3.5.3 The Legal System

Table of Contents
3.5.3.1 Laws and Statutes
3.5.3.1.1 Criminal Law
3.5.3.1.1.1 The Western and Eastern Chin

3.5.3.1 Laws and Statutes

3.5.3.1.1 Criminal Law

3.5.3.1.1.1 The Western and Eastern Chin

The majority of the criminal statutes of the Chin Dynasty were a continuation of those of the preceeding Ts'ao-Wei Dynasty and it was during the reign of Wen-ti of that dynasty that the Han Codex (漢律 Han Lü) instituting the Wu-hsing (五刑 Five Punishments): three kinds of Szu-hsing (死刑 death penalty), four kinds of K'un-hsing (髡刑 shaving punishment), three kinds of Wan-hsing (完刑 wan-hsing is also referred to as 耏刑 nai-hsing. K'un means to shave the hair off the head while nai is to have the face shaved and then later punished with hard labor.) three kinds of Tso-hsing (作:刑 labor punishment), eleven kinds of shu-hsing (贖刑 commutation of punishment into fines) along with other appropriate fines and punishments. With the coming of the Western Chin the Wei Codex (魏律 Wei Lü) was reduced and according to the Monograph on Criminal Law in the Chin-shu (晉書刑法志) "eliminated its meaness and harshness, preserving its purity and economy" repealing the clauses dealing with hsiao (梟 displaying heads as a warning), chan (斬 decapitation), tsu-chu (族誅 executing all the relatives of a criminal), and tsung-tso (從坐 accessory punishments such as confiscation and deprivation of rights, etc.). It was commonly said, therfore, that the criminal laws of the Chin Dynasty were more magnanimous than those of the Han and Wei with the men of the time calling them, "simple and benevolent," nevertheless, by the reign of Ming-ti of the Eastern Chin tsu-chu was reinstituted only it did not extend to women of the convict's family thus the laws of the Eastern Chin were more severe than those of the Western Chin.

The Southern Dynasties

The main corpus of the criminal laws of the Southern Dynasties was inherited from the Chin with the only exception being that the Five Punishments were now szu (death), k'un (shaving the head), nai (shaving the face), pien (beat with a whip), and chang (beat with a cane), the death sentence was divided into hsiao-shou (decapitation followed by public display of the head) and ch'i-shih (public execution) with hsiao-shou as the greater and ch'i-shih the lesser punishement. K'un-ch'ien was a punishment with a five-year term (for five years the head was shaved and a metal collar worn). while nai was a reduced form of this punishment with a two-year term. There were three kinds of whipping: chih-pien, fa-pien and ch'ang-pien. There were three kinds of caning: ta-chang, fa-chang and hsiao-chang. The number of lashes for whipping and caning were ten, twenty, thrity, fifty, one-hundred and two-hundred. With regard to the practice of torture, the Liu-Sung period was one of the most brutal with large-scale exterminations. At first, the reign of Liang Wu-ti was also very strict and severe but late in his life he bacame very lenient, honoring the buddhist strictures against killing so that even major crimes and treason were frequently forgiven, and he also instructed "to violate the law is not a great crime (treason), parents and grandparents are not accomplices." Becauses the meshes of the law were too wide the crafty and treacherous acted without restraint and quite to the contrary the political climate deteriorated. The Ch'en Dynasty criminal law paid particular attention to ch'ing-i (discussion among the honest and scholarly, public opinion) so there is a section devoted to chin-ku (to prohibit entry into government service) with all of the officials and gentry who had violated Confucian ettiquette and who were not forgiven by public opinion were to be banned for life from office, and fiancees were also permitted to break their engagements to these men.

The Northern Dynasties

The criminal law of the Northern Wei was stern and imposing, using death to establish its majesty. In the period prior to Tao-wu-ti, they still maintained the primitve customs of the Hsien-pei tribe, commoners who broke the law were often subjected to martial law where disobedience meant death. After this there was slight improvement but it was still prescribed that the relatives of those who had committed major crimes, whether they were young or old, male or female, were all to be beheaded. Men and women who did not conform to propriety in their relations were all executed. In cases of murder among the people, the murderer was to give to the family of his victim forty-nine head of either cattle or horses and send funerary goods to avert a vendetta. During this period the law was vague and undefined, but with the coming of Tao-wu-ti there then began to be agreed upon laws and regulations. During the reign of T'ai-wu-ti, Ts'ui Hao was commanded to institute laws and punishments, with the punishments for all rebellion and sedition being yao-chan (chopped in two at the waist) and the execution of all with the same household register. The punishment for males under 14 was fu-hsing (castration), while girls were held in seclusion. The punishment for killing relatives or elders was huan-hsing (torn apart between two carts), those men and women who performed spells and potions were all beheaded while their house was destroyed by fire. Of all these punishments the punishment of one's native place (chi ??) was the most cruel for it was common that if one man broke the law then all of his relatives and associates died in what was referred to as men-fang chih chu (eradication of a local clan). For example, there was the killing of Ts'ui Hao which also included the elimination of the Ts'ui clan of T'ai-yuan while the Lu clan of Fan-yang, the Kuo clan of T'ai-yuan, the Liu clan of Ho-tung which were all related to them through marriage were also eliminated. Later on during the reign of Hsiao-wen-ti in admiration of Chinese customs, the criminal code was greatly reduced in its severity, all suspected of criminal wrongdoing could request to be judged in a court, and the majority of death sentences were reduced to exile to the frontiers. In times of peace death sentences were all decided by the Imperial Court which did not exceed five or six in a year. Emperor Hsiao-wen-ti instructed, "if a man did not make treasonous plans, the crime of rebellion will not extend to him," the extended family of a rebel was to be dismantled (literally, five tsu changed to become three tsu, three tsu change to become one tsu where tsu can refer to clan relationships). Thus the murderous customs of generation after generation in the Northern Wei were transformed and the ancient histories say, "in the T'ai-ho era (477-499 AD) the civil officials were pure and the government in order, the final verdicts of the courts were simple and one-hundred years later the slaughter was over."

The criminal codes of the Northern Ch'i and Northern Chou were for the most part adaptations of the codes of the latter years of the Northern Wei along with portions taken from the Southern Dynasties then arranged into the "Five Punishments." The Five Punishments of the Northern Ch'i were death, exile, depilation, whipping and caning with the death penalty subdivided into being torn apart between two carts, decapitation with public display of the head, decapitation and hanging. Exile was usually preceeded by a whipping or flogging with bamboo followed by shaving the head and only then banishment to a remote border region. The nai-hsing (shaving the face) was divided into terms of from one to five years, and with the exception of the one-year term all included beatings with whips or bamboo. Flogging was divided into sentences of one-hundred, eighty, sixty, fifty and forty lashes. Caning had sentences of thiry, twenty and ten strokes. The Five Punishments of the Northern Chou were death, exile, imprisonment, whipping and caning. The death penalty was divided into decapitation, hanging, ch'ing ??, dismemberment and decapitation with public display of the head. Exile was divided into sentences of 2,500 li, 3,000 li, 3,500 li, 4,000 li and 4,500 li and each included flogging with whips or bamboo. Whipping was divided into sentences of one-hundred, ninety, eighty, seventy and sixty lashes. Caning was divided into fifty, forty, thirty, twenty and ten strokes. The Five Punishements of the Northern Chou provided the basis for the Five Punishments (beatings with bamboo, whipping, imprisonment, exile and death) of the later Sui and T'ang Dynasties. From the ruthlessness of the early Wei through the reforms of Hsiao-wen-ti to arrive at the Five Punishments of the Ch'i and Chou, the criminal codes of the Northern Dynasties went from harsh to lenient, from heavy to light in a period of important change.

Legal Codes
The Western and Eastern Chin and the Southern Dynasties

When Ssu-ma Shih, the Chin ruler Wen-ti, was still the King of Chin, the laws and regulations of the prior dynasty were confused and disorderly, so he ordered fourteen men, including Chia Ch'ung, Cheng Ch'ung and Hsün Chi, to revise the legal codes with the addition of eleven more sections to the original Nine-section Statutes (chiu-chang lu) of the Han whose twenty section titles are as follows:

  1. Hsing-ming (刑名)
  2. Fa-li (法例)
  3. Tao-lü (盜律)
  4. Ts'ei-lü (律)
  5. Cha-wei
  6. Ch'ing-ch'iu
  7. Kao-ho
  8. Pu-lü (律)
  9. Hsi-hsun
  10. Tuan-yu
  11. Tsa-lü (律)
  12. Hu-lü (律)
  13. Shan-hsing
  14. Hui-wang
  15. Wei-kung
  16. Shui-huo
  17. Chiu-lü (律)
  18. Kuan-shih
  19. Wei-chih
  20. Chu-hou

These twenty sections were divided into six-hundred and twenty articles (t'iao) and with the addition of directives (ling) there were two-thousand, nine-hundred and twenty-six articles. It was not until 267 that they were entirely completed, and in the first lunar month of 268 they were proclaimed to the empire and the new statutes put into force. The Chin Codex (Chin Lü) was an amalgamation of the great achievements of both the Han and Wei Dynasties, and was a complete legal code for the times.

The Southern Sung court continued the practice of the Chin Codex but with the arrival of Emperor Wu-ti of the Southern Ch'i they were once again revised but had not yet been put into effect. With the fall of the Southern Ch'i and the arrival of Liang Wu-ti, Wang Liang and others were ordered, using the Ch'i revisions as a basis, to again ammend them to create the Liang Codex (Liang Lu) of twenty sections, whose headings are as follows:

  1. Hsing-ming
  2. Fa-li
  3. Tao-chieh
  4. Ts'ei-p'an
  5. Cha-wei
  6. Shou-ch'iu
  7. Kao-ho
  8. T'ao-pu
  9. Hsi-hsun
  10. Tuan-yu
  11. Tsa-lu
  12. Hu-lu
  13. Shan-hsing
  14. Hui-wang
  15. Wei-kung
  16. Shui-huo
  17. Ts'ang-k'u
  18. Chiu-lu
  19. Kuan-shih
  20. Wei-chih

These headings were divided into two-thousand, five-hundred and twenty-nine articles but with the advent of the Ch'en Dynasty and the losses and chaos of the later Liang period the legal codes had become inaccurate. The Ch'en Emperor Wu-ti ordered Fan Ch'uan, a Gentleman of the Masters of Writing, along with Shen Ch'in, Hsu Lu and others to draft seventy chuan (folios) of laws and regulations that used the same headings as the Liang laws.

The Northern Dynasties

Among the Northern Dynasties, from the time the Northern Wei Emperor Tao-wu-ti entered and occupied the lands of the Central Plain, laws and regulations began to become fixed. During the reign of T'ai-wu-ti, Yu Ya, Hu Feng-hui and others were ordered to revise the laws to produce a Wei Codex (Wei Lu) of more than three-hundred and seventy articles, among which were four articles concerning the extermination of a clan (meng-fang chih chu), one-hundred and forty-five articles on capital punishment, and two-hundred and twenty-one articles on criminal statutes. During the reign of Hsiao-wu-ti, Kao Lü and others were ordered to once again make additions and deletions to produce the New Codex (Hsin Lu) of eight-hundred and thirty-two articles with sixteen devoted to the extermination of clans, two-hundred and thirty-five about capital crimes, and three-hundred and seventy-seven on criminal law. However, the record of the headings of the Wei Codex have been lost and we can only be certain of the Hsing-ming, Fa-li, Kung-wei, Wei-chih, Hu-lu, Chiu-mu, Shan-hsing, Ts'ei-lü, Tao-lü Pu-wang, Tuan-yu and other for a total of about twenty headings (for the rest consult folio 20 of the Sui Chih for a record of the Latter Wei Codex (Hou-Wei Lu). During the early years of the Northern Ch'i Dynasty the Wei Codex was still in use down to the period of the reign of Wu-ch'eng-ti when the Prefect of the Masters of Writing, Chao Chün, Wang Jui and other offered up to the throne a Ch'i Codex (Ch'i Lu) with twelve sections whose headings were as follows:

  1. Ming-li
  2. Chin-kung
  3. Hu-hun
  4. Shan-hsing
  5. Wei-chih
  6. Cha-wei
  7. Tou-sung
  8. Ts'ei-tao
  9. Pu-tuan
  10. Hui-sun
  11. Chiu-mu
  12. Tsa-lu

Under these twelve headings were nine-hundred and forty-nine articles and also a mixed collection of new statutes (ling) in forty folios from the Wei and Chin. In addition, there was a special list of ten articles concerning serious offences, the so called "Ten Unforgiveable Evils" that served as an inspiration for later generations, and these ten evils were: fan-ni to overturn authority
ta-ni gross opposition p'an sedition hsiang to go over to the enemy o-ni treachery pu-tao immoral and unethical conduct pu-ching disrespect pu-hsiao unfilial conduct pu-i unrighteousness nei-luan civil discord All violations of these "Ten Evils" did not allow for any discussion of contrition. In addition, junior members of official families were ordered to engage in discussion of the law. During the Northern Chou Dynasty when Yu-wen T'ai held the reins of government, an official was ordered to consider past and present to revise the New Codex. Later on during the reign of Yu-wen Yung, the ruler known as Wu-ti, T'o-pa Ti was ordered to add to the revision of the New Codex and in the year Pao-ting 3 (563) it was completed and made public. Called the Great Codex (Ta Lu) it had altogether twenty-five headings that included five-hundred and seventy articles. The headings are as follows:

  1. Hsing-ming
  2. Fa-li
  3. Ssu-hsiang
  4. Chao-hui
  5. Hun-yin
  6. Hu-chin
  7. Shui-huo
  8. Hsing-shan
  9. Wei-kung
  10. Shih-ch'an
  11. Tou-ching
  12. Chieh-tao
  13. Ts'ei-p'an
  14. Hui-wang
  15. Wei-chih
  16. Kuan-lu
  17. Chu-hou
  18. Chiu-mu
  19. Tsa-fan
  20. Cha-wei
  21. Ch'ing-ch'iu
  22. Kao-yen
  23. T'ao-wang
  24. Hsi-hsun
  25. Tuan-yü


2). Law Officials (the Organization of the Judiciary)

The law-enforcement organization of the Western and Eastern Chin and the Southern and Northern Dynasties still followed the traditions of the Han-Wei period where there was no division between the civil administration and the administration of justice. The local administrative heads were elders and subprefects at the prefectural level, the grand administrator of a commandery, and either the prefect or inspector-general of a province, and also the senior judicial officialswith the power to judge court cases and the power of life and death with legal assistants as the heads of the various legal bureaus (fa-tsao). The judicial powers of the Pastor of Ssu-chou (Ssu-chou Mu) and the Prefect of Yang-chou (both the same as the earlier post of Colonel Director of the Retainers (Ssu-li Hsiao-wei)) were especially great. In the administrative center the supreme judicial organizations were the Palace Secretary (Yu-shih T'ai also later known as the Censorate, headed by the Palace Assistant Secretary), and the T'ing-wei, Office of the Commandant of Justice, while during the Chin Dynasty important officials subordinate to the Commandant of Justice were the T'ing-wei Chien (Inspectorate of the Commandant of Justice, the T'ing-wei Cheng (Directorate of the Commandant of Justice) and the T'ing-wei P'ing (Referee of the Commandant of Justice). Among the customs of the time was if there was a miscarriage of justice that local officials were unable to deal with then it was possible to travel to the capital where it could be brought to the attention of the court and sometimes the emperor would take a personal interest in the case at hand to redress any miscarriage of justice.