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Wrongful Treatment of Prisoners: A Case Study of Ch'ing Legal Practice

Published online by Cambridge University Press:  23 March 2011

Judy Feldman Harrison
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A Study of the Ch'ing legal system, the culmination of the experience of many dynasties, provides clues to the understanding of Chinese political behavior before extensive Western contact. For this period, the decisions of the Board of Punishments (hsing-fu) recorded in the collection of cases known as the Hsing-an hui-lan form an important body of law. Of these, the cases pertaining to the illegal punishment of prisoners by government officials are particularly interesting. An analysis of thirty of these cases suggests answers to the following questions: 1) Did the Board of Punishments have the attributes of an independent law court? 2) Was the law which the Board of Punishments applied internally consistent and capable of growth ? 3) Was protection from official brutality adequately guaranteed by law?

The Board of Punishments, one of the six ministries of the central government, was the formal organ most responsible for the administration of justice. In judicial matters, it served as a buffer between the provincial authorities on the one hand and the emperor on the other.

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Articles
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The Journal of Asian Studies , Volume 23 , Issue 2 , February 1964 , pp. 227 - 244
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Copyright © Association for Asian Studies, Inc. 1964

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References

1 The Board of Punishments, together with the Ta-li ssu (Court of Revision) and the Tu-ch'a yüan (Censorate), formed the San-fa ssu (Three Judicial Offices). The San-fa ssu was responsible for reviewing all capital cases before they were sent to the emperor for his decision. The two kinds of capital punishment, strangulation and beheading, were divided into two categories: “immediate execution” (li-chüeh) and “delay in prison” (chien-hou). The San-fa ssu met any time of the year in cases calling for “immediate execution.” For other cases, an elaborate procedure was followed every year in the autumn. This was the famous Autumn Court or Autumn Assizes (ch'iu-shen). Pao-chao, Hsieh, The Government of China (Baltimore, 1925), pp. 221, 224–226Google Scholar. For Chinese statutory authority, see T'ung-tsu, Ch'ü, Local Government in China under the Ch'ing (Cambridge, 1962), p. 206Google Scholar, note 36.

2 The only punishment which a local magistrate was empowered to carry out himself was beating with bamboo or imposing the cangue. Cases involving penal servitude, permanent exile, or death went through a procedure known as shen-ch'üan (“to retry and pass on”). This meant that after a case had been heard in the hsien or chou court of the first instance, it was normally reviewed by the prefectural (fu) court or tao-t'ai's yamen of the second instance, then by the office of the provincial judge (an-ch'a ssu), and finally by the court of the governor and governor-general of the province. A report of all routine cases involving penal servitude was sent collectively to the Board of Punishments every year by the governor and governorgeneral. Cases involving a sentence of exile or penal servitude when it was a penalty for homicide were presented individually to the Board by the governor and governor-general. The Board was expected to make its own examination in all doubtful cases and in all cases involving the death penalty, but in such cases, only the emperor's decision was final. Ch'ü, p. 117.

3 Hsieh lists seventeen bureaus with their jurisdiction and duties, pp. 222–224.

4 At the end of the nineteenth century, Shen Chia-pen, the famous legal scholar and reformer, compiled a new edition of the HAHL in an attempt to bring it up to date. His work was halted by the Boxer Rebellion. According to the preface to the compilation which he wrote in 1907, he was then awaiting publication, but there is no evidence that his work was ever published. Chia-pen, Shen, Shen Chi-i hsien-sheng i-shu, ts'c 25, ch. 6, 17a–19a.Google Scholar

5 For details about the HAHL, I am grateful to Professor Derk Bodde for allowing me to refer to a mimeographed memorandum put out by the HAHL Translation Project now under way at the University of Pennsylvania.

6 In the beginning of the Ch'ing dynasty, a new lü was added, exempting Manchus from penal servitude and exile. Meijer, Marinus J., The Introduction of Modern Criminal Law in China (Batavia, 1950), p. 4.Google Scholar

7 A striking example of a contradiction between a lü and a li is found in the prohibition of cross cousin marriage in the lü and its permission in the li. van der Sprenkel, Sybille, Legal Institutions in Mancha China (London, 1962), p. 60.Google Scholar

8 Sprenkel, van der, p. 63.Google Scholar

9 Alabaster, Ernest, Notes and Commentaries on Chinese Criminal Law (London, 1899), XLVI–XLVII.Google Scholar

10 Alabaster, , LXIII.Google Scholar

11 Alabaster, , XLVIII.Google Scholar

12 The law on ordinary people who beat other ordinary people to death can be found in the Ta Tsing Leu Lee, tr. by SirStaunton, George Thomas (London, 1810), pp. 311–312Google Scholar; and in Boulais, P. Guy, S.J., Manuel du code chinois (Shanghai, 1924), p. 559Google Scholar. The so-called “five punishments” were beating with light bamboo, beating with heavy bamboo, penal servitude, permanent exile, and death (both strangulation and beheading). A table of punishments appears at the beginning of the code, and the punishments are again enumerated in the first provision of the code proper. Table IV, Staunton, lxxiv; Section (Art.) 1, Staunton, , pp. 1–2Google Scholar; Table I, Boulais, , pp. 2–5Google Scholar. (The table in Boulais is considerably clearer and more complete than the one in Staunton.)

13 For convenience, a lü will be numbered in sequence as in Staunton's translation and called Article instead of Section. A li will not be numbered. Where both Staunton and Boulais have translated a lü, references to both will be given. Staunton's translation is complete as far as the lü are concerned, but he does not translate any of the li. Boulais' translation of the lü is incomplete, but he translates many of the li as well as commentaries on the law and cases from the HAHL.

For Art. 413, see Staunton, , pp. 453–454Google Scholar; Boulais, , p. 723.Google Scholar

14 In translating t'u as penal servitude, I am following the suggestion of Dr. Ch'ü T'ung-tsu rather than the traditional translation of Staunton and Boulais who rendered the term “temporary banishment.” I would like to thank Dr. Ch'ü for his advice on this and other matters related to the paper. For Dr. Ch'ü's explanation of the translation, see his Local Government, p. 205Google Scholar, note 33.

15 A description of the ordinary instruments of punishment and torture appears at the beginning of the code. Table V, Staunton, , lxxiv–lxxvGoogle Scholar; Table I, Boulais, , pp. 5–7.Google Scholar

16 The ten taels represents a fixed civil liability, payable in all cases of illegally beating an accused person to death.

17 The same civil liability as above was also incurred.

18 Art. 396, Staunton, , pp. 433–434Google Scholar; Boulais, , p. 711.Google Scholar

19 Art. 299, Staunton, , p. 321Google Scholar; Boulais, , p. 577.Google Scholar

20 Boulais, , p. 712.Google Scholar

21 In this case, the Mongol noble had his sentence changed from three years' penal servitude to wearing the cangue for forty days. This is an example of special legal privilege. Sec Art. 9 for criminals who are not subject to penal servitude or exile and for the basis of converting years of exile into days of wearing the cangue. Staunton, , p. 12Google Scholar; Boulais, , p. 49Google Scholar. (Staunton's translation is fuller than Boulais'.)

22 According to Art. 303, death is attributable to the wounds received in a beating if it occurs within a certain period of time. Staunton, , p. 327Google Scholar; Boulais, , pp. 590–592Google Scholar. (In Boulais, selected cases from the HAHL are translated to show how the law operated.)

23 Exile in Sinkiang at hard labor was not one of the five punishments specified in the code, but had been used as a punishment since Sung.

24 Beating with bamboo was nominally divided into ten grades, starring with ten blows and reaching one hundred, with each grade increasing by ten. In fact, the punishment was reduced so that the range was from four to forty blows. A table showing the proper reductions appears at the beginning of the code together with the table of punishments. Table IV, Staunton, , lxxivGoogle Scholar; Table I, Boulais, , pp. 2–5.Google Scholar

25 Meijer follows the tradition established by Jean Escarra in emphasizing the idea that the Chinese believed in an order of nature and in maintaining a balance between the natural order and the social order. The consequence for law, according to Meijer, was that it was “essentially a means to restore the natural order when preventive measures to preserve that order, i.e. education, had failed.” This accounts for the use of symbolic punishments and the emphasis on fitting the punishment to the crime. Meijer, pp. 3–4. See also Escarra, Jean, Le droit chinois, trans. Browne, Gertrude R. (Peking and Paris, 1936), pp. 13–119.Google Scholar

Hulsewé takes issue with this approach and argues that by Han times the Chinese no longer believed that the purpose of punishment was to redress the harmony of nature. He feels that this idea lived on in the terminology and particularly in the notion that the punishment should fit the crime. Hulsewé, A. F. P., Remnants of Han Law (Leiden, 1955), p. 81Google Scholar. This point is also discussed in Sprenkel, van der, p. 63.Google Scholar

26 According to Art. 26, a person convicted simultaneously of two or more crimes should be punished only for the most serious. Staunton, , p. 29Google Scholar; Boulais, , pp. 83–86Google Scholar. (Boulais includes cases showing the application of the law.)

27 For a complete account of the punishments due for theft, see the table at the beginning of the code. Table I in Staunton, lxxi; Table II in Boulais, , pp. 8–10Google Scholar. Theft is also discussed in Art. 257–281, especially Art. 269. Staunton, , pp. 274–302Google Scholar (esp. pp. 284–285); Boulais, , pp. 473–539Google Scholar (esp. pp. 503–508).

28 van Gulik, R. H., Tang-yin-pi-shih (Leiden, 1956), p. 56.Google Scholar

29 Examples of coerced confessions can be found in such case books as the T'ang-yin-pi-shih. The common phrase was “he wrongly confessed because he could not stand the questioning under torture.” Van Gulik cites eleven cases (out of 144 which he translated) where a conscientious official looked behind the confession because of his suspicions that the truth had not been told and later reversed the verdict, Gulik, van, p. 57.Google Scholar

30 The use of torture to extract confessions has not been unknown in Anglo-American societies. In Elizabethan England, in cases of political and social importance, there is evidence that torture was used by such prominent officials as Edward Coke, the Chief Justice, and Francis Bacon, the Attorney-General. In this country, police brutality, while not legally sanctioned, still persists in many areas in spite of the surveillance of the Supreme Court in coerced confession cases since 1936.

31 Runners who administered an illegal beating were normally sentenced one degree less than the official in charge, i.e. to two and a half years' penal servitude and 90 blows of bamboo. Art. 413, Staunton, , pp. 453–454Google Scholar. This section of Art. 413 is not included in Boulais.

32 The Board of Civil Office, rather than the Board of Punishments, was responsible for the routine disciplining of officials, and used such measures as salary cut, reduction in rank, and dismissal from office.

33 See also Case 5.

34 Gambling was illegal. Art. 378, Staunton, , p. 412Google Scholar; Boulais, , p. 698.Google Scholar

35 Six or nine days each month were reserved for hearing civil cases, except during the busy season for farmers, namely, from the first of the fourth month to the thirtieth of the seventh month. Ch'ü, , p. 118.Google Scholar

36 Suicide was a traditional way of taking revenge when one's honor was infringed upon. The death was subject to investigation and the facts which led to the suicide would come to light. See Art. 299 on suicide caused by coercion. Staunton, , p. 321Google Scholar; Boulais, , pp. 577–582.Google Scholar

37 Sec footnote 36.

38 See footnote 31.

39 The Ch'ing code was divided into seven sections, the ming-li or general provisions at the beginning, followed by a section for each of the six boards of government.

40 Art. 40, Staunton, , p. 41.Google Scholar

41 In Cases 10 and 13, permanent exile was considered the correct punishment for an official who lacked the proper authority to beat an accused person. Both of these cases were decided before Case 7, but the lü-li kuan ignored the fact that a precedent had been established for sentencing an official to a more severe punishment than that mentioned in Art. 413.

42 Various categories of people (such as the old, the young, the crippled, women, those who killed or wounded someone by accident, etc.) were allowed to pay a money fine, instead of submitting to corporal punishment, penal servitude, or exile. This special privilege was not granted automatically, as Case 12 indicates. For the amount of money required to redeem the different degrees of punishment, see the table at the beginning of the code. Table II & III, Staunton, , lxxii–lxxiiiGoogle Scholar; Table III, Boulais, , pp. 11–16Google Scholar. See also Art. 23, Staunton, , pp. 23–24Google Scholar; Boulais, , p. 74.Google Scholar

43 Alabaster, , LXII.Google Scholar

44 Meijer, , pp. 24–25.Google Scholar

45 According to an article in The New York Times, 03 21, 1962, p. 27Google Scholar, Attorney General Robert Kennedy has asked Congress to toughen Federal statutes against police brutality. The present maximum is a $1,000 fine and a year in jail for an official who violates a citizen's civil rights. Mr. Kennedy proposed that the convicted official should face a $5,000 fine and 5 years in prison if the victim is actually injured, and life sentence as the maximum penalty if the victim dies from the mistreatment.