally been created.
Penal registration in the Sung The Sung was simply following common practice when it extensively used penal labor and restrictions on liberty. The dynasty retained in name the T'ang punishments of penal servitude and exile, but it used in practice a complicated system of penal registration that could grade the punishment in a variety of ways, by assigning types or lengths of labor, providing differing amounts of support to convicts, adding supplementary punishments, and registering convicts in different kinds of places. The penalty used in the Sung - which was said to have been developed under the Later Chin during the T'ien-fu reign period (936944) - called for penal registration in the armies. An official who traced 9 Ibid., pp. 128-30. 10 For example, consider the punishments under the code of the Liang dynasty (502—56); see Etienne Balazs, Le Traite juridique du "Souei-ckou" (Leiden: Brill, 1954), p. 37.
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the history of the penalty indicated that the Sung added a beating to this inherited penalty. 11 This penalty, which usually included labor, was in fact a carefully graduated punishment combining features of penal servitude, the old penalties of exile, and a beating. The beating served as both a deterrent and an act of vengeance. The labor was important to the state's economy. The exile removed the convict from his old, possibly criminal, social companions; it took him from a setting in which he might be the agent of or the victim of vengeance and, by removing him from his home, penalized him emotionally. In the words of an early thirteenthcentury official, "In our state we know that men do not want to be separated from their homes. Therefore we have the penalties of the various forms of penal registration." 12 There is some indication that men so punished, like convicts in earlier times, may also have suffered the temporary disfigurement of having their hair cut off. Because the men subjected to this penalty were grouped together in special provincial army units, which were physically located near other army units, the convicts were under the more or less watchful eye of the military. Perhaps more importantly, because better-paid service in the armies was one of the possibilities held out to those who behaved well, this constant exposure to the better conditions of others fitted well with the probable general character of the convicts. The short time horizon of the typical criminal could benefit from the daily exposure to the benefits of good behavior. The Southern Sung official Hsiieh Chi-hsiian compared this penalty with the T'ang penalty of exile with added labor: The Former Kings established the laws on penal servitude and exile in order to control evil and to avoid executing people. They entered convicts' names on the military registers as a means whereby to control the violent nature of the criminals and restricted their manner of living in order to make their hearts obedient. These penalties serve as warnings to people to draw them to good behavior and keep them from evil. . . . The Emperor Shih-tsung of the Later Chou (r. 954-60) gathered together the unruly and desperate men of the empire to form a brigade, controlling them through the use of military law. This was an effective measure. . . . Military law restrains their violent natures. Army labor makes their hearts obedient. If you follow this pattern, then you will move them toward good behavior and guide their merit, and they will not again cause disorders among the people.1^
11 WHTK 168.1461. 12 WHTK 168.1462. 13 Hsiieh Chi-hsiian, Lang-yu chi, 16.23a-24a.
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This penalty was used for many sorts of crimes, including those whose nominal punishment was penal servitude, exile, lesser penalties such as beating made heavier by special imperial order, and (quite commonly) nominal death penalties in which the convicted person was spared by special imperial order. Most Sung officials discussing this penalty thought of it as especially connected with the crime of banditry in which the circumstances seemed to justify reducing the penalty from death. 14 In the sources now available to us, banditry — that is, organized robbery with violence — is by far the most frequently mentioned crime, but registration in the armies could also be used for many other sorts of crimes, such as recidivism by thieves, arson, some homicides, rape, and witchcraft.15 If punishments were to achieve some of their goals, especially deterrence and retribution, they had to be carefully adjusted to fit the offense. Punishments were messages to potential wrongdoers, to the people wronged and those around them, to the spirits of the dead, and, indeed, to the complex interacting natural world within which human actions occurred. Improper messages could cause all sorts of difficulties, so the necessity of adjusting punishments to fit the crime was a constant theme in traditional Chinese thinking about penalties. The penalty of penal registration was well suited to this purpose. The heaviness of penal registration could be adjusted to fit the circumstances of the crime, varying from a form of (nominally) lifetime exile at extremely unpleasant places where the convicts, after being beaten on the back and tattooed on the face, were permanently assigned to do heavy labor, to what appear to be forms of house arrest at varying locations away from the convict's home. The heaviness of the penalty could also be adjusted by changing the location of registration, the type of labor demanded and its length, the physical facilities and support given the convicts, the strictness of supervisory control, and the use of ancillary penalties. The determination of many of these was primarily a function of the attempt to make the penalty fit the crime, but they were also affected by the state's labor needs and desire to maintain security. Treatment and classification of those penally registered The physical treatment of the convicts was used to distinguish groups. Different amounts of food and clothing might be provided, with the better-treated groups receiving dependent allowances. In this case those 14 For some of the rules governing this system, as preserved in the Ch'ing-yiian Viao-fa shih-lei, see especially p. 502. 15 See the materials in SHY, hsing-fa 4, passim.
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who were being punished more severely might actually receive better treatment than those supposedly receiving lighter sentences. A decree in the second month of 1009 indicates that before that time those convicts who had been tattooed had received regular remuneration in cloth and grain. But those without tattoos had been getting only a prisoner's daily rations, and so their dependents had been suffering grievously. The emperor ordered that all men in the army's convict labor units be remunerated equally. 16 However, this kind of disparity continued in some cases. Those people who were sentenced to the Sung equivalent of house arrest never seem to have received government support payments. The Sung government set rules for dividing men liable for penal registration into categories that were based on the seriousness of their crimes. From at least the early 1070s, there were four such grades. 17 Rules from the Yiian-feng period (1078-85) also divided convicts into four grades, in descending order of seriousness, from those who were "not to be transferred" (to more desirable locations, presumably after amnesties had been issued that would benefit other convicts), to those who were "not to be freed," to those who "might be transferred," and, least serious of all, those who "might be freed." A few decades later, during the Cheng-ho period (1111 —17) four different categories were used: those with "serious circumstances," "relatively serious circumstances," "relatively light circumstances," and "light circumstances." As described by an official in the late twelfth century, according to this schema a man who was categorized as someone with "serious circumstances" was covered by the rule on "not being allowed to be transferred or released." Men classed as "relatively serious" were to be tattooed only on the temple (rather than the face) and placed in the category of those "to be penally registered for ten years." The treatment of those classified under "relatively light circumstances" was governed by the regulation (ko) for those spared tattooing on the face and allowed to transfer their place of registration or to return to their homes. Those classified as having "light circumstances" fell under the rules on "resident labor" (chii-i). They had separately fixed terms of labor and could be released after completing this term. 18 In the 1180s an official indicated that there was a schema using fourteen categories. He suggested a somewhat simpler version, based in principle on a suggestion by the great eleventh-century statesman Chang Fang-p'ing. According to his scheme (which docs not appear to have been adopted) there would have been eleven categories. 16 HCP 73.6a. 17 HCP 247.23a. 18 WHTK 168.1461. 393
Law and order in Sung China 1. Those never to be freed to return. 2. Those who must labor for their whole lives beyond the sea. (This probably referred originally to registration on Sramana Island off the north coast of Shantung, but in the Southern Sung, when Shantung was not under Sung control, it presumably referred to lifetime registration in Kuang-nan, on Hainan Island, or the prefectures on the coast opposite to Hainan.) 3. Those who must labor for eight years in Kuang-nan's distant evil places. 4. Those who must labor for seven years at 3000 or 2500 /f.d (From the criminal's home, or in the case of a soldier, from his permanent base camp.) 5. Those who must labor for six years at 2000 or 1500 li.d 6. Those who must labor for five years at 1500 li.d 7. Those who must labor for four years, who have been specifically ordered to be registered in neighboring prefectures. 8. Those who must labor for three years in their own prefecture's base citadel commands. 9. Those who must labor for two years and are not tattooed on the face. 10. Those who labor for one year who are not tattooed on the face. 11. Those who must labor at an appropriate place and who, even if they repeatedly meet with amnesties, are not to be freed.19
It is not clear whether any version of this scheme was adopted at this time, but it can serve as an example of the kinds of principles used in differentiating the degrees of the penal registration system. 20
Role of the army In its Sung incarnation the penalty of penal registration was in most cases being enrolled on the registers of certain units of the provincial armies (hsiang-ping), being transferred a fixed distance from the place of conviction, being forced to provide labor for a fixed term, having to live in guarded barracks, and possibly being tattooed. 21 The Sung army was composed of four types of soldiers - the imperial armies (chin-chun), the provincial armies (hsiang-chun), the foreign auxiliaries (fan-chun), and the militia (min-chun). The smallest major unit into which these soldiers were divided was the command. The command (chih-hui) was the building block of the Sung armies, and the unit most important for our purposes. According to Wang Tseng-yii, the commands of the provincial armies were supposed to average five hundred men. 22 19 WHTK 168.1461. 20 SS 201.5020. 21 On the provincial armies of the Northern Sung, see Chiba Hiroshi, "Sodai no sho-gun" (The provincial armies of the Sung dynasty), Toho daigaku tanki daigakubu 2 (1982-83): 1-24. 22 See Wang Tseng-yii, Sung-ch'ao ping-shih ch'u-t'an (An initial investigation of the Sung military system) (Beijing: Chung-hua shu-chu, 1983), p. 30.
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Most penal registration sentences called for registration in either the prison citadel (yu-ch'eng) commands or in the base citadel (pen-ch'eng) commands, a term that seems to refer to all provincial army commands other than the prison citadel commands. 23 The rule preserved in the Ch'ing-yuan t'iao-fa shih-lei explains: "Whenever it says 'register' but the facial tattoo does not specify the name of the army of registration, the men should be registered in a prison citadel command. When it says base citadel, this refers to the various army encampments at which various sorts of men are stationed." 24 As the official Sun Shih said in 1015, "The Court considers registration in base citadel commands (pench'eng) to be the light penalty, and registration in the prison citadel commands (yu-ch'eng) the heavy penalty." 25 These provincial armies, however, were not simply composed of men being punished for criminal offenses. Men were also inducted into the provincial armies in hard times. These armies thus served as a combination of welfare institution and a labor pool. On rare occasions the provincial troops might bear arms, but they were primarily laborers. In the words of the thirteenth-century gazetteer of Shao-hsing Prefecture, "Provincial soldiers provide labor and that's all." 26 The state thus might act as an employer of last resort during difficult times, providing some sort of minimal support in return for largely unskilled labor. Such service may also have provided a haven for foreigners without Chinese ties or sources of support. 27 There were a bewildering variety of provincial army units. The Sung History says that there were some 223 different unit titles. Their members worked in monopoly sales systems, transportation, the postal service, roadwork, bridge building, horse herding, levee work, dike guarding, and a host of other tasks. 28 From the late Northern Sung such men were assigned in substantial numbers to tasks associated with agriculture, and in the Southern Sung many were assigned directly to military agricultural colonies. 29 It appears that many men who had initially entered the provincial armies as convicts remained voluntarily after their sentences were completed, because the armies provided them with a livelihood. 23 HCP 256.2b. Men serving in the Chung-ch'ing commands were also doing penal labor. Some were tattooed and some were not (HCP 73.6a). For a good brief description of this system, see Saeki Tomi, "Sodai ni okeru ro-jo gun ru oite" (The establishment and transition of the ex-convict corps in Sung China), in Kinugawa Tsuyoshi, Yin Tzu-chien Hakase so-shi kenkegd rouso, pp. 267-92. 24 TFSL 520. 25 HCP 85.9a. 26 Shih Su, Chia-t'ai k'uai-chi chih, p. 6214. 27 See SS 189.4641. 28 SS 189.4640. 29 Chiba, "Sodai no sho-gun," p. 19.
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It is impossible to estimate the percentage of the men in these provincial army units who entered initially as convicts. T h e prison citadel commands themselves were in most instances (though not always) composed wholly of convicts, but they represented only a small fraction of the total number of provincial army troops in a given jurisdiction. T h e men in other units seem to have been of mixed origins, though most of them may have begun as men serving in penal registration. Like most of the other units included in these provincial armies, the convict units were forced to provide labor. T h e men serving in them lived in their own camps, though these might be adjacent to other provincial army camps. 3 0 Although the provincial army units were not ordinarily used in combat, men from them might be transferred to combat units, or men guilty of crimes that ordinarily would call for registration in the provincial armies might be ordered to be inducted directly into the imperial armies, if they were young, strong, and talented. A typical order of this sort, dated 1034, specified: Men from the areas in Huai-nan that have suffered from natural disasters, who have turned to banditry but have not yet killed anyone, if they turn themselves in and confess within two months, will be forgiven their crimes. Those who are young and able-bodied should be tattooed and registered in the base citadel [commands of the provincial armies, which were being used here as a form of welfare, as the men had already been forgiven their crimes]. If they have military talents, send them to the capital to be registered in the imperial armies/ 1 This policy was especially favored in times of military crisis. An approved memorial of 1040, at the beginning of the wars against the Hsi-hsia state, asked that able-bodied bandits from a number of circuits be formed into commands of the regular army, given military training, and, when there were disorders, sent forward to the front ranks, where they could "use their lives to gain merit." 3 2 T h e Sung gazetteers indicate that the men penally registered in prison citadel commands formed only a fraction of the total of provincial troops in any given location. Table 12.1 indicates the relative proportions of different sorts of troops. Convicts were greatly outnumbered by other sorts of troops, including regular imperial army and other troops. 3 3 Hui Prefecture was probably 30 Shih Neng-chih, Hsien-ch'un p'i-ling chih, p. 3533. See also Gh'en Gh'i-ch'ing, Chia-ting
ch'ih-ch'eng chih, p. 7205; Ch'en Kung-liang, Yen-chou t'u-ching, 1.23. 31 HCP 115.1a. See also another example from 1040, in which the order specified that bandits registered in the prison citadels or other army units, if under forty years of age and strong, be put in the imperial armies (HCP 127.5b, 15b). 32 SHY, hsing-fa 4.19b-20a. 33 Chiba feels that the number of provincial troops was greatly cut during the reign of Hui-tsung, with hired laborers being used as substitutes, but the evidence presented is
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Table 12.1. Sample figures for prison citadel troops and other military units (number and percentage)
Date
Prefecture
1139-40° 1170* 1175C
Yen
1223*" 1259" 1265-74^ 120H
Prison citadels
Other provincial
Hui
49 824 150
11% 9% 7%
871 8793 450
T'ai Ming Lin-an Hu
218 52 824 194
9% 4% 10% 16%
2200 91% 1200 96% 7000 90% 977 84%
Lin-an
89% 91% 22%
Imperial and local armies Unknown Unknown 977 and 500 47% and 24% Unknown Unknown Unknown
"Ch'en Kungliang, Yen-chou Vu-ching, p. 6932. This prefecture had an original quota of two hundred prison citadel soldiers. The information in this table comes from gazetteers describing conditions in Chekiang. It is possible, though I think it unlikely, that conditions elsewhere differed significantly. *Chou Ts'ung, Ch'ien-tao Lin-an chih, SYTFCTS ed., 2.34. There was one prison citadel command out of a total of twenty-six provincial army commands in the city. c Lo Wiian, Ch'un-hsi hsin-an chih 1.22a. It is possible that the proportion was larger in Chiang-nan Prefecture, where two of the five provincial army units were convict units, but we have no figures for the number of men involved (Chou Ying-ho, Ching-fing Chien-k'ang chih, p. 1057). ""Cheng Yao, Ching-ting Yen-chou hsii-chih, p. 7025.
T o Chiin, Pao-ch'ing Ssu-ming chih, p. 5154. These figures for Ming Prefecture overstate the number of convicts in this area. Many of the men in the "convict" units were in fact army retirees. This may have been a common practice elsewhere, but we have no evidence. ^Ch'ien YCieh-yu, Hsien-ch'un Lin-an chih, p. 4403. Since the figure for the number of men in prison citadel commands is identical with the figure for 1170, it is possible that the compilers simply copied the figure. In 1265-74 there was still only one prison citadel command out of a total of eighteen provincial army commands in the prefecture. ^T'an Wiieh, Chia-t'ai wu-hsing chih, p. 6776.
typical. There the 900 provincial troops (of which only 150 were in the prison citadel command), were outnumbered by the 977 imperial army soldiers and the 500 fort soldiers. This situation reflected government policy: The regular army troops might serve as role models for convicts; they certainly served as their guards to prevent further abuses. 34 sufficient only to show that there were such reductions in certain limited areas (see Chiba, "Sodai no sho-gun," pp. 21-22). 34 SHY, hsing-fa 4.380-393.
397
Law and order in Sung China Prison citadel commands were structured like other provincial army units. For example, when the No. 13 Prison Citadel Command had 218 men, it also had 10 commanders (chiang), 38 adjutants (chieh-chi), 10 inspectors general (chiangyu-hou), 10 controllers (ch'eng-chu), and 10 discipline officers (ya-kuan).35 The high ratio of officers to men no doubt contributed to the unit's ability to exercise internal discipline. The men serving in this unit received 1 bushel (shihb), 5 pecks (toub) of unpolished rice per month (approximately 80 U.S. dry pints). In addition, every spring and winter each man was given 1 length (p'i) of cloth (about 10 feet) and 1150 coins for "cloth-cutting money." To understand the value of these payments, note that half a pint per day or 15 pints of grain per month were considered subsistence rations. During the Ch'ing dynasty (1644-1912), 1 pint per day was the ration of grain given to each prisoner. Thus a grain income of about 2§ pints of grain per day would have been more than adequate to support a single man. It is not clear whether a prisoner who was accompanied by his family received extra rations for them, but this seems probable.
Registered control and detained control Most of those sentenced to penal registration in the Sung were sent to provincial army units. There were, however, two other sorts of penal registration, "registered control" (pien-kuan) and "detained control" (chikuan), used mainly to punish officials, which seem not to have included registration on army rolls. The Yuan dynasty guidebook for clerical matters, Li-hsiieh chih-nan, defines arranged control as "to be registered in exile without being tattooed," but this is too general. 36 Clearly, these forms of punishment were less serious than registration in the criminal units of the provincial armies. The heads of those so sentenced were not shaved, nor did these persons have to wear fetters. On the other hand, they also were not given rations by the state. The penalties of registered control and detained control appear to have been forms of house arrest in exile; that is, the people so punished ordinarily did not have to live in army-style barracks, but on the other hand, they did not receive support from the state. They were supposed to report monthly to the local authorities, rather like people on probation in our legal system. Occasionally other functionaries were supposed to oversee them. 37 The prefectures were to keep annual registers of those held, and the local authorities 35 Ch'en Ch'i-ch'ing, Chia-ting Ch'ih-ch'eng chih, p. 7205. 36 See Hsu Yiian-jui. Li-hsiieh chih-nan, Chu Sung pi-yung shih-lei ch'iian-chi ed., chap. 15, P- 325. 37 HCP 289.16b.
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Penal registration
submitted monthly reports on such convicts to the Department of State Affairs. 38 Like those under some forms of probation in our own times, the Sung convicts serving registered or detained control were not free to travel. T h e ChVing-yuan t'iao-fa shih-lei gives an example of a report form: "Registered Control" - so many persons, name; number of years [from original registration to the present]; jurisdiction of origin; category of person; current crime; crimes in which the person was an accessory. For such and such a crime, on X day, Y month, Z year, from jurisdiction A, this person has been sent for registered control; the convict has or does not have the notation "perpetually never to be transferred or freed" on his record or "the command may assess and transfer this person," in which case it is permitted to indicate the jurisdiction of transfer.39 In 1053 an official asked that no more than ten such men be sent to any one prefecture, for fear of collusion, nor should they be sent to the borders. T h e sources do not indicate whether the suggestion regarding numbers was enacted, but the Court did forbid sending these men to the borders. 4 0 These convicts might be asked to perform services, though not apparently physical labor. From early in the dynasty, demoted officials might have to serve as office managers (ya-ch'ien).41 Although this text does not say so explicitly, they almost certainly were being held under "registered control." 4 2 T h e Ch'ing-yuan Viao-fa shih-lei describes them as having to provide "services." 4 3 Using officials to do official work while being punished was a natural response of the state authorities to the need for skilled workers and continued to be used during later dynasties. Such convicts were only lightly restrained. Naturally, as with other forms of penal registration, some convicts escaped from registered control and detained control, though the relatively lenient conditions of their punishment probably encouraged good behavior. 4 4 Such people were covered by the rules on amnesties, though we do have complaints that local authorities sometimes did not release them. 4 5 As with those held under other forms of registration, the sentencing documents could specify that the person sentenced was not to benefit from amnesties, though amnesties frequently explicitly overruled such provisions and included 38 Lu Tsu-ch'ien, Huang-ch'ao wen-chien, SPTK ed., 7i.i3a-b; SS 31.577; HNYL 2683. 39 TFSL 525.
40 SHY, hsing-fa 4.23b. 41 SHY, hsing-fa 4.4b. See also HCP 110.4a, which says that when in 1031, a group of officials was punished, several of them were disenrolled from the civil service registers and "registered in Kuang Prefecture as office managers." 42 See also an officer so registered as a supernumerary official; HCP 126.4a. 43 TFSL 521-22. 44 SHY, hsing-fa 4.52a; quotation from SHY, hsing-fa 45 HCP 380.17a.
399
Law and order in Sung China
those previously ordered excluded. 46 It is clear, however, that this provision about not giving amnesty was sometimes enforced. Early in 1018 an amnesty document spoke specifically about releasing people who had been held in detained control for more than five years, 47 people who had apparently not been affected by the three Great Acts of Grace or the numerous other amnesties that had been issued during the preceding five years. There were also complaints that some men were being improperly treated under this penalty. 48 One observer in the mid-twelfth century even reported that in some places such men were being detained in fetters.49 Although some were given rations, apparently the general rule was that those subject to registered and detained control did not receive government support. From the mid-twelfth century there was an order that such men would be allowed to volunteer for service in the provincial army. This ruling was issued after the wife of one such man submitted an appeal saying that her family needed the income from such tattooed labor service. The emperor remarked that he had himself seen men sentenced to registered control begging in the marketplaces. 50 These forms of penal registration were used most often to punish officials,51 sometimes as special mitigations of the death penalty. 52 The use of these penalties for officials perhaps explains the rule that such persons were not to be registered in any prefecture within five hundred lid of the capital. 53 Nonofficials occasionally were also punished in this way. An order of 1105 refers to doctoral graduates who had been sentenced to "registered control" but who were now to be released. (The order says that their good behavior after they had reached their homes was to be guaranteed by relatives and that if thereafter they committed crimes calling for exile or worse, left the prefecture, or slandered people, these relatives were to be considered equally guilty.) 54 If not officials, doctoral candidates were at least qualified to be officials, but these penalties were also sometimes applied to people without qualification for offices, including foreigners. An order of 1041 that sought to stem the outflow of Chinese coinage, stated that if those seized for exporting coins 46 47 48 49 50 51 52 53 54
HCP 408.13a. HCP 92.5a. HCP 217.6b (1070). HNYL 2683. See an order that such men were not to be incarcerated (SS 31.577; HNYL 2739). See also SS 31.581; WHTK 160.1460. See SS 201.5017, and innumerable other examples throughout the sources. HCP 185.7a. SHY, hsing-fa 4.50a. HCP 25.18a.
400
Penal registration
were not Chinese, they were to be sentenced to "registered control." 55 Ordinary male commoners also could be so punished. A decree of 1029 ordered that those in Ho-pei who were recidivists at damaging embankments (men who were hardly likely to have been officials) be sent for registered control. 56 In 1031 the punishment was applied to a commoner who had killed the man who had earlier beaten his father to death. Though convicted, the murderer had been freed by an amnesty, and the son had taken vengeance. The ordinary penalty for such a homicide would have been death, but the sentence was reduced because of the circumstances. 57 During the Southern Sung, the system was also occasionally used for commoners 58 and at least in the 1180s seems to have been the standard punishment for horse thieves in some areas. 59 People who had been sentenced to these registration punishments might be forbidden to return to their homes after release from penalty. The rule in these cases for people who had been sentenced under the system of joint adjudication was that after six years in the area of registration, they were to be entered on the household registers as regular commoners. These registers were to indicate the clauses under which they had been convicted. The village officers were responsible for keeping track of their whereabouts. Officials were not to trouble them. And having registered in one place, they might under some circumstances be allowed to transfer their registration to another prefecture, after having secured official approval. 60
Women in the penal registration system The preceding descriptions of penal servitude deal largely with penalties inflicted on men. We know less about the treatment of women. But according to the T'ang and Sung codes, "The law on women says that they are not to go alone into exile. Therefore if they commit a crime punishable by exile, they are not sent into exile but remain at home. They are beaten with the heavy rod and perform labor at a fixed place." 61 An order of 993 states that women guilty of crimes up to penalties of exile were to be excused from registered labor. 62 However, women who 55 56 57 58 59 60 61 62
HCP 131.1a. HCP 108.14b. HGP 110.12b. HNYL 2624. SHY, hsing-fa 4.56b. TFSL 523. SHT 3.52. For the T'ang, see Johnson, The T'ang Code, p. 163. SHY, hsing-fa 4.3b. WHTK 168.1459 dates this to 989.
401
Law and order in Sung China
were convicted of having produced or taught others to produce black magic poison (ku) were to be "expelled to the frontiers of the empire in order to cut off this evil." 63 For the first sixty years of the Sung dynasty some women were sentenced to labor in the capital's workshops. The wives of men exiled to the Sung maximum-security facility on Sramana Island off the north coast of the Shantung peninsula were sent to such workshops from the beginning of the dynasty, though this was said to have been stopped at some unspecified date. We also know that as late as 1018, soldiers' wives guilty of adultery were being held as workers in these workshops. In that year it was ordered that such women no longer be sent there and that the 157 women currently being so held were to be released.64 The punishment of arranged control was also applied to women, primarily when they had been convicted under the provisions for joint adjudication of household members of certain classes of criminals. An order of 1083 abolished the system under which the wives and dependents of counterfeiters had been subject to arranged control. 65 Wives of robbers from heavy-penalty places, who because of their husbands' crimes had been sentenced to "arranged control" in neighboring prefectures under the edicts of the Yiian-feng period (1078-85), were ordered released during the antireform period, but after 1098 we have a report indicating that they were still being held. 66 According to the rule preserved in the Ch'ing-yiian t3iao-fa shih-lei, women who were liable for such penalties were to be beaten twenty blows on the back with the heavy rod but were spared penal labor at their place of registration. 67 Women were occasionally punished in other ways under the joint adjudication rules. In 1070, for example, the wife of a criminal who had been executed by slicing was registered with a soldier who had no family.68 Basic factors affecting the use of penal registration Three factors were particularly important in determining the form of the penalty. First, the state attempted to make the level of punishment fit the crime. Second, the state used the penal registration system as a primary supplier of labor, so that the location of registration and its length were 63 64 65 66 67 68
See Johnson, The T'ang Code, p. 163; SHT 3.52. SHY, hsing-fa 4.1a; HCP 91.7b; SHT 3.51. HCP 333.7a. SHY hsing-fa 4.30a (1088); HCP 499.16b-17a. TFSL 520. HCP 2i3.i9b-2oa.
402
Penal registration
partly determined by labor needs. And third, the state tried to achieve the two preceding goals without creating serious problems of public security. Because these goals were often in conflict, imperial policy was a compromise in which competing aims were partially but never wholly fulfilled. Labor needs as a determinant of policy T h e system of penal registration, with its prison and base citadel comm a n d s , was designed to punish convicts a n d to deter others and also to provide the state with large amounts of labor at an acceptable cost, without endangering internal security. Labor might or might not be d e m a n d e d of penally registered convicts and, if demanded, might differ in kind a n d length. T h e kinds of labor involved are indicated by a prison official ordinance (yii-kuan ling) found in the early Sung Code: If the various convicted criminals who are liable for registration and labor are in the capital city, they are to be sent to the Directorate of Palace Buildings [Chiang-tso chien]. 69 Women in the capital should be sent to the Directorate for Imperial Manufactories [Shao-fu chien] 70 to work as seamstresses. In the provinces they are to do official labor at their supervising jurisdiction. If the jurisdiction has no enterprise that employs official labor, then allow them to be held in that prefecture to work on the city walls, in the granaries, or as miscellaneous servants in the public offices.71 An order dated 1023 g i v e s further information: Convicts serving in the capital city were to work in one of the eight crafts offices that provided the government with such services as plastering, painting, varnishing, stoneworking, tileworking, masonry, well building, and working with b a m b o o . These m e n would labor during the day and at night return to their camps, where the c o m m a n d in which they were registered was responsible for controlling and feeding them. 7 2 According to the Ch'ingyiian t'iao-fa shih-lei, they were allowed one day of rest in ten and seem also to have been given time off on several Sung holidays. 7 3 C o m m o n labor for use around the prefectural towns might have been hired on the market or required of other groups as a service; the presence of the provincial army units meant that the state h a d less need to tax 69 An organization responsible for palace construction and maintenance, under the Ministry of Works. See Hucker, Dictionary, no. 708. 70 Hucker, Dictionary, no. 5098. 71 SHT3.51. 72 SHY, hsing-fa 4.10b. 73 TFSL 144.
403
Law and order in Sung China
people to pay for hired labor or to exact corvee, though of course the taxpayers bore the burden indirectly by supporting the cost of the provincial armies. The need for a pool of laborers was also increased in the Sung by the founding emperor's decision to staff the postal system using men drawn from the provincial armies rather than corveed laborers drawn from the general population. Convicts were also often used as workers in mints. 74 In 1154 the Ministry of Works successfully petitioned to have convicts transferred to certain mints that were short of labor, 75 and the Ch'ing-yiian t'iao-fa shih-lei indicates that heavy labor might mean work in the mints. Although most convicts performed unskilled or semiskilled labor, the miscellaneous work assigned to convicts might include clerical tasks, sometimes quite responsible ones. The Ch'ing-yuan t'iao-fa shih-lei reports that those who were not physically capable of physical labor might be used as underlings, 76 and this seems to have been a common way of forcing officials serving sentences of registration to contribute their labor. Prefectures in need of laborers sometimes successfully petitioned to have the various circuits send criminals liable for registration in certain categories. An order in 1072, for example, states that except for certain categories of criminals, when convicted of crimes calling for tattooed penal registration, farmers from an enumerated list of circuits were to be sent to Hsi Prefecture in Ch'in-feng Circuit. This rule followed an appeal by an official who cited the region's need for skilled farmers to exploit unused lands. Similarly, permission was granted in 1082 for sending to Lan Prefecture in Ch'in-feng Circuit all miscellaneous criminals sentenced to registration at one thousand to two thousand lid for registration in the base citadel commands there. 77 General policies governing the location of registration can thus only partially explain what actually happened, as individual imperial orders were also issued that sent criminals from certain jurisdictions to other specified jurisdictions, either in response to pleas for more labor or because of security considerations. 78 Convicts already registered might also be transferred elsewhere when labor was needed.
74 75 76 77
SHY, hsing-fa 4.320-333. SHY, hsing-fa 4.35a-b. TFSL 520. HCP 239.15a-3b. See also HCP 228.2b-3a with regard to the need for laborers in the capital, and HCP 330.1 ib for the 1082 request from Lan Prefecture. See also a request dated 1121, that men be sent to Yen Prefecture, because many of its prison citadel troops had been killed or injured or had fled during the disturbances (of the rebellion of Fang La) (SHY, hsing-fa 4.39a). 78 SHY hsing-fa 447a~48a.
404
Penal registration
Security as a determinant of policy In these policies we can see reflected the not always commensurable desires to punish the prisoner appropriately and to provide the state with labor where it was needed, but these goals had to be balanced against the need to maintain internal security. The convicts, after all, were criminals. They could cause severe problems wherever they were sent, especially as the typical criminal subjected to penal registration in the Sung seems to have been a young male. Such men were needed for their labor but had to be handled with care. Convicts seem often to have become involved in further crimes, for which they were sometimes brutally punished.79 Security considerations are clearly reflected in policies restricting penal registration in certain sensitive areas, in some cases forbidding it entirely and in others limiting the number or sorts of criminals to be sent for registration. Such considerations are no doubt the background to an approved memorial in which local officials asked that dangerous criminals no longer be sent to the northwestern frontier, where they often escaped and joined tribal groups that preyed on the people.80 The Ch'ing-yiian t'iao-fa shih-lei includes a rule that when the people liable for registration were from prefectures on the border or one in from the border, they should be registered in the next prefecture farther away from the border.81 This is an interesting change from T'ang practice. Convicts in that dynasty were apparently always sent to the borders. Perhaps the Liao and Chin dynasties that bordered the Sung to the north were thought to be more attractive to potential turncoats than had been the Turks and other frontier tribes of T'ang times. Perhaps men during the Sung felt less strongly about staying within China's borders. Or perhaps the Sung state was more fearful of defectors. This concern about security on the borders was naturally greatest during times of foreign wars. Thus, in 1043, during the conflict with the state of Hsi-hsia, the Court ordered that "criminals from the various circuits from now on are not to be registered in the border prefectures of Ho-pei."82 Eventually there seems to have been a policy of moving criminals from the center of the empire outward toward the periphery. This policy could have conflicted with the authorities' concern about sending dangerous criminals 79 SHY, hsing-fa 4.64b-65a, in which officials are said to have put such recidivists into the cangue, chained their feet, and left them in jail until they died. 80 In 1143 the policy was modified slightly to allow convicts from a small group of prefectures to be registered in Shensi and Szechuan. It was decreed that men should not be registered in the border prefectures in these areas; compare HCP 142.7a, 145.17a. 81 TFSL 520-21. 82 HCP 142.7a.
405
Law and order in Sung China
to militarily sensitive border areas, but it could be followed if men were sent to less sensitive peripheral regions, including the south or west. Capital region There was also a continuing concern about security in the capital area. At the beginning of the Northern Sung, all serious criminals had been sent initially to the capital. From there, those not needed in the capital would be sent to other areas for registration. An official at this time compared the Sung system unfavorably with that used in antiquity, because of the security problems presented by having large numbers of criminals in the capital: All prisoners from distant places are sent to the capital for registration as workers. This is extremely inappropriate for the sacred territory where the emperor dwells. How can we have exiled prisoners crowd together as laborers? I hope that from now on the criminals of outer jurisdictions will not be permitted to be sent to the capital or detained for work in the capital workshops.83 The Sung state faced a dilemma. The capital, the largest city in the empire and the home of the majority of bureaucrats, needed a large number of convict laborers, but meeting this labor need posed serious security problems. Such problems in the capital were increased by the frequency with which prisoners escaped while being transported. The closer a convict came to the capital, the more likely he was, after escaping, to travel to the capital and join other criminals there. The Sung authorities tried to solve these problems. In 982 an edict issued in response to such critics said that convicts were to be sent directly to the appropriate prison citadel command for registration. They were no longer to be sent first to the capital. 84 Later policy reflected the continuing tensions between the desire for labor and the fear about security. There are repeated orders about not sending convicts to Kaifeng, but clearly they were not followed. Despite an order in 982, a report in 1001 notes that men guilty of robbery or of armed assault that had not resulted in death were still being sent to the capital. It was ordered that such men be beaten, tattooed, and registered at other base citadel commands at five hundred lid or more. 85 Again, despite this order some men still had to be sent to Kaifeng for review and distribution. 86 And in 1013 the authorities decreed that serious 83 84 85 86
HCP HCP HCP HCP
23.17b. 23.17b; SS 199.4969. 49.5a. 63.13b.
406
Penal registration
criminals from the outlying circuits of Kuang-nan, Fukien, and Szechuan were to be sent to the capital for labor; lesser criminals could be registered elsewhere by the circuit intendants. 87 Similar problems plagued the Southern Sung. Concern for security in the capital presumably was behind the practice before 1143 of not registering some kinds of convicts in the capital. And a rule from the Ch'ing-yuan t'iao-fa shih-lei says that residents of the capital who were sentenced to be registered in their home prefecture base citadel command were to be registered in neighboring prefectures. 88
Other sensitive areas No doubt security concerns also explain the Northern Sung rule found in the Ch'ing-yiian t'iao-fa shih-lei, which says that men convicted of piracy were not to be penally registered in prefectures by the sea. This same ordinance also forbade registering men in the capital or in the border areas of the three circuits of Ching-chi, Ching-tung, and Ching-hsi surrounding the capital, or in the circuits of present-day Szechuan and Shensi. It also gives a short list of prefectures where especially evil criminals were not to be registered. These prefectures are located in the Ching-hu North and South circuits, areas of central China with large non-Chinese tribal populations. 89
The quota system and the breaking up of gangs The concern for security was also reflected in other general policies by which the authorities sought to prevent excessive numbers of convicts from being registered in a single prefecture. One such policy was established as early as 1027. ^ n t n a t v e a r t n e prefect of T'ing Prefecture in Fukien complained that currently there were 359 convicts in his jurisdiction. He felt this to be a dangerously large number and asked that some of them be transferred elsewhere. The central authorities approved his request and stipulated that "in general, when the various prefectures memorialize that they have too many convicts, they may follow this order as a precedent." 90 Prefectural quotas were also fixed, because each prefecture had a set number of provincial army units, and these units -
87 SHY, hsing-fa 4.6b. 88 TFSL 520. 89 TFSL 522-23-This rule presumably dates from the Northern Sung, as it specifies the three circuits that were lost to the Sung in the 1120s. 90 SHY, hsing-fa 4.14b.
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Law and order in Sung China
mainly the prison citadel commands - had quotas limiting their numbers of personnel.91 Under the ordinance found in the Ch'ing-yuan t'iao-fa shih-lei, when the number of men registered in a jurisdiction exceeded its quota by 50 percent, this was to be reported to the judicial intendant, who would investigate to verify the facts. He would report to the Department of State Affairs (Shang-shu) and the Ministry of Justice, so that penal registrations in that prefecture could be suspended. The prefecture was also responsible for submitting an annual year-end report giving the number and names of men currently held in the various forms of penal registration. The quota system limiting the number of men sent to certain areas was closely related to a policy under which gangs were to be broken up, their members scattered in various locations. 93 Too many convicts in an area spelled trouble. The essence of the problem was captured in the vivid phrase of an official who wrote in 1191 to complain about the policy of sending to Hainan Island all the violent criminals who had been spared execution. It was, he said, like "putting a hundred tigers together on one hill." 94 From at least the 1040s the judicial intendants were charged with overseeing the numbers of such dangerous criminals and diverting them from overcrowded prefectures to less crowded ones. 95 Under the rule found in the Ch'ing-yuan t'iao-fa shih-lei, members of gangs who had been convicted of robbery, gang killings, arson, and theft were not to be moved as groups, nor were they to be registered in the same prefecture. 96 Documentary controls The Sung authorities also sought to bolster their control over the convict population by instituting an elaborate system of documents that indicated the number and characters of the convict population in each jurisdiction. In addition to the periodic, including annual, reports sent up from each prefecture enumerating those held in all forms of penal registration, 97 reports were sent up to superior agencies on the day when new prisoners arrived in a jurisdiction. In the cases of the more serious 91 For example, a report indicates that the quota for the prison citadel command in Yen Prefecture was two hundred men (see SHY, hsing-fa 4.39a). 92 TSFL 522. 93 SHY, hsing-fa 4.25a-b. 94 WHTK 168.1461. 95 SHY, hsing-fa 4.21a. 96 TFSL 523. 97 SS 200.4992.
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Penal registration
locations for registration, separate reports were supposed to be sent to the Ministry of Justice within five days of the prisoners' arrival. Deaths or escapes were also to be reported in the same way. A form for reporting on the convicts in a jurisdiction has been preserved in the Ch'ing-yuan t'iao-fa shih-lei: Have Received for Control: For registration on the army rolls, so many men tattooed on the face. Convict's name; number of years (Note: This means the number of years since registration); name of jurisdiction; sort of person (indicate which army, and then write that the origin of the person was as a volunteer or someone penally registered for service; the nature of the convict's current offense) (Give a brief description, e.g., if the convict were convicted of stealing, write "with force" or "a thief"; write whether the convict was the principal or an accomplice, whether or not he was armed, and whether or not the criminal act was actually consummated. For homicides, merely note whether the crime was of the principal categories of homicide or was classified as a miscellaneous offense, whether the convict was the principal or an accomplice, and whether in fact anyone was killed.98 The formats for reporting on the types of penal registration called arranged or detained control, and condemnation to slavery are similar." In accordance with the sentence (Note: This means the light rod, heavy rod, penal servitude, or exile), the prisoner has been sentenced to penal registration in the prison citadel commands or other provincial army commands of suchand such a prefecture or in such-and-such a jurisdiction for heavy labor in the army. 100
Locations of registration and the transportation of prisoners Location of registration was certainly one of the most important ways of grading the severity of a penalty. A convict's sentence was also graded according to the distance from his home (or in the case of military personnel, from their permanent camp). 101 For transient commoners or soldiers without an assigned camp, the authorities used the jurisdiction in which they had been convicted. 102 The least serious penalty involved registration in the home prefecture. Next in degree of severity was 98 In T'ang and Sung law, both attempted homicide and actual homicide were covered in the state statutes, hence the phrase "whether in fact anyone was killed." 99 This is the only example known to me in which there is any suggestion that during the Sung, people were registered as slaves as a punishment. 100 TFSL 524-25. 101 TFSL 520-21, 526. Transients used the prefecture of conviction. 102 TFSL 526.
409
KUANG-N AN WEST C I R C U I T
"DISTANT EVIL" PREFECTURES
CH'ANGHU
A ( \ X
HAINAN ISLAND N WAN AN 1U-YA1N»
Map 12. i. "Distant evil" prefectures
Penal registration
SRAMANA ISLAND
TENG
^
) PREFECTURE
Map 12.2. Sramana Island
registration in a neighboring prefecture, then at prefectures approximately 500, 1000, 1500, 2000, 2500, or 3000 lid away. According to the regulations, when choosing a site for penal registration, the authorities were not supposed to exceed the assigned distance by more than three hundred li. If there was no appropriate prefecture within this limit, they might register the convict in the nearest prefecture 411
Law and order in Sung China 103
beyond the limit. Very serious crimes might be punished by registration at one of the thirteen "distant evil" prefectures, all but two of which were on Hainan Island or the adjacent coast of Kwangtung, or at the most dreaded place of all, Sramana Island off the north coast of Shantung (see Maps 12.1 and 12.2). The Sung government established an elaborate system for moving prisoners, individually or in groups. Each prefecture through which the prisoners passed was responsible for detailing imperial army soldiers, servitors minor, and clerical personnel to move the men from one border of the prefecture to the other. The use of soldiers for this duty was traditional; the Sung inherited the practice from earlier dynasties and continued it from the beginning of the dynasty to the end. 104 Stages of march were fixed, with prisoners expected to move about fifty lid (about seventeen miles) per day. 105 An elaborate documentary system was used to avoid abuses and to allow superiors to monitor their subordinates' performance. Many of the rules governing this system have been preserved in the Ch'ing-yuan t'iao-fa shih-lei. One ordinance cited in that work gives some idea of the way in which the system worked: After people have been sentenced to penal registration, arranged control, or detained control, record on a form their crime, the names of their accompanying family and dependents, the amount of their valuables, and their home. (Note: If the principal criminal is an active official, do not record the wealth of family and dependents.) This form is to be turned over to the men detailed to transport the prisoners. A calendar-ledger should also be provided, on which the districts and market towns [chen] should record the date [on which the prisoners arrived]. If prisoners become ill, then there should be a certificate of verification. If it is necessary to spend money [from the prisoners' valuables], this is permitted. The functionaries in charge should themselves enter the amount on the travel document and stamp it, turning it over successively. It will be examined to compare receipts. When those who have crossed the boundary into another circuit reach the prefecture or district that is their destination, they should inform the judicial intendant of the circuit, who will check out [the document]. After they have reached the prefecture where the prisoner will be registered and have been accepted there, a report should be sent back to the office that originally pronounced sentence.106 The office that had pronounced the sentence also kept a log indicating which prisoners had been sent where and when they should arrive at 103 TFSL 520-21. 104 Although this seems clearly to have been the practice, the only specific statement I have found on this point merely indicates that the rules on the system existed before 1133. See, for example, SHY, hsing-fa 4.43b—44a. 105 SHT 3.45. 106 TFSL 521.
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their destination, and on receipt of the notification of arrival (or of death or illness), it was to note this on its records. If the expected report did not arrive - indicating that for some unexplained reason a prisoner sent out from the office had not reached his destination in the time originally projected - the office was to inform the circuit intendant so that the problem could be investigated.107 When for some legitimate reason, such as illness or bad weather, prisoners did not keep to their projected schedule of movement but instead were detained at some point en route, the guards accompanying them were supposed to inform the authorities of the situation. The officials in this jurisdiction had the power to permit such delays but were to check on the matter daily. If in a group of prisoners one man fell ill, he might be allowed to delay his movement while his companions continued their journey. 108 Men might also be granted compassionate delays. According to the early thirteenth-century code, if en route to registration, men learned of the death of a parent or grandparent, they were to be granted a delay. They could also be permitted delays if there were illnesses or deaths among their accompanying family members or dependents or if someone in the party gave birth. 109 Early in the dynasty there was supposedly a practice of men going into exile being moved together at the end of each season,110 but in practice the men seem to have been moved on an irregular schedule. By the end of the first quarter of the eleventh century, because of concern that delays in transport caused suffering among the prisoners, there were special orders regarding speedy movement.111 However, during the dead of winter and in the period of greatest heat during the summer, prisoners were kept at the place where they had been convicted and were moved only when the weather made this feasible.112 An ordinance found in the Ch'ing-jyuan t'iao-fa shih-lei says that in winter (from the eleventh month to the end of the first month), men who were to be transported for penal registration in the armies were to be detained for labor either in the jurisdiction in which they were convicted or in the jurisdiction at which they had arrived. When the second month arrived, they were to be sent on. (If they volunteered to go on, this was allowed.) When the circumstances of their crimes were grave, when they were to be registered in the far south (in Kuang-nan), or when they had already entered the circuit 107 108 109 110 111 112
TFSL521. TFSL 530. TFSL 523. SHT3.45ff. SHY, hsing-fa 4.11 b-12a. SS 201.5018. See also an order of 1071 that men in winter be held until the fifteenth day of the second month of spring (SS 15.280). See also WHTK 168.1460.
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to which they were being sent, this ordinance was not to be applied. 113 Prisoners were allowed to bring along family members and dependents (though this rule did not apply to men sentenced to registration on Sramana Island). The policy of allowing family members to accompany convicts had very practical benefits. It was perhaps connected with the ideal of reformation and reintegration. Having a family or dependents at the place of registration gave the convict a system of support, an immediately present motive for good behavior, and a place to which he could turn on finishing his sentence. If the family or dependents were in another jurisdiction than the one in which the prisoner was convicted, the convicting jurisdiction was to send a document to the place where they were, indicating that they were allowed to proceed to the place of registration. If the convict died, those who had accompanied him were to be a allowed to return to their homes. 114 At the beginning of the dynasty it appears that dependents and family could not avoid accompanying the prisoner; an order from the early eleventh century said that when men were being sent for registration to a prefecture other than their home prefecture, if their wives and children did not want to accompany them, they did not have to do so. 115 The convicts being moved - and after 1026, those accompanying them - were supposed to be given provisions at post stations and granaries. (Children under three years of age did not receive a ration.) This same rule applied to those who for some legitimate reason had been delayed en route. 116 A system of ration tickets, which could be exchanged for food, was used. A decree of 1027 mentions a "Document for Enumerating Goods Needed en Route" which each successive escort group was supposed to check carefully and transfer to the next group of guards. Disbursement of provisions was to be entered on this register. 117 According to the rules, the state was supposed to pay for provisions, but as other sources indicate, this rule was often ignored in practice, and the men sometimes had to beg for their food.118 The sources that refer to the system in which guards might be authorized to spend some of the prisoners' funds presumably means using such funds to provide for the convicts' needs. The plight of accompanying families and dependents seems to have been particularly grievous. The guards sometimes limited their task to moving the prisoners themselves, "leaving the dependents 113 114 115 116 117 118
TFSL523. TFSL521. HCP 107.3a. TFSL 530; HCP 104.20a. SHY, hsing-fa 4.14b. SHY, hsing-fa 4.i7b-i8a (1031).
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Penal registration
to be scattered and lost on the roads so that few live to return." 119 Their problems were especially desperate if the man they were accompanying died en route. An order of 1004 indicates that in such cases the family and dependents should be given passports allowing them to return home, but nothing is said of giving them food or money for such a trip. 120 All prisoners were accompanied by guards. Under most circumstances, such guards were responsible for moving their prisoner or prisoners from one boundary of their jurisdiction to the other, where they were to turn over the prisoners and their accompanying documentation to a new group of guards. Thus, the prisoners were passed from hand to hand until they reached their final destination. The guards were to wait at the exchange point if their replacements had not yet arrived and, when the exchange had been completed, were to return to their base camps. 121 An exception to this practice of having guards stay with a group of prisoners for only short distances was made in the cases of violent and dangerous criminals being sent for registration in Kuang-nan or Hainan. At least during the thirteenth century the guards for such men were to accompany them, not from one prefectural border to another, but from the prefecture that was the headquarters of one circuit intendant to the prefecture that was the headquarters of the next circuit intendant along the specified route, before turning the prisoners over to the next relay of guards. 122 The number of guards per prisoner varied depending on the dangerousness of the criminals, as reflected in the places to which they were being sent. Thus, according to an order of the late Northern Sung, it appears that there was to be one guard for criminals being sent to locations of less than two thousand lid away, two guards for places listed as more than two thousand lid away, three guards for those destined for Hunan and Kuang-nan, and five for those being sent to the sea islands. 123 In each prefecture one civil service official was supposed to be in charge of transporting the prisoners, acting jointly with a local military official. They were to prepare a register listing the names of the imperial army soldiers who would be acting as guards. These men would remain in their encampments, awaiting orders. The dangers associated with such transporting of prisoners varied 119 120 121 122 123
HCP 101.9a. SHY, hsing-fa 4.3b. TFSL529. SHY, hsing-fa 4.65a-66a. SHY, hsing-fa 4-37a-b.
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Law and order in Sung China
depending on the characters of the convicts and their number. The rule was that no more than ten men were to be moved together as a group. When there were more than ten men, they would be moved in separate groups of ten, and those not yet sent would be held in jails. 124 If more than seven were being sent as a group (not counting women or males fifteen years old or younger), if the criminals were considered dangerous, or if the area were near the borders, the guard of imperial army troops was to be accompanied by a superior such as an officer (chiang-chiao), an office chief (ya-ch'ien), or an inspector (yu-hou)}25 Even with such precautions, however, moving prisoners could be dangerous. Huang Kan (i 152-1221) mentions a fort soldier sent to escort two robbers to registration who was attacked by them and badly beaten. 126 Although the guards sometimes were abused, it seems that abuse by the guards was far more common. Because the guards could be penalized if they failed to meet their time schedule, they naturally sometimes abused and beat their prisoners in order to make them move more quickly.127 They also sometimes used their prisoners as beasts of burden, having them carry bundles or packages. The authorities also set penalties for functionaries who did not fulfill their responsibilities in this system. Those who should have transported prisoners but did not, or did but avoided the regular post-roads, illicitly appropriated the goods of those under their charge, failed to show up at the meeting place, or sent insufficient numbers of guards were to be punished. 128 Fugitives Probably the most widespread problem was prisoners escaping. Such escapes, from jails, while in transport, or after having reached the place of registration, seem to have been extremely common. 129 After noting that several thousand men each year were sent for registration in Kuangnan and Hunan, one commentator observed, perhaps with some rhetorical exaggeration, that "some escape en route and some after they arrived. Those willing to reform and serve as laborers in the prison citadel commands are not 10 to 20 percent." 130 Escape was a constant problem because, given the technical condi124 125 126 127 128 129 130
TFSL 529-30. TFSL 529-3°Huang Kan, Mien-chai chi, 33.42a~43a. HCP 83.16b. TFSL 528, 529. SHY hsing-fa 4.14b (1027). Wu Ghing, Chu-chou chi, 2-5a-6a.
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Penal registration
tions of the time, it seems to have been relatively easy. There are repeated complaints about escapees who sought to return to the center of empire, and especially to the capital region. 131 In the early Southern Sung an official remarked: Men subject to registered control all bribe their escorts, so that often they do not arrive [at their place of exile]. Sometimes they just go out the gate [of the place from which they are being sent]. Sometimes they go halfway and then turn back. Even though we have the law on using imperial army troops as escorts, because the regulations of the Shao-hsing period [i 131—63] do not establish rules for the rewards to be given to informers, this leads the guards to follow their own feelings and let people go free, so that the miscreants, lost en route, return in droves to the capital or enter the markets to cause trouble.132 The general legal response to escapees was to increase their original sentences by some degree and to penalize the responsible officials.133 It was common to sentence those responsible to the penalty to which the criminal in question had been sentenced, usually reduced somewhat in severity. Chinese codes traditionally contained rules specifying such punishments. The T'ang Code and the Sung Code of 962 say: "If the responsible officials inadvertently allow prisoners to escape, they will be given penalties equivalent to that to which the prisoners had been sentenced, reduced by two degrees." 134 And a rule that the Sung had inherited from the Later Chou states: Those responsible local officials who have custody over prisoners and inadvertently lose them - if they themselves or their relatives and dependents recapture the escapees - may ask to be spared the penalty for allowing escape through inadvertence. If other people capture them or the prisoners themselves die or voluntarily surrender and confess, then the culpable officials may appeal to be tried for the penalty assessed against the convicts [but] reduced by two degrees.135 Guards as well as officials were covered by rules on escapees. According to a report of 1098, when prisoners escaped because of their guards' negligence, the guards were to be tried for their escapees' crime, with lesser penalties. Thus if the criminals had been sentenced to tattooed registration, the guards would be punished with two years of penal servitude. Otherwise they would suffer one hundred blows of the heavy rod. However, if they had deliberately allowed robbers liable for registra131 132 133 134 135
HCP 5.24b (1070); SHY, hsing-fa 443b~44a (1133). SHY, hsing-fa 443b~44a. HCP468.7a-b (1091). SHT 28.460. SHT 28.461.
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Law and order in Sung China
tion to escape, the guards would be subject to registration in a neighboring prefecture if they were soldiers and to registration in their own city if they were civilians. 136 (Later Sung codes included rules specifying rewards to be given to men who rightly accused others of having allowed prisoners to escape.) 137 Such escapees jeopardized the whole system of law enforcement. Such criminals often returned to the scene of their crimes to take vengeance on those who had accused or captured them. Moreover, if this happened frequently, the local people would naturally become afraid either to inform on robbers or to help in their capture, thereby leading to an increase in their numbers. 138 Understandably, the authorities felt a need to gather reliable information on the dimensions of the problem. Eventually a system was instituted under which each season a report had to be prepared about escapees, with the judicial intendants to manage it. The authorities were well aware of the difficulty of this task. Beyond threatening guards with severe punishment, they also specified rewards. A document from 1154 records different levels of rewards and penalties for guards, depending on the difficulty of their tasks. If the servitors minor who were used to move prisoners from the capital to Kuang-nan or Hainan had twice completed such assignments, they would be rewarded with a one-year reduction in the number of case reviews (mo-k'an) through which they had to pass in order to be eligible for promotion. If en route many prisoners died or if such deaths happened on a second trip, they were to have an extra year added to their case review requirements. Those guards who had twice accompanied prisoners to registration at one thousand lid or more, were on arrival to have their case review requirements reduced by one-half year, but if there had been many deaths or such deaths happened on a second trip, they were to have a half-year added. Performances better or worse than those named were to be treated analogically, with the increases or decreases to 14-0
stop at two years. 136 HCP 499.4a—b. Under some circumstances the penalties might vary. Thus it would seem that those guarding prisoners held over for the winter were liable for only sixty blows of the heavy rod when prisoners escaped because of their guards' negligence. Perhaps the sentence in such cases was lighter because the prisoners had not originally been their responsibility. 137 TFSL521. 138 See SHY, hsing-fa 447a~48a. 139 SHY, hsing-fa 4.52a. 140 SHY, hsing-fa 4.4a-b.
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Release of convicts Registered convicts were only partly restrained by threats of punishment. Probably equally important was the promise that good behavior would lead to improvements in their lot. Penal registration was rarely a perpetual punishment. The earliest Sung code includes a T a n g edict that says that "all those sent into exile may be freed to return after six years." 141 This edict expresses a general attitude embodied during the Sung in a regular set of rules, which apparently were created piecemeal and were not always enforced but which nonetheless set a general pattern for releases. Men were released for a variety of reasons. Those registered in the penal provincial army units who had reached age seventy or were ill might be mustered out according to rules laid down in edicts. 142 Sometimes such men were sent back to their homes and even given traveling money. An order of 1105 freed men subject to registered control and detained control to return to their homes, where their relatives were to be responsible for guaranteeing their good behavior. There was some concern among officials that this pattern of releases might reduce the deterrent effect of forced labor, especially among hardened criminals. An official complained in 1192 that although from the time when the law on penal registration was established, there have been time limits on releasing men, recently these rules have been ignored. After one or two years, men are freed according to convenience. This causes men to make light of the law, considering penal registration to be just like ordinary life.143 In 1204 the Sung formally adopted a more general policy embodying these principles, though such a policy may well have been common, if informal, earlier in the dynasty. Registered criminals were divided into two groups, minor criminals, whom the memorialist describes as "villagers who in a single incident commit assault, kill or injure someone or clerks guilty of corruption . . . who even if they escaped would not cause trouble," and hardened criminals, "habitual criminals, who rob, join together to deal in illicit goods, and have already killed or injured." Members of the first group were to be registered for heavy labor in their home prefectures. When they had completed their term of labor, they were to be given regular registration certificates and released to become commoners. 141 SHT3.8b.
142 SHY, hsing-fa 1.6b. 143 WHTK 168.1461.
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Men in the second group were considered too dangerous to release into civilian society. As early as 1032 an order was issued that hardened criminals in Szechuan were not to be allowed to return home, presumably to prevent their taking revenge on those who had helped in their prosecution. 144 Such dangerous criminals were to be registered for labor, but when their terms were over they were to have their tattoos altered and to be inducted into the regular army. 145 The official Wang Yen (1138-1218) argues for using bandits guilty of a first offense or thieves with several offenses as soldiers not only to relieve the shortage of troops but also to increase village security. 146 Induction of young, strong convicts into the imperial army was a regular practice in the Sung, although it appears that each case was in response to a specific request rather than a result of a general rule. 147 In addition to these more or less systematic policies for releasing convicts, the sources also note occasionally that central government officials were ordered to review the lists of men held in penal registration, in preparation for an order from the emperor releasing some of them. Perhaps as important as the possibility of being freed to return home was the possibility of moving up in the grades of the provincial armies. Many of those convicted were young men, presumably with few skills and no reliable source of livelihood. It was a general practice that a man being released from custody as a registered criminal could volunteer to join one of the other provincial army units. The men in these units had better living conditions and less burdensome forms of labor than did those in convict units. For a young man with no certain future, the offer of a steady and secure if not prestigious job must have been reassuring. Thus these units could serve as a welfare system, providing subsistence for men due to be released who had no place to return to and no prospects of employment. The alternative, in the opinion of some officials, would be to condemn the old and the weak to starvation and the young and strong to a renewed life of crime. 148 Punishment - Sramana Island The severest grade of registered labor was reserved largely for those who had been spared the death penalty. During much of the Northern Sung 144 145 146 147
HCP 111.8a, but see also HGP 104.1b; SS 201.5017. SS 201.5020. Wang Yen, Shuang-chH lei-kao, SKCSCP 1971, 23-5b-8b. On the induction of men in the regular armies, see, for example, HCP 128.6b—7a (1040); SHY, hsing-fa 4.49a-b (1160). 148 SHY, hsing-fa 4.58a~5ga.
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such men were sent to Sramana Island, some ten kilometers off the north coast of Shantung 149 (see Map 12.i). Registration here seems to have been especially feared, perhaps because of the hard labor of salt production and probably because of the isolated location, which made escape difficult. The earliest recorded use of the island as a place for registering prisoners dates from the Northern Han dynasty (947-50), about ten years before the founding of the Sung. An officer of the Northern Han army, tried for having lost a city, was "exiled to Sramana Island in Teng Prefecture. This was the origin of this practice." 150 The Sung began using the island in 961 after a deserter who had illegally carved an official seal was seized and beheaded. Perhaps feeling that the sentence had been excessively harsh, the emperor issued a decree that soldiers guilty of some serious offenses calling for the death penalty should be spared and instead registered at the island. 151 The island thus began as a place for exiling certain military personnel, and it continued to be so used until the end of the Northern Sung. The sources mention specific cases of exiling military men to Sramana dated 961, 1007, 1020, 1021, 1026, 1037, 1040? 1071, 1078, 1083, and
1088, most of which involved officers or noncommissioned officers, not common soldiers. The men exiled here had been sentenced for rapacity (meaning primarily venality in office), for killing suspected criminals without authorization, for beating subordinates to death, for provoking disorders among troops, for deserting while convoying official goods, and, in one case, for attempting to murder a fellow officer while within the palace precincts. 152 The number of violent crimes is striking, reflecting perhaps a milieu in which the physical coercion of subordinates was commonplace. Such military personnel may have composed as much as half the island's convict population. These cases also indicate that the island was used exclusively for criminals originally sentenced to death who had been spared execution and sent to Sramana for labor. It was not a place to which men were sent under ordinary sentences of exile. Nor was it a place for ordinary people. Commoners and common soldiers sentenced to death were per149 For more detailed information, see Brian E. McKnight, "Maximum Security in the Sung: The Facilities at Sramana Island," Bulletin of Sung and Yuan Studies, no. 16 (1980): 8-22.
150 Li Shang-chiao, Chin-shih hui-yuan (Shou shan ko ts'ung-shu ed.), 5.9b. 151 SHY, hsing-fa 4.1b. See also Li Ghih, Huang Sung shih-ch'ao kang-yao (Important events during ten reigns of the Sung) (Taipei: Wen Hai, 1968), 1.6b. There are some other references that date the emperor's decree to the third year (see SHY, hsing-fa 7/1 a; SS 1.12a; HCP3.8D). 152 HCP 67.12a, 96.6a, 226.9a, 340.10a, 373.ib-2a, 408.19a; SHY hsing-fa 4.13b, 6.10b, 15b, 7.17a; SHY, ping 12.12a.
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Law and order in Sung China haps more likely to suffer the actual capital penalty, whereas officers, more likely to be spared, ended up on Sramana. Many cases say specifically that the criminal was spared by special imperial order. From the early years of the dynasty, the island was also used for officials guilty of capital crimes, whose lives had been spared. A report from 964 says that the "commissioner of the Court of Artistic Ornaments, Ch'ang Ch'en, was beaten, tattooed on the face, and registered at Sramana Island." 153 Other cases of officials so punished are recorded for 966, 974, 982, 1015, 1016, 1026, 1039, 1044, 1048, 1053, 1083, 1107, and 1126. These officials came almost entirely from the low and middle levels of the bureaucracy. Although in 966 the assistant commissioner of military affairs (a very high post) was so exiled, ali the other cases involved officials of rank 6B or below (in the nine-rank scale). There are some cases with strong political overtones and a few that involve central government bureaucrats, but the majority involved local administrators guilty of various forms of corruption in office, the crime called rapacity. During the earlier part of the dynasty these officials, like military criminals, were beaten and tattooed before their exile. In 1069 it was ordered that officials no longer be subjected to the humiliation of beating and tattooing, but in fact they continued on occasion to be tattooed. 154 Officials were involved in slightly fewer than half the cases that I have found. Again as with military officers, we may assume that they formed a large percentage of the prisoner population. Although we cannot prove in every case that the crime carried the death sentence, all the crimes described could receive such a sentence, and in most of the cases we are told that the officials were spared for exile. That a large proportion of these officials had been in local posts when they committed their crimes is noteworthy. Local officials comprised only about one-third of the total body of Sung civil servants 155 but are a majority among those exiled to Sramana. This disproportion probably reflects both the greater opportunities for venality afforded by service in local posts and a concern by the government about the quality of local administration. The paucity of Sramana cases involving neither officials nor higher military personnel probably reflects the lesser chance of nonprivileged people of escaping actual execution. Most of the few cases we have are recorded because of their peculiar circumstances - a son who committed 153 HCP 5.16b. 154 For cases concerned with exiling officials, see HCP 5.16b, 6.13a, 23.6b, 86.6b, 104.5ab, 147.3a, 174.9b, 339.6b, 340.11b; SS 2.4a, 3.6b, 8.12b, 24.11a; Li Chih, Huang Sung shih-ch'ao kang-yao, 17.2b, 21.2a; SHY, hsing-fa 4.71b, 6.16a, 25a; SHY, chih-kuan 64.23a, 28a, 28b, 39a, 65.2b, n a , 66.26a, 26b, 68.14a. 155 For the proportions of officials in local versus central posts, see McKnight, Village and Bureaucracy, p. 8.
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armed robbery on orders from his father, a man who anonymously and falsely accused a low-level official of plotting rebellion, and a violently anti-Buddhist doctoral graduate (chin-shih) who wrote a tract attacking the religion and used Buddhist writings for his bedclothes. 156 From 1093 we have a more detailed description of the kinds of crimes that might result in exile to Sramana. At that time, those on the island were listed in two groups. The most serious offenders included those who had committed violent robbery, killed others, been incendiaries, masterminded rapacity involving fifty strings of cash, or committed repeated acts of rapacity with a total value of three hundred strings or one act involving booty valued at more than one hundred strings, violently raped relatives, been convicted on two capital counts of fighting and causing injuries, killed with premeditation, plotted or given the coup de grace in an attack that resulted in the death of the victim, committed one of the Ten Abominations for which the sentence was death, or made and fatally administered ku poison. The second group, guilty of slightly less reprehensible crimes, included accomplices in armed robbery in which a victim had been killed, and men implicated in rapacity with a value of two hundred strings but not originally involved in the plotting. 157 Other individual rulings indicate that men might be exiled there for such disparate crimes as breaking the blue-white salt laws, being ringleaders among embezzlers of granary funds of ten thousand cash, being guilty on two counts of hiding bandits, or being recidivists among some kinds of bandits. Even noncommissioned officers who repeatedly refused to drink the imperial health and call out "ten thousand years" were threatened with exile to Sramana. There seems to be no thread on which to hang all these crimes except that the state viewed them all as profoundly threatening to its control of society and so declared them capital crimes. From the time of their convictions, the men sentenced to exile at Sramana were a group apart. They were identified differently, treated differently, and even became the objects of a distinctive system of paperwork. Whereas most ordinary offenders seem to have borne tattoos not larger than two-tenths of an inch, and escapees and those to be registered at the citadel commands bore tattoos of five-tenths of an inch, the men sentenced to Sramana (and to "distant evil places" in Kuangnan and on Hainan Island) bore tattoos of seven-tenths of an inch. 158 156 HCP 7.4b, 341.10a, 345.9b; SS 2.3a; SHY, hsing-fa 6.13b, 14a, 16b. 157 By far the fullest version of this list is given in HCP 468.6b, but there are other, more or less abbreviated versions in SHY, hsing-fa 4.31a; WHTK 168.1460. 158 TFSL 520.
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Unlike some types of Sung convicts, the Sramana Island exiles were forbidden reductions of sentence length in return for suffering fixed numbers of blows with the heavy rod. Nor could their families accompany them into exile. Indeed, at the beginning of the dynasty their wives were also sent for registration, not at Sramana, but at the "needleworks" (chih-chen, presumably a capital workshop where seamstresses worked). This punishment of wives was soon stopped. 159 Special documents were drawn up by the convicting jurisdictions for Sramana exiles, listing the criminals' native places, ages, crimes, the statutes cited, and the judgments. These documents were forwarded to the authorities in Teng Prefecture by the relays of guards that took the prisoners to their destination. An error in these or their improper disclosure was punishable. 160 When men destined for Sramana Island or Kuang-nan had completed their passage through a given prefecture, the prefectural authorities were to report this to the convicting jurisdiction. When the criminals finally reached the prefecture where they were to be registered, the courier service was to be used to notify the authorities of original jurisdiction. 161 The convicting jurisdiction, within a month of sentencing someone to Sramana Island, Kuang-nan or "distant evil" prefectures, mostly located on Hainan Island and the adjacent section of the Kuang-nan east coast 162 (see Map 12.2), was to send to the Ministry of Justice a brief memorandum indicating the nature of the punishment and giving the day and month when the criminal was sent. When the convict reached the prefecture where he would be registered, the authorities there were to inform the ministry within five days. If some of the men involved escaped or died en route, the prefectural authorities of the place where this happened were also to send a report to the ministry within five days. 163 Such escapes among men bound for Sramana Island are said (in a report from 1025) t o have been common because all the guards were lax, 164 though we might hypothesize that the convicts en route there were also especially desperate to escape registration in such a dreadful place. A separate, permanent set of guards was stationed on the island itself, possibly housed with resident families. We do not know how many guards there were, but a decree of the early twelfth century increasing 159 160 161 162
TFSL 504, 521; SHY, hsing-fa 4.1a. TFSL 529. TFSL 530. TFSL 520. This list of thirteen prefectures is taken from the early thirteenth-century code. It is possible that the list of prefectures so classified changed over time, though there are reasons to think that the Hainan prefectures were always included. 163 TFSL 522. 164 SHY, hsing-fa 4.i2a-b.
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the n u m b e r by two hundred men suggests that they must have been n u m e r o u s . 1 6 5 Early in the dynasty these guards appear to have been under the immediate control of the commissioner of military colonies (t'un-ping shih).166 Later (1019) the fort on the island was under the control of a supervisor of militia (chien-ya). Possibly officers of this title had succeeded to the commissioner of military colonists, or it was merely an alternative designation or a concurrently held title. 1 6 7 In that year the abuse of prisoners on the island led the Court to assign to the military servitor of the five islands (t'i-tien wu-tao shih-ch'en) the task of investigating such mistreatment. 1 6 8 T h e administrator of T e n g Prefecture and the fiscal intendant of Ching-tung Circuit also participated in discussions of internal problems on the island. 1 6 9 At the capital, as befitted an area staffed by military personnel, affairs concerning the island were overseen by the Bureau of Military Affairs, although some central judicial agencies might participate in decisions regarding particular problems. 1 7 0 Although under the general supervision of military personnel, the criminals themselves seem in practice to have been housed with the civilian families on the island. O n e report from 1058 says that there were eighty households on the island at a time when there were more than twice that n u m b e r of criminals (and an indeterminate n u m b e r of guards). T h e families (probably mostly engaged in salt production) a p p e a r to have provided shelter and food to those prisoners housed with them and used the convicts as laborers. 1 7 1 After 1004 the resident families were freed from the burden of taxes, not in return for services to prisoners, but rather in return for taking care of the harbor facilities used by ships bringing J u r c h e n horses across the gulf from Liao-tung. 1 7 2 Conditions on the island and the treatment of the prisoners provoked repeated protests by the more h u m a n e officials. Sometimes direct, personal abuse of convicts came to the attention of higher authorities. In 1018 or 1019 the then military commissioner in charge of the fort on S r a m a n a Island had two convicts murdered. O n e of these men had been an assistant secretary in the Bureau of Editors. His son (who, given his father's position, was probably both literate and familiar with official channels) beat the message d r u m (with which ordinary citizens could 165 SHY, hsing-fa 4.33a. 166 167 168 169 170 171 172
HCP 21.31b; see also WHTK 168.1459. HCP 93.2b; SHY, hsing-fa 4.9a-b. HCP 93.2b. HCP 188.10a, 246.6b-7a; SHY, hsing-fa 4.23b-24a, 26b. HCP 188.1 oa, 5.24b, 246.6b-7a; SHY, hsing-fa 4.5a, 19b, 23b-24a, 26b. SHY, hsing-fa 4.23b-24a. SS 1.15a; HCP 4.20a. See also Chiang T'ing-hsi, Ku chin t'u-shu chi-ch'eng (Kuang-hsu block printed), chih-fang tien, 273.a, K'ao 2a.
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lodge a complaint that would receive high-level scrutiny) and submitted an accusation. The commissioner seems to have killed the men because they offered him insufficient bribes. Unfortunately, with the key figures dead, it was not possible to hold a proper investigation. In order to avoid similar problems in the future, the military intendant of the five islands was made responsible for investigating abuses of prisoners, and a decree was issued that the fort military commissioners were "not permitted to kill men sentenced to exile for reckless private motives." When prisoners died as a result of beatings administered in the ordinary course of custody, with no personal malice involved, the higher authorities did not consider the responsible functionaries guilty of any serious offense.173 Prisoners deliberately killed by their overseers were probably greatly outnumbered by those who died of starvation and neglect. Before IOIO no provision had been made for giving rations to the exiles. In that year a commissioner visited the island and reported that countless prisoners had died of starvation there. A ration system was ordered established but does not seem to have been properly enforced.174 In 1036 another official asked that the prisoners be allotted one pint (sheng) of rice per day, but in 1058 we are told that the prisoners "lacked any clothing and food" and that as a consequence many died. 175 Perhaps as a result of this inquiry, at some time during the ensuing decade, the state began to provide rations for three hundred prisoners. 176 Unfortunately, too many men were sent there for the quota of food provided. The number of men sentenced to exile on Sramana seems to have risen slowly during the Northern Sung. We have no figures for the early years of the dynasty, but the report from 1058 states that at that time there were 180 convicts on the island, 177 and the number continued to grow. In 1069, after discussing with the Bureau of Military Affairs the large number of convicts there, Shen-tsung ordered it to consult with the Secretariat Department about solutions to the problem. Apparently nothing substantive was done: One report in 1073 says that 650 criminals were on the island, and another gives the figure as 401. 178 The report of 1058 notes that 200 to 300 men a year were sentenced to exile there, which would mean 2000 to 3000 over a decade. Yet in that year there were less than 200 convicts on the island. Several decades
173 174 175 176 177 178
HCP 93.2b (1019); SHY, hsing-fa 4.9a-b. SHY, hsing-fa 4.5b; HCP 74.15b; SS 7.24b. SHY, hsing-fa 4.19b, 23b-24a, 26b, HCP 188.10a, 2346.6a-b. SS 344.23b. HCP 188.10a; SHY, hsing-fa 4.23b-24a. HCP 5.24b (1069), 246.i6a-b; SHY, hsing-fa 4.26b.
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later, at a time when there were between 400 and 650 convicts, only 93 men had been on the island four years or more. 179 The official reporting in 1058 blamed the small number on the appalling death rate among the prisoners, and certainly that is a part of the answer. Indeed, the situation had already become so notorious by 1036 that an unsuccessful attempt was made to close down the facilities. 180 However, the high death rate alone does not explain the relatively small number of men on the island at any given time. Rather we must look, during the early years of the Sung, to one of the key institutions in the traditional Chinese legal apparatus, the amnesty system, and, during the eleventh and twelfth centuries, to a combination of the amnesty system, the prisoner quotas, and the transfer of prisoners as a result of specific requests (sometimes for service in army combat units). 181 Ordinarily an amnesty resulted in the release of prisoners or reductions in their sentences. Exile to Sramana stood at the far end of the penal spectrum. Beyond it lay only death sentences. If Sramana were fitted into the regular amnesty pattern, then at least some of its inmates would have been transferred following each amnesty to less fearsome places of registration. This by itself would have helped keep the population on the island at a tolerable level and would have lowered the number of old-timers. But did Sramana fit into the regular system? We do know that some amnesties applied to the convicts there. In 1013, for example, we have a decree that the criminals on Sramana Island, except for those who were to be sent to the capital, should have their cases reviewed as a result of an amnesty. If the circumstances of their crimes were not heinous, they were to be sent for registration to nearby territories on the mainland. 182 There were also some men exiled to Sramana by decrees that specifically declared them ineligible for amnesty; that is, they were never to leave the island. 183 Taken together, these reports indicate that Sramana did fall within the regular amnesty system, which contributed to lowering the numbers of men on the island. From the 1070s and 1090s we have descriptions of the amnesty process. The granting of transfers under amnesties depended on the length 179 HCP 188.10a, 246.i6a-b; SHY, hsing-fa 4.26a, 26b. 180 WHTK 168.1460; SHY, hsing-fa 4.19b. 181 In 1042 it was decreed that "the Bureau of Registers of Military Chiefs (Chiin-t'ou ssu) may select strong and robust men from among the criminals being released for return from Sramana Island and place them under the Commandancy of Stalwarts Returning from Afar in the neighborhood of the capital; see SHY, hsing-fa 1.20b; SS 12399.8a (1042). In 1060, criminals were again shifted; see HCP 191.6b; SHY, hsing-fa 4.24a. The amnesty system will be described in greater detail in Chapter 14. 182 HCP 80.6a; SHY, hsing-fa 4.7a; SS 8.6b. 183 SS 2.4a; SHY, hsing-fa 6.16a, 25a; HCP 339.6b, 373.ib-2a.
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of time that a prisoner had been on the island, his record while there, his age and physical condition, and the crime he had committed. Under an amnesty granted in the early 1070s, prisoners who had been on the island for four or more years were divided into two groups according to the seriousness of their crimes. Those whose crimes had been less serious were transferred to the mainland. 184 In 1080, more men were freed who had been held on Sramana for a number of years. From 1093 we have our most elaborate description of the amnesty system as it affected those on Sramana Island. The decree of that year first lists those particularly heinous crimes that rendered their perpetrators ineligible for amnesty, then the crimes that permitted transfer to Kuang-nan, and finally the crimes that permitted transfer to Ching-hu North or South, or to Fukien. If the men transferred to Kuang-nan exceeded the quota for that circuit, the extra men could be sent to the "distant evil prefectures," on Hainan and the south coast. If the quotas for Ghing-hu North and South or Fukien were exceeded, the extra men were to go to Kuang-nan. Even those criminals ordinarily excluded from transfers might be shifted if they were sixty years old or older and had been on the island five or more years (they could be shifted to Kuang-nan). If they had been on the island for ten or more years, such men could be treated as if they were ordinary criminals. The dangerously ill or those seventy years old or older might be shifted to "nearby prefectures" (near Teng Prefecture on the Shantung coast opposite Sramana Island). Even men "perpetually" forbidden to move might leave, but they had to serve two years beyond these conditions.185 Similar policies prevailed during the latter years of the Northern Sung as well.186 The convict quotas mentioned in the decree on amnesty also affected Sramana during the late Northern Sung. No formal quota seems to have been set for the island until early in the reign of Shen-tsung. Then, in the early 1070s, a quota of two hundred men was established, apparently following a request by the administrator of Teng Prefecture. Any convicts beyond the quota were to be shifted to other places of exile, literally "across the sea," referring to the nearby mainland of Shantung. This policy was immediately attacked by the Bureau of Military Affairs and the Judicial Control Office, which warned that it would weaken the deterrent effect of punishment. These agencies asked that if men had to be shifted, they be sent to Yai Prefecture, Tan b Prefecture, Ch'iung Prefecture, or Wan-an Prefecture, that is, to the "distant evil prefectures" located on Hainan Island. As a consequence of these criticisms, 184 HCP 236.24b; SHY, hsing-fa 4.26a. 185 HCP 468.6b (1093). See also SHY, hsing-fa 4.31a. 186 WHTK 168.1480 (1096); SHY, hsing-fa 4.34a ( n 12), 36b (1117).
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the quota was raised to three hundred, and apparently the number of guards was also increased. 187 The orders issued as a result of this debate did not slow the flow of convicts to Teng Prefecture and, in any case, were only partly to the point. The larger quota of convicts and guards merely meant that more men moved to the island without any corresponding improvement in the already inadequate supply of housing or provisions. In the seventh month of 1073 the administrator of Teng Prefecture submitted a new proposal. He asked to be allowed to forward monthly to the Bureau of Military Affairs a list of the prisoners on Sramana, giving their names, homes, and crimes. The bureau could establish a register in which it would record the information from these reports. As long as the Sramana quota was filled, the bureau would not permit any more criminals to be moved to Teng Prefecture (the prefecture that had jurisdiction over Sramana Island). Men over the quota would be appropriately transferred. His recommendations were followed only in part. Although the increase in guards was to stand, the authorities in Teng Prefecture were to memorialize concerning convicts sent there by other areas. However, those sent to the island by special imperial decree were not included in this system. Because many of the men on the island were originally sentenced to death and then spared by imperial order, this latter proviso must have seriously weakened the impact of the general policy. 188 Sometime later, one more attempt was made to deal with these numbers. A system was set up under which Teng Prefecture was to inform the judicial intendant when its annual quota was half full. The intendant would investigate the report and pass it on to the Ministry of Justice. When the quota was full, this was to be immediately reported to the ministry, and at year's end the prefecture would send the judicial intendant a report showing the names and number of men currently held. 189 According to one gruesome and suggestive if exaggerated story, these formal quotas had been preceded by an informal and brutal de facto quota system. At some time before the reign of Shen-tsung, perhaps in 1058, a quota had in effect been set by providing for only three hundred men. In the years just before the accession of Shen-tsung, the military commissioner, Li Ching, was "solving" the problem of excess convicts by throwing all men over the quota into the sea. In two years he had killed seven hundred men. When Ma Mo was appointed administrator 187 HCP 245.14a, 246.6b-7a; SHY, hsing-fa 4.26b; WHTK 168.1460. 188 HCP 246.6b-7a; SHY, hsing-fa 4.26b. 189 TFSL 522.
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of Teng Prefecture, he was appalled by the practice, criticized Li directly, and prepared to submit an impeachment. Li then hanged himself, and Ma sent in a twenty-item reform proposal on running the island facilities. In particular he suggested that when the quota was exceeded, the oldest convicts who had not committed any offenses since arriving should be repatriated to Teng Prefecture. As a result many lives were saved. Afterward, when Su Shih was administrator in Teng Prefecture, the elders are said to have approached him in the street to ask if he would govern them with the same care as Ma Mo had shown.190 In later times a legend grew up around this story. According to Chao Shan-liao's Collection of Self-admonitions (Tzu ching pien), shortly after Ma Mo had secured Shen-tsung's assent to his proposed reforms, Ma was sitting in his hall. Suddenly it grew dark. As if in a dream he saw a gentleman coming through the air, accompanied by a boy and girl. When the gentleman arrived in front of Ma Mo, he cried out in loud voice: "I am from the Eastern Peak. The Sage Emperor has a Heavenly Order for Ma Mo. You have no descendants. Now in light of this business about transferring criminals from Sramana he has especially decreed that you shall have a son and a daughter." Then taking the two children, he mounted a yellow cloud and left. Ma rose in alarm. Later, as a result, he had a son and a daughter.191 In the end the problems of the island were solved not by the Sung authorities but by foreign invaders. When the Jurchen armies swept into Sung territory in the mid-1120s, the government transferred all the prisoners elsewhere or freed them and ordered the judges to send men who would have been sentenced to Sramana to registration in the "distant evil prefectures" in Kuang-nan, on a "temporary" basis. 192 The Sung never returned, and the Chin do not seem to have used the island as a place of exile. The brutal chapter in the island's history was over.193 Registration in "distant, evil" prefectures After S r a m a n a Island as feared places of penal registration were the socalled distant evil prefectures of K u a n g - n a n . T h e s e included, according to a Southern S u n g listing, some thirteen prefectures. Four were on H a i n a n Island - Yai, C h ' i u n g , T a n , a n d W a n - a n prefectures. T h e 190 SS 344.23b. 191 Cited in Chiang T'ing-hsi, Ku-chin t'u-shu chi-ch'eng, chih-fang tien 280, tsa-lu 2a. 192 TFSL 520. Men from Hainan who were being punished with registration were to be sent to the "distant evil prefectures" in the mainland part of Kwangtung. 193 SHY, hsing-fa 4.36b; TFSL 526, 527.
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nine other prefectures were almost all on the mainland of Kuang-nan opposite Hainan. All shared a general reputation for being unhealthy. Malaria was endemic. No doubt the Sung authorities pictured the lives of convicts in these places as nasty, brutish, and short. 194 Unlike convicts elsewhere, the men sent to the prefectures on Hainan Island seem to have been used as soldiers to fight against the indigenous Li b tribespeople, which led periodically to security problems caused by escapees who joined forces with the natives. 195 Distance of registration and regional transfers Below registration in " d i s t a n t evil prefectures" came penalties measured in distance, at three t h o u s a n d , two thousand, one thousand, a n d five h u n d r e d li.d T h e actual distances were modified by m a n y factors a n d , according to a Sung ordinance, could vary legally as m u c h as three h u n d r e d lid from the specified distance. 1 9 6 T h i s division by distance c a m e to be integrated with policies determining the transfers of prisoners from region to region. A n a t t e m p t was m a d e to move m e n guilty of serious crimes to regions with which they would be unfamiliar, for example, moving southerners to the north, a n d vice versa. H a r d e n e d criminals from the area known as Ling-nan (corresponding generally to K w a n g t u n g ) were supposed to be registered in areas north of the divide (in Ling-pei). 1 9 7 Serious criminals from Ling-pei were often registered south of the divide (in Ling-nan). A decree clarifying the terms of a n amnesty dated i o 18 gives some idea of the way that the system then worked. T h e amnesty h a d reduced death sentences to exile or penal servitude, b u t there was some confusion a b o u t w h o w a s to be sent where. T h e decree stated: Violent bandits who have injured men and were to be registered at Sramana Island, if from Kuang-nan are to be registered at Ch'iung, Tan, Yai, or Wan-an prefectures [i.e., the "distant evil prefectures" on Hainan Island]; if from I-chou or T'zu-chou circuits, at Shang, Chun, Chin, Hsiang, or Teng prefectures; or if from Li-chou or K'uei-chou circuits, in Ching-hu South Circuit. All are to be held in the prison citadel commands. After being tattooed on the face, those who did not injure people may be registered at one thousand lid plus citadel commands. Where the penalty is less than exile, register them in their own cities. 198 [See Map 12.3.] 194 For a fine description of conditions on Hainan Island, see Edward H. Schafer, Shore of Pearls (Berkeley and Los Angeles: University of California Press, 1970). 195 SHY, hsing-fa 4.i4a-b, 33b, 5gb-6oa. 196 TFSL521. 197 SS 199. 4971. 198 HCP 91.13b (1018).
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HAINAN ISLAND!
Penal registration
HAINAN r> ISLAND f
*) C
Map 12.3. Sung circuits. CY = Ching-yuan circuit (1001); FY = Fu-yan circuit (966); HC = Huan-ch'ing circuit (966). Hsi-ch'uan (I-chou and Tz'u-chou) was a circuit by 969. Hsia Lu (Li-chou and K'uei-chou) was a circuit by 994 at the latest. Ho-pei was a single circuit as early as 1004 and was four circuits from 1048.
Another decree, from the early eleventh century, provides information on the working of this system: From now on, all the bandits who are liable for tattooed registration at prison citadels at a distance of one thousand li,d if they are from Ho-pei or Ho-tung all should be registered south of the Yellow River; those from prefectures in Shensi should be registered east of the T'ung Pass; those from prefectures in Ching-hu South should be registered in Ling-nan; those from Hupei should be registered in areas across the Han River; those from Chiang-nan and Liang-che should be registered in areas north of the Yangtze River; those from Szechuan, in areas outside the borders of that region; those from the prefectures of Kuang-nan near the mountains, in the region north of those mountains; those from other parts of Kuang-nan, in the Eastern and Western circuits should exchange prisoners or transfer them to Fukien; and those from Fukien should be registered in Kuangnan or Chiang-che. 199 [See Map 12.4.] 199 SHY, hsing-fa 4.4a.
433
Map 12.4. Transfers of amnestied convicts: this page, north and central China; facing page, south China
434
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Law and order in Sung China
Choice of prefecture for registration Policies determining regions had to be integrated with policies for determining the specific prefectures to which men would be assigned. Choosing the appropriate prefecture for registration was a complex process, except for convicts to be registered at their home prefecture or at maximum-security locations. The sentencing document might say that a particular convict should be registered at a prefecture a certain number of lid away, but decisions about where convicts were to be sent were only partly determined by the distance noted in the sentencing document. In theory this would have meant that any of a ring of prefectures at the appropriate distance from the convicting prefecture could be used, but in practice this was not so. There seem to have been some general policies not now mentioned in the extant documents but reflected in the specific examples preserved in the sources. These policies came to be embodied in precedents (lie) that stemmed from individual imperial orders. 200 These policies apparently took two forms. One form, just described, specified that criminals (sometimes only certain sorts of criminals) from certain large geographical sections of the empire were to be sent to specified other regions. The other sort of order indicated that convicts from Prefecture A were to be sent to Prefectures B, C, or D if their sentencing document specified punishment at a X li,d but to Prefectures E, F, and G if the document specified Y lid and so on.
Problems and solutions Although in many ways the system of penal registration remained basically unchanged during the dynasty, some aspects were altered. Such changes resulted from the continuing effort to make the level of punishment fit more closely the crime committed and from the continuing growth in the numbers of crimes for which penal registration was the penalty, but the major impetus seems to have been the desire to limit both the costs and the suffering of the convicts, their families, and their guards. These changes can be seen in the historical evolution of the system. The Sung had inherited from the Five Dynasties the system of penal registration, with its disparate and sometimes conflicting aims. These five dynasties, four of which had their capitals at Kaifeng, controlled only north China. Because no region under their control was excessively far from the Kaifeng and because large amounts of labor were needed in the capital, the general policy was that all serious criminals were to be 200 SHY, hsing-fa 4.50b (1163).
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sent there for sentencing. The Sung took over this system from the Later Chou, and before 981 it appears that all criminals guilty of crimes calling for penalties heavier than beating with the heavy rod had to be sent in fetters to the capital for sentencing before being sent to their place of registration, which often was in the northwest. Their families and dependents accompanied them. At the beginning of the Sung, when the state was confined to part of north China, such a policy was perhaps understandable. By the 980s, however, the Sung had successfully retaken south China. As the empire grew, the burden on the prisoners, their dependents, and the accompanying guards became much heavier. A report in 981 said that 60 to 70 percent of the convicts sent died en route. This estimate may be exaggerated, but clearly the old system was causing problems. Early reforms of the system The need to reform the old system was obvious. The purposes of punishment were to deter others, to provide the state with labor, and to chastise the guilty while encouraging them to reform and giving them the opportunity to do so. Dead convicts could hardly reform themselves and become useful citizens. A system that exacted excessive penalties, even if only incidentally, was contrary to the state's long-term interest. Nor was the suffering of the accompanying dependents justifiable. Finally, as the empire grew, the number of convicts to be sent to the capital increased, adding to the security problem. In 981 an official proposed reforms designed to resolve these problems. First, he suggested that the prisoners be interrogated on arrival at Kaifeng, to uncover any abuses by those bringing them. Second, he asked that only the principal criminals be automatically sent to the capital. Families and dependents should await a separate imperial order. Those other than the principals involved in the crime were to have their cases reviewed by the circuit intendants, and if sent to the capital, they were to be exempt from wearing fetters. This official had himself ruled in one case that the families need not go to the capital. The record says that "from this time on, the number of criminals sent from Chiang-nan was reduced by more than half."201 The policy of excusing dependents from coming to Kaifeng with the prisoners was aimed at alleviating the suffering of families that accompanied men who came to the capital only to be sent on for registration elsewhere. It was not aimed at permanently separating families. Orders in 1012 and 1013 show, however, that the 201 HCP 22.16b-17b. On the Sung inheriting a policy of sending men to the northwest, see SS 201.5016.
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Law and order in Sung China families and dependents of some criminals still accompanied them to the capital. 202 Initially, the Sung continued the Five Dynasties policy of sending most serious criminals for registration in the northwest by way of the capital. This policy may have provided labor where it was needed, but it also created security problems. Such men often escaped and joined forces with non-Chinese tribesmen. When the Sung conquered the south, a policy was inaugurated of sending some serious criminals for registration to the newly acquired southern regions. 203 As with the capital, of course, labor was still needed in border prefectures, and so some criminals continued to be sent there. A decree of 1006 ordered officials to send to the borders those recidivist robbers from Szechuan and Shensi who were liable for penal servitude and whose crimes were serious. 204 No doubt there were other similar orders, now lost. Reforms under Jen-tsung The new policy of the 980s eliminating the mandatory sending of all those convicted of serious crimes to Kaifeng was targeted at ending certain abuses and at reducing costs and suffering. Later attempts to modify the system betray the desire to balance the maintenance of control by the central authorities, the need for imperial security, the capital's need for labor, and the costs of long-distance transport. Because the Court did not want to lose any control over the disposition of its forced labor units, the local officials were ordered to keep the central government informed about the convicts that they dispatched. However, some prefects apparently took advantage of the changed rules and sent men away for registration without reporting this to the capital. Shortly after the accession of Jen-tsung (r. 1023-63), he ordered local officials to stop this practice. The Ministry of Justice was to receive reports and review the sentences. Because of the growing problems of law and order in the mid-eleventh century this order, and the other procedural safeguards added, seem not to have been effective.205 Reforms under Shen-tsung Problems with the system persisted. In the late eleventh century, when the Court attempted to deal with a host of accumulated state problems, 202 HCP 78.14a; 80.4a. 203 SS 201.5016. Although it is said that the policy of sending men to this region (Ling-nan) was abrogated in 1008, this does not in fact seem to have happened. 204 HCP 63.6b. 205 SS 201.5016-17.
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the system of penal registration also came under review. Emperor Shentsung (r. 1067-85) was concerned about the malfunctioning of the system, in particular about the expenses of transporting prisoners and the loss of life en route. The official Su Sung recommended that we follow the ancient practice, establishing prisons. When it is time to punish those liable for exile, shave their heads and chain their ankles. During the day they can work where they are being held, and at night they can be kept in these prisons. When they have served three years, they can be released. If there should be an amnesty before they have completed their terms, do not free them. When they have been released, send them home and keep them under surveillance. If after three years, they have no violations, let them become as before.206 Shen-tsung did not fully follow Su Sung's suggestions, but his basic position was restated by others. An official of the Secretariat Department (Chung-shu) criticized the current system for not achieving its goals. Under it, he pointed out: Good people, if they happen to transgress the laws, are beaten on the back, rejected by the multitude, and feel ashamed for life, whereas evil people, although tried and beaten, are at peace with themselves in a few fortnights, forget about their pain, and feel no shame, so that the punishment is not adequate to restrain their evil. If with regard to those sentenced to penal servitude and exile whose circumstances were not evil, you were to order that we return to the ancient law of confined labor, reducing its length if an amnesty occurred, then the good people could avoid injury. When their terms of labor were completed, they could return to being commoners, having renewed themselves. Evil people would remain government prisoners for years and so could not harm the good people.207 Eventually Shen-tsung reinstituted a system of keeping convicts in their home jurisdictions for miscellaneous labor. According to a note in the Ch'ang-pien:
In the beginning, Shen-tsung felt that the men transported for exile who were separated from their homes sometimes became ill and died en route. Also, the imperial army soldiers charged with convoying convicts lacked appropriate training and had to suffer labor and expense. Therefore he imitated the ancient penalty of exile, added a beating and tattooing, and had the convicts appended to the armies (in their home areas) for heavy labor.208 This policy, enacted during the Yuan-feng period (1078-85), apparently was used only in cases in which the crimes were not considered heinous. 209 It was reversed in the mid-1080s after the rise of the anti206 207 208 209
HCP 209.7a. HCP2i4.i7bff. HCP 360.1a; see also WHTK 168.1460. HCP 334.10a.
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reformers. Their basic position was stated in an order that "men liable for penal registration be registered after transport in accord with the previous system." 210 An edict of 1086 suggests that in practice, for several years there was a mixed system in which some convicts were moved and others were not: Miscellaneous laborers who have been registered in the army from the prefectures of the various circuits are to be registered in their current prefecture's prison citadel commands. In the capital those who were originally liable for registration in Kuang-nan may be divided for registration under the capital's East and West Pottery Works; those liable for three thousand lid registration may be registered in the cart encampment works. Those liable for two thousand lid registration may be divided and registered under the Kuang-ku command. From now on, all men guilty of crimes calling for penalties heavier than beating with the heavy rod should be transported for registration according to their original sentences.211
This mixed system apparently remained in use for a number of years. Then, in 1095, w n e n the reformers again controlled the government, they attempted to revive the Yiian-feng policy of limited movement of convicts, only to abandon it again soon thereafter.212 Reforms under Hui-tsung When the reform partisan Ts'ai Ching came to power in the early twelfth century, he attempted to institute radical reforms of the system, ordering that jails be established in various prefectures for men guilty of robbery but spared death. They were to labor during the day and return to jail at night. When their sentences of labor were completed, they could enlist in the army. The system was tried twice, for a few years in each case, before being finally abandoned in mo, 2 1 3 but the problems associated with the alternative, transporting large numbers of prisoners, had not really been resolved. Southern Sung reforms Many of these same arguments again surfaced in the 1180s when the system again came under serious review. An initial criticism in 1184 was followed by an order that the Ministry of Justice and the Court of Judicial Review discuss the problem, but after three years they had 210 211 212 213
SS 201.5018; HCP 334.10b; WHTK 168.1460. See HCP 359.1 i a - b for details. HCP 379.18a. See also 4O2.yb-8a for more details. HCP 334.10b. SS 201.5019-20.
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reached no conclusions. The problem came under more general debate, during which one official commented, with regard to the idea of keeping men in their home areas to labor: If men are merely forced to labor and are not moved from their home areas, some of them will take advantage of this to do evil. This certainly will not serve to stop evildoing. If we completely follow the system of registration and are not considerate about tattooing, then who, having been once shamed by the tattoo on their face, will be willing to return to be enrolled [as a commoner]? Stalwart people, facing exile to a far place and the threat of the tattooing knife, having transgressed, would see no reason to reform. I have examined the regulations [ko] of the Ministry of Justice from the YCian-feng period [1078-85], under which all men to be registered were classified as "not to be transferred," "not to be freed," "may be transferred," and "may be freed." The regulations from the Cheng-ho period [1111-17] on registration also have the categories of "serious circumstances," "relatively serious circumstances," "relatively light circumstances," and "light circumstances." Suppose we follow the [earlier] regulations, with some revisions and additions. For example, if there are cases with "serious circumstances," then in imitation of the older system we could tattoo the faces of the convicts and apply the regulations on "not allowing transfers" and "not freeing." The next level would be "relatively serious," under which we could tattoo the temple [rather than the face] and employ the regulation on registration for ten years. When the circumstances are "relatively light," we could spare them the tattooing and apply the regulation on "not tattooing and releasing to return when labor is completed." If there are cases of "light circumstances," then command the convicts to do labor at a fixed place, and separately establish a regulation governing the time limit for their release. 214 Although it is not clear how many of these proposals were enacted, they do preserve a good picture of the detailed ways in which the Sung authorities attempted to use registration and its variations to deal with the problem of men guilty of similar crimes with widely varying circumstances. The policies of the period seem to have been generally like those followed during the Northern Sung, with some modifications. During some periods of the Southern Sung, it was common to register criminals in the newly established military agricultural colonies, where the soldiers were in theory part-time farmers who could be called on to fight in times of emergency. 215 The Southern Sung authorities also registered small numbers of convicts in units of the regular army rather than in separate units of their own. These convicts then provided heavy labor for the regular troops. 216 214 SS 201.5020. 215 See, for example, SHY, hsing-fa 4.50b, 51a, 52a-b, 52b, 53a, 53b. 216 SHY, hsing-fa 4.55a~56a, 6 i a - b .
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The resulting system of penal registration, if indeed it can be called a system, was the most complex pattern of punishments ever employed in traditional China (and probably anywhere else), but it did allow a maximum of flexibility to the authorities. The major role it played among Sung penalties can perhaps be suggested by noting the greater number of crimes calling for penal registration as the penalty. In 100816 there were 46; in 1041-48, 70; in 1070, more than 200; and in 1174-89 there were 570. 217
Conclusion The Sung system of penal registration is a superb example of the creativity with which the Sung leaders approached political problems. They did not theorize about them; rather, they molded the institutions and practices inherited from earlier dynasties to fit their views of contemporary needs. The greatest problem was excessive power in the hands of the military, especially but not exclusively the local commanders. The Sung rulers built on the solution begun by their predecessors by bringing the very best soldiers into the imperial armies concentrated near the capital. This posed a new problem: What was to be done with all the less capable soldiers not so selected? The answer was to find new uses for them. The provincial armies in which they were registered were in a sense welfare institutions providing a living for them. In this light the provincial armies could also serve as homes for the homeless in times of disaster. But idle hands are the devil's tools. Sung authorities avoided the dangers of an army with nothing to do by using the provincial armies as laborers. Thus the government at the same time kept potentially troublesome men busy and relieved ordinary commoners of having to perform many sorts of local tasks. The Sung dynasty also inherited and altered the traditional policy of registering some criminals in the army. Here again they did not create a new policy but changed the meaning of the ancient one by greatly increasing the number of men so used. The era preceding the Sung had been marked by severe laws harshly enforced. It was especially noted for the number of capital crimes on the books and the frequency with which criminals were executed. The Sung did not try to abolish these laws completely. Instead, the authorities initiated a policy of routinely sparing a great many of those nominally subject to the death penalty and lowering their actual penalties to penal registration. The men so spared provided the labor to relieve commoners of such tasks as running the 217 SS 201.5020; HCP 214.17b-18a.
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Table 12.2. Remuneration of soldiers in provincial army units Remuneration
Name of command Hsiung-chieh Command # 6
Wei-kuo Command # 6
Ch'ung-chieh Command #31
Prison citadel command
One bushel and five pecks of polished rice per month 480 coins per month Each spring, two lengths of coarse raw silk plus 1700 coins for tailoring Each winter, two lengths of coarse raw silk, one-half length of thin silk, twelve ounces of cotton [to be used in padding winter clothing], plus 850 coins for tailoring One bushel and two pecks of polished rice per month 600 coins per month Each spring, two lengths of coarse raw silk cloth, one-half length of thin silk, plus 1844 coins for tailoring. Each winter, two lengths of coarse raw silk cloth, one-half length of thin silk, twelve ounces of cotton, plus 1844 coins for tailoring One bushel and five pecks of unpolished rice per month Each spring, four lengths of coarse raw silk cloth, plus 1500 coins for tailoring Each winter, two lengths of coarse raw silk, one-half length of thin silk, twelve ounces of cotton, and 850 coins for tailoring One bushel and five pecks of unpolished rice per month Each spring, one length of coarse silk and 1150 coins for tailoring Each winter, one length of coarse silk and 1150 coins for tailoring
Source: Ch'en Ch'i-ch'ing, Chia-ting ch'ik-ck'eng chih, 7204ff.
postal system. The desire of state authorities to achieve the goals of punishment at an acceptable cost explains both the structure and the evolution of the Sung system of penal registration. The goal of deterrence was aided by the very public character of the criminals' punishment. They served as laborers in the army camps located at most Sung urban centers, where their ill-rewarded labors must have been regularly before the eyes of the public. This form of punishment also served the ends of social defense and rehabilitation. The men had been separated from their old evil associates as well as from their homes. They were put into a new controlled environment, where they were given the opportunity to make a new life for themselves. If they did their work well and did not cause any more trouble, they might look forward at worst to a move up into a more 443
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desirable unit of the provincial armies, with better conditions and treatment and more liberty. At best they might well be released to return home, though they had the option of volunteering for service in the provincial armies or, if young and strong, in the better-paid imperial armies. Because of the deep-seated belief in the ability of men to control their own behavior and to reform bad habits, the state tried to design a system that would provide incentives for good behavior. We can gain some idea of how the state set before the convicts the prospect of a gradual improvement in their lot by comparing the remuneration of convict and nonconvict units of the provincial army stationed in T'ai Prefecture in Liang-che Circuit in 1223 (see Table 12.2). The intuitive brilliance of this Sung system is striking, especially in light of recent criminological research. Wilson and Herrnstein remark that there have been countless demonstrations of the effect of changed reinforcements on the deviant behavior of individuals in schools, prisons, and clinics. Virtually all these demonstrations have involved various forms of behavior modification.. . . These methods involve a variety of techniques . . . all of which have in common making rewards (and occasionally punishments) contingent on displaying desirable (or undesirable) behavior and ignoring, for the most part, the subjective state of the offender and his past history. The authors caution, however, that the improvements in behavior have not been shown to be lasting. Once the changed individual leaves the institutional setting, most effects seem to fade away, and the people so treated may well return to crime. 218 But removal from the institutional setting was just what the Sung system did not do. Many ex-convicts remained in an institutional (provincial army) setting that was very like the one they had left behind. In addition, the example of their recent (criminal unit) setting, and its drawbacks, was before their eyes each day. The use of the provincial armies as the locus of such rehabilitation was particularly desirable from the state's point of view. By means of their labor, the convicts were kept from the dangers of idleness and, at least as important, gave back to the state a good portion of the cost of their punishment. The Sung government could not have functioned without them. The penal system provided these laborers at relatively low cost. It was, in short, a brilliantly conceived apparatus. The Sung authorities were not so fatuous as to think that all men were likely to reform. They therefore built an elaborately flexible system of penalties within which there were many different ways to make penalties 218 Wilson and Herrnstein, Crime and Human Nature, p. 381. 444
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more severe. Maximum-security facilities were in places where conditions were harsh and dangerous, and the convict's life was likely to be nasty, brutish, and short. Labor on Sramana Island, in the cold waters off the north coast of Shantung, with bitter winters and the drudgery of the salt works, was the next penalty below death in the Northern Sung; the malarial wild country of Hainan Island filled the same role in the Southern Sung. Yet even here the men sent for punishment were not without hope. The state still publicly followed policies that could lead to their reintegration, at least to some degree, in the larger society. The Sung government balanced its labor needs and its desire to promote reformation against its needs for security and social defense. These various aims often conflicted, however. The compromises used to deal with these conflicts varied with the time and place. The Sung leaders argued about the proper balance, and the mixture of policies changed as the personnel in the administration and the current situation changed. But some underlying and defining characteristics remained the same. Perhaps most important was the belief, which seems to have been shared by all significant leaders, that most criminals were capable of contributing to the overall social endeavor, if only as closely watched and not wholly trusted soldiers. By designing a carefully graded hierarchy of control policies that extended beyond the end of a convict's sentence, the Sung leaders demonstrated their great common sense and avoided the pitfalls of the modern policy of simply releasing many exconvicts into the larger society where they must find their own way. The Sung system was anything but neat and well ordered, but if we judge from the success of the Sung in avoiding dangerous unrest in local areas, it was remarkably effective.
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13 The death penalty
Introduction The death penalty as it was generally practiced in traditional China was the ultimate demonstration of the ruler's power and the ultimate humiliation of the powerless victim. Like executions in early Europe, it was a profound and loud message to all concerned and therefore required a public ceremonial. The victim was executed in public, and sometimes his head would be publicly displayed. His personal suffering at the same time shamed his family and his ancestors. One early Chinese term for execution, still used in Sung texts, means, literally, "casting away in the marketplace" (ch'i-shih). The victim suffered the final ostracism, being cast out from this world. The ceremony reinforced the message about the relationship between criminal punishment and war and reiterated the role of the criminal as a foreign attacker of society, for the ax or the sword was in the hands of a soldier. In antiquity, Chinese states used a wide variety of forms of execution, frequently brutal and sometimes public. Burning, cutting in two at the waist, dismembering, being torn apart by chariots, slicing, the list goes on and on. The sources, however, give the impression that the most gruesome penalties (with the notable exception of death by slicing) were far more common before the creation of the unified empire in the third century B.C. During the Ch'in and the Han there was a movement toward a more limited repertoire of forms of execution, strangulation and beheading being the most common.1 These two penalties continue to be the most typical forms of execution for the rest of traditional Chinese history. 1 For an excellent summary of materials drawn from the standard traditional sources, see the work of the very great late Ch'ing jurist and scholar Shen Chia-pen, Li-tai hsing-chih k'ao (Beijing: Chung-hua shu-chu, 1985), fu-chi i-wen tsun, vol. 1, chap. 17.
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Sung death penalties When the Sung dynasty inherited from the T'ang the traditional system of the Five Punishments (wu-hsing) - beating with the light rod, beating with the heavy rod, penal servitude, exile, and death - it initially continued to use the two forms of death penalty that had been most common under preceding dynasties, strangling and beheading. These two penalties embody fundamental Chinese views about the world, and their difference was important not only to the suffering victim but also to the onlookers who received their message. Beheading was the ultimate mutilation. The Chinese believed that for the proper passage of the soul, the body must be whole. To dismember the body, and particularly to sever the head, was to extend the person's punishment beyond the grave. 2 Beheading thus was much more to be feared than strangulation. The Sung was not distinctive in its forms of execution, but it was distinctive in that several of its nominal death penalties were often commuted to penal registration, and it frequently spared other sorts of criminals sentenced to death, using a variety of devices described in Chapter 14. Beheading and strangulation T. T. Meadows described a group of beheadings in Canton in the midnineteenth century. We have no reason to believe that the procedure differed in its essentials from that practiced in the Sung, so in the absence of contemporary Sung descriptions, we shall quote Meadows at some length: Having heard, on the evening of the 29th July, 1851, that thirty-four rebels or bandits were to be executed on the following day between eight and ten o'clock, I went to the ground at about half past eight with two English residents at Canton, who had not previously witnessed any execution. . . . The criminals were brought in, the greater number walking, but many carried in large baskets of bamboo attached each to a pole and borne by two men. We observed that the strength of the men so carried was altogether gone, either from excess of fear or the treatment they had met with during their imprisonment and trial. They fell powerless together as they were tumbled out on the spots where they were to die. They were immediately raised up to a kneeling position and supported thus by the man who stands behind each criminal. The following is the manner of decapitation. There is no block, the criminal simply kneels with his face parallel to the earth, thus leaving his neck exposed in a horizontal position. His hands, 2 It is presumably for some such reason that in the earliest literate Chinese dynasty, when men were sacrificed, the bodies and the heads were often buried in separate places. 447
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Figure 13.1. Beheading. From Tsang Mao-hsun, Yuan ch'u hsiian. crossed and bound behind his back, are grasped by the man behind, who, by tilting them up, is enabled in some degree to keep the neck in the proper position The executioner stands on the criminal's left. The sword ordinarily employed is only about three feet long The executioners . . . are taken from the ranks of the army The sabre is firmly held with both hands, the right hand in the front, with the thumb projecting over and grasping the hilt. The executioner, with his feet firmly planted some distance apart, holds the sabre for an instant at the right angle to the neck about a foot above it in order to take aim at a joint: then, with a sharp order to the criminal of "Don't move!" he raises it straight before him as high as his head, and brings in rapidly down with the full strength of both arms, giving additional force to the cut by dropping his body perpendicularly to a sitting posture at the moment the sword touches the neck. 448
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Figure 13.2. Beheading. From Feng Meng-lung, Tien-shih chai hua-pao. He never takes a second cut, and the head is seldom left attached even by a portion of the skin, but is severed completely. 3 [See Figures 13.1 and 13.2.]
We also do not have contemporary descriptions of the other standard Sung death penalty, strangulation. Again, we may assume that it was carried out in the Sung as it was during the Ming and Ch'ing periods. During strangulation the victim was tied to a post while two soldiers slowly turned a rope twisted about his neck (see Figure 13.3). This procedure was obviously a far more painful death than simple behead3 T. T. Meadows, "Description of an Execution at Canton," Journal of the Royal Asiatic Society 15 (1856): 55.
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Law and order in Sung China
Figure 13.3. Strangulation. From Ch'uan-shan hsienpao-chia chang-ch'eng.
ing, but because it left the body whole, it was regarded as less serious. According to traditional Chinese beliefs, the severing of the head from the body destroyed the spiritual life of the victim. Preserving the body whole, even at the cost of a very painful death, was preferable.
Irregular death penalties When driven to it by especially frightful crimes, the Sung authorities might set aside the standard penalties and inflict even more gruesome ones. Occasionally the Sung employed the ancient punishment of cutting in two at the waist. 4 In 1020 one group of criminals, convicted of crimes pertaining to the state, were crucified. After three days their hands and feet were cut off. Then they were finally executed. Several others convicted in this same incident were punished one step less harshly. They were not crucified, but their hands and feet were cut off before they were executed.5 The sources also mention men who, as a formal penalty, were "beaten to death." 6 4 SHY, hsing-fa 4.2a (980); HCP 127.4b (1040), 157.4a (1045), SS 200.4998 (1075); HNYL 183 (1127). 5 HCP 96.11 a. 6 HCP 21.9a, 99.9b, 2i3.i9b-2oa, 217.4b, 341.8b.
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Figure 13.4. Death by slicing. From Chin-shan hsien pao-chia chang-ch'eng.
The best known of these irregular punishments is the punishment usually called death by slicing (ling-ch'ih). The earliest records of its use can be found in the section on punishments in the standard history of the state of Liao (907-1125) founded by the Khitan. 7 In Sung times, the victim's limbs were first sliced off, and then his throat was cut8 (see Figure 13.4). Although the first Chinese state to employ the penalty was probably the Later Chou (951-60), 9 the Sung apparently borrowed it directly from the Liao, since the Later Chou ended in 960, and the earliest reference to death by slicing in Sung sources dates from i o n . In 7 See McKnight, "Death by Slicing"; T'o T'o, Liao shih (Taipei: San-min shu-chu, 1965), 113.2a, 3b, 5a, 6a; 114.3a. The term ling-ch'ih is probably of foreign origin. The attempts to find Chinese roots for it are unconvincing. 8 WHTK 167.1447. 9 In the Treatise on Punishments of the Old History of the Five Dynasties (Chiu wu-tai shih) there is a description of an execution using a short knife. Although the term ling-ch'ih is not used, it seems clear that this was the punishment used. See Ch'iu Han-p'ing, Li-tai hsing-fa chih (The legal treatises from successive dynasties) (Taipei: San-min shu-chu, 1965), P- 374-
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that year an official in Ching-tung Circuit named Yang Shou-chen asked that the punishment be used for executing bandits. 10 And in 1014 another official asked that a murderous bandit be executed by being "sliced" (luan-hai). The emperor in this latter case questioned the use of such irregular forms of execution.11 "The Five Punishments are the regular system. How could we do something so cruel?" Permission was refused. Four years later the official Yang Shou-chen again asked to be allowed to use death by slicing, when he was in Shensi in charge of suppressing bandits. And again permission was refused.12 Under Chen-tsung's successor Jen-tsung (r. 1023-63) permission was granted to use death by slicing in executing the devotees of a religious sect that practiced human sacrifice.13 Various sources suggest that the punishment was used during this early period to execute those guilty of treason, of "plotting great sedition" (mou ta-ni) (violations of the temples, tombs, or palaces of the reigning house), or of murdering senior family members. By 1032 it was used as a means of executing bandits. In that year, when a district magistrate reported having used death by slicing to execute ten bandits, the court ordered that in the future such cases were to be reported before the executions were carried out. 14 In 1034, however, its use was approved for executing certain bandits. The decree stated: "If among the bandits captured, there are men who have already been found guilty of homicide and who have repeatedly committed banditry in which the circumstances of the crimes are truly evil, they may be executed by slicing." 15 And in the Hsi-ning period (1068-74) it was approved for some sorts of robbery and for sedition. 16 During this era of bitter political struggle, the penalty is said to have been used with some frequency in cases with political overtones, especially in cases in which the sentences were set by imperial decree, with the culprits being found guilty of "having acted in defiance of right." 17
10 SHY, ping n.6a; HCP 75.9b. 11 HCP 83.12a. 12 SHY, ping 11.7a; HCP 85.14b; see also WHTK 167.1447. This material is cited in Shen Chia-pen, Shen Chi-i hsien-sheng i-shu, chia-pien, vol. 1, p. 47. See also the comments of Niida Noboru, Chugoku hosei-shi kenkyu (Studies on Chinese legal history) (Tokyo: University of Tokyo Press, 1964), keiho, p. 157. 13 WHTK 167.1447. This is the date usually cited as the beginning of the punishment under the Sung. See Derk Bodde and Clarence Morris, Law in Imperial China (Cambridge, MA: Harvard University Press, 1967), p. 94. 14 HCP 111.19b. 15 SHY, ping 11.15a. 16 SS 200.4998; HCP 267.10b-1 ia. 17 WHTK 167.1449.
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The death penalty Procedural safeguards Despite the increased use of death by slicing and the occasional use of other especially cruel forms of execution, Sung writers frequently praise the Sung rulers for their mercy toward prisoners accused of capital crimes. The T'ang dynasty was regarded as a very lenient era, but the era of the Five Dynasties that preceded the Sung was seen as a period of great cruelty. The Southern Sung historian Hung Mai remarked that "during the Five Dynasties the rulers treated killing men as an amusement, and men's lives were as grass." 18 Sung emperors are thus credited with trying to correct some of the Five Dynasties' excesses. Because execution could not be undone, there was special concern that no errors be made in sentencing. The result in Sung times was a judicial system that combined a legal commitment to openness with a lack of openness in practice. The openness was intended to help avoid injustices, as well as to defend officials from charges of abuse; the lack of openness in practice resulted from the illegal but often tolerated actions of the clerks and guards, who were not members of the elite. The nominal commitment to openness included a trial system in which at the end of the trial the accused was to have his case record read to him and had to acknowledge its accuracy before his sentence could be given. This practice, which is mentioned in the classical Book of Historical Documents, continues to be a characteristic of Chinese justice today. According to Sung law, the record was supposed to be read at a plenary meeting of the headquarters officials and the clerks involved in the case. In practice, however, clerks are accused of "plucking out the paper, carelessly reading it out, abbreviating its wording, pronouncing words so they are incomprehensible, and having done all this hurriedly, stopping and calling on the prisoner to sign his name." 19 A similar openness was also supposed to characterize the actual execution itself. There are several brief descriptions of some of the steps in carrying out capital sentences. Various officials, including both those who had been involved in the case and other colleagues, were to participate in interrogating the condemned person immediately before his execution. He was to be questioned about his home, his age, and his name, to be absolutely certain that these did not differ from those in the records. He was to be given wine and food, allowed to speak his final words to the spirits, and to visit with his relatives. Both his relatives and 18 Hung Mai, Jung-chai sui-pi, fifth collect., p. 65. 19 WHTK 167.1455.
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the condemned convict were to have his criminal record read to them. The man to be executed was not to have his mouth or his ears stopped up, nor was his face to be covered. This was to permit him to question the record as it was read. For the same reason the record was not to be read in a hurried manner. 20 Nonetheless, the process was sometimes so rushed that the wrong prisoners were punished. 21 And at the time of actual execution, according to the eleventh-century official Lin Tan, condemned prisoners were frequently abused: When people are to be executed publicly, if there are those among them who have been bound and whipped, they are carried in baskets [to the place of execution] and afterward are freed to walk, with their mouths and ears plugged. Also, paper money is used to cover their heads thickly. The prison runners from the army command number about a hundred. They crowd before and behind the prisoner, enclosing him. They use iron hammers to strike the fetters. They call out, drumming up a hubbub and not stopping for a moment. Even if he wants to call out that there has been judicial abuse, the criminal has no way of doing so.22 Although there were exceptions, capital sentences generally took place in the jurisdiction where the case had been tried. 23 The execution itself was to be carried out between one and five o'clock in the afternoon. Executions were supposed to be carried out only at the execution ground. No added injuries were to be inflicted on the body. This whole process of public execution was so frightful and demeaning that prisoners often sought ways to avoid it. This was by no means a new problem. The T'ang Code (in a passage copied into the early Sung Code) reports: When the case reports of criminals convicted of capital crimes have been completely investigated and the prisoner's relatives deliberately kill him, or hire someone else to kill him, both the relatives and the actual killer are to be tried for the original death penalty handed down for the prisoner, with their penalties reduced by two degrees [to penal servitude]. The statute goes on to list factors that might affect the severity of the sentence against those who arrange for the death of a condemned prisoner, but in all cases it is clear that such homicides would be prosecuted. The determination of the Sung government to discourage such actions is reflected in a decree of 1046 that promised huge rewards 20 TFSL 500; WHTK 167.1454. 21 WHTK 167.1454. 22 HCP 376.5b-6b. Dr. Charles Benn has suggested that the practice of gagging prisoners on the way to execution may have originated during the reign of Empress Wu. 23 See HCP 9.7b for an example of an exception.
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The death penalty to those identifying any clerks who provided poison or otherwise killed those waiting for execution. 24 One night after the execution, the relatives or friends of the victim were to be allowed to claim the body for burial. If there were no relatives or friends to claim the body, it was turned over to the authorities for burial. Because the days on which men were executed were inauspicious, officials in the jurisdictions involved were forbidden to listen to music, and the emperor continued a traditional practice of abstaining from music and eating simple food.25
Timing of executions During the Sung the consideration of capital cases and the execution of criminals were governed by policies regarding the appropriate timing. The ideological roots of these rules are very old. In the Chinese written record they can be traced back to the "Monthly Ordinances" section of the Book of Rites, according to which capital punishments were to be carried out in the late autumn, to accord with the nature of the season of death: "In the second month of Autumn .. . orders are given to the proper officers to revise with strict accuracy [the laws about] the various punishments. Beheading and [the other] capital executions must be according to [the crimes] without excess or defect. Excess or defect out of such proportion will bring on itself the judgement [of Heaven]." 26 During some earlier dynasties this had led to a pattern of holding men sentenced to die until the arrival of autumn, when they would be executed. This policy was meant to fit the actions of the emperor with the characteristics of the season of the year. This same policy was suggested to the Sung emperor but was rejected as a general policy because it would have resulted in suffering for those men being held for extended periods in jail. 27 The Sung emperors temporized, sometimes delaying executions. The alternative policy of not delaying executions was probably more generally practiced during the Sung and was designed to show the emperor as a benevolent ruler seeking to avoid undue suffering, even that of convicted and condemned persons. The Northern Sung official Su Sung [1020-1101] summarized both traditions: Our state uses humane concern in ruling the world. The ruling ancestors were extremely careful in their use of penalties.... From the Court above to the 24 HCP 158.13a. 25 SHT 30.494; TFSL 500. 26 James Legge, trans., Li Chi: Book of Rites (New Hyde Park, NY: University Books, 1967), vol. 1, p. 288. 27 SS 1994974-
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Law and order in Sung China
prefectures and districts below all honor the decrees and do not violate them. Even if it is merely a matter of a beating with the heavy or light rod, if it is not in accordance with the law, it is not done. When there has already been a conviction, additional investigations are carried out by the officials. . . . It is only the timing of death penalties that has not yet been settled. . . . The [Classic history entitled the] Tso chuan says, "Reward them in the spring and summer. Punish them in the fall and winter." This was the timing of the Three Dynasties [of Hsia, traditionally dated 2056-1752, Shang, traditionally 1751-1122, and Chou, 1122—256]. In spring and summer, executions were never carried out. The histories record that during the Ch'in [221-207], men were executed in all seasons, and Wang Mang [r. 9—25] killed men in the summer. These really were evil governments. Under the Han system, condemned criminals were regularly executed in the three winter months. They were not executed in spring and summer [literally, "when yang flourished"].. . . From the Eastern Han [27-220] this system has sometimes been practiced and sometimes not. In recent times it has not been used. . . . Generally this has been because people were concerned about convicts being held in jail for long periods of time. 28
The emperors also wanted to fulfill their filial obligations to their ancestors and to show their concern by observing days of mourning. The early Sung Code preserves a T'ang dynasty decree dating from 833 that says that on days commemorating the deaths of emperors and empresses, drinking wine or listening to music was forbidden. Only the most minor penalties could be carried out.29 Like other dynasties, the Sung also enacted various policies that prevented the punishment of prisoners on inauspicious days. Failure to observe the proper timing could injure the functioning of the natural order. Some taboos it inherited from earlier times, but others were introduced or reintroduced by Sung officials. In 991 an official asked that there be no capital sentencing on the first day of the new year or on other ritually important days such as the eighth day of each month and the first and fifteenth days of the first, seventh, and tenth months.30 Another early important document on this policy was submitted in 1002. An official cited the Classical precedents for avoiding executions during certain times of the year. He noted that during the early and middle T'ang these rules were followed but that they had fallen into disuse during the late T'ang and Five Dynasties. He cited an edict from 942 during the Later Chin, retained in the early Sung Code, that ordered that executions were not to be carried out on overcast days, in rain or snow, 28 Su Sung, Su Wei wen-kung chi, i8.8a-b. Su Kung himself favored a return to the policy of not executing people (except those guilty of certain terrible crimes like rebellion) during the spring and summer. 29 SHT 26.406. 30 WHTK 166.1444.
456
The death penalty
or on the days called "Beginning of Spring" (li-ch'un, i.e., the fourth or fifth of the second lunar month, or about the beginning of March), "Beginning of Summer" {li-hsia* i.e., the sixth or seventh day of the fifth lunar month or about the beginning of June), the days of great imperial sacrifices {ta-chi chi), the day of mid-winter (cheng tung), or the important Buddhist holiday called the Cold Food Festival. 31 He argued that because the Later Chin had been a time of great troubles, it had let the two days of Beginning of Spring and Beginning of Summer represent the whole of spring and summer. The Sung had reestablished peace and order and should extend this period. Because the year was composed of twenty-four periods of fifteen days each, the authorities could reintroduce some measure of conformity to the seasons by avoiding executions for fifteen days at the time of Beginning of Spring and Beginning of Summer. Some cases, such as those involving the Ten Abominations, would not be covered by this rule, nor would cases in the border areas under military law. 32 Whether this suggestion was fully accepted is not clear. We do know that five years later the authorities ruled that no documents concerning capital punishments were to be sent up on the day before either a major sacrifice (ta-ts'u) or a major anniversary (ta-chib), though the processing of minor criminal cases was not to be delayed. 33 During the reign of Chen-tsung, in 1012, an order forbade carrying out punishments for seven days during the holiday called "Heavenly Felicity" (t'ien-ch'ing), commemorating the dates of the receiving of the "Heavenly Books," which fell on the third day of the first month, and for one day on the sixth day of the sixth month, another time when the Heavenly Books had been received.34 Another document from later in that same year indicates that there were similar suspensions of penalties on the holidays marking imperial birthdays. 35 Again, in 1017 the throne approved a request by the Court of Rites and Ceremonies: As to the suspension of punishments on the various holidays, we now ask that the edicts of the past be classified as precedents and promulgated, under which all death penalties are to be temporarily suspended for seven days before and three days after the holidays of celebrating the receiving of the Heavenly Books on the third day of the first month [t'ien-ch'ing], the imperial birthday [hsien-t'ien] that falls on the first day of the seventh month, the imperial birthday that falls on 31 SHT liable 32 HCP 33 HCP 34 HCP 35 HCP
30.495. Officials who carried out executions at some inappropriate times were for fifty blows of the light rod (SHT 9.150). 53.9a-10b. 67.14b. 77.9b. 79.8b.
457
Law and order in Sung China
the twenty-fourth day of the tenth month [ch'u-sheng], the day called "Receiving the Mandate" (ch'eng-t'ien), for one day each on the sixth day of the sixth month [t'ien-k'uang] when the Heavenly Books were received, and the holiday called "Heavenly Omens" [t'ien-hsiang]. For sentences of penal servitude, exile, or less, four days before the holidays arrange the place [for carrying out the punishments], temporarily transfer the prisoners to these other locations, and send officials to execute the judgments three days before the holidays. Those criminals who have passed through the day of the holiday may be punished on the following day. On the holidays, for crimes of the heavy rod or less, when the circumstances are not serious, free the culprits. 36 T h e general concern of the authorities not to carry out death sentences during certain seasons is also demonstrated in an edict of 1020: From now on, in regard to those in the empire who have been sentenced to death because they have been guilty of the Ten Abominations, banditry with homicide, premeditated and deliberate homicide, or homicide during an affray, arson, armed robbery, official judicial abuses, rapacity by officials, the making of false official seals, heresy, the transmitting of witchcraft, the making of poison, or deserters from the imperial army [chin-chun] who have become bandits after deserting, if the twelfth month arrives, they are to be held temporarily in the jurisdiction of judgment. After the holiday of the third day of the first month [t'ien-ch'ing] is over, they may be executed. Those guilty of other capital crimes should not be sentenced and punished during the twelfth month or during spring and summer. They should be held, and a memorial should be submitted asking for a decision. Also, it was decreed, in the past those sentenced to death have been treated in accordance with an edict of beheading. From now on, except for the crime of contumacy [o-ni] in four degrees, which should follow the statutes concerning punishment, in cases of other crimes calling for beheading during the spring and summer those convicted should simply be beaten and held. When the "autumn equinox" [ch'iu-fen, i.e., the ninth day of the eighth month or about September 23] has passed, then they may be executed.37 This rule was relaxed somewhat some months later because of an official complaint that its strict enforcement was resulting in men's being held for long periods in jail. In "serious cases," the authorities could continue to carry out the penalties. 38 Two years later it was further ordered that certain officials in the capital were not to give death sentences on a certain set of holidays, including the days beginning each season. 39 Again, it is not clear how closely these rules were followed, 36 HCP 90.16b-17a. I have not yet been able to learn when the holiday called t'ien-hsiang fell. The term itself refers to the mineral drug realgar and was perhaps connected with the practice of drinking a special drink containing realgar at the time of the Dragon Boat races to ensure good health for the rest of the year. 37 HCP 95.140-153. 38 HCP 96.22b. 39 HCP99.i4a-b.
458
The death penalty
though their observance was not always strict. In 1024 t n e r u l e s w e r c again changed. Previously it had been forbidden to memorialize capital cases for five days before and after the Five Holidays [wu-chieh] and the third day of the first month. This was now cut to two days. Other sentences were not be to carried out on the days themselves. 40 Later that same year there was an order that in Kaifeng, the execution of penalties was to be suspended for three days on from the first day of the first month and the winter solstice, and one day on the fifth day of the fifth month. 41 In 1028 the chief minister commented that under Chen-tsung (r. 997-1022), there supposedly had been a system that forbade punishments and the hearing of cases for three days on either side of the dates of imperial mourning, and forbade officials to listen to music for five days on either side, but the system had gradually been abandoned. As a result of the minister's remarks, there was a new decree that punishments were not to be considered for two days before and after the holiday, and for three days music was to be banned. In that same year there was another order that there should be no executions for two days before and after the holidays called "Origin of Heaven" (ch'ien-yuan) and "Extended Tranquillity" (chang-ning). Other penalties could be inflicted except on the actual holidays. 42 In 1041 a decree indicated that executions were suspended only on the third day of the first month, on the day of "Heavenly Foundation" (t'ien-ch'i), the first day of the seventh month (hsien-t'ien), and the imperial birthday on the twenty-fourth day of the tenth month (ch'u-sheng). They were also suspended on the day of the "Origin of Heaven" (ch'ien-yuan), as well as the day before and after this holiday. 43 Such rules continued in force throughout the dynasty. The early thirteenth-century code, Ch'ing-yuan t3iao-fa shih-lei, contains an undated ordinance that states: Sentences of death are not to be carried out on imperial birthdays, on the third day of the first month [t'ien-ch'ing], during the holiday marking the first four days of the New Year [k'ai-chi], the first day of the seventh month [hsien-t'ien], or the twenty-fourth day of the tenth month [ch'u-sheng]. [In each of these cases, this means the three days before the holiday as well as the day after.] Nor are such penalties to be executed on the holidays of the sixth day, sixth month, commemorating the receiving of the "Heavenly Letters" [t'ien-shih], on the "Heavenly 40 41 42 43
HCP HCP HCP HCP
io2.i7b-i8a. 102.19b. 106.2b, 6a. 130.6a.
459
Law and order in Sung China
Foundation" [t'ien-ch'i], on ting-mao days [fourth days in the sexegenary cycle of dating], on wei-tzu days [twenty-fifth days in the sexegenary cycle], on the first day of the New Year [yuan-cheng], the Cold Food Festival [the sixteenth day of the second month, or about April 5], the winter solstice [the eleventh day of the twelfth month, or about December 22], the Beginning of Spring [the fourth or fifth day of the second lunar month or about the beginning of March], the Beginning of Summer [li-ksia, the sixth or seventh of the fifth lunar month, or about the beginning of June], the holiday of the star Jupiter [t'ai-sui], the first and fifteenth days of the months [san-yuan], the holiday of the Spring Festival [tat'ung], and the days commemorating imperial deaths. [For each of these holidays this means no executions on the day itself.] Nor are executions to take place on days when it is raining or snowing and not clear. 44
This passage suggests that there were more than fifty days a year when executions were forbidden, without considering days excluded because of inclement weather. The concern about appropriate timing demanded that the penalty be fitting, not necessarily that it be delayed. Fittingness could also cut the other way. When the timing was propitious for executions, they could sometimes be carried out with fewer procedural safeguards than in normal times. An order of 1008 says that after the first day of the ninth month - after the beginning of a period during which capital punishments might be carried out without disturbing the proper order of things - the Judicial Control Office (Shen-hsing yuan) and the authorities of the capital prefecture were not to memorialize cases involving death penalties. The Secretariat (Chung-shu) could itself give final rulings. 45
Reviews of death sentences The final act in this drama, the execution of the criminal, was the last step in what could be a complicated and drawn-out process. From the beginning of the Sung the general pattern in capaital cases was for the district authorities to prepare a preliminary finding, including a recommended sentence. The prefectural officials reviewed this document to see whether the crime documents were clear and the sentence appropriate, and then they reported their recommendation to the circuit level. The circuit authorities reviewed the documents and either approved the execution (if it seemed fitting) or forwarded the case to the capital for further review.46 From the early Sung period onward, some cases were being memorialized to the central authorities. A law on the review of capital sen44 TFSL 501. For the dates of hsien-t'ien and ch'u-sheng, see HCP 79.8b. 45 HCP 69.12b. 46 SHY, hsing-fa 4.57a-b.
460
The death penalty
tences was enacted in 962, two years after the founding of the dynasty. The commentary says that initially the emperor ordered the memorializing of all death sentences to the capital, but then (presumably in the law of 962) ordered the prefectural officials to make at least the initial determination. 47 By an order of 970, after a death sentence was passed, the case was to be reviewed and a report written on it in red ink giving such information as the law under which the case had been judged and the officials' names. 48 Although a policy of reviewing cases was revived, it does not appear that all such cases had to be reviewed. Only if the circumstances demanded compassion or the law was not clear were reviews mandatory. When Emperor Chen-tsung (r. 997-1022) came to the throne, he examined the reports on capital cases and was disturbed by the many death sentences he found. He asked his officials to explain why the T'ang system of three automatic reviews of death sentences had been abandoned. In the ensuing discussion, one official complained that the number of capital cases in the Sung was a hundred times that of the T'ang. He then went on to say that cases in the Sung capital jurisdiction were reviewed. However, when local officials had cases for which the facts were not wholly clear or there appeared to be mitigating circumstances, and they memorialized them for a ruling, they were often upbraided and punished by the central authorities for having acted improperly. An order of 987 had prescribed penalties for local officials who memorialized cases that they should have decided themselves. 49 Apparently the officials were worried about violating this rule. The official in this instance asked that all capital cases be reviewed. His stand was disputed by another official, who argued that "if all the capital cases of the empire are sent up for review, those who may be liable for death sentences will fill up the prisons and for long periods of time will not be sentenced." As a result, an imperial edict was issued expressing the emperor's concern for the multitude of people who became enmeshed in the law and stating that in the future, cases were to be sent up for review "when the circumstances are deserving of mercy or the law is doubtful." 50 Clearly, the edict of 1025 did not visualize the memorializing of all cases. The general Sung rule for such cases thus seems to have been that a case was to be memorialized if the case involved doubtful points of law or mitigating circumstances, but not otherwise. 51 Generally in these 47 48 49 50 51
WHTK WHTK STCLC WHTK STCLC
166.1443. 170.1474. 742. 170.1474-75; SS 199-4974-75739; see also HCP 104.7b.
461
Law and order in Sung China
cases the Court of Judicial Review (Ta-li ssu) rendered a sentence that was reviewed by the Ministry of Justice (Hsing-pu), 52 though at times the two units acted together.53 Cases without mitigating circumstances, for which the law was clear, were not supposed to be reviewed beyond the circuit level.54 There were also special orders excluding certain types of cases from the need for review. An order of 1002 on the beheading of deserters who committed banditry suggests that the punishment was inflicted by the jurisdiction involved without prior review,55 and a decree of 1043 gave the fiscal intendant of Kuang-nan the authority to behead "men registered in the armies who are guilty of repeatedly committing crimes with serious circumstances." The authorities were thereafter to send in a report. 56 A similar system was used in the late 1080s in those border areas where banditry was rife,57 and materials describing the earlier part of the reign of Shen-tsung suggest that in certain sensitive border areas, the military intendants had considerable leeway in executing criminals (and in imposing other penalties). 58 Summary justice was also reintroduced as a temporary measure in 1127 at the height of the Chin invasions.59 However, there also were orders requiring the memorializing of certain types of capital crimes, for instance, crimes of theft in which the booty was large enough to call for the criminal's execution.
Numbers of reviews Evidence giving the numbers of cases sheds some, unfortunately contradictory, light on this review procedure. A report dated 1033 says that the desk at the Ministry of Justice that reviewed capital cases processed about 200 per month, or 2400 per year. 60 This rate of review is also mentioned in regard to an incident recorded in the book of miscellaneous notes, Sheng-shui yen-Van lu, of Wang Pi-chih. Wang reported that the Court of Judicial Review said that although it ordinarily dealt with several hundred cases a month, for a period of more than a month no cases at all had been sent up. 61 52 53 54 55 56 57 58 59 60 61
For the earliest indication of this system, see HCP 5.30-43 (964). HCP 12307.10b (957). WHTK 170.1477. HCP 53.9a. HCP 142.10a. For other examples, see HCP 72.16a; WHTK 166.1445. HCP 376.7a. SS 1994979. HNYL 234. See HCP 113.13a, SS 1994976. Wang Pi-chih, Sheng-shuiyen-t'an lu, TSCC ed., 1.2.
462
The death penalty However, evidence from the late eleventh century indicates that the policy had changed. Only a small fraction of cases were being memorialized. An official reported in 1086 that between 11/23/1084 an<^ 11/23/1085, 264 cases calling for capital punishment had been memorialized, at a rate of 22 per month. Between the latter date and the end of the second month of 1086, in less than one hundred days, 154 cases had been memorialized, slightly more than twice the rate of the preceding year. 62 Even at this higher rate, the central authorities would have seen only about 500 cases in a year. And yet in the twelve months between December 1084 and December 1085, during which 264 cases were memorialized for review, 2066 people were sentenced to death. In 1086, during which at the rate current early in the year, there might have been 500 cases to review, some 5787 people were sentenced to die. 63 It seems clear that in the late eleventh century only 7 to 9 percent of the cases were being reviewed at the capital.
Records of executions The state maintained careful records of those executed. These reports may have been derived from reports compiled as a result of an imperial order of 974 that the prefectures were to report all death penalties. 64 The supervising authorities in the circuits were charged with maintaining records of the number of men sentenced to death in their subordinate prefectures. A decree of 1092 says that the judicial intendants were to submit to the Ministry of Justice quarterly reports of the number of capital cases reviewed, 65 and from 1091 there is a report indicating that reports were submitted in spring and autumn on the number and types of executions, which would be compared with the record of the preceding year. 66 Under the code of 1202 at the end of each year, the intendants' offices were to submit reports on the number of capital sentences handed down in their circuits, classified by the total number actually sentenced to die - those to die by slicing, by beheading, by strangulation - and those liable for death who had been spared. This enumeration was also to show the number of capital cases in which the men were not convicted
62 63 64 65
HCP 370.8b. SS 201.5012 and WHTK 170.1477 give the figure as 264 cases. HCP 363.19a, 393.29a. SS 3.50. HCP 349.1a. HCP 479.2b indicates that there was also an annual year-end report by the intendants in the circuits and the Censorate in the capital, to the Ministry of Justice, which then would report to the Department of Ministries the jurisdictions with the largest numbers. 66 HCP 465.15b.
463
Law and order in Sung China
in the jurisdiction because their cases had been memorialized, and the number executed on special imperial order for crimes not ordinarily capital. 67 The form reads: Specification [jfo"Aa] on Sentences in Criminal Cases: Numbers of capital sentences: The judicial intendant's office in such-and-such a circuit now records that the prefectures in this circuit in such-and-such a year have carried out so many capital sentences, classified as follows: Memorials sent — so many; death sentences - so many; death by slicing — so many; beheading - so many; strangulation - so many; spared death — so many; men not executed by this jurisdiction — so many (Note: These men that the jurisdiction was not competent to execute, as well as those spared, need not be listed again. The others should be enumerated in accordance with the list of those sentenced to execution after the cases have been memorialized.); executed on special orders for crimes not ordinarily capital - so many; memorialized cases - so many; sentences carried out in the jurisdiction - so many. (Note: Write for each person a report, giving the crime and the circumstances, including what jurisdiction handed down the sentence and whether or not the matter had already been charged.). The preceding itemized report as given above has been respectfully prepared and submitted. Department of Ministries, Ministry of Justice form. Such-and-such a year, month, and day. (Note: the various prefectures are to follow this format in reporting to the offices of the judicial intendant.) 68
Numbers of executions Sung sources generally do not tell us much about the number of criminals in the legal system. Fortunately, there are some figures concerning capital crimes, presumably stemming from a record system like the one just described. Although Li Yen, writing in 1060, said that before that time there had not been a regular system of annually reporting the number sentenced to die, in fact such figures were collected at least sporadically. The earliest information is a brief passage that says that between 969 and 975 some 4108 men were spared from death sentences. 69 In 990 a report states that in that year 800 were sentenced; in 1001, around 3200; and in 1025, 2 43^ persons were "sentenced to death" (tuan ta-pi).70 Although these are the only early records, beginning in 67 68 69 70
TFSL501. TFSL501. HCP 12307.7b. HCP 104.7b.
464
The death penalty
1060 there is a long sequence of such reports, covering most of the years until the end of the eleventh century and based on the system of annual reports of the number of death sentences established in 1060 after a request by Li Yen.71 As Table I3«i(a) shows, there was considerable, and unexplained, variation in the number of persons. There is also a series of reports from the early Southern Sung, found in the annalistic history Chien-yen i-lai hsi-nien yao-lu. The extraordinary decrease in the number of men sentenced to death suggests that there had been a radical alteration either in punishing serious criminals or in reporting punishments during this era. See Table i3.i(b). How are these discrepancies to be explained? There had not been sufficient significant change in the laws during the brief interval between 1099 and 1129 to cause this extraordinary decrease. The empire had certainly shrunk in size and population after the loss of the area north of the Huai River to the Chin invaders, but this loss was not enough to explain the huge drop in the number of capital sentences. Rather, it seems to be that the figures cover two separate categories. Although the Northern Sung figures are for total numbers of capital cases, most such cases were not memorialized but, rather, were finally decided on the circuit level. The Southern Sung figures probably excluded men dealt with on the circuit level and included only those actually executed after review at the capital. This possibility is suggested by a comment of the Northern Sung official Fan Ch'un-jen, who in 1086 noted that in the previous year 264 capital cases had been sent up for review, but in the end only 25 persons had actually had their sentences confirmed and been executed.72 This figure is close to the figures given for the Southern Sung. Thus, in the absence of dramatic changes in judicial procedure, it seems plausible that the figures are for these two different categories of persons. 73 71 SS 199.497772 SS 210.5012. 73 However, there is one passage that raises the possibility that in the Southern Sung all cases were memorialized, with only a small fraction of the people involved eventually being executed so that in fact the number executed during the Southern Sung may have been lower than during the Northern Sung. WHTK 167.1455 says only 181 cases were tuan out of 1811 capital cases in 1201. These Southern Sung figures are remarkably close to figures given for the T'ang. In a memorial dated 1060 an official noted that in the year 630 there had been only twenty-nine capital sentences, and only fifty-eight in 738; see HCP 104.7b. During most of the T'ang period, all capital cases were supposed to be memorialized to the emperor for review. It is not clear how well this was enforced during the T'ang, but the figures do suggest that the T'ang figures are for the number of memorialized cases ending in execution. This policy of memorializing capital cases was not followed in the succeeding Five Dynasties period.
465
Law and order in Sung China T a b l e 13.1. Numbers of persons sentenced to death
Date
(a) Number of persons condemned
968-73 996 1001 1023 1024 1025 1060 1062 1063 1064 1065 1066 1070 1071 1072 1074 1076 1077 1078 1080 1082 1083 1084 1085 1086 1087 1088 1089 1090 1091 1092 1098 1099
4108 800 3200 c. 2700 2200 2436 2560 1683 1606 2493 1736 1832 3523 3699 3792 3509 758 389 1104 1212 2815 2671 2365 2066 5787 5573 2915 5405 4261 4801 4191 2043 1395
Date
Number of persons
1129 1142 1144 1145 1147 1148 1149 1150
324 24 26 91 35 32 31 25
Source Hsu t'ung-tien 117.2a
WHTK 166.1445 HCP 48.15b Yin Shu, Ho-nan 2.5b Yin Shu, Ho-nan 2.5b HCP 104.7b HCP 191.9a-b HCP 197.16a HCP 198.18a HCP 203.17b HCP 206.27a HCP 208.20b HCP 218.22a HCP 228.20a HCP 241.13b HCP 258.17b HCP 279.24b HCP 286.7a HCP 295.13b HCP 310.16b HCP 331.22a HCP 341.19b HCP 350.14a HCP 363.19a HCP 393.29a HCP 407.21a HCP 420.16a HCP 436.22a HCP 453.16a HCP 468.27b HCP 479.12b HCP 504.21a HCP 519.10a (b)
Place in HNYL 594 SS 30.558 2460 2497 2548 2574 2602 2625
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The death penalty
Table 13.1. (cont.) Date
Number of persons
Place in HNYL
1151 1152 1153 1154 1155 1156 1157 1158 1160 1162 1202
22 16 25 19 21 30 19 47 31 41 181
2650 2676 2708 2739 2799 2900 2950 2997 31,326 SS 33.621 SS 200.4995; W H T K 167.1455
1260 1261
33 35
SS 46.892 SS 46.896
Note and sources: In 1001, 800 cases had been reported in the first three months, so we can project about 3200 cases. WHTK gives 1832 for the year 1065 (WHTK 167.1448). There may well be something wrong with the figures for the years 1076 to 1078. Po chaipien 10.3b-4a says that in the three years from Hsi-ning 8 through 10 there were 5182 capital sentences. It also says that in this period there were 2592 officials convicted of crimes calling for tattooed registration down to commutation. Note that the WHTK 166.1444 says that between 969 and 975 some 4108 men were spared death. WHTK 167.1452 and 1455 seem to imply that tuan means execution.
To put the figures in perspective, we should remember that in traditional China the initial and the final sentence for a crime might not be the same. Even if the initial sentence were reviewed and upheld at higher levels in the judiciary, this did not necessarily mean that the person convicted actually suffered the sentence. For a variety of reasons, the sentence might be altered or the punishment reduced. In the case of capital sentences, the final outcome was affected, among other things, by the legal process of conviction and the review of cases. In the figures given for 1086, only io percent of those whose cases were memorialized were in the end executed (though we should note that Fan Ch'un-jen submitted his memorial in order to complain that under a new set of rules used in 1086, far more cases were being sent up, and a much greater percentage - 6o percent - was being executed). 74 Another report, 74 SS 210.5012. Note that Fan Ch'un-jen memorialized in order to complain about the change in procedures, saying that during the current year more cases had been memorialized and that the rate of confirmation of executions was much higher, 40 percent versus the 10 percent of the preceding year.
467
Law and order in Sung China
from the early twelfth century, says that in 1116 and 1117 there had been 132 capital cases in the eleven prefectures making up Huai-nan East Circuit. Of those tried in these cases, only 12 persons (9 percent) had eventually been executed. 75 Another report that sheds more light on this situation dates from the beginning of the twelfth century. It says that in one year the empire had 1811 capital cases but only 181 persons were actually convicted. 76 Insofar as the smaller numbers for executions in the Southern Sung is not an artifact of the different processes used in collecting the figures, the reduction might be explained by some policies introduced during the military confrontation of the late 1120s and early 1130s. An order of 1127 said that when there were death sentences in cases with dubious or extenuating circumstances, the local jurisdictions themselves could lower the penalties. When peace returned, the jurisdictions were to return to the former practice, but no specific order that they do so can be found in the sources. 77 Moreover, in 1131 the central government issued an order that because of current problems, all men subject to the death penalty should have their sentences reduced to exile. Again, this order was supposedly temporary, but we do not know when it was superseded. 78 The local clerks may also have played a role. They are accused of delaying cases and memorializing improperly, 79 and because the majority of those who were lucky enough to have their cases memorialized were spared, such a development would have tended to lower the rates of execution. Also, in 1133 the Court reaffirmed the importance of memorializing cases in which the relevant law seemed excessively harsh or there were mitigating circumstances. 80 Finally, the tendency of local officials in the Southern Sung to memorialize all death sentences, regardless of their circumstances, was repeatedly criticized by contemporary officials.81 Most of those who were fortunate enough to have their cases sent up were not executed. In Sung law there was a special category of punish75 WHTK 167.1452. 76 SS 200.4995. 77 HNYL 241. Of course, such an order would not have been necessary, but in similar cases specific orders were often issued. 78 HNYL 801. 79 HNYL 1185, 1314, 1672, 2972. It is difficult to square the implications of these complaints with a report which says that most of the cases memorialized had serious circumstances and lenient legal provisions (HNYL 1165). 80 Liu Cheng, Huang Sung chung-hsing, 14.17b; see also HGCH 23-i9a-b. See also a decree of 1156 instructing officials not to memorialize in a disorderly fashion asking for reductions (SS 31.585). 81 See, for example, HNYL 1314 (1134); SS 201.5014 (1135); WHTK 170.1477 (1156), 170.1478 (1170); Hung Mai, Jung-chai sui-pi, fifth collect, p. 147.
468
The death penalty
merits called "[nominal] death penalty [with automatic] memorializing for a ruling." The number of crimes in this category was small relative to the number in the regular death penalty category. Fan Ch'un-jen reported that only 25 of the 264 cases reviewed in 1085 (9 percent) and 57 of the 254 cases reviewed between the eleventh month of 1085 and the end of the second month in 1086 (22 percent) had their death sentences confirmed.82 The rest had their penalties lowered to penal registration. Possibly his report concerns only crimes in this smaller category. Note that the percentage of cases memorialized in this way in these periods was approximately the same, 7 percent in 1085 and 10 percent in 1086. Types of capital crimes One report that cites the total number of people sentenced to death also gives us information on the kinds of crimes involved. In 1060, out of the total of 2560 people sentenced to die, 140 cases (5 percent) involved people who had killed relatives, including mothers, fathers, uncles, and brothers. It also included wives who had killed husbands or concubines and husbands who had killed the parents of their wives. Of these cases, 110 (4 percent) were sexual crimes involving homicide; 970 (38 percent) were cases of forceful robbery; and 1300 (51 percent) were cases of homicide - deliberate, premeditated, or during fights.83 Conclusion In the opening section of his book Discipline and Punish Michel Foucault describes the execution of Robert Francois Damiens in 1757. The execution lasted some days and involved various sorts of burnings and an unsuccessful attempt to have the living body torn in pieces by horses. (The executioners finally had to saw the limbs partly through so that the horses could do their job.) 84 Even at their most barbarous, Chinese state executions after the founding of the empire were no match for the ferocity of the eighteenth-century French. If a capital case had been handled according to law, a Sung criminal would have been treated carefully if not kindly. He would have passed through a preliminary 82 SS 201.5012. 83 HCP i9i.ga-b; see also WHTK 167.1448. 84 Foucault, Surveiller et punir, pp. 9-13. We should not be so foolish as to think that this sort of barbarity could not happen in this country or was confined to the distant past. In the mid-nineteenth century a group of slaves in Missouri who escaped after killing their master were brought back to Columbia after their capture and there were hanged, drawn, and quartered and finally burned in the presence of the other black slaves of the neighborhood.
469
Law and order in Sung China hearing at the district level, resulting in a finding and a recommendation for sentencing that would be sent up to the prefecture for review. After review the prefecture would forward the material to the circuit level for a further review. A final decision could be reached at this level if the circumstances of the case were clear and did not indicate that a more lenient or more severe sentence was appropriate. If the circuit felt that it could not render a final decision, the case might be sent for review at the capital. Convictions for serious crimes of the kinds calling for capital punishment were not ordinarily possible without a confession by the criminal. This procedural characteristic was both the cause for and the justification of the system of judicial torture. But even this grim process was supposedly governed by laws determining the kinds of torture that could be legally applied, who was to apply them, how they were to be done and with what, and the total amount of torture that could be administered. At the end of the process the criminal was given an opportunity to hear the case against him, read aloud in the presence of the incumbent local officials. The accused could at this time raise charges of judicial abuse, guaranteeing a new trial in a different venue. If he did not protest, he had to signify his assent by signing or making his mark on the trial statement. After all the reviews, if the final decision was for execution, the order was sent down to the original jurisdiction. The actual execution was also to be carried out according to set rules, which governed time, place, and manner. Executions could not be carried out during certain inauspicious periods or during inclement weather. The victim was to be given food and wine, time to meet with his relatives and to make his peace with his gods, and a last opportunity to protest any judicial abuse. This opportunity was his until the moment of execution. Even to the dead the state provided a final service, burying those without friends or relatives. In practice the death penalty process was both better and worse than the rules surrounding it. Many of the rules supposedly governing the process were ignored or broken with some frequency. No doubt the food, medical care, and other facilities given to condemned prisoners often did not live up to the regulations. Equally important, the system of investigation and adjudication may often have deviated from the prescribed patterns. The executions, too, were sometimes carried out despite the regulations, not according to them. Perhaps most seriously, the system seemed to follow a kind of class justice, in which the rich and powerful often were able to escape with their lives and the poor and weak suffered execution. The Northern Sung official Yin Chu (1001-46) wrote: "Regarding the crimes of the present day, nine out of ten of those 470
The death penalty condemned to death are poor. Those who are not poor do not fear the law." 85 There were thus ways in which the practice was worse than the theory. There were also, however, ways in which the practice was more benevolent than the theory. A bewildering variety of factors might lead to sparing condemned persons. In addition to the many death sentences routinely commuted to penal registration, certain groups of people also were accorded privileges that might exempt them. At times, because of local problems, the authorities might issue amnesties that lowered the penalties of some classes of criminals. Two other parts of the Sung judicial system were probably even more important: the frequent issuing of empirewide general amnesties and the trial review process. Statistics show that of those fortunate enough to have their cases reviewed at the capital, 10 percent or less were eventually executed. This might suggest that local authorities appealed cases only when there were serious problems, but it might also be a reflection of clemency. In either case, from the criminal's point of view, the result was the same. The same was true of amnesties, which will be described in the following chapter. Amnesties in the Sung were issued with great frequency. They varied in type and coverage, but all of them lowered penalties to one degree or another. Taken together, these devices amnesties, commutations, privileges for various groups, and so on greatly altered the actual face of Sung justice. As a result of these various devices for reducing penalties, Sung justice may have been, in practice, the most merciful in traditional China. The state retained the power to execute, to demonstrate its ultimate control over people, but it combined a formal legal pattern that enshrined this power with a set of practices that in many cases mitigated its impact. 85 Yin Chu, Honan hsien-sheng wen-chi, SPTK ed., 2.5b.
471
14 Modifications of penalties
Introduction — reasons for modifying penalties The Sung dynasty was noteworthy for the combination of practices and policies that it used to modify the penalties suffered by those convicted of crimes. The various modifications seem to have been adopted either to strengthen security or to encourage proper behavior. Proper behavior, which for those guilty included personal reformation, was encouraged by enacting policies that allowed the alteration of actual punishments so that they would fit the particular circumstances of individual crimes and the particular characters of those who committed them. There was a search for justice, in the sense of fittingness, combined with the everpresent possibility of mercy from the sovereign. As we noted, during the Sung, many men sentenced for crimes carrying a nominal death penalty were actually punished using penal registration, thus providing the state with a pool of laborers and perhaps prompting in those so spared a sense of indebtedness to the ruler. From very early in their history the Chinese ruling group emphasized the importance of fittingness. If the rulers of the state were to do violence to some of their subjects, the level of punishment had to be chosen for an appropriate reason, and the penalty had to be fitted carefully to the crime. However, in the most widely shared Chinese view, if an error was to be made, it should be on the side of mercy. The search for justice was almost always the avowed justification for modifying penalties, but justice tempered with mercy. Sung officials knew well the injunction from the classic Book of Historical Documents: "Rather than put to death an innocent person, the ruler should run the risk of irregularity and error." 1 The Sung is noteworthy for maintaining severe penalties in theory while 1 The passage is from the Book of Historical Documents. See Legge, The Chinese Classics, vol. 3,
The Shoo King, p. 59. For a Sung example of the citing of this passage to make a point in favor of mercy in punishments, see Chang Kang, Hua-yang chi, 14.6b.
472
Modifications of penalties reducing the actual penalties by using amnesties, grants of commutation, and rights to privileged treatment. These devices were by no means unique to the Sung, but they seem to have been used more often in the Sung than in other dynasties. The penalties were modified to take into account the criminal's relationship to the victim, the role of vengeance by those related to the victim, people's obligations to support others, the criminal's mental or physical incapacity, the criminal's supposed importance in the social order, and the criminal's desire to repent and reform. Administrative practicality interacted with an ideology that sought first to achieve justice by fitting the recompense to the injury (according, naturally, to the views and values of the ruling group) but that demanded that the merciful alternative be chosen in all ambiguous cases. Punishments also were modified because it would be too expensive, or simply not feasible, to employ them as written. Of course, the rulers of states rarely acknowledged their inability to enforce penalties for institutional or fiscal reasons, but then most rulers are adept at deception and misdirection. Sung leaders were often extremely capable men, and they recognized that when penalties could not be enforced, the state should somehow try to take credit for having refrained from using them. They also were aware that when the general consensus was that a specific penalty was excessively harsh for the crime, it would be very difficult to get convictions under the law. Penalties were also altered to mobilize political support. Immunity from the law, or special treatment by the law, are two very common commodities traded by states for the support of the powerful. Because penalties are messages and communication is at the heart of social life, its correctness is vital. An unjust penalty is a disaster. From the earliest written tradition in China the authorities repeatedly stress the importance of measure. Only the appropriate can rectify; only the fitting can set right. Penalties could be made heavier if the need for fittingness demanded. The "Punishments of Lu" section of the Book of Historical Documents, which was believed by traditional Chinese literati to date from the Early Chou period (1027-256), sets the pattern for this change: "When [the crime] should incur one of the lower penalties but there are aggravating circumstances, apply to it the next higher." 2 The same source was the locus classicus for the precedent of reducing penalties when that was appropriate. The passages were well known to the officials of the Sung. During the war against the state of Hsi-hsia in the 1040s, the statesman Fan Chung-yen cited the Book of Historical 2 Legge, The She King, p. 607.
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Law and order in Sung China
Documents to justify the institution of a system of redemption in certain troubled border areas in the northwest: I have read the "Canon of Shun" where it says "Money may be received for redeemable crimes." Moreover, the "Punishments of Lu" says, "If the Five Punishments do not meet it, let them adjust the case to one of the five redemption fines." In this way Yu, Shun, and the Duke of Chou used the law on redemptions.3 This tradition continued from the Chou to the Sung. The rule was that cases might be sent up for a ruling if the facts and the law for the case did not seem to fit together, either because the circumstances seemed too heinous for the penalty prescribed by law or the penalty seemed too severe under the circumstances. For example, in one case from the late eleventh century, a military man had beaten his wife to death, a crime that called for tattooed penal registration. However, he had been provoked to act when his wife had cursed his mother. In light of what the traditional Chinese authorities ruling on the case felt were mitigating circumstances, his sentence was reduced to a beating and demotion. 4 Such rulings, nominally acts of the sovereign, could thereafter serve as precedents for extending mercy in other cases with similar circumstances. Heavy penalties Penalties were made heavier for two reasons, because the acts were considered particularly heinous or the crimes were committed in regions where maintaining security was especially important. Penalties could be made heavier in a variety of ways. One way of increasing penalties was to order that certain crimes be "treated in accord with military law" (i chun-fa). This phrase occurs most often in the sources covering the war crisis of the late 1120s and early 1130s, though it does appear sporadically at other times. It is simply another way of ordering that those guilty were to be beheaded. 5 3 HCP 143.27a; Legge, The She King, pp. 38, 602. 4 HCP 332.11b. 5 For the general topic of military law in the Sung, see McKnight, "The Military and the Law in Sung China." Penalties were also changed for formal reasons, as a simple way of amending previous laws. One common way of amending the law was to state in an edict that the penalty for a particular crime was to be the same as the penalty for another crime, increased or decreased by a fixed number of degrees. Such rulings entered the general body of the law and from that point on were not modifications. There were, however, a variety of conditions that clearly called for modifications of the general system. See also a memorial of Han Yiian-chi (1118-after 1178) suggesting that military law be used against the "youthful banditti" who were disrupting communications with Yen Prefecture in Liang-che Circuit (Han Yiian-chi, Nan-chien chia-i kao, 10.15a).
474
Modifications of penalties The best-known Sung system for increasing penalties, the "Law on Heavy-Penalty Jurisdictions," made more severe the punishments for certain kinds of crimes (most importantly robbery) in certain areas. 6 The creation and spread of this system is associated with attempts to maintain security in critical regions. Although the phrase occurs in Sung sources as early as 1013, when an official "used heavy penalties" to punish corruption among some clerks, the creation of the system is usually traced to a decree of 1035 t n a t redetermined the penalties for robbery (chiang-tao). At the end of the report on this decree the annalistic history known as the Ch'ang-pien states that there was "also a decree that in the capital city, if thieves who were armed got booty worth four thousand coins, they were to be tattooed and listed in the army. From this time on, the law on theft in the capital was especially heavy." 7 Unfortunately the sources spell out most of the penalties for robbery and theft, but not the penalty for armed theft in areas outside the capital. We can only assume that the authors of our sources knew that this newly ordained penalty for use in the capital was heavier than the penalties inflicted elsewhere. As the system was developed later in the century, it was aimed mainly at robbery, for which it set especially heavy penalties. This rule for the capital may have been discontinued. The "Treatise on Punishments" in the Sung History reports that in 1062 the heavypenalty system began in the districts of the capital city, as well as in nearby Ts'ao Prefecture in Ching-tung West Circuit, Hua Prefecture in Ching-hsi North Circuit, Shan Prefecture in Hopei, and P'u Prefecture in Ching-tung West Circuit, all regions lying to the north and east of the capital. The annals of the Sung History and the Ch'ang-pien explain that this system was extended in 1071 to Hua Prefecture in Ching-hsi Circuit, Su b Prefecture in Huai-nan Circuit, Ch'an Prefecture in Ho-pei Circuit, and ten prefectures in Ching-tung Circuit. 8 In the summer of 1077 the system was extended to ten new prefectures and to parts of three more prefectures in Ho-pei East, Ching-hsi North, and Huai-nan prefectures. 9 When these prefectures are plotted on a map, it becomes clear that at first the system was created and extended to ensure security in the areas near the capital. The farthest prefecture was the exception, lying on the Yellow River some 250 miles northwest of the capital. The new areas added in the middle of 1077 were located within or on the edges of this fan-shaped region (see Map 14.1). 6 7 8 9
SS 199.4978 gives a good brief description of the system and its history. HCP 117.4a; SS 199.4976; WHTK 167.1447. HCP 219.6b; SS 15.278, 199.4978. HCP 282.2b, 283.2a.
475
Law and order in Sung China 1 Kaifeng 2 Hua 3 K'ai-te 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
D Initial prefectures in 1062. O Prefectures added in 1071. A Prefectures added in 1077. Map 14. i. Early expansion of the heavy-penalty jurisdictions
476
P'u
Ts'ao Kung Ch'i Yung Yenb Chib I Tan
Ying-tien Su Hsu
Huai-yang Ta-ming Mingb Hsing Po Te Ti Pin Po b Hao Ssu
Modifications of penalties
Local officials in areas affected by banditry began at this time to submit memorials asking that the system be extended to their jurisdictions, though the court remained cautious about extending the system. In late 1077 the system first was applied to areas away from the capital, being extended to four mountainous prefectures in interior Fukien. 10 In 1081 the pacification commissioner of Yung-hsing Chun Circuit (corresponding roughly to the present Shensi Province) complained of bandits in the border areas and asked that the heavy-penalty system be applied, but only to gangs of three or more. This same document says that "Shensi Circuit followed this." 11 This 1081 memorial does not indicate whether the system was to be extended to all of either circuit or only to the border regions. However, because in the past the system had been extended piecemeal, to individual prefectures and often to individual districts, it probably was limited to specific prefectures. This conclusion is strengthened by a memorial of 1086 that asked that the system be extended to a district in Yung-hsing Chun Circuit. Such a request would make no sense if the system had already been extended to the whole circuit. 12 In the past, some scholars have assumed that the system was extended to whole circuits, but this seems clearly mistaken. When the sources provide detailed information about extending the system, they indicate that it was always extended prefecture by prefecture or district by district. 13 The pattern of using gangs of three as the threshold below which the heavy-penalty system would not apply, which may have been based on a precedent of 1075,14 was used when the system was applied to certain other regions, for example, to the mountainous prefectures of Kuo and
10 11 12 13
HCP 286.7a; see also HCP 394.20a. HCP 319.1a. See HCP 375.1a. In some of these cases, in some of the more abbreviated sources, are statements that, taken alone, suggest extension to the whole circuit, but more detailed sources indicate that these reports are inaccurate. For example, the annals of the Sung History say that in 1071 "they established the Ching-tung and Hopei Circuit heavy-penalty law for banditry" (see SS 15.278). However, the Ch'ang-pien makes it clear that the law was to be used only in a small minority of the prefectures in these circuits. Again, for 1081 the sources quote a request that might be interpreted as a request that the system be extended to the whole circuit of Yung-hsing Chun (see HCP 319.1a). But as we noted, this can hardly have been the case, given a request later in the same year that the system be extended to one of the districts in this circuit (see HCP 375.1a). Furthermore, when in 1091 Fan Tsu-yii comments on the creation of the system in 1071, he gives exactly the same list of prefectures and districts provided in the report available to us for that earlier year (see HCP 468.13a). 14 HCP 267.10b.
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Law and order in Sung China
Shang, and Ch'ien-yu District in Yung-hsing Chun Circuit in 1086,15 and Ju Prefecture in Ching-hsi North Circuit in 1087.16 As the name itself indicates, the law was specifically aimed at robbers and thieves. The system of 1071 increased the penalties for robbery and theft by punishing the criminal's family and confiscating his property. If the sentence for a robber called for the death penalty, then his patrimony was confiscated and used to reward informers. The wives and children of the criminal were sent for registered control (pien-kuan) at one thousand li.d They were not to be freed by amnesties. Robbers who themselves benefited from an amnesty were to be penally registered in "distant evil prefectures." When the robbers were liable for penal servitude or exile rather than death, they were to be sent to Ling-nan for penal registration. An intervening amnesty might reduce their sentences to registration at three thousand lid One-half of their patrimony was to be confiscated, and their wives and children were to be subjected to an appropriately reduced level of registered control. Thieves in these heavy-penalty areas who were guilty of three crimes were to be beaten and penally registered at five hundred lid or in a neighboring prefecture. Those who harbored criminals from heavy-penalty places, even if they themselves did not live in a heavy-penalty place, were to be severely punished. Those who harbored a heavy-penalty robber who was liable for death and whose crimes involved "serious circumstances" were to be beheaded. Harboring other heavy-penalty robbers called for penal registration in "distant evil prefectures." In both cases the harborers' patrimony was to be confiscated. Harboring a robber liable for penal servitude or exile was punishable with penal registration at five hundred lid and confiscation of one-third of the patrimony. 17 The emphasis on those harboring criminals reveals part of the security problem. Local people often protected their own, or they might aid the bandits out of fear of reprisals. Concerned that the people in isolated villages, especially those whose livelihoods were not secure, might become bandits either voluntarily or through coercion, the Sung authorities in 1097 adopted a policy of bringing such people into nearby villages, organizing them, and training them for self-defense, a technique widely used in other times and places.18 A document from 1083 implies that the penalties involved had not 15 16 17 18
HCP 375.1a. HCP 424.8a. HCP 344-2a-b; SS 1994978HCP 487.1a. 478
Modifications of penalties 19
changed at that time. But, the system unfortunately was caught up in the continuing struggle between the partisans of Wang An-shih and his new laws and their conservative opponents. The heavy-penalty system became associated with the partisans of reform, and so when the conservatives came to power after Shen-tsung's death in 1085, they lowered the penalties. This change is reflected in the newly compiled edicts of the Yiian-yu period (dated 1088). Most importantly, the wives and children of robbers, thieves, and those who harbored them, were no longer to be subject to registered control. 20 In 1092 the penalties were further reduced. Only if there were five or more especially evil robbers were the heavy penalties to be used. In other circumstances, ordinary law was to apply, and the same rule was to be used for harborers. 21 Then in 1098 Ts'ai Ching, the uncompromising follower of Wang Anshih, returned to power shortly after the accession of Emperor Huitsung. Ts'ai Ching reinstituted the earlier, harsher laws. In 1098 the Ministry of Justice successfully petitioned that the Yiian-feng edicts, with their heavier penalties, be used and that no consideration was to be given to the number of criminals. 22
Personnel policies in heavy-penalty jurisdictions The system affected personnel policies in the heavy-penalty areas, as well as criminal punishments. Beginning in 1071, military officials (wuch'en) were selected as sheriffs in the heavy-penalty areas. 23 In 1082 it was further ordered that in heavy-penalty places, only servitors (shihch'en) were to be appointed sheriffs, and the sheriffs of neighboring jurisdictions were to be military officials.24 Local officials, including the prefects and controllers-general, were to be especially selected by imperial appointment (rather than by the regular process of selection by the Ministry of Personnel). 25 Two leading officials, Fan Tsu-yii and Su Ch'e, bitterly attacked the system in the late 1080s and early 1090s. In 1086 Su Ch'e wrote: 19 20 21 22
HCP 344.2a-b. HCP 409.20a; SHY, hsing-fa 4.30a. HCP478.ua. HCP 499.3b, 499.16b-17a, 500.23a. In 1103 it was ordered that in heavy-penalty places where in the recent past there had been military sheriffs, the older, more severe rules from the Yiian-feng period (1078-85) should be reestablished (see SHY, chihkuan 48.66a). 23 SS 199.4978. 24 SHY, chih-kuan 48.65a; HCP 328.2a; WHTK 63.574; Wang I-chih, Chih-yuan ts'o-yao, pp. 19-24. In the preceding translation I have conflated several versions of this memorial. 25 HCP 359.10b. On this process of selection, see also HCP 37o.29a-29a.
479
Law and order in Sung China
Under the old system, district sheriffs all were chosen from among regular civil service candidates [hsiian-jen]. In recent years, military officials [wu-ch'en] have been used. Since this change the people have been impoverished, and there have been many bandits. Those who discuss it do not understand, and so they ask that in heavy-penalty places the sheriffs always be military men. But I have not heard that after this change in the law, the number of bandits decreased as a result. Moreover, the military men are corrupt and have no fear of the regulations. . . . I feel that when capturing bandits the most important thing is first to have good archers. Next you must get the aid of the villagers and then spread your net. If beforehand you understand the methods, then it will be easy to complete the job. Under the old system, when regular civil service candidates were used, even if they could not follow [the way of capturing bandits] point by point, still they were respectful of the laws, cared for them and used them. They had good relations with the people. They did not necessarily themselves shoot and ride, but they were able to apprehend [the bandits]. . . . I have heard that in Ho-pei, Ching-tung, and Huai-nan circuits, where military sheriffs were used, they caused grief to the people. I ask that you again tell the Ministry of Personnel to use only regular civil service candidates." There was a decree that except for border districts [where military men should be used] only regular civil service candidates should be used.26 Five years later Fan Tsu-yii went further than Su Ch'e had and argued that the entire system of heavy-penalty places be abolished. After noting the establishment of the system in 1071 and its subsequent extension, he said to the emperor: Under Heaven what people are not your people? Now I see that the prefectures and districts are treating the people as if they were barbarians. Twenty years have passed since the system of heavy penalties was established. I have not heard that the bandits have declined, much less disappeared. Rather, they have become more numerous. The ancients sought the wellsprings of popular welfare and established officials to instruct the people. This they did first... and afterward they used penalties.. . . Also, in the heavy-penalty places, when selecting prefects and district magistrates, you have necessarily chosen valiant officials determined to uphold the law and suppress banditry. These men look on the people as the enemy, feeling simply that their official function is to use armed force and pass penal judgments. How can such behavior fit a peaceful age?27
Fan Tsu-yii's plea fell on deaf ears, but he was not a man to give up easily. Late in the following year he again memorialized and again bitterly attacked the system of heavy penalties as discriminatory, inequitable, and counterproductive:
26 SHY, chih-kuan 4 8.6 5 b-66a; WHTK 63.574; HCP 385.3a. 27 HCP 468.12b-13b.
480
Modifications of penalties
I have heard that the king is like Heaven - there is nothing that does not respond to his influence. That the king is like Earth - there is nothing that he does not support. Within the Four Seas everyone is his child. No place is distant. All are one. Nowadays, in heavy-penalty places it is true that if one man commits a crime, the penalty includes his wife and children and destroys his patrimony. This is just like the treatment of a rebel. Under the Former Kings the penalties always caused people to renew themselves. I have never heard that they discriminated among prefectures or other territories, practicing the law in an uneven manner. I am worried that such behavior is not fitting for this sagely era. Your majesty is about to sacrifice to Heaven and Earth. You will be going to the tower to issue an amnesty. If the document of amnesty completely abolishes this law, ending it utterly, this will signal the beginning of a new era, which will succor the hearts of the people and give rise to a harmonious balance of the elements.28 His plea was unsuccessful. The system did remain in use. But his criticism might have triggered the reduction of penalties that was enacted in the early 1090s.
The large-scale use of the heavy-penalty system apparently was discontinued at some time during the closing years of the Northern Sung or the first few years of the Southern Sung. In 1133 it was ordered that people who violated the tea and salt laws might be subjected to the "heavy penalties." And in n34 an official asked that "in the capital heavier penalties be used as they had been under the old system in Kaifeng."29 It seems likely that this limited request was approved, but the fact that an official had to ask for the application of such penalties suggests that they were no longer in regular use. There is little evidence that the system was used elsewhere during the Southern Sung. This would certainly fit with the original intentions of the systems' creators, who had intended it to be temporary, to be used because of particularly serious security problems, and to be discontinued once those problems were corrected.30 Reductions of penalties The Sung authorities could and did increase penalties on occasion in some regions; they also often reduced them. The precedent and justification for doing so were drawn from early Chinese tradition. Sung thinkers assumed that upright judges embodied a moral sense that accorded with the natural order, but even upright judges could be misled by confusing 28 Fan Tsu-yii, Fan t'ai-shih chi, 24.2a; Huang Huai, Li-tai ming-ch'en tsou-i, 218.19b. 29 Liu Cheng, Huang Sung chung-hsing, 14.22a; HNYL 1243. 30 See, for example, HCP 402.12b, 424.8a.
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Law and order in Sung China
evidence or by the perjury of witnesses and accused criminals. They saw judges as walking a narrow line and recognized that even the best must sometimes put his foot wrong. In clear cases, it was necessary to rely on the magistrate's judgment, but in unclear cases which way should the j u d g e lean in handing down the sentence? Was it better to favor excessive harshness or excessive mildness? From the time of the earliest Classical writings in China in the early first millennium B.C., there is no doubt about the standard Chinese answer. If we must step off the path, it should be on the side of mercy. T h e best known, and in later times the most influential, statement of this attitude is found in the Book of Historical Documents. This work, preserved because Confucius used it to instruct his disciples, was regarded by later Chinese as a fountainhead of political wisdom. In the section entitled the "Punishments of L u " - which was composed late in the Chou dynasty but was believed by most traditional Chinese readers to have been written early in the Chou - we are told: " W h e n there are doubts about the infliction of any of the Five Punishments, that infliction should be forborne. When there are doubts as to the infliction of any of the five fines, it should be forborne." 3 1 T h e "Punishments of L u , " which lays out in detail the ways in which and degrees to which mitigating circumstances should alter sentences, exercised great influence over later Chinese penal practice. Although during the Sung, penalties were sometimes increased, it was far more common for them to be reduced or eliminated. During the reign of Emperor Chen-tsung (r. 997-1022) after the emperor had attended a lecture on the passage from the Rites of Chou, which had focused on the passage " G r e a t famine, great disorder, light government, light penalties," an official commented that lightening penalties was a policy designed to be used only with people who had erred through mistake, who in years of poor harvest might be spared because of their poverty. T h e emperor disagreed and opted for mercy. 3 2 Such grants of mercy took various forms. Occasionally men sentenced only to beatings were simply freed on certain holidays, 3 3 or when natural disaster struck, the authorities might order that all penalties in the affected regions be reduced until the return of normal conditions. 3 4 T h e "Treatise on Punishments" in the Sung History says: In years of dearth, strong people would band together and take up weapons to rob men and pillage storehouses. According to the law, they all were liable for 31 Legge, The She King, p. 604. 32 SS I99-4988. 33 HCP 99.14b, note. 34 HCP 251.28a.
482
Modifications of penalties
execution. When the case records were sent up for review, they would be spared death. During the reign of Chen-tsung [r. 997-1022] in Tsai Prefecture, there were 318 men all liable for execution.... The emperor sent down a decree sparing them. He sent an envoy to soothe the people of the circuit. He said to the envoy, "When ordinary people find it difficult to feed themselves, the strong seize food to preserve their lives. We cannot apply the law on robbery to judge them." 35
Under Jen-tsung (r. 1022-63), this became a common practice. After reporting on one such case from the year 1053 the historian Li Tao noted that "subsequently this was written up as a precedent (/fe)."36 And a decree from Shen-tsung's reign (r. 1067-85) calls for the reduction of sentences by one degree for most sorts of criminals in prefectures suffering from natural disasters, with a further reduction of one degree if the crime were stealing food.37 Legal conservatives like Ssu-ma Kuang (1019-86) argued against such practices, saying that they were tantamount to giving permission to steal. His colleague Yang An-kuo questioned the meaning of the passage advocating mercy from the Rites of Chou, saying that it was intended to cover only crimes through misadventure. The poor were to be pitied in bad years, but if "a crowd takes up arms to attack a granary, to forgive them is no way to restrain evil." The emperor disagreed. "All those in the world are my children. There is hunger that the prefectures and districts cannot assuage. Being so pressed, people steal. To arrest and execute them, is this not extreme?"38 Vengeance In ancient China, vengeance played a key role in requiting perceived wrongs. Indeed, some Sung officials traced the emergence of a stateadministered system of legal punishments to policies established by the early Sage Rulers, who had wanted to limit the possibilities of vendetta. Lou Yueh (d. 1244) wrote: Homicides have always occurred. If A killed B, then B's son or grandson would kill A to avenge his father. When things were this way, then there would be mutual vengeance without end. Therefore the Former Kings brought this under control by systematizing penalties, and instructing their officials to stop vendettas.39 35 36 37 38 39
SS 200.4987. HCP 175.4b; see also HCP 171.8a. HCP 267.10b-1 ia. SS 200.4988. Lou Yueh, Kung-kuei chi, 22.332.
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While defending the right of the state to be the sole agent in the punishment of most crimes, the Sung also continued the traditional practice of reducing the penalties of those who committed crimes to avenge crimes committed against their elders. This principle was even enshrined in the T'ang and early Sung codes: If a grandparent or a parent has been assaulted and their sons or grandsons in turn assault the attackers but do not cause them injury, the sons and grandsons are not to be tried. If they do cause injury, they should be punished three degrees less than in ordinary cases of assault with injury. If death results, follow the regular statute.40 In practice the authorities were sometimes, though not always, even more lenient than this statute. The popular attitude is perhaps reflected in the comments of the writer Wang Yung, who records an incident in which two sons avenged their father by killing his murderer. One official wanted to have the sons executed, and another wanted to spare them. Eventually the sons were executed. Wang Yung comments that the lenient official "was an exemplary gentleman [chun-tzu] who took pleasure in doing good for men." The harsh official "was a petty man [hsiao-jen] who took pleasure in doing evil to men." He then goes on to cite a case from the time of the second Sung emperor in which a boy avenged his mother by killing a man. By special decree his life was spared, and he was beaten and sent into exile.41 Again, during the reign of Emperor Jen-tsung (r. 1022-63) a son killed the murderer of his father, when that man had been spared by an intervening amnesty. The son was spared death and sentenced to registered control. In another incident from the reign of Shen-tsung (r. 1067—85) a boy's father was killed in a fight. Because the boy was young, he could not avenge his father. But when he grew older he killed the murderer with a knife, cut ofF his head and limbs, and went to worship at this father's grave. He surrendered and accepted the blame. Eventually he was sentenced to penal registration in a neighboring prefecture. 42 Another incident, also from the reign of Shen-tsung, shows how kin relationship might affect the treatment of vengeance. When his father was killed by his father's brother's son, the son of the victim in turn seized and killed the murderer. The Court of Judicial Review and the other central government agencies that reviewed the case felt that the young man should be executed for having committed "discord" (pu-mu), one of the Ten Abominations which covered many crimes committed 40 TLSI 3.106; SHT 23.356. 41 Wang Yung, Sung-ch'aoyen-i tai-mou lu, 4.ia-b. 42 SS 199.4990; HCP 110.12a, 295.7b.
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Modifications of penalties against relatives. The most powerful official of the time, Wang An-shih, disagreed and wished to have the sentence reduced to exile with added labor, with the stipulation that the man could be freed if an amnesty were proclaimed. The emperor agreed with Wang An-shih and spared the young man. 43 This case illustrates another facet of the reduction of penalties in Sung China, the granting of individual pardons. The emperors frequently granted such pardons, but their importance clearly was overshadowed by the more general grants of mercy called amnesties.
Amnesties The most striking, and in terms of its effects probably the most important, of the devices that modified the penalties of Sung criminals was the system of state amnesties. 44 The Sung amnesty system clearly reveals the interaction of ideology and practicality characteristic of Sung penal practice. Amnesties, which were granted more often during the Sung than during any other Chinese dynasty, were justified as acts that would encourage criminals to reform themselves in response to imperial mercy; the hard fact seems to have been that the police system put so many people into the judicial and penal system that they had to be periodically purged to make room for newcomers. Amnesties had been granted during Chinese antiquity, and the rationale for them is stated in the Book of Historical Documents. As a system the practice of freeing criminals or reducing their sentences began in the Han dynasty. From the reign of Han Kao-tsu (r. 206-195) the government regularly issued decrees of amnesty. The Three Kingdoms (220-80) and the Northern and Southern dynasties (317-581) continued the practice. Over time, the form and content of these amnesties became increasingly fixed. By the T'ang, the system as it was to be used in the Sung was largely complete. From the T'ang also we have our first relatively complete texts of the amnesty documents. These amnesties were basically of two sorts, what might be called ordinary amnesties and Great Acts of Grace (ta-she). Ordinary amnesties included both localized acts, which affected only specified parts of the empire, and empirewide grants, as well as the practice called "inspections of cases," which in theory was a device for speeding the judicial process but in practice always resulted in the lowering or forgoing of penalties for those inspected. 45 43 SS 201.5007. 44 For more on amnesties, see McKnight, The Quality of Mercy. 45 The Ch'ing-yiian t'iao-fa shih-lei contains a variety of rules governing the use of these various amnesties. See, for example, TFSL 503, 518, 522, 527, and passim.
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T h e terms of ordinary amnesties cannot be simply described. They came in different forms, but generally they were less generous than those of the Great Acts of Grace. They usually did not apply to men guilty of the group of crimes called the Ten Abominations - most homicides, arson, and some other crimes that carried the death penalty 4 6 - or to those who committed crimes deliberately hoping to be spared by an expected amnesty. 4 7 Ordinary amnesties also often reduced some penalties rather than forgiving them entirely. Like the more generous Great Acts of Grace, such amnesties also applied to deserters and fugitives from justice, who within a set period of time could surrender to the authorities and confess, in return for which they would be spared or have their penalties reduced. 4 8 In the words of one commentator, after an amnesty men might be "reranked by degrees (if they were officials), have the location of their punishment shifted, or be freed." 4 9 Great Acts of Grace always offered more generous terms than did empirewide ordinary amnesties. In most cases a Great Act of Grace freed all criminals, with certain very limited exceptions. 5 0 A typical example, dating from the accession of the Sung founder in 960, states: We confer a Great Act of Grace [ta-she] on the world. On the fifth day of this first month, just before dawn, all criminals are to be pardoned, whether or not the criminal cases have already been completed, whether or not the crimes have been discovered, without distinguishing between the serious and the minor and including those not forgiven under the terms of ordinary amnesties [ch'ang-she]. Officials who have been dismissed, degraded, censured, impeached, or expelled from office are to be given grace. All those registered for penal labor, whether men or women, are to be freed according to convenience. 51 Ordinary criminals liable for death, as well as all criminals sentenced to lesser punishments, were to be freed and spared further prosecution, whether or not their crimes had already been discovered and whether or not their cases had already been completed. Because of this stipulation the state forbade the bringing of cases based on crimes committed before the last Great Act of Grace. Great Acts of Grace thus served as statutes of limitations. Officials who dared to try such earlier cases were to be 46 See, for example, Ch'ien Jo-shui, T'ai-tsung huang-ti shih-lu, Ku-hsiieh hui-k'an ed.,
26.8a. TLSI 4.85; SHT 30.490 ff. Huang Huai, Li-tai ming-ch'en tsou-i, 218.11b-12b. Wang Ying-chen, in Huang Huai, Li-tai ming-ch'en tsou-i, 217.9. See Li Yu, Sung-ch'ao shih-shih (Shanghai: Ssu-k'u ch'iian-shu chen pen, 1955), chap. 2, for some typical Sung examples. 51 Li Yu, Sung-ch'ao shih-shih, 19. These acts had relatively fixed formats. See also, for example, Li Kang, Chien-yen shih cheng-chi, Sung ch'eng hsiang-li Chung ting kung pieh-chi ed., chung. iaff., which quotes an amnesty with almost identical wording. 47 48 49 50
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Modifications of penalties liable for the same penalty as the criminals involved were (though if the criminal were liable for death, the officials were subject only to exile with added labor). 52 Such amnesties both freed criminals and expunged the record of their crimes. If a criminal freed by an amnesty was later prosecuted for another crime, his previous crime could not be cited to define him as a recidivist. These Great Acts of Grace also specifically freed "those men not freed by ordinary amnesties." Amnesties were the most important documents sent out from the capital. They were carried by the postal service at the fastest possible rate (at five hundred li per day), 53 and when they arrived at a local jurisdiction they were made known with all due formality. A Sung local official describes a ceremony for receiving a letter of amnesty that sounds very like the ceremonies used in the T'ang. He "gathered together all the officials, the Buddhists and Taoist priests, and the commoners to read it to them." 54 After having arrived at a prefecture and been formally received there, the amnesty letters were distributed to subordinate districts for action. 55 After a letter of amnesty arrived, the local officials were supposed to write reports on the prisoners currently in their jurisdiction. If these people had good records of behavior and if the circumstances of their original crimes were not judged especially evil, they were to be freed "according to convenience." This last phrase, which occurs in most amnesty documents, seems to mean that the local authorities had some leeway in the timing of the release of their charges, though they could not simply detain them indefinitely. They could, however, hold people for long periods under certain circumstances. In 1156 it was reported that a woman who had been accused of having killed her husband had been in custody for five years, a span during which two Great Acts of Grace had been issued, without her case's having been decided. Of course, killing a husband was an especially heinous crime, and so it is not surprising that she had not benefited from the amnesties, but the length of her incarceration without judgment was felt to be shocking. 56 The circuit judicial intendant was responsible for seeing that amnesties were properly administered, though frequent comments suggest that 52 See TLSI 4.6; SHT 24.373. There were a few exceptions to this - crimes not forgiven by the rules of ordinary amnesties or crimes that had resulted in infractions of the rules on personal status such as slaves marrying commoners. 53 HCP 457.3b. 54 Chang Yung, Sung-pen kuai-yai hsien-sheng chi (Taipei: Commercial Press, 1972), 10.28b. For the T'ang practice, see the description given by Ennin. Edwin O. Reischauer, trans., Ennin's Diary (New York: Ronald Press, 1955), p. 180. 55 Yang I, Wu-i hsin-chi (Pu-ch'eng i-shu ed.), 13.1 b£T. 56 HNYL 2808.
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fairly often officials were obstructive and dilatory in releasing prisoners. 57 Thus, although it is clear that not all those held benefited from amnesties, it also seems clear that a great many were freed or at least had the conditions of their punishment made less harsh. 58 Compared with other dynasties the Sung was most generous in its granting of these various amnesties. During the 319 years of the dynasty there were 95 Great Acts of Grace, an average of 1 every 19 months. During the Northern Sung, there were 114 Great Acts, an average of 1 every 17 months; during the Southern Sung the average dropped to 1 every 25 months. The number of Southern Sung empirewide ordinary amnesties, 18, was also markedly lower than the figure for the Northern Sung, 39, though some of this change may well be due to the much more limited sources for the later era. But even at this lower rate, the Sung still was the most generous of dynasties in giving grace. In addition to these empirewide ordinary amnesties and Great Acts of Grace, there were also a plethora of localized amnesties during the Sung. Some affected only a few districts, but others affected large areas of the empire. There were, literally, hundreds of such grants, and the emperor, of course, also had the power to pardon specific individuals. Moreover, the Sung was also the high point for the use of another device for reducing the penalties of criminals, the so-called inspections of cases (lu-ch'iu) . 59 This practice of inspecting cases began in the Later Han period, ostensibly as a way of speeding the judgment of cases, to spare criminals long stays in jail. It was not originally intended as a way of extending grace, but it rapidly became one. Succeeding dynasties continued the practice, which reached its height in the Sung. In the eighth month of 966, the Sung founder personally reviewed and passed judgment on cases from the capital city, freeing eighty criminals. Under his successor Ta'i-tsung (r. 976-97), the inspection of cases became a 57 SHY, hsing-fa 4.27a, 45a-b, 46b~47a, 51a, 67a. Officials often argued against releasing the truly evil and for carefully evaluating the others. See, for example, Yang Chieh, Wu-weichi, SKCSCP 1974, I5.i7a-i8b. 58 There are two incidents from the 1070s that seem to contradict each other regarding the numbers who might be freed. A 1076 report said that as a result of an amnesty, 1726 men out of a total of 2500 had had their sentences reduced or had been freed. However, in 1078 after an order was sent down in the capital area for the freeing of prisoners, an official reported that of the 70 men being held by the Finance Office, only 4 were freed, and only 5 were freed of the 100 being held by the prefectural authorities. My impression, on the basis of a wide variety of impressionistic data, is that the first example is more typical than the second. Indeed, it may be that whereas the first refers to a general amnesty, the second is a special order with far more restrictive terms (see HCP 276.9b, 288.9a). 59 SHY, hsing-fa 5, is composed largely of reports on this system. It is also described briefly in SS 199.4996 and WHTK 166.1445.
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regular practice that was continued by his successors until the end of the dynasty. Such inspections came to be carried out not only in the capital city but in all the circuits of the empire. 60 During these inspections the chief figure, whether it be the emperor or in the outer areas a circuit intendant (or his agent), apparently actually spoke face-to-face with the prisoners. A collection of anecdotes records an instance in which one such prisoner had the temerity to joke with the emperor about being a neighbor and as a result was pardoned. And in the same collection, an anecdote is recorded to illustrate the punctiliousness of one official. This man, it was said, would never stoop to speaking in the common vulgar language. So, at one time, when he was interviewing prisoners in his role as a circuit intendant, he asked one of the prisoners if the man knew of any judicial abuses. The prisoner could not even understand the questions he was being asked until one of the other officials present translated it into common parlance. 61 During some periods of the dynasty, these inspections were conducted not just once but twice or even three times during a single year. The earliest of these inspections in the Sung were held in the summer, to show imperial concern for prisoners during the hot weather. 62 Later, a regular winter inspection was added. By the early thirteenth century the Sung authorities classified such inspections as just one more form of amnesty. 63 These inspections certainly benefited most of those being held in jail, though it is clear that many of the specific orders excluded very serious sorts of crimes. The general pattern was for the sentences of serious criminals to be reduced by one degree, for example, from death to exile, or from exile to penal servitude, whereas men liable for lesser penalties such as beating with the heavy rod (and sometimes penal servitude) were freed. On first reading these amnesty materials one may be tempted to assume that the system was not strictly enforced. How could a state function if it released so much of its criminal population? Yet there is much evidence that the system was used, and although there were exceptions, the general impression gained from reading the sources is that the system did in fact free many men. The court did take note of reports that some prefectures were not releasing men registered for labor 60 61 62 63
Compare Fan Tsu-yii, Fan t'ai shih chi, ig/5b-6a. Fan Chen, Tung-chai shih-chi (Beijing: Chung-hua shu-chu, 1980), pp. 2, 21. See Ts'ai Hsiang, Tuan-ming chi, 23.10b-12a; Chang Shou, P'i-ling chi, 1.14. TFSL 226. Even in the Northern Sung, officials recognized this situation. See a complaint by the Northern Sung official Ts'ai Hsiang that the traditional aim of such inspections was to ensure speedy justice not to extend universal grace, as was being done under the Sung. Ts'ai Hsiang, Tuan-ming chi, 23.10b.
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and ordered the judicial intendants to investigate and impeach the responsible officials, revealing both the occasional failure of the system to operate as intended and the court's concern to reduce such violations. 6 4 T h e system's actual effectiveness is also reflected in the continuing criticisms of legal conservatives, who never ceased to rail at the evil effects of amnesties. An official writing in the 1030s quotes what he asserted was popular opinion: The Three Kings sacrificed annually at the altar of earth, but amnesties were not given out in a disorderly way. From the time in the T'ang when troops became excessively powerful, the rites for serving Heaven were not regularly practiced, and therefore Great Acts of Grace were used to rectify disorderly cases. And yet those guilty did not necessarily renew themselves, even though they had been treated leniently, and those who had suffered injury were not necessarily without rancor. Those who do not renew themselves will again do evil; those victims who are angered will turn from goodness. A single amnesty can turn men from the good and encourage evil behavior. It is a great misfortune to good government. 65 This dislike of amnesties was one of the few points with which the great reformer W a n g An-shih agreed wholeheartedly with his chief conservative opponent Ssu-ma K u a n g . 6 6 Despite all the opposition, however, amnesties formed a necessary part of the Sung system of justice, because the state lacked the capacity to handle its load of criminal cases and convicted persons, and found it necessary periodically to lighten the burden. T h e police systems overwhelmed the courts with accused criminals, and the courts were sentencing more men than the penal system could properly handle. U p o n receipt of a letter of amnesty, the local jurisdictions were supposed to send u p a document certifying that those who would benefited had not committed further infractions of the law while in registration. These reports also apparently indicated the seriousness of the original offense. These documents went to the Ministry of Justice, which sent down an order approving the convicts' transfer or release. 6 7 Because grants of one sort or another came with such frequency and the judicial process was time-consuming, it is probable that the only criminals who ordinarily actually suffered their full sentences were those subject to beatings. Disctict magistrates could on their own authority sentence people to beatings with the heavy rod and could have the punishment inflicted without the need for higher-level review. Therefore, such trials 64 SHY, hsing-fa 4.51a. 65 SS 201.5029. Such criticisms were frequent. See, for example, Ch'eng Pi, Ming-shui chi> SKCSCP 1972, 2.3ia-33a; or Ch'en Shun-yu, Tu-kuan chi, SKCSCP ed., 7.2ib-23a. 66 Hung Mai, Jung-chai sui-pi,fifthcollect., p. 147. 67 SHY, hsing-fa 4.460-473; SS 201.5015. 490
Modifications of penalties could consume much less time than would trials for more serious crimes in which the magistrate's recommendations had to be submitted to higher authorities for review and confirmation. Clearly, this group of amnesty policies changed the actual face of Sung justice, especially for those subject to the heavier penalties.
Privileges Another way in which penalties were reduced for large numbers of people was through the elaborate system of privileged groups. 68 The origins of privileges was traced by Sung writers to classical roots. In the Rites of Chou is a list of eight categories of people with the right to privileged treatment: those who were the relatives of the sovereign, those who were old acquaintances of the sovereign, those who were of great virtue, those who were of great ability, those who were meritorious, those who were high officials, those who were exceptionally zealous in performing government duties, and those who were the guests of the sovereign (the descendants of the preceding imperial families). 69 In practice, the only significant categories were relatives of the emperor, holders of certain titles, and officials. The system of legal privileges in use early in the Sung was virtually identical with that in use in the T'ang. From the T'ang, the Sung had inherited four distinct legal privileges, "deliberation" (i), "petition" (ch'ingh), "reduction" (chien*), and "commutation" (shu). The highest of these privileges, deliberation, carried the greatest benefits, covered the most crimes, and was extended to the fewest people. When a person with the privilege of deliberation committed a crime that bore a sentence of exile (liu) or less, the penalty was automatically reduced by one degree and could be commuted. For example, sentences of exile were reduced to penal servitude and those of penal servitude to beating, both being commutable to payments in copper. If anyone with the privilege of deliberation committed a capital crime, the authorities were required to submit a memorial to the emperor in which they described the circumstances, indicated why the accused was entitled to deliberation, and asked permission to consider the case. When they had examined the case, they again had to memorialize the emperor asking him to determine the sentence. The only limitation on the crimes covered by deliberation was that it 68 For a more extended discussion of these privileges, see McKnight, "Song Legal Privileges," pp. 85-106. 69 On the eight deliberations, see Johnson, The T'ang Code, p. 23; Ch'ii T'ung-tsu, Law and Society in Traditional China (Paris: Mouton, 1965), pp. 177-79.
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could not be used for crimes falling in the category of the Ten Abominations, crimes that included rebellion, sedition, and treason, incest, lack of filial piety, making the black magic poison called ku, some homicides, the theft or counterfeiting of certain state goods, and a few other crimes committed against superiors. Petition, the second-highest privilege, was awarded to a somewhat larger group and carried fewer benefits. Under it, all penalties of exile or less were automatically reduced by one degree and could be commuted, but in capital cases, after verifying the right of the accused to petition, the officials tried the case and drew up a document recommending either strangulation or decapitation. They then submitted a memorial stating why the defendant was eligible for petition, giving the facts of the case, and asking the emperor to endorse their suggested sentence. Petition could not cover the Ten Abominations, other homicides, or the crimes of officials who in their jurisdictions committed rape, robbery, kidnapping, or accepted bribes to circumvent the law. Reduction, the third privilege, was granted to a still larger group of people but was far more limited. It could be used only for crimes calling for exile or less. The punishments were to be reduced by one degree and could be commuted. The lowest privilege, and the most widely distributed, was the right to commute sentences of penal servitude or less into payments in copper. With the exception of this last, lowest privilege, these privileges were granted only to those holding official or noble rank, their relatives, or relatives of the imperial family. During the Sung the greatest privileges were held by those with the greatest political power - functional officials and close imperial relatives. The greater an individual's privileges were, the further he could exend his protection to his relatives. The closer the ties of kinship (as defined by the system of mourning grades) were, the greater would be the potential benefits. 70 The implementation of these principles is clearly seen in the case of imperial relatives. Obviously the emperor himself was the source of the greatest degree and extent of privileges. All of his relatives to the Vanmien degree of mourning (i.e., one degree beyond the regular mourning circle) had the privilege of deliberation. The next most powerful figures, the grand empress dowager and the empress dowager, could extend the privilege of deliberation to their mourning relatives of the fifth degree (ssu-ma), the lowest level of the regular mourning system. The wife of the crown prince, by contrast, could extend the privilege of petition only to her third-degree mourning relatives. Membership in the imperial clan, 70 See Figure 2.1, showing degrees of mourning.
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no matter how distant, carried with it legal privileges. All clan members had the right to commutation, and all female members could extend that privilege (for crimes of exile or less) to their husbands and sons. The other large group whose members had extensive legal privileges in the Sung was the official class. In the early Sung Code, deliberation was granted to active substantive officials of the third grade and up in the nine-grade civil service system. Deliberation was also extended to holders of certain honorific titles, whether or not they were active officials. People who had prestige titles (san-kuan) (honorifics awarded to certain people of high status or accomplishment) were granted deliberation if the titles were of the second grade and up, as were those with firstgrade titles of nobility. (There were twelve grades of nobility in the Sung that were given to some members of the imperial family and certain distinguished officials.) Those granted this privilege could extend the right of petition to all their one-year mourning relatives as well as to great-grandparents, great-great-grandparents, great-grandsons, and great-great grandsons in the main line of descent, and to paternal aunts and paternal uncles and their wives. Petition was granted to all active substantive officials in the fourth and fifth grades, to those holding prestige titles in the third through fifth grades, and to men with dignities or titles of nobility in the third through fifth grades. Such men could extend reduction to paternal grandparents, parents, brothers, sisters, wives, and sons and grandsons in the male line. Reduction was granted to all active substantive officials in the sixth and seventh grades and to those with prestige titles and other sorts of honorifics including "dignities" (hstin) or guard offices of the sixth and seventh grades. All those with the right to reduction could protect their paternal grandparents, parents, wives, sons, and grandsons in the male line by extending the privilege of commutation. In the T'ang and Sung the right to commutation was granted to all active substantive officials from the bottom (ninth) grade and up. It was thus the only one of these legal privileges shared by all officials. Officials also benefited from policies that allowed them to substitute for other punishments the deprivation of office, loss of official titles, or surrender of honors. In the most serious cases those convicted would be stripped of all the titles, honors, and ranks they had accumulated since entering the civil service and would be returned to their original status. This penalty, called "disenrollment," was considered equivalent to three years of penal servitude. Those so punished might reenter the civil service after a number of years and at a much lower rank. The second form of official commutation, "resignation from occupied office," was 493
Law and order in Sung China much less harsh than disenrollment. An official so punished surrendered his current active appointment, but not his other honors or dignities, and he could resume office after a shorter period. Still less serious was "replacement," under which the official might trade in his official titles and honors without actually having to leave active official life. For example, one office of the fifth rank or above could replace two years of penal servitude for "private infractions," offenses committed with selfish or corrupt intent; or one office of the ninth rank could replace one year of penal servitude. During the Sung the granting of privileges for officials was increased by the simple device of granting to lower official grades the privileges of a higher grade. In the late Sung code, the Ch'ing-yuan t'iao-fa shih-lei, there is a rule saying that fourth-grade officials were to be granted the legal privileges of third-grade officials, that is, deliberation, and sixthgrade officials the privileges of fifth-grade officials, petition. Eighth-grade officials were to have the privileges of seventh-grade officials, reduction. However, although officials were in most ways privileged, they also were liable for more severe penalties than ordinary people were for certain sorts of crimes. According to the early Sung Code, an official who committed robbery in his own jurisdiction was liable for a punishment two degrees more severe than that due an ordinary person guilty of the same crime. 71 Furthermore, many crimes were excluded from coverage, and under some sets of defined circumstances, even crimes ordinarily covered might be excluded. The privileges of relatives or household members of officials also multiplied during the Sung. In the late Sung, wives of the sons and grandsons of officials in the eighth rank or higher were to receive the same privileges as their husbands. Even female slaves might be protected under some circumstances. Finally, there is one passage indicating that girls betrothed to officials were covered by the privileges of their intended husbands. These groups enjoyed not only substantive privileges that reduced their penalties but also privileges of procedure. Application of judicial torture to officials was limited by law (though this was sometimes ignored). Furthermore, some privileged persons were excused from having to appear in person in court. Some Sung officials believed that this exemption from personal appearance in court was a practice dating from ancient times. 72 Sung legal privileges were closely related to the privilege of officials 71 SHT 19.304. 72 See, for example, Su Sung, Su-wei hung wen-chi, 17.14b.
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called "protection" (yin). In its best-known form, protection allowed many Sung officials to petition that certain designated assignees, usually but not always sons or grandsons, be granted official rank. The device served as a type of retirement benefit for the officials and helped cement commitment to the dynasty. 73 The other side of this coin was the ability of officials' relatives to escape punishment through the "protection" of these officials. The book of miscellaneous notes called the Sung-ch'aoyen-i i-mou lu reports: At the beginning of the dynasty, all clerical workers were the sons and younger brothers of literati who had been unable to establish themselves as civil service officials. They felt ashamed. When guilty of crimes, they could use protection to commute their sentence. This they depended on to do evil. In 1029 a clerk in the Finance Office named Wei Shih-an committed a crime. He used the protection of his grandfather, who had been a district magistrate. There was a decree that he was especially to be punished. It was then decreed that from that point on clerks were not to benefit from protection.74 Commutation W e should n o t overestimate the n u m b e r s w h o could benefit from the higher privileges. D u r i n g the Sung the great majority of those with official status were in t h e eighth o r ninth grade. T h u s , d u r i n g m u c h of the dynasty they would have h a d only the right to c o m m u t a t i o n . M a n y of these m e n would not have accumulated a n y great n u m b e r of honors or dignities that could be surrendered to defray penalties. T h e privilege of c o m m u t a t i o n w a s gradually extended to other people w h o were peripherally a t t a c h e d to t h e official class, including " t e m p o r a r y officials," some "irregular officials" (she-kuan, from i o o o ) , 7 5 a n d " s u p p l e m e n t a r y officials" (pu-kuan, from 1139). Later in the Sung these lower privileges were extended a t times to m e n having certain honorific military titles, g r a d e d officials serving "outside the career" (i.e., not serving in posts considered in t h e regular civil service), m e n with prestige titles even if they d i d not have a service record, m e n w h o h a d gained official rank for m a k i n g contributions in times of crisis or whose relatives h a d died fighting for the Sung, a n d possibly even some m e n in clerical positions. A decree of 1009 reportedly extended to all examination participants the 73 For an extensive discussion ofyin, see Lo, An Introduction, pp. 102 ff. 74 Wang Yung, Sung-ch'aoyen-i i-mou lu, 3.7a. See also an order dated 1046 forbidding the use ofyin by relatives of officials if they had been found guilty of repeated crimes (HCP 159 4b). 75 Acting officials were men selected according to special examinations held in the southernmost section of the Sung empire (Kuang-nan) for service there as local functionaries (see Lo, An Introduction, p. 96). 495
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right to c o m m u t e penalties for crimes calling for beating with the heavy rod. 7 6 Students in state institutions and examination candidates were also allowed to c o m m u t e some crimes, with those in the more prestigious schools being able to commute the penalties for more serious crimes. Wealth could also purchase privileges. T h e privilege of commutation also spread because the official credentials that carried with them a degree of immunity were sold by the state. People could purchase these official rank credentials by making contributions in times of need. T h e titles they received would rarely qualify them for appointment to actual office in the graded civil service, but they could secure limited legal privileges. In 1127, during the military (and fiscal) crisis of the Chin invasions, certain titles were sold for two thousand cash each. Holders of these could c o m m u t e crimes calling for beating with the heavy rod, as long as there were no injuries or robbery involved. 7 7 Finally, there is scattered evidence that at some times during the Sung, various sorts of people, including commoners, were allowed to c o m m u t e certain penalties into fines. According to a general rule in the T ' a n g and Sung codes, those guilty of injuring or killing people by accident were allowed to pay redemption. 7 8 In practice, officials in the early Sung seem to have been extending the right to commute penalties rather freely. A decree of 999 stated: The senior officials in the prefectures have been indulging their personal feelings in assessing the seriousness of crimes, by lightly punishing commoners or letting them commute their penalties into payments in gold. From now on this is not to be permitted. If wives are liable for penalties of the heavy rod or less, they may have the seriousness of their penalties assessed and be released after paying copper in commutation. T h e Sung History adds that " E m p e r o r J e n - t s u n g [r. 1022-63] was deeply concerned about people's ignorance and wanted to establish a law on commutation with which to respond by minor penalties." T h e passage continues with the text of a decree: The Former Kings used light laws and simplified arrangements so that men would understand the prohibitions and could easily follow the law. Later dynasties established the prohibitions with regard to tea, liquor, and the salt taxes, contending against the people for the profits, and so the punishments proliferated. Now we have the compilations of edicts, which all are in addition to the statutes. The number of such rules changes frequently. The officials do not know them; how can the people do so? Once someone becomes enmeshed, even if 76 Yii Te-lin, P'ei-wei chai wen-chi (Taipei: Commercial Press, 1972), 19.5a. 77 HNYL 363. 78 SHT 23.358.
496
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his circumstances are extenuating, the law does not allow him to commute the penalties. How can we not seek to transform him through rites and music and instead apply penalties and fines? The Han emperor Wen caused men to carry grain to the borders as a way of receiving honor and of avoiding punishments. . . . Some men imprudently seek profits and so violate the laws, but others are pitiable, and so we should separately establish a law on commutation. Villagers may use grain; city people may use money. The suggestion was discussed by the officials, but it was attacked because it meant, in the words of the historian, that the rich could commute penalties, whereas the poor people would be punished. Eventually the idea was shelved, 79 but a passage from 1071 says that the officials and people could commute penalties of the heavy rod "if the circumstances were extenuating." 80 Eighty years later a censor remarked to Emperor Kao-tsung: "In antiquity, contributions in gold were used as a form of penalty. The Former Kings had hearts that could not bear to see the suffering of others. When the people knowingly transgressed, they could offer gold in requital of their guilt. In later times this was put into the law code. There were clauses with regard to fines in copper, from 1 pound to 120 pounds. Your Majesty's humanity has revived the world, seeing the suffering of the people you wish to help.... Recently the prefectures and districts have aided those guilty of crimes calling for beating with the heavy rod or penal servitude. They are ordered to pay money to avoid the punishment. At the least they pay several tens or hundreds of strings. At most they may pay 1000 to 2000 strings. Judged by the statutory rules, these fines are excessive relative to the guilt. . .." The emperor said, "From now on we should have a regular law system for this."81 But this same emperor had, a few years earlier, also expressed his dismay at a legal system in which the wealthy were more and more often able to escape penalties that the poor had to suffer.82 This problem, a class division in punishments, was not confined to the Southern Sung. A late Northern Sung official complained that when cases were reviewed and the penalties were increased beyond the normal, those affected "are often poor people. Such increases rarely affect the rich" because the rich
79 SS 201.5025-26. In 1070 a reform suggestion was submitted that resembled the practice described for the Han. People could, in effect, gain exemptions from future penalties by means of their current good behavior. Under the suggested (but not adopted) system, officials were to issue certificates for especially upright and moral behavior. If later the holders became involved in a minor crime, they could use their certificates to commute the penalties (see WHTK 167.1448). 80 HCP 227.12b. 81 HNYL2604. 82 Liu Cheng, Huang-Sung chung-hsing, 25.12b.
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Law and order in Sung China
were able to bribe the clerks to present their cases in the most appealing manner. The privileges of the elite were further buttressed by stipulating especially heavy penalties for those who had the temerity to attack them. Crimes against status superiors were punished more heavily than were those against equals or inferiors. In the T'ang and early Sung codes, the penalty for ordinary assault was forty blows of the light rod, but an assault on an imperial relative of the t'an-mien degree of mourning (i.e., one degree beyond the ordinary outer limits of the mourning circle) was punishable by one year of penal servitude. If injury resulted, the penalty jumped to two years of penal servitude, versus sixty blows of the heavy rod in the case of ordinary persons. There are many other specific rules in the codes. 84 Indemnity payments and fines T h e Sung system also allowed a practice that was reminiscent in some ways of the European practice of indemnity payments to wronged parties. According to a rule found in the early thirteenth-century Sung code, when a person with the right to commute penalties committed battery, the commutation money was to be paid to the family of the victim. 8 5 Fines in lieu of other penalties were also used in dealing with M a n tribesmen a n d in 1090 were extended to the non-Chinese tribal peoples in the border areas of L u Prefecture in Tzu-chou Circuit. T h e fines ranged from three strings of cash for crimes calling for beatings with the light rod to thirty strings of cash for capital crimes. T h e monies in these cases went to the authorities, not to the families of the victims. 8 6 T h e sources d o not indicate whether the Chinese authorities were merely continuing traditional tribal practice or introducing a new system. However, given the widespread use of such payments, from the northern peoples of early Europe, to the desert Arabs, to a n u m b e r of African societies, it seems probable that the Chinese were simply sanctioning a system of settling disputes that h a d been found workable by the nonChinese groups before they fell under Chinese domination. T h e Sung writers generally looked down on these systems as if they in some sense violated propriety b u t acceded to them as conventional among inferior groups. Although the details of the commutation system for H a n Chinese 83 84 85 86
SHY, hsing-fa 6.60b. SHT2i.324ff. TFSL 500. HCP453.i3a-b. 498
Modifications of penalties
offenders are not wholly clear, it does seem that the Sung government, in this roundabout way, had created a system of fines as penalties, albeit disguising them as commutations. The nominal penalties for infractions were given in terms of the traditional Five Punishments, which did not include fines. The widespread use of a commutation system meant that in practice fines were a part of the penal system. Because these "fines" were brought into the system as variations from what was seen as standard practice and because they were used largely for minor crimes that would not come to the attention of the higher authorities, they are seldom discussed in the extant sources. The authorities were perhaps uncomfortable with practices that deviated from the standard and came close to the kinds of amends permitted to non-Han tribal groups. Reductions because of family or personal circumstances Sung law, like the law of earlier and later dynasties, also recognized as just and appropriate the reduction of penalties in cases in which the accused criminals were considered to be incapable or when the punishment would work undue hardship on others. People were considered incapable by virtue of age, illness, or other handicaps. Under the T'ang and Sung codes, people who were aged or very young or suffered from certain diseases or disabilities were either excused from penalties or had their penalties reduced. The early Sung Code stated: If all those who are seventy years old or older or fifteen or younger, or critically ill or disabled have been sentenced to exile or less, they will be permitted to commute their penalties. If those who are eighty years old or older or ten years old or younger, or those critically ill or disabled are guilty of rebellion or homicide, in all cases when the penalty would be death, they may exercise the privilege of petition... . When such people are guilty of robbery or batteries, they may commute their penalties. . . . All other crimes are not to be adjudicated. Those ninety or over or seven or younger, even if guilty of capital crimes, were not to be punished. 87 For the same reason, members of certain groups were also exempted from wearing fetters. The commentary here traces these privileges back to the classical work known as the Rites of Chou, which in the "Three Amnesties" section speaks of granting lenient treatment to the young and weak, the aged, and the incapable. The residual punishments to which these groups were still subjected for the more serious crimes are explained as being necessary because their crimes had necessarily created bitterness among 87 SHT 4.56ff.See also SHY, hsing-fa 3.10b. 499
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the victims and the victims' associates, bitterness that needed to be assuaged. 88 Emperors also at times intervened to lighten the penalties of persons whom they felt deserved special pity because of their age. During the Ch'ing-li period (1041-49), a nine-year-old boy had killed someone in a fight and had been declared liable for execution. Emperor Jen-tsung said, "He was only a child fighting. He had no intention of killing someone. Money should be paid to the family as a redemption." 89 Of course, those who deliberately tried to use the privileges they derived from their condition might find themselves being punished. In 1025 t n e authorities in the capital prefecture reported to the emperor the following: The commoner Ch'en Wen-cheng and his wife Ah-tsung have been tried for leading into prostitution the wife of a soldier in the Tiger Wing army. According to the law, they should be liable for one and a half years of penal servitude. Both husband and wife are blind and are eligible therefore to be forgiven, but Wencheng trusted to his blindness to protect him and did evil. We ask that he be sent to an outer prefecture for "registered control." From now on those who presume upon age or illness and so deliberately commit wrongs when the circumstances are difficult to forgive should have their crimes investigated and await an imperial order that they be transported to outer prefectures for registered control.
The emperor approved the suggestion of the prefectural government. 90 Religious and filial privileges Buddhist and Taoist monks and nuns were also treated in a distinctive way by the law. Under some conditions their religious vocation might result in an increase in the ordinary penalty. For example, adultery might result in heavier penalties than normal. In other cases the regular law was applied only after the culprits had been laicized. However, for relatively minor crimes such people might be punished by laicization alone, thus escaping from the penalties inflicted on ordinary commoners. 91 This was one of the benefits of owning a certificate of ordination, certificates that were sometimes sold by the government to raise revenues. 92 Even if the criminal himself could not be excused on these grounds, 88 SHT 4.56. For the situation under the Ch'ing, see Derk Bodde, "Age, Youth, and Infirmity in the Law of Ch'ing China," in Cohen et al., eds., Essays on China's Legal Tradition, pp. 137-69. 89 WHTK 170.1475. 90 SHY, hsing-fa 4.12b. 91 SHT 26.424. See also SHY, hsing-fa 1.19b-20a; TFSL 515. 92 See Kenneth Ch'en, "The Sale of Monk Certificates," Harvard Theological Review 49 (October 1956): 307-27.
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he might be spared if carrying out the penalty would result in undue hardship for his parents or grandparents. According to the early Sung Code, which was repeating the rule from the T'ang Code, "Petitions may be submitted in all cases involving those who commit capital crimes (other than one of the Ten Abominations) if the paternal grandparents or parents are aged or infirm and require service and the family has no adult relative within the second degree of mourning." Approval of such petitions meant that these convicted persons were permitted to remain at home to care for their elderly relatives. When the elderly persons died or another relative of suitable mourning relationship came of age, another petition would be submitted to the authorities so that they could decide what to do with the original criminal. 93 The coverage of this rule is restricted somewhat in the early thirteenth-century Sung code, which specifies other crimes not covered by the rule: Memorialize the cases of all those adults guilty of capital crimes (with the exception of the crimes of the Ten Abominations, armed forceful robbery, and premeditated murder or deliberate homicide when the victim has actually died), whose elderly or ill grandparents and parents have no other adult mourning degree relatives and so ought to be cared for. This rule also might be applied to women: "Women who under the law should be punished with registered control should be spared registration when their husbands' grandparents or parents or their own parents or grandparents are old or ill and need someone to care for them but lack any other adult mourning-degree relatives." 94 Voluntary surrender and confession Because the purpose of punishment is, among other things, to contribute to the criminal's salvation by leading him to "renew himself," whatever will contribute to that end may find a place in the penal system. T h e Chinese early recognized that the first step on the road to renewal must be the criminal's willingness to recognize and admit to others what he has done. H e must begin by confessing. Chinese legal codes allowed criminals to reduce their liability for punishment by voluntarily surrendering and confessing. 95 In the words of a Southern Sung official, "With regard to legal cases, the legal system has stipulations concerning confessing, in order to make known to the 93 SHT 3.48. I am using the translation of the T'ang rule from Johnson, The T'ang Code, p. 152.
94 TFSL 527. 95 For confessions, see George Kennedy, Die Rolle des Gestandnisses im chinesischen Gesetz (Berlin: n.p., 1939).
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people the road of their self-renewal" (and, he adds, to make it easier for the judges to get the facts). 9 6 T h u s it was general practice to allow most deserters from the armies to return without penalties within time limits, usually two months from the day they deserted. This rule did not, however, cover those who had committed armed robbery or rape, or certain other sorts of banditry. 9 7 And an edict of 1042 made it possible for bandits who had not yet killed anyone or who had not been the original instigators of their crimes to return to their old occupations within one hundred days without fear of prosecution. 9 8 T h e confession policy was one of the key legal issues in the most celebrated case in the whole Sung dynasty, that of Ah Yiin. Ah Yiin was a woman from T e n g Prefecture in Ching-tung East Circuit. While her mother was still in mourning, Ah Yiin was betrothed to a man she despised because he was ugly. She plotted to kill him but failed in her attempt. When the investigation began, she voluntarily confessed. T h e central government offices felt that the young woman should be executed. They reasoned that betrothal was tantamount to marriage in its legal effects. Therefore, Ah Yiin had attempted to kill her husband. Those who disagreed with this legal stand, including the prefect who had originally tried the case, questioned the reasoning of the central organs and continued to affirm the applicability of the rules on confession. T h e case became caught up in the bitter political struggle between Wang Anshih and the conservatives and dragged on for a considerable period despite repeated attempts by the emperor to impose a solution by decree. In the end the opponents of execution won out, but only after bitter wrangling. 9 9 As the edict makes clear, the policy of forgiveness was not open to every criminal. It was especially intended for men who were "intent on rectifying their faults and renewing themselves." 1 0 0 In 1085, officials from the Department of State Affairs explained: The statute allowing the reduction of the sentences of those who surrender and confess refers to crimes that are not especially horrible and to criminals who wish to reform. In regard to rapists and robbers, it is hard to classify them with other crimes as deserving reduction on the basis of precedents. We ask that reductions not be granted to robbers who have killed, rapists, robbers who having been spared [again commit crimes], and armed robbers in groups of three or more 96 HNYL 2667.
97 HCP 398.12a-13b. 98 HCP 115.1a, 12399.25b, 355.2b. 99 SS 201.5006; WHTK 170.1475. See also Han Wei, Nan-yang chi, SKCSCP 1971, 26.ia-8a; HCP 3.15b. 100 HCP 398.12a-13b.
502
Modifications of penalties who know they are to be accused or who are already being investigated and therefore confess.101 Psychological insight and common sense about the difficulties of effective investigation under premodern conditions came together to support the continuing use of this practice for other lesser sorts of crimes. This policy thus served several interrelated functions, encouraging rehabilitation, easing the job of investigation, and, according to one observer, helping break up gangs by sowing distrust among their members. 102
Conclusion Like the leaders of all polities, the Sung authorities sometimes had to choose between justice and mercy. The demands for justice, for a fit between actions and responses, between crimes and punishments, were rooted in fundamental Chinese ideas about communication and society. Acts are messages and actors respond to them. Like actors on a stage the men and women in traditional China had socially sanctioned roles to play. If all actors played their roles properly and so sent the appropriate messages to the right parties in the correct way at the proper times, then the world would run well. However, like actors on any stage the actors in the drama of traditional Chinese life could fail to perform their roles correctly, instead acting willfully and for their own purposes or because others had failed to train them properly. Penalties were necessary when actors, for whatever reason, did not fulfill their roles properly. Mercy also had deep roots in the Chinese tradition. If those with power could be certain that a given punishment was the appropriate response to a given action, then of course they should apply it. However, if there were any doubt, then the rulers were advised to err on the side of mercy. Excessive penalties sent very unsettling messages to society at large. Mercy also sent a message, because it gave the receiver both the opportunity and the motivation to reform, and at the same time revealed the power of the emperor to forgive. The Sung penal system at all points reflects the interplay of these two goals. Certainly the system was aimed at preserving the existing political and social order. Those in power could and did use force and violence to defend their prerogatives. Like ruling elites elsewhere they would no doubt have looked on such actions as defenses of justice. If justice exists when all persons fulfill properly the roles and functions appropriate to 101 SS 201.5011.
102 HCP 124.30-40.
503
Law and order in Sung China their condition and receive in return their proper deserts, then actions in punishing those who refuse to fulfill their roles is just. The Sung elite never doubted that society was by nature hierarchical, nor that the imperial system of government was in some way attuned to the order of the natural. Defending this hierarchy and the political system associated with it was for them defending a natural system. Groups and individuals who were oppressed by this system may have harbored doubts about the meaning of justice, but few Chinese officials did. Each person had to act out the role appropriate to his or her place in life. This belief also emphasizes the importance of appropriateness and measure. The punitive sanctions applied to actions that threaten the given social and political order must themselves be appropriate. Since rules are general, but situations are particular, it was clearly necessary to provide some means for adjusting penalties to situations. The Sung Chinese supplemented their system of penalties with elaborate policies for modifying punishments, making them heavier or lighter. The Sung officials called for penalties to be increased beyond the normal degree of severity for two reasons, because the circumstances of the crimes were especially outrageous or because maintaining security in the area where the crime had occurred was especially important. From a broader perspective the two traits coalesce. Acts were deviant because they threatened the social or political order. Particularly heinous acts, abuse of the old, killing the helpless, and so on clearly called for strong responses. In especially sensitive regions, criminal acts were especially dangerous. The Sung authorities were even more concerned about reducing punishments. The ideological justifications for such modifications of penalties are spelled out in the earliest Chinese works on politics. These ideological presuppositions interacted with the practicalities of politics to shape the character and even the frequency with which mercy might be extended. The amnesty system, which reached its height during the Sung, was one of the most important means by which penalties were reduced in traditional China. Amnesties were justified as imperial acts of grace that gave people the opportunity to reform themselves and demonstrated the power and the benevolence of the emperor. Though we may be unduly cynical, it is also important to recognize that the police system was putting so many suspects into the judicial system that it became overburdened and that the judicial system was sending to the penal system more men than it could handle. Periodically the numbers needed to be lowered. Such reductions increased the convicts' labor value by creating a turnover, and by holding out the possibility of 504
Modifications of penalties potential release at any moment might help keep men serving time from becoming disillusioned and discouraged. Most of those persons who benefited from these general amnesties were probably men of low social status; most of those who benefited from the system of privileges were people of high status and great power. Some privileges were extended to the less powerful - women, the aged, the disabled - but the most important privileges were extended to those connected to the imperial family or to high officials. Privileges in China or elsewhere are reflections of power. What was unusual in the traditional Chinese states was the bureaucratic and legally regularized way in which these privileges were extended. The Sung is especially noteworthy for the degree to which it tied the granting of privileges to substantive officeholding. The Sung was the heyday of the bureaucrat. The Sung was also a time when money seems to have talked with special effectiveness. The wealthy have always been to some degree more equal than others, but in traditional China their influence was overshadowed by the power of the bureaucrats. Still, even though the Sung was in some ways the high point in the prestige and status of the bureaucracy, it was also a time when the rich, at least for minor crimes, could openly and legally trade money for exemption from penalties. They might buy the ordination certificate of a monk, which could be surrendered to spare the holder minor penalties. They might make contributions to the government in times of emergency and so purchase a nominal official rank that could be used to commute penalties. And finally, they might also in some periods simply pay commutation fines. Of course, as in all times and places, the wealthy could use their money in illegal but often successful attempts to pervert the course of justice. What is remarkable about the Sung is not the presence of corruption but the number of ways in which money could be openly and legally used to gain privileges. The role of wealth per se should not be overs tressed. The circle of the wealthy overlapped the circle of the bureaucrats. Many bureaucrats were among the wealthy, and wealthy or not, their power was very great. This bureaucratic elite believed that the existing social order, though far from perfect in fact, was basically in accord with the order of nature. Defending the existing order - including, of course their place within it was an act of justice. Such an attitude was self-serving, but it was also tied to some of the elite's fundamental understandings about the nature of man and the world. These views also led to a continuing emphasis on the search for justice and the granting of mercy. It was important that the responses to wrongdoing be fitting. It was proper to show kindness to 505
Law and order in Sung China those who after all also were people and so by definition were usually capable of renewal. We should not be surprised that the system failed at times or that it could be brutal. We should recognize the commitment of many officials to trying to improve the system and the optimistic view of the possibility of reform, which is one of the most striking and attractive aspects of the Chinese judicial system of that era.
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15 Conclusion
The inevitable tensions between the incommensurable goals and desires of different groups and individuals is a part of the dynamic core of any society. These tensions work themselves out in a context of geography, technology, economy, and tradition that shape the choices that the groups and individuals in the society think that they have. Disparities of values and circumstances, of patterns of action and experience, and of expectations and understandings are sources of social energy; the institutions, practices, beliefs, and patterns of living that emerge from the interaction of all these factors are determined by both the actions of the people involved and the world - physical, mental, cultural, and social within which they live and act. In successful societies these tensions produce a healthy balance of interests, which makes it possible for many members of the society to lead reasonably secure and fulfilling lives. Such social tensions play this central role even in the simplest societies; in states with a ruling elite, a new dimension is added to the interplay of social tensions. While recognizing that their views and visions are not shared by all others in the society, ruling elites are usually capable of identifying their own views with the "proper" views. By so doing, they define other views as deviant. These elites have the power to define certain violations as crimes, to which they can legitimately respond with force. Ruling elites can identify their own values with proper values because in fact on many points they are in agreement with large segments of the societies they control. Some rules may be clearly concerned with buttressing the power position of the elite, but many others embody widely shared values. In enforcing compliance with rules framed to support these shared views, the rulers are acting not just in their own interest but in the interest of a much larger group. By enforcing these rules, which often embody traditional values in legal form, the elite generates support among other parts of the larger society. In complex societies, special agencies are created to enforce such rules, 507
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which frequently are written down; special individuals exist to determine whether and how the rules have been violated; and special institutions are established to deal with offenders. The patterns of law, law enforcement, adjudication, and punishment that emerge are conditioned by both contemporary surrounding circumstances and inherited conditions, understandings, and traditions. Traditional Chinese culture from the founding of the empire in the second century B.C. until the twentieth century was a conspicuous example of a culture within which the tensions among values and patterns of behavior contributed to a relatively stable pattern of development. Certainly there were major changes during these two millennia in the ways that people lived their lives and the things in which they believed, yet these changes were far less radical than those occurring over the same span of centuries in Europe. Throughout these centuries in China, there was a sense of continuity and order that was missing in Europe. This orderliness was certainly one of the attractions of the Chinese way to the cultures that bordered China. Certain human groups have been especially successful in creating a semblance of order. They have been successful in the sense that the societies based on their solutions to universal problems have been capable of incorporating increasing numbers of individuals within their cultures and successful in that their conceptions have influenced groups far beyond their area of political control. Historically perhaps most successful in encompassing a great number of people while displaying remarkable continuity was Chinese traditional civilization. From its beginnings in the river valleys of north China, the pattern of its characteristic cultural discourse spread to cover much of eastern Eurasia. From the time in the sixth century B.C. when the Chinese began to reflect on and analyze their culture and society, they have appreciated the importance of socialization and communication and recognized the ways in which these can be affected by external conditions. The Classical Confucian thinkers - who more than any other group were responsible for shaping an ethos that dominated the thinking of the Chinese ruling elite - recognized the fundamental role of primary-level socialization. They also recognized the fundamental role of language communication in transmitting culture among individuals and across generations. They focused on reducing communication problems through proper social training, especially by example. Confucians coupled their stress on the role of socialization with the recognition that success would always be only partial. Transformation through teaching always had to be accompanied by mechanisms for sanctioning and deterring those not properly trans508
Conclusion
formed and taught. Education was always coupled with punishments. With their aesthetic rather than logical sense of order, the Confucians stressed the importance of harmony and balance and the role of models and examplars but still acknowledged the inevitability of some deviance and the necessity of using lawful force. Another group of Chinese thinkers were even more concerned with these problems: The Legalists, with their penchant for universalistic principles and for generalized and not particularistic ethics and justice, concentrated on the uses of law and force in governance. The opposition between these two approaches can be neatly phrased. In practice and in the minds of many traditional Chinese, the tendencies and concepts espoused by these rival strains of thought were thoroughly mixed. During the Warring States period (403-221), strands of thought from the various schools were shared in various ways. Even among those ordinarily classified as "Confucian," we find an admixture of other views. This eclecticism in practice begins early and remains characteristic of the Chinese literate elite under the empire. These legal beliefs were based only in part on the more general tenets of the philosophers. They also drew on these thinkers' knowledge of the existing systems of laws and legal institutions. By the founding of the empire in the third century B.C. there already were elaborate codes of laws, penalty practices, judicial systems, a stock of widely shared views about the origins and nature of criminal behavior, and a repertoire of responses thought to be effective, appropriate, and feasible. The history of the evolution of the legal, law-enforcement, and penal systems that built on this Classical heritage has yet to be written. Notable works have already appeared that deal with the usages of the Ch'in-Han and the T'ang, but because of the limited sources available for these periods, these studies have had to leave many questions unanswered. The Chinese under the empire themselves thought of their legal history as evolving from an era of simplicity to an era of excessive formalism. For the elite of the Sung, the golden age in law was the three dynasties of Hsia, Shang, and Chou, but they also at times look back to the T'ang dynasty as a more recent example of proper (i.e., lenient) law. Their own dynasty they saw as an improvement on the brutality characteristic of the Five Dynasties. 1 For a modern historian a knowledge of the Sung system provides one benchmark against which to measure change from a time for which there is a wide variety of sources extant. Such a study can show how the responses to universal problems were shaped by
1 See, for example, Yin Shu, Ho-nan hsien-sheng wen-chi, 2.5b.
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specifically Chinese cultural elements and by particularities of the Sung situation and experience. The general problem facing the Chinese of Sung times was clear: Deviance and crime persisted. People's conceptions of them were based on both inherited wisdom and current experience. Sung authors at times did differ concerning the origins and nature of the crimes of special concern, but among most writers there was a basic consensus. Most crime stemmed from the hardships suffered by the people and was exacerbated by the abuses of officials. The Southern Sung official Liu Yueh observed, "In recent years, the people being impoverished, bandits have arisen. All have been provoked by abusive officials."2 Given this conception of crime, certain responses were predictable. The best answer would have been to reduce the underlying causes of crime, employ good officials, and thereby wean the people away from bad behavior. Liu Yueh went on to say that since he had taken the office of sheriff of Min District, he had tried to resolve the crime problem by forbidding the clerical personnel from entering the countryside where they had been abusing the people, by not allowing the locally responsible mutual security agents to hire substitutes, and by warning his colleagues to refrain from such abuses as using excessive punishments, being overly harsh in collecting taxes, accepting bribes, and using their positions to make money. 3 Some Sung officials even speak, perhaps hyperbolically, as if all banditry could be eliminated. The official Liu Chang wrote: The world was suffering from bandits. Someone asked, "Can bandits be eliminated?" I answered, "How could it be that bandits could not be eliminated? Those who are willing to become bandits do so for reasons. If you simply get rid of the causes, how could we then suffer from banditry?" They asked, "What are the causes of banditry?" I answered, "The inadequacy of food and clothing causes banditry. Government exactions being inequitable causes banditry. When we cannot effect transformation through education this causes banditry." The consensus answer was clear. Again, Liu Chang: In good times the reason that bandits are lacking is sufficiency. In times of good government the reason for the lack of banditry is equity. In times when educational transformation is effective, the reason for the lack of banditry is harmony. If you do not attend to providing sufficient daily necessities but attend to suppressing bandits, this is like damming up water without stopping the source. If you do not attend to the educational transformation of bandits but seek just 2 Liu Yueh, Yiin chuang chi, 17.14b. 3 Ibid., 17.14b.
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to suppress them, this is like tolerating the blaze while seeking to promote harmony.4 Educational transformation was thought to be effective because its effects persisted over time. It was seen as inexpensive because its success cut the cost of the law-enforcement and penal systems. When such an educational strategy worked, there was no obvious conflict between the desirable and the feasible. Some Sung officials speak as if educational transformation alone might end disorder. The Northern Sung official Gh'in Kuan identified educational transformation as the sole means of control used under the three great dynasties of Hsia, Shang, and Chou, and punishments as the sole means of control of the hated Ch'in empire. The Han and later dynasties tried to use a mixture of the two, but the disorders continued. Some men, he believed, argue that the present day and antiquity are fundamentally different, so that wishing to depend only on educational transformation without using penalties is fatuous. Such men, he observed, are "rotten Confucians who do not understand." 5 Despite such pleas, however, in the real world, educational transformation clearly failed in many cases and crimes continued. Indeed, it seems probable that the crime rate increased during the Sung. Wilson and Herrnstein suggest that three main factors are responsible for longterm shifts in crime rates: First, shifts in the age structure of the population will increase or decrease the proportion of persons — young males — in the population who are likely to be temperamentally aggressive and to have short time horizons. Second, changes in the benefits of crimes (the accessibility, density, and value of criminal opportunities) and in the costs of crime (the risk of punishment and the cost of being both out of school and out of work) will change the rate at which crimes occur, especially property crimes. . . . Third, broad social and cultural changes in the level and intensity of society's investment... in inculcating an internalized commitment to self-control will affect the extent to which individuals at risk are willing to postpone gratification, accept as equitable the outcomes of others, and conform to rules.6 We do not have sufficiently accurate demographic statistics to determine whether there was a change in the age structure during the Sung, nor at present do we know enough about changes in Chinese social investment in the socialization of people into appropriate roles. We can, however, assume that the demographic changes associated with increasing urbanism (characterized by both the growing number of large cities 4 Liu Chang, Kung-shih chi, 40.474. 5 Ch'in Kuan, Huai-hai chi, 14.2b-4b. 6 Wilson and Herrnstein, Crime and Human Nature, p. 437. 511
Law and order in Sung China and the vastly more numerous market towns) may have increased the apparent benefits of crime. How were ordinary people and the state authorities to react to such wrongdoing? Given the level of communication and transportation technology, a concern about excessive military power and limited fiscal means, the traditional Chinese administrations responded to the problem of disorder in part by attempting to foster local semiformal forces that could help with crime prevention and law enforcement. Given the choice between private and state-mandated or state-authorized semiformal systems, the state clearly preferred the latter, because it gave the state some sense of control in local areas. In contrast with semiformal systems, which were often sponsored or approved by the state, private agents were in theory illegal, though in practice the state tended to overlook such things as the private ownership of weapons as long as those involved caused no overt trouble and belonged to reliable social groups. Semiformal systems, especially mutual security groups, were frequently used by Chinese states. From before the unification of the empire in the third century B.C. they existed in some Chinese kingdoms. Many imperial dynasties used such systems, and they continue in some form in the present on the Chinese mainland. We might find intolerable the compulsory registration in groups whose members are mutually responsible for one another's behavior. In premodern China such feelings were probably rare. In a relatively stable agrarian society like traditional China, most of the members of a mutual security group already knew one another well. The state was attempting to impose liability on them, not the necessity of prying into the affairs of others. Most of the misbehaviors of their neighbors were common knowledge. The usefulness of such mutual security groups to the state was obvious, but so was the difficulty of making them effective. According to the Sung official Yuan Fu, "Banding together at the village well is fundamentally difficult."7 Chinese states also tried to cut the costs of administration, including law enforcement, by drafting local people to serve as village officers to collect taxes, to provide some local services, and to control minor disorders. The use of such agents, like the establishment of local security groups, reflected a tension between the ideal and the possible. Such local agencies were both potentially and to some extent in reality antagonistic to the desires of the central authorities, because they embodied a necessary but not a desirable decentralization of authority. The tension be7 Yuan Fu, Meng-chai chi, 3.32.
512
Conclusion
tween the desire of central authorities to exercise control in local areas and the desire of the local people (including some local administrators) to have a greater degree of control over their own lives was always present. In the case of local subgovernmental agents, the state simply had no choice. The authorities could not afford to use formal, remunerated state functionaries to perform all the tasks of local government. So, although clearly cognizant of the potential dangers involved, they always used local agents. The same sorts of dangers were created when the government used functionaries who were not themselves members of the civil service. Such people had to be used, but their values and goals often brought them into conflict with the larger goals of the state. The Sung official Wang Chih-wang noted that a district had recently created a new group of archers but that "the prefectures and districts cannot keep them under control, and the people suffer."8 Even more dangerously, such functionaries might fall under the domination of locally powerful families, who could use them to conduct their own private vendettas. 9 And when they were mustered out, such men were loath to return to farming and might turn to banditry. 10 On the level of formal governmental institutions, above the village level, the response of the authorities was shaped by sometimes conflicting aims and a variety of intellectual and physical constraints. It has become fashionable to downplay the importance of dynasties in Chinese history and to focus on elements that transcend such divisions. Certainly the importance of the dynasties should not be overestimated, but they were in fact important. Dynasties, and especially the long-lived dynasties, were important because they established a political and institutional context within which economic, social, and cultural change could occur. In particular, dynastic founders usually set a stamp on the shape of things to come, by defining certain problems as paramount and responding successfully to them. The success of their responses was reflected in the length of the dynasty. Institutions and policies that have been successful have great inertia. They tend to remain, at least nominally, in place. When they are changed, it is often in incremental ways. When no longer effective, they tend to be worked around or bypassed rather than eliminated or replaced. The choices made by early Sung leaders reflect both the real-world context within which they worked and their assessment of the problems of the recent past. Many factors formed the context of their choices. The 8 Wang Chih-wang, Han-p'in chi, s^b-ga.
9 Huang Kan, Mien-chai chi, 27-3b-ga, 29.8b-ioa, 32.ia-ioa. 10 Liu Chih, Chung-su chi, 6.73.
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Law and order in Sung China
Sung was a time of great economic and technological advance. A newly emerging social group was seeking, within the received repertoire of possible and acceptable means, to create a stable and prosperous society in which their group could remain dominant. Their perception of this repertoire was largely a question of having inherited from the past a spectrum of institutional possibilities, along with a particular view of the effects of different choices. The selection of key policies by the founders of the Sung was most affected by their understanding of the recent Chinese past, which they saw as an era marked by excessive power in the hands of the military. This situation had resulted in an administration that was both inhumane and politically unstable. The Sung dilemma was the need for a military force sufficient to reunify the Chinese ecumene, but not so powerful that it could coerce the civil state. Both the initial form and the later evolution of Sung law-enforcement and penal systems can be understood only in light of this concern. The reemphasis on civil officials in law enforcement clearly reflects this attitude; the gradual increase in the role of the military, which is perhaps the most striking change in the pattern of Sung law enforcement, may reflect both an increase in the difficulty of maintaining law and order and a decrease in the degree of government concern over the dangers of military power. Paradoxically, a dynasty that at its inception was characterized by a great mistrust of the military ended by having more soldiers stationed in the Chinese countryside than did any other dynasty. The Sung founders' reviving the office of sheriff was certainly an attempt to lessen the powers of military men in law enforcement; the gradual growth in the numbers of patrolling inspectors and the appointment of military officials as sheriffs suggest that civil appointees were unable to handle the growing problem of disorder. For some purposes, civil officials were ideal as agents in law enforcement. Many had passed the examinations. Many others, entering through the protection privilege, though not examination degree holders, had been reared in a milieu where the publicly avowed values stressed loyalty and integrity, and they were beholden to the ruler for giving them the opportunity to join the most prestigious group in Sung society. But the civil officials had one serious drawback. They often seem to have been incapable of leading or guiding military actions. The lack of military abilities among civilian sheriffs is a common refrain. In responding to this problem, the state authorities tried to compromise, by appointing military men to the civil post of sheriff. But this was insufficient. So in addition, the state increasingly used military agents in law enforcement. Even in the early Sung, the military were part of the law-enforcement 514
Conclusion
process, especially in the cities but also increasingly so in the countryside. Here what was desirable, an administration freed from any possibility of excessive military influence, was faced with what was necessary, the continuing reliance on the military as the institution best able to mobilize a sufficient force at an acceptable cost. Chinese dynasties varied in their response to the tension between the wen and the wu, the civil and the military. The T'ang had gloried in its martial spirit; the Sung exalted the civil. Yet the T'ang always relied on a basically civilian bureaucracy, and the Sung could only reduce the presence of the military, not eliminate it. Even in its attempt to reassert civilian control of the lawenforcement system, the Sung was drawing on military tradition. The Sung founder reestablished the position of sheriff and staffed the post with civil officials, yet the position itself had originated in the Ch'in and Han periods as a military position.11 The Sung responded to this tension by creating a dual law-enforcement system that included both civil and military, and over time, as the initial concern with excessive military power abated (and as the policy of lessening the power of the overweening military proved successful), allowed a greater role for the military men. It is not clear to what degree this was due to an increase in the amount and level of disorder, though this was clearly a factor. By the end of the Sung, the majority of lawenforcement officials were military, in both rural and urban areas, and the absolute number of law-enforcement agents had risen. In choosing between the hero and the gentleman, the state more and more often turned to the hero. Some of the increase in the number of law officers was probably related to demographic changes. More people might not necessarily mean more crime, but at the least they did pose greater problems of control. To exercise the same degree of control over a larger population, more agents were needed. Shortly after taking local office, the Southern Sung official Hsueh Chi-hsiian suggested to his superiors that an additional position of sheriff be established in the southern part of the district where he was serving, because it was an area where "merchants come and go because the trade route there is short and convenient, and in recent years the area has flourished, yet there is no government office."12 Greater prosperity might also have led to more criminals, by making available more tempting targets for them. 13 And as the state responded 11 Wu Ching, Chu-chou chi, n.8b-9a. 12 Hsiieh Chi-hsiian, Lang-yu chi, 20.9b-11 a, 26.1 a fif. 13 For the current use of this rather counterintuitive suggestion as one explanation for the
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Law and order in Sung China
to new situations by creating new laws, it also in turn created new crimes. The most noticeable example of this phenomenon in the Sung is the enormous increase in the number of crimes punishable by penal registration. The general Sung perception of the underlying problem was explained by the Northern Sung official Liu Chih: In my opinion the law [fa] is the great ordering of the world. The system of the law under the Former Kings had as its intent making it easy to avoid misbehavior and difficult to commit transgressions. Therefore the system was simple and straightforward, yet it sufficed to embody completely the principles of the world. In regard to the system of law under later generations, they were concerned only that those who were guilty might occasionally escape. Therefore they increased the numbers of constraints so that the people did not know where they might safely put their hands or feet.14 According to the general paradigm of law enforcement, the authorities need to get sufficient numbers of adequately trained and armed, properly led and motivated men to the right place in time to help stop crime or seize lawbreakers. If there were an increase in crime, they might in theory change any of these factors or any combination of them. The state could provide more men, better armed, trained, and led, more effectively imbued with appropriate attitudes, and so stationed that they could react effectively. The actual Sung response to the growth of disorder was to increase the number of men and create better control and supervisory systems. The thirteenth-century official Hsu Ying-lung noted: "The key to the suppression of bandits is the proper selection of personnel." He then went on, however, to list three components of this strategy, not all of which the Sung adopted in practice. For the proper selection of men to be effective, the authorities must focus on the essential qualities of the task and the man. They must keep the lines of authority simple and clear. And they must react swiftly but surely. In practice, beginning in the late Northern Sung, the men chosen for law enforcement were more and more often regular soldiers led by regular army officers, the patroling inspectors, and not civilian archers led by sheriffs. The authorities perhaps hoped that they would be better armed and trained than their civilian counterparts were. There are no indications that the Sung authorities worked to improve the indoctrination of these men. Rather, they sought to improve coordination and oversight by refining the supervisory system. During the Northern Sung, in many areas the responsibility for supervising law enforcement and the recent increase in American crimes see Wilson and Herrnstein, Crime and Human Nature, pp. 412-13. 14 Liu Chih, Chung-hsuan chi, 6.81.
516
Conclusion
legal process was shared by judicial and other sorts of intendants. This pattern fitted the general Sung penchant for dividing up responsibilities to prevent any one office from monopolizing control of any function. However, during the Northern Sung, the role of the judicial intendant became increasingly important, and in the Southern Sung, judicial intendants had almost exclusive control over legal and law-enforcement functions. This may have reflected a lessened concern about the concentration of control in one office; it probably also revealed the need for a greater unity of command because of the greater number of large-scale disorders. The Southern Sung was noteworthy for its major bandit suppression campaigns, most of which were supervised by judicial intendants. A Southern Sung official described such a campaign that he directed while serving as a judicial intendant. The bandits were really inland pirates operating on the great lake called T'ai-hu. The band numbered hundreds of men, armed with military weapons and using a large number of boats. The official describes how he moved larger numbers of troops into the region in the least obtrusive way, built forts, and tried to separate the criminal leaders from their followers by offering amnesty to those who surrendered. When the final showdown came, the government troops captured 380 men alive, plus 20 army deserters, and seized over 1900 pieces of military equipment and more than 200 boats. In addition, he says, among the bandits there were "an unknowable number who, aware of their crimes and seeing no way to escape, threw themselves into the waters or strangled themselves among the hills." 15 When disorders reached this size, the line between bandit suppression and military action was thoroughly blurred. The Sung authorities were aware of the kinds of problems raised by their attempts to improve law enforcement. The numbers of soldiers involved rose relative to the numbers of civilian archers, even though the higher officials knew of the drawbacks of the more military system. There were complaints that soldiers were ineffective because they were ignorant of local situations and could not gain the cooperation of the local people. Sometimes the soldiers made no pretense of trying to control rural areas. Again, there was a tension between the desirable and the feasible. The Sung army provided a ready pool of patroling inspectors and law-enforcement soldiers, so that the numbers used could be increased without difficulty. Increasing the number of archers and sheriffs would have been far more difficult. Already in the Northern Sung there were complaints that positions for sheriffs went unfilled for years because 15 Hsu Ying-ling, Tung-chien chi 8.16a-19b.
517
Law and order in Sung China qualified candidates refused to accept them. The job had heavy responsibilities and low prestige, so men often shunned it. The Southern Sung official Yuan Yiieh-yu wrote: "Among the official positions in prefectures and districts, the lowliest and yet the most burdensome is that of the sheriff. The sheriff cannot look down on men; men look down on the office and will not fill it." 16 The patroling inspectors were already military officers. To increase their number meant a mere shift in the duty location of the officers and a detailing of regular soldiers to support them. The crimes and criminals with which these law-enforcement agents had to deal do not seem to have changed radically during the Sung. The typical criminal seems to have been a young unattached male during both the Northern and the Southern Sung, and in both periods, the crime of greatest concern was banditry. This generalization needs to be qualified by noting that the increase in city size and the change in urban character spawned organized criminal organizations. (We have no evidence that the kinds of organized crime described for late Southern Sung Hangchow existed earlier in the dynasty.) Also, because control of the coastal waters was more critical to them, the Southern Sung authorities were more concerned with piracy. The state derived a substantial amount of revenues from levies on water-borne commerce, and the economy in general was much more oriented toward the sea. One response was to use judicial intendants to coordinate large-scale pirate suppression operations and to modify bandit-controlling policies originally designed for inland use to the special conditions created by the coastal environment. The overall aim of this system was providing a level of security adequate to allow the continuation of normal life for most people and to preserve stable political arrangements. The ideal might be to prevent crime, but in reality the authorities combined crime prevention efforts with systems for capturing or suppressing criminals. One product of this system was captured criminals, which presented the authorities the problem of how best to deal with them. The Sung punished people in order to exact retribution, to deter further wrongdoing, to defend society against the criminals, and to bring about their rehabilitation. Like the system of law enforcement, the penal system was the outgrowth of the goals sought, the means available, and the historical context. The goals were not all sought equally, nor were they always commensurable. A tension always existed between the need to defend society and the desire to rehabilitate offenders, between the search for security and the promise of redemption. Social defense implied 16 Yuan Yiieh-yu, Tung-t'ang chi, 18.3b.
518
Conclusion an exclusion of the criminals from society so that they could not harm it. But rehabilitation demanded that these people not be so thoroughly excluded that their later reintegration would be foredoomed. In addition, the Sung leaders were aware that if laws were seen as excessively harsh, they might not be enforced, and they felt that if they were enforced, such harsh laws would result in brutalizing the people who would themselves become cruel. 17 As with other aspects of the legal and law-enforcement systems, the compromise resulting from the tension between conflicting goals was determined by practical considerations and by the authorities' understanding of historical experience. The Sung official Ts'ai K'an repeated in a memorial the conventional wisdom concerning the utility of punishments: "Executions are used in order to bring an eventual end to them, and punishments are applied for a time so as to end them. The kings of ancient times all cherished life, but they always executed murderers." 18 The Sung dynasty had inherited the traditional system of the Five Punishments, of beating with the light and heavy rods, penal servitude, exile, and death. In a manner typical of the Sung approach to institutional problems, the authorities maintained this traditional system and even used it for some purposes, though for most purposes they used a different system. The Sung had inherited from the immediately preceding states a punishment called penal registration, and they used it as one of the most important penalties. Its importance can be measured in the steady increase in the numbers of crimes calling for registration and also in the impressions of contemporaries. Why did this penalty come to play such an important role? Labor penalties per se had been extremely important since the Han period, so in one sense the Sung was continuing in an old tradition. The use of the labor penalty called penal registration stemmed from the political and social conditions at the time of the dynasty's founding. When the Sung founder succeeded in pacifying much of the empire, he found himself with a large body of rootless vagabonds, ex-soldiers, and wanderers with no fixed place in society and no home. He settled such men in the military units of the provincial armies, a policy that served as a welfare measure, a security measure, and eventually a labor measure. From the point of view of these men, this arrangement provided a haven from their previous rootless existence. It also reduced the dangers of their turning to crime in order to survive and so contributed to the security of society
17 See, for example, the comments of Wen Yen-po, Lu-kung wen-chi, SKCSCP ed., 9.8b. 18 Ts'ai K'an, Ting-chai chi, 1.18a.
519
Law and order in Sung China
as a whole. And finally, it gave the state a large pool of available workers. The development of this system under the Sung is one of the best examples of the virtuosity with which the Sung created functionally new systems by continuing old forms in name and changing them in essence by altering their contents. During the Five Dynasties, there were a multitude of crimes punishable by death. Penal registration was used as a penalty for the few men convicted of these crimes who were spared. The Sung retained many of the laws with their death penalties and the practice of penal registration and yet radically altered the meaning of the system by systematically sparing the great majority of those convicted and sentencing them to penal registration. The units of registration were thus used as places for convicted criminals. Such criminals were registered in certain units of the provincial armies. They lived in encampments generally located adjacent to the encampments of other provincial and imperial army units. The men in them were controlled by the same patterns of small-unit mutual responsibility and military law applied to other military units. By locating the convict groups in the midst of other military units, the state in effect used the violent to control the violent. The empire was now at peace. Men who had initially been soldiers were unlikely to be used for further military service. To keep them busy, the authorities decided to use them as laborers. More than did the other dynasties, the Sung used this labor force to perform a whole host of tasks, from running the postal system to overseeing the herds of stateowned horses to building local facilities, tasks that in most dynasties were largely the responsibilities of the local commoners. This freeing of the commoners from many burdens without question increased the amount of labor power that they had available to pursue their private interests and thus contributed in an unmeasurable but clearly significant way to the economic growth of the Sung. The rehabilitation process was the converse of the system of control. The rootless men were now embedded in a military system, with fixed homes, exemplars, and comrades. Furthermore, they had always before them the promise of ameliorating their lot. The Sung was especially noteworthy among Chinese dynasties for its stress on ameliorating the lives of its convicts. In no other dynasty were amnesties granted so frequently. There are repeated policy statements about the importance of merciful punishments and even compilations of the rules and orders concerning such mercy. Furthermore, although there were a great many crimes that called for capital punishment, in many cases those convicted seem to have been spared and condemned 520
Conclusion
instead to penal registration. The concern of the state extended even beyond the ending of their sentences. If they served out their time or if they were forgiven their labors by means of amnesties, the men had the option of reenlisting in other units of the provincial armies (or if they were young and strong, even in units of the imperial armies). This meant that men, young or old, who were mustered out of the convict units and who had no other prospects did not have to face a bleak future. They had always the opportunity to continue in the armies, under conditions markedly better than those they had endured as convicts. This system fit superbly with the fundamental personality traits of criminals such as robbers and thieves. Modern criminological studies have shown repeatedly that one trait shared by such persons is a lack of impulse control and a very short time horizon. They discount heavily the future possibilities of reward or future threats of punishment in favor of immediate gratification. The Sung system put in front of these convicts, on a daily basis, a possible pattern of life better than that they were enduring. It held before them the virtual certainty that if they behaved reasonably well, they could improve their lot at the end of their sentences and, because of the frequent use of amnesties, also held out the promise that they might see their status improved at any moment. Once out of their original units, such men continued within an institutional context supportive of their continued good behavior, and because they lived and worked close to men still serving as convict laborers, they had always before them a reminder of where they had been and where they might return if they again committed crimes. Death remained as the ultimate sanction. Its forms even increased in ferocity. But this was counterbalanced by a tendency to spare men's lives. This process, allowing crimes to continue on the books as capital crimes but in practice sparing those convicted, may have had, indeed may have been intended to have, the effect of making the convicts feel a sense of having been given back their lives by the emperor, to whom they were thereafter indebted. Men may have been spared so that the state could exploit their labor; they may have been promised the possibility of a gradual improvement in their lot because in practice it was difficult to prevent the escape of any determined convict, but from the convicts' point of view, the result was an extension of mercy. I do not mean to imply that such mercy was extended equally. In both theory and practice, Chinese law was marked by a sense of hierarchy and privilege. Actions against superiors were more heinous than actions against inferiors. For a commoner to harm an official, for a wife to harm her husband, for a low-ranking officer to harm a higher-ranking officer, for a junior relative to harm an elder, these were most serious crimes. 521
Law and order in Sung China
For an official to harm a commoner, for a husband to harm his wife, for a superior official to harm a subordinate, for an elder to harm a junior, these might (or might not) be crimes, but they were almost always of lesser seriousness.19 Privileges were also characteristic of Chinese law. Some groups - the old, the young, the disabled, the insane, and women - benefited from a conviction that they had a diminished capacity. Most privileges, however, were the fruits of power, especially political power. Officials and relatives of the emperor by blood and marriage were privileged in various ways. This Chinese traditional system had respectable roots in the traditions of the Classical period. The Sung official Su Sung described this system: I have heard that in antiquity officials and their wives did not have to stand trial in person. This was done to indicate the precedence of the honorable and to cause the inferiors to suffer the trial so as to nourish a sense of shame and promote appropriate behavior. Chia I said, "A sense of decorous shame and of appropriateness of behavior is the way to cultivate people of exemplary character. Therefore people might be 'granted death' [i.e., allowed to commit suicide in private] and be spared the shame of public execution. Thus the penalty of the cutting off of the nose did not extend to the great officers, who were not far separated from the ruler himself."20 The later Chinese system of privileges, as it was enshrined in the T'ang Code and inherited by the Sung, was peculiar primarily in the formalism it used in awarding privileges. Specific ranks received specific privileges. Even dispensations of mercy were surrounded by rules. We cannot understand the working of the traditional political system without understanding these networks of privileges extended to the politically powerful. More striking, however, and more typical of the Sung, was the seemingly greater role of wealth per se in securing privileged treatment at the hands of the law, not just extralegally, but also within the rules of the game. The Sung rules on commutation often legally permitted the rich to escape the penalties for minor crimes through legally permissible payments. Their wealth also allowed them to avoid punishment illegally through collusion or bribery. The official Liu I-chih speaks of the ways in which the powerful escaped penalties. They even committed homicides and then importuned the officials to change the facts recorded 19 For this phenomenon as it affected relations between commoners and the demeaned groups, see WHTK 167.1450.
20 Su Sung, Su-Wei wen-kung chi, 17.14b-15a. That the nobility in ancient China were not always treated so leniently is beside the point as long as the men of the Sung thought they had been so treated.
522
Conclusion
in the reports or bribed the investigating personnel so that the testimony of witnesses was m a d e unclear. 2 1 His colleague Ts'ai K ' a n criticized both bribery and the abuse of the "protection" (yin) privilege by relatives of officials. Because such abuses existed, what is reported up to higher authorities is meaningless. They say that the bandits did not kill or commit arson or rape, and so on. And when the case is completed, they also say that the circumstances were not serious or that the penalty called for by law is questionable. Thus they memorialize for a central government decision so that subsequently the criminals avoid execution and are merely sentenced to penal registration. Before they have been transported a few post stations away, they escape from their fetters and flee to other areas where they again turn robber. 22 At times the Sung provided mercy for the rich, punishments for the poor, and justice for none. For all their flaws, however, and the imperfections that inevitably mark h u m a n institutions, the Sung systems of law enforcement and punishment are remarkable for their combination of a sensitivity to tradition, a grasp of practical psychology, an understanding of the complex interplay of political reality and economic constraints, and a willingness to retain the shell of hallowed institutions while changing their contents. T h e ability of the Sung leaders to use old institutions in new ways is one explanation of their success in staying within Chinese tradition while adapting to a novel world. 21 Liu I-chih, T'iao-ch'i chi, SKCSCP ed., 12.9b-ioa. 22 Ts'ai Kan, Ting-chai chi, 1.18a.
523
Glossary
Ah Yun MM An (Prefecture) An-fu (District) An-fu shih An-hsi (District) An-su (District) An-su (Prefecture) chai jji Ch'an (Prefecture) jf changa fit changb ti Chang-ch'eng k'ou chang-chia jltt] chang-chih ft i t Chang Fang-p'ing Chang Rang chang-kuan t'ing Chang-ning ft¥ Chang Shih-ying Chang Shou K T F Ch'ang (Prefecture) Ch'ang Ch'en ' S ^ Ch'ang-hua (District) Ch'ang-kuo (District) ch'ang-she #ifc Ch'ang-shou (District) Chao Chien ^ K Chao Chung-heng Chao K'uang-yin Chao P'u m^ Chao Shan-k'uo H Chao Shan-liao %
ch'ao i tzu @—^Sf Che-yii kuei-chien chen $| chen-chiang Hitl Chen-chiang (Prefecture) Chen Te-hsiu Ch'en (Prefecture) Ch'en Ch'un Ch'en Fu-liang Ch'en Hsiao-sun Ch'en Liang Ch'en Tung Ch'en Wen-cheng Ch'en Yuan-chin Ch'en Yuan WM cheng IE Cheng (District) ft(5 Cheng (Prefecture) Cheng Hsing-i cheng-tung ch'eng-chu ch'eng-li tu hsiin-chien ch'eng-t'an ftJcJiL ch'eng-t'ien 7pl:?c Ch'eng Yi SEJi Chia (Prefecture) ^ Chib (Prefecture) S chi-kuan 111=? Chi-lii (Garrison) ch'i ft Ch'i (Prefecture) Sf ch'i-chang 524
Glossary
ch'i-pan shih-ch'en ch'i-shih |?Tf} chiaa ¥ chiab m chiac m chia-chang chiang S|# Chiang-che tC$Jf chiang-chiao Chiang-nan chiang-tao Chiang-tso chien Chiang-yin (Prefecture) £ chiang yu-hou MSIfK chiao-hua ifcft chieha m chiehb ffi Chieh (Prefecture) ffl chieh-chi 8f5|5 chieh-tzu i^fi1 chien3 M chienb fgj Chien-ch'ang (Prefecture) chien-fa kuan chien i hsiian Chien-k'ang (Prefecture) chien-tang S # chien-tang shih-ch'en S chien-ya Sniff Chien-yen i-lai hsi-nien yao-lu ch'ien $B Ch'ien (Prefecture) ch'ien-hsia I^K Ch'ien-hsia ssu Ch'ien-t'ang (District) Ch'ien-yu (District) ch'ien-yiian chih-chen chih-hui chih-hui shih chih-yii B « ch'ih R Ch'ih (Prefecture) i chin Jf
Chin3 (Prefecture) Chinb (Dynasty) ^ chin-chiin ^ ^ chin-ping chin-shih Ch'in (Prefecture) # Ch'in-feng (Circuit) Ch'in Kuan lHH Ch'in Kuei ^ f t ching-ch'ao kuan Ching-chi (Circuit) Ching-hsi (Circuit) Ching-hu (Circuit) Ching-tung (Circuit) ch'ing3 m. ch'ingb If Ch'ing-ming chi Ch'ing-yiian t'iao-fa shih-lei chiu-ch'eng tu hsiin-chien ch'iu-chang ch'iu-fen ch'iu-pu Ch'iung (Prefecture) chou ji] Chou-hsien t'i-kang Chou Mi Chou Pi-ta ch'ou |3 ch'ou-chuang Chu-chi (District) fffi Chu Chin ^ H Chu Hsi %:M chu-lu chien-ssu chu-lu chou-chun shang-fa chu-po chu-po tsu-tsei shih-ch'en
E
chu-pu ± f f Chu Tsung ^ K Ch'u (Prefecture) lH ch'u-shen ffi# ch'u-sheng ^ i g Chuan-yiin shih 525
Glossary
Ch'uan-Shen chuang-ting JfctT Ch'un-hsi i-chou i-lu ch'ou shang-
fa mm—wi-KiHttgc
Chung-ching (Command) ,1&#pf chung-fa-ti Chung-shu Ch'ung-chieh (Command) Ch'ii (Prefecture) if chiian )jl$ chim f$ Chiin (Prefecture) i% chiin-chu chiin-hsien chiin-hsiin chiin-hsiin pu-shih chiin-hsiin shih WChiin-hsiin yuan W Chiin-t'ou ssu chiin-tzu fJ-J* E (Prefecture) fa ft fa-chia £fe^ fa-hui & # fan-chen S$R Fan Ch'eng-ta Fan Ch'un-jen ? Fan Chung-yen fan-chiin Fan Chiin J Fan Tsu-yii fang i§ Fang (Prefecture) fang-cheng Fang La Fang Pao Fang Shao fen ^ Feng Ching Feng-hua (District) fu ffi Fu (Prefecture) f§ fu-ping fifgk Fu-t'ien yiian feBBI fu tu chih-hui shih
Fu-yang (District) hai tsei-li Han Ch'i Han Chiu Han Wei Han-yang (District) Han Yiian-chi ^ X hang fj Hang (Prefecture) hang-kuan fj'g' Hao (Prefecture) ^ Ho Chiu-kung Ho-pei (Circuit) Ho-tung (Circuit) Hsi (Prefecture) Hsi-an (District) Hsi-Ch'uan ffiJII hsi-pei chou-chiin chiu-shang hsi-sha Hsi-yiian lu hsiang3 J|g hsiangb % Hsiang (Prefecture) hsiang-chu hsiang-chiin Hsiang-fu (District) hsiang-hsiin chien hsiang-hsiin pu-ping hsiang-jen hsiang-ping Hsiang-shan (District) 0I_ hsiang-tien iffiJft hsiao-jen ^^A Hsiao-shan (District) Hli| hsiao shih-ch'en hsieh % Hsieh Ching-wen Hsieh Yen-hsiang ^ $ hsien (^ Hsien-chu (District) fllj Hsien-ch'un Lin-an chih hsien-kuan t'ien PS'g'ffl hsien-t'ien hsien-wei 526
Glossary
Hsin (Prefecture) W Hsin-ch'ang (District) §f H hsin-ch'eng li tu hsiin-chien
I-(chou) (Circuit) i chun-fa
i-yung ftS Jao (Prefecture) jen flE Jen-ho (District) Ju (Prefecture) ^ Jung (Prefecture) kai-kuan B^'g' kai-tzu teng-kuan k'ai-chi ^flS K'ai-feng (Prefecture) K'ai-te MM k'ao % ko f& ko-men chih-hou k'o-hu ku & ku-sha K'uai-chi (District) K'uai-chi hsii-chih kuan-hu 1=f^ Kuang (Prefecture) ^ Kuang-hsin (Prefecture) Kuang-ku (Command) Kuang-nan (Circuit) jf M Kuei (Prefecture) It kuei-hsin %LW Kuei-yang (Prefecture) K'uei (Prefecture) ® K'uei-chou (Circuit) K'un-shan (District) Kung 1ft kung-ping kung-shou kung-tsui £ f f Kuo (Prefecture) M Lan (Prefecture) jfjj] Lei (Prefecture) If lia K
hsinga M hsingb T& Hsing (Prefecture) M Hsing-kuo (Prefecture) Jfi Hsing-pu fflfP Hsiu (Prefecture) If Hsiu-ning (District) £fc¥ Hsiung-chieh (Command) Hsii (Prefecture) ^ Hsii Ching-heng rFJp;||f Hsu Hsu &M Hsii Jan ftffi Hsii Ying-lung fFffifi Hsiian (Prefecture) fi hsiian-jen 3gA Hsiieh Chi-hsuan g ¥ $ g hsiieh-shih yiian hsiina ifr hsunb M hsiin-chien hsiin-she 3 Hsiin-tzu hsiin-wei ? Hu Su #j?g Hua (Prefecture) f HuaChen $|R Huai-nan (Circuit) Huai-yang itHf Huai-yin (District) Huang-ch'eng ssu Huang Kan ]!(!£ Huang K'o-chung Huang Shou-hsiin Huang-yen (District) Hui (Prefecture) M Hung Mai
iib a
a
lic (Prefecture) ^IJ
I (Prefecture) H Ib (Prefecture) iff I-chang (District) I-ch'eng (District)
527
Glossary
Liab
m Li m
lu-ch'iu 0 0 Lu-shih ts'an-chiin Lu YU mm luan-hai ffiflj lu ft Lii I-chien S9IS8 Lii Tsu-ch'ien Ma Hsi JSE3 ma-ch'ien san-pu Ma Mo MjR ma-pu chiin lung-shen wei ssu-hsiang tu chih-hui shih
li-pu ^SP
Ma-pu chiin-ssu ( ^ Ma-pu tu-chien Ma-pu yuan J|/ Man ^ ManTzu-lu Mao Fang ^ ^ Meng-liang lu Meng Yuan-lao Mi (Prefecture) min-chiin
li-cheng MIE Li Chin ^& Li-chou (Circuit) f IJ'/H li-ch'un li-hsiaa li-hsiab Li-hsiieh chih-nan Li Kou Li Kuang Li Mi-hsiin LiO $ l f Li Tao Li Yen $ Li Yiian-pi liang ^j Liang-che (Circuit) Liang-ch'uan Liang Tao ^ Liang-tzu Liang Wen-wei Liao En J p S Liao Hsing-chih Liao Kang JpBJ Lien (Prefecture) j Lin-an (Prefecture) Lin Tan ling ^» ling-ch'ih Ling-nan Ling-pei W liu SE Liu An-shih Liu Ch'ang Liu Chih Liu Hsi S Liu-nei ch'iian Liu-tu (Fort) liu-wai Liu Yiieh Lou Yiieh lu % Lu (Prefecture)
ming pp
Minga (Prefecture) Mingb (Prefecture) mo-k'an mou HA mou chih-hui tsa-i mou-sha Wk$i mou ta-ni Wk~tt8L mu chia-tzu ^C^i? mu hsiang-ping ;fc mu-hsieh ^Cft Mu-jung Yen-feng mu-lu ^ i i Nai Te-weng iff# Nan-feng (District) Ning-hai (District) Ning-kuo (District) Ning-tu (District) o-hsiao 31'h o-ni M$L Ou-yang Hsiu pa-i 528
Glossary
p'an-chia p'an-kuan pao ft Pao (Prefecture) ft pao-chia ft^3 pao-chieh ft$| Pao-i ftft pao-wu ftffi pen-ch'eng pen-shen li P'eng Kuei-nien P'eng Tao pi-lii tsu-tang Pien "pt pien-kuan Ping (Prefecture) Jf Ping-ch'iu yuan Ping-pu ^SR p'in Rp P'ing (Riding) # Poa (Prefecture) If Pob (Prefecture) 31 Po-chai pien pu-chang fftJS: pu-ch'u fRffi pu-kuan fillf pu-mu pu-tao pu tsei t'iao P'u (Prefecture) ft p'u-hu Mfi San-ch'ao pao-hsiin H san-kuan feilf San-pan yiian H; San-shan chih H San-ya H@f san-yiian Ei7C Sang Shih # » Seng Fa-tuan Seng Shou-kung Shan (Prefecture) $1 Shan-yin (District) Shang (Prefecture) Shang Chih-chung Shang-shu ffitt
Shang-tang (District) _hH Shang-yii (District) Shao-fu chien Shao-hsing (Prefecture) she-fu chang ttiljft she-kuan W^ Shen-hsing yuan STPJSt sheng ft* Sheng (District) M Sheng-shui yen-t'an lu shiha ^C shihb 5 shihc 7F shihd R shihe ± Shih (Prefecture) J6 shih-ch'en ^ E shih-chia E[S shih-fei ^ ^ ^ Shih-po ssu shih-ta-fu Shih-wei ch'in-chiin ma-chiin pu-chun Shih-wei ch'in-chiin ma-chiin ssu Shih-wei ch'in-chiin pu-chiin ssu
Ill|
shih-wu ff*ffi Shih-wu chi-yiian Shou (Prefecture) H shu Si Shu-mi yiian shuai-ch'en so H so-yu 0fS ssu ^E Ssu (Prefecture) ffl ssu-k'ou ^ I S ssu-k'ou ts'an-chiin Ssu-k'ou yiian W|^ ssu-li ts'an-chiin Ssu-li yiian Ssu-lu ssu W]$gWJ Ssu-ma Kuang 529
Glossary
ssu-mien hsiin-chien ssu-p'ai an ssu wu hsieh Sua (Prefecture) Sub (Prefecture) Su Ch'e Su Shih g f t Su Sung jfggg Su-sung (District) Sui-an (District) Sui-shou tsa-lu Sun Sheng Sun Shih Sung-ch'ao yen-i i-mou lu SungCh'i Sung hsing-t'ung ta § Ta-an ta-chi ta-chi chi ta-chia ta-hsiao shih-ch'en ^ Ta-lissu ± l l ^ f Ta-ming (Prefecture) ta-she ^ci5[ ta shih-ch'en ta-ts'u ta-t'ung T'ai (Prefecture) • t'ai-sui ^C^ T'ai-p'ing (District) Tana (Prefecture) Tanb (Prefecture) t'an-mien t'an-shihjen Tang-t'u (District) T'ang (Prefecture) tao ^ tao-tsei ^ K Te (Prefecture) ^> Teng (Prefecture) Ti (Prefecture) ^ t'i-chu tsu-tsei t'i-tien hsing-yii shih
t'i-tien wu-tao shih-ch'en t'ieh-kuo tien-chiang fa tien-ch'ien feng-jih t'ien-wu ssu-hsiang tu chih-hui shih Tien-ch'ien ma-pu chiin-ssu Tien-ch'ien shih wei ssu Tien-ch'ien ssu tien i-hsuan Wt~^ tien-chih t'ien-ch'i t'ien-ch'ing t'ien-hsiang t'ien-k'uang Ting (Prefecture) Ting-hai (District) ting-mao T^P T'ing (Prefecture) toua m toub 4 tou-sha tsa-chu tsa-hu Ts'ai (Prefecture) Ts'ai Ching J I M Ts'ai Hsiang Ts'ai K'an ts'ai-wu ch'in-min Ts'ao (Prefecture) W tsei K Tseng Rung t » Tseng Pu # ^ tso chiin-hsiin t'ui-tien Tso-i tzu-chen tso-yu hsiang tso-yu chlin hsiin-shih Tso-yu chiin-hsiin yuan tso-yu hsiin-shih tsu-tsei shih-ch'en Ts'ui Pai S S Ts'ui Tun-li ts'un ^f 530
Glossary
Tu-ch'ang (District) f[$H Tu Cheng It IE tu-chien §[$i£ Tu-chien ssu fftSniRl tu-chih hui-shih fltfgjf {£ Tu Fan t t i £ tu hsiin-chien i tu-pao Tu shui-chien tu-t'ung hsiin-chien tu yii-hou Tu Yen ftffi t'u ft t u-ping tuan ta-pi t'uan H tui-chang ^M t'un-ping shih Tung-ching meng-hua lu Tung-kang jRIS] T'ung-ch'uan (Prefecture) t'ung-p'an 3ft £0 t'ung-yung shang fa Tzu-ching pien Tzu-chou (Circuit) tzu-hsin §§f Tz'u (Prefecture) $J Tz'u-chi (District) tkM tz'u-ch'ung mou chih-hui pei-chiin $'J Wan-an (Prefecture) Wang An-shih Wang Chi-yii Wang Chih Wang Chih-wang Wang Ch'in-jo Wang Rung Wang P'i-chih Wang Shu Wang Ssu Wang Tan 3iR Wang Tseng-yii Wang-wu (District) Wang Yang 531
Wang Yen Wang Yung Wang Yii-ch'eng weila Ht weib S Wei (Prefecture) If wei-chih ^SftlJ Wei-kuo (Command) Wei-nan (District) wei-tzu Wen (Prefecture) ffl Wen-hsien t'ung-k'ao Wen Min-chung Wen T'ien-hsiang Wen Yen-po ~$CM wu ft wu-ch'en ftE wu-chieh 51|f5 Wu Ching ^ U wu-hsing 51 fj Wu-i (district) Wu-lin chiu-shih Wu-ning (District) Wu-p'ing (District) ft2? wu-sha W?:$t Wu-tai hui-yao ya-chiao ya-ch'ien ya-kuan ya-p'u Yai (Prefecture) S Yang (Prefecture) Yang An-kuo Yang Shou-chen Yang Wan-li Yeh Yuan Iflx Yena (Prefecture) Yenb (Prefecture) yen-mei IfRU yin I* Yin (District) IP Yin Chu f*& Yinga (Prefecture) Yingb (Prefecture)
Glossary
yii-kuan ling Yu-shan (District) I U 4 Yii-yao (District) §£M yiian-cheng x I E Yiian-ch'eng (District) Yiian-ch'ii (District) Sffi Yiian-feng chiu-yii chih Yiian Fu S"B[ Yuan Hsieh H'Jf Yiian Ts'ai ^ ^ Yiian Yiieh-yu ftU:S Yiieh Fei fifR Yiin (Prefecture) i^
yu-hsia Yung (Prefecture) Yung-an (District) Yung-chiu $Iii|$ Yung-hsing-chiin (Circuit) yii-ch'eng Yii-ch'ien (District) Yii Ching yii-chuang Yii-hai Yii-hang (District) yii-hou yii-kuan
532
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Works in Chinese and Japanese Chang Rang §gffl. Hua-yang chi ¥ R § * . SKCSCP 1972 ed. Chang Nieh 3R*H. Tzu wei chi #tjft||. SKCSCP 1975 ed. Chang Shou 3RTF. Fi-ling chi S P t * . TSCC ed. Chang Yung 3R|$. Sung-pen kuai-yai hsien-sheng wen-chi Taipei: Commercial Press, 1972. Ch'ang-sun Wu-chi H: J£ $t ^ . T'ang-lii shu-i JS fl^ i t Ml. Taipei: Commercial Press, 1970. Chao Shan-k'uo ffi#g. Ying-chai tsa-chu (tSFH^. SKCSCP 1975 ed. Chen Te-hsiu RJgif. Hsi-shan cheng-hsun HU-lJ&JU. TSCC ed. Hsi-shan hsien-sheng Chen wen-chung kung wen-chi ^lUJ9t^.M^C&&^C^. SPTK ed. Ch'en Ch'i-ch'ing HJ#JBI. Chia-ting ch'ih-ch'eng chih S ^ ^ t t S . SYTFCTS ed. Ch'en Ch'i-ch'ing K#?lP. Yiin-ch'uang chi ^ H f S - SKCSCP ed. Ch'en Ch'un &£&. Pei-ch'i ta-ch'iian chi itW
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547
Index
accomplices, 93, 102, 409, 423 accusations, 75, 82, 95, 126, 128, 302, 426 adjutants (chieh-chi), 312, 398 administrative misdemeanor (kung-tsui), 85 administrative officials, see capital and court officials administrative sanctions, 85 administrators for public order, 149, 3°5n77> 357 adultery, 82, 101—4, 287—88, 402, 500 Ah Yiin, 502 amnesties: crimes not covered, 76, 80, 163, 328, 371, 394, 478; effects of, 103, 326, 377, 401, 434-35, 486-87; "inspections of cases," 112-13, 378, 488-89; opposition to, 325, 490; processing of, 120, 244, 378, 399-400, 487-88; terms of, 485—91; to induce surrender, 17, 88 amputation, 328, 329, 330, 331 An Prefecture, 235 An-hsi District, 150 An-su Prefecture, 152^3 Analects, 16
appeals of cases, 236 archers: abuses by, 165, 175-76, 184; as criminals, 72, 142, 184; functions and duties, 151, 170, 183; grading and remuneration, 187-89; numbers, 145, 147; qualifications and training, 178-83; rewards for, 128 armed robbery, 89, 90, 119 arms, see weapons army chiefs (chun-chu), 302 army patrols, 293—94, 304 arson, 122, 139, 523; background of, 104; in cities, 95, 284, 302; in the code, 82 assault, 84, 95, 96, 98m 04; against status superiors, 99, 498; laws against, 82, 484
bandit-capturing servitors, 150, 246 banditry, 85—94 and passim barracks, 172, 186-87, 223, 3 O 9~ 1 0 base citadel, 85, 395 battery, 82, 96, 97, 99, 498 beating, 338-43 and passim; during interrogation, 33-39 beheading, 90, 100, 132, 214, 306, 331, 334, 421, 458, 462, 463, 478; description of, 447-50 black magic poison (ku), 75, 139, 402, 423, 492
Book of Historical Documents, 12, 323, 329,
33°> 349, 3^5. 386, 453, 472, 473, 482, 485 Book of Lord Shang, 324 Book of Rites, 455 Book of Poetry, 6
booty, 90-94, 184,331,475 border officer, 144 borders, 109, 140, 163, 175, 201, 210, 215, 244, 264, 399, 416, 462; northern, 141, 151, 174, 217, 232, 262, 405, 477; southern, 79-81 bribery, 101, 102, 169-70, 274, 284, 287, 417, 426, 510, 522-23; ofjailors, 346, 361, 367, 368, 369, 372, 376; punishment of, 85, 288 Buddhism, 71, 77, 82, 91, 125, 326, 500 Bureau for the Compilation of Edicts, 367 Bureau of Academicians, 382 Bureau of Civil Nominations, 265, 279 Bureau of Lesser Military Assignments, 209, 210, 262, 266 Bureau of Military Affairs, 59, 148, 299, 425, 426, 429; in compiling legal rules, 168, 269, 312; in selection of law enforcement officials, 207, 208, 217, 219, 265, 266
548
Index Bureau of Water Transport, 358 burglary, 82, 89, 91, 289 butchering of animals, 104, 294 cangue, 304, 344, 345746, capital and court officials, 241, 253, 254, 306, 316 capital command, 286 capital punishment, 71, 77; see also beheading, death by slicing, strangulation capital region, 137, 141, 283, 347, 349~5°> 362, 364, 371, 417, 461, 475; policing of, 104, 176-77, 201, 204, 208, 211, 289-303, 306-19; prisoners in, 112, 3O3-4, 356"59> 379, 4°3> 406-7 capital security office, 287 castration, 329, 331, 332, 389 Cavalry and Infantry Commands, 312 censorate, 303, 316, 348, 358, 372; investigative role of, 287, 288, 290, 372, 382 censorship, 75 Ch'an Prefecture, 475 Chang Fang-p'ing, 174, 175, 176, 393 Chang Kang, 373 Chang Shou, 78, 145, 162, 170, 197, 246 Ch'ang Ch'en, 422 Ch'ang Prefecture, 177m45, 205, 207, 280 Ch'ang-an city, policing of, 290—92 Ch'ang-shou District, I77n45, 205, 22ini42, 278 Chao Chung-heng, 304 Chao K'uang-yin, see (Sung) Che-tsung: T'ai-tsu Chao P'u, 148 Chao Shan-k'uo, 88, 216 Chao Shan-liao, 430 Chao Shih, 80 Che-yu kuei-chien, 74, 95, 355 Chekiang, 78, 96, 174 Chen Te-hsiu, 184, 383 Chen-chiang Prefecture, 165, 223 Ch'en Ch'un, 277 Ch'en Fu-liang, 135 Ch'en Hsiao-sun, 168 Ch'en Liang, 326, 332 Ch'en Prefecture, 248 Ch'en Tung, 248 Ch'en Yuan, 9 Ch'en Yuan-chin, 263, 264 Cheng Hsing-i, 106 Cheng-ho period, 153, 393, 441 Chi Prefecture, 10, 382
Chiang-che, 242, 433 Chiang-nan Circuit, 9, 47, 72, 153, 205, 218,433,437 Chiang-nan East Circuit, 109, 114, 220 Chiang-nan West Circuit, 10, 109, 114, 247, 264, 280 Chieh Prefecture, 114 Chien-ch'ang Prefecture, 114 Chien-k'ang Prefecture, 170m 23, 357 Chien-yen i-lai hsi-nien yao-lu, 465 Ch'ien Prefecture, 10 Ch'ien-t'ang District, 312, 319 Ch'ien-yii District, 478 Chih-tao period, 305 Ch'ih Prefecture, 114 Chin Prefecture, 431 Ch'in dynasty, 22, 122, 387, 511 Ch'in Kuan, 10, 73, 94, 511 Ch'in Kuei, 42 Ch'in Prefecture, 223 Ch'in-feng Circuit, 405 Ching-chi Circuit, 153, 176,407 Ching-hsi Circuit, 153, 176, 407 Ching-hsi North Circuit, 475, 478 Ching-hsi South Circuit, 109, 114, 167 Ching-hu Circuit, 242 Ching-hu North Circuit, 143, 197, 428 Ching-hu South Circuit: criminals in, 80, 114; geography and people's characters, 9; law enforcement in, 177, 205, 248; Man tribal people in, 80; penalties in, 428,431,433 Ching-tung Circuit: crime in, 112, 114; law enforcement in, 176, 262, 480; penalties in, 129,407,425,452,475 Ching-tung East Circuit, 502 Ching-tung West Circuit, 475 Ch'ing-li period, 500 Ch'ing-ming chi, 104 Ch'ing-yuan t'iao-fa shih-lei, 412, 413, 494: on corruption, 84, 85; information systems, 235, 241, 399; on penalties, 336> 34°> 35°> 402, 404, 459; on prisoners, 342, 343, 356, 361, 370, 375, 380, 395 Ch'iung Prefecture, 428, 430, 431 ChouMi, 288,316 Chou Pi-ta, 273, 274 Chou-hsien t'i-kang, 362 Chu Hsi, 58, 142; on human nature, 7, 24, 55; on law enforcement, 109, 125, 153, 177, 220, 221, 224 Chu-chi District, 357 Ch'u Prefecture, 144 Ch'u Prefecture, 104, 378
549
Index Chun Prefecture, 431 Ch'un-hua period, 239 circuit intendant, 111, 153, 228—50; inspections by, 188, 268; law-enforcement duties, 198; personnel duties, 209, 210, 214, 266; reviews, 437; supervision of convict transfers, 413, 415; supervision of law enforcement, 147, 153; supervision of penal and judicial work, 357, 365, 369, 372, 377, 380, 489; supervision of reporting systems, 162, 355 Circuit Intendant Commendation and Reward Laws, 168
circumstances, light or heavy, 61, 81, 93, 99-100 coastal areas, 106—7, X43> 212 Collected Decrees of the Ch'ing-li Era, 337 Collected Documents of the Five Dynasties, 293 Collected Sung Documents, 294, 297, 343—44, 381 Collection of Self-admonitions, 430
commendations, 240, 270, 271, 272, 274, 381 commissioner of overseas trade, 206 communication, 4, 5, 63, 109, 160—64 commutations, 324, 336, 337, 491—98; for crimes by mischance or accident, 100; for the disabled, 311; as an elite privilege, 74, 85, 127, 371; origins of, 33O, 474 Comprehensive Mirror, 290
confiscation of property, 53, 85, 127, 236, 244, 478 Confucius, 16, 21, 55, 130, 325 contribution, 260, 495 controller-general, 66, 149119, 162, 172, 174, 246, 306 contumacy (o-ni), 458 convicts: labor functions, 395; numbers of, 396-97 cooptation, 14-15, 80, 106-7 correctness (cheng), 6, 14, 15, 18 corruption, 74, 84-85, 169, 214, 475 Council of State, 59 counterfitting, 73, 82, 94, 104, 402 Court ofJudicial Review (Ta-li ssu), 357, 358, 359, 364, 377> 44<>> 462, 484 Court of Military Inspection, 358 crime rates, 107—9 crimes: causes of, 9, 11, 12, 68, 80, 325, 510; locations of, 109-11; numbers of, 68, 107-11, 337, 442, 465-69; responses to, 11, 14—15, 31, 88—89, 94, 217
criminals, numbers of, 79, 80, 106—7, io7ni36, 109, 111-15, 111 n 156, 162, 272,517 crucifixion, 450 cutpurses, 284, 289 death by slicing, 204, 402, 451-52, 463 death penalty, 82, 85, 90, 95, 98, 446-71; see also beheading, death by slicing, strangulation deliberation (1), 491 Department of State Affairs (Shang-shu sheng), 399, 408, 502 depravity (pu-tao), 102 deserters, 486, 502; as criminals, 69, 70-72, 80, 110, 112, 201, 458; punishment of, 331> 35°>42i,46 2 detained control (chi-kuan), 398-401, 409, 412 deterrence, 15, 323-25, 328-30 deviance, 6-9, 13-15, 18, 22, 24, 31, 33, 9°>J 92 director-in-chief concurrently serving as a patrolling inspector, 200 directors-in-chief, 209, 216, 297, 314 discord (pu-mu), 484 Discourses of the States, 329
disenrollment, 493 "distant, evil prefectures," 107, 351, 394, 412,423,428,430-31,478 divorce, 99, 102 Dreams of the Eastern Capital, 301, 302
E Prefecture, 197, 248 educational transformation (chiao-hua), 4, 14-15, 21,32,83,510-11 elders (ch'i-chang), 128, 134, 135, 138, 143, emperor, role of, 16 "empty jails" policy, 241 escapees, 71, 81, 286, 406, 407, 409, 417, 423,421,523 examination system, 18-20, 130, 211, 254~56> 3°5n77> 495 executions, timing of, 455-60 executory officials (hsiian-jen), 253, 262, 264 exemplary gentleman (chun-tzu), 80, 193, 484 exile, 126, 128; for black magic, 76; for corruption, 85; crimes requiring, 91, 337; for homicide, 100; for theft and robbery, 90, 132, 142 exile with added labor, 326, 335, 391, 485, 487
550
Index extortion, 74, 82, 84, 90, 169-70, 224, 287, 289 facilitated examinations, 255-56, 260 false accusation, 82, 92, 101, 102, 128, 288 false confessions, 92, 125, 159, 204, 369 Fan Ch'eng-ta, 318 Fan Ch'un-jen, 465, 467, 469 Fan Chun, 9 Fan Chung-yen, 11, 57, 179, 473 Fan Tsu-yii, 18, 92, 325, 366, 479, 480 Fang Pao, 361 Fang Prefecture, 111 Fang Shao, 72 Feng Ching, 142, 332 fetters, 147, 343-48, 3^9* 37<>> 3^9. 4<>o> 523; construction and care of, 303, 345—46, 357; exemptions from, 364, 437; as social defense, 327, 343, 373 feuding, 96 fights, 73, 96, 98, 100, 104, 144, 160, 305, 423 Finance Commission, 59 fines, 79, 85, 213, 334, 365, 482, 496, 498-99 fire fighting, 95, 134, 287, 301-2, 309, 312, 315 fiscal intendant, 89, 231, 232—33m, 297n45, 425 Five Punishments, 331, 452, 482, 499; definitions, 82, 329, 334, 447, 519; origins of, 322 foreigners, 82, 395, 400 Former Kings, 22, 323, 332—33, 391, 481, 483,496,516 forts, 137, 145, 205-7, 220, 223-24, 312, 316 fraud, 82, 84, 289 frontiers, see borders Fu Prefecture, 378 fugitives, 71, 111,416-18, 486; see also escapees Fukien: crime in, 17, 86, 106, 214, 247, 477; law enforcement in, 179, 214, 218; as a location for convicts, 407, 428, 433 gambling, 84, 104-5, X44> 289 Gangs, 109, 126, 213, 214; of bandits, 70, 72, 111,217, 269; dealing in illegal goods, 74, 247; of pirates, 106-7; s i z e of, 113—15, 163, 217; structure of, 12, 96 garrison towns (chen), 35, 207 garrison troop commanders, 35, 36, 37, 148, 172, 198
Gazetteer o/Lin-anfrom
the Hsien-ch'un Period,
312, 316 General Executive Inspector's Office, 358 Generally Applicable Reward Law, 168
grave robbing, 82, 90 guarantors, 143, 311, 314, 317 guard (pao), 138 guard head (pao-chang), 138 guards for prisoners, 156, 376, 415, 417, 424 guest households (k'o-hu), 180 guild organizations, 317, 318 habitual criminals, 71, 419; .re* also recidivism Hainan, 79, 81, 394, 408, 412, 415, 423, 428,431 Han Ch'i, 137 Han Fei Tzu, 26, 123, 324 Han Wei, 306—7, 308 Han Wen-ti, 348, 389 Han Yuan-chi, 73 Han-yang Prefecture, 143 Hang Prefecture, 223, 254 harboring, 93, 184, 478 heavy-penalty places, 152^5, 163, 262, 305-6, 402, 474-81 heavy-rod wielders, 341 heresy, 82, 139, 169, 246, 288, 458 Historical Records, 123, 387
Ho-pei Circuit: law enforcement in, 141, 149119, 176, 201, 480; laws in, 129, 475; registration in, 405, 435 Ho-pei West Circuit, 140, 150 Ho-tung Circuit, n o , 174, 235, 236, 240, 433; law enforcement in, 141, 151, 176, 211; laws in, 168, 176, 211, 235, 236, 240, 269, 433 homicide, 100-103 anc ^ passim; through accident or misadventure (wu-sha), 99, 100; in an affray (tou-sha), 98—99, 100, 291, 458; deliberate (ku-sha), 100, 369-70, 458, 501; in horseplay (hsi-sha), 100; premeditated (mou-sha), 76, 100, 101, 102,423,458,501 horse thieves, 70, 79, 202, 401 house arrest, see detained control, registered control Hsi Prefecture, 404 Hsi-an District, 188 Hsi-ning period, 305, 309, 452 Hsiang Prefecture, 431 Hsiang-fu District, 177m 45, 204, 295, 310 Hsiang-shan District, 177,
551
Index Hsieh Ching-wen, 308 Hsien-p'ing period, 160 Hsing-kuo Prefecture, 109 Hsiu Prefecture, 223 Hsiu-ning District, 109 Hsu Ching-heng, 204 Hsu Hsu, 248 Hsu Jan, 369 Hsu Ying-lung, 247, 516 Hsiian Prefecture, 101, 378 Hsiieh Chi-hsCian, 109, 324, 391, 515 Hsun Tzu, 7-8 Hu Su, 179 Hua Chen, 25 Huai-nan Circuit, 242, 396, 475, 480 Huai-nan East Circuit, 72 Huai-nan West Circuit, 102, 107 Huai-yin District, 72 Huang Kan, 143 Huang Liu-hung, 353, 361, 367, 368 Huang-yu period, 223 Hui Prefecture, 207, 216, 396 human nature, 11, 24, 25 Hunan, 76, 222, 415, 416 Hung Mai, 453 I Prefecture, 223 I-chang District, 223 I-ch'eng District, 109, 205 I-chou Circuit, 431 illegal salt dealing, 73, i66nio9, 200, 481 illicit goods, 86n8o, 87, 94, 202, 286, 419, 481,496 imperial armies (chin-chun), 394-98 and passim imperial relatives, 99, 256—57, 261; as criminals, 74, 286; privileges of, 498, 491,492 incest, 492 indemnity payments, 498—99 Individual Prefecture Individual Circuit Commendation and Reward Laws of the Ch'un-hsi Period, 168
information systems, 122-29, *39> J59> 243, 327; logs of activities, 134, 238, 272, 379, 412; registers of information, 152, I52n25, 153, 186, 238 informers, 89, 125, 128, 327, 417, 478 inquests, 155-57; personnel, 148, 238, 240, 307, 309; on prisoners, 370, 371, 372 inspections of cases, 485, 488-89 inspector in chief, 300, 302 inspectors general, 152, 218, 398 inspectors general for seizing bandits, 152, 200, 212, 2 1 3 , 2 1 5
Institute of History, 382 Institutes of Chou, 331
investigation, 157—60 and passim irregular officials (she-kuan), 258, 495 jail functionaries, 157, 158, 184, 361 jails, 239, 303-4, 309, 353-84 Jen-ho District, 319 joint adjudication, 53, 102, 124, 401, 402 J u Prefecture, 166, 478 judicial abuses, 12, 238, 458, 489 Judicial Control Office (Shen-hsing yuan), 428, 460 judicial intendant, 233-50; supervision of law enforcement, 80, 177, 207, 222, 308; superivision of penal and judicial action, 304, 367, 370, 378, 380, 381, 408, 429, 487 Jung Prefecture, 223 juvenile criminals, 70, 73, 95, 112, 124, 125, 166 Kaifeng, 38, 166, 283—320, 459; numbers of prisoners in, 112-13, 285, 288, 303-4, 356, 358, 377. 379, 4o6, 437; policing of, 140, I77ni45, 201, 206, 211, 294-303, 305-11 kidnapping, 77, 119-20, 139, 244 K'uai-chi hsu-chih, 250 Kuang Prefecture, 206, 216, 219, 297n45 Kuang-hsin Prefecture, 152^3 Kuang-nan, 164; criminals from, 407, 428, 43°J 431» 433> 44°; a s a place of registration, 95, 159, 395, 413, 415, 416, 423; policing in, 141, 258, 462 Kuang-nan East Circuit, 81; as a place of registration, 412, 424; policing in, 106, 206, 207, 212, 216, 248 Kuang-nan West Circuit, 81; criminals in, 12, 372; policing in, 212, 223, 248 Kuei Prefecture, 223 Kuei-yang Prefecture, 114 K'uei-chou Circuit, 437 K'un-shan District, 168, 362 Kuo Prefecture, 477 large guard (ta-pao), 138 large guard head (ta-pao chang), 138, 317 Later Chin, 349, 390, 456 Later Chou, 35, 37; law code of, 75, 334, 339J 34!> 34^> 362; and the military,
J96, 391; penalties under, 92, 437, 451; policing, 134 Later T'ang, 293-94, 346, 363
552
Index Lii I-chien, 304 Lii Tsu-ch'ien, 293
law-enforcement personnel: numbers of officers, 200, 202, 204-5, 280, 281, 300, 308; numbers of subordinate personnel,
Ma Mo, 429—30 ma-ch'ien san-pu reward policy, 273—74 Man tribal people, 79, 222, 498 Manichaeanism, 11, 77-79 Mao P'ang, 167 market towns, 205, 2O5n52, 412 Mencius, 5, 6, 8, 21, 79, 321; on human nature, 7, 8, 24 Meng-liang lu, 312, 315 merchants, 73, 146, 206, 515 Metropolitan Cavalry Command, 286, 298, 358, 364 Metropolitan Infantry Command, 286, 299, 358, 364 Mi Prefecture, 178 military administrator (ch'ien-hsia), 216,
202, 220, 2 2 i n i 4 4 , 301, 302, 3 1 1 , 3 1 2 , 3i453i8
laws, types of, 23—24 lawsuits, 13, 317 legal cases, numbers of, 316 legalists, 21, 22, 24 Lei Prefecture, 372 Li Chin, 248 Li Ching, 429 Li Kou, 86 Li Kuang, 10, 12, 239, 280 Li Mi-hsiin, 9 Li O,304 Li tribal peoples, 79, 431 Li Tao, 483 Li Yen, 464 Li Yuan-pi, 189, 342, 345, 359, 362, 363, 373,379-80 Li-chou Circuit, 378, 431 Liang Tao, 18 Liang-che Circuit, 130, 144, 165, 278, 435; crime in, 104, 114, 128; jail facilities, 357, 365, 378; law enforcement, 167, 188, 206, 207, 218, 223, 280 Liang-Huai, 107 Liao Hsing-chih, 136, 178, 186 Liao Kang, 17 Lien Prefecture, 223 lieutenant (jya-chiao), 304, 3O5n77 light rod, 82, 90, 97, 154, 163, 291, 316 Lin Tan, 454 Lin-an, 73, 283—320, 379 Ling-nan, 431,435, 478 Ling-pei, 431 Liu An-shih, 352 Liu Chang, 510 Liu Chih, 22, 516; on law enforcement, 180, 181, 223; on the origins of crime, 72, 110, 142 Liu I-chih, 522 Liu Tsai, 357 Liu Yueh, 10, 121, 510 local elites, 89, 135, 141, 142, 267; as oppressors, 122, 175, 513; role in maintaining order, 130—31 local soldiers (t'u-ping), 218, 219—20, 247, 315,318 looting, 95, 302 Lou Yueh, 21, 333, 483 Loyang, 293-94 Lu Prefecture, 107, 498 Lu Yu, 9, 120, 222
2971145
military administrator offices, 242 military agricultural colonies, 395, 441 military commissioners, 36-37, 88, 1 4 8 ^ , 292 military examinations, 210, 212, 260, 264, 267^0 military inspectors (chiin hsiin shih), 300 military intendants, 89, 151, 232—33, 462 military law, 196, 306, 391, 457, 474 military sheriffs, i66niO9, 201, 262—64, 480 militia organizations, 136-45, 151, 394 Min District, 510 Ming Prefecture, 177, I77ni5i, 205, 207, 223 Ministry of Finance, 168, 269 Ministry ofJustice, i68ni2O, 440, 441, 490; on imprisonment, 356, 361; reviews of cases, 103, 402; reviews of law enforcement and judicial performance, 162, 235, 379, 382, 408, 409, 424, 429, 438, 463; rule-making power, 168 Ministry of Personnel, 128, 212, 265, 479, 480 Ministry of War, 299 Ministry of Works, 404 minority peoples, 137, I48n4; see also Li, Man tribal peoples misappropriation of funds, 85, 88 mitigation of punishments, 474, 482 mourning-degree relatives, 53, 99, 236, 370, 492, 498, 501 Mu-jung Yen-feng, 240, 242, 369, 372 Murder, see homicide mutilating punishments, 328-33, 387 mutual responsibility, 121 — 24
553
Index mutual security groups, 95, 105, 121-24, 512; as information-gathering agencies, 29, 101, 123; as law enforcers, 120; as militias, 96, 142; as watchdog units, 70, 101, 123 Neo-Confucians, 24, 55 night patrols, 118, 302, 314, 317 Ning-kuo District, 109, 205 Ning-tu District, 280 non-Han criminals, 79-81 "Notes on Prison Life," 361 office chief (ya-ch'ien), 416 Office of Public Order, 381 Offices of Chou, 144
ordinance (ling), 61, 70 organized crime, 289 Ou-yang Hsiu, 26, 27, 79 "outside the career" (liu-wai), 258, 279, 495 pacification commissioner, 221 Palace Cavalry and Infantry Command, 3H> 358 Palace Command, 298, 301, 364 Pao Prefecture, 152^3 Pao-chia militia, 123, 136—45, 188, 305, 311, 317; background and evolution, 137-38; paramilitary aspects, 96, 177, 202,
262
Pao-wu militia, 124, 136, 143, 145 patroling, 118, 138, 151—55, 183—84, 206, 287, 291, 300, 309 patroling inspector (hsiin-chien), 198-218 and passim patroling societies (hsun-she), 143, 317 peasantry, 131-32, 141, 142 penal officer ordinances (yu-kuan ling), 341, 343 P'eng Kuei-nien, 10, 86, 357 petition (ch'ing), 491-93, 499 petty man (hsiao-jen), 104, 484 physical examinations, 208, 265, 267 Pi Chung-yu, 297, 308, 309 Pien, 293, 294 Pien Canal, 206 Ping Prefecture, 151 piracy, 105—7, *43> 17811161, 214, 218, 407; inland pirates, 107, 218, 517; numbers of pirates, 106, 114, 517 Po-chai pien, 72, 74 poison, 10, 75, 82, 139, 188 police offices (chun hsunyuan), 300 police posts, 287, 312, 315
post stations, 71, 137, 147, 216 precedents (li), 62, 107; on rewards, i68ni2o; in setting penalties, 107, 436; use of to reduce or defer penalties, 324, 457,483 principal criminals, 93, 409 prison citadel commands, 337, 350, 395, 43i prison instruments, 74, 239, 303, 357, 370 prisoners: abuses of, 157-60, 365, 367-72; deaths of, 125, 126, 336, 365, 370-73, 383, 427; health care of, 345, 363-67, 383; numbers of, 112-13, 377-79 private infractions (ssu-tsui), 85, 265, 494 privileges, 337, 491—98 prostitution, 104, 289 protection (yin): as an entry into the civil service, 208, 210, 257-58; of imperial clan members, 261, 286; use of to escape penalties, 495, 4 9 ^ 7 4 , 523 provincial armies (hsiang-churi), 394-98 and passim P'u Prefecture, 475 public order offices, 211, 3O5n77 punishments: conversion of, 335—36; evolution of, 322—23, 333-34 "Punishments of Lu," 323, 329, 385, 386, 473, 474, 482 rape, 101, 103-4, i39> 392, 423, 502, 523 rations, 224 rebellion, 82, 423, 492, 499 recidivism, 204, 350, 4O5n79, 487; ineligibility for mercy, 4 9 5 ^ 4 , 502; registration as a penalty, 392, 401, 420, 423, 438, 478; state's response to, 71 recorders, 63, 148, 164, 165, 166, 212, 254, 268, 277 records, i n , 160-64, 240 Records Office, 288 redemption, 496, 500 reduction (chien), 491-93 reduction of penalty, 76, 324, 370, 424, 481, 489, 499-500 reformation, 8, 17, 20, 22, 323, 439 registered control (pien-kuan), 244, 401, 419, 484, 478, 500, 501 regulations (ko), 61, 168, 269, 393 rehabilitation, 325-27; see also reformation religious groups, 75-79; see also Buddhism, Manichaeanism, Taoism remuneration, 277-78 reports, 239, 370, 373, 408 resident labor (chti-i), 393 retribution, 325-26
554
Index 8
6
review systems, 96, 234-37, 339> 35 > 37 > 460, 462-63 Reward Law for the Prefectures of the Various Circuits, 168 Reward Laws for the Capture of Bandits in Cheng and Hua Prefectures, 168, 269
reward systems: amounts of rewards, 126, 138; for effective judicial performance, 245; for information, 126, 128; law compilations on, 168, 269; for law-enforcement agents, 89, 138, 213, 217, 269-71, 273-75, 309; to motivate action, 93, 130, 144, 162, 163, 212-3, 240-41, 287; sources of rewards, 127, 138, 144 rites, 15, 20, 165,317 Rites of Chou, 349, 482, 483, 491, 499 robbery by strength (ckiang-tao), 89, 90 "Rules on Seizing Bandits" (Pu-tsei t'iao), 268 rural areas, 160; abuse of country people by law enforcers, 154, 184; policing system in, 138, 196, 200-201, 205, 206, 220 Sage Emperors, 25, 30, 352, 483 sailors, 219 salt smuggling, 247, 318, 423 San-ch'ao pao-hsiin, 304 San-shan chih, 250 Sang Shih, 166, 217 seacoasts, 107, 206, 219, 264 Secretariat Department (Chung-shu), 235, 426, 439, 460 Secretariat-Chancellery, 58, 59 sedition, 23, 82, 452, 492 self-renewal (tzu-hsin), 15, 22, 481, 490, 501, 502 Senior Officials' Court, 164 service agents, 209, 210, 212, 214, 267, 268, 369 servitors, 212, 307; law enforcement positions of, 150, 151—52, 202, 207, 300, 369 servitors major, 260, 264, 297 servitors minor, 208, 260, 262, 264, 297, 3<>9>4i2 sexual crimes, 82, 101; see also adultery, rape Shan Prefecture, 475 Shang Chih-chung, 150 Shang dynasty, 386 Shang Prefecture, 431, 478 Shang Yang, 123 Shang-tang District, 235 Shantung, 243, 262, 394, 412, 421
Shao-hsing (city), 315 Shao-hsing period, 417 Sheng-shui yen-t'an lu, 462 Shensi, 203, 452; criminals in, 433, 438; military in, 174, 180, 212, 223, 224; regional rules, 168, 269, 477 sheriff (hsien-wei), 147-70 and passim Shih-wu chi-yuan, 294, 304, 316 Shou Prefecture, 102 slaves, 98, 104, 370, 409 smuggling, 87, 200 social defense, 326 sorcery, 76 specifications (shih), 62, 63 sponsorship, 265n6*9, 266, 270, 27in86 Sramana Island, 132, 351, 402, 412, 420-30; conditions on, 243, 414, 423—26; types of criminals sent to, 169, 215,421,423,431 Ssu Prefecture, 71, 206, 326 Ssu-ma Kuang, 141, 352, 483, 490 stalwart men (chuang-ting), 128, 134, 135, 170,311 State Finance Commission, 112 statutes (lu), 61, 62 statutes of limitations, 486 strangulation, 331, 334, 447-50, 463; crimes calling for, 84, 90, 98, 99, 100, 132, 214, 237; method, 449-50 students, 496 Su Ch'e, 9, 258, 262, 263, 308, 479, 480 Su Prefecture, 170, 362, 475 Su Shih, 55, 181, 430 Su Sung, 326, 439, 455, 522 Sui District, 167 Sui-shou tsa-lu, 184 Sun Sheng, 14 Sun Shih, 395 Sung Ch'i, 26 Sung Code (Sung hsing-t'ung): origins of, 334; on penalties, 484, 494, 499, 501; on prisoners, 343, 346, 362, 364, 403, 417, 454 Sung History (Sung shih), 395, 475, 482, 496; on crimes, 67; on judicial abuses, 367, 377; on law-enforcement personnel, 316; on legal process, 234, 239, 367 (Sung) Che-tsung, 41; Chen-tsung, 38, 40, 273, 326, 457, 459, 461, 482, 483; Hui-tsung, 41, 42, 60, 440, 479; Jen-tsung, 40, 52, 233, 309, 438, 452, 483, 484, 496, 500; Kao-tsung, 42, 324, 325> 326, 344> 497; Li-tsung, 377; Shen-tsung, 257, 334, 479, 484; on incarceration, 371, 377, 426, 429,
555
Index (Sung) (cont.) 438, 440; on law-enforcement changes, 72, 176, 261, 303, 306, 479; pao-chia reforms, 136, 137, 188; reforms under, 59, 139, 306; T'ai-tsu, 31, 35, 36, 37, 230, 297, 333; Ta'i-tsung, 367, 380, 488; Ying-tsung, 4i, 137 Sung-ch'ao yen-i i-mou lu, 160, 495 superior guard (tu-pao), 136, 152, 311 superior guard leaders (tu-pao cheng), 125, 153 superior joint patroling inspector, 151 superior patroling inspectors, 199, 211 supernumerary officials, 265 supervisor of bandit capturing, 216 supervisors of militia (chien-ya), 207, 209, 212, 215, 220, 297, 304, 425 supplementary officials (pu-kuan), 495 surrender and confession, 417, 486, 501-3 Szechuan, 232; criminals from, 407, 420, 433, 438; law-enforcement system in, 180, 212, 223, 224; legal process, 203 T'ai Prefecture, 114, I78ni6i, 223, 365 Tan Prefecture, 428, 430, 431 Tang-t'u District, 278 Taoism, 77, 82, 500 tattooing, 393, 394; history of, 329, 331, 332, 349; of officials, 159, 215, 423; of soldiers, 174, 348, 349; sole punishment for theft, 340, 350; supplementary punishment with registration, 159, 328, 349>35°>4°9> 43^441 Ten Abominations, 423, 457, 458, 484, 486, 492, 5 O 1 Teng Prefecture, 114, 424, 425, 428, 429, 43i>502 terms in office, 170, 170m 23, 179, 209, 212, 223, 250, 270 theft: cases, 91—92, 166; conditions leading to, 104, 119; definition, 89, 90—93; methods, 118; prevention, 118, 119, 139, 243; punishments for, 90-91, 92, 142 Three Commands, 299, 314, 364 Three Dynasties, 349, 390 Tien-fu period, 349, 390 T'ien-sheng period, 274, 337 time limits: for arresting fugitives, 134, 163, 181, 270, 272, 276; for processing cases, 377; for processing rewards, 127; for seizing witnesses for interrogation, 157; for submitting police reports, 162; for surrender, 502 T'ing Prefecture, 407
tours of duty, 223, 314 towns, 152, 154, 200—201, 220 township leaders (li-cheng), 133, 134 Traditional Rewards for the Northwestern Prefectures, 168
training of law-enforcement personnel, 140, 141, 142, 202—203, 222 transfer of convicts, 242, 344, 345, 406, 412-13,439,523 treason, 452, 492 Tsai Prefecture, 483 Ts'ai Ching, 440, 479 Ts'ai Hsiang, 9, 179, 218 Ts'ai K'an, 12, 72, 184, 210, 248, 273, 519, 523 Ts'ao Prefecture, 475 Tseng Kung, 183 Tseng Pu, 93, 98nio5, 152^5, 331-32, 334 Tso-i tzu-chen, 111 Ts'ui Tun-li, 70, 72 Tu Cheng, 255, 279 Tu Fan, 109, 205 Tu Yen, 235 Tu-ch'ang District, 109, 153, 220 Tzu-chou Circuit, 431, 498
vagabonds, 73, 136, 300
vendetta, 390, 513 vengeance, 123, 326, 401, 420, 483-85 village officers, 127, 133-36, 151, 170, 236, 401 violated regulations: through mistake, 158; for private motives, 158, 161 Wan-an Prefecture, 428, 430, 431 Wang An-shih: and the pao-chia, 137, 139, 142, 177; on penalties, 332, 479, 485, 490, 502; as a reformer, 41, 168, 180, 261 WangChi-yu, 168 Wang Chih, 11, 26, 96 Wang Chih-wang, 114, 269, 513 Wang Hsiang, 17 Wang Kung, 184 Wang Pi-chih, 462 Wang Shu, 235 WangSsu, 158 Wang Tseng-yii, 394 Wang Yang, 263 Wang Yen, 350, 420 Wang Yung, 104, 160, 272, 277, 484 ward chiefs, 292, 311 Washing Away of Wrongs, 336
556
Index weapons: of law-enforcement personnel, 96, 138, 142, 171-72, 186-87; people's possession of, 119, 129, 131, 135; restrictions on, n o , 131-32, 291; theft of, 72, 142; use in crimes, 89, 90, 97 Wei-nan District, 166 Wen Min-chung, 125 Wen Prefecture, 114, 128, I78ni6i, 223 Wen T'ien-hsiang, 382 Wen Yen-po, 322 Wen-hsien t'ung-kao, 114, 297 witchcraft, 288, 392, 458 witnesses, 353, 355, 369, 523 wives, 92, 95, 99, 100 women, 76, 345, 493, 494, 496; as criminals, 101, 349, 357, 359, 387, 487; as prisoners, 365, 377, 380, 401-2, 403, 501; as victims of crime, 92, 103-4, I 2 ^ Wu Ching, 26, 93, 109, I48n3, 161, 267 Wu-i District, 378 Wu-lin chiu-shih, 288, 316 Wu-ning District, 357 Wu-p'ing District, 378
Yai Prefecture, 428, 430, 431 Yang An-kuo, 483 Yang Prefecture, 378 Yang Shou-chen, 452 Yang Wan-li, 207 Yangtze River, 88, 107, 183, 218, 294, 326, 433 Yen Prefecture, 73, I49n6, 167, 170m 23 Yii Ching, 10, 12, 26, 79, 80, 114, 213, 222 Yii-ch'ien District, 318 Yu-shan District, 74 Yuan Fu, 144, 145, 512 Yuan Hsieh, 183, 186 Yuan Ts'ai, 91, 118, 120, 129 Yuan Yiieh-yu, 263, 518 Yiian-feng period, 162, 380, 393, 402, 439, 440, 441 Yiian-yu period, 162, 308, 367, 479 Yiian-yu Proportional Reduction Law, 162 Yiin Prefecture, 7 6 ^ 1 Yung Prefecture, 212, 223 Yung-an District, 217 Yung-hsing chiin Circuit, 111, 114, 477, 478
557
