The T'ang Code, Volume II: Specific Article 069163632X, 9780691636320

Table of contents :
Contents
Preface
Addenda et Corrigenda for Volume I
Introduction to the Specific Articles
PART THREE. The T'ang Code: Specific Articles, Chapters VII-XXX
2. THE IMPERIAL GUARD AND PROHIBITIONS
CHAPTER VII
CHAPTER VIII
3. ADMINISTRATIVE REGULATIONS
CHAPTER IX
CHAPTER X
CHAPTER XI
4. THE HOUSEHOLD AND MARRIAGE
CHAPTER XII
CHAPTER XIII
CHAPTER XIV
5. THE PUBLIC STABLES AND WAREHOUSES
CHAPTER XV
6. UNAUTHORIZED LEVIES
CHAPTER XVI
7. VIOLENCE AND ROBBERY
CHAPTER XVII
CHAPTER XVIII
CHAPTER XIX
CHAPTER XX
8. ASSAULTS AND ACCUSATIONS
CHAPTER XXI
CHAPTER XXII
CHAPTER XXIII
CHAPTER XXIV
9. FRAUD AND COUNTERFEIT
CHAPTER XXV
10. MISCELLANEOUS ARTICLES
CHAPTER XXVI
CHAPTER XXVII
11. ARREST AND FLIGHT
CHAPTER XXVIII
12. JUDGMENT AND PRISON
CHAPTER XXIX
CHAPTER XXX
Glossary
Bibliography
Index

Citation preview

The T'ang Code

Pnnceton Library of Asian Translations

The T'ang Code Volume II, Specific Articles

Translated with an Introduction by Wallace Johnson

Princeton University Press Princeton, New Jersey

Copyright © 1997 by Princeton University Press Published by Princeton University Press, 41 William Street, Princeton, N e w Jersey 08540 In the United Kingdom: Princeton University Press, Chichester, West Sussex All Rights Reserved Library of Congress Cataloging-in-Publication Data Main entry under title: T h e T ' a n g code. (Studies in East Asian law, Harvard University; 10) Translation of T ' a n g Iu shu i. CONTENTS:

v. 1.

General principles.

Bibliography: v. Includes index. 1. Law—China

2. Criminal law—China.

I. Johnson, Wallace Stephen 1932-

II Series:

Harvard studies in East Asian law; 10. Law

345Ί5Ό02632

78-51172

ISBN 0-691-09239-7 (vol. I) ISBN 0-691-02579-7 (vol. II) Publication of this book has been aided by the Chiang Ching-kuo Foundation for International Scholarly Exchange and the Kansas University E n d o w m e n t Association This book has been composed in Bembo Princeton University Press books are printed on acid-free paper and meet the guidelines for permanence and durability of the Committee of Production Guidelines for Book Longevity of the Council on Library Resources Printed in the United States of America by Princeton Academic Press 1

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In memory of Joseph Fletcher Lien-sheng Yang

Contents Preface Addenda et Corrigenda for Volume I Introduction to the Specific Articles

xxv xxvii 3

PART THREE TheT'ang Code: Specific Articles, Chapters V I I - X X X 2.THE IMPERIAL GUARDAND PROHIBITIONS Chapter VII 58. Unauthorized Entry of the Gates of the Imperial Ancestral Temple 59. Unauthorized Entry of the Gates of the Imperial Palace 60. Unauthorized Entry Means Passing over the Threshold 61. Those Who Are Not on the Name Registers at the Gates of the Imperial Palace or an Imperial Audience Hall 62. Improper Substitution of Imperial Guardsmen 63. Entering the Imperial Palace Because of Some Matter and Improperly Staying There Overnight 64. Those W h o Enter the Imperial Palace or an Imperial Audience Hall without Signing the Name Register 65. Those Who Do Not Leave the Imperial Palace or an Imperial Audience Hall after Their Work There Is Finished 66. Climbing Up to a High Place and Looking into the Imperial Palace 67. Imperial Guardsmen Who Are Accused in a Memorial to the Throne 68. Those W h o Are Required To Leave the Imperial Palace or an Imperial Audience Hall and Who Improperly Delay 69. Unauthorized Entry into Places Where the Emperor Is N o t Present 70. Changing the Assignment of Honor Guardsmen Which Has Already Been Made 71. Reception of an Imperial Edict To Open the Gates of the Imperial Palace or an Imperial Audience Hall at Night 72. Entering or Leaving the Imperial Palace or an Imperial Audience Hall at Night Is Forbidden

15 17 20 21 22 24 25 26 28 29 30 30 31 32 34

viii

Contents 73. Shooting Arrows in the Direction of the Imperial Palace or an Imperial Audience Hall 74. Interference with the Imperial Cortege 75. Imperial Guardsmen Who Do Not Come To Serve Their Turn of Duty

Chapter VIII 76. Imperial Guardsmen's Weapons 77. The Gates of Camps in Which the Emperor Is Staying while Traveling 78. Night Patrols inside or outside the Imperial Palace 79. Punishment for Offenses Involving the Imperial Ancestral Temple, the Altar of the Soil, and the Imperial Gardens 80. Standing Guard under a False Name at Such Gates as Those of the Imperial Palace 81. Climbing over the Outer Walls or Walls inside Such Places as Prefecture Cities, Garrisons, and Outposts 82. Illegally Passing through a Customs Barrier 83. Those Who Should Not Be Allowed To Pass through a Customs Barrier 84. Causing Delays and Difficulties at a Customs Barrier or a Ford 85. Those Illegally Passing through a Customs Barrier Who Are Guilty of Other Crimes 86. Wrongly Allowing Civilians or Soldiers To Pass through a Customs Barrier 87. Illegally Taking Prohibited Articles through a Customs Barrier 88. Going around a Frontier Customs Barrier 89. Frontier Walled Outposts 90. Those in Charge of Beacon Fires Not Giving the Alarm

34 36 37

39 39 40 41 42 43 46 48 50 51 52 53 54 56 57

3.ADMINISTRj\TIVE REGULATIONS Chapter IX 91. The Number of Personnel in Government Offices 92. Recommending Unworthy Persons to the Examination for the Doctorate 93. Prefects and County Magistrates W h o Illegally Leave Their Areas of Jurisdiction 94. Officials W h o Are Required To Be on Duty but Are Not 95. Officials Who Do Not Come Tb Take Their Turn at Duty without a Reason 96. Time Limits on Moving To Take Office

59 60 63 64 65 66

Contents 97. Officials W h o Do Not Follow the Time Schedule in Accompanying the Emperor 98. Failure To Give Advance Announcement of a Great Sacrifice 99. Offering Condolences during Partial Abstinence for a Great Sacrifice 100. Participation in Sacrifices or in Ceremonies at the Imperial Tombs 101. Participation in Court Celebrations during a Period of Mourning 102. Preparation of Medicine for the Emperor 103. Violation of the Dietary Proscriptions in Preparing the Emperor's Food 104. Imperial Boats 105. Imperial Clothing and Other Articles 106. Officials in Charge Who Borrow Imperial Clothing or Other Articles 107. Offenses Committed by Inspecting Officials and Those in Charge of the Emperor's Food 108. Food Presented to Officials 109. Divulging Important Matters 110. Astronomical Instruments 111. Delay in the Copying of Imperial Decrees 112. Violation in Carrying Out an Imperial Decree 113. Forgetting or Misunderstanding in Connection with Imperial Decrees Chapter X 114. Improper Correction of Errors in Imperial Decrees 115. Violating Name Taboos in Documents or Memorials on Affairs Submitted to the Emperor 116. Making Errors in Documents or Memorials on Affairs Submitted to the Emperor 117. Not Memorializing Matters That Ought To Be Memorialized 118. Substitution of Signatures Giving Authorization of Administration or Endorsement on a Government Document W h e n the Language Is Correct 119. Not Returning after Being Sent on a Mission with an Imperial Decree 120. Concealing and N o t Mourning the Deaths of Parents or Husband 121. Violating Name Taboos in Administrative Designations and Official Tides 122. Criticizing the Emperor

ix 66 67 69 70 70 71 73 73 74 75 76 76 77 78 79 80 81 82 83 84 85

87 87 88 91 92

χ

Contents 123. Postal Relay Couriers Who Fall behind Schedule 124. Postal Relay Couriers Who Turn Over Official Documents to Others 125. Documents That Are Required To Be Sent by the Postal Relay Service 126. Postal Relay Couriers Who D o N o t Follow the Address 127. Taking an Excessive Number of Post Horses 128. Taking the Wrong Route while Riding Post Horses 129. Carrying Private Articles while Riding Post Horses 130. Offenses Committed by Senior Officials and Commissioners 131. Completion of Matters in Which Tallies and Ensigns Have Been Used 132. Delay in Carrying Out Official Matters

Chapter XI 133. Being Assigned a Mission and Hiring or Sending Other Persons To Carry It O u t 134. Officials Who Improperly Set U p Stone Monuments 135. Those Who Seek Favors 136. Officials Who Take Bribes for Favors Sought 137. Persons Who Offer Bribes in Seeking To Have a Matter Favorably Carried O u t 138. Supervisory and Custodial Officials Who Take Bribes and Subvert the Law 139. Officials Who Do Not Take Bribes Beforehand 140. Officials Who Take Goods and Articles within Their Area of Jurisdiction 141. Officials Who Receive Presents because of Being a Commissioner 142. Officials Who Borrow Goods and Articles within Their Area of Jurisdiction 143. Officials Who Make Use of Labor within Their Area of Jurisdiction 144. Officials Who Receive Presents from Persons within Their Area of Jurisdiction 145. Officials Who Exact Goods and Articles from Persons within Their Area of Jurisdiction 146. Extortion by the Family Members of Officials 147. Officials Who after Leaving Office Receive Presents from Their Former Subordinates 148. Using Power and Extortion 149. References to the Code, the Statutes, and the Ordinances

93 94 94 95 95 96 97 98 98 100

101 102 104 106 108 108 109 110 111 111 114 116 116 117 118 118 119

Contents

xi

4.THE HOUSEHOLD AND MARRIAGE Chapter XII 150. Omitting a Household from the Household Register 151. Village Headmen Who Are Not Aware That a Household Has Been Omitted from the Household Register or That Household Members Have Been Left OfF of It 152. Prefects and Magistrates Who Are Not Aware That a Household Has Been Omitted from the Household Register or That Household Members Have Been Left Off of It 153. Village Headmen or Officials Who Wrongly Omit a Household from the Household Register or W h o Leave Household Members Off of It 154. Unauthorized Ordainment as a Buddhist or Taoist Priest 155. Sons and Grandsons in the Male Line Are Not Permitted to Have a Separate Household Register 156. Having a Child during the Period of Mourning for Parents 157. Adopted Sons W h o Reject Their Adoptive Parents 158. Violating the Law by Not Selecting the Eldest Son of the Wife To B e Heir 159. Adoption of a General Bondsman as a Son or Grandson 160. Manumission of a Personal Retainer as a Commoner 161. Falsely Combining Households 162. Family Members of a Lower Generation or of the Same Generation but Younger than Other Family Members W h o Improperly Make Private Use of Family Goods 163. Sale of Personal Share Land Chapter XIII 164. Possession of More than the Permitted Amount of Land 165. Illegal Cultivation of Public or Private Land 166. Wrongfully Laying Claim to or Illegally Selling Public or Private Land 167. Officials Who Encroach upon Private Land 168. Illegal Cultivation of Other Persons' Grave Plots 169. Drought, Flood, Frost, or Hail within a Region 170. Land Classified as Uncultivatable Land or Waste Land in the Area under an Official's Control 171. Village Headmen's Allocation of Land and Plots for Mulberry Trees 172. Not Allowing Rightful Exemption from Taxes and Labor Services

121

124

125

127 128 129 130 130 131 132 133 135

136 137 139 139 141 142 142 143 145 145 148

xii

Contents 173. Violation of the Law in Making Selective Imposition of Taxes and Labor Services 174. Violation of the Time Limit in Remitting Articles for Taxes 175. Betrothal of a Daughter Where the Marriage Contract Has Been Signed 176. Wrongful Substitution by the Bride's Family in a Marriage 177. Taking a Second Wife 178. Making the Wife a Concubine 179. Marriage during the Period of Mourning for Parents or Husband 180. Marriage while Parents Are in Prison 181. Acting as Master of the Marriage during the Period of Mourning for Parents

Chapter XIV 182. Marriage by Those with the Same Surname 183. Taking a Wife within the Sixth Degree of Mourning 184. Remarriage of a Widow while Mourning Her Husband 185. Marrying a Woman Who Has R u n Away 186. Supervisory Officials Who Take Women within Their Area of Jurisdiction as Concubines 187. Marrying Another Man's Wife by Consent 188. Family Members of a Higher Generation or of the Same Generation but Older Making Engagements to Marry for Relatives of a Lower Generation or of the Same Generation but Younger 189. Divorcing a Wife Who Has Not Given Any of the Seven Causes for Repudiation 190. Divorce 191. Slaves Who Take Commoners as Wives 192. General Bondsmen Are Not Permitted to Marry Commoners 193. Marriages That Violate the Code 194. Divorce and Correction of Status in Marriages That Violate the Code 195. Violation of the Code in Giving and Taking in Marriage

149 151 152 154 154 155 157 158 159 160 162 163 164 164 166

166 167 168 169 171 173 174 175

5.THE PUBLIC STABLES AND WAREHOUSES Chapter XV 196. Herdsmen in Charge of Animals W h o Do Not Fulfill Their Quota

178

Contents 197. The Examination of the Condition of Domestic Animals Not Being Reported Truthfully 198. Being in Charge of Government Animals That Become Sick 199. Using Government Animals for the Transportation of Private Possessions 200. Sacrificial Animals for the Great Sacrifice Not Conforming to the Rules 201. Making Use of Government Animals in a Manner So That Their Backs Are Laid Bare or Their Throats Are Worn through by the Harness 202. Government Horses Not Being Trained 203. Intentionally Killing Government or Private Horses or Cattle 204. Government or Private Animals That Harm or Eat Government or Private Articles 205. Killing the Horses or Cattle of Relatives within the Fifth Degree of Mourning 206. A Dog Wounding or Killing Domestic Animals 207. Domestic Animals That Gore, Kick, or Bite Persons 208. Supervisory or Custodial Officials W h o Borrow Government Slaves or Domestic Animals 209. Government or Private Domestic Animals That Harm or Eat Articles 210. Inspection by the Officer in Charge of a Warehouse or a Treasury 211. Borrowing Government Property and N o t Returning It 212. Supervisory or Custodial Officials Who Borrow Government Property 213. Supervisory or Custodial Officials Who Take Government Property and Lend It to Others 214. Damage to the Contents of a Granary, a Warehouse, or a Storage Area 215. Goods or Articles That Are Required To Be Turned Over to the Government or to Private Persons 216. Wasting Government Property 217. Required Payment of Taxes 218. Supervisory Officials Who Hire Transportation for Taxes 219. Causing Delays or Difficulties in the Disbursement or Reception of Goods 220. Government Property That Is Sealed 221. Sending Goods To Buy Grain in the Market in order To Pay Taxes

xiii 181 183 184 185

186 187 188 190 191 192 193 195 197 198 200 201 203 203 204 204 205 206 206 207 207

XiV

Contents

222. Violations in the Disbursement or Reception of Government Property 223. Government Property That Should Be Turned Over to Private Persons

208 209

6. UNAUTHORIZED LEVIES Chapter 224. 225. 226. 227. 228. 229. 230. 231. 232. 233. 234. 235. 236. 237. 238. 239. 240. 241. 242. 243. 244. 245. 246. 247.

XVI Unauthorized Dispatch of Troops Transfer and Issuance of Military Supplies Not Giving a Tally to Dispatch Troops Selection of Guardsmen and Conscripts Conscripts Replacing Each Other under False Names Violation of the Time Limit in Arriving for an Inspection Delaying Army Levies Conscripts Causing Delays Informing the Enemy of a Campaign Commanders W h o Are Defending Walled Cities Commanders W h o Retreat First when in Battle Releasing Conscripts at a Garrison Town to Return Home Conscripts W h o Avoid Military Service through Craft or Fraud Crimes Committed in Garrisons and Outposts Issuing Weapons without an Official Document Violation of the Time Limit in Sending Up Men To Take Their Turn at Military Duty Reporting to Superiors about Levies for Public Works Making Levies in Violation of the Law Work That Is Done Incorrectly Private Possession of Forbidden Military Weapons Do N o t Use Labor for Gathering and Fetching Men Being Unequally Apportioned Men and Artisans W h o Delay Private Use of Men and Artisans

210 212 213 215 216 219 220 221 222 222 223 223 225 226 227 227 228 230 231 232 234 235 236 237

7. VIOLENCE AND ROBBERY Chapter XVII 248. Plotting Rebellion and Committing Great Sedition 249. Collective Prosecution and Those Who Do Not Dwell Together 250. Speaking of Rebellion

239 242 244

Contents 251. Plotting Treason 252. Plotting To Kill a Commissioner Carrying Imperial Decrees, a Department Head, or Other Officials 253. Plotting To Kill Second Degree Mourning Relatives of a Higher Generation or of the Same Generation but Older 254. A Personal Retainer or Slave W h o Kills Their Master 255. Plotting To Kill a Late Husband's Parents 256. Plotting To Kill a Person 257. Breaking Prison 258. Seizing Hostages in Order To Circumvent the Law 259. Killing Three Persons in One Family 260. Paternal Grandparents or Husband Being Killed by Someone Chapter XVIII 261. Pushing an Object into a Person's Ears or Nose 262. Making or Keeping Ku Poison 263. Treating Persons with Poisonous Drugs 264. Hatred and Sorcery 265. Killing a Person and Being Removed from the Community 266. Destruction of a Corpse 267. Digging in the Earth and Finding a Corpse 268. Making Magical Inscriptions and Magical Incantations 269. Entering a Person's House at Night without Reason Chapter XIX 270. Robbery of the Sacred Objects of the Spirits and the Great Sacrifices 271. Robbery of an Imperial Seal 272. Robbery of Seals for Official Documents 273. Robbery of an Imperial Decree 274. Robbery of Tallies for the Gates of the Imperial Palace or Imperial Audience Halls 275. Robbery of Forbidden Military Weapons 276. Robbery or Damage of Statues of the Heavenly Immortal or the Buddha 277. The Violation of Tombs 278. Robbery of Plants or Trees within the Imperial Mausoleum 279. Robbery and Killing of Government or Private Cattle or Horses 280. Punishment for Robbery Where the Value of the Illicit Goods Is Not Calculated 281. Robbery by Force

xv 245 247

248 250 251 252 254 256 257 258 261 262 265 267 269 271 272 274 276

278 279 280 281 282 284 285 286 288 289 289 290

xvi

Contents

282. Robbery by Stealth 283. Supervisory and Custodial Officials Who Commit Robbery of What Has Been Put under Their Jurisdiction or Custody 284. Intentionally Burning Another Person's Home 285. Getting Goods and Articles from Persons by Threats 286. Seizing a Person's Articles after Originally Beating Him or Her for Another Reason Chapter XX 287. Robbing Relatives of the Fifth Degree of Mourning of Goods and Articles 288. Family Members of a Lower Generation or of the Same Generation but Younger than Other Family Members W h o Have Other Persons R o b Their Homes 289. Accidentally Killing or Wounding a Person because of a Robbery 290. Exchanging Private Goods and Slaves for Government Articles 291. The Produce of Mountains and Wilderness Areas That Has Already Been Cultivated 292. Kidnapping and Selling a Person 293. Kidnapping or Misleading a Slave 294. Kidnapping and Selling Relatives within the Second Degree of Mourning Who Are of a Lower Generation or of the Same Generation but Younger 295. Taking Part in the Sale of a Person while Knowing That the Person Has Been Kidnapped or Misled 296. Those Who Have Knowledge of Kidnapping or Misleading a Person or of Robbery by Force or by Stealth 297. Punishment for the Combined Amount of Illicit Goods in Robberies That Have Been Committed Collectively 298. Collectively Plotting Robbery by Force and Not Carrying It Out 299. Committing Robbery Three Times 300. Taking Goods Openly or by Stealth Constitutes Robbery 301. Where Robbery Is Committed or Robbers Are Harbored in the Area under an Official's Control

292

293 294 295 298

301

302 303 305 307 307 310

312 314

316 317 319 320 322 323

8. ASSAULTS AND ACCUSATIONS Chapter XXI 302. Beating or Wounding a Person in an Affray with Hands, Feet, or Other Objects

325

Contents xvii 303. Beating a Person in an Affray So as to Break a Tooth or Injure an Ear or Nose 304. Slashing at or Shooting at a Person with a Military Weapon 305. Beating a Person in an Affray So as To Break a Limb, Dislocate a Joint, or Blind an Eye 306. Intentionally Killing a Person in an Affray with a Military Weapon 307. The Period of Responsibility for an Offense 308. Beating or Wounding Someone Whether or Not Because of Plotting Together 309. Using Coercion or Physical Strength To Restrain a Person by Tying Them Up 310. Both Parties to Beating or Wounding Will Be Punished According to the Code 311. Quarrels within the Imperial Palace 312. Beating a Commissioner Carrying an Imperial Decree, a Department Head, or a County Magistrate 313. A Subordinate or an Assistant Official W h o Beats His Department Head 314. Beating the Parents of a Department Head or a County Magistrate 315. The Emperor's Relatives within the Sixth Degree of Mourning 316. A Government Employee without Official Rank Who Beats a Person W h o Gets Deliberation for High Position

327 328 329 331 333 335 338 339 341 343 344 345 346 347

Chapter XXII 317. An Official of the Ninth Rank or Higher Who Beats a Person Who Gets Deliberation for High Position 318. A Supervisory Official W h o Beats His Assistants 319. Resisting a Commissioner from a Prefecture or County 320. Personal Retainers, Slaves, and Commoners W h o Beat Each Other 321. A Master Who Kills a Slave W h o Has Committed an Offense 322. The Punishment for Beating a Personal Retainer to Death 323. A Personal Retainer or Slave W h o Kills Their Master by Accident 324. Beating a Personal Retainer or Slave of a Relative of the Fifth Degree of Mourning 325. Beating or Wounding a Wife or Concubine 326. A Wife Who Beats or Curses Her Husband 327. Beating a Relative of the Same Generation but Older of the Fifth Degree of Mourning 328. Beating an Elder Brother or Sister

350 350 351 352 354 355 356 358 359 360 362 364

χι/πι

Contents

329. Beating or Cursing with Bad Language a Paternal Grandparent or a Parent 330. A Wife or Concubine Who Beats or Curses with Bad Language Her Husband's Parents 331. AWife or Concubine Who Beats or Curses with Bad Language Her Late Husband's Parents 332. Beating an Elder Brother's Wife or a Husband's Younger Brother or Sister Chapter XXIII 333. Beating a Wife's Children by Her Former Husband 334. Beating or Cursing with Bad Language a Husband's Relatives of the Second Degree of Mourning Who Are of a Higher Generation or of the Same Generation but Older 335. Paternal Grandparents Being Beaten or Hit by Someone 336. Mistakenly Killing a Bystander Because of Beating in an Affray 337. A Personal Retainer or Slave W h o Curses with Bad Language Their Former Master 338. Killing or Wounding a Person in Play 339. Accidentally Killing or Wounding a Person 340. Secret Reports of a Plot to Rebel or That Great Sedition Has Been Committed 341. False Accusations to the Court of Plots of Rebellion or of Great Sedition Having Been Committed 342. Reciprocal Punishment for False Accusation 343. Making a Baseless Accusation to the Court of a Less Serious Offense 344. Making a False Accusation to the Court of an Offense Punished by Life Exile 345. Accusing Paternal Grandparents or Parents to the Court Is Punished by Strangulation Chapter XXIV 346. Accusing to the Court Second-Degree Mourning Relatives of a Higher Generation or of the Same Generation but Older 347. Accusing to the Court Fifth-Degree Mourning Relatives of a Lower Generation or of the Same Generation but Younger 348. Violations of Orders by Sons and Grandsons in the Male Line 349. A Personal Retainer or Slave Who Accuses Their Master to the Court 350. A False Accusation to the Court against a Department Head, Prefect, or County Magistrate

366 368 369 370

372

375 377 378 380 382 383 384 385 386 389 390 392

395

398 399 400 401

Contents 351. Making Anonymous Written Accusations to the Court of Other Persons' Offenses 352. A Prisoner Is Not Permitted To Make Accusations of Other Persons' Offenses to the Court 353. Offenses Must Be Confessed to the Local Government Office 354. Accusations to the Court of Offenses That Occurred before an Amnesty 355. An Accusation to the Court of a Person's Offense Must Clearly Indicate the Year and Month 356. Adding to the Circumstances in Making a Written Statement for a Person 357. Ordering a Person To Make an Accusation to the Court That Is False 358. Intercepting the Emperor or Beating the Petitioner's Drum To State a Personal Grievance 359. Bypassing the Lowest Court in Stating a Grievance 360. Robbery by Force and Killing Persons 361. A Supervisory Official Who Knows That a Crime Has Been Committed

xix 402 404 405 406 408 409 411 413 414 416 417

9. FRAUD AND COUNTERFEIT Chapter 362. 363. 364. 365. 366. 367. 368.

369. 370. 371. 372. 373.

XXV Counterfeiting the Imperial Seals Counterfeiting the Seal for Official Documents Counterfeiting Tallies for the Gates of the Imperial Palace or an Imperial Audience Hall Counterfeiting Imperial or Official Seals, Tallies, or Ensigns and Lending Them to Others Illegal Use of Imperial Seals, Official Seals, Tallies, or Ensigns Forging an Imperial Decree Not Reporting the True Circumstances in Replying to an Imperial Decree or in Submitting Documents to the Emperor Forging an Official Document or Making Additions or Deletions to O n e Fraudulendy Assuming an Office or Fraudulently Giving Another Person an Office False Claims of Inheritance by Those Who Are Not in the Correct Line of Succession through the Legal Wife Falsely Claiming To Be an Official and Arresting a Person Obtaining Government or Private Goods and Articles by Fraud or Cheating

419 420 421 423 425 427

429 431 432 435 437 438

xx

Contents 374. Forging an Official or Private Document or Making Additions or Deletions to One 375. Wrongfully Claiming a Commoner to Be a Slave 376. Fraudulendy Canceling or Removing the Names of Official Bondsmen and Slaves 377. Making False Portents 378. Deceptively Enticing a Person To Commit a Crime 379. Use of Post Horses under False Pretenses 380. Fraudulent Avoidance of Taxes and Labor Services 381. Evasion through Feigned Illness 382. Doctors Who Do N o t Follow the Prescription and Fraudulendy Treat an Illness 383. Upon the Death of a Parent Stating That It Is Someone Else That Has Died 384. Investigating Feigned Illness, Death, or Wounds and Making Untrue Reports 385. Causing a Person's Death or Wounds through Deception 386. Guarantees of Responsibility That Fail 387. False Testimony 388. False Claims To Be an Official

440 441 443 444 445 446 447 448 449 449 451 451 453 454 455

10. MISCELLANEOUS ARTICLES Chapter XXVI 389. Crimes Involving Illicit Goods Obtained through Malfeasance 390. Making Music during Times of National Mourning 391. Illegal Coining of Money 392. Recklessly Driving Carts or Racing Horses through the Streets and Lanes of Cities 393. Shooting Arrows at City Walls or at the Homes of Officials or Private Persons 394. Setting a Trap That Throws a Spear or Digging a Pit 395. Doctors W h o Compound Medicine That Is Not According to the Prescription 396. Illnesses of Adult Males and Frontier Guards 397. The Expenditure of Articles That Have Been Received from Other Persons 398. Debtors W h o Violate a Contract by Not Making Payment 399. Seizure by Force of a Debtor's Domestic Animals 400. Making a Commoner a Slave and Using That Person as Security for a Debt 401. Mistakenly Claiming That a Commoner Is a Slave 402. Betting Goods and Articles in Games of Chance

456 457 457 458 459 460 461 462 463 464 464 465 466 466

Contents 403. Buildings, Carts, Clothing, Utensils, and Articles 404. Encroaching upon Streets, Lanes, and Roads 405. Monopolizing Profit from Mountains, Wilderness Areas, Shores, and Lakes 406. Violating Curfew 407. Death while on Military or Government Service 408. Taking More Post Relay Horses than Should Be Provided 409. Wrongful Entry of a Post Relay Station 410. Illicit Sexual Intercourse Is Punished by One and One-Half Years of Penal Servitude 411. Illicit Sexual Intercourse with Relatives within the Fifth Degree of Mourning or Their Wives 412. Illicit Sexual Intercourse with Great Aunts in the Male Line and Female First Cousins Once Removed in the Male Line 413. Illicit Sexual Intercourse with the Father's or Paternal Grandfather's Concubines 414. Illicit Sexual Intercourse by Male Slaves with Commoners 415. Illicit Sexual Intercourse by Consent Where N o Punishment Is Specified for the Woman 416. Illicit Sexual Intercourse by Supervisory and Custodial Officials within Their Area of Jurisdiction 417. Testing Hu and Tou Measures of Capacity, Steelyards, and Measures of Length 418. Utensils, Articles for Use, and Silk or Cotton Goods That Are Defective or Made from Inferior Material 419. Market Officials Who Set the Price of Articles 420. Privately Making Hu and Tou Measures of Capacity, Steelyards, and Measures of Length 421. Sellers and Buyers N o t Reaching an Agreement and Attempts to Monopolize the Market 422. Making a Market Certificate To Buy Slaves, Cattle, and Horses Chapter XXVII 423. Causing Disorder in a Marketplace or Where There Are Crowds of People 424. Failure to Repair Dikes at the Right Time of Year 425. Cutting a Dike to Steal Water 426. Transporting Clothing and Grain While Traveling on Government Ships 427. Steering Ships Not in Accordance with the Rules

xxi 468 469 469 469 470 471 472 473 474

475 475 476 477 478 479

480 482 483 484 485

486 487 488 490 491

XXl!

428. 429. 430. 431. 432. 433. 434. 435. 436. 437. 438. 439. 440. 441. 442. 443. 444. 445. 446. 447. 448. 449. 450.

Contents Accidentally Starting a Fire within the Imperial Tomb Area Fires inside Warehouses, Treasuries, or Granaries Burning Fields at the Wrong Time of Year Accidentally Starting a Fire inside Government Buildings, Granaries, or Warehouses Burning Government Buildings or Private Homes Seeing a Fire without Raising the Alarm or Fighting the Fire Repaying the Value for Damage by Water and Fire Throwing Away or Destroying Objects of the Spirits Destruction of the Altar Mounds for the Great Sacrifices Throwing Away or Defacing Tallies, Ensigns, or Official Seals Throwing Away or Defacing Imperial Decrees or Official Documents Opening Envelopes Stamped with an Official Seal That Contain Official Documents without Authorization Loss of the Registration Documents for Government Property Eating Fruits or Melons from Government or Private Orchards Throwing Away or Destroying Utensils, Articles, Trees, and Crops Destruction of Other Persons' Grave Pillars, Tablets, and Stone Animals Delaying the Return of Military Equipment Throwing Away or Destroying Government or Private Utensils and Articles Recovery of Lost Tallies and Official Seals Requirements for Buried Treasure Finding Lost Articles Violation of Statutes Doing What Ought Not To Be Done

492 493 493 495 496 496 497 498 498 499 499 500 501 502 503 503 504 506 506 508 509 509 510

11. ARREST AND FLIGHT Chapter XXVIII 451. Military or Civil Runners Pursuit and Arrest of Criminals 452. Criminals Who Use Weapons To Resist Arrest 453. The Law Regarding Arrests When a Person Has Been Beaten or Hit, or Robbery or Illicit Sexual Intercourse by Force Has Occurred 454. Arrest of Criminals by Passersby 455. A Person Who Is Going To Arrest a Criminal Divulging His Mission

511 513

515 516 517

Contents 456. Robbery by Force within a Neighborhood Security Group 457. Desertion from the Army during a Campaign 458. Frontier Defense Troops Going to Their Camp 459. Criminals W h o Are Doing Labor for Punishments of Life Exile or Penal Servitude Running Away 460. Imperial Guards Who Desert Their Posts 461. Adult Males and Artisans W h o R u n Away 462. Drifting Aimlessly to Other Places 463. Official Bondsmen and Slaves Who R u n Away 464. Officials Who Desert Their Post without Reason 465. Prisoners Who Fight with Officials and R u n Away 466. Custodial Officials Not Being Aware of a Prisoner's Escape 467. Harboring Runaways from Another Jurisdiction 468. Concealing a Criminal While Knowing the Circumstances

xxiii 518 519 521 521 522 523 525 526 527 528 529 530 532

12. JUDGMENT AND PRISON Chapter XXIX 469. Not Imprisoning Persons W h o Should Be Imprisoned 470. Giving Prisoners Edged or Pointed Metal Implements with Which They Can Free Themselves 471. Criminals Whose Cases Have Ended with Their Being Condemned to Death 472. Custodial Officials Who Instruct Prisoners on How To Change Their Statements 473. Giving Prisoners Clothing, Food, Medical Care, and Medicine 474. Those Who Have the Privileges of the Eight Deliberations, Petition, Reduction of Punishment, or Are Aged or Juvenile 475. Prisoners Who Implicate Others as Accomplices 476. Examination of the Written Statement in Interrogating a Prisoner 477. A Prisoner May N o t Be Judicially Tortured More than Three Times 478. Completion of Judicial Torture without the Accused Confessing 479. Prison Officials' Detention of Prisoners for Direct Confrontation 480. Interrogation according to the Circumstances of the Accusation 481. Moving Prisoners to One Location for Sentencing

536 537 539 540 542

543 544 545 546 547 549 549 550

xxiv

Contents

482. Administering Punishment Not in Accordance with the Law Chapter X X X 483. A Supervisory Official Who Beats a Person with the Heavy Stick 484. Citation of the Code, the Statutes, the Regulations, and the Ordinances in Sentencing 485. Not Making Required Reports to Superiors 486. Sentencing in Accord with an Imperial Decree or Imperial Edict 487. An Official Who Decreases or Increases a Person's Punishment 488. Incorrect Sentences Preceding an Amnesty 489. Knowing That There Will Be an Amnesty and Intentionally Committing a Crime 490. Obtaining the Prisoner's Acceptance of His Sentence after Conviction 491. Releasing Persons Who Should Have Been Enslaved by the State as a Result of Collective Prosecution 492. Delay in Sending Prisoners into Penal Servitude or Life Exile 493. Articles That Must Be Repaid, Paid as Redemption for Punishment, Confiscated by the State, or Turned Over to the State 494. Capital Crimes Committed by Pregnant Women 495. Judicial Torture or Beating of Pregnant Women 496. The Death Penalty Is Not To Be Administered after the Beginning of Spring 497. A Reply to a Memorial Requesting Permission To Administer the Death Penalty Is Required 498. Sentencing To Allow Redemption by Payment of Copper When Penal Servitude or Life Exile Is Required 499. Sentencing Decapitation for a Crime That Requires Strangulation 500. The Official in Charge Allowing a Prisoner W h o Should Labor Not To Labor 501. Allowing a Prisoner Who Has Been Condemned to Death to Escape 502. Doubtful Offenses Glossary Bibliography Index

551

553 554 555 556 556 561 564 564 565 566

567 568 568 569 570 571 573 574 574 575 577 579 583

Preface This volume brings my translation of The T'ang Code to an end. While I have given it my best effort, certainly there are errors which I leave to others to correct. In the introduction to this volume, I have tried to give the reader some appreciation of the main ideas that directed the work of the scholars who wrote this section of the Code. The Code was designed to be a whole. Reading one or more articles by themselves will not give an adequate picture of it. The Code must be studied in its entirety to appreciate what it was intended to accomplish. In almost every article, some part of the General Principles section will be relevant. But it has not been possible for me to make reference to that section except where the article could not be understood without such an indication. Otherwise the footnotes would have been three times the size of the translation. A source of frustration for the ordinary reader will be the constant referral to officials and governmental organizations in the articles of the Code. For those who may not have available to them the two volumes of des Rotours' Traite des fonctionnaires et traite de I'armee, there is a useful short description of the governmental organization and official tides used during the T'ang dynasty in Charles O. Hucker's A Dictionary of Official Titles in Imperial China, pages 28—37. I have benefited greatly from the translation of sections of the Code and the Statutes by Professor Denis Twitchett. I wish to thank Cambridge University Press for permission to use those translations that appear in his Financial Administration in T'ang China. Thanks are also due to the editor of Asia Major for allowing the use of translations that first appeared in that journal. Lasdy, Professor Twitchett has kindly allowed me to use his unpublished translation of the Statutes. When this basic document of Chinese institutional history appears, we will have a much better understanding of the organization and purpose of Chinese government. My thanks also to Professor Derk Bodde for the correction of several errors both in volume I and in this one. I am grateful to the several foundations that have generously provided funding for this project, and I wish to acknowledge the support of the Alexander von Humboldt Foundation, the Chiang Ching-kuo Foundation for International Scholarly Exchange, the Howard Foundation, the National Endowment for the Humanities, and the Hall Center for the Humanities and the Graduate R e search Fund of the University of Kansas.

xxvi

Preface

In recent years, the price of scholarly books has become almost intolerable. Therefore special thanks are due to the generosity of the Chiang Ching-kuo Foundation for International Scholarly Exchange and the Kansas University Endowment Association for grants to help with the cost of publication of this book. Last, but far from least, I am grateful to Molan Chun Goldstein, Deborah Malmud, and Anita O'Brien of Princeton University Press for their generosity and help during the process of publishing this book.

Addenda et Corrigenda for Volume I All pages. For area of supervision read area of jurisdiction p. 17. The following phrase should be inserted between pages Π and 18. Should the crime carry the death penalty, the emperor had to be memorialized only once, instead of the usual three times before the p. p. p. p. p. p. p. p. p. p. p.

17,1. 2. For resist or drive them away read oppose them 24, Delete lines 1 and 2 27,1. 14. For joint prosecution read collective responsibility 40, n. 3. For shi read hsi 50,1. 18. Delete a the 50, n. 12. For apocrypha read apocryphum 51,1. 17. For (Iu) read (fa) 66,1. 36. For ovides read provides 70,1.6. For carriage read clothing 71,1. 12. For forging read counterfeiting 71, n. 141. The second sentence should read, The penalty for counterfeiting the seals of the three empresses and the crown prince is strangulation. For coun­ terfeiting the seal of the crown princess, the punishment is life exile at a distance of 3,000 Ii p. 84,1. 19. For morning read mourning p. 96,1. 19. For & read flft p. 103, n. 40. For joint prosecution read collective responsibility p. 146,1. 23. For freely read improperly p. 228,1. 25. For strength and power read pressure and physical strength p. 249,1. 24. After Article: add 47.2p. 258,1. 27. For teachings and commands read orders p. 260,1. 5. For teaching and commands read orders p. 261,1. 7. Should readAH references to reciprocal punishment and for receiving the same punishment as the accused are limited to that punishment. p. 265,1. 11 and 1. 14. For junior officer read commanding officer p. 274,1. 5. For appropriated read improperly takes p. 295,1. 13. Delete proper

The T'ang Code

Introduction to the Specific Articles The Specific Articles section is in eleven books, ten of which each concentrate on a different type of offense while the Miscellaneous Articles constitutes a supplement to the others. Here the actual crimes covered by the Code are described and the punishments specified for them. 1 Great care is given in the 445 articles of this section to defining exacdy what constitutes criminal behavior in a particular case.2 It is much to be regretted that we know nothing of the scholars who created this work, which is credited to Ch'ang-sun Wu-chi. But we do know from reading the Code that they had both a deep understanding of the history of Chinese law and a very clear idea of how to write the articles of the Code so as to succeed in what it was intended to accomplish. Some of the offenses covered—for example, endangering the emperor and the state—are easy to understand; others, such as the one hundred blows for unauthorized ordainment as a monk or nun, are less obvious. But reading carefully through this section gives an unexcelled view of exacdy what kind of state and society the T'ang dynasty wanted to protect and the measures that it felt were necessary. Much of the legal activity that took place during the T'ang dynasty seems to have involved only private persons, that is, those who were parties to contracts of various kinds, loans and the like. 3 Articles 398-399 deal with some instances of contract violations—punishing debtors who do not make timely payments and creditors who without permission of the court seize the goods of delinquent debtors in excess of what is owed them. Article 400 sentences both parties involved in making a younger relative a slave and then using that person as security for a debt. But in general the state was content to leave to other means of resolution disputes in areas of the law that did not involve punishment. 4 Furthermore, for certain offenses by members of their groups against each other, families and clans could punish their members themselves without involving 'See also the several publications of Professor Geoffrey MacCormack on the Code, which are listed in the bibliography. 2 The emperor could, of course, change any punishment or punish where there was no applicable law. But Article 486 states that such decrees or edicts could not be used as precedents. 3 SeeValerie Hansen, Negotiating Daily Life in Traditional China: How Ordinary People Used Contracts 600-1400 (New Haven: Yale University Press, 1995), which discusses the articles dealing with contracts. If the large amount of material that survives from a border area such asTunhuang is any indication, the number of private agreements in the core provinces of China must have been immense. 4 See the edict on this subject translated by Hansen, Negotiating Daily Life, p. 43, and the discussion following.

4

Introduction

the state. It must be remembered that the bureaucracy in traditional China was always relatively small in comparison to the total population. 3 Neither was there a separate judicial branch of government.Though the administration of criminal justice was important, it was only one of the county magistrate's many duties. Why, then, was a written criminal code necessary, and why did the state, except for a few exceptions, monopolize the administration of criminal justice? I believe that having such a definitive law code served several purposes, some associated with Confucian thought, others reflecting the ideas of the Legalists. O n the Confucian side, the privileges set forth in the articles of the General Principles section that benefited certain classes of persons and the emphasis on hierarchy, whether in society, the bureaucracy, or the family, that we see in the articles of this section of the Code were given definite written form. 6 Of the points stressed by the Legalists, a Code meant that all the subjects of the empire knew what behavior was prohibited; a given crime received exactly the same punishment no matter where it was committed, and officials had little leeway in determining what act was a crime and what punishment should be sentenced for that act.7 The articles in this section of the Code are of two types: those defining criminal acts by members of the bureaucracy that affect the emperor or the state and those concerned with crimes committed by the general population. Offenses of the first type take up the whole of books 2, 3, 5, and 6 as well as parts of other books. I estimate that altogether there are some 205 articles of this kind, of which 28 are concerned with the safety of the emperor or his relatives. Another 54 articles cover the arrest of criminals and the trial procedure. Thus 243 articles deal with criminal activities involving ordinary people. About 50 of these concern the family—3 alone deal with illicit sexual intercourse. 8 Others deal with such topics as fraud, various kinds of violence, robbery, kidnapping, and even malpractice by physicians. Two are concerned with black magic, a topic covered in the fifth of the ten abominations. In looking at the Code as a means of social control in T'ang China, we must distinguish between two realms—the local and the national. As ProfessorTwitchett has pointed out, there was a place in local society where custom, mediation, or the influence of local powerful men could play a role in the settlement of disputes.9

5 There were only some 18,800 officials to govern a population of nearly forty million. See the discussion of the magistrate in Denis Twitchett, "The Implementation of Law in Early T'ang China," CiViW Veneziana: Studi 34 (1978), 57-84. 6 ThIs is well argued by Ch'u T'ung-tsu, Law and Society, pp. 267-80. This of course reflects the view of Shang Yang. One of his emphases was on the law as a protection for the people against the officials. See the translation and discussion of his thought and that of the Legalist school generally by JJX. Duyvendak, TIw Book of Lord Shang (LondonArthur Probstain, 1928). 8 Crimes affecting the emperor or the state are punished more severely than any others, but it is should be noted that six of the ten abominations cover offenses that affect the family. 'Twitchett, "The Implementation of Law in T'ang China," p. 84. Persons who made contracts

Introduction

5

Here also was where respected family and community elders could invoke moral or religious teachings to curb undesirable activities before they came to the attention of the state. Indeed, the first part of the Code, quoting the Book of Rites, states that virtue and ritual are the basis of government and punishment and chastisement are its instruments. 10 It was the duty of the family to teach correct behavior to children based on Confucian morality beginning with The Filial Piety Classic.n Other groups such as guilds could also play a role, at least for their own members. But once criminal activities were brought to the knowledge of the county magistrate, they would be dealt with under the rigid rules prescribed in the Code and punished harshly.The Code is for punishment and the punishments are severe—penal servitude, life exile, strangulation, and decapitation are common sentences.12 Even where the sentence is only beating, one hundred blows with the heavy stick surely would inflict great injury upon the criminal if in fact he or she did not die from them. For certain crimes involving danger to the state or the emperor, even innocent members of the criminals' families are included in collective prosecution. 13 The reason for this will be understood if one accepts the view that the Code was regarded as the last means by which to protect society when all other attempts to promote desirable behavior in an individual or family had failed. Those who came before the county magistrate represented the failure of morality and education. Punishment was the only answer left to society in such cases. Great care, then, was given in constructing the Code so that innocent people would not become involved in the criminal process. Even the guilty could avoid the consequences of their actions if they confessed before the crime had been discovered and made restitution. 14 In some cases relatives also could make a confession for each other and so enable the criminal to avoid punishment. Article 351 punishes anonymous accusations severely. A person who concealed his or her name when making an accusation or who gave that of another person was punished by life exile at a distance of 3,000 Zi. Anyone who got such a document should burn it. If instead the recipient sent it to a government

also had this division in mind. See Hansen, Negotiating Daily Life, p. 34, where the contract states: "Officials have government law, and common people follow private contracts" 10 VoI. I, p. 54. "Though traditionally attributed toTseng-tzu, a disciple of Confucius who appears m most of the chapters, in fact the author is unknown. While it seems to have existed in some form before the Han dynasty, several of the chapters may be later additions. For a partial modern translation and discussion of this seminal text,see the forthcoming second edition of Wm.Theodore de Bary's Sources of the Chinese Tradition (Columbia University Press: New York, 1960). '2OnIy 3 of the 445 articles in this section do not have a punishment: Articles 223, 300, and 502, which are concerned with definitions. "See Articles 248 and 249 and the discussion in Vol. I, pp. 18-20. "See Vol. i, p. 201, Article 37. Note also the general principle that allows relatives to conceal each other's crimes.

6

Introduction

office, he or she would be punished by one year of penal servitude. If the official who received the document treated it as a legitimate accusation, he would receive two years of penal servitude. The accused would be the only person involved who was not, in fact, punished. Further, all written accusations had to give the year and month in which the crime took place.13 N o doubtful accusations could be made, and violators were beaten fifty blows with the light stick. Only particularly serious crimes such as plotting treason were exempt from this requirement. Once an accusation was made, the Statutes provided for three hearings to determine its truth before any action on the case would be taken.16 Were the accusation false, the accuser received the punishment that he or she had intended for the victim. 17 Where the accused was judicially tortured, if he did not confess the next step was to torture the accuser. All of these procedures made accusations to the court a very serious matter indeed. The articles in this section are carefully crafted to define exacdy what constitutes a crime. Article 300 defines robbery as taking something, whether openly or by stealth. The commentary to this article then goes into more detail. Things such as utensils and articles, coins and silk must be taken away. But for small objects such as pearls and jade, concealment is enough. Objects that are too heavy for a person to carry must actually be put into a cart. Simply removing them from their original location is not sufficient to constitute the crime. Animals that are in pens or kept tied up, such as horses, oxen, camels, and mules, must be moved from their pens or from where they are tied up. Animals that can run or fly away, such as falcons or dogs, must be under the robber's control. If a horse is stolen and others follow it, they are not included in the value of the illicit goods, which determines the punishment. But if a mare is stolen and her foal follows, the foal is so included. Some robberies that affect the emperor or the state are punished without consideration for the value of what is taken.18 Others that involve the taking of goods that can be valued come within Articles 281 and 282, which cover robbery by force and ordinary robbery, respectively. Force is differentiated from stealth by the use of coercion or physical strength. The use of force is punished still more if a weapon is used. Giving the victim drugged wine or food so as to be able to rob him or her also is robbery by force. Whether the use of force takes place before or after the robbery is not relevant. But there has to be some direct association. For where the robber upon being discovered throws down the goods and flees, if the owner of the goods "Article 355. 16 This statute is translated in Wallace Johnson and Denis Twitchett, "Criminal Procedure in T'ang China," Asia Major,Third Series, 6.2, (1995): 142. "Article 342. Where the accusers status was such that he or she could make redemption by payment of copper, the amount went to the intended victim. See Niida, Statutes, p. 792. '"See Articles 270-280.

Introduction

7

pursues and catches the robber and blows result, this is not robbery by force. Nor is an instance of lost goods being found and the finder refusing to return them and hitting their owner considered to be robbery by force. In these cases the articles on resisting arrest and beating in an affray are applicable.19 There are great differences between the punishment sentenced for robbery by stealth and robbery by force. Robbery by stealth where no goods are taken is punished by only fifty blows with the light stick. If goods worth one ch'ih of silk are taken, the punishment is sixty blows with the heavy stick, increased to one year of penal servitude for goods worth five p'i of silk, and a maximum punishment of life exile with added labor for goods worth fifty ch'ih of silk. But where coercion or physical strength are used, the minimum punishment is two years of penal servitude. For goods worth one ch'ih of silk, the punishment is three years of penal servitude, increased one degree for goods worth each further two ch'ih of silk. For goods worth only ten ch'ih of silk, the punishment is strangulation; the same if anyone is wounded, even if no goods are taken. Moreover, if the robber carries a club, the minimum punishment is life exile at a distance of 3,000 Ii. For goods worth five ch'ih of silk, the punishment is strangulation, and if anyone is wounded the punishment is decapitation even if no goods are taken. Further, there is no decrease of punishment should the victim be of a lower social class. While slaves are defined as being property 20 and crimes against them and other mean persons are punished less than crimes against those higher in social status, when robbery by force occurs, killing or wounding such persons is the same as killing a commoner. As the above shows, the Code punishes violence severely. But it is also very careful to equate punishment both with the state of mind of the criminal and with the seriousness of the crime. This can be seen clearly in the articles on killing or wounding. Article 339 defines an accidental killing or wounding as one "wherein eyes and ears could not have perceived such a result and thought and planning could not have prevented it." The commentary gives examples of this as where two persons are lifting a heavy weight and one of them is not able to support his or her part, or where a person is climbing and falls on another person. The offender is allowed to make redemption by payment of copper irrespective of status. Regarded more seriously than accidental crimes are those committed in play. Article 338 defines killing or wounding in play in two ways. The first is where two or more persons agree to play a game where strength is used and death or wounding results. Here the crime is punished two degrees less than were it committed in an affray. But if an edged or pointed weapon is used in the game or it involves climbing up to a high place or going into water, the punishment for death or wounding is reduced only one degree below that for an affray. Still,

"Articles 451 and 452. THe subcommentary to Article 248 on plotting rebellion.

20

8

Introduction

as in cases of accidental death or wounding, the offender is allowed to redeem the punishment by payment of copper, which goes to the family of the victim. However, killing or wounding by intent is regarded much differently. Where the crime takes place because of a plot, or where the offense is committed intentionally, punishments are much more severe. Article 256 punishes a plot to kill by three years of penal servitude. If the victim is even wounded, the punishment is strangulation. If the person is killed, the punishment is decapitation. Any accessories who actually take part in the killing are punished by strangulation. If they did not take part in the actual crime itself their punishment is life exile at a distance of 3,000 Ii. Intentional killing is also punished by decapitation. The degree of injury also affects punishment. This is well illustrated in the several articles dealing with affrays—numbers 302 through 306. These articles distinguish between merely beating someone with the fists or feet, which is punished by forty blows with the light stick, and causing a wound or using something other than the hands or feet to beat the victim, which is punished by sixty blows with the heavy stick. The punishments mount steadily with the amount of physical damage done to the victim, from one year of penal servitude for breaking a tooth to strangulation if the person dies. Should the victim die after the beating, Article 307 lists different periods of responsibility for the offender, ranging from ten days in the case of beating with the hands or feet, through thirty days for injuries inflicted with an edged weapon, to a maximum of fifty days for broken limbs. In each such case, should the victim die, the criminal is punished for killing.21 The point of these many distinctions is an attempt to balance exacdy each crime by a corresponding punishment so that the articles of the Code will fit together to constitute an integrated whole of responses to criminal behavior. The Code is also concerned to provide compensation to the victims for damage done to their property, robbery of their goods, or violence done to their person in certain circumstances. Where an intentional crime causes damage to buildings and their contents by fire or water, Article 434 states that the criminal must repay the value of what was destroyed. But if the damage is caused by error or by accident, repayment need not be made. The subcommentary to the article gives examples to illustrate this ruling. However, Article 445 specifies that the destruction of goods other than buildings requires repayment of the value of the goods to the owner. With regard to robbery, Article 33 of the General Principles section states that double the value of goods taken in robbery must be repaid. But the crime must involve something tangible. Illicit gains derived from the unauthorized use of such things as carts and horses, warehouses and boats do not require repayment to their owner. This principle affects the many articles in the Specific Articles section that state that their punishment follows one of the two articles on robbery. An interesting example of this is found in Article 284 on intentionally burning 21

Article 307.

Introduction

9

a building and committing robbery of the goods contained in it. Here the article combines the reduced value of the building with that of the goods taken and punishes the crime as robbery. Thus double the reduced value of the building must also be repaid. For cases of wounding or injury, Article 339 of the Specific articles section provides that in cases of death or wounding by accident, the offender, without regard for privilege, will be allowed to make redemption by payment of copper. This is coupled with Article 40 of the "Statutes on Prison Officials," which states that where in any case of wounding, injury, or false accusation if the offender is allowed to make redemption by payment of copper, the amount paid goes to the victim. 22 But neither the Code nor the Statutes provides a means for the victim to recover any damages awarded.Where an amount of copper for redemption of a punishment is paid to the government, Article 36 of the "Statutes on Prison Officials" section of the Statutes places limits on the time allowed.23 But nothing is said there as to payments to private individuals. N o r do we know whether the obligation to pay was limited to the offender. For later times, under Article 36, Niida quotes a Sung period code to the effect that the obligation to pay the government ends with either a grant of mercy or the death of the offender. One of the most striking features of the individual articles of this section is the concern over hierarchy: in society generally, in the bureaucracy, and in the family. Crimes against each other by commoners and officials, by different ranks in the bureaucracy, and by relatives within the five degrees of mourning as well as their slaves and personal retainers receive widely different punishments depending upon the differences in standing of the offender and the victim. 24 Commoners' offenses against officials are punished more heavily than those against equals.23 As described above, Articles 302 and 303 punish blows in an affray against an equal of non-kin status by forty blows with the light stick, increased to sixty blows with the heavy stick if the person is wounded, and with two years of penal servitude if so much as a tooth is broken. But in Article 312, even a single blow by a commoner against the prefect or county magistrate carries a minimum punishment of three years of penal servitude. If the victim is wounded, the punishment is life exile at a distance of 2,000 Ii, and if a tooth is broken, the sentence is strangulation. Article 386 punishes false accusations against department heads, prefects, or county magistrates by those within their offices or jurisdiction by two degrees more punishment than that for the crime of which they were falsely accused. Even officials' paternal grandparents, parents, wives, and sons are protected in that a blow against any of them is punished by one year of penal servitude, and if they are severely wounded—a finger or tooth being broken—the punishment -Niida, Statutes, p. 792. IbId., p. 788. 24 See Article 320. 25 See Article 312. 23

10

Introduction

is increased one degree above that for offenses by commoners against equals of non-kin status.26 Within the bureaucracy, divisions of rank affect punishment for crimes against superiors. These divisions are applicable not only to subordinate officials in an office who might commit a crime against their chief but also to officials of lower ranks who commit a crime against those of higher ranks. Thus if an official of the ninth through the sixth ranks hits an official of the third rank, he is punished by one year of penal servitude.27 If the official is of the fifth or fourth rank, the punishment is sixty blows with the heavy stick, the same as for a fifth- or fourthrank official who hit a third-rank official.28 But it is within the family that hierarchical differences are most clearly defined. Beating is again a good example. Articles 324 through 337 cover this offense, detailing the multitude of family relationships and social statuses that can affect punishments. These vary not only with the generational differences of the offender and victim within the five degrees of mourning, but where both of them are of the same generation, upon one being older than the other. All of this is worked out in the individual articles in incredible detail.29 Family relationships certainly form the most complex set of rules for increasing and decreasing punishment to be found in the Code, far more so than those involving crimes among the different levels of officials or among different social classes in the general population. This emphasis on hierarchy is, I believe, due to the influence of The Filial Piety Classic. While Confucius had stressed filial piety, it is The Filial Piety Classic that extends the basic concept of respect and submission to parents to elders and others in authority throughout society.30 Indeed, The Filial Piety Classic seems to be the model upon which much of the Code is built and to reflect the type of society that the compilers of the Code wished to protect inT'ang China, which is, in my view, that of the state as the family writ large. The ruler plays a role in the state comparable to that of the father in the family. It is interesting that the two-character phrase kuo-chia 111¾ meaning China but composed of the characters for state and family, occurs nine times in the Code. Thus we find in the Code several different factors operating together. One is the effort to fit the proper punishment to each of the crimes covered so that some fourteen articles are needed to encompass the crime of robbery. Equally important in the minds of the compilers, however, is having the punishment fit the criminal. Treating everyone equally before the law, as advocated by Shang

M

See Article 313. Article 317. 28 See Articles 316-318. 2, See also Articles 411-413 on how these differences affect the crime of illicit sexual intercourse. 30 I believe that the special treatment of women, which in the Code is often linked to their status as mothers, is also due to this text. 27

Introduction

1i

Yang, is not justice. The important differences in status that characterize people must be reflected in how they are treated in the court. At the same time, there are instances where persons in authority are punished more severely than their inferiors for joint crimes and other instances of liability where they are punished even though they had no knowledge of the crime at all. Humanitarian concern for the aged, the juvenile, and the physically and mentally impaired also is an important factor. The Code links these themes together to accomplish its main goals, which are the protection of the family and the state, the defence of private property, and the safety of individuals. It is precisely because it articulates these themes so well that The Tang Code dominated the development of Chinese law for more than twelve centuries and served as a model for the development of law in the whole of East Asia.

PART THREE T h e T'ang Code: Specific Articles, Chapters V I I - X X X

2. THE IMPERIAL GUARD AND PROHIBITIONS [la; 2.50]

C H A P T E R VII

SUBCOMMENTARY: The Articles on the Imperial Guard and Prohibitions were not in the codes of the Ch'in, Han, and Wei dynasties. Chia Ch'ung, the prime minister of the Chin dynasty, and others, consulted the codes of the Han and Wei dynasties and, according to the circumstances, added to and subtracted from them, making this section and calling it the Articles on the Imperial Palace 1 and the Imperial Guard. This name was not changed from the Sung dynasty down through the Latter Chou dynasty. Coming to the Northern Ch'i dynasty, a section on customs barrier gate prohibitions was appended to the Articles on the Imperial Palace and the Impe­ rial Guard and the name was changed to the Articles on Prohibitions and the Imperial Guard. During the K'ai-huang period of the Sui dynasty, the name was changed to the Articles on the Imperial Guard and Prohibitions. The imperial guard refers to the laws on the jurisdiction of the imperial guard, whereas prohibitions takes its name from the prohibitions regarding cus­ toms barriers. Because of veneration of the emperor, to warn against doing what is wrong, and because the offenses described in this section are especially serious, it is placed next to the General Principles section, at the head of all the other sections.

Article 58 Unauthorized Entry of the Gates of the Imperial Ancestral Temple ARTICLE: 58.1a—All cases of unauthorized entry (lan-ju Μ λ ) of the gates of the imperial ancestral temple, the imperial tombs, or the gates of the impe­ rial grave area are punished by two years of penal servitude. 2 COMMENTARY: Unauthorized refers to entering where entry is not permitted. SUBCOMMENTARY: T'ai ~fc "great" means ta ^ "large." Miao ^S "temple" refers to mao 1¾ "delineating the ancestors." 3 Because the spirits of the ancestors dwell inside them, such places are called imperial ancestral temples. 'See Vol. i, p. 52, and Balazs, Traite juridique, pp. 206 ff. The character men P^ indicates both gates and doors in Chinese. I have used either English word as it best seems to fit the context. 3 This is an example of definition by homophone See Vol. i, p. 55, n. 46.

16

Article 58

As for tombs (shan-ling [JL] 1¾), the San-ch'in chi states that the Ch'in dynasty called the emperor's tomb a mountain (shan), while the Han dynasty called it a tumulus (ling).* These two terms are also combined to indicate that the tombs are [lb] high and large like mountains and tumuli. As for the gates of the imperial grave area, The Filial Piety Classic states: "One divines their grave site."5 If a favorable omen is obtained, the area of the divination is enclosed and made a grave site. Imperial guardsmen are stationed at all of these places to protect them, and those persons who are permitted to go in or out are all listed on a name register.6 . . . This article provides no punishment for entry of the rooms of the imperial ancestral temple, but in accordance with the text below, which reduces the punishment for offenses connected with the imperial ancestral temple one degree below those connected with the imperial palace,7 the punishment should be one degree less than for unauthorized entry into the imperial presence, or life exile at a distance of 3,000 Ii. Climbing onto the tombs without a reason is punished the same as entry of the rooms of the imperial ancestral8 temple. ARTICLE: 58.1b—Climbing over a wall is punished by three years of penal servitude. 58.2—Offenses connected with the Altar of the Soil are punished one degree less in each case. 58.3a—If the guardsmen are not aware of the offense, their punishment is reduced two degrees below that of the criminal. COMMENTARY: Guardsmen refer to those who are taking their turn standing duty. SUBCOMMENTARY: . . . Climbing over the wall of the Altar of the Soil or entering without authorization are both punished one degree less than for the same offense involving the imperial ancestral temple. Guardsmen refer to soldiers serving as imperial guardsmen who are standing guard at the imperial ancestral temple, imperial tombs, and the Altar of the Soil. If they are not aware that someone has climbed over the wall or entered without authorization, their punishment is reduced one degree below that of the criminal in each case. 4 The San-ch'in chi Ξ Sl IH was written by one Hsin Mou ^fE5¾, whose dates are not known. This is a paraphrase. ''Hsiao-ching, "Sang ch'in," p. 55, Legge, Hsiao King, p. 487. 'Name registers (mmg-chi :¾ ij§) were commonly used to control entry to places connected with the emperor or the imperial family. See Article 59 immediately below. 7 See Article 79 below. 8 Mwo JU should be inserted before shih §[, following the KHCPTS edition.

Article 59

17

Guardsmen refer to those who take turns standing duty [51] during the day and night. If they are not standing duty (at the time of the offense) they are not punished. ARTICLE: 58.3b—If the commanding officer is not aware of the offense, his punishment is reduced one degree further. [2a] COMMENTARY: Commanding officer refers to those who are themselves in a supervisory capacity at a particular place. SUBCOMMENTARY: Commanding officers refer to those in command of imperial guardsmen at the imperial ancestral temple, the imperial tombs, and the Altar of the Soil. Where the rank is provisional, the officer is still punished, irrespective of rank. They also have their punishment reduced one degree further and are only punished when they are personally in charge. ARTICLE: 58.3C—Those who deliberately connive at such offenses receive the same punishment as the criminal. COMMENTARY: Other articles concerning guardsmen and being in charge of gates follow this article. SUBCOMMENTARY: Deliberate connivance refers to knowing that a person should not be allowed to enter and yet allowing that person to enter, or knowing that a person is climbing over a wall and not stopping them from doing so. In both of these cases, the guardsmen receive the same punishment as the criminal. Other articles about guarding imperial palaces, imperial audience halls, and other forbidden places, all of which have persons in charge of gates and guardsmen, where they deliberately connive at or are not aware of an offense, follow this article.

Article 59 Unauthorized Entry of the Gates of the Imperial Palace ARTICLE: 59.1a-i—All cases of unauthorized entry of the gates of the imperial palace are punished by two years of penal servitude. COMMENTARY: 59.Ia-H—Unauthorized entry of the gates of the imperial palace city is punished the same.9 Other articles where punishment is required follow this article. 'The imperial city housing the government and the imperial palace city were at the northern

18

Article 59

SUBCOMMENTARY: The imperial palace gates all have name registers (chi-chin %§ ^ ) , and those who enter without permission to do so are punished by two years of penal servitude. Such gates as that of Admirable Virtue are imperial palace gates; such gates as that of Obedience to Heaven are imperial palace city gates. Other articles where punishment is required follow this article on the impe­ 0 rial palace gates.This refers to such offenses as climbing over walls,' guardsmen 11 violating the rules for entry, and falsely assuming another guard's name and substituting for him. 1 2 ARTICLE: 59.1b—Unauthorized entry of the gates of an imperial audience hall is punished by two and one-half years of penal servitude. 59.1c—If the person is carrying a weapon, the punishment is increased by two degrees in each case. CoMMENTARY:Weapons refer to such things as military weapons and clubs. Ref­ erences to weapons in other articles follow this article. [2b] SUBCOMMENTARY: The gates of the Hall of the Supreme Ultimate are ex­ amples of such doors. If the person is carrying a weapon, the punishment is increased two degrees in each case means that unauthorized entry of the impe­ rial palace gate while carrying a military weapon or a club is punished by three years of penal servitude. If the gate is that of an imperial audience hall, the punishment is life exile at a distance of 2,000 Ii. Military weapons refer to such things as bows, arrows, swords, and spears. Clubs include those made of both iron and wood. Other articles that refer to carrying weapons into the imperial presence (covered later in this same article) as well as carrying weapons while committing robbery by force" follow this article. ARTICLE: 59.2a—Entry into the imperial pavilions is punished by strangulation. M

edge of the capital city of Ch'ang-an, each separated from the others by walls.Within the imperial palace grounds were numerous buildings also surrounded by walls. This article punishes those w h o penetrate these walls with increasing severity as the offender approaches the emperor l0 See Article 60 below. "See Article 61 and those following. 12

See Article 62 below

" S e e Article 281 below. ''Following Shiga Shuzo et al., trs., Yakuciui Nikon ritsuryo (Translations of the Code and the Statutes, hereafter referred to as Translations) vi, 13, η 1,1 translate shang fee J l M as imperial pavilion Shiga states that this term refers to rooms smaller than imperial audience halls that were found near the east and west doors of the Palace of the Supreme Ultimate T h e character ko [H should be read ko H , here and below, following the K H C P T S edition. See the discussion in des Rotours, Foncttonnaina, n, 630—631.

Article 59

19

COMMENTARY: Wherever imperial honor guardsmen are stationed the punishment is the same as under the law on unauthorized entry of the gates of an imperial audience hall. Going through a door in the imperial palace where there are no name registers follows this article. SUBCOMMENTARY: In the imperial pavilions refers to there being imperial pavilions on the east and west sides of the Hall of the Supreme Ultimate.There are no name registers at the doors of these halls. Those who are allowed to enter are listed in an imperial edict. Those who enter without authorization are punished by strangulation. Wherever imperial honor guardsmen [52] are stationed refers to their not being stationed within the imperial pavilions but that they enter only when summoned from within. If a person enters where he should not, he receives the same punishment as those who enter the gates of an imperial audience hall without authorization, that is, two and one-half years of penal servitude.Those who carry weapons are pumshed by life exile at a distance of 2,000 H. Imperial palace gates where there are no name registers refer to gates such as that of Manifest Respect and Devout Transformation. Those who go through them, as well as those who enter improperly and without authorization, are punished by strangulation.Where there are imperial honor guardsmen, the punishment is the same as under the law on unauthorized entry of the gates of an imperial audience hall. ARTICLE: 59.2b—If a person carrying a weapon enters the imperial presence, the punishment is decapitation. 1 ' COMMENTARY: 59.2C—Those who do so through confusion or by error {mi-wu S B J S ) may send up a petition. 16 [3a] SUBCOMMENTARY: This refers to carrying weapons into the imperial pavilions as well as entering the gates of the imperial palace. Even though the person is not carrying a weapon, if he comes into the imperial presence the punishment is decapitation in both cases. Through confusion or error refers to where the unauthorized entry was not intentional. In such cases a petition may be sent up requesting the imperial decision. ARTICLE: 59.2d—If a person who is permitted to enter the imperial pavilions does so carrying even a one-inch knife and there are no imperial honor guardsmen present, this is also punished as unauthorized entry. I;

A famous case involving this article concerns the same Ch'ang-sun Wu-chi w h o headed the commission to revise the Code in A.D. 653. However, since he was the emperor's brother-in-law he was not punished. T h e case is included in R o b e r t H . van Gulik's T'ang-yin-pi-shih: "Parallel Cases from under the Pear-Tree," pp. 168—169 "See Vol. i, p. 89, Article 9.

20

Article 60

SUBCOMMENTARY: Permitted to enter the imperial pavilion refers to being on an imperial edict and, when the imperial honor guard is summoned to lead the person in, being allowed to carry such weapons as a sword. But if the person enters carrying even a one-inch dagger where the imperial honor guard is not present, the punishment is for unauthorized entry. If what is carried is not a military weapon or a club, the punishment is only strangulation. But the punishment for carrying a military weapon is decapitation. ARTICLE: 59.2e—Even when a sword is brought in,17 it is not allowed to carry a sword such as is used in warfare. Such offenses are punished as unauthorized entry with the punishment reduced two degrees. SUBCOMMENTARY: Even when a weapon may be brought in, if a person improperly enters carrying a sword that is used in warfare where it is not permitted, the punishment is reduced two degrees to three years of penal servitude. 18 ARTICLE: 59.3—Unauthorized entry of the imperial kitchen is punished by Ufe exile at a distance of 2,000 Ii. 59.4—Unauthorized entry of the imperial gardens where entry is controlled is punished by one year of penal servitude. SuBCOMMENTARY:The imperial kitchen is where the emperor's food is prepared and entry is controlled. Those who enter without permission are punished by life exile at a distance of 2,000 Ii. . . . This refer to the imperial gardens where there is a name register at the gate. [3b] The punishment for these offenses is not increased if the criminal is carrying a weapon or jumps over the wall.

Article 60 Unauthorized Entry Means Passing over the Threshold ARTICLE: 60.1a—All cases of unauthorized entry take passing over the threshold as the deciding factor. Where the person comes to but does not pass over the threshold, for the palace gates, the punishment is eighty blows with the heavy stick. 60.11)—The punishment increases progressively by one degree for the gates of an imperial audience hall and the doors within such halls. "Shiga, Translations, Vi, 11, notes that in the New Tang History (Hsin-T'ang shu $ff (111¾), it is recorded that a high official brought a sword into the imperial audience hall on New Year's day and the day of the Winter Solstice as a part of the ceremonies for those times. 18 A degree of reduction of punishment from death is to life exile at a distance of 3,000 Ii, and from any distance of life exile is to three years of penal servitude. See Vol. I, p. 268, Article 56.

Article 61

21

SuBCOMMENTARY:The threshold defines the door. If a person making an unauthorized entry comes only as far as the doorway and does not pass over the threshold, the punishment is eighty blows with the heavy stick for palace gates. Within the imperial palace grounds are imperial audience hall gates to which entry is not allowed. Cases where a person comes to the threshold of an imperial audience hall gate but does not pass over it are punished by ninety blows with the heavy stick. If inside the gates of an imperial audience hall where imperial guardsmen are stationed a person comes to the threshold of an imperial pavilion door but does not pass over it, the person is punished by one hundred blows of the heavy stick. [53] ARTICLE: 60.2a—Climbing over the wall of an imperial audience hall is punished by strangulation. 60.2b—Climbing over the wall of the imperial palace is punished by life exile at a distance of 3,000 Ii. 60.2c—For climbing over the wall of the imperial city the punishment is reduced one degree. 60.2d—For climbing over the wall of the capital city the punishment is reduced one degree further. SUBCOMMENTARY: Climbing over the wall of an imperial audience hall, no matter whether leaving or entering it, is punished by strangulation. The imperial city refers to walls with such gates as that of the Vermillion Bird, where the offense is punished by three years of penal servitude. Capital city refers to walls with such gates as that of Brilliant Virtue, where the offense is punished by a reduction of one degree further to two and one-half years of penal servitude.

[4a]

Article 61 Those Who Are Not on the Name Registers at the Gates of the Imperial Palace or an Imperial Audience Hall

ARTICLE: 61.1—All cases of those who are not on the name registers at the gates of the imperial palace or imperial audience halls and who enter by falsely assuming another person's name are punished for unauthorized entry.19 SUBCOMMENTARY: Those who are allowed to enter the imperial palace, the imperial audience halls, or the various offices in the capital city are all listed on name registers. Those whose names are not on the name register and yet are permitted to enter are all escorted in. Those who are not listed on a name register and who enter without being escorted by falsely stating that they are on

'See Article 59 above.

22

Article 62

the name register or by assuming another person's name are punished by two years of penal servitude for entering the imperial palace and by two and onehalf years of penal servitude for entering an imperial audience hall. If the person is carrying a weapon, the punishment is increased two degrees in each case. ARTICLE: 61.2a—If the guard does not know the circumstances of assuming another person's name, the punishment is eighty blows with the heavy stick where the offense takes place inside the palace gates. 61.2b—If the offense takes place inside the gates of an imperial audience hall or its interior rooms, the punishment progressively increases one de­ gree. SUBCOMMENTARY: Guard refer to those who are taking their turn standing duty and who are themselves in charge of the name register. Those who are allowed to enter first call out their name; only then may they pass through the gate. (The punishments refer to where) the guard did not know the circumstances of falsi­ fying a name, did not know the person, and did not have the intention of secredy allowing the person to enter. But what is stated is that the guard did not know the circumstances of falsify­ ing a name. That the guard did not know that the person's name was not on the name register and yet the person gained entry by untruthfully 20 saying that it was is not stated. Falsely assuming another person's name is something that can be verified, but it is difficult to know everyone. For this reason the punishment is lighter. For letting someone enter whose name is not on the name register, the guard is punished for unauthorized entry, following the law on not being aware of or deliberately conniving at an offense.21

Article 62 Improper Substitution of Imperial Guardsmen [4b] ARTICLE: 62.1a—All cases in which an imperial guardsman has a person who is not an imperial guardsman falsely assume his name and substitute for him, where the offense takes place within the imperial palace, punish both the imperial guardsman and the substitute by life exile at a distance of 3,000 Ii. 62.1b—If the offense takes place within an imperial audience hall, both are punished by strangulation. SUBCOMMENTARY: Imperial guardsmen refer to all who take turns standing guard in the imperial palace and imperial audience halls, from generals on down to *>Erhfinshould be read ώα fF, following the KHCPTS edition 21 See Article 58 above.

Article 62

23

militiamen. The days when they are on guard duty in the imperial palace or imperial audience hall are recorded in the name register. . . . ARTICLE: 62.2—If an imperial guardsman has a person who is an imperial guards­ 22 man substitute for him, both of them are punished for unauthorized entry. COMMENTARY: This means one who has already finished his turn at standing guard. SUBCOMMENTARY: . . . [54]

ARTICLE: 62.3a—If the officer in charge is not aware of the offense, his punish­ ment is reduced two degrees. 62.3b—If he knows of it and yet allows the substitution, he receives the same punishment as the criminals. COMMENTARY: Officer in charge refers to those who are in a position of com­ mand or supervisory capacity themselves. Other articles on officers in charge follow this article. SUBCOMMENTARY: Officer in charge refers to officers who command soldiers of militia units as well as the imperial guardsman. . . . If the offense of falsely as­ suming a name and substituting was in the militia unit, then the officer of the militia unit with w h o m it originated is the principal and officers of other ranks are accessories.23 If the offense was in the imperial guard, then the officer of the imperial guard with w h o m it originated is the principal and officers of other ranks are punished. The officers of the militia unit are not punished. As for those officers who are themselves in a supervisory capacity, all imperial guardsmen who are standing duty have commanding officers from their own unit. But even if the commanding officer comes from another company, he still comes within the definition of those in a supervisory capacity. Other articles on officers in charge follow this article refers to any article within this section of the Code where there is reference to officers in charge who are not aware of the offense receiving two degrees reduction of punishment and those who know of the offense and yet allow it to occur receiving the same punishment as the criminal.

23

IbId -'See Vol. ι, ρ 216, Article 40, dealing with the collective responsibility of officials.

24

Article 63

Article 63 Entering the Imperial Palace Because of Some Matter and Improperly Staying There Overnight ARTICLE: 63.1—All cases of persons who enter the imperial palace or an imperial audience hall because of some matter and improperly stay there overnight, as well as those who allow them to remain, are punished two degrees less than for unauthorized entry.24 SUBCOMMENTARY: A person who enters the imperial palace or an imperial audience hall because of some matter refers to such reasons as attending an imperial audience, having an audience upon leaving or returning to the capital, carrying things in and out, or doing work there. Such persons are not allowed to stay there overnight, and if they do so both they and those who have allowed them to do so receive two degrees less punishment than for unauthorized entry.25 Thus for the imperial palace the punishment is one [5b] year of penal servitude, and for an imperial audience hall the punishment is one and one-half years of penal servitude. ARTICLE: 63.2a—If men are brought into the imperial palace or an imperial audience hall to carry things in or out or to do work there and the official in charge of the gate lets them in without receiving a written permit (wentieh ~$Cf$i), or if the number of men is in excess of those specified, the punishment is for unauthorized entry in each case. However, should punishment reach the death sentence, it is reduced to life exile with added labor. SUBCOMMENTARY: . . . The official in charge of the gate is required to have a permit before he allows the persons specified above to enter. If he improperly allows them to enter without receiving such a permit, or if the number of persons allowed to enter is in excess of the number specified, he is punished for unauthorized entry. If such persons enter the imperial pavilions or come into the imperial presence, the penalty is death. But the official in charge of the gate is punished by life exile with added labor in each case. ARTICLE: 63.2b—If the officer in charge of bringing these persons in knows the circumstances, he is punished for unauthorized entry with the punishment reduced one degree in each case. 63.2c—If those who enter know the circumstances, their punishment is reduced five degrees further. If they do not know the circumstances, they are not punished.

24

See Article 58 above. Ibid.

25

Article 64

25

SUBCOMMENTARY: . . . If the ofEcer in charge of bringing the persons in knows that the official in charge of the gate has not been given the permit or knows that the number of persons is in excess of the number specified, he is punished for unauthorized entry with the punishment reduced one degree. Thus if they enter the imperial palace, his punishment is one and one-half years of penal servitude. For an imperial audience hall, his punishment is two years of penal servitude. For the imperial pavilions or coming into the presence of the emperor, his punishment is life exile at a distance of 3,000 Ii. . . . [6a; 55] QUERY: If the officer in charge of bringing the persons in knows of the offense, the punishment for unauthorized entry is reduced one degree. But there is no mention of his not knowing of the offense. What is the punishment if he brings these persons in and does not know of the offense? REPLY: In the article above26 on substitution by falsely assuming another person's name, each of the criminals is punished for unauthorized entry. If the officer in charge is not aware of the offense, his punishment is reduced two degrees below that of the criminals.The commentary states: "Other articles on officers in charge follow this article."Thus it is clear that if the official in charge of bringing these persons in does not know of the offense, he is punished two degrees less than if he did know of it. The article above being taken as a standard, there is no new provision here.

Article 64 Those Who Enter the Imperial Palace or an Imperial Audience Hall without Signing the Name Register ARTICLE: 64.1—All cases of those who are permitted to enter the imperial palace or an imperial audience hall but who do so without signing the name register at the gate; or those who improperly enter when not standing duty even though they are on the long-term name register, are punished for unauthorized entry reduced five degrees.27 SUBCOMMENTARY: Permitted to enter the imperial palace or an imperial audience hall refers to all officials in the capital who enter the imperial palace or imperial audience halls signing the name register. Even though they are on the long-term name register refers to long-term 26

See Article 62 above. This article refers to two kinds of persons. The first are officials in the capital who are required to sign the name register whenever they enter. The second are imperial guards who are on the long-term register, which was changed every three months. On these registers, see des Rotours, Fonctionnaires, I, 123. :7

26

Article 65

imperial guardsmen. Though they have one day on duty and two days off, they are all listed on the long-term name register. O n days when they are off duty, they are not allowed to enter the imperial palace or imperial audience halls. . . . [6b] ARTICLE: 64.2—Those whose turn at night duty has not yet come and who improperly stay overnight, or who enter through the western gate when they are on the name register at the eastern gate, receive two degrees further reduction of punishment. 28 SUBCOMMENTARY: Those whose turn at night duty has not yet come refers to officials who are in attendance on the emperor as well as palace officials who take turns standing night duty. As for those whose turn at night duty has not yet come and who improperly stay overnight, or who enter through the western gate when they are listed on the name register at the eastern gate, according to the statute: "Except for those who are allowed to enter through the main gate, all others enter through a side gate and sign the name register."29 Cases of those who should enter through the western gate where they are listed on the name register but rather enter through the eastern gate, or of those whose name is listed on the name register of a side gate but who enter through the main gate, receive a further reduction of two degrees of punishment.This means a reduction of seven degrees of punishment below that for unauthorized entry.

Article 65 Those Who Do Not Leave the Imperial Palace or an Imperial Audience Hall after Their Work There Is Finished ARTICLE: 65.1a—All cases of those who do not leave the imperial palace or an imperial audience hall after their work there is finished are punished by one year of penal servitude if the offense took place in the imperial palace and by two years of penal servitude if the offense takes place in an imperial audience hall. If the offense takes place where the emperor is present, the punishment is strangulation. COMMENTARY: 65.1b—The punishment of those who are required to leave an area which has been cleared and do not is the same.30 28 For a discussion of the work schedules of officials, see Lien-sheng Yang, "Schedules of Work and Rest in Imperial China," in his Studies i« Chinese Institutional History (Cambridge: Harvard University Press, 1961), pp. 18-42. ^Niida, Statutes, p. 359. x Pi-chang § | ft refers to clearing an area of people and weapons before the emperor passes through it.

Article 65

27

SUBCOMMENTARY: . . .When an area is cleared and those who are required to leave it [7a] do not, their punishment is the same as that for being where the emperor is present. QUERY: The Code has a formal provision regarding those who do not leave the imperial palace or an imperial audience hall or a place where the emperor is present after finishing their work there. However, there is no provision concerning not leaving the imperial pavilions. In such a case, what is the punishment? REPLY: In principle, the imperial pavilions are the same as a cleared area. [56] For those who are required to leave and who do not, this section has no provision. But in the commentary above, it states that the punishment for those who are required to leave an area and who do not is the same as that for being where the emperor is present. If there are any ladies of the imperial harem there, the punishment is the same as that for being where the emperor is present, that is, strangulation. But if neither the emperor nor any ladies of the imperial harem are there, the punishment is reduced two degrees. ARTICLE: 65.1C—Those who are not aware of the circumstances or who are present through confusion or error may send up a petition. SUBCOMMENTARY: At the place of work there may be those working in a courtyard, or on the eaves of a house, or in another place, so that they are not aware that their group has left. Or they may lose their way, or mistakenly go to another gate [than the proper one]. Where failure to leave is not intentional, those involved may send up a petition. ARTICLE: 65.2a—If the official in charge of these persons knows of the ofFense, he receives the same punishment as the offenders. If he does not know of the offense, he receives one degree less punishment than the offenders in each case. COMMENTARY: 65.2b—Officials in charge of clearing an area who do not expel everyone from the vicinity are punished following this article in each case. SUBCOMMENTARY: The official in charge of these persons refers to the one who brings persons in. If he knows that some persons have not left and does not report it, [7b] he receives the same punishment as the persons who have not left. . . . Officials in charge of clearing an area refers to those officials who do surveillance of the area and clear it of persons and weapons. If there are persons who have not left an area that should have been cleared, the punishment for the official in charge of clearing the area is comparable to that for an official who brings persons in each case.31 Therefore it is stated that all such cases follow this article. 31

On offenses sentenced as comparable, see Vol. i, p. 261, Article 53.

28

Article 66

ARTICLE: 65.3—If military weapons are left by error in an area that has been cleared, the punishment is one hundred blows with the heavy stick. COMMENTARY: Both a bow and an arrow are required for punishment. SUBCOMMENTARY: All persons within an area that has been cleared must leave it. Neither can military weapons remain there. . . . However, the weapons must be usable, so that there is no punishment for leaving a bow without an arrow or an arrow without a bow.Therefore it is stated that both bows and arrows are necessary for punishment. QUERY: If a crossbow without a quarrel is left by error, or quarrels without a crossbow, or a spear thrower without a spear, what is the punishment? REPLY: Both bows and arrows are necessary for punishment. Crossbow quarrels without a crossbow are no different from ordinary arrows. Neither do crossbows without arrows come within the definition of military weapons. A spear thrower by itself is useless; it is the same as a bow without arrows.

Article 66 Climbing Up to a High Place and Looking into the Imperial Palace ARTICLE: 66.1a—Climbing up to a high place and looking into the imperial palace is punished by one year of penal servitude. 66.1b—In the case of an imperial audience hall, the punishment is increased two degrees. [8a] Subcommentary: It is not permitted to climb up to a high place where one can see into the areas where imperial palaces and imperial audience halls are located. The punishment for looking into the imperial palace is one year of penal servitude, for an imperial audience hall, two years of penal servitude. ARTICLE: 66.2a—Those who walk on the imperial way inside the imperial palace or an imperial audience hall are punished by one year of penal servitude. CoMMENTARY:Where walkways cross the imperial way or beyond where there are gate guards, crossing the imperial way is not punished. [57] SUBCOMMENTARY: Within the grounds of the imperial palaces and imperial audience halls, the imperial way faces the main gate and persons are not allowed to walk on it. N o matter whether a person walks on the imperial way inside the

Article 67

29

imperial palace, imperial audience hall, or the imperial palace city, the punishment is one year of penal servitude. As for crossing the imperial way, there are steps in front of imperial audience halls and walkways inside them. At such places, as well as inside and outside the imperial audience halls where imperial honor guardsmen are stationed, and also for crossing the imperial way beyond where imperial honor guardsmen are stationed, there is no punishment. ARTICLE: 66.2b—If this offense is committed outside the gates of the imperial palace, the punishment is fifty blows with the light stick. 66.3—If any of these offenses is committed by error, the punishment is reduced two degrees. SUBCOMMENTARY: . . . If this offense is committed at the gates of the imperial palace city, it is considered the same as if committed at the gates of the imperial palace. . . .Where a person climbs up to a high place and looks into the imperial palace or an imperial audience hall by error, the punishment is also reduced two degrees.

[8b]

Article 67 Imperial Guardsmen Who Are Accused in a Memorial to the Throne

ARTICLE: In all cases where imperial guardsmen are accused in a memorial to the throne, their officer first takes away their weapons.Violations are punished by one year of penal servitude. COMMENTARY: This refers to those who are on duty within the imperial palace or imperial audience hall. SUBCOMMENTARY: Imperial guardsmen refer to those whose rank is between that of general and militiaman. If they commit a crime, they are accused in a memorial to the throne. Officer refers to the guard's own officer as well as the commanding officer. . . . Cases where officers must take away the weapons of those under their command and do not do so punish only that one person. 32 Imperial guardsmen who are not in the imperial palace are not included within this article.

32

40.

That is, other officials are not involved in collective responsibility. See Vol. I, p. 216, Article

30

Article 68

Article 68 Those Who Are Required To Leave the Imperial Palace or an Imperial Audience Hall and Who Improperly Delay ARTICLE: All cases of those who are required to leave the imperial palace or an imperial audience hall and whose names have been taken off the name registers at the gates and who yet improperly remain and do not leave, or those who have been accused of an offense and an official document (kungwen £ ^ ¾ ) has already been issued forbidding them entry, though their names have not yet been taken off the name registers—any of these who may not enter but who improperly do enter the imperial palace or an imperial audience hall are punished for unauthorized entry.33 SUBCOMMENTARY: Being required to leave the imperial palace or an imperial audience hall refers to leaving for such reasons as changing duties, being sent on a mission, taking leave because of adversities, having completed a tour of service, or being in difficulties. According to the Statutes, "the person's name is taken off the name register on the same day." . . . [9a]

Article 69 Unauthorized Entry into Places Where the Emperor Is Not Present ARTICLE: 69. Ia—In all cases of violation of the law on unauthorized entry of the imperial palace or an imperial audience hall, the punishment is reduced one degree if the emperor is not present in that place. 69.1b—If no ladies of the imperial harem are present, the punishment is reduced one degree further.34 COMMENTARY: 69.1C—For entry into the imperial pavilions or where ladies of the imperial harem are present, there is no reduction of pumshment. SUBCOMMENTARY: In all articles that refer to punishment for unauthorized entry into the imperial palace or an imperial audience hall, there is a reduction of one degree of punishment if the emperor is not present in that place. If there are no ladies of the imperial harem present, [58] the punishment is reduced one degree further. If there is unauthorized entrance into an imperial palace outside the capital

"See Article 58 above. 34 See Article 59 above. This would reduce the punishment either to life exile at a distance of 3,000 Z/ or to three years of penal servitude. Exactly what is meant by the language here— whether presence means the whole building or just a room—is not clear

Article 70

31

where there are imperial guardsmen protecting such a place, the punishment is one year of penal servitude. If a person enters the imperial pavilions or where ladies of the imperial harem are present, the punishment is strangulation. If there are no ladies of the imperial harem present, the punishment is reduced two degrees. ARTICLE: 69.2—However, even if the entry is not unauthorized, if a person improperly and secretly speaks with a lady of the imperial harem or personally serves as a means of exchange of letters or clothing, the punishment is strangulation. SUBCOMMENTARY: The text states: "even if the entry is not unauthorized," that is, the person is one who is allowed to enter the place. . . . [9b] Personally serves as a means of exchange of letters or clothing refers to receiving letters or clothing from the ladies of the imperial harem to carry out of the imperial palace or to bringing letters or clothing from persons outside the imperial palace into the palace and giving them to ladies of the imperial harem. Both of these offenses are punished by strangulation.

Article 70 Changing the Assignment of Honor Guardsmen Which Has Already Been Made ARTICLE: 70.1—All cases in which imperial guardsmen have been assigned to be honor guardsmen and where the officer in charge improperly makes changes in the assignments are punished by one hundred blows with the heavy stick. 70.2—If they do not take up these duties in the proper order, but their assignment is arbitrary, or if they are sent to perform other work, the punishment is the same. SUBCOMMENTARY: According to the ordinance, all militiamen must take their turn acting as imperial guardsmen.35 During this time, the senior officer assigns their places of duty, and each takes turns serving as an honor guard. Once these assignments have been decided, if the officer improperly and without a reason makes changes in them, his punishment is one hundred blows with the heavy stick.Where such changes are necessary he is not punished. . . .Where guardsmen are sent to do private work (for their commander) and if by calculation of the value of their labor the punishment is heavier, then such heavier punishment is sentenced. 36

3s

See note 45 below Here we see an illustration of Article 49 in Vol. i, p. 253, which provides that where more

36

32

Article 71

Article 71 Reception of an Imperial Edict to Open the Gates of the Imperial Palace or an Imperial Audience Hall at Night ARTICLE: 71.1a—All cases where an imperial edict using a tally (fu ^ ) is received to open the gates of the imperial palace or an imperial audience hall at night, if the gates are opened without examining the tally, even though the halves match, are punished by three years of penal servitude. 37 [10a] 71.1b—If upon examination the halves of the tally do not match yet the gate is opened, the punishment is life exile at a distance of 2,000 Ii. 71.1c—If the gates are opened or locked without authorization and without having received an imperial edict, the punishment is strangulation. SuBCOMMENTARY:With regard to an imperial edict using a tally being received to open the gates of the imperial palace or an imperial audience hall at night, according to the ordinance on overseeing gates, the person who receives the imperial edict makes a record of why the gate has to be opened and a list of those persons who enter or leave.This is sent to the Department of State, which then sends it to the Imperial Chancellery. Imperial guardsmen are stationed at each gate within the imperial palace and imperial city. Overseeing the gate there are marshals, generals, colonels, majors, commanders, and deputy commanders of militia units, of whom one each goes to the imperial palace to have the edict reconfirmed. If the emperor permits the gates to be opened, they match the tally and key to the gates. The officer overseeing the gate then inspects the gate guardsmen and a company of troops is stationed inside and outside of the gate that is to be opened. Torches are lit and the halves of the tally are examined to see if they match. Only then is the gate opened. . . . [59] ARTICLE: 71.2a—If the tally is the wrong one, or if the bolt is fastened wrongly, or if the lock is opened without the key, the punishment is one hundred blows with the heavy stick. 71.2b—If, when the gate must be locked, through forgetfulness or error the bolt is not fastened, or if, when it must be opened, the cylinder and bolt are destroyed in opening it, the punishment is one year of penal servitude. SUBCOMMENTARY: If the tally is the wrong one means that it is not a tally for than one article may be appropriate to the offense, whichever carries the heavier punishment wil! be the basis for the sentence. "See des Rotours, "Les insignes." The tally in two parts was used by Chinese governments from early times down until the end of the empire as a means of verifying communications (mm the capital to the provinces.

Article 71

33

opening or locking gates.38 If the bolt is fastened wrongly means that the usual method is not followed. . . . [10b] ARTICLE: 71.3a—If such offenses are committed at the gates of the imperial city, the punishment is reduced one degree below that for the gates of the imperial palace. 71.3b—If such offenses are committed at the gates of the capital city, the punishment is reduced one degree further. SUBCOMMENTARY: . . .

ARTICLE: 71.4a—If, when the gates of the imperial palace or an imperial audience hall are locked, there is a delay in returning the key, in the case of the gates of an imperial audience hall the punishment is one hundred blows with the heavy stick. If a whole night passes, the punishment is increased one degree with an increase of one degree further for each additional night. 71.4b—For gates other than those of the imperial palace, the punishment is proportionally reduced one degree. 71.5—If there is a delay in issuing keys, there is a proportional reduction of one degree of punishment in each case. SUBCOMMENTARY: According to the ordinance on overseeing gates, when the emperor is resident, the keys to the gates of the imperial palace city and the gates of the imperial city are given out every evening at eight k'o, the gates are locked,39 and the keys are returned at two keng, two tien. The keys to the capital city are given out every evening at thirteen k'o, the gates are locked, and the keys are returned at two keng, two tien. If this time is exceeded without their being returned, this is called a delay in returning the keys. . . .As for delays in issuing keys, according to the ordinance on overseeing gates, the keys to the gates of the imperial palace and the imperial palace city are given out at four keng, two tien, and the keys to the gates of the capital city at four keng, one tien. . . . When the emperor is in the Palace of Great Brilliance or the Palace of Flourishing Happiness, or in the Eastern Capital, in accordance with the ordinance, the return or issuance of keys each has a time. Where there is a violation, sentencing follows this article.

38 Nnda, Statutes, p. 360, states that the name of the gate to which they were applicable was on each of the tallies. 39 On the difficult question as to what time these directions about locking the gates meant, see Joseph Needham et al, Heavenly Clockwork (Cambridge: Cambridge University Press, 1986), pp. 199 if. There was a series of drum towers in the capital that announced the time. Not only the palace gates were locked, but the city and even ward gates were locked, and movement about was strictly regulated.Violation of this curfew was punished by twenty blows with the light stick. See Article 406 below, and Twitchett, "The T'ang Market System," pp. 211-212.

34

Article 72

Article 72 Entering or Leaving the Imperial Palace or an Imperial Audience Hall at Night Is Forbidden ARTICLE: 72.1a—All cases of entry of the gates of the imperial palace or of an imperial audience hall, none of which may be entered or left at night even though the offender's name is listed on the name register, are punished for unauthorized entry.40 [ l i b ] 72.1b—Such entry where the offender's name is not listed on the name register increases the punishment by two degrees. 72.1c—If weapons are carried into an imperial audience hall, the punishment is strangulation. 72.2—Those who leave at night are punished by [60] eighty blows with the heavy stick. Subcommentary: Persons whose names are listed on the name registers at the gates of the imperial palace or an imperial audience hall are allowed to enter or leave during the daytime. But if they make an improper entry while the gates are opened or locked at night, they are punished for unauthorized entry. . . . ARTICLE: 72.3a—Those who are allowed to leave or enter and who bring others with them when they do so are punished for unauthorized entry in each case. 72.3b—If the persons who are brought in or out know the circumstances, their punishment is reduced one degree. If they do not know the circumstances, they are not punished. Subcommentary: . . . Knowing the circumstances refers to those persons who are brought in or out knowing that they are not on the list. . . .

Article 73 Shooting Arrows in the Direction of the Imperial Palace or an Imperial Audience Hall [12a] ARTICLE: 73.1a—All cases of shooting arrows in the direction of the imperial palace or an imperial audience hall are punished by two years of penal servitude in the case of an imperial palace wall, with one degree of punishment added in the case of the wall of an imperial audience hall.

"There is no definition given in the Code as to when "night" begins or ends. Unauthorized entry is covered in Article 58 above.

Article 73

35

COMMENTARY: This means that the force of the arrow shot is sufficient to reach these places. Article 73.ID—If the arrow enters either of these buildings, one degree of punishment is added in each case. 73.1c—If the arrow enters the imperial pavilions, the punishment is strangulation. If it enters a place where the emperor is present, the punishment is decapitation. SUBCOMMENTARY: . . . If the emperor is present means that the emperor is present in the imperial palace or an imperial audience hall. If the emperor is not present, the punishment is reduced one degree in each case. If there are no ladies of the imperial harem there either, the punishment is reduced one degree further. All of these cases assume that the arrow reaches the imperial palace or an imperial audience hall. If the force of the arrow would have reached the imperial palace or an imperial audience hall yet the shot did not hit them, the punishment is the heavier for doing what ought not to be done. 41 If the force of the arrow would not have reached any of these places, there is no punishment. QUERY: H O W is the effect of the emperor being present in the imperial palace or an imperial audience hall to be known? REPLY: Shooting toward the wall of the imperial palace is punished by two years of penal servitude; toward the wall of an imperial audience hall, by two and one-half years of penal servitude.The punishment is exacdy in accord with that for unauthorized entry.42 In the article above on unauthorized entry of the imperial palace or an imperial audience hall, if the emperor is not present, the punishment is reduced one degree in each case. And if there are no ladies of the imperial harem present, the punishment is reduced one degree further. Thus it can be verified that if neither the emperor nor any ladies of the imperial harem are present, the punishment is three years of penal servitude. In this article, if the arrow enters the imperial pavilions the punishment is strangulation, and if the emperor is present, decapitation. That the punishment is the same as that for unauthorized entry shows clearly that the emperor must be in the imperial palace. If he is not, [12b] all of these cases follow the article above on reduction of punishment. So if the arrow enters the imperial palace, the punishment is one and one-half years of penal servitude. It is two years of penal servitude for an imperial audience hall, and three years of penal servitude for the imperial pavilions.43 "See Article 450 below. J -See Article 59 above. 43 See Vol. i, pp. 268 ff, Article 56. Here it is established that a reduction of one degree of punishment reduces the death penalty to life exile at a distance of 3,000 Ii, and life exile to three years of penal servitude.Thus reduction of two degrees of punishment from decapitation would be three years of penal servitude.

36

Article 74

[61] ARTICLE: 73.2—Slinging a missile, or throwing a tile or stone are punished one degree less. COMMENTARY: Here also the man's strength must be sufficient to reach the buildings. SUBCOMMENTARY: . . . Here also the man's strength must be sufficient to reach the buildings means that the missile or the tile or stone thrown must reach the imperial palace or an imperial audience hall for the act to be punished. If the missile is thrown with sufficient force to reach the building but does not hit it, the punishment again is the heavier for doing what ought not to be done, but reduced one degree. ARTICLE: 73.3—If a person is killed or wounded, the punishment is for intentional killing or wounding. SUBCOMMENTARY: Cases of shooting an arrow, slinging a missile, or throwing a tile or stone so that a person is killed or wounded are punished for intentional killing or wounding. If the person is killed, the punishment is decapitation; if the person is wounded, the punishment is that for killing or wounding in an affray increased one degree.44 ARTICLE: 73.4a—If an imperial guardsman through error draws a sword in a place where the emperor is present, he is punished by strangulation. 73.4b—If those standing nearby do not immediately seize and stop him, they are punished by life exile at a distance of 3,000 Ii. [13a] SUBCOMMENTARY: Imperial guardsmen always carry weapons and are allowed to carry swords. But if the emperor is present they may not use these weapons without an imperial order and may not improperly draw their swords. . . . Imperial guardsmen are brought up as an example to make it clear that other persons may not draw swords in a place where the emperor is present. If they do so through error and those standing nearby do not immediately seize and stop them, the punishment of these latter is exacdy comparable to that for imperial guardsmen.

Article 74 Interference with the Imperial Cortege ARTICLE: 74.1a—All cases of interference with the imperial cortege are punished by one year of penal servitude. •"See Article 302 below. The punishment would be seventy blows with the heavy stick.

Article 75

31

74.1b—Interfering with the three ranks of the imperial guardsmen is punished by two years of penal servitude. COMMENTARY: This means entering the ranks of the guardsmen. SUBCOMMENTARY: . . .AS for the officer in charge of the imperial guardsmen, if he dehberately connives at the offense, he receives the same punishment as the offender. If he is not aware of the offense, his punishment is reduced two degrees. ARTICLE: 74.1c—If the offense is committed by mistake, the punishment is reduced two degrees. SUBCOMMENTARY: . . .

[13b] ARTICLE: 74.2a—If domestic animals run loose and enter the gates of the imperial palace because the guardsmen are not prepared, they are punished by one hundred blows with the heavy stick. 74.2b—If the domestic animals only run loose among the imperial guardsmen, they are punished by eighty blows with the heavy stick. [62] Subcommentary: . . . Where the domestic animals enter the gates of the imperial palace city, the punishment is the same. The Code has no provision about their entering the gates of an imperial audience hall, but the punishment is again the same as for the gates of the imperial palace. . . .

Article 75 Imperial Guardsmen Who Do Not Come To Serve Their Turn of Duty43 ARTICLE: All cases of imperial guardsmen who do not come to serve their turn of duty or who are in violation because of being absent during their turn are punished by forty blows with the light stick for the first day, increasing one degree for each further three days. When the punishment exceeds one hundred blows with the heavy stick, it increases one degree for each further five days, with a limit of two years of penal servitude. 45 The Code envisions a system of militia who took turns of about one month a year serving m the military, sometimes as imperial guardsmen. In fact, this system, which had been instituted during the first years of the dynasty had long since been abandoned. But like the equal-field system (chun-tien i~Iffi), offenses against which are dealt with in several articles beginning with number 173, the Code assumes that it is still in existence. On the militia system, see des Rotours, Fonctionnaires, i, pp. xni-lxxi, and 105 ff.

38

Article 75

SUBCOMMENTARY: . . .

QUERY: An imperial guardsman's turn of duty has five days remaining. However, he is in violation because of an absence of one day from standing duty. Are the remaining four days in violation the only ones that may cumulatively count in reaching the limit of punishment that can be sentenced? REPLY:There is a time limit to a turn of duty.Within that time limit if there is a reason, an imperial guardsman may apply for absence, and when the days of standing guard are completed, his turn is completed.The punishment is according to the number of days for which he is in violation by not standing duty.The guardsman's turn of duty would be over after four days and he would not then be obligated to request leave of absence. So how could these days cumulatively be counted in punishment? Aside from these four days, we can clearly know that there is no punishment. FURTHER QUERY: All cases of imperial guardsmen who do not come to serve their turn of duty or who are in violation because of being absent are limited to punishment of two years of penal servitude. Now this punishment is limited to thirty-four days of absence, which is more than a month's turn at duty.This does not seem consistent with reason. REPLY: According to the ordinance, those who live 2,000 Ii from the capital stand a sixty-day turn of duty in the three kinds of guards.46 Thus Ling-nan is the limit. Punishing a maximum of thirty-four days is a provision created to include these distant provinces. 46 WhUe no ordinance has survived that states this. Article 6 of the Statutes on Military Organization has the same language. See Nnda, Statutes, p. 369. Ling-nan corresponds to the southern part of present-day Kuangtung Province and in T'ang times would have included parts of Vietnam.The three kinds of guards is a collective name for the three garrisons that were stationed in the capital.

CHAPTER

VIII

Article 76 [la; 62}

Imperial Guardsmen's Weapons

ARTICLE: 76.1a—Imperial guardsmen may not put aside their weapons.Violations are punished by sixty blows with the heavy stick. 76.1b—If they improperly leave their posts of duty, the punishment is increased one degree. 76.1c—If they pass the night in another place, the punishment is increased one degree further. 76.2—For commanding officers and those of higher rank, the punishment is increased two degrees in each case. SUBCOMMENTARY: Weapons refer to such things as swords that are usually worn at the waist, as well as armor, lances, bows, and arrows. At the times when they must be carried, they may not be put aside. When they are not required to be carried or worn, still they must be kept close by. . . . [63} Commanding officers and those of higher rank refer to officers between the ranks of vice-commander and general-in-chief. If such officers put aside their weapons, their punishment is eighty blows with the heavy stick. If they improperly leave their posts of duty, their punishment is ninety blows with the heavy stick, and if they pass the night in another place, their punishment is one hundred blows with the heavy stick. This is increasing the punishment by two degrees in each case.

Article 77 [lb]

The Gates of Camps in Which the Emperor Is Staying while Traveling

ARTICLE: AU cases concerning the camps in which the emperor is staying while traveling consider the outer camp gates and the secondary camp gates to be the same as the imperial palace gates. The curtained doors inside the camp are considered to be the same as the gates of an imperial audience hall, and the door to the imperial tent is considered to be the same as that to the imperial pavilions. Entry into the imperial presence follows the article above.1

'See Article 59 above.

40

Article 78

SUBCOMMENTARY:A camp in which the emperor is staying while traveling refers to the place which the imperial cortege has reached and where it is resting. The outer camp gates and the secondary camp gates are considered to be the same as the imperial palace gates, and unauthorized entry is punished by two years of penal servitude.The inner camp's curtained doors are considered to be the same as the gates of an imperial audience hall, and unauthorized entry is punished by two and one-half years of penal servitude. The door to the imperial tent is considered to be the same as that to the imperial pavilions, and unauthorized entry is punished by strangulation. Entry into the imperial presence follows the article above and is punished by decapitation. All other offenses that are punished for unauthorized entry, whether they require increase or decrease of punishment, are treated the same as under the law on the actual imperial palace or an imperial audience hall.

Article 78 Night Patrols inside or outside the Imperial Palace ARTICLE: All cases of offenses committed that involve night patrols inside or outside the imperial palace where the officer in charge who is standing duty is not aware of them, reduce his punishment two degrees below that of the guardsmen. SUBCOMMENTARY: Night patrols inside and outside the palace involve both sentry stations and drum stations.The persons at these places are considered guardsmen. There are also inspectors and watchmen who patrol during the night. All of these persons constitute the night patrol. If an offense is committed at the place of inspection or patrolling and the officer in charge of the night patrol is not aware of it, his punishment is [2a] reduced two degrees below that of the guardsmen. This refers to the article above on unauthorized entry 2 as well as climbing over a wall, where if the guardsmen are not aware of the offense, their punishment is reduced two degrees [below that of the actual criminals]. The commentary states:"Guardsmen refer to those who are taking their turn standing duty."3 If the officer in charge of the night patrol is not aware of the crime, his punishment is reduced two degrees below those who are taking their turn standing duty in each case.

2

See Articles 58, 59, 60, and 61 above. See Article 58 above.

3

Article 79

41

Article 79 Punishment for Offenses Involving the Imperial Ancestral Temple, Altar of the Soil, and the Imperial Gardens ARTICLE: 79.1a—All cases where a specific article does not provide punishment for oifenses involving the imperial ancestral temple, the altar of the soil, and the imperial gardens, punish crimes involving the imperial ancestral temple one degree less than those involving the imperial palace. 79.1b—Offenses involving the Altar of the Soil are punished one degree less than those involving the imperial ancestral temple. 79.1c—Offenses involving the imperial gardens are punished the same as those involving the Altar of the Soil. SUBCOMMENTARY: Specific articles provide punishments for the crimes of unauthorized entry of the imperial ancestral temple, the altar of the soil, and the imperial gardens. Instances where no punishment is provided refer to such offenses as coming to the threshold without passing over the doorsill4 of such places, or entering them for some reason and improperly passing the night. 3 For each of these cases, no matter what the degree of seriousness, those offenses involving the imperial ancestral temple are punished one degree less than those concerned with the imperial palace, those involving the Altar of the Soil are punished one degree less than those concerned with the Altar of the Soil, and those involving the imperial gardens are punished the same as those involving those concerned with the Altar of the Soil. ARTICLE: 79.2—Thus if a person shoots an arrow, slings a missile, or throws tiles or rocks at the imperial ancestral temple, the Altar of the Soil, or the imperial garden and kills or wounds someone, the punishment is for killing or wounding in an affray.6 Where the punishment reaches the death penalty, life exile with added labor is substituted. SUBCOMMENTARY: The imperial ancestral temple, the altar of the soil, and the imperial gardens are not places where persons shoot arrows, sling missiles, or throw tiles or stones. . . . [2b] If an arrow wounds someone, the punishment is two years of penal servitude. If one eye is blinded, the punishment is three years of penal servitude, and so forth. Where the punishment reaches the death penalty, life exile with added labor is substituted. 7 4

See Article 60 above. See Article 63 above. 6 See Articles 302, 303, 304, and 305 below, depending on the nature of the offense as described here in the Subcommentary. 7 Tai, Specific Articles, p. 17, points out that the reason for the decrease is set forth in the 5

42

Article 80

[64] ARTICLE: 79.3—If an arrow reaches any of the company of guardsmen, honor guardsmen, or those who clear an area [for an imperial cortege], the punishment is strangulation. SUBCOMMENTARY: Imperial corteges are all accompanied by a company of guardsmen, honor guardsmen, and as well by persons who clear the area. If someone carelessly shoots an arrow into any of these groups, the punishment is strangulation.

Article 80 Standing Guard under a False Name at Such Gates as Those of the Imperial Palace ARTICLE: 80.1a—All cases where guardsmen at the gates of the imperial palace city or the imperial city have persons who are not allowed to be guards replace them by using a false name, both the substitute and the person who was substituted for are punished by one year of penal servitude. SUBCOMMENTARY.This refers to the guardsmen outside the gates of the walls of the imperial palace city or at sentry substations such as that at the Gate of the R e d Bird where there are guardsmen. . . . ARTICLE: 80.1b—If the person who substitutes is one who is allowed to be a guardsman, both the substitute and the person who was substituted for are punished by one hundred blows with the heavy stick. 80.2—For the gates of the capital city, the punishment of both of them is reduced one degree. SUBCOMMENTARY: . . . For the gates of the capital city, the punishment of both of them is reduced one degree refers to such gates as the Gate of Brilliant Virtue. Where the substitute is a person who is not allowed to be a guardsman, the punishment is reduced one degree below one year of penal servitude, and where the substitute is a person who is allowed to be a guardsman, the punishment is reduced one degree below one hundred blows with the heavy stick. ARTICLE: 80.3—For guardsmen standing duty at other places, the punishment is reduced two degrees further in each case. 80.4—Other offenses that require punishment reduce it three degrees below that for imperial guardsmen.

Subcommentary to Article 393 below, which states that it is because the killing or wounding was not intentional.

Article 81

43

SUBCOMMENTARY: At other places refers to gates other than those of the imperial city or the capital city including other main road guard stations both inside and outside the capital as well as other places where guards may be stationed. . . . Other offenses that require punishment refer to other offenses that do not 8 involve replacement by using a false name, such as weapons being put aside, improperly leaving the post of duty, making arbitrary assignments, or sending persons to perform other work. 9 Where the specific article requires prosecution, the punishment is reduced three degrees in each case below that of imperial guardsmen. However, desertion of a post or violations concerned with standing duty do not come within the principle on reduction of punishment. 10 QUERY: Cases where guardsmen have persons who are not allowed to be guardsmen replace them by using a false name and these persons enter the imperial palace, punish both the substitute and the person who was substituted for by life exile at a distance of 3,000 Ii if they enter the imperial palace. If these persons enter an imperial audience hall, the punishment is strangulation. If the offense is discovered before they have entered the imperial palace or an imperial audience hall, what is the punishment? [3b] REPLY: Having a person who is not allowed to be a guardsman substitute is a more serious offense than unauthorized entry. If the person has not yet arrived at the duty post but is inside the imperial palace or an imperial audience hall when the offense is discovered, the punishment is for unauthorized entry. [65] There is no formal article covering discovery of the offense before the gates of the imperial palace or an imperial audience hall have been entered. It is proper that the punishment should be the heavier doing what ought not to be done, that is, eighty blows with the heavy stick. If the person has not yet entered the gates of the imperial palace, the punishment should be the lesser for doing what ought not to be done, that is, forty blows with the light stick."

Article 81 Climbing over the Outer Walls or Walls inside Such Places as Prefecture Cities, Garrisons, and Outposts ARTICLE: 81 .la-i—All cases of climbing over the outer wall or walls inside prefecture cities, garrison, outposts, or the wall surrounding an arsenal are punished by one year of penal servitude. "The blank space here should readjei $fc, following the SPTK edition. 'These offenses are covered in Articles 76 and 70. "These offenses are covered in Articles 460 and 75. "Article 450 below is the "catch-all," which is often used in the Code. See the discussion in Vol. i, pp. 36-38.

44

Article 81 81 .la-ii—In the case of the outer wall of a county seat, the punishment is ninety blows with the heavy stick.

COMMENTARY: All these refer to gates where entry is prohibited. SUBCOMMENTARY: All prefectures, garrisons, and outposts have outer walls. . . . Where there are no walls, bamboo and palisade fences are considered to be walls. The commentary states: "All these refers to gates where entry is prohibited." Prefecture governments, garrisons, and outposts all have outer walls. If a person does not climb over the outer wall but only over a wall inside a prefecture or a garrison, the maximum punishment is that given in the text below for climbing over the wall surrounding a government building. ARTICLE: 81 .la-iii—Climbing over the wall surrounding a government building or the wall or bamboo fence surrounding a city ward or market is punished by ninety blows with the heavy stick. 81.1b—Encroaching upon or destroying such walls is punished the same. SUBCOMMENTARY: Public buildings have reference to those occupied by officials. They all have surrounding walls. City wards and markets refer to those in the capital city as well as those in prefectures and counties. . . Encroaching refers to encroaching upon land, while destroying refers to destroying outer walls, or walls or bamboo fences surrounding a public building. The punishment is the same as for climbing over any of them in each case. Therefore it is said to be the same. COMMENTARY: 8 1 . 1 C — T h e punishment for entering or leaving through canals and ditches is the same as for climbing over walls. 81.Id—The punishment for climbing onto but not over such walls is reduced one degree. Not climbing over walls in other articles follows this article. SUBCOMMENTARY: Canals and ditches are channels through which water flows. Entering or leaving through these channels is punished the same as climbing over a wall. Climbing onto but not over refers to being on top of an outer wall, interior wall, or bamboo fence, or being in a canal or ditch but not yet having climbed over or passed through it. The punishment is reduced one degree in each case. Not having climbed over or passed through in other articles follows this article refers to where a person has climbed onto but not over the walls of the imperial city, the capital city, or the walls surrounding the imperial palace or an imperial audience hall, or customs barrier, ford, or other place where entry is controlled. The punishment is reduced one degree in each case.

Article 8i

45

ARTICLE: 81.2a-i—If gates in the walls of prefecture cities, garrisons, customs barriers, outposts, or arsenals must be locked, yet by carelessness or error the bolt is not fastened, or where such gates must be opened and in opening them the cylinder and bolt are destroyed, the punishment is eighty blows with the heavy stick in each case. SUBCOMMENTARY: . . .

[66] ARTICLE: 81.2a-ii—If the bolt is fastened wrongly, or the lock is opened without the key, the punishment is sixty blows with the heavy stick. 81.2b—For other gates, the punishment is reduced two degrees in each case. SUBCOMMENTARY: Fastening the bolt wrongly refers to the cylinder and bolt not matching. The lock being opened without the key means opening the lock without using the key. The punishment is sixty blows with the heavy stick in both cases. Other gates refer to such gates as those of counties, city wards, or markets. Government offices have gates where entry is controlled.Where they must be locked, yet by carelessness or error the bolt is not fastened, or where they must be opened and the cylinder and bolt are destroyed in opening them, the punishment is sixty blows with the heavy stick in each case. If the bolt is fastened wrongly, or the lock is opened without using the key, the punishment is forty blows with the light stick in each case. Therefore it is stated that for other gates, in each case, the punishment is reduced two degrees. ARTICLE: 81.3a—For unauthorized opening or locking of gates, the punishment is increased two degrees in each case. 81.3b—If the officer in charge of the outer wall opens or locks the gate without a reason, the punishment is the same as for climbing over a wall. 81.3c—If the gate has not yet been opened or locked, the punishment is reduced one degree below that for when the gate has already been opened or locked in each case. COMMENTARY: Other articles where the gate has not yet been opened or locked follow this article. SUBCOMMENTARY: Unauthorized refers to opening or locking at the wrong time. Unauthorized opening or locking the gates of a prefecture city, a garrison, an outpost or an arsenal at the wrong time increases the punishment for climbing over a wall two degrees, so that the sentence is to two years of penal servitude. Unauthorized opening and closing of the gates in the outer walls of county seats and areas inside it also increases the punishment two degrees. The officer in charge of the outer wall opening or locking the gate without a reason refers to the senior officer who is responsible for the key not foUowing

46

Article 82

the ordinance in using the key to open or lock the gate of a prefecture city, garrison, outpost, or other place. . . . [5a] If a ward headman or a market director opens or locks the gates of a ward or market at the wrong time, the punishment is the same as that for the ofEcer in charge of the city wall. . . . Where there is a reason, it is permitted to open the gates. Thus when postal relay couriers coming in an emergency, as well as imperial decrees or imperial edicts that are urgent, arrive at a prefecture or county at an improper time, and, upon examination by the officer in charge of the outer wall, this proves to be the case, then, following the law, he may open the gates. According to the Ordinance on Overseeing the Gates: "In the capital city, there are sentry stations, drum stations, and night watchmen at night in every street. When the sound of the drum ceases, then it is forbidden for people to move about. In the morning, when the drum sounds, then moving about is allowed. However, government couriers who are carrying written dispatches or marriage processions are allowed to move about."The commentary states: "It is necessary to obtain a permit from the district.Those who are going to announce death or sickness, or who are seeking a doctor or medicine, and who are carrying a written permit from their own ward are allowed to move about." 12 For those who must be allowed to move about, the gates of the ward or market are opened. Where there is an alarm, or prisoners have been seized, the gates of a prefecture or county seat are opened even if it is at the wrong time. As for the gate having not yet been opened or locked: when persons have not yet gone through the gate, it is considered to have not yet been opened; when persons are still going through the gate, it is considered to have not yet been locked. In each case, the punishment is reduced one degree below that for when the gate has already been opened or locked. Other articles refer to gates where entry is controlled other than those of the imperial palace or an imperial audience hall. For all of these the punishment is reduced one degree if the offense occurs before they have not yet been opened or locked.

Article 82 Illegally™ Passing through a Customs Barrier ARTICLE: 82.1a—All cases of illegally passing through a customs barrier (kuan IS) are punished by one year of penal servitude. 82.1b—For going around it, the punishment is increased one degree.

12

That is, the commentary to this ordinance, which has not itself survived other than here. "The character ssu U , which I have here translated as illegally also means private or secret and can refer to contraband. It is difficult in some contexts to know which is the proper English translation.

Article 82

47

COMMENTARY: Going around means not passing through the gate. [5b; 67] SUBCOMMENTARY: There are customs barriers both at waterside and on land. At both of these types of customs barriers entry is controlled. Travelers who pass through must all have ofEcial documents.This means that the tallies or warrants (chuan ^ ) of couriers are examined, that the emergency exchange documents (t'ieh ]$£) of post riders are verified, that troops of soldiers and men 4 [doing corvee or miscellaneous labor services] are on name registers.' In all other cases, a passport (kuo-so ιΐ§^τ) must be applied for so as to pass through. If a person does not have an ofEcial document but passes through the customs barrier illegally, the punishment is one year of penal servitude. . . . Going around refers to not going through the gate at a customs barrier and not using the ferry at a ford. These offenses are punished by one and one-half years of penal servitude. ARTICLE: 8 2 . 1 C — I f a person has already reached the place where he will go around but has not yet gone by, the punishment is reduced five degrees. COMMENTARY: This means that the person has already reached the place where the officials must control entry. Other articles on not yet going by follow this one. SUBCOMMENTARY: . . . Other articles on not yet going by follow this one refers to places where entry is controlled, such as the outer walls of cities, walls inside cities, bamboo fences, or frontier customs barriers. ARTICLE: 82.2a—If there is an unjust sentence of penal servitude or more in which a grievance has been suppressed and not reported,' 3 as well as where the (surveillance) commissioner (shih 1¾)'6 has reviewed the sentence and found it to be unreasonable, he may make a report of the circumstances at the closest customs barrier, prefecture, or county.The ofEcial who is present must then make a report of the circumstances to the Department of State and send the person who has made the accusation to the capital. If the sentence should not have been penal servitude or more and has been wrongly set forth, the official is punished by such mistaken sentence.

''The blank space here should be read Ii | § , following the SPTK edition. The characters ting ~f and/n ^Z both refer to men. See Chapter 28, note 40. 15 Niida, Statutes, p. 600, states that where a criminal will not accept the decision in his case, a statement of nonacceptance of the judgment must be forwarded to the Department of State Affairs. Niida, Statutes, p. 759, provides that these commissioners can set aside an unjust decision. "Tai, Specific Articles, p. 20, points out that this commissioner is, in fact, a surveillance commissioner, one of a number of types of officials who were sent out from the capital to inspect the performance of local officials

48

Article 83

[6a] 82.2b—If an official suppresses the report and does not send it up, his punishment is two degrees less than that for the crime that was the basis of the accusation. SUBCOMMENTARY: If outside the capital jurisdiction a person has been unjustly sentenced by an official to a punishment of penal servitude or more, or in a case where the punishment should be disenrollment or resignation from office and though the original sentence should not have been penal servitude the person was punished the same as under the law on penal servitude, and the sentence has not yet been reported, as well as where the (surveillance) commissioner has reviewed the sentence and found it to be unreasonable—where the text states "as well as" means that the (surveillance) commissioner has not yet reviewed it—he may make a report of the circumstances at the nearest customs barrier, prefecture, or county. . . . If upon examination there was no offense that should have been sentenced by penal servitude or more, and there has been a wrongful accusation, the person who made the wrongful accusation of a crime that would be punished by penal servitude or life exile is punished by penal servitude or life exile. If the wrongful accusation was of a crime that would be punished by death, the person who made the wrongful accusation is punished by death. If the wrongful accusation is of a crime that would be punished by disenrollment or resignation from office, then the law on equivalents is followed.17 This refers to where originally there was no such crime and the accusation is wrong. Where there really was such a crime and the punishment has been decreased or increased, or the accusation was not accurate, the case does not follow the sentences given here. Being imprisoned or not depends upon the crime of which the person is being accused and is in accordance with the statute.18 The accusation must be transmitted [to the capital] . . . .

Article 83 Those Who Should Not Be Allowed To Pass through a Customs Barrier ARTICLE: 83.1a—All cases of issuing passports to persons who should not be allowed to pass through a customs barrier or of falsifying a name in applying for a passport and so passing [6b] through a customs barrier are punished by one year of penal servitude.

"The punishment for false accusation comes under the law on Article 24 in Vol. i, pp. 44 ff, which also gives a table of equivalents in beating for disenrollment and replacement by office. 18 There were varying levels of detention depending upon the prisoner's status and the seriousness of the crime. See Nnda, Statutes, pp. 781—783.

Article 83

49

COMMENTARY: Those who take such passports and pass through a customs barrier receive the same punishment. [68] SUBCOMMENTARY: Those who are not allowed to pass through a customs barrier refers to such persons as are on military service, are standing duty at the imperial palace, or criminals—none of whom may properly be issued passports by officials. Those to whom a passport is given improperly as well as those who falsify another person's name in applying for a passport and so pass through are punished by one year of penal servitude. ARTICLE: 83.1b—Those who give their own passport to another person, as well as those who take another person's passport and pass through a customs barrier, also receive this punishment. SUBCOMMENTARY: . . . The text of the article states that in all cases those who pass through a customs barrier are punished by one year of penal servitude.Thus it may be clearly known that those who have not yet passed through should not be sentenced to penal servitude. If the officer in charge of the customs barrier has not yet validated the passport, the sentence follows the section on going around but not yet having passed by the customs barrier, where the punishment is reduced five degrees in each case.19 Where the passport has already been validated but the person has not yet passed through the customs barrier, the offense is the same as in the section on not yet having passed the customs barrier, with the punishment reduced one degree. 20 Thus where a passport has been given to another person, it is passing through the customs barrier that constitutes an offense. If a person has received a passport but has not yet passed through the customs barrier, it is considered the same as under the section on reduction of punishment. Cases of issuing passports to those who should not be issued passports do not come within the section on reduction of punishment. ARTICLE: 83.1c—If persons of the same family falsify each other's names, the punishment is eighty blows with the heavy stick. 83.2a—If the officer in charge of issuing passports or the official in charge of the customs barrier knows the circumstances, they receive the same punishment in each case. 83.2b—If they do not know the circumstances, they are not punished. 83.3a—If horses are taken past without going through the customs barrier, or taken though with false identification, or secretly, the punishment is reduced two degrees below that for men in each case. "See Article 82 above. ^See Article 81 above.

50

Article 84 83.3b—For other [7a] domestic animals, the punishment is reduced two degrees further.

COMMENTARY: 83.3C—Falsification of the identification of animals belonging to the same family is not prosecuted. SUBCOMMENTARY: Persons of the same family include both commoners and members of the inferior classes. . . . The character "each" is not used because those whose names are falsified are not punished. As for falsifying names and passing through the customs barrier, illegally pass­ ing through a customs barrier, or going around a customs barrier, if the offense was committed by the decision of the head of the household, even if he does not go through the customs barrier, he alone is prosecuted. This comes under the principle where when members of a household commit a crime collectively, only the person highest in generation or oldest of the same generation is pros­ ecuted. 21 . . . Where horses are taken past without going through a customs barrier or are passed through with false identification or illegally, the punishment is reduced two degrees below that for men in each case. Thus for being taken past without going through a customs barrier, the punishment is one hundred blows with the heavy stick. For doing so with false identification, or secretly, the punishment is ninety blows with the heavy stick. For domestic animals other than horses, the punishment is reduced two de­ grees further. Thus cases where a passport must be applied for and that involve other domestic animals being taken past without passing through a customs barrier are punished by eighty blows with the heavy stick. Illegally passing through a customs barrier or doing so with false identifica­ tion is punished by seventy blows with the heavy stick.

Article 84 Causing Delays and Difficulties at a Customs Barrier or a Ford ARTICLE: All cases of causing delays and difficulties (liu-nan §? ϊ § ) to persons going through a customs barrier or a ford without reason punish the of­ ficer in charge by forty blows with the light stick for the first day, increased one degree for each further day, and with a maximum punishment of one hundred blows with the heavy stick. [7b] SUBCOMMENTARY: Customs barriers are places where passports are vali­ dated. At fords, persons going through do not have their passports validated. 2,

SeeVol. I, p. 225, Article 42.

Article 85

51 22

According to the statute: "Each person goes through in order of arrival." If delays and difficulties are caused without reason, the officer in charge is pun­ ished by forty blows with the light stick for the first day. Officer in charge refers to the officer in charge of the customs barrier or ford. Each further day adds one degree of punishment with a maximum punishment of one hundred blows with the heavy stick. This refers to persons other than couriers on public business. If delays and difficulties are caused to those on urgent military matters and they are not allowed to pass through and this results [69] in their falling behind schedule, the punishment is the heavier for falling behind schedule. 23

Article 85 Those Illegally Passing through a Customs Barrier Who Are Guilty of Other Crimes ARTICLE: All cases where those who illegally pass through a customs barrier are guilty of other crimes punished more heavily than illegally passing through a customs barrier and the officer in charge of the customs barrier knows the circumstances, he receives the heavier punishment. If he does not know the circumstances of the offense, the ordinary law is followed. SUBCOMMENTARY: Illegally passing through a customs barrier refers to not hav­ ing a passport. Illegally passing through a customs barrier is only punished by one year of penal servitude. Where a person has taken flight to avoid the death penalty, or has committed other offenses punished by penal servitude or more, this is what is meant by other crimes that are punished more heavily. If the officer in charge of a customs barrier knows the circumstances, he is punished for deliberate connivance 2 4 and gets the heavier punishment of the person who has passed through in each case. If he does not know the circum­ stances, the ordinary law is followed. This means that if he does not know the circumstances of the criminal's other offenses, the ordinary laws on not being aware of the crime or not being in deliberate connivance are followed.

22

Nuda, Statutes, p. 714. Tai, Specific Articles, ρ 21, points out that the preceding statute does, in fact, require that those persons passing a ford have passports.Thus the two statutes are contradic­ tory. ^See Article 123 below. Under this article, the punishment would start at eighty blows with the heavy stick and the maximum punishment would be two years of penal servitude. This fol­ lows Vol. l, p. 252, Article 49, which states that where more than one article of the Code is applicable, whichever provides the heavier punishment will be followed. 24 See Article 58 above, which specifies that the officer in charge would get the same punish­ ment as the criminal.

52

Article 86

Article 86 Wrongly Allowing Civilians or Soldiers to Pass through a Customs Barrier [8a] ARTICLE: 86.1a—All cases of a person who is in charge of civilians or soldiers passing through a customs barrier and who wrongly allows other persons to follow them through, punish him the same as the official in charge of the customs barrier. 86.1b—If the official in charge of the customs barrier is not aware of the circumstances, his punishment is reduced one degree below that of the official in command. 86.1c—If he does know the circumstances, the law on deliberate connivance is followed in each case.25 86.2a—If such persons have passports, the punishment for the official in charge of the customs barrier follows the ordinary law. 86.2b—If the person in charge of the civilians or soldiers knows the circumstances, his punishment is reduced one degree below that of the official in charge of the customs barrier, who is punished for deliberate connivance. If he does not know the circumstances, he is not prosecuted. SUBCOMMENTARY: According to the statute: "All soldiers and horses passing out through a customs barrier must be allowed through only after checking them against the imperial edict and tally copied by the responsible office. When returning through a customs barrier, they should be allowed to enter only after the documents and lists of the general commanding the troops have been inspected."26 . . . If the person in charge knows that these persons are guilty of other crimes punished more heavily than this one, he is sentenced to such heavier punishment. If the official in charge of the customs barrier does not know the circumstances means that the official in charge of the customs barrier accepts the official register given by the person in charge and is not aware that other persons have followed him through the customs barrier. The official in charge of the customs barrier having his punishment reduced one degree below that of the person in charge means that his punishment is reduced three degrees below that of those who pass through the customs barrier. Where the circumstances are known, each is punished in accordance with the law on deliberate connivance. Reference to each means that both the person in charge and the official in charge of the customs barrier get the same punishment as the persons who pass through the customs barrier. Where such persons have passports and the official in charge of the customs

25 26

Ibid. Nnda, Statutes, p. 714.

Article 87

53

barrier validates them and the persons pass through the customs barrier, his punishment follows the ordinary law, so that it is not decreased below that of the person in charge. If the person in charge knows the circumstances about the passports, his punishment is reduced one degree below that of the official in charge of the pass who is punished for deliberate connivance. If he does not know the circumstances, he is not prosecuted.

Article 87 [8b]

Illegally Taking Prohibited Articles through a Customs Barrier

ARTICLE: 87.1a—All cases of illegally taking prohibited articles through a customs barrier are punished for illicit goods obtained through malfeasance. 87.1b—If the punishment for the illicit goods would be lighter, the laws on illegal manufacture or illegal possession are followed. SUBCOMMENTARY: Forbidden articles refer to forbidden military weapons 27 as well as all other forbidden articles that private households are not permitted to possess.28 If they are illegally taken through a customs barrier, the value of the number of illicit goods is calculated and punished for illicit goods obtained through malfeasance in each case.29 For goods worth ten p'i of silk, the punishment is one year of penal servitude, with one degree of punishment added for each further ten p'i.The maximum punishment is three years of penal servitude. Where the punishment for the value of the illicit goods would be lighter, the laws on private manufacture and private possession are followed. According to the Articles on Unauthorized Levies: "The private possession of a piece of armor and three crossbows is punished by life exile at a distance of 2,000 Ii. For a halberd, the punishment is two and one-half years of penal servitude. For private manufacture, one degree of punishment is added in each case." If a halberd is illegally taken through a customs barrier and its value is assessed at thirty p'i of silk, then following the law on illicit goods obtained through malfeasance, the punishment is two years of penal servitude.The halberd itself is not counted in the punishment. If a piece of armor [70] is carried through a customs barrier, then following the law on private possession, the punishment is life exile at a distance of 2,000 Ii, and the value of the illicit goods is not calculated in the punishment. 27

Article 243, which is quoted m the paragraph, below defines these as being such things as armor, crossbows, long spears, lances, and armor for horses. 28 ArHcIe 110 below defines these as astronomical instruments, maps of the heavens, and various types of books. 2, See Article 389 below.

54

Article 88

ARTICLE: 87.2—If articles of private households that it is forbidden to take through a customs barrier are illegally taken through, the punishment is reduced three degrees. SUBCOMMENTARY: According to the Statute on Customs Barriers and Marketplaces: "Silk brocade, silk damask, silk gauze, silk crepe, heavy silk, silk floss, pongee, silk thread, hemp hnen, yaks' tails, pearls, gold, silver, or iron may not be taken through customs barriers on the western or northern frontiers. When such goods reach the frontier prefectures, they should be exchanged." 30 From silk brocade and silk damask on down, they all are things that private households may possess. If a person tries to take them through the western or northern frontier customs barriers, the value of the illicit goods is calculated and the punishment is for illicit goods obtained through malfeasance reduced three degrees. [9a] As for articles that private households are not permitted to possess, they are confiscated by the state even though they have not yet passed through the customs barrier. If goods that it is forbidden to carry through a customs barrier are seized by officers in charge of the customs barrier who inspect passports, such articles are confiscated by the state. If the articles have already gone through the customs barrier or have been taken across the frontier without going through the customs barrier and are seized by another person, two-thirds of the articles are given to the person who seizes the goods and one-third are taken by the government.

Article 88 Going around a Frontier Customs Barrier ARTICLE: 88.1—All cases of going around a frontier customs barrier are punished by two years of penal servitude. 88.2—For illegal trade with foreigners, those who take or give goods worth one ch 'ih of silk are punished by two and one-half years of penal servitude. One degree of punishment is added for goods worth each further three p'i of silk, and for goods worth fifteen p'i, the punishment is life exile with added labor. SUBCOMMENTARY: Frontier customs barriers divide the Chinese people from the barbarians. . . .Taking horses past frontier customs barriers, in accordance with the article above, is punished two degrees less than taking men, so that the punishment is one year of penal servitude. For other domestic animals, there is a further reduction of two degrees of punishment to ninety blows with the 'Niida, Statutes, p. 715.

Article 88

55

heavy stick.31 The punishment for going around frontier customs barriers is intentionally heavier (than for internal customs barriers). If persons or domestic animals illegally pass through, in each case, the punishment is the same as for other customs barriers. . . . [9b] ARTICLE: 88.3a-i—Those who illegally give forbidden military weapons to foreigners are punished by strangulation. 88.3a-ii—Those who marry foreigners are punished by life exile at a distance of 2,000 Ii. 88.3b—If the weapons have not yet been turned over to the foreigners, or if the marriage has not yet been completed, the punishment is reduced three degrees in each case. 88.4—If while acting as an envoy, a person engages in illegal trade with foreigners, the punishment is comparable to robbery. SUBCOMMENTARY: . . . If a foreigner goes around a customs barrier, enters the country, and engages in trade with Chinese, the punishment is the same as for Chinese who go around a customs barrier and engage in trade with foreigners. A memorial is sent up to obtain an imperial edict.Those who are not envoys are not permitted to leave or enter the country's borders. Therefore the phrase used is going around, not illegally passing through. For illegally passing through and engaging in trade, the punishments are the same in all cases. If the weapons have not yet been turned over to the foreigners means that if the forbidden military weapons have not yet been turned over to the foreigners, the punishment is reduced three degrees below the death penalty to two and one-half years of penal servitude. If the marriage has not yet been completed means that if the marriage has not yet been completed, the punishment is reduced three degrees below the death penalty to two and one-half years of penal servitude. While acting as an envoy refers to a government envoy entering a barbarian country or a barbarian acting as an envoy and entering China. Illegal trade refers to buying and selling both at a market or elsewhere. The value of the illicit goods is calculated and punished as robbery in each case. However, the maximum punishment is life exile at a distance of 3,000 Zi.32 Where a person illegally gives forbidden military weapons or marries a foreigner the article has no specific provision, so the punishment is the same as for passing through a frontier customs barrier and illegally giving forbidden military weapons to or marrying foreigners. Moreover, according to a Special Regulation: "In all cases where a foreigner 31

See Article 83 above. See Article 282 below. There the least punishment is sixty blows with the heavy stick for goods worth one ch'ih of silk and progresses to life exile with added labor for goods worth fifty p'i of silk. 32

56

Article 89

(living in China) takes a Chinese woman as a wife or concubine, she may not be taken to the foreign country when he returns." According to the Ordinances Governing Foreigners: "When foreigners enter China and are on the road, it is not allowed to trade with them. Moreover, they are not allowed to talk with Chinese. [10a] Prefecture and county officials who have no business with the foreigners are not allowed to meet with them." 33 Thus neither Chinese officials nor commoners are allowed to have contact with foreigners. If they illegally marry them, the punishment is the same as under the law above. If a foreigner enters China, is allowed to live here, takes a wife or concubine, and then takes her with upon return to his foreign country, the punishment is for violating an imperial edict.

Article 89 Frontier Walled Outposts ARTICLE: 89. Ia—All cases of frontier walled outposts where foreign villains enter China, CoMMENTARY:This refers to groups not constituting a regiment or a division in size. ARTICLE: or Chinese villains go abroad and the lookout is not aware of it, punish him by one and one-half years of penal servitude. 89.1b—The official in charge is punished by one year of penal servitude. CoMMENTARY:This refers to the roads on which such Chinese or foreign villains leave or enter. These must be guarded by the lookouts. SUBCOMMENTARY: The country's frontiers all have walled cities and outposts, which are used to keep bandits and robbers in check and to prepare against the unforseen. Foreign villains entering China refers to such incidents as foreigners plundering or coming to spy. The commentary states:"This refers to groups not constituting a regiment or division in size."According to the Chou-li:"Five hundred men make a regiment and 2,500 men make a division."34 Here, however, there is reference to small numbers of villains or bandits looting. Where the numbers constitute a regiment or a division, according to the Articles on Unauthorized Levies: "Where the enemy is nearby and the patrols

"Neither the Special Regulation nor this ordinance has survived. See the discussion on T'ang legislation in Vol. i, pp. 5 ff. "CADM-ZI, "Ssu-ma," p. 429; Biot, n, 142.

Article 90

57

that have been sent out are not aware of the enemy's coming, they are punished by three years of penal servitude."35 Chinese villains going abroad refer to Chinese becoming villains and going abroad whether beyond the stormy seas or into dark passes. If lookouts are not aware of such villains coming or going, their punishment is one and one-half years of penal servitude. Even though there is no lookout, [10b] if the officer in charge of a wailed outpost is not aware of villains coming or going, his punishment is one year of penal servitude. Not aware of refers to the roads on which Chinese or foreign villains leave or enter.These are the responsibility of lookouts.The areas that can be seen define responsibility. This means areas that can be seen by the lookouts. ARTICLE: 89.2—When such villains enter or leave and the strength of the lookouts is not sufficient to oppose them, this must be reported to the nearest walled outpost. If the report is not speedily made, as well as when there is a report but there are delays so that not all the villains are arrested or the villains and bandits escape, the punishment is the same. SUBCOMMENTARY: Where the villains pass through walled outposts in entering or leaving they must be arrested in all cases. . . .

Article 90 Those in Charge of Beacon Fires Not Giving the Alarm ARTICLE: 90.1a—In all cases where those in charge of beacon fires do not give the alarm when bandits and villains violate the borders, or where they are required to light beacon fires and do not do so, or where fewer beacon fires are lit than are required, the punishment is three years of penal servitude in each case. SUBCOMMENTARY: Those in charge of beacon fires refers to beacon stations being set up on the frontiers linking them with the capital. Beacons must be lit in order to guard against the unexpected. The numbers are set out in the Special Ordinance. 36 Those in charge of beacon fires not lighting them is what is meant by not giving the alarm. If barbarian bandits violate the borders or foreign [1 la] villains enter the frontiers and beacon fires that are required to be Ht are not, or fewer are Ut than are required, the punishment is three years of penal servitude in each case. 35

See Article 233 below. None of the ordinances referred to in this article has survived.

36

58

Article 90

[72] ARTICLE: 90.1b—If beacons have already been lit and those ahead do not light theirs and no one is sent to tell them, the punishment is the same. 90.2—If for this reason losses are caused among the civilian population, the army, or in walled outposts, the punishment is strangulation. SUBCOMMENTARY: According to the Ordinance on Administering Regions: "If beacons have already been ht and those ahead do not light theirs, a speedy runner must be sent to tell them." If they are not told, the punishment for those who do not do so is also three years of penal servitude.Therefore it is stated that their punishment is the same. . . . ARTICLE: 90.3—If beacon fires are lit that should not be lit, or more beacon fires are ht than should be ht, or if fires or smoke are improperly caused within a radius of two Ii of the beacon, the punishment is one year of penal servi­ tude in each case. SUBCOMMENTARY: According to the ordinance: "If smoke or dust are seen, then the beacon fire is lit. But beacon fires must not be Ht for no cause." . . . Within a two-Ζί radius of the beacon there must not be smoke or fire. This refers to during the day when smoke is released, or at night when a fire is lit. . . . The number of beacon fires to be lit is set forth in the text of the ordinance. These matters are secrets and may not be brought out.

3. ADMINISTRATIVE REGULATIONS [la; 72]

CHAPTER

IX

SUBCOMMENTARY: The Articles on Administrative Regulations first appeared in the Chin dynasty (A.D. 265-313) and were called the Articles on theViolation of Regulations. This name was not changed down through the Northern Ch'i dynasty (A.D. 550-589). During the Sui dynasty's K'ai-huang period the name was changed to the Articles on Administrative Regulations. This means that the laws on administrative duties are continued in the section. The imperial guard having been covered (in the previous section), the establishment of offices is put next.Therefore this section follows that on The Imperial Guard and Prohibitions.

Article 91 The Number of Personnel in Government Offices ARTICLE: 91.1—AU cases where a government office has a fixed number of personnel and persons are appointed exceeding this number or persons are appointed who should not be appointed, CoMMENTARY:This refers to appointments that have not been announced to the emperor (tsou-shou Ht^t). ARTICLE: punish the appointment of the first person by one hundred blows with the heavy stick, with one degree of punishment added for each additional three persons. For ten persons, the punishment is two years of penal servitude. SUBCOMMENTARY: A government office having a fixed number of personnel • refers to offices both in the capital and in the provinces. From minor employees on up, the Statutes determines the number of them. Persons appointed who should not be appointed refers to persons who are not authorized by either the Regulations or the Statutes but who are wrongly appointed. The commentary states: "This refers to those whose appointments are not announced to the emperor."This means comparable-rank officials of the sixth rank and below as well as minor employees. . . . [lb] If there have been appointments announced to the emperor that are false or not true, punishment follows the law on falsely assuming office.1 If persons are 'See Article 370 below.The punishment is very severe, being life exile at a distance of 2,000 Ii.

60

Article 92

appointed who should not be appointed or an excessive number of persons have been intentionally appointed and announced to the emperor, the punishment is for falsifying and not reporting the true circumstances (in any matter reported to the emperor). 2 [73] ARTICLE: 91.2—If a successor knows the circumstances and allows them to continue, his punishment is reduced one degree below that for his predecessor who made the appointment. 91.3a—Those who seek such appointments are punished as accessories. 91.3b—Those who have been called to office because of need are not punished. 91.4—In cases of important military matters when appointments are made because of the circumstances, this article is not applicable. SUBCOMMENTARY: . . . Those who have been called to office because of need refers to those who have been summoned to take office in order to assist the government. They are not punished. Cases of important military matters when appointments are made because of the circumstances refers to places where the army is camped needing officials. Such appointments do not correspond to this offense of appointing officials. Therefore it is stated that this article is not applicable.

Article 92 Recommending Unworthy Persons to the Examination for the Doctorate ARTICLE: 92.1a—All cases of recommending unworthy persons to the examination for the doctorate or of not recommending those who are worthy are punished by one year of penal servitude for the first person, increased by one degree for each [2a] further two persons, and with a maximum punishment of three years of penal servitude. 3 COMMENTARY: Unworthy persons refer to those whose virtuous conduct is instead perverse and dissolute so that they are not qualified to be recommended. 2

See Article 368 below. The punishment is two years of penal servitude. The best treatment of the Tang examination system is to be found in Robert des Rotours, Le Traiti des Examens. Several parts of this article are translated there on p. 158, n. l.The virtuous conduct mentioned in the Commentary below is also a technical term for a secondary method of rating examination candidates. But here it is used rather as a basis for punishment Officials were rated each year and at the end of three years were promoted or demoted on the basis of these ratings. 3

Article 92

61

92.1b—If a recommended person does not pass the examination, the punish­ ment above is reduced two degrees. 92.1c—If of five recommended persons three pass, there is no punishment. SuBCOMMENTARY:According to the statute: "All prefectures recommend persons yearly. Examinations may also be ordered by special imperial decree, and the schools of the National College may also recommend candidates for examina­ tions. All of those chosen must be upright and pure, and their reputation and conduct must match." 4 . . . As for a person who is not qualified to be recommended, even though he should pass the examination, his degree will be canceled and he will be arrested and punished. . . . If of five recommended persons only two pass, there will be punishment for the three who did not pass. If of ten recommended persons only three pass, there will be punishment for the seven who did not pass. However, if a single person whose conduct instead of being virtuous is rather perverse and dissolute so that he is not qualified to be recommended passes, such perversion and disso­ lute behavior will be punished, and even though the number of persons who passed is in the majority the punishment will not be reduced. ARTICLE: 92.2a—If the merit rating report of officials (k'ao 3§) or the examina­ tion rankings for the doctorate are not correct, or if in the examination for the selection of officials (hsiian jH) there are errors about the qualifications of a candidate, whereby he obtains the wrong position, the punishment is reduced one degree. COMMENTARY: 92.2b—If first {fit J i ) or second penalty reports (tien ϋχ) were required to be attached to an official's record and were not, or were at­ tached where they should not have been, the punishment is the same. SUBCOMMENTARY: The merit rating report refers to civil and military officials both in the capital and in the provinces being required to have a report made of their merits and demerits every year.5 The examination for the doctorate refers to candidates who are recommended for that degree and those who have literary talent. According to the statute, the examination for the doctorate limits the number who can pass. [74] Incorrect examination rankings will be punished. 6

4

Niida, Statutes, p. 295. See ibid., p. 327. The statute says that the department head made such a report on every official of the ninth rank and above in his office. See also the discussion of this process in des Rotours, Examens, pp. 51 ff. 6 Niida, Statutes, pp. 353 ff. 5

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Article 92

If examination rankings are not correct or the official who makes assignments makes an error about the basic qualifications of a person and for this reason he should not obtain a particular position refers to such cases as where the person has not studied the institutes and laws yet is employed as a legal official, or where a person understands the classics and the histories, yet receives a military office. The punishment in each of these cases is one degree less than for recommending unworthy persons to the examination for the doctorate. Where first- and second-degree penalties were required to be attached to a record and were not, according to the statute: "For a private offense, one chin of copper constitutes a first-degree penalty. For a public offense, two chin of copper constitute a first-degree penalty. Each ten first-degree penalties constitute a second-degree penalty. O n the day of the merit rating report, first- and seconddegree penalties must be attached to the record." 7 Where there is an intentional violation by not appending first- and seconddegree penalties to a person's record or attaching them when they should not be attached refers to receiving a special imperial edict releasing an offender and exempting him from punishment. Or, there being a merciful decrease of punishment so that first- and second-degree penalties resulting from public or private offense are not attached to the person's record. If the person committed a crime punished by resignation from office or more, or booty or bribes came into his hands and the case was completed before the grant of imperial grace, then such penalties are attached to the person's record and the circumstances explained. But aside from these types of crime, other first- and second-degree penalties should not be attached to the person's record, and if they are intentionally attached, and as a result of the commissioner's merit rating report the person is promoted or demoted in office, the punishment is the same.This means the punishment is the same as where in the merit rating report or the examination ranking the decisions are not correct. These offenses are punished one degree less than where the wrong person is recommended for the examination for the doctorate. ARTICLE: 92.3a—If these offenses are committed by error, the punishment is reduced three degrees in each case. COMMENTARY: Other articles where errors occur follow this article. ARTICLE: 92.3b—If an official has received a report and is not not aware of the error, the punishment is reduced one degree further. 92.3c—If an official knows the circumstances and allows the situation to continue, he receives the same punishment as the person who committed the offense. 'Ibid., p. 343. On the difference between private and public offenses, see Vol. I, pp. 112-118. Article 17. The copper referred to here is what those who were allowed this privilege used to replace punishment. A particular offense required so-and-so many cinn of copper.

Article 93

63

SUBCOMMENTARY: Where these offenses are committed through error, the punishment is reduced three degrees in each case refers to where the emphasis is on the fitness of the nomination and there was no intention of any illegality. However, there was no investigation as to whether the candidate's virtuous conduct had deficiencies. This being the case, the punishment is reduced three degrees below that for cases where the offense was committed intentionally. In all these cases, from where the candidate did not pass down through where the penalties should have been appended to the report and were not and the offenses were committed by error, the punishment is reduced three degrees. Errors in other articles follow this article refers to all articles in this section. If there are errors in public matters and the text of that specific article does not provide for reduction of punishment in case of error, this article that gives a reduction of three degrees of punishment is followed. Where an official receives a report and is not aware of the error also covers the cases of recommending candidates and offenses in this article. If the official receives a merit rating report about the examination of merits or the examination rankings for the doctorate and is not aware of the error, his punishment is reduced one degree more than the three degrees afforded by the section on errors. Therefore it is stated that the punishment is reduced one degree further. If an official knows of the circumstances but allows the situation to continue, he receives the same punishment also covers the cases from recommending persons for the examination for the doctorate and offenses below where he knows that the person recommended is not worthy, or where a person has not passed an examination, or he knows of errors in merit rating reports or examination rankings for the doctorate. In all these cases the punishment is the same. This means that the punishment is the same as for the original offender.

Article 93 Prefects and County Magistrates Who Illegally Leave Their Areas ofJurisdiction ARTICLE: All cases of prefects, county magistrates, or commanders or deputy commanders of militia units who illegally leave their areas of jurisdiction or units are punished by one hundred blows with the heavy stick. COMMENTARY: Those who stay overnight will be prosecuted. SUBCOMMENTARY: Such persons who are not on official business but who illegally leave their areas of jurisdiction or units [3b] are punished by one hundred blows with the heavy stick. The commentary states: "Those who stay overnight will be prosecuted." Daytime is not mentioned, so that one hundred k'os are not necessary. It is staying overnight that is the basis of prosecution. 8

See Vol. i, p. 265, Article 55, where a day is defined as one hundred k'o.

64

Article 94

Article 94 Officials W h o Are Required To Be on Duty But Are N o t ARTICLE: 94.1—All cases of officials who are required to be on duty but are not in their offices, or who are required to stand night duty but are not, are punished by twenty blows with the light stick. If such an absence lasts for both a day and a night, the punishment is thirty blows with the light stick. [75] SUBCOMMENTARY: According to the statute: "Officials both in the capital and in the provinces are required to take turns standing night duty. . . ."9 ARTICLE: 94.2—If an official is not present when the attendance roll is checked {tien JUj), he is punished by ten blows with the light stick for the first time. COMMENTARY: Punishment is limited to missing two attendance roll checks in one day. SUBCOMMENTARY: Attendance rolls must be checked in government offices both in the capital and in the provinces. . . . If an official does not come to the office at all, the number of days is calculated and the punishment is that for officials who, without a reason, do not stand duty.10 [4a] QUERY: For two days or more an official comes to his office each separate day. But when the office attendance roll is checked he is not present. How can he be punished for not standing duty without a reason when he did come to the office each day? But if he is punished for cumulative checks then the punishment would be heavier than for not standing duty. If within a ten-day period the official does come each separate day, what punishment is to be sentenced for each absence? REPLY: For officials of the eighth rank and below, when checks of the attendance roll show repeated absences, each one increases the seriousness of the offense, and the punishment is for the cumulative number of absences.11 For those who do not have official rank, the punishment is administered on the same day and then he is released.12 At first, though the accumulated absences are punished more heavily, even several will not reach the punishment of penal servitude. The calculation of days when duty is not stood, even though the punishment is light, if the number of days is many, then will reach to the punish-

'Nhda, Statutes, p. 595. See Yang, "Schedules of Work and Rest," p. 26. "See Article 95 below. See also Twitchett, "The T'ang Market System," pp. 211-212, for information on the curfew and restrictions on movement. "See Article 29,VoI. I, pp. 167 ff. 12 See Article 498 below.

Article 95

65

ment of penal servitude.Therefore if on separate days the official did stand duty, then the punishment follows the absences, but when he did not come for a whole day, the number of days is calculated. Sentencing in this way really carries out the punishment.

Article 95 Officials Who Do Not Come To Take Their Turn at Duty without a Reason ARTICLE: 95.1—All cases of officials who do not take their turn at service in the capital without a reason,13 or who do not come to their office,14 COMMENTARY: Even though he does not have official rank, an official has turns of being on and off duty. Articles below follow this article. SUBCOMMENTARY: Official refers to those in the capital and in the provinces. . . . Where the commentary states: "even though a person may not have official rank," this refers to their punishment being the same as for those who have official rank. Articles below follow this article refers to the articles on time limits on moving to take office,'3 and officials who do not follow the time schedule in accompanying the emperor,16 or who [4b] return in advance. In such cases, even though the person does not have official rank, the punishment is the same as under the law on officials. ARTICLE: or who are in violation because of being on leave, are punished by twenty blows with the light stick for the first day, increased one degree for each further three days. After one hundred blows with the heavy stick have been reached, the punishment is increased one degree for each further ten days, with a maximum punishment of one and one-half years of penal servitude. 95.2—For service in important border areas the punishment is increased one degree. SUBCOMMENTARY: From ranked officials down through minor employees, cases of those who because of being on leave violate this law are punished by twenty blows with the light stick for the first day. . . . [76] "Officials came to the capital to take their turns at service there according to the distance they would have to go.This is discussed at length by des Rotours, Fonctwnnaires, I, p. 57. "Generally, an official was on duty for ten days, after which he had a day off. See Yang, "Schedules of Work and Rest," pp. 19 ff. These are set forth in detail for the T'ang period in Niida, Statutes, pp 732 ff. ,5 See Article 96 below. 16 See Article 97 below.

66

Article 96

Article 96 Time Limits on Moving To Take Office ARTICLE: 96.1—AU cases of officials who have not arrived to take office when the time limit has expired are punished by ten blows with the light stick for the first day, increased one degree for each further ten days, and with a maximum punishment of one year of penal servitude. 96.2—If a replacement has already arrived but the official does not return to the capital, the punishment is reduced two degrees. SUBCOMMENTARY: According to the statute: "Officials who are moving to take office have time limits for 'baggage packing.'" 17 If they have not arrived when the time limit has expired (they are punished). 18 . . . [5a] According to the statute: "Where the grain has sprouted, they may wait until it is harvested before leaving. Where the grain has not sprouted, they must return to the capital within the time limit."19

Article 97 Officials Who Do Not Follow the Time Schedule in Accompanying the Emperor ARTICLE: 97.1—Officials who do not follow the time schedule in accompanying the emperor, or who return early from such duty, are punished by forty blows with the light stick, with the punishment increased one degree for each further three days. After one hundred blows with the heavy stick have been exceeded, the punishment is increased one degree for each further ten days, and the punishment is limited to one and one-half years of penal servitude. 97.2—For officials in attendance, the punishment is increased one degree. SUBCOMMENTARY: Officials refers to all officials who must accompany the emperor. Those who have no official rank as well as those below them who are required to accompany the emperor also receive the same punishment. Such persons as clerks and office boys who accompany officials are not included in this definition. As for violating the time schedule and not arriving or returning

""Baggage packing" is simply a name for an amount of time given an official to move to the location of his new position. For example, for a journey of less than 1,000 Ii, the official was given forty days; for 2,000 U or less, fifty days; and so on. See Niida, Statutes, p. 749. l8 This is added on the basis of Tai's comment. Tai, Specific Articles, p. 30. "Ibid., p. 31, quotes Hsiieh Yiin-sheng, T'ang-Ming Iu ho-pien (The T'ang and Ming Codes combined), p. 143, to the effect that the land mentioned here was used to support the official. Niida, Statutes, p. 750.

Article 98

67

early from such duty, even though the period of violation does not constitute a full day, the punishment is still forty blows with the light stick. . . . Officials in attendance refer to officials of the fifth rank and above of the Department of State and the Imperial Chancellery. According to the statute, they are required to accompany the emperor and attend on him. 20

Article 98 Failure To Give Advance Announcement of a Great Sacrifice ARTICLE: 98.1a—All cases of failure to give advance notice of a great sacrifice, or of not promulgating it to government offices, are punished by sixty blows with the heavy stick. 98.1b—If as a result there is any failure in carrying out the ceremony, [5b] the punishment is two years of penal servitude. SUBCOMMENTARY: According to the statute, great sacrifices refer to those to Heaven and Earth, the Ancestral Temple, and the Spiritual Continent. 21 Officials who are observing abstinence, on the days of partial abstinence (san-chai W(Wt) meet at dawn in the Department of State and take an oath of avoidance. Twenty days before the sacrifice, the office in charge makes an announcement of it to the Bureau of Sacrifices, which then promulgates it to all other government offices. . . . Where there has been advance announcement and promulgation, those who do not fully observe the sacrifice receive the same punishment as those who did not make advance announcement or promulgation of it. . . . Those who are collectively responsible for the offense are punished for a public offense according to their rank.22 ARTICLE: 98.2a—If things such as sacrificial animals, jewels, and silks do not conform to the rules, the punishment is seventy blows with the heavy stick. 98.2b—If their number is insufficient, the punishment is one hundred blows with the heavy stick. 98.2c—If any part of the offerings is completely missing, the punishment is one year of penal servitude. COMMENTARY: Completely missing refers to the punishment for each type of offering. 20

Nn(Ia, Statutes, p. 134, lists these persons. Ibid., p. 159.The Spiritual Continent is a name for China.These sacrifices are dealt with in Howard Wechsler, Offerings of Jade and Silk (New Haven: Yale University Press, 1985), pp. 107 ff. 22 On the distinction between public offenses and private offenses, see Vol. i, pp. 112-118, Article 17. 21

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Article 98

SUBCOMMENTARY: Sacrificial animals refer to such animals as cows, sheep, pigs, and oxen. Jewels refer both to green jade, which is used in the sacrifice to Heaven, and yellow jade, which is used in the sacrifice to Earth. Each God of the Five Directions has a color for his direction. Silk refers to offerings made of silk. Reference to such as means varieties of millet and other lesser things. Any of these things that is not in accord with the rules set out in the rites and statutes. . . .As for the medium and small sacrifices, the offerings are in accord with those of the great sacrifice. If the objects are insufficient in number or missing, [6a] there is a proportional decrease of punishment. But no matter how much is missing, the punishment cannot exceed what is specified here. Punishment for things missing in other sacrifices all follows this article. [77] ARTICLE: 98.3a—Those who during the period of partial abstinence do not spend the night in their own private room are punished by fifty blows with the light stick for the first night. 98.3b—Those who during the period of rigorous abstinence (chih-chai 1¾ Hf) do not spend the night in their own office are punished by ninety blows with the heavy stick. 98.3c—(For both of the above) one degree of punishment is added for each further night. 98.4—For medium and small sacrifices, the punishments are proportionately reduced two degree. SUBCOMMENTARY: "For a great sacrifice, there are four days of partial abstinence and three days of rigorous abstinence. For a medium sacrifice, there are three days of partial abstinence and two days of rigorous abstinence. For a small sacrifice, there are two days of partial abstinence and one day of rigorous abstinence. During the days of partial abstinence, officials who are observing the abstinence carry out their work as usual during the day. But at night they sleep in the main hall of their home." 23 . . . Those whose-homes do not have a main hall and who sleep in the room where other types of abstinence are observed will not be punished. N o dissipated or unclean acts may take place during this period. Therefore the Book of Rites states:"[Confucius said:] 'One abstains during three days. If the abstinence lasted only one day, that would show disrespect.' " 24 During rigorous abstinence, two nights are spent in the official's own office and one night in the place of the sacrifice. If the official does not have his own office, or if it is outside the imperial city, he may spend the night in the Office of the Suburban Sacrifice and God of the Soil or at the Office of the Imperial Ancestral Temple. . . . 23

Nu(Ja, Statutes, p. 206. A discussion of these forms of abstinence is found in des Rotours, Fonctwtmaires, u, 591-592. 21 Li chi, "Chiao t'e sheng," p. 489; Couvreur, Li ki, I, 585.

Article 99

69

As for medium and small sacrifices, those to the Sun and Moon, the planets and the stars, lofty mountains, seas, emperors, and spirits are medium [6b] sacrifices.Those to the Lord of Fates, the Lord of Winds, the Lord of Rain, stars in general, mountains, forests, rivers, and marshes are small sacrifices. For offenses connected with sacrifices below the great sacrifices, the punishments for medium sacrifices are reduced two degrees below those for the great sacrifices, and the punishments for small sacrifices are reduced two degrees below those for medium sacrifices. Therefore it is stated that the punishments are proportionately reduced two degrees. COMMENTARY: In all references to sacrifices, chi | j | and hsiang 3fE are equally applicable. References to medium and small sacrifices in other articles follow this article. SUBCOMMENTARY: According to the statutes on sacrifices: "Sacrifices to Heaven and Earth and to the Ancestral Temple are great sacrifices."2' . . . References to medium and small sacrifices follow this article means . . . that in the article below on Offering Condolences during Partial Abstinence for a Great Sacrifice,26 and in the Articles on Violence and Robbery, the article on Robbery of Sacred Articles of the Spirits and the Great Sacrifices,27 where the relevant articles do not have a punishment for that offense connected with the medium and small sacrifices, the punishments are proportionately reduced following this article.

Article 99 Offering Condolences during Partial Abstinence for a Great Saaifice ARTICLE: 99.1a—All cases of those who while observing partial abstinence for a great sacrifice offer condolences, inquire after an illness, make judgments and sign documents about punishments or the death penalty, or administer such punishments are punished by fifty blows with the light stick. 99.1b—For memorials to the throne, the punishment is sixty blows with the heavy stick. 99.2—If any of these offenses is committed while observing rigorous abstinence, the punishment is increased one degree. [7a] SUBCOMMENTARY: For a great sacrifice, there are four days of partial abstinence during which the person observing the abstinence may not offer condo25

Niida, Statutes, p. 159. See Article 99 below 27 See Article 270 below. 26

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Article iOO

lences or inquire after an illness.28 Punishment refers to sentencing punishment. The death penalty refers to executing criminals. It is not permitted to make decisions about or sign these kinds of documents. Nor may the punishments of beating with the heavy stick or light stick be administered. . . . If a person commits these offenses while observing rigorous abstinence, the punishment is increased one degree. For medium and small sacrifices, the punishment is proportionately reduced two degrees.

Article 100 Participation in Saaifices or in Ceremonies at the Imperial Tombs [78] ARTICLE: 100.1—All cases of those who while participating in a sacrifice or in a ceremony at the imperial tombs, or while attending an imperial audience, or while serving as an imperial guard make a mistake in ceremonial or violate usage or deportment are punished by forty blows with the light stick. COMMENTARY: This refers to making an uproar, or cursing when speaking, or being heedless or disrespectful in sitting or standing, or behaving in an offensive manner to those present. Such behavior will be punished. SUBCOMMENTARY: . . .

ARTICLE: 100.2—If the official in charge does not inform those who must attend such sacrifices or ceremonies, or if those who are informed do not come, the punishment is fifty blows with the light stick. [7b] SUBCOMMENTARY: . . .

Article 101 Participation in Court Celebrations during a Period of Mourning ARTICLE: 101.1a—AU cases of putting a person in charge of a court celebration while knowing that he is in mourning for a relative within the fifth degree of mourning are punished by fifty blows with the light stick. If such a person is made an assistant, the punishment is thirty blows with the light stick. 101.1b—If the officer in charge does not know the circumstances, he is not punished. 28

Nnda, Statutes, pp. 206 ff, spells out all of these rules.

Article 102

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101.2—Those who are in mourning and do not make it known receive the same punishment. 101.3—This prohibition does not apply to sacrifices to Heaven and Earth or the Altar of the Soil and Grain. SUBCOMMENTARY: Ceremonies of celebration are for auspicious affairs. The Tso 29 Commentary states: "There was an auspicious sacrifice by Duke Chuang." Those who grieve because of relatives within the fifth degree of mourning may not participate in such affairs. . . . Those who are in mourning and do not make it known and who carry out a ceremony under such false pretenses, or who are assistants, receive the same punishment. This prohibition does not apply to sacrifices to Heaven and Earth or the Altar of the Soil and Grain. The Book of Rites states: " I t is only for the sacrifices to Heaven and Earth and the God of the Soil and Grain that one may encroach upon mourning and take part in the ceremony without violating mourning." 3 0

Article 102 [8a]

Preparation of Medicine for the Emperor

ARTICLE: 102.1—All cases of failure to follow the correct prescription when preparing medicine for the emperor, or making a mistake in attaching the label, punish the medical assistants by strangulation. 31 SUBCOMMENTARY: In preparing medicine for the emperor, it is necessary first of all to follow the prescription and not to deviate from it. If there are discrepancies or mistakes so that the correct prescription is not followed refers to such things as there being too much or too little of some ingredient so that the correct prescription is not followed. [79] When the prescription is completed, then a label is put on indicating such things as whether the medicine is slow or fast acting, or whether it is hot or cold in its effect. Both the prescription and its effect must be written on the label, and then the medicine is presented to the emperor. . . . Medical assistants mean the persons who are responsible for preparing the medicine. This has already been explained under the article on great irreverence in the General Principles section.

29

TsO chuan, "Mm 2," p. 189; Legge, Tlie Chinese Classics, v, 129. Li clu, "Wang chih," p. 238; Couvreur, Li ki, i, 285. 3, This crime comes under Great Irreverence, the sixth of the ten abominations. See Vol. ι, ρ 71, Article 6. See also Article 395 below. The Code also punishes medical specialists when their mistakes affect ordinary people. Note that the punishments are much less severe. 30

12

Ankle 102

ARTICLE: 102.2—if the ingredients selected are not pure, the punishment is one year of penal servitude. 102.3a—If the medicine has not yet been presented to the emperor, the punishment is reduced one degree in each case. 102.3b—The punishment for the inspecting officials is reduced one degree below that of the medical assistants. COMMENTARY: Other articles about things that have not yet been presented to the emperor and about the inspecting officials all follow this article. SUBCOMMENTARY: Preparation of the medicine refers to such means as boiling, paring, washing, or soaking. Selection of materials refers to rejecting the bad while retaining the good parts, all of which must be fine and delicate. . . . If the medicine has not yet been presented to the emperor, the punishment is reduced one degree in each case means that those who would be punished by strangulation have their punishment reduced from strangulation; those who would be punished by penal servitude have their punishment reduced from penal servitude. As for the inspecting officials, [8b] according to the statute: "When medicine is being prepared for the emperor, it is done under the inspection of one senior official from each of the ministries within the palace as well as one of the grand generals or generals at present on duty from each of the imperial guards, . . . the Head of the Medicinal Service, etc. When the preparation of the medicine is complete, it is first tasted by the medical assistants and those above them." 32 Aside from the medical assistants, all of these persons are inspecting officials. Their punishment is reduced one degree below that of the medical assistants whether or not the medicine has already been presented to the emperor. The commentary states: "Other articles about things that have not yet been presented to the emperor . . . ." This refers to articles below on preparing the emperor's food, the imperial boats, and the imperial chariots, clothing, and other articles.33 Where these things are for the use of the emperor but have not yet been presented to him, each offense according to its seriousness has the punishment reduced one degree. The punishment for the inspecting officials is reduced one degree further. Therefore it is stated that other articles follow this article.

32

NMa, Statutes, p. 722. See Articles 103,104, and 105 below. Offenses that come under these articles are also violations of the sixth of the ten abominations. 33

Article 104

73

Article 103 Violation of the Dietary Proscriptions in Preparing the Emperor's Food ARTICLE: 103.1—AU violations of the dietary proscriptions by error in preparing the emperor's food punish those in charge by strangulation. 103.2—If the food or drink contains unclean articles, the punishment is two years of penal servitude. 103.3—If the ingredients selected are not pure, or the food is presented to the emperor at the wrong season of the year, the punishment is reduced two degrees. 103.4—If the dishes have not been tasted, the punishment is one hundred blows with the heavy stick. SuBCOMMENTARY:The preparation of the emperor's food must follow the food book.This book has certain prohibitions about food, and dishes may not be improperly prepared. Examples of such prohibitions are that dried meat may not be put into rice, and that green vegetables may not be mixed with turde meat. 34 . . . [9a] If the ingredients selected are not pure refers to the rice and vegetables that have been selected not being fine or good. As for food being presented at the wrong season of the year—according to the rites, rice is under the control of the spring season, therefore it should be warm; soup is under the control of the summer season, therefore it should be hot, and so forth. Presenting the food at the wrong time of the day refers to the wrong time of morning, evening, or the middle of the day or the food being cold or hot at the wrong season. . . . If the dishes have not been tasted, the punishment is one hundred blows with the heavy stick refers to sour, salty, bitter, and pungent flavors not being properly used in seasoning the dishes. . . .

Article 104 Imperial Boats ARTICLE: 104.1—AU cases where the imperial boats are by error not sturdy punish the workmen by strangulation. COMMENTARY: Each workman is responsible for the part that he worked on. [80] SUBCOMMENTARY: Imperial boats are those in which the emperor travels. This means that they must be as sturdy as possible. If they are not, they may sink and be destroyed. . . . M

See Vol. i, p. 72, n. 144.

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Article i05

The commentary states: "Each workman is responsible for the part that he worked on." Thus it is clear that each of the persons who make the boat is responsible for the part he worked on at the time the boat was built. ARTICLE: 104.2—If the boats are not kept in repair and decorated, or if some part is missing, or is in insufficient quantity, the punishment is two years of penal servitude. SUBCOMMENTARY: If the boats are not kept in repair and painted and ornamented, or if the poles and oars that are needed are missing or in insufficient quantities, [9b] the punishment is two years of penal servitude. Here also each workman is responsible for the part that he worked on. The inspecting official's punishment is reduced one degree in each case.

Article 105 Imperial Clothing and Other Articles ARTICLE: 105.1—All cases where the imperial clothing and other articles are not maintained and repaired according to the rules are punished by eighty blows with the heavy stick. 105.2—If any of these is presented to the emperor in the wrong way, the punishment is one hundred blows with the heavy stick. 105.3—Where such things as chariots have not been properly maintained, or the horses have not been properly trained, or the yokes and harnesses are not complete or sound, the punishment is two years of penal servitude. 105.4—If such things have not been presented to the emperor, the punishment is reduced three degrees. SUBCOMMENTARY: Chariots, clothing, and other articles used by the emperor all have officials who are in charge of their maintenance and repair. . . . If any of these things is presented to the emperor by error or mistake—the Book of Rites states: "When presenting something to a superior who is standing, one does not kneel; when presenting something to a superior who is sitting, one does not stand"35 and so forth—each according to the rules of ritual. If the presentation is done in the wrong way and violates the law, the punishment is eighty blows with the heavy stick. . . . Reference 36 to such things refers to "goat chariots" and those pulled by hand.37 35 Li chi, "Ch'ii h," p. 33; Couvreur, Li ki, I, 21. See also des Rotours, Fonctionnaires, n, 227, n. 1, where he translates a relevant citation from the T'ang Institutes on this subject. ^Ch'eng ffi should properly be written ch'eng %. "There were many kinds of vehicles used by the emperor.They are described in des Rotours,

Article 106

15

Training refers to the horses moving when the chariot has been mounted, causing the bells on the harnesses to sound. If the horses are alarmed and starded, then the frame and body of the chariot or the saddles and bridles of the horses may be damaged or destroyed. . . . Even if these things do not conform to the law, if they have not yet been presented to the emperor, the punishment is reduced three degrees. [10a] ARTICLE: 105.5—If articles that are required for use by the emperor are insufficient in number or missing, the punishment is one year of penal servitude. 105.6—If miscellaneous articles are missing, the punishment is fifty blows with the light stick. SUBCOMMENTARY: Articles that are required for use by the emperor refer to such things as clothing, food, and drink. Such things must be ready in advance. . . . Miscellaneous articles refer to those things that are not commonly used by the emperor. . . .

Article 106 Officials in Charge Who Borrow Imperial Clothing or Other Articles ARTICLE: 106.1—All cases of officials in charge who secretly borrow imperial clothing or other articles for their own use, or lend them to others, punish both the official and the person to whom any of these things is lent by three years of penal servitude. 106.2a—For things that are not personally used by the emperor, the pun­ ishment is one year of penal servitude. 106.2b—Where they are used in a government office, the punishment is reduced one degree in each case. [81]

SUBCOMMENTARY: . . .

[10b]

COMMENTARY: Things not personally used by the emperor refer to such articles as hangings, tables, and staffs. SUBCOMMENTARY: Articles such as hangings, tables, and staffs include also brushes, ink stones, calligraphy, histories, things for amusement, and so forth. . . .

Fonctionnaires, π, pp. 467 fF.The goat chariot was a highly decorated small cart drawn by men or pomes. During the Chin dynasty it was pulled by goats, hence the name.

16

Article 107

Article 107 Offenses Committed by Inspecting Officials and Those in Charge of the Emperor's Food ARTICLE: All cases of inspecting officials or those in charge of the emperor's food who by error bring drugs to the place where the emperor's food is prepared are punished by strangulation. COMMENTARY: Places refer to places where an inspecting official is required to be present. SuBCOMMENTARY:The imperial kitchen prepares food, which is then taken to the emperor. Inspecting officials are present in both places. According to the statute: "Those in charge of the food go up the stairs and present it."38 . . . Drugs mean those that are combined to make medicine that is intended to be eaten. If they have a poisonous nature, even if they have not been combined they are considered to be drugs.

Article 108 Food Presented to Officials ARTICLE: 108.1—All cases of food presented to officials that violates the dietary proscriptions punishes the person who presents the food by seventy blows with the heavy stick. 108.2—If the food or [1 la] drink contains unclean articles, or if the ingredients selected are not pure, the punishment is fifty blows with the light stick. 108.3—if these offenses are committed by error, the punishment is reduced three degrees in each case. COMMENTARY: This refers to food given to officials. SuBCOMMENTARY:The ordinary and better food for officials is all prepared in the officials' kitchen and is called "outside food." . . .

'Nnda, Statutes, p. 138.

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Article 109 Divulging Important Matters ARTICLE: 109.1a—AU cases of divulging important matters that must be kept secret are punished by strangulation. COMMENTARY: Important matters refer to such secrets as planning a campaign to surprise the enemy, or arresting those who are plotting treason. SUBCOMMENTARY: According to the Articles on Assaults and Accusations: "Anyone who knows of a plot to rebel or of great sedition being committed must make a secret report to the nearest government office."39 Such knowledge of plots to rebel or commit great sedition must be kept secret so as to arrest the criminals. These types of important matters must be kept secret and not made known to other persons. If they are improperly divulged, the punishment is strangulation [lib] [82] ARTICLE: 109.1b—If what is divulged is not an important matter that must be kept secret, the punishment is one and one-half years of penal servitude. 109.2—For disclosing matters to the envoys of foreign countries, the punishment is increased one degree. 109.3—The person who initially divulges such matters is the principal. Those who then transmit it to others are accessories.40 109.4a—Those who discuss important matters among themselves are punished by eighty blows with the heavy stick. 109.4b—If they discuss matters that are not important, they will not be prosecuted. SUBCOMMENTARY: As for matters that, while not important, must be kept secret, these are such as are referred to in the statute:"[If student observers] see changes in the wind, clouds, ethers, or colors of the sky, they must report them to the emperor in a sealed envelope."41 If such information is divulged, even though it is not considered to be an important matter that must be kept secret, the punishment is one and one-half years of penal servitude. It is not desirable that matters of state be known to foreign countries. So if such matters are divulged to the envoys of foreign countries, the punishment is increased one degree to two years of penal servitude. However, even if important 39

See Article 340 below. "This is an important distinction. The punishment of accessories is one degree less than for principals. See Vol. I, p. 225, Article 42. 4, Niida, Statutes, p. 847.

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Article HO

matters are divulged to the envoys of foreign countries, the punishment may not extend to decapitation. 42 In cases of matters that are divulged, the person who initially discloses them is the principal. Principal means the person who initially divulges them.The persons who then transmit them are accessories.This means transmit them to the criminal or the foreign envoy. . . .

Article 110 [12a]

Astronomical Instruments

ARTICLE: 110.1a—AU cases of possession of astronomical instruments, maps of the heavens, esoteric books, military books, books on the seven days, the Methods of the Great Monad, or the Methods of the God of Thunder by private persons punish violators by two years of penal servitude. 43 COMMENTARY: 110.1b—Private study of the heavens receives the same punishment. ARTICLE: 110.2—The wei ,¾, hou {|j|, and the lun-yu' chan smHPIS are not prohibited. 44 SUBCOMMENTARY: . . .This refers to the instruments used to measure heaven, to plot the course of the stars, and the paths of the Sun and Moon. They move and thereby we see the changes of the seasons. The Book of Changes states: "In the heavens hang images that reveal good fortune and misfortune; the holy sage reproduces these."4:,The Book of Documents states:"He examined the gem-adorned turning sphere, and the gem transverse tube, that he might regulate the seven Directors." 46 The Historical Record's chapter on Heavenly Officials states that the heavenly pattern consists of the Sun, the Moon, and the five stars and the twentyeight mansions. 47 Therefore the Book of Changes states:"[Pao Hsi] looked upward

"This can be the case ordinarily. See Article 56,VoI i,p. 268. "Because of the widespread belief that natural phenomena forecast human events, ordinary people were not allowed to study the stars. An imperial edict of 840 states that government astronomers are not to have contact with other civil servants The seriousness of this offense is reflected in the fact that confession of the offense would not bring forgiveness of it. See Vol. I, p. 35, η 87, and p. 209, Article 37. ""The apocryphal books are discussed in detail inTjan, WltiteTiger ΗαΙΙ,ι, 100. He believes that Wei books originally were intended to provide additional esoteric information, while chan books were oracle books by which one could predict the future.That the Lun-yu chan was not prohib­ ited would seem to cast some doubt on this interpretation. 45 Yi ching, "Hsi-tzu," p. 157; Wilhelm, I Clung, p. 320. 16 SIw clung, "Shun tien," p. 35; Legge, The Chinese Classics, in, 33. ""This is a paraphrase of Ssu-ma Ch'ien's remarks about the heavens found in Shih chi 27/37b;

Article 111

79

and contemplated the images in the heavens. . . . the Yellow River brought forth a map and the Lo River brought forth a writing." 48 Apocryphal books are those recorded by the sages and wise men of previous eras. Military books are those such as The Six Strategies of the Great Duke and the Three Plans of the Yellow Stone Duke. Books on the seven days refer to those dealing with the calendar,49 the Sun, Moon, and five stars. The Methods of the Great Monad and the Methods of the God of Thunder are the names of books of methods to prognosticate good and evil.30 . . . If one transmits or uses incantations so as to involve people in disobedience, then the law on making magical incantations is followed.51 . . . As for wei, [12b] hou, and chan books, they are not prohibited.

Article 111 Delay in the Copying of Imperial Decrees ARTICLE: 111.1—All cases of delay in the copying of imperial decrees {chih-shu ¢!1¾) are punished by fifty blows with the light stick for the first day.52 COMMENTARY: Copying imperial decrees, imperial edicts, tallies, and transfers are treated the same. ARTICLE: One degree of punishment is added for each further day, and ten days' delay is punished by one year of penal servitude. [83] SUBCOMMENTARY: There are no time limits in the Statutes for copying imperial decrees. But when decisions are made, they must be put into effect the same day. Reference to the same day means within 100 fe'o.33 The time limits for copying include the totals for tallies, transfers (yi ^ ) , communications (kuan §fl), and reports (tieh JfJ|).They are two full days for two hundred pages or less. Beyond this, an additional day is allowed for each further two hundred pages or less. But no matter what the quantity of pages, the limit is five days. For amnesties, the time limit is three days without regard for the quantity of pages. Urgent military matters must be completed on the same day. . . . Chavannes, Memoires historiques, in, 401. The twenty-eight mansions are the equivalents of our constellations. "Yi ching, pp. 167 and 157;Wilhelm, 1 Ching, pp. 329 and 320. ""Here and below, SS should be written Ii If, following the KHCPTS edition. '"Tai, Specific Articles, p. 39, quotes the Tang Institutes to the effect that while these two books are forbidden, a third, the Methods of the Six Kings, is in common use. 3, See Article 268 below.The punishment was strangulation. 52 According to des Rotours, Fonctionnaires, i, 97, the Secretariat used letters of decree to communicate with the Department of State. 33 One hundred k'o are a day. See Vol. ι p. 265, Article 55.

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ARTICLE: 111.2—For official documents (kuan wen-shu ^ ¾ ¾ ) a delay of one day is punished by ten blows with the light stick. One degree of punishment is added for each further three days, with a maximum punishment of eighty blows with the heavy stick. [13a] SUBCOMMENTARY: Official documents mean those ordinarily circulated among government offices, and not imperial decrees, imperial edicts, or memorials to the throne (tsou-ch'ao H fj>). According to the statute: "Matters of least importance have a five-day time hmit, matters of medium importance have a ten-day time limit, and matters of greatest importance have a twenty-day time limit."54 Thirty days is the limit for those involving penal servitude or more after the punishment has been accepted by the criminal. Where the second official in a government office and those who recheck a document are three persons or less, there is a time limit of one day.55 If it must go through four persons or more, the time limit is four days. If it is a great matter, one day is added in each case. Documents that are confidential or urgent do not come within this article. Confidential and urgent refer to urgent military matters that are not subject to any time limit. Where they must be finished and are not also follows the law on delay and time limits. Aside from these, however, all others follow the time limits.

Article 112 Violation in Carrying Out an Imperial Decree ARTICLE: 112.1—All cases of those who commit a violation in carrying out an imperial decree are punished by two years of penal servitude. 112.2—If the violation is by mistake or error, the punishment is one hundred blows with the heavy stick. COMMENTARY: Mistake or error means a mistake in the meaning. SUBCOMMENTARY: . . . If the violation was not intentional but was by mistake or error, the punishment is one hundred blows with the heavy stick. QUERY: The article states: "Cases of those who commit a violation in carrying out a written decree." It is not yet known whether the punishment is the same for imperial edicts and memorials to the throne or not? [13b]

54

Niida, Statutes, ρ 595. This process of handling government documents is described in Vol. i, p. 216, Article 40, which deals with the collective responsibility of officials. 55

Article 113

81

REPLY: In the article above on delay in copying imperial decrees,56 the commentary states: "Copying such documents as imperial decrees, imperial edicts, tallies, and transfers are all considered the same." Thus it is clear that imperial decrees and imperial edicts are treated with the same seriousness. As for memorials to the throne, the emperor himself writes "noted." An imperial decree then proclaims and puts into force the imperial will. A document on which the emperor has written is not of less importance than one that expresses the imperial will. Thus it is reasonable that memorials to the throne and imperial edicts are of the same importance as a written imperial decree.

Article 113 Forgetting or Misunderstanding in Connection with Imperial Decrees ARTICLE: 113.1a—In all cases where those who receive an imperial decree forget about or misunderstand it, or of those who make errors in writing an imperial decree, if no mistake has yet been caused in the matter, are punished by fifty blows with the light stick. 113.1b—If a mistake has already been made, the punishment is seventy blows with the heavy stick. 113.2—The person to whom the imperial decree was transmitted has his punishment reduced one degree. [84] SUBCOMMENTARY: This refers to the person who receives the imperial decree making an omission or error in the matter. Or, the person who writes the imperial decree leaving out or adding words, or writing the wrong words. . . . As for the person to whom the imperial decree was transmitted, even though he himself caused the error, he was not the person who (initially) received the imperial decree or edict. Therefore his punishment is reduced one degree.

'See Article 111 above

CHAPTER X

Article 114 [la; 84]

Improper Correction of Errors in Imperial Decrees

ARTICLE: 114.1—All cases of those who upon finding an error in an imperial decree do not memorialize for the imperial decision but rather improperly correct the error are punished by eighty blows with the heavy stick. 114.2—Those who correct errors in official documents without informing the official concerned are punished by forty blows with the light stick. 114.3—Those who know of an error in, yet carry out, an imperial decree or official document without memorializing the throne or informing the official concerned receive the same punishment. 114.4—For those who improperly embellish the text, the punishment is increased two degrees in each case. SUBCOMMENTARY: Errors in an imperial decree refer to mistakes in expressing the imperial will, or words that have been left out or added, or where the reasoning is faulty. All such errors should be memorialized to the throne again and the imperial decree put into force after they have been corrected. . . . [lb] According to the Statute on Public Standards: "When an imperial decree or imperial edict is proclaimed and words have been left out or added to the text so that the matter and reason cannot be amended and carried out, the original document is inspected so that the parts are clearly understood. Then it may be corrected and need not be memorialized again. Where there are omissions or errors in an official document, one should consult with the senior official and correct the document." 1 For those who improperly embellish the text, the punishment is increased two degrees in each case. This means that those who embellish the text of an imperial decree but do not put the matter into force are punished by one hundred blows with the heavy stick. If they do put the matter into force, their punishment follows the laws on forging or adding to or taking away language in an imperial decree or official document. 2

'Niida, Statutes, p. 602. See Articles 367 and 369 below, dealing with imperial decrees and official documents, respectively. For an imperial decree, the punishment is strangulation, and for an official document, one hundred blows with the heavy stick. 2

Article 115

83

Article 115 Violating Name Taboos in Documents or Memorials on Affairs Submitted to the Emperor ARTICLE: 115.1a—All cases of violating ancestral temple name taboos in documents or memorials on affairs submitted to the emperor are punished by eighty blows of the heavy stick.3 115.1b—If such errors are spoken, or used in other official documents, the punishment is fifty blows with the light stick. SUBCOMMENTARY: . . .

ARTICLE: 115.2—Cases of offending by using the emperor's name are punished by three years of penal servitude. 115.3—With regard to taboo names, the use of words that sound the same but are written differendy or the use of only one of two taboo words is not punished. COMMENTARY:Taboo names refer to those such as yu ^ and yu M , ch'iu I r and ch'ti M , or saying cheng Hft but not tsai~%£,or saying tsai ^±_ but not cheng Hfc. [85] SUBCOMMENTARY: "Within the boundaries of the country, there are none who are not the servants of the king." 4 The rule for giving names is that those who improperly offend against the taboo of the imperial ancestral temple names are punished [2a] by three years of penal servitude. As for taboo names, the Book of Rites states: "Yu (the legendary emperor) and rain (yw)."5This refers to taboo words (where the sound is the same) yet the words are differendy written. Or ch'iu and ch'U, where the meaning is the same yet the sound is different. The offense of using one of two taboo words refers to where there is a twocharacter name and the offender uses only one of them. In neither of these cases is there punishment.This refers to Confucius's mother being named Cheng-tsai. Confucius s a i d : " . . . The sorrow of the Chi-sun family will not be on account of Chuan-yii." 6 Cheng was not spoken. He also said:" . . . Chi cannot sufficiendy

3

See the subcommentary to Article 116 below for definitions of these two important terms. S/»/i ching, "Pei shan," p. 444; Legge, The Chinese Classics, iv, 360—361. 5 This is Cheng Hsuan's (127-200) commentary on Li chi,"Ch'u-h," p. 58; Couvreur, Li ki, I, 57—58, which deals with taboo names The passage says that if a name is composed of two characters, one of them may be spoken and written.This is illustrated by Confucius's mother's name immediately below. 6 LiW yu, "Chi-shih," p. 146; Legge, Tlie Chinese Classics, I, 309. The character used for "on account of" is the tsai of Confucius's mother's name. 4

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Article Π 6 7

attest my words." Tsai was not spoken. There are many such examples. There­ fore the words "such as" are used.

Article 116 Making Errors in Documents or Memorials on Affairs Submitted to the Emperor ARTICLE: 116.1a—All cases of those who make errors in documents or memo­ rials on affairs submitted to the emperor are punished by sixty blows with the heavy stick. If such errors are spoken, the punishment is reduced two degrees. COMMENTARY: Spoken errors that do not cause mistakes in a matter are not punished. SUBCOMMENTARY: Documents submitted to the emperor refer to documents that are specially brought to the emperor. Memorials on affairs refer to setting forth views in front of the emperor. . . . ARTICLE: 116.1b—Errors of this kind in documents sent to the Department of State are punished by forty blows with the light stick. 116.1c—Errors in other documents are punished by thirty blows with the light stick. COMMENTARY: Errors mean deleted or added words as well as mistakes. SUBCOMMENTARY: Errors of this kind in documents sent to the Department of State refer to documents sent up from offices both in the capital and in the provinces where words are deleted or added, or in which there are mistakes, being punished by forty blows with the light stick. Errors in other documents refer to all documents except those sent up to the Department of State. Such errors are punished by thirty blows with the light stick. [2b] ARTICLE: 116.2—If such errors cause harm, the punishment is increased three degrees. COMMENTARY: Causing harm refers to such cases as where the wording should state "do not pardon him," yet it states "pardon him," or should state "one thousand pieces," yet states "ten pieces." 8 7

LwM yw,"Pa-yi," p. 27; Legge, The Chinese Classics, i, 158. The character used for "sufficiently attest" is the Cheng of Confucius's mother's name. 8 The characters for one thousand (ch'ien ^p) and ten (shih "f") differ by only one stroke, so the mistake is an easy one to make.

Article 117

85

SUBCOMMENTARY: Where there are errors in documents submitted to the emperor or memorials to the throne, the punishment is ninety blows with the heavy stick. Errors that cause harm in documents sent up to the Department of State are punished by seventy blows with the heavy stick. Errors that cause harm in other documents are punished by sixty blows with the heavy stick. This is what is meant by the punishment is increased three degrees in each case. . . . Such cases mean errors of the same type of which there are many and which cannot be brought under one heading. Where the documents about the crime should state "pardon him," yet they state "do not pardon him," or where they should state "do not pardon him," yet state "pardon him," if the mistaken sentence has already been carried out or where the person has been pardoned and released, where the proper article carries a heavier punishment, the sentence will be for mistakenly decreasing or increasing punishment. 9 The punishment cannot simply follow this law on increasing the punishment three degrees where harm is caused. ARTICLE: 116.3—If despite the mistake the meaning of the document can be carried out and it is not a document submitted to the emperor or a memorial on affairs to the throne, there is no prosecution. COMMENTARY: Can be carried out means that upon examination the meaning of the document can be known and that it does not permit a different meaning. An example is "A sends u p " reading "sends up A." [86] SUBCOMMENTARY: From the Department of State on down, even though there are errors, if upon examination the meaning of the document can be carried out, there will be no prosecution. Can be carried out means that upon examination of the document, what is right and wrong can be distinguished. . . . [3a] Mistakes of this kind that can be perceived upon examination are not prosecuted.

Article 117 Not Memorializing Matters That Ought To Be Memorialized ARTICLE: AU cases of not memorializing matters that ought to be memorialized, or memorializing matters that ought not to be memorialized, are punished by eighty blows of the heavy stick. Where (1) a report should be made to superiors and is not, or (2) a report is made that should not have been, or 'Vol. I, p. 252,Article 49, requires that when two articles are applicable to an offense, whichever one carries the heavier sentence be applied. On mistaken increases and decreases in punishment, see Article 487 below, where the official receives either the proper punishment if he decreased it or the increased punishment that he sentenced.

86

Article 117 (3) an official does not follow the proper procedures but bypasses them in sending up reports to superiors, or (4) a matter that should be sent down to lower officials is not, or (5) a matter has been sent down to lower officials that should not have been; these are punished by sixty blows with the heavy stick in each case.

COMMENTARY: Even though the matter has been memorialized, where action is taken without waiting for a reply, the punishment is the same. SUBCOMMENTARY: Not memorializing matters that ought to be memorialized refers to matters that according to the Code, the Statutes, or the Ordinances ought to be memorialized. Memorializing matters that ought not to be memorialized refers to documents that according to the Regulations, the Statutes, and the Ordinances need not be memorialized, or matters in which the principles of the affair do not need the emperor's attention. . . . The commentary states: "Even though the matter has been memorialized, where action is taken without waiting for a reply, the punishment is the same." This means that where the matter ought to be memorialized or has already been reported to superiors, it is required that a reply should be received before any action is taken. If action is improperly taken without waiting for a reply, the punishment is the same as for not sending up a memorial or making a report to superiors. If, according to the document, it should be memorialized or carried out, and the result of the report or memorial is known, it is not necessary to wait for a reply before carrying it out, and there will be no prosecution. . . . [3b] As for not following the proper procedures but bypassing them in sending up reports to superiors—prefectures control counties, and governors general control prefectures.When prefecture and county matters must be sent up to departments, they must first be reported to the prefecture or superior prefecture that controls them. If such a report is not made, this constitutes not following the proper procedures. As for matters that should be sent down to lower officials and are not and matters that have been sent down to lower officials that should not have been are, this refers to where a tally, transfer, communication, permit, or notice (tz'u j|!!j) should not have been issued and was, or where it should have been issued and was not. The punishment is sixty blows with the heavy stick in each case.

Article 119

87

Article 118 Substitution of Signatures Giving Authorization of Administration or Endorsement on a Government Document When the Language Is Correct ARTICLE: 118.1a—All cases of substitution of signatures giving authorization of administration of a government document when the language is correct are punished by eighty blows with the heavy stick. 118.1b—The person who substitutes an endorsement is punished by one year of penal servitude. 118.2—If the document is lost or mistakes are made in it, the punishment is increased one degree for the person who substitutes. SUBCOMMENTARY: Official documents refer to government documents such as memorials or memoranda to the throne (chuang $7¾, or tallies, transfers, communications, explanations (chieh f$), notices, or permits. . . . [4a] Where language is added or taken away so that the punishment that is decreased or increased is heavier than in this article, the offender receives such heavier punishment. According to the statute, officials of the fifth rank and above write "approved (k'o nj)"; officials of the sixth rank and below write "noted." 10 If a substitute writes "noted," this is the same as adding to or taking away language in an imperial decree.11 But where "imperial decree approved" is written, the commentary on the office of Director of the Imperial Chancellery states that punishment is limited to that in this article.12

[67]

Article 119 Not Returning after Being Sent on a Mission with an Imperial Decree

ARTICLE: 119.1a—All cases of those who receive an imperial decree to carry out a mission and who do not return and make a report of that mission, or who improperly involve themselves with other matters, are punished by one and one-half years of penal servitude. 119.1b—If this results in any damage or loss, the punishment is three years of penal servitude. 119.2a—If those sent on other kinds of missions wrongfully involve themselves in other matters, the punishment is ninety blows with the heavy stick. '"Niida, Statutes, pp. 559 ff. "See Article 367 below. 12 As Tai, Specific Articles, p. 44, points out, this is a quote from the T'ang Institutes, p. 172. The Director of the Imperial Chancellery was one of the most powerful men in the government. See the discussion in des Rotours, Fonctionnaires, I, pp. 131-138.

88

Article ί20 119.2b—If this results in any damage or loss, the punishment is one year of penal servitude. 119.3—If they overstep their office and encroach on other officials' duties, the punishment is seventy blows with the heavy stick.

SUBCOMMENTARY: . . . Other missions refer to those that are not due to an imperial decree. . . . Overstepping their office and encroaching on other officials' duties refers to offices being set up with defined duties, each having that over which it has jurisdiction. If an official oversteps his own department and encroaches on others' duties, the punishment is seventy blows with the heavy stick. Those who receive an order from one of the three empresses 13 or the heir apparent to carry out a mission and do not return and make a report are pun­ ished one degree less for an imperial decree or edict.

Article 120 [4b]

Concealing and Not Mourning the Deaths of Parents or Husband

ARTICLE: 120.1a—AU cases of persons who upon hearing of the deaths of parents or husband conceal it and do not mourn are punished by life exile at a distance of 2,000 Zi'.14 120.1b—If a person takes off mourning clothes and wears ordinary clothing before the end of the mourning period, or neglects mourning by making music, the punishment is three years of penal servitude. CoMMENTARY:The punishment is the same if the person makes the music himself or herself or has another person do it. ARTICLE: 120.1C—Those who listen to various forms of theatrical entertain­ ment are punished by one year of penal servitude. 120.Id—Those who chance upon a musical performance and listen or take part in any happy occasion receive one hundred blows with the heavy stick. SUBCOMMENTARY: The kindness of parents cannot be recompensed in any way. Is it not the bitterest of poisons to learn of their death? The wife considers her husband to be heaven, and her mourning for him is like 15 that for her parents. "These persons are the emperor's paternal grandmother, his mother.andhis empress. See Vol. i, p. 256, Article 51. "This article provides the punishment for two of the ten abominations: numbers seven and nine.This means that it was very unlikely that a violation would go unpunished. See Article 6 in Vol. I, pp. 76 and 80, and the discussion of the ten abominations on pp. 17 ff. 15 VM U should be read lei M, following the KHCPTS edition.

Article 120

89

Upon hearing of the death of any of them she must mourn and weep. How can she select a particular day or wait for a particular season? . . . If a grandson in the male line by the proper wife becomes the heir of his paternal grandparents, they are considered to be the same as his father and mother. 16 Before the mourning period is ended means within twenty-seven months a person takes off mourning clothes and wears ordinary clothing. . . . [5a] ARTICLE: 120.2a—Those who upon hearing of the deaths of relatives of a higher generation or of the same generation but older within the second degree of mourning conceal it and do not mourn are punished by one year of penal servitude. 120.2b—If a person takes off mourning clothes and wears ordinary clothing before the end of the mourning period, the punishment is one hundred blows with the heavy stick. 120.3—For relatives of a higher generation or of the same generation but older of the third degree of mourning or less, the punishment is reduced two degrees proportionately. 120.4—For relatives of a lower generation or of the same generation but younger, the punishment is reduced one degree in each case. SUBCOMMENTARY: Reference to paternal grandparents includes paternal great grandparents and great-great grandparents as well. . . . [5b; 88] (Here the subcommentary goes into detail about the length of mourning. Those who come within the five degrees of mourning are listed in Ou, La Peine, pp. 105 ff.) QUERY: If one does not immediately begin mourning upon hearing of a death but rather begins on some other selected day, what is the punishment if the offense is discovered after one has begun mourning? REPLY: According to the Book of Rites, "When one is wearing mourning for relatives of the first degree of mourning, the voice in lamenting seems to continue (until it fades away) and not to return. For relatives of the second degree of mourning, the voice seems to come and go. For relatives of the third degree of mourning, after three changes of pitch, the sound is extended and then dies away. For relatives of the fourth and fifth degree of mourning, it is sufficient that the sound express sorrow."17 According to the rules of rites, there are different levels of seriousness. The learning of death is common to all, but the feelings are different. For relatives within the second degree of mourning if one does not immediately begin mourn16

This is a repetition of the language in Vol. I, p. 258, Article 52. Here also the term paternal grandparents is defined as including paternal great grandparents and great-great grandparents. "Li'-c/ii, "chien-chuan," p. 955; Couvreur, Li ki, H, 570.

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Article 120

ing, even though one does so on a later day, there must be punishment. So for 18 such relatives the punishment is the heavier following the law on doing what ought not to be done. For relatives of the third degree of mourning, the punish­ 19 ment is the lighter for doing what ought not to be done. For relatives of the fourth degree of mourning or less, it is sufficient that the sound of their mourning express sorrow.Thus they should not be punished. But if the offense is discovered before they have begun mourning, they should be punished for not having begun mourning. FURTHER QUERY: The text of the article does not cover a person making music themselves or having someone else do so while in mourning for a relative of the second degree of mourning. What should be the punishment? REPLY:The Book of Rites states: " U p o n the arrival of a visitor who is in mourning for a relative of the third degree of mourning, one puts aside stringed instru­ ments." 2 0 Cheng's commentary states:"This is in order to assist him in mourning." The Book of Rites also states: " U p o n the arrival of a visitor who is in mourning for a relative of the fourth degree of mourning, 2 1 one need not stop making music." The "Mourning Clothes" chapter of the Book of Ceremonies and Rites states that anciendy when there was a death in the house, music was not per­ formed for three months. 2 2 How much more then for mourning one's own second and third degree mourning relatives? If a person's mind forgets mourning, or if a person has someone else make music, or if a person himself plays a flute or a stringed instrument, this disgraces the great plan and it must be punished as a warning. So even though the article has no text, such behavior cannot go unpunished, and the sentence is for doing what ought not to be done. 2 3 For relatives of the second the degree of mourning, the punishment is the heavier—eighty blows with the heavy stick; and for relatives of the third degree of mourning or less, forty blows with the light stick. For relatives of a lower generation or of the same generation but younger of the fifth degree of mourning, the punishment cannot be heavier than the punishment for taking off mourning clothes (i.e., thirty blows with the light stick).

18

The blank here should read fa ϊ έ , following the SPTK edition. "See Article 450 below The heavier punishment is eighty blows with the heavy stick, and the lighter punishment forty blows with the light stick. M Both this quote and the one immediately below are from the Li chi, p. 748; Cheng Hsiian's [A.D. 127-200] commentary is found on the same page. Couvreur, Li ki,u, 181. 2 'The blank here should read chiang Jf?, following the KHCPTS edition. 22 ThIs is a paraphrase. 23 ThIS is Article 450, a catch-all that is widely used in the Code

Article 121

91

Article 121 Violating Name Taboos in Administrative Designations and Official Titles ARTICLE: 121.1—All cases involving those who hold posts whose administrative designations or official tides violate their father's or paternal grandfather's name taboos, 24 or those whose paternal grandparents are aged or infirm and are not cared for, or those who leave them with other relations and take office, or who forget their advancing age and condition in order to seek office, or who seek office during the period of mourning for them, are punished by one year of penal servitude. 25 CoMMENTARY:This refers to mourning for the father or mother when the "heart mourning" period is not over and when the t'an jjilf ceremony has not yet been performed. 26 [89] SUBCOMMENTARY: . . . [6b]

ARTICLE: 121.2—Those who make music when their paternal grandparents, parents, or husband have committed a capital offense and are in prison are punished by one and one-half years of penal servitude. SUBCOMMENTARY: Cases where sons, grandsons in the male line, as well as wives and concubines make music while their paternal grandparents, parents, or husband have committed a capital offense and are in prison [7a] are classified as lack of filial piety, or unrighteousness, 27 because these offenses are particularly grave. Therefore the punishment is one and one-half years of penal servitude in each case.

24

ArHcIe 20,Vol. I, p. 130, extends this taboo to the name of the paternal great grandfather as well. However, since Vol. i, p. 252, Article 49, gives preference to a specific article where there is any conflict with the General Principles section, this article takes precedence. 25 This is almost an exact repetition of the first part of Article 20 in Vol. I, p. 129. The subcommentary here repeats the subcommentary for Article 20, almost word or word, hence I have left it out. 26 On these technicalities of mourning, see Vol. I, p. 131, n. 19. The only different information given here is that the mourning period by the son of a concubine or the son of a wife who has been repudiated is twenty-five months instead of twenty-seven months. ^Classification of this offense as lack of filial piety and unrighteousness brings it under the ten abominations. See Vol. I, pp. 61 ff, Article 6, and the discussion on p. 17.

92

Article i22

Article 122 Criticizing the Emperor ARTICLE: 122.1a—All cases of criticizing the emperor where the circumstances are completely reprehensible are punished by decapitation. 28 122.1b—If the circumstances are not completely reprehensible, the punishment is two years of penal servitude. COMMENTARY: Those who in discussing the deficiencies of government affairs involve the emperor are allowed to send up a petition. SUBCOMMENTARY: Criticizing refers to talking about the emperor where both the original circumstances and the principle are completely reprehensible. Such cases are punished by decapitation. The commentary states: "Those who in discussing the deficiencies of government involve the emperor are allowed to send up a petition." This refers to discussing the country's laws and regulations, talking about their being right or wrong, and so involving the emperor. This is different both in the circumstance and in principle from criticizing the emperor, and therefore no punishment is determined; rather, provisionally a petition is sent up. Cases that are not completely reprehensible are punished by two years of penal servitude. This refers to where in discussions a person criticizes the emperor, yet in circumstance and in principle it is not completely reprehensible. The punishment is two years of penal servitude. ARTICLE: 122.2—Opposing commissioners with imperial decrees, or lacking the proper behavior that a subject owes to his emperor, is punished by strangulation.29 COMMENTARY: This offense does not include conflicts resulting from private affairs. [90] SUBCOMMENTARY: This refers to the commissioner who has received an imperial decree or imperial edict proclaiming it. Anyone who opposes such a commissioner, does not have the proper behavior that a subject owes to his emperor, does not accept the decree, or speaks out opposing the imperial decree is punished by strangulation. The commentary states: "This offense does not include conflicts resulting from private affairs." [7b] This means that the private conflicts resulted from other matters and were not connected with imperial decrees or imperial edicts. 28 This crime comes under the sixth of the ten abominations, called "great irreverence." See note 27 above. -"Ibid.

Article 123

93

Or, even though the conflict resulted from public affairs, it was not connected with the imperial decree or imperial edict. In both cases the punishment follows the relevant law on beating and cursing commissioners. 30

Article 123 Postal Relay Couriers Who Fall behind Schedule ARTICLE: 123.1—All cases of postal relay couriers who fall behind schedule are punished by eighty blows with the heavy stick for the first day, increased one degree for each further two days, and with a maximum punishment of two years of penal servitude. SUBCOMMENTARY: According to the statute: "Included with what is given to postal relay couriers are bronze dragon transmission tallies. At places where there are no transmission tallies, they give a paper certificate (chih-chiian | f t ^ ) , which is in two parts. Depending upon the seriousness of the matter, the number of post relay stations is noted on the tally."31 According to this number of postal relay stations, the postal relay courier is given a time limit. . . . ARTICLE: 123.2a—In the case of urgent military matters, the punishment is increased three degrees. 123.2b—If this results in harm or loss, even one day of violation of the schedule is punished by life exile with added labor.32 123.2c—If, as a result of the delay, any part of the population, army, or walled outposts is defeated or falls, the punishment is strangulation. SUBCOMMENTARY: Urgent military matters refer to such matters as attacks, concealment, reporting news of the frontier and of bandits. . . . If there is harm or loss refers to such things as territory, secret surprise attacks, or reports. So for even one day of violation of the schedule, the punishment is life exile with added labor. References to day mean a full [8a] one hundred k'oP . . . If the delay involves reports about an army on the point of encountering the enemy, punishment follows the law on delaying army levies.34

w See Article 312 below. The punishment there for beating is three years of penal servitude, with one hundred blows with the heavy stick given for cursing. "Nuda, Statutes, p. 579. The quotation from the Statutes, as well as portions of this subcommentary, have been translated by des Rotours, "Les insignes," p. 94. 32 Added labor meant three years of labor instead of the one year that was usual for life exile. And the distance of the exile was always 3,000 Ii See Vol. I, p. 147, Article 24. 33 This is the definition of a day given in Vol. I. p. 265, Article 55. w See Article 230 below The punishment was decapitation.

94

Article 124

Article 124 Postal Relay Couriers Who Turn Over Official Documents to Others ARTICLE: 124.1a—All cases of postal relay couriers who without a reason turn over official documents to others to carry, punish both the postal relay courier and the person who receives the documents and carries them by one year of penal servitude. 124.1b—If this results in delays, the person who is carrying the documents is the principal, and the postal relay courier is the accessory.33 124.1c—In the case of alarming or urgent military matters, the postal relay courier is the principal and the person who is carrying the documents is the accessory. COMMENTARY: If there is harm or loss, the punishment follows the previous article. ARTICLE: 124.2—If documents are sent by others that need not be sent by a special courier, there is no prosecution. SUBCOMMENTARY: For such things as urgent mihtary matters, the collection of taxes, or reports, the documents are sent by a courier riding post horses. Without a reason means that without any personal difficulties, or observing mourning for parents, the courier sends the documents that he was carrying to another person to take them. . . . [8b; 91]

Article 125 Documents That Are Required To Be Sent by the Postal Relay Service ARTICLE: 125.1—All cases of documents that are required to be sent by the postal relay service and are not, or that are not required to be sent by the postal relay service and are, are punished by one hundred blows with the heavy stick. 125.2—In cases where, according to the statutes, documents should be sent to the palace by courier and they are not, the punishment is the same. SUBCOMMENTARY: According to the Statutes on Public Standards:"All the offices in the capital use the postal relay service.When prefecture offices have matters of the greatest importance and urgency, they are all sent by the postal relay service."36 . . . According to the Statutes on Ceremonial Regulations: "When the emperor ascends the throne or is crowned, or the emperor's mother is given a temple 35 The accessory receives one degree less punishment than the principal. See Vol. I, p. 225, Article 42. 36 Nnda, Statutes, pp. 588-589.

Article 127

95

name, or an empress, or an heir apparent is announced, or there is an amnesty, or New Year's day, prefects and capital officials of the fifth rank and above who are outside the capital all offer congratulations to the throne. Prefectures send these by couriers; other administrative areas attach them to a memorial to the throne." 37 . . .

Article 126 Postal Relay Couriers Who Do Not Follow the Address ARTICLE: 126.1—All cases of postal relay couriers who receive documents and do not follow the address but through error deliver the documents to another place resulting in a delay are punished for a delay in carrying documents with the punishment reduced two degrees.38 126.2—If the error results from the address, the person who wrote the address is punished. SUBCOMMENTARY: When government documents are sent out, each goes to a particular place. The person who writes the address must carefully note the prefecture or superior prefecture to which the document is sent. . . . [9a]

Article 127 Taking an Excessive Number of Post Horses [9b] ARTICLE: 127.1a—All cases of riders taking an excessive number of post horses are punished by one year of penal servitude for the first one and increased one degree for each further horse. COMMENTARY: 127.1b—Where post donkeys are required yet the rider uses a horse, the punishment is reduced one degree. ARTICLE: 127.2—If the officer in charge knows the circumstances, he receives the same punishment. If he does not know the circumstances, he is not punished. COMMENTARY: Other articles on post horses follow this article. SUBCOMMENTARY: According to the Statutes on Public Standards: "Active duty officials of the third rank and above and princes are given four post horses. 37

Ibid., p. 478. That is, Article 123 above. Reduced two degrees, the punishments would range from sixty blows with the heavy stick to three years of penal servitude, depending upon what resulted from the delay. 38

96

Article 128

Officials of the fourth rank and dukes of state and above are given three. Officials of the fifth rank and nobles of the third rank and above are given two. Titular officials and former officials are each proportionately given one less than active duty officials. Other officials, nobles, and unranked persons are each given one. None may take more than this number of post horses. If they need more than this number, they must apply to the clerk, who may temporarily give them more according to the circumstances."39 This is the number specified by the text of the statute. If more are taken, this is termed excessive. For the first post horse, the punishment is one year of penal servitude, increased one degree for each additional one. As to requiring post donkeys, according to the Ordinance on the Bureau of Equipment: "Former officials of the sixth rank and [92] below, titular officials, guard officials, couriers dispatched by a department, and those on urgent business are given horses. Couriers returning and other couriers are all given donkeys."40 . . . Where the officer in charge knows the circumstances, he receives the same punishment refers to the officer in charge of the horses at the post relay station knowing about the increase of post horses or knowing that a horse has been taken where a donkey was required. In all these cases, he receives the same punishment as the rider. . . . Other articles on post horses follow this article refer to those on taking the wrong route and carrying private articles while riding a post horse.41

Article 128 [10a]

Taking the Wrong Route while Riding Post Horses

ARTICLE: 128.1—All cases of improperly taking the wrong route while riding a post horse are punished by one hundred blows with the heavy stick for the first Ii, increased by one degree for each further five Ii, and with a maximum punishment of two years of penal servitude. 128.2—If the rider goes beyond the proper destination to another place, the punishment is increased one degree in each case. COMMENTARY: This means beyond the place indicated on the passport. ARTICLE: 128.3a—If the rider passes a post relay station without changing horses, the punishment is eighty blows with the heavy stick. COMMENTARY: 128.3b—If the post relay station has no horses, the rider is not punished. "Niida, Statutes, p. 579. On these different ranks and titles, see Vol. i, pp. 23 ft". "This ordinance has not survived 4l See Articles 128 and 129 below.

Article 129

97

SuBCOMMENTARY:Those who ride post horses must follow the post road and go in the direction of the next post relay station. If they do not follow the post road but take another route, this is taking the wrong route. As for going beyond the proper destination to another place, the commentary states: "This means beyond the place indicated on the passport." For example, if a courier from the capital is going to Lo-chou and without reason improperly goes beyond Lo-chou to the east, the number of Ii is calculated and the punishment for taking the wrong road is increased by one degree. . . . If a rider passes a post relay station without changing horses and because of this causes the animal's death, according to the Statutes on Stables and Pastures: "Those mounted on official beasts, if they cause their death without good reason, must repay the reduced value."42 If the post relay station has no horses, the rider is not punished refers to there being no punishment for a rider who passes by a post relay station that has no horses. If the animal dies as a result of this, the rider will not have to pay compensation. QUERY: Suppose a courier takes the wrong route while riding a post horse and goes five Ii, then returns. Coming and going there is a total of ten Ii. In such a case, what is to be the punishment? [10b] REPLY: The article's emphasis on the wrong route basically is concern for the horse's work, as well as for fear that the journey will take longer, and that the matter (for which the journey was undertaken) will be delayed. So the sentence will be for the ten Ii coming and going.

Article 129 Carrying Private Articles while Riding Post Horses ARTICLE: 129.1—All cases of carrying private articles while riding post horses are punished by eighty blows with the heavy stick for the first chin of weight, increased one degree for each further chin, and with a maximum punishment of one year of penal servitude. CoMMENTARY:This means articles other than clothes or weapons carried on the person. ARTICLE: 129.2—For a post donkey, the punishment is reduced two degrees. COMMENTARY: Reference to post donkeys in other articles follows this article. 42 Nuda, Statutes, p. 711 This statute is repeated in Article 397, where the phrase "reduced value" (chien-chia jftfil) is used.

98

Article 130

SUBCOMMENTARY: When riding a post donkey or a post horse, it is only allowed to carry the clothes and weapons that are needed for oneself. This refers to things such as clothes and outer garments. Weapons refer to bows, swords, and the like. . . . Reference to donkeys in other articles follows this article means such offenses as delays or taking the wrong route. In all these articles, where post donkeys are involved, the punishment is reduced two degrees.43

Article 130 [93]

Offenses Committed by Senior Officials and Commissioners

ARTICLE: All cases where a senior official in the provinces or a commissioner commits an offense at the place to which they are sent, do not permit officials of the office to which they belong to interrogate them. [Ha] Rather, in all cases a memorial is sent up requesting the emperor's decision. If the offense is capital, the offender must be imprisoned while the decision is awaited.Violations will be punished four degrees less than the punishment for the offense that was committed. SUBCOMMENTARY: Senior officials in the provinces refer to such persons as governors, prefects, commanders and deputy commanders of militia units, magistrates, and officials in charge of customs barriers. . . . Neither the official who is second in command nor lower officials may interrogate them. In the case of commissioners, the officer in charge of the office to which he has been sent may not interrogate them. For offices that do not have a senior official, the official second in command who is in charge of the fish seal is considered the same as a senior official. . . . If the offense is capital means that according to the circumstances that have been reported, the offense would merit the death penalty. As for the official who is imprisoned, his seal and keys are turned over to the administrative clerk of the official who is second in command. His bronze fish tally is kept and compared. Even though the imperial decree tally is returned to the prisoner, these others (the seal, keys, and bronze fish tally) are not.

Article 131 Completion of Matters in Which Tallies and Ensigns Have Been Used ARTICLE: All cases in which tallies and ensigns have been used and have been completed require that they be returned. A delay of one day is punished by 43

On delays, see Articles 123—126 above, and on taking the wrong route, see Article 128 above

Article 131

99

fifty blows with the light stick, increased one degree for each further two days, and punished by one year of penal servitude for ten days.44 [10b] SuBCOMMENTARYiAccording to the statute: "Tallies and ensigns both come from the Imperial Chancellery. Tallies are made of bronze. The left half of the tally is kept in the imperial palace while the right half is kept in the provinces by the people who are in charge of tallies.43 When there is some matter that must be carried out and the tallies matched, the emperor is to give out the left half of the tally in order that it may be joined with the right half. "When the tally has been received and used and the matter has been completed, the commissioner must return the left half of the tally. If the commissioner goes to another place and within five days no other commissioner has arrived, the place where the tally has been received and used must send a special commissioner to return the left half of the tally to the Imperial Chancellery. "When great commissioners go out from the capital they carry ensigns.When these great commissioners return to the capital, they must give back the ensigns."46 A delay of one day is punished by fifty blows with the light stick, increased one degree for each further two days, and punished by one year of penal servitude for ten days. Even if this number of days is exceeded, the punishment cannot be increased. Transmission tallies (chiian-fu 0§-ffi) are commonly made of paper. When the courier arrives at his destination, he must turn the transmission tally over to the office there even if the matter has not been completed. When the matter has been completed and the courier is going to return to the capital, he requests that the transmission tally be returned to him.When he arrives at the Imperial Chancellery, he then turns over the transmission tally. There is no time limitation; he turns it over when he arrives. As for violations of the time limit, since the transmission tally is not a bronze fish tally, punishment cannot be sentenced using this article. But because it is a transmission certificate in two parts, the punishment is increased one degree beyond that for delay in the delivery of official documents. The punishment for such tallies as those for the gate of the imperial garden or fish tallies for the return of weapons or for inspections as well as for flat wooden tallies in two parts in other articles is reduced two degrees. For delays in returning them, in accordance with this rule, the punishment is also reduced two degrees. In the case of a flat wooden tally in two parts to dispatch troops, the punishment is the same as for the tallies and ensigns given above.

44

This article has been translated by des Rotours in his "Les insignes," pp. 92-93. My translation differs slightly in that I follow Tai and Shiga's punctuation. 45 Note the mention of such a provincial officer who is in charge of the "fish seal" in the previous article. '"'Niida, Statutes, p. 584; des Rotours, "Les insignes," pp. 92-93.

100

Article 132

Article 132 Delay in Carrying Out Official Matters [12a] ARTICLE: 132.1—All cases of delay in carrying out official matters or violations connected with meetings that are held at set times are punished by thirty blows with the light stick for the first day, increased one degree for each further three days. After one hundred blows, the punishment is increased one degree for each further ten days, with a maximum punishment of one and one-half years of penal servitude. [94] SUBCOMMENTARY: Generally cases involving official matters that must be carried out refer to those that have been sent by a ministry, that are not dependent upon official rank, and where there is an improper delay. Meetings held at set times refer to those for such persons as territorial representatives (ch'ao-chi shih 1 5 ¾ ! ¾ ) 4 7 and tax register representatives (chi-chang shih

ϊ+ϋ{£).48... Where a matter has a set time the number of days in violation of the set time is the basis for punishment. Where there is no set time, the time limit for official documents or articles ordered by a ministry is the basis for punishment. 4 9 ARTICLE: 132.2—If an official matter has a time limit or the officer in charge of

carrying the tally from the capital violates the time limit, the punishment is the same. 30 132.3—If through error the official document does not go to the correct address, or the address is the wrong one so that there is a delay, the punish­ ment is reduced two degrees in each case. SUBCOMMENTARY: The meaning of a time limit for official documents is the

same as that in the above text on set times for meetings. . . . If the commissioner does not follow the address but mistakenly goes to an­ other address, or if the address put on by the office has an error so that there is a delay, the punishment is reduced two degrees in each case. . . .

"This refers to representatives that came to the capital to take part in the annual New Year's audience. See des Rotours, Fonctiotmaires, I, 196. 48 The tax register was compiled every year. See Niida, Statutes, p. 674; Twitchett, Financial Administration, p. 143. The point here is that these are set times of the year •"See Article 111 above. With an increase of one degree, the punishment for one day's delay would be ten blows with the light stick, increased by one degree for each further three days, with a maximum punishment of ninety blows with the heavy stick. 50 NMa, Statutes, p. 602. There were daily distances for traveling both by land and by water.

C H A P T E R XI

[la; 94]

Article 133 Being Assigned a Mission and Hiring or Sending Other Persons To Carry It Out

ARTICLE: 133.1a—AU cases where those who have been assigned a mission to transport something hire or send other persons to carry out the mission are punished by one hundred blows with the heavy stick. 133.1b—If there is any loss, the punishment is one year of penal servitude. 133.1c—The persons who are hired or sent have their punishment reduced one degree. SUBCOMMENTARY: Being assigned to a mission refers to such instances as where a senior and a junior special duty officer are assigned to transport such things as government property, prisoners, or domestic animals and they do not go themselves but hire or send other persons to carry out the mission. . . . If there is any loss refers to the things mentioned above being harmed or lost. In such case, the punishment is one year of penal servitude. If the persons who were hired or sent do not cause the harm or loss, their punishment is ninety blows with the heavy stick. But if there is any loss, their punishment is one hundred blows with the heavy stick. ARTICLE: 133.2a—If the senior and junior special duty officers replace each other, so that one is released from the mission, the punishment is fifty blows with the light stick.1 133.2b—If bribes are taken, the punishment is for illicit goods obtained through malfeasance.2 133.2c—If there is any loss, the punishment follows this law on hiring or sending other persons to carry out a mission and there is loss. 133.2d—The senior special duty officer is the principal and the junior special duty officer is the accessory.3 [Ib] SUBCOMMENTARY: N O matter whether it is the senior special duty officer 'The reason for the detail about these special duty officers is that they were supposed to be in charge of the transport of taxes. See also Articles 215—223 below, which deal with this subject. On problems with these officers, see Twitchett, Financial Administration, p. 88, and note 26. 2 See Article 389 below. Punishment ranged from twenty blows with the light stick to three years of penal servitude. Immediately below, punishment is also extended to the accessories, which is one degree less than that of the principal.Vol. I, p. 225, Article 42. 'Generally, accessories received one degree less punishment than the principal. See Vol I, p. 225, Article 42.

102

Article 134

who goes alone on the ministry assignment and allows the junior special duty officer not to go, or the junior special duty officer who takes it upon himself to go and allows the senior special duty officer not to go, both of these offenses constitute replacing each other so that one is released from the mission and are punished by fifty blows with the light stick. . . . In cases of loss, or where bribes are received or paid, the senior special duty officer is the principal and the junior special duty officer is the accessory. Suppose there are two each of senior and junior special duty officers and one each of them takes a bribe to replace the other, so that the ones who give the bribes are able to remain behind.The ones who take [95] the bribes are punished for illicit goods obtained through malfeasance, with the punishment reduced five degrees. Even if the idea was put forward by the junior special duty officer, still the senior special duty officer is the principal and the junior special duty officer is the accessory. The ones who take the bribes are punished for illicit goods obtained through malfeasance. As for the illicit goods, this4 is a case that involves both parties in the offense, and so the illicit goods are confiscated by the state.3 The person who has been hired has already been punished one degree less than those sent on the mission, so he need not be punished for the value of the illicit goods. However, the illicit goods are not repaid. Where a supervisory official takes any articles to replace the junior special duty officer on his mission and release him, in both cases the punishment follows the law on officials who take goods and articles within their area of jurisdiction and not this law on special duty officers.6 However, even though the offender is a supervisory official, if there originally was only one junior special duty officer who was released from his mission and replaced, the punishment is the same as under this article on special duty officers.

Article 134 Officials Who Improperly Set Up Stone Monuments ARTICLE: 134.1a—All cases of officials holding office who in reality lack achievements in government but who improperly set up stone monuments are punished by one year of penal servitude. 134.1b—If they order other persons falsely to describe their own good deeds, or send up requests to their superiors, the punishment is one hundred blows with the heavy stick. 134.1c—If the punishment for the value of the illicit goods (i.e., the stone

4

TsW J5. should be read shh Ju, following the KHCPTS edition. This is specified by Vol. I, p. 179, Article 32. 6 See Article 140 below. 5

Article 134

103

monument) would be heavier than that provided in this article, the punishment is for illicit goods obtained through malfeasance.7 134.2—Those who received the orders have their punishment [2a] reduced one degree in each case. SUBCOMMENTARY: Officials holding office refers to senior officials and below in the capital or in the provinces who are in charge of offices.Where these persons are not able to lead in virtue, regulate ritual, change habits, or alter customs, and though in reality they have no achievements in government, they falsely speak of their own achievements, ornamenting themselves with empty phrases and exhorting those in the area under their control improperly to set up stone monuments in their honor, the punishment is one year of penal servitude. If the persons in the area under their control do set up stone monuments in their honor, they are punished as accessories.8 If they order others to speak falsely of their good deeds or send up requests to higher officials, the punishment is one hundred blows with the heavy stick. If a memorial is sent up to the emperor in which the circumstances are false, the punishment follows the law on submitting documents to the emperor that are false or do not report the true circumstances and is two years of penal servitude. 9 If the punishment for the value of the illicit goods would be heavier than that provided in this article, the punishment is for illicit goods obtained through malfeasance.This means that where the calculated value of the illicit goods (i.e., the stone monument) would be punished heavier than under this article, the punishment is for the illicit goods. Those who received the orders have their punishment reduced one degree in each case means that those who are ordered to set up the stone monument have their punishment reduced one degree from one year of penal servitude and those who are ordered to send up requests to higher officials have their punishment reduced one degree from one hundred blows with the heavy stick. If the official does not order the people to set up a monument but rather the common people set it up of their own accord, or does not order the people falsely to send up requests to higher officials, then the punishment is eighty blows with the heavy stick as the heavier punishment for doing what ought not to be done. 10 The stone monument is destroyed. COMMENTARY: 134.3—Even though an official may have achievements in government, if he orders the above behavior, the punishment is the same.

7 See Article 389 below. The punishment begins with twenty blows with the light stick for goods worth one ch'ih of silk and goes to a maximum punishment of three years of penal servitude. 8 VoI. i, p. 225, Article 42, specifies that accessories receive one degree less punishment than the principal in a crime. 'See Article 348 below. '"Following Article 450 below, which is a catch-all law.

104

Article 135

SUBCOMMENTARY: Even if the official does have achievements in government, if he orders those in the area under his control to set up a stone monument or send up requests to higher officials, he will be punished following the article above. If those in the area under his control set up the stone monument of their own accord or send up a request to higher officials of their own accord and the official did not know the circumstances and did not order them to do so, he will not be punished.

Article 135 [3a]

Those Who Seek Favors

ARTICLE: 135.1a—All cases of those who seek favors are punished by fifty blows with the light stick. COMMENTARY: This refers to those who seek to have the official in charge twist the law in some matter. Making the request for another person is the same as doing it for oneself. ARTICLE: 135.1b—If the officer in charge grants the favor, he receives the same punishment as the person who sought it. COMMENTARY: 135.1C—If the officer in charge does not grant the favor, neither he nor the person who sought it is punished. ARTICLE: 135.Id—If the favor has already been carried out, the punishment is one hundred blows with the heavy stick. SUBCOMMENTARY: All public affairs should follow proper principles. If a person improperly seeks favors, this is a plan to twist the law and is punished by fifty blows with the light stick. The officer in charge granting the favor means that if he agrees to what is sought, he also is punished by fifty blows with the light stick. . . . If the favor has been carried out means that the matter for which the law was twisted [96] has been already carried out. In this case, both the person seeking the favor and the officer in charge are punished by one hundred blows with the heavy stick. ARTICLE: 135.2a—If the punishment for subverting the law would be heavier, the officer in charge is punished for decreasing or increasing punishment.'' "See Article 487 below. This article states that the heavier sentence is the punishment for the official who has increased or decreased a sentence. This is due to Vol. I, p. 252, Article 49, which states that where two articles are applicable, whichever one provides the heavier punishment shall be the basis for the sentence.

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135.2b—The other persons or relatives who make the request have their punishment reduced three degrees below that of the officer in charge. 135.2c—If an officer in charge seeks a favor for himself, one degree of punishment is added. SUBCOMMENTARY: If the punishment for subverting the law would be heavier means that if the request for subverting and twisting the law could be punished more heavily than one hundred blows with the heavy stick, then the officer in charge is punished for decreasing or increasing punishment. If the original punishment were one year of penal servitude, those who made the request would be exempted from penal servitude, but the officer in charge would be sentenced for [3a] decreasing or increasing punishment and still be punished by one year of penal servitude. If other persons or relatives make the request, their punishment is reduced three degrees below that of the officer in charge and they are punished by eighty blows with the heavy stick, which reduced punishment is lighter than the one hundred blows with the heavy stick where the favor has already been carried out. But the punishment of the officer in charge would still be the one hundred blows with the heavy stick sentenced where the favor has already been carried out. If the request made by the other persons or relatives were about a punishment of two and one-half years of penal servitude, and the sentence given by the officer in charge exempted the offender from penal servitude, the punishments for those other persons and the relatives would be reduced three degrees to one year of penal servitude. In this case, however, the reduced punishment would be heavier than one hundred blows with the heavy stick, so that everyone (including the officer in charge) would be sentenced to the reduced punishment. . . . ARTICLE: 135.3a—If a supervisory official or an influential official makes a request for another person, the punishment is one hundred blows with the heavy stick. COMMENTARY: Even though the rank of the influential official is low, the punishment is the same. ARTICLE: 135.3b—If the punishment for the law that is subverted would be heavier, then the punishment is the same as that for the officer in charge. The death penalty is reduced one degree. SUBCOMMENTARY: Supervisory officials mean those who are in charge of offices and investigate cases. Influential officials mean officials other than supervisory officials without regard to rank. Because of the fear and awe inspired by an officer in charge, they should not dare to be perverse or in violation of the law. So even though their rank may be low, their punishment is the same.

106

Article 136

If they make a request for another person that would twist the law, no matter whether the request was carried out or not, nor whether the favor was granted or not, simply making the request is punishable by one hundred blows with the heavy stick. If the punishment for the law that is subverted would be heavier than one hundred blows with the heavy stick, then the punishment is the same as where the officer in charge is sentenced for decreased or increased punishment. [3b] But while officers in charge may be punished by the death penalty, supervisory officials and those with influence have their punishment reduced one degree.

Article 136 Officials Who Take Bribes for Favors Sought ARTICLE: 136.1a—AU cases of officials who take bribes for favors sought are punished for illicit goods obtained through malfeasance, with the punishment increased two degrees.12 136.1b—Supervisory officials or influential officials are punished as comparable to subverting the law.13 136.1c—The person who gives the bribes is punished for illicit goods obtained through malfeasance with the punishment reduced three degrees. SUBCOMMENTARY: Cases of officials who take bribes for favors sought refer to those who are not supervisory officials. They are pumshed for illicit goods obtained through malfeasance increased two degrees. . . . Those without an official salary14 have their punishment reduced one degree. Where an official has taken a bribe from another person and granted his request but the offense is discovered before the request has been carried out, the punishment is limited to that for illicit goods obtained through malfeasance. If the official has no intention of granting the request but takes the bribe under false pretenses, he is punished for fraud or cheating. 15 As for what was taken, though it was by fraud or cheating, still in the end the giver did make a request and so the illicit goods are confiscated by the state.16 12 See note 7 above.With the punishment increased two degrees, the minimum would be forty blows with the light stick extending to life exile at a distance of 2,500 Ii. 13 See Article 138 below, where the least punishment is one hundred blows with the heavy stick extending to strangulation. Here, however, since the sentence is comparable, it cannot reach the death penalty. See Vol. i, p. 261, Article 53. "This refers to persons who had no official rank and hence no fixed salary, which was determined by statute. Rather, they were paid by the officials for whom they worked. See Nnda, Statutes, p. 321. ''Article 373 below sentences the offense as comparable to robbery, which is covered by Article 282 below. Here the punishments range from sixty blows with the heavy stick to life exile with added labor. On comparable crimes, see Vol. I, p. 261, Article 53. "SeeVol. I, p. 179, Article 32.

Article 136

107

Where an official takes goods over which he has jurisdiction and uses them to make a request from another office, [97] the Code has no provision, so punishment is limited to that for illicit goods obtained through malfeasance increased two degrees, but with a maximum punishment of life exile at a distance of 2,500 Zi, since this is heavier than the punishment for taking what is within his area of jurisdiction.' 7 But if the offense is discovered before the request has been carried out, the punishment is the same as that in the law on taking goods and articles within his area of jurisdiction. ARTICLE: 136.2—If an official takes the bribes and divides them with other officials, the original receiver is punished for the total amount of illicit goods obtained through malfeasance. The other officials are each punished for their share. SuBCOMMENTARY.This refers to where an official initially takes goods and article from a family because of some matter and later reduces the amount of the articles he has taken by turning some over to other officials. The initial receiver is punished for the total amount of illicit goods obtained through malfeasance. The other officials are each punished for their share. Suppose an executive officer takes goods worth ten p'i of silk and subverts the law.There are two other officials who share in the executive function, and he gives each of them goods worth two p'i of silk. These other officials are each punished for getting goods worth two p'i of silk. Thus there are two accessories, both of whom got goods worth two p'i of silk. Where there are those who plot together to take bribes and divide the illicit goods among themselves, each is punished for his share following the law on principal and accessories.18 If some among them formulated the plan and, though they took part in the plot before the bribe was taken, did not take a bribe, where the matter subverted the law they are only punished following the law on principal and accessories twisting the law. 19 They are not punished for the amount of illicit goods. If the punishment based on the law for twisting the law would be lighter, then sentencing follows the law on [supervisory and custodial officials] knowing that a crime has been committed in the area under their jurisdiction and not starting an investigation.20 The official is punished three degrees less than the criminal.

"See Article 140 below, where the maximum punishment is life exile at a distance of 2,000 Ii. "See note 5 above. "See Article 136 above. ^See Article 361 below. The punishment there is two degrees less for the official than that given the criminal.

108

Article 137

Article 137 Persons Who Offer Bribes in Seeking to Have a Matter Favorably Canied Out ARTICLE: 137.1a—All cases of persons who offer bribes in seeking to have a matter favorably carried out and thereby cause the law to be subverted are punished for illicit goods obtained through malfeasance.21 137.1b—If the law is not subverted, the punishment is reduced two degrees. [4b] 137.2—Thus in collective giving for the same matter, the principal is punished for the total amount of illicit goods while the accessories are each punished for their share of it. SUBCOMMENTARY: . . . If the law is not subverted means that even though bribes were offered to have the matter favorably carried out, the official did not twist the law in executing the matter. . . . Where there is collective giving for the same matter refers to where a number of men together commit an offense with regard to a matter. The one who collected the bribe to be given is the original plotter of the collection and as the principal is punished for half of the total amount of illicit goods. 22 The others who contributed to the bribe are each punished for their share of it.

Article 138 Supervisory and Custodial Officials Who Take Bribes and Subvert the Law ARTICLE: 138.1a—All cases of supervisory and custodial officials who take bribes and subvert the law are punished by one hundred blows with the heavy stick for goods worth one ch'ih of silk, increased one degree for goods worth each further one p'i of silk. For goods worth fifteen p'i of silk, the punishment is strangulation. SUBCOMMENTARY: Supervisory and custodial officials refer to such officials as those who are in charge of offices, investigate cases, or clerks who deal with cases. If they take other persons' bribes in a matter and twist the law. . . . ARTICLE: 138. Ib—If they do not subvert the law, the punishment is ninety blows with the heavy stick for goods worth one ch'ih of silk, increased one degree 2,

See Article 389 below. -Sentencing for one-half of the total is provided by Vol. i, p. 235, Article 45.

Article 139

109

for goods worth each further one p'i of silk. For goods worth thirty p'i of silk, the punishment is life exile with added labor. [98] SUBCOMMENTARY: Even though they took bribes from persons in a matter, their decision did not twist the law. . . . [5a] 23

ARTICLE: 138.2a—For those who have no official salary, the punishment is reduced one degree in each case. 138.2b—If the law is subverted, the punishment for taking bribes of goods worth twenty-five p'i of silk is strangulation. Where the law has not been subverted, the punishment for taking bribes of goods worth forty ρ 'i of silk is life exile with added labor. SUBCOMMENTARY:Those who have a salary are all listed in the statutes on salary. If they are not included in the text of the statute, they are officials who do not have a salary. . . .

Article 139 Officials Who Do Not Take Bribes Beforehand ARTICLE: 139.1—All cases of officials who do not take bribes beforehand but who do so after a matter has been finished are punished as comparable to subverting the law, if the law has been subverted. 24 139.2—If the matter did not cause the law to be subverted, the official is punished for taking goods and articles within his area of jurisdiction. 2 3 SuBCOMMENTARY:When an official is investigating a case and he does not take a bribe at first but does do so afterward, when the matter has been finished, if there is a twisting of the law, he is punished comparably to the previous article on subverting the law. Since there is reference to the case being punished as comparable to subverting the law, the crime does not come within the principles on disenrollment, resignation from office, or life exile with added labor. . . . [5b]

23

See note 14 above. See Article 138 above. Comparable punishments are explained in Vol. ι, ρ 261, Article 53. 25 See Article 140 below, where the maximum punishment is strangulation.

24

110

Article 140

Article 140 Officials Who Take Goods and Articles within Their Area ofJurisdiction ARTICLE: 140.1a—All cases of supervisory officials who take goods and articles within their area of jurisdiction are punished by forty blows with the light stick for goods worth one ch'ih of silk, increased one degree for goods worth each further p'i of silk. For goods worth eight p'i of silk, the punishment is one year of penal servitude, increased one degree for goods worth each further p'i of silk. For goods worth fifty p'i of silk, the punishment is life exile at a distance of 2,000 Ii. 140.1b—The punishment of the person who gives the goods and articles is reduced five degrees, with a maximum punishment of one hundred blows with the heavy stick. SUBCOMMENTARY: A supervisory official who takes goods and articles within his area of jurisdiction not connected with a public matter. 26 . . . ARTICLE: 140.2—If the goods and articles are extorted, the punishment is increased one degree. 140.3—If the extortion involves force, the taker is punished comparably to subverting the law.27 SUBCOMMENTARY: If the goods and articles are extorted, the punishment is increased one degree means that the owner of the goods did not give them of his own free will, but rather they were extorted by the official. . . . Cases where strength, power, or force are used by the taker are punished as comparable to subverting the law. Whether or not the offender has a salary, each case follows the relevant law. Where an official because of receiving a present then goes on to extort goods and articles from the giver by force, this is one matter that can be separated into two crimes. The illicit goods punished by the law that carries the [6a] heavier punishment are combined with the illicit goods punished by the law that carries the lighter punishment. 28 If it is a repeated offense involving the goods of two or more persons, then the illicit goods are combined and the punishment is for one-half the total.

26

The Code does not give any adequate definition of exactly what public versus private affairs are. But see Vol. I, p. 113, Article 17, which separates public offenses from private offenses See also Article 483 below. 27 See Article 138 above. Comparable punishments are explained in Vol. i, p. 261. Article 53. 28 Both this contingency and the one that follows are covered by Vol. i,p. 235, Article 45.

Article 142

Ii 1

Article 141 Officials Who Receive Presents Because of Being a Commissioner ARTICLE: 141.1—All officials who because of being a commissioner receive presents from those at the place to which they were sent as a commissioner, or who extort anything, will receive the same punishment as a supervisory official.29 141.2a—If such acts occur in an area that they pass through as a commissioner, the punishment is reduced one degree. COMMENTARY: 141.2b—The punishment for censorate officials is not reduced.30 [99] ARTICLE: 141.3—Extortion by force is punished the same as if committed by a supervisory official in each case. SUBCOMMENTARY: . . . The punishment for a censorate official is not reduced refers to censorate officials on assignment whom people greatly fear. Hence if they31 receive presents or extort anything—whether or not by force—at a place through which they pass, the punishment will be the same as for a supervisory official in each case.

Article 142 Officials Who Borrow Goods and Articles within Their Area of Jurisdiction ARTICLE: 142.1a—All cases of officials who borrow goods and articles within their area of jurisdiction are punished for illicit goods obtained through malfeasance.32 COMMENTARY: Even though the appointment has not yet been sent up to the emperor, the punishment is the same. The connection between receiving an appointment and committing a crime in other articles follows this article. ARTICLE: 142.1b—If the goods and articles are not returned within one hundred w

See Article 140 above. If force is used as mentioned below, the punishment is increased one degree. "Shiga, Translations, Vi, 188, explains in a note that chiu-t'an fJ-IPp,"to investigate, to impeach," is a general designation for censorate officials. In this context, it probably refers to the examining censors. See Twitchett, Financial Administration, pp. 104 ff. 31 ErZi JTiJ should be inserted here, following the KHCPTS edition. 32 See Article 389 below. The punishment begins with twenty blows with the light stick for goods worth one cli'ih of silk and goes to a maximum punishment of three years of penal servitude.

1ί2

Article 142 days, the punishment is for taking goods and articles within the area of 33 jurisdiction. 142.1c—If force is used, the punishment is increased two degrees in each case.

COMMENTARY:The use of force in other articles follows this article. [6b] SUBCOMMENTARY: . . .The commentary states:"Even though the appoint­ ment has not yet been sent up to the emperor."The appointment of officials of the fifth rank and above is on the day that the imperial decree is issued; those of the sixth rank and below, on the day that they are signed. In both cases the punishment is the same as if the appointment had already been sent up to the emperor. . . . The connection between receiving an appointment and committing a crime in other articles follows this article refers to such articles as taking goods and articles within the area of jurisdiction, and beating and cursing persons. 34 . . . The commentary states:"The use of force in other articles follows this article." This refers to the article below on the private use of labor, and borrowing such animals as camels, mules, donkeys, and horses. 33 If force is used, the punishment is increased two degrees in each case. If within a specific article there is no reference to taking by force, the punishment is increased by two degrees in each case. Therefore this article is established as a principle. The articles that were lent originally were not in the official's possession, so even after an amnesty that exempts him from punishment, they must still be returned to their owner. Even if there has not been an amnesty, if the goods already have been returned when the offense is discovered, there is no punish­ ment. The reason is that when a person borrows there is a promise to repay. This is not the same as repenting the fault and returning goods to the owner. 3 6 . . . If illicit goods have been expended before the amnesty, according to the law, they need not be returned. But an official who borrows goods and article must return them even after an amnesty. If he does so, he will be exempted from punishment. ARTICLE: 142.2a—If there is excess profit from buying and selling, the profit is calculated and punished for taking goods and articles within the official's area of jurisdiction by extortion. 3 7 142.2b—If an official forces the market, the punishment is fifty blows with 33

On an official caking goods and articles within his area of jurisdiction, see Article 140 above. Beating and cursing are covered in Articles 312—318 below. 35 See Article 143 below. 36 SeeVol. i, p. 215, Article 39. Under this article, if illicit goods are returned to the owner, the sentence is reduced three degrees. There, officials who have subverted the law are specifically mentioned. 37 See Article 140 above, where extortion adds one degree of punishment. 34

Article 142

113

the light stick. If there is excess profit, the amount of excess profit is calculated and punished as comparable to subverting the law.38 SUBCOMMENTARY: . . . If an official forces the market means that power or force are used to buy articles. Even if the proper price is paid, the punishment is still fifty blows with the light stick. Where there is excess profit, the profit that is calculated is punished as comparable to subverting the law. [100] QUERY: Suppose an official delegates trade in the market to another person or the market officer39 who gets excess profits for the official in buying and selling. What punishment is there for the official if: (1) he knows the circumstances; and (2) he does not know the circumstances? REPLY: According to the article, if the circumstances are not known at the time the crime is committed, sentencing follows the ordinary law.40 So if the official did not know the circumstances of there being excess profits, in accordance with the article he should not be punished. As for the person who acted in the market, even though the profit did not come to him, if there was excess profit, or if the market was forced, he cannot escape punishment and so is punished for doing what ought not to be done. 41 If the official's punishment would be one hundred blows with the heavy stick or less, then his punishment would be forty blows with the light stick. If the punishment would be penal servitude for more, his punishment would be eighty blows with the heavy stick. Thus his punishment cannot be greater than that of the official. If after the trading in the market is finished, the official knows the circumstances, he is punished following the law on officials who know the circumstances of crimes committed by their family members. 42 ARTICLE: 142.3—If an official's half of a contract specifies an amount and he violates the contract by not paying what is owed, once fifty days have passed he is punished for taking goods and articles within his area of jurisdiction. 142.4—If an official borrows such things as clothing or implements and more than thirty days pass without his having returned them, he is punished

"See Article 138 above. On comparable crimes, see Vol. l, p. 261, Article 53. On the T'ang market system, see Twitchett,"The T'ang Market System." Profits were not to exceed 6 percent a month. Since the prices were fixed by the market officials, they had plenty of chance to make a profit for officials. On comparable crimes, see Vol. I, p. 261, Article 53. "See Vol. I, p. 252, Article 49. As pointed out by Tai, Specific Articles, p. 61, that article deals with mistakes about the real circumstances of a crime being described as not knowing the circumstances. Here, the concept is broadened to benefit the principal where crimes were committed by his agents 41 See Article 450 below. The forty blows with the light stick and the eighty blows with the heavy stick mentioned below are the two punishments given in this catch-all article. 42 See Article 146 below. 39

114

Article 143 for illicit goods obtained through malfeasance.43 However, the punishment is limited to one year of penal servitude.

SUBCOMMENTARY: If an official's half of a contract from trading in the market place under his jurisdiction specifies an amount and he is deficient in the amount paid, or he violates the contract by not paying, for a period of fifty days or less, the punishment is according to the article on violating a contract by not making payment in the Miscellaneous Articles section.44 For fifty-one days, the punishment is for taking goods and articles within the official's area of jurisdiction. . . . (If clothing and implements) are not returned within thirty days, the punishment is for illicit goods obtained through malfeasance, with a maximum sentence of one year of penal servitude.The borrowed articles are returned to their owner.

Article 143 Officials Who Make Use of Labor within Their Area ofJurisdiction ARTICLE: 143.1—In all cases of supervisory officials who make unauthorized use of labor within their area of jurisdiction or borrow the use of such things as slaves, oxen, horses, camels, mules, donkeys, carts, boats, grinding mills, warehouses, and wholesale stores, the value of the labor or rent is calculated, and in each case they are punished for taking goods and articles within their area of jurisdiction. 45 SUBCOMMENTARY: . . . Reference to slaves includes personal retainers and female retainers as well. As for calculating the value [8a] of the labor or rent— men, domestic animals, and carts are all calculated in terms of the value of the labor, while boats and what follows are calculated in terms of rent. . . . If force is used, the punishment is increased two degrees. The borrowed labor is assessed in terms of its use, which is valued at three ch'ih of silk per day.46 But since men have different levels of strength, their labor is not worth the same amount.Those between the ages of sixteen and sixty-nine perform labor when sentenced to penal servitude. Thus the use of their labor is that for an adult male. Those who are fifteen years of age or less, seventy years of age or more, or disabled do not perform labor when sentenced to penal servitude. 47 Therefore their labor, in terms of the value of its use, is less than that of an adult male. 43 See Article 389 below. The punishment begins with twenty blows with the light stick for goods worth one ch'ih of silk and goes to a maximum punishment of three years of penal servitude, that is, to two years beyond what is permitted here. 44 See Article 398 below. 45 , See Article 140 above. The punishment here is a good deal heavier. ^SeeVol. I, p. 190, Article 34, for this definition. 47 VoI. I, p. 169, See Article 30. In fact, these persons could usually redeem their punishment by payment of copper.

Article 143

115

In punishing such persons, it is proper that the value of the labor should be that of their area. If the value is not a full three ch'ih of silk, then the sentence that is calculated in terms of illicit goods should reflect that reduced value. If not, then it should still be that of an adult male. [101] ARTICLE: 143.2a—If the work is not that which they are required to do, the punishment is for illicit goods obtained through malfeasance, according to the calculation of the value of the labor. 48 The maximum punishment is one hundred blows with the heavy stick. COMMENTARY: Not that which they are required to do refers to those officials who do not have official rank and minor employees who work for the government. ARTICLE: 143.2b—If these officials get the cost of the labor from those who must contribute their service, the punishment is the same. COMMENTARY: 143.2c—There is no punishment where those who would do the work themselves want to pay the cost of the labor. SUBCOMMENTARY: Those who are not required to do the work refers to officials who do not have official rank. This means chief clerks and below who have a certificate of appointment but who do not have official rank. Minor employees refer to those who work in an office and who do not have a classification as an unranked official.Therefore the punishment is less than that for commoners. . . . Those who do work refer to such persons as underlings of various kinds who work themselves. According to the law, these people are not paid (separately) for work. If they do receive pay for their work, this also is punished as illicit goods obtained through malfeasance. The punishment is limited to one hundred blows with the heavy stick. Therefore it is stated that the punishment is the same. The commentary states: "There is no punishment where those who work want to pay for the cost of the labor." This refers to those who have an official document (about labor). They will not be punished. Cases where there is a special regulation allowing them to be paid are not included in this article. ARTICLE: 143.3a—If there are happy or sad occasions and an official borrows the labor of those in his area of jurisdiction, the number of men may not exceed twenty-eight and their period of work may not exceed five days. 143.3b—If these persons are relatives, even though the limits on number of men and days of work are exceeded, or the official accepts food or borrows by extortion, there will be no punishment. "See Article 389 below. The punishment there begins with twenty blows with the light stick for goods worth one ch'ih of silk and goes to a maximum punishment of three years of penal servitude.

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Article 144

COMMENTARY: 143.3C—Relatives refer to those within the fifth degree of mourning on the paternal side, and within the third degree of mourning by marriage. Other articles on relatives follow this article. SUBCOMMENTARY: Happy occasions refer to capping ceremonies for young men, marriages, and sacrifices in the ancestral temple. Sad occasions refer to funeral services, mourning, and burials. . . . [9a] ARTICLE: 143.4a—If an official borrows from the military or civil administration, the value of the labor or rent is calculated and punished for illicit goods obtained through malfeasance reduced two degrees. 143.4b—If what is borrowed is used for trading in the market and there is excess profit or a deficiency, the punishment is the same. SUBCOMMENTARY: . . .

Article 144 [102]

Officials Who Receive Presents from Persons within Their Area ofJurisdiction

ARTICLE: 144.1—AU cases of supervisory officials who receive gifts of pigs or sheep are punished for illicit goods obtained through malfeasance.49 COMMENTARY: This refers to dead animals. ARTICLE: 144.2—If force is involved, the law on taking goods and articles within the area of jurisdiction by force is followed.50 SUBCOMMENTARY: [9b] . . . Pigs and sheep are brought up as an example, but all other domestic animals are included. . . . Gifts of such things as wine, food, melons, and nuts are also included. Those articles that are still in existence are returned to their owners. Gifts of such things as domestic animals and rice . . . are confiscated by the state.

Article 145 Officials Who Exact Goods and Articles from Persons within Their Area ofJurisdiction ARTICLE: AU cases officials who exact goods and articles from persons within "'Ibid. ^See Article 140 above.

Article 146

117

their area of jurisdiction, or send others to do so, even if they do not get the goods and articles themselves, are punished for taking goods and articles within their area of jurisdiction. 51 SUBCOMMENTARY: . . .The total amount is halved in sentencing for taking goods and articles within their area of jurisdiction.

Article 146 [10a]

Extortion by the Family Members of Officials

ARTICLE: 146.1—All cases of extortion,' 2 borrowing,' 3 use of labor,' 4 or buying and selling with excess profit" by the members of a supervisory official's family in the area under his control are punished two degrees less than if the official had committed the offense himself. 146.2—If the official knows the circumstances, he receives the same punishment. If he does not know the circumstances, his punishment is reduced five degrees below that of the family member. SUBCOMMENTARY: Those who are in charge of offices and examine cases are supervisory officials. The commentary states: "Those who are executive officers or above in prefectures, garrisons, frontier posts, militia, and so on are all supervisory officials."56 . . . If the official does not know the circumstances, his punishment is reduced five degrees below that of the family member means that there is a reduction of seven degrees below the punishment for having committed the offense himself. ARTICLE: 146.3—If these offenses are committed by an official who is not a supervisory official or by a member of his family, the punishments are reduced one degree below that for a supervisory official and his family members. SUBCOMMENTARY: . . .Aides and assistant office managers are not ordinarily considered supervisory officials in the areas under their control. [10b] However, when a matter is in their hands, or when they are investigating documents, then they have a supervisory function. But for those who do such things as extort, borrow, use labor, buy and sell, borrow rental income, and gain excess profits, 51

IbId. IbId. 53 See Articles 143 and 142 above. 54 See Article 143 above. "See Article 142 above. 56 The definition and the quote from the commentary are from Vol. I, p. 264, Article 54. 52

118

Article 147

no matter whether the circumstances are known or not by such a person's supervisor, the punishment is one degree less than that for a supervisory official. And if the offense is committed by one of his family members, that person's punishment is one degree less than that of the family member of a supervisory official. [103] QUERY: . . .Village headmen and ward headmen have no official rank. If they commit an offense in the areas under their control, are they considered supervisory officials or not? REPLY:. . . Even though village headmen and ward headmen expedite affairs, they have no official rank and so are not the same as supervisory officials. Thus this law on officials who are not supervisory officials having their punishment reduced one degree below that for supervisory officials is followed.

Article 147 Officials Who after Leaving Office Receive Presents from Their Former Subordinates ARTICLE: All cases of officials who after leaving office receive presents from their former staff, or from members of the populace, or who extort or borrow from them [Ha] receive three degrees less punishment than those who do so while in office. CoMMENTARY:This refers to where the family has not left the area in which the official served. SUBCOMMENTARY: Former staff mean those who were subordinates in a previous administration. Members of the populace mean the persons living in the place formerly under the official's control and jurisdiction. The Code provides no punishment for cases where the family has already left the area. For those who take advantage of their power, or who use extortion, punishment follows the law on official intimidation and extortion. 57

Article 148 Using Power and Extortion ARTICLE: All cases of officials who take advantage of their power as well as powerful persons who use extortion are punished for illicit goods obtained

'See Article 148 below

Article 149

11 9

through malfeasance reduced one degree.' 8 Those who seize the goods and articles and send them to the principals are punished as accessories.'9 COMMENTARY: Cases where relatives or old associates give to each other are not punished. SUBCOMMENTARV.Whether because of the power of an official taking advantage of circumstances, or being one who is looked up to in a village, or being a member of a powerful family, a person extorts goods and articles, the amount of such goods and articles is combined, halved, and the person punished for illicit goods obtained through malfeasance reduced one degree. Those who seize [the goods and articles] and send them [to the principals] refer to those who are led on by the powerful families, etc., to extort [goods and articles]. Even if they are not led on [by the powerful families, etc.,] if they demand goods and send them [to the principals], in both cases they are accessories. If force is involved in the extortion, the punishment is increased two degrees. The commentary states: "Cases where relatives or old associates give to each other are not punished." Relatives refer to those within the fifth degree of mourning on the paternal side, [1 lb] and within the third degree of mourning by marriage. 60 Old associates refer to families that have had a long relationship, who respect custom, are not stingy, and exchange gifts of plain white silk and grass cloth. None of these will be punished. 61

Article 149 References to the Code, the Statutes, and the Ordinances 62 ARTICLE: 149.1—In all cases where references to the Code, the Statutes, and the Ordinances are not appropriate for offenses, the Department of State must be informed. They deliberate, and their conclusion is then memorialized for the emperor's decision. If the Department of State is not informed but

58

See Article 389 below. The punishment begins with twenty blows with the light stick for goods worth one ch'xh of silk and goes to a maximum punishment of three years of penal servitude. "Accessories generally received one degree less punishment than principals. See Vol. i, p. 225, Article 40. 60 ThIS is specified in the subcommentary to Article 143 above. 61 This reference comes from the Tso c/iwan,"Hsiang 29," p. 673; Legge, TIw Chinese Classics, v, 550. It concerns the visit of Kung-tzu Cha of the state of Wu to the famous Tzu Ch'an of Cheng in 544 B.c and their exchange of gifts. 62 See the discussion in Vol. I, pp. 5-9, particularly the references to the work on this subject by Denis Twitchett.

120

Article 149 an official improperly memorializes the throne about making changes, he is punished by two years of penal servitude. 149.2—If the official goes to the imperial residence and petitions the emperor, he will not be punished.

SUBCOMMENTARY: When references to an article of the Code, the Statutes, and the Ordinances are not appropriate at the time, the circumstances for which it is not appropriate must be shown clearly and the Department of State informed. Officials in the capital of the seventh rank and above meet in the executive office [104] of the Department of State to deliberate about it. Their conclusion as to what changes should be made is then memorialized for the emperor's decision. If an official does not inform the Department of State but improperly memorializes the throne about changes, he is punished by two years of penal servitude. This means that a straightforward account of what has occurred is narrated, but the official memorializes about changes. . . . If an official first violates the Statutes or Ordinances and later memorializes the throne about changes, the punishment is also two years of penal servitude. If the law that has been violated carries a heavier punishment, then such heavier punishment is sentenced. 63 65 VbI. I, p. 235, Article 45, requires that when two or more crimes have been committed, whichever punishment is heavier must be sentenced.

4. THE HOUSEHOLDAND MARRIAGE [la; 104]

CHAPTER

XII

SUBCOMMENTARY:AS for the Articles on the Household and Marriage, the Han Chancellor Hsiao Ho took the Ch'in articles in six sections and added three sections on stables, levies, and the household, making the Statutes in Nine Sections. Coming to the Latter Chou dynasty, all of these sections were called the articles on the household. The Northern Ch'i dynasty took the laws concerning marriage and attached them, making the articles on marriage and the household. During the Sui K'ai-huang period, the articles on the household were put before those on marriage, making the articles on the household and marriage. Having finished discussion of the administration and management of affairs, the household and marriage comes next below the administrative regulations.

Article 150 Omitting a Household from the Household Register ARTICLE: 150.1a—In all cases of omitting a household from the household register, the head of the household (chia-chang ^ ¾ ) is punished by three years of penal servitude. 1 150.1b—If the household has no obligation for taxes and labor services, the punishment is reduced two degrees. 2 150.1c—If the household is composed of women, the punishment is reduced three degrees further. COMMENTARY: This means that the whole household is not entered. ARTICLE: 150. Id—If the head of the household is not responsible for the omission, then the punishment falls on the person who is responsible.3 150. Ie—Those who are performing miscellaneous labor service or special corvee duty at the time they omit their household, even where the number of household members is great, are punished following the law on leaving off household members. 4 'Those who are heads of households are defined in Vol. I, p. 225, Article 42. See Twitchett, Finatuial Administration, pp. 247, 249, for a discussion of k'o p i and yi ί § . He translates the relevant statutes on pp. 140 fF. 'This refers to other persons who were a part of the process of household registration, including local officials 4 Persons who were performing labor service or military service were exempted from tax liabilities 2

122

Article 150

SUBCOMMENTARY: People living inside the country are all listed on household registers (chi 3^f). If of a household all the members are omitted from the house­ hold register, the head of the household who is responsible is punished by three years of penal servitude. . . . The commentary states:"This means that the whole household is not entered." The text does not calculate the number of persons but is based on the whole household. One person also may be a household, and if that person is not entered on a household register, the omission is considered to be that of a household and the punishment is three years of penal servitude. Should there be one hundred household members, if only one of them is entered on the household register and the others are not, the maximum punishment is that provided by the law on leaving off household members. If the head of the household is not responsible for the omission means that the head of the household did not know the circumstances. The person who is responsible is punished but not the head of the household. A person who is performing miscellaneous labor service or special corvee duty at the time refers to those who are under official orders and whose names are not on their household register. Even though he omits his household, his punishment follows the law on leaving off household members. This is because those who are performing miscellaneous labor service or special corvee duty at the time have no obligation for k'o l?fc and tiao ff taxes. If one person is left off of the household register, the punishment is sixty blows with the heavy stick. If the number of household members is great, the punishment follows the law on leaving off household members. If those who are left off are subject to k'o taxes, the maximum punishment is three years of penal servitude. If not, then the maximum punishment is one and one-half years of penal servitude. ARTICLE: 150.2—Leaving off household members or increasing or decreasing their age or physical condition, which results in their being exempted from taxes and labor services, is punished by one year of penal servitude for the first such person, increased one degree for each further two persons, and with a maximum punishment of three years of penal servitude. 3

during that time. See Niida, Statutes, p. 659, Twitchett, Financial Administration, p. 141. Here it is determined that even if the whole household is omitted, punishment will be decided on the basis of leaving off individuals which, following section 3 of this article, requires four household members to be left off before punishment begins and has a maximum punishment of one and one-half years of penal servitude. 5 According to the Household Statutes: "Males three years of age and below are called huang jif, infants; those fifteen years of age and below hsiao /JN, children; and those twenty years of age or less chung φ , juveniles. At age twenty-one males become hng ~f, adults, and at age sixty are considered lao ^, old men." Nuda, Statutes, p. 225. The impaired were in three categories—the maimed, the disabled, and the incapacitated—which are discussed in Vol. i, p. 31. Of these groups,

Article 150

123

COMMENTARY: This refers to such as are impaired, aged, juveniles, or children. SUBCOMMENTARY: This refers to leaving off household members or increasing their age so that they are classified as aged, or decreasing their age so that they are classified as juveniles or children. As well, it includes increasing the severity of their physical condition so that those who are maimed are classified as dis­ abled, and those who are disabled are classified as incapacitated. Those who are classified as disabled or incapacitated may [2a; 105] have someone to serve them. 6 Therefore the words "such as" are used. The maximum penalty is three years of penal servitude. ARTICLE: 150.3a—In cases of increasing or decreasing age or physical condition or leaving off household members who are not responsible for taxes or labor services, four such persons are considered to be one person, with a maximum punishment of one and one-half years of penal servitude. 150.3b—For less than four persons, the punishment is sixty blows with the heavy stick. COMMENTARY: 150.3c—For personal retainers and slaves, the punishment is the same. SUBCOMMENTARY: Cases where the increase or decrease does not exempt persons from taxes and labor services refers to where the increase or decrease of age does not affect their obligation for taxes and labor services. Leaving off the names of household members who have no obligation for taxes and labor services refers to where an adult has no obligation for taxes or labor services or is impaired (through being classified as maimed, disabled, or incapacitated), an old man, a juvenile, a child, or a woman. . . . There is a difference in punishment for leaving off household members who have an obligation for taxes and labor services and for leaving off those who do not have such an obligation. The punishment follows the law on combining. The number of household members who have an obligation for taxes is com­ bined with those who do not have such an obligation in sentencing. 7 If the household members who have an obligation for taxes reaches the maximum punishment, then the punishment is not increased for those who do not have such tax obligation. Rather, both offenses are punished as one type of crime.

only adult males—those twenty-one through fifty-nine—were liable for taxes and labor services. The age limits are only general; they did vary somewhat during the course of the dynasty. 6 SeeVol. ι,ρρ. 152 ff.Article 26.These persons were exempted from labor services, though not from taxes 'See Vol. I, p. 235, Article 45. The relevant part states that where the punishments are not equal, the heavier is sentenced.

124

Article 151

The punishment for personal retainers and slaves is the same as for household members who have no obligation for taxes. Where the Code has reference to gaining exemption from taxes and labor services, it is reasonable that both not be necessary for punishment. If either one is evaded, then the law on omitting households and leaving off household m e m bers is followed.

Article 151 Village Headmen Who Are Not Aware That a Household Has Been Omitted from the Household Register or That Household Members Have Been Left Off of It [2b] ARTICLE: 151.1a—All cases where village headmen are not aware that a household has been omitted from the household register or that household members have been left off of it or that there have been increases and decreases in age or physical condition 8 are punished by forty blows with the light stick for the first household member and increased one degree for each further three household members.When one hundred blows with the heavy stick have been exceeded, the punishment is increased one degree for each further ten household members, with a maximum punishment of three years of penal servitude. 9 COMMENTARY: 151.b—If the village headman is not aware that a household has been omitted from the household register, it is permitted to follow the law on leaving off household members. 10 The omission of households from the household register and leaving household members off of it at the prefecture and county levels follows this article. ARTICLE: 151.2—If he knows the circumstances, the punishment is the same as for the head of a household in each case." SUBCOMMENTARY: The village headman's duty is to be in charge of recording and checking households and individuals. He collects the true copies (from the heads of the households) and makes a list of the household registers. . . .

8

On these factors, see note 5 above. On village and ward headmen, see the references in Twitchett, Financial Administration. "That is, the punishment depends upon the number of persons. "That is,Article 150 above is followed where the omission of a household is punished by three years of penal servitude and the punishment for leaving persons off begins at one year of penal servitude. 9

Article 152

125

Article 152 Prefects and Magistrates Who Are Not Aware That a Household Has Been Omitted from the Household Register or That Household Members Have Been Left Off of It ARTICLE: 152.1a—In all cases where prefects and magistrates are not aware that a household has been omitted from the household register or that household members have been left off of it: within a county, the punishment is thirty blows with the light stick for ten household members, increased one degree [3a] for each further thirty household members.When one hundred blows with the heavy stick have been exceeded, one degree of punishment is added for each further fifty household members. 152.1b—Depending upon the number of counties under the control of a prefecture, a comprehensive calculation determines the punishment. COMMENTARY: Comprehensive calculation means that if a prefecture controls two counties, the punishment for twenty household members is thirty blows with the light stick. If it controls three counties, the punishment for thirty household members is thirty blows with the light stick, and so forth.Where more household members are calculated, this rule is also followed. Where a household has been omitted from the household register, or the number of household members left off of the household registers or the persons whose age and physical condition have been increased or decreased are all in one county, the total number of counties is included in deciding the punishment. If the prefecture only controls one county, the punishment is reduced one degree. Comprehensive calculations in other articles follow this article. [106] ARTICLE: 1 5 2 . 1 C — T h e maximum punishment is three years of penal servitude in each case. 152.2—If the circumstances are known, the law on village headmen is followed in each case.12 SUBCOMMENTARY: . . . The calculation of additional household members also follows this rule. This means that where a prefecture controls two counties, one degree of punishment is added for each further sixty household members; if it controls three counties, one degree of punishment is added for each further ninety household members; if it controls ten counties, one degree of punishment is added for each further three hundred households. If the cases of a household being omitted from the household register, leaving household members off of it, or increasing and decreasing persons' age and l2

See Article 150 above.

i26

Article 152

physical condition are all in one county means that when of the three counties one has thirty such household members, the prefect is punished by only thirty blows with the light stick. If he controls four counties, forty such household members [3b] are also punished by thirty blows with the light stick.Therefore it is stated that the total number of counties is included in deciding the punishment. . . . Comprehensive calculation in other articles follows this article means that when within one section of the Code prefectures control counties, supervisors have authority over shepherds, or the general administration of militia units commands commandants, there is a comprehensive calculation and the punishment follows this article. . . . COMMENTARY: 152.3—If they are not aware that a household has been omitted from the household register or that household members have been left off of it, or if age and physical condition have been increased or decreased, where there is no written register of officials, the senior official is the principal. Where there is a written register of officials, the chief clerk is the principal, and the subordinate officials and those below them are collectively responsible.13 SUBCOMMENTARY: AS for not being aware that a household has been omitted from the household register or that household members have been left off of it, or that their age and physical condition have been increased and decreased, where there is no registration document or attached household registration list, the person in charge of the office then is the senior official who failed in examining them.Therefore the senior official is the principal, and everyone is punished the same as under the laws on omission of households, leaving family members off of the household register, or increasing and decreasing persons' age and physical condition.The second officer is the second accessory, the executive officer is the third accessory, and the chief clerk is the fourth accessory. But if there is a registration document, the omission of households, leaving family members off of the household register, or increasing persons' age and physical condition lies with the person in charge of examining and investigating the document. Then the chief clerk is the principal, the executive officer is the second accessory, the second officer is the third accessory, and the senior officer is the fourth accessory. If among them there is any official who has knowledge of the circumstances, then the punishment is the same as for the head of a household [4a], and the offenders are sentenced as principal and accessories in a private offense. If they do not know the circumstances, the punishment follows the law on public offenses.14

13 On collective responsibility, see Vol. I, p. 216, Article 40, and the article by Karl Bunger cited there. "On public and private offenses, see Vol. i, p. 112, Article 17.

Article 153

\2Ί

Article 153 [107]

Village Headmen or Officials Who Wrongly Omit a Household from the Household Register or Who Leave Household Members Off of It

ARTICLE: 153.1a—In all cases where village headmen or officials wrongly omit a household from the household register or leave household members off of it, or increase or decrease their age or physical condition in order to de­ crease or increase their taxes and labor services, the punishment is one 1 5 year of penal servitude for the first family member, increased one degree for each further two family members. 153.1b—If the illicit goods would be punished more heavily, where they go to an individual the punishment is for subverting the law.16 Where pun­ ishment reaches the death penalty, life exile with added labor is substituted. 153.2—If the illicit goods go to the government, the punishment is for illicit goods obtained through malfeasance.17 SUBCOMMENTARY: If village headmen, prefecture, or county officials wrongly omit a household from the household register or leave off household members from it in the areas under their control. . . . If because of omitting a household from the household register, leaving house­ hold members off of it, or increasing or decreasing their age and physical condition the value of their taxes and labor services comes to himself, and the punishment for the calculation of the value of the illicit goods is heavier than that for those offenses listed first, then the punishment is comparable to subverting the law. Where punishment reaches the death penalty, life exile with added labor is sub­ stituted. If a ranked official receives illicit goods, the punishment is for subverting the law, even if the value of the illicit goods is punished more lighdy than under this article. This is because under the relevant article, the punishment for goods 18 worth one p'i of silk or more is disenrollment. So it is not necessary that the amount of goods be punished more heavily. If the articles come from a group of 19 persons, they are combined and then halved in sentencing.

15

£r/i should be read yi —·, following the KHCPTS edition. "See Article 138 above. "See Article 389 below. "See Vol. I, p. 121, Article 18. "See Vol. I, p. 235, Article 45.

128

Article 154

Article 154 Unauthorized Ordainment as a Buddhist or Taoist Priest [4b] ARTICLE: 154.1a—All cases of unauthorized ordainment as a Buddhist or Taoist Priest punish both the person who is ordained as well as the person 20 who performs the ordainment by one hundred blows with the heavy stick. COMMENTARY: If the head of the household is responsible for the ordainment, then the head of the household is punished. 2 1 ARTICLE: 154. I b — I f the person's name has already been removed from the registry of ancestry, the punishment is one year of penal servitude. 154.2—If the officer in charge of registries of ancestries or the three au­ thorities of Buddhist or Taoist monasteries know the circumstances, they receive the same punishment. 2 2 154.3—If an offense calls for expulsion from the Buddhist or Taoist mon­ astery and after being sentenced the person does not return to lay status, punishment follows this article. 154.4—If a supervisory official improperly permits unauthorized ordina­ tion, he is punished by one hundred blows with the heavy stick for the first person, increased one degree for each further two persons. SUBCOMMENTARY: Unauthorized ordainment as a Buddhist orTaoist priest refers to Buddhist and Taoist nuns as well. If the ordainment is not done officially, both the person who is ordained in an unauthorized way and the person who performs the ordainment are punished by one hundred blows with the heavy stick. The commentary states: "If the head of the household is responsible for the ordainment, then the head of the household is punished."Thus the person who is ordained in an unauthorized fashion is not punished. . . . The officer in charge of registries of ancestry refers to the official of the prefecture and county of the person who was ordained in an unauthorized man­ 23 ner, as well as the three authorities of the Buddhist orTaoist monastery where he lives. If they know the circumstances, they will receive the same punishment as the person who is ordained in an unauthorized way or the head of the house­ hold If after a person has been sentenced to return to lay status a complaint is made 20

The person also must return to his/her original status as provided by Vol. ι p. 197, Article 36. SeeVol. i. p. 225, Article 42, which deals with collective offenses.What is determined here is that if the father ordered the child to become ordained, the father alone must bear responsibility for the offense, even though it was the child who violated the law. 22 On the three authorities, see Vol. I, p. 270, Article 57. Note particularly the treatment of relations there as if the monks were a family. a Chi S should be inserted here following the KHCPTS edition. 2,

Article ί55

ί29

that the person who should be wearing ordinary clothes has violated the law on clothing (i.e., is wearing clothing identified with religion), following this law on unauthorized ordination, the person is punished by one hundred blows with the heavy stick. Where a supervisory official does not follow the law but improperly permits unauthorized ordination, he is punished by one hundred blows with the heavy stick for the first person, increased one degree for each further two persons. But the maximum punishment is life exile at a distance of 3,000 Ii. [5a] If a large number of persons are exempted from taxes and labor services by a prefecture or county official and the punishment provided by the relevant article is heavier, then the sentence is for the heavier punishment, 2 4 which is combined with that sentenced by the above article on wrongly increasing or decreasing a person's age or physical condition and decreasing or increasing their obligation to taxes and labor services. If an official ordains a person in an unauthorized way and the person who is ordained knows the circumstances and yet receives ordination, that person is punished as an accessory. If the person does not know the circumstances and yet receives ordination, the person who is ordained is not punished.

Article 155 [108]

Sons and Grandsons in the Male Line Are Not Permitted to Have a Separate Household Register25

ARTICLE: 155.1—All cases where sons and grandsons in the male fine have a separate household register or separate goods while their paternal grand­ parents or parents are still alive are punished by three years of penal servitude. COMMENTARY: Both separate household registers and separate goods are not required. Articles below follow this article. SUBCOMMENTARY: References to paternal grandparents and parents being alive include paternal great- and great-great- grandparents. 26 . . . Articles below follow this article refers to having a separate household register or separate goods during the period of mourning for parents having the same meaning as here.

24

VoI. i, p. 253, Article 49, provides that where two articles are appropriate, whichever carries the heavier punishment will be sentenced. 25 The crimes covered under this article come under the seventh of the ten abominations, called lack of filial behavior. See Vol. I, p. 61 ,Article 6, and the discussion on what this classifica­ tion means on pp. 17 ff. 26 This definition comes from Vol. I, p. 258, Article 52.

130

Article 156

ARTICLE: 155.2—If paternal grandparents order that a separate household regis­ ter be established or wrongly make a son or grandson in the male line another man's heir, their punishment is two years of penal servitude. The son or grandson in the male line is not punished. [5b] SUBCOMMENTARY: If paternal grandparents or parents make the decision to order a son or grandson to have a separate household register or wrongly make a son or grandson in the male line another man's heir, their punishment is two years of penal servitude. The son or grandson in the male line is not punished. Therefore the text states:"separate household register." It does not state:"order them to have separate goods." Thus it is clear that if a son or grandson in the male line is ordered to have separate goods, he will not be punished.

Article 156 Having a Child during the Period of Mourning for Parents ARTICLE: All cases of having children, or elder and younger brothers having a separate household register or separate goods, during the period of mourning for parents are punished by one year of penal servitude. 27 SUBCOMMENTARY: Having a child during the period of mourning for parents has already been explained in the section on resigning from occupied office in the General Principles section. 28 It means to become pregnant or have a child within the twenty-seven month period of mourning. . . . Having either a separate household register or separate goods is punished by one year of penal servitude. Both are not required. If a child is born within the period of mourning, confession before the crime is discovered will get exemption from punishment. 2 9

Article 157 Adopted Sons Who Reject Their Adoptive Parents ARTICLE: 157.1a—All cases of sons who are adopted because the adoptive parents have no sons and who reject their adoptive parents are punished by two years of penal servitude. 27 On separate household registers and separate household goods, see Article 155 above. In addition, if having separate goods led to the parents not receiving adequate support, Article 348 below punishes this by two years of penal servitude. 28 SeeVol. ι, ρ 129, Article 20. 29 On confession, see Vol. I, p. 201, Article 37, and the references there

Article 158

131

157.1b—If the adoptive parents then have a son themselves and the original parents, having no son, want him to return, this will be allowed. SUBCOMMENTARY: According to the Household Statutes, "Those who have no son are allowed to adopt one from the same clan of the proper generation." 30 If the son is deceptive about having been adopted [6a] and improperly rejects his former parents, he is punished by two years of penal servitude. . . . If both families have no son, he must follow his own feelings as to whether he goes or stays. If the adoptive parents then have a son themselves, or even if they have no son but do not want the adopted son to remain with them and rather want him to return to his original parents, he is still responsible for the adoptive parents. ARTICLE: 157.2a—If a son of a different surname is adopted, the punishment is one year of penal servitude. The person who gives the son is punished by fifty blows with the light stick. 157.2b—If the child has been abandoned and is three years of age or less, he can be adopted and he takes their surname. SUBCOMMENTARY: A son with a different surname originally was not of their clan. So if they violate the law by adopting him, the punishment is one year of penal servitude. . . . If they adopt a daughter, they are not punished. . . . For a child who is three years of age or less and has been abandoned by [109] his parents, if the family will come to an end if adoption is not allowed, he can be adopted and he takes their surname. If the parents who had abandoned him later recognize him as their child, he may be returned to his original family, who must pay the expenses of raising him.

Article 158 Violating the Law by Not Selecting the Eldest Son of the Wife To Be Heir ARTICLE: 158.1—All cases of violating the law by not selecting the eldest son of the wife to be heir are punished by one year of penal servitude. 158.2—If the wife is fifty years of age or more and has no son, then [6b] the oldest son of a concubine is made heir. If he is not made heir, the punishment is the same as above. SUBCOMMENTARY: Taking a wife basically is to ensure descendants. The wife's oldest son is made heir. . . . According to the statute: "If the wife has no son or if he is a criminal or 'Niida, Statutes, p. 223.

132

Article ί59

impaired, then the grandson in the male line by the wife is made heir. If there is no such person, then the second son of the wife is made heir, and if there is no such person, then the grandson in the male line of a concubine. At the genera­ tions of great- and great-great grandsons in the male line and below, the same 31 order is followed. If there are no descendants, the house will come to an end."

Article 159 Adoption of a General Bondsman as a Son or Grandson ARTICLE: 159.1a—All cases of adopting a general bondsman as a son or grand­ son are punished by one and one-half years of penal servitude. 159.1b—If a general bondsman is adopted as a daughter, the punishment is one hundred blows with the heavy stick. 159.2—If an official bondsman is adopted, the punishment is increased one degree in each case. 159.3—The giver receives the same punishment. SUBCOMMENTARY: General bondsmen are persons who in previous dynasties committed crimes and were enslaved by the state. They are attached to various government offices that direct their labor and are entered on the registers of prefectures and counties. Their taxes and labor services are not the same as for adult males. Official bondsmen also have had their status reduced to that of bondsman through being enslaved by the state. However, they belong to various prefecture and county offices and are not on registers. . . . [7a] Even though there be an amnesty, their status must be corrected. 3 2 If those of the same status adopt each other, then the law is the same as for commoners. Where general bondsmen adopt official bondsmen or official bondsmen adopt general bondsmen, according to the Household Statutes: "General bondsmen and official bondsmen may marry those of their status." 33 Based on this, then, those of different status, according to the law, may not adopt each other. The Code, however, does not determine a punishment, so it is proper that the law on doing what ought not to be done be followed with the adoption of a male receiving the heavier and the adoption of a female the lighter punishment. 3 4 Where a private family's personal retainers or slaves adopt a male or female general bondsman or ofEcial bondsman, according to the General Principles 31

Ibid., pp. 305-306. Note that the statute and the article are in conflict over the order of succession. 32 That is, they must be returned to the status of bondsmen. See Vol. I, p. 197, Article 36. M Niida, Statutes, p. 261. M See Article 450 below. This catch-all article only provided two punishments, forty blows with the light stick and eighty blows with the heavy stick.

Article 160

133

section, where the specific article has no provision concerning the inferior classes they are treated as commoners in sentencing punishment. 33 ARTICLE: 159.4—If a personal retainer or slave is adopted as a son or grandson, the punishment is one hundred blows with the heavy stick. 159.5a—The person is returned to his original status in each case. COMMENTARY: 159.5b—Those who have no master or where their master adopts them himself become commoners. SUBCOMMENTARY: . . .The commentary states: [110] "Those who have no master." This refers to the personal retainer or slave. " O r where their master adopts them himself become commoners." This refers to where a master adopts a personal retainer or slave from his own family as a son or grandson also being punished by one hundred blows with the heavy stick. But the personal retainer or slave is allowed to become a commoner. The reason is that if he has been made a son or grandson he cannot again become a member of the inferior classes. . . . Where a member of the inferior classes who has become a commoner is forced back into inferior status, the punishment is the same as under the law on forcing a slave or personal retainer back into inferior status after having manumitted them. 36

Article 160 Manumission of a Personal Retainer as a Commoner ARTICLE: 160.1—All cases where personal retainers have been manumitted as commoners and, having already been given a certificate of manumission (fang-shu 2¾¾), are forced back into inferior status are punished by two years of penal servitude. 160.2—If the personal retainer who has been manumitted is forced to be a personal retainer again, or where a slave is manumitted as a commoner and then forced back into inferior status, the punishment is reduced one degree in each case. 160.3—If the slave who has been manumitted is forced to be a personal retainer, or where a slave has been manumitted as a personal retainer and then forced back into inferior status, the punishment is reduced one degree further in each case. 160.4—All such persons are returned to their correct status in each case. SUBCOMMENTARY: According to the Household Statutes:"All cases of manumission 3;

SeeVol i, p. 249, Article 47. See Article 160 below.

36

134

Article 160

of personal retainers, female personal retainers, or slaves as commoners, as well as personal retainers or female retainers will be permitted. In all cases, the person manumitted will receive a certificate (shou-shu ^ H r ) from the head of the household. The eldest son and those younger than he jointly sign it. After going through the clerical supervisor, a report is sent up and the name is put in the correct place in the household register."37 . . . [8a] This article does not speak of female retainers, but in the General Principles section, references to personal retainers include female personal retainers as well.38 Therefore it is understood that they are included with personal retainers. QUERY: If a person manumits a female personal retainer or female slave and then keeps them as a concubine, what is the punishment? REPLY: Commoners may take concubines. According to the Household Statutes, "Those who buy themselves out of inferior status may not be kept by their owner as personal retainers. They work at whatever they wish to do." 39 How much more, then, may the owner of a female personal retainer or female slave who has been manumitted take them as a concubine? According to the Code, this is not punished. Following this article on those who buy themselves out of inferior status, they may be kept as concubines. FURTHER QUERY: A personal retainer takes the daughter of a commoner as a wife. The husband dies and, after the period of mourning is over, depending upon her feelings, she goes or stays. SUPPOSE: (1) she wants to go and is not allowed to leave her husband's family; (2) she is forced to be a concubine; (3) or again she is forced to become the wife of a personal retainer or a slave.What is the punishment for each of these offenses? REPLY:Where the period of mourning is over and she is not allowed to leave her husband's family, the Code has no provision, so the punishment should be the heavier for doing what ought not to be done and she be allowed to go.40 If originally the man had taken a woman of the same status as a wife, who had not been a commoner, she would keep her original status and following the law, there would be no punishment. [ I l l ] If she were the daughter of a commoner who had been forced to be a concubine [8b] because of fear, then the punishment would be the heavier for doing what ought not to be done. "Niida, Statutes, p. 261. "See Vol. I, p. 249, Article 47. 3, Niida, Statutes, p. 261. "See Article 450 below. This catch-all clause allows two punishments, eighty blows with the heavy stick for serious offenses and forty blows with the light stick for lesser offenses.

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135

If she were given to another personal retainer as a wife, this would be the same as manumitting a slave as a commoner and then forcing that person to be a personal retainer, and punished by one year of penal servitude. If she is forced to be the wife of a slave, this is the same as a slave taking the daughter of a commoner and is punished by one and one-half years of penal servitude. Putting her on the household register as a slave is punished by life exile at a distance of 3,000 Ii. In cases of marrying her as a wife or concubine, if there is agreement on both sides there is no punishment. However, those who are commoners are not permitted to marry men of other statuses.

Article 161 Falsely Combining Households ARTICLE: 161.1a—AU cases of falsely combining households are punished by two years of penal servitude. 161.1b—If there is no obligation for taxes and labor services, the punishment is reduced two degrees. COMMENTARY: This means taking distant relatives as close ones in order to circumvent the law (kuei-p'i ^MjBf). ARTICLE: 161.2—If the officer in charge knows the circumstances, he receives the same punishment. SUBCOMMENTARY: According to the Statutes on Taxes and Labor Services: "Civil and military active duty officials of the third rank and above, as well as relatives of the second degree of mourning of commandery princes, families of those who have great achievement who dwell together, relatives of the second degree of mourning of officials of the fifth rank and above, as well as dukes of state are exempt from taxes and labor services."41 Since those who dwell together with these persons are entided to exemption, if they falsely combine households the punishment is two years of penal servitude.Where households are falsely combined for taking advantage of protection for those on the same household register or being able to redeem punishment by payment of copper, the offense is less serious than where such action is taken to avoid taxes and labor services.42 Therefore the punishment is reduced two degrees to one year of penal servitude. The commentary states: "This means taking distant relatives as close ones." 41

Niida, Statutes, p. 686. "On protection, see Vol. I, p. 89, Article 9, and the discussion on p. 25.

136

Article ί62

Those who have protection under the Code and the Statutes are able to grant such protection to different numbers of relatives. If distant relatives join to­ gether, the number of households will be fewer. If they are able to take advan­ tage of protection {yin Qi), there will be fewer persons with obhgations for taxes and labor services. So if households are combined [9a] for this purpose, they will get this punishment of penal servitude.Whichever law provides the heavier punishment, that for the number of persons who are exempted from taxes and labor services or that for those falsely claim protection, will be sentenced. 4 3 If the officer in charge knows the circumstances, he receives the same punish­ ment refers to the village headman and those above him. If he knows the cir­ cumstances of combining households, he receives the same punishment as those who are liable for taxes and labor services or those who are not so liable in each case. ARTICLE: 161.3—If according to law persons should establish a separate house­ hold and are not allowed to, or should combine households and are not allowed to, the officer in charge is punished by one hundred blows with the heavy stick. SUBCOMMENTARY: Those who should establish a separate household refers to where the parents being dead and the mourning period over, the brothers wish to set up separate households. Those who should be allowed to combine house­ holds refer to those who have gone away and left the neighborhood, so that the father and sons are on different name registers. According to the statute, they should combine their households. 44 . . . The types of persons who should separate or combine their households is not limited to this article. A summary is brought up as an example. Other articles follow this one.

Article 162 Family Members of a Lower Generation or of the Same Generation but Younger than Other Family Members Who Improperly Make Private Use of Family Goods ARTICLE: 162.1—All cases of family members of a lower generation or of the same generation but younger than other family members with whom they dwell together who improperly make private use of family goods will be punished by ten blows with the light stick for goods worth one p'i of silk, 43

VoI. i, p. 253, Article 49, provides that where two articles are appropriate, whichever carries the heavier punishment will be sentenced. "Nuda, Statutes, ρ 234.

Article 163

137

increased one degree for goods worth each further ten p'i of silk, and with a maximum punishment of one hundred blows with the heavy stick. 162.2—If those who dwell together must divide the family possessions and it is not done equitably, the part that is seized is calculated and punished for illicit goods obtained through malfeasance reduced three degrees.45 SUBCOMMENTARY: In all cases of those who dwell together, there must be some who are of a higher generation or of the same generation but older than other members.While those who are of a higher generation or of the same generation but older than the other members are alive, their sons and grandsons in the male line do not act on their own responsibility. [9b] If those of a lower generation or of the same generation but younger than their seniors do not go through these persons but improperly make private use of the family's goods and articles. . . . Where those who dwell together must divide the family possessions refers to where, in accord with the statute, they must divide the family possessions and establish separate households and this is not done equitably. According to the Household Statutes: "Where land and buildings, goods [112] and articles must be divided, elder and younger brothers get an equal share. Goods brought from wives' families are not included in the division. If the elder and younger brothers are all dead, their sons inherit their father's shares."46 Violation of the text of this statute and not getting equal shares refers to such instances as an elder and a younger brother dividing the equivalent of one hundred p'i of silk and one taking sixty p'i. The value of the ten p'i that has been seized is calculated and punished by eighty blows with the heavy stick. This is called sentencing for illicit goods obtained through malfeasance with the punishment reduced three degrees.

Article 163 Sale of Personal Share Land17 ARTICLE: 163.1a—All cases of those who sell personal share land (k'ou-fen t'ien P ^5" EB) are punished by ten blows with the light stick for the first mou 1¾, 4S

See Article 389 below. There the punishment begins with twenty blows with the light stick for goods worth one ch'ih of silk. In the example given in the subcommentary, the usual punishment for goods worth one p'i of silk is one year of penal servitude. 46 Niida, Statutes, p. 245.Thus, in the thorny matter of inheritance rights, the per stirpes rule was followed in T'ang China. It should be noted, however, that there is a good deal of evidence to show that local rules governed this question in many places. 47 This article as well as the first four articles in the following chapter are translated by Twitchett, Financial Administration, pp. 136—139. The question of landholding and the obligations and rights deriving therefrom was very complicated in T'ang times, and I refer readers to Twitchett's lucid discussion of these problems.

138

Article ί63 increased one degree for each further twenty mou, and with a maximum punishment of one hundred blows with the heavy stick. 163.1b—The land is returned to the original owner, but the price is con­ fiscated by the state and is not recovered. 163.2—If the person is permitted to sell, this article is not applicable.

SUBCOMMENTARY: Personal share land refers to land received by calculating the number of persons. It is not land held in perpetuity (yung-ye ;?Κΐϋ) nor land for houses and gardens. As for improperly selling such land, the Book of Rites states: "Land and dwelling places may not be sold." 48 It is received from the state and may not be privately sold. . . . Cases where land may be sold refers to selling land held in perpetuity to provide for funeral expenses because a family is poor. O r selling personal share land to pay for such things as a house, grinding mills, warehouses, and wholesale stores or by persons moving from a restricted to a broad locality of their own free will. According to the Statutes, land may be sold in such cases.49 Wanting to sell lands granted by the emperor (tz'u t'ien HIEH) does not come within this prohibition. Officials of the fifth rank and above or honorary offi­ cials are also aDowed to sell perpetual share land.Therefore it is stated that where the person is permitted to sell, this article is not applicable. "Li chi, "Wang chih," p. 247; Couvreur, Li ki, p. 294. This view prevailed for many centuries. It would seem that T'ang and Sung China were a watershed for the free sale of land. •"Niida, Statutes, p. 630.

CHAPTER

XIII

Article 1641 [la; 112]

Possession of More than the Permitted Amount of Land

ARTICLE: 164.1—AU cases of possession of more than the permitted amount of land are punished by ten blows with the light stick for the first mou, increased one degree for each further ten mou. When sixty blows with the heavy stick have been exceeded, punishment will increase one degree for each further twenty mou, with a maximum punishment of one year of penal servitude. 164.2—If the offense is committed in a broad and unrestricted area (k'uanhsien 1¾!¾), it will not be punished. SuBCOMMENTARY:The king has established the rule that a farmer shall have one hundred mou of land, officials shall have amounts of land held in perpetuity according to their rank, and the aged, children, and widows shall have land according to their status.2 In a place that is not broad and unrestricted, these limits may not be exceeded. . . . According to the statute:"A place where there is sufficient land for the people to receive what is due to them is a 'broad locality,' and one where there is not is a 'restricted locality.'"3 If the offense is committed in a broad and unrestricted area it will not be punished means that there is excess land beyond the amount calculated for household members. New soil must be opened to development so as to get the greatest profit from it.Therefore, even if people have large amounts of such land, the Code does not punish them. However, the matter should be reported and included in the case file (li-an tjL IjI). [Ib] If persons occupy land without doing so, they are punished for not making a report to superiors, which should be made. 4

Article 1655 Illegal Cultivation of Public or Private Land ARTICLE: 165.1—All cases of illegal cultivation of public or private land are 'This is the second of five articles translated byTwitchett, Financial Administration,^. 136-137. These rules are laid out in Nnda, Statutes, pp. 607-658, and translated by Twitchett, Financial Administration, pp. 124-135. See also his discussion of the land system on pp. 6 ff. 3 Niida, Statutes, p. 626; Twitchett, Financial Administration, p. 128. 4 See Article 117 above. The punishment is sixty blows with the heavy stick. 5 This is the third of five articles translated byTwitchett, Financial Administration,-pp. 137-138.

140

Article 165 punished by thirty blows with the light stick for the first mou or less, increased one degree for each further five mou. When one hundred blows with the heavy stick have been exceeded, punishment will increase one degree for each further ten mou, with a maximum punishment of one and one-half years of penal servitude. 165.2—For waste land the punishment is reduced one degree. 165.3—If force is used, the punishment is increased one degree in each case. 165.4—The harvest shall go to the government or the owner.

COMMENTARY: Harvests in articles below shall follow this article. [113] SUBCOMMENTARY: Land cannot be moved, so cases involving land are not the same as true robbery.6 . . . For waste land the punishment is reduced one degree refers to waste and uncultivated land that is on the register. Punishment for cultivating such land is reduced one degree below that for land that is under cultivation. . . . The harvest shall go to the government or the owner in each case has reference to the crops, hay, and so forth, which shall be returned to the government or the owner. Harvests in articles below shall follow this article refers to such offenses as wrongfully laying claim to or illegally selling public or private land,7 officials encroaching upon private land,8 or illegal cultivation of other persons' grave plots.9 All the harvest goes to the government or the owner in each case. If of the illegally cultivated other person's land some is waste and some cultivated, and some is taken by stealth and some by force, if it belongs to one family, the punishments are not the same. So the principle should be followed where the law providing the heavier punishment is sentenced and the law carrying the lighter punishment is included in it.10 If the illegally cultivated land belongs to two or more families, whichever is the single heaviest punishment should be sentenced. The other punishments should be included in it rather than their increasing the punishment. If relatives mutually encroach upon each other's land, the punishment should follow the law on relatives robbing each other of goods and articles.11 There the 6 See Article 300 below.The articles m the R o b b e r y andViolence Section do not deal with real property. Hence the offenses and punishments involved with land are set forth in this article and particularly in the subcommentary to Article 166 below. 'See Article 166 below. There the punishment begins with thirty blows with the heavy stick for the first mou or less. "See Article 167 below.There the punishment begins with sixty blows with the heavy stick for the first mou or less. 'See Article 168 below There the punishment begins with one hundred blows with the heavy stick for the first mou or less. ,0 See Vol. I, p. 235, Article 45. "See Article 287 below. There the punishments are reduced as the relationship is closer as described here.

Article 166

141

punishments are reduced according to the degree of relationship. If the land has already been registered, the punishment follows the law below on illegally trading or selling land.

Article 16612 Wrongfully Laying Claim to or Illegally Selling Public or Private Land ARTICLE: AU cases of wrongfully laying claim to or illegally trading or selling public or private land are punished by fifty blows with the light stick for one mou or less, increased one degree for each further five mow. When one hundred blows with the heavy stick have been exceeded, punishment will increase one degree for each further ten, mou with a maximum punishment of two years of penal servitude. SUBCOMMENTARY: Cases of wrongfully laying claim to land as one's own as well as secretly trading it or illegally selling it to others are punished [as set out above]. . . . The Robbery and Violence Section of the Code states: "Such things as animal pens and sheep folds must be taken from their fixed locations. Goods and articles must be moved from their places."13 Even though the word robbery is used with regard to land, a definite rule needs to be established. Land cannot be moved from its fixed location and in principle is different from goods and articles. Therefore its value as illicit goods is not the basis of punishment. Neither is there disenroUment or resignation from office, nor repaying double the value of the illicit goods in sentencing. 14 Wrongfully laying claim refers to: (1) having already taken possession; or (2) having not yet taken possession. These are punished following the law on: (1) wrongfuDy laying claim to such things as slaves, goods, and articles; or (2) having not yet obtained possession.15 To be considered an illegal trade or sale, the trade or sale must have been completed.According to the statute:"Where land is improperly sold without an official document, the price will be confiscated and not returned. The land reverts to the original owner."16

12

This is the fourth of five articles translated by Twitchett, Financial Administration, pp. 138—139. This is actually from the commentary to Article 300 below. l4 See Vol. I, pp. 119-129, Articles 18 and 19, on disenroUment and resignation of office for officials involved m robbery, and Vol. I, p. 186, Article 33, on the double repayment for illicit goods obtained from robbery.The Chinese character for robbery is here translated as illegal, since robbery cannot be used as an adverb in English. "See Article 375 below. l6 Nnda, Statutes, p. 631. l3

142

Article 167

Article 167" Officials Who Encroach upon Private Land ARTICLE: 167.1—All cases of officials who encroach upon private land are punished by sixty blows with the heavy stick for the first mou or less, increased one degree for each further three mou. When one hundred blows with the heavy stick have been exceeded, punishment will increase one degree for each further five mou, with a maximum punishment of two and one—half years of penal servitude. 167.2—In the case of gardens or vegetable gardens, the punishment will be increased one degree. SUBCOMMENTARY: Where the Code has reference to being in office it means someone who is in office and wields authority. Where such persons encroach upon the land of the common people, the punishment is [as set out above]. . . . Gardens and vegetable gardens refer to places where nut and fruit trees are planted or leaf and root vegetables are cultivated and which are enclosed by a fence or a wall.18 Because their yield is different, [114] the punishment is increased one degree. [3a] If the encroachment involves some ordinary land and some garden land, for which the punishments are not the same, the punishment should follow the law on combining them. 19 If the official takes official land and trades it for private land, then the rule for sentencing will follow that set forth in the preceding article on trading land. If the land is gotten as repayment for goods and articles lost by private persons in business dealings, the punishment will follow the law on supervisory or custodial officials obtaining government or private articles by fraud or cheating. 20 If officials encroach upon each other's land, it will be considered the same as if committed by commoners. 21 If while an official is in office he encroaches upon or trades land and the offense is discovered only after he has left office, the punishment will be as of the official's position at the time of the original offense.22

Article 168 Illegal Cultivation of Other Persons' Grave Plots ARTICLE: 168.1a—All cases of illegal cultivation of other persons' grave plots are punished by one hundred blows with the heavy stick. "This is the fifth of five articles translated by Twitchett, Financial Administration, pp. 138-139. "Shiga, Translations.Vl, 249, points out that yuan ^ should be read chang PJ, following the Sung hsing t'ung. "Vol. I, p. 235, See Article 45. 20 SeC Article 373 below, which sentences the crime as if it were robbery 21 See Article 165 above. 32 VoI. I, p. 108, See Article 16.

Article 169

143

168.1b—If the grave mound is damaged, the punishment is one year of penal servitude. 168.2a—Illegal burial in another person's land is punished by fifty blows with the light stick. 168.2b—If the illegal burial is in another person's grave plot, the punishment is increased one degree. 168.2c—The body must be moved. 168.3a—If it is not known who made the illegal burial, the village headman must be told and the grave moved. If this is not done, the punishment is thirty blows with the light stick. 168.3b—If there is no place to which the grave can be moved, then the owner of the land may bury it in his personal share land. SuBCOMMENTARY:The area of grave plots is regulated by statute.23 Regardless of the amount of land illegally cultivated, the punishment is one hundred blows with the heavy stick. Damaging the grave mound refers to the place where the body is interred. If earth is taken from that place with the result that the grave mound is damaged, the punishment is one year of penal servitude. . . . [3b]

Article 169 Drought, Flood, Frost, or Hail within a Region ARTICLE: 169.1—In all cases of where drought, flood, frost, hail, or harmful insects occur within a region, 24 the official in charge must send up a report to his superiors. If no report is sent up, or a wrongful report is made, the punishment is seventy blows with the heavy stick. 169.2—If a subsequent investigation proves the report to have been untrue, the punishment is the same. 169.3—If the result is subversion of the law with regard to the levying of or exemption from [taxes and labor services], and the illicit gain would be punished more heavily, then the punishment is for illicit gain obtained through malfeasance.25

23 See Nnda, Statutes, p. 830. The sumptuary laws in force during the T'ang period were extremely detailed. An official of the first rank, for example, might have a grave area of approximately 450 square feet, and the grave mound could be about eighteen feet high. Those of other officials would be less imposing as their rank was lower. A good general discussion of sumptuary laws can be found in Ch'ii T'ung-tsu, Law and Society, pp. 135—153. 24 A region refers to a political division of land under an official's jurisdiction, which definition is given in the subcommentary to Article 170 below. 2 'See Article 389 below. The punishment is twenty blows with the light stick for goods worth one ch'ih of silk, increasing to a maximum of three years of penal servitude for goods worth fifty p'i of silk.

144

Article 169

SUBCOMMENTARY: Drought refers to an excess of the yang ether, while flood is incessant rain. Frost refers to where the temperature has an unseasonable drop, and hail refers to a disaster that damages things. Insects refer to locusts and other such types of insects. According to the statute: "If the damage is four parts in ten or more, the region is exempt from the grain tax (tsu f_§). If the damage is six parts, the region is exempt from both the grain tax and the tax paid in cloth (tiao υ ) . If the damage is seven parts or more, the region is exempt from both taxes and labor services. If mulberries and hemp are completely destroyed, the region is exempted from the tax paid in cloth." 2 6 The officer in charge must report to his superiors all damages and exemp­ tions. Officer in charge refers to the village headman and those above him. The village headman must report to the county, the county to the prefecture, and the prefecture to the Department of State. If the amount of damage is still more, a memorial must be sent up for the emperor's decision. . . . If the result is subversion of the law and there is wrongful levying of or exemp­ tion from [taxes and labor services] refers to levying [taxes and labor services] where there has been damage and not levying [taxes and labor services] where there has not been damage.The amount of illicit goods that have been levied or given exemption is calculated, and if the punishment is heavier than seventy blows with the heavy stick, the punishment is for illicit goods obtained through malfeasance. However, the maximum punishment is three years of penal servi­ tude.Where the punishment is connected with illicit goods, they are combined and the punishment is for one-half the total. 2 7 [115] QUERY: What is the punishment when those who should get exemption from taxes and labor services because of damage do not, and the goods that have been levied because of subversion of the law go either to a private individual or to the government? REPLY: Wrongful levy of [taxes and labor services] is punished under the article above on wrongfully omitting households, or leaving off household members [from the household register], or increasing or decreasing persons' age [so as to escape taxes and labor services]. 28 If the illicit goods go to the government, the punishment is for illicit goods obtained through malfeasance. If they go to a private person, the person is punished for subverting the law.29 Where punish­ ment reaches the death penalty, life exile with added labor is substituted.

26

Niida, Statutes, p. 676; Twitchett, Financial Administration, p. 144. VoI. I, p. 235, See Article 45. 28 See Article 150 above ^See Article 140 above. 27

Article 170

145

Article 170 Land Classified as Uncultivatable Land or Waste Land in the Area under an Official's Control ARTICLE: 170.1a—All cases where land in the area under an official's control is classified as uncultivatable or waste land are punished as ten parts. For one part, the punishment is thirty blows with the light stick, increased by one degree for each further part, and with a maximum punishment of one year of penal servitude. COMMENTARY: 170.1b—The senior official is the principal in both prefectures and counties. His subordinates are accessories.30 ARTICLE: 170.2—If the offense is committed by the master of the household (hu-chu ^ i ) , 3 1 then the amount of land calculated as uncultivatable or waste land [4b] is punished as five parts. For one part, the punishment is thirty blows with the light stick, increased one degree for each further part. SUBCOMMENTARY: In the area under his control refers to the land that is under the control of the prefecture, county, or village headman. . . . The senior official is the principal in both prefectures and counties. His subordinates are accessories. For a county, the magistrate would be the principal and his aides and section chiefs would be the accessories. For a prefecture, the prefect would be the principal, and the administrator, the vice commander, and the revenue manager would be accessories. The village headman would be the only person punished. Where there are not four offenders, then only the principal and accessories are punished. Those ranked officials who examine and recheck documents are considered to be the assistants, and the clerks are not punished. . . .

Article 171 [5a]

Village Headmen's Allocation of Land and Plots for Mulberry Trees

ARTICLE: 171.1—In all cases where the village headman, in accordance with the statute, allocates land and plots for mulberry trees: (1) where the land should be granted and is not; (2) or should be taken back and is not; (3) or should ""SeeVoI I, p. 216, Article 40, and Biinger, "Verantwortlichkeit der Beamten."This collective responsibility of civil and military officials is described in detail in Article 152 above and Article 228 below. 3, This refers to the person who is granted the land to support a household, and hence could be a woman in the absence of a grown male.

146

Article

ill

be planted and is not; where there are violations of the law, for the first such instance, the punishment is forty blows with the light stick. SUBCOMMENTARY: According to the statute: "All lands held in perpetuity should be planted with fifty or more mulberry trees per mou, and ten or more elms and jujubes. If the soil is not suitable, the rule for planting in that locality should be 32 followed." Another statute states: " O n the first day of the tenth month, the village headman should investigate and compile a registration document of land that should be taken back by the state or should be granted. In the eleventh month, the magistrate should assemble all the persons who should return or be given land and make the allocation before them all." 33 Still another statute states: "In allocating land, those who have an obligation for taxes and labor services come before those who do not have such obligations, those who have nothing before those who have little, and those who are poor before those who are rich." 3 4 The village headmen must all follow the statute in compiling registration documents, distributing them, and allocating the land for mulberry trees. [116] . . . COMMENTARY: One instance means one instance and one person. If there were several instances with the same person or the same instance with [5b] several persons, they are all combined in sentencing. SUBCOMMENTARY: Several instances with the same person means that one per­ son did not receive land that should have been allocated to him and also was not given plots for mulberry and jujube. O r that he was allocated land classified as uncultivatable or waste land. The same instance with several persons refers to not taking back land that should have been from several persons. All of these are combined in sentencing. . . . ARTICLE: For each three further instances, the punishment is increased one degree. 171.2a—At the county level, ten instances are punished by thirty blows with the light stick, increased one degree for each twenty further instances. 171.2b—At the prefecture level, a comprehensive calculation is made ac­ 35 cording to the number of counties under its control. COMMENTARY: 1 7 1 . 2 C — A t both the county and the prefecture levels, the senior official is the principal and his subordinates are accessories.36

K

See Niida, Statutes, p. 621;Twitchett, Financial Administration, p. 127. Niida, Statutes, ρ 637; Twitchett, Financial Administration, p. 130. 34 NiIiJa, Statutes, ρ 637; Twitchett, Financial Administration, p. 130. 3s This means that the instances of violation are multiplied by the number of counties to arrive at the sentence, as illustrated below in the subcommentary to 171.4 of this article. 36 FollowingVol. i, p. 225, Article 42, accessories' punishment is one degree less than that of the principal. 33

Article 171

147

SUBCOMMENTARY: Where a village headman must grant land [for planting mulberry and jujube] and does not, that is one instance. Where he must allocate land [for farming] and does not, that is a second instance. Where he should take back land and does not, that is a third instance. Where he allocates land first to those who have no tax obligation and later to those who do, that is a fourth instance. [Where he gives] first to those who have little and later to those who have nothing, that is a fifth instance. Where he gives first to the rich and later to the poor, that is a sixth instance. Where he allocates land that cannot be cultivated or is waste land, that is a seventh instance. All of these are combined in the punishment. Where combining is required, each three further instances increase the punishment one degree, so that for violations in twenty-two instances, the punishment is one year of penal servitude. At the county level, violations comparable to those of the village headman are punished by thirty blows with the light stick for 10 instances, increased one degree for each 20 further instances. So 170 instances are punished by one year of penal servitude. At the prefecture level, a comprehensive calculation is made according to the number of counties under its control. This means that for 20 violations, the punishment is thirty blows with the light stick, and that 340 such instances are punished by one year of penal servitude. In cases dependent upon the number of counties under the control [of a prefecture], the comprehensive calculation follows this article in each case. ARTICLE: 171.3—At each level, the maximum punishment is one year of penal servitude. 171.4—If the violation is intentional, the punishment is increased two degrees in each case. SUBCOMMENTARY: At the prefecture and county levels, the senior official is the principal. In the absence of a senior official, the second in command is the principal, and the assistants, the supervisors, and section heads are accessories. . . . Where the violation is intentional, the punishment is increased two degrees in each case means that [at the village headman level,] one instance is punished by sixty blows with the heavy stick; at the county level, ten instances are punished by fifty blows with the light stick; and at the prefecture level, if it has two counties under its control, twenty instances are punished by fifty blows with the light stick. Calculating the increase of punishment is done this way so that for a comprehensive calculation the maximum punishment is two years of penal servitude. If a prefecture only has one county under its control, the punishment is one degree less than that assessed for the county. If some of the instances are intentional and others mistaken [117] so that the punishments are not the same, the law on combining is followed. Thus if a village headman in his allocation of land, and so forth, makes an error in seven instances, this is punished by sixty blows with the heavy stick. Moreover, he commits an intentional offense in

148

Article 172

three instances, for which the punishment is also sixty blows with the heavy stick. The three instances that are intentional are combined with the seven that 37 were made by error, and the punishment is seventy blows with the heavy stick. Combining instances at the prefecture and county levels follows this rule in each case.

Article 172 Not Allowing Rightful Exemption from Taxes and Labor Services [6b] ARTICLE: 172.1—All cases of not allowing rightful exemption from taxes and labor services, or allowing such exemption improperly, are punished by two years of penal servitude. 172.2—For the smaller miscellaneous labor services (tsa-yi $§ίί£), the punishment is fifty blows with the light stick. SUBCOMMENTARY: According to the statute: "All persons who dwell in a re­ stricted locality, and who move to broad localities of their own free will, if they move more than 1,000 Ii from their original residence shall be given exemption from taxes and labor services for three years. If they move more than 500 Ii they shall be given exemption for three years. If they move more than 300 Ii they shall be given exemption for one year." 38 Where such exemption should be allowed and the official does not allow it, or where it should not be allowed and the official wrongly allows it, the punish­ ment is two years of penal servitude. Smaller miscellaneous labor services refer to performing the miscellaneous local corvee and labor services. If, according to the ordinance, a person should be allowed exemption from taxes and all other labor services and is not, the punishment is fifty blows with the light stick. 39 Those who are wrongly given exemption or who should be given exemption and are not are punished for illicit goods obtained through malfeasance if punishment under that article would be heavier than two years of penal servitude. 40 According to the article above:"[In all cases where village headmen or officials] wrongly omit a household from the household register or leave household mem­ bers off of it, or increase or decrease their age or physical condition in order to 37 ThJs means that the law carrying the heavier punishment is sentenced. See Vol. i, p. 243, Article 45. 38 See Niida, Statutes, p. 680; Twitchett, Financial Administration, p. 145. The statute does not allow any exemption for further moves. "It is, in fact, the first ordinance of the Board of Finance that specifies such exemptions, depending upon the number of days given to such performance. See the translation by Twitchett, Financial Administration, p. 148. •"See Article 389 below. There the maximum punishment is three years of penal servitude for goods worth thirty p'i of silk.

Article 173

149

decrease or increase their taxes and labor services, the punishment is one year of penal servitude for the first family member, increased one degree for each further two family members. If the illicit goods that come to the official would be punished more heavily, then the punishment is for subverting the law. Where 41 punishment reaches the death penalty, life exile with added labor is substituted." Where persons who should not get exemption seek a favor from the officer in charge and wrongly get exemption, according to the General Principles section: "If supervisory and custodial officials collectively commit crimes together with commoners, even though a commoner formulates the plan, the supervisory or custodial official is the principal." 4 2 Thus the officer in charge is the principal, and those who get the exemption are the accessories. If a favor is sought for someone else, the person who wrongly obtained the exemption is punished following the law on relatives seeking favors.43

Article 173 Violation of the Law in Making Selective Imposition of Taxes and Labor Services ARTICLE: 173.1—AU cases of violating the law in making selective imposition of taxes and labor services are punished by sixty blows with the heavy stick. SUBCOMMENTARY: According to the statute:"In all cases of selective impositions, these should be laid on the rich and strong before the poor and weak, and on those whose households have many adult males before those who have few."44 Violation of the law in making selective imposition of taxes and labor services or unequal apportionment refers to the poor, the rich, the strong, and the weak being apportioned indiscriminately, or to the apportionment of impositions being unequal. . . . ARTICLE: 173.2a—If there is illegal or unauthorized collection of taxes, or if taxes are collected in accordance with the law but with an unauthorized increase where a large amount of illicit goods goes to the government, the amount that was unauthorized is calculated and punished for illicit goods obtained through malfeasance.45 173.2b—If the unauthorized goods go to a private person, the punishment 4,

See Article 153 above. VoI. i, p. 226, Article 42. "That is, for another person.The official would receive a minimum punishment of fifty blows with the light stick and those who made the request would be punished three degrees less, or twenty blows with the light stick. See Article 135 above. "Niida, Statutes, p. 690; Twitchett, Financial Administration, p. 147. 45 See Article 389 below There the punishment begins with twenty blows with the light stick for goods worth twenty ρ'ι of silk and increases to a maximum punishment of three years of penal servitude. 42

150

Article 173 is for subverting the law.46 Where punishment reaches the death penalty, life exile with added labor is substituted.

SUBCOMMENTARY: According to the Taxation Statutes: "All taxable households shall pay annually a grain tax of two shih 5 of millet for each adult male family member. The tax paid in cloth shall be paid in two chang 3 t of damask or thin silk, three Hang pjf of silk floss, two chang five ch'ih of hempen cloth, or three chin /f" of hemp fiber. . . . Adult males shall perform twenty days labor service (yi

f£)." 47 In this way, the tax is collected every year in accordance with the law and always with an official document listing the amount to be collected. If temporarily there is a special collection of taxes, the apportionment is on a temporary basis. If there is an unauthorized collection of taxes not in accordance with this law, or even if in accordance with a Regulation, Statute, or Ordinance, yet there is an unauthorized increase, [this is punished]. If the total calculation of illicit goods reaches six p'i of silk in value, then the punishment is for illicit goods obtained through malfeasance since this is heavier than sixty blows with the heavy stick. If there is an unauthorized increase in taxes that goes to the government [7b] of goods worth more than a full one [118] hundred p'i of silk, which the law would collect from a group of persons, then the punishment is for one-half of the value of the goods. One-half of the value being fifty p'i of silk, the punishment is for illicit goods obtained through malfeasance where the maximum punishment is three years of penal servitude. If the illicit goods go to a private person, the punishment is for subverting the law. Reference to going to a private person does not require that the goods go to the person himself, but that they not go to the government. Thus if the private person is a salaried official,48 for subverting the law, illicit goods worth one p'i of silk are punished by one hundred blows with the heavy stick, increased one degree for goods worth each further p'i of silk.The punishment for fifteen ch'ih is strangulation. The punishment for those officials who have no salary is reduced one degree so that the punishment for twenty p'i is strangulation. Now 49 it is stated: "Where punishment reaches the death penalty, life exile with added labor is substituted." So in neither case is the criminal punished by strangulation. Of the taxes collected, if some goes to the government and some to private 46

See Article 138 above. "This quote combines parts of the first and the fourth taxation statutes. See Niida, Statutes, pp. 659 and 668;Twitchett, Financial Administration, pp. 140-141. 48 That is, a ranked official. On their salaries, see Niida, Statutes, p. 321. "Shiga, Translations, vi, 262, says that ling ^ , "statute," is an error for chin -^, "now," though without being able to cite any edition that reads this way. It is likely that he is right since (1) the quote does not occur in the statutes, and (2) the characters are sufficiently alike that such a mistake could be easily made.

Article Vi'4

151

persons, then the punishments are not the same and it is proper that the punish­ ment should be for the combined amount. So if of the taxes that have been collected without authorization are worth one hundred p'i, ninety going to the government and ten to a private person, of the goods worth ninety p'i of silk that went to the government, one-half is forty-five p'i, which is punished by two and one-half years of penal servitude. Halving the ten p'i that went to a private person is also punished by two and one-half years of penal servitude. These may not be combined to make five years. Rather, the goods worth ten p'i of silk that went to the private person are combined with the goods worth ninety p'i of silk that went to the government to make one hundred p'i. O n e half of this is fifty ρ 'i, for which the punishment is three years of penal servitude.

Article 174 Violation of the Time Limit in Remitting ArticlesforTaxes ARTICLE: 174.1a—All cases of violation of the time limit in remitting the com­ plete amounts of articles for taxes from the area under the official's supervi­ sion divide the taxes into ten parts. For one part, the punishment is forty blows with the light stick, increased one degree for each further part. [8a] SUBCOMMENTARY: Remitting articles for taxes refers to the taxes paid in grain and taxes paid in cloth, as well as the corvee exemption tax, the land tax, and the miscellaneous taxes for which there are set numbers of articles and for which there is a limit for remitting them. . . . If none of the parts has been remitted, the punishment is two years of penal servitude. At both the prefecture and county levels, if the amounts are not complete, the punishment follows this article. COMMENTARY: 174.1b—At the prefecture and county levels, the senior official is the principal. He, his subordinates, and those who have lower grades of rank are collectively responsible. 30 SUBCOMMENTARY: Prefects and county magistrates are persons in authority. If the remission of taxes violates the time limit, the responsibility falls on the senior officials, and they, their subordinates, and those who have lower grades of rank are collectively responsible. . . . A village headman is responsible for one hundred households. The matter is solely in his hands, and there are no other grades of officials to be collectively prosecuted. So the punishment can only be for the taxes not being complete in his territory.

'See Vol. ι, ρ 216, Article 40.

152

Article Π5

ARTICLE: 174.2—If the master of the household does not completely remit the taxes, the punishment is forty blows with the light stick. SuBCOMMENTARY:The commoners who form a household must remit taxes. If they are not completely remitted, the punishment is forty blows with the light stick. The punishment [8b] is not dependent upon parts.

[119]

Article 175 Betrothal of a Daughter Where the Marriage Contract Has Been Signed

ARTICLE: 175.1a—All cases of betrothal of a daughter where the marriage contract (hun-shu £ U S ) has been signed, or where there has been a private agreement (ssu-yueh %L%rl), punish improper cancellation of the contract or agreement by sixty blows with the heavy stick.51 COMMENTARY: Agreement means that the prospective husband being aged, a juvenile, ill, or impaired, or an adopted child or a concubine's child, and so forth are already known. 175.1b—If the man's family cancels the agreement themselves, they are not punished but may not recover the marriage gifts. SUBCOMMENTARY: Betrothal of a daughter and signing of the marriage contract means that the man's family has already sent a contract offering marriage according to the rules of propriety, and the woman's family has signed and returned it. .. Ages refers to violating the basic agreement that the man not be more than twice as old as the woman. Impairment refers to the condition of the three levels of physical impairment: [being maimed, disabled, or incapacitated], 52 or their bodies are not complete. Adopted means that the person was not born of the present parents; concubine's child refers to not being a child of the mother but rather a concubine's child.There are several such conditions, therefore the words so forth are used. . . . QUERY: Where there is a private agreement, the text here only speaks of age, impairment, adopted child, concubine's child, and so forth. We do not yet know if such things as poverty or wealth, high or inferior position [9a] come under false pretence or not? REPLY: Such things as age, physical impairment, or being an adopted child or a ''Though he is not mentioned here, the person who would be punished is the clm-hun 3ΐ£ί§, the "master of the marriage," who was legally responsible. See Article 195 below. The family, not the individual, decided upon the marriage partner. 52 See the discussion of these kinds of impairment in Vol. I, p. 29.

Article 175

153

concubine's child cannot be changed.Therefore they must first be agreed upon before the betrothal takes place. However riches and high position are not permanent, and poverty and inferior position are not fixed. Therefore they are not false pretence. ARTICLE: 175.1c—If marriage gifts have been received, even where there is no marriage contract, it is the same as if there were a marriage contract. COMMENTARY: The amount of the marriage gifts is immaterial. Wine and food are not marriage gifts. But if the marriage gifts are used for the purpose of wine and food, then the wine and food are considered to be the same as marriage gifts. SUBCOMMENTARY: According to the etiquette for marriage, gifts are given as a token of good faith. Therefore the Book of Rites states: "If she is requested in marriage (by the sending of gifts), then she is the principal wife."53 So even though there is no marriage contract, if betrothal presents have been received, it is the same as if there is a marriage contract. The commentary states: "The amount of the marriage gifts is immaterial." So if goods worth one p'i of silk or more are received, the marriage cannot be canceled. Wine and food are not marriage gifts means that though the contribution of wine and food establishes a close relationship since many persons contribute to the cost, even though much is sent, wine and food cannot be the same as marriage presents. But if the marriage gifts are used for the purpose of wine and food refers to sending money and goods that are used to obtain wine and food. The amount is immaterial; they are also considered to be marriage presents. ARTICLE: 175.2a—If the woman is then married to another man, the punishment is one hundred blows with the heavy stick. If the marriage has taken place, the punishment is one and one-half years of penal servitude. 175.2b—If the person who marries her knows the circumstances, his punishment is reduced one degree (below that of the master of the marriage). 175.2c—The woman is returned to the first husband. If he will not take her, he returns the marriage gifts and the second husband marries her in accordance with the law. [9b] SUBCOMMENTARY: If the woman is then married to another man refers to where there has been a private agreement or a marriage contract, or marriage gifts have been received and the woman is then promised to another man. . . . If the person who marries her afterward [120] knows the circumstance of her already having been married to another person and still marries her, his punishment is one degree less than that of the woman's family. If this marriage has not "'1Li chi, "Nei-tse," 539; Couvreur, Memoires, i, 676.

154

Article 176 54

yet taken place (when the offense is discovered), according to the article below, his punishment is reduced five degrees to sixty blows with the heavy stick. If the marriage has already been taken place, his punishment is one year of penal servitude. . . .

Article 176 Wrongful Substitution by the Bride's Family in a Marriage ARTICLE: 176.1a—All cases of wrongful substitution by the bride's family in a marriage are punished by one year of penal servitude. 176.1b—Wrongful substitution by the groom's family increases the punish­ ment one degree. 176.2a—If the marriage has not yet taken place, the original agreement is followed. 176.2b—If the marriage has already taken place, the relationship is ended. SuBCOMMENTARY:The law on marriage requires that a matchmaker be used. It is reasonable that the facts of whether the man and woman are born of the principal wife or a concubine and their ages at the time be in the agreement. . . . There are many kinds of violations of such agreements, such as by social status or by age. But all of them are violations.

Article 177 [10a]

Taking a Second Wife

ARTICLE: 177.1a—All cases of taking a second wife are punished by one year of penal servitude. 177.1b—The punishment for the woman's family is reduced one degree. 177.2a—If fraud or wrongdoing are involved in the marriage, the punish­ ment is one and one-half years of penal servitude. 177.2b—The woman's family is not punished. 177.3—The relationship is ended in each case. SUBCOMMENTARY: According to ritual, the Sun appears in the east and the Moon in the west. They are like the meaning of husband and wife. She is equal to him, such is her importance! 5 5 . . . If fraud or wrongdoing are involved in the marriage refers to having a wife "See Article 195 below. "This paraphrases the Li chi, "Chi-yi," p. 812; Couvreur, Li ki, π, 287. There the text contin­ ues with the statement that the alternation of the yin and yang produces harmony in the universe.

Article 178

155

and saying that there is no wife. If the marriage is due to such dissembhng and fraud, the punishment is one and one-half years of penal servitude. . . . The relationship is ended in each case means that no matter whether the woman's family knows the circumstances or not, the relationship is ended. . . . QUERY: If a man who has a wife takes a second wife, even if the relationship is ended (when the second marriage is discovered), if in the interval there are offenses committed against each other by the family members, is the applicable law the same as for the original wife's family? REPLY: One husband, one wife is a rule that cannot be broken. If a man has a wife and takes a second wife, basically there has been no marriage. If we carefully examine the principle of the law, punishment is limited to that for persons of non-kin status.

Article 178 [10b]

Making the Wife a Concubine

ARTICLE: 178.1—All cases of making the wife a concubine or making a slave the wife are punished by two years of penal servitude. 178.2—If a concubine or female retainer is made the wife, or a slave is made the concubine, the punishment is one and one-half years of penal servitude. 178.3—In each case, they are returned to their status.56 SUBCOMMENTARY: The wife is an equal as was said of the states of Ch'in and Chin. 57 Concubines can be bought and sold and so are very different from the wife. Slaves are inferior and basically not of the same class as commoners. If a person makes the wife a concubine or makes a slave the wife, this violates and sets aside an agreement that was decided upon, injures the true way of husband and wife, and insults the principles of human relationships. If the distinction between upper and lower classes is upset and ritual and principles are scattered, those who commit such crimes are punished by two years of penal servitude. Where a concubine or a female retainer is made the wife—a female retainer is the daughter of a personal retainer, or someone who has been transferred,58 or a slave who has been manumitted and made a personal retainer. . . .

K

See the discussion on the inferior classes in Vol. i, p. 23. "This refers to two powerful states in the first millennium B.C. ^Transference, or payment of the former master for food and drink, was simply a way to get around the prohibition against actually selling personal retainers. See Vol. i, p. 122, n. 122.

156

Article 178

[121] QUERY: Suppose a person makes the wife a ying concubine or a ying concubine the wife, or makes a concubine a ying concubine or a ying concubine the concubine. What is the punishment? 59 REPLY: According to the Articles on Assaults and Accusations, "If a ying concubine commits a crime against her husband's wife, the punishment is one degree less than for a concubine. If a concubine commits a crime against a ying concubine, the punishment is increased one degree above that for a person of non-kin status." [The Commentary states:] "In other articles where there is no provision about ying concubines, they are treated the same as concubines." 60 Thus if a husband commits a crime against a ying concubine, it is treated the same as if she were a concubine. The question, then, is not whether the wife, [Ha] a ying concubine, or a concubine have committed offenses against each other, but whether the article increases or decreases the punishment for such offenses. If the husband commits an offense against a ying concubine, the article considers it as having been against a concubine. If the wife is made a ying concubine, the punishment is the same as if the wife is made a concubine. If a ying concubine is made the wife, the punishment is also the same as if a concubine is made the wife. If a ying concubine is made a concubine, neither the Code nor the Statutes has a provision for this, so it is proper that punishment be the heavier for doing what ought not to be done, that is, eighty blows with the heavy stick.61 If a concubine is made a ying concubine, the Statutes have a ruling, 62 but the Code does not. So the punishment can only be that for violating a statute.63 If these changes in status are due to a certificate of appointment being given to the person who made them, the law on falsely giving a person an office is followed.64 If a concubine is fraudulently made a ying concubine and falsely assumes the surname and name of a ying concubine, and only then does the person get the certificate of appointment, the punishment is one year of penal servitude following the law on a person's falsely adding to his merits in order to get an office.65 ARTICLE: 178.4—If a slave has a child, or is manumitted as a commoner, she is allowed to be a concubine. s, Ymg concubines were of higher status than ordinary concubines. During the T'ang period, only officials of the fifth rank and above could have such women. See Vol. I, pp. 82, 83, and 83, n. 194. "See Article 326 below. 6, See Article 450 below. "Unfortunately we do not know what this ruling was. See Nnda, Statutes, p. 251. 63 See Article 449 below. The punishment is fifty blows with the light stick. "See Article 370 below. The reason for the change in the certificate of appointment is that only officials of the fifth rank and above could have ying concubines. Still, the punishment is very severe, being life exile at a distance of 2,000 Ii. 65 This is the third part of Article 370.

Article 179

757

SUBCOMMENTARY: If a slave has a child because of her master or even if she has no child she is manumitted as a commoner, she is allowed to be a concubine. QUERY: If a slave who is manumitted as a commoner is allowed to be a concubine, what punishment is there to be if she is made a wife? REPLY: A wife manages the affairs of the family and carries out the sacrifices. (In making the arrangements for the marriage) there are six rituals, and when she is married, (she and her husband) are the two forms (i.e., heaven and earth = husband and wife). Even if a slave is manumitted as a commoner, how can she have the importance of a wife? Hence the law allows her only to be a concubine and does not permit her to be made a wife. Since the punishment [ l i b ] cannot be for taking a slave as a wife, then it must be for taking a concubine as a wife.

Article 179 Marriage during the Period of Mourning for Parents or Husband ARTICLE: 179.1a—All cases of marrying during the period of mourning for parents or husband are punished by three years of penal servitude. 170.1b—If a person takes or becomes a concubine during this period, the punishment is reduced three degrees. 179.1c—The relationship is ended in each case. 179.2a—Those who have knowledge of the circumstances and yet decide upon the marriage have their punishment reduced five degrees in each case. 179.2b—If they do not know the circumstances, they are not punished. SuBCOMMENTARY:The death of parents is mourned to the end of a person's life. For three years a person forgoes pleasure and observes ritual. The husband is the wife's heaven; there can be no greater loss. During the period of mourning for parents or husband means within twentyseven months. . . .As for a man taking a concubine during the period of mourning, or a wife or daughter becoming a concubine—with regard to concubines, it is permitted to divine a surname for her because by circumstances and in principle she is a member of an inferior class.66 But since the number of rites is different, therefore the punishment is less. . . . 66 It was important that the man and wife not be of the same surname. See Article 180 below. Since concubines had no surname, divining by cracking the plastron of a tortoise with a hot iron and "reading" the line provided a way of knowing what the surname was, though no explanation is given about it. Shiga, Translations, vi, 275, quotes two classical references to this practice in the Li chi,"Ch'ii-h," p. 37; Couvreur, Memoires, 1,31; and the Tso-chmn,"Chao 1," p. 707; Legge, The Chinese Classics, v, 573.

158

Article 180

Those who have knowledge of the circumstances and yet decide upon the marriage refers to where the wife's and the husband's fathers agree to the marriage despite both families knowing that it will take place within the period of mourning. . . . [122] ARTICLE: 179.3a—Those who marry within the period of mourning for relatives of the second degree of mourning are punished by one hundred blows with the heavy stick. 179.3b—If the dead person is of a lower generation or of the same generation but younger than the offender, the punishment is reduced two degrees. 179.3c—If a person takes or becomes a concubine during this period there is no punishment. [12a] SUBCOMMENTARY: . . .

Article 180 Marriage while Parents Are in Prison ARTICLE: 180.1—All cases of marriage while paternal grandparents or parents are in prison are punished by one and one-half years of penal servitude if the punishment is death. The punishment is reduced one degree if their punishment is life exile and is one hundred blows with the heavy stick if their punishment is penal servitude. COMMENTARY: 180.2—If the marriage is ordered by the paternal grandparents or parents, there is no punishment. SUBCOMMENTARY: While the paternal grandparents or parents are fettered67 in prison, the Confucian doctrine does not permit a son or grandson in the male line to marry. . . . If a person takes or becomes a concubine, in accordance with the above text,68 their punishment is reduced three degrees. If a relative of the second degree of mourning of a higher generation or of the same generation but older is the master of the marriage (chu-hun 3i&H)> that person is the principal and the man or woman is an accessory. If another (less close) relative is the master of the marriage and the offense originated with the master of the marriage, then that person is the principal and the man or woman is the accessory. But if the offense originated with the man or woman, then the man or woman is the principal and the master of the marriage is the accessory. 'KM H should be read ku §g, following the KHCPTS edition. 'See Article 179 above.

Article 181

159

If the man or woman is forced, or the man is eighteen years of age or less, or the girl is very young (tsai-shih ¢ : ¾ , 6 9 only the master of the marriage is punished in either case. If the marriage is ordered by the paternal grandparents [12b] or parents there is no punishment refers to where the paternal grandparents or parents command the person to marry. Therefore the Code does not punish the person. According to the statute: "There may not be a marriage feast."70

Article 181 Acting as Master of the Marriage during the Period of Mourning for Parents ARTICLE: All cases of acting as master of the marriage during the period of mourning for parents for persons who are allowed to marry are punished by one hundred blows with the heavy stick. SUBCOMMENTARY: . . . If the punishment for acting as master of the marriage is heavier than one hundred blows with the heavy stick in cases where the persons who are not allowed to marry, then such heavier punishment is sentenced. Even though the Code has no provision where a wife during the period of mourning for her husband acts as master of the marriage for persons who are allowed to marry, the punishment should be the heavier for doing what ought not to be done, or eighty blows with the heavy stick.71 If a person acts as a go-between during the period of mourning for persons who are allowed to marry, the punishment is the heavier for doing what ought not to be done, or eighty blows with the heavy stick. For the same offense during mourning for the husband, the punishment is the lighter for doing what ought not to be done, or forty blows with the light stick.

"No definition is given for this term in the Code though it occurs several times. Tai, Specific Articles, p. 98, says that it refers to a girl who has not reached the age of understanding. In the contexts in which it appears, it refers to a girl who has never been married. 70 Niida, Statutes, ρ 504. "See Article 450 below.

CHAPTER

XIV

Article 182 [la; 3.1]

Marriage by Those with the Same Surname

ARTICLE: 182.1a—All cases of marriage by those with the same surname punish each of them by two years of penal servitude. 182.1b—If they are fifth-degree mourning relatives, they are punished for illicit sexual intercourse. 1 SuBCOMMENTARY:Those who are of the same clan and share a common surname are not permitted to marry. . . . Anciendy, persons received surnames and clan names because of outstanding virtue, because of the name of their fief, or be­ cause of their noble title; there are several reasons. But those who were members of the ancestral clan have moved away from each other and, as years and genera­ tions passed, have gradually grown apart and drifted away from their origins. Rarely can they investigate these changes in detail. As for those named Lu and Wei, they are King Wen's descendants. Those named Fan and Chiang are descendants of the Duke of Chou.Though at first they were members of the same clan, later each had his own fief. They all took surnames from their fiefs and made them the basis of their clans. So marriage with someone surnamed Chi does not come within what is forbidden. 2 How­ ever, where the characters for the surname sound the same, even though written differently, yet the tones are the same, how can it be proper for such persons to be married? Those named Yang ϋ§ and Yang %§} are an example of this. In recent times, special imperial decrees have awarded surnames, and the ancestral records of these persons are still extant, so that their descendants are known. Those who at present share the original surname certainly may not marry. Those who have double surnames, if one character is the same though their clans are different, do not come within the Umits of prohibition [lb] of marriage. But if those who are within the five degrees of mourning relationship marry, both are punished for illicit sexual intercourse under the Miscellaneous Articles.

'See Articles 411—413 below. For fifth-degree mourning relatives the punishment is three years of penal servitude. For relatives within the first four degrees of mourning, this offense is one of the ten abominations. See Vol. i, p. 61, Article 6. 2 TlIe point of the paragraph is that the Kings of Chou were surnamed Chi. After the Chou overthrew the Shang at the beginning of the first millennium B.c , his descendants took their names from their fiefs and formed their own clans.Therefore persons surnamed Lu,Wei, Fan, and Chiang, though originally kin, could in T'ang times intermarry with persons named Chi. This explanation comes from Wang Yuan-Hang's Explanation of the Text.

Article 182

161

QUERY: If persons with the same surname marry, each is punished by two years of penal servitude. It is not yet known what the punishment is for a man to take a concubine who has the same surname. REPLY: If a concubine is purchased whose name is not known, it is divined either by the milfoil or the tortoise to guard against someone with the same surname. 3 Persons of the same surname share the same paternal grandfather. If a man takes such a woman either as wife or as concubine, there is no difference in its confusion of the law.The Household Statutes state: "In taking a concubine a contract is drawn up as for a wife."4 If upon investigation, the wife or the concubine have the same name as the husband, there is no difference in punishment, whether it follows the ritual or the statute. ARTICLE: 182.2—All cases of marriage between collateral relatives who have a mourning relationship and who are of a higher and lower generation, or with a sister of the same wife but a different father, or with the daughter of the wife's former husband also punish each of the persons for illicit sexual intercourse. COMMENTARY: This means a child born of the wife. Reference to the former husband's daughter in other articles follows this article. SUBCOMMENTARY: Collateral relatives who have a mourning relationship refer to the wife's paternal grandparents, paternal uncles and aunts, and parents. Marriage with any of these persons is called marriage by persons of a higher or lower generation. If a person marries a sister of the same father but a different mother or the daughter of the wife's former husband, the commentary states: "This means a child born of the wife." It also means the former husband's daughter where a later husband takes her as a concubine. This is marrying a woman born of the wife. If she is not born of the wife, [2] then the punishment follows the basic law.3 Reference to the former husband's daughter in other articles follows this article. According to the [2a] Miscellaneous Articles, illicit sexual intercourse with a daughter of the wife's former husband also refers to those children born of the wife. Therefore it is stated that it also follows this article in sentencing both of them for illicit sexual intercourse. Where collateral relatives have a mourning relationship but are not of a higher or lower generation than each other, marriage is not forbidden.

3

On divining concubines' surnames, see Chapter xm, note 66. What is not mentioned there is the use of the milfoil, which is the method described in the Book of Changes. 4 Nnda, Statutes, p. 250. 'That is, the basic law on illicit intercourse between persons of nonkin status, Article 411, which punishes the act by one and one-half years of penal servitude.

162

Article 183

ARTICLE: 182.3—Marriage may not take place with: (1) the father's paternal aunts, (2) the father's maternal aunts, (3) the maternal grandfather's nieces in the female line, (4) the maternal grandmother's nieces in the male line, (5) the paternal grandmother's nieces in the female line, (6) great aunts in the maternal line, (7) the paternal grandmother's female second cousins in the male line, (8) the maternal grandmother's female second cousins in the male line, (9) the mother's paternal aunts, (10) the mother's paternal grandfather's nieces in the female Une, (11) the maternal grandfather's nieces in the female line, (12) the mother's paternal grandfather's nieces in the male line, (13) nieces in the female line, or (14) the son-in-law's sisters .Violations are punished by one hundred blows with the heavy stick in each case. 182.4—The relationship is ended in each case. SUBCOMMENTARY: Even though there is no mourning relationship with the first six groups listed above, still they are fifth degree of mourning relatives of one's parents and accordingly are relatives of a higher generation. Therefore one may not marry them. The paternal grandmother's female second cousins in the male Une, moreover, are fourth-degree mourning relatives of one's parents. As for the maternal grandmother's female second cousins in the male Une, even though they have no mourning relationship with one's parents, still they are of a higher generation. The mother's paternal aunts and the mother s paternal grandfather's nieces in the female line are relatives within the fourth degree of mourning of a higher generation than one's mother. The maternal grandfather's nieces in the female Une and the mother's paternal grandfather's nieces in the male Une and nieces in the female line are all children of paternal aunts.There is no mourning relationship with the son-in-law's sisters, but it is reasonable that marriage with them should not be allowed. Marriage with any of these persons would mix older and younger generations and throw human relationships into disorder. So those whose marriages violate this article are punished by one hundred blows with the heavy stick. And even though there be an amnesty, for those of the same surname and the others Usted below who marry, the relationship will be ended.

Article 183 Taking a Wife within the Sixth Degree of Mourning [2b] ARTICLE: 183.1a—AU cases of taking a wife who is a relative within the sixth degree of mourning in marriage punish each of them by one hundred blows with the heavy stick. 183.1b—Taking as a wife a woman who was the wife of a relative of the fifth degree of mourning, or a material uncle, or a nephew in the female Une is punished by one year of penal servitude.

Article 184

163

183.1c—Taking as a wife a woman who is a relative within the fourth degree of mourning is punished for as illicit sexual intercourse. 6 183.2—Taking such persons as concubines is punished two degrees less in each case. 183.3—The relationship is ended in each case. SuBCOMMENTARY:The brothers of a great-great grandfather in the paternal line, the male first cousins in the male line of a great grandfather in the paternal line, the male second cousins in the male line of a grandfather in the paternal line, and the male third cousins in the male line of a father, and a person's own fourth cousins in the male line, though not relatives within the fifth degree of mourning, are all sixth-degree mourning relatives. The mourning rules for those who share a male ancestor of the fifth generation are different than for others (that is, relatives of the sixth degree of mourning). . . . [3]

Article 184 Remarriage of a Widow while Mourning Her Husband ARTICLE: 184.1a—All cases where a widow wishes to remain true to her vows after the period of mourning for her husband is over, and persons who are neither her paternal grandparents nor parents force her to remarry, punish them by one year of penal servitude. 184.1b—If these persons are relatives of the second degree of mourning, the punishment is reduced two degrees. 184.2—The relationship is ended in each case and the woman is returned to her former family. 184.3—The man who married her is not punished. SUBCOMMENTARY: If a widow swears to remain true to her vows after the period of mourning for her husband is over, only her paternal grandparents or parents are able to make a decision for her to remarry. Persons who are neither her paternal grandparents nor parents refer to relatives within the third degree of mourning who improperly force her to remarry. They are punished by one year of penal servitude. [3b] Relatives of the second degree of mourning refer to paternal uncles and aunts, brothers, sisters, and brother's children. If they force her to remarry, the punishment is reduced two degrees to ninety blows with the heavy stick. . . .

6

See Articles 411-413 below. For fifth-degree mourning relatives the punishment is three years of penal servitude. For relatives within the first four degrees of mourning, this offense is one of the ten abominations. See Vol. I, p. 61, Article 6.

164

Article 185

Article 185 Marrying a Woman Who Has Run Away ARTICLE: 185.1—In all cases of marrying a woman who has run away or of taking her as a concubine, if the man knows the circumstances he receives the same punishment as the woman for her crime. If the punishment is the death penalty, it is reduced one degree. 185.2a—The relationship is ended. 185.2b—If the woman has no husband and there is a grant of mercy which exempts her from punishment, the relationship is not ended. SUBCOMMENTARY: If a woman commits a crime and runs away and a man who knows the circumstances takes her as a wife or a concubine, if her punishment is life exile or less, he receives the same punishment. . . . If he does not know the circumstances and marries her, he is not punished. . . .

Article 186 Supervisory Officials Who Take Women within Their Area ofJurisdiction as Concubines ARTICLE: 186.1a—All cases of supervisory officials who take women within their area of jurisdiction as concubines are punished by one hundred blows with the heavy stick.7 186.1b—If a supervisory official takes a woman as a concubine for one of his relatives, the punishment is the same. 186.1c—For officials who are not supervisory officials, the punishment is reduced one degree. 186.Id—The woman's family is not punished. [4a] SUBCOMMENTARY: Supervisory officials refer to those whose duties involve being in charge of offices and investigating cases.8 If they take a woman within the area under their jurisdiction as a concubine, the punishment is one hundred blows with the heavy stick. If they do so for any of their relatives, the punishment is also one hundred blows with the heavy stick. Relatives refer to those within the fifth degree of mourning, as well as families connected through marriage

Tai, Specific Articles, p. 90, believes that this article would also punish a supervisory official who married a woman within his area of jurisdiction. He cites a statute, Niida, Statutes, p. 353, to the effect that any official at the prefecture or county level may not marry a woman in the area where he is serving. If he does, they will be separated. He further believes that marriage would be covered under Vol. I, p. 254, Article 50, which uses analogy to punish crimes that have no formal article that covers them. «See Vol. I, p. 263, Article 54.

Article 186

165

within the third degree of mourning. However, since the woman was taken by the supervisory official, these relatives will not be punished. 9 However, if the relatives are of like mind with him and use force or threats to take a woman as a concubine, the basic law on principal and accessories is followed in punishing them. The supervisory official is the principal and the one who takes her as a concubine are the accessories. . . . Those whose duties are not to be in charge of offices but who, while they are temporarily acting as supervisory officials, take a [4] concubine receive the same punishment. The relationship is ended in each case. ARTICLE: 186.2a—If a supervisory official subverts the law by taking another man's wife, concubine, or daughter as his concubine, the punishment is for illicit sexual intercourse increased two degrees.10 COMMENTARY: 186.2b—Taking any of these women as a concubine for a relative is punished the same. ARTICLE: 186.2c—Those who seek to have these acts carried out have their punishment reduced two degrees in each case. 186.3—The relationship is ended in each case. SUBCOMMENTARY: Where a man who has a wife or concubine seeks to have the supervisory official twist the law in deciding some matter, and the supervisory official takes the man's wife, concubine, or daughter to be his concubine, the punishment is for illicit sexual intercourse increased two degrees. Should there be a mourning relationship, then the increase of punishment follows the relevant law in each [4b] case" but also adds the two degrees of punishment for supervisory officials who commit illicit sexual intercourse. . . . Those who seek to have these acts carried out have their punishment reduced two degrees in each case. Where a man seeks to have his wife, concubine, or daughter taken as a concubine by a supervisory official, his punishment is two degrees less than that of the supervisory official. Where the supervisory official's relatives know that a man is seeking to subvert the law and one of them takes the man's wife, concubine, or daughter, they themselves are considered to be accessories. . . . Since in principle the man's wife, concubine, or daughter had no freedom in this matter, they are not punished. 'See Vol. i, p. 225, Article 42, which specifies that supervisory officials who commit offenses together with commoners will be the only persons punished. This article also provides that the accessories in a crime as mentioned below have their punishment reduced one degree below that of the principal. ,0 See Article 416 below. The punishment provided there is two years of penal servitude. Increased by two degrees, here the punishment would be three years of penal servitude. "Articles 411—413 cover illicit sexual intercourse between relatives. Certain of these cases also come under the last of the ten abominations. See Vol. I, p. 61, Article 6.

166

Article 187

Article 187 Marrying Another Man's Wife by Consent ARTICLE: 187.1a—All cases of marrying another man's wife by consent punish both the man who marries her and the one who gives her to him by two years of penal servitude. 187. Ib—In the case of a concubine, the punishment is reduced two degrees. 187.1c—The relationship is ended in each case. 187.2a—If her husband himself marries her to another man, his punishment is the same. COMMENTARY: 187.2b—Both relationships are ended. SUBCOMMENTARY: . . . The relationship with both husbands is ended.

Article 188 Family Members of a Higher Generation or of the Same Generation but Older Making Engagements to Marry for Relatives of a Lower Generation or of the Same Generation butYounger [5a] ARTICLE: In all cases where a family member of a lower generation or of the same generation but younger is away from home and a family member of a higher generation or of the same generation but older makes an engagement to marry for him and it develops that the family member who is of a lower generation or of the same generation but younger has arranged a marriage, if the marriage has already taken place, the marriage stands according to law. If the marriage has not yet taken place, the arrangements made by the family member of a higher generation or of the same generation but older are followed.Violations are punished by one hundred blows with the heavy stick. SUBCOMMENTARY: Those of a lower generation or of the same generation but younger refer to persons such as sons, grandsons in the male line, younger brothers, and nephews in the male line. Away from home refers to being sent to another place on public or private business. If such a person arranges to marry and a family member of a higher generation or of the same generation but older later makes an engagement to marry for him . . . . Family members of a higher generation or of the same generation but older refer to those such as paternal grandparents, parents, paternal uncles and their wives, paternal aunts, elder brothers, and elder sisters.

Article 189

167

Article 189 Divorcing a Wife Who Has Not Given Any of the Seven Causes for Repudiation™ ARTICLE: 189.1—All cases of divorcing a wife who has not given any of the 13 seven causes for repudiation, nor any of the conditions for divorce, are punished by one and one-half years of penal servitude. 189.2—Even if the wife has given one of the seven causes for repudiation, if any of the three conditions under which a wife cannot be divorced exists (san pu-ch'u Ξι^PtB), and yet she is repudiated, the punishment is one hundred blows with the heavy stick. 189.3—The wife must be taken back. 189.4—This law is not applicable in cases of incurable disease (o-chi ^ 1¾)14 or illicit sexual intercourse. SuBCOMMENTARYrThe way of husband and wife is to expect to be in the same grave. Once joined, they do not change during their lifetimes. Therefore if a wife has not given any of the seven causes for repudiation, nor any conditions for divorce, she may not be repudiated. According to the statute:"[In all cases of casting aside a wife, there must be one of the seven causes for repudiation:] the first is not to have any children; the second is immoral behavior; the third is not [5b] serving her parents-in-law; the fourth is loquacity; the fifth is committing robbery or theft; the sixth is jealousy; and the seventh is incurable disease."15 Divorce refers to:"[In all cases of] beating the wife's paternal grandparents or parents, or killing the wife's maternal grandparents, [5] her paternal uncles and aunts, her brothers, her maternal aunts, or her sisters. Or, if the husband and the wife's paternal grandparents, parents, maternal grandparents, paternal uncles and aunts, brothers, maternal aunts, or sisters kill each other. Or, if the wife beats or curses with bad language (as versus cursing with a spell) the husband's paternal grandparents or parents, or kills or wounds the husband's maternal grandparents, parents, paternal uncles and aunts, brothers, maternal aunts, or sisters. Or there is illicit sexual intercourse between any of the husband's relatives within the fifth degree of mourning or the wife's mother, with the wife or the husband. O r where the wife attempts to harm the husband. Even though there should be an amnesty, there is divorce in all these cases. Even though the wife may not yet have entered the husband's house, this statute must be followed."16 If there are not these seven causes for repudiation or conditions for divorce and the wife is improperly repudiated, the punishment is one and one-half years of penal servitude. 12

On divorce generally in traditional Chinese law, see Ch'ii, Law and Society, pp. 118-123. "On the conditions for divorce, see Article 190 below. "Niida, Statutes, p. 253. 15 Niida believes that the whole of this paragraph constitutes a statute. Ibid., p. 255. 16 IbId.

168

Article 190

Even though the wife has given one of the seven causes for repudiation, if any of the three conditions under which the wife may not be divorced exist refers to (1) the wife has mourned the death of her parents-in-law; (2) when she was married the family was of inferior class status but has now been ennobled; and (3) the wife has no family to receive her. If she is yet repudiated, the punishment is one hundred blows with the heavy stick and she must be taken back. If the wife has an incurable disease or has committed illicit sexual intercourse, this law is not applicable means that for an incurable disease or illicit sexual intercourse, even if the three conditions under which the wife may not be divorced exist, she may still be repudiated. . . . QUERY: A wife who has no children may be repudiated. But we do not yet know at what age she may be repudiated. REPLY:The Code states: "If the wife is fifty years of age or more and has no son, then the oldest son of a concubine is made heir."17 Thus if she is forty-nine or [6a] less, she may not be repudiated.

Article 190 Divorce ARTICLE: 190.1—In all cases where a crime has been committed which is one of the conditions of divorce, the marital relationship is ended. ,8 Violations are punished by one year of penal servitude. 190.2—If the husband and wife divorce because they are not mutually content, they are not punished. SuBCOMMENTARY:The husband and wife should be in harmony. If this harmony ceases, then the marital relationship is ended. . . . The character each19 is not used with regard to ending the marital relationship. If the crime involves only one person, then in all cases it is only the person who is unwilling to end the marital relationship who is punished. If both husband and wife are unwilling to end the marital relationship, the person who formulated the plan is the principal and the other is the accessory.20 In all cases refers to where the official decision is to divorce; only then can the person be punished. If there has not yet been an official decision, there can be no punishment. If the husband and wife are not mutually content means that the feelings on both sides are mutually unfavorable and that both parties want to divorce. In such cases they are not punished. "See Article 155 above. 18 For some of the crimes that cause divorce, see Article 189 above. "Ming :¾ should be read ko :§-, following the SPTK edition. ^See Vol. i, p. 225. Article 42. Accessories receive one degree less punishment than principals.

Article 191

169

ARTICLE: 190.3a—If a wife or concubine improperly leaves her husband, the punishment is two years of penal servitude. 190.3b—If as a result the woman remarries, the punishment is increased two degrees. SUBCOMMENTARY: The wife follows the husband and does not determine her own way. Even when seeing her brothers and going to welcome them, she does not pass over the threshold. But if her mind deviates from harmony and is set on separation so that she turns her back on her husband and improperly goes away cherishing other aims (than her marriage), then she is punished by two years of penal servitude. . . . It is difficult to maintain harmony within a household over a long period of time, and there are certain to be disputes within its walls. But this crime is not the same as temporary separations because of being angry at each other. QUERY: If a wife or concubine willfully leaves her husband, the punishment is two years of penal servitude. If as a result the woman remarries, the punishment is increased two degrees. If the woman's parents or relatives within the second degree of mourning act as master of the marriage, what is their punishment? [6] REPLY: In the article below,21 where a marriage violates the Code, if the paternal grandparents or parents act as the master of the marriage, only the master of the marriage is punished. If a relative within the second degree of mourning of a higher generation or of the same generation but older acts as master of the marriage, that person is the principal, and the man or woman is an accessory. Where her parents know that a woman has willfully left her husband, it is reasonable that they should admonish her as to what is right. If they do not return her to her husband's home but violate the law and remarry her, her parents are punished by three years of penal servitude.The wife or concubine is only punished for having willfully left her husband. If a relative of the second degree of mourning acts as the master of the marriage, the law on principal and accessories is followed.

Article 191 Slaves Who Take Commoners as Wives ARTICLE: 191.1a—All cases of allowing a slave to take the daughter of a commoner as a wife are punished by one and one-half years of penal servitude. 191.1b—The woman's family is punished one degree less. 191.1c—The relationship is ended. See Article 195 below.

170

Article i9i 191.2a—If the slave marries her himself, the punishment is the same. 191.2b—If the slave's master knows the circumstances, he is punished by one hundred blows with the heavy stick. 191.3—If because of the marriage the woman is put on the household register as a slave, the punishment is life exile at a distance of 3,000 Ii.

[7a] SUBCOMMENTARY: Each person has a partner, but they should be of the same social class. Commoners and inferior persons are different; how can they be matched? Allowing a slave to take the daughter of a commoner as a wife is punished by one and one-half years of penal servitude. . . . The relationship is ended in each case means that the slave's master is punished by penal servitude but the slave is not punished. . . . Where a slave takes a female retainer as a wife, the Code has no provision, so the punishment must be by analogy. In the General Principles section it states that references to personal retainers include female retainers.22 The Articles on Assaults and Accusations state: "[In all cases] where a personal retainers beats [or wounds] a commoner, the punishment is increased one degree beyond that for the same crime committed by another commoner. If the crime is committed by a slave, the punishment is increased one degree further. . . . If a commoner beats or wounds a personal retainer, the punishment is one degree less than if the crime had been committed against another commoner. If the crime is committed against a slave, the punishment is decreased one degree further. . . . If a personal retainer and a slave beat, wound, or kill each other in each case, in each case the punishment follows the law on a personal retainer and a commoner beating, wounding, or killing each other." 23 The commentary states: "In other articles where commoners, personal retainers, and slaves commit crimes against each other, if the specific article has no provision, this article is followed." So if a slave takes a commoner as a wife, the punishment is one and one-half years of penal servitude. If he takes a female retainer, the punishment is decreased one degree to one year of penal servitude. If the master knows the circumstances, he is punished by ninety blows with the heavy stick, and if because of the marriage the woman is put on the household register as a slave, the master's punishment is three years of penal servitude. As for any children that she might have during this time, according to the statute:"[If a slave, or a personal retainer, or a female retainer marries a person of commoner status] and the commoner does not know the circumstances (that the marriage partner is a slave, a personal retainer, or a female retainer,] the children are of commoner status. If the commoner does know the circumstances, the children are of inferior status.24

-See the commentary to Article 47 in Vol i, p. 249. 23 See Article 320 below. The commentary quoted immediately below is also from that article. 24 Nnda, Statutes, p. 262.

Article 192

171

[7b] ARTICLE: 191.4a—Wrongly recognizing a slave as a commoner and allowing him or her to be a husband or wife of a commoner is punished by two years of penal servitude. COMMENTARY: 191.4b—If the slave himself wrongly does so, the punishment is the same. ARTICLE: 1 9 1 . 4 C — T h e person is returned to his or her original status in each 9S

case.-5 SUBCOMMENTARY: If a male or female slave is wrongly made a commoner and married to a commoner as husband or wife, the punishment for this wrong is two years of penal servitude. . . . The person is returned to their original status in each case. Returning to original status means that even if there is an imperial amnesty, the person is returned to his or her original status. If there are many marriage gifts so that the punishment would be heavier than two years of penal servitude, the law on taking articles by fraud or cheating is followed, and the amount of illicit goods is calculated in deciding punishment. 26

Article 192 General Bondsmen Are Not Permitted To Marry Commoners ARTICLE: 192.1—All cases of violation of the law that general bondsmen are not permitted to marry commoners are punished by one hundred blows with the heavy stick. 192.2—Official bondsmen who marry commoners receive the same punishment. 192.3—A commoner who marries the daughter of an official bondsman is punished two degrees more. [7] SUBCOMMENTARY: General bondsmen are attached to various government offices and are not the same as commoners. They can only marry persons of their own class and are not allowed to marry commoners.Violations of the law are punished by one hundred blows with the heavy stick. Official bondsmen who take commoners as wives receive the same punishment. This means that official bondsmen are also attached to various government offices and [their registries of ancestry] are not kept by prefectures and counties. They also marry persons of 25

See Article 194 below. See Article 373 below.That law specifies that punishment shall be comparable to robbery, for which see Article 282 below. On comparable crimes, see Vol. i, p. 261, Article 53. 26

Π2

Article i92

their own class and are not permitted improperly to marry commoners. Viola­ tions are [8a] also punished by one hundred blows with the heavy stick. If a commoner marries the daughter of an official bondsman, the punishment is increased two degrees to one and one-half years of penal servitude. The law has no provision covering an official bondsman marrying his daughter to a com­ 27 moner. In both cases, the principle on principal and accessories is followed. ARTICLE: 192.4a—If a slave secretly gives his daughter to a commoner as a wife or concubine, the punishment is comparable to that for robbery. 28 192.4b—The man who knows the circumstances and yet takes the daugh­ ter receives the same punishment. 192.5—The woman is returned to her original status in each case. SUBCOMMENTARY: Slaves are the same as goods, and decisions about them are made by their owners. If a slave improperly and secretly marries his daughter to a man, her value is calculated and the crime is punished as comparable to rob­ bery. Thus if she is worth five p'i of silk, the punishment is one year of penal servitude increased one degree for each further five p'i. A man who knows the circumstances and yet takes the daughter receives the same punishment as the slave. If he does not know the circumstances, he is not punished. For an official bondsman becoming the wife of a commoner on down, not only is there pun­ ishment but the relationship is ended and the person is returned to his or her original status in each case. As for artisan bondsmen, musician bondsmen, and general bondsmen, ac­ cording to the statute:"[Artisan bondsmen, musician bondsmen, general bonds­ men, official bondsmen, personal retainers, female retainers, public and private slaves,] all must marry within their class."29 The Code has no provision for where persons of different classes intermarry, so they are punished for violating a stat­ ute. 3 0 Since they have deviated from their original status, they also are returned to it. Musicians of the Court of Imperial Sacrifices, according to the statute, are allowed to marry commoners. 3 1 If they indiscriminately marry [persons of infe­ rior classes], the punishment follows that for commoners. Where the specific article has no provision about offenses committed by per­ sonal retainers and slaves, according to the Code, they are treated as commoners in each case.32 If they are given to general bondsmen or official bondsmen in marriage, it is treated the same as under the law on commoners and official bondsmen intermarrying.They are returned to their original status in each case.

"SeeVol.1, p. 225, Article 42. Accessories received one less degree of punishment than principals. 28 Robbery is covered in Article 282 below. On comparable crimes, see Vol. I, 261, Article 53. 29 Niida, Statutes, p. 258. ^See Article 320 below. 31 Nnda, Statutes, p. 259. 32 See Vol. i, p. 249, Article 47.

Article 193

173

Article 193 [8b]

Marriages That Violate the Code

ARTICLE: 193.1a—In all cases of marriage that violate the Code even though there has been a matchmaker, if threats have been used, the basic punishment is increased one degree. 193.1b—If force is used to bring about the marriage, the punishment is increased one degree further. 193.1c—Punishment for the person who is forced is limited to that provided by the law on marriages that have not yet taken place. SUBCOMMENTARY: Marriages that according 33 to the Code are not permitted yet are made intentionally are called marriages that violate the Code. For example, if a general bondsman is given to a commoner as a wife, even though there was a matchmaker, if threats were used, the basic punishment is increased one degree. . . . If force is used to bring about the marriage, the punishment is increased one degree further refers to using strength or power. . . . As for punishment for the person who is forced being limited to that provided by the law on marriages that have not yet been completed, in the article below 34 where the marriage has not yet been completed, punishment is reduced five degrees below that for marriages that have been completed, so that the punishment for the woman's family is limited to fifty blows with the light stick. ARTICLE: 193.2—If a marriage is permitted, and even though the marriage presents have been received, force is used to bring about the marriage before the time for the marriage to take place has arrived, or when the time for the marriage to take place has arrived, the woman's family intentionally violates the law, the punishment is one hundred blows with the heavy stick in each case. SUBCOMMENTARY: Where a marriage is permitted means that according to the Code persons are permitted to marry. Where even though the marriage presents have already been received and the happy day fixed by the contract has not yet arrived, the man's family forces the marriage, or when the happy day that was fixed has already arrived, the woman's family does not allow the marriage to take place, the punishment is one hundred blows [9a] with the heavy stick in each case. The punishment follows the Code, but the couple may not separate.

33

Wei 'M. should be read yi ffe, following the KHCPTS edition. See Article 195 below

M

174

Article 194

Article 194 [8]

Divorce and Correction of Status in Marriages That Violate the Code

ARTICLE: 194.1a—In all cases of marriages that violate the Code, where the relevant article has reference to ending the relationship and correcting status, this is done even if there is an amnesty. 194.1b—If an engagement has been made but the marriage has not yet taken place, the same rules apply. 194.2a—The marriage gifts may not be recovered. 194.2b—If the woman's family has made a wrongful substitution, the marriage gifts may be recovered. SUBCOMMENTARY: Marriages that violate the Code refer to marriages that according to the Code are not permitted and there is an intentional violation of the Code. Where the relevant article has reference to ending the relationship refers to the above article where if the man's or woman's family makes a wrongful substitution, the relationship is ended. 35 Status is corrected refers to the above article where if a slave secretly marries his daughter to a commoner, the status is corrected. 36 Even though there be a great amnesty means that where there is reference to the relationship being ended it is still ended, and where there is reference to status being corrected, the status is still corrected. Where an engagement has been made, but the marriage has not yet taken place, the same rules apply. Where a general bondsman and a commoner have already become engaged, or a supervisory official has not yet married a woman within his area of jurisdiction, even after an amnesty the relationships are ended and status is corrected. Therefore it is stated that where an engagement has been made but the marriage has not yet taken place, the same rules apply. If the man's family has already sent the marriage gifts, even though the relationship is ended and status corrected, they may not be recovered. But where the woman's family has made a wrongful substitution so that it is required that the relationship be ended or status corrected, the marriage gifts may be recovered by the man's family. In all cases where the relevant article has reference to ending the relationship and correcting status, this is done even if there is an amnesty. The General Principles section states: "All cases in which there is an amnesty require correction of status. . . . If a person is responsible for registration documents and does not correct the registration . . . each case is punished according to the article on the specific crime." 37 Relationships of the kind that the Code requires be ended are those that must be ended after an amnesty. If they are not ended, in cases where

'See Article 176 above. 5 See Article 192 above. 'Vol. i, p. 197, Article 36.

Article 195

175

the Code has no provision, the persons still receive the heavier punishment for doing what ought not to be done, namely, eighty blows with the heavy stick.38 If the persons involved are ordered to end their relationship and do not, the punishment follows the laws on illicit sexual intercourse. 39

Article 195 Violation of the Code in Giving and Taking in Marriage ARTICLE: 195.1—All cases of giving and taking in marriage that violate the Code, where a paternal grandparent or parent is the master of the marriage, pumsh only the master of the marriage. SuBCOMMENTARY:Violation of the Code in giving and taking in marriage refers to marriages described within this section of the Code that are not permitted. Where a paternal grandparent or parent is the master of the marriage means that a person of a higher generation or of the same generation but older than the man and woman orders the marriage to take place. Therefore only the master of the marriage is punished, and the man and woman are not punished. If a paternal grandparent or parent is the master of the marriage where a son or grandson in the male line marries a maternal first cousin, only the paternal grandparent or parent is punished; neither the son nor the grandson in the male line is punished. COMMENTARY: 195.2—If the specific article refers to sentencing for illicit sexual intercourse,40 the relevant law is followed in each case. If punishment reaches the death penalty, it is reduced one degree. SUBCOMMENTARY: If the specific article refers to sentencing for illicit sexual intercourse refers to relatives of the fifth degree of mourning in the above article being punished for illicit sexual intercourse. 41 Suppose a father marries his son to the son's maternal aunt. According to the Miscellaneous Articles, illicit sexual intercourse with a maternal aunt is punished by life exile at a distance of 3,000 Ii. If force is used, the punishment is strangulation. 42 [10a] The father is also punished by life exile at a distance of 2,000 Ii, the same as under the miscellaneous law. If the son had committed the crime himself and held an office, he would be disenrolled.43 This is called following the relevant law in each case. 38

See Article 450 below, which is a catch-all clause. ''Illicit sexual intercourse was treated extremely seriously by the Code, as witness the seven articles dealing with the crime, numbers 410—416. "Ibid. •"See Article 182 above. 42 See Article 412 below. «See Vol. i. p. 119, Article 18.

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The death penalty is reduced one degree refers to where a maternal aunt is married by force, or where a widowed paternal aunt who has not been repudiated is remarried.The relevant article calls for the death penalty. Here the punishment is reduced one degree to life exile at a distance of 3,000 Ii. ARTICLE: 195.3a—If a relative of the second degree of mourning of a higher generation or of the same generation but older is the master of the marriage, the master of the marriage is the principal and the man and woman are accessories.44 195.3b—If another relative is the master of the marriage and the responsibility for the marriage lies with the master of the marriage, then he is the principal and the man and woman are the accessories. If the man and woman are responsible for the marriage, they are the principals and the master of the marriage is the accessory. [9] SUBCOMMENTARY: A relative of the second degree of mourning of a higher generation or of the same generation but older is second in authority to one's parents. Therefore if such a person acts as the master of the marriage, he is the principal and the man or woman is the accessory. If another relative is the master of the marriage refers to those of a lower generation or of the same generation but younger who are relatives of the second degree of mourning or of the third degree of mourning or less. The person who is responsible for the marriage is the principal in each case. . . . Reference to sentencing for illicit sexual intercourse means that both the man and the woman are punished following the law on illicit sexual intercourse. Where disenrollment is required, the criminal is also disenrolled. ARTICLE: 195.4—If the man or woman is forced into marriage, or the man is eighteen years of age or less, or the girl is very young, 43 only the master of the marriage is [10b] punished. SUBCOMMENTARY: If the man or woman is forced into marriage refers to the master of the marriage using strength or power so that it is reasonable to assume that they had no freedom of choice. Even though the man is grown up or the woman is a widow, they will not be punished. If the man is eighteen years of age or less, or the girl is very young, again only the master of the marriage will be punished, not the man or woman. ARTICLE: 195.5—If the marriage has not yet taken place, the punishment is reduced five degrees in each case. •"See Vol. I, p. 225, Article 42. Here both parties are punished, but the accessory by one less degree than the principal. 45 On this term, see Chapter xm, note 69

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195.6—The punishment for the matchmaker is reduced two degrees below that of the principal in each case. SUBCOMMENTARY: N o t yet taken place refers to where the marriage is a violation of the Code that is punished by that article. If there is an engagement but the marriage has not yet taken place, the punishment is reduced five degrees. If persons of the same surname marry, the punishment is two years of penal servitude. 46 But if the marriage has not yet taken place, the punishment is eighty blows with the heavy stick. This is called reducing the punishment five degrees. [In the article above on persons with the same surname marrying,] the matchmaker also is punished by one year of penal servitude. If the marriage has not yet taken place, the punishment is reduced to sixty blows with the heavy stick. This is called reducing the punishment two degrees below that of the principal in each case. In accordance with the Code, there is a reduction of the level of punishment provided by the article in each case. This summary of persons with the same surname is brought up as an example, and other articles all follow this article. In all cases of violating the Code in making a marriage, reference to force being used increase the punishment by two degrees. Reference to the crime being punished for illicit sexual intercourse, if force is used, increase the punishment by only one degree. The punishment for the matchmaker is reduced one degree below that for illicit sexual intercourse in each case.

'See Article 182 above.

5. THE PUBLIC STABLES AND WAREHOUSES [la; 9]

CHAPTER

XV

SuBCOMMENTARY:The Articles on the Public Stables and Warehouses were created and added to the Han [Statutes] in Nine Sections. The Wei dynasty took the section on the Public Stables and Warehouses and distributed it among various chapters. The Chin dynasty took the crimes concerned with herdsmen and combined them, calling them the Articles on Stables and Herdsmen. From the Sung dynasty to the Liang dynasty, this section was again called the Articles on Public Stables. Coming to theT'ai-ping period (A.D. 477-499), it was called the Articles on Herdsmen and Natural Increase. During the Cheng-shih period (A.D. 504—507), this section was again called the Articles on Public Stables and Herdsmen.This name did not change through the Northern Ch'i and the Latter Chou dynasties. During the Sui K'ai-huang period (A.D. 581-600), crimes concerning granaries were appended to this section and it was again called the Articles on Public Stables and Warehouses. Stables are where pigeons, horses, and cattle are kept. Warehouses are buildings where weapons, armor, goods, and silk are stored.Therefore in the states of Lu and Ch'i (i.e., northeastern China), stables were called buildings. Since the crimes concerned with households are finished, [10] the public stables and warehouses are next. Therefore this section is put after that on the Household and Marriage.

[Ia]

Article 196 Herdsmen in Charge of Animals Who Do Not FulfillTheir Quota

ARTICLE: 196.1—In all cases of animals that are pastured, if the death or loss of animals is excessive or the quota is not fulfilled, the pasture headman and the herdsman each are punished by thirty blows with the light stick for the first animal, increased by one degree for each further three animals. When one hundred blows with the heavy stick have been exceeded, the punishment increases one degree for each further ten animals, with a maximum punishment of three years of penal servitude. 196.2—For sheep, [lb] the punishment is reduced three degrees. COMMENTARY: Sheep in other articles follow this article. SUBCOMMENTARY:According to the statute:"Regarding the losses through death allowable among the various types of animals in the state pastures every year, out of an average one hundred head it is expected to lose seven camels, six mules,

Article i96

Vi'9

ten horses, cattle, asses or goats, and fifteen sheep. In the case of animals newly arrived from a foreign country, it is permissible to lose twenty out of every hundred horses, catde, asses, or goats in the first year and fifteen in the second year; in the case of camels, fourteen in the first year and ten in the second year; in the case of mules, twelve in the first year and nine in the second year; in the case of sheep, twenty-five in the first year and twenty in the second year. In a third year, losses for all types of animals should be the same as under the normal rule."1 Losses are based on one hundred head or less and are what may be lost in a given year. The loss of more is not permitted. As for quotas not being fulfilled, the quotas are, according to the statute: "For horses, catde, and mules, every hundred females is expected to produce sixty foals or calves each year. Horses twenty years old are not expected to foal. Mares that are mated at three years and produce foals should be separately listed and reported. Mule foals should only be expected to produce half this quota. If horses have come from a foreign country, the first year they are expected to produce only forty foals; in the second year fifty foals;in the third year after arrival, the full quota. In the case of one hundred she-camels, the expected quota for the third year is seventy; for one hundred sheep, seventy; and for goats, eighty."2 Less than these numbers is considered as not fulfilling the quota. . . . [2a] The commentary states: "Sheep in other articles follow this article." Other articles refer to such articles as that dealing with caring for animals not in accordance with the law.3 Where other articles sentence punishments regarding animals and there is none for sheep, the punishment is always three degrees less than for horses. Therefore it is stated that the punishments follow this article. ARTICLE: 196.3a—If a new person has not completed a full year, death and lost animals are calculated on the basis of a year, and the punishment is reduced depending upon the number of months served. 196.3b—If the quota is not fulfilled, the time that the mares were released to mate is examined, and the punishment is determined according to the number of such times. If there were no such times, the new employee is not punished. COMMENTARY: 196.3C—If after the time that the mares were released to mate there are losses, the person who was hired later is punished. SUBCOMMENTARY: New persons who have not completed a full year refers to those who are employed as pasture marshals, chief herdsmen, or herdsmen and who have not having completed a year.4 Deaths or lost animals are calculated on 'Nuda, Statutes, p. 702. Ibid. p. 700. 3 See Article 200 below. "The phrase used here for a year, chi-nien 5 ¾ ^ , probably means a solar year. There are several terms used in the Code for year; see Vol. i, p. 116, n. 100. 2

180

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the basis of a year, and their punishment is reduced depending upon the number of months served. As an example, take mules that have recently come from a foreign country. In that year a loss of twelve head is allowed.Thus one mule may be lost for each month. So the new person may lose three head in three months or five head in five months. For animals, the number of the same kind that may be lost [11] in a year depends upon the number of months that the new person has been employed, and the reduction of the punishment also follows this rule. If a number in excess of what is allowed die or are lost, the punishment also follows the text above. If the quota is not fulfilled, the time that the mares were released to mate is examined, [2b] and the punishment is determined according to the time of year. According to the statute: "In pasturing horses, camels, cattle, donkeys, and sheep, the males and females should normally be kept in the same herd. Mares and sheasses shall be loosed to mate in the third month of each year. Those that should be fed receive silage in the winter." 5 [If the time that the new employee has served] does not correspond to the time that the animals are released to mate and the quota is not fulfilled, according to the Code, the employee is not punished. The commentary states: "If after the time that the mares were released to mate there are losses, the person who was hired later is punished." This means that if it was not the time that the mares were released to mate and an investigation shows that the losses were later, then that person is punished. ARTICLE: 196.4a—If those animals that are tied up and given fodder die, the punishment is increased one degree in each case. 196.4b—If they are lost, the punishment is increased a further two degrees. 196.5a—For the pasture marshall and the supervisor a comprehensive calculation is made and the punishment is according to the number of herdsmen under their supervision. 196.5b—In such cases, the senior official is the principal and his subordinates are accessories.6 COMMENTARY: Articles on other officials who supervise herdsmen follow this article. SUBCOMMENTARY: If those animals that are tied up and given fodder die, the punishment is increased one degree refers to those that must be tied up and fed. It they receive fodder, it is reasonable that they should not die. Therefore the punishment is increased one degree. If one animal dies, the punishment is forty blows with the light stick, with a maximum punishment of life exile at a distance of 2,000 Ii. If such an animal is lost, the punishment is increased a further two degrees because an animal that is 5

Niida, Statutes, p. 699. VoI. I, p. 225, Article 42, provides that accessories will be punished one degree less than the principal. 6

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181

tied up and fed should not be lost. Therefore the punishment is increased two degrees. Reference to further is to make clear that there is a cumulative addition.Thus if one animal is lost, the punishment is sixty blows with the heavy stick, and the maximum punishment is life exile at a distance of 3,000 /i.The punishment for sheep who are tied up and given fodder dying or being lost is reduced three degrees in each case. For the pasture marshall and the supervisor, a comprehensive calculation is made, and the punishment is according to the number of herdsmen whom they supervise. According to the statute: "In pasturing herds of horses and cattle, one hundred twenty head shall make a herd. For camels, donkeys, and mules, seventy head [3a] shall make a herd. For sheep, six hundred twenty head shall make a flock. [If the number of animals is too small to form a whole herd, they should be equally apportioned and placed in other herds.] For each herd, a separate pasture headman shall be appointed. For every fifteen headmen, a pasture marshall shall be appointed." 7 The area under his jurisdiction is not limited to the number of pasture marshals. The meaning of a comprehensive calculation follows that already explained in the Articles on Households and Marriage. 8 The senior official is the principal and his subordinates are accessories. Thus where an offense involving the pasturage of a herd is heavily punished, the blame lies with the senior official. But where an animal dies or is lost, or the quota is not fulfilled, the supervisor is the principal and his aides, assistant officials, and registrars are the accessories.That the article speaks of assistant officials as accessories makes it clear that the chief clerks are not punished. The commentary states: "Articles on other officials who have authority over herdsmen follow this article." This refers to those who are appointed to supervise and control herdsmen. There are also control officials who are attached to the county and prefecture offices. Therefore it is stated that articles on other officials who have authority over herdsmen follow this article.

Article 197 The Examination of the Condition of Domestic Animals Not Being Reported Truthfully ARTICLE: 197.1—In all cases where the examination of the condition of domestic animals is not reported truthfully, the punishment for an infraction worth one p'i of silk is forty blows with the light stick, increased one degree for each further three p'i of silk, and with a maximum punishment of one hundred blows with the heavy stick.

7

Niida, Statutes, p. 699. See Article 171 above.

8

182

Article 191 197.2—If for this reason the price of the animals is increased or decreased, and the punishment for illicit goods is heavier, then the increased or decreased value is calculated and the punishment is for illicit goods obtained through malfeasance.9 If the profit goes to the person who committed this offense, the punishment is for robbery.10

SUBCOMMENTARY: According to the Statutes on Stables and Pastures: "All official horses belonging to the various militia, and horses and donkeys employed for official relays, shall be examined annually by the prefects and the deputy commanders of militia, etc. In the case of those which through age or sickness are not fit to be ridden, the condition of [12] official horses attached to the various militia should be verified in the presence of the local prefecture officials, [3b] and within the jurisdiction of the Metropolitan Administration a report sent for verification to the Department of State, after which the horses may be sold off as is convenient."11 The examination of the animals must be reported in a true fashion. . . . If for the reason that the condition of the animals was not reported truthfully the price of the animals sold is increased or decreased and the calculation of the illicit goods is punished more heavily, then the punishment is for illicit goods obtained through malfeasance. This refers to where upon examination of the first such infraction there was an increase in the price of three p'i, one ch'ih of silk, or a decrease of three p'i, one ch'ih of silk, each of these would be punished by fifty blows with the light stick.The punishment is increased one degree for each additional one p'i of silk in value until the punishment reaches one year of penal servitude.Thereafter the punishment is increased one degree for each ten p'i of silk in value. If the illicit goods resulting from the increase or decrease in the price of the animals go to the person who committed the offense, the value of the illicit goods is calculated and punished for robbery, and the value must be doubly repaid.12 For supervisory and custodial officials, the punishment is increased two degrees, and for illicit goods worth one p'i of silk or more, they are disenrolled. Where the illicit goods resulting from increase or decrease in price is not equal, whether or not the profit goes to the person who committed the offense and even though there were only one offense, still if this is a case where one

'See Article 389 below. There the punishment begins with twenty blows with the light stick for goods worth one ch'ih of silk and is a maximum of three years of penal servitude for goods worth fifty p'i of silk. 10 See Article 282 below. There the punishment begins with sixty blows for goods worth one ch'ih of silk and rises to life exile with added labor for goods worth fifty p'i of silk. Hence the punishment is much heavier "Niida, Statutes, p. 708. 12 VoI. i, p. 184, Article 33, provides that in cases of robbery, the value of the goods taken must be doubly repaid to the owner.

Article 198

183

crime can be divided into two offenses and where the punishments are not the same, then the heavier punishment absorbs the lighter punishment. 13 So the illicit goods punished for robbery will be combined with the illicit goods obtained through malfeasance and so punished. This requires disenrollment, which is the maximum punishment provided by the relevant laws.14 If the examination of the condition of a sheep is not reported truthfully, the punishment is reduced three degrees below that for other animals.15 However, where the sentence if for illicit goods obtained through malfeasance of the illicit goods resulting from an increase or decrease in the sheep's price, as well as sentencing for robbery, each follows the relevant laws and does not come within this principle on reducing the punishment three degrees for crime connected with sheep.

Article 198 Being in Charge of Government Animals That Become Sick ARTICLE: 198.1—All cases of being in charge of government animals that become sick and their care and treatment are not according to the rules are punished by thirty blows with the light stick. 198.2—If for this reason any animal dies, the punishment is [4a] forty blows with the light stick for the first animal, increased one degree for each further three animals, with a maximum punishment of one hundred blows with the heavy stick. SUBCOMMENTARY: According to the Statutes on Stables and Pastures: "If any government animal becomes sick on the road and is not capable of going on further, it should be left and entrusted to the nearest prefecture or county, [the authorities of] which should care for it, feed it, and treat the sickness. The grain, hay, and medicine should be provided out of official funds."16 The government official who takes these animals must look after and treat them in accordance with the rules. . . . If for these reasons the animal dies refers to where the care and treatment were not in accordance with the rules, resulting in the animal's death. . . .

"See Vol. i, p. 235, Article 45. "See Vol. I, pp. 119 ff, Articles 18 and 19. "This principle is established in Article 196, and the commentary there extends it to other articles concerning sheep. 16 See Niida, Statutes, p. 711.

184

Article 199

Article 199 Using Government Animals for the Transportation of Private Possessions ARTICLE: 199.1—In all cases where a person uses a government horse, ox, camel, mule, or donkey, the private possessions carried must not exceed ten chin" in weight.Violations will be punished by ten blows with the light stick for the first chin, increased one degree for each further ten chin, with a maximum punishment of eighty blows with the heavy stick. SUBCOMMENTARY: Using a government horse, ox, camel, mule, or donkey refers to using them on official relays or on army duty. However, even though one gets the use of a government animal for official business, the amount of private possessions carried cannot exceed ten chin. . . . ARTICLE: 199.2—If a person is using a cart, the amount cannot exceed thirty chin in weight.Violations are punished by fifty blows with the light stick for the first five chin, increased one degree for each further twenty chin, [4b] and with a maximum punishment of one year of penal servitude. 199.3—If the crime is connected with a military expedition, the punishment is increased two degrees in each case. SUBCOMMENTARY: When using a government cart, both official and private possessions may be carried. But beyond the limit [of official goods], private goods may not exceed thirty chin. . . . Where the crime is connected with a military expedition, the punishment is increased two degrees in each case. From crimes connected with horses to carts, the punishment for the ordinary crime is increased two degrees in each case, so that for horses, oxen, camels, mules, or donkeys, the punishment for the first chin is seventy blows with the heavy stick, and the maximum punishment is to one hundred blows [13] with the heavy stick. For carts, the punishment is two hundred blows with the heavy stick for five chin, and the maximum punishment is two years of penal servitude. ARTICLE: 199.4—If several persons carry private possessions together, each is punished for going beyond his limit. 199.5—If the officer in charge at the time has knowledge of this and yet allows it, everything about which he has knowledge is combined and calculated, and the punishment is the same as for carrying private possessions. SUBCOMMENTARY: Several men together carrying possessions refers to using a government animal or cart to carry private articles. Beyond the limit refers to carrying more than ten chin or the cart carrying more than thirty chin.

"A chin was approximately one and one-half English pounds.The Hang mentioned below was approximately 37.3 grams.

Article 200

185

Suppose ten men together use government animals to carry private articles. Each may carry ten chin. If among them five men each exceed this number by one chin, according to the Code, each will be punished by ten blows with the light stick. If three men each exceed the limit by eleven chin, each of them will be punished by twenty blows with the light stick. If two men each exceed their limit by eight Hang, the Code states that the punishment for exceeding one chin is ten blows with the light stick. N o w this number is not a complete chin, so according to the Code none of them is punished. 18 Again, suppose ten men together use a government cart to carry private articles. Each may carry thirty chin. If among them five men each exceed this number by five chin, [5a] according to the Code each will be punished by ten blows with the light stick. If three men each exceed the limit by twenty-five chin, each of them will be punished by twenty blows with the light stick. If two men each exceed their limit by two chin, eight Hang, according to the Code the number is not complete, so none of them is punished. As for an officer in charge at the time knowing the circumstances, the calculation with regard to the first animal that altogether exceeds the limit by 39 chin is combined and punished the same as under the law on carrying private articles, by forty blows with the light stick.The calculation involving the cart that altogether exceeded the limit by 105 chin is combined and punished the same as under the law on carrying private articles by sixty blows with the heavy stick, and so forth. Where the crime is connected with a military expedition, as above, each punishment is increased two degrees. Where other persons send articles, one chin or more of each of them is calculated as punishment. All such crimes receive the same punishment as for privately carrying articles. The person in charge of the cart or horse as well as the person who is sending the articles both receive the same punishment. There is no distinction made between principal and accessories.19 Where the officer in charge at the time knows the circumstances has already been explained above. If a person is carrying clothing and weapons that are needed on the journey, they are outside the number of chin for private articles and are not calculated in the limit.

Article 200 Sacrificial Animals for the Great Sacrifice Not Conforming to the Rules ARTICLE: All cases where sacrificial animals offered for the great sacrifice are not cared for and fed according to the rules so that they become emaciated or ,8

SeeVol. i, p. 268, Article 56, which provides that an amount must be complete for it to be prosecuted. This would seem to protect persons from prosecutions resulting from illicit goods obtained through malfeasance and certain other offenses where a minimum amount for punishment is set. "Accessories were punished one degree less than the principal. See Vol. i, p. 225, Article 42.

ί86

Article 201 injured are punished by sixty blows with the heavy stick for the first animal, increased one degree for each further animal, with a maximum punish­ ment of one hundred blows with the heavy stick. If they die as a result of the lack of care and feeding, the punishment is increased one degree.

SUBCOMMENTARY: Calves are offered by the Lord of Men for the great sacrifice as worthy of Heaven together with sheep and pigs.The great sacrifice is offered every ninety days, the middle sacrifice every thirty days, and the small sacrifice every ten days. The sacrificial animals must be cared for and fed and may not be beaten. Any violation is [5b] considered to be not conforming to the rules. . . . Sheep and pigs are offered by the Lord of Men as worthy of Heaven. There­ fore the punishment for them is the same as for oxen. In the articles on Admin­ istrative Regulations, offenses with regard to the middle and small sacrifices progressively reduce the punishment two degrees. 20 The middle and small sacrifices in other articles follow this article. Thus in the middle sacrifices, if the care of the sacrificial animals is not according to the rules, the punishment is reduced two degrees below that for the great sacrifice in each case. If something in the small sacrifice is not according to the rules, the punishment is reduced a further two degrees below that for the middle sacrifice.

Article 201 Making Use of Government Animals in a Manner So That Their Backs Are Laid Bare or Their Throats Are Worn through by the Harness ARTICLE: 201.1—All cases of making use of government animals in a manner so that their backs are laid bare or their throats are worn through by the harness which causes an ulcer of three ts'unA are punished by twenty blows with the light stick. If the ulcer is of five ts'un or more, the punishment is fifty blows with the light stick. COMMENTARY:This refers to the circumference being a ts'un. [14] SUBCOMMENTARY: Making use of an official animal refers to oxen, horses, camels, mules, and donkeys. If in riding astride the back is laid bare, or in driving the throat is worn through, which cases an ulcer of three ts'un. . . . Reference to more means that even if the ulcer is bigger, the punishment is not increased. If there are other wounds that are not due to riding or driving, the punishment follows the law on wounding government animals and is not that sentenced here. 2 2 "See Article 98 above. 21 A ts'un is slightly more than an English inch. -See Article 203 below.

Article 202

ί87

The commentary states: "This refers to the circumference being a ts'un." If the circumference is three ts'un, the diameter is one ts'un. If the circumference is five ts'un, one Jen, then the [6a] diameter is one ts'un, seven/en. Where the ulcer is square, this rule is still followed. But if the area is not defined, then the cir­ cumference must be a ts'un. ARTICLE: 201.2a—If animals put out to graze become emaciated, the basis for prosecution is calculated as ten parts. For one part, the punishment is twenty blows with the light stick, increased one degree for each further part. 201.2b—If the number does not constitute a full ten head, then for the first head the punishment is thirty blows with the light stick, increased one degree for each further head. 201.2c—The maximum punishment is one hundred blows with the heavy stick in each case. SUBCOMMENTARY: Where animals that are put out to graze become emaciated refers to the officers in charge of the pasture as well as the herdsmen and those above them allowing the animals to become emaciated. The basis for prosecu­ tion is calculated as ten parts. Within a herd of one hundred head of horses, if ten head become emaciated, this is one part that is punished by twenty blows with the light stick. . . . If the number does not constitute a full ten head, then for the first head the punishment is thirty blows with the light stick, increased one degree for each further head.This means that if of eight head one becomes emaciated, the punish­ ment is thirty blows with the light stick, and if all eight head become emaciated, the punishment is increased seven degrees to one hundred blows with the heavy stick. Therefore it is stated that the maximum punishment is one hundred blows with the heavy stick in each case. For the supervisor and the pasture marshall a comprehensive calculation is 23 made as the basis of punishment. Other articles on different domestic animals where the number is the basis of punishment follow this article. For sheep, in 24 accordance with the principle, the punishment is reduced three degrees.

Article 202 Government Horses Not Being Trained ARTICLE: All cases where government horses are not trained for the purpose for which they are used are punished by twenty blows with the light stick for the first horse, increased one degree for each further five horses, and with a maximum punishment of one hundred blows with the heavy stick. "See Article 196 above. Ibid.

24

188

Article 203

[6b] SUBCOMMENTAHY: According to an Ordinance of theT'ai-ye period (A. D. 605-616),"When horses have been pastured for two years, they should be trained. Every marshall is assigned eighteen men to train horses. Each of them takes five turns. The training begins on the first day of the third month of each year and stops on the thirtieth day of the fourth month of each year." Further, the statute states:"Whenever the Service of Conveyances of the Imperial Household Service assigns horses to be trained for driving, or the Heir Apparent's administration assigns horses to be trained for driving, the officers of the horse pasture respon­ sible for overseeing the training are permitted to ride these official horses and ensure that they are trained." 2 5 . . . If the punishment for horses intended for the use of the emperor or the crown prince not being trained is heavier than under this article, then following the Articles on Administrative Regulations, the punishment is for that specific article. 26

Article 203 Intentionally Killing Government or Private Horses or Cattle ARTICLE: 203.1a—All cases of intentionally killing government or private horses or catde are punished by one and one-half years of penal servitude. 203.1b—If the punishment for the value of the illicit goods (i.e., the value of the animal) is heavier, or if other domestic animals are killed, then the lost value of the animal is calculated and punished as comparable to robbery.27 203.1c—The lost value must be repaid in each case. 203. I d — I f the value has not been reduced, the punishment is thirty blows with the light stick. COMMENTARY: Blood being drawn or the animal falling constitutes an injury. If the wound is serious so that death results within five days, the punishment is for killing the animal. SUBCOMMENTARY: Government and private horses and cattle are used for heavy work.The basic use of catde is for tilling the fields. Horses are used for travel or by the army. [7 a] Cases of intentional killing are punished by one and one-half years of penal servitude. If the punishment for the value of the illicit goods (i.e., the value of 25

Niida, Statutes, p. 708. See Article 105 above.There the sentence is two years of penal servitude.Vol, ι p. 256, Article 51, provides that references to the emperor include various other members of the imperial family as well. 27 See Article 282 below. On comparable sentences, see Vol. i, p. 261, Article 53. 26

Article 203

189

the animal) is heavier means that the punishment is heavier than one and onehalf years of penal servitude. [15] If a dead horse is worth fifteen p'i of silk, which when punished as comparable to robbery is two years of penal servitude. . . . If other domestic animals are killed refers to all animals other than cattle or horses. If they are wounded means that they are injured or wounded but are not killed. From horses and cattle down to other domestic animals, the loss of value is calculated and punished as comparable to robbery in each case. Loss of value refers to where the animal is worth ten p'i of silk and after it has been killed, it is only worth two p'i. Thus there is loss of eight p'i. Or, where after it has been wounded it is only worth nine p'i, so that there is a loss of one p'i in value. If the loss is eight p'i, then eight p'i must be repaid. If the loss is one p'i, then one p'i must be repaid, and so forth. In each case the punishment is punished as comparable to robbery of eight p'i or one p'i. If there is no loss in value refers to where the original value was ten p'i of silk, and even though the animal is killed or wounded the appraised value is not less but is still ten p'i, then the only punishment is thirty blows with the light stick, and there need be no repayment. The commentary states: "Blood being drawn or the animal falling constitutes an injury." Blood being drawn is not limited by the number of places. If blood is drawn, then there is punishment. Falling means that even though no blood is drawn, bones are broken. This also constitutes wounding. If the wound is serious means that the place of the wound is sufficiently serious that death results within five days. Here also the punishment is for killing and the loss of value must be repaid. ARTICLE: 203.2—If the killing or wounding is by error, there is no punishment. But the loss of value must be repaid. 203.3—If the owner kills the horses or cattle himself, the punishment is one year of penal servitude. SUBCOMMENTARY: Cases of killing or wounding by error refer to where the eye could not have perceived, or the mind thought of, such a result.28 Or, where the animals are not tied up but are roaming loose and are killed by error. Or, where it was intended to kill a wild beast and a person rather killed a domestic animal. Such cases are not punished. . . . If the owner kills horses or cattle himself, the punishment is one year of penal servitude. If he does so by error, he is not punished.

28

This is a variant of the standard definition for accidental crimes. See Vol. I, p. 95, Article 95.

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Article 204

Article 204 Government or Private Animals That Harm or Eat Government or Private Articles ARTICLE: 204.1a—In all cases where government or private animals harm or eat government or private articles and are immediately killed or wounded, the punishment is reduced three degrees below that for intentionally killing animals in each case.29 The loss of the animal's value is repaid. 204.1b—The animal's owner must restore what has been destroyed. COMMENTARY: Owner also includes those who are temporarily in charge of the animal. Other articles follow this article. SUBCOMMENTARY: . . . Harm refers to such actions as running loose and goring or trampling. . . . If a person kills a horse or an ox, the punishment is ninety blows with the heavy stick. For wounding a horse or an ox or for killing other domestic animals, the loss of value is calculated as illicit goods and punished as comparable to robbery reduced three degrees in each case.30 If the loss of value of the horse or ox that was killed would be fifteen p'i of silk, the punishment of two years of penal servitude reduced three degrees would be one hundred blows with the heavy stick, as set forth above. If the punishment for the calculated value of the illicit goods would be heavier, then the heavier punishment is sentenced. 31 The loss of the animal's value must be repaid in each case. The animal's owner must restore what has been destroyed. Suppose an ox worth five p'i of the highest grade of silk32 destroys or eats another person's goods to the assessed worth of two p'i of the highest grade of silk and the owner of the goods immediately wounds or kills the ox. The ox can be sold for three p'i of silk so that the calculated loss is two p'i of silk. [8a] The owner of the ox repays the damage or what was eaten worth two p'i of silk. The owner of the articles repays the loss of value of the ox, which is also two p'i of silk, and so forth. The commentary states: "Owner also includes those who are [16] temporarily in charge of the animal." Suppose "A" has a horse and an ox, which he loans to " B " to use. " B " is punished for whatever the animals harm or eat and must make repayment. Other articles follow this article refers to such articles as those below where a 2, See Article 203 above. "See Article 282 below. On punishing as comparable, see Vol. I, p. 261, Article 53. 31 See Article 389 below. 32 On assessing the value of goods, see Vol. i, p. 189, Article 34.

Article 205

19i

dog kills or wounds domestic animals belonging to another person, or a domestic animal gores or bites33 another person. 34 The animal must have an identifying mark 35 and be tied up. Even though he is not the formal owner, the punishment falls on the person who is charge of the animal. ARTICLE: 204.2—If a domestic animal is about to gore or bite someone and it is killed or wounded, there is no punishment and the value need not be repaid. CoMMENTARY:This refers to killing the animal immediately . If there is an interval of time, then it is considered intentionally killing or wounding. SUBCOMMENTARY: . . . If an interval of time passes after the crime has taken place, then the law on intentionally killing or wounding is followed.36 The person must make repayment for loss of value, and the owner is punished according to the law.

Article 205 Killing the Horses or Cattle of Relatives within the Fifth Degree of Mourning ARTICLE: 205.1—All cases of killing the horses or cattle of relatives within the fifth degree of mourning are punished the same as if the owner had done so.37 205.2—If other domestic animals are killed, the punishment is for illicit goods obtained through malfeasance. [8b] However, the maximum punishment is one hundred blows with the heavy stick.38 205.3—The lost value must be repaid in each case. SUBCOMMENTARY: Relatives within the fifth degree of mourning refer to those for whom there is a mourning relationship whether on the maternal or paternal side. If they kill each other's horses or catde, the punishment is the same as if the owner had done so, namely, one year of penal servitude. If they kill other domestic animals, the punishment is for the lost value of the animal considered as illicit goods obtained through malfeasance. . . . "Shiga, Translations, Vi, 346, argues that gore or bite is a generic tern for damage by domestic animals and also includes such offenses as a horse kicking someone. M These offenses are covered in Articles 205 and 206 below. 3s Wang Yuan-Hang's Explanation of theText states that the purpose of an identifying mark is to warn people. A dangerous ox must have its horns cut off; a dangerous dog must have its ears cut off. It is likely that this comes from the statute. See note 44 below. 36 See Article 203 above. 37 IbId. 38 See Article 389 below.There the maximum punishment is three years of penal servitude.

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According to the text of this article, if relatives within the fifth degree of mourning wound a domestic animal, they are not punished. If the wound is serious and results in the animal's death within five days, following the article above, the punishment is the same as for killing the animal, and the lost value must be repaid. QuEEYiThis article provides no punishment for killing by error or intentionally wounding a domestic animal belonging to a relative within the fifth degree of mourning. It is not yet known whether or not the lost value of the animal must be repaid? REPLY:The article states:"Killing the horses or cattle of relatives within the fifth degree of mourning is punished the same as if the owner had done so." The article does not punish an owner who wounds a horse or ox or kills one by error. Since other relatives are treated the same as the owner, it is clear that they will not be punished. If they are not punished, they need not make repayment. This may be known from the example. H o w much more, then, does this not come within the limits for repayment when the article makes no provision. If no repayment need be made for the intentional killing of a horse or an ox, it can be known that there is no repayment for other domestic animals.

Article 206 A Dog Wounding or Killing Domestic Animals ARTICLE: 206.1a—In all cases where a dog intentionally kills or wounds another person's domestic animals, the dog's owner must repay the reduced value. 206.1b—If other domestic animals kill or [9a] wound each other, only half of the reduced value need be repaid. 206.2—If a dog is intentionally let loose or ordered to kill another person's domestic animals, the punishment is for intentional killing or wounding in each case.39 SUBCOMMENTARY; It is a dog's nature to bite. If a dog intentionally kills or wounds another person's domestic animals, the dog's owner must repay the lost value. Because a dog will bite, the owner must control it. If the owner does not control the dog, then he must repay the reduced value. Other animals aside from dogs that will of their own volition kill or wound each other refer to such animals as oxen mutually goring each other to death and horses kicking each other to death. Suppose an ox that belongs to house "A" gores to death a horse that belongs to house "B."The original value of the horse 3,

See Article 203 above.

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193

was ten p'i of silk. [17] Since being gored to death, the estimated value of the hide and flesh is only two p'i of silk; thus there was a loss of eight/?'/ of silk. "A" must repay " B " eight p'i of silk.This is called repaying half the reduced value. Where a dog is intentionally let loose or ordered to kill another person's domestic animals—it is a dog's nature to love to bite pigs and sheep. Or, where a person intentionally releases oxen and horses to gore and kick each other, the responsibility falls on the person who intentionally let loose the animals, and the punishment is the same as for intentionally killing or wounding in each case. This refers to the article above on intentionally killing government or private horses or cattle being punished by one and one-half years of penal servitude. If the punishment for the value of the illicit goods (i.e., the value of the animal) is heavier, or if other domestic animals are killed, then the lost value of the animal is calculated and punished as comparable to robbery.40 The reduced value must be repaid in each case. If no value has been lost, the punishment is thirty blows with the light stick. If two owners let loose their domestic animals and there is killing or wounding in the affray, the punishment is the heavier for doing what ought not to be done, eighty blows with the heavy stick.41 Each of the owners repays the reduced value to the other.

[9b]

Article 207 Domestic Animals That Gore, Kick, or Bite Persons

ARTICLE: 207.1—All cases where the owner of domestic animals or dogs that bite, and which have gored, kicked, or bitten persons, has not given them an identifying mark or tied them up according to the law, or has a mad dog and does not kill it, are punished by forty blows with the light stick. 207.2—If for these reasons a person is killed or wounded, the punishment is for an accidental crime. 42 207.3—If one of these animals is intentionally let loose or ordered to kill or wound a person, the punishment is for killing in an affray, with the punishment reduced one degree. 43 SuBCOMMENTARY:According to the Miscellaneous Statutes:"If a domestic animal gores a person, its horns are cut off. If it kicks a person, its feet must be tied. If "See Article 282 below. On sentencing as comparable, see Vol. I, p. 261, Article 53. 4, See Article 450 below. 42 On accidents, see Article 339 below. There an accident is defined as something that eyes and ears could not have perceived and thought and planning could not have prevented. "See Articles 312—334 below. The significance of the penalty being reduced one degree is that where the basic punishment is decapitation, it is reduced to life exile, and where it is life exile, it is reduced to penal servitude. This is specified in Vol. I, p. 268, Article 56.

194

Article

207

it bites someone, its ears must be cut off"44 This is the law regarding identifying marks and being tied up. 43 . . . If the identifying marks are not displayed or the animals are not tied up, or if a mad dog is not killed, and for these reasons any of them kills or wounds a person, the punishment is for an accidental crime. Each crime committed by accident has its own punishment, but the law on redemption by payment of copper is followed.46 Where the article does not have a different provision, everyone is treated as a commoner, without regard for mean or high status, so that the amount of copper for redemption is the same. However, in cases where the circumstances are less serious, the relevant law is followed.47 If one of these animals is intentionally let loose or ordered to kill or wound a person refers to knowing that the nature of a dog or other domestic animal is to gore, kick, or bite and intentionally letting them loose. The punishment is for killing or wounding in an affray, reduced one degree. Where the crime is committed against someone of higher or lower status, or of a higher or lower generation, or a relative who, though of the same generation, is older or younger than the criminal, the relevant law, which may increase or decrease the punishment, is followed in each case. Where domestic animals kill or wound persons, or other objects are used to wound persons, the period of responsibility is twenty days.48 If death occurs within the period of responsibility, the punishment is for killing in an affray reduced one degree. [10a] If death occurs outside the period of responsibility or other reasons, then the law on using other objects to wound persons is followed.49 Suppoes another domestic animal is intentionally let loose and it gores, kicks, or bites a son or grandson in the male line, causing death. The punishment is reduced from one and one-half years of penal servitude to one year of penal servitude. For other relatives who are of a lower generation or younger in age than the offender, the mourning relationship is followed, but the punishment is reduced one degree in each case. ARTICLE: 207.4—In cases where a person who has been hired to treat and cure the animal is gored without cause and is wounded or killed, the owner of the animal is not punished.

"Nnda, Statutes, p. 856. 45 See Article 207 above. 46 On redemption of punishment by payment of copper, see Vol i, pp. 55 ff, Articles 1-5, and the discussion on pp. 23 ff. 47 On this point, see Vol. i, p. 253, Article 49.There, an example is given of a paternal uncle and his nephew in the male line who are not known to each other. Should the nephew hit his uncle, the sentence will be as if they were persons of nonkin status 48 On the period of responsibility, see Article 307 below. 49 See Article 302 below.

Article 208

195

COMMENTARY: Those who are hired are treated the same as under the law on accidents. SUBCOMMENTAHY: . . .To be hired basically is to obtain a wage.Without cause means that the crime of goring was committed of the animal's own volition. If because of this the person is killed or wounded, the owner of the domestic animal is not punished. Where the person who has been hired to treat or cure the animal is killed or wounded, the law on redemption by payment of copper is followed.

Article 208 [18]

Supervisory or Custodial Officials Who Borrow Government Slaves or Domestic Animals

ARTICLE: 208.1a—All cases of supervisory or custodial officials50 who borrow government slaves or domestic animals for their own unauthorized use or for lending to others punish both the official and the person to whom the government slaves or domestic animals were lent by fifty blows with the light stick. 208.1b—If the calculation of the value of their labor is punished more heavily, the punishment is for taking goods and articles within the official's area of jurisdiction.' 1 208.2—For post donkeys, the punishment is increased one degree. SUBCOMMENTARY: Supervisory or custodial officials who illegally borrow government slaves or domestic animals refers to [10b] doing so for their own use, as well as to transferring them to other persons. For either one person or one animal, the punishment is fifty blows with the light stick. Irrespective of whether the number of slaves or animals borrowed is few and the number of days many, or the number of slaves or animals borrowed is many and the number of days few, if the calculation of the value of their labor is punished more heavily than that for borrowing, the punishment is for taking goods and articles within the official's area of jurisdiction. For post donkeys, the punishment is increased one degree means that the punishment is sixty blows with the heavy stick, and where the calculation of the value of the labor is punished more heavily, the punishment for taking goods and articles within their area of jurisdiction is also increased one degree. As for such things as carts, boats, grinding mills, warehouses, and wholesale

50

FOr the definition of these terms, see Vol. I, p. 263, Article 54. See Article 143 above. It might be well to read Article 143 in its entirety since it is referred to several times here. 51

i96

Article 208

stores, if they are illegally borrowed for the official's own use or lent to others, here also the value of their rent is calculated and treated the same as borrowing slaves or domestic animals. Where the Code has no provision, other crimes are treated the same. In the Articles on Administrative Regulations, where supervisory officials who borrow such things as slaves, oxen, horses, camels, mules, donkeys, carts, boats, grinding mills, warehouses, and wholesale stores, the value of the labor or rent is calculated and in each case the punishment is for taking goods and articles within an official's area of jurisdiction. It is reasonable that this is not different from borrowing domestic animals. Therefore this article is a principle for punishment of such cases. ARTICLE: 208.3a—If post horses are borrowed or lent, the punishment is one hundred blows with the heavy stick. For five days, the punishment is one year of penal servitude. 208.3b—If the calculation of the value of their labor is punished more heavily, the article above is followed. 208.4—If a postal relay station master illegally borrows men, horses, or donkeys, the punishment is reduced one degree in each case. The maximum punishment is one hundred blows with the heavy stick. SUBCOMMENTARY: For illegal borrowing by either a relay post station master or an official, the punishment is one hundred blows with the heavy stick in each case. . . . As for a postal relay station master's punishment for illegally borrowing men, horses, or donkeys being reduced one degree, according to the statute:"If horses or donkeys die after they have been given to the postal relay station, the postal relay station master must replace them." 52 For this reason, the punishment for a postal relay station master who borrows men, donkeys, or horses is comparatively lighter and is reduced one degree in each case. This refers to the above text where for borrowing a postal station's horses or donkeys, the punishment for taking goods and articles within the area of jurisdiction is increased one degree. If a postal station master borrows men, donkeys, or horses, the punishment is reduced one degree in each case. Thus the punishment is the same as for taking goods and articles within the area of jurisdiction, that is, one hundred blows with the heavy stick.

52

Niida, Statutes, p. 707. This article is the source for the statute.

Article 209

i97

Article 209 Government or Private Domestic Animals That Harm or Eat Articles ARTICLE: 209.1a—AU cases where government or private domestic animals are let loose and harm or eat government or private articles are punished by thirty blows with the light stick. 209.1b—If the punishment would be heavier for illicit goods, then the punishment is for illicit goods obtained through malfeasance.33 209.2—If the offense is due to a mistake, the punishment is reduced two degrees. 209.3a—The value of what has been harmed must be repaid in each case. 209.3b—If a government domestic animal harms or eats government property, there will be punishment, but no repayment is made. [19] SuBCOMMENTARY:This means that where a government or private domestic animal has been let loose and harms or eats government or private articles, even where what is harmed or eaten is very little, the punishment is thirty blows with the light stick. If what has been harmed or eaten is equal to illicit goods worth two p'i, one ch'ih of silk, the punishment is forty blows with the light stick. This is what is meant by sentencing for illicit goods obtained through malfeasance when by calculating the value of the illicit goods such a punishment would be heavier. If the crime is due to a mistake, the punishment is reduced two degrees refers to where the animals being loose was not intentional but because they ran away or were lost and so came to do the harm or eating. The punishment is reduced two degrees. What has been harmed must be repaid in each case means that no matter whether the articles belong to the government or private persons, if they have been harmed or eaten, the owner of the animals must repay the value of what has been harmed or eaten. Cases where a government domestic animal harms or eats government property will be punished but no repayment will be made. If domestic animals belonging to a government administrative unit harm or eat what belongs to that unit, this is not the same as private articles. So the offenders will be punished, but repayment will not be made. Where there is harm or eating of goods or articles that belong to another official administrative unit, both the pumshment and the repayment will follow the text above.

53 See Article 389 below. What this means is that the value of the articles harmed or eaten under this article would be classified as illicit goods and punished under Article 389.

198

Article 210

Article 210 Inspection by the Officer in Charge of a Warehouse or a Treasury ARTICLE: 210.1a—All cases where the officer in charge of the guards does not inspect persons coming out of a warehouse or a treasury are punished by twenty blows with the light stick. 210.1b—If because of this a robbery occurs of which the officer in charge is not aware, the punishment is for robbery reduced two degrees.54 210.1c—If an officer in charge standing night duty is not aware of the robbery, the punishment is reduced three degrees. SUBCOMMENTARY: When coming out of a warehouse, according to the ordinance: "Officials of the fifth rank and above need not be inspected." . . . If a robbery occurs because a person has not been inspected and goods are taken out of the warehouse, the value of the illicit goods taken in the robbery is calculated and the officer in charge is punished two degrees less than the punishment for robbery. . . . In charge at the time refers to the night officer in charge at the time. If he is not aware of a robbery of goods worth five p'i of silk, the punishment is reduced three degrees to eighty blows with the heavy stick, and so forth. ARTICLE: 210.2—If the custodial official is not aware of the robbery, the punishment is twenty blows with the light stick for goods worth five p'i of silk, increased one degree for goods worth each further ten p'i of silk.When the punishment exceeds one hundred blows with the heavy stick, the punishment is increased one degree for goods worth each further twenty p'i of silk. The maximum punishment is two years of penal servitude. 210.3—If the management of the custodial official is not according to law and robbery occurs as a result, the punishment is [12a] increased one degree in each case.55 210.4a—Those who deliberately connive at the crime receive the same punishment in each case. [12b] 210.4b—If the illicit goods resulting from the deliberate connivance are worth a full fifty p'i of silk, the punishment is life exile with added labor. If they are worth one hundred p'i of silk, the punishment is strangulation. SUBCOMMENTARY: Being a custodial official is not determined by official rank. It rather refers to the person who himself is in charge of the warehouse or treasury. If he is not aware of a robbery of goods worth five p'i of silk, the punishment is "See Article 282 below. The maximum punishment is life exile with added labor if the value of the illicit goods totals fifty p'i of silk, as described in the subcommentary below. 55 On custodial officials, see Vol I, p. 263, Article 54.

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twenty blows with the light stick. If not a complete five p'i, he is not punished. . . . If the management of the custodial official is not according to law means that the garrison, the night guards, the locks, or the seals are not in good order or not in accordance with the law so that a robbery results. In each case the punishment is increased one degree. . . . [20] Those who deliberately connive at the crime receive the same punishment in each case means that where the officer in charge of the guards, including the night officer and the custodial official, deliberately connive at the robbery, they receive the same punishment in each case. Reference to the same punishment does not come within the principle on disenrollment, resignation from office, double repayment of illicit goods, or increased punishment for supervisory and custodial officials.56 ARTICLE: 210.5—In case of robbery by force, the official is not punished. SuBCOMMENTARY:The country's warehouses and treasuries basically are entrusted to officers who are in charge of them. If these officers in charge know the circumstances and yet allow a robbery to take place, their punishment is heavier than that of the robber.57 The General Principles section states with regard to cases where crimes receive the same punishment as another crime that the crime does not come within the principle of hfe exile with added labor.38 Therefore in this article on granaries, this principle is specially established. Those who dehberately connive receive the same punishment as the robber if the illicit goods are worth forty-nine p'i of silk or less and the punishment does not come within the principles on disenrollment or resignation from office. But where the illicit goods are worth a full fifty p'i, the criminal is punished by life exile with added labor, disenrolled, and sent into exile in accordance with the law.Where the illicit goods are worth one hundred p'i of silk, the punishment is strangulation. Here this refers to the punishment for a single person for deliberate connivance. If deliberate connivance at robbery takes place several times or a group of persons commits a robbery, the law on combining the illicit goods and sentencing for one half of the total is followed.59 56

VoI. i, p. 261, See Article 53. "The point made here is that those guilty of deliberate connivance not only are punished more heavily than the criminal but, in fact, are punished more heavily than permitted under the relevant article in the General Principles section, which is number 53 in Vol. I, p. 261 .The robber can at most be punished by life exile with added labor as provided by Article 282, while those guilty of deliberate connivance can be strangled. Further, Article 53 provides that the heaviest punishment is life exile at a distance of 3,000 Zi, which is less than life exile with added labor.This in an interesting example of where an official can be punished more heavily than a commoner when both are involved in the same crime. 58 See Vol. i, p. 261, Article 53. The punishment may not usually reach this level. 5, SeeVol. i,p. 235,Article 45.This article also provides that where two crimes are discovered, the heavier punishment will be sentenced.

200

Article 2 11

In cases of robbery by force, there is no punishment in any case means that where force or physical strength is used and there is no way to resist the robbery, there will be no punishment.

Article 211 Borrowing Government Property and Not Returning It ARTICLE: 211.1—All cases where government property is temporarily borrowed and when the purpose of its use is over more than ten days pass without its being returned are punished by thirty blows with the light stick. The punishment is increased one degree for each further ten days, and with a maximum punishment is one hundred blows with the heavy stick. 211.2—If private use is made of the property, the punishment is increased one degree. SuBCOMMENTARY:Temporarily borrowing government property refers to happy or sad occasions requiring authority and dignity and borrowing such things as insignia, tents, and carpets. . . . [13a] If private use is made of the property means that when the happy or sad occasion is over and private use is made of it, the punishment is increased one degree, so that for more than eighty days the punishment is one year of penal servitude. ARTICLE: 211.3a—If what has been borrowed is lost and the person reports it to the government office himself, the value must be repaid in accordance with the law. 211.3b)—If the person does not report the loss himself, the punishment is for losing the property.60 SUBCOMMENTARY: AS for temporarily borrowing government property and losing it, if the person reports the loss to the office himself, he is exempted from punishment and only repays the value in accordance with the law. If he does not do so himself and the matter is raised by another person, he is punished for losing the articles, which is sentenced according to the Miscellaneous Articles as comparable to robbery reduced three degrees. Another article on losing government or private utensils or articles requires that their value be repaid.61 Therefore the person not only is punished for the loss but also must repay the value of the objects. "Loss of such things is covered under Article 442 below.The sentence is reduced three degrees below that for the value of these objects, as covered in Article 282 on robbery. So the least punishment would be thirty blows with the light stick if the articles were worth one ch'ih of silk, and nothing if they were worth less. 61 See Article 445 below.

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201

Article 212 Supervisory or Custodial Officials Who Borrow Government Property ARTICLE: 212.1a—In all cases of supervisory or custodial officials who make unauthorized personal use of government property or lend it to other persons without a written record, both the officials and those to whom it is lent are punished for robbery. If there is a written record, the punishment is comparable to robbery.62 COMMENTARY: A written record refers to something that is copied down and signed. ARTICLE: 212.1b—If permission for such borrowing is included in the file, the punishment is reduced two degrees. SUBCOMMENTARY: Supervisory and custodial officials refer to those who direct affairs in the place where the government property is kept. . . . [13b; 21] A written record refers to something that is copied down and signed means that even though there is no written document in a file, there is a list of items, or a copy telling what was taken which is signed—any of these are the same. If there is no written record, then the punishment is for robbery and is treated the same as real robbery. Where the supervisory or custodial official borrows for his own use, the punishment is increased two degrees above that for ordinary robbery. Thus where there is a written record and the punishment is comparable to robbery, for goods worth five p'i of silk the punishment is one year of penal servitude, increased one degree for each further five p'i. Where permission for such borrowing is included in a file, the punishment is reduced two degrees.This means that for goods worth five p'i of silk, the punishment would be ninety blows with the heavy stick, and so forth. ARTICLE: 212.2a—If these officials take what is stored in a government building, or use the property belonging to that government building either in trade or for private use, the punishment is reduced one degree in each case. COMMENTARY: 212.2b—If the property is lent, the punishment is the same. Other articles concerned with public administration follow this article. 212.2c—So if a custodial official borrows property for his own personal use without there being a written record, the punishment follows the law on robbery. 62

On robbery, see Article 282 below.The point of being sentenced as comparable to robbery is that the punishment is limited to life exile at a distance of 3,000 Ii, so that the death sentence is not possible. See Vol. I, p. 261, Article 53.

202

Article 212

SUBCOMMENTARY: Stored in a public building refers to taking government property that is stored in a public building. Making private use of property belonging to a government building depends upon whether or not there is a written record or permission to do so is included in a file. If government property is taken from a warehouse or treasury and given to others for trade or the person uses it for trade, the punishment is reduced one degree below that for the government property mentioned previously. Reference to private use means that if the property is lent out the punishment is the same. Other articles on public buildings follow this article means that within this section of the Code, reference to government property, the private use of government property, or lending government property follow this article on the punishment being reduced from robbery. If a custodial official borrows government property without there being a written record, the punishment follows the law on robbery and is treated the same as actual robbery so that the punishment is increased two degrees above that for ordinary robbery and the value of the property must be doubly repaid. 63 If the person has an office he is disenrolled.64 Therefore it is stated that the law on robbery is followed. [14a] ARTICLE: 212.3—If the person to whom the government property has been lent is not able to repay it, the official who gave permission and signed the document must repay its value. COMMENTARY: Borrowing for private use in articles below follows this article. SUBCOMMENTARY: If a supervisory or custodial official takes government property and lends it to others and the person who has borrowed the government property cannot repay it refers to where there are no goods that can be repaid. The officials who made the decision or signed the receipt must repay the value. The official who gave permission is the executive officer. The one who signed the document is the chief clerk. Others who were involved in the matter are also included. The commentary states: "Borrowing for private use in articles below follows this article." This means that in articles below where supervisory or custodial officials take government property and lend it to others and the person to whom it has been lent cannot repay it, the officials who gave permission or signed the receipt must repay it. Therefore it is stated that this article is followed.

63 SeeVol. i, p. 184, Article 33. See also Article 283, which specifies that robbery by supervisory or custodial officials of goods within their area of jurisdiction is punished two degrees more heavily than ordinary robbery. Thus punishment could reach to strangulation. "See Vol. i, p. 119, Article 18. Sentencing as comparable to robbery would protect officials from this punishment or having to resign from office, etc.

Article 214

203

Article 213 Supervisory or Custodial Officials Who Take Government Property and Lend It to Others ARTICLE: All cases of supervisory or custodial officials who take government property for their own unauthorized use or to lend to others, punish the official and the borrower if there is one by fifty blows with the light stick. If more than ten days pass (without the property being returned), the punishment is for illicit goods obtained through malfeasance, reduced two degrees.65 SUBCOMMENTARY: Supervisory or custodial officials taking property that is under their jurisdiction or in their custody refers to such things as clothing, carpets, hangings, and containers. If government property is borrowed for private use or to lend to others, both the lender and the borrower are punished by fifty blows with the light stick. If more than ten days pass (without the property being returned), the punishment is for illicit goods obtained through malfeasance, reduced two degrees. But the maximum punishment is two years of penal servitude.

[22]

Article 214 Damage to the Contents of a Granary, a Warehouse, or a Storage Area

[14b] ARTICLE: 214.1—In all cases where the contents of a granary, a warehouse, or a storage area are not maintained in accordance with the rules or are not aired or dried in the sun at the proper time, which results in harm or loss, the value of the harm or loss is calculated and punished for illicit goods obtained through malfeasance.66 214.2a—At the prefecture or country level, the senior official is the principal.67 214.2b—Cases that occur in directorates, offices, or other such places also follow this article. SUBCOMMENTARY: Granaries refer to places where such things as grain or millet are stored. Warehouses refer to places where such things as utensils, weapons, and silk are stored. Storage places refer to where firewood, fodder, and miscellaneous things are stored. All of these things must be kept in high and dry places. Things that need to be aired or dried in the sun must be put out at the proper season. . . . 65

See Article 389 below.The maximum punishment reduced two degrees would be two years of penal servitude for goods valued at fifty p'i of silk. «Ibid. 67 SeeVol. I, p. 225, Article 42.The accessories' punishment is reduced one degree below that of the principal.

204

Article 215

In prefectures and counties, the senior official is the principal. Those in ranks below him are accessories. Where things are damaged or spoilt in directorates, offices, or other such places, the senior official is also the principal, and those below him the accessories. Therefore it is stated that such cases also follow this article.

Article 215 Goods or Articles That Are Required To Be Turned Over to the Government or to Private Persons ARTICLE: All cases of goods or articles that are required to be turned over to the government or to private persons and are not, or are not so required and are, are punished for illicit goods obtained through malfeasance.68 SUBCOMMENTARY: In all cases of disputes as to what should go to the government and what should go to private persons and decisions are made about good and articles so that: (1) what should have been turned over to the government was turned over to private persons; (2) what should have been turned over to private persons was turned over to the government; (3) what should have been turned over to "A" was turned over to " B " ; (4) what should have been turned over to a private person was turned over to a public agency, the value of what should not have been turned over and yet was not is [15a] punished for illicit goods obtained through malfeasance.

Article 216 Wasting Government Property ARTICLE: 216.1—All cases of wasting government property are punished for illicit goods obtained through malfeasance.69 CoMMENTARY:This means to dissipate government property either by trading in the market or for sacrifices, feasts, or excess use. ARTICLE: 216.2—If the property still exists, it must be returned to the government. If it already has been used up, it need not be repaid. COMMENTARY: Property still existing refers to such things as excess used in construction.What has been used in sacrifices or is eaten is considered used up. «Ibid. M Ibid.

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205

SUBCOMMENTARY: . . . Where a building has been constructed or things have been given for sacrifices or feasts and there is an excess, the value is calculated and punished as illicit goods obtained through malfeasance. If the excess still exists and has not been used, it is returned to the government in each case. . . .

Article 217 Required Payment of Taxes ARTICLE: 217.1—In all cases of required payment of taxes or other articles that should be turned over to the government, where there is avoidance, or the articles are fraudulendy concealed and not paid, or are cleverly counterfeited or damaged, what is lacking is calculated and punished as comparable to robbery.70 217.2—If the officer in charge knows the circumstances, he receives the same punishment. If he does not know the circumstances, his punishment is reduced four degrees below that of the criminal. SUBCOMMENTARY: Taxes that are required to be paid refer to such taxes as those paid in grain or in cloth and the land levy, which must be turned over to the government. . . .[15b] If the officer in charge knows the circumstances of the avoidance, fraudulent concealment, clever counterfeiting, or damage and permits such activities, [23] he receives the same punishment as the criminal in each case. If he does not know the circumstances, his punishment is reduced four degrees below that of the criminal. Officials at the county level who are collectively responsible71 also are punished according to their rank. If prefecture officials are not aware of the circumstances, their punishment is progressively reduced one degree below that of the county officials. If the prefecture and county special duty officers are not aware of the circumstances, they receive the same punishment as the lowest accessory in their office.72 If the special duty officers have been dispatched by the prefecture and county in accordance with the law and are on the road or at the place where the taxes are to be collected when the cheating takes place, the prefecture and county officials are not punished.

™See Article 282 below. The point of being sentenced as comparable to robbery is that the punishment is limited to life exile at a distance of 3,000 Ii, so that the death sentence is not possible. See Vol. I, p. 261, Article 53. "See Vol. i, p. 216, Article 40. Under this article, four levels of officials were punished. 72 Special duty officers arranged the transport of tax goods. Note the punishment where other officials do themselves arrange for the transport of taxes in the next article.

206

Article 218

Article 218 Supervisory Officials Who Hire Transportation for Taxes ARTICLE: 218.1—In all cases, supervisory or custodial officials are not allowed to hire transportation for goods paid in taxes in areas under their control. Violations are punished by calculating the amount of profit and sentencing it as illicit goods obtained through malfeasance.73 218.2—If the crime is committed by officials who do not have supervisory status, the punishment is reduced one degree. 218.3—If the officer in charge knows the circumstances, his punishment is reduced one degree in each case. SUBCOMMENTARY: . . . Aside from persons, domestic animals, and grain, everything else is considered profit. . . . [16a] If the officer in charge knows the circumstances, his punishment is reduced one degree in each case. This means that if the officer in charge knows that the supervisory official has hired transportation, his punishment is reduced one degree below that for illicit goods obtained through malfeasance. If the official who hires the transportation is not a supervisory official, the punishment of the officer in charge is reduced two degrees. As for the money that is profit, if first it is not a crime that involves both parties in offenses, and second it is not illicit goods taken or given without consent,74 but rather is to be used for a good purpose, it is not confiscated by the state but returned to the owner.

Article 219 Causing Delays or Difficulties in the Disbursement or Reception of Goods ARTICLE: 219.1a—All cases of officials who disburse or receive goods and who cause delays or difficulties without any reason by not receiving or disbursing them are punished by fifty blows with the light stick for the first day, increased one degree for each further three days, and with a maximum punishment of one year of penal servitude. 219.1b—If the gate guard causes delays or difficulties, he receives the same punishment. 219.2—If those to whom goods are to be disbursed or from whom they are to be received arrive late and the officer in charge does not follow the 73

On this crime, see Twitchett, Financial Administration, p. 88. Page 317, note 25, translates part of the article. See also his notes 23 and 24 on p. 316, on transportation costs "SeeVol. I, p. 179, Article 32. This article also covers the contingency dealt with immediately below. In both cases, the illicit goods are confiscated by the state

Article 221

207

order of arrival but disburses or receives goods from them first, the punishment is forty blows with the light stick. SUBCOMMENTARY: Where there are goods that must be paid to the government or government property that must be delivered to others, and the official who receives or disburses the goods or property causes delays or difficulties without any reason, the punishment for not receiving or disbursing them is fifty blows for the first day. . . . If the gate guard causes delays or difficulties, he will be punished according to the law on officials who receive and disburse. . . . [16b]

Article 220 Government Property That Is Sealed ARTICLE: All cases where government property is in a sealed envelope and a chief clerk breaks the seals without authorization from the responsible official who gives such permission are punished by sixty blows with the heavy stick. SUBCOMMENTARY: Anyone who wishes to open government property that is in an envelope and sealed must get permission from the responsible official. . . .

Article 221 Sending Goods To Buy Grain in the Market in order To Pay Taxes ARTICLE: 221.1—In all cases where taxes are to be remitted and a person improperly sends goods and articles to the place where the taxes must be paid and there satisfies his tax obligation by grain that is bought in the market is punished by one hundred blows with the heavy stick. 221.2—If the officer in charge of the escort knows the circumstances, he receives the same punishment. [24] SUBCOMMENTARY: Tax goods that are remitted must all be from the place where they are produced and transported to the place where they are to be collected. . . . If the officer in charge of the escort knows the circumstances of sending the goods and articles to the place where the taxes are to be paid and buying grain in the market, he receives the same punishment. Even if only one person buys grain to pay the tax, this is the punishment.

208

Article 222

Article 222 Violations in the Disbursement or Reception of Government Property [17a] ARTICLE: 222.1a—In all cases of violations in the disbursement or reception of government property, the deficiency or surplus is calculated and punished for illicit goods obtained through malfeasance.75 CoMMENTARY:Violations refer to such things as receiving larger and disbursing lesser amounts, or where what ought to be disbursed is old and what is disbursed is new, or where what ought to be received is the best kind of goods and what is received is the worst kind of goods. SUBCOMMENTARY: Violations of the law in disbursing or receiving government property by those who have jurisdiction or custody over it refer to such things as estimating the amount of goods when it should be weighed, receiving larger and disbursing lesser amounts so that there is a surplus, disbursing new where what ought to be disbursed is the old, and receiving what is the worst while what ought to be received is the best. . . . Where what is received is a lesser amount and what is disbursed is a larger amount, or where what is disbursed ought to be new and is old, or where what ought to be received is the best and what is taken in is only middling, the punishment is the same as above. ARTICLE: 222.1b—If goods that should not be received or disbursed are, the punishment is the same.76 222.2—If there are violations connected with articles needed by the government, the punishment is forty blows with the light stick. 222.3—If the officer in charge knows of the deficiency or surplus and does not report it, he is punished for illicit goods obtained through malfeasance reduced two degrees. SUBCOMMENTARY: AS for goods that should not be received or disbursed, according to the statute, those who receive salaries do so twice yearly in the spring and fall. Where an official is paid though the time for getting paid has not yet come is also punished under the previous law on illicit goods obtained through malfeasance. . . .[17b]

75 See Article 389 below. The punishment begins with twenty blows with the light stick for illicit goods worth onet/i 'ih of silk and reaches to a maximum of three years for goods worth fifty p'i of silk. 76 There was a system for checking these dealings, which required vouchers that had to be accounted for every quarter and wooden tallies, the halves of which were compared frequently to make sure that no illegality was taking place. All of this is spelled out in Nuda, Statutes, pp. 393394.

Article 223

209

Article 223 Government Property That Should Be Turned Over to Private Persons ARTICLE: All cases of government property that is to be turned over to private persons, even though it has already left the warehouse or treasury but has not yet been handed over; or private property that is to be turned over for the use of the government, whether it has already been sent to the government or must be turned over to government officials; even if the property or things have not yet been given to meet the needs of the government, if they are under government control they are all considered to be government property. SUBCOMMENTARY: This refers to government property that has been given to, borrowed by, or lent to government officials or commoners, regardless of whether it has already left the warehouse or treasury or is still in government possession and has not yet been turned over, or private property that has been lent to meet the needs of the government, as well as what must be paid for taxes, and so forth, which is already under government control. Articles belonging to public building or officials' monthly allowance, or property that must be turned over to the government, even though it has not yet been turned over for government use or is under the control of the government, as well as illicit goods and bribes that are being investigated, or where two parties are in dispute as to the ownership of goods and articles, and so forth— anything that is under the control of the government is considered to be government property.

6. UNAUTHORIZED LEVIES [la; 25]

CHAPTER

XVI

SUBCOMMENTARY: The Articles on Unauthorized Levies were created by the Han chancellor Hsiao Ho as the Articles on Levies. The Wei dynasty appended the unauthorized matters, calling them the Articles on Unauthorized Levies. The Chin dynasty deleted the word unauthorized. The Northern Ch'i dynasty once again changed them to be the Articles on Levies Which are Unauthorized. Coming to the Sui1 K'ai-huang period, the name was changed to the Articles on Unauthorized Levies. Even though the name for this section had words added to or subtracted from it and has been altered through the years, nevertheless what it dealt with has not changed. The great concern is the army, and the establishment of laws that emphasize defense. The section on the Public Stables and Warehouses being finished, we must be prepared against the unexpected. Therefore this section on the military is put next to that on the Public Stables and Granaries.

Article 224 Unauthorized Dispatch of Troops ARTICLE: 224.1a—All cases of the unauthorized dispatch of troops, where they are ten men or more, are punished by one year of penal servitude. For one hundred men, the punishment is one and one-half years of penal servitude, increased one degree for [each further] hundred men, and punished by strangulation for 1,000 men. COMMENTARY: This refers to where there is no alarm or emergency and where the troops have been dispatched without first making a report to superiors. Even if a report is made to superiors, if the troops are dispatched without waiting for a reply, it is unauthorized. Where the document has been issued to dispatch the troops, there is punishment. SUBCOMMENTARY: According to the statute:"In mobilizing ten or more soldiers, an imperial edict is required with a bronze fish tally in order to match the parts. Only after the parts match may [lb] the soldiers be dispatched. If it is a place where troops are needed in an emergency and it is impossible to send in a formal report by normal procedures, it is permissible to assign and send off 'Sui ϋ should be read sui PS, following all other editions.

Article 224

21 ί

troops as the circumstances demand, but a report must be made to higher au­ 2 thority." Even if a person does make a report to his superiors, if he does not wait for a reply means that according to normal procedures, a person must make a report to his superiors and as well wait for a reply. Where the document has been issued to dispatch the troops, there is punish­ ment. It is not necessary that the soldiers have been dispatched.The Code has no provision for dispatching nine men or less, so it is proper that the punishment be the heavier for doing what ought not to be done. 3 ARTICLE: 224.1b—The person who provides the soldiers has his punishment reduced one degree below that for the person who dispatches them in an unauthorized way according to the number of troops furnished. COMMENTARY: This also refers to not first making a report to superiors and not waiting for a reply. If the person orders the troops to be sent, then he is punished. SUBCOMMENTARY: Even though there is a document, the person who is in charge of the troops need not provide them. Here also it is necessary to make a report to superiors, wait for a reply, and only afterward provide the troops. The person who provides the troops has his punishment reduced one degree below that for the person who dispatches them in an unauthorized way accord­ ing to the number of troops furnished. Therefore the commentary states: "This also refers to not first making a report to superiors and not waiting for a reply. If the person orders the troops to be sent, then he is punished." Thus it is not necessary to wait until the troops are on the march. ARTICLE: 224.2a—If enemy troops arrive unexpectedly and are about to attack, or where in a walled military colony rebellion or treason is being commit­ ted, or the enemy has information from within the country—in such ur­ gent situations, [2a] troops may be transferred as needed. Even if the troops are not under the immediate person's command, or the emergency occurs in a nearby governmental division, they must be transferred as needed. At the same time, a report must be sent up to superiors. COMMENTARY: Each of these situations means that where there is an emergency and troops are needed, it is not necessary to make a report to superiors. [26] SUBCOMMENTARY: Where enemy troops unexpectedly enter the country's borders and are about to besiege a town or make an attack, or if inside the 2

Niida, Statutes, p. 371; des Rotours, "Les insignes," pp. 94-95. See Article 450 below The punishment is eighty blows with the heavy stick.

3

212

Article 225

country rebellion or treason is being committed at a walled garrison or military colony where horses and soldiers are gathered, or if the enemy is moving swiftly because of information from within the country—in these urgent situations, troops must be transferred as needed. This means that they must be transferred as needed without making a report to superiors and waiting for a reply. . . . ARTICLE: 224.2b—If the soldiers are not transferred immediately, or they are not provided immediately, then the punishment is the same as for the unauthorized dispatch of troops according to the number that are needed. 224.2c—If a report is not made to superiors immediately, then the punishment is according to the number of soldiers dispatched reduced one degree. 224.3—If persons have taken flight or are robbers or have committed violent acts and sufficient men must be sent out to arrest them, this article is not applicable. SUBCOMMENTARY: Where the chance to oppose the enemy must be seized, or soldiers and horses are needed in an emergency and they are not transferred, or even if they need to be transferred, they are not provided. . . . [2b] Where persons have taken flight or are robbers or have committed violent acts means that the situation is other than where soldiers are needed to oppose the enemy but really is a situation where a person has taken flight. Where there are robbers, or persons who have committed violent acts, the government office has the authority to send sufficient men to arrest them. This is not the same as under this article on unauthorized dispatch of troops. Therefore it is stated that this article is not applicable.

Article 225 Transfer and Issuance of Military Supplies ARTICLE: 225.1a—In all cases of the transference of miscellaneous articles or their issuance for military matters, a report must first be made to superiors, and a reply waited for.Violations are punished by one year of penal servitude. 225.1b—The person who furnishes them has his punishment reduced one degree. CoMMENTARY:This means providing for military use. It also includes what comes from private sources. SUBCOMMENTARY: This means whatever is needed: weapons, or what is issued for military matters. Even though it does not concern men or weapons, a report must be sent up and a reply waited for in all cases; only then may there be a transfer. . . .

Article 226

213

If government property is used, the ordinary rule is followed.These are things that come from private households.Therefore a report must be made to superiors and a reply waited for. Violations are punished by one year of penal servitude. If he knows that a report has not been made to superiors, or where it has been he has not waited for a reply, the person who furnishes the articles, etc., is punished one degree less, that is, one hundred blows with the heavy stick. ARTICLE: 225.2a—If the matter is alarming or there is an emergency, so that the articles must be transferred as needed, they must be provided and at the same time a report must be made to superiors. If they are not immediately transferred or are not immediately provided, the punishment is also one year of penal servitude. 225.2b—If a report is not immediately made to superiors, the punishment is reduced one degree in each case. [27] SUBCOMMENTARY: Where a matter is alarming or there is an emergency, or enemy soldiers have unexpectedly come and are about to besiege a town or make a surprise attack, in all such matters articles must be transferred as needed and provided. At the same time a report must be made to superiors that the matter is alarming or that there is an emergency. For such matters, following the normal procedure, it is not necessary to make a report to superiors and wait for a reply. . . .

Article 226 Not Giving a Tally to Dispatch Troops* ARTICLE: 226.1a—All cases where those who are required to give out tallies used for the dispatch of troops do not do so, or where such tallies should be forwarded and are not, or where tallies are forwarded in violation of the ordinance. SUBCOMMENTARY: According to the Statutes on Public Standards: "In forwarding a fish tally {yti-fu 1=6 ^¾-) in the territory of the capital, there are three left parts and one right part. Beyond the area of the capital, there are five left parts and one right part. The left halves are kept in the palace and the right half of each type is sent out to the provinces. O n the day on which the tallies are to be used, one begins with the first (i.e., left) part. For later matters, the next ones are used, until they have all been used. Then the first one is used again."5 Another article (of the Statutes on Public Standards) states: "When a fish tally 4

TWs article has been translated by des Rotours,"Les insignes," pp. 50, 95-98. My translation differs from his on minor points. s Niida, Statutes, p. 581.

2i4

Article 226

or a transmission tally is required to be given out, they are all in the charge of a senior official.Where there is no senior official, [3b] they are in the charge of the next official."6 This is applicable to the day of the first use of the tally that has been sent out to the provinces and deals with the giving out of the tally to dispatch troops (faping-fu I s l j ^ i ^ . T h e tally is used in order to confer office, to send someone on a mission, and in various situations where it is necessary to show proof. It is because the dispatch of troops is the most important use of the tally that the words "dispatch troops" are used in this text. Forwarding a tally to dispatch troops or not forwarding it, in the case of mobilizing troops, refers to not forwarding the left half of the tally. If tallies are forwarded in violation of the ordinance refers to not following the order, so that they may not be used. ARTICLE: As well, where a matter is carried out without matching the two halves of the tally, or where the two halves of the tally do not match, and the government is not informed with the utmost speed, the punishment is two years of penal servitude in each case. 226.1b—Those who violate the time limit and do not immediately return the tally are punished by one year of penal servitude. 226.2—For other tallies, the punishment is reduced two degrees in each case. COMMENTARY: All mention of other tallies treats wooden tallies (ch'i 5§) the same.7 Thus if a wooden tally is used to dispatch troops, the law considers it to be the same as a tally to dispatch troops. SUBCOMMENTARY: Where a matter is carried out without matching the two halves of the tally refers to the officer in charge of the soldiers who receives the left part of the tally, being required to match it with the right part and only afterward carrying out the matter of dispatching the troops. If he carries out the matter without matching the two halves, or if upon finding out that the two halves do not match he does not memorialize the emperor, he will be punished by two years of penal servitude. Those who violate the time limit and do not immediately return the tally refer to the official in charge of tallies who compares the two halves of the tally and makes a record.According to the Statutes on Public Standards:"[The envelope containing the left part of the] tally is sealed and given to the courier. If the courier is going to another place and will not immediately return [the left part of the] tally, the tally is entrusted to a succeeding courier. If in the prefecture there are other couriers who follow, the various militia give the tallies to them. 6 7

Ibid., p. 585. On wooden tallies, see des Rotours, "Les insignes," p. 46.

Article 227

215

If within five days there are no succeeding couriers, a special messenger is ap­ 8 pointed to return [the left part of the tally]." [4a] Those who violate the time limit and do not immediately return the tally are punished by one year of penal servitude. For other tallies the punishment is reduced two degrees in each case. Other tallies refer to those in the shape of a fish for entering the imperial gardens, the return [of weapons], or inspection. . . . If these tallies are not immediately returned, the punishment is ninety blows with the heavy stick. This is what is meant by the punishment is reduced two degrees in each case. The commentary states: "All mention of other tallies treats wooden tallies the same.Thus if a wooden tally is used to dispatch troops, the law considers it to be the same as a tally to dispatch troops." According to the statute: "When the emperor is making a tour of inspection and the heir apparent is in charge of the country, wooden tallies are used to send orders to soldiers and horses. Wooden tallies are also used when princes, dukes, and those of lesser ranks have remained in the capital to guard it, in prefectures and counties where troops and horses must receive their orders, in the camps of armies in the field, or in those where five hundred men or more, or five hundred horses or more, are on a campaign. 9 . . . [28] According to the ordinance on guarding gates, the guard stations on the streets of the imperial city each have wooden tallies, and those in the capital city have wooden fish tallies. The Department of the Treasury and the Court of Agriculture, according to the ordinance, both give out wooden tallies. AU of these wooden tallies are treated the same as other tallies.

Article 227 Selection of Guardsmen and Conscripts1" ARTICLE: 227.1—All cases of selection of guardsmen where the criteria for se­ lection and rejection are not equitable are punished by seventy blows with the heavy stick for the first man, increased one degree for each further three men, and with a maximum punishment of three years of penal servi­ tude. COMMENTARY: The selection of conscripts is treated the same. The criteria for selection and rejection not being equally assessed refers to rejecting the 8

Niida, Statutes, p. 584.This text is the source for this part of the statute. 'Ibid., ρ 587.This is also in the T'cmg Institutes and is translated in des Rotours,"Les insignes," p. 46. 10 The best discussion of the Chinese army mT'ang times is to be found in the two volumes of des Rotours, Fonctiormaires. Parts of the present article are translated in Vol. I, pp. 35, 36.

2i6

Article 228 rich and selecting the poor, rejecting the powerful and selecting the weak, rejecting those from families with many adult males and rejecting those from families with few adult males, and so forth.

SUBCOMMENTARY: . . . Conscripts refer to those who are not guardsmen but who have been drafted to serve in a campaign at a particular time. . . . The rules on selection are that where two persons have the same amount of goods, take the stronger of the two. Where their strength is the same, take the richer. Where the goods and the strength of the two are equal, first take the one from the family with the most adult males. . . . And so forth refers to unequal assessment with regard to age, youth, 11 ability, and inability at the time. ARTICLE: 227.2a—If the army postings have been decided previously12 and the recruits' assignments are not equitable, the punishment above is reduced two degrees. 227.2b—If a person should have been assigned to be a commanding officer and instead is assigned the rank of a guardsman, the punishment above is increased one degree. 227.3—If the number of persons selected is deficient or in excess, the punishment above is increased in either case. SUBCOMMENTARY: . . . [5a] Where both the criteria are unequally assessed and the number of persons selected is deficient or in excess, the law on combining punishments is followed.13

Article 228 Conscripts Replacing Each Other under False Names ARTICLE: 228.1a—All cases of conscripts replacing each other under false names are punished by two years of penal servitude. 228.1b—Those who dwell together and are relatives14 have their punishment reduced two degrees. SUBCOMMENTARY: . . . Once the name of the conscript has been decided, he cannot be changed. Since punishment will be the result, how can it be right for n

Shao 'P should be read hsiao / J \ following the KHCPTS edition. On the different kinds of army postings, see Article 461 below "See Vol. i, p. 235, Article 45. '"Dwelling together means having goods and real property m common. Reference to relatives here puts a restriction on that concept, since dwelling together was not limited to persons who had a mourning relationship. 12

Article 228

217

conscripts improperly to replace each other? Violations will punish the chief criminal by two years of penal servitude and accessories by one degree less.15 . . . Neither of the persons involved may benefit from honors gained on the field of batde. ARTICLE: 228.2a—If cases of replacement under false names happen in the area under his authority, the village headman is punished by fifty blows with the light stick for the first person, increased one degree for each further person. 228.2b—If such cases happen within a county, the clerk is punished by thirty blows with the light stick for the first person, increased one degree for each further two persons. 228.2c—Depending upon the number of counties controlled by a prefecture, a comprehensive calculation determines the punishment. 16 [29] 228.2d—The maximum punishment is two years of penal servitude in each case. COMMENTARY: 228.2e—Subordinate officials and those above them are punished according to their rank.17 ARTICLE: 228.2f-—If the officer in charge knows the circumstances, he receives the same punishment as those who use false names. SUBCOMMENTARY: . . .The commentary states:"Subordinate officials and those above them are punished according to their rank." This means that the deputy magistrate is the second accessory and the assistant is the third accessory. Where there are registrars and scribes, they are the fourth accessories. . . . If the officer in charge knows the circumstances, he receives the same punishment as those who use false names refers to the village headman and the officials at the prefecture and county levels who assign the soldiers. If the chief clerk knows the circumstances, he receives the same punishment as those who use false names. ARTICLE: 228.3a—If the use of false names occurs in the army, the company commander is considered the same as the village headman.

"Accessories generally, though not always, had their punishments reduced one degree below that of principals. This article would not be applicable where two members of the same family were involved, since in such a case only the oldest male was punished. See Vol. i, p. 225, Article 42. ' 6 On comprehensive calculation, see Article 152 above. The definition is given in the subcommentary there, so I have not repeated it here. "This brings collective responsibility for officials into this article, which means that four classes of officials are punished. This is spelled out in the subcommentary to section 3c of this article. Collective responsibility is dealt with in Vol. I, p. 216, Article 40.

218

Article 228

COMMENTARY: In all mention of the company commander, his deputy is considered the same. SUBCOMMENTARY: . . .

[6a] ARTICLE: 228.3b—Battalion commanders and commandants will be punished two degrees less than company commanders. 228.3c—In militia units, deputy commanders and commanders are punished depending upon a comprehensive calculation of the number of commandants under their command. COMMENTARY: 228.3d—The chief clerks and those above them are also treated the same as under the law on prefectures and counties. SuBCOMMENTARY:According to the Statutes on the Army:"Every battalion commander commands two company commanders. Each commandant commands two battalion commanders." 18 Since they are not in a supervisory position themselves, it is proper that their punishment should be one degree less than that of the company commander. This means that for the first person who uses a false name, their punishment is forty blows with the light stick, increased one degree for each further person.The maximum punishment is one and one-half years of penal servitude. In militia units commanders and deputy commanders are punished depending upon a comprehensive calculation of the number of commandants under their command.There are places where each militia unit has five commandants under its command.There are also places with four or three commandants under their command. This means that if the militia unit has three commandants under its command, then three men must use false names for the commander and deputy commander to be punished. If four commandants are under its command, then four men must use false names, and if five commandants, then five men must use false names for the commander and deputy commander to be punished. Their punishment is forty blows with the heavy stick in each case. If the number is not complete, they are not punished.' 9 The law on comprehensive calculation follows the meaning in the above text on prefectures and counties. The commentary states: "The chief clerks and those above them are also treated the same as under the law on prefectures and counties." This refers to where the crime begins at the bottom. The clerk of the superior prefecture is treated the same as the clerk of the prefecture. The assistant administrator is the second accessory, the administrator and deputy commander are the third accessories, and the commander is the fourth accessory. Scribes are treated the same as the lowest accessory. "Niida, Statutes, p. 365. "Vol. I, p. 268, Article 56, specifies that an added number must be complete in order to be punished.

Article 229

2ί9

According to the Code, in cases where there are not four classes of officials, 20 [30] those classes that exist are punished.

Article 229 Violation of the Time Limit in Arriving for an Inspection [6b] ARTICLE: 229.1—All cases of violating the time limit in arriving for a great inspection are punished by one hundred blows with the heavy stick, increased one degree for each further three days. 229.2—If the crime is committed by commanding officers, the punish­ ment is increased two degrees. 229.3—If those who have been mobilized and sent to accompany the em­ peror arrive late, the punishment is reduced one degrees in each case. SUBCOMMENTARY: The meaning of spring and autumn: "There are the spring hunting, the summer hunting, the autumn hunting, and the winter hunting;— all in the intervals of husbandry, for the illustration of one great business of states."21 This is then an inspection. If the emperor comes himself, it is called a great inspection. . . . If the crime is committed by commanding officers, the punishment is increased two degrees refers to officers from deputy company commanders to generals.22 . . . Where those who have been mobilized and sent to accompany the emperor arrive late, the punishment is reduced two degrees in each case. This refers to those who should be there at the correct time and in person. Where there is an inspection of the militia units, this is dealt with in the text of the ordinance. Those who are late are punished for violation of an ordinance. 2 3 Where those in charge do not make an announcement of the inspection, the officer in charge is punished.

"See Vol. I, p. 216, Article 40, on the collective responsibility of officials. 2 'Tso chuan, "Yin 5," p. 59; Legge, The Chinese Classics, v, 19. 22 I am puzzled by this definition. In Article 46, a query asks about chu-shuai and the reply states that such officers have only guards under their command and thus are not considered to be super­ visory officials.That would put them in the status of the deputy company commanders mentioned here but would certainly not include generals. Furthermore, one would think that generals would be considered supervisory officials. a See Article 449 below. The punishment for violation of an ordinance is fifty blows with the light stick.

220

Article 230

Article 230 Delaying Army Levies ARTICLE: 230.1—AH cases of delaying army levies no matter whether inten­ tional or by error are punished by decapitation. CoMMENTARYiThis means when the army is on the point of beginning a campaign (lin-chiin cheng-t'ao βϋίΡίίΙΕΙί); to delay or be negligent in the transfer of supplies. SUBCOMMENTARY: Levying the army to begin a campaign is an important matter for the country. Delay or negligence in the transfer of supplies or mobilization for an expedition is called delaying army levies. Offenses that cause delays [7a] in army levies, whether intentional or by error, are equally punished by decapi­ tation. The reason is that this is an important matter, so that even though the delay is by error, there is no reduction in punishment. The commentary states: "This means when the army is on the point of begin­ ning a campaign, to delay or be negligent in the transfer of supplies." Soldiers, horses, the implements and weapons that are needed by the army, all the tools of war—each follows a schedule, so that on the day of victory, all will have been provided. If there are deficiencies, these are due to delays or negligence. . . . Where a command is sent by a courier to announce the date of the beginning of the campaign to the army and he violates the time limit for the journey so that the mission fails, this is also considered delaying the army levy, and no matter whether done intentionally or by error, the punishment is the same. ARTICLE: 230.2—Those who do not exercise due caution with regard to army matters are punished by one hundred blows with the heavy stick. CoMMENTARY:This means when the army is about to attack to be deficient in or cause delays about small things. SuBCOMMENTARY:This refers to what is carried on the person, such as the seven things, 24 cooking pot, 2 5 tents, things used on the march, and small things. If when the army is on the point of beginning a campaign any of these things is lacking, the punishment is one hundred blows with the heavy stick. 24

These were carried by all military officers of the fifth rank and above. Included were a sword, a dagger, a whetstone, a jade charm, a case of acupuncture needles, and a flint and steel. What the meanings of the two characters yiteh or hui 1¾¾ chueh p£ for the remaining item are, I have not been able to discover. Tai passes over them, while Shiga more honestly admits that he doesn't know what they mean. The phrase is not listed in any dictionaries nor in the P'ei-wen yun-ju. 25 I take these two characters, huo 'X. "fire" and mu HE "tent," to have separate meanings. The character for fire is translated as cooking pot because of the list of things carried by soldiers given in Nnda, Statutes, p. 368.

Article 231

221

The commentary states: "This means when the army is on the point of beginning a campaign, . . ." If when the army is on the point of fighting these things cannot be obtained elsewhere, and before the person began serving in the army they could have been requested, the punishment follows the law on the violation of ordinances. 26

Article 231 Conscripts Causing Delays ARTICLE: 231.1—All cases where conscripts cause delays are punished by one hundred blows for the first day, increased by one degree for each further two days. For twenty days the punishment is strangulation. 231.2—Causing delays when the army is on the point of beginning a campaign is punished by life exile at a distance of 3,000 Ii. For three days delay, the punishment is decapitation. SuBCOMMENTARY:This refers to a person who is serving in the army who, when the men and horses are on a campaign, does not move forward but causes delays. . . . [7b] When the army is on the point of beginning a campaign refers to the gong and drum both being heard to indicate that a time is coming when batde will be joined. To cause delays under such circumstances is punished by life exile at a distance of 3,000 Ii. For three days delay, the punishment is decapitation. [31] ARTICLE: 231.3—The decision as to whether or not to use these punishments does not come within the scope of this article. COMMENTARY: Where a particular time has been appointed to go to save the country from difficulty and this time is violated, the punishment is decapitation. However, if this punishment is redeemed because of merit, or the person is not executed even though negligent, and so forth, all of these decisions must be made at the time and so do not come within this article. SuBCOMMENTARY:The delegation of authority is an important trust and its purpose is to take advantage of the best strategy. Generals have full authority to take advantage of any possibility. It is reasonable that his orders to the army to seize opportunities should be speedily carried out. With regard to the decision as to whether or not to use these punishments, the fundamental thing is the fulfillment of the mission. . . .

'See Article 449 below. The punishment is forty blows with the light stick.

222

Article 232

Article 232 Informing the Enemy of a Campaign ARTICLE: 232.1a—All cases of informing the enemy of a secret campaign are punished by decapitation. 232.1b—The wife and children of the criminal are punished by life exile at a distance of 2,000 Ii. 232.2—Acting as a spy where there is no campaign under way, or foreigners who act as spies, or sending or receiving [8a] letters from foreigners, or knowing the circumstances of such situations, are punished by strangulation. SUBCOMMENTARY: Cases of spying for the enemy and having knowledge of the secret times of a campaign or of traitors informing the enemy are pumshed by decapitation. . . . Spying means to go around and pass on information about the country for the purpose of reporting it to enemy troops. . . . Foreigners acting as spies refer to those who have not heard [the teachings of Confucius]—the barbarians of the four directions—who secredy enter the country and go about seeking information, or those who exchange letters with foreigners, or those who know of and permit or conceal such instances. They are all punished by strangulation.

Article 233 Commanders Who Are Defending Walled Cities ARTICLE: 233.1—All cases of commanders who are defending walled cities that are being attacked by the enemy and who do not defend them resolutely but rather abandon them, or who because their preparations are not complete suffer defeat by the enemy, are punished by decapitation. 233.2a—If the enemy is nearby and the patrols that have been sent out are not aware of the enemy's coming, they are punished by three years of penal servitude. 233.2b—If defeat results because of this, their punishment is decapitation. SUBCOMMENTARY: Commanders refer to persons who themselves are in charge of leading soldiers, as well as to those who are in command of a garrison, or an outpost, or who are guarding the frontier walled cities, or prefecture or county walled cities, and so forth. . . . [8b] Preparations not being complete refers to deficiencies in the advance preparations [for an attack] and the patrols not being sufficient, so that the enemy takes the city by surprise. Where the enemy is nearby means that the armies' entrenchments are nearby so that the flags and banners can be seen by each other. . . .

Article 235

223

Article 234 [32]

Commanders Who Retreat First When in Battle

ARTICLE: 234.1—All cases of commanders 27 or lower ranks who retreat first when in battle, or who in the face of an enemy army throw away their weapons and surrender, or who when the defeated enemy comes to surrender improperly kill them, are punished by decapitation. SUBCOMMENTARY: Commanders or lower ranks mean soldiers and those in higher ranks. . . . Those who in the face of the enemy army throw down their arms and surrender refers to those who turn their backs on the enemy soldiers, throw down their arms and submit. . . . ARTICLE: 234.2—Those who violate or commit crimes against army orders after the army returns home are punished according to the Code, if the Code has an article dealing with the violation or crime. If there is no such article, the criminal cannot be punished. 28 [9a] SUBCOMMENTARY: . . . If the offense was only the violation of the commands of the general that are not covered by any article in the Code, then after the army has returned, the person cannot be punished.Therefore it is stated that if there is no such article, the criminal cannot be punished.

Article 235 Releasing Conscripts at a Garrison Town to Return Home ARTICLE: 235.1a—All cases of secretly releasing conscripts or garrison troops at an army camp, a garrison, or an outpost to return home are punished for conscripts or garrison troops deserting from the army in each case.29 235.1b—Those who secretly allow them improperly to leave the army or garrison have their punishments reduced two degrees below that above in each case. 27

For the definition of commanders, see Article 233 above. -"Both Shiga, Translations, vn, 31, and Tai, Specific Articles, p. 122, argue that this article, together with section 3 of Article 231, show the boundaries of military justice. In the field, when crimes are committed, the commander may punish them or not at his discretion. What seems relevant here is a statute regarding military authority during campaigns, which is found in Nnda, Statutes, p. 374. "When a general has set out on campaign and the army is on the point of encountering the enemy, if army officers or men disobey orders, then he may in all cases carry out their punishment on his own authority." See also Article 237 below. However, once there is a return to normalcy, the Code takes over. 2, See Article 457 below. The punishment is described below in the subcommentary.

224

Article 235

SUBCOMMENTARY: . . . Officers in charge who secretly release conscripts or garrison troops to leave refers to conscripts or garrison troops who should not yet return home but secredy and improperly are allowed to do so. According to the Articles on Arrest and Flight: "Those who desert during a campaign are punished by one year of penal servitude for the first day's absence, increased one degree for each further day, and for fifteen days are punished by strangulation. Desertion in the face of the enemy is punished by decapitation. If the officer in charge deliberately connives at the desertion, he receives the same punishment." 30 . . .This is the punishment for those who allow conscripts and garrison troops to leave. In another article,"Garrison troops who desert while going to their garrison, or when they have not served their full term of duty at the garrison, are punished by eighty blows with the heavy stick for the first day, increased one degree for each further three days. Frontier garrison troops are considered the same."31 Garrison troops who return home under such conditions are punished in this way. [9b] . . . ARTICLE: 235.1c—If several men are allowed to leave, then each man is equivalent to a day.32 If the number of days that they are gone is more, then each day is equivalent to one man. COMMENTARY: This means that if three men are each released for five days or five men are each released for three days, the combined numbers are each fifteen days, and so forth. All of these cases require a night to have passed in order for there to be punishment. 33 ARTICLE: 235.2—If the army is about to attack the enemy when the men are released, the punishment is decapitation. 235.3—Those who are released have their punishment reduced one degree in each case.34 SUBCOMMENTARY: . . . [10a; 33] All of these cases require a night to have passed in order for there to be punishment. If a night has not passed there can be no punishment. Or, even if a night has passed, if there has not been a full day (that "This quotation is from Article 458. 31 See Article 458 below. "Article 457 on desertion punishes one day by a year of penal servitude, increasing one degree for each further day, with a maximum punishment of strangulation. 33 VoI. I, pp. 265-274, Articles 56 and 55, require that a number be complete to be punished. That is, the whole day is required, which includes the night. A whole day consists of one hundred k'o. 34 This would mean that they could not be punished capitally since Vol. i, p. 268, Article 56, provides that in reduction of punishment both of the death penalties, and exile as well, are considered to be one degree.

Article 236

225

is, one hundred k'o), for one man the punishment is for doing what ought not to be done. 35 For conscripts, the heavier of the two punishments is administered. For garrison troops serving in a garrison or an outpost, the lighter of the two punishments is administered. The commentary states: "All of these cases require a night to have passed in order for there to be punishment." But men and days are mutually linked. Suppose ten men are allowed to leave for half a day. This is punished for five men. Therefore it is stated that if a night passes, then there is punishment. For returning home, and for making a total of one hundred k'o, the meaning is the same. If the army is about to attack the enemy when the men are released, the punishment is decapitation. This means that when about to engage the enemy, or facing the enemy in batde, conscripts cannot be released. In such a case, it is not needed to wait until the day is completed; the punishment is decapitation. Those who are released are punished by life exile at a distance of 3,000 Ii because conscripts' and garrison soldiers' punishment is reduced one degree below that of officers in charge in each case. Therefore it is stated that their punishment is reduced one degree in each case.

Article 236 Conscripts Who Avoid Military Service through Craft or Fraud ARTICLE: 236.1a—All cases of those who avoid military service when a campaign is about to begin through craft or fraud, COMMENTARY: There are a hundred pretexts that constitute craft or fraud. This has reference to such things as making a false accusation of someone or intentionally committing a crime that carries a light punishment. SuBCOMMENTARY:This refers to being in the face of the enemy and wanting to avoid batde or by craft or fraud to avoid military service. The commentary states: "There are a hundred pretexts for craft and fraud, such as making a false accusation of someone in order to avoid facing the enemy or intentionally committing a crime that carries a light punishment." The intent of these acts is to be left behind, either through wounding or maiming oneself or through feigning illness. There are many such villainies and deceptions.Therefore it is stated that the hundred pretexts cannot be all set forth and therefore the words "such thing" are stated. ARTICLE: or when the officer makes his examination pretends to be physically 35

See Article 450 below. The heavier of the two punishments provided under this law was eighty blows with the heavy stick, and the lighter forty blows with the light stick.

226

Article 237 unfit when the person is fit. If as a result there is a delay, then the punish­ 36 ment is for delaying a levy of the army. 236.1b—If the campaign is not adversely affected, the punishment is re­ duced one degree. 236.2a—If the officer in charge does not make a thorough examination but rather accepts the fraud, his punishment is reduced two degrees below that of the criminal. 236.2b—If he knows the circumstances, he receives the same punishment as the criminal. Where punishment reaches the death penalty, life exile with added labor is substituted. 37

SuBCOMMENTARY:When the officer makes his examination refers to the begin­ ning of the campaign when those who have one or more talents and abilities 38 must contribute them to the military effort. . . . If the officer in charge does not make a thorough examination means that the officer who must conduct a thorough and exhaustive examination for the true physical condition of the man does not, but rather allows the fraud. . . . If the officer in charge knows the circumstances means that if he knows the circumstances of the craft or fraud used, in both cases he receives the same punishment as the criminal. Where punishment reaches the death penalty, life exile with added labor is substituted. If the campaign is not adversely affected, the punishment is life exile at a distance of 3,000 Ii.

Article 237 [34]

Crimes Committed in Garrisons and Outposts

ARTICLE: All crimes committed in garrisons and outposts where the Specific Articles section provides no punishment are punished two degrees less than were they committed by conscripts in each case. SUBCOMMENTARY: Crimes committed in garrisons and outposts where the spe­ cific article provides no punishment refer to such crimes as garrison troops re­ placing each other under false names and where the officer in charge knows or does not know the circumstances. 39 Or, when opposing the enemy they seek through craft or fraud to avoid service. Or, when examined by their officer they pretend to be physically unfit when they are fit.40 N o punishment is provided by

36

See Article 230 above. The punishment is decapitation. On this punishment, see Vol. I, p. 93, Article 11. 38 Wang Yuan-hang's Explanation of the Text states that yi S means dull neng {ξ|ΐ|. "See Article 228 above. "See Article 236 above. 37

Article 239

227

the Specific Articles section when these crimes take place in garrison towns or frontier garrisons. . . .

Article 238 Issuing Weapons without an Official Document^ ARTICLE: 238.1—All cases of issuing weapons without an official document or of improperly issuing them punish the officer in charge by two years of penal servitude. 238.2—Even if there is a dispatch accompanied by a tally, if the weapons are issued without the tally being compared, the punishment is one hundred blows with the heavy stick.42 238.3—For ceremonial insignia, the punishment is reduced three degrees in each case. SUBCOMMENTARY: If weapons and military supplies are improperly issued without getting an official document, the officer in charge is punished by two years of penal servitude. By officer in charge is meant the person who makes the decision and signs the document. Even if there is a dispatch accompanied by a tally, if the weapons are issued without the tally being compared refers to the dispatch accompanied by the tally arriving at the office, and without having made a check issuing [the weapons, etc.], the punishment is one hundred blows with the heavy stick. At places where a guard has been left, as well as all prefectures where militia are mobilized and dispatched or wherever documents containing edicts are used together with fish tallies, if they are not used, the punishment is also two years of penal servitude. For ceremonial insignia, the punishment is reduced three [ l i b ] degrees in each case refers to things for happy and sad occasions, imperial insignia, various kinds of halberds, lances, and so forth. . . .

Article 239 Violation of the Time Limit in Sending Up Men To Take Their Turn at Military Duty ARTICLE: 239.1a—All cases of those who must send up men to take their turn at military duty in garrisons and outposts and who violate the time limit are •"This article has been translated by des Rotours,"Les insignes," p. 98.1 differ from him on minor points. 42 On matching tallies, see Article 226 above.

228

Article 240 punished by one hundred blows with the heavy stick for the first day, increased one degree for each further three days, and with a maximum 43 punishment of two years of penal servitude. 239.1b—If the replacements arrive and those whose turn of duty is over are not released, the punishment is reduced one degree below that above.

SuBCOMMENTARY:According to the Statutes on the Army:"When garrison troops have completed their tour of duty and are to be relieved, their relief by their successors must always be effected on the first day of the tenth month." 4 4 . . . ARTICLE: 239.2—If the officials at the garrison or outpost work the troops in an unreasonable manner so that it causes them to run away, the punishment for the first such man is sixty blows with the heavy stick, increased one degree for each further five men, and with a maximum punishment of one and one-half years of penal servitude. SUBCOMMENTARY: According to the Statutes on the Army: "Garrison troops in their garrison, in addition to maintaining security, may be employed in the repair of weapons, of defensive walls and ditches, of public buildings and houses. . . . [The officials may] in each case estimate the numbers of defense troops and provide them with vacant land beside or near the place where they are quartered, and should consider what grains should be cultivated in accor­ dance with whether the land is suitable for paddy or dry fields, and also the various vegetables that should be grown in order to provide stores of rations, and to provide food for the garrison troops, etc." 4 ' This is not regular work, and completely satisfactory results cannot be demanded.The sufferings and pleasures must be equally assigned, and their strengths must be taken into account in directing them. . . . Where the work is not reasonable yet the garrison troops do not run away, 46 then the punishment is for violating a statute.

Article 240 [35]

Reporting to Superiors about Levies for Public Works

ARTICLE: 240.1—All cases of levies for public works require that a report be made to superiors and a reply waited for. If no report is made or no reply

"Part of this article has been translated by des Rotours, Fomtionnams, ι, XXXVII. 44 NMa, Statutes, p. 387. This statute has been translated by des Rotours, Fonctionnaires, I, XXXVII. 45

This is an amalgamation of statutes 32 and 36, Niida, Statutes, pp 386, 388. SeC Article 449 below. The punishment is fifty blows with the light stick.

46

Article 240

229

is waited for, the value of the corvee exemption tax47 is calculated and the punishment is for illicit goods obtained through malfeasance, reduced one degree in each case.48 SUBCOMMENTARY: Men must be levied to repair inner and outer city walls and to construct embankments and defenses. According to the Statutes on Construction and Repair: "Whenever there is any construction work, the amount of days labor required should be estimated and reported to the Department of State.They are permitted to report the amount of days of corvee labor to which they are at first entitled."49 However, if no report is made to superiors, or if no reply is waited for, the amount of corvee exemption tax for the required workers is calculated and punished for illicit goods obtained through malfeasance, reduced one degree. The amount of goods is halved in sentencing, and the maximum punishment is two and one-half years of penal servitude. 50 ARTICLE: 240.2a—If the estimated or requested amount of materials and labor is in violation of the true needs of the project, the punishment is fifty blows with the light stick. 240.2b—If the crime has already occurred and the goods and labor have been wasted, [12b] their value is combined and calculated as illicit goods. If the punishment for the amount of the corvee exemption tax is heavier, the punishment is for illicit goods obtained through malfeasance, reduced one degree. COMMENTARY: 240.2c—If the original estimate is in violation of the true needs of the project, the person who made the original estimate is punished. If the request for materials and labor is in violation of the true needs of the project, the person who made the request is punished. SUBCOMMENTARY: If the estimated or requested amount of materials and labor is in violation of the true needs of the project refers to where an official has construction for which what is needed must be bought on the market. Where the estimated or requested amount of needed materials and the estimated and used amount of labor intentionally are not the true needs of the project, the punishment is fifty blows with the light stick.

"According to Twitchett, Financial Administration, pp. 25 ff, each taxpayer was obligated to twenty days corvee, which was avoided by paying a corvee exemption tax (yung JS). 48 See Article 389 below.Thus the least punishment would be ten blows with the light stick for goods worth one ch 'ih of silk, up to two and one-half years of penal servitude for goods worth ten p't of silk. 49 Nnda, Statutes, p. 800. This text is the source for this part of the statute 50 SeC Vol i, p. 235, Article 45. The reason for this is that the total amount was made up from several sources.

230

Article 241

If the crime and the waste have already occurred, regardless of whether it is materials or labor that has already been wasted, the combined amounts are calculated as wasted labor in terms of the corvee exemption tax. If the punishment is heavier, then the sentence is for illicit goods obtained through malfeasance, reduced one degree. This means that the punishment is heavier than fifty blows with the light stick.The punishment for goods worth five p'i, one ch'ih, of silk is for illicit goods obtained through malfeasance, reduced one degree, or sixty blows with the heavy stick. If the original estimate is in violation of the true needs of the project, only the person who made the original estimate is punished. If the request for materials and labor is in violation of the true needs of the project, the person who was responsible for making the request is punished. If the violation(s) were caused by mistake, then the punishment is reduced three degrees in each case. According to the General Principles section: "In repeated crimes concerned with illicit goods, . . . the punishment is for one-half the total."51 Thus if the crime is due 52 to illicit goods, the labor and corvee exemption tax resulting from there being too many men are combined with the government property, and the punishment is for one-half their value. If it is only government material that has been wasted but not labor, then the punishment is only for the government materials that were used, and it is not halved. If what has been wasted is labor, and halving the combined value of each man's labor is not punished more heavily than the government materials, then the punishment is only for the government materials.This then is sentencing the heavier punishment when combining the repeated crimes is not punished more heavily.

Article 241 [13a]

Making Levies in Violation of the Law

ARTICLE: In all cases of making levies or requiring miscellaneous labor services in violation of the law, ten days or more use of labor are punished as illicit goods obtained through malfeasance.53 COMMENTARY: This refers to labor for public matters such as is not allowed by the laws and statutes. SUBCOMMENTARY: Levies that are made in violation of the law refers to those made where there is no provision in the laws or statutes. Or, even if there is such 51

Ibid. S should be read huo iff, following the KHCPTS edition. "See Article 389 below. 52

Article 242

231

a provision, the levies are made at the wrong season. It means things such as pavilions by ponds or guest houses. Miscellaneous labor services refer to summoning adult males at the wrong season. The ten days or more use of labor is punished as illicit goods obtained through malfeasance. Thus the value of a group of men's labor is combined and halved in sentencing. 54 The commentary states: "This refers to labor for public matters such as is not allowed by the laws and statutes." But if the labor is used to keep things in repair, then the value is combined, calculated, and halved in sentencing for illicit goods obtained through malfeasance. Because the amount of tax for the upkeep did not go into private hands, therefore the punishment is lighter.

Article 242 Work That Is Done Incorrectly ARTICLE: 242.1a—All work that is done incorrecdy is punished by forty blows with the light stick. 242. Ib—If what has been done cannot be used or must be done again, the value of the work that cannot be used and the value of the labor are combined and punished as illicit goods obtained through malfeasance, with the punishment reduced one degree." 242.2—If the work is done on something that is for the use of the emperor, the punishment is increased two degrees. 242.3—The workers are each punished for that for which they are responsible. 242.4—The officials in charge at the time have their punishment reduced three degrees in each case. [13b] SUBCOMMENTARY: Workers mean those who do work for a government office. If they violate the regulations and rules and do the work improperly, the punishment is forty blows with the light stick. What is done cannot be used means that if the work could not be used at the time, or had to done again, the value of what could not be used and the labor are combined and the punishment is for one half of the total, reduced one degree. 36 . . . Work that is done for the emperor has already been explained in the Articles on Administrative Regulations. 57 If the work has been done incorrectly, the 54

VoI. i, p. 187, Article 33, states in the subcommentary that labor is valued at three ch'ih of silk for each day. "See Article 389 below. 56 SeeVol. I, p. 235, Article 45. "See Article 105 above.

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Article 243

punishment is sixty blows with the heavy stick. If what has been done cannot be used or must be done again, the value of the work that cannot be used and the value of the labor are combined and punished for illicit goods obtained through malfeasance increased one degree, but with a maximum punishment of life exile at a distance of 2,000 /;'. If the punishment for the combined value of the work and labor punished for one half of the total is not heavier than that of the wasted government property, then the calculated value of the government property is the basis of the sentence. However, the punishment is not for one-half of their value. Workers are each punished for that for which they are responsible, and the officials in charge at the time have their punishment reduced three degrees in each case, means that those who personally oversee the work, if it is done incorrectly, have their punishment reduced three degrees below that of the workers to ten blows with the light stick. If what has been done cannot be used, or must be done again, their punishment is reduced four degrees below that for illicit goods obtained through malfeasance and with a maximum punishment of one year of penal servitude. Their maximum punishment for work done for the emperor is two years of penal servitude.

Article 243 Private Possession of Forbidden Military Weapons ARTICLE: 243.1—All cases of private possession of forbidden military weapons are punished by one and one-half years of penal servitude. COMMENTARY: This means weapons other than bows, arrows, knives, shields, and short spears. SUBCOMMENTARY: The private possession of forbidden military weapons refers to such things as armor, crossbows, long spears, lances, and armor for horses, which, according to the statute, private households are not permitted to have.38 [14a]... The commentary states:"This means weapons other than bows, arrows, knives, shields, and short spears." A family may have these five kinds of weapons in their private possession. However, it is improper for flags, banners, and ceremomal insignia to be in the private possession of families, and they may not have them. Violations are punished by the heavier of the punishments for doing what ought not to be done, namely, eighty blows with the heavy stick.39 58

Nuda, Statutes, p. 380. See Article 450 below. As is common in the Code, this article is invoked to cover a circumstance that is not foreseen in any particular article. 5,

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233

ARTICLE: 243.2a—For the possession of a crossbow, the punishment above is increased two degrees. 243.2b—The possession of a suit of armor or three crossbows is punished by life exile at a distance of 2,000 Ii. 243.2c—The possession of three suits of armor or five crossbows is pun­ ished by strangulation. 243.3—The private construction of weapons and armor is punished by an increase of one degree in each case. SUBCOMMENTARY: . . .

QuERY:The private possession of three suits of armor or five crossbows, accord­ ing to the text of the article, is each punished by strangulation. If a person has private possession of two suits of armor as well as four crossbows, what is the punishment? [14b; 37] REPLY: Keeping armor or crossbows are both punished. But since it is not the same crime, they may not be combined. 6 0 According to the General Principles section:"If the punishment should be increased, then a lighter offense is brought up to make clear a heavier punishment." 6 1 The punishment for having armor is heavier than that for having crossbows. Having four crossbows is al­ ready punished by life exile, and the addition of one more to make five reaches the death penalty. How much more, then, if two suits of armor are added. It is clear that the punishment should be strangulation. Thus where a person already has private possession of four crossbows and one suit of armor is added, this also should be punished by death. COMMENTARY: Armor refers to that made of hide as well as metal. Horse armor is the same as armor for men. 243.4—If lost armor is found and more than thirty days pass without it being turned over to the government, this is treated the same as under the law on private possession. SUBCOMMENTARY: . . . Reference to thirty days means that if the armor is turned over to the government within thirty days, this article is not applicable. How­ ever, according to the Statutes on the Army: "Any person who finds armor or weapons must immediately turn them over to the government." 6 2 If the person does not do so, the punishment is for violation of a statute, namely, fifty blows w SeeVol i, p. 235, Article 45.That article is quite complex What is relevant here is section 4, which would not allow combining armor together with crossbows and sentencing for the result. "The analogy is covered by Vol. i,p. 255, Article 50. See also the discussion on pp. 37 and 38, of the Introduction to Vol. ι . 62 See Nnda, Statutes, p. 380.

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with the light stick. If a full five days pass, according to the Miscellaneous Articles: "The punishment is for losing." 63 The punishment in each case is decided according to the relevant article. Where the armor is neither hide nor metal, according to the ordinance of the Bureau of Military Warehouses, even in places where domestic animals are permitted, where more are raised than allowed by the limit, or those are reared that are not permitted, this is also punished comparably to the possession of forbidden military weapons. But there is a provision forbidding armor; it is not something that private households may have. If it is neither hide nor metal armor, the punishment is assessed as comparably light. It is reasonable that the punishment should be moderate. ARTICLE: 243.5a—If the construction has not been completed, the punishment is reduced two degrees. 243.5b—If a person possesses armor or a crossbow but they are not complete, the punishment is one hundred blows with the heavy stick. 243.5c—The possession of other weapons that are not complete is not punished. SUBCOMMENTARY: Where the construction has not been completed refers to everything in this article. In each case the punishment is reduced two degrees below that for private construction.This means that for three suits of armor and five crossbows or more, even though there may be still more, the maximum punishment is three years of penal servitude.64 Thus where there is private possession of armor and crossbows that are not complete, this means that they are not fit for use and that they have not been privately constructed. The punishment is one hundred blows with the heavy stick. The possession of other weapons that are not complete is not punished. This means that aside from armor and crossbows, there is no punishment for the possession of forbidden military weapons that are not complete. However, even the weapons that are not complete must be turned over to the government.

Article 244 Do Not Use Labor for Gathering and Fetching ARTICLE: 244.1—All cases of officials using corvee labor for gathering or fetching are punished for illicit goods obtained through malfeasance, reduced 63

See Article 448 below. "This is because following Vol. I, p. 268, Article 56, both death penalties and as well the three degrees of life exile are considered as a single reduction of punishment. Thus two degrees of reduction from a capital punishment would be three years of penal servitude.

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235

[16b] one degree according to the calculation of the value of the labor 65 wasted. SUBCOMMENTARY: If an official uses corvee labor that he should not use, whether to gather medicinal herbs or for fetching wood and the like, and the entire amount of corvee labor owed is used up, then the value of the whole labor is calculated. If lesser parts should not have been used, then according to the cost of the labor, the deficiency is combined and halved and punished for illicit goods gained through malfeasance, reduced one degree. [38] Article: 244.2a—If something was constructed or demolished and the plan­ ning was not prudent, so that a person is killed by error, the punishment is one and one-half years of penal servitude. 244.2b—The workmen and the officer in charge are each punished according to that for which they were responsible. SUBCOMMENTARY: . . . [Where someone has been killed by error,] whether through a mistake by a workman or through the decision of the officer in charge, each is punished according to that for which they were responsible. But it is clear that there is no collective responsibility.66 Since the article has reference to killing a person, it is clear that wounding a person will not be punished.

Article 245 Men Being Unequally Apportioned ARTICLE: 245.1—All cases of unequal apportionment for men 6 7 where the crite­ ria for dispatching them is unequal, so that there are too many or too few, are punished by forty blows with the light stick for the first man, increased by one degree for each further [16a] five men, and with a maximum pun­ ishment of one year of penal servitude. 245.2—If the men are not allowed to leave when the number of days of labor service have been completed, the punishment is forty blows with the light stick for the first day, increased by one degree for each further day, and with a maximum punishment of one hundred blows with the heavy stick. COMMENTARY: The person who is responsible is punished in each case.

65

See Article 389 below. On the collective responsibility of officials, see Vol. ι, ρ 216, Article 40. 67 On ting and/«, see the subcommentary to Article 461 below. 66

236

Article 246

SuBCOMMENTARY:The law on apportionment states: "[In apportioning impositions, taxes and labor services should be laid on] the rich and strong before the poor and weak, and those whose households have many adult males before those who have few."68 All adult males takes turns at labor service. If a household has several adult males, then they give their labor service during busy months. If a household is poor and has only one adult male, then he gives his labor service during months in which there is leisure time. Violating this is to apportion the men unequally, or to have too many or too few. . . . The commentary states: "The person who is responsible is punished in each case." This means only the person who did not allow the men to leave is the responsible person. Thus it is clear that there is no collective responsibility.

Article 246 Men and Artisans Who Delay ARTICLE: 246.1—All cases of men and artisans who are assigned work and delay or do not come to work are punished by thirty blows with the light stick for the first day, increased one degree for each further three days, and with a maximum punishment of one hundred blows with the heavy stick. 246.2—The punishment is increased one degree for the official in charge of directing the work. 246.3—If garrison troops delay, their punishment is increased three degrees in each case. 246.4—If the responsibility lies with the person who is directing the work, then only he is punished. COMMENTARY: Directors and delays in other articles follow this article. [16b] Subcommentary: Men and artisans who are assigned work by the government and who do not follow the time limits but rather delay, and do not come to work. . . . Director of the work means the person who is himself supervising it. . . . The commentary states: "Directors and delays in other articles follow this article."This refers to conscripts and others. 69 Where anyone is sent to carry out something and there is a [39] director, if the specific article provides no punishment for the director but the responsibility for the matter lies with him, then only the director is punished.

68

NiIcIa, Statutes, p. 690; Twitchett, Financial Administration, p. 147. "Article 233 above deals with delays caused by conscripts.

Article 247

237

Article 247 Private Use of Men and Artisans ARTICLE: 247.1—All cases of men and artisans who are performing labor service where the officer in charge at the time makes private use of their labor, or an officer in charge makes private use of soldiers and garrison troops at a place where he is in authority, calculate the value of the labor and punish the crime as comparable to robbery.70 247.2—If the soldiers and garrison troops who are being used privately have to go outside of the walled town or frontier garrison, the punishment is increased one degree. [17a] SUBCOMMENTARY: Men and artisans mean those who are at present serving their term of government labor service and an official in charge at the time makes private use of their labor. An official in charge at the time means one who makes decisions and signs documents and who personally is in charge of soldiers and garrison troops. . . . If the calculation of the value of their labor does not reach one ch 'ih of silk, then the punishment is for robbery where no goods are obtained or fifty blows with the heavy stick. . . . As for force being used, according to the Articles on Administrative Regulations: "If force is used, the punishment is increased two degrees in each case," [and the commentary states:] "The use of force in other articles follows this article."71 So if soldiers and garrison troops are forced to labor outside the walled town, this is combined with the one degree of increase added above. Even though there is reference to men and artisans as well as soldiers and garrison troops, if the labor is not within the time period for men and artisans, according to the article above: "If the men are not allowed to leave when the days of labor service have been completed, the punishment is forty blows with the light stick for the first day, increased one degree for each further day, and with a maximum punishment of one hundred blows with the heavy stick."72 If the replacements arrive and the men and artisans are not allowed to leave, the punishment for the first day is ninety blows with the heavy stick, increased one degree for each further three days, and with a maximum punishment of one and one-half years of penal servitude. Where the calculated value of the labor would be punished more heavily, then if the official is at present a supervisory official, the punishment is in accord 70

See Article 282 above. The point of being sentenced as comparable to robbery is that the punishment is limited to life exile at a distance of 3,000 Z/, so that the death sentence is not possible. See Vol. l, p. 261, Article 53. 71 See Article 142 above. 72 See Article 245 above.

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with use of the labor by a supervisory official.73 If the official uses labor that is not within his own area, punishment is the hghter provided by the law on doing what ought not to be done or forty blows with the light stick.74 If the value of the labor is more so that the punishment is heavier, then the punishment follows the Articles on Administrative Regulations regarding officials who receive presents from their former subordinates after leaving office or who use extortion or borrow from them, with the punishment reduced three degrees in each case.75 If those who are not supervisory officials make private use of men or artisans, they also are punished as comparable to robbery reduced three degrees. "See Article 143 above. The punishment begins with forty blows with the light stick and can reach life exile at a distance of 2,000 Ii. 74 See Article 450 below. "See Article 147 above.

7. VIOLENCE AND ROBBERY [la; 39]

CHAPTER

XVII

As for the Articles on Violence and Robbery, during the time of Marquis Wen of Wei, Li K'uei first wrote the Legal Classic. It had sections containing the laws of robbery and the laws of violence. From the time of the Ch'in and Han dynasties until the Latter Wei dynasty, these sections were called the Articles on Violence and the Articles on Robbery. The Northern Ch'i dynasty combined them into the Articles on Violence and Robbery. The Latter Chou dynasty had Articles on Plundering and Robbery and also Articles on Violence and Rebellion. During the Sui K'ai-huang period, they were combined into the Articles on Violence and Robbery, which has not been changed down until today. The previous section dealt with forbidding the unauthorized levies of soldiers and horses. This section concerns the prevention of violence and robbery.Therefore it comes after the section on unauthorized levies.

Article 248 [40]

Plotting Rebellion and Committing Great Sedition^

ARTICLE: 248.1a—All cases of plotting rebellion or of committing great sedition punish all the criminals by decapitation. 248.1b—The plotters' fathers and sons who are sixteen years of age or more are all punished by strangulation. 2 248.1c—The plotters' sons who are fifteen years of age or less as well as their mothers, daughters, wives, and concubines, grandsons in the male line, brothers, sisters, personal retainers, together with their goods and real property, are all enslaved or confiscated by the state. 3

'This article embodies the first of the ten abominations. See Vol. i, pp. 61 ff, Article 6, and the discussion on p. 17. It contains the most severe punishment in the Code, providing for the collec­ tive prosecution of those associated with any of the plotters, even though they had no knowledge of the crime. Note, however, that in the case of great sedition, simply plotting the crime does not involve collective prosecution. This occurs only if the crime is carried out. 2 VoI. I, p. 259, Article 52, states that great- and great-great grandfathers, great- and great-great grandsons in the male line, stepmothers, and foster mothers are included in collective prosecu­ tion.Vol. I, p. 258, Article 52, states that the character tzu -ψ, which usually indicates children, refers to sons only in cases of collective prosecution. 'This process of enslavement is described in the translation by des Rotours dealing with the Bureau of Criminal Administration, Fonctionnaires, 1,117-118. On the categories of physical and mental disabilities mentioned immediately below in the text, which exempted such persons from punishment, see Vol. I, p. 31.

240

Article 248 248.1d—Males who are eighty years of age or incapacitated, and females who are sixty years of age or disabled, are exempted [lb] from punishment.

CoMMENTARY:The sons' wives and concubines are treated the same. Other articles where women are collectively prosecuted follow this article. ARTICLE: 248.1e—The plotters' uncles on the paternal side and their nephews in the male line are all punished by life exile at a distance of 3,000 Ii. It is immaterial whether or not they are on the same household register. SuBCOMMENTARY:The Lord of Men has the same virtue as Heaven and Earth, and his brightness is equal to that of the Sun and Moon. From above he receives the precious mandate of Heaven. Here below he rules the territory of the state. Should there be treacherous officials and evil servants who plot to endanger the Altars of the Soil and Grain 4 and begin wild plans, they must be executed even if the crime has not yet been carried out, for this is the same as real rebellion. The General Principles section states: "References to plots mean two or more persons."5 If the circumstances of the plot are already clear and evident, then the law considers one man to be the same as two men. . . . Great sedition refers to where the plot is already under way. Therefore those who plot rebellion or who commit great sedition all are punished by decapitation. Their fathers and sons sixteen years of age or more are punished by strangulation. Reference to all means that the punishment does not distinguish between principals and accessories. As for those fifteen years of age or less as well as mothers, daughters, wives, and concubines, the commentary states: "The sons' wives and concubines are treated the same." . . . Personal retainers, goods, and real property are all enslaved and confiscated by the state. Personal retainers are not considered the same as goods (while slaves are), therefore they are specially mentioned.The wives of personal retainers and female retainers are treated the same as personal retainers. Slaves are treated the same as goods, therefore they are not specially mentioned. . . . The commentary states: "Other articles where women are collectively prosecuted follow this article." This means that where a plot of treason is already under way6 or where three persons in the same family who have not committed a capital crime are killed7 [2a] as well as informing the enemy of an attack,8 in these types of crime, collective prosecution exempts women who are sixty years of age or more or disabled from punishment. [The commentary states:] "The plotters' uncles on the paternal side, and their nephews in the male line, are all punished by life exile at a distance of 3,000 /;'. 4

ThIs reproduces the commentary to the first of the ten abominations. See Vol.i, p. 61,Article 6. VoI. I, p. 265, Article 55. The sentence following is a paraphrase of the commentary there. 6 See Article 251 below. 7 See Article 259 below. 8 See Article 232 above. 3

Article 248

241

It is immaterial whether or not they are on the same household register." Even though they are on different household registers from men who are involved in rebellion or treason, their punishment is the same. The plotters' paternal uncles, nephews in the male line, and sons who have been adopted into families of the same clan, as well as males more distant in 9 relationship than first cousins in the male line, will not be collectively prosecuted. ARTICLE: 248.2a—However, in cases of plotting rebellion, even if the plotters' words and reasoning are not able to incite great numbers of people, 1 0 and their coercion and physical strength are not enough to lead others on, all the criminals will be punished by decapitation. COMMENTARY: This refers to where there is a real plot but the conspirators are not able to cause harm. Or, where a person describes himself as being able to bring about "favorable verifications"" or pretends to cause wonders or makes wild references to soldiers and horses (i.e., an army) or empty speeches about reasons for rebellion, which are transmitted and confuse the mass of the people. Even if investigation shows there are no real circumstances [of rebellion], it is self-evident that this is following a calamitous way. ARTICLE: 248.2b—Their fathers, sons, mothers, daughters, wives, and concu­ bines will all be punished by life exile at a distance of 3,000 Ii. 248.2c—Their goods will not be confiscated by the state. 248.3—Plotting great sedition is punished by strangulation. SUBCOMMENTARY: If people plot rebellion means that their words, even though they are intended to incite to disruption, are not sufficient to move great num­ bers of people. Even though they display their evil strength and power, they are not able to urge on the people. . . . [2b; 41] Where such information is transmitted and confuses the mass of the people, even if investigation shows there are no real circumstances [of rebellion], it is selfevident that this is following a calamitous way means that the persons involved are punished by strangulation, but their wives and sons are not collectively prosecuted. Those who commit great sedition are punished by strangulation. In the text above, great sedition is sedition where the crime is already under way. Here, if there is a plot that has not yet been put into action, the punishment is only

'The translation of this paragraph is based on definitions given in Wang Yuan-hang's Explanation of the Text, which is put at the end of the subcommentary. 10 VoI. I, p. 265, Article 55, defines a group (chung J?c) as being three or more persons, i.e., a small number. Here I follow the subcommentary where jen Λ. is added after chung so as to mean great numbers of people. "This has reference to a passage in the Shu ching, "Hung fan," p. 177; Legge, Tlie Chinese Classics, m, 341, in which the emperor has five favorable verifications {hsiu-cheng ifc-WO of good rule. Hence for someone to ascribe them to himself indicates that he is a rebel.

242

Article 249

strangulation. The article makes no reference to all, hence the law on principal and accessories is followed.12 QUERY: Those who commit rebellion or sedition must be collectively prosecuted. As for their wives and concubines, according to the relevant law, even though there be an amnesty their relationship is ended and their status corrected. 13 As for their adopted sons and grandsons in the male line, according to the relevant law, even though there be an amnesty their status is corrected. 14 Once the relationship is ended and their status is corrected, they do not come within the limits of those who are collectively prosecuted. However, the relationship is only ended and their status corrected after the crime of rebellion or sedition has come to light. Are they released and exempted from punishment in both cases or not? REPLY: The punishments and laws must be used with care. One article cannot punish two crimes. In managing the law, one walks a tightrope and strives to decide cases equitably. Those who violate the law have already thrown the country's regulations into disorder. Even though there is a great amnesty, the relationship of husbands, wives, and concubines must be ended and their status corrected. The connection of those whose relationships has been ended and whose status has been corrected is that of persons of nonkin status, and they cannot be considered as relatives. Rather, if there is another case of rebellion or sedition, they must be collectively prosecuted with their original clan.

Article 249 [3a]

Collective Prosecution and Those Who Do Not Dwell Together^

ARTICLE: 249.1—In all cases of collective prosecution those who do not dwell together (t'ung-chu |W|J|§) with the actual criminals do not have their goods and real property confiscated by the state. 249.2—Even where persons do dwell together, if they are not collectively prosecuted, or where they are the sons and grandsons in the male line of those who are collectively prosecuted, or where they exempted from life exile, each receives his share of the goods and real property. 12 VoI. I, p. 225, Article 42, provides that accessories shall be punished one degree less than the principal. The exception to this rule is stated by the next article, which specifies that where the word "all" (chieh •§?) is used, no distinction is made between principal and accessories. "See Article 194 above. "See Vol. I, p. 197, Article 36. "Dwelling together refers to persons who have goods and real property in common.To meet this definition it is not necessary that they have a mourning relationship. Usually there could be a division of these only after the father's death, but such a division was not required. So under the definition of Article 248, some of these persons would not be subject to collective prosecution. See Vol. I, p. 246, Article 46.

Article 249

243

COMMENTARY: The aged and the disabled are exempted from life exile, and they receive the share of a son in each case. SUBCOMMENTARY: Those who are collectively prosecuted but who do not dwell together refer to the paternal uncles and brothers of those who plot rebellion or commit great sedition after the division of goods and real property. . . . Each refers to women who have no husband. N o one for whom the Code lacks a provision can be collectively prosecuted. . . . Each receives his share of the goods and real property refers to where the division of goods and real property has not yet taken place. After the crime has been committed, they are divided according to the Household Statutes.16 The wives of grandsons in the male line, even though they themselves are not collectively prosecuted, if their husbands have been enslaved by the state, return to their original clan but do not share in the division of goods and real property. The commentary states: "The aged and the disabled are exempted from life exile."This means men who are eighty years of age or incapacitated and women who are sixty years of age or disabled.17 According to the number of persons in the house, each of them specially gets the share of one in the division. [3b] QuERY:The aged and the disabled are exempted from life exile and they get the share of a son in each case. Suppose a man eighty years of age has three sons and ten grandsons in the male line. One of the grandsons in the male line plots rebellion or commits great sedition, and one of the sons is still alive. O r all three of the sons are [42] dead and there are only the ten grandsons in the male line. What portion does the old man get? REPLY: If only one old man is alive, according to the statute, the three sons each get a part, and with the addition of the old man, there are four parts. If the three sons are all dead, according to the statute, their sons get an equal division.The old man together with the ten grandsons in the male line would make eleven, so that one-eleventh would go to the old man.This is getting one son's share in each case. ARTICLE: 249.3a—If a daughter's betrothal has already taken place, she goes to her husband. 249.3b—If a child has been adopted by another family or has become a Buddhist orTaoist priest or monk, or where a betrothal has taken place but the marriage has not yet been completed, such persons are not collectively prosecuted. 16

Niida, Statutes, p. 245. When goods and real property were divided, sons received an equal share, chough what had come with their wives was not included in the division. If any of the sons were dead, their share went to their widow, and if she were dead to their sons in equal parts. Women of the house who were unmarried received as their portion one half of the marriage gifts that a man would give. 17 On the various categories on physical and mental disabilities that served to lessen or even to give total exemption from punishment, see Vol. I, p. 31.

244

Article 250 249.4—If aTaoist priest, or a wife, or a personal retainer, or a slave commits rebellion or [great] sedition, only they themselves are prosecuted.

SUBCOMMENTARY: . . .Adopted by another family refers to where a man or woman has been adopted by another family. . . . Where a betrothal has taken place but the marriage has not yet been completed refers to where the happy day has been fixed but the man and woman have not yet seen each other. In none of these cases are they collectively prosecuted. Those who have been adopted are [4a] collectively prosecuted with the adoptive family (should such an offense involve them) but are not implicated with the family where they were originally born. . . . Women—regardless of whether they are still at home or are married—who have become Buddhist orTaoist nuns, personal retainers, male and female slaves— regardless of whether they are government or private slaves—who commit re­ bellion or [great] sedition are prosecuted by themselves only. . . . QUERY: If general bondsmen and musicians of the Court of Imperial Sacrifices commit rebellion or great sedition, is collective prosecution applicable or not? REPLY: Collective prosecution for general bondsmen and musicians of the Court of Imperial Sacrifices, whose registers of ancestry are kept in the county office and who are granted land, become adults, and are exempted from taxation on reaching old age in the same way as commoners, 1 8 who commit rebellion or great sedition, acts in the same way as for commoners. As for artisan bondsmen, musician bondsmen, and official bondsmen who do not have their registers of ancestry kept in prefecture or county offices, should they commit rebellion or great sedition, they are treated the same as personal retainers, that is, only they themselves are prosecuted, and collective prosecution is not applicable.

Article 250 Speaking of Rebellion ARTICLE: All cases of those who speak about rebellion where there is no real plot and no circumstances can be found are punished by life exile at a distance of 2,000 Ii. SUBCOMMENTARY: Where a person really has not plotted to endanger the state but has only spoken of rebellion, and upon investigation no real circumstances can be found [4b] but only wild words, the punishment is life exile at a distance "Part of this is a paraphrase of the relevant statute in Niida, Statutes, p. 639;Twitchett, Financial Administration, p. 131; and the subcommentary to Vol. ι, ρ 131, Article 20. On these categories of mean persons, see also Vol. I, p. 160, Article 28.

Article 251

245

of 2,000 Ii. Where the words were about great sedition or treason and upon investigation there are no real circumstances, neither the Code nor the Statutes has a provision or ruling, so that in either case the punishment is the heavier for 19 doing what ought not to be done.

Article 251 Plotting Treason ARTICLE: 251.1—AU cases of plotting treason are punished by strangulation. 251.2a—If the treason is under way, all the criminals are punished by de­ capitation. 20 COMMENTARY: This means that those who join together in plotting and schem­ ing are punished.Those who are led on by them are not punished. Refer­ ences to those who are led on in other articles follow this article. [43] SUBCOMMENTARY: Plotting treason means to plot to betray the country or to serve rebels.21 If there is only a plot and the treason has not yet been carried out when the crime is discovered, then the principal is punished by strangulation and the accessories are punished by life exile. If the treason is already under way, no distinction is made between principal and accessories, all the criminals are punished by decapitation. . . . Those who are led on by them are not punished. This refers to those who originally were not of the same mind but who were led on just as the treason began. They are not punished. References to those who are led on in other articles follow this article. This refers to such articles as those on plotting rebellion, 22 plotting great sedition, and those who flee into the mountains and marshes and do not submit when pur­ sued and summoned. Reckless, malignant, and perverse, able thoughtlessly to kill others, these persons are all imprisoned. But those who were led on by them are not punished. ARTICLE: 251.2b—Their wives and sons are punished by life exile at a distance of 2,000 Ii.

"See Article 450 below. The heavier of the two punishments provided by this article is eighty blows with the heavy stick. 20 TlIe meaning here is spelled out below in the subcommentary.The Code punishes accessories one degree less than principals unless the word "all" appears, in which case no distinction is made. 21 This reproduces the commentary to the third of the ten abominations. See Vol. I, p. 61, Article 6. —P'an ψ\ should be read Jan S , following the SPTK edition. The crimes referred to are in Article 248 above and below in this article.

246

Article 251 251.2c—If they have been able to lead on groups of a hundred men or more, their fathers, mothers, wives, and children are punished by life exile at a distance of 3,000 Ii. 251.2d—If those who were led on did not comprise a hundred men but ended by doing harm, the punishment is for a hundred men.

COMMENTARY: Harm means to make an [5a] attack or to take captives. SuBCOMMENTARY:Those who commit treason are themselves punished by strangulation. Their wives and sons are punished by life exile at a distance of 2,000 Ii. Only if the wife or children are fifteen years of age or less may they make redemption by payment of copper. A woman cannot be sent into life exile alone; rather, the law on remaining and dwelling at home, being beaten with the heavy stick, and doing forced labor in a fixed place is followed.23 If the sons are fifteen years of age or more, they are sent into life exile in accordance with the ordinance, 24 but at the place of exile their mothers are exempted from forced labor in a fixed place.Women who are unmarried are not included in those who are sent into life exile. The reason is that the General Principles section states that women are not included in collective prosecution. 25 If the plotters have been able to lead on groups of a hundred men or more, the crime is especially serious. Therefore their fathers and mothers as well as their wives and sons are punished by life exile at a distance of 3,000 Ii. . . . If those who attack city walls are opposed by the defenders, the law on rebellion is followed.26 ARTICLE: 251.3a—Those who flee into the mountains and marshes and do not submit when pursued and summoned are punished for plotting treason. 251.3b—If they resist the military and civil officers sent to arrest them, their punishment is for treason that is already under way. SUBCOMMENTARY: This refers to deceivers who flee into the mountains and marshes and do not submit when pursued and summoned. They are punished for plotting treason. The principal [5b] is punished by strangulation, and the accessories by life exile at a distance of 3,000 Ii.

23

SeC Vol. I, p. 160, Article 28. Women were beaten with the heavy stick, sixty blows for a sentence of life exile at a distance of 2,000 /i, with twenty blows added for each further degree of exile, and did labor for three years. 24 This ordinance has not survived. 25 See Vol. i, p. 258, Article 52. 26 See Article 248 above.

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247

Article 252 Plotting To Kill a Commissioner Carrying Imperial Decrees, a Department Head, or Other Officials ARTICLE: 252.1—All cases of plotting to kill a commissioner carrying imperial decrees, one's department head, 27 prefect, or magistrate, or where an employee or soldier plots to kill a senior officer of his own unit who is of the fifth rank or above, are punished by life exile at a distance of 2,000 Z/.28 COMMENTARY: Artisan, musician, and public building bondsmen 29 and slaves [44] are considered the same as employees and soldiers. Other articles dealing with these persons follow this article. ARTICLE: 252.2a—If the victim has already been wounded, the punishment is strangulation. 252.2b—If the victim has already been killed, all the criminals are decapitated.30 SUBCOMMENTARY: Commissioners carrying imperial decrees, department heads, princes, and nobles have already been explained in the General Principles section.31 Prefects, governors, and magistrates each have their own areas of authority. Where an employee or soldier plots to kill a commissioner of the directorate of water or a soldier in the militia plots to kill his own commander or deputy commander—in such cases as this, the punishment is life exile at a distance of 2,000 Ii. Artisan and musician bondsmen are not included in the county registers of ancestry; rather, they are attached to their own office. If they, public building bondsmen, or slaves plot to kill senior officers who are officials of the fifth rank and above in their own office, they are treated the same as employees and soldiers. [6a] If government bondsmen or slaves of the Court of Agriculture plot to kill the chief minister of the Court of Agriculture, it is reasonable that this not be treated differendy from artisan or musician bondsmen plotting to kill the 27 Department head is a general term The subcommentary to Vol. I, p. 80, Article 6, defines such a person as an active duty official of the fifth rank and above or an honorary official of the third rank and above and states:"According to where they serve they are called department heads. Persons acting in like capacity for princes and nobility are in the same position." 28 Parts of this article reproduce the commentary to the ninth of the ten abominations, entitled unrighteousness. See Vol. I, p. 61, Article 6. These crimes roughly correspond to the historical concept of petty treason in the West. 29 Building bondsmen were a kind of government bondsman. See Shiga, Translations, vn, 80. "That is, the law on different punishments for principal and accessories is not followed. Killing one's department head, prefect, or magistrate comes under unrighteousness, the ninth of the ten abominations. See Vol. I, p. 61, Article 6. 31 See numbers six and nine of the ten abominations, ibid.

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Article 253

chief ministers of the Court of Imperial Sacrifices or the Directorate of Imperial Workshops. Other articles refer to those where artisan or musician bondsmen, government bondsmen, or slaves beat or curse senior officials of their own offices who are of the fifth rank or above and where the relevant articles have no punishment. In all of these articles, bondsmen and slaves are treated the same as employees or soldiers.32

Article 253 Plotting To Kill Second-Degree Mourning Relatives of a Higher Generation or of the Same Generation but Older ARTICLE: 253.1a—All cases of plotting to kill second-degree mourning relatives of a higher generation or of the same generation but older, one's maternal grandparents, one's husband, or one's husband's parents or paternal grandparents, punish all the criminals by decapitation. 33 COMMENTARY: 253.1b—In cases where a wife or concubine commits illicit sexual intercourse, if the man kills her husband, the woman, even if she did not know the circumstances, receives the same punishment as the murderer. SUBCOMMENTARY: . . .Where a wife and concubine plot together, there also no distinction is made between principal and accessory.34 In cases where a wife or concubine commits illicit sexual intercourse, if the man kills her husband refers to where the wife or concubine is committing illicit sexual intercourse with a man and the man kills her husband.This means regardless of whether there is a plot that has already been carried out, or the killing was done intentionally, or the husband was been killed in an affray. The woman, even if she did not know the circumstances, receives the same punishment as the murderer. 35 This means that the woman is also punished by strangulation. ARTICLE: 253.2a—Plotting to kill relatives of the fifth degree of mourning of a 32

This particular example is taken from Article 312 below. "This crime comes under the eighth of the ten abominations. See Vol. I, p. 61, Article 6. A question that has caused some interest is why this article does not deal with plots to kill parents, which are included with contumacy, the fourth of the ten abominations. I believe that parents are on a different level from other relatives, hence their inclusion in a different section that regarded more seriously in that amnesties did not affect punishment for those whose crime was categorized as contumacy. "Ordinarily.Vol.i.p. 225, Article 42, punishes the accessories one degree less than the principal. 35 These crimes are covered in Articles 256 and 306 below. Two of them are punished by decapitation, while killing in an affray is punished by strangulation.The reason that the woman is punished by strangulation is that Vol. i, p. 261, Article 53, specifies that where the offense is not the same as an actual crime, the punishment is limited to strangulation.

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249

higher generation or of the same generation but older is punished by life exile at a distance of 2,000 Ii. 253.2b—If the relative has already been wounded, the punishment is stran­ gulation. 253.2c—If the relative has already been killed, all the criminals are pun­ ished by decapitation. SUBCOMMENTAHY: Plots to kill relatives of the fifth degree of mourning of a higher generation or of the same generation but older also include such relatives of the third and fourth degrees of mourning as well as such relatives by marriage for whom there is a mourning relationship. If the relative has already been wounded, the principal is punished by stran­ gulation and the accessories by life exile. If the relative has been killed, all the criminals are punished by decapitation; no distinction is made between princi­ pal and accessories. ARTICLE: 253.3a—If a person plots to kill a relative of a lower generation or of the same generation but younger, the punishment will be that for inten­ tional killing, with the punishment reduced two degrees. 36 253.3b—If the relative has already been wounded, the punishment will be reduced one degree. 253.3c—If the relative has already been killed, the law on intentional killing will be followed. SuBCOMMENTARY:This means that in the texts above when a person plots to kill a relative of a lower generation or of the same generation but younger and the relevant article provides no punishment, the punishment is that for intentional killing reduced two degrees in each case. If the relative has already been wounded, the punishment will be reduced one degree. If because of greed there is a plot to [45] kill a relative of the second degree of mourning of a younger generation or of the same generation but younger, the punishment is three years of penal servitude. 37 If the relative has already been wounded, the punishment is life exile at a distance of 3,000 Ii, and if the relative has already killed, following the law on intentional killing, the punishment is strangulation, and so forth. 3 8 With regard to following the law on intentional killing, the principal is pun­ ished as the original plotter in each case. The person who formulated the plan 36

See Article 306 below.The punishment is decapitation. If it is reduced one degree, it is to life exile at a distance of 2,000 Ii, and to three years of penal servitude if reduced two degrees.This follows Vol. I, p. 268, Article 56. 37 VoI. i, p. 260, Article 56, specifies that reduction of one degree of punishment from the death penalty is to life exile at a distance of 3,000 /ι, and that a second reduction is to three years of penal servitude. 38 Plotting to kill a junior relative because of greed is covered by Article 287 below, and the punishment is strangulation rather than the decapitation for such plots against persons of nonkin status as provided by Article 306 below.

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Article 254

{tsao-yi die ^ ¾ ¾ ) , even if that person took no part in carrying out the crime (hsing fx), is still the principal. The accessories who took no part in carrying out the crime have their punishment reduced one degree below those who did take part in carrying out the crime. 39 Suppose several uncles plot together and kill their nephew in the male line. The principal is punished by life exile at a distance of 2,000 /i.The accessories who aided in the crime (chia-kung J[15¾) are punished by three years of penal servitude.The accessories who did not aid in the crime are punished by two and one-half years of penal servitude. The accessories who did not take part in carrying out the crime [7a] have their punishment reduced one degree below those who did take part in carrying out the crime, to two years of penal servitude, and so forth. To summarize: killing second-degree mourning relatives of a lower generation or of the same generation but younger has been brought up so that in other articles where there is no provision on this crime, and where reduction of punishment is required, the reductions of punishment set forth above can be followed.

Article 254 A Personal Retainer or Slave Who Kills Their Master ARTICLE: 254.1—All cases of a personal retainer or slave who kills their master punish all the criminals by decapitation. 254.2a—Plotting to kill the master's relatives of the second degree of mourning or his maternal grandparents is punished by strangulation. 254.2b—If any of the intended victims has already been wounded, all the criminals are punished by decapitation. SUBCOMMENTARY: Reference to personal retainers and slaves includes their wives as well as female personal retainers.This refers to where the plot has yet not been carried out. Those who are on the same household register and are persons of commoner status or more and who have their goods in common are all considered to be masters.Where there are plots to kill any of them, all the criminals are ''Because of the various social factors affecting liability for punishment, this article is very complex. The first part—that the person who formulates the plan is the principal—is set out in Vol. I, p. 225, Article 42. However, that article also specifies that if members of a household are involved whoever is the highest in generation, or oldest of the same generation is the principal. Further, the principal must be a man. Unless no men at all were involved in a crime, a woman could not be the principal. Moreover, if someone who was an official with supervisory or custodial status, see Vol. I, p. 263, Article 54, he automatically was the principal, whether or not he formulated the plan. Here also, we have two different levels of accessory. Article 42 provides that accessories receive one degree less punishment than the principal. But in this article, accessories are divided into two categories—those who took part in the crime and those who did not.These latter receive still another degree of reduction of punishment.

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251

punished by decapitation; no distinction is made between principal and accessories. Plots to kill their master's relatives of the second degree of mourning mean those who are on a different household register. . . . Ying concubines and concubines, according to the Household Statutes, do not have their goods in common with other members of the household and so are not considered to be the masters of slaves.

Article 255 Plotting To Kill a Late Husband's Parents ARTICLE: 255.1a—All cases of wives and/or concubines who plot to kill their late husband's paternal grandparents or parents are punished by life exile at a distance of 2,000 Ii. 255.lt)—If any of the intended victims has already been wounded, the punishment is strangulation. 255.1c—If any of the intended victims has already been killed, all the criminals are punished by decapitation. 255.2—Personal retainers or slaves who plot to kill their former master receive the same punishments as above. COMMENTARY: 255.3—Late husband refers to where the husband is dead and the wife or concubine has remarried. Former master refers to the master who has manumitted the slave as a commoner. References to late husbands and former masters in other articles follow this article. SuBCOMMENTARY-.Wives and/or concubines who plot to kiQ their late husband's paternal grandparents or parents are punished by life exile at a distance of 2,000 Ii. If any of the intended victims has already been wounded, the punishment is strangulation.This is based on sentencing the plotters as principal and accessories. If any of the intended victims has already been killed, all the criminals are punished by decapitation, and no distinction is made between principal and accessories. This refers to a family where there are a wife and concubines—several women who have become widows. After the death of the husband and they have remarried, they plot together to kill their late husband's paternal grandparents or parents. All of them are punished by decapitation. If they plot together with still other persons, the punishment for these other persons follows the law on principal and accessories and they do not come within the group who are all decapitated. . . . Wives and concubines who have been repudiated or divorced are treated the same as persons of nonkin status, and the concept of late husband is not applicable to them. 40 "See Article 189 above on repudiation of the wife.

252

Ankle 256

Former master refers both to those who have been manumitted as commoners and those who have bought themselves out of mean status. Those who have been transferred (i.e., sold),41 or who have made statements of a personal grievance,42 are removed from this group and are considered the same as persons of nonkin status. Other articles dealing with the late husband and former master are those covering beating, 43 cursing, 44 making accusations to the court, 45 and so forth. Where the relevant article has no provision, this article is followed in all cases.

Article 256 [8a; 46]

Plotting To Kill a Person

ARTICLE: 256.1—AU cases of plotting to kill a person are punished by three years of penal servitude. 256.2—If the person has already been wounded, the punishment is strangulation. 256.3a—If the person has already been killed, the punishment is decapitation. 256.3b—Those who were accessories and who aided in the crime are punished by strangulation.Those who did not aid in the crime are punished by life exile at a distance of 3,000 Ii. 256.3c—The one who formulated the plan, even though he did take part in carrying out the crime, is the principal. COMMENTARY: Hiring someone to kill a person is treated the same. SUBCOMMENTARY: Plots to kill a person refer to two or more persons. Where the crime has already come to light and the intent to kill a person was not false, even though only one person was the plotter, the law on plotting considers the crime to be the same as if two persons took part in carrying it out, and the punishment is three years of penal servitude. . . . Those who were accessories and who aided in the crime are punished by strangulation. This refers to those who plotted together collectively to kill a person and at the time of the killing aided in the crime. Even if they did not strike the blow {hsia shou " F ^ ) that killed the man, yet at the time they collec4,

Transferred is a euphemism for sold, based on the personal retainer's status not being that of a chattel. See Vol. I, p. 122, n. 122. "Ordinarily they could not make an accusation against their master, but there were certain exceptions. See Articles 358 and 359 below. 43 See Article 331 below. "See Article 337 below. 45 See Articles 346 and 349 below.

Article 256

253

tively shared in pressing forward against the victim. Owing to being hemmed in, the victim had no place to hide, and it was only because of the plotters availing themselves of this means46 that he was killed. Actions of this nature constitute aiding in the crime. No matter how many there are, all such persons are punished by strangulation. . . . The one who formulates the plan refers to the original plot to kill. If the scheme has already been carried out, even though the person who formulated the plan did not personally take part in carrying out the crime, that person is the principal in the crime and is punished by decapitation. Others who aided in the crime are punished by strangulation. The commentary states:"Hiring someone to kill a person is treated the same." This means that the person who formulates the plan is the principal and the person who is hired to aid in the crime is an accessory. ARTICLE: 256.3d—If the accessories do not take part in carrying out the crime, their punishment is reduced one degree below those who do. COMMENTARY: Other articles where there are those who do not take part in carrying out the crime follow this article. [8b] Subcommentary: This means that where there is a plot to kill a person, accessories who do not take part in carrying out the killing have their punishment reduced one degree below those who do take part in carrying out the killing, to three years of penal servitude. The commentary states: "Other articles where there are those who do not take part in carrying out the crime follow this article."This refers to such articles as that on breaking open a prison and wounding someone, 47 or plotting to kill a relative within the fifth degree of mourning who is of a higher generation or of the same generation but older where the victim has already been wounded. 48 The accessories who did not take part in carrying out the crime also have their punishment reduced one degree in these articles. Those who are active in plots to kill are all punished by decapitation. Those who took part in the plot but not in carrying it out do not have their punishment reduced. This means that where there is a plot to kill a relative of the second degree of mourning who is of a higher generation or of the same generation but older, those who took part in the plot, even though they did not take part in carrying it out, are all punished by decapitation.

'Chi f t should be read clii ff following the SPTK edition. 'See Article 257 below. 'See Article 253 above.

254

Article 257

Article 257 Breaking Prison ARTICLE: 257.1a—All cases of breaking prison are punished by life exile at a distance of 3,000 Ii. 257.1b—If in doing so anyone is wounded or if the prisoner is under a death sentence, the punishment is strangulation. 257.1c—If anyone is killed, all those taking part in the crime are decapitated. COMMENTARY: It is the act of breaking prison that is punished.Those who break prison need not have succeeded in escaping. SUBCOMMENTARY: Criminals who personally are in prison are murderers and members of wicked gangs. If they act together to break prison, the punishment is life exile at a distance of 3,000 Ii. If in doing so anyone is wounded or if the prisoner is under a death penalty, the punishment is strangulation. The punishments are for principal and accessories.49 If anyone is killed, all those taking part in the crime are decapitated, and no distinction is made between principal and accessories. The commentary states: "It is the act of breaking prison that is punished. Those who break prison need not have succeeded in escaping."This means that where persons use strength or force to break prison and free prisoners, it is not necessary that they succeed in escaping for there to be punishment under this article. [9a] ARTICLE: 257.2a—Whoever helps a prisoner escape by stealth receives the same punishment as the prisoner. COMMENTARY: That is, other persons, relatives, etc. ARTICLE: 257.2b—If though helped by stealth the prisoner does not escape, the punishment is reduced two degrees. 257.2c—If as a result, anyone is killed or wounded, the law on breaking prison is followed. [47] SUBCOMMENTARY: . . .This means that if a person stealthily helps a prisoner who is under a death sentence, the person is punished capitally. If the prisoner is under a sentence of life exile, then the person is punished by life exile, and so forth. Even those who are allowed mutually to conceal each other's crime are not permitted stealthily to help a criminal escape.50 Therefore the commentary states: "That is, other persons, relatives, etc." . . . 49

VoI. i, p. 225, Article 42, punishes accessories one degree less than principals. "There was a general obligation underT'ang law to report criminal offenses, on which see the

Article 251

255

If though helped by stealth the prisoner does not escape, the punishment is reduced two degrees refers to where the scheme stealthily to help the prisoner escape is being carried out, yet he does not leave the prison, the punishment is reduced two degrees.This means that where a prisoner under the death sentence does not succeed in escaping, those who stealthily helped him are punished by three years of penal servitude. If the prisoner is under a sentence of life exile, they are punished by two years of penal servitude, and so forth. . . . QUERY: Suppose one of a group of men ranging from grandfathers in the male line through grandsons in the male line are in prison and one of the others of the group is killed in helping him to break out. Or, if in stealthily helping him to escape, another person not of the group is mistakenly killed or wounded. What is the punishment in each case? REPLY: According to the article: "All cases of breaking prison are punished by life exile at a distance of 3,000 Ii. If in doing so anyone is wounded or if the prisoner is under a death sentence, the punishment is strangulation. If anyone is killed, all those taking part in the crime are decapitated." The meaning of the article is basically concerned with another person (i.e., a bystander, someone not involved in the break) being killed or wounded. If through error one of those who is helping the prisoner break out is killed or wounded, the punishment is limited to that of the prisoner. [9b] If a father or paternal grandfather is mistakenly killed by a son or grandson in the male line, the punishment for that crime is heavier than for breaking prison. Since the person was killed in error, the punishment follows the law on killing by mistake.51 The article below states: "Cases of accidentally killing or wounding a person because of a robbery are punished as for killing or wounding in an affray."52 Where punishment reaches the death penalty, life exile with added labor is substituted. Thus the crime of stealthily helping a prisoner to break out of prison is of the same type as those resulting from robbery. And where there is an accident they are not treated differently. Where the relevant law on killing or wounding by error is punished more lighdy than this one on stealthily helping a prisoner break out where the prisoner does not escape, then the heavier punishment is sentenced. FURTHER QUERY: Suppose a person helps a prisoner to escape by stealth and they are pursued by men to arrest them. The person abandons the prisoner and runs away. Later, in resisting arrest, someone is killed or wounded. Is the punishment the same as for breaking prison or not?

section below on Judgment and Prison. However, close relatives were exempted from this rule. See Vol. i, p. 246, Article 46. "See Article 329 below.The punishment is life exile at a distance of 3,000 Ii. 52 See Article 289 below. The punishment is strangulation.

256

Article 258

REPLY: In the article below: "Where a robbery by stealth is discovered, the person abandons the goods and runs away. But because of resisting arrest. . ." is of the same type as this.53 The crimes are connected, but the robbery was not by force. Here a person has helped a prisoner escape by stealth but abandons him and runs away. It is reasonable that this is the same as "where a robbery by stealth is discovered, the person abandons the goods and runs away." So the punishment can only be that for resisting arrest, and not that for breaking prison. 34

Article 258 Seizing Hostages in order To Circumvent the Law [10a] ARTICLE: 258.1—All cases where hostages are seized in order to circumvent the law punish all the criminals by decapitation. 258.2—If any official who is in control of the area or the head of the neighborhood security group ([ssu] Hn H Wt) or the mutual security group (wu [pao] S ^ ) 5 5 has knowledge of or has seen such a crime and avoids attacking those who are holding the hostages, he will be punished by two years of penal servitude. COMMENTARY: 258.3—If the hostage is a relative within the second degree of mourning, or a maternal grandparent, a person need not attack those who are holding the hostages. SUBCOMMENTARY: A man may seize a hostage as a scheme for goods or to avoid punishment. One may scheme for goods refers to paying redemption or avoiding punishment by preventing an attack. Irrespective of the seriousness of the crime for which the law is being circumvented, those who seize the hostages are all punished by decapitation. Any official who is in control of the area refers to the village headman or those in higher positions at the place where the man has been taken hostage, including the heads of the neighborhood security group and the mutual security group. If any of them has knowledge of or has seen such a crime, then they must attack the criminals. If someone is being held hostage for a purpose and no "See Article 282 below.This significant difference is that force was not used. Hence the crime is distinguished from where robbery by force occurs. 54 On resisting arrest, see Article 451 below.The punishment for killing someone while resisting arrest is decapitation 5 'InT'ang times, neighborhood security groups were composed of five families, and five such groups constituted a mutual security group. Five of these latter made up a village or, in a city, a community. Though these groups are referred to in the Chou-Ii, Hsiao Kung-chuan believed that the Sui emperor Wen-ti (r. A.D. 589-604) was the first to give them a police function. See Hsiao Kung-chuan, Rural China: Imperial Control in the Nineteenth Century (Seattle: University of Washington Press, 1960) pp. 25-27.

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257

attack is made, each of these persons is punished by two years of penal servitude. The commentary states: "Where the hostage is a relative within the second degree of mourning, [48] or a maternal grandparent, a person need not attack those who are holding the hostage."This means that where a criminal is holding this kind of relative as a hostage, only this one person need not join in the attack. It does not permit others to avoid taking part in such an attack. Where the hostage is not a relative within the second degree of mourning nor a maternal grandparent and a person does not attack those who are holding them, the punishment is two years of penal servitude.

Article 259 Killing Three Persons in One Family ARTICLE: All cases of killing three persons in one family who have not committed a capital crime, COMMENTARY: Those who are on the same household register or are relatives within the second degree of mourning constitute a family. Even if the killings took place at different times, the crimes receive the same punishment. Where they should be punished together, yet are discovered at different times, they also receive the same punishment. The killing of slaves and personal retainers is not considered killing three persons of a single family. ARTICLE: or of dismembering a person punish all the criminals by decapitation. The criminal's wife and children are punished by life exile at a distance of 2,000 Ii* COMMENTARY: Dismembering someone refers to both killing and dismembering the person. SuBCOMMENTARY:The laws on killing encompass many types of the crime. But the deaths of persons under this article are not concerned with the circumstances. The killing of three persons in a single family who have not committed a capital crime constitutes depravity. If of the three persons killed, one has previously committed a capital crime, it is not depravity. The punishment only follows the law on killing persons. 57 The commentary states: "Those who are on the same household register or are mourning relatives within the second degree constitute a family."Those who are on the same household register are not limited by the degree of relationship. 56

As stated in the subcommentary below, the crime set forth in this article constitutes depravity, the fifth of the ten abominations. See Vol. I, p. 61, Article 6, and the discussion on pp. 17 ff. "Killing people is punished by strangulation. If a knife is used, the punishment is decapitation.

258

Article 260

Those who are within the second degree of mourning relationship are also one family. . . . If after the killing a period of time elapses and then the victim is dismembered, the crime does not constitute depravity. But if a person is intentionally burned to death, or is killed and then burned, even though not stated in the text of the article, the crime is the same as dismemberment. All the criminals are punished by decapitation means that there is no distinction between principal and accessories. . . . QUERY: Suppose a personal retainer or a slave kills three persons of a single family of another man's personal retainers or slaves, or [kills and] dismembers a person. According to the principle, each is considered as a commoner. Does this come under the ten abominations or not? [Ha] REPLY: Even though personal retainers and slaves are different from commoners, yet when they kill three persons and dismember those who are of the same class, no distinction can be made. The crime still constitutes depravity.

Article 260 Paternal Grandparents or Husband Being Killed by Someone ARTICLE: 260.1a—All cases of a person who makes a private settlement with someone who has killed that person's paternal grandparents or parents are punished by life exile at a distance of 3,000 Ii. 260.1b—If the victim was a relative within the second degree of mourning, the punishment is two and one-half years of penal servitude. 260.1c—If the victim was a relative of the third degree of mourning or less, the punishment is progressively reduced one degree. 58 260.Id—Each case is punished as comparable to robbery if the amount of goods received would be punished more heavily under that article.59 260.2—Even where there is no private setdement, if the person knows of the killing of a relative within the second degree of mourning and does not make an accusation to the court within thirty days, the punishment above is reduced two degrees in each case. 58 This refers to mourning relatives of the fourth and fifth degree. So for a fourth-degree mourning relative, the punishment would be one and one-half years of penal servitude, and for a fifth-degree mourning relative, one year of penal servitude. "Robbery is covered in Article 282 below. To equal one year of penal servitude, a person would have to receive goods worth five p'i of silk from the killer or his family. Thereafter the punishment rises one degree for goods worth each further five p'i of silk to a maximum of life exile with added labor for goods worth fifty p'i of silk. The point of being sentenced as comparable to robbery is that the punishment is limited to life exile at a distance of 3,000 /i,so that the death sentence is not possible.

Article 260

259

SUBCOMMENTARY: By law, a person cannot be under the same heaven with someone who has killed that person's paternal grandparents or parents.This would be to have a mind that forgets the greatest pain and to renounce using a spear as one's pillow. 60 . . . [ l i b ; 49] Even if the punishment for making a private setdement is heavier than that for the goods received, nevertheless the value of the amount of illicit goods is calculated, and though the heavier punishment is sentenced, the illicit goods are confiscated by the state. If after the crime is discovered, goods are paid to reach a private settlement, this increases the punishment for the crime. If a collateral relative is the killer and gives goods to make a private agreement, the law on seeking to have a matter favorably carried out is followed, which, following the Miscellaneous Articles, punishes the crime for illicit goods obtained through malfeasance, reduced five degrees. 61 The illicit goods are confiscated by the state. Where both the killer and the victim are a person's mourning relatives, if the killer is a more distant relative than the victim, an accusation to the court must be made. If the killer is the closer relative, no accusation to the court must be made. Where the killer and the victim have the same mourning relationship with a person, and the killer is of a lower generation or of the same generation but younger than the victim, an accusation to the court must be made. If the killer is of a higher generation or of the same generation but older than the victim, no accusation to the court need be made. For those who are allowed mutual concealment, 62 if a person's distant relative kills a closer one, or if a person whose mourning relationship is due to affection 63 kills someone with whom a person has a formal mourning relationship, or if a relative of a lower generation or of the same generation but younger kills a relative of a higher generation or of the same generation but older, any accusation that may be made to the court is at the person's discretion. If the person does not make an accusation, he will not be punished. If a paternal grandparent or parent is killed, the crime must be repaid by "Sharing the same heaven with the killer of one's father and using the spear as a pillow are paraphrases of language taken from the Book of Rites. 6l See Article 137 above. The article specifies that punishment is determined by Article 389 below, dealing with illicit goods obtained through malfeasance, which is what is described here. There the least punishment is twenty blows with the light stick for goods worth one p'i of silk, rising to a maximum punishment of three years of penal servitude. But this article reduces that punishment by five degrees so that the most punishment that could be sentenced would be one hundred blows with the heavy stick. Perhaps more importantly, Article 389 below, specifies that the person who offers the illicit goods as a bribe receives the same punishment as the receiver. K SeeVol. i, p. 246, Article 46. Certain groups of people were allowed to conceal each other's crimes, that is, they did not have to make an accusation of them to the court. "According to Vol. I, p. 260, Article 52, persons whose mourning relationship was due to affection were the wife's and concubine's for their husband, the concubine's for her husband's eldest son, and the wife for her parents-in-law.

260

Article 260

death. Even if there is an amnesty and the person is removed from the community to escape his enemies, 64 still the person will continue to be an enemy of the victim's sons and grandsons in the male line. Therefore the person is ordered to be removed from the community. So if the sons and grandsons in the male hne know of the crime and do not make an accusation to the court, their punishment follows the law on making a private settlement and not making an accusation to the court. QUERY: If a member of the family of a supervisory official is killed by someone in the area under his control and because of this the official takes a bribe and makes a private setdement, how is this punished? REPLY: According to the law, if a supervisory official knows of a crime within the area under his control and does not begin an investigation (chu-ho ifi|$J), he receives the same punishment as the criminal, reduced three degrees.65 How much more serious is it, then, if a killing occurs within the area under his control and the victim is one of his own relatives! First, it violates an article of the Code. Second, it perverts the meaning of kinship. If he takes [12a] goods worth one p'i of silk or more, then these are illicit goods that subvert the law.66 If the crime involving the illicit goods is punished more lighdy or if the supervisory official did not take any goods, then he gets the punishment for making a private settlement in each case. Whichever is the heavier punishment for the two crimes is sentenced in each case. FURTHER QUERY: Suppose a personal retainer's or slave's master is killed by another man and they make a private setdement by taking a bribe and not making an accusation to the court. What should be the punishment for this crime? REPLY: Slaves and personal retainers are bound to their masters. If their master is killed by someone, this is the greatest harm that can be done. If they accept goods and do not make an accusation to the court, since the laws have no section that rules on this crime, it must be punished by analogy.67 How can they alone benefit from there being no article in the Code on this crime? Indeed, slaves and personal retainers must conceal their master's crimes. 68 If they make a private setdement instead and do not make an accusation to the court, they receive the same punishment as sons or grandsons in the male line.

"See Article 265 below. 65 See Article 361 below. "Characterizing this action as subverting the law makes it very serious indeed. On the crime, see Article 138 above.Vol. I, p. 120, Article 18, specifies that officials who commit this crime also are disenrolled. "Analogy is dealt with in Vol. I, p. 255, Article 50. See also the discussion in Vol. I, pp. 37-38. M See Vol. I, p. 246, Article 46.

C H A P T E R XVIII

[la; 49] [50]

Article 261 Pushing an Object into a Person's Ears or Nose

ARTICLE: 261.1—AJl cases of pushing an object into a person's ears, nose, or other body openings that cause harm are punished by eighty blows with the heavy stick. 261.2—Intentionally throwing away a person's clothing or articles of food or drink with the result that the person is killed or injured is punished as for killing or wounding in an affray in each case.1 SUBCOMMENTARY: The ears, nose, and other body openings are all important areas. If someone improperly pushes an object into these places and causes harm to another person, the punishment is eighty blows with the heavy stick. If in the relevant article the punishment for beating is heavier, then the law on beating is followed.2 If the beating is not such as to be a crime, then the punishment does not follow that law. As for throwing away people's clothing or articles of food or drink, this means throwing away a person's clothing during the cold months or such actions as secretly letting go of the mounting stand or reins when someone has gotten on the stand to mount a horse, or throwing away the food and drink of a person who is hungry or thirsty. If because of these reasons or because of pushing an object into a person's body openings the person is wounded or killed, the punishment is as for kilhng or wounding in an affray. If a person of non-kin status is killed, or a relative of a higher generation or of the same generation but older is wounded, this requires the death penalty. Where a person (1) kills a relative of a lower generation or of the same generation but younger, or a member of an inferior class, even though this does not require the death penalty, or (2) wounds a relative of a lower generation or of the same generation but older, or a person of high position, or a member of an inferior class—though there are differences in each of these crimes, still the punishments are for the relevant crimes following the laws [lb] on crimes committed during an affray. Therefore it is stated that the punishments are for killing or wounding in an affray.

'Crimes connected with beating and injuring others are covered in Articles 302-308 below. In Article 302, a wound is defined as blood appearing because of an attack. Here, however, it is clear that blood need not appear. Therefore I have translated shang fj|, "wound," as injure in this context. 2 See Article 302 below and those immediately following it. The various circumstances that bring the crime under different ones of these articles are described below.

262

Article 262

ARTICLE: 261.3—Causing a person to panic, or forcing them, or putting the person in fear that results in their death or their being wounded, according to the circumstances, are punished as for intentionally killing or wounding, 3 doing so in an affray,4 or doing so in play.3 SUBCOMMENTARY: Causing a person to panic means to cause the person to move through panic or pushing against the person so as to cause fear and the person is killed or wounded. If a person is walking along a dangerous cliff or the banks of a river and someone intentionally causes that person to panic or pushes the person so that the person falls and is injured or killed, the law on intentionally killing or wounding is followed. If the person panics or is pushed against because of an affray and is killed or wounded, the law on killing or wounding in an affray is followed. If the person panics or is pushed against because of play and is killed or wounded, the law on killing or wounding in an affray is followed. Crimes of this type all are concerned with the circumstances under which they are committed and are punished according to the laws on intentionally killing or wounding, doing so in an affray, or doing so in play.

Article 262 Making or Keeping Ku Poison ARTICLE: 262.1—All cases of making or keeping ku poison or of ordering someone else to make it are punished by strangulation.6 COMMENTARY: This means to complete the preparation of the ku poison so that it can be used to harm others. ARTICLE: 262.2—The members of the household who dwell together 7 with the person who makes or keeps ku poison, even though they do not know the circumstances, are punished by life exile at a distance of 3,000 Ii. If the village headman COMMENTARY: The ward headman and the hamlet headman receive the same punishment. 'See Article 306 below. For intentional killing, the punishment is decapitation, and for intentional wounding, life exile at a distance of 3,000 Ii. For killing in an affray, the punishment is strangulation. •"Article 303 below punishes wounding someone in an affray by one year of penal servitude. 5 Article 338 below punishes killing or wounding a person in play by three years of penal servitude and ninety blows with the heavy stick, respectively. 'Making ku poison comes under depravity, the fifth of the ten abominations. See Vol. i, p. 61, Article 6. particularly the references in note 130. 7 On dwelling together, see Vol. I, p. 246, Article 46

Article 262

263

ARTICLE: knows the circumstances and does not make an investigation, all of them are punished by life exile at a distance of 3,000 Ii. SuBCOMMENTARV.There are many kinds of ku poison, so that they cannot all be described. This crime is concerned with black magic so that the details are not completely known. O n e method is to put various kinds [2a] of insects, reptiles, etc. into a pot. They will eat each other, and when they have done so, the one that remains is the ku. If the one that remains is a snake, then it is the snake type o£ku. Make means to make it oneself. Keep means so as to give it to others in order that it can be used to harm people. . . . If a person keeps such things as cat de­ mons, or directs others to do so, the punishment is strangulation in both cases. Where persons plot together to make ku poison, since the article does not speak of "all," there are distinctions between the principal and accessories.8 Those who dwell together with persons who make or keep ku poison are punished irrespective of whether they are on the same household register. . . . [51] QUERY: Though the text of the article speaks of village, ward, and hamlet headmen being punished, there is no mention of the prefecture and county levels of government in the law. If prefecture and country officials know the circumstances of the crime and do not investigate, are they to be punished? REPLY: Persons such as village headmen are close to the people that they govern, Uve in the same vicinity, and have better knowledge of them. Prefecture and county officials are farther away and must govern a greater number of households. For this reason the article has no section dealing with them. But if they know the circumstances of the crime and do not investigate, following the Articles on Assaults and Accusations regarding supervisory officials who know of a crime committed in the area under their control and do not make an investigation, they will be punished three degrees less than the criminal. 9 A censorate official10 is punished two degrees less than the criminal. [2b] ARTICLE: 262.3—In cases of making or keeping ku poison, even though there be an amnesty, those who dwell together with the criminal as well as those who ordered the making of the poison will be exiled for life to 3,000 Ii. COMMENTARY: Those who are eighty years of age or more, ten years of age or less, or are incapacitated and have no family members to share their life exile are released and exempted from punishment. 8

See Vol. I, p. 225, Article 42. Under this article, accessories receive one degree less punishment than the principal, which would not be true if the word "all" were used in connection with the punishment. 'See Article 361 below, and the chapter on criminal procedure at the county level. 10 On the translation of this term, see Chapter 11, η 30.

264

Article 262

ARTICLE: 262.4—If a person uses ku poison to poison another person of the group that dwells together, neither the victim nor the victim's parents wife, concubines, or sons or grandsons in the male line will be punished if they did not know the circumstances of making the ku poison. SUBCOMMENTARY: . . .The commentary states: "Those who are eighty years of age or more, ten years of age or less, or are incapacitated and have no family members to share their life exile are released and exempted from punishment." According to this, the aged, the young, and the incapacitated, even if they commit the crime themselves, will still be exempted from being sent into life exile.11 Now where among those who dwell together and live in common there are family members who could share the criminal's life exile, then the criminal is sent to life exile. But where there are no family members who dwell together with the criminal to go together with the criminal into life exile, the aged, the young, and the incapacitated could not survive by themselves. Therefore they are released and exempted from punishment. . . . QUERY: If the parents of a victim do not know the circumstances, they are released and exempted from punishment. Suppose the majority of a person's brothers of the same parents make a ku and use it to poison the minority. If the parents do not know the circumstances, are they exempted from punishment or not? REPLY:The family members of those who make ku poison are punished by life exile even if there is an amnesty. Since there is concern that they may have been involved through knowing the circumstances of the crime, the general principle does not allow them to remain at home. 12 [3a] If ku poison is used to poison one of the group who live together, the victim's parents, wife, concubines, sons, and grandsons in the male line, if they did not know the circumstances, are not punished. Even though brothers poison each other, there is no ruling by which the victim's and his own parents are not exempted from punishment. But if they do not know the circumstances, they are pardoned. FURTHER QuERY:The aged, the young, and the disabled, if they have no household member to share their life exile, are released and exempted from punishment. Where the household has no person of commoner status but does have a personal retainer or a slave, is this person considered a household member who could share their life exile or not? REPLY: Personal retainers can be transferred to serve others. Slaves are comparable to property and goods. In the majority of articles they are not treated the "Vol.i,p. 169,Article 30,exempts these classes of persons from punishment fora wide variety of crimes or allows them to make redemption by payment of copper. 12 SeeVol. i, p. 160, Article 28.

Article 263

265

same as commoners. So they are not an example of household members who can share life exile. FURTHER QUERY: According to the Code, the confession of crimes that have not yet been discovered will be pardoned. 13 If in a household that makes or keeps ku poison a person—whether of commoner or inferior status—confesses when it has been made and is kept, is there exemption from punishment or not? [52] REPLY: The basic idea of exemption from punishment for confessing a crime is to allow self-renewal of the criminal. Such self-renewal is difficult to achieve where the ku poison has already been made. So confession is analogous to an amnesty where the criminals are still sent into life exile.

Article 263 Treating Persons with Poisonous Drugs [3b] ARTICLE: 263.1a—All cases of treating persons with poisonous drugs or of selling them are punished by strangulation. CoMMENTARY:This refers to poisonous drugs that are able to kill a person. Even though poisonous drugs can be used to cure illness, the buyer uses the drug to poison someone. 263. Ib—If the seller does not know the circumstances, he is not punished. ARTICLE: 263.1c—If the drugs have been sold but not yet used, the punishment is life exile at a distance of 2,000 Ii. SUBCOMMENTARY: AU cases of using poisonous drugs to treat a person refer to such things as bird poison, 14 poison ivy, "bird's head," and seed aconite—drugs that can be used to kill people. Both the buyer who is going to use them to poison a person as well as the seller if he knows the circumstances are punished by strangulation. . . . If the seller does not know of the circumstances of the drugs being used to poison a person, he is not punished. Where the drugs have been sold but not yet used refers to where there is doubt as to whether the buyer of the poisonous drugs is going to use them to poison a person. Where the seller knows the basic intent of the buyer, even if the drugs have not yet been used the punishment is life exile at a distance of 2,000 Ii. "See Vol. I, p. 201, Article 37. "Wang Yuan-hang's Explanation of the Text says that the secretary bird eats snakes and is thus poisonous. Decoctions made of its wings can poison people.The other drugs are obvious; aconite in particular affects the heart and the respiratory system.

266

Article 263

QUERY: Using poisonous drugs to treat a person is punished by strangulation. But do the punishments for the crime when it involves persons of different generations, age, or social classes follow the article here or not? REPLY: The article is reduced to the essential points of the crime and so refers only to commoners. But where the crime involves persons of different generations, age, or social status, it has different degrees of severity. Where the crime is against a relative of a higher generation or of the same generation but older, or against a person of higher social status, the punishment follows the law on plotting to kill where the victim has already been killed. If the crime is against a relative of a lower generation or of the same generation but younger, or against a person of an inferior class, then the punishment is comparable to plotting to kill where the victim has already been killed. Where the drug has been used but the victim does not die, the punishment in both cases follows the law on plotting to kill where the victim has already been wounded. 13 ARTICLE: 263.2a—If dried meat has spoiled and has already caused a person to become sick, the rest must be immediately burned.Violations are punished by ninety blows with the heavy stick. 263.2b)—If it is intentionally [4a] given to someone to eat, or is sold, and causes a person to become sick, the punishment is one year of penal servitude. 263.2c—If for these reasons death results, the punishment is strangulation. 263.2d—If a person eats it of his own volition and death results, the punishment follows the law on accidentally killing a person. 16 COMMENTARY: 263.2e—Where the spoiled dried meat is stolen and eaten, there is no punishment. SUBCOMMENTARY: . . .The remainder must be immediately burned for fear of it being eaten again. . . . Where it is known that a person previously has eaten it and gotten sick, yet the dried meat is intentionally given to anotherperson to eat . . . the punishment is one year of penal servitude. . . . If a person eats it himself and death results refers to where the remainder of the meat has not been immediately burned. Even though it has not been given to anyone, where a person eats it of his own volition and death results, the l5 See Article 256 above. The punishment for actually killing the person is decapitation, while a plot in itself as seen below in the subcommentary is punished by strangulation. Vol. i, p. 262, Article 53, limits punishments that are sentenced as comparable to life exile at a distance of 3,000 /i.Where the victim does not die and the law considers that he has been wounded, the punishments would be strangulation and life exile again. ''Article 339 provides that in such cases, the person may redeem the punishment for the crime by payment of copper. It is this amount of copper that is referred to below in the subcommentary as going to the victim's family.

Article 264

267

punishment follows the law on accidental death. 17 The amount of copper paid goes to the dead man's family. The commentary states: "Where the spoiled dried meat is stolen and eaten, there is no punishment/'This means that where a person steals and eats the dried meat and death or injury results, the owner of the dried meat is not punished for causing the death. However, he is punished for not immediately burning it. Where a person with malicious intent intentionally gives the dried meat to eat to a relative of a higher generation or of the same generation but older, intending to cause death, this also is punished as comparable to plotting to kill. Where the plot is against a person of a lower generation or inferior social class and results in death, the punishment follows the law on intentional killing.18

Article 264 [53]

Hatred and Sorcery™

ARTICLE: 264.Ia—All cases of using magic, summoning demons, making written charms, or cursing by means of spells because of a desire to kill a person are punished as for plotting to kill, reduced two degrees in each case.20 COMMENTARY: 264.1b—Where the crime is against a relative of a higher generation or of the same generation but older of the second degree of mourning or parents-in-law, the husband, or the husband's parents or paternal grandparents, there is no reduction of punishment. SUBCOMMENTARY: Where because of hatred for a particular person magic is used or demons are summoned, there are many methods, and they cannot be described in detail. Magic comprises such acts as drawing likenesses, or carving images and stabbing the heart, putting out the eyes, or tying the hands and feet of the likenesses or images. Demons refer to summoning demons or wrongly practicing "ways of the left."Cursing is to use spells.These are in order to kill a person. All of these crimes are punished as for plotting to kill, reduced two degrees. "See Article 339 below. Accident is defined as a happening where eyes and ears could not have perceived such a result, and where thought and planning could not have prevented it. Such crimes may be redeemed by payment of copper. Vol. I, p. 59, Article 5, sets the amount of copper needed to redeem either of the death penalties as 120 chin. ,8 See Articles 320-322 below. Punishments differed widely depending upon the relationship and social status of the criminal and the victim. "This crime comes under the depravity, the fifth of the ten abominations. See Vol. i, p. 61, Article 6. Note particularly the articles referred to there by Feng/Shryock and Williams. The word sorcery in the title is made up of two characters, which refer to magic on the one hand and demons on the other. I believe that the combination is meant to be general and so have called the two sorcery. 20 SeC Article 256 above. Reduced two degrees, the punishment ranges from one to three years of penal servitude.

268

Article 264

Where the crime is against a relative of a higher generation or of the same generation but older of the second degree of mourning, or against parents-inlaw, the husband, or the husband's parents or paternal grandparents, there is no reduction of punishment, but following the article above, all the criminals are punished by decapitation. 21 ARTICLE: 2 6 4 . 1 C — I f death occurs as a result, the punishment follows the relevant law on killing in each case. 264.2a—If the crime is committed in order to cause illness or pain to a person, the punishment is reduced a further two degrees below that above in each case. COMMENTARY: 264.2b—If the crime is committed by a son or grandson in the male line against his paternal grandparents or parents, or by a personal retainer or slave against their master, there is no reduction of punishment. SUBCOMMENTARY: . . . Further reduction of punishment means that where the crime is committed against relatives of the third degree of mourning or less as well as persons of non-kin status—but not maternal grandparents—-the punishment is as for [5a] plotting to kill, reduced two degrees, thus in all being a reduction of four degrees of punishment. The commentary states: "Where this crime is committed by a son or grandson in the male line against his paternal grandparents or parents, or by a personal retainer or slave against their master, there is no reduction of punishment." This means that if the victim is a relative of the second degree of mourning of a higher generation or the same generation but older, or the husband, or the husband's paternal grandparents or parents,22 the punishment is reduced only two degrees. As for those who are paternal grandparents, parents, or have a less close relationship, even if there is only an intent to cause illness or pain, this is punished the same as under the law on plotting to kill—all the criminals are decapitated. 23 This crime is not treated the same as those that have their punishment reduced. QUERY: AS for cursing with spells a relative of a higher generation or the same generation but older within the third degree of mourning, or who is of a higher generation of the fourth degree of mourning with intent to cause illness or pain, it is not yet known whether this crime comes under the ten abominations or not? REPLY: The law on illness or pain considers these crimes to be the same as beating and wounding. A plot to beat a relative of a higher generation or of the 2,

This refers to Article 253 above, which specifies which relatives are included. -The characters fu-mu X S should be inserted here following the KHCPTS edition. a See Article 256 above.

Article 265

269

same generation but older within the third degree of mourning, or a relative of a higher generation of the fourth degree of mourning of the criminal, does not come under the ten abominations. But where the victim has already been caused to become ill or caused pain, it is reasonable that the crime be punished the same as under the law on beating. 24 Furthermore, it is considered to be discord.25 ARTICLE: 264.3—Using magic or spells only to gain the doting love of the paternal grandparents, parents, or master is punished by life exile at a distance of 2,000 Ii. 264 A—Where the magic or spells are directed toward the emperor, all the criminals are punished by decapitation. SUBCOMMENTARY: Where a son or grandson in the male line uses magic, spells, or written charms to gain the doting love of his paternal grandparents or parents, or a personal retainer or slave uses magic, spells, or written charms in order to gain the doting love of their master, the punishment is life exile at a distance of 2,000 Ii. Where the magic and spells are directed toward the emperor, there is no distinction between [54] principal and accessories; all are punished by decapitation. Even if the magic, spells, or written charms are only [5b] used to gain his doting love, still this is a crime of the most extreme seriousness.The punishment is heavier than for stealing the imperial clothing or other articles since it comes under the ten abominations. 26

Article 265 Killing a Person and Being Removed from the Community ARTICLE: 265.1a—All cases of killing a person where the punishment is capital and who because of an amnesty are exempted from punishment, remove the criminal one thousand Ii from the community. 265.1b—Artisan and musician bondsmen, general bondsmen, as well as official bondsmen, slaves, and musicians of the Court of Imperial Sacrifices, even though they are removed from the community, retain their basic status in each case. COMMENTARY: 265.1C—Personal retainers and slaves are sold or transferred to serve other persons at a distance of 1,000 Ii. 24

See Articles 329 and 334 below. This is the eighth of the ten abominations. See Vol., i, p. 61, Article 6. 26 Here number six, called great irreverence.Vol. i, p. 257, Article 51, specifies this crime to be of the same seriousness when it involves the emperor's paternal grandmother, mother, and empress as well. 23

270

Article 265

SUBCOMMENTARY: Cases of those who kill a person where the punishment is capital and who because of an amnesty are exempted from punishment are removed one thousand Ii from the community are those where the victim has a family member who is a relative within the second degree of mourning and the criminal as a result is removed one thousand H from the community to make a household. 27 Where there is a special imperial edict that exempts a criminal from the death penalty, the general principle on amnesties is also followed. . . . ARTICLE: 265.1d—If a large group (ch'iin tang ffiWO together kill a person, only the one who strikes the blow (hsia-shou ~~f·^·) and the chief principal (t'oushou Ul'U') are removed. 265.2a—If the victim has no relatives within the second degree of mourning, or they are already separated from the criminal by 1,000 Ii, or the criminal is a student of astronomy who has already completed his study, or where a woman has committed the crime or [6a] the criminal has killed another person's personal retainer or slave—such cases do not come within the limits of those who are removed from the community. COMMENTARY: 265.2b—Personal retainers and slaves who kill each other are treated the same. ARTICLE: 265.3—Violations are punished by two years of penal servitude. SUBCOMMENTARY: A large group together kills a person refers to a plot to kill. The person who formulates the plan is punished by decapitation. Accessories and those who aided in the crime are punished by strangulation. Of those who took part in the plot and shared in the assault, the one who struck the heaviest blow receives the heaviest punishment—strangulation.Therefore the article states: "Only the one who strikes the blow and the chief principal are removed from the community." This means that even though a person did not strike a blow, if that person was the original plotter who put forward the idea, or used coercion and physical strength to cause other persons to carry out the killing, he is removed from the community. Even though a person was an accessory who aided in the crime and who according to the article would be punished capitally, if he did not strike a blow when the group together killed the victim, he is not removed from the community. . . . Where a woman has committed the crime refers to women not having fixed abodes but rather living wherever their husbands do. . . .

27 VoI. I, p. 147, Article 24, specifies that in these cases the wife and concubines follow their husband. Males in the ascending and descending lines through the fourth generation may do so if they wish.

Article 266

271

Article 266 Destruction of a Corpse [6b] ARTICLE: 266.1a—All cases of destruction of a corpse or of throwing a corpse into water are punished as for killing in an affray, reduced one degree.28 COMMENTARY: Destruction refers to such actions as burning or dismembering the corpse. 266. Ib—If the corpse is that of a relative within the fifth degree of mourning, there is no reduction of punishment. SUBCOMMENTARY: Destruction of a corpse includes such actions as dismembering the body, cutting up the skeleton, or burning it. Any of these actions as well as throwing the corpse into water are punished as for killing in an affray, reduced one degree. This means that where the punishment is death, it [55] is reduced one degree [to life exile]. Where the punishment is life exile, it is reduced one degree [to three years of penal servitude]. The commentary states: "Where the corpse is that of a relative within the fifth degree of mourning, there is no reduction of punishment." This refers to the destruction of the corpse or the throwing of it into water being punished by decapitation, which does not come within the rules for reduction of punishment. ARTICLE: 266.2—If the corpse is thrown into the water but not lost, or the hair is torn out, or it is damaged, there is a further reduction of one degree of punishment in each case. 266.3—If this crime is committed by a son or grandson in the male line against a paternal grandparent or parent, or by a personal retainer or slave against their master, there is no reduction of punishment. COMMENTARY: 266.4—All of the above crimes refer to where there is malicious intent. SUBCOMMENTARY: . . . Tearing out the hair refers to throwing it away. Damage refers to intentionally damaging the corpse irrespective of how much damage there is, but does not include dismemberment. A further reduction of one degree of punishment in each case means that where the crime has been committed against a person of non-kin status, the punishment is reduced two degrees below that for killing in an affray in each case. Where the corpse was that of a relative of a higher generation or of the 28 See Articles 306 and 329—333 below. Sentencing this crime under these articles brings it under the ten abominations if the crime involves relatives. Depending upon the closeness of the relationship, either number four, contumacy, or number eight, discord, is applicable. See Vol. i, p. 61, Article 6.

272

Article 267

same generation but older than the criminal within the fifth degree of mourning, the punishment is reduced only one degree. Where the corpse was that of a relative of a higher generation or of the same generation or older than the criminal within the third degree of mourning or a relative of a higher generation than the criminal within the fourth degree of mourning, the crime then comes under discord. Where these crimes are committed by a son or grandson in the male line against a paternal grandparent or parent, or by a personal retainer or slave against their master, there is no reduction of punishment, but [7a] all are punished the same as under the law on killing in an affray. Where any of these crimes is committed by a son or grandson in the male line, it comes under contumacy, and administration of punishment is not delayed.29 The commentary states: "All of the above crimes refer to where there is malicious intent." . . .Where there is no malicious intent refers to a person wanting 30 to have his corpse cremated, or if, following the deceased's last wishes, the body is put into water. As well, where the corpse has been encofHned far away from home and the bones are carried back to the native village, there is no prosecution.

Article 267 Digging in the Earth and Finding a Corpse3^ ARTICLE: 267.1a—All cases of digging in the earth and finding a corpse without reinterring it, or of violating a tomb by burning the inner and outer coffins while smoking out foxes from a burial ground, are punished by two years of penal servitude.32 267.1b—If a corpse is burned, the punishment is three years of penal servitude. 267.2a—If any of these crimes is committed against a relative of a higher generation or of the same generation within the fifth degree of mourning, the punishment is progressively increased one degree. 2, One of the differences between crimes classified under one of the ten abominations and others is that punishment is administered immediately after the case has been decided. Thus the criminal could not benefit from, for instance, periodic amnesties to escape punishment or have it reduced. See Vol. i, p. 15, particularly note l.The punishment varies depending upon whether there was any mourning relationship between the criminal and the person whose corpse was the object of the crime, and if so, how close that relationship was. T h e character tzu £=j should be inserted here following the SPTK edition. 31 A partial translation of this article, together with an illuminating discussion of burial, is to be found in Herbert Franke, "Archaologie und Geschichtsbewusstsein in China," Archaologie und Geschichtsbewusstsein, 3 (1982): 69-83. 32 For those who have not studied Chinese folklore, the fear and hatred that the Chinese have of foxes is not simply rational—here that foxes might eat the corpse—but also irrational—that foxes are demons in the shape of animals and are hostile to humankind. In some instances, they take the form of beautiful women and through sexual intercourse absorb their male victim's yang essence, thereby causing his death. The closest equivalent in the West would be the vampire.

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267. 2b—If these crimes are committed against a relative of a lower generation or of the same generation but younger, the punishment is progressively decreased one degree below that for a person of nonkin status. SUBCOMMENTARY: If because of digging in the earth a corpse is found, regardless of whether it is a new or old burial, if it not immediately reinterred but is caused to be exposed to the weather. . . . If the crime is committed against a relative of a higher generation or of the same generation within the fifth degree of mourning, the punishment is two years of penal servitude. The punishment rises progressively until for relatives of a higher generation or of the same generation but older within the second degree of mourning, the punishment is life exile at a distance of 2,500 Ii. If these crimes are committed against a relative of a lower generation or of the same generation but younger, the punishment is progressively decreased one degree below that for a person of nonkin status.This means that the punishment of two years of penal servitude is reduced to one and one-half years when the crime is committed against relatives of the fifth degree of mourning, to one year for relatives of the fourth degree of mourning, to one hundred blows with the heavy stick for relatives of the third degree of mourning, and to ninety blows with the heavy stick for relatives within the second degree of mourning. If the corpse that is found when digging in the earth is recognizable as that of a relative of a higher generation or of the same generation but older within the fifth degree of mourning and the corpse is not then reinterred, here also the punishment increases progressively from two years of penal servitude. For such relatives of a lower generation or of the same generation but younger, the punishment is progressively decreased one degree. In each case the punishment follows the law on burning coffins. For burning a corpse, the punishment is three years of penal servitude. Where this crime is committed against a relative of a higher generation or of the same generation but older within the fifth degree of mourning, in each case the punishment is progressively increased one degree. This means that it increases one degree from three [56] years of penal servitude. If the corpse of a relative of a higher generation or of the same generation but older of the third degree of mourning is burned, the punishment is life exile at a distance of 3,000 Ii. Even if the corpse is that of a second-degree mourning relative, the punishment cannot be increased to the death penalty.33 If the crime is committed against the corpse of a relative of a lower generation or of the same generation but younger, the punishment is progressively decreased one degree.This means that if the crime is committed against the corpse of a relative who is of a lower generation or of the same generation but younger of the fifth degree of mourning, the punishment is reduced one degree below that for a person of nonkin status to two and one-half years of penal servitude. 33

VoI. I, p. 268, Article 56, specifies that increases of punishment cannot reach the death penalty unless the specific article provides for such an increase.

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The punishment is progressively decreased, but that for a relative of a lower generation or of the same generation but younger of the second degree of mourning is still one year of penal servitude. QUERY: In the article below on the violation of tombs, the punishment is life exile with added labor. The commentary states: "Summoning the spirit and burying a coffin is also punished." 34 The text here punishes burning the corpse with three years of penal servitude. It is not yet known if summoning the spirit and burying a coffin receives the same punishment or not? REPLY: According to the article, summoning the spirit and burying a coffin are punished the same as violating a tomb where there is a corpse. This article has a provision on burning the coffins and furthermore punishes the burning of a corpse. Summoning the spirit and burying a coffin is used where no corpse exists, so the maximum punishment must be that of the law on burning an inner and outer coffin. It cannot be the same punishment as that for burning a corpse. ARTICLE: 267.3a—If the crime of violating a tomb while smoking out foxes is committed by a son or grandson in the male line against his paternal grandparents or parents, or by a personal retainer or slave against their master, the punishment is [8a] two years of penal servitude. 267.3b)—If the inner and outer coffins are burned, the punishment is life exile at a distance of 3,000 Ii. 267.3c—If the corpse is burned, the punishment is strangulation. SUBCOMMENTARY: Reference to sons and grandsons in the male line with regard to their paternal grandparents and parents also includes great and great-great grandparents in the male line. Personal retainers and slaves include personal servants35 and female retainers; the punishment is the same. . . .

Article 268 Making Magical Inscriptions and Magical Incantations ARTICLE: 268.1a—All cases of making magical inscriptions and magical incantations are punished by strangulation. COMMENTARY: Make means to oneself write or speak about good and bad forM This is a quote from the commentary to Article 277 below. It refers to a burial where the body of the deceased cannot be recovered because of such reasons as having died a great distance from home.The spirit of the person is summoned and then buried in an empty coffin. 35 WangYuan-liang, Explanation of the Text states that personal servants (sui-shen ^S. Mr) refer to those who have signed an agreement to hire themselves out for a fixed period of time. In so doing they apparently lose their status as commoners during that period of hire.

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tune or words attributed to spirits. Or, to speak wildly about lucky or unlucky portents in a way that involves not being a proper subject of the emperor. SUBCOMMENTARY: Making magical inscriptions or magical incantations refers to completing inscriptions about abnormal powers and falsely making up the words of spirits. Good fortune means to speak wildly about others or oneself having received favorable portents. Bad fortune refers to falsely speaking about the country's going to suffer bad or evil fortune. Such persons practice astrology and draw pictures on the earth, perversely speak about disasters and good omens, and wildly prognosticate good and evil. All of these cases involve not being a proper subject of the emperor and are punished by strangulation. ARTICLE: 268.1b—Those who propagate and distribute these inscriptions and incantations to confuse a group of people receive the same punishment. COMMENTARY: Propagate means to propagate by speaking. Distribute means to distribute in writing. ARTICLE: 2 6 8 . 1 C — I f not a full group 36 of people is confused, the punishment is life exile at a distance of 3,000 Ii. 268.1d—If the magical inscriptions or incantations speak in a reasonable way and do no harm, the person is punished by one hundred blows with the heavy stick. 268.2a—The private possession of magical inscriptions, even if they are not distributed, is punished by two years of penal servitude. 268.2b—If magical inscriptions speak in a reasonable way, the punishment is sixty blows with the heavy stick. [8a] SUBCOMMENTARY: Propagated and distributed to confuse a group refers to inscriptions and incantations that were not made by the group but were transmitted and distributed. Because they confused three persons or more, the punishment here is also strangulation.The commentary states: "Propagate means to propagate by speaking. Distribute means to distribute in writing." Where there is not a full group of people means that the group who were confused by the transmitted inscriptions or incantations did not comprise three people. Those who dwell together do not come within the limits on groups. Aside from groups, if the magical inscriptions or incantations are transmitted or distributed to one or two people, the punishment is life exile at a distance of 3,000 Ii. If magical inscriptions speak in a reasonable way refers to where the magical inscriptions or magical incantations, even though they speak of calamities, do 36 The character chung /&, is defined as three persons or more by Vol. i, p. 265, Article 55.There are some exceptions to this rule as, for example, plots.

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no harm at the time, or where they prophesy floods, droughts, and the like. These crimes are punished by one hundred blows with the heavy stick. The private possession of magical inscriptions refers to those that were previously made by another person and [57] secredy transmitted.They are not magical inscriptions made by the person himself. Even if they are not distributed, still possession of them is punished by two years of penal servitude. Where these magical inscriptions speak in a reasonable way and do no harm at the time, the punishment is sixty blows with the heavy stick.

Article 269 Entering a Person's House at Night without Reason ARTICLE: 269.1—All cases of entering a person's house at night without reason are punished by forty blows with the light stick. 269.2a—If the master of the house immediately (teng-shih SfKJ) kills the intruder, he will not be punished. 269.2b—If the master of the house knows that no harm is intended and still kills or wounds the intruder, the punishment is as for killing or wounding in an affray, reduced two degrees.37 SUBCOMMENTARY: Entering a person's house at night without a reason is based on the water clock.38 When the water levels for daytime have gone, then it is night.When those for night have passed, then it is day.This means that improperly entering a person's home at night without any purpose or reason is punished by forty blows with the light stick. House refers both to the dwelling itself and to the enclosed area. If immediately upon entering the intruder is attacked and killed by the master of the house, he will not be punished. If the master of the house knows that no harm is intended refers to knowing that the person has entered through confusion or error, or because of drunkenness. Such persons as well as those who are aged, young, ill, or women are not able to cause harm. Where they are killed or wounded, the punishment is as for killing or wounding in an affray, with the punishment reduced two degrees. If the master of the house kills another person's slave, the punishment is three years of penal servitude, reduced two degrees to two years of penal servitude, and so forth. QUERY: Suppose a person comes from outside to engage in illicit sexual intercourse and the master of the house has known about the situation for a long "See Articles 302 and 306 below. The punishments, reduced two degrees, would be three years of penal servitude and sixty blows with the heavy stick, respectively. 38 On the difficult problem of time, see Chapter 7, n. 35. On time in the Code, see Tai, General Principles, pp. 494 ff.

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time. If the person comes at night and the master of the house kills the intruder, is he punished or not? REPLY: The text of the article explains that the reason for allowing killing is to guard against persons who do harm. If the shameful illicit sexual intercourse has been known for a long time, this is something that the law does not allow. However, when someone enters another person's house at night, it is reasonable that it is difficult to distinguish who the intruder is. If the master of the house knows about the crime, he also becomes a criminal. So if the master of the house then kills the intruder, his punishment is increased because it is considered that this has added to the violation. But where the master of the house kills the intruder immediately, it is reasonable that there is no doubt. However, in addition, the text refers to "If the master of the house knows that no harm is intended and still kills or wounds the intruder, the punishment is as for killing or wounding in an affray, reduced two degrees."Thus it is clear that if the master of the house knows that harm is intended and kills the intruder, according to the article, he is not punished. ARTICLE: 2 6 9 . 2 C — I f the intruder is killed or wounded after he has already been seized, the punishment is as for killing or wounding in an affray in each case. Where the punishment reaches the death penalty, it is life exile with added labor. SUBCOMMENTARY: Where the intruder has already been seized refers to where the intruder who has entered the house at night has already been captured, is being held by force, has been tied up, and cannot resist. Even though that crime is serious, the intruder may not be killed or injured. . . .

C H A P T E R XIX

[la; 57]

Article 270

Robbery of the Sacred Objects of the Spirits and the Great Sacrifices1 ARTICLE: 270.1—AU cases of robbery of the sacred objects of the spirits and the great sacrifices are punished by life exile at a distance of 2,500 Ii. COMMENTARY: This refers to things that are presented to the spirits. Hangings, tables, and staffs are considered the same. ARTICLE: 270.2a—The robbery of sacred objects that are intended for presentation to the spirits, COMMENTARY: This refers to those that are being made but have not yet been completed. SUBCOMMENTARY: Robbery of the sacred objects of the spirits is robbery whether taken openly or by stealth. Great sacrifices refer to those to Heaven and Earth, the Ancestral Temple, and the Spiritual Continent. 2 . . . [58] The robbery of those things that are intended for the spirits refers to the sacred objects in the above text as well as curtains, screens, benches, and staffs that are being made and though not yet completed are intended for presentation. . . . ARTICLE: or of those that have been presented and put away after being used, or of sacrificial offerings that already have been set out, is punished by two years of penal servitude. COMMENTARY: Sacrificial offerings mean such things as jewels, silks, and sacrificial animals. [Ib] Set out refers to what has already been brought into the sacred area and has already been examined by the officials in charge of the sacrifice. ARTICLE: 270.2b—The robbery of sacrificial offerings that have not yet been set out is punished by one and one-half years of penal servitude. 270.2c—The robbery of sacrificial offerings that have already been put away is punished by one hundred blows with the heavy stick. 'Robbery committed under this or the next article brings the crime within great irreverence, the sixth of the ten abominations. See Vol. I, p. 61, Article 6. 2 That is, China.

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COMMENTARY Already put away means when the ceremony of receiving the spirits is over. ARTICLE: 270.3—The robbery of such things as cauldrons, boilers, kitchen knives, and spoons all are punished following the article on ordinary robbery. 3 SUBCOMMENTARY: Presented and put away after being used refers to the sacred objects of the spirits that have been presented in a sacrifice and returned to the official in charge of them. Therefore it is said that they have been used and put away. Sacrificial offerings that have already been set out refer to sacrificial animals, dates, chestnuts, dried meat, and so forth that have already been brought into the sacred area. . . . The robbery of cauldrons, boilers, kitchen knives, and spoons refers to things that are not presented to the spirits. Therefore the punishments follow the law on ordinary robbery. For goods worth one ch'ih of silk, the punishment is sixty blows with the heavy stick. For goods worth one p'i of silk, the punishment is increased one degree. For goods worth five p'i of silk, the punishment is one year of penal servitude, increased one degree for each further five ch'ih. The maximum punishment is life exile with added labor. Mention of such things (in the 270.2a commentary) refers to dishes, bowls, miscellaneous utensils, and the like.

Article 271 Robbery of an Imperial Seal"1 ARTICLE: 271.1—All cases of robbery of an imperial seal are punished by strangulation. 271.2—Robbery of the emperor's clothing or other possessions is punished by life exile at a distance of 3,000 Ii. COMMENTARY: This refers to things offered to the emperor. [2a] Clothing includes such things as quilts and cushions, things that are actually worn, and supplementary things, all of which must be submitted to the inspecting officials. Those things that have been selected for presentation to the emperor are also imperial objects.5 ARTICLE: 271.3—Robbery of things that have been selected for presentation to 'See Article 282 below. This is specified here, as in the next nine articles, under Article 280, which provides such a calculation if the value of the booty would be sentenced more heavily than the crime committed. 4 This offense comes under great irreverence. See note 1 and Vol. i, p. 256. The emperor had eight seals, for which see Article 362 below. 5 This is a repetition of the subcommentary to the relevant part of Article 6.

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Article 272 the emperor, or that have been presented and discarded, or food that is for the emperor is punished by two years of penal servitude.

COMMENTARY: For the emperor refers to what has already been submitted to the inspecting officials. ARTICLE: 271A—Robbery of food that is intended for the emperor or of things other than clothing is punished by one and one-half years of penal servitude. SUBCOMMENTARY: Reference to the emperor includes his paternal grandmother, his mother, and his empress as well.6 For the crown prince, the punishment is reduced one degree. . . . The imperial clothing and possession refer to the things offered for use as imperial carriages and clothing. Robbery of the clothing and possessions of the three empresses [59] is treated the same and is punished by life exile at a distance of 2,500 /i.The same crime committed against the crown prince or his princess is punished one degree less, by three years of penal servitude. 7 If calculation of the value of the booty would be punished more heavily, then the punishment is comparable to that for ordinary robbery with the punishment increased one degree. 8 The commentary states: "This refers to things offered to the emperor. [2b] Clothing includes such things as quilts and cushions." Reference to such things includes such things as felt carpets and bedding. . . .

Article 272 Robbery of Seals for Official Documents ARTICLE: All cases of robbery of seals for official documents are punished by two years of penal servitude. The robbery of other seals is punished by one hundred blows with the heavy stick. COMMENTARY:This refers to where the robbery is due to a desire'for profit and the seals are not used. Other seals refer to those used for trade in articles or domestic animals.9 SUBCOMMENTARY: Seal (yin EP) means trust (hsin fa). It means that when a 6

This follows Article 51 above, which specifies that the punishments are the same. VoI. i, p. 268, Article 56, specifies that a reduction of one degree of punishment from death is life exile, and from life exile is to penal servitude 8 See note 3 above 'See Twitchett, "The T'ang Market System," p. 213. 7

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government document is sealed and sent out to circulate among high and low, it can be taken with trust. . . . [3a] Other seals refer to seals used by prefectures to seal letters and those used in the trade of domestic animals. And according to the Statutes and the Ordinances, seals must be applied by officials. But for the robbery of seals other than those used for official use, all the criminals are punished by one hundred blows with the heavy stick. The commentary states: "This refers to where the robbery is due to a desire for profit and the seals are not used." This means that they are considered to be goods and the robber does not intend to use them. If the seals are applied to documents that then are used, then the punishment is for forging, counterfeiting, or use of the seal to circumvent the law.10

Article 273 Robbery of an Imperial Decree ARTICLE: 273.1a—All cases of robbery of an imperial decree are punished by two years of penal servitude. 273.1b—Robbery of an official document is punished by one hundred blows with the heavy stick. Robbery of a document that deals with a major offense {chung-hai S U ) increases the punishment one degree. Robbery of a paper certificate increases the punishment one degree further.11 CoMMENTARY:This crime also deals with a desire for profit and where the document will not be used. Major offense refers to criminal cases punished by penal servitude or more, or about marriage, crimes between commoners and those of the inferior classes, promotion or demotion in office, conferring office, disenrollment, and the like. SUBCOMMENTARY: Robbery of an imperial decree is punished by two years of penal servitude. Robbery of an imperial edict or a memorial to the throne receives the same punishment. Imperial edicts do not contain the imperial writing while memorials to the throne do. 12 So the robbery of memorials to the throne that have the imperial writing cannot be punished more lightly than the robbery of imperial edicts. . . . Official documents refer to documents ordinarily distributed by government offices, regardless of whether or not they have a seal impression. . . . [3b] '"Articles 363, 365, and 366 below. The heaviest punishment would be life exile at a distance of 2,000 Ii. 11 On paper certificates, see Article 123 above. ,2 See Article 122 above on this point.

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Reference to the like means documents of the kind that deal with granaries, grain, goods, articles, movements of the army, written registration documents, and true copies of household registers. If the robbery is to affect some matter, then the law on adding and deleting text is followed.13 ARTICLE: 273.2—The robbery of documents that are to be destroyed is punished as ordinary robbery.14 SUBCOMMENTARY: AS for the robbery of documents that are to be destroyed, according to the statute: "Documents need not be kept permanendy. After three years they are destroyed." 15 Thus after a period of years, they are destroyed.These are not documents that are currently in force, therefore the punishment follows the law on ordinary robbery, and their value is calculated in sentencing the crime.

Article 274 Robbery of Tallies for the Gates of the Imperial Palace or Imperial Audience Hallsxb ARTICLE: 274.1a—AU cases of robbery of tallies for the gates of the imperial palace or an imperial audience hall, or tallies for the dispatch of troops, or transmission tallies are punished by life exile at a distance of 2,000 Ii. 274.1b—Robbery of commissioner's ensigns, or of tallies for the gates of the imperial city or the capital city are punished by three years of penal servitude. 274.1c—The robbery of other tallies is punished by one year of penal servitude. 274.2a—The robbery of keys to the above gates is punished by a reduction of three degrees in each case. 274.2b—The robbery of keys to the gates of prefecture cities and garrison, granaries, kitchens, public stables and storehouses, and customs barriers is punished by one hundred blows with the heavy stick. 274.2c—The robbery of keys to the gates of county cities, outposts, or other keys is punished by sixty blows with the heavy stick. SUBCOMMENTARY: In order to open or close the gates of an imperial audience hall, a bronze fish tally together with a key are always used.17 The laws and "See Articles 367 and 369 below. In the case of an imperial decree, the punishment can be strangulation. "See Article 282 below. ,5 Niida, Statutes, p. 602. "Most of this article was translated by des Rotours, "Les insignes," pp. 99-101. See the detailed discussion there. l7 See Article 71 above.

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ordinances on the use of tallies and keys have already been explained in the Articles on Unauthorized Levies.18 [4a] The tallies for dispatching troops are made of bronze. The left parts are kept in the palace, the right parts are given to the prefectures, militia, and directorates, as well as places where troops are garrisoned, and to the officials who are in charge of guarding the capital in the absence of the emperor. While the tallies have other uses, dispatching troops is the most important, therefore they are called tallies for dispatching troops. Transmission tallies refer to those given to postal relay couriers. According to the Statutes on Public Standards: "The transmission tallies that are sent out to the [five] directions are the following: tallies in the form of a unicorn are those for officials in charge of guarding the capital in the absence of the emperor and the northern capital; tallies in the form of a green dragon for officials in the east; those in the form of a white tiger for officials in the south; those in the form of a red bird for officials in the south; and those in the form of a black warrior for officials in the north. The officials in charge of guarding the capital in the absence of the emperor have twenty tally parts, of which nineteen are left parts and one is a right part.The other groups of officials each have four left parts and one right part. "The left parts of the tallies are kept in the palace and the right parts are kept in the provinces by those who are in charge of the tallies in prefectures, militia units, and directorates.The tallies for officials who are in charge of guarding the capital in the absence of the emperor and the northern capital are also kept in the palace. "When a courier must be sent out to any of the four directions, he is given the left half of the tally for the place to which he is being sent, with the address written on a bone (?) card.The tally is attached to the inside with clay on which is the seal of the imperial chancellery.19 When the courier arrives at the place to which he has been sent, the right half of the tally is compared with his, and if they match the orders received are carried out."20 The robbery of any of these tallies is punished by life exile at a distance of 2,000 Ii. Ensigns are issued when the emperor sends a commissioner to the provinces to demote the inefficient and promote the intelligent. When a commissioner receives an imperial decree, he always displays a banner and an ensign in order to make the emperor's prestige known to peoples of different customs. In all these cases a banner and an ensign are carried to obtain the confidence of the world. The Gate of the Red Bird and other such gates are those of the imperial city. The Gate of Brilliant Virtue and other such gates are those of the capital city. The robbery of the tallies for these gates or of the ensigns for commissioners is punished by three years of penal servitude in each case. Other tallies refer to those for the gate of the imperial gardens or for delivery 18

See Article 226 above. "No one knows what a bone card is. It does seem to me that the tally was attached to it by a seal. 20 NiIdS, Statutes, p. 583.

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of weapons or inspections. According to the Articles on Unauthorized Levies, all mention of tallies treats wooden tallies as the same.21 Thus when wooden tallies are used to [4b] dispatch troops, they are treated the same as tallies to dispatch troops. So the robbery of wooden tallies to dispatch troops is punished the same as fish tallies. The robbery of keys is punished three degrees less in each case. This means three degrees less than the punishment for fish tallies used with the opening and closing of gates. Suppose there is a robbery of the tally for the gate of the imperial palace or an imperial audience hall.The punishment is life exile at a distance of 2,000 Ii. Robbery of the key to these gates would be punished three degrees less, or two years of penal servitude. The robbery of other keys is reduced three degrees following this example. However, the robbery of keys to the gate of the imperial palace cannot be punished less than the robbery of keys to the gates of a prefecture city, garrison town, or customs barrier. . . . Other keys refer to those of the gates of government offices in the capital and in the provinces as well as city ward and markets—any gate where entry and exit are controlled.The robbery of any of these keys is punished [61] by sixty blows with the heavy stick.

Article 275 Robbery of Forbidden Military Weapons ARTICLE: 275.1a—All cases of robbery of forbidden military weapons are punished by two years of penal servitude. 275.1b—The robbery of armor or crossbows is punished by life exile at a distance of 2,000 Ii. If the punishment for the robbery is lighter, then the punishment is the same as under the law on private possession.22 275.1c—The robbery of other forbidden military weapons as well as banners and pennants is punished by ninety blows with the heavy stick. 275.2—The robbery of forbidden military weapons from the guards at the imperial palace or imperial audience halls increases the punishment one degree in each case. 275.3—Robberies within the army or among palace guards where the weapons are returned to official use have the punishment reduced two degrees in each case. SUB-COMMENTARY: The robbery of forbidden military weapons is punished by two years of penal servitude. This means weapons other than bows, arrows, swords, shields, and short spears. Weapons that private households may not [5a]

21

See Article 226 above. —See Article 243 above.

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possess are all forbidden military weapons.The robbery of armor or crossbows is punished by life exile at a distance of 2,000 Ii. Where the punishment for robbery is lighter, the crime is treated the same as under the law on private possession. Under this law, the robbery of either a crossbow or a suit of armor is punished by life exile at a distance of 2,000 Ii. According to the Articles on Unauthorized Levies: "The private possession of. . . one suit of armor or three crossbows is punished by life exile at a distance of 2,000 //.Three suits of armor or five crossbows are punished by strangulation."23 The robbery of three suits of armor or five crossbows is also punished by strangulation. This is what is meant by where the punishment for robbery is lighter, the crime is treated the same as under the law on private possession. The robbery of other military weapons refers to those that private households may possess even though they are official military weapons. However, the robbery of banners and pennants is punished by ninety blows with the heavy stick. In accordance with where the robbery of government articles would be punished more heavily for the calculated value of the booty, the punishment for ordinary robbery increased two degrees.24 [The text above states:] "The robbery of military weapons from the guards at the imperial palace or imperial audience halls increases the punishment by one degree." This means that for those in use at present by the guards at the imperial palace or imperial audience hall, the punishment for ordinary robbery is increased two degrees. In the army refers to places where the army is on campaign. Robbery among palace guards where the weapons are returned to official use have the punishment reduced two degrees in each case. If the weapons go to private persons, however, the punishment is the same as in the above text on the law of robbery.

Article 276 Robbery or Damage of Statues of the Heavenly Immortal or the Buddha2' ARTICLE: 276.1a—All cases of robbery or damage of statues of the Heavenly Immortal or the Buddha are punished by three years of penal servitude. 276.1b—If the offense is committed by a Buddhist orTaoist monk or nun, the punishment is life exile with added labor. 276.2—If the offense is committed against the statue of a true man or a bodhisattva, the punishment is reduced one degree in each case. 276.3—If the robbery [5b] is for the purpose of worship, the punishment is one hundred blows with the heavy stick. 23

See Article 243 above. See Article 280 below. 2s TheTaoist Heavenly Immortal (t'ien ts'un ^Z If) and the Buddha were the most important gods in these two religions' pantheons. Below them were the true men (chen-jen [ ( A ) and bodhisattvas, hence the difference in punishment. 2J

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COMMENTARY: 276.4—Robbery and damage are not both necessary. SUBCOMMENTARY: If a lay person commits robbery of or damages a statue of the Heavenly Immortal or the Buddha, the punishment is three years of penal servitude in each case. If aTaoist priest or nun commits either of these crimes against a statue of the Heavenly Immortal or a Buddhist priest or nun commits either of these crimes against a statue of the Buddha, the punishment is life exile with added labor in each case. This is because these are the images of the Original Holy Ones whom they serve.Therefore the law punishes them by life exile with added labor and not the same as ordinary people. . . . If the robbery is for the purpose of worship, the punishment is one hundred blows with the heavy stick. This means that it is not for profit but to offer sacrifices. . . . Where the robbery or damage is not of a true man or a bodhisattva, but of the statues of such gods as Birth by Transformation or the King of the Spirits, the punishment is the heavier for doing what ought not to be done. 26 Where the illicit goods go to a private person, the punishment follows the law on ordinary robbery.27 Where a large amount labor is required to repair the damage, the value of the labor is calculated and punished for illicit goods obtained through malfeasance,28 and the criminal is ordered to pay for the repair in each case. Where Taoist monks or nuns commit these crimes against Buddhist statues, or Buddhist monks or nuns commit them against [62] Taoist statues, the punishment follows the law for lay persons.

Article 277 The Violation of Tombs ARTICLE: 277.1a—All cases of the violation of tombs are punished by life exile with added labor. COMMENTARY: If the coffin is reached, the crime is punished. Where the spirit is summoned and a coffin is buried is treated the same.29 ARTICLE: 277.1b—If either the outer or the inner coffin is opened, the punishment is strangulation. 277.1c—If the tomb is violated without reaching [6a] the coffin, the punishment is three years of penal servitude. 26

See Article 450 below. The heavier of the two punishments provided by this article is eighty blows with the heavy stick. 2, See Article 282 below.The punishment there depends upon the value of the stolen goods. 28 See Article 389 below. 2 'See Chapter 18, n. 32.

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SUBCOMMENTARY: The Book of Rites states: "To bury is to conceal. It is from a desire that others should not see the corpse."30 "In primitive times, the dead were buried by covering them thickly with brushwood. . . .The holy men of a later time introduced inner and outer coffins."31 . . . ARTICLE: 277.2a—If the grave has already been dug, yet the corpse has not yet been buried and the coffin is stolen, the punishment is two and one-half years of penal servitude. 277.2b—For robbery of the burial clothing, the punishment is reduced one degree. 277.2c—Robbery of the utensils, objects, tiles, and planks is punished as for ordinary robbery.32 SUBCOMMENTARY: . . . [The corpse having not yet been buried when the coffin is stolen] refers to the robber not having any malicious intent but wanting fraudulently [6b] to substitute another person's corpse or move the coffin to another place. For robbery of the burial clothing, the punishment is reduced one degree to two years of penal servitude. But if the calculation of the value of the booty would be punished more heavily, the punishment is for ordinary robbery increased one degree. Reference here to the corpse not yet being buried is to make it clear that in the above text on violating the tomb, burial has already taken place. . . . QUERY: The violation of a tomb is punished by life exile with added labor. The article, however, does not mention differences of generation, age, or social p o sition. Thus it is not yet known whether violation of the tomb of a son or grandson in the male line is punished the same as violation of the tomb of a person of nonkin status or not? REPLY: "There are three thousand crimes that are covered by the five punishments." 33 Since there are so many different circumstances, therefore they are dealt with by analogy.34 Persons of different generations, ages, and social status are not the same, and so the severity of the punishments differs. If a person violates the grave of a relative who is of a lower generation or of the same generation but younger, the punishment cannot be heavier than for killing that person. If a person violates the tomb of a relative of a higher generation or of the same generation but older, according to the law, the maximum punishment is the same as for a person of nonkin status. The article states: "The violation of 30

Li chi, "t'an kung," p. 149; Couvreur, Li ki, I, 178. Yi ching,"Hsi hsia," p. 168;Wilhelm, I ching, p. 359. 32 See Article 282 below. 33 SJiM tiling, "Lu hsing," p. 301; Legge, Tiie Chinese Classics, in, 606. 34 On analogy, see Vol. I, p. 254, Article 50, and the discussion in Vol. I, pp. 37-38. 31

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tombs is punished by life exile with added labor." This is for persons of nonkin status. This already is a reduction of one degree of punishment below that for killing. So if a person violates the grave of a relative who is of a lower generation or of the same generation but younger, the punishment must also be reduced one degree below the death penalty. If either the outer or the inner coffin is opened, the punishment is strangulation. Thus this penalty is the same as if the criminal had killed the person. If the tomb is violated without reaching [6a] the coffin, the punishment is three years of penal servitude.This is calculated on the basis of persons of nonkin status, that is, a reduction of two degrees below the death penalty.35 For persons of a lower generation or of the same generation but younger, the punishment is reduced two degrees. So for robbery of a [7a] coffin, following the rule, the punishment is reduced three degrees. But the offense committed against a rela­ tive of a higher generation or of the same generation but older receives the same punishment as if against a person of nonkin status.

[63]

Article 278 Robbery of Plants or Trees within the Imperial Mausoleum

ARTICLE: 278.1—All cases of robbery of plants or trees within the imperial mausoleum are punished by two and one-half years of penal servitude. 278.2—Robbery of trees within another person's tomb area is punished by one hundred blows with the heavy stick. SUBCOMMENTARY: . . . A S for the imperial mausoleum, the San-ch'in chi states: "Imperial tombs have gardens.Therefore they are called 'garden tombs' (mauso­ leum)." 3 6 The Sanfu huang t'u states:"This means that the tomb has four forbidden gates that open into four gardens." 37 Thus the imperial tombs have plants and trees and cutting them constitutes robbery. The robbery of trees within another person's grave area is punished by one hundred blows with the heavy stick. However, if the value of the illicit goods would be punished more heavily, in accordance with the article below, the pun­ 38 ishment is for ordinary robbery, increased one degree. Where only cutting has taken place and not robbery, the punishment is comparable to the article in the 35

ThIS follows Vol. i, p. 268, Article 56. The term that I translate as mausoleum is made up of two Chinese characters meaning, respectively, tomb and garden.This quote explains why the two characters are put together in the Code. On the San-ch'm dn, see Chapter vn, n. 4. 37 The extant version of the Sanfu huang t'u ΞΞ|β HrBB, which describes Ch'ang-an as it existed in Han times, does not contain this phrase. 38 See Article 282 below. 36

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Miscellaneous [Articles section:] "Destruction of trees and crops are punished as comparable to robbery in each case."39 . . .

Article 279 Robbery and Killing of Government or Private Cattle or Horses ARTICLE: All cases of robbery and killing of government or private cattle or horses are punished by two and one-half years of penal servitude. SUBCOMMENTARY: Horses and catde are used by the country's armies.Therefore they are different from other domestic animals. . . . If the punishment for the value of the illicit goods would be heavier than two and one-half years of penal servitude, then it follows the law on ordinary robbery with the punishment increased one degree. For the robbery and killing of animals such as the yak, which by the custom of the district are not used either for riding or for cultivating the soil, the value of the illicit goods is calculated and punished as for ordinary robbery.40

Article 280 Punishment for Robbery Where the Value of the Illicit Goods Is Not Calculated ARTICLE: In all cases of punishing a robbery where the value of the illicit goods is not calculated, or where there is mention of reduction of punishment, which would result in less punishment than for ordinary robbery, if the calculated value of what was stolen would result in a heavier punishment, then the punishment is as for ordinary robbery, increased one degree.41 SUBCOMMENTARY: From the article on robbery of the sacred objects of the spirits and of the great sacrifices on down, the value of the illicit goods is not calculated in determining the punishment. 42 There are also cases where the punishment is reduced.This refers to cases that would be punished more heavily under a separate determination of guilt. If the reduction of punishment would result in less punishment than for ordinary robbery, the value of the illicit goods is calculated in each case and the punishment is as for ordinary robbery, increased one degree. Suppose there is a robbery and killing of a person s horse or ox and the value 39

See Article 442 below. "See Article 282 below. The minimum punishment for robbery where no goods were taken is fifty blows with the light stick. For goods to the value of one clt'ili of silk, the punishment is sixty blows with the heavy stick. 41

IbId. That is, beginning with article 270 at the head of this chapter.

42

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Article 281

of the animal was twenty p'i of silk. Calculating this as ordinary robbery would give a punishment of two and one-half years of penal servitude. But considering the crime to be robbery and killing of a horse or an ox would result in an increase of one degree of punishment, so that the punishment would be three years of penal servitude. Suppose there is mention of reduction of punishment which would result in less punishment than for ordinary robbery. In the article above on robbery of a coffin, the punishment is two and one-half years of penal servitude. For the robbery of burial clothing, the punishment is reduced one degree. Suppose the value of the burial clothing obtained in the robbery is twenty ch 'ih of silk; following the law on ordinary robbery, this would be punished by two and one-half years of penal servitude. Since the text has reference to a reduction of one degree of punishment, this would be only two years of penal servitude. Therefore the punishment follows the law on ordinary robbery increased one degree, which is three [8a] years of penal servitude. This is what is meant by sentencing as for ordinary robbery, with the punishment increased one degree. Robbery of the clothing of the heir apparent or of objects of the medium and small sacrifices, even though there is a reduction of punishment, are also robberies where the value of the illicit goods is not calculated.

Article 281 Robbery by Force ARTICLE: 281.1a—All cases of robbery by force COMMENTARY: Force refers to using coercion or physical strength to take other persons' goods. Cases where force is used first and the robbery occurs afterward, or the robbery occurs first and force is used only afterward, or where drugged wine and/or food are given to a person that cause madness and so people's goods are taken are also considered to be robbery by force. There are cases where a person finds goods that have been lost and beats or hits the owner instead of returning them, or when a robbery by stealth has been discovered the criminal throws down the goods and runs away, but when pursued and seized by the owner, there is an exchange of blows. Cases such as this, as well as those which are related, are not considered to be robbery by force. [64] SUBCOMMENTARY: Robbery by force is taking other people's goods. The commentary states: "Using coercion or physical strength."There can be coercion used without any physical strength, or physical strength used without coercion. But the result is that goods are seized. Cases where force is used first and the robbery occurs only afterward refer to first using compulsion to coerce a person and afterward taking their goods. First

Article 28 ί

291

robbing someone and afterward using force refers to first taking goods through robbery by stealth and when the crime is discovered later using coercion or physical strength. Cases such as these are all considered to be robbery by force. If a person is given drugged wine to drink, or food to which drugs have been added, which causes the person to become confused or muddled and results in their goods being taken, the punishment here also follows the law on robbery by force. Suppose a person finds goods that have been lost and when the owner recog­ nizes them refuses to return them but rather beats and hits the owner, or a person commits robbery by stealth and gets another person's goods and when the owner of the goods becomes aware of the crime throws away the goods and runs away. The owner of the goods pursues the robber and because of this they exchange blows. Crimes of this type are those due to another cause and do not constitute robbery by force. Rather, the laws on beating in an affray [8b] and resisting arrest are followed.43 QUERY: According to the Articles on Arrest and Flight: "If a person has been robbed . . . even bystanders may arrest the criminal and tie him up." 4 4 But where it has not yet been determined that there has been a robbery and the robber has taken the goods and is fleeing and a bystander who is pursuing the robber to arrest him because of this is attacked and wounded—regardless of whether there has an interval of time after the crime—is this the same as robbery by force or not? REPLY: According to the article: "If someone is being robbed, even bystanders may arrest the criminal, tie him up, and send him to the authorities." But where the robber has already taken the goods and is fleeing, if a bystander in accor­ dance with the law seizes the robber and is wounded because of the robber resisting arrest, this is a case of first committing the robbery and only afterward using force. Where the arrest only takes place after an interval of time and when the owner of the goods is not in pursuit of the criminal so that the reason of robbery is not known, and because of this blows are exchanged, this is only punished for resisting arrest and does not constitute robbery by force. ARTICLE: where no goods are taken are punished by two years of penal servi­ tude. 4 5 281.1 b—If goods worth one ch 'ih of silk are taken, the punishment is three years of penal servitude, increased one degree for goods worth each further two ρ 'i of silk. For goods worth ten ρ 'i of silk, or where a person is wounded, the punishment is strangulation. 281.1c—If a person is killed, the punishment is decapitation.

"See Articles 451 and 452 below. •"See Article 453 below. 45 See the commentary to article 285 below,forwhere this crime is committed against relatives.

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Article 282

COMMENTARY: Killing or wounding a slave receives the same punishment as described above. Even if it is not the owner of the goods who is killed or wounded during the robbery, the punishment is the same. ARTICLE: 281.2a—If the robber is carrying a weapon, even if no goods are taken, the punishment is life exile at a distance of 3,000 Ii. 281.2b—If goods worth five p'i of silk are taken, the punishment is stran­ gulation. 281.2c—If a person is wounded, the punishment is decapitation. SUBCOMMENTARY: . . . [9a] The commentary states:"Killing or wounding a slave receives the same punishment as described above." In the articles of the Code, slaves are for the most part not considered the same as commoners. In this article, however, the killing or wounding of a slave is considered the same as if the victim were a commoner. Even if it is not the owner of the goods who is killed or wounded during the robbery, the punishment is the same for all the criminals. This means that it is immaterial as to whether the victims are persons of commoner status or of inferior status. In all cases the crime is considered under the law on the owner of the goods. . . . Robbers who carry weapons, even though they take no goods, if a person is wounded, are all decapitated. N o distinction is made between principal and accessories.46

Article 282 Robbery by Stealth ARTICLE: 282.1—All cases of robbery by stealth where no goods are taken are punished by fifty blows with the light stick. 282.2—For goods worth one ch'ih of silk, the punishment is sixty blows with the heavy stick, increased one degree for goods worth each further p'i of silk. For goods worth five p'i of silk, the punishment is one year of penal servitude, increased one degree for each further five p'i of silk. For goods worth fifty p'i of silk, the punishment is life exile with added labor. [65] SUBCOMMENTARY: Robbery of other persons' goods by stealth refers to taking goods while being hidden or concealed. . . . Where one household is repeatedly robbed or several [9b] households are robbed at one time, the illicit goods are combined and the punishment is for one-half of the whole. 4 7 If most of the illicit goods come from one place so that combining them and sentencing for one-half of the whole would not be the 46 VoI. ι, ρ 225, Article 42, provides that accessories shall be punished one degree less than the principal unless the specific article provides otherwise. «See Vol. i, p. 235, Article 45

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heaviest punishment, the punishment is for what would carry the heaviest punishment. However, double the amount of illicit goods must be repaid.48

Article 283 Supervisory and Custodial Officials Who Commit Robbery of What Has Been Put under Their Jurisdiction or Custody ARTICLE: All cases of supervisory and custodial officials who commit robbery of what has been put under their jurisdiction or custody, or who commit robbery of goods and articles within the areas under their jurisdiction, are punished as for ordinary robbery, increased two degrees. For goods worth thirty p'i of silk, the punishment is strangulation. COMMENTARY: Robbery by imperial princes of goods and articles that have been put under their jurisdiction or custody is treated the same.Where the specific article already increases the punishment, the punishment here is added to such increased punishment. SUBCOMMENTARY: For instance, in the Treasury of the Left, the President of the Court of the Imperial Treasury and his assistants are supervisory officials. The director and his assistants who oversee affairs and who are in charge of the treasury are custodial officials. If these officials themselves commit robbery of articles in the treasury, this is robbery by supervisory and custodial officials. Moreover, where prefecture and county officials rob the people within their area of goods and articles, this is called committing robbery of those within their jurisdiction. The commentary states: ". . . by imperial princes of goods and articles." According to the Statutes, "The brothers and sons of the emperor are imperial princes. ... The commentary states:"Where the specific article already increases the punishment, the punishment here is added to such increased punishment." This refers to where supervisory or custodial officials commit robbery of what has been put under their jurisdiction or custody and the articles are those where the [10a] value of the illicit goods is not calculated,50 but where the calculated value of what was stolen would result in a heavier punishment. Then the punishment is for ordinary robbery increased one degree. This is a case where the specific article already increases the punishment. Here the punishment is increased two degrees further. Suppose the Director of the Armory commits robbery of forbidden miliary «SeeVol. i, p. 184, Article 33. •"Niida, Statutes, p. 304. w On these types of goods, see Article 280 above.

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weapons that are under his jurisdiction and the calculated value of the illicit goods is twenty p'i of silk. A commoner who committed robbery of goods worth twenty p'i of silk would be punished by two and one-half years of penal servitude. Following the article for a robbery where the value of the illicit goods is not calculated, but where the calculated value of what is stolen would result in a heavier punishment, the punishment is as for ordinary robbery, increased one degree, which is three years of penal servitude. Since the criminal is of the category of supervisory and custodial officials, the punishment is increased a further two degrees to life exile at a distance of 2,500 K.This is a crime of the type where the specific article already increases the punishment, and the punishment here is added to such increased punishment.

Article 284 Intentionally Burning Another Person's Home ARTICLE: All cases of intentionally burning other person's home or a place where articles are stored and committing robbery in these places calculate the reduced value caused by burning, combine it with the illicit goods, and punish the crime as for robbery by force.31 SUBCOMMENTARY: Those who commit violence have a thousand ways and ten thousand methods of treachery and fraud. They stealthily make holes in walls and are cunning and crafty. . . . QUERY: Where someone carries a weapon and burns another person's home, which results in a robbery where goods are taken, or the owner of the goods is injured by the burning, [10b] what is the punishment? REPLY: According to the Miscellaneous Articles, intentionally burning another person's home is punished by three years of penal servitude. 32 It is irrelevant whether force or stealth is involved. Thus if the criminal is carrying a weapon and burns another person's home, the maximum punishment is three years of penal servitude. If as a result there is a robbery where goods and articles are taken, this is where originally there was no idea of robbery, so that even where a weapon is carried the crime is one where force was used first and the robbery occurred afterward. So the value of the goods is calculated and the punishment is as for robbery by force.Where the fire injures a person, this is treated the same as under the law on robbery by force where a person is injured.33 5, See article 282 above. Note that because of Article 33, double the amount of damages must be repaid to the owner. 52 See Article 432 below. "See Article 281 above.

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295

Article 285 Getting Goods and Articles from Persons by Threats ARTICLE: 285.1a—All cases of getting goods and articles from persons by threats are punished as comparable to robbery increased one degree. 34 COMMENTARY: Spoken threats are considered the same. ARTICLE: 285.1b—Even though the owner of the goods has no reason to fear threats, if he becomes afraid and voluntarily gives the goods to the person who made the threat, it is considered to be the same crime. COMMENTARY: 285.1C—Those who transmit a spoken message of threats and receive goods are all punished as accessories.55 285.1d—If a person has suffered encroachment or injury and uses threats to get repayment, or other suchlike matters, it does not come under this article. SUBCOMMENTARY: Threats refer to one person knowing that another has committed a crime and, being ready to make an accusation to the court, using threats to get goods and articles from him. The commentary states: "Spoken threats are considered the same." This means that threats made by speaking are the same as by a written document. The value of the illicit goods is calculated and punished as comparable to robbery, increased one degree. . . . [Ha] The commentary states: "Those who transmit a spoken message. . . . " Suppose "A" sends " B " and " C " to transmit a spoken message to " D " and by threats get articles worth five p'i of silk. "A" is punished by one and one-half years of penal servitude. " B " and " C " each are punished by one year of penal servitude. . . . Where a person has suffered encroachment or injury and uses threats to get repayment is illustrated by "A" trampling the sprouts of growing grain in the field of "B." Thereupon "A" is threatened by "B," who in addition to getting repayment for the grain gets other goods.The part that is due to damage to the grain is not punished for threats. However, the other articles not connected with damage to the grain correspond to where persons other than supervisory or custodial officials who accept goods because of a matter are punished as for illicit goods obtained through malfeasance.56 This is crime due to another reason and not because of threats.37 54

See Article 282 above. There the maximum punishment is life exile with added labor. It would then seem that an increase of punishment by one degree would be to the death penalty. However, crimes sentenced as comparable may not reach the death penalty. See Vol. I, p. 261, Article 53. Note this carefully, for it is often referred to below in this article. "Vol. I, p. 225, Article 42, states that accessories are punished one degree less than the principal, though there are certain exceptions 56 See Article 389 below. 57 See the subcommentary to Article 281 above, which gives two illustrations of this concept.

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QUERY: Goods worth five p'i of silk are obtained by threats, but the principal did not take part in the crime (pu-hsing -^f]") and further did not receive a share of the illicit goods. Two other persons transmitted the spoken message, one of whom received goods and the other did not.What is the punishment for each of them? REPLY: The article has reference to comparable to robbery. So the law on robbery must be followed. According to the article below: "Where robbery has been committed collectively, the punishment is for the combined amount of illicit goods. The person who formulated the plan, and the accessories, those who took part in the crime yet did not receive a share of the illicit goods as well as those who received a share of the illicit goods yet did not take part in the crime, each are punished following the law on principal and accessories. If the person who formulated the plan did not take part in the crime and further did not receive a share of the illicit goods, then a person who took part in the crime and was the leader becomes the principal.The person who formulated the plan is an accessory. If the punishment reaches the death penalty, it is reduced one degree.The accessories [10b] who did not take part in the crime and further did not receive a share of the illicit goods are punished by forty blows with the light stick."58 Here if the principal did not take part in the crime and further did not receive a share of the illicit goods, then the person who transmitted the spoken message and received articles becomes the principal. For goods worth five p'i of silk, the punishment is one and one-half years of penal servitude. The person who formulated the plan is an accessory and is punished by one year of penal servitude. Other persons who did not receive a share of the illicit goods are punished as accessories with fifty blows of the light stick. [67] FURTHER QUERY: If a supervisory official obtains goods in the area under his jurisdiction by threats, what is his punishment? REPLY: When commoners obtain goods by threats, the punishment is comparable to robbery increased one degree. The law for supervisory officials is not the same as for commoners. The General Principle states: "Where more than one article may be appropriate, whichever has the heaviest punishment will be followed."39 Thus it is reasonable that the punishment for extortion by force should be sentenced as comparable to subverting the law.60 If the person knows ;8

See Article 298 below. VoI. l, p. 253, Article 49. "Article 138 above. The principal differences between the two punishments mentioned here are that when the punishment is comparable, it is limited to life exile at a distance of 3,000 Ii, and that supervisory and custodial officials cannot also suffer disenrollment, resignation from office, or any increased punishment because of their position. 59

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that the crime did take place and obtains goods by threats, then the punishment follows the law on actually subverting the law. ARTICLE: 285.2—If the goods have not yet come into the criminal's hands, the punishment is sixty blows with the heavy stick. 285.3a—If relatives within the fifth degree of mourning threaten each other, where the crime is committed against a relative of a higher generation or of the same generation but older, the punishment is the same as if the crime were committed against a person of nonkin status. 285.3b—If the crime is committed against a relative of a lower generation or of the same generation but younger, the relevant law is followed in each case. COMMENTARY: Robbery by force is also treated comparably to this article. SuBCOMMENTARV.Where any amount of goods are obtained through threats but they have not yet come into the criminal's hands, the punishment is sixty blows with the heavy stick.Where relatives within the fifth degree of mourning threaten each other, if the crime is committed against a relative of a higher generation or of the same generation but older, the punishment is comparable to that for robbery of a person of nonkin status, increased one degree.61 Robbery by force is also treated comparably to this article. This means [12a] that where persons of a lower generation or of the same generation but younger who are relatives of the second degree of mourning or less take part in robbery by force of relatives of a higher generation of the same generation but older within the second degree of mourning who do not dwell together with them, even though the punishment is the same as for robbery by force committed against a person of nonkin status, if anyone is killed or wounded, the crime comes within the ten abominations. 62 If the crime is committed against a relative of a lower generation or of the same generation but younger, the relevant law is followed in each case. This means that if the crime of threatening someone is committed against a relative within the fifth degree of mourning of a lower generation or of the same generation but younger and goods are received, the punishment is reduced one degree below that for the same crime committed against persons of nonkin status.Thus for goods worth five p'i of silk, the punishment would be one year of penal servitude. If the crime were committed against a relative within the third degree of "See Article 287 above.The point is that while ordinarily robbery of relatives within the fifth degree of mourning has the punishment reduced one degree below that for the same crime committed against persons of nonkin status, here the punishment is increased one degree. 6 -SeeVol. I, p. 61 ,Article 6. Depending upon the closeness of relationship between the criminal and the victim, the crime would come under the fourth or the eighth abomination.

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mourning of a lower generation or of the same generation but younger, the punishment would be reduced two degrees, so that for goods worth five p'i of silk, the punishment would be one hundred blows with the heavy stick. If the crime were committed against a relative within the second degree of mourning of a lower generation or of the same generation but younger, the punishment would be reduced three degrees so that for goods worth five p'i of silk, the punishment would be ninety blows with the heavy stick.

Article 286 Seizing a Person's Articles after Originally Beating Him or Her for Another Reason ARTICLE: 286.1—All cases of seizing a person's goods and articles after originally beating or hitting him or her for another reason calculate the value of the illicit goods and are punished as for robbery by force.63 Where the punishment reaches the death penalty, life exile with added labor is substituted. SuBCOMMENTARY:This refers to where basically there was no intention to obtain goods and where the beating or striking was for another reason. But upon seeing the goods and articles the person thereupon seizes them. Such crimes are classified as where force is used first and the robbery occurs afterward.Therefore the value of the illicit goods is calculated and punished for robbery by force. . . . Because there was no prior intent to commit robbery, therefore even if the illicit goods are worth a full ten p'i of silk, which requires the death penalty, life exile with added labor is substituted. If the attempt to seize the goods is not successful then the punishment follows the laws on intentional beating and beating in an affray.64 The text has reference to calculating the value of the illicit goods and sentencing the crime as for robbery by force. But if the articles seized as illicit goods are not worth one ch'ih of silk, the punishment is the same [12b] as that for robbery by force where no goods are taken, two years of penal servitude. Since originally there was no intent to commit robbery, even if a weapon is carried the punishment is not increased. ARTICLE: 286.2—If articles are taken by stealth as a result of the beating, the punishment is as for robbery by stealth, increased one degree. 65 286.3—If a person is killing or wounded, the laws on doing so intentionally or in an affray are followed in each case. 63

See Article 281 above. "These crimes are covered in Articles 302-306 below.The severest punishments are given later in this article. 65 See Article 281 above.

Article 286

299

SUBCOMMENTARY: . . . If a person is killed or wounded refers to the killing or wounding being related to the beating or striking and that the harm basically was not connected with the robbery of goods. The laws on intentional killing or wounding or killing or wounding in an affray are followed in each case mean that where death occurs because of an affray, the punishment is strangulation. Intentional killing is punished by decapitation. Reference to in each case means that from seizing goods by force to taking goods by stealth, each crime is punished for occurring intentionally or in an affray. [68] QUERY: If a supervisory official originally beats or hits a person within the area under his jurisdiction for another reason, and then because of this seizes that person's goods and articles or gets the goods and articles by stealth, what is the punishment? REPLY: The article has reference to originally beating or hitting another person and having no prior intent to commit robbery of that person's articles. Only when the beating was finished did the crime of seizing them take place. This crime is classified as robbery by force and punished according to the value of the illicit goods. However, the maximum punishment is life exile with added labor. Therefore it is known that even if there is a large amount of illicit goods, the law does not permit the death penalty. If as a result there is taking of goods by stealth, the punishment is as for robbery by stealth, increased one degree. If a supervisory or custodial official beats or hits a person within the area under their jurisdiction and as a result takes that person's articles by stealth, the punishment is as for robbery by stealth, increased three degrees beyond that for ordinary robbery.66 Since in the text above punishment for robbery by force cannot extend to the death penalty, so this text below cannot allow robbery by stealth to reach to punishment by strangulation. So for goods worth thirty/?'! of silk, the maximum punishment is life exile with added labor. FURTHER QUERY: The General Principles section states that reference to sentencing for robbery means that the punishment is the same as for the actual crime. 67 In this article where taking goods by stealth is a result, the punishment is as for robbery by stealth, increased one degree. Increased one degree is stated so as to make the punishment heavier than that for robbery by stealth. If a supervisory official takes goods and articles by stealth worth thirty p'i of silk, the

66

See Article 282 above. SeeVol. i, p. 261, Article 53 Here a distinction is made between sentencing for the actual crime and sentencing as comparable to a particular crime. In the latter case, the punishment is limited to life exile at a distance of 3,000 /i. 67

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punishment would be strangulation. Now the reply does not punish with death, so the principle is not comprehensive. REPLY: "Where a specific article has a different regulation from that in a principle, the specific article is followed."68 The text here has reference to the seizure of goods and articles being punished for robbery by force. Where the punishment reaches the death penalty, life exile with added labor is substituted. It is also stated: "Adding to punishment may not extend to the death penalty."69 Thus it is clear that where a person is beaten for another reason and because of this that person's articles are seized, even though their worth might reach one hundred p'i of silk, the maximum punishment is life exile with added labor. How much more, then, where a person's goods are taken by stealth! How could the punishment increase so as to reach the death penalty? Even though the punishment for a supervisory official is increased, it cannot reach the death penalty. How much more so, then, where in the article below on kidnapping or misleading persons to become slaves the punishment in each case is for robbery by force or by stealth, but the maximum punishment is life exile at a distance of 3,000 Zi'.70 The commentary states: "Even where the criminal is a supervisory or custodial official, the punishment is the same."Thus, in this article, though there is no provision dealing with supervisory officials, the punishment also cannot reach the death penalty.

68

VoI. I, p. 252, Article 49. VoI. i, p. 268, Article 56. Interestingly enough, immediately following this quote is the statement: "But where the specific article adds punishment extending to the death penalty, the specific article is followed." Though not referred to in either of the querys or replies, this is the core around which the argument is centered. 70 See Article 293 below. In this article, the punishment is limited to life exile at a distance of 3,000 Ii, and the commentary extends this limitation to supervisory and custodial officials.Tai, Specific Articles, p. 162, says that this article, which specifically limits the sentence to life exile, is brought up as a more serious crime than that under consideration here to show clearly that the punishment under this article should be so limited. 69

C H A P T E R XX

[la; 68]

Article 287

Robbing Relatives of the Fifth Degree of Mourning of Goods and Articles ARTICLE: 287.1a—All cases of robbing relatives of the fifth or fourth degrees of mourning of goods or articles are punished one degree less than for the same crime committed against a person of nonkin status. 287.1b—If the crime is committed against relatives of the third degree of mourning, the punishment is reduced two degrees. 287.1 c—If the crime is committed against relatives of the second degree of mourning, the punishment is reduced three degrees. 287.2a—If during the course of the robbery a person 1 is killed or wounded, the punishment follows the relevant laws in each case. COMMENTARY: This refers to where the killing takes place because of the robbery and was done by error. 287.2b—If a relative of the second degree of mourning or less who is of a lower generation or of the same generation but younger is intentionally killed because of greed, the punishment is strangulation. Other articles follow this article. SUBCOMMENTARY: Where relatives within the fifth degree of mourning rob each other, all such cases are based on those who do not dwell together. 2 Where robbery by force is committed against relatives of a higher generation or of the same generation but older has already been explained in the article on threats.3 . . . [69] The commentary states: "This refers to where the killing took place because of the robbery and was done by error." This means that the basic intention is only a desire [lb] to obtain goods. It is treated the same as accidentally killing a person because of a robbery and the punishment is as for killing in an affray.4 There is no mention of wounding because the punishment for wounding is lighter and follows the law on wounding through error.5 However, the punishment for killing a person is heavier and even if done by error is the same as for killing in an affray. If, in reality, the killing was intentional, the law on intentionally killing or 'Tai, Specific Articles, p. 162, points out that the victim here is someone other than a relative. Dwelling together is explained in Vol. i, p. 246, Article 46 3 See Article 285 above. The punishment is the same as if the crime were committed against a person of non-kin status. 4 See Article 289 below. 5 See Article 339 below. 2

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wounding is followed.6 If because of greed a relative of a lower generation or of the same generation but younger of the second degree of mourning or less is intentionally killed, the punishment is strangulation. If the killing is through error, the punishment follows the relevant law on killing in an affray. Other articles refer to such articles as those on illicit sexual intercourse 7 or kidnapping or misleading persons 8 where there is a struggle, or where because of greed a relative of a lower generation or the same generation but younger of the second degree of mourning is intentionally killed. Where the specific article does not reach the death penalty, the punishment is strangulation in all cases. Therefore it is stated that other articles follow this article.

Article 288 Family Members of a Lower Generation or of the Same Generation butYounger than Other Family Members Who Have Other Persons Rob Their Homes ARTICLE: 288.1a—All cases of family members of a lower generation or of the same generation but younger than other family members with whom they dwell together who have other persons rob their homes of goods and articles are punished as for improperly making private use of goods and articles, increased two degrees. 9 288.1b—The other person is punished as for ordinary robbery, with the punishment decreased one degree. 10 288.2a—If anyone is killed or wounded, the punishment follows the relevant laws. COMMENTARY: 288.2b—Even though the other person does the killing or wounding and the family member of a lower generation or of the same generation but younger than the others does not know the circumstances, he or she is still punished following the relevant laws on killing or wounding. SUBCOMMENTARY: Family members who dwell together who are of a lower generation or of the same generation but younger than the others refer to such persons as sons and grandsons in the male line, younger brothers, and nieces and nephews in the male line. . . . [2a] Where there is a principal and accessories, the ordinary principle applies." . . . 6

See Article 306 below. The punishment is decapitation. See Article 411 below. "See Article 295 below. 'See Article 162 above. Increased by two degrees, the minimum punishment would be thirty blows with the light stick and the maximum one and one-half years of penal servitude. '"See Article 282.The minimum punishment would be forty blows with the light stick and the maximum three years of penal servitude. "See Vol. i, pp. 225 ff, Articles 42 and 43. Usually the accessories are punished one degree less than the principal. However, this is not true in the case of robbery by force. 7

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The reference to punished (in the commentary with regard to killing or wounding) means that these crimes do not come within the principles on disenrollment, resignation from office, or life exile with added labor.12 . . .Where the victim of the killing or wounding is not a relative of a higher generation or of the same generation but older, and the family member who is of a lower generation or of the same generation but younger does not know the circumstances of the killing or wounding, the punishment is only for robbery and not for the killing or wounding. . . . QuERYrWhere family members of a lower generation or of the same generation but younger than other family members with whom they dwell together have other persons rob their own homes of goods and articles, they are punished as for improperly making private use of goods and articles, increased two degrees. The other persons are punished as for ordinary robbery, with the punishment decreased one degree. But where the family member of a lower generation or of the same generation but younger than other family members collectively commits robbery with other persons, the article has no provision for increasing the punishment. So it is not yet known if the [2b] punishment is to be increased again or not. [70] REPLY: The circumstances of robbery by force and robbery by stealth are not the same. According to the Articles on Administrative Regulations, in the article on officials who borrow goods and articles within their area of jurisdiction, the use of force increases the punishment by two degrees, and other articles follow that article.13 Following this rule, all cases of relatives robbing each other have differences of punishment. Having another person rob one's home of goods and articles increases the punishment two degrees above that for improperly making private use of family goods. Again, there is no provision for the occurrence of robbery by force, which is only clear with regard to killing or wounding. Where the punishment for killing or wounding would be heavier, then the sentence is as for killing or wounding. If the punishment for killing or wounding would be lighter, then the punishment is as for robbery by force, increased two degrees. This is a comprehensive principle. Therefore this article needs no special provision.

Article 289 Accidentally Killing or Wounding a Person Because of a Robbery ARTICLE: 289.1—All cases of accidentally killing or wounding a person because of a robbery are punished as for killing or wounding in an affray.14 Where 12

SeeVol. I, p. 261, Article 53 See Article 142 above ,4 See Articles 302-306 below. ,3

304

Article 289 punishment reaches the death penalty, life exile with added labor is substituted.

COMMENTARY: Regardless of whether or not goods are taken, if the owner of the goods dies from another cause while in pursuit of the robber, it does not come under this article. SUBCOMMENTARY: If a person is accidentally killed or wounded as a result of a robbery taking place, because the basic intent was to commit robbery, the punishment for doing so accidentally is not allowed.13 . . . The commentary states: "Regardless of whether or not goods are taken, . . ." This means that whether goods are taken or not, in both cases the decision follows the laws on killing or wounding in an affray. If the owner of the goods dies from another cause while in pursuit of the robber, this is not the case refers to the owner of the goods, while being in pursuit of the illicit goods comprising the articles that had been taken by robbery, falls from a horse or falls into a hole and dies, or something similar.This is dying from another cause than the robbery, so the robber is punished for the robbery but not punished for killing or wounding. ARTICLE: 289.2a—If a robbery is committed collectively and incidental to the crime a person is killed or wounded, the punishment is as for robbery by force.16 289.2b—Those who take part in carrying out the robbery but do not know the circumstances of the wounding or killing are only punished according to the law on robbery by stealth.17 SUBCOMMENTARY: This refers to where a group takes part in carrying out a robbery by stealth and there is no plot to commit robbery by force. If incidentally to the crime a person is killed or wounded, the punishment is for robbery by force. Those who share in carrying out the robbery but do not know the circumstances of the wounding or killing are punished only according to the law on robbery by stealth. This means that where they shared in carrying it out and the original plot was to commit robbery by stealth and they did not know the circumstances of the killing or wounding, they are punished only according to the law on robbery by stealth, and a distinction is made between principal and accessories.18 . . .

15

See Article 339 below. Such a crime can be redeemed by payment of copper. See Article 281 above. Under this article, wounding is punished by strangulation and killing by decapitation. "See Article 282 above. "Ibid.Vol. i, p. 225, Article 42, punishes accessories by one less degree of punishment than principals ,6

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Article 290 Exchanging Private Goods and Slaves for Government Articles ARTICLE: 290.1—In all cases of exchanging such things as private goods, articles, slaves, or domestic animals for government articles, the value of what has been exchanged is calculated. The part that is equal in value is punished as comparable to robbery, and the part that is profit is punished as robbery.19 COMMENTARY: In other articles that do not specially mention slaves, they are considered the same as domestic animals, goods, and articles.The exchange of government articles for any member of the inferior classes is punished the same. 290.2—In the exchange of slaves, where the calculation of their value would make the punishment heavier than for misleading them, the punishment is the same as under the law on misleading.20 SUBCOMMENTARY: Such things as private goods, articles, slaves, or domestic animals also include grinding mills, warehouses, wholesale stores, great estates, carts, [3b] boats, and the like. Therefore the article states such things. The commentary states:"In other articles that do not specially mention slaves, they are considered the same as domestic animals, goods, and articles." This means that in the articles on rebellion and great sedition, 21 where there is reference to goods being confiscated by the state, there is no mention of slaves or domestic animals. This is because they are the same as goods and articles. Further, in the Articles on the Public Stables and Storehouses it is stated: "Where the examination of the condition of domestic animals is not reported in a true fashion, the punishment for an infraction worth one p'i of silk is forty blows with the light stick, increased one degree for each further three p'i of silk, and with a maximum punishment of one hundred blows with the heavy stick. If for this reason the price of the animals is increased or decreased and the punishment for illicit goods is heavier, then the increased or decreased value is calculated and the punishment is as for illicit goods obtained through malfeasance."22 There is no provision there for the examination of the condition of slaves. However, if the examination of the condition of slaves is not reported in a true fashion, the punishment is the same as provided under the law on the examination of the condition of domestic animals. Therefore it is stated that in other articles

"Robbery is covered by Article 282 above. Comparable crimes are explained in Vol. I, p. 261, Article 53. The punishment for comparable crimes cannot reach the death penalty. Officials are not disenrolled, nor do they have to resign from office, nor is double repayment of the illicit goods required. Thus here there is a great difference between the two sentences. ^See Article 293 below. 21 See Article 248 above. 22 ArHcIe 197 above.

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that do not specifically mention slaves, they are considered the same as domestic animals, goods, and articles. Cases of exchanging for government articles refer to where private articles [71] are exchanged for government articles, the part that is equal is calculated and punished as comparable to robbery. Suppose the slave of a private owner is exchanged for a government slave and each of them is worth five p'i of silk. Even if the worth is equal, sentencing as comparable to robbery punishes the crime 23 with one year of penal servitude. The commentary states: "Government articles and members of the inferior classes are punished the same."This refers to where the slave of a private owner worth five p'i of silk is exchanged for a government slave worth ten p'i of silk. The punishment is also one year of penal servitude. But the profit that is calculated is punished as robbery.This refers to where private articles worth one p'i of silk are exchanged for government articles worth two p'i of silk.The one p'i that is equal is punished as comparable to robbery. Both supervisory and custodial officials as well as commoners are punished by sixty blows with the heavy stick.The one p'i that is profit is punished as robbery. The commoner would be punished by sixty blows with the heavy stick and also have to make double repayment of the value of the illicit goods. The punishment for supervisory and custodial24 officials is increased two degrees to eighty blows with the heavy stick. Where the crimes must be combined, the crime punished by robbery is combined with the crime punished as [4a] comparable to robbery and the punishment is increased. If the case requires disenrollment, resignation from office, or double repayment of the value of the illicit goods, each of these is the maximum punishment provided by the relevant laws.23 The commentary states: "In the exchange of slaves, where the calculation of their value would make the punishment heavier than for misleading them, the punishment is the same as under the law on enticing." Suppose a supervisory official exchanges a private slave worth thirty p'i of silk for a government slave worth sixty p'i of silk.There is then a profit of thirty p'i of silk. According to the article on supervisory officials committing robbery of what has been put under their jurisdiction, the punishment would be strangulation.26 If a commoner exchanges a slave and the profit is calculated to be fifty p'i of silk, then the punishment is life exile with added labor.27 According to the specific article on misleading a person to become a slave, the maximum punishment is life exile at a distance of 3,000 Ii. Even for a supervisory or custodial official, the punishment must be the same as under that article. So in this article, such an exchange cannot be punished more heavily. Therefore it is stated that the pun-

2,

ko 45- should be read ho a, following the SPTK edition. Chang ^ should be read shou ^f, following the KHCPTS edition. 2S SeeVol.i,p. 235,Article 45.The sections of that article and the subcommentanes, pp. 242 ff, deal specifically with the crime described here. M See Article 283 above. 27 This is the heaviest punishment provided under the law on robbery. 2,

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307

ishment is the same as under the law on misleading a person and in both cases is life exile at a distance of 3,000 Ii.

Article 291 The Produce of Mountains and Wilderness Areas That Has Already Been Cultivated ARTICLE: AU cases of improperly taking the produce of mountains and wilderness areas that has already been cultivated by cutting or gathering is punished as robbery in each case. SuBCOMMENTARY:The produce of mountain and wilderness areas refers to grain, trees, herbs, stones, and the like. . . . Punished as robbery in each case refers to calculating the value of what was gathered according to the place and time and deciding punishment according to the law on robbery.28

Article 292 Kidnapping and Selling a Person [4b] ARTICLE: 292.1a—All cases of kidnapping a person or of kidnapping and selling a person: (1) as a slave are punished by strangulation; (2) as a personal retainer are punished by life exile at a distance of 3,000 Ii; (3) as wife or concubine, or son or grandson in the male line, are punished by three years of penal servitude. 29 COMMENTARY: Not having a person's consent is considered to be kidnapping. For persons ten years of age or less,30 even if they consent, the punishment is the same as under this law on kidnapping. 292.1b—If as a result of this crime a person is killed or wounded, the punishment is the same as under the law on robbery by force.31 SUBCOMMENTARY: Kidnapping a person refers to devising a plan to kidnap and then seizing the person. . . . The commentary states: "Not having a person's consent is considered to be kidnapping. For persons ten years of age or less, even if they consent, the punishment is the same as under this law on kidnapping." 28

See Article 282 above. The subcommentary states that being kidnapped and sold to be a younger brother or nephew receives the same punishment. See also Vol. i, p. 191, Article 35, which deals with this crime. "Following traditional belief, Chinese children are considered to be one year old at birth, counting the time in the womb as a year. Further, New Year's day was everyone's birthday. Thus it was possible for a child born on the last day of the year to be considered two years old only two days after birth. Whether this was the situation inT'ang times, I simply do not know. •"See Article 281 above. Wounding is punished by strangulation and killing by decapitation. 29

308

Article 292

Becoming a slave is not something that people want and so they have to be kidnapped.Those ten years of age or less do not yet have knowledge and so are easily deceived. So even if such persons do fully consent, it is treated the same as under this law on kidnapping. . . . The commentary states: "Where as a result of this crime a person is killed or wounded, the punishment is the same as under the law on robbery by force." This means that where the person who is being kidnapped resists and is killed or wounded, the punishment is the same as under the law on robbery by force. With regard to being punished the same as under the law on robbery by force, if during the kidnapping a bystander is killed or wounded, this also is punished the same as under the law on robbery by force. [72] If a person is wounded during the kidnapping, even if the intended victim of the kidnapping is not seized, the punishment is still strangulation. Where the kidnapping is with the intent 3 2 to make the victim a slave, but the attempt is not successful, nor is anyone wounded, the punishment is still as for robbery by force where no goods are taken, namely, two years of penal servitude. If the intent is to make the victim a personal retainer, the punishment is one and one—half years of penal servitude; if a wife or concubine, a son or grand­ son, one year of penal servitude. Even if the article has no formal provision, the explanation of a punishment must take into account all of the circumstances of the crime that can add and subtract [5a] from the seriousness of the punishment in order to make an appro­ priate judgment. Kidnapping to make the victim a slave is punished comparable to committing robbery by force of goods worth ten p'i of silk.Therefore when such a crime is not successful, the punishment should only be two years of penal servitude. 33 Kidnapping to make the victim a personal retainer has the punishment re­ duced one degree below the death penalty in this article. Therefore when the crime is not successful, the punishment should be one and one-half years of penal servitude. Kidnapping to make the victim a wife or concubine or a son or grandson reduces the punishment two degrees below the death penalty. Therefore when the crime is not successful, the punishment also should be reduced two degrees below that for robbery by force where no goods are taken, namely, to one year of penal servitude. ARTICLE: 292.2—In cases of misleading a person, the punishment is reduced one degree in each case. 292.3a—If there is mutual agreement and the person is sold as a slave, all of the criminals are punished by life exile at a distance of 2,000 /ι'.34 32

Yi {ft. should be read ni jg, following the KHCPTS edition. This is the punishment for robbery by force if no goods are taken. 34 VoI. i, p. 268, Article 66, specifies that a reduction of one degree from any distance of life exile is to three years of penal servitude. 33

Article 292

309

292.3b—If the sale has not yet been completed, the punishment is reduced one degree. COMMENTARY: Articles below follow this article. ARTICLE: 292.4—If there is kidnapping, misleading, or mutual agreement to sell another person's personal retainer, the punishment is reduced one degree below that for where the victim is a commoner in each case. SUBCOMMENTARY: Mislead means to gain consent. . . . Mutual agreement to sell means that the original plot had the agreement of both sides—both the seller and the person who is sold—for the sale.There is no distinction between principal and accessory.3' Rather, all are punished by life exile at a distance of 2,000 Ii. Where a number of men collectively sell another person, the punishment follows the law on principal and accessories. Where the sale has not yet been completed, the punishment is reduced one degree. This means that there has been a mutual agreement to sell, but that the sale has not yet been completed when the crime is discovered.36 . . . The commentary states:"Articles below follow this article."This means in the article below on catching a runaway slave and selling him where the sale has not yet been completed, or selling a relative of the second degree of mourning who is of a lower generation or of the same generation but younger, or the wife of a son or grandson in the male line, or others, 37 as slaves where the sale has not yet been completed, the punishment is [5b] reduced one degree. . . . The article has no provision for the kidnapping or misleading of personal retainers or female retainers of relatives within the fifth degree of mourning. But since when they are transferred to serve another person, the value of their food and clothing is calculated and repaid, and they cannot be considered the same as commoners. 38 However, the law on robbery must still be followed and the punishment reduced. For the personal retainers of relatives of the fifth and fourth degree of mourning, the punishment is reduced one degree below that for the crime when it is committed against the personal retainer of a person of non-kin status. For relatives within the third degree of mourning, the punishment is reduced two degrees, and for relatives within the second degree of mourning, three degrees. QUERY: If a personal retainer or female retainer is misled by another person to

35 See Vol. I, p. 225, Article 42, for this distinction. Generally accessories are punished one degree less than pnncipals.This is the first hint that we have that the buyer would be punished as well as the seller. 36 Tai, Specific Articles, p. 166, states that not yet been completed means that either the price has not yet been paid or the person has not yet been turned over to the buyer. "See Article 293 immediately below. 38 On the status of these persons, see Vol. i, p. 122, n. 122.

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Article 293

become a wife or concubine, son or grandson and consents to leave his or her master, the punishment for the person who does the misleading is already decided. But what punishment does the person who leaves his or her master get? [73] REPLY:The General Principles section states:"Where crimes are committed collectively, the person who formulates the plan is the principal. The accessories have their punishment reduced one degree." 39 Those who turn their back on their master and are misled away [6a] fit this article and, depending upon the punishment, may be punished one degree less than the person who misled them away. In other articles where there is no formal provision on misleading, the punishment decided is that for an accessory. Where the punishment for running away would be heavier, according to the General Principle: "Where more than one article may be appropriate, whichever has the heaviest punishment will be followed."40

Article 293 Kidnapping or Misleading a Slave ARTICLE: 293.1a—AU cases of kidnapping a slave are punished as for robbery by force.41 If a slave is misled, the punishment is as for robbery by stealth. The maximum punishment is life exile at a distance of 3,000 Ii in each case. COMMENTARY: Even where the criminal is a supervisory or custodial official, the punishment is the same. ARTICLE: 293.1b—If the slave takes42 away other goods and articles, the laws on robbery by force or stealth are followed, but the illicit goods are not combined in deciding the punishment. 43 SUBCOMMENTARY: Kidnapping means that the slave does not consent but is still taken.The slave's value as illicit goods is calculated and is punished as robbery by force. Mislead refers to both sides being willing and is punished as robbery by stealth. In both cases, the value of the illicit goods must be doubly repaid.44 The maximum punishment is life exile at a distance of 3,000 Zi'.The commenc e Vol. i, p. 225, Article 42. "See Vol. I, p. 252, Article 49 "'Robbery by force and by stealth is covered by Articles 281 and 282 above respectively. "Lai K should be read chi W, following the KHCPTS edition. 43 VoI. I, p. 235, Article 45, specifies that where one matter can be divided into two crimes— here kidnapping and robbery of goods and article—the criminal will receive whichever is the heavier punishment. "As specified by Article 33 in Vol. i, p. 184.

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tary states: "Even where the criminal is a supervisory or custodial official, the punishment is the same." This means that though the punishment is increased for supervisory and custodial officials, the maximum punishment still is life exile at a distance of 3,000 /i.43 If the slave takes away other goods and articles refers to goods and articles aside from the slave and his clothing.The punishment follows the laws on robbery by force and robbery by stealth. For kidnapping, goods worth one ch'ih of silk are punished by three years of penal servitude, with [6b] one degree of punishment added for each additional two p'i of silk. For misleading, goods worth one ch'ih of silk are punished by sixty blows with the heavy stick, increased one degree for each additional one p'i of silk. In each case, the decision is for the single heaviest punishment. The worth of the slave is not combined with the worth of the goods and articles in sentencing. Where the person who commits the crime of kidnapping or misleading does not know about the [goods and] articles, his or her punishment is limited to that for kidnapping or misleading, and the illicit goods represented by the goods and articles cannot figure in the decision. But where there is such knowledge, even if the slave takes them, the punishment is the same as under the laws on robbery by force or stealth. Where a commoner, a personal retainer, or a female retainer who has property aside from clothing is kidnapped or misled, the punishment is the same as under the laws on robbery by force or stealth. But where these are not taken by the criminal for himself or herself, the property of the commoner or personal retainer [or female retainer] does not figure in the punishment. ARTICLE: 293.2a—If a person catches a runaway slave and does not send the slave to a government office but sells the slave, the punishment is for misleading. 293.2b—If the slave is concealed, the punishment is reduced one degree. 293.3a—If a person secretly buys a son or grandson or obtains a son or grandson by extortion from a slave, the punishment is comparable to robbery. 293.3b—If a sale is forced, the punishment is the same. COMMENTARY: Even if the person is made a commoner, the punishment is the same. SUBCOMMENTARY: According to the statute: "Anyone who catches a runaway slave should send the slave to a government office within five days."46 . . .Whether 45

Article 283 above provides that in cases where these officials commit robbery in areas under their jurisdiction, their punishment will be increased two degrees above that for the same crime committed by commoners and can reach to strangulation. The purpose of this commentary is to prevent the crime covered here from being capital. w Niida, Statutes, p. 730.

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Article 294

a son or grandson is bought or obtained by extortion, the illicit goods are calculated as the average price of a [7a] slave and punished as comparable to robbery. But this does not come within the principles for disenrollment, resignation from office, double repayment of the value of illicit goods, increased punishment for supervisory [and custodial] officials, or life exile with added labor.47 . . . [74]

Article 294 Kidnapping and Selling Relatives within the Second Degree of Mourning Who Are of a Lower Generation or of the Same Generation but Younger ARTICLE: 294.1a—AU cases of kidnapping and selling as a slave relatives within the second degree of mourning or less who are of a lower generation or of the same generation but younger are punished the same as under the law on beating or killing in an affray.48 COMMENTARY: Committing this crime against relatives with whom there is no mourning relationship of a lower generation or of the same generation but younger receives the same punishment. ARTICLE: 294.1b—If these relatives are sold by consent, the punishment is reduced one degree. 294.2—If other relatives are sold, the punishment follows the law for misleading or kidnapping persons of non-kin status in each case.49 SUBCOMMENTARY: Relatives of the second degree of mourning or less who are of a lower generation or of the same generation but younger refer to younger brothers and sisters, sons and grandsons in the male line and their wives, nephews and great nephews in the male line, grandsons in the female line, as well as male and female cousins in the male line. In none of these cases does the specific article reach the death penalty for killing them. 50 If a younger brother or sister is killed in an affray, the punishment is three years of penal servitude. The punishment for killing a son or grandson in the male line is one and one-half years of penal servitude. If a younger brother or sister is kidnapped and sold as a slave, the punishment is three years of penal servitude, the same as under the law on killing them in an affray. If a son or grandson is sold as a slave, the punishment is one and one-half years of penal servitude, and the like. Therefore it is stated that the punishment is the same as 47

SeeVol. i, p. 261, Article 53, which puts these limits on crimes sentenced as comparable. "Depending upon the relationship, Articles 327-330 would be applicable. Selling relatives comes under the eighth of the ten abominations. See Vol. i, p. 61, Article 6. "Offenses against the relatives described here are covered in Articles 327-330 below. "See Articles 327-330 below.

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313

under the law on beating or killing in an affray in each case. [7b] Where punishment for the killing in the specific article is capital, the crime comes under the principle on these other relatives. Relatives with whom there is no mourning relationship of a lower generation or of the same generation but younger refer to a person's own concubine who has had no children, and the concubines of sons and grandsons in the male line. . . . Where other relatives are sold, the punishment follows the law for misleading or kidnapping persons of non-kin status in each case.'1 But for relatives within the five degrees of mourning where the specific articles on killing them names the death penalty, the punishment for other relatives is called for in each case.32 QUERY: If a person sells his wife as a slave, is this punished the same as selling a relative within the second degree of mourning or less who is of a lower generation or of the same generation but younger than himself or not? REPLY: The mourning relationship for a wife, even though she is within the second degree of mourning, is not the same as that of a person of a lower generation or of the same generation but younger than the husband. Therefore in various articles there is special reference to the husband. As the progenitor of a hundred generations and the person who consolidates the good of both clans, these articles do not require divorce but rather consider the wife as a relative of the second generation of mourning who is younger than the husband. But if the wife is sold as a slave, the basic circumstances call for divorce. If the husband marries her to someone else, then the relationship is ended.' 3 If he sells her into an inferior status, how can it be proper for them to be reunited? The wife is certainly not included in this article on selling relatives within the second degree of mourning or less who are of a lower generation or of the same generation but younger but can only be considered the same as other relatives, and the punishment follows the law on kidnapping persons of non-kin status. Where there is beating or killing, this also is punished the same as where the crime is committed against a person of non-kin status. Therefore it is known that selling the wife as a slave does [8a] not come under selling relatives within the second degree of mourning who are of the same generation but younger. FURTHER QUERY: According to the General Principle: "If the members of a

household commit a crime collectively, only the person highest in generation or older of the same generation is prosecuted."54 In this text, is the mutual agreement 5, See Article 292, where the punishment ranges from strangulation to three years of penal servitude depending upon the status into which the victim is sold. "Following Article 292, the death penalty with regard to these relatives is always reduced, sometimes to as little as three years of penal servitude. "Article 187 above punishes both the men by two years of penal servitude. 54 VoI. i, p. 225, Article 42.

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to sell someone punished the same as where members of a household commit a crime collectively or not? REPLY: According to the General Principle:"[All cases] in which a specific article has a different regulation from that in a principle follow the specific article."55 In this text, the selling of relatives within the second degree of mourning who are of a lower generation or the same generation but younger as well as the sons and grandsons in the male line of one's elder and younger brothers, the wives of grandsons in the female line, or selling sons, grandsons, one's own concubine, or the [75] concubines of one's sons and grandsons in the male line, each has a formal provision. There is no increased punishment for the person to whom they are sold. The reason for the punishment is because they are relatives of a lower generation or of the same generation but younger. Where other relatives are sold, each case follows the law on misleading or kidnapping persons of nonkin status.Thus the punishment is the same as for a person of non-kin status, and punishment is not limited to the head of the household. 36

Article 295 Taking Part in the Sale of a Person while Knowing That the Person Has Been Kidnapped or Misled ARTICLE: 295.1—All cases of buying a commoner while knowing that the person has been kidnapped or misled, or is being sold by mutual agreement, or of buying a personal retainer or a slave while knowing that the person has been kidnapped or misled, reduce the punishment one degree below that of the seller in each case. SUBCOMMENTAHY: This means that the buyer knows the circumstances that the person has been kidnapped, misled, or is being sold by mutual agreement and deliberately buys them. The punishment is reduced one degree below that of the seller in each case means that depending upon the status of the person bought, the punishment for the buyer is reduced one degree below that of the seller in accordance with the previous articles.57 As an example, suppose a man knowing that a person has been kidnapped and sold [8b] to a commoner as a slave buys that person, his punishment is reduced one degree from strangulation to life exile at a distance of 3,000 Ii. ARTICLE: 295.2—Those who buy while knowing that parents or paternal grand55

VoI. I, p. 252, Article 49. Article 292 above provides that in this case all the criminals shall be punished by life exile at a distance of 2,000 Ii. "That is, Articles 294-296 above. 56

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parents are selling their son or grandson in the male line, or a concubine of their son or grandson in the male line, or their own concubine have their punishment increased one degree beyond that of the seller. COMMENTARY: 295.3a—Those who buy these persons in turn knowing the circumstances receive the same punishment as the original buyer in each case. 295.3b—Even though the facts are not known when the sale takes place, if they are known later and the buyer does not report them, the punishment is the same. SUBCOMMENTARY: The person who has kidnapped or misled another and sold him or her is punished heavily. Therefore the punishment for the person who buys that person is reduced one degree below that of the seller. Where the buyer knows that paternal grandparents are selling a son, grandson in the male line, or person of lesser relationship, so that the punishment for the paternal grandparents is lighter, the punishment for the person who makes a voluntary purchase is increased one degree above that of the seller. For example, a father or paternal grandfather sells a son or grandson in the male line as a slave. According to the law on killing in an afiray, the punishment is one and one—half years of penal servitude. A buyer who knows the circumstances has his punishment increased one degree to two years of penal servitude. The commentary states: "Those who buy these persons in turn knowing the circumstances receive the same punishment as the original buyer in each case." Suppose "A" knowing that a paternal grandfather is selling his son or grandson in the male line buys him.Then "A" sells him to "B.""B" again sells him to "C." All of these who bought in turn knew the circumstances that they were buying a son or grandson in the male line, so that each receives the same punishment as the original buyer. This means that "A," "B," and " C " all are punished by two years of penal servitude. If at the time of the original purchase the buyer did not know the circumstances of the kidnapping, misleading, or selling by mutual agreement but later made inquiries and came to know them, then he must confess and make an accusation to the court. If he does not do so, he is punished as if he knew the circumstances when the original sale took place in each case. [9a] QUERY: If someone takes a person as a wife or concubine knowing that the person has been kidnapped or misled and made a member of the inferior classes, what is to be their punishment? REPLY: If someone knowingly buys a person who has been kidnapped, misled, or sold by mutual agreement, their punishment is one degree less than that of the seller in each case. If the person who was kidnapped is made a personal retainer or a female retainer, the punishment is one degree less than were the person made a slave. If the person is made a wife, a concubine, a son, or a

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grandson, the punishment is reduced one degree further. In this way, making a person a wife or concubine reduces the punishment two degrees below that for making the person a slave. Thus in all the punishment is reduced three degrees below that of the original seller. If someone knowingly kidnaps a commoner and makes that person a slave, the punishment is strangulation. The person who buys the victim as a slave has his punishment reduced one degree. If the victim is bought as a female retainer, the punishment is reduced two degrees. If the person is made a wife, the punishment is reduced three degrees. From this example, the reduction of punishment for buying persons of various social classes can be known.

[76]

Article 296 Those Who Have Knowledge of Kidnapping or Misleading a Person or of Robbery by Force or by Stealth

ARTICLE: 296.1—All cases of those who have knowledge of kidnapping or misleading a person, or of robbery by force or by stealth and receive a share of the illicit gain have the share that they receive calculated and punished as comparable to robbery by stealth, reduced one degree. 58 296.2—Those who know that the illicit goods are the result of robbery and yet deliberately buy them are punished for illicit goods obtained through malfeasance, with the pumshment reduced one degree.' 9 296.3—Those who know of the illicit goods and conceal them have their punishment reduced one degree further. SuBCOMMENTARY:With regard to knowing that kidnapping, misleading, robbery by force, or robbery by stealth has taken place, if a person knows the circumstances and receives a portion [of the illicit goods,] because he originally did not join in the plot, the value of the illicit goods he received is calculated and punished as comparable to robbery by stealth, with the punishment reduced one degree. [9b] . . . For the illicit goods of other crimes, while the Code has no punishment for deliberately buying or concealing the illicit goods, the punishment is for doing what ought not to be done. 60 If the punishment for the crime is life exile or more, then the sentence is the lighter for doing what ought not to be done. If the punishment is penal servitude or less, the punishment is the lighter for doing what ought not to be done. 58 See Article 282 above.The point of the crime being sentenced as comparable to robbery by stealth is that Vol i, p. 261, Article 53, provides that in these cases double repayment of the value of the illicit goods is not required. 5, See Article 389 below "See Article 450 below. These punishments are eighty blows with the heavy stick and forty blows with the light stick, respectively.

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Article 297 Punishment for the Combined Amount of Illicit Goods in Robberies That Have Been Committed Collectively ARTICLE: 297.1—All cases of robberies that have been committed collectively are punished for the combined amount of illicit goods.61 297.2a—The person who formulated the plan, the accessories, and those who took part in carrying out the crime but did not receive a portion of the illicit goods, as well as those who received a portion of the illicit goods but did not take part in carrying out the crime, are punished following the law on principal and accessories in each case.62 SUBCOMMENTARY: Those who collectively take part in carrying out a robbery are punished for the combined amount of the illicit goods. Suppose ten men together commit a robbery of goods worth ten p'i of silk.Though each man's separate share is worth one p'i of silk, each is punished for ten p'i of silk. For the person who formulated the plan, there are cases where that person took part in carrying out the crime yet did not receive a share of the illicit goods and other cases where that person received a share of the illicit goods yet took no part in carrying out the crime. For accessories, there are also cases where they took part in carrying out the crime yet did not receive a share of the illicit goods and cases where they received a share of the illicit goods yet took no part in carrying out the crime. Even though there are these differences with regard to taking part in carrying out the crime and receiving shares of the illicit goods, each of the criminals is punished following the law on principal and accessories. Only one person can be the principal; the others are punished as accessories. Suppose "A" formulates the plan and does not take part in carrying out the crime but receives a share of the illicit goods."B" is an accessory who takes part in carrying out the crime yet does not receive a share of the illicit goods. "A" is the principal and " B " is the accessory, and so forth. [10a] ARTICLE: 297.2b—If the person who formulated the plan took no part in carrying out the crime and moreover received no share of the illicit goods, one of those who did take part in carrying out the crime becomes the principal and the person who formulated the plan becomes an accessory. Where punishment reaches the death penalty, it is reduced one degree.

"Depending upon whether the robbery were by force or by stealth,Articles 281 or 282 would be applicable. 62 See Vol. I, p. 225, Article 42. Generally, accessories are punished one degree less than the principal.

318

Article 297 297.2c—The accessories who took no part in carrying out the crime and moreover did not receive a share of the illicit goods are punished by forty blows with the light stick. Where the crime was robbery by force, the punishment is eighty blows with the heavy stick.

SUBCOMMENTARY: Suppose "A" formulated a plan to commit a robbery but did not take part in carrying it out. Furthermore, "A" did not receive a share of the goods taken in the robbery. "B," "C," and " D " carried out the crime together. " B " is the one who decided on the plan of action. Thus he becomes the leader of those who carry out the crime and is the principal. "A," who did not take part in carrying out the crime, becomes an accessory. Where the punishment for robbery by force reaches the death penalty, it is reduced one degree to life exile at a distance of 3,000 /('. However, for accessories, where the punishment is life exile or less, no decrease is permitted. . . . ARTICLE: 297.3a—If a person did not originally join in the plot but happened to meet the others and so collectively committed robbery, whoever at the time acted as the leader is the principal. The others are punished as accessories. COMMENTARY: 297.3b—If robbery by force is committed collectively, no distinction is made between principal and accessories. [77] SUBCOMMENTARY: . . .The commentary states:"Where robbery by force is committed collectively, no distinction is made between principal and accessories." This means that for robbery by force, even though originally a person did not join in the plot, if he did [10b] share in carrying out the crime, no distinction is made between principal and accessories. ARTICLE: 297.4a—If a master sends a personal retainer or a slave to commit a robbery, even if he gets none of the goods, he is still the principal. 297.4b—If after a robbery has been carried out, he comes to know the circumstances and receives a share of the illicit goods, regardless of whether the robbery was by force or by stealth, the master is punished as an accessory to robbery by stealth. SUBCOMMENTARY: Where a master sends a personal retainer or a slave from his own house to take part in carrying out a robbery, even if he gets none of the goods, he is still the principal for those who carry out the robbery, and the personal retainer or slave is the accessory. If a personal retainer or slave secretly takes part in carrying out a robbery and the master later comes to know the circumstances and receives any share of the goods, regardless of whether the robbery was by force or by stealth, the master is punished as an accessory to robbery by force. Suppose, for example, a personal retainer or others having already committed a robbery by force or by stealth, his master comes to know

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the circumstances and receives goods worth five p'i of silk. He will be punished by one hundred blows with the heavy stick.63 QUERY: Where such persons are going to carry out a robbery and their master, who has at first not joined in the plot, later sends a personal retainer or slave to join with these others in committing the robbery, of those who carry out the robbery, is the original plotter the principal or is the master who sent the personal retainer or slave the principal? REPLY: In cases of robbery, the principal is the person who puts forward the original plot. If the original plotter does not take part in the robbery, the person who at the time is the leader is the principal. Now, the slave's master is not the original plotter and further does not take part in carrying out the crime, but he does order the slave to join in the robbery and takes some of the goods. That the slave took part in carrying out this crime was due to his master's order. Now under questioning, it develops that another person was the original plotter. Even though it was the master who directed the persons of his household, [Ha] he did not join in the robbery. The first plotter then is the principal and the master is punished as an accessory. The value of the illicit goods that came to his slave is calculated and he is punished as comparable to an accessory. If the slave joined with others in committing a robbery of altogether illicit goods worth fifty p'i of silk, and the slave's share is worth ten p'i of silk, then the slave is punished as an accessory for goods worth fifty p'i of silk, which is three years of penal servitude. The master is an accessory for goods worth ten p'i of silk, which is punished by one year of penal servitude.

Article 298 Collectively Plotting Robbery by Force and Not Carrying It Out ARTICLE: 298.1a—In all cases of those who collectively plot robbery by force and at the time do not carry it out but rather carry out robbery by stealth; for those who collectively plotted and received a share of the illicit goods, the person who formulated the plan is the principal for the robbery by stealth; the others are accessories for the robbery by stealth. 298.1b—If the person who formulated the plan did not receive a share of the illicit goods, then he is an accessory to robbery by stealth, and the others are all punished by fifty blows with the light stick.

"See Article 282 above. The punishment for this amount of illicit goods would be one year of penal servitude. Reduced one degree because of being an accessory, it becomes one hundred blows with the heavy stick

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SUBCOMMENTARY: Suppose "A," "B," "C," and " D " plot together to commit robbery by force. "A" is the principal. At the time, however, they do not carry out robbery by force but rather robbery by stealth. Even though "A" did not take part in carrying out the robbery by force, he did take part in the collective plot and received a share of the illicit goods. Since "A" was the one who formulated the plan, then he is the principal for the robbery by stealth. The others who took part in carrying out the crime are all accessories to robbery by stealth. If "A" had not received a share of the illicit goods and further had not taken part in carrying out the crime, he would have been an accessory to the robbery by stealth. If the accessories did not take part in carrying out the crime and moreover did not receive a share of the illicit goods, they would have been punished by fifty blows with the light stick. In the previous article,64 accessories to the crime of robbery by stealth who neither [78] took part in carrying it out nor received a share of the illicit goods are punished by forty blows with the light stick. In this article, the punishment is fifty blows with the light stick because the original plot was to commit robbery by force. [ l i b ] ARTICLE: 298.2a—If those who collectively plotted robbery by stealth at the time did not carry it out but rather carried out robbery by force, and if the person who formulated the plan received a share of the illicit goods even though he took no part in carrying it out, regardless of whether he knew the circumstances, he is the principal for robbery by stealth. 298.2b—If the person who formulated the plan did not receive a share of the illicit goods, he, as well as all the accessories who did receive a share of the illicit goods, is punished as accessories to robbery by stealth. SUBCOMMENTARY: Persons plot together to carry out robbery by stealth. However, at the time some of them do not take part, but those who do take part commit robbery by force. Among those who do not take part is the person who formulated the plan for the original plot. If he receives a share of the illicit goods from the robbery by force, regardless of whether he knew the circumstances, he is the principal for the crime of robbery by stealth. If the person who formulated the plan did not receive a share of the illicit goods, he, as well as the accessories who did receive a share of the illicit goods, are all accessories to the crime of robbery by stealth.

Article 299 Committing Robbery Three Times ARTICLE: 299.1—In all cases of robbery where those who have had judgment "See Article 297 immediately above.

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passed against them do so again: (1) those who have been punished three times with penal servitude are sent into life exile at a distance of 2,000 Ii; (2) those who have been punished three times with life exile are punished by strangulation. COMMENTARY: Of the three cases of robbery, only those committed after an amnesty are counted. 65 ARTICLE: 299.2—In cases where relatives have committed robbery among themselves, this article is not applicable. SUBCOMMENTARY: Those who commit robbery are greatly rapacious. If they have committed the crime several times, it is clear that they have no intent to reform. Even where they have been punished three times, they will continue to commit the crime to the end of their life.The law must punish them severely as an example to others. . . . [12a] Those who receive a decrease or revision of sentence before judgment is passed do not come within the limits of the crime being committed three times. The commentary means that the three robberies must all have been sentenced after an amnesty. This means that the three crimes must have been committed after an amnesty.The circumstances of crimes committed previous to an amnesty are not considered. In cases where relatives have committed robbery among themselves, this article is not applicable. The Code means that where, according to the relevant article, the persons are relatives, this article is not applicable. According to the Articles on Administrative Regulations: "Relatives refer to those within the fifth degree of mourning on the paternal side, and within the third degree of mourning by marriage. [Other articles on relatives follow this article.]" 66 Thus if the robber is a member of the family of a nephew in the male line's wife, or a member of the family of a great nephew or niece in the male line's spouse, and the crime is punished by penal servitude, life exile, or more, it does not come within this article on committing a crime three times. QUERY: If the three crimes are capital but because of a decrease in sentences the punishments were reduced to life exile or penal servitude, or if once or twice the crime was punished by life exile or penal servitude, or once or twice the death penalty was reduced, must the calculation of the three crimes all be punished by life exile penal servitude or not? REPLY:The text of the article deals only with crimes committed after an amnesty and does not mention those that occurred before a decrease of sentences. A reduction of sentence from the death penalty only exempts the criminal from 65

On amnesties and other reductions of sentences, see Vol. I, pp. 15—17. "•See Article 143 above. The quote is from the commentary.

322 the The was can

Article 300 most extreme punishment; the decision is for life exile or penal servitude. relevant law is still is in force. Where the basic punishment for the crime heavier than for an actual crime punished by penal servitude or life exile, it always be considered as coming under this article on the three crimes.

[79]

Article 300 Taking Goods Openly or by Stealth Constitutes Robbery

ARTICLE: 300.1—All cases of robbery, no matter whether the goods are taken openly or by stealth, are considered to be robbery. COMMENTARY: 300.2—Things such as utensils and articles must be taken away. Animals that are kept in pens or tied up must be taken a distance from their usual places.Those that if released can fly or run away [12b] must be under control. Only then can the case be 6 7 robbery. 300.3—In the case of domestic animals where others of the same species follow, they are not included in the calculation. However, where they come following a parent, for example, there is robbery of a mare and her foal follows her, the foal's value is included in calculation of the punishment. SUBCOMMENTARY: . . .The commentary states:"Things such as utensils and articles must be taken away." Goods and articles are such things as coins and silk, which must be taken away. As for such things as pearls, jade, and other valuable objects, if they have been concealed, even though the crime has not yet been carried out, it is considered to be robbery. As for wood, stones, and other heavy objects that are too much for a man's strength and must be carried in a cart, even though they have been moved from their original place, if they have not yet been put into a cart, it does not constitute robbery. However, objects are of different sizes so that it is difficult to make a decision in advance; therefore only an oudine is given. In each case the judgment must be in accord with what has been taken at the time. Animals that are kept in pens or tied up must be taken a distance from their usual places. This refers to horses, oxen, camels, mules, and suchlike animals. They must have been taken out of their pens and moved from where they are penned or tied up. Animals that can fly or run away refer to those such as falcons or dogs. Only if they are under a person's control and cannot get free does it constitute robbery. In the case of domestic animals where others of the same species follow, for example, where there is robbery of a horse and other horses follow it, they are not combined in calculating the value to determine punishment. However, where they come following a parent, for example, there is robbery of a mare and her foal follows her, the foal's value is combined in calculating the punishment. "Ch'eng βζ should be read wei M, following the KHCPTS edition.

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Article 301 Where Robbery Is Committed or Robbers Are Harbored in the Area under an Official's Control [13a] ARTICLE: 301.1a—All cases of one person committing robbery or of one robber being harbored in the area under his control punish the village headman by fifty blows with the light stick, increased one degree for each further three robbers. COMMENTARY: The ward headman and the hamlet headman receive the same punishment. ARTICLE: 301.1b—If in a county one robbery is committed, the punishment is thirty blows with the light stick, increased one degree for each further four robbers. COMMENTARY: 301.1c—If in the area under his control a robbery is discovered or a person is killed, each place is punished as if it were one person.Where someone is killed, the punishment is the same as under the law on robbery by force.68 SUBCOMMENTARY: In the area under his control refers69 to areas under the control of a prefecture, county, locality, or village where a commoner commits robbery. Harboring a robber refers to a robber from outside the area entering its borders and the person who controls that area harboring the robber. . . . If in a county one robbery is committed means that if a single robbery is carried out, the county magistrate is punished by thirty blows with the light stick, . . . In the text below, where the punishment for robbery by force is increased one degree, the punishment for killing a person is also increased one degree. This means that where there has been an occurrence of robbery by force, the village headman and others are [13b] punished by sixty blows with the heavy stick. Even if the robber is not a person of the area, if the robbery is discovered in the area, it is also treated like this. Permitting a criminal who has killed a person to remain is also punished [80] following the law on robbery by force. ARTICLE: 301.Id—Depending upon the number of counties controlled by the prefecture, a comprehensive calculation determines the punishment. 301.1 e—The maximum punishment is two years of penal servitude in each case. 301.2—Robbery by force increases the punishment one degree in each case. 68 6

See Article 281 above The punishment is decapitation. O m JNf should be read wet Iu, following all other editions

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COMMENTARY: 301.3—In all cases, the senior official is the principal and his subordinates are the accessories.70 SUBCOMMENTARY: Depending upon the number of counties controlled by a prefecture, a comprehensive calculation determines the punishment. In each case, the maximum punishment is two years of penal servitude. This means that the maximum punishment for the village headman, ward headman, or hamlet headman is two years of penal servitude. Robbery by force increases the punishment one degree in each case so that the maximum punishment is two and onehalf years of penal servitude. . . . ARTICLE: 301.4a—Thus where there is a robbery and when the robbery is discovered or after a person has been killed, if within thirty days there is an arrest, the officials in charge will not be punished. COMMENTARY: The arrest can be made by other persons, or the criminal can surrender himself. [14a] ARTICLE: 301.4b—If the arrest is made after the time limit has passed, the punishment is rescinded and reduced three degrees. 301.5—If a crime is committed where the army is doing labor service, officers from company commander to general will be punished according to the law on conscripts replacing each other in areas under their jurisdiction. 71 They receive the same punishment as officials at the prefecture and county levels. SUBCOMMENTARY: . . . If the arrest is made after the time limit has passed, the punishment is rescinded and reduced three degrees. This has reference to obtaining a reduction of punishment even after sentence has been passed. H o w ever, if the punishment has already been memorialized and decided, it does not come within this article on rescinding punishment and reducing it. . . . 70 This concerns the collective responsibility of officials, which is set out in Vol i, p. 216, Article 40. For civil officials, the particular situation here has already been described in detail in the subcommentary to Article 152 above The same situation for military officials is set forth later in this article.The rules for their collective responsibility are given in Article 228 above.Therefore I have not repeated either of them here. "See article 228 above. The punishment begins at fifty blows with the light stick for the first man.

8. ASSAULTS AND ACCUSATIONS [la; 81]

CHAPTER

XXI

The Articles on Assaults and Accusations were originally called the Rules on Assaults and Beating. Following this, they were called the Affairs Regarding Accusations to the Court about Criminal Matters and about Civil Matters. From the Ch'in and Han dynasties until the Chin dynasty, this section did not exist. Coming to the T'ai-ho period [477—499] of the Latter Wei dynasty, the Articles on Hitting and Interrogation were made into the Articles on Assaults. Coming to the Northern Ch'i dynasty, the affairs about civil accusations were appended and the section was called the Articles on Assaults and Accusations. During the Northern Chou dynasty, it was called the Articles on Assaults and Quarrels. The laws of the Sui dynasty K'ai-huang period followed the Ch'i dynasty and called this section Assaults and Accusations.This has not changed at the present day. It is proper to put this section after the Articles on Violence and Robbery. Therefore it follows the previous section on Violence and Robbery.

Article 302 Beating or Wounding a Person in an Affray with Hands, Feet, or Other Objects ARTICLE: 302.1—All cases of beating a person in an affray are punished by forty blows with the light stick. 302.2—If the person is wounded, or if other objects are used to beat him, the punishment is sixty blows with the heavy stick. COMMENTARY: This means where the hands or feet are used to hit a person. The drawing of blood constitutes a wound. Other objects include everything other than hands or feet and thus also military weapons if the edge or point is not used.1 SUBCOMMENTARY: Struggling together constitutes an affray. Mutually hitting constitutes beating. . . . The commentary states: "This means to use the hands or feet to hit a person." Hands and feet are used as an example; using such things as the head is the same. Wound means to use the hands or feet to wound. If objects other than hands are feet are used to [lb] beat, even though there is no wound, in each case the punishment is sixty blows with the heavy stick. The commentary states: "The 1

I follow here Shiga, Translations, vi, pp. 276, n. 1, that this indicates hitting someone with the flat side of a sword, i.e., that the edge or point is not used.

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drawing of blood constitutes a wound."This means that because of the beating blood is drawn. . . . QUERY: Beating a person means to use the hands or feet to hit them. Where a person's cranial hair is seized or their clothes are grabbed, is this the same as beating and hitting or not? REPLY: Beating a person in an affray means to use the hands or feet to hit a person. Thus it is clear that even though the person has not yet been wounded, as soon as a blow is struck, a crime has been committed. As for seizing the cranial hair, taking hold of the collar, or grabbing the throat, this can wound or kill a person. The circumstances are not less serious than beating and should be treated the same as under this law on beating. In principle they are not different. ARTICLE: 302.3—If the person is wounded or a square ts'un of cranial hair {fa 5¾) is pulled out, the punishment is eighty blows with the heavy stick. 302.4—If blood comes out of the ears or eyes, or there is an internal injury so that the person spits blood, the punishment is increased two degrees in each case. SuBCOMMENTARY:This refers to beating persons with other objects than hands or feet and wounding them. If a square ts'un or more of cranial hair is pulled out, in each case, the punishment is eighty blows with the heavy stick. A square ts'un refers to measuring the hair pulled out from a place where there is no hair and the dimensions are a full square2 ts'un. [82] Where the dimensions of the area are not equal, if the circumference is four [2a] ts'un, the area is considered to be a square ts'un. If a person's head or face is beaten so that blood comes out of the eyes or ears, or a person's body is beaten so that there is an internal injury and the person spits blood, in each case the punishment is increased two degrees beyond that for beating or wounding with the hands, feet, or other objects. If the cranial hair pulled out is not a full square ts'un, the punishment is limited to that for beating. Where facial hair {pin ^f) has been pulled out, the punishment follows that for cranial hair. Where the nose is beaten and blood comes out, the punishment is limited to that for beating or wounding. Where a person is beaten so as to cause a bloody diarrhea, the punishment is the same as where a beating causes blood to be spit.

2

Yi — should be read fang ~fj, following all other editions.

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327

Article 303 Beating a Person in an Affray So as To Break a Tooth or Injure an Ear or Nose 3

ARTICLE: 303.1—All cases of beating a person in an affray so as to break a tooth, or injure or mutilate an ear or nose, or damage the sight of an eye, or break 4 a finger or toe, or to fracture a bone, as well as wounding a person by boiling liquid or fire, are punished by one year of penal servitude.

COMMENTARY: Damage the sight of an eye refers to injuring the sight yet the person can still see things. ARTICLE: 303.2—If two or more teeth, fingers, or toes are broken, or the person is caused to become bald, the punishment is one and one-half years of penal servitude. SUBCOMMENTARY: . . . Injuring or mutilating the mouth or eye receives the same punishment. . . .Where because of a blow a bone is cracked but not broken, the punishment is one year of penal servitude. If the boiling liquid or fire does not cause a wound, the punishment follows the law on beating a person with other objects than the hands or feet. In the phrase two or more teeth, fingers, or toes are broken, reference to [2b] or more means that even though several are broken, the punishment is not increased. . . . If a person has not been caused to become completely bald but still has some hair, the punishment is limited to that for pulling out a square ts'un or more of cranial hair, that is, eighty blows with the heavy stick. Where because of an affray the hair that is torn out is taken by the criminal, the punishment follows the article in the Articles on Violence and Robbery entitled "Seizing a Person's Articles after Originally Beating H i m for Another Reason," 5 where it is stated that the value of the illicit goods is calculated and punished for robbery by force. If molten copper or iron is used to wound persons, the punishment is compa­ rable to that for wounding them with boiling liquid or fire. If poisonous insects or reptiles are used to sting or bite a person, the punish­ ment is the same as under the law on beating a person with other objects than the hands or feet. 3

I have translated the character die ί/f as "break." To give a proper translation, I have used the definition of "break" given in Article 312 below, as breaking at least a tooth. Hence, where the character die appears, I have always translated it as "break a tooth." 4 The character p'o jjjjr, which I have translated as fracture,seems to refer to damage to the bone when it is not actually broken into two parts, the character for which is die iff. Dr. Irving Behm, who is my source for this information, informs me that the technical name used is "spring stick fracture." 'See Article 286 above.

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Article 304

If a person is beaten so that all ten fingers are broken and the person cannot hold things, or where two limbs are disabled, the decision follows the law on causing disablement, and the punishment is life exile at a distance of 3,000 Ii.6

Article 304 Slashing at or Shooting at a Person with a Military Weapon ARTICLE: 304. Ia—All cases of slashing at or shooting at a person with a military weapon in an affray without hitting them are punished by one hundred blows with the heavy stick. COMMENTARY: Military weapons refer to such things as bows, arrows, swords, lances, and tridents. 304.1b—If the punishment for beating the person would be heavier, then the law on beating is followed.7 SUBCOMMENTARY: . . .Where the punishment for beating is heavier refers to the specific article on beating providing one year of penal servitude or more. With regard to slashing at or shooting at a person without hitting them being punished following the law on beating, suppose that [3a] because of an affray a person slashes at or shoots at a first cousin older than himself in the fourth degree of mourning without hitting him. Following the specific article on beating, the punishment is one year of penal servitude. So the punishment is not that for slashing at or shooting at a person. In cases like this the law on beating is followed. ARTICLE: 304.2—If a sharp implement wounds a person, COMMENTARY: Sharp implement refers to those made of bronze or iron, without distinction of size, which can be used to kill people. ARTICLE: or if a person's ribs are broken, or if the sight of both eyes is damaged, or a miscarriage is caused, the punishment is two years of penal servitude. COMMENTARY: Miscarriage refers to the punishment for a child dying within the period of responsibility for the offense.8 [83] If a child dies after the period of responsibility is over, the punishment follows the specific article on beating or wounding. 6

See Article 305 below. See Article 303 above. "See Article 307 below.

7

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329

SUBCOMMENTARY: . . . Causing a miscarriage refers to the child being in the womb and not yet born. If an abortion is caused by a blow, the punishment is two years of penal servitude in each case. The commentary states: "Miscarriage refers to the punishment for a child dying within the period of responsibUity for the offense."This means that the child dies inside the mother within the period of responsibility for the offense. If the child dies inside the mother when the period of responsibility for the offense is over, or if an abortion is caused when the child has not yet been formed, in each case the law on injuring and wounding is followed, and there is no punishment for causing the abortion. Where a relative or a person of a higher or lower social class is beaten which results in an abortion, in each case the application of the law on increasing or reducing punishment from two years of penal servitude is due to the status of the mother, not the child. If the punishment were determined on the basis of the fetus, deceptions would result.Therefore the period of responsibility for the offense applies only to mothers and not to children with the intent of [3b] not causing harm to children. If the beating of the mother causes a serious wound, the decision is the same as for breaking a tooth, etc., and wounding. Suppose a man beats his older sister and causes an abortion. Following the text below, where beating an older brother or older sister is punished by two and one-half years of penal servitude and where breaking a tooth, etc., and wounding them, this is punished by life exile at a distance of 3,000 Ii. In another article, beating or wounding is stated to be breaking a tooth or more. 9 Causing an abortion is punished by two years of penal servitude so that the punishment is heavier than that for breaking a tooth. Thus if a man beats his elder sister and causes an abortion, the punishment should be life exile at a distance of 3,000 Ii.

Article 305 Beating a Person in an Affray so as to Break a Limb, Dislocate a Joint, or Blind an Eye ARTICLE: 305.1a—All cases of beating a person in an affray so as to break a limb, dislocate a joint, or blind an eye are punished by three years of penal servitude. COMMENTARY: Breaking a limb means to break a bone. Dislocating a joint means that the articulations of the bones are separated so that they are not in their usual place.

'See Article 312 below. This definition is the commentary to that article.

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Article 305

ARTICLE: 305.1b—If the person recovers {p'ing-fu 2PiJC) within the time hmits of responsibility,10 the punishment is reduced two degrees in each case. COMMENTARY: Recovery from limbs being broken or joints being dislocated in other articles follow this article. SUBCOMMENTARY: . . . Limbs refer to the hands and feet. . . . Blinding an eye means that the sight of the eye is destroyed and it is completely unable to perceive things. The commentary states: "Recovery from limbs being broken or joints [4a] being dislocated in other articles follows this article." This means that in all articles referring to relatives of a higher generation or of the same generation but younger, or of persons of higher or inferior social classes being involved in beating in an affray, or intentional beating so as to break a limb or dislocate a joint, and where recovery takes place within the time limits of responsibility, reduce the punishment by two degrees. Recovery from the breaking or dislocating of other bones and joints than those of the hands and feet is treated the same. Where a person's limbs had already become twisted and the person is disabled," even the breaking of only one limb due to a beating is punished by life exile at a distance of 2,000 Ii. In such cases, what is to be done with those who have protection, which allows reduction of punishment and redemption by payment of copper? 12 The General Principle states:"In cases for which a life exile is required because of intentional beating causing disablement. . . for none of these cases will reduction of punishment or redemption by payment of copper be permitted." Here, however, the disablement occurred previously and was not caused by the beating, so reduction of punishment and redemption by payment of copper is allowed. [84] ARTICLE: 305.2—If there are two or more injuries, or if because of an old illness the present injury causes incapacitation, or the tongue is cut out, or a man's sexual organs are damaged, the punishment is life exile at a distance of 3,000 Ii. SUBCOMMENTARY: If there are two or more injuries refers to such cases as beating a person so as to blind an eye or break a limb. If because of an old injury the present one causes incapacitation refers to where previously a person was blind in one eye and was maimed, and the person loses the sight of the other eye and becomes incapacitated, or where one foot had already been broken and the person

'"See Article 307 below. "Disablement and incapacitation are both defined in the Statutes. See a brief discussion of them in Vol. i, p. 31. 12 The privileges of those having protection are set forth inVol. i, p. 93, Article 11.The answer to this question in the quote interestingly enough is also from the same article.

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was disabled; now another foot is broken and the person becomes incapacitated. The tongue being cut out refers to not being able to speak at all. The sexual organs being damaged means that the person is no longer able to have descendants through sexual intercourse. In each case, the punishment is life exile at a distance of 3,000 Ii. If even though the tongue is cut off a person's speech can still be understood, or where the damage to the sexual organs does not prevent having descendants through sexual intercourse, the punishment follows the law on wounding. [4b] QUERY: If a person's eye is already blinded and is then beaten so that the pupil is destroyed, or a person is already dumb and then the tongue is cut out, what is to be the punishment for such crimes as these? REPLY: Man's form resembles heaven and he receives his shape from his parents. There is no one who does not love what he has received. He is happy with the fate that heaven has bestowed. Should a person already have a chronic disease, it is indeed bitter to have a second wound. With regard to being injured by a person, how can it be proper to have a separate ruling? If a man is already dumb or has lost the sight of an eye and then his pupil is destroyed or his tongue is cut out, the punishment is limited to that for cutting out the tongue or blinding an eye.

Article 306 Intentionally Killing a Person in an Affray with a Military Weapon™ ARTICLE: 306.1a—All cases of beating and killing a person in an affray are punished by strangulation. 306.1b—If a sharp implement is used or the person is killed intentionally (ku-sha 1¾^5). the punishment is decapitation. 306.1c—Even though it is because of an affray, if a person is killed with a military weapon, the punishment is the same as for intentionally killing. COMMENTARY: 306. Id—If a person is forced to use a military weapon because of another person's doing so and in resisting wounds or kills that person, the punishment follows the law on affrays. The use of military weapons in other articles follows this one. "Military weapons have been defined in Article 304 above. It will be noted that I have variously translated the character jen J], as weapon, sharp implement, and sword. Weapon is used when jen is preceded by ping ^ , following the definition given in the article above. Sharp implement is used when jen occurs in a context that would permit the possession of farm implements such as a spade, since I don't believe that the Code means to limit killing to swords and knives. In Article 311,1 translate jen as sword since it seems more likely in that context.

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Article 306

SUBCOMMENTARY: Beating in an affray refers to where originally there was no intent to kill. But if due to an affray blows are exchanged and person is killed, the punishment is strangulation. If a sharp implement is used or the person is killed intentionally means that since a sharp implement was used in the affray, there was intent to do harm. Killing that is not due to struggling in an affray—where there is no provocation—is called intentional killing, and in each case the punishment is decapitation. Even though the killing was due to an affray if a military weapon was used, since the military weapon was used because of an affray, the punishment [5a] is the same as for intentional killing, and the punishment also is decapitation following the law on intentional killing. The commentary states:"If someone is forced to use a military weapon because of another person's doing so and in resisting wounds or kills that person . . . ." This means that where it is forced upon him, even though a person uses a military weapon, the punishment follows the law on killing in an affray. The use of military weapons in other articles follows this article means that in other articles14 about relatives, or persons of commoner or inferior status, where a person is forced to use a military weapon because of another person's doing so and, in resisting, wounds or kills them, the punishment follows this law on affrays. The article also states that the use of a military weapon to kill is punished the same as an intentional killing, but it has no provision regarding wounding. Thus the punishment for wounding follows the law on affrays.The commentary states: "If a person is forced to use a military weapon [because of another person's doing so] and, in resisting, wounds or kills them." It is because of the use of a military weapon to wound a person that death resulted. Therefore there is a connection. QUERY: Intentionally killing a person is punished by decapitation. Using a sharp implement to kill a person in an affray is also punished by decapitation. Thus the punishments are not different, and according to the texts there is no different reasoning. Why then is it necessary to state: "If the person is killed with a military weapon, the punishment is the same as for intentionally killing"? REPLY:The General Principles section states: "In cases involving violation of the ten abominations, and intentional killing, . . . even though there be an amnesty, the criminal still will be disenrolled."15 [85] In cases where a military weapon kills a person, the circumstances are more serious.Therefore the text agrees with the law on intentional killing that even though there be an amnesty, the criminal still will be disenrolled.

"T'iao fsjl should be inserted here, following the Butsukan edition. "SeeVol. i,p. 119,Article 18.

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ARTICLE: 306.2—If the intentional beating or wounding of a person is not due to an affray, the punishment is increased one degree above that for beating or wounding in an affray. 306.3—If the killing or wounding of a person is due to an affray but is separated by an interval of time from it, the punishment follows the law on intentionally killing or wounding. [5b] SUBCOMMENTARY: If the intentional beating or wounding of a person is not due to quarreling and an affray, the punishment is increased one degree above that for doing so in an affray. If a person is beaten with a fist but not wounded, the punishment is increased one degree above the forty blows with the light stick to fifty blows with the light stick, and so forth. 16 Where the killing or wounding is due to an affray but is separated by an interval of time from it means that after the quarrel the persons separate, and having gone out of each other's hearing, come together again and a killing or wounding results. This is called separated by an interval, and the punishment follows the law on intentionally killing or wounding.

Article 307 The Period of Responsibility for an Offense ARTICLE: 307.1—All cases of beating or wounding 17 a person with the hands or feet limit the period of responsibility for the offense (pao-ku "(¾^) to ten days. If other objects than hands or feet are used to beat or wound a person, the period of responsibility for the offense is twenty days. Where a sharp implement, boiling liquid, or fire is used to wound a person, the period of responsibility for the offense is thirty days. If a limb is broken, a joint is disabled, or a bone is fractured, the period of responsibility for the offense is fifty days. COMMENTARY: Beating and wounding are not both necessary. Other articles on beating or wounding as well as wounding and killing follow this article. SUBCOMMENTARY: In all cases where persons are beaten, a time limit is established for the period of responsibility for the offense. Where a person is beaten with the hands or the feet, regardless of whether they are wounded, the time limit is ten days. If by another object, the time limit is twenty days.The use of a 16

See Article 302 above. "Wounding is defined in Article 302 above. But below where boiling water or fire are used, blood may not appear. Therefore in that place I have used the word injure where the Chinese character is the same as is used for wound.

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Article 307

sharp implement refers to those made of bronze or iron regardless of size. Where boiling liquid or fire are used to injure a person, this means that the skin is badly burnt and the time limit is thirty days. If a limb in broken, a joint is disabled, or a bone is fractured, no matter whether by hands or feet, or by other objects, the time limit is fifty days. The commentary states: "Beating and wounding are not both necessary."This means that the period of responsibility for the offense of beating or wounding is ten [6a] days. Where persons are wounded it must be due to beating. Here, however, it is stated that both are not necessary, as below where a person is wounded through falling or where they are injured due to fright.These are cases where persons are wounded or injured but not because of a beating. . . . Other articles on beating or wounding as well as wounding and killing follow this article means that all articles on beating persons or wounding them, whether intentionally or in an affray, or as the result of a plot to kill or of robbery by force, and where punishment is required follow this article regarding the period of responsibility for the offense. ARTICLE: 307.2—If the person dies within the time hmit, the punishment is for killing a person. If the person dies outside the time limit, or even within the time limit from another cause, the punishment follows the law on wound­ ing and killing in an affray.18 COMMENTARY: Another cause refers to dying from the onset of a different illness. SUBCOMMENTARY: If the person dies within the time limit, the punishment is for killing a person means that when the person dies within the period of responsi­ bility regardless of whether the person is a relative of a higher generation or of the same generation but older, or of commoner or inferior social status, or whether the offense is more or less serious. In each case the punishment follows the specific article on killing. . . . Even within the time limit means that when the time limit has not passed, the person dies from another cause.This refers to dying from the onset of a different illness. Suppose that a person is beaten and wounded in the head, and infec­ 19 tion enters through this laceration and the person dies because of the wind, then the punishment is for killing a person. But if the person does not die from getting wind through the laceration in the head but from another illness, this is what is considered to be another cause, and the punishment follows the law on beating or wounding. [6b] . . . Cases of causing a miscarriage, blinding an eye, or damaging the sexual organs, anything caused by hands, feet, or other objects, or by using a dagger, boiling liquid, or fire, come within the limits of the period of responsibility. [85] ,8

See Articles 302-306. "I follow the translation of Bodde and Morris, Law in Imperial China, ρ 244, for the character feng Hl "wind."

Article 308

[86]

335

Article 308 Beating or Wounding Someone Whether or Not Because of Plotting Together

ARTICLE: 308.1a—AU cases where persons plot together collectively to beat or wound someone 20 punish the one who strikes the heaviest blow with the heaviest punishment. The original plotter {yuan-mo 7EsS:) has his punishment reduced one degree. The accessories' punishment is reduced one further degree. 308.1b—If the original plotter strikes the heaviest blow, the others involved each have their punishment reduced two degrees. 308.1c—If death results, whoever caused the death receives the heaviest punishment. SUBCOMMENTARY: Plotting together collectively to beat or wound a person refers to two or more men being of the same mind and formulating a plot collectively to beat or wound another person. Suppose that "A," "B," "C," and " D " plot to beat or wound a person. "A" is the original plotter, and " B " strikes the heaviest blow, beating the person so as to break a limb. Giving the person who struck the heaviest blow the heaviest punishment punishes " B " by three years of penal servitude. "A" is the original plotter, and his punishment is reduced one degree to two and one-half years of penal servitude. " C " and " D " are accessories, and their punishments are reduced one degree further to two years of penal servitude. If the beating had not been due to an affray, but " B " was the principal in an intentional beating, the punishment would be life exile at a distance of 2,000 Ii. If "A" was the original plotter, his punishment would be reduced one degree to three years of penal servitude, and " C " and " D " would receive two and one-half years of penal servitude. Should the original plotter also strike the heaviest blow—if "A" was the original plotter and also struck the heaviest blow—then "A" would be punished by [7a] three years of penal servitude and "B," "C," and " D " would each have their punishments reduced two degrees to two years of penal servitude. For cases such as intentional beating, "A" would be punished by life exile at a distance of 2,000 Ii, and the others would each have their punishments reduced two degrees to two and one-half years of penal servitude. Where death is the result means that the result of beating the person is death. Whoever caused the death receives the heaviest punishment. This is explained by a case where "A" has beaten a person on the head, " B " on the hands, " C " on the feet. If the laceration in the head causes the death, then "A" receives the heaviest punishment. If the wound in the hand causes the death, then " B " receives the heaviest punishment. If the wound in the foot causes the death, then " C " receives the heaviest punishment. The heaviest punishment is repaid by death. The others have their punishment reduced two degrees to three years of 1

On these offenses, see Articles 302-306.

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penal servitude. If "A" was the original plotter (but not the cause of the death), his punishment is only reduced one degree to life exile at a distance of 3,000 Ii. ARTICLE: 308.2—If the persons did not plot together, each is punished for the beating, wounding, or killing that he did. 308.3—If the offense cannot be divided, the person who struck the last blow receives the heaviest punishment. SUBCOMMENTARY: Where the persons did not plot together—if "A," "B," "C," and " D " do not plot together, but because of an affray collectively beat or wound a person, "A" beating the head and causing a wound, " B " hitting a foot and breaking i t , " C " hitting a finger and breaking it, while " D " beats the person but does not cause a wound. The laceration in the head causes death so "A receives the punishment for killing a person and repays by death. Because " B " broke a limb, he is punished by three years of penal servitude."C" broke a finger and is punished by one year of penal servitude. " D " beat the person but did not cause a wound and is punished by forty blows with the light stick. This is each being punished for the beating, wounding, or killing that he did. Where the offense cannot be divided, [7b] the person who struck the last blow receives the heaviest punishment means that if these four men collectively beat a person and the lacerations cannot be divided, but death was caused by the beating, then the person who struck the last blow receives the heaviest punishment.This means that if " D " struck the last blow, then " D " receives the heaviest punishment, and the others each are punished by three years of penal servitude. 21 The punishment of the original plotter is reduced one degree to life exile at a distance of 3,000 Ii. ARTICLE: 308.4—If the beating or wounding takes place in a melee (luan ||[) so that the order and severity of the wounds are not known, the principal plotter and the person who started the affray receive the heaviest punishment. The others each have their punishment reduced two degrees. SUBCOMMENTARY: Suppose a group of men collectively engage in an affray and in the melee beat and wound a person.The person who has been wounded dies, and the name of the person who struck him is not known. Neither is the order or severity of the wounds known. If the beating took place because of persons plotting together, then the person who was the [87] principal plotter receives the heaviest punishment. If there was no plotting together but only beating or wounding in a melee, the person who started the affray receives the heaviest punishment. The others, who neither were the principal plotter nor started the 21 VoI. I, p. 268, Article 56, specifies that one degree of reduction of punishment from either of the death penalties shall be life exile at a distance of 3,000 Ii, and one degree of reduction from any of the penalties of life exile shall be three years of penal servitude.

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affray, each have their punishment reduced two degrees to three years of penal servitude. Suppose death does not result, but only two limbs are broken. If there was a plot to cause an affray, then the principal plotter is punished by life exile at a distance of 3,000 Ii, and the others each are punished by two and one-half years of penal servitude. If there was no joint plot, the person who started the affray is punished by life exile at a distance of 3,000 Ii, and the others again have their punishment reduced two degrees. QUERY: Suppose three men, "A," "B," and "C," plot together to beat a person and each beats the person once with his fist. Are there principal and accessories? REPLY: The article states: "[All cases] where persons plot together to wound someone punish the one who strikes the heaviest blow with the heaviest punishment." Here, however, death results within the period of responsibility and therefore there are degrees of reduction of punishment. The text states: "Where the persons did not plot together, each is punished for the beating, wounding, or killing that he did." Thus it is clear that the one who beats is punished for beating, the one who wounds for wounding, and the one who kills for killing. Beating a man with the fist is punished by forty blows with the light stick. Where the persons did not plot together, each is punished for beating. If they did plot together to beat a person, how can they get reduction of punishment? Therefore we know that each is punished by forty blows with the light stick, and there is no difference between principal and accessories. Suppose further that " D " also plotted together with "A," "B," and "C," but " D " did not strike a blow, neither was he the original plotter. He has his punishment reduced two degrees to twenty blows with the light stick. FURTHER QUERY: Suppose two men,"A" and "B," plot together to beat a person. "A" is the original plotter and moreover the first to strike a blow, beating the person and breaking a limb. " B " is the accessory. He later strikes a blow, beating the person and blinding an eye. What punishment does each of them receive? REPLY: According to the article above, breaking a limb, dislocating a joint, or blinding an eye are punished by three years of penal servitude. 22 If there are two or more injuries or if because of an old illness the present injury causes incapacitation, the punishment is life exile at a distance of 3,000 Ii. Here, then, persons have plotted together to beat someone, and the injury and the wounds are two offenses. "A," even though he is the principal plotter, receives three years of penal servitude. But since " B " caused the second injury, he is punished by life

-See Article 305 above.

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Article 309

exile at a distance of 3,000 ZJ'.23 Had they not plotted together, and each caused one injury, both would have received the basic punishment of three years of penal servitude.

Article 309 Using Coercion or Physical Strength To Restrain a Person by Tying Them Up [8b] ARTICLE: 309.1 a—All cases of using coercion or physical strength to restrain a person by tying them up are punished for beating in an affray in each case. 309.1b—If as a result of being restrained by being tied up the person is beaten or wounded, the punishment for beating or wounding in an affray is increased two degrees. SUBCOMMENTARY: . . . According to the article above,23 other objects are everything aside from hands or feet. Thus it is clear that coercion or physical strength come within the limits of other objects. Tying up a person without wounding them is punished by sixty blows with the heavy stick. If the person is wounded, the punishment is eighty blows with the heavy stick. If as a result of being restrained by being tied up the person is beaten or wounded means that if because of being tied up they are beaten, regardless of whether they are wounded or not, the punishment for beating or wounding in an affray is increased two degrees. This means that if because of being tied up other objects than hands or feet are used to beat without wounding the person, the punishment is eighty blows with the heavy stick. If the person is wounded, the punishment is one hundred blows with the heavy stick. This is called increasing the punishment for beating or wounding in an affray two degrees in each case. ARTICLE: 309.2—If by coercion or physical strength a person is caused to beat or hit someone else and death or a wound results, even though the person who used coercion or physical strength did not strike a blow, that person receives the heavier punishment, and the person who struck the blow has his punishment reduced one degree. [88] SUBCOMMENTARY:The use of coercion or physical strength to force a person refers to using coercion due to office or relying on power or physical strength to cause someone to beat or hit another person. . . . Suppose "A" relying on coercion or physical strength causes " B " to beat and 23

IbId. See Article 302 above. 25 IbId. 24

Article 3ίΟ

339

kill " C . " Even though "A" did not strike a blow, he still [9a] is punished by death."B'"s punishment is reduced one degree to life exile at a distance of 3,000 Ii. Had a finger or toe been broken, "A," even though he did not strike a blow, would have been punished by one year of penal servitude, while "B"'s punish­ ment would have been reduced one degree to one hundred blows with the heavy stick. Suppose "A" is a supervisory official and he tells an inquisitor (wen-shih f«3 IJf) to beat an innocent commoner. The heavy stick is used in accordance with the law on administering punishment and results in the commoner's death. The official is punished for killing the person and the inquisitor is not punished. If other objects or the hands or feet had been used to hit and kill, then the official would have been punished for using coercion or physical strength to kill a per­ son, and the decision against the inquisitor would have reduced his punishment by one degree.

Article 310 Both Parties to Beating or Wounding Will Be Punished According to the Code ARTICLE: 310.1—All cases of two parties beating or wounding 2 6 each other in an affray punish each of them, depending upon the seriousness of the offense, according to the Code. 310.2—The person who returns a blow and is in the right (li-chih Bt[IL) will have his punishment reduced two degrees. COMMENTARY: If death results, the punishment will not be reduced. SUBCOMMENTARY: AS for two parties beating or wounding each other in an affray—suppose two men, "A" and "B," beat and wound each other because of an affray. "A" beats " B " but does not wound him. This is punished by forty blows with the light stick. " B " beats and wounds "A," which is punished by sixty blows with the heavy stick. Now if "A" were a commoner and " B " a member of an inferior class and "A" beat " B " and wounded him,"A"'s punish­ ment would be reduced two degrees below that for wounding a commoner, or to forty blows with the light stick. If " B " beat "A" without wounding him, "B'"s punishment would be increased two degrees above that for a commoner, or to sixty blows with the heavy stick. 27 Thus higher or lower status can cause an increase or decrease in punishment, and each is punished in accordance with this principle. As for the person who returns the blow and is in the right having his punishment 26

On beating and wounding in an affray, see ibid. The definition of wounding is discussed in note 16 above. ^See Article 320 below.

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Article 310

reduced two degrees—suppose "A" beats " B " but does not wound him.This is punished by forty blows with the light stick. "B," having not provoked "A," is [9b] without fault. But having been hit, " B " subsequendy, in defending himself, beats "A." " B " is in the right, and the basic punishment for his offense is reduced two degrees to twenty blows with the light stick. But had " B " killed "A" because of an affray, even though his punishment could not reach the death penalty, it would not have been reduced. 28 . . . QUERY: If relatives of different generations beat each other, the one who returns the blow and is in the right gets reduction of punishment. But it is not yet known whether if a paternal uncle first strikes a blow and beats a nephew in the male line, or if an older brother or sister first strikes a blow and beats a younger brother or sister, will there be a reduction of punishment for the one who returns the blow and is in the right? REPLY: Where persons of nonkin status beat each other, the sections of the article make the differences clear. But where this offense involves relatives of different generations within the five mourning relationships, the levels of punishment are quite different. If a person beats any older relative of the fifth degree of mourning, the punishment is one hundred blows with the heavy stick. Had the person been of the fourth or third degree of mourning, the punishment would have progressively increased one degree. If a person beats a relative of a lower generation or of the same generation but younger within the fifth degree of mourning relationship and breaks a bone, the punishment is one degree less than were the relative a person of non-kin status. And were the person a relative of the fourth or third degree of mourning, the punishment would be progressively decreased one degree. But following the mourning relationship, where person of different generations beat each other, both are punished. The one who is in the right has his punishment reduced.There is no doubt of this. If a person beats a nephew in the male line or younger sister or brother, only if the beating causes death is the person punished. Even if the wound is severe, the Code does not punish this offense. If there is no punishment, how can whoever was in the right gain reduction of punishment? What is brought up here is a paternal uncle and a nephew in the male line, where beating [89] and wounding is not punished at all, so it does not come within this article.

28

Ibid.

Article 311

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Article 311 Quarrels within the Imperial Palace [1Oa] ARTICLE: 311.1a—All cases of quarrels within the imperial palace are punished by fifty blows with the light stick. 311. lb—If the sound penetrates to where the emperor is present, or there is an exchange of blows, the punishment is one year of penal servitude. 311.1c—If swords are drawn by the opposing sides, the punishment is two years of penal servitude. SUBCOMMENTARY: The interiors of the imperial palace and imperial audience halls are places where respect must be carried to the utmost. If this is disregarded and persons dare to quarrel, these circumstances violate reverence and decorum. Therefore quarreling within the imperial palace is punished by fifty blows with the light stick. Such gates as the Gate of Admirable Virtue are palace gates.The articles on the Imperial Guard and Prohibitions state that offenses within the imperial city are punished the same as those within the palace gates.29 Thus the area within such gates as the Gate of Obedience to Heaven is considered the same as if within the imperial palace. . . . If swords are drawn by the opposing sides, the punishment is two years of penal servitude regardless of whether they are military weapons and no matter what their size. ARTICLE: 311.2a—If these offenses occur within an imperial audience hall, the punishment is progressively increased one degree. 311.2b—If the wound is serious, 30 the punishment for wounding in an affray is increased two degrees further. COMMENTARY: 311.2c—In calculating the increased punishment, it must be added to that for the original offense. Reference to increase in other articles follows this article. SUBCOMMENTARY: Where quarrels take place within an imperial audience hall, the punishment is increased one degree means if quarrels take place within such gates as the Gate of the Supreme Ultimate, which are considered to be within an imperial audience hall, the punishment is sixty blows with the heavy stick. If the sound penetrates to where the emperor is present, or if persons beat each other, the punishment is one and one-half years of penal servitude. If swords are drawn by the opposing sides, the punishment is two and one-half years of penal servitude. 2

'See Article 59 above. THe definition of a serious wound is given in the subcommentary to Article 317 below.

30

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Article 311

If quarrels take place within the imperial apartments, the punishment is seventy blows with the heavy stick. If the sound penetrates to where the emperor is present, or if persons beat each other, the punishment is two years of penal servitude. If swords are drawn by the opposing sides, [10b] the punishment is three years of penal servitude. If the wound is serious, the punishment for wounding in an affray is increased two degrees.31 Suppose that in an ordinary affray (fan tou K 1 IH), a person uses another object than hands or feet to beat and wound someone so that the person suffers an internal injury and spits blood. This is punished by one hundred blows with the heavy stick. If it takes place within the imperial palace, the punishment is increased by two degrees to one and one-half years of penal servitude. Thus the punishment is heavier than the one year of penal servitude for where persons beat each other within the palace. Suppose that in an ordinary affray, someone beats a person and breaks a tooth. This calls for one year of penal servitude. If the offense takes place within an imperial audience hall, the punishment for the wound is increased two degrees to two years of penal servitude.Thus the punishment is heavier than the one and one-half years of penal servitude for persons beating each other within an imperial audience hall.This is what is meant by increasing the punishment for wounding in an affray by two degrees. The commentary states: "In calculating the increased punishment, it must be added to that for the original offense." This means that if within an imperial audience hall there is an ordinary affray and persons beat each other without any wounding, the punishment is one and one-half years of penal servitude. Suppose that "A" beats a relative of the fifth degree of mourning of a higher generation or of the same generation but older within an imperial audience hall. This is punished by one year of penal servitude.32 Because it took place in an imperial audience hall, the punishment is increased two degrees to two years of penal servitude. This is called calculating the increased punishment and adding it to the original punishment. As for not being added to the original offense—suppose the person had been an older relative of the fifth degree of mourning.The punishment would be one hundred blows with the heavy stick. Because the offense took place within an imperial audience hall, the punishment would be increased two degrees to one and one-half years of penal servitude. Thus the punishment is the same as for ordinary affrays within an imperial audience hall. Reference to increase in other articles follows this article means that within a section of the Code, reference to increase means that the punishment must be heavier than the basic punishment. Added to but not increased means that the punishment follows the relevant law.

"Following Article 302 above, the punishment would then be eighty blows with the heavy stick. 32 See Article 327 below, for the punishment provided under both this example and the next one.

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Article 312 Beating a Commissioner Carrying an Imperial Decree, a Department Head, or a County Magistrate [Ha]ARTiCLE: 312.1a—All cases of beating a commissioner carrying an imperial decree, or one's department head, prefect, or country magistrate, or where a clerk or soldier beats a senior official of his own unit who is of the fifth rank or above, are punished by three years of penal servitude. 33 Where the person is wounded, the punishment is life exile at a distance of 3,000 Ii. Where breaking and wounding both occur, the punishment is strangulation. COMMENTARY: Breaking and wounding refer to a tooth or more being broken. [90] SUBCOMMENTARY: (The offenses described above may take place, inter alia,) as the result of a quarrel. . . . ARTICLE: 312.1b—If the person beaten is a senior official of the sixth rank or below, the punishment is reduced three degrees in each case. However, the punishment cannot be reduced to less than one degree more than for beating in an ordinary affray. 312.1c—If the person dies, the punishment is decapitation. 312.Id—If the person is cursed with bad language, the punishment for beating is reduced three degrees in each case. COMMENTARY: For cursing to constitute an offense, the person must have heard it himself. SUBCOMMENTARY: . . .

ARTICLE: 312.2—Beating a subordinate official is punished by one year of penal servitude. If the wound is serious, the punishment is one degree more than for wounding in an ordinary affray. Death is punished by decapitation. SUBCOMMENTARY: Beating subordinates refers to officials other than the senior official who are of the ninth rank and above. [12a] If a clerk or soldier under their command beats them, the punishment is one year of penal servitude. As for the wound being serious—suppose a clerk or soldier uses another object than hands or feet to intentionally beat a subordinate official. The punishment for beating in an ordinary affray is ninety blows with the heavy stick. If the person is an official of the ninth rank or above, the punishment is increased two degrees to one year of penal servitude. Since the person is a subordinate official, the 33 On these persons, see Vol. I, p. 80. If any of them is killed, the crime comes under the ninth of the ten abominations.

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punishment is increased one degree further to one and one-half years of penal servitude.This is called increasing the punishment one degree where the wound is serious. If the wound causes death, the punishment is decapitation.

Article 313 A Subordinate or an Assistant Official Who Beats His Department Head [91] ARTICLE: In all cases where a subordinate or an assistant official beats and wounds his department head, the punishment is reduced two degrees below that for a clerk or a soldier who beats his department head so as to cause a wound in each case. However, the punishment cannot be less than that for an ordinary affray increased one degree. 34 If the person dies, the punish­ ment is decapitation. 3 3 SUBCOMMENTARY: (Subordinate officials are those in the same office who are of the ninth rank or higher. Assistant officials are in other offices that are under the control of the department head.) Thus if a clerk [12b] or a soldier beats his department head or breaks a tooth or more or wounds him, the punishment is strangulation. If a subordinate official or an assistant official beats a department head who is of the fifth rank or above so as to break a tooth or more or wounds him, their punishment is three years of penal servitude, which is two degrees less than that for a clerk or a soldier. 36 Where the department head who is beaten so as to break a tooth or more or is wounded is an official of the sixth rank or below, the punishment is one and one-half years of penal servitude, which is three degrees less.37 As for the punishment cannot be less than that for an ordinary affray increased one degree—suppose a subordinate official beats his department head who is an official of the sixth rank or below so as to break two teeth. A reduction of five degrees from the death penalty would be one and one-half years of penal servi­ tude. The punishment for an ordinary affray where two teeth are broken is also one and one-half years of penal servitude. Following the article above, which calculates the punishment and increases it above the basic punishment, one degree of punishment must be added to make it two years of penal servitude. 38 Other punishments that must be calculated and increased follow this article. As for a subordinate official or an assistant official beating their department M

See Articles 302-306 above ''Killing a department head comes under unrighteousness, the ninth of the ten abominations. See Vol. I, p. 6 1 , Article 6. 36 This is because Vol. i, p. 268, Article 56, provides that one degree of reduction from either death penalty is life exile and that two degrees of reduction are to three years of penal servitude. 37 38

See Article 312 immediately above. Ibid.

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head who is an official of the fifth rank or higher so as to wound him being punished two degrees less than a clerk or a soldier—suppose a clerk or a soldier beats their department head who is an official of the fifth rank or higher so as to break a rib; the punishment is death. N o w if the beating had been done by a subordinate official, the punishment would be two degrees less than that for a clerk or a soldier—three years of penal servitude. The basic punishment for breaking a rib is two years of penal servitude. According to another article, if a sixth-rank official beats a fifth-rank official, the punishment is increased two degrees, which would be three years of penal servitude. 39 Thus it is said that if the reduced punishment is lighter, one degree of punishment is added to that for an ordinary affray, so the punishment is life exile at a distance of 2,000 Ii.

Article 314 Beating the Parents of a Department Head or a County Magistrate ARTICLE: All cases of beating the paternal grandparents, parents, wives, or children of one's department head, prefect, or county magistrate are punished by [13a] one year of penal servitude. If the wound is serious, the punishment for wounding in an ordinary affray is increased one degree. 40 SUBCOMMENTARY: . . . If the wound is serious, the punishment for wounding in an ordinary affray is increased one degree refers to where if a finger, toe, or tooth is broken, the punishment is one year of penal servitude. Since this is less than the punishment for an ordinary affray, the punishment is increased one degree to one and one-half years of penal servitude. 41 If the paternal grandparents or parents of the one's department head are persons who get deliberation for high position, then an ordinary affray is punished by two years of penal servitude. 42 Since there is one degree of increased punishment because of the person being the paternal grandparent or parent of one's department head, the punishment is two and one-half years of penal servitude. All cases where the wound is serious or the crime is worse follow this article on increasing the punishment one degree.

3,

See Article 317 below. IbId. •"This does not make sense as it stands. Yet no other edition has a different reading. I can only conclude that a change was made in the punishment in one of the two relevant articles at some time without it being reflected in the other. 42 On these persons, see Article 316 below. 40

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Article 315 The Emperor's Relatives within the Sixth Degree of Mourning ARTICLE: 315.1a—All cases of beating a relative of the emperor within the sixth degree of mourning are punished by one year of penal servitude. 43 315.1b—If the person is wounded, the punishment is two years of penal servitude. 315.1c—If the wound is serious, the punishment is two degrees more than for wounding in an ordinary affray.44 315.2—If the person is a relative within the fifth degree of mourning, the punishment is progressively increased one degree in each case. 315.3—If the person dies, the punishment is decapitation. [92] SuBCOMMENTARY:The Book of Rites states that relatives of the fifth generation are those of the sixth degree of mourning; those of the fourth generation are those of the fifth degree of mourning. 45 For relatives of the emperor, principle broadens the degree of respect to those of the sixth degree of mourning. Cases where they are beaten are punished by one year of penal servitude. If they are wounded, the punishment is two years of penal servitude. For intentional beating or beating in an affray or beating with other objects than the hands or feet, where the person is not wounded, the punishment is the same. In articles dealing with persons beating each other and which determine a punishment but do not speak of beating in an affray or [13b] punishing for an affray, the punishments for intentionally beating, beating in an affray, or beating with the hands, feet, or other objects are all the same, and there is no reduction of punishment. If the wound is serious, the punishment for an ordinary affray is increased two degrees. Suppose there is a beating and two teeth are broken. In an ordinary affray, this is punished by one and one-half years of penal servitude. But two degrees are added so that the punishment is two and one-half years of penal servitude. Where the relative is within the fifth degree of mourning, the punishment is progressively increased one degree in each case. Suppose a person beats a relative of the fifth degree of mourning and breaks two teeth. The punishment is three years of penal servitude. Had the person been a relative of the fourth degree of mourning, the punishment would be life exile at a distance of 2,000 Ii. For a relative of the third degree of mourning, the punishment would be life exile at a distance of 2,500 Ii, and for a relative of the second degree of mourning, life exile at a distance of 3,000 Ii. 43 The emperor's mourning group and those who received protection because of relationship to him extended one degree further than that of other people. See, for example, Vol. i, p. 84, Article 7, dealing with the right of deliberation. "See Articles 302-306 above. 45 This is a paraphrase of a section describing the various levels of mourning relationship.

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Where the person was beaten but not wounded, the punishment would go up from one year of penal servitude. Progressive increases in cases of beating or wounding go up from one and one-half years of penal servitude, but progressive increase cannot reach the death penalty. But if the person dies, the punishment is decapitation. QUERY: Where a relative of the emperor of the sixth degree of mourning is a paternal grandparent, parent, wife or child of a subordinate official, one's department head, prefect, or county magistrate, or is one's own relative, if they are victims of a crime, is the punishment for the criminal progressively increased or not? REPLY: Relatives of the emperor are respected because of him. Therefore they are different from other people. Department heads and lower officials are respected because of their office. The causes of honor and respect are reasonably not the same. So the article has no provision about progressive increase of punishment for crimes against these latter.The law is limited to sentencing each offense against them to the heaviest punishment. Where relatives of the emperor are one's own relatives, each case is punished according to the generational or age difference and the extent of the mourning relationship. Such offenses do not come within this article on relatives of the emperor and one's own department head. FURTHER QUERY: If a relative of the emperor in the sixth degree of mourning has official rank, is a person who beats him subject to progressive increase of punishment or not? [14a] REPLY:The article emphasizes beating the relatives of the emperor in the sixth degree of mourning, and the punishment is determined because of their relationship with the emperor. Here the emphasis is on respect. If the office is a high one, there is also progressive increase of punishment.

Article 316 A Government Employee Without Official Rank Who Beats a Person Who Gets Deliberation for High Position ARTICLE: 316.1—All cases of a government employee without official rank or of still lower status who beats a person who gets deliberation for high position (yi kuei Hijjt) 46 are punished by two years of penal servitude. If the person 46 Both this article and the following one deal with such officials.Vol. I, p. 83, Article 7, defines them as active duty officials of the third rank and above, titular officials of the second rank and above, and persons with noble titles of the first rank.

348

Article 316 is wounded, the punishment is three years of penal servitude. Where breaking a tooth or more and wounding both occur, the punishment is life exile at a distance of 3,000 Ii.

SUBCOMMENTARY: A government employee without official rank refers to one having honorary office or less on down to commoners. . . . Breaking means to break a tooth or more. 47 Where the person is beaten and a limb is broken, for a person of non-kin status, the punishment is three years of penal servitude. In accordance with the text below, the punishment is increased two degrees above that for an ordinary affray to life exile at a distance of 2,500 Ii. If the person had been beaten so that two limbs were broken, the punishment would be life exile at a distance of 3,000 Ii. Even though the specific article states that punishment is increased two degrees above that for wounding in an ordinary affray, the article does not have any provision for increasing the punishment to the death penalty. Rather, it follows the law dealing with commoners. [93] ARTICLE: 316.2—If the person who is beaten or wounded is an official of the fifth rank or above, the punishment is reduced two degrees. 316.3—If the reduction in punishment would make it less than that for an ordinary affray, or if the person who was beaten or wounded is an official of the ninth rank or higher, the punishment is increased two degrees above that for wounding in an ordinary affray [14b] in each case. SUBCOMMENTARY: If a government employee without official rank beats or wounds an official of the fifth rank or above, the punishment is reduced two degrees means that it is reduced two degrees below that for an official who gets deliberation for high position. Thus for beating the punishment is one year of penal servitude, for wounding, two years of penal servitude, and for breaking a tooth or more and wounding, two and one-half years of penal servitude. As for the reduction in punishment making it less than that for an ordinary affray—suppose a person beats an official of the fifth rank and above and breaks a limb. The punishment is reduced two degrees from life exile at a distance of 2,500 Ii to two and one-half years of penal servitude. Since this punishment is less than the three years of penal servitude provided by the law on an ordinary affray, the punishment is increased two degrees and the punishment is life exile at a distance of 2,500 Ii. Where the person who was beaten or wounded is an official of the ninth rank or higher, the punishment is increased two degrees above that for wounding in an ordinary affray in each case refers to beating an official of the ninth through the sixth rank. If the person is not wounded, the punishment is sixty blows with ""Contrast the punishments in this article with those in Articles 302-306, where relationship and rank do not figure.

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the heavy stick. If the person is wounded, the punishment is eighty blows with the heavy stick. If other objects than the hands or feet are used and the person is not wounded, the punishment is eighty blows with the heavy stick. If the person is wounded, the punishment is one hundred blows with the heavy stick. If the beating results in death, the law on commoners is followed in each case. QUERY: The article refers to a government employee without official rank or of still lower status who beats or wounds an official who gets deliberation for high position being punished by two years of penal servitude. Suppose a slave or a personal retainer beats such an official. Is the punishment the same as for a commoner, or in accordance with the relevant law, is the punishment increased? REPLY: In accordance with the article below, if a personal retainer beats and wounds a commoner, the punishment in increased one degree above that for the same offense committed by a commoner. 48 If the criminal were a slave, the punishment would be increased one degree further. This is the punishment for an ordinary affray against a commoner by a personal retainer or a slave. If the punishment is increased for a personal retainer or a slave beating a commoner, [15a] then how much more should it be increased with regard to members of the imperial clan or persons who get deliberation for high position? It is reasonable that the punishment be increased. However, the punishment may reach the death penalty only if it is provided by the specific article. Suppose a personal retainer beats a commoner and breaks two limbs. The punishment is increased one degree above that for an ordinary affray. The commentary states: "Increase means that the punishment may be increased to the death penalty."49 Thus the increase of one degree above that for life exile at a distance of 3,000 Ii would be the death penalty. As for another article that does not allow increase to reach to the death penalty—suppose a personal retainer intentionally beats a commoner (who is also an official) of the ninth rank or above and breaks a limb. For an ordinary assault, the punishment for breaking one limb is three years of penal servitude. The person being of the ninth rank or higher increases the punishment for an ordinary affray by two degrees to life exile at a distance of 2,500 Ii. Since the beating was intentional, it is increased one degree further to life exile at a distance of 3,000 Ii, and because the beating was by a personal retainer, still another degree would be added. However, the punishment cannot reach the death penalty but is limited to life exile at a distance of 3,000 Ii.This is a case of the type where another article does not allow increase to reach the death penalty.30

«See Article 320 below. "This is the commentary to Article 320. 50 VoI. i, p. 268, Article 56, states that increases in punishment may not reach the death penalty unless the specific article so states.

CHAPTER XXII

[la; 93]

Article 317 An Official of the Ninth Rank or Higher Who Beats a Person Who Gets Deliberation for High Position

ARTICLE: 317.1—All cases of an official of the ninth rank or higher who beats a person who gets deliberation for high position 1 are punished by one year of penal servitude. 317.2—If the wound is serious, or if the official beats and wounds officials of the fifth rank or higher, or if an official of the fifth rank or higher beats and wounds an official who is worthy of deliberation, the punishment for wounding in an ordinary assault is increased two degrees in each case.2 [94] SUBCOMMENTARY: If an official between the ninth and sixth ranks beats a person who gets deliberation for high position, the punishment is one year of penal servitude. If the wound is serious refers to other objects than hands or feet being used to beat a person of nonkin or commoner status, which causes internal injuries so that blood is spit and which is punished by one hundred blows with the heavy stick.3 If the person who is beaten is one who gets deliberation for high position, the punishment is increased two degrees to one and one-half years of penal servitude. This is what is meant by a serious wound. Where an official of the sixth rank or lower beats or wounds an official of the fifth rank or higher, or an official of the fifth rank or higher beats or wounds a person who gets deliberation for high position, or where any of the persons are beaten without being wounded, the punishment for beating in an ordinary assault is increased two degrees in each case.

Article 318 A Supervisory Official Who Beats His Assistants ARTICLE: In all cases where a supervisory official beats his assistants or a person in his area of jurisdiction who is of higher rank or [lb] where officials of equal rank beat each other, the punishment is the same as under the law on ordinary assault.4 'High position refers to active-duty officials of the third rank and above, titular officials of the second rank and above, and persons with noble titles of the first rank. See Vol. I, p. 83, Article 7. 2 See Articles 302-306 above. 3 See Article 302 above. 4 See Articles 302-306 above. The subcommentary here states that the reason for this is that official rank does not figure in these crimes.

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SUBCOMMENTARY: . . . Officials of equal rank mean officials between the sixth and ninth ranks, officials of the fifth to third ranks, and officials of the third to first rank as being of equal rank. . . . Where officials of equal rank beat each other, the punishment is the same as under the law on ordinary assault. Suppose a case where a person with the honorary title of Commandant of Cavalry beats a person with the title of Grand Pillar of State, who is not of the class of persons who get deliberation for position. 3 The punishment then is the same as for an ordinary affray. Where assistants in a lower office beat those in a higher office, aside from the senior official, all such cases will be punished according to official rank. 6 Militia units, garrisons, and outposts that are attached to a prefecture all come within the limits of subordinate offices. QUERY: If a prefecture adjutant beats a magistrate within that prefecture who holds an honorary office of the fifth rank, would the punishment be the same as that for a subordinate in an ordinary affray or not? REPLY: A magistrate is a subordinate within a prefecture. If a high-ranking prefecture official beats a magistrate, following the text above, the punishment is the same as under the law on an ordinary affray.

Article 319 [2a]

Resisting a Commissioner from a Prefecture or County

ARTICLE: 319. Ia—All cases of resisting commissioners from a prefecture, county, or other higher administrative unit are punished by sixty blows with the heavy stick. 319. Ib—Beating the commissioner increases the punishment by two degrees. 319.1c—If the wound is serious, the punishment for wounding in an affray is increased one degree. 7 COMMENTARY: This refers to there being proof of authority and when it is presented, resisting and not complying with it. ARTICLE: 319.2—If there is resistance and beating by those who are to be arrested, the punishment is increased one degree in each case. SUBCOMMENTARY: . . . Reference to other higher administrative units refers to provincial, tribunal, and capital offices that send couriers. . . 'See Chapter 21, n. 45, on these persons. 6 On beating senior officials, see Article 313 above. 'See the definition of serious wound given in Article 302 above. The punishment is one hundred blows with the heavy stick

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Article 320

The commentary states: "This refers to there being proof of authority and when it is presented, resisting and not complying with it."Thus if a person who is to be arrested resists and beats such a courier, the punishment is increased one degree in each case. This means that when an official wants to put him in jail or keep him under loose confinement, that the person improperly resists. This is punished by seventy blows with the heavy stick. If he beats the official, [95] the punishment is ninety blows with the heavy stick. If the wound is serious means that if it is punished by one hundred blows with the heavy stick or more, then the punishment for ordinary assault is increased two degrees.

Article 320 Personal Retainers, Slaves, and Commoners Who Beat Each Other [2b] ARTICLE: 320.1a—All cases of a personal retainer who beats or wounds a commoner increase the punishment by one degree above that for the same crime committed by another commoner. COMMENTARY: Official bondsmen are considered to be the same as personal retainers. Increase means that punishment can reach the death penalty. ARTICLE: 320.1b—If the crime is committed by a slave, the punishment is increased one degree further. 320.1c—If a slave beats a commoner so as to break a limb, dislocate a joint, or blind an eye, the punishment is strangulation. 320.Id—If the person dies, the punishment is decapitation. SUBCOMMENTARY: The General Principles section states: "References to personal retainers include their wives as well (as female personal retainers)."8 The wives of personal retainers can be commoners or female personal retainers. . . . As for beating or wounding commoners, the commentary states: "Official bondsmen are considered to be the same as personal retainers ."The punishment is increased one degree more than were they commoners means that the punishment is increased one degree beyond that for beating or wounding in an ordinary affray.The commentary states: "Increase means that punishment can reach the death penalty." This means that if a personal retainer beats a commoner and there are two or more injuries, or if because of an old illness the present injury causes incapacitation, or the tongue is cut off, or the sexual organs are damaged, for ordinary assault the punishment is life exile at a distance of 3,000 Ii.9 However, a personal retainer would be punished by death. This is what is meant by increase of punishment can reach the death penalty. «See Vol. I. p. 249, Article 47. 'See Article 305 above.

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For slaves, the punishment is increased one degree further. This means that the punishment for an ordinary affray is increased two degrees. Suppose a slave beats a commoner so as to break a limb, dislocate a joint, or blind an eye. The punishment is strangulation. If a commoner dislocates a joint or blinds an eye, the maximum punishment is three years of penal servitude in each case.10 Thus it is clear that if a slave beats a commoner, the punishment follows the law on commoners beating each other. Since commoners would be punished by life exile, the slave is punished by death in each case. ARTICLE: 320.2a—If a commoner beats, wounds, or kills another person's personal retainer, the punishment is reduced one degree below that where the person is a commoner. 320.2b—If the person is a slave, the punishment is reduced one [3a] degree further. 320.2c—If a commoner intentionally kills a personal retainer, the punishment is strangulation. If the person is a slave, the punishment is life exile at a distance of 3,000 Ii. SUBCOMMENTARY: If a commoner beats, wounds, or kills another person's personal retainer, the punishment is reduced one degree below that where the person is a commoner.Thus in cases such as beating and killing, the punishment is life exile at a distance of 3,000 /i." If a limb is broken, the punishment is two and one-half years of penal servitude. 12 For slaves, the punishment is reduced one degree further. Thus in cases such as beating and killing, the punishment is three years of penal servitude. If two limbs are broken, the punishment is two years of penal servitude. If a personal retainer is intentionally killed as the result of an affray, the punishment is strangulation. If there is a plot and the killing has been carried out, the punishment is the same. Cases of intentionally killing a slave are punished by life exile at a distance of 3,000 Ii. ARTICLE: 320.3—If a personal retainer and a slave beat, wound, or kill each other, the punishment follows the law on a personal retainer and a commoner beating, wounding, or killing each other in each case.13 320.4—In cases of seizing each other's goods and articles, this law is not applicable.14 '"Thus the punishment for a slave is four degrees higher than that for a commoner committing the same crime against another commoner. This is the basis for the ruling immediately below. In this, I follow Tai, Specific Articles, p. 193. "Article 306 punishes this crime by decapitation. A reduction of one degree reduces the punishment to life exile as specified by Article 56 in Vol. I, p. 268. A reduction of two degrees also eliminates life exile and makes the punishment three years of penal servitude. 12 Article 305 punishes this crime by three years of penal servitude. 13 That is, if the personal retainer is the offender, the punishment is reduced one degree, and if the slave is the offender, the punishment is increased one degree. 14 That is, the regular laws are followed without regard for status.

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Article 32ί

COMMENTARY: In other articles where commoners, personal retainers, and slaves commit crimes against each other, if the specific article has no provision, this article is followed. SUBCOMMENTARY: If a personal retainer beats and kills a slave in an affray, the punishment is life exile at a distance of 3,000 Ii. If he breaks a limb, the punish­ ment is two years of penal servitude. If he breaks a tooth, the punishment is one hundred blows with the heavy stick. If a slave beats a personal retainer and there are two or more injuries, or if because of an old illness the present injury causes incapacitation, or the tongue is cut off, or the sexual organs are damaged, the punishment is strangulation. If he breaks a limb, the punishment is life exile at a distance of 2,000 Ii. If he breaks a tooth, the punishment is one and one-half years of penal servitude. If a personal retainer intentionally kills a slave, the punishment is [96] also strangulation. This is what is meant by following the laws on personal retainers and commoners exchanging blows. Other articles about commoners, personal retainers, and slaves involved in crimes against each other refer to such articles as plots to kill someone, digging in the earth and finding a corpse and not [3b] reinterring it. . . .

Article 321 A Master Who Kills a Slave Who Has Committed an Offense ARTICLE: 321.1—All cases of a master who kills a slave who has committed an offense without asking permission (ch'ing ijf) of the government officials are punished by one hundred blows with the heavy stick. 321.2—If a slave is killed who has not committed an offense, the punish­ ment is one year of penal servitude. COMMENTARY: 321.3—A killing by the master's second-degree mourning rela­ tives and his maternal grandparents is considered to be the same. Articles below concerning personal retainers follow this article. SUBCOMMENTARY: Slaves are an inferior class, and each has a master. Nonethe­ less, when it comes to killing them, it is proper that a petition should be re­ ceived. . . . Having not committed an offense means that they are intentionally killed even though completely without offense or fault. . . . Articles below concerning personal retainers follow this article refer to ar­ ticles below where there is no punishment given for the master's second-degree mourning relatives or his maternal grandparents wounding or killing a personal retainer. If they do so, the punishment is the same as if the personal retainer's master did it. . . .

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Article 322 The Punishment for Beating a Personal Retainer to Death [4a] ARTICLE: 322.1a—All cases of a master who beats a personal retainer to death are punished by one year of penal servitude. 322.1b—If the killing is intentional, the punishment is increased one degree. 322.2—If the personal retainer had committed a small offense and death resulted from administering punishment, or he is killed by accident, the master is not punished. SUBCOMMENTARY: . . .The seriousness of the offense is immaterial. . . . Where the person is intentionally killed means that the killing was not due to the beating, but that the basic intent was to kill. Where this is the case, the punishment is increased one degree to one and one-half years of penal servitude. . . . QUERY: Regardless of whether a concubine has given birth to children, what is to be the punishment if she beats and kills a personal retainer or slave of her husband's household? Or where a female retainer or slave who has found favor with her master and given birth to children beats other personal retainers or slaves. Is her punishment to be the same as the master's second-degree mourning relatives or not? REPLY: If a concubine beats a personal retainer or slave of her husband's family, even though the article provides no punishment, clearly whatever the seriousness, it must follow the principle on reduction of punishment.The article below states: "If a concubine beats the child of another of her husband's concubines, the punishment is reduced two degrees below that for persons of non-kin status."15 If a concubine's child beats or wounds one of his or her father's other concubines, the punishment is increased three degrees above that for persons of nonkin status. If a personal retainer and one of his master's concubines beat each other, it must be treated as analogous to the law on a concubine's child and one of his or her master's other concubines beating each other. If a concubine beats a personal retainer belonging to her husband's family, the punishment must also be two degrees less than for persons of non-kin status. If a personal retainer beats a concubine belonging to his master, the punishment must be three degrees more than for a person of non-kin status. If a concubine beats a slave belonging to her husband's family, the punishment is one degree less than that for beating a personal retainer. If a slave beats a concubine belonging to his or her master, the punishment is one degree more "Article 332 below. The next case is also covered by this article.

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than for beating a personal retainer. [4b] If this results in death, the punishment follows that for commoners in each case. If a slave beats one of his or her master's concubines, the punishment is increased one degree more than that for a personal retainer. If death results, the punishment follows that for a person of non-kin status in each case. If there is a child and that son is the head of the household, the law for the mother is not lessened for the child, and so the principle on masters is followed. If the child is not the head of the household, the maximum punishment for offenses committed against slaves is the same as those for the master's seconddegree mourning [97] relatives. Other articles on concubines' children, regardless of whether they are heads of households, follow this article. Female retainers and female slaves are considered to be members of the inferior class even if they have children. Thus punishments for offenses against them are not specially increased.

Article 323 A Personal Retainer or Slave Who Kills Their Master by Accident ARTICLE: 323.1a—AU cases of a personal retainer or slave who kills their master by accident are punished by strangulation. 323.1b—If they wound their master by accident or curse their master with bad language, the punishment is life exile. SUBCOMMENTARY: Personal retainers and slaves are family servants. In serving their master, they must be attentive and respectful. Furthermore, treachery must be guarded against. Therefore, even if they kill their master by accident, the punishment is strangulation. If they wound their master by accident or curse their master with bad language, the punishment is life exile.The reason the number of Ii is not mentioned is that two hundred blows with the heavy stick are substituted.16 ARTICLE: 323.2a—If they beat their master's relatives in the second degree of mourning or his maternal grandparents, the punishment is strangulation. 323.2b—If they wound such persons, all of the criminals are punished by decapitation. 323.2c—If they curse such persons with bad language, the punishment is two years of penal servitude. 323.2d—Accidental killing is punished two degrees less than beating. Accidental wounding reduces the punishment for beating one degree further. 16 This is provided by Vol. I, p. 249, Article 47.The purpose is to prevent the master from being deprived of their services.

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SUBCOMMENTARY: Personal retainers and slaves beating their master's seconddegree mourning relatives refer to there being separate goods. 1 7 . . . [5a] All of those involved being decapitated means that there is no distinction made between principal and accessories.18 Cursing their master's second-degree mourning relatives with bad language is punished by two years of penal servitude, and cases of killing by accident have the punishment for beating reduced two degrees to three years of penal servitude. These crimes are punished by substituting two hundred blows with the heavy stick. Wounding such persons by accident has the punishment reduced one degree further to one and one-half years of penal servitude so that 180 blows with the heavy stick are substituted. ARTICLE: 323.3a—If they beat their master's relatives of the fifth degree of mourning, the punishment is one year of penal servitude. If the wound is serious,19 the punishment is increased one degree beyond that for persons of non-kin status. 323.3b—For relatives of the fourth and third degree of mourning, the punishment is progressively increased one degree. 323.3c—If the person dies, all of those involved are decapitated. COMMENTARY: Increase means that punishment can reach the death penalty. SUBCOMMENTARY: If a personal retainer or slave beats one of his or her master's relatives of the fifth degree of mourning, regardless of whether they are paternal relatives or relatives by marriage, the punishment is one year of penal servitude. If the wound is serious means that the punishment is more than one year of penal servitude so the punishment is increased one degree above that for ordinary assault.20 Suppose a personal retainer used other objects than hands or feet to beat his master's relative of the fifth degree of mourning.The person was injured internally and spit blood. Were the assailant a commoner, the punishment would be one hundred blows with the heavy stick. Since the offense was by a person of an inferior class against a commoner, the punishment is increased one degree. Since the person was the master's relative of the fifth degree of mourning, the punishment is increased one degree more than for a person of non-kin status to one and one half years of penal servitude. If a slave used other objects than hands or feet and intentionally beat his or her master's relative of the fifth degree of mourning so that the person was wounded, "This means that these people do not "dwell together." Such persons have special privileges. See Vol. I, p. 246, Article 46, and the discussion on p. 20. "Vol. I, p, 225, Article 42, provides that accessories shall receive one degree less punishment than the principal unless the specific article states otherwise. "On the definition of serious wounds, see Article 302 above. ^Assaults are covered in Articles 302-306 above.

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following the law on persons of non-kin status, the punishment would be ninety blows with the heavy stick. But if a slave hits a commoner, the punishment is increased two degrees. In this article, if the wound is serious, the punishment is increased one degree further to one and one-half years of penal servitude.Therefore it is stated that if the wound is serious, the punishment is one degree more than for a person of non-kin status in each case. For relatives of the fourth and third degrees of mourning, the punishment progressively increases one degree means that if a slave uses other objects than hands or feet to beat and wound a relative of the fourth degree of mourning, the punishment is two years of penal servitude, and for the third degree of mourning, the punishment is two [5b] and one-half years. This is what is meant by progressively increasing one degree. The commentary states:"Increase means that punishment can reach the death penalty." If the personal retainer had beaten and wounded a relative of the third degree of mourning and broken a limb, for persons of non-kin status, the punishment would be three years of penal servitude. Increasing the punishment one degree for a personal retainer makes it life exile at a distance of 2,000 Ii. For relatives of the third degree of mourning, the punishment would be increased three degrees, making it strangulation. . . . Where there are offenses involving fifth- fourth- and third-degree mourning relatives and a personal retainer, in each case punishment increases from the basic punishment following this principle. Where increased punishment reaches the death penalty, the punishment is strangulation. If the person dies, all of those involved are decapitated means that if a slave or personal retainer beats a relative of his or her master within the fifth degree of mourning and death results, all of those involved are decapitated. There is no distinction made between principal and accessories.

Article 324 Beating a Personal Retainer or Slave of a Relative of the Fifth Degree of Mourning ARTICLE: 324.1a—All cases of beating a personal retainer or slave of a fifth or fourth degree mourning relative so that a bone is broken, or they are wounded or more, in each case reduces the punishment for killing or wounding a personal retainer or slave belonging to a person of non-kin status by two degrees. 324.1b—If the personal retainer or slave belongs to a relative of the third degree of mourning, the punishment is reduced one degree further. 324.2—Accidental killing is not punished. [98] SUBCOMMENTARY: . . . This means that in all the punishment is reduced

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three degrees. Suppose there is a case of beating where a rib is broken. For a person of non-kin status, the punishment is two years of penal servitude. A reduction of three degree calls for one hundred blows with the heavy stick. If a slave is beaten and teeth are broken, for a person of non-kin status, the punishment would be one year of penal servitude. For a slave, however, the punishment is reduced three degrees. For the slave of a relative of the fifth or fourth degree, there is a further reduction of two degrees of punishment, making in all a reduction of four degrees of punishment, which is punished by seventy blows with the heavy stick. Therefore it is stated that for breaking a tooth or more, [6a] wounding, or more, in each case the punishment is reduced two degrees below that for the personal retainer or slave of a person of non-kin status. For relatives of the third degree of mourning, the punishment is reduced one degree further. This means that if a person beats a personal retainer of a relative of the third21 degree of mourning and breaks a tooth, the punishment is reduced in all four degrees, which makes seventy blows with the heavy stick. If a person beats a slave of a relative of the third degree of mourning, this is punished by sixty blows with the heavy stick. Articles aside from this one dealing with beating so as to break a tooth or more, wounding, or more, in each case follow this principle as the law on reduction of punishment. . . .

Article 325 Beating or Wounding a Wife or Concubine ARTICLE: 325.1a—All cases of beating or wounding a wife are punished two degrees less than were she a person of non-kin status. In case of death, the punishment is the same as for persons of non-kin status.22 325.1b—If a husband beats his concubine so as to break a tooth or more, wounds her, or more, the punishment is two degrees less than were the person his wife. SUBCOMMENTARY: [The word for] wife (ch'i) is pronounced [the same as the word for] equal (ch'i).23 This is because she is equal to her husband. What is meant, 24 however, is that she is the same as a relative of a younger generation. Therefore offenses against her are punished two degrees less than were she a person of non-kin status. . . .

2

'Hsiao /h should be read la j \ , following the KHCPTS edition. —These crimes are covered by Article 302-306 above. The rules for reduction of punishment in the case of relatives are spelled out m Article 327 below. 2, Homophone definitions such as this one occur several times in the Code.The one here is, in fact, a quote from the Po Im t'ung (Conversations in the White Tiger Hall) 24 Vi St should be read yi §|, following the KHCPTS edition.

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If a husband beats his concubine without breaking a tooth or more, or does not wound her, he is not punished. If he breaks a tooth or more, or wounds her or more, the punishment is two degrees less than were the person his wife, so four degrees less than were she a person of non-kin status. If he kills his concubine, the punishment may only be two degrees less than were she a person of non-kin status. ARTICLE: 325.2—If a wife beats, wounds, or kills her husband's concubine, the punishment is the same as for a husband beating, wounding, or killing his wife. COMMENTARY: 325.3a—In all these cases, sentencing requires that the wife or concubine make an accusation to the court. 25 Furthermore, the crime is considered to be discord.26 Where either the wife or a concubine has been killed, other persons may make an accusation to the court. 325.3b—If the wife has been killed, the crime comes under discord.27 ARTICLE: 325.4—Accidental killing is not punished. [6b] SUBCOMMENTARY: . . . The commentary states: "In all these cases, sentencing requires that the wife or concubine make an accusation to the court." This means that where the accusation to the court has been made by a person outside the family, the crime will not be punished. Where death results, however, other persons may make an accusation, and other persons are not limited to relatives. If a man kills his wife, since his wife is a relative within the five degrees of mourning relationship, in accordance with the general principle, the crime is considered to be discord. Because there is reference to punishment for killing a person of non—kin status, it is clear that the crime is more serious than those covered in this article. If she is killed by accident, there is no punishment because there is no evil intent.

Article 326 A Wife2* Who Beats or Curses Her Husband ARTICLE: 326.1a—All cases of a wife who beats her husband are punished by one year of penal servitude. If the wound resulting from the beating is 23

The point here is that third-party accusations will not be accepted from a person outside the family. 26 This is the eighth of the ten abominations. See Vol. I, p. 61, Article 6, and discussion on pp. 17 ff. 27 Discord is the eighth of the ten abominations. See Vol. i, pp. 78-80. 28 TaI, Specific Articles, p. 195, titles this article with "wives" rather than "Ymg concubines and

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serious, the punishment is three degrees more than for wounding in an ordinary affray.29 If death results, the punishment is decapitation. COMMENTARY: Sentencing requires that the husband make an accusation to the court. SUBCOMMENTARY: . . . Suppose a commoner beats and wounds another man with other objects than hands or feet and wounds him so that there is an internal injury and the person spits blood. This is punished by one hundred blows with the heavy stick.When increased three degrees beyond the punishment for doing so in an ordinary affray, the punishment is two years of penal servitude. This follows the law on calculating the punishment and increasing it. . . . [7a; 99] ARTICLE: 326.1b—If ying concubines 30 or concubines commit these crimes, their punishment is increased one degree further. COMMENTARY: Increase means that punishment can reach the death penalty. ARTICLE: 326.1c—Accidental killing or wounding reduces the punishment two degrees in each case. SuBCOMMENTARY:According to the statute: "Officials of the fifth rank and above have ying concubines. Ordinary men and those of higher status have concubines."31 Therefore when ying concubines or concubines commit a crime against their husband, the punishment is one degree more than for the wife. This means that if they beat their husband, the punishment is one and one-half years of penal servitude. If they beat him and the wound is serious, the punishment is increased four degrees. Increase means that punishment can reach the death penalty. If they beat the husband and break a limb or blind an eye, the punishment is three degrees more than for ordinary assault. If the punishment is increased four degrees, it would be strangulation. This is what is meant by increase can reach the death penalty. If the person is killed by accident, the punishment is reduced two degrees in each case. This means that if a wife or a concubine or a ying concubine kills [or wounds] their husband by accident, the punishment is three years of penal servitude.32 If a wife breaks one of her husband's limbs, the punishment is strangulation.

concubines," which is used in every other edition I followTai because the first, and most important, subject of the article is wives. w On wounding, see Article 302 above. Article 317 above gives the definition of serious. 30 On ying concubines, see Chapter 13, n. 57, and Vol. I, p. 83, n. 194. 31 See the discussion on these women in Nuda, Statutes, p. 251. 32 VoI. I, p. 268, Article 56, specifies that reduction of two degrees of punishment from the death penalty is three years of penal servitude.

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If she does so by accident, the punishment is reduced two degrees to three years of penal servitude. Other articles on breaking a tooth or more or wounding, depending upon their seriousness, follow this article on increasing or decreasing punishment. ARTICLE: 326.1d—If a ying concubine or concubine curses their husband with bad language, the punishment is eighty blows with the heavy stick. 326.2a—If a concubine commits a crime against the wife, the punishment is the same as where the wife commits a crime against her husband. 326.2b—If a ying concubine commits a crime against her husband's wife, the punishment is one degree less than for a concubine. 326.2c—If a concubine commits a crime against a ying concubine, the punishment is one degree more than against a person of nonkin status. 326.3—Death is punished by decapitation in each case. COMMENTARY: 326.4—In other articles where there is no provision about ying concubines, they are treated the same as concubines. SUBCOMMENTARY: . . . [7b] If a ying concubine commits an offense against the wife, the punishment is one degree less than that for a concubine. So if there is a beating, the punishment is one year of penal servitude. If the wound is serious, the heavier punishment for the concubine is reduced one degree. If a concubine commits an offense against a ying concubine, the punishment is one degree more than for a commoner. This means where there is a beating, the punishment is fifty blows with the light stick, and if a tooth is broken, the punishment is one and one-half years of penal servitude. If the person dies, the punishment is decapitation in each case. This means that if the ying concubine or the concubine commits a crime against the husband or wife, or if a concubine commits an offense against a ying concubine and she is beaten and killed, the punishment is decapitation in each case. . . .

Article 327 Beating a Relative of the Same Generation but Older of the Fifth Degree of Mourning ARTICLE: 327. Ia—All cases of beating a relative of the same generation but older of the fifth degree of mourning are punished by one hundred blows with the heavy stick. 327.1b—For fourth- or third-degree mourning relatives, the punishment progressively increases one degree in each case. 327.1 c—For relatives of a higher generation, the punishment increases one degree further.

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327.1d—If the wound is serious33 the punishment progressively increases one degree above that for ordinary assault in each case.34 327.1e—If the person dies, the punishment is decapitation. 327.If-—If a beating kills an older cousin in the male line, in accordance with the law on an ordinary affray requiring life exile at a distance of 3,000 Ii, the punishment is strangulation. SuBCOMMENTARY:The beating of older cousins in the fifth degree of mourning refer both to those of the criminal's own clan and those of the wife. If these persons are beaten, the punishment is one hundred blows with the heavy stick. For those within the fourth and third degrees of mourning, the punishment is one and one-half years of penal servitude. Where the person is of a higher generation, the punishment is increased one degree further. This means that for beating such a relative who is of the fifth degree of mourning, the punishment is one year of penal servitude. If the person is of the fourth degree of mourning, the punishment is one and one-half years of penal servitude. If the person is of the third degree of mourning, in accordance with [8a] ritual, such persons are the husband's paternal grandparents and the husband's [100] paternal uncles and aunts. There is a specific article dealing with these persons and for beating the husband's paternal grandparents; the punishment is strangulation. 3 ' In the case of the husband's paternal uncles and aunts, the punishment is one degree less than where the offense has been committed by the husband to two and one-half years of penal servitude.36 This is for relatives of the third degree of mourning where no higher generation causes the punishment to be increased. Where the wound is serious, the punishment is progressively increased one degree above that for ordinary assault in each case. This means that where other objects than hands or feet are used to beat older cousins of the fifth degree of mourning so that there is an internal injury and they spit blood, the punishment is increased one degree above the one hundred blows with the heavy stick for the same crime committed against persons of non-kin status to one year of penal servitude. If the person is of the fourth degree of mourning, the punishment is one and one-half years of penal servitude, and if of the third degree of mourning, two years of penal servitude. If the person is of a higher generation, the punishment is increased one degree further. Thus for a fifth-degree mourning relative, the punishment is one and one-half years of penal servitude, and for a fourth-degree mourning relative, two years of penal servitude. 33

For the definition of serious wounds, see Article 302 above. "Article 317 above defines serious wounds. Articles 302-306 cover assaults. •"See Article 330 below. "See Article 334 below.

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If the person dies as a result of the beating, the punishment is decapitation in each case. If someone beats a relative of a higher generation within the fourth degree of mourning and breaks two limbs, the punishment is increased three degrees above that for beating a person of non-kin status. However, since the article does not state that punishment can reach the death penalty, the maximum punishment is the furthest degree of life exile.37 However, for an older cousin in the male line, in accordance with the law on ordinary assault requiring life exile at a distance of 3,000 Ii, it is punished by strangulation. 38 ARTICLE: 327.2a—If a relative of a higher generation or of the same generation but older breaks a tooth or more, or wounds a relative of a lower generation or of the same generation but younger, where the person is a relative of the fifth generation of mourning, the punishment for committing the same crime against a person of non-kin status is decreased one degree. 327.2V>—If the person is of the fourth or third degree of mourning relative, the punishment is progressively decreased one degree further. 327.2c—If the person dies, the punishment is strangulation. 327.2d—If a beating kills a younger cousin in the male line or a son or grandson in the male line of an older cousin in the male line, the punishment is life exile at a distance of 3,000 Ii. 327.2e—If a knife is used or the killing is intentional, the punishment is strangulation. SUBCOMMENTARY: . . . Since breaking a tooth or more or wounding is specified, it is clear that if neither of these occurs, there is no punishment. . . .

Article 328 Beating an Elder Brother or Sister ARTICLE: 328.1a—All cases of beating an elder brother or sister are punished by two and one-half years of penal servitude. 328.1b—Wounding the person is punished by three years of penal servitude. 328.1c—Breaking a tooth or more of the person and wounding are punished by life exile at a distance of 3,000 Ii. 328.1d—Wounding the person with a knife, breaking a limb, or blinding an eye is punished by strangulation. 328.1e—Killing the person punishes all of the criminals by decapitation. 328.If-—Cursing the person with bad language is punished by one hundred blows with the heavy stick. 37 VoI. I, p. 269, Article 56, specifies that increases in punishment may not reach the death penalty unless it is provided by the specific article 38 See Article 305 above.

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328.2—For a paternal uncle or aunt, the father's sister, or the maternal grandparents, the punishment is increased one degree in each case. 328.3—For accidental killing or wounding, the basic punishment for killing or wounding is decreased two degrees in each case.39 [9a] SUBCOMMENTARY: Elder brothers and sisters are the closest relatives. Thus there is even more worry about urgent difficulties.40 "To bend a bow and drop silent tears. Righteousness is certainly nothing else."41 . . . [101] If the person is a paternal uncle or aunt, the father's sister, or the maternal grandparents, the punishment is increased one degree in each case. This means one degree more than for the same crime against an elder brother or sister.Thus beating such a person is punished by three years of penal servitude, while causing a wound is punished by life exile at a distance of 2,000 /i.The text does not state that the increase can reach the death penalty, so the maximum punishment for breaking a tooth or more or wounding is life exile. If the person is killed or wounded by accident, the basic punishment for killing or wounding is reduced two degrees in each case.This means that if the killing is done by accident, the punishment is reduced two degrees in each case to three years of penal servitude. And if a tooth is broken by accident, the punishment is reduced two degrees from life exile. The reduction of two degrees of punishment for accidental crimes against elder brothers and sisters is the same for such crimes against less close kin. ARTICLE: 328.4a—If a beating kills a younger brother or sister or the son or grandson in the male line of a brother or sister, the punishment is three years of penal servitude. COMMENTARY: Crimes against a younger brother or sister's great- and greatgreat grandsons in the male line are punished in accordance with those in the criminal's own mourning relationship group. 42 ARTICLE: 328.4b—If a weapon is used or the person is intentionally killed, the punishment is life exile at a distance of 2,000 Ii. 328.4c—Accidental killing is not punished. SUBCOMMENTARY: Nephews in the male line are second-degree mourning relatives. 39

On these crimes, see Articles 302-306. On reductions of punishment from the death penalty and life exile, see note 9 above. 40 SZnVi citing, 134;Legge, The Chinese Classics,iv,251."When brothers are in urgent difficulties; friends though they may be good will [only] heave long sighs." "Meng tzu, "Kao-tzu hsia," 211; Legge, The Chinese Classics, n, 427. Here Mencius is speaking about advising his brother not to shoot a man, while weeping and crying, because of their relationship. 42 The point here is that neither of these descendants would be included if through the female line, nor would a brother's great-great grandsons in the male line

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Grandsons in the male line are fourth-degree mourning relatives. [9b] The commentary states: "Crimes against their great- and great-great grandsons in the male line are punished in accordance with those in the criminal's own mourning relationship group." A brother's great grandson in the male line is a fifth-degree mourning relative. His great-great grandson in the male line is a sixth-degree mourning relative. The relationship is distant and the feelings correspondingly less. Therefore it is stated that sentencing follows the criminal's own mourning group. This means that if a beating kills a brother's great grandson in the male line, the punishment is strangulation. 43 If the person is a great-great grandson in the male line—a sixth-degree mourning relative—the punishment follows the law for persons of nonkin status.44 From this article on beating a brother's great- and great-great grandsons being punished in accordance with the criminal's own mourning relationship group, it is clear that in the article above on beating so as to kill an older paternal male cousin,45 the mourning relationship is already finished with their great- and great-great grandsons in the male line. So crimes against them are treated the same as against persons of nonkin status. Beating the sons and grandsons in the male or female line of younger brothers and sisters is punished by three years of penal servitude in each case. . . .

Article 329 Beating or Cursing with Bad Language a Paternal Grandparent or a Parent ARTICLE: 329.1a—All cases of cursing with bad language a paternal grandparent or parent are punished by strangulation.46 Beating them is punished by decapitation. 329.1b—Accidental killing is punished by life exile at a distance of 3,000 Ii. Wounding is punished by three years of penal servitude. 329.2a—If a son or grandson in the male line violates orders and his paternal grandparents or parents beat and kill him, the punishment is one and onehalf years of penal servitude. If a weapon is used to kill him, the punishment is two years of penal servitude. 329.2b—Intentional killing increases the punishment one degree in each case. 329.2c—If he is killed by the proper mother, stepmother, foster mother, or adoptive mother, the punishment is increased one degree further. 329.2d—Accidental killing is not punished.

"Article 327 above. •"Article 306 above. The punishment is also strangulation. 45 See Article 327 above. "Article 312 points out that the person who is cursed must hear it him or herself

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SUBCOMMENTARY: Sons and grandsons in the male line whose feelings are not in harmony with their paternal grandparents or parents and who improperly curse them with bad language are punished by strangulation. If their paternal grandparents or parents are beaten, the punishment is decapitation. The article does not have the word "all." But in accordance with the text it can be known that even though sons and grandsons collectively beat and hit their paternal grandparents or parents, the original feelings of each of them were to beat the person. So even though there is no word "all," each of the criminals is punished by decapitation. 47 In the article below, where a wife or concubine beats or wounds their husband s paternal grandparents or parents, all the criminals are punished by decapitation. Here a lighter offense is brought up to make clear a heavier punishment, 48 so that there is no doubt. . . . If a son or grandson in the male line violates orders means that with regard to orders the importance of the matter is not relevant, but that they can be carried out and that there is intentional violation. . . . If the killing is intentional, the punishment is increased one degree in each case.This means that the killing was intentional and not because of the violation of orders. . . . In cases where the person is killed by his proper mother, stepmother, foster mother, or adoptive mother, because the feelings are more removed, it is easier to violate their orders. Therefore the [102] text states: "increased one degree further." Thus where a weapon is used to kill or the killing is intentional, the punishment is increased one degree from two and one-half years to three years of penal servitude. And where the killing is the result of the violation of orders and a weapon is used to kill, the punishment is increased one degree from two years to two and one-half years of penal servitude. In cases of beating that cause death, the punishment is increased one degree from one and one-half years to two years of penal servitude. . . .

"Vol. I, p. 227, Article 43, states' "If a specific article refers to 'all,' then the crime does not distinguish between principal and accessories. If it does not refer to 'all,' then this law on principal and accessories is followed."The law on principal and accessories gives the accessories one degree less punishment than the principal. And since Vol. i, p. 268, Article 56, provides that a reduction of one degree of punishment from the death penalty shall be to life exile, here only the principal would be punished by death, though all the criminals are the sons and grandsons of the victim. The argument here, then, is that even if there is a group, since each member of that group wanted to commit the crime himself and would have been punished by death had he done so, each should be punished for the crime. "This is the argument used for analogy. See Vol. i, p. 254, Article 50, and pp. 36-37.

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Article 330 A Wife or Concubine Who Beats or Curses with Bad Language Her Husband's Parents [10b] ARTICLE: 330.1a—All cases of a wife or concubine who curses with bad language their husband's paternal grandparents or parents are punished by three years of penal servitude. COMMENTARY:The husband's parents must make an accusation to the court for the crime to be punished. ARTICLE: If they are beaten, the punishment is strangulation, and if they are wounded, all the criminals are punish by decapitation. 330.1b—Killing by accident is punished by three years of penal servitude. Cases of wounding by accident are punished by two and one-half years of penal servitude. SUBCOMMENTARY: . . .All the criminals are punished by decapitation means that no distinction is made between principal and accessories. . . . ARTICLE: 330.2a—If the paternal grandparents or parents49 beat the wife of a son or grandson in the male line so as to cause disablement, the punishment is one hundred blows with the heavy stick. Where the beating causes incapacitation, the punishment is increased one degree.' 0 Where the beating causes death, the punishment is three years of penal servitude. 330.2b—If the killing is intentional, the punishment is life exile at a distance of 3,000 Ii. 330.2c—For a concubine of a son or grandson in the male line, the punishment is decreased two degrees. 330.2d—Accidental killing is not punished. SUBCOMMENTARY: . . . Intentional killing refer to improper killing that is not the result of beating or cursing with bad language and where the person is blameless. . . . If a paternal grandparent beats the concubine of a son or grandson in the male Une so as to cause disablement, the punishment is eighty blows with the heavy stick. Where the beating causes incapacitation, the punishment is ninety blows with the heavy stick. If the beating causes death, the punishment is two years of penal servitude.

•"The subcommentary makes it clear that these persons, and not the wife or concubine, are the subject here. 50 On these categories of disabilities, see Vol. i, p. 31.

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[Ha] Cases of intentional killing are punished by two and one-half years of penal servitude. . . .

Article 331 A Wife or Concubine Who Beats or Curses with Bad Language Her Late Husband's Parents ARTICLE: 331.1 a—AU cases of a wife or concubine who beats or curses with bad language her late husband's paternal grandparents or parents are punished two degrees less than the same offense when their husband was alive in each case. 331.1b—If the beating breaks a tooth or more or causes a wound, the punishment is life exile with added labor. 331.1c—If the beating causes death, the punishment is decapitation. 331.Id—Accidental killing or wounding 51 is punished as for persons of non-kin status. SUBCOMMENTARY: Late husband refers to where the husband is dead and the wife or concubine has remarried. This article is not applicable to wives or concubines who have been repudiated or divorced.52 Punished two degrees less means that cases of beating are punished by three years of penal servitude, cases of cursing with bad language are punished by two years of penal servitude, and cases of breaking a tooth or more are punishment by life exile with added labor.Where the beating or breaking of a tooth or more causes death, the punishment is decapitation. The text does not have the word "all," so there is a distinction between the punishment for principal and accessories.53 Cases of accidental killing or wounding are punished as for persons of nonkin status means that for kiUing, according to the law on persons of non-kin status, the punishment may be redeemed by payment of 120 chin of copper,54 and that for wounding the law on wounding persons of non-kin status is followed in each case.The amount of copper paid goes to the family of the person who was killed or wounded. ARTICLE: 331.2a—If the former parents-in-law beat their son's or grandson in the male line's former wife or concubine so as to break a tooth, wound '''Shang |S§, should be added after ska 3¾, following all other editions. 52 On repudiation and divorce, see Article 189 above. 53 VoI. i, p. 225, Article 42, provides that accessories shall receive one degree less punishment than the principal in a crime. 54 In cases of killing or wounding by accident, Article 339 below provides that punishment may be redeemed by payment of copper. The 120 chin is the amount specified in Vol. i, p. 59, Article 5.

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Article 332 them, or more, the punishment is three degrees less than for the same offense against a person of non-kin status in each case. 331.2b—Death is punished by strangulation. 331.2c—Accidental killing is not punished.

[103] SUBCOMMENTARY: Cases where the former parents-in-law beat their son's or grandson in the male line's former wife or concubine so as to break a tooth, wound them, or more are punished three degrees less than the same offense against a person of non-kin status in each case [ l i b ] means that for such crimes as breaking a tooth the punishment is eighty blows with the heavy stick and that for breaking a limb is one and one-half years of penal servitude. Cases where the beating causes death are punished by strangulation. Since intentional killing is not mentioned as being punished by decapitation, it is also punished by strangulation. . . . QUERY: The women" of the sons and grandsons in the male line when their husband dies remain true to their vows. Suppose their mother-in-law is a young widow who either marries another man or is repudiated by the family. Should the former mother-in-law and the now dead son's or grandson in the male line's women commit crimes against each other, what is the punishment? REPLY: If when a son or grandson in the male line dies his wife or concubine remarries while their parents-in-law are alive, this is what is meant by former parents-in-law. Here, however, the mother-in-law is repudiated or remarries, while the widow and the now dead son's or grandson's other women live at home and remain true to their vows. Even though the mother-in-law is divorced from her husband's family, the way between mother and son is not broken. As the son is to his mother, it is reasonable that his women should be to their mother-in-law. Even though the mother-in-law has gone to her husband's home and her son's or grandson in the male line's women are at her former home, it is reasonable that the law on close relatives should be followed and the mother-in-law not be treated as a former mother-in-law. The husband's proper mother, stepmother, foster mother, and adoptive mother do not come under this article.56

Article 332 Beating an Elder Brother's Wife or a Husband's Younger Brother or Sister ARTICLE: 332.1a—All cases of beating an elder brother's wife or a husband's 55

Fw IfJ here designates both wife and concubine(s). That is, this article deals only with the husband's actual mother, the one who bore him.

56

Article 332

31ί

younger brother or sister are punished one degree more than for the same 37 offense against a person of non-kin status. 332.1b—If the crime is committed by a concubine, the punishment is increased one degree further. SUBCOMMENTARY: " T h e wife of an elder brother and his younger brother may 58 not talk with each other. They stay far apart in order to avoid suspicion." If a person beats his elder brother's wife or she beats her husband's younger brother or sister, proper behavior and respect are injured and perverted. Therefore the punishment for crimes is one degree more than for a person of non-kin status in each case. . . . If a younger brother or sister beat a concubine of an elder brother, they are punished as if she were a person of non-kin status. ARTICLE: 332.2a—If a concubine beats a son of her husband by another concu­ bine, the punishment is two degrees less than for the same offense against a person of non-kin status. 332.2b—If a concubine beats a son of her husband by the wife, the punish­ ment is for the same offense against a person of non-kin status. 332.3a—If a wife's son beats a concubine of his father so as to cause a wound, the punishment is one degree more than for the same offense against a person of non-kin status. 332.3b—If a concubine's son beats another concubine of his father or wounds her, the punishment is increased two degrees further. COMMENTARY: 332.4—Should death result, the punishment is that for a person of non-kin status in each case. SUBCOMMENTARY: That the punishment for a concubine who beats a son of her husband by another concubine is two degrees less than that for the same crime against a person of non-kin status is because they are closely connected. There­ fore the punishment is comparatively light. That where a concubine beats a son of her husband's wife is punished the same as were the crime against a person of non-kin status is because the wife has a more honorable position. . . . The commentary states: "Should death result, the punishment is that for a person of non-kin status in each case." So even where punishment is increased or decreased in the article, if death results, the punishment is the same as were the crime against a person of non-kin status.

"See Articles 302-306 above regarding the punishments for the crimes specified in this article. 58 Li chi, "Ch'u h," p. 37; Couvreur, Li fei, i, 29.

C H A P T E R XXIII

[la; 104]

Article 333 Beating a Wife's Children by Her Former Husband

ARTICLE: 333.1a—All cases of beating or wounding a wife's children by her former husband are punished one degree less than for the same offense committed against a person of non-kin status.1 333.1b—If those involved dwell together, the punishment is reduced one degree further.2 333.1c—If death results, the punishment is strangulation. SUBCOMMENTARY: Beating or wounding a wife's children by her former husband refers to a woman who has remarried and brought her children with her to the husband's home. If this second husband beats or wounds them, the punishment is one degree less than were the offense against a person of non-kin status. Dwelling together means that if the children are dwelling together with their stepfather, they have a second-degree mourning relationship in the ancestral temple. 3 So the punishment is reduced one degree further, that is, two degrees below that for the same offense committed against a person of non-kin status. If the stepfather beats a child so as to cause incapacitation, cuts out the child's tongue, or damages the child's sexual organs,4 the punishment is two and onehalf years of penal servitude. If they are not dwelling together, the punishment is three years of penal servitude. If death occurs as a result, regardless of whether they are dwelling together, the punishment is strangulation. ARTICLE: 333.2a—If one of the stepchildren beats or wounds their stepfather, the punishment is the same as for the offense against a relative of an older generation of the fifth degree of mourning. COMMENTARY: This means where those involved had previously dwelt together but now have separate goods.

'Articles 302-306 cover the basic punishments referred to here. On dwelling together, see Vol. I, p. 246, Article 26, and the discussion on p. 20. Such persons had certain privileges such as the one here on reduced punishment. Also read carefully the second subcommentary here. An article that treats the subject in traditional China generally is that of Shiga Shuzo, "Family Property and the Law of Inheritance in Traditional China," in David C. Buxbaum, ed., Chinese Family Law and Social Change in Historical Perspective (Seattle: University of Washington Press, 1978), pp. 109-150 3 See the quote from the Yi Ii below in this article. 4 On these offenses, see Article 305 above. 2

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ARTICLE: Cases involving those who dwell together are punished one degree more than were the offense against a person of non-kin status. COMMENTARY: Other articles [lb] on stepfathers follow this one. SUBCOMMENTARY: . . . The commentary states: "This means where those involved had previously dwelt together but now have separate goods." According to the [YiJ Ii: "Those who dwell together with their stepfather are in a seconddegree mourning relationship with him." 5 This means that when the wife is young and the children are immature and the children have no relatives of the third degree of mourning and their mother takes them to her new husband's home, and he also has no third-degree mourning relatives, and the husband uses their goods and real property to build a family ancestral temple outside the gates of the house, then at the proper season sacrifices are offered in it. This is what is meant by dwelling together. As for the stepson's wife, even though there is no mourning relationship, if she commits offenses against her husband's stepfather, in accordance with the articles below, the punishment is one degree less than for the same offense committed against the husband. 6 Where they do not dwell together refers to where persons have previously dwelt together but now have separate goods. Where the stepfather has children himself or his stepchildren have relatives of the third degree of mourning, even though they live together, the relationship is still considered to be one of dwelling apart. If they have not previously dwelt together, then they are not considered to be dwelling apart. So punishment rather follows the article on persons of non-kin status. Where they previously have dwelt together but now have separate goods, beatings are punished the same as for relatives of the fifth degree of mourning of a higher generation—one year of penal servitude. If the wound is serious, the punishment is two degrees more than that for ordinary assault in each case.7 If death results, the punishment is decapitation. Those who dwell together, even though they have a second-degree mourning relationship, really are not basically kin. So if they commit offenses against each other, the punishment is not the same as for persons who have a formal kinship relationship, and so the maximum punishment is one degree more than that for relatives of the fifth degree of mourning. This means that the punishment for beating is one and one-half years of penal servitude, and if a wound is serious, the punishment is three degrees more than for the same offense committed against persons of non-kin status. 5

Vi Ii, "Sang—fu," 364, Couvreur, Ceremonial, p. 401. See Article 334 below. 7 See the definition of serious wounds in Article 317 above. The punishment for the various kinds of assault is given in Articles 302—306 above. 6

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The commentary states: "Other articles on stepfathers follow this one."This means that where other articles are concerned with the mourning relationship of persons of a higher and lower generation who commit offenses against each other, the determination of punishment follows this article. This means that in the commentary below where there is reference to [2a] the children of the wife's former husband, the meaning is the same as stepfather. Where the article has reference to persons of a higher generation of the fifth degree of mourning, the meaning is the same. Where there are plots to kill 8 or sell,9 it is reasonable to classify them as discord. 10 Where with regard to the children of the former husband there is no mention of treating them the same as juveniles of the fifth degree of mourning, if they are beaten, the punishment is less than that of the same offense against a person of non-kin status, and the offense does not include persons of a lower generation or of the same generation but younger of the fifth degree of mourning. 1 1 ARTICLE: 333.2b—Beating or wounding the teacher from which one has re­ ceived one's education is punished two degrees more than the same offense committed against a person of non-kin status. 12 333.2c—Death is punished by decapitation in each case. COMMENTARY: This means a teacher from whom one has received Confucian learning and not private instruction. SUBCOMMENTARY: The Li [chi] states: " I n studying the Way, reverence for the teacher is difficult."13 But if the teacher is revered, the Way will be honored. Only then will the student know and respect study. If he has inherited Confu­ cianism and received his teacher's instruction and yet beats his teacher, the pun­ ishment is two degrees more than that for the same offense against a person of non-kin status. Reference to "each" in the phrase death is punished by decapi­ tation in each case means that it includes beating the stepfather. If death results, all of these offenses are punished by decapitation. The commentary states: "This means a teacher from whom one has received Confucian learning and not private instruction." Confucian learning means learn­ ing the classics. What is not private instruction [105] refers to the Institute for the Advancement of Literature and the School for the Sons of the State, and 14 other schools at the prefecture and county level. As for private instruction, the "See Article 253 above 'See Article 294 above. '"Discord is the eighth of the ten abominations. See Vol. I, p. 61, Article 6, and the discussion on pp. 17 ff. "See Article 327 above. 12 TIm offense also is considered to be unrighteousness, the ninth of the ten abominations. "Li-chi, "Hsiieh-chi," 654, Couvreur, Memoires, π, 39. 14 On educational institutions during the T'ang period, see des Rotours, Examens

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15

Li [chi] states: "Every great family has a school." And so there was order. If family members commit offenses against each other, the punishment is the same as for the offense against a person of non-kin status. QUERY: Beating a teacher from whom one has received one's education is pun­ ished two degrees more than the same offense against a person of non-kin status. If this erudite has a high rank, is the punishment combined and added to that for the basic offense or not? REPLY: Beating a teacher from whom one has received one's education is pun­ ished two degrees more than the same offense against a person of non-kin status. If he has previously received official rank, the punishment for that rank is com­ bined and added. If an erudite who does not have rank is beaten in an affray, the punishment is two degrees more than for the same offense against a person of non-kin status, sixty blows with the heavy stick. If he is of the ninth rank or above, the punishment is eighty blows with the heavy stick. [2b] For beating an official of the fifth rank, the punishment is combined and added to that for the basic offense.

Article 334 Beating or Cursing with Bad Language a Husband's Relatives of the Second Degree of Mourning Who Are of a Higher Generation or of the Same Generation but Older ARTICLE: 334.1a—All cases where a wife beats or curses with bad language her husband's relatives between the second and fifth degrees of mourning who are of a higher generation or of the same generation but older are pumshed one degree less than for the same offense committed by the husband. 1 6 COMMENTARY: If the reduction of punishment makes it lighter than for wound­ 17 ing in an ordinary affray, one degree of punishment is added. ARTICLE: 334.1b—If these offenses are committed by a concubine, the punish­ ment will not be reduced. 334.1c—If the person dies, the punishment is decapitation in each case. SUBCOMMENTARY: According to the mourning relationships, a wife's mourning y

'Li-chi, "Hsueh-chi," 649; Couvreur, Memoires, π, 30. See Articles 329 and 332 above. The punishments differ according to the closeness of the relationship. "See Article 302 above.This commentary means that the punishment cannot be less than sixty blows with the heavy stick. 16

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Article 334

relationship to her husband's brothers is one degree less than his. So if a wife beats her husband's relatives within the fifth degree of mourning who are of a higher generation or the same generation but older, the punishment is one degree less than had her husband committed the same offense. This is because following the husband's mourning relationship the punishment is also reduced. The commentary states:"If the reduction of punishment makes it lighter than for wounding in an ordinary affray, one degree of punishment is added." This refers to the intentional beating of a male relative of the same generation of the fifth degree of mourning so as to break a limb being punished by life exile at a distance of [3a] 2,500 Ii. If the offense is committed by a wife, the punishment is one degree less than had the offense been committed by her husband, three years of penal servitude.18 Since the reduction of punishment makes it lighter, one degree of punishment is added to that for the same offense against a person of non-kin status, making it life exile at a distance of 2,500 Ii. . . . As for punishment, even though the text states that the punishment is one degree less than that for the husband, if the basic ruling for the mourning relationship would be punished more heavily, then the punishment follows such a heavier ruling. Suppose a wife beats her husband's paternal uncle or aunt so as to break a rib. For a relative of the third degree of mourning of a higher generation, four degrees of punishment are added to that for the same offense against a person of non-kin status, making the punishment life exile at a distance of 2,500 Ii. If the punishment were reduced one degree below that for the husband had he committed the same offense, it would be three years of penal servitude. The General Principles states: "However, where more than one article may be appropriate, whichever has the heaviest punishment will be followed."19 Thus following the mourning relationship, the punishment is increased four degrees to life exile at a distance of 2,500 Ii. ARTICLE: 334.2a—If a wife beats and wounds a relative of her husband of a lower generation, it is treated the same as if the husband did the beating. If death results, the punishment is strangulation. If she beats and kills her husband's brothers, the punishment is life exile at a distance of 3,000 Ii. If she intentionally kills one of them, the punishment is strangulation. 334.2b—If a concubine commits these offenses, the law on an ordinary affray is followed in each case. 334.3a—If a person of a higher generation or of the same generation but older beats and wounds the wife of a relative of a lower generation or of the same generation but younger, the punishment is one degree less than for the same offense against a person of non-kin status. 18 VoI. i, p. 268, Article 56, specifies that one degree of reduction of punishment from death is life exile and two degrees is three years of penal servitude. One degree of reduction from life exile is three years of penal servitude. "Vol. i, p. 252, Article 49.

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334.3b—If she is a concubine, the punishment is reduced one degree further. 334.3c—If she dies, the punishment is strangulation. SUBCOMMENTARY: . . . [106]

Article 335 Paternal Grandparents Being Beaten or Hit by Someone [3b]ARTICLE: 335.1—All cases of a son or grandson in the male line who beats or hits someone who is beating or hitting his paternal grandparents or parents, if he does not break a tooth or wound the person, are not punished. 20 335.2—If he breaks a tooth or wounds the person, the punishment is three degrees less for doing so in an ordinary affray. 335.3—If death results, the punishment follows the ordinary law. COMMENTARY: This means that the son or grandson in the male line was not originally an accessory to the offense. SUBCOMMENTARY: If his paternal grandparents or parents are being beaten or hit by a person, it is reasonable for a son or a grandson in the male line to rescue them. If he beats and hits the person who is beating or hitting them, even if that person is injured, providing no tooth is broken or wound in caused, he is not punished. If a tooth is broken or a wound is caused, the punishment is three degrees less than for doing so in an ordinary affray means that if he breaks a tooth, the punishment is eighty blows with the heavy stick. . . . The commentary states: "This means that the son or grandson in the male line was not originally an accessory to the offense." If he was originally an accessory, then the punishment is for principal and accessory as if for an ordinary affray.2' The text of the article has reference to paternal grandparents or parents being beaten or hit by a person, but there is no mention of where that person is a relative of a higher generation or of the same generation but older than the paternal grandparents or parents. Where a relative of a higher generation or of the same generation but older than the paternal grandparents or parents and who according to law is not punished for beating [or hitting] them, their son or grandson in the male line can only rescue them by extricating them from the beating. He may not beat the person who is beating them. If the son or grandson in the male line does improperly beat that person, the punishment will follow the ordinary law on beating in an affray. 20

On these offenses, see Articles 302-306 above. VoI I, p. 225, Article 42, provides that accessories to a crime will be punished one degree less than the principal. 21

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If a man's paternal grandparents or parents and his wife's paternal grandparents or parents are beating each other, the man's wife may not beat her husband's paternal grandparents or parents. If she does so, the punishment will follow that for the ordinary law. [4a] QUERY: If a personal retainer or a slave beats or hits someone who is beating or hitting their master, is this treated the same as in this article on a son or grandson in the male line or not? REPLY: Personal retainers and slaves are not relatives of their master. So it is not treated the same as in this article on sons and grandsons in the male line. They may only rescue their master by extricating him from the beating.They may not beat or hit his assailant.

Article 336 Mistakenly Killing a Bystander Because of Beating in an Affray ARTICLE: 336.1—All cases of mistakenly killing or wounding a bystander because of beating in an affray are punished for killing or beating in an affray.22 If the punishment reaches the death penalty, it is reduced one degree. SUBCOMMENTARY: As for mistakenly killing or wounding a bystander by beating in an affray—suppose "A" and " B " are assaulting each other. "A" wants to hit " B " with a weapon or a club but by mistake hits " C " so as to kill or wound him. The punishment is for killing or wounding in an affray. It is not an accidental killing because originally there was malicious intent (hai-hsin f j ' LN)· Therefore the law on affrays is followed in each case. If the punishment reaches the death penalty, it is reduced one degree to life exile at a distance of 3,000 Ii. ARTICLE: 336.2—If as the result of a fall a person is killed or wounded, the punishment is for killing or wounding in play (hsi sha shang S t fie ill)· 23 336.3—A person who mistakenly kills or wounds someone who is helping him is punished two degrees less in each case. [107] SUBCOMMENTARY: . . .Where a group of men are beating each other in an affray and one of them loses control of a hand or foot so that he falls and mistakenly kills or wounds a bystander is punished for killing or wounding in play. In another article where a person is killed or wounded in play, [4b] the punishment is two degrees less than for killing or wounding in an affray. This means -These offenses are covered in Articles 302—306 above. ^See Article 338 below.The punishment is two degrees less than for killing or wounding in an affray.

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379

that the punishment for killing is three years of penal servitude,24 and if a limb is broken the punishment is two years of penal servitude. 25 As for a person mistakenly killing or wounding a person who is helping him being punished two degrees less in each case—suppose "A" and " B " are together beating "C," but "A" mistakenly beats " B " and causes his death. The punishment is reduced two degrees, and had " B " been wounded, the punishment would also be reduced two degrees. If "A" falls and crushes "B," causing death or a wound, the punishment is two degrees less than for killing or wounding in play, so that if " B " is killed, the punishment is two degrees less than for killing in play, altogether four degrees less than killing in an affray, or two years of penal servitude. If one limb is crushed, the punishment is also four degrees less or one year of penal servitude. This is what is meant by two degrees less punishment in each case. QUERY:"A" plots together with his son " B " to beat "C." By mistake,"B" hits his father, who dies as a result. Does the punishment follow this article on a person mistakenly killing or wounding someone who is helping him being punished two degrees less or not? REPLY: The article states: "Mistakenly killing or wounding a bystander because of beating in an affray is punished for killing or beating in an affray."The killing or wounding of a bystander is punished as an accident. Because carrying out the crime basically was connected with an affray the punishment would be for killing or wounding in an affray. Since the criminal's father came to help him and was mistakenly killed or wounded, the punishment would be reduced two degrees. Thus it would be lighter than the punishment for an accident.26 According to the General27 Principle: "However, where more than one article may be appropriate, whichever has the heaviest punishment will be followed." This means that the punishment for an accident is life exile at a distance of 3,000 Zi.28 FURTHER QUERY: If because of a fall in an affray a person mistakenly kills his parents who had come to help him, or even though he did not fall, if because of an affray he mistakenly kills a relative of the second degree of mourning of a higher generation or [5a] of the same generation but older, what is the punishment? REPLY: If because of a fall in an affray a person mistakenly kills his parents or a relative of the second degree of mourning of a higher generation or of the same

24

See note 18 above. See Article 328 below. 26 Article 339 below, permits accidental killing or wounding to be redeemed by payment of copper. The amount paid would depend upon the circumstances. 27 Mi>ig :¾ should be inserted before h 7^lJ, following the KHCPTS edition 28 Article 329 above punishes the accidental killing of a father by life exile at a distance of 3,000 Ii. 25

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Article 337

generation but older, if the reduced punishment is less than that for killing them in an accident, then the law on accidental killing will always be followed.29 FURTHER QUERY: Suppose several men plot together to kill "A." But unexpectedly, in the middle of the night, they mistakenly kill "B."What is the punishment? REPLY:This basically was a plot to kill and is not the same as beating in an affray. Beating in an affray is where both 30 sides take part. A plot to kill is secretly to carry out a murder. If a blow at "A" mistakenly kills "B," it is still punished as killing or wounding in an affray. But because there was originally no intent to kill, if death results, the punishment is reduced one degree. How much more, then, where the original plot was to kill "A" and basically there was intent to do murder. So even though " B " was mistakenly killed, the basic circumstances were not of an affray. If "A" had been killed, this would have been a plot to kill a person. Now " B " has been killed by mistake, so the decision must be to punish the criminal for intentional killing.

Article 337 A Personal Retainer or Slave Who Curses with Bad Language Their Former Master ARTICLE: 337.1a—All cases of personal retainers or slaves who curse with bad language their former master are punished by two years of penal servitude. 337.1b—Beating them is punished by life exile at a distance of 2,000 Ii. 337.1c—Wounding them is punished by strangulation. 337.1d—If they die, all the criminals are punished by decapitation. 337.1e—Accidentally kilhng or wounding them is punished in accordance with ordinary crimes. 31 SUBCOMMENTARY: . . . [5b] In cases of death, where there is a principal and accessories, all the criminals are decapitated; no distinction is made between principal and accessories. Cases of accidental killing or wounding [108] are treated as though against persons of non-kin status. The copper that is received as redemption of the punishment goes to the family of the person. ARTICLE: 337.2a—If a master beats his former personal retainer or slave so as to break a tooth, cause a wound, or more, for a personal retainer the punishment is two degrees less than for a commoner, and for a slave the punishment is reduced two degrees further. 2

O n accidental killing, see Article 339 below. Pei iS should be read pi '$t, following all other editions. "See Article 339 below

x

Article 337

381

337.2b—Accidental killing is not punished in each case. SUBCOMMENTARY: Where a master beats his former personal retainer or slave so as to cause a break, a wound, or more, for a personal retainer the punishment is two degrees less than for a commoner means that for breaking a tooth the punishment is ninety blows with the heavy stick. For a slave the punishment is reduced two degrees further to seventy blows with the heavy stick. . . . QUERY: If a personal retainer or slave beats or curses with bad language their former master's relatives of the second degree of mourning or less, or their former master's relatives beat or wound the former master's former personal retainers or slaves, is the punishment less than for a commoner or not? REPLY: Different generations of those within the five degrees of mourning each have a blood relationship. Therefore if a person beats a relative of a higher generation or of the same generation but older than himself, the punishment is increased according to the degree of relationship. With regard to slaves and personal retainers, they have ties to their master, and even though they have been manumitted, there is kindness remaining from former days. So if a personal retainer or a slave beats or curses their former master, the punishment is increased. However, aside from the master, if his former personal retainers or slaves and his relatives commit crimes against each other, the law for persons of non-kin status will be always followed. FURTHER QUERY: If a person plots to kill his former personal retainer or slave, or commits robbery by force against the family of his former personal retainer or slave, or kills or [6a] wounds a former personal retainer or slave, is the punishment reduced or not? REPLY:The punishment for beating or wounding a former personal retainer or slave is two degrees less than for the same crime against a person of non-kin status. Even if this results in death, the principle of reduction of punishment is followed. Thus it is clear that plotting to kill and other miscellaneous offenses follow the law on reduction of punishment. However, the robbery of goods and articles is different from ordinary offenses (against the person) and can only follow the laws on persons of non-kin status. Thus there is no reduction in the punishment.

382

Article 338

Article 338 Killing or Wounding a Person in Play ARTICLE: 338. Ia—All cases of killing or wounding a person in play are punished two degrees less than for killing or wounding in an affray.32 COMMENTARY: This refers to persons agreeing to a game where strength is used in a friendly way but death results. ARTICLE: 338.1b—Even though the persons agree, if a knife is used, or if they climb to a dangerous height, or go into water with the result that one of them is killed or wounded, the punishment is reduced only one degree. 338.2—If the offender has no office that allows him redemption by payment of copper,33 the law on accidents that does allow redemption by payment of copper is followed.34 COMMENTARY: Other articles that deal with unintentional offenses committed by those who have no office that will allow them redemption by payment of copper follow this article. SUBCOMMENTARY: . . . Depending upon social status and generational or age relationship, punishments are reduced two degrees below that for killing or wounding in an affray in each case. . . . The agreement must have lasted until death occurred. Hatred cannot have been the cause of the death. . . . [6b] If the offender has no office that allows him redemption by payment of copper, the law on accidents that does allow redemption by payment of copper is followed. This refers to those who have protection, or are aged, young, disabled, and so forth. [109] If they commit an offense for which redemption by payment of copper is allowed, following the law on accidents, they are allowed redemption by payment of copper. Suppose a person is killed by accident.The amount of copper for redemption of punishment is 120 twenty chin. Since the punishment for killing in play is reduced two degrees, sixty chin of copper would be needed to redeem it. But there is no classification of lighter or heavier punishments under the law on accidents. Therefore if this law is followed on redeeming the punishment, there would no reduction of punishment. The commentary states: "Other articles that deal with unintentional crimes committed by those who have no office that will allow them redemption by 32

Articles 302-306 cover the basic punishments referred to here. "See Vol. I, pp. 23 ff, on legal privileges. Article 339 below deals with crimes committed by accident. w See Article 339 below.

Article 339

383

payment of copper follow this article." This means that for any article in this section where an unintentional offense is committed, for those who have no office that allows them to redeem punishment by payment of copper, this article will always be followed. Suppose "A" is preparing medicine for someone and mistakenly does not follow the recipe, which causes the person's death. The punishment is two and one-half years of penal servitude. 35 If the criminal is a male commoner, he must do labor. But if he is a ranked official, he can make redemption of the punishment through payment of copper. But he cannot merely pay 50 chin of copper. Rather, he must pay 120 chin.This is an example of another article following this article. ARTICLE: 338.3—If there is no agreement, or even if there is agreement with relatives of the second degree of mourning who are of a higher generation or of the same generation but older, or the paternal grandparents, or the husband, or the husband's paternal grandparents, death or wounding cannot be considered to be play, but the punishment follows the law on killing or wounding in an affray in each case.36 SUBCOMMENTARY: This means that originally there was no agreement to play. Play is not permitted with relatives of the second degree of mourning who are of a higher generation or of the same generation but older, or the paternal grandparents, or the husband,37 or the [7a] husband's paternal grandparents. . . . Suppose, for example, that a person while engaging in play with a second degree mourning relative of a higher generation or of the same generation but older breaks a limb of that relative. The punishment will be strangulation.

Article 339 Accidentally Killing or Wounding a Person ARTICLE: All cases of accidentally killing or wounding a person, depending upon the circumstances of the offense, allow redemption of punishment by payment of copper.38 COMMENTARY: This means wherein eyes and ears could not have perceived such a result and where thought and planning could not have prevented it (erh35

See Article 395 below. See Article 306 above. 37 Fu ^t should be inserted after mu S , following all other editions. 38 Note, however, that this article is not applicable to parents, paternal grandparents, and certain other relatives. See Article 329 above, and Vol. i, p. 95, Article 11, and Vol. I, p. 112, Article 17. Crimes that come under these articles are those referred to in the last paragraph of the subcommentary. Nnda, Statutes, p. 791, provides that where the crime involves wounding or injury, the amount of copper paid to redeem the crime goes to the victim's family. 36

384

Article 340 mu so-pu-chi ssu-lu so-pu-tao 3=f @ pf\^f 25.,¾1¾?pft^5'J). Examples are a man not being able by himself to support a heavy weight that he lifted together with another person, or losing his footing while climbing to a dangerous height, or killing or wounding someone while hunting birds or animals.

SUBCOMMENTARY: . . . Where a person is killed or wounded, depending upon the basic circumstances of the offense, the law on redemption by payment of copper is followed. The commentary states: "This means wherein eyes and ears could not have perceived such a result." Suppose someone throws a brick or tile, slings a missile, or shoots an arrow at a building and his ear does not hear nor does his eye perceive anyone coming out so that death or a wound results. "Where thought and planning could not have prevented it," basically refers to throwing a tile or stone in a secluded and dark place where it is thought that no one would be and by error killing or wounding someone. . . . Reference to examples means such things as erroneously killing or wounding a bystander while arresting a robber or someone who has committed a violent act. However, those crimes that basically require forced labor in a fixed place or replacement by office follow the relevant laws.

Article 340 [7b]

Secret Reports of a Plot To Rebel or That Great Sedition Has Been Committed39

ARTICLE: 340.1a—All cases of knowledge of a plot to rebel or of great sedition has been committed must be secretly reported to the nearest official.Those who do not do so are punished by strangulation. 340.1b—Those who know of a plot to commit great sedition or of a plot of treason and do not report them are punished by life exile at a distance of 2,000 Ii. 340.1c—Those who know of criticism of the emperor 40 or of making magical incantations 41 and do not report them have their punishment reduced five degrees below that for the basic crime in each case. 340.2a—If an official receives such a report and does not immediately seize and arrest the criminals, should a half day pass, his punishment is the same as those who do not report the offense in each case. 3,

These are the first two of the ten abominations Rebellion, which is mentioned immediately below, is the third. See Vol. I, p. 61, Article 6, and the discussion on pp. 17 ff.The actual offenses are covered by Article 248 above. Much of the subcommentary here repeats the language of the commentary to Article 6. "Article 122 above punishes criticism of the emperor by anywhere from two years of penal servitude to decapitation, depending upon the seriousness of the offense. The subcommentary below makes it clear that the most serious of these possibilities is what is referred to here •"Article 268 above punishes this offense by strangulation.

Article 341

385

340.2b—If the matter requires that a plan be devised and so the time limit is violated, it will not be punished. SUBCOMMENTARY: Plotting rebellion means to know that a person is secredy planning to endanger the Altars of the Soil and Grain. Great sedition means to know that a person has already destroyed the ancestral temples, tombs, or palaces of the reigning house. Either of these offenses must be immediately reported to the nearest official. . . . [110] Knowing of a plot to commit great sedition means to know that a plot has begun with the intent of destroying the ancestral temples, tombs, or palaces of the reigning house. . . . Knowing of criticism of the emperor refers to where the circumstances are completely reprehensible. Magical incantations mean to speak wildly about good or bad fortune. . . . Should a [8a] half day pass refers to fifty fe'o.42 . . . If the matter requires that a plan be devised and so the time limit is violated, it will not be punished.Where there are a large number of people so that soldiers and weapons must be obtained, and because of devising a plan the time limit is violated, the person who delayed will not be punished. If a person knows of a plot to rebel or a lesser crime and though he does not make a secret report to the nearest official he makes the arrest himself and sends the criminals to a government office, it will be considered the same as if he had made a secret report. If because of this arrest the criminals are alarmed and escape, or those who have already been caught escape, the punishment is the same as under the law on escaped prisoners. 43

Article 341 False Accusations to the Court of Plots of Rebellion or of Great Sedition Having Been Committed ARTICLE: 341.1—All cases of false accusations to the court of plots of rebellion or of great sedition having been committed are punished by decapitation. Accessories are punished by strangulation. 341.2a—If the matter could not be verified, but the basic circumstances are not false, a petition is sent up to the throne. 341.2b—Accusations to the court of a plot to commit great sedition or a plot of treason are treated the same way. 42

This follows Vol I, p. 265, Article 55, where a day is defined as one hundred k'o Probably the reason for actually stating the number fifty is that the period from dawn to dusk is often considered to be the working day in the Code 43 See Article 466 below. The punishment is two degrees less than the prisoner, so that the maximum punishment is three years of penal servitude

386

Article 342

SUBCOMMENTARY: A false accusation to the court of a plot of rebellion or of great sedition having been committed refers to knowing that there has not been a rebellion or sedition but intentionally making an accusation to the court. . . . Where the matter could not be verified refers to where a special imperial edict has been issued to review troops or to repair the imperial ancestral temple. A person seeing the review of troops errs in thinking that a rebellion was about to begin, or a person seeing the repair of the imperial ancestral temple errs in thinking that great sedition has occurred. Where the basic circumstances are not completely a false accusation, all the written evidence is sent up in a petition to the throne and the punishment is determined by an imperial edict. . . . [8b]

Article 342 Reciprocal Punishment for False Accusation ARTICLE: 342.1a—All cases of false accusation against other persons are sentenced to reciprocal punishment. 342.1b—If a censorate official for private reasons does not report the true circumstances of a matter, it is treated the same way. COMMENTARY: 342.1c-i—Reciprocal punishment is determined by the punishment of the accused. 342.1c-ii—If the punishment reaches the death penalty but it has not yet been administered, the punishment for the person who made the false accusation is reduced one degree. 342.1c-iii—For those who basically are punished by added blows with the heavy stick or who may redeem punishment by payment of copper, the punishment for the false accusation can only follow the laws on beating with the heavy stick and redemption by payment of copper.44 342.1c-iv—If the false accusation is against an official or a person who has protection, the ordinary law is followed.45 SUBCOMMENTARY: Everyone has those whom they dislike. If consequendy they make false accusations about each other (such accusations will be punished).The punishment for the accuser depends upon the seriousness of the punishment for the false accusation. 44 In certain circumstances both commoners and members of inferior classes would have blows with the heavy stick substituted for other punishments. See Vol. i, pp. 156 fF and 249, Articles 27, 28, and 47. Persons who were sixty years of age or more, ten years of age or less, disabled, or incapacitated could redeem punishments by payment of copper. See Vol. i, p. 169, Article 30. On these systems, see Vol. i, pp. 23 ff, for a general discussion 4 'Vol. I, p. 93, Article 11, allows members of the privileged classes to include certain of their relatives in the protection they have from punishment for ordinary offenses.

Article 342

387

46

Thus if a censorate official in accordance with the statute is making a inves­ tigation and because of hatred for a person or a clique or relatives, he for private reasons covers over the fraud or falsifies the investigation, all of these are consid­ ered to constitute false accusation under this law. Reciprocal punishment is determined by the punishment of the accused. Where the punishment reaches the death penalty, if the person has already been sentenced but the punishment has not yet been carried out, the person who is to be reciprocally punished has his punishment reduced one degree. However, for false accusations of rebellion or sedition, if the accusation proves untrue, there is no reduction of punishment even if the punishment has not yet been adminis­ tered to the person. . . . [9a; 111] As for a false accusation against an official or a person who has protection— suppose a male adult commoner makes a false accusation against an official of the seventh rank of an offense that is punished by life exile. If the accusation is true, according to the general principle, the official's punishment is reduced one degree and office is used to replace punishment. 4 7 If the accusation is untrue, the reciprocal punishment is still life exile. As for a false accusation against a person who has protection—the offense may have the punishment reduced and redeemed by payment of copper. 4 8 How­ ever, reciprocal punishment may not follow the law on reduction of punishment and redemption by payment of copper. Rather, in these cases, the person is actually put to penal servitude or sent into life exile. This is called following the ordinary law. ARTICLE: 342.2a—If the accusation to the court is of two or more offenses and the more serious proves to be true; or where the offenses are equally serious but one of the accusations is true, the punishment is canceled. 342.2b—If the accusation to the court of the more serious offense proves to be untrue, then there is reciprocal punishment for the difference between that offense and those for which the accusation was true. 342.2c—If the maximum punishment has been reached, even if the false accusation is for more, there can be no further reciprocal punishment. SUBCOMMENTARY: As for the accusation to the court being of two or more of­ fenses and the more serious proving to be true—suppose "A" accuses " B " to the court of having beaten a person and broken a tooth, which is punishable by one year of penal servitude, 49 also of committing robbery of five ρ 'i of silk, which is 46

See Nnda, Statutes, p. 155 VoI. i, p. 92, Article 10, reduces the punishment of life exile for officials of the seventh rank and above by one degree.Vol. i, p. 268, Article 56, states that a reduction of punishment from any of the three levels of life exile shall be to three years of penal servitude.Vol. ι, ρ 112, Article 17, allows officials of the seventh rank to use office to replace penal servitude. 48 VoI. I, p. 93, Article 11, gives this privilege to such persons 4, See Article 303 above. 47

388

Article 342

also punished by one year of penal servitude,30 and further of intentionally killing another man's horse worth one p'i of silk, which is punished by one and onehalf years of penal servitude.' 1 Upon investigation, the killing of the horse proves true and the beating and the robbery untrue.This is called making an accusation to the court of two or more offenses and the more serious proving to be true. Suppose " C " accuses " D " to the court of three offenses, each of which is punishment by one year of penal servitude. This is called making an accusation to the court of offenses that are equally serious. Where one offense proves to be true, it cancels the punishment. As for the more serious offense proving to be untrue—suppose "A" accuses " B " to the court of a robbery of silk worth five p'i of silk, which is punished by one year of penal servitude, and also of intentionally killing government and private horses and oxen, punished by one and one-half years of penal servitude. If the robbery proves to be true and the killing of the horses and oxen false, then there [9b] remains one-half year for the accusation, which is reciprocally punished. Therefore it is stated that there is punishment for the other accusations. As for punishment reaching a limit, so that even if the false accusation is for more punishment, there is no further reciprocal punishment—suppose there is an accusation to the court that a man who is not a supervisory or custodial official has taken bribes because of some matter worth one hundred p'i of silk. An investigation proves that the bribe worth fifty p'i of silk is true. Illicit goods obtained through malfeasance worth fifty p'i of silk receives the maximum punishment, which is three years of penal servitude. 52 Since the maximum punishment has been reached, the accusation for the other fifty p'i of silk cannot be punished. ARTICLE: 342.3—If the accusation to the court involves two or more persons, even if the accusation proves true for the majority, there is still reciprocal punishment for those where the accusation proves to be untrue. COMMENTARY: This means that where the accusation to the court involves two or more persons and it proves to be untrue for one of them, even though the punishment is less serious it is still reciprocal. ARTICLE: 342.4—If a memorial is sent up accusing someone that has already been decided and the offense proves to be untrue, where the reciprocal punishment is lighter, the punishment is for submitting documents to the emperor that are false or untrue. SUBCOMMENTARY: . . . Because the persons and the offenses are each different, therefore the punishments are not the same. Suppose a person makes an accusation ^See Article 282 above. 5, See Article 203 above. 52 See Article 389 below.

Article 343

389

to the court of the crimes of four men: "A," "B," "C," and "D." The accusations about three men whose crimes are punished by penal servitude or more prove to be true. However, the accusation of one man whose crime would be punished by beating with the light stick proves to be untrue. The fact that the accusations of the majority proved to be true cannot gain release and exemption from punishment for the person who made the false accusation. So he is reciprocally punished by beating with the light stick. Where a memorial is sent up to the throne accusing someone and the emperor has already made his decision, yet the accusation of the crime proves to be untrue, if the reciprocal punishment is lighter than that for submitting documents to the emperor that are [10a] not true, the punishment is two years of penal servitude following the law on submitting documents to the emperor that are untrue. 53 Where reciprocal punishment is not required, there is no other punishment. Suppose "A" sends up a memorial to the throne accusing " B " of two offenses, both of which are punished by one year of penal servitude. One of the accusation is true and the other untrue. According to this article, "A" is exempted from reciprocal punishment. Hence he is not punished for submitting documents to the emperor [112] that are untrue.

Article 343 Making a Baseless Accusation to the Court of a Less Serious Offense ARTICLE: All cases of making a baseless accusation to the court of a less serious offense as a result of which the prison official's (yu-kuan W( B) investigation discovers a more serious or an equally serious offense, or an offense of the same kind, cancel the punishment for making a baseless accusation. If the offense that is discovered is different in kind, the punishment follows the law on false accusations.54 SUBCOMMENTARY: AS for making a baseless accusation to the court of a less serious offense as a result of which the prison official's investigation discovers a more serious offense—suppose there is an accusation to the court of a man having committed robbery of a donkey and upon investigation it proves to have been a horse.The value of a horse is greater than that of a donkey so that it is a more serious crime. As for an equally serious offense—suppose that there is an accusation to the court of the robbery of a horse belonging to "A'"s household, and upon investigation it proves to have been the robbery of a donkey belonging to "B'"s

'See Article 368 below. 'See Article 342 above.

390

Article 344

household. The value of the animals being the same, this is an offense of the same kind. The offenses being of the same kind refers to mules, horses, and donkeys being similar. So even though the accusation to the court is baseless, the punishment for the false accusation is canceled. The offense being different in kind refers to making an accusation to the court of a man's having committed robbery of a horse and upon investigation it proves to have concerned the coining of money. 5 'This offense being different, then, the punishment is for the original false accusation to the court of the robbery of a horse. This section is a new provision based on the investigation of illicit goods from the circumstances of an accusation to the court and is not the same as a judicial officer searching for crimes aside from the circumstances of an accusation.56 QUERY: If there is an accusation to the court of the private possession of a bow and the prison official makes an investigation because of the accusation and finds armor, is this an offense of the same kind or not? [10b] REPLY: Reference to kind means that the shape and form are difficult to distinguish, so that the original facts are not those of a false accusation and what is found cancels that punishment. Now even though bows and armor are both forbidden military weapons, yet their shape and kind are completely different. There is no doubt about the offense, and the basic circumstances are those of a false accusation. Offenses of this type cannot be considered those of the same kind.

Article 344 Making a False Accusation to the Court of an Offense Punished by Life Exile ARTICLE: 344.1—All cases of making a false accusation to the court of an offense punished by life exile or less, where the accuser admits that the accusation is false before the accused has undergone judicial torture, reduce his punishment one degree. 57 344.2a—If the accused has already been judicially tortured, there is no reduction of punishment. 344.2b—The same is true for the judicial torture of witnesses. "The private coining of money was punished severely, by life exile at a distance of 3,000 Ii. See Article 391 below. ''Article 480 below does not permit such "shotgun" investigations, penalizing those who use them. ' 7 On false accusations to the court, see Articles 342 and 343 above.

Article 344

391

COMMENTARY: 3 4 4 . 2 C — T h e punishment for false accusations to the court di­ rected against relatives of the second degree of mourning who are of a higher generation or of the same generation but older, paternal grandparents, the husband, or the husband's paternal grandparents, or by slaves and personal retainers against their master's relatives of the second degree of mourning, or his maternal grandparents will not be reduced even if the accuser admits that the accusation was false. SUBCOMMENTARY: False accusations of offenses punished by the death penalty are covered by separate rules.' 8 Here we are only concerned with false accusa­ tions punished by life exile or less. . . . If the accused has already been judicially tortured, no matter how much or how little, then the admission that the accu­ sation was false will not gain a reduction of punishment. The same is true for the judicial torture of witnesses means that even if the person who made the accusation has not been judicially tortured, if bystanders or witnesses have been judicially tortured, then even the accuser admits that the accusation was false, it will be treated the same as if the accused had already been judicially tortured and there will be no reduction of punishment. . . . [Ha] QUERY:The article states:". . . where the accuser admits that the accusation is false before the accused has undergone judicial torture reduce the punishment one degree." It is not yet known whether an admission that the accusation was false takes place after sentencing will reduce punishment by one degree or not? [113] REPLY: The text of the article speaks of the accused having already been subjected to judicial torture, it does not speak of the offense having already been sentenced. Where the judicial torture has ended and the accused has already been injured, the article has a set ruling. Where the case has been sentenced without the accused being injured, it is reasonable that there should be a reduc­ tion of punishment. But where the punishment of the false accuser has already been memorial­ ized, 59 it will not be canceled and reduced (chui-chien ϋΐίϋζ). Where a person has already been sent into penal servitude or life exile, already been beaten or hurt, this is considered the same as having been injured or wounded by judicial torture, and their cases do not come within this article on reduction of punishment.

'"See Article 342 above. ''This refers to where the sentence had been set up for approval at the necessary level, in the case of capital crimes to the emperor. See the translation of the relevant statute on p. 146 and a discussion of the trial process in Johnson and Twitchett,"Criminal Procedure in T'ang China," pp. 113-146.

392

Article 345

Article 345 Accusing Paternal Grandparents or Parents to the Court Is Punished by Strangulation ARTICLE: 345.1—All cases of accusing paternal grandparents or parents to the court are punished by strangulation. COMMENTARY: This means intentional accusations to the court of offenses that do not involve collective prosecution, plotting treason, or more. 6 0 Articles below follow this article. SuBCOMMENTARY:The father is the son's heaven. If the son conceals his father's offenses, the son will not be punished. 6 1 If the father makes mistakes, it is reason­ able that the son should remonstrate with him and not allow him to fall into punishment. But if the son forgets affection, casts aside correct behavior (/;' /ΐ§), and intentionally makes an accusation to the court, he is punished by strangulation. The commentary states:". . . offenses that do not involve collective prosecu­ tion." Collective prosecution refers to plotting rebellion, committing great sedi­ tion, and plotting treason. The above are all behavior that is not proper to a subject.Therefore if a son makes an accusation of these crimes to the court he will not be punished. Collective prosecution is treated the same as under the law on confession.62 Therefore even a father or paternal grandfather can be arrested and accused to the court. If, however, this is done with the intention of accusing them to the court of other offenses, the father or paternal grandfather will be treated the same as [1 lb] under the General Principle on confession, and the son or grandson in the male line will be punished by strangulation. Articles below follow this article refers to making accusations to the court of relatives of the second degree of mourning of a higher generation or of the same generation but older, where they are intentionally accused to the court because of feelings of hatred and a desire to cause them to be punished. Therefore it is stated that such accusations follow this article. But if the investigation and ex­ amination that results from the accusation does not exempt these relatives, then there is no punishment for making the accusation. 63 ARTICLE: 345.2—If the proper mother, the stepmother, or foster mother kills a person's father, or adoptive parents kill the real parents, an accusation to the court will be permitted. 60 On collective prosecution, see Vol i, pp 18 ff. The phrase "or more" is to include the first three of the ten abominations as well as plotting treason, which is the fourth. "'This reflects one of the important principles of the Code. See Vol. i, p. 246, Article 46, and particularly note 38 on p. 247, quoting the famous saying of Confucius on this subject 62 See Vol. I, p. 201, Article 37. See also the discussion on pp 34 ff. "That is, the investigation turns up some other offense for which they can be legitimately punished.

Article 345

393

SUBCOMMENTARY: . . . If the proper mother or stepmother kills a concubine who was the person's real mother, an accusation to the court is not permitted. Therefore the article states:". . . kill a person's father, . . . an accusation will be permitted." 64

QUERY: A person's real mother is repudiated and the father remarries. If the stepmother kills the real mother who has been repudiated, may the person make an accusation to the court or not? REPLY: Adoptive parents originally were not one's own parents. Therefore if they kill one's original parents, the article permits an accusation to be made to the court. Now we are speaking of a repudiated mother, who is the person's real mother.The General Principle states: "For cases where a wife has committed an offense against her husband and is divorced, she may still use her son's protection." 6 ' N o w a son's filial piety, love, and affection for his mother are deep and kind­ ness in caring for her cannot be cannot be interrupted until death. Therefore if a stepmother kills her, following this article the son may make an accusation to the court. [12a] FURTHER QUERY: If a proper mother, stepmother, or foster mother inten­ tionally kills her son or grandson in the male line because of greed, what is to be her punishment? Further, may a son or grandson in the male line make a statement of personal grievance to the court or not? If this mother or a repudiated mother has remarried after the death of a person's father, what is to be the punishment? REPLY: A son or grandson in the male line with regard to his parents or paternal grandparents will always be a son or grandson in the male line. If there are articles about mutual offenses, they will not be punished with regard to the rules of relationship. The Articles on Robbery and Violence state: "If a relative of the second de­ gree of mourning or less who is of a lower generation or of the same generation but younger is killed intentionally [114] because of greed, the punishment is strangulation." According to the rules of relationship, the article on mutual of­ fenses follows that for relatives within the second degree of mourning. How­ ever, sons and grandsons in the male line are not relatives within the second degree of mourning. 6 6 The proper mother, stepmother, foster mother, and adoptive mother, accord­ ing to the General Principle, are considered the same as the parents. 67 However, 64

On the seven causes for repudiation of a wife, see Article 189 above VoI. ι, ρ 107, Article 15. On protection of relatives from punishment, see Article 11,VoI. i, p. 93. 6), and papers.30 If there are additions or deletions that affect how the document is carried out, the punishment is one hundred blows with the heavy stick. Where the law that has been circumvented is punished by penal servitude or more and this crime has been carried out, the punishment is increased by two degrees in each case.Where this crime has not yet been carried out, the law on where there are two offenses the criminal receives the heavier punishment is followed.31 As for circumventing the law—suppose a person who should not be an official falsely obtains office. The punishment is two years of penal servitude. 32 Moreover, the person has forged an official document or made additions or deletions to one, scheming not to resign from the office.This adds two degrees of punishment so that it becomes three years of penal servitude. Avoidance refers to where the original crime is punished by three years of penal servitude. If the punishment is avoided by fraudulent additions and deletions to a document, the original punishment is increased degrees further so that it becomes life exile at a distance of 2,500 Ii. ARTICLE: 369.2a—Thus where an official in charge avoids punishment for himself by violating the rules and creating a written document or by making additions or deletions to one, if his punishment would be blows with the heavy stick or less, it is one hundred blows with the heavy stick. If his punishment would be penal servitude or more, one degree of punishment is added to that punishment in each case. COMMENTARY: The document must be created for there to be punishment. 30

On these methods of communication, see des Rotours, Fonctionnams, I, 23 ff. SeeVol. I, p. 235, Article 45. 52 See Article 370 immediately below. 31

432

Article 370

ARTICLE: 369.2b—If the additions or deletions are to avoid punishment or make delays, [8a] the punishment is eighty blows with the heavy stick. SuBCOMMENTARY:This refers to where an official in charge wants to avoid punishment for himself and violates the rules by creating a written document. Or he makes additions to or deletions from an old one. Punishment with the heavy stick or less means ten blows with the light stick or more. Thus aside from the punishment already sentenced, the official in charge also is punished by one hundred blows with the heavy stick. If this is done to avoid punishment of penal servitude or more, then when the offense is discovered one degree of pumshment is added to the punishment that had been avoided in each case. The commentary states: "The document must be created for there to be punishment." This means that it is not necessarily done to avoid the punishment already sentenced. Simply the creation of a document or making additions or deletions to one is punished. If the additions and deletions are in order to avoid punishment, or a document is evaded or violated, in both cases eighty blows with the heavy stick are added to the basic punishment. If it has not yet been carried out, then the law on two offenses is followed. QUERY: Where an official in charge avoids punishment for himself by violating the rules and creating a written document, if the punishment is penal servitude or more, one degree of punishment is added. If the offense is public or private, can office be used to completely replace the punishment or not?33 REPLY: If an official in charge avoids punishment for a public offense by making additions or deletions to or by creating a written document, then he is punished.The basic punishment is for a public offense. But the added punishment is a [19] private offense. If office must be used to replace punishment, then the private offense is combined with the public offense and follows the law on replacement of public offenses. With regard to first- and second-degree penalties, public and private offenses are punished differently.

Article 370 [8b]

Fraudulently Assuming an Office or Fraudulently Giving Another Person an Office

ARTICLE: 370.1—All cases of fraudulently assuming an office, or of fraudulently giving another person an office, or of fraudulendy accepting an office are punished by life exile at a distance of 3,000 Ii. 33 On public and private offenses, see Vol. i, p. 112, Article 17. The amounts of copper used to replace punishment were put on officials' records in terms of first- and second-degree penalties, which are mentioned below. On these, see Article 92 above.

Article 370

433

COMMENTARY: This refers to such things as forging a memorial of appointment or fraudulently acting as though sent by a department or office to make arrests, or getting another person's certificate of appointment and using it. SUBCOMMENTARY: . . .The commentary states:"This refers to forging a memorial of appointment." Offices of the ninth rank and above are all recorded when a 34 memorial of nomination is sent to the emperor. " O r of falsely acting as though sent by a department or office to make arrests"; these are comparable rank officials35 or those carrying official r a n k . ' O r of getting another person's certificate of appointment," or taking another person's surname or personal name, or changing one's own name and wrongly pretending to be an official, in order to occupy an office. Reference to such things means that a person's own certificate of appointment has been revoked and he obtains one illegally and fraudulently assumes an office. If making a false report to a superior or making additions and deletions to a document is punished more heavily, then the law providing such heavier punishment is followed. ARTICLE: 370.2—Those who by law should not be officials and who fraudu­ lently obtain office are punished by two years of penal servitude. COMMENTARY: This means those such as have been punished and who may not yet serve in office again. SuBCOMMENTARY:Those who by law should not be officials refers to those such as have been punished and who may not yet serve in office again. Those who have been disenrolled may resume office after six years. 36 Those who have re­ signed from office may resume office after three years.Those who have resigned from occupied office may resume office after one year. [9a] If the periods of time for these three punishments have not yet been completed and the person fraudulendy obtains an office, the punishment is two years of penal servitude. Reference to such as refers to such things as a high office should have been used to replace punishment and the person uses a low office, or a person sent into life exile has not yet completed six years. ARTICLE: 370.3—If a person fraudulently adds to or subtracts from his merits, demerits, and year limits to advance appointment or promotion, and be­ cause of this obtains office, the punishment is one year of penal servitude. 37

34

On the nomination process, see des Rotours, Fonctionnaires, I, p. 148-149. On comparable rank officials, see Vol. i, p. 104, Article 15. 36 On these official punishments,seeVol.i pp. 112 and 133,Articles 17 and 21 ,and the discussion on pp. 23 fF. 37 On this system of evaluation, see des Rotours, Fonctionnaires, 1,59—65, and Niida, Statutes, ρ 344.Those classified in the two lowest categories had to resign and could only resume office after a year had passed. 35

434

Article 370 370.4—For offices that do not carry official rank, the punishment is reduced one degree in each case. 370.5—For seeking but not obtaining office, the punishment is reduced two degrees further.

COMMENTARY: Articles below follow this article. SUBCOMMENTARY: If a person fraudulently adds to or subtracts from his merits, demerits, and year limits means to add fraudulendy to merits or the level of the merit rating report or to subtract from first- or second-degree penalties or a lowest merit rating report's year limits to advance appointment or promotion and so obtains office, the punishment is two years of penal servitude. Further, according to the Statutes on Examination and Selection: "Any official who himself engages in commerce or who has mourning relatives within the third degree of mourning with whom he dwells together who do so, or whose household specializes in a trade shall not hold office."38 If a person has resigned or been dismissed from office because of this but later is able to reform, he must have some ability. So after three years he will be allowed to hold office. If after this three years he does not reform, then his certificate of appointment will be revoked and he will be reduced to commoner status. Whether or not he is an official, if according to the Statutes he may not hold office and he fraudulently seeks to obtain office, or the three years have not yet been completed and he hides the circumstances and obtains office through appointment, both cases will be treated the same as fraudulently adding to or subtracting from merits, demerits, and year limits to advance appointment and obtain office and punished by one year [20] of penal servitude. If after the three years he has not reformed but schemes to benefit himself by not surrendering the certificate of appointment and continuing in office as before, the punishment will be the same as for those who [by law] should not hold office. [9b] If after the certificate of appointment has been revoked he gets one through robbery and redeems his own punishment by payment of copper because of being treated as an official, this is punished following the above article on falsely assumes office. For offices that do not carry official rank, the punishment is reduced one degree. This means that from fraudulendy assuming an office and below, the severity of punishment for offices that carry official rank is reduced one degree. Therefore it is stated that the punishment is reduced one degree in each case. Where office is sought but not obtained, the punishment is reduced a further two degrees. So in the case of fraudulendy assuming an office, if the office is not obtained, the punishment is reduced two degrees below life exile to two and one-half years of penal servitude. For offices that do not carry official rank, the punishment is reduced one degree further to two years of penal servitude. 'Niida, Statutes, p. 294.

Article 371

435

For those who by law should not hold office, if they seek office but do not obtain it, punishment is reduced two degrees to one year of penal servitude. For offices that do not carry official rank, punishment is reduced one degree further to one hundred blows with the heavy stick. For fraudulently adding to or subtracting from merits, demerits, and year limits to advance appointment or promotion, if office is sought but not obtained, the punishment is reduced two degrees to ninety blows with the heavy stick. For offices that do not carry official rank, the punishment is reduced one degree further to eighty blows with the heavy stick. The commentary states: "Articles below follow this one."This means that in the article [immediately] below on a false claims of inheritance by those who are not in the correct line of succession through the legal wife, if the attempt does not succeed, the punishment is also reduced three degrees in each case.

Article 371 False Claims of Inheritance by Those Who Are Not in the Correct Line of Succession through the Legal Wife ARTICLE: 371.1a—All cases where those who are not in the correct line of succession through the legal wife to inherit a noble tide make a false claim to that noble tide are punished by two years of penal servitude. 371.1b—Those who are neither sons nor grandsons in the male line by the legal wife and who make a false claim of inheritance of a noble tide are punished according to the law on falsely assuming office.39 371.2—Those who do not have official protection and who falsely claim the protection of another person and so obtain office are punished by three years of penal servitude. 40 371.3—Those who do not have official rank and who seek to redeem punishments of beating with the light stick or less by payment of copper are punished by one hundred blows with the heavy stick in each case. If the punishment is penal servitude or more, the punishment is [10a] increased one degree in each case. SUBCOMMENTARY: According to the Statutes on Enfeoffment and Noble Titles: "The inheritance of the noble title of prince, duke, marquis, earl, viscount, or baron is by the eldest son of the legal wife or his eldest son."41 The order of inheritance is given in the text of the statute. . . .

39

See Article 370 above. "According to Nnda, Statutes, p. 300, the sons and grandsons in the male line of officials and nobles could obtain office because of these officials' and nobles' own position. 4l Ibid., p. 305. The statute continues: "If the eldest son by the legal wife is dead, or he has

436

Article 37ί

Those who are not sons and grandsons in the male line by the proper wife and who make a false claim to inherit a noble tide, following the law on falsely assuming office, are punished by life exile at a distance of 2,000 Ii. . . . Those who do not have an office carrying official rank refer to those who 42 falsely claim protection because of student status, or of a seventh-rank fief 43 tide, or of honorary office or less and seek to redeem punishment of beating with the heavy stick or less are punished by one hundred blows in addition to the original punishment. . . .These are offenses that have already been discovered and where there is a further offense committed that increases the punishment for the crime. 4 4 From the offense of false claim of inheritance on down, if the attempt does not succeed, the punishment is reduced two degrees in each case.45 QUERY: Seeking to redeem punishments with the heavy stick or less because of protection is punished by one hundred blows with the heavy stick. If an official knows this and deliberately connives in the crime, it is not yet known if this receives the same punishment as in the article below on falsely claiming to be an official and [the official in charge] allows this to occur. 4 6 Further, the Articles on Judgment and Prison state: "Where a punishment should be administered and instead the criminal is allowed to make redemption through payment of copper, the official's punishment is reduced one degree below that for intentionally or by accident decreasing punishment." 4 7 [10b] REPLY: Referring to knowing and deliberately conmving is knowing and allowing it to occur. In principle, the crime should receive the same punishment.

committed a crime or is disabled or incapacitated, then his eldest son is made heir If he has no sons, then the succession goes to the next eldest brother of the same mother If the younger brothers are dead, then the son of a concubine is made heir. If he is dead, then the eldest grandson in the male line of the next eldest brother by the legal wife is made heir. If he is dead, then the eldest grandson of the eldest son of the concubine is made heir. For great and great- greatgrandsons, the same order is followed. If there are no descendants, the fief is ended." 42 OnIy the sons of certain high-ranking officials could become students in government schools. A listing is given in des Rotours, Fonctiotmaires, i, 448-458; and his Examens, p. 132. "Women of the sixth rank or less could not have fief titles. Tai, Specific Articles, pp. 235, 236, argues that here a woman is falsely claiming that her husband is a seventh-rank official and hence she can benefit from his protection. "SeeVol. I, p. 166, Article 29. 45 This is specified by Article 370 above. 46 See Article 388 below. 47 See Article 498 below.

Article 372

[21]

437

Article 372 Falsely Claiming to Be an Official and Arresting a Person

ARTICLE: 372.1a—All cases of falsely acting as an official or of claiming to be sent by an official and arresting a person are punished by life exile at a distance of 2,000 Ii. 372.1b—If because of harm done to him a person falsely claims to be an official and arrests the harmdoer or falsely pursues the harmdoer, the punishment is one year of penal servitude. CoMMENTARY:This means harm done to himself, members of his household, or relatives, or their goods and articles. 372.1 c—If the harmdoer has not yet been tied up, the punishment is reduced three degrees in each case. SUBCOMMENTARY: Falsely claiming to be an official means that the person himself falsely acts as an official. . . . QUERY: The Articles on Arrest and Flight state: "Where a person has been beaten or hit so as to break a tooth or more, or be wounded, or where a robbery or sexual intercourse by violence has occurred, even bystanders may [Ha] arrest and tie up the criminal."48 If a bystander even though he arrests and ties up the criminal falsely claims to have been sent by an official to arrest and tie up the criminal, what is the punishment? REPLY: The commentary to this article states: "This means harms done to himself, members or his household, or relatives, or their goods and articles." This means that the harm has not reached to breaking a tooth or wounding or more, or robbery or sexual intercourse by violence, and someone falsely claims to be an official and makes an arrest, this is punished by one year of penal servitude. Even if the person who has been arrested should have been arrested by the relevant law and a bystander falsely claims to be an official and makes the arrest, the maximum punishment is that in the text below: "If he should be arrested, the punishment is eighty blows with the heavy stick." ARTICLE: 372.2—Where an arrest should be made and a person who has no office or a low office claims to have a high office, the punishment is eighty blows with the heavy stick. 372.3—If a person falsely claims to be an official or assumes an official's name and makes requests because of his authority, the punishment is the same. "See Article 453 below.

438

Article 373

SuBCOMMENTARY:This refers to beating a person so as to break a tooth or wound him or more, where an arrest should be made. . . . If a person falsely claims to be an official or falsely assumes an official's surname and personal name and authority and makes requests, or in passing through a place uses that authority to make requests, or goes in and out of public offices with the intent of gaining prestige, even though there are no arrests, the circumstances are like those of fraud and cheating. This is also punished by eighty blows with the heavy stick.Therefore it is said that the punishment is the same. QUERY: Suppose he should not be arrested, or where the person who falsely claimed to be an official and arrests him because of this kills or wounds him. Or, suppose he resists and is beaten, wounded, [ l i b ] or killed in being arrested. What is the punishment in each case? REPLY: Falsely arresting a person already is the act of an inhuman monster. If to this is added the circumstances of beating, hitting, wounding, or killing, they are impossible to forgive. Where these did not occur as the result of the person's being in an affray, the crime comes under the law on intentionally killing or wounding. 49 However, where the person resists and is beaten, [22] killed, or wounded in being arrested, the General Principles state: "Cases that are basically less serious are punished according to the basic circumstances."5°Thus where a person should not be arrested but is unreasonably seized, even if the person is killed or wounded, the case can only be treated the same as killing [or wounding] in an affray.51

Article 373 Obtaining Government or Private Goods and Articles by Fraud or Cheating ARTICLE: 373.1a—All cases of obtaining government or private goods and articles by fraud or cheating are punished as comparable to robbery.52 COMMENTARY: All kinds of things are considered to be goods and articles. 373.1b—If a supervisory or custodial official gets goods and articles by fraud in the area under his jurisdiction, the law on robbery is followed. If •"See Article 306 above. Beating was punished by fifty blows with the light stick and killing by decapitation. 50 VoI. i, p. 254, Article 49. "This follows the ruling in Article 452 below. On these punishments, see Articles 302—306 above. 52 Robbery is dealt with in Article 282 above. On comparable crimes, see the subcommentary below.

Article 373

439

the goods and articles have not yet been taken, the punishment is reduced two degrees. Articles below follow this article. SUBCOMMENTARY: Fraud means cunning and deceit. Cheating means falsity and deception. All cases of obtaining government or private goods and articles by cheating or fraud are punished as comparable to robbery. They do not come under the principle on disenrollment, resignation from office, double repayment, or life exile with added labor, and the maximum punishment is life exile to 3,000 Zi." The commentary states: "All kinds of things are considered to be goods and articles."This means that the circumstances of fraud and cheating are not limited to any one kind. However, where officials obtain articles that are under their jurisdiction or custody by fraud, two degrees of punishment are added to that for ordinary robbery.54 Those who have office are disenrolled. If the goods and articles have not yet been taken, the punishment is reduced two degrees means that if a scheme to get goods and article by fraud or cheating has already been devised but the goods and articles have not yet been taken, [12a] in accordance with the amount of the illicit goods, the punishment is reduced two degrees. Fraud and cheating that have not yet succeeded by those who do not have the goods and articles under their jurisdiction or custody follows the law on robbery where no goods are taken. 53 Articles below follow this article means that in articles below where government and private documents are fraudulendy created or additions or deletions are made in order to wrongly obtain articles by cheating but nothing has yet been taken, supervisory and custodial officials also get a reduction of two degrees of punishment. . . . ARTICLE: 373.2a—Those who know the circumstances and yet accept such goods and articles are punished for illicit goods obtained through malfeasance.56 373.2b—Those who know the circumstances and yet buy such goods and articles have their punishment reduced one degree. 373.2c—Those who know the circumstances and yet conceal such goods and articles have the punishment reduced two degrees. SUBCOMMENTARY: Knowing the circumstances and yet accepting such goods and articles refers to knowing that the former person has obtained them through

"See Article 282 above. There the maximum punishment is life exile with added labor. However, where the sentence is comparable Vol. i. p. 261, Article 53, limits the punishment as described here. 54 See Article 283 above. "Article 282 punishes such unsuccessful attempts by fifty blows with the light stick. 56 See Article 389 below The punishment is spelled out m the following subcommentary.

440

Article 374

fraud, cheating, or extortion.The punishment is for illicit goods obtained through malfeasance so that goods to the value of one ch'ih of silk are punished by twenty blows with the light stick, increased one degree for goods worth one p'i of silk. For goods worth ten p'i of silk, the punishment is one year of penal servitude. Even if the persons who had committed fraud or cheating were supervisory or custodial officials, if a commoner accepts them knowing the circumstances, his punishment is limited to that for illicit goods obtained through malfeasance. For those who know the circumstances yet buy such goods and articles, the punishment is reduced one degree means that the punishment for illicit goods obtained through malfeasance is reduced one degree. Those who know the circumstances and yet conceal such goods and articles refer to those who know that the goods and articles were obtained through fraud or cheating and yet intentionally conceal them. Their punishment is also that for illicit goods obtained through malfeasance reduced two degrees.

Article 374 Forging an Official or Private Document or Making Additions or Deletions to One ARTICLE: 374.1—All cases of forging an official or private document or making additions or deletions to one and using it wrongfully to obtain goods or rewards by cheating, [12b] or to avoid confiscation by the state, or where articles must be replaced or repaid, will be punished as comparable to robbery.' 7 COMMENTARY: Documents mean those such as contracts or registration docu­ ments. ARTICLE: 374.2a—If the punishment for the illicit goods is lighter, then the law on forging official documents is followed. COMMENTARY: 374.2b—If the crime involves private documents, the punish­ ment is only for what has been lost by the cheating. SUBCOMMENTARY: . . . Reference to such as (in the commentary) means tallies, permits, copies of records, etc. As for cheating or falsely obtaining money, goods, rewards, as well as property and goods connected with collective punishment, or forbidden articles that should be confiscated by the state and avoiding such confiscation, or damaging or losing government or private implements or ob­ jects that have to be replaced or repaid, where documents dealing with these "See Vol. i, p. 261, Article 53. Sentencing a crime as comparable limits the punishment to life exile at a distance of 3,000 /ι.

Article 375

441

topics have had additions or deletions made or the document itself is forged for advantage to self, the value of the illicit goods that have been obtained through such cheating is calculated and punished for robbery by stealth.38 If the punishment for the illicit goods is lighter, then the law on forging officials documents [23] is followed.39 This means that if the punishment for the calculated value of the illicit goods is less than one hundred blows with the heavy stick, then the law on forging official documents is followed. Where they have been stamped with a seal, then the heavier punishment is sentenced. 60 The commentary states: "If the crime involves private documents, the punishment is only for what has been lost by the cheating." This refers to forging a private agreement, or a document to transfer receivables, or a receipt, in order to obtain something or avoid punishment. Crimes such as changing the year and date limits can only be punished for wrongfully obtaining articles by cheating. They are not treated the same as crimes concerning official documents.

Article 375 Wrongfully Claiming a Commoner To Be a Slave [13a] ARTICLE: 375.1—All cases of wrongly claiming a commoner to be a slave, a personal retainer, a wife, a concubine, a son, or a grandson in the male line are punished for kidnapping reduced one degree. 61 375.2—The punishment for making such wrongful claims about a personal retainer is reduced one degree further. 385.3—Wrongly claiming a slave or goods or articles is punished for robbery reduced one degree. SuBCOMMENTARY:Wrongly claiming a commoner as a slave or a personal retainer refers to originally knowing that the person was a commoner.Wrongly claiming a commoner as a wife or concubine or a son or grandson in the male line refers to knowing that the person is not one's own wife, concubine, son, or grandson in the male line and intentionally and wrongly claiming them to be so. These crimes are punished for kidnapping reduced one degree. The Articles on Violence and Robbery state: "Kidnapping persons [or kidnapping and selling] persons: (1) as slaves is punished by strangulation."A reduction 58

See Article 282 above. Depending upon the value of the goods, punishments ranged from sixty blows with the heavy stick to life exile with added labor. ''See Article 369 above. The punishment is one hundred blows with the heavy stick. ""See Article 363 above. Tai, Specific Articles, p. 238, states that this refers to counterfeiting a government seal and using it to stamp documents. In such case, the punishment is life exile at a distance of 2,000 Ii. 6, See Article 292 above.This article is quoted and the punishments are described in detail m the subcommentary below.

442

Article 375

of one degree of punishment is life exile at a distance of 3,000 Zi'.62 "Kidnapping persons [or kidnapping and selling] persons: (2) as personal retainers is punished by life exile at a distance of 3,000 Zi." A reduction of one degree of punishment is three years of penal servitude. "Kidnapping persons [or kidnapping and selling] a person: (3) as wife or concubine, or son or grandson in the male line is punished by three years of penal servitude." A reduction of one degree of punishment is two and one-half years of penal servitude. This is sentencing for kidnapping with the punishment reduced one degree. The punishment for making such wrongful claims about a personal retainer is reduced one degree further. The Articles on Violence and Robbery state that the punishment for kidnapping another person's personal retainer is one degree less than that for a commoner. So if a personal retainer is kidnapped to be a slave, the punishment is life exile at a distance of 3,000 Ii. If a personal retainer is wrongly claimed to be a slave, the punishment is reduced one degree to three years of penal servitude. If another person's personal retainer is kidnapped to be a personal retainer, the punishment is three years of penal servitude. If another person's personal retainer is wrongly claimed to be a personal retainer, the punishment is reduced one degree to two and one-half years of penal servitude. If another person's personal retainer or female retainer is kidnapped to be a wife, concubine, son, or grandson in the male line, the punishment is two and one-half years of penal servitude. If another person's personal retainer or female retainer is wrongly claimed to be a wife, concubine, son, or grandson in the male line, [13b] the punishment is reduced one degree to two years of penal servitude. This is reducing the punishment one degree for a personal retainer. Where another person's slave or goods and articles are wrongly claimed, the punishment is for robbery reduced one degree. If a supervisory official or custodial official wrongly makes such claims, but they have not yet been taken, following the above article the punishment is reduced two degrees in each case.63 Where officials who do not have supervisory or custodial status wrongly make such claims, but they have not yet been taken, even though there may be a great amount of goods, the punishment follows the law on mistaken claims that have not yet succeeded.64 QUERY: Suppose a commoner is wrongly claimed to be a personal servant or a personal servant is wrongly claimed to be a personal retainer, what is the punishment? REPLY: According to a special regulation, if a personal servant and another per62 VoI. I, p. 268, Article 56, specifies that one degree of reduction of punishment from any sentence of life exile shall be to three years of penal servitude. "This is in the commentary to Article 373. "See Article 401 below.

Article 316

443

son commit crimes against each other, the law considers it the same as though the personal servant were a personal retainer. Here, then, the law to be followed is wrongly claiming a commoner to be a personal retainer.Thus where a personal servant is wrongly claimed to be a personal retainer or a personal retainer is wrongly claimed to be a personal servant, their status is more or less the same and the crime is considered to be the same as wrongly claiming a commoner to be a personal retainer.

Article 376 Fraudulently Canceling or Removing the Names of Official Bondsmen and Slaves ARTICLE: 376.1a—All cases of fraudulently canceling, removing, claiming death, or releasing official bondsmen and slaves, or of privately exchanging them, are punishment by two years of penal servitude. 376.1b—If the value of the illicit goods involved in the exchange is great, punishment follows the law on exchange of government property. 63 [24] SUBCOMMENTARY: Government bondsmen and slaves all are listed on registration documents. Canceling means fraudulendy to say that a government bondman or slave has been given to someone. Remove means to remove their name from the registration document. Die means fraudulendy to say that they have died. Releasing refers to when a person has reached the age of sixty or is disabled, they are exempted from their [14a] original status.66 Private exchange refers to taking private slaves and exchanging them for government slaves. . . . QUERY: If a person exchanges a private personal retainer for a government slave and gets the costs of their food and clothing for transferring their service,67 is this set off against the value of the slave or not? REPLY: Slaves have value. Since personal retainers have their service transferred, they do not have a price. Therefore when personal retainers are illegally misled, their value is not calculated in terms of illicit goods.68 If a personal retainer is 65 See Article 290 above.The punishment is based on the value of the slave, which is sentenced as robbery. "Government slaves at the age of sixty or when they were disabled were released (mien 1¾) from slavery and raised to the status of government bondsmen. At age seventy, they were again released from that status and became commoners. See Nnda, Statutes, pp. 259-260, and the references on this subject in Twitchett, Financial Administration, p. 215. "Food and clothing costs are simply a euphemism for selling personal retainers. See Vol. 1, p. 122, n. 122. "See Article 292 above.

444

Article 377

substituted for a slave, this lowers their status to that of an inferior class. If a government slave becomes a person's own slave, then punishment is for robbery.69 If a personal retainer is substituted for a slave, it is reasonable that the punishment should follow that for lowering a personal retainer to being a slave.70 Since these are two different crimes, the heavier punishment is sentenced. 71 ARTICLE: 376.2a—If they are hidden or omitted, the punishment is one year of penal servitude. COMMENTARY: Not speaking of the birth of a child is called hiding. The clerk not entering the name is called omitting. ARTICLE: 376.2b—If the official in charge is not aware of the hiding or omitting, the punishment follows the law on village headmen not being aware that a household register has not been filed or that household members have been omitted from it.72 SUBCOMMENTARY: . . . Omitting means that the clerk knows the circumstances but intentionally does not enter the name on the registration document. . . .

[14b]

Article 377 Making False Portents ARTICLE: 377.1—All cases of making false portents are punished by two years of penal servitude. 377.2—The punishment of historiographers who do not give correct reports about bad and good omens is increased two degrees. SUBCOMMENTARY: As for portents, (jui-ying i^M), Lu Chia stated: "An auspicious omen means a treasure; it also means sincerity. Heaven uses treasures to show its sincerity and respond to men's virtue. Therefore they are called auspicious omens." 73 The sections on portents are all in the regulations of the Board "See Article 282 above See Article 375 immediately above.The punishment would be life exile at a distance of 3,000 U. "This is required by Vol. i, p. 235, Article 45. 72 See Article 151 above.The punishment starts with forty blows with the light stick and can rise to three years of penal servitude.The circumstances that lead to different punishments in that article are quite complex. The subcommentary, which is omitted here, repeats these in great detail 73 Lu Chia (?—178 B.C ) was an adviser to Liu Pang, the founder of the Han dynasty. His book has been translated by Mei-kao Ku. I have not been able to find this quote in any edition available to me. 70

Article 378

445

of Rites. There are great portents as well as upper-level, medium-level, and 74 lower-level portents. [15a] Here it speaks of falsely making portents. Thus it is clear that their size is irrelevant. If they are falsely made, the punishment is two years of penal servitude. If a person falsely speaks about unicorns, phoenixes, tortoises, or dragons—things that cannot be verified—[25] following the law on falsifying and not reporting the true circumstances in submitting documents to 75 the emperor, the punishment is two years of penal servitude. As for such things as bad and good omens, bad omens refer to evil ethers, and good omens to favorable manifestations. If the historiographers do not report the true circumstances of these happenings to the emperor means that where they should speak of unlucky, they speak of lucky happenings, and where they should speak of lucky, they speak of unlucky happenings. In such cases, the punishment is increased two degrees to three years of penal servitude. Reference to such things means that aside from these omens there are good and evil incidents, and when the historiographers are not able to report the true circumstances of these in reply to an imperial edict, the punishment is also increased two degrees.

Article 378 Deceptively Enticing a Person To Commit a Crime ARTICLE: All cases of deceptively enticing a person to commit a crime COMMENTARY: Enticement means that the person who commits the act does not know that it is a crime. ARTICLE: or inducing a person to violate the law and then arresting that person or making an accusation to the court of the crime, or ordering another to arrest the person or make an accusation to the court, or because of desire for a reward or because of hate getting a person to violate the law punish the instigator with the same punishment as the actual criminal. COMMENTARY: Inducement means that both persons know that the act is a crime. SUBCOMMENTARY: Evil and mean persons are not restrained by laws and regula­ tions, but are villainous and false. Therefore they mislead people or entice them to steal other persons' goods and articles, or to go around a customs barrier or a ''Because of the holistic view of the universe that was dominant during T'ang times, it was believed that good and bad government, among other things, would produce responses or por­ tents in the natural world. A partial list of these portents is given in des Rotours, Fonctiotmams, ι, 84-85. 75 See Article 368 above.

446

Article 379

ford, committing forbidden acts while knowing that such acts are crimes. Thus they entice others to fall into entrapment. Therefore the commentary states: "Enticement means that the person who commits the act does not know that it is a crime." Inducing a person to commit a crime refers to inducing another person's slave [15b] to run away or take forbidden articles through a customs barrier. O n the surface there is agreement but underneath there is a private scheme. Therefore the commentary states: "Inducement means that both persons know that the act is a crime." . . .

Article 379 Use of Post Horses under False Pretenses ARTICLE: 379.1—All cases of the use of post horses under false pretenses are punished by life exile with added labor. 379.2a—If officials at the post relay station or customs barrier know the circumstances, they receive the same punishment. If they do not know the circumstances their punishment is reduced two degrees. COMMENTARY: A customs barrier refers to a place where inspections and questioning take place. ARTICLE: 379.2b—If the criminal has a tally and a warrant, 76 these officials are not punished. COMMENTARY: This refers to where a real tally and warrant have been stolen or counterfeited and no one is aware of it. SUBCOMMENTARY: Postal relay stations are basically provided for urgent military matters. Therefore the purpose of these horses is particularly important. So if they are ridden under false pretenses, no matter how many, or how far, the punishment is life exile with added labor. . . . If the officials at the postal relay station and customs barrier do not know the circumstances, their punishment is reduced two degrees means that if they did not compare the tally and inspect the warrant or did not know the circumstances under which they were stolen, their punishment is reduced two degrees. But it is still two and one-half years of penal servitude. Therefore the commentary states: "A customs barrier refers to a place where inspections and questioning take place." The commentary states: "This refers to where a real tally and warrant has been stolen or counterfeited and no one is aware of it."This means to counter'See Article 82 above for the identification needed to pass through a customs barrier.

Article 380

447

feit a tally and warrant or to steal a paper certificate77 so that an inspection would not make the official aware of it. . . . [16a] ARTICLE: 379.3—If a post horse should not be used but is used improperly, the punishment is one year of penal servitude. COMMENTARY: Improperly used means that the reason for riding is proper but the rider does not have a tally and warrant. SUBCOMMENTARY: Where a post horse should not be used refers to someone being sent as a postal relay courier and improperly using a horse without having gotten a tally and warrant. . . . [26] Where the officials of the postal relay station and the customs barrier know the circumstances and yet allow a horse to be ridden, following the text above, they receive the same punishment. If they do not know the circumstances, their punishment is one year of penal servitude reduced two degrees.

Article 380 Fraudulent Avoidance of Taxes and Labor Services ARTICLE: 380.1—All cases of fraudulent avoidance of taxes and labor services by report of death or omission of a name from the lists of artisan bondsmen, musician bondsmen, and general bondsmen are punished by two years of penal servitude.78 SUBCOMMENTARY: AS to the avoidance of taxes and labor services, the articles dealing with taxes and labor services are set out in the Regulations and Statutes. This means that it is fraudulent to say such things as that one has been held captive by the barbarians and has newly returned, 79 or that one has been manumitted from inferior status. . . . Musicians of the Court of Imperial Sacrifices have their registers of ancestry kept in prefecture or county offices. If their names are omitted from these registers, the punishment is the same as for artisan or musician bondsmen. 77

A translation of the statute about paper certificates is found in Article 123 above. On these types of persons, see Vol. I, p. 160, Article 28. 79 The Regulations on these points are no longer extant. This is, however, a paraphrase of the introductory portion of two of the statutes, both of which have been translated by Twitchett, Financial Administration, pp. 129 and 145. It is this latter that is important here, as it states: "All those who have been held captive among the barbarians and succeed in returning shall be granted three years' exemption from tax if they have been held captive for more than one year, four years remission if more than two years, and five years remission if more than three years. Barbarians who seek to adopt civilization will be granted ten years remission." 78

448

Article 381

[16b] ARTICLE: 380.2—If by fraud a person is able to avoid labor, the punishment is one year of penal servitude. 380.3—Those who are at present responsible for contributing corvee labor and who fraudulently omit their own names, as well as those who take them off, are punished by sixty blows with the heavy stick. 380.4—If the calculated amount of the corvee exemption tax would be punished more heavily, the punishment is for illicit goods obtained through malfeasance in each case.80 SuBCOMMENTARY:This means fraudulendy to claim that one is a minor government employee and so escape corvee labor. At present responsible for contributing labor refers to those whose strength is sufficient to perform miscellaneous labor services and who yet omit themselves from the household register. Both they and officials who know the circumstances and omit their names from such registers are punished by sixty blows with the heavy stick in each case.

Article 381 Evasion through Feigned Illness ARTICLE: 381.1a—All cases of evasion through feigned illness are punished by one hundred blows with the heavy stick.81 381.1b—Those who injure or mutilate themselves are punished by one and one-half years of penal servitude. COMMENTARY: This means that regardless of whether the evasion is successful and even though the illness or mutilation is not sufficient to be a real illness or mutilation, if the person at the time avoids service, the punishment is the same. SUBCOMMENTARY: . . .Whether or not the person is successful in the evasion, the punishment is the same.Where a person intentionally wounds himself without there being anything to evade and does not succeeding in maiming himself or worse,82 the punishment is the heavier for doing what ought not to be done. 83 . . . [17a] ARTICLE: 381.2a—If someone is hired to injure or mutilate another person, he receives the same punishment. 80

See Article 389 below.This tax theoretically represented the cost of hiring a substitute to do the work See Twitchett, Financial Administration, p. 25. 81 See also Article 384 below. There it is stated that if investigation of this claim is in itself incorrect, the person who makes the investigation is punished by ninety blows with the heavy stick. 82 On the three types of disabilities, of which maiming was one, see Vol. I, p. 31 83 See Article 450 below. The punishment is eighty blows with the heavy stick.

Article 383

449

381.2b—If death results, the punishment is as for killing in an affray, reduced one degree.84 SUBCOMMENTARY: . . . It is immaterial whether the person who is hired is a relative of a higher or lower generation or of high or inferior status. In all cases the punishment is as for killing in an affray. If the injury or mutilation is caused by a paternal grandparent or parent and death results, the punishment is the same as for an accident. 8 '

Article 382 Doctors Who Do Not Follow the Prescription and Fraudulently Treat an Illness ARTICLE: All cases of doctors who do not follow the prescription and treat an illness incorrecdy so as to obtain goods and articles are punished for robbery.86 SUBCOMMENTARY: Where master physicians do not follow the prescription but follow their own desires in increasing or decreasing the ingredients so as to obtain goods and articles, the value of the illicit goods is calculated and punished for robbery.87 The relevant laws are followed for supervisory officials and commoners. 88

Article 383 Upon the Death of a Parent Stating that It Is Someone Else That Has Died ARTICLE: 383.1—All cases of the death of parents require resignation from office. False statements that other persons have died so that office is not resigned are punished by two and one-half years of penal servitude. 383.2a—False references [17b] to the death of paternal grandparents, parents, or husbands for purposes of obtaining leave or to evade some obligation are punished by three years of penal servitude. [27] 383.2b—Such references with regard to paternal uncles and aunts, older brothers, or older sisters are punished by one year of penal servitude. 383.2c—For other relatives, the punishment is reduced one degree. 383.3—If any of these persons has died previously and one only now makes 84 SeC Article 306 above. Reduced one degree, the punishment would be life exile at a distance of 3,000//. to See Article 329 above. There is no punishment. 86 See Article 282 above. 87 IbId 88 See Article 283 above. Their punishment is increased two degrees

450

Article 383 reference to their deaths and begins to grieve, the punishment is reduced three degrees in each case.

SUBCOMMENTARY: Upon the death of parents, an official resigns from office in 89 order to mourn. If, however, he is covetous and continues to work, falsely stating that other persons have died and does not resign from office, the punish­ ment is two and one-half years of penal servitude. Since the official has begun to grieve, 90 therefore the punishment is less severe than that for concealing and not mourning the deaths of parents or husband. . . . For other relatives, the punishment is reduced one degree refers to relatives within the fifth degree. The punishment is reduced one degree to one hundred blows with the heavy stick. If any of these persons has died previously and a person only now makes reference to their death or wrongly says that they are ill in order to obtain leave or to evade and obligation, the punishment is reduced three degrees.This means that such fraudulent reference to paternal grandparents, parents, or husbands only just now dying and a person begins to mourn has the punishment of three years reduced three degrees to one and one-half years of penal servitude. For paternal uncles and aunts as well as older brothers and sisters, the punishment is reduced three degrees from one year of penal servitude to eighty blows with the heavy stick. For other relatives, the punishment is reduced three degrees from one hundred blows with the heavy stick to seventy blows with the heavy stick. QUEEY: Suppose one person hates another and wrongly reports that the second person's parents have died. What is the punishment for the person who makes the wrong report? [18a] REPLY:To say that parents have died is the height of deception. If such a wrong report suddenly arrives, one must begin mourning. With regard to the circumstances of the person who made the report, he has made an extremely serious transgression. The Code and the Statutes have no provision about this, so the punishment is the heavier for doing what ought not to be done. 9 1

"Nuda, Statutes, p. 739. Concealing the death of paternal grandparents or parents is also a violation of the seventh of the ten abominations, entitled lack of filial piety. See Vol. i, p. 61, Article 6, and the discussion on pp. 17 ff Article 120 punishes that crime by life exile. As stated immediately below, the reason for this punishment being much less severe is that the criminal has begun mourning, even if not for the right person. 90 Ai ξΐ should be inserted after dm ^ , following the KHCPTS edition. " Wei ; § should be inserted after ying JS, following the KHCPTS edition. This use is a good example of Article 450, which is a catch-all clause.The heavier of the two punishments is eighty blows with the heavy stick.

Article 385

45i

Article 384 Investigating Feigned Illness, Death, or Wounds and Making Untrue Reports ARTICLE: 384.1—All cases of92 feigned illness, death, or wounds where the person responsible for the investigation makes an untrue report are punished for cheating reduced one degree in each case.93 384.2—If the illness, death, or wounds are true and the report of the investigation is not truthful, the punishment is for intentionally increasing punishment reduced one degree.94 SUBCOMMENTARY: . . .Thus, as in the article above on feigned illness being punished by one hundred blows with the heavy stick, where the person responsible for the investigation of the illness makes an untrue report, both he and the person who hed about his condition are punished as for feigned illness, reduced one degree to ninety blows with the heavy stick. For a wound that maims, the punishment of one and one-half years of penal servitude is reduced one degree to one year of penal servitude, and for a feigned death, the punishment of two years of penal servitude is reduced one degree to one and one-half years of penal servitude, and so forth. If the illness, death, or wounds are true means that they are not feigned. If the person responsible wrongly 93 states that there is no illness or wound, this is intentionally increasing a person's punishment of penal servitude or beating with the heavy stick. If a person has really died and the investigator says that he is not dead, then this is wrongly increasing punishment to two degrees of penal servitude. If such an incorrect investigation causes a person wrongly to be beaten with the heavy stick, the investigator is punished by beating with the heavy stick; if it causes a person wrongly to be punished by penal servitude, then the investigator is punished by penal servitude. In each case, the punishment follows that of the victim. If punishment has not yet been administered to the victim, it is reduced one degree for the investigator.

Article 385 [18b]

Causing a Person's Death or Wounds through Deception

ARTICLE: All cases of causing another person's death or wounds through deception are punished as for killing or wounding in an affray.96 '2VM ^ should be inserted after chu | § , following the KHCPTS edition. "See Articled 380 and 381 above. ,4 See Article 487 below, where officials who increase or decrease punishments receive the same punishment. '5CZiIfH | R should be read wang ig, following the KHCPTS edition. ,6 See Articles 302—306 above.The punishment ranged from death on down, depending upon the circumstances, some of which are detailed below.

452

Article 385

COMMENTARY: This refers to such situations as knowing that a ford or a lake is deep and muddy or that a bridge or boat is broken or rotten and through lies persuading a person to enter the stream or lake or go onto the bridge or boat. SUBCOMMENTARY: This means that at a place where a ford crossing is deep and muddy or a bridge or boat is rotten and will not bear a person's weight, falsely to say that the ford or river is shallow or the boat or bridge is strong and secure and order a person to cross through or over them with the result that the person is killed [28] or wounded is punished as for killing or wounding in an affray. This means that causing a person to drown is punished by strangulation. If the person breaks a limb, the punishment is three years of penal servitude, and so forth. The commentary states: "This refers to such things as knowing that a ford or river is deep and muddy or that a bridge or boat is broken or rotten and through lies persuade a person to enter the stream or lake or go onto the bridge or boat." Reference to such things means that the criminal knows the location of a pit or a trap and through lies causes another person's death or wounds.This is also punished as for killing or wounding in an affray. Where the relationship of the criminal and the victim are that of relatives of a higher and lower generation or of high or inferior status, each case follows the relevant law. QuERY:The article has no provision where a person is through deception caused to go over a rotten bridge where the danger of drowning is great, yet that person is neither killed nor wounded. What is the punishment? Further, even though the person escapes through difficulty, yet a domestic animal is killed 97 by drowning, what is the punishment? REPLY:The article states:"[All cases of] causing another person's death or wounds through deception."The punishment is for the law carrying the heavier punish­ ment, which is combined with the law carrying the lighter punishment. 9 8 Not all such examples can be set forth. [19a] There are also laws on bringing up a heavier crime to make clear a lighter punishment, 9 9 and doing what ought not to be done by which punishments can be sentenced. 1 0 0 If through lies a person is caused nearly to drown, even though he or she is not killed or wounded, the crime is punished the same as beating a person 101 without wounding them. As for the killing or wounding of a domestic animal, 102 this is punished as comparable to digging a pit and the reduced value must be paid to the owner. "Hsien pg should read sha $L following the KHCPTS edition. "SeeVol. ι, ρ 235, Article 45. "Vol. I, p. 254, Article 50, covers analogical reasoning. See also the discussion on pp. 36-38. loo See Article 450 below. This is the catch-all article ""Article 302 above. The punishment is forty blows with the light stick. 102 See Article 394 below. Since that article does not deal with injury or death to animals, it is

Article 386

453

Article 386 Guarantees of Responsibility That Fail ARTICLE: 386.1—All cases of guarantees of responsibility that fail receive two degrees less punishment than that for the crime. 103 386.2—If the guarantee concerns illicit goods, where the punishment is heavier than for robbery by stealth, the reduction of punishment is still for robbery by stealth. 386.3—If a false name is given as a guarantor, the punishment is fifty blows with the light stick. SUBCOMMENTARY: Guarantors are responsible for everything that they guarantee. Thus if there is any deviation from the original conditions, their guarantee of performance has failed. . . . If the guarantee concerns illicit goods, where the punishment is heavier than for robbery by stealth, the reduction of punishment is still for robbery by stealth. This means that the guarantee concerned robbery by force,104 subversion of the law,105 or threats.106 If the illicit goods in the relevant article are punished more heavily than for robbery by stealth, then the reduction of punishment is from robbery by stealth in all cases. The reason the reduction of punishment is not from the more serious cases involving illicit goods is that the guarantor originally had nothing to do with the crime, and the guarantee was for the illicit goods, not for the crime. If a false name is given as a guarantor means that one has falsified a person's name or wrongly used another person's name in order to fake a guarantor. Both of these cases are punished by fifty blows with the light stick. If five men together guarantee one matter and they act together beforehand to devise the plan, then the person who formulates the plan is the principal and the others are accessories.107 But where the guarantee is given by all of them at the same time, there is no distinction made between principal and accessories.

interesting that it is brought up here. It may well indicate that such "hidden" analogies were much more widely used in practice than is indicated in the Code. ,03 The concept of the guarantor goes back at least as far as the Rites of Chou.As pointed out by Tai, Specific Articles, pp. 247-248, a person could guarantee good behavior, appearance at a trial, or any number of things. In the Code, guarantors are referred to in Articles 477 and 478 below, in connection with judicial torture, and Niida, Statutes, p. 783, contains an important provision where certain members of the privileged classes can furnish a guarantor instead of beingput injail while a case is being heard. l04 See Article 281 above. In all three of these cases, the illicit goods are punished more heavily than in the case of robbery by stealth. In the first two the death penalty is possible. ,05 See Article 138 above. ,06 See Article 285 above. ,07 SeeVol. I, p. 227, Article 43.

454

[19b]

Article 387

Article 387 False Testimony

ARTICLE: All cases of false testimony or where the translator makes an error that results in punishment being increased or decreased, punish the witnesses who gave the false testimony by two degrees less than that punishment and the translator by the same punishment. COMMENTARY: When a barbarian has committed a crime, a verbal translation is made of his replies. SUBCOMMENTARY: False testimony refers to: (1) where the person being tried has the privileges of deliberation or petition, is seventy years of age or more or fifteen years of age or less, is disabled, or can only be convicted upon the testimony of a group of witnesses.108 But the witnesses do not give true testimony, thereby causing the punishment to increased or decrease; and (2) where the verbal translation from a barbarian language causes a person's punishment to be increased or decreased. The witness's punishment is reduced two degrees means two degrees below the decreased or increased punishment.The translator receives the same punishment means that the translator receives the same punishment. So if the barbarian should receive a punishment of one year of penal servitude and, because of the statements of the translator, he receives a punishment of two years of penal servitude, the translator also gets an increase of one year of penal servitude. . . . The article has reference to the resulting punishment being decreased or increased. Thus it is clear that the punishment is dependent upon the witnesses or the translator. If before the sentence has been decided it is known [29] that the witness or the translator is incorrect, they are punished only for doing what ought not to be done. 109 Where the sentence resulting from the witness's false testimony or the translator's errors would have been penal servitude or more, the punishment is the heavier; where the resulting punishment would have been beating with the heavy stick or less, the punishment is the lighter of the two.

108

On these privileges, see Articles 8 - 1 1 , pp. 88-99, and the discussion on pp. 23-31 ""See Article 450 below, the catch-all clause so often used in the Code.The heavier of the two punishments provided is eighty blows with the heavy stick, the lighter is forty blows with the light stick.

Article 388

455

Article 388 False Claims To Be an Official [2Oa] ARTICLE: In all cases of an official in charge accepting a false claim by someone to be an official because of that person seeking to obtain something and, though knowing the circumstances, allowing the action to take place, he receives the same punishment as the false claimant. Where punishment reaches the death penalty, it is reduced one degree. "Where the official in charge does not know the circumstances, he is not punished. COMMENTARY: This refers to articles in this section. It does not make a general determination of punishments for officials in charge. SUBCOMMENTARY: Falsely claiming to be an official refers to fraudulendy and wrongly pretending to be an official in order to obtain something. If the official knows the circumstances of the false claim and yet permits the behavior, he receives the same punishment as the person who falsely claims to be an official. . . . The commentary states: "This refers to articles in this section. It does not make a general determination of punishments for officials in charge." Thus it is a special provision for articles in this section and does not establish a rule to be used in other sections of the Code. This section of the Code not punishing officials in charge refers to articles above such as those on false references to the death of paternal grandparents, parents, or husbands," 0 feigned illness, falsely assuming office, or claims to an inheritance. If the officer in charge does not know the circumstances, he is not punished.

n0 This and the following crimes listed are all covered in this section.The relevant Articles are 383,381,370, and 371, and all of the crimes require some acceptance by the official in charge of their claims.

10. MISCELLANEOUS ARTICLES [la; 29]

CHAPTER

XXVI

SUBCOMMENTARY: When Li K'uei first created the Legal Classic,1 there was a section on Miscellaneous Laws.Transmitted down from this beginning, the section continued through many years. Coming to the Latter Chou dynasty, the name was changed to that of the Articles on Miscellaneous Offenses. The Sui dynasty did away with the word offenses and returned to Miscellaneous Laws.The crimes covered by the sections [of the Code] all have articles particular to them; this section repairs omissions and fills in hiatuses. What is lacking is woven in here and the text is made whole. The arrangement of these miscellaneous articles is not a whole, therefore they are put after the section on Fraud [and Counterfeit].

Article 389 Crimes Involving Illicit Goods Obtained through Malfeasance ARTICLE: 389.1—AU cases of crimes involving illicit goods obtained through malfeasance are punished by twenty blows with the light stick for goods worth one ch'ih of silk, increased one degree for goods worth one p'i of silk. For goods worth ten p'i of silk, the punishment is one year of penal servitude, increased one degree for goods worth each further ten p'i of silk. The maximum punishment is three years of penal servitude. 2 COMMENTARY:T1US refers to officials who are not supervisory or custodial officials but who take bribes because of some matter. 3 ARTICLE: 389.2—The punishment for the giver of the illicit goods is reduced five degrees. SUBCOMMENTARY: There are six crimes that involve illicit goods: taking bribes and subverting the law,4 taking bribes without subverting the law, officials who take goods and articles within their area of jurisdiction, robbery by force, robbery by stealth, and illicit goods obtained through malfeasance. However, illicit goods obtained through malfeasance are not illicit goods that involve supervisory or •See Vol. i, pp. 7-8. See the article on illicit goods by Geoffrey MacCormack,"The concept of tsang in theT'ang Code," Revue Internationale des droits de Vantxqmte 33 (1986): 25-44. 3 The definition of supervisory and custodial officials is given in Vol. i, p. 263, Article 54. 4 These crimes are covered by Articles 138, 140, 281, and 282. 2

Article 391

457

custodial officials taking goods because of some matter. Therefore this article is called crimes involving illicit goods obtained through malfeasance. . . . [lb] Suppose a person is harmed by another and aside from the repayment takes other goods from that person. Both giver and receiver have violated the law. Therefore the giver is punished five degrees less than the receiver. But since these are illicit goods that [30] involve both parties in the offense, the goods are confiscated by the state.5

Article 390 Making Music during Times of National Mourning ARTICLE: 390.1—AU cases of making music on days of national mourning 6 when work should not be done are punished by one hundred blows with the heavy stick. 390.2—For private mourning, 7 the punishment is reduced two degrees. SUBCOMMENTARY: National mourning refers to times when, according to the

Statutes, affairs should be put aside. If improperly music is made, the punishment is one hundred blows with the heavy stick. The punishment for making music during such days for private households is reduced two degrees to eighty blows with the heavy stick.

Article 391 Illegal Coining ojMonef1 ARTICLE: 391.1a—All cases of the illegal coining of money are punished by life exile at a distance of 3,000 Ii. 391.1b—If the tools have already been prepared, but no money has yet been coined, the punishment is two years of penal servitude. 5

This is specified by Vol. i, p. 179, Article 32. Niida, Statutes, p. 480. National mourning was observed for the emperor's relatives of the fourth and fifth degrees of mourning, as well as for officials of the fifth rank and above, lasting one day. During that day, the emperor did not attend to affairs. 'Making music during the whole period of mourning for parents is a violation of the seventh of the ten abominations, entitled lack of filial piety.The subcommentary to that section states that making music includes having others do so when one is a member of the audience. It should be noted that the Chinese character yweli §j£, which I have translated as music, also means pleasure, and certainly this is a part of the prohibition. See Vol I, p. 61, and the discussion on pp. 17 ff, Article 6. "This article is translated by Twitchett, Financial Administration, pp. 289—290. Twitchett cites an edict of A.D. 682 that increases the punishment to strangulation.When in 759, there were a great number of such cases, because of a new coinage being introduced, some eight hundred persons who were guilty of this offense were beaten to death within a few months. 6

458

Article 392 391.1c—If the tools have not yet been prepared, the punishment is one hundred blows with the heavy stick.

SUBCOMMENTARY: . . . [2a] Illegal coining refers to money made of copper or silver. The coining of money that is not circulated at present is not punished. ARTICLE: 391.2—If copper is ground away from whole coins in order to get a profit, the punishment is one year of penal servitude. SUBCOMMENTARY: The thickness and size of money that is circulated at present are to follow the official design. If a person improperly grinds away copper from whole coins, causing them to be thin or small, and thereby enriches himself, the punishment is one year of penal servitude.

Article 392 Recklessly Driving Carts or Racing Horses through the Streets and hanes of Cities ARTICLE: 392.1a—All cases of recklessly driving carts or racing horses through the streets and lanes of cities or where there are groups of people without any reason are punished by fifty blows with the light stick. 392.1b—If as a result a person is killed or wounded, the punishment is as for killing or wounding in an affray, reduced one degree. 9 COMMENTARY: 392.1c—If a domestic animal is killed or wounded, the reduced value must be repaid. Other articles where there is reference to sentencing for killing or wounding in an affray with the punishment reduced one degree, or about the killing or wounding of domestic animals, follow this article.10 SUBCOMMENTARY: . . . Group means three persons or more." If there is no urgent matter and carts are driven recklessly or horses raced hurriedly so that a person is killed or wounded, the punishment is for killing or wounding in an affray, reduced one degree. The commentary states:"If a domestic animal is killed or wounded, the reduced value must be repaid. Other articles where there is reference to sentencing for killing or wounding in an affray with the punishment reduced one degree, or

'Crimes involving affrays are covered m Articles 302 and 306 above. Wounding is punished by sixty blows with the heavy stick and killing by strangulation. '"That is, the value aside from the hide and meat. An example of this ruling is given in the subcommentary to Article 425 below where the killing or wounding of a domestic animal is due to cutting a dike. "This definition is given in Vol. i, p. 265, Article 55.

Article 393

459

about the killing [2b] or wounding of domestic animals follow this article."This refers to such crimes as shooting arrows, slinging missiles, or throwing tiles or stones at a city wall, at government or private buildings, or toward a highway,12 or setting traps or digging pits13 so that a person is killed or wounded are punished as for kilhng or wounding in an affray, reduced one degree. Or, if there is intentional killing or wounding of domestic animals, the reduced value must be repaid. ARTICLE: 392.2a—If the driving or riding is done because of some government or private urgent matter, there is no punishment. 392.2b—If as a result someone is killed or wounded, the punishment is for doing so by accident. 14 392.2c—If the killing or wounding is because the animal is frightened and cannot be stopped, the punishment for doing so by accident is reduced two degrees. SUBCOMMENTARY: . . . Government refers to governmental urgent matters or couriers carrying mail or commissioners carrying imperial edicts. Private refers to such things as happy or sad occasions (i.e., births or deaths) or illnesses where a doctor is needed and someone is sent speedily [31] after him and is driving a cart or riding a horse. . . . If because of fright where the driver's or rider's strength is unable to control the animal a person is killed or wounded, the punishment for doing so by accident is reduced two degrees. The amount of copper used to redeem the punishment goes to the person's family in every case. If a person kills or wounds their paternal grandparents or parents, both cases are treated the same as under the article in the General Principles section on killing or wounding paternal grandparents or parents by accident.13

Article 393 Shooting Arrows at City Walls or at the Homes of Officials or Private Persons [3a] ARTICLE: 393.1 a—All cases of shooting arrows at city walls, homes of officials or private persons, or highways are punished by sixty blows with the heavy stick. 393.Ib—Slinging a missile or throwing a tile or stone is punished by forty blows with the light stick. 12

See Article 393 below. "See Article 394 below. "See Article 339 above. The crime can be redeemed by payment of copper which, as described below, goes to the victim's family. ,5 See Vol. i, p. 93, Article 11. Here the sentence is much heavier, life exile with added labor that cannot be redeemed by payment of copper. If the criminal is an official he is also punished by disenrollment.

460

Article 394 393.1c—If a person is killed or wounded as a result, the punishment is as 16 for killing or wounding in an affray, reduced one degree in each case.

SUBCOMMENTARY: Toward a city wall means city walls where there are people inside. Homes of officials or private persons mean homes where people are living. . . . ARTICLE: 393.2—If the object is intentionally aimed so that it comes into the city or home and kills or injures a person, the punishment is for killing or wounding in an affray. If punishment reaches the death penalty, life exile with added labor is substituted. SUBCOMMENTARY: . . .Where the person is a relative of a higher or lower gen­ eration, or of the same generation but older or younger than the criminal, or of higher or inferior status, the offense is treated the same as in the laws on killing or wounding in an affray. . . . Where the arrow, missile, tile, or stone was not aimed at the home of a rela­ tive of a higher generation or of the same generation but older than the crimi­ nal, or a person of higher status, and the killing or wounding was done without intent, then following the General Principles section: "Cases that are basically more serious but in which the circumstance are not known at the time the crime is committed are punished following the ordinary law. However, those cases that are basically less serious are punished according to the basic circum­ stances." 17

Article 394 Setting a Trap That Throws a Spear or Digging a Pit [3b] ARTICLE: 394.1a—All cases of setting a trap that throws a spear or of dig­ ging a pit are punished by one hundred blows with the heavy stick. 394.1b—If a person is killed or wounded as a result, the punishment is as for killing or wounding in an affray, reduced one degree. 18 394.1c—If there is a sign, the punishment is reduced one degree further. SUBCOMMENTARY: If a person sets a trap that throws a spear or digs a pit other than in the mountains and marshes with the intent to capture wild animals, the punishment is one hundred blows with the heavy stick. . . . If a sign is posted 1 9 ,6

See note 8 above. "SeeVol. I, p. 252, Article 49.The point is that punishment is determined as if the two persons involved were of equal status 18 See note 8 above. 1 Mn φ should be read Ii AL, following the KHCPTS edition.

Article 395

461

to let people know and through mistake a person is killed or wounded, the punishment is reduced one degree further. . . . If no one is killed or wounded, the punishment is reduced one degree from one hundred to ninety blows with the heavy stick. ARTICLE: 394.2a—It is permissible to set traps that throw spears and dig pits deep in the mountains and marshes or at places that have suffered from the depredations of wild beasts. However, a sign must be posted. If no sign is posted, the punishment is forty blows with the light stick. 394.21)—If as a result a person is killed or wounded, the punishment is as for killing or wounding in an affray, reduced three degrees. [32] SUBCOMMENTARY: Deep in the mountains and marshes means places where people do not often go. . . . [4a] If a sign is posted and a traveler sets off the trap or falls into the pit and is killed or wounded, the person who set the trap or dug the well is not punished.

Article 395 Doctors Who Compound Medicine That Is Not According to the Prescription ARTICLE: 395.1—All cases of doctors who fail to follow the correct prescription in compounding medicine or make a mistake in the label or the use of the needle so that a person is killed are punished by two and one-half years of penal servitude. SUBCOMMENTARY: Suppose a master physician makes a liquid medicine for a person and fails to follow the correct prescription with regard to the principal and secondary ingredients of the medicine, of which more or less is to be included, or the label or method of taking the medicine, or whether the medicine is cold or hot in its effect or slow or fast acting, or the use of needles. Failure to follow the correct prescription refers to not following the usual prescription or not following the Materia Medica (pen-ts'ao ;$C]!pL).20 If this results in the person for whom the medicine is made being killed, the punishment is two and onehalf years of penal servitude. If a relative of a higher generation or of the same generation but older is killed or injured, and the punishment here is less severe than that for doing so by accident, the punishment is as for killing or injuring by accident in each case.21 If the punishment for killing does not extend to two and one-half years of penal 20 This is theT'ang predecessor to the famous sixteenth century Pen-ts'ao kang-mu. See Paul U. Unschuld, Medicine in China: A History of Pharmaceutics (Berkeley: University of California Press, 1986). 21 See Article 339 above. These crimes could be redeemed by payment of copper.

462

Article 396

servitude, then the crime is punished as for killing with the punishment reduced three degrees. Suppose, for example, by not following the correct prescription a former slave is killed. The punishment is two years of penal servitude reduced three degrees to one hundred blows with the heavy stick.22 Injuries are treated the same as under the law on accidents. ARTICLE: 395.2a—Those who intentionally do not follow the correct prescription so that the medicine kills or injures a person are punished for intentional killing or wounding. 395.2b—Even if the person is not injured,23 the punishment is sixty blows with the heavy stick. [4b] 395.3—If medicine is sold that does not follow the correct prescription, it is punished the same as killing or injuring persons. SUBCOMMENTARY: Intentionally not following the correct prescription is not following the old method. . . .Where the person is a relative of a higher generation or of the same generation but older, or of a lower generation or of the same generation but younger of a higher or lower status, the law on intentional killing is followed in all cases.24 Even if the person is not injured means that whereas the correct prescription was not followed the person was not harmed. Still the punishment is sixty blows with the heavy stick. Where the person is a relative of a higher generation or of the same generation but older or an official, the crime is treated the same as under the law on beating but not wounding a person. 25 Selling medicine that does not follow the correct prescription refers to medicine that is not directed toward a particular person's illness but rather is medicine that is commonly sold upon request. . . .

Article 396 Illnesses of Adult Males and Frontier Guards ARTICLE: All cases of illness of adult males doing corvee labor, frontier guards guarding the frontier, or of official bondsmen or slaves where the official in charge does not request medicine to treat their illness are punished by forty blows with the light stick. If death occurs as a result, the punishment is one year of penal servitude. 22 SCe Articles 328 and 329. The punishments increase as the relationship is closer. The point here is that if these articles punish the crime more heavily than does this article, then punishment follows Articles 328 or 329. 23 I translate the character shang {|| here as "injure" instead of the usual translation of "wound," since one cannot say that medicine wounds someone. 24 See Article 337 above. 25 See Article 306 above.

Article 397

463

SUBCOMMENTARY: . . . If the official in charge does make such a request, but the chief doctor does not provide medicine to cure the illness, the punishment is forty blows with the light stick. If death occurs as a result means that the official in charge did not request medicine to cure the illness and that death occurred as a result. . . .[5a]

Article 397 The Expenditure of Articles That Have Been Received from Other Persons ARTICLE: 397.1—All cases of the improper expenditure of goods and articles that have been received from other persons are punished as for illicit goods obtained through malfeasance, reduced one degree. 26 397.2—Fraudulent claims of death or loss are punished as for fraudulently obtaining goods and articles by cheating, reduced one degree. 27 [33] SUBCOMMENTARY: Making improper private expenditure of goods and articles that have been entrusted by others is punished as for illicit goods obtained through malfeasance, reduced one degree. . . . Fraudulent claims of death or loss refer to such things as the six kinds of domestic animals (oxen, sheep or goats, horses, pigs, dogs, and fowl), as well as goods and articles. . . . QUERY: If goods and articles have been received from others really die or are lost, must the value be repaid or not? Further, if a supervisory official fraudulendy claims death or loss of such goods and articles, what is the punishment? REPLY:The article below states that government or private utensils and articles that are lost must be repaid. If the loss is due to robbery by force, they need not be repaid. 28 Thus if the loss is not due to [5b] robbery by force, it must 2 9 be repaid. Where the death is for good reason, the value need not be repaid. Where death is not for good reason, according to the Statutes on Stables and Pastures, the reduced value must be repaid. 30 If a supervisory or custodial official receives goods and articles and then

26

See Article 389 above. The punishment ranges from twenty blows with the light stick for goods worth one ch'ih of silk to a maximum of three years of penal servitude for goods worth fifty p'i of silk. Here each punishment would be reduced one degree. 27 See Article 373 above The punishments here would range from fifty blows with the light stick for goods worth one ch'ih of silk to a maximum of three years of penal servitude for goods worth fifty p'i of silk. 28 See Article 445 below. 29 Ling-chang *p"(Ji should be read ho-pei ^ " § H , following all other editions 30 Nnda, Statutes, ρ 711.

464

Article 398

fraudulendy claims death or loss, the punishment is for fraudulendy obtaining goods and articles by cheating reduced one degree.

Article 398 Debtors Who Violate a Contract by Not Making Payment ARTICLE: 398.1a—All cases in which a debtor violates a contract by not making payment are punished by twenty blows with the light stick for a violation that lasts twenty days and involves debt of goods worth one ch'ih of silk or more, with one degree of punishment added for each further twenty days, and with a maximum punishment of sixty blows with the light stick.31 398.1b—For debt of goods worth thirty ch'ih of silk, the punishment is increased two degrees. 398.1c—For debt of goods worth one hundred p'i of silk, the punishment is increased three degrees further. 398.2—The debtor will be ordered to make payment in each case. SUBCOMMENTARY: Debtor means the person who does not have the amount of the loan, yet according to the Statutes, the contract is a reasonable one. 32 If there is a deficiency in paying public or private goods or articles or the contract is violated by exceeding the time limit without making payment. . . . As for the debtor will be ordered to make payment in each case—[6a] if there is an extension of the day33 or a payment does have to be made because of a grant of mercy, in all cases the decision for punishment will begin again after the grant of mercy as before.

Article 399 Seizure by Force of a Debtor's Domestic Animals ARTICLE: All cases of creditors who without making an accusation to the officials seize by force goods and articles in excess of the value of the original contract are punished for illicit goods obtained through malfeasance.34 "See the translation of a contract the terms of which seem to match this article in Hansen, Negotiating Daily Life, p. 35. See also Article 399 below. 32 See Nnda, Statutes, p. 853. A reasonable contract was one in which the interest was not more than 6 percent a month and where the total interest payments were not more than the principal. Note, however, that Hansen cites contracts where the interest is 10 percent a month and where the parties involved agree to other provisions directly violating government regulations. See her Negotiating Daily Life, pp. 35 if M Tai, Specific Articles, p. 252, states that this phrase means that after the debtor has been punished, if he cannot clear the debt, the time limits will begin again. "See Article 389 above.

Article 400

465

SUBCOMMENTARY: This refers to an official or a private person violating the contract and not making payment for a debt. The person who wishes to seize any goods or property must make an accusation to the officials and receive permission to do so. If the creditor does not make such an accusation to the officials but seizes by force goods and articles, slaves, and domestic animals in excess of the original contract, the punishment is for illicit gains obtained through malfeasance. If supervisory officials together engage in trade in areas under their jurisdiction and seize by force goods and articles in excess of the value of the contract, such excess value is calculated and punished as comparable to the law on gaining excess profit from forcing the market. 33

Article 400 Making a Commoner a Slave and Using That Person as Security for a Debt ARTICLE: 400.1a—All cases of wrongly making a commoner a slave and using that person as security for a debt are punished for selling a person by mutual agreement reduced three degrees. 400.1b—The punishment for anyone who knows the circumstances and yet accepts that person as security for a debt is reduced one degree further. 400.2—The value of the person's labor is used to repay the debt. [34] SUBCOMMENTARY: . . .This means that the punishment for taking a commoner as security for a debt is reduced three degrees from life exile.36 Where a relative of a lower generation 37 or the same generation but younger is wrongly used as security for a debt, [6b] the punishment follows the relevant law in each case, reduced three degrees.38 Anyone who knows the circumstances and yet accepts that person means that it is known that the person is a commoner and yet accepts the person as a slave as a pledge for a debt. . . . The value of that person's labor is used to replace the debt means that the price of labor at three ch'ih of silk per man-day reduces the debt. If the circumstances are not known, the person who accepts the commoner as a slave is not punished. However, neither is the value of his labor calculated to reduce the debt.

35

See Article 142 above. The punishment is severe, reaching in some cases to life exile. See Article 295 above. The punishment then would be two years of penal servitude. 37 MeH ^ should be read pa ¢., following the Peking remnants. 38 Article 294 above deals with this crime. 36

466

Article 40ί

Article 401 Mistakenly Claiming That a Commoner Is a Slave ARTICLE: 401.1a—All cases of mistakenly claiming that a commoner is a slave are punished by two years of penal servitude. If the commoner is mistakenly claimed to be a personal retainer, the punishment is reduced one degree. 401.1b—If a personal retainer is mistakenly claimed as a slave, the punish­ ment is one hundred blows with the heavy stick. SUBCOMMENTARY: . . . As for the wives of personal retainers, even though they may be from commoner status, punishment here is as if they are personal retainers. ARTICLE: 401.2—For mistaken claims of slaves or goods and articles, their value as illicit goods is calculated and punished by ten blows with the light stick for the first p'i of silk, increased by one degree for five p'i of silk, and with a maximum punishment of one hundred blows with the heavy stick. 401.3—If they have not yet been gotten, the punishment is reduced two degrees in each case. [7a] SUBCOMMENTARY: . . . If they have not yet been gotten, the punishment is reduced two degrees in each case refers to commoners of lower status not yet being gotten reducing the punishment by two degrees. For mistakenly claiming commoners or those of lower status as sons or grandsons in the male line, the article has no provision, but, weighing the circumstances, the punishment is the lighter for doing what ought not to be done. 3 9 If a man mistakenly claims another man's wife, concubine, or daughter as his own wife or concubine, it is reasonable that the circumstances are more serious and punishment be the heavier for doing what ought not to be done. If the woman has already been claimed and taken as a wife or concubine, then she will be taken away from the man.This is much more serious because of being involved with illicit sexual intercourse, and the punishment is the same as under the law on illicit sexual intercourse. 4 0

Article 402 Betting Goods and Articles in Games of Chance ARTICLE: 402.1a—All cases of betting goods and articles in games of chance are punished by one hundred blows with the heavy stick. 39

See Article 450 below.The lighter of the two punishments is forty blows with the light stick. The heavier punishment referred to immediately below is eighty blows with the heavy stick. "The Code takes illicit sexual intercourse very seriously, as shown by the six articles dealing with it. Beginning with Article 410, what we would call fornication is punished by one and one-

Article 402

467

COMMENTARY: Games of chance are brought up as an example. Other forms of betting are treated the same. ARTICLE: 402.1b—If the amount of illicit goods would be punished more heavily, according to his share, each participant is punished as comparable to 41 robbery. COMMENTARY: 402.1C—Losers, according to their share, are punished as ac­ 42 cessories. SUBCOMMENTARY: Those who gamble together and bet goods and articles in games of chance are punished by one hundred blows with the heavy stick if the stake is worth five p'i of silk or less. . . . However, trials of archery and practice of military arts are not punished even if there is betting. . . . If several persons win, then the goods must be combined and halved in sen­ tencing. 4 3 If [35] several persons lose, then according to each person's share, the punishment is as an accessory. However, if when halved the punishment is not heavier than that for one person's illicit goods, then the punishment is for one person. ARTICLE: 402.2—The landlord of the place as well as the person who furnishes the pieces used in the game of chance, if they agree to betting taking place, are punished the same as the bettors. 402.3—If the betting is only for food and drink, there is no punishment. SUBCOMMENTARY: . . . It is immaterial how much is won. If these persons agree to betting taking place, their punishment is one hundred blows with the heavy stick even if there are no winnings. If they do get any part of the winnings, the value of the illicit goods is calculated and punished as comparable to robbery. If there are several persons involved, then their punishment follows the rule above, if they get anything. If the betting is only for food and drink there is no punishment means that even though the betting is for money, if at the end of the game it is used for food and drink, there is no punishment.

half years of penal servitude. The following articles deal with other aspects, some of which are punished by death. •"Article 282. Thus where goods worth five p'i of silk are involved, the punishment would be one year of penal servitude, and so on. 42 VoI. I, p. 225, Article 42, specifies that accessories shall receive one degree less punishment than principals. 43 SeeVol. ι, ρ 235, Article 45. That article also specifies that whatever punishment is heavier must be sentenced which is the reason for the language that follows in the text.

468

Article 403

Article 403 Buildings, Carts, Clothing, Utensils, and Articles ARTICLE: 403.1—All cases of constructing or making such things as buildings, carts, clothing, utensils, articles, grave mounds, or stone animals that are in violation of the statutes are punished [8a] by one hundred blows with the heavy stick. 44 403.2a—Even if there is an amnesty, they must be changed or destroyed. COMMENTARY: Grave mounds need not be changed. SUBCOMMENTARY: According to the Statutes on Construction: "Princes, Dukes, and those of lesser rank all have residences none of which may have double arches and painted ceilings." 45 As for carts, according to the Statutes on Ceremo­ nies: "Officials of the first rank may have green painted cord curtains, or tinkling bell ornaments." 4 6 As for clothing, according to the Statute on Clothing: "Offi­ cials of the first rank may wear a robe and ceremonial cap. Officials of the second rank may wear a robe and a feathered cap." 47 As for utensils and articles, [the Statutes on Ceremonies state:] " T h e food dishes of officials of the first rank and below may not be made of pure gold or pure jade." As for tombs, [the Statutes on Ceremonial state:] " T h e tombs of officials of the first rank may be four hundred square feet in area, and one and one-half feet tall." 48 As for stone ani­ mals, [according to the Statutes on Funerals:] "Officials of the third rank and above may have six animals; those of the fifth rank and above may have four." 49 All of these are set forth in the text of the Statutes. . . . Reference to such things means such things as gravestone tablets. . . . ARTICLE: 403.2b—Those articles that can be sold are allowed to be sold. 403.2c—If one hundred days after the amnesty there have been no changes, destruction, or sale, the punishment follows this law. SUBCOMMENTARY: . . .Those things that cannot be sold must be changed or de­ stroyed. . . .

44 The best treatment in English of sumptuary laws is found in Ch'u T'ung-tsu, Law and Society, pp. 135 ff. 45 Nuda, Statutes, p. 802. 46 Ibid„ p. 502. 47 Ibid„ p. 425. 48 IbId., ρ 503 «Ibid., p. 632.

Article 406

469

Article 404 Encroaching upon Streets, Lanes, and Roads ARTICLE: 404.1a—All cases of encroachment upon streets, lanes, and roads are punished by seventy blows with the heavy stick. 404.1b—If trees are planted or food grains are cultivated, the punishment is fifty blows with the light stick. 404.1c—These areas must be restored to their original condition. 404.Id—Even though trees have been planted, if they do not create obstructions, there is no punishment. SUBCOMMENTARY: Streets, lanes, and roads refer to places of public travel. If private encroachment were permitted, this would destroy their convenience. . . . [36] ARTICLE: 404.2a—If holes are made in walls to let out filth, the punishment is sixty blows with the heavy stick. 404.2b—If the purpose is to let out water, there is no punishment. 404.3—If the official in charge does not stop such actions from occurring, he receives the same punishment. SuBCOMMENTARY:Where holes are made in walls to let out filth upon streets and lanes, the punishment is sixty blows with the heavy stick. . . .

Article 405 Monopolizing Profit from Mountains, Wilderness Areas, Shores, and Lakes [18a] ARTICLE: All cases of monopolizing profits from mountains, wilderness areas, shores, and lakes are punished by sixty blows with the heavy stick. SuBCOMMENTARY:The benefits from the produce of mountains, marshes, shores, and lakes are shared by the community. If someone monopolizes them, the punishment is sixty blows with the heavy stick. However, if a person has put labor into those places, he will not be pursued for what he obtains from them.

Article 406 Violating Curfew ARTICLE: 406.1a—All cases of violating curfew are punished by twenty blows with the light stick. 406.1b—Where there is a reason, there will be no punishment.

470

Article 407

COMMENTARY: Moving about the streets after the drum has sounded to close the gates and before the drum has sounded to open them is a violation of curfew. Reason means such things as urgent public matters, happy or sad occasions, or illness. SUBCOMMENTARY: The Statutes on the Palace Guard state: "At five keng three shou, the drum at the Gate of Obedience to Heaven is beaten and people may move about the streets. When daylight has ended, the drum at the Gate of Obedience to Heaven is beaten four hundred times and the gate is locked. Afterward, the drum again is beaten six hundred times and the gates to the city wards are locked to prevent people from moving about the streets."30 The commentary states: "Moving about the streets after the drum has sounded to close the gates and before the drum has sounded to open them is a violation of curfew. Reason means such things as urgent public matters, happy or sad occasions, or illness." However, these persons must get a permit from their own district or ward office before they go about. If they do not have such an official document, even if they are not punished, the ward guards must not let them pass through the gates. Therefore it is stated that between the times that the gates are shut and opened, it is forbidden to move about the streets. Thus it is clear that people may not go outside their own ward. [9b] This law is not applicable to moving about inside a ward. ARTICLE: 406.2a—Whoever is on night duty in the ward and does not permit movement about when he should, or does when he should not, is punished by thirty blows with the light stick. 406.2b—If at the time he is on duty acts of violence or robbery occur of which he is not aware, the punishment is fifty blows with the light stick. SUBCOMMENTARY: This refers to all gates of wards that should be shut and all places where there are guards on night duty. . . . If between the time of opening and closing the gates acts of violence or robbery occur at the place of duty and the officer on duty at the time is not aware of them, the punishment is fifty blows with the light stick. If he does know of them and yet allows people to move about, the officer in charge is punished for connivance. 31

Article 407 Death while on Military or Government Service ARTICLE: 407.1—AU cases where those on a campaign, a tour, or government service die, in accordance with the Statutes*2 require that their bodies be 50

Ibid., p. 363. See also Article 71 above. That is, he receives the same punishment as the criminal See Article 58 above. 52 Niida, Statutes, pp. 378 and 817. 5,

Article 408

471

returned to their original home. Violations are punished by one hundred blows with the heavy stick. 407.2a—If such persons are wounded or taken sick and the medicine or food is insufficient, the punishment is sixty blows with the heavy stick. 407.2b—If they die as a result, the punishment is one year of penal servitude. SUBCOMMENTARY: O n a campaign means on a military campaign. O n a tour means accompanying an imperial tour or a tour made by the crown prince. [10a} . . . [37] ARTICLE: 407.3—If neither a deceased official nor his family has the means to bring his body back to his native place and relies on his office to have the body sent home, and there is a violation so that the body is not sent back, the punishment is also one hundred blows with the heavy stick. SUBCOMMENTARY: When an official is in office and dies from a reasonable cause, and his family is poor and does not have the means themselves to transport the body back to his native place. [10b] . . .

Article 408 Taking More Post Relay Horses than Should Be Provided ARTICLE: 408.1a—AU cases of taking more post relay horses than should be provided are punished by forty blows with the light stick. 408.1b—If the value of the post relay horses' labor would be punished more heavily, then the punishment is as for illicit goods obtained through malfeasance, reduced two degrees.53 The maximum punishment is two years of penal servitude. SUBCOMMENTARY: As for providing post relay horses, according to the Statutes on Public Stables and Pastures: "Officials and nobles of the first rank should be provided with eight horses, hereditary princes, princes of commanderies, and officials of the second rank and above with six horses. Officials of the third rank and lower should each have a graduated entitlement." 54 If they go beyond the limits set by the statute and take an excessive number, the pumshment is forty blows with the light stick. . . .A horse's labor is worth three ch'ih of silk per day.35 So punishment for illicit goods obtained through malfeasance of labor worth one ch 'ih of silk would be punished by twenty blows with the light stick, increased one degree for labor worth one p'i of silk. For labor worth three p'i and one ch'ih of silk, the punishment is fifty blows with the light stick. So here 53

See Article 389 above. Nnda, Statutes, p. 708. "This is set by Vol. I, p. 189, Article 34. 54

472

Article 409

the punishment is heavier than forty blows with the light stick and must be punished according to the law on illicit goods obtained through malfeasance. ARTICLE: 408.2—The punishment for those who should not be provided post relay horses and yet take them is increased two degrees. 408.3—If the post relay horses are taken by force, the punishment is increased one degree in each case. 408.4—If the official in charge provides [Ha] an excessive number of post relay horses, he receives the same punishment in each case. SUBCOMMENTARY: . . . If the post relay horses are taken by force, the punishment is increased one degree in each case means that where the person should be provided with post relays horses and takes more by force, the punishment is fifty blows with the light stick. Where the punishment for illicit goods would be heavier, [38] then the punishment is as for illicit goods obtained through malfeasance, increased one degree. Where those who should not be provided post relay horses take them by force, the punishment is seventy blows with the heavy stick. If the punishment for illicit goods is heavier, then the punishment is as for illicit goods obtained through malfeasance, increased three degrees.This is adding one degree of punishment in each case. If the official in charge allows an excessive number of post relay horses, he receives the same punishment in each case. Reference to in each case means that the punishment is the same as for taking by force.

Article 409 Wrongful Entry of a Post Relay Station ARTICLE: 409.1—All cases of wrongful entry of a post relay station are punished by forty blows with the light stick. 409.2a—If anything is improperly taken, the pumshment is one hundred blows with the heavy stick. If the value of the illicit goods would be punished more heavily, the punishment is comparable to robbery.36 409.2b—If entry of a post relay is permitted and anything is taken that should not be, the punishment is the same. SUBCOMMENTARY: . . .The Miscellaneous Statutes [state:] "Those on secret missions, active duty officials of the fifth rank and above, titular officials of the second rank and above, and dukes and those of higher noble title who present their credentials will be allowed to pass the night at a post relay station. At places 56 See Article 282 above. Note that comparable crimes limit the amount of punishment. See Vol. i, p. 261, Article 56.

Article 410

473

on the frontier [ l i b ] and where there is no local inn, officials of the ninth rank and higher, honorary officials of the fifth rank and above, as well as nobles who come to a post relay station in a military colony and who present their credentials will be allowed to pass the night. But they may not take anything." 57 This means that if a person on a secret mission enters a post relay station where he should not enter, the punishment is forty blows with the light stick. If he improperly takes a small amount of illicit goods, the punishment is one hundred blows with the heavy stick. . . . Even if he is allowed to enter the postal relay station, if he takes something that he should not, the punishment is the same as for entering where he should not enter. If anything is taken by force, the punishment is increased two degrees in each case.

Article 410 Illicit Sexual Intercourse Is Punished by One and One-HalfYears of Penal Servitude ARTICLE: 410.1a—All cases of illicit sexual intercourse punish both partners by one and one-half years of penal servitude. 410.1b—If the woman has a husband, her punishment is two years of penal servitude. 410.2—If personal retainers, general bondsmen, and government bondsmen have illicit sexual intercourse with commpners, the punishment is increased one degree in each case. 410.3a—Illicit sexual intercourse with a government or private female slave is punished by ninety blows with the heavy stick. COMMENTARY: 410.3b—Illicit sexual intercourse between male and female slaves receives the same punishment. SUBCOMMENTARY: Illicit sexual intercourse by consent between males and females is punished by one and one-half years of penal servitude in each case. If the woman has a husband, her punishment is two years of penal servitude. If the man has a wife or concubine, his punishment is the same. The punishment for personal retainers, general bondsmen, and government bondsmen who have illicit sexual intercourse with commoners is increased one degree. If a commoner has illicit sexual intercourse with government or private female slaves, the punishment for the commoner is ninety blows with the heavy stick. [12a] ARTICLE: 410.4—Illicit sexual intercourse with another person's personal

57

Niida, Statutes, p. 857.

474

Article 411 retainer's wife, or a general bondsman's or government bondsman's wife or daughter, is punished by one hundred blows with the heavy stick. 410.5a—If force is used, the punishment is increased one degree in each case. 410.5b—If a tooth or more is broken or the person is wounded, the punishment for breaking or wounding in an affray is increased one degree.

SUBCOMMENTARY: From the statement about illicit sexual intercourse with another person's personal retainer's wife, it is clear that illicit sexual intercourse with one own household's personal retainer's wives as well as female personal retainers is not punished. . . . [39] Since breaking a limb or tooth or wounding and illicit sexual intercourse by force are two crimes, the punishment is for whichever is heavier.' 8

Article 411 Illicit Sexual Intercourse with Relatipes within the Fifth Degree of Mourning or Their Wives ARTICLE: 411.1—All cases of illicit sexual intercourse with relatives within the fifth degree of mourning or their wives, or a daughter of a wife's former husband, or half sisters of the same mother but a different father, are punished by three years of penal servitude. 411.2—If force is used, the punishment is life exile at a distance of 2,000 Ii. If a tooth or more is broken or the person is wounded, the punishment is strangulation. 411.3—If the person is a concubine, the punishment is reduced one degree. COMMENTARY: Illicit sexual intercourse with concubines in other articles follow this article. SUBCOMMENTARY: Illicit sexual intercourse with relatives within the fifth degree of mourning refers to mourning relatives both by blood and by marital relationship. . . . [12b] If the person is a concubine, the punishment is reduced one degree means that the punishment for that crime against a wife is reduced one degree. The punishment for illicit sexual intercourse with a ying concubine is the same. The commentary states: "Illicit sexual intercourse with concubines in other articles follow this article." This refers to concubines of relatives within the five degrees of mourning as well as those of the master's relatives within the fifth 5e Since the punishment for breaking a limb or tooth or wounding is dependent to some extent on the relationship and class status of the aggressor and the victim, determination of the proper punishment can be quite complicated. See Articles 302-306 above.

Article 413

415

degree of mourning. Where there is only reference to illicit sexual intercourse and no mention of concubines, this article is followed and the punishment is one degree less than for the same crime against a wife. Where a slave or a personal retainer has illicit sexual intercourse with their masters concubine or the concubines of his relatives within the second degree of mourning, the punishment is also reduced one degree.

Article 412 Illicit Sexual Intercourse with Great Aunts in the Male Line and Female First Cousins Once Removed in the Male Line ARTICLE: 412.1—All cases of illicit sexual intercourse with great aunts in the male line, female first cousins once removed in the male line, one's own female first cousins in the male line, one's maternal aunts, the wives of one's brothers, and the wives of one's brothers' sons, are punished by life exile at a distance of 2,000 Ii. 412.2—If force is used, the punishment is strangulation. SUBCOMMENTARY: Great aunts in the male line mean one's paternal grandfather's brother's wives or one's paternal grandfather's sisters. . . . [13a]

Article 413 Illicit Sexual Intercourse with the Father's or Paternal Grandfather's Concubines ARTICLE: 413.1—All cases of illicit sexual intercourse with the father's or paternal grandfather's concubines, CoMMENTARY:This refers to those who have had children by the father or paternal grandfather. ARTICLE: the wives of paternal uncles, aunts on the paternal side, sisters, the wives of sons and grandsons in the male line, or a brother's daughters are punished by strangulation. 413.2—Illicit intercourse with the father's or paternal grandfather's favorite female slave has the punishment reduced two degrees. SUBCOMMENTARY: Illicit sexual intercourse with father's or paternal grandfather's concubines includes those of the paternal great and great-great grandfathers as well. The commentary states: "This refers to those who have had children by the father or paternal grandfather." If they have not had children, the text above is

416

Article 414

followed where illicit sexual intercourse with a concubine has the punishment reduced one degree. 39 As for illicit sexual intercourse with the wives of sons and grandsons in the male line, this includes the wives of great and great-great grandsons in the male line as well. . . . Illicit sexual intercourse with the favorite female slave of the father or grandfather is punished two degrees less that the same crime against a brother's daughter, or three years of penal servitude. It is irrelevant whether they have had children or not; the punishment is the same. QUERY: The father or paternal grandfather dies. Their concubines who have children by them are married by another person. Following this, the son or grandson in the male Une of their original husband has illicit sexual intercourse with them. Is the punishment for ordinary illicit sexual intercourse or not? [40] REPLY: The generational status of a wife is dependent upon that of the husband. Sons and grandsons in the male line, according to ritual, have no mourning relationship with the father's and paternal grandfather's concubines. If the father or paternal grandfather dies and the concubines are married to another person, following which the son or grandson in the male Une of their original husband has iUicit sexual intercourse with them, it is reasonable that the punishment should be that for the law on ordinary iUicit sexual intercourse. The Code has separately determined the punishment for marrying the wives or concubines of relatives of the sixth degree of mourning, [13b] but where there is illicit sexual intercourse by consent, there is no additional punishment. 60

Article 414 Illicit Sexual Intercourse by Male Slaves with Commoners ARTICLE: 414.1a—AU cases of iUicit sexual intercourse by male slaves with commoners are punished by two and one-half years of penal servitude. 414.1b—If force is used, the punishment is Ufe exile. If a tooth or more is broken or the person is wounded, the punishment is strangulation. SUBCOMMENTARY: . . . It is irrelevant whether the commoner has a husband. Breaking a tooth or more or wounding the person is because of the iUicit sexual intercourse. ARTICLE: 414.2a—If a personal retainer or a male slave has iUicit sexual intercourse with their master, or their master's first-degree mourning relatives, or the wives of these relatives, the punishment is strangulation. 414.2b—For women, the punishment is reduced one degree. 3,

See Article 412 immediately above. «"See Article 183 above.

Article 415

477

414.2c—If force is used, the punishment is decapitation. 414.3a—If the illicit sexual intercourse is with their master's relatives within the fifth degree of mourning, or the wives of these relatives, the punishment is life exile. 414.3b—If force is used, the punishment is strangulation. SUBCOMMENTARY: If personal retainers or male slaves have illicit sexual intercourse by consent with their master or their master's second-degree mourning relatives, or the wives of these second-degree mourning relatives, the punishment is strangulation. . . . If force is used, the punishment is decapitation means that the male slave or others are decapitated.The woman is not punished. If a male slave or a personal retainer has illicit sexual intercourse with a fifth-degree or closer mourning relative of their master or the wife of such a relative, their punishment is life exile at a distance of 3,000 Ii. The woman is punished by life exile at a distance of 2,000 Ii. If force is used, the punishment is strangulation. If the illicit sexual intercourse is with a concubine, from those of their master on down, in accordance with the article above, the punishment is reduced one degree below that for a wife.61 [14a] However, if the son of a concubine becomes the head of the household, his mother does not have a different status than her son. Even if she is repudiated, her status is the same.

Article 415 Illicit Sexual Intercourse by Consent Where No Punishment Is Specified for the Woman ARTICLE: 415.1—All cases of illicit sexual intercourse by consent where no punishment is specified for the woman treat her the same as the man. 415.2—If force is used, the woman is not punished. 415.3a—-If a go-between has colluded in the illicit sexual intercourse, her punishment is reduced one degree. COMMENTARY: 415.3b—Where the punishments are not the same, the reduction will be from the heavier punishment. SUBCOMMENTARY: By consent means that both parties agree. In this article, where no punishment is specified for the woman she is treated the same as the man refers to such articles as that above on slaves having illicit sexual intercourse with commoners where the punishment is two and one-half years of penal servitude.62 Here when the crime takes place by consent, no punishment is established for a 61

See Article 411 above. See Article 414 above.

62

478

Article 416

woman of commoner status. So she also is punished by two and one-half years of penal servitude, being treated the same as the man. Where force is used, the woman is not punished refers to the article above on illicit sexual intercourse with the master's relatives of the second degree of mourning.Where force is used, the punishment is decapitation. 63 However, no punishment is specified for the woman, so the woman is not punished. However, whenever force is used, the woman is not punished. Where a go-between has colluded in the illicit sexual intercourse, her punishment is reduced one degree. Suppose those who consent are punished by one and one-half years of penal servitude.The go-between will be punished by one year of penal servitude, and so forth. The commentary states: "Where the punishments are not the same, the reduction will be from the heavier punishment." Suppose a lay person commits illicit sexual intercourse by consent with a Taoist nun. The man is punished by one and one-half years of penal servitude, but the Taoist nun by two and one-half years of penal servitude. 64 The go-between who colluded in the illicit sexual intercourse is punished by two years of penal servitude, and so forth. This is reduction from the heavier of the punishments. 65

[14b; 41]

Article 416

Illicit Sexual Intercourse by Supervisory and Custodial Officials within Their Area ofJurisdiction ARTICLE: 416.1 All cases of illicit sexual intercourse by supervisory and custodial officials within their area of jurisdiction are punished one degree heavier than ordinary illicit sexual intercourse. 66 COMMENTARY: This means where the crime is committed with a commoner. ARTICLE: 416.2—If the crime occurs during the period of mourning for parents or husband or is committed by a Taoist priest or nun, the punishment is increased one degree further in each case. 416.3—The woman receives the punishment for ordinary illicit sexual intercourse. SUBCOMMENTARY: . . . If a supervisory or custodial official commits illicit sexual intercourse with a woman who has no husband, the punishment is two years of "Ibid. "See Article 416 below. 63 This follows Vol. I, p. 235, Article 45, which specifies that the heavier of two applicable punishments is sentenced. 66 See Article 410 above. Since the punishment there is one and one-half years of penal servitude, here it would be two years of penal servitude.

Article 4ί7

479

penal servitude. If the woman has a husband, the punishment is two and onehalf years of penal servitude. If the crime occurs during the period of mourning for parents, the man and the woman receive the same punishment. If the crime occurs during the period of mourning for a husband, the wife and concubine receive the same punishment as the man. Buddhist monks and nuns are considered the same asTaoist monks or nuns. If they commit illicit sexual intercourse, the punishment is increased one degree further than that for supervisory officials. Thus it is two degrees more than for ordinary illicit sexual intercourse. Therefore it is stated that the punishment is increased one degree further in each case. If a supervisory or custodial official or a Taoist or Buddhist monk, as well as sons who are in mourning for their parents, commit illicit sexual intercourse, the woman is punished for ordinary illicit sexual intercourse. If a daughter who is in mourning for her parents or a wife for her husband, or a Taoist or Buddhist nun commits illicit sexual intercourse, the punishment is increased two degrees, while the man is punished for ordinary illicit sexual intercourse. Where the crime is committed with a relative of a higher or lower generation or with a person of higher or lower status, the increase in punishment follows the relevant laws.67

[15a]

Article 417 Testing of H u and Tou Measures of Capacity, Steelyards, and Measures of Length66

ARTICLE: 417.1—All cases where the testing of hu ( ^ and tou i(- nieasures of capacity, steelyards, and measures of length is done inaccurately are pun­ ished by seventy blows with the heavy stick. 417.2a—If the official who supervises such testing is not aware that it is inaccurate, his punishment is one degree less than that of the criminal. 417.2b—If he does know the circumstances, his punishment is the same as that of the criminal. SUBCOMMENTARY: As for testing hu and tou measures, steelyards, and measures of length, the Statutes on Customs Barriers and Markets state: "[All hu and tou measures of capacity, steelyards, and measures of length both for official and for private use must be taken] each year in the eighth month to the Department of the Treasury or to the Court of the Treasury to be tested and set correctly. Outside the capital they must be taken to the local prefecture or county to be "See Articles 411-414 above. Note also Vol. i, p. 270, Article 57, where it is stated that if this crime is committed while a person is a Taoist or Buddhist monk or nun and is discovered only after the person has returned to lay status, punishment is increased as if the person still had religious status. "This article is translated in Twitchett, "The T'ang Market System," p. 243.

480

Article 418

tested and set correctly. In either case they must be stamped with an official seal and endorsed. Only after this is done may they be used."69 As for the method of testing, the Miscellaneous Statutes state: "Measures use the medium-size grains of northern black millet. A vessel with a capacity of 1,200 grains is called a yueh ^ . T e n ytieh equal one ho ^".Ten ho equal one sheng 54".Ten sheng equal one ion.Three tou equal one great tou, or one whole ion.Ten tou equal one hu. Measures of weight use the middle-size grains of northern black millet. One hundred grains of millet equal one shu ^.Twenty-four shu equal one Hang p]f. Three Hang equal one great Hang or one whole Hang. Six Hang equal one chin."10 "Measures of length use the medium-size grains of northern black millet.The length of one grain of millet is a fen ft. Ten fen equal one ts'un ^ . Ten ts'un equal one ch'ih ,R. One ch'ih and two ts'un equal one great ch'ih, or one whole ch'ih.Ten ch'ih equal one chang jt!·" 71 . . .

Article 418 Utensils, Articles for Use, and Silk or Cotton Goods That Are Defective or Made from Inferior Material72 [15b] ARTICLE: 418.Ia—All cases of making and selling such products as utensils, articles for use, and silk or hempen goods that are defective or made from inferior material, or that are too short or too narrow, are punished by sixty blows with the heavy stick. COMMENTARY: Not sturdy is called defective. Not pure is called inferior. Using weak iron to make a sword or arrow head is also considered to be using inferior material. SUBCOMMENTARY: All utensils and articles for use refer to the kind of products that are for government or private use as well as silk, cotton, damask, or open work silk goods. Defective or inferior means that the utensils and articles for use are not sturdy or not made from pure material. Too short or too narrow means that a p'i of silk is not a complete [42] forty ch'ih, or that the length of the cloth is not a full fifty ch'ih, or that the width is not a complete one ch'ih eight ts'un. If such goods are sold, the punishment is sixty blows with the heavy stick. Therefore the Book of Rites states:"The name of the worker must be engraved on each article."73 Articles that are defective or made from inferior material are "Niida, Statutes, p. 718. 70 IbId., p. 843. "Ibid , p. 842. 72 This article is translated by Twitchett, "The T'ang Market System," p. 244. "Li r/n,"Yueh ling," 343 ; Couvreur, Li ki, I, 395.

Article 418

481

confiscated by the state. Cloth that is too short or too narrow is returned to the owner. ARTICLE: 418.1b—If the profit that is gained would be pumshed more heavily as illicit goods, then the profit is calculated and punished as comparable to robbery.74 418.2—Dealers who sell such products receive the same punishment. 418.3a—If the market, prefecture, and county officials know the circumstances, they receive the same punishment. 418.3b—If they are not aware of the circumstances, their punishment is reduced two degrees below that of the criminals. SUBCOMMENTARY: If profit is gained and the illicit goods would be punished more heavily means that for selling articles that are defective or made from inferior material or are too short or too narrow, when the basis of cost is calculated there is excess profit, and calculating this profit and sentencing the crime as comparable to robbery is punished more heavily than sixty blows with the heavy stick. Sentencing the crime as comparable to robbery means that goods worth one ch'ih of silk are punished by sixty blows with the heavy stick, with the punishment increased one degree for goods worth one p'i of silk. Thus where the calculated profit is worth one p'i and one ch 'ih of silk or more, then the sentence is for such heavier punishment. In calculating the value of the illicit goods, all such illicit goods are combined and halved in the punishment. 73 [16a] Dealers who sell such products receive the same punishment means that the person did not make these products himself but has rather bought them for sale in order to seek profit. He is punished the same as the person who made the products. If market, prefecture, and county officials know the circumstances of the products being defective or made with inferior materials, they receive the same punishment as those who make or sell them. If investigation shows that they were not aware of the circumstances, their punishment is reduced two degrees below that of the criminals. The owner of the goods (wu-chu ^¾¾) is treated differendy no matter whether the officials know the circumstances of the crime or not. For him, the illicit goods are combined and he is pumshed for half their value in each case. Prefecture and county officials who do not supervise the market are not punished.

"See Article 282 above.The punishments there range from sixty blows with the heavy stick to life exile with added labor depending upon the value of the goods. On comparable punishments, see Vol. I, p. 261, Article 53. 75 SeeVol. I, p. 235, Article 45.What this means is that the profit from all such sales is combined. Then the sentence is for one-half of the value of such illicit goods.

482

Article 419

Article 419 Market Officials Who Set the Price of Articles76 ARTICLE: 419.1a—All cases where a market official does not set the prices of articles fairly have the excess or deficit calculated and are punished as for illicit goods obtained through malfeasance.77 419.1b—If the official has already benefited from this, he is punished for robbery.78 419.2—If the price of articles set incorrecdy causes a person's punishment to be decreased or increased, the official is punished for such decrease or increase of punishment. 79 SuBCOMMENTARY:This refers to government and private market transactions. If an official sets the price of articles higher or lower so that the prices are not fair, the added or subtracted value is calculated and the official is punished for illicit goods obtained through malfeasance. If the official has already benefited from this refers to the official having gotten goods and articles because of his having set the price of articles higher or lower than they should have been. He is punished for robbery. Because this punishment is for actual robbery, the laws on disenrollment, resignation from office, and repayment of double the amount of the illicit goods are followed.80 If the price of articles set incorrectly means that because of adding to or subtracting from the price, punishment is decreased or increased. Suppose that in setting the value of illicit goods from robbery, the value should be five p'i of the best grade of silk but it is increased to ten p'i of silk. Or, the value should be ten p'i of silk but it is reduced to five p'i of silk, which causes punishment to be decreased or increased by one-half year of penal servitude. [16b] The official in charge of the market will be punished by one-half year of penal servitude.Therefore it is stated that the official is punished by such decrease or increase of punishment. If the price should be five p'i of silk and it is set at nine p'i of silk, or the price really should be nine p'i of silk and it is set at five p'i of silk, then the punishment would not have been raised or lowered. 8 ' Hence the maximum punishment is that for incorrecdy raising or lowering the price, which is punished as for illicit goods obtained through malfeasance.

76

This article is translated in Twitchett, "The T'ang Market Systems," p. 245. "See Article 389 above. ™See Article 282 above. "See Article 487 below. ""See Article 282 above. "That is because the punishment for robbery is increased in increments of five p'i of silk.Vol. I, p. 268, Article 56, specifies that only complete numbers can be punished.

Article 420

483

Article 420 Privately Making Hu and Tou Measures of Capacity, Steelyards, and Measures of Length*2 ARTICLE: 420.1a—All cases of privately making hu and tou measures of capacity, steelyards, and measures of length that are not accurate are punished by fifty blows with the light stick.83 420.1b—If because of inaccuracy there is any increase or decrease from using these measures, such increase or decrease is calculated and punished as comparable to robbery.84 SUBCOMMENTARY: According to the Statutes, the office in charge of hu and tou measures of capacity, steelyards, and measures of length must set them correcdy every year, stamp them with an official seal, and endorse them. Only then are they ready for use. 8 ' If any of these measures is privately made, set incorrecdy, and used in the market, the punishment is fifty blows with the hght stick. [43] If the illicit goods resulting from the increase or reduction resulting from their use would be punished more heavily, the value of such increase or reduction is calculated and punished as comparable to robbery. ARTICLE: 420.2a—If hu and tou measures of capacity, steelyards, and measures of length are used as a basis for giving out or taking in government property and are not accurate, the increase or decrease is punished for illicit goods obtained through malfeasance. 420.2b—If any of these goods comes into private hands, the punishment is for robbery. 420.3—If any hu and tou measures of capacity, steelyards, and measures of length are used in the market without having a government seal stamped on them, the punishment is forty blows with the light stick. [17a] SUBCOMMENTARY: . . . It is because the increased or decreased amount of government property has come into private hands that the sentence is for robbery and the laws on disenrollment, resignation from office, and double repayment of the illicit goods are applicable following the article above.86 . . .

82

This article is translated in Twitchett, "The T'ang Market System," p. 243. "See Article 417 above about the importance of accuracy in these various measures. "See Article 282 above On comparable crimes, see note 52 above. 85 This is a paraphrase. The actual statute is quoted in Article 417 above. 86 Article 419 immediately above. On these provisions see Note 75 above.

484

Article 421

Article 421 Sellers and Buyers Not Reaching an Agreement and Attempts to Monopolize the Market*1 ARTICLE: 421.1—All cases where sellers and buyers do not reach an agreement or where one party monopolizes (chiao-ku i|£ HU) the market and obtains the profits, COMMENTARY: Chiao means to have a sole hold on the profit. Ku means to close the market against outsiders. ARTICLE: as well as where some persons control the market so that they together set all the prices, COMMENTARY: This means that in buying they cause expensive articles to be bought cheaply, and in selling they cause cheap articles to be sold at a high price. SUBCOMMENTARY: Those who sell articles and those who buy—these two persons—do not reach an agreement but one party monopolizes the market means that they operate the market by force and do not permit outsiders to buy. Closing the market against outsiders means that the sellers devise an evil scheme whereby when they sell, what is cheap has an expensive price, and when they buy from others, what is expensive is bought cheaply.This is what is meant by closing the market. Furthermore they set all the prices with a view to causing their victim to be cheated so that the profits go into their hands. [17b] ARTICLE: or where a person confuses the market COMMENTARY: This means that when a person is selling or buying to stand next to him and raise or lower the price, thereby causing confusion. ARTICLE: with the purpose of profiting thereby, are punished by eighty blows with the heavy stick. 421.2—If the punishment for the illicit goods would be heavier, then the profit is calculated and punished as comparable to robbery.88 SUBCOMMENTARY: Confuse the market means that the villains who carry on trade take sides so as to confuse what is expensive with what is cheap and thereby mislead outsiders. . . . The value of the illicit goods must be returned to the original owner. "This article has been translated by Twitchett, "The T'ang Market System," p. 247. 88 See Article 282 above. There, depending upon the amount of illicit goods, the punishment can reach life exile with added labor. On comparable punishment, see Vol I, p. 261, Article 53.

Article 422

485

Article 422 9

Making a Market Certificate To Buy Slaves, Cattle, and Horses*

ARTICLE: 422.1a—All cases of buying slaves, horses and cattle, camels, mules, and donkeys and paying the price without having a market certificate {shihchtian TfJ^) drawn up within three days are punished by thirty blows with the light stick. 422.1b—The seller receives one degree less punishment. 422.2—After the certificate is drawn up, if within three days a previous sickness is disclosed, it is allowed to cancel the sale. Where there is no sickness, but either party attempts to cheat the other, the sale shall be con­ sidered to have been made according to the law.Violations are punished by forty blows with the light stick. [44] SUBCOMMENTARY: When slaves, horses and cattle, camels, mules, and don­ keys are bought, in accordance with the statute, a market certificate must be drawn up. 9 0 . . . [18a] If such a certificate is not drawn up within three days, the buyer is punished by thirty blows with the light stick and the seller by one degree less. If after the market certificate has been drawn up, a previous sickness is dis­ closed, which the buyer at the time of the sale did not know of, for a period of three days the sale may be canceled. If after three days have passed, there is no illness or sickness but either party attempts to cheat the other by canceling the sale, the sale shall be considered to have been made according to the law.Viola­ tions are punished by forty blows with the light stick. Where illness appears and the seller wants to cheat the buyer by not allowing the sale to be canceled, the punishment is the same. This article is not applicable to private contracts if they do not have such a provision in their text. ARTICLE: 422.3—When the sale has taken place and the market official does not issue a certificate in a timely fashion, he is punished by thirty blows with the light stick for the first day, increased one degree for each further day, with a maximum punishment of one hundred blows with the heavy stick. SUBCOMMENTARY: . . . The officials responsible are punished for a public of­ 91 fense, each according to his rank. If the offense is private, then the punishment 92 is for principal and accessories. . . . "This article has been translated by Twitchett, "The T'ang Market System," p. 246. 90 Nnda, Statutes, p. 720; Twitchett, "The T'ang Market System, p. 246. "In all cases of the purchase of slaves, cattle, and horses, camels, mules, and donkeys, etc., the [market] certificate shall be drawn up in accordance with the official verification (kutig-yen β-Ιίκ) from the authori­ ties of their place of origin " "This refers to the collective responsibility of officials See Vol. i, p. 216, Article 40. 92 VoI. I, p. 225, Article 42, punishes accessories one degree less than the principal.

C H A P T E R XXVII

[la; 44]

Article 423

Causing Disorder in a Marketplace or Where There Are Crowds of People ARTICLE: 423.1a—All cases of intentionally causing disorder so that there is a panic in a marketplace or where there are crowds of people are punished by eighty blows with the heavy stick. 423.1b—If a person is killed or wounded as a result, the punishment is as for killing or wounding in an affray, reduced one degree. 1 423.1c—If because of the panic any goods or articles are lost, the punishment is as for illicit goods obtained through malfeasance.2 423.2—If the disorder is caused by error and a person is killed or wounded, the punishment follows the law on accidents. 3 SUBCOMMENTARY: If a person is in a marketplace or where there is a crowd of people and intentionally causes disorder refers to such things as speaking recklessly about wild beasts and causing a panic. . . . If because of the panic any goods or articles are lost, the punishment is for illicit goods obtained by malfeasance. If these are articles belonging to a group of people, they are combined and the punishment is for half the value. But if the resulting punishment is not heavier than that for the loss of goods and articles by one person, then the heavier punishment is sentenced. If the panic causes a person's death, the death penalty is reduced one degree to life exile at a distance of 3,000 Ii. If a limb is broken, the punishment is reduced one degree to three years of penal servitude, and so forth. Where the disorder is caused by error and because of it a person is killed [lb] or wounded, following the law on accidents the amount of copper given in redemption for the crime goes to the household of the man who was killed or wounded.

'See Articles 302—303 above. The punishment for killing in an affray is strangulation, while that for wounding depends on the seriousness of the wound. 2 See Article 389.The minimum sentence is twenty blows with the heavy stick for goods worth one ch 'ih of silk, and the maximum is three years of penal servitude. 3 See Article 339. The punishment for these crimes could be redeemed by payment of copper, according to the rate established by Articles 1-5 in Vol. i, pp. 55-61, and this was then given to the household of the victim.

Article 424

487

Article 424 Failure to Repair Dikes at the Right Time of Year ARTICLE: 424.1a—AU cases of failure to repair dikes or where they are repaired at the wrong time of year, punish the official in charge by seventy blows with the heavy stick. 424.1b—If people's homes are destroyed or harmed or their goods and articles are carried away and lost, the punishment is for as illicit goods obtained through malfeasance, reduced five degrees. 4 424.1c—If a person is killed or wounded as a result, the punishment is as for killing or wounding in an affray, reduced three degrees. COMMENTARY: This refers to where a person is harmed or carried away by the flood. Thus this article does not cover cases where a person throws himself or herself into the water and dies as a result. ARTICLE: 424.1d—If the water or rain is extraordinary and beyond men's strength to stop, there is no punishment. [45] SUBCOMMENTARY: According to the Statutes on Public Construction and Repair Works: "In all places close to the Yellow River or other great rivers where there are dikes, the prefects and county magistrates should inspect them at the appropriate times. If there is anything that is required to be repaired, after the harvest is completed each autumn, they should estimate the amount of labor involved and assign laborers to carry out the repairs. If there is a violent flood causing inundation that damages or destroys the dikes, unexpectedly bringing disaster to the people, they should first immediately carry out the repairs, disregarding the time limits."5 If there is damage that is not immediately repaired, or the repairs are not done at the right time of year, the official in charge is punished by seventy blows with the heavy stick. . . . [2a] If a person is killed or wounded as a result, the punishment is as for killing or wounding in an affray, reduced three degrees, means that if a person is killed, for example, the punishment is two and one-half years of penal servitude, and if a person's limb is broken, the punishment is one and one-half years of penal servitude. The commentary states: "This refers to where a person is harmed or carried 6 away by the flood." This means that because of the dikes not being repaired, harm is done to people's homes or travelers are carried away to their deaths by the flood. 'See Article 389 above.The punishment would depend upon the value of what was destroyed. 5 Niida, Statutes, p. 805 6 The characters p'iao ?|§ and Uu ^l should be reversed following the original commentary and as they are in all other editions.

488

Article 425

ARTICLE: 424.2a—At river crossings where bridges should be built or ferries stationed and they are not, or they are moved without authorization, the punishment is seventy blows with the heavy stick. 424.2b—If this prevents travelers from crossing, punishment is one hun­ dred blows with the heavy stick. SUBCOMMENTARY: . . .

Article 425 Cutting a Dike to Steal Water [2b] ARTICLE: 425.1a—All cases of cutting a dike to steal water are punished by one hundred blows with the heavy stick. COMMENTARY: This refers to stealing water for one's own use. If the dike is under government control, even if the cutting is done for official use, the crime is the same. ARTICLE: 425. I b — I f the value of the damage done to people's homes and that of goods and articles carried away by the flooding is punished more heavily, then the punishment is for illicit goods obtained through malfeasance.7 425.1c—If a person is killed or wounded as a result, the punishment for killing or wounding in an affray is reduced one degree. 8 425.2—If the water enters a person's hone and causes destruction or dam­ age, the punishment is the same. SuBCOMMENTARY:Where a person cuts a dike to obtain water for use, no matter whether he is an official or a private person, the punishment is one hundred blows with the heavy stick. Therefore the commentary states: "This refers to stealing water for one's own use. If the dike is under government control, even if the cutting is for official use, the crime is the same." However, if the water is 9 taken by an official, it is a public offense. If the water destroys or damages people's homes means that because of the dike having been cut, the water overflows and damages people's homes and carries away their goods and articles. If their calculated value is punished more heavily than one hundred blows with the heavy stick, then the value of the lost goods and articles is calculated and punished as for illicit goods obtained through 'See note 2 above. 8 See note 1 above. 'The commentary to Vol. ι, ρ 113, Article 17, defines public offenses as "those connected with public affairs which do not involve secret crookedness." Because of this, office can replace an additional year of penal servitude.

Article 425

489

malfeasance.This means that for goods to the value of ten p'i of silk, the punishment is one year of penal servitude, increased one degree for goods worth each further ten p'i of silk. . . . [46] If the waters penetrate into people's homes and cause destruction or harm, or kill or wound anyone, the punishment is the same as for cutting the dike. Therefore it is stated that the punishment is the same. ARTICLE: 425.3a—If a dike is cut intentionally, the punishment is three years of penal servitude. 425.3b—If the value of what is carried away and lost by the flood is punished more heavily, the punishment is comparable to robbery.10 425.3c—If anyone is killed or wounded as a result, the punishment is for intentional killing or wounding. 11 SUBCOMMENTARY: [3a] In the text above, the killing or wounding was because of stealing water. Here it states that the dike is cut intentionally. This means that the intentional cutting of the dike was not because of stealing water, but rather the dike was intentionally cut because of harboring ill will against someone or fear that the water would carry away things and do damage to oneself. The punishment is three years of penal servitude. If the value of what is carried away and lost by the flood is punished more heavily than three years of penal servitude means that what is carried away and lost for a single person is worth thirty p'i of silk. Punished as comparable to robbery, the punishment is life exile at a distance of 2,000 Ii. If the articles of a group of people are lost, then the punishment is for one-half of the combined amount. 12 Where a person is killed or wounded as a result refers to such crimes as killing a person being punished by decapitation and breaking a person's limb being punished by life exile at a distance of 2,000 Ii. In the article above where killing or wounding a person is punished as for killing or wounding in an affray, with the punishment reduced one degree, if a domestic animal is killed or wounded, the reduced value must be repaid.13 Other articles follow this article. Here, where punishment is for a person being killed or wounded as a result of a dike being cut, if a domestic animal is killed or wounded it is clear that the reduced value must be repaid. In the article below on damage suffered from water or fire, if the crime is committed intentionally, repayment must be made. 14

,0

See Article 282 above. "See Article 306 above. "See Vol. i, p. 235, Article 45. "Article 392. This ruling is contained in the commentary. ,4 See Article 434 below.

490

Article 426

Article 426 Transporting Clothing and Grain While Traveling on Government Ships ARTICLE: 426.1—In all cases, those who are traveling on government ships are permitted to carry two hundred chin of clothing and grain. If this limit is exceeded and more is secretly carried, both the person who accepts the excess clothing and grain and the person who entrusts it are punished by fifty blows with the light stick, whether for the fifty chin of clothing or grain or for accepting that amount from a single person. For one hundred chin of clothing or grain or for accepting that amount from two persons, the punishment is one hundred blows with the heavy stick in each case. For each further one hundred chin or two men, the punishment is increased one degree in each case, with a maximum punishment [3b] of two years of penal servitude. COMMENTARY: If clothing and grain are carried, then the criminal is punished. There is no punishment for household members who accompany the traveler. SUBCOMMENTARY: Those who must travel on government ships are allowed to carry with them two hundred chin of clothing and grain. For carrying more than this, both the person who carries such excess and the person who entrusts it to him, whether it is a full fifty chin of clothing and grain or only one person who has entrusted this excess, are punished by fifty blows with the light stick in each case. For one hundred chin or two persons, the punishment is one hundred blows with the heavy stick in each case. Reference to in each case means that no matter whether persons or goods, the punishment is the same in each case. The distance that the excess clothing or grain is carried is immaterial. Therefore it is stated that simply carrying them is punished. If the traveler is accompanied by members of his household, they are not punished. . . . ARTICLE: 426.2—If there is a military expedition, the punishment is increased two degrees in each case. 426.3—If the officer in charge at the time knows the circumstances and yet permits the criminal behavior, he receives the same punishment as the criminals. 426.4—If the ship is empty, this law is not applicable. SuBCOMMENTARY:Where there is a military expedition refers to using a ship to transport military equipment. If despite this, private articles are carried, both the person who accepts them and the person who entrusts them to the traveler have their punishment increased two degrees in each case. This means that for fifty chin of articles or one person who entrusts them, the punishment is seventy blows with the heavy stick in each case. For one hundred chin of articles or two

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491

such persons, the punishment is one and one-half years of penal servitude in each case. For each further one hundred chin of articles or two men, the punishment is increased one degree in each case, with a maximum punishment of three years of penal servitude. If the official in charge at the time knows the circumstances and yet permits the criminal behavior means that the official in charge of the ship knows that the person traveling on the ship is secredy carrying an excess. This official receives the same punishment [4a] as those who accept or entrust the excess.Therefore it is stated that he receives the same punishment as the criminals. If the ship is empty, even though a traveler carries his or her own belongings or what has been entrusted by others, if there is no violation of the time limit for the journey, [47] there will be no punishment.Therefore it is stated that this law is not applicable.

Article 427 Steering Ships Not in Accordance with the Rules ARTICLE: 427.1a—All cases where sailors do not follow the rules in steering the ship, making repairs, removing water that has leaked into the ship, or posting a signal when stopping overnight, or where boats and rafts must avoid each other and do not, are punished by fifty blows with the light stick. 427.1b—If government or private goods and articles are harmed or lost as a result, the punishment for illicit goods obtained through malfeasance is reduced five degrees.13 427.1c—If a person is killed or wounded, the punishment for killing or wounding in an affray is reduced three degrees.16 SUBCOMMENTARY: . . . Posting a signal at the stopping place means at the place where the boat anchors it must post a signal at the river bank or island, so that those coming can see it from far away. Violations mean that this is not done in accordance with the law. If boats and rafts must avoid each other and meet while going upstream and downstream or at a narrow place between islands and do not avoid each other, many persons will be drowned. So they must follow the rules for steering ships so that they can avoid each other. Or, at places where banks of rivers have been washed away, exposing rocks, they must go upstream to avoid the current. Violations are punished by fifty blows with the light stick. If because the boat is not steered to avoid dangers, government or private goods and articles are damaged or lost, the punishment for illicit goods obtained through malfeasance is reduced five degrees. This means that for goods worth ,5

See Article 389 above. The punishments are spelled out in the subcommentary below. "See note 1 above.

492

Article 428

ten p'i of silk, [4b] the punishment is sixty blows with the heavy stick, increased one degree for goods worth each further ten p'i of silk, and with a maximum punishment of one hundred blows with the heavy stick. If a person is killed or wounded, the punishment for killing or wounding in 17 an affray is reduced three degrees. Thus for killing a person, the punishment is two and one-half years of penal servitude. If a limb is broken, the punishment is one and one-half years of penal servitude. ARTICLE: 427.2—If damage or harm occurs at particularly dangerous places where the banks of rivers have been washed away, exposing rocks, the punishment is reduced a further two degrees. 427.3—The official in charge at the time has his punishment reduced one degree below that of the criminal. 427.4.—If there are unexpected winds or waves, there is no punishment. SUBCOMMENTARY: A turbulent flow of water causes washing away of river banks. An accumulation of rocks causes them to be exposed.These are dangerous places where river banks have been washed away, exposing rocks. If goods and articles are damaged or lost, or a person is killed or wounded at such places, there is a further reduction of two degrees of punishment. This means that if goods and articles are lost, the punishment for illicit goods obtained through malfeasance is reduced seven degrees. If a person is killed or wounded, the punishment for killing or wounding in an affray is reduced five degrees. The official in charge at the time has his punishment reduced one degree below that of the criminal means that in each case the punishment is reduced one degree below that of the captain. Should the boat meet with powerful winds or high waves so that goods and articles are damaged or lost or a person is killed or wounded, there will be no punishment.

Article 428 Accidentally Starting a Fire within the Imperial Tomb Area ARTICLE: 428.1a—All cases of accidentally starting a fire within the imperial tomb area are punished by two years of penal servitude. 428.1b—If a fire reaches forests or trees, the punishment is life exile at a distance of 2,000 Ii. 428.1c—If a person is killed or wounded by such a fire, the punishment is as for killing or wounding in an affray, reduced one degree. 1 8 "Erh ZL should be read san ΞΞ, following all other editions. 18 See note 1 above.

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428.2—Outside the imperial tomb area, accidentally starting a fire or a fire that spreads is punished one degree less in each case. COMMENTARY: Accidentally starting a fire outside in other articles follows this article. [5a] SUBCOMMENTARY: . . . Imperial tomb areas all have imperial guards, and if accidental fires are started within these areas, they are punished by two years of penal servitude. . . . [48] The commentary states: "Accidentally starting a fire outside in other articles follows this article." This refers to the several articles dealing with warehouses and treasuries below.19 Accidentally starting a fire or a fire that spreads outside these buildings is punished one degree less than those inside.

Article 429 Fires inside Warehouses, Treasuries, or Granaries ARTICLE: Fires are not permitted inside warehouses, treasuries, or granaries. Violations are punished by one year of penal servitude. 20 SUBCOMMENTARY: . . .

Article 430 [5b]

Burning Fields at the Wrong Time of Year

ARTICLE: 430.1a—All cases of accidentally starting a fire in a field or of burning a field at the wrong time of year are punished by fifty blows with the light stick. COMMENTARY: The wrong time of year means after the first day of the second month or before the thirtieth day of the tenth month. However, if the soil in a particular locality is different, then the rule for that locality is followed. ARTICLE: 430.1b—If the fire spreads and destroys other persons' sheds and homes, goods and articles, then the punishment is eighty blows with the heavy stick. 430.1c—If the punishment for the value of the goods would be heavier, "These are Articles 429-431 below ArHcIe 428 above punishes fires outside these buildings by one degree less punishment, or ninety blows with the heavy stick. 20

494

Article 430 then the punishment follows the law on illicit goods obtained through malfeasance, reduced three degrees. 2 ' 430.Id—If a person is killed or wounded, the punishment is as for killing or wounding in an affray, reduced two degrees.22

SUBCOMMENTARY: This means accidental fires that burn something or do not follow the time regulation in the Statutes.23 . . . The person who is punished is the one who accidentally started the fire. The commentary states: "The wrong time of year means after the first day of the second month or before the thirtieth day of the tenth month. However, if the soil in a particular locality is different, then the rule for that locality is followed."This means that in the north the frost comes early, while in the south there is a late cold. The climate also differs. In each place, the time of burning must come when the harvest has been completed, so that the provision in the Statutes cannot be universally followed.Therefore it is stated that each place follows the rules for that locality. If the fire spreads to other persons' sheds and homes destroying goods and articles, then the punishment is eighty blows with the heavy stick. Where the punishment for the value of these goods would be heavier means that the punishment for illicit goods obtained through malfeasance reduced three degrees, based on the calculated value of the goods, is heavier than eighty blows with the heavy stick. For goods worth twenty p'i of silk or more, then, the punishment would be according to the value of the goods. If a person is killed or wounded, the punishment is as for killing or wounding in an affray, reduced two degrees.This means that if a person is burned to death, the person who accidentally set the fire or was burning fields has the death penalty reduced two degrees to three years of penal servitude. 24 Those cases that need not be punished by [6a] death reduce the punishment following the relevant laws on killing or wounding. As for the value of goods when the goods of a number of homes have been damaged, they are combined and sentenced for half the total.25 ARTICLE: 430.2—If a traveler lights a fire and does not extinguish it and the fire spreads, the punishment is reduced one degree in each case. SuBCOMMENTARY:Where people light a fire on a road, they must beat it out after it has been used. If it spreads and destroys other persons' forests, sheds, homes, goods and articles, or kills or wounds a person, the punishment in the text above is reduced one degree in each case. 21 See Article 389 above. How this article would be used here is explained in the subcommentary below ^See note 1 above 23 TlIe actual text of this statute has not survived. 24 VoI. I, p. 268, Article 56, specifies that the two death penalties and the three distances of life exile each constitute one degree of reduction of punishment. 25 This follows Vol. i, p. 235, Article 45.

Article 431

495

This means that if the value of what is destroyed is small, then the eighty blows with the heavy stick is reduced one degree. If the value would be punished more heavily for illicit goods obtained through malfeasance, then that punishment is reduced four degrees, and the maximum punishment is one year of penal servitude. If a person is killed or wounded, then the punishment for doing so in an affray is [49] reduced three degrees. Therefore it is stated that the punishment is reduced one degree in each case.

Article 431 Accidentally Starting a Fire inside Government Buildings, Granaries, or Warehouses ARTICLE: 431.1a—All cases of accidentally starting a fire within government buildings, granaries, or warehouses are punished by two years of penal servitude. 431.1b—Accidentally starting a fire inside the imperial palace increases the punishment by two degrees. COMMENTARY: 431.1c—Accidentally starting a fire inside the imperial ancestral temple or the Altar of the Soil receive the same punishment. ARTICLE: 431.2a—If the value of what is damaged or destroyed would be punished more heavily, then punishment follows the law on illicit goods o b tained through malfeasance.26 431.2b—If a person is killed or wounded, the punishment is as for killing or wounding in an affray, reduced one degree. 27 431.2c—If the fire destroys the imperial ancestral temple, the punishment is strangulation. For the Altar of the Soil, the punishment is reduced one degree. SUBCOMMENTARY: If a person accidentally starts a fire inside a government or public building, or a granary or storehouse, the punishment is two years of penal servitude. Accidentally starting a fire inside the imperial palace increases the punishment by two degrees. This means that there are gates where entry is prohibited both outside and inside imperial audience halls. If a fire is accidentally started inside these gates, [6b] the punishment is three years of penal servitude. . . . Sentenced for illicit goods obtained through malfeasance means that the goods and articles burned within the public buildings are calculated to be fifty p'i of silk, which is punished by three years of penal servitude. If a person is killed or wounded because of the fire, the punishment for killing

'See note 2 above. See note 1 above.

496

Article 432

or wounding in an affray is reduced one degree means that if a person is killed, the punishment is life exile at a distance of 3,000 Ii, and if a person is wounded by breaking two limbs, the punishment is three years of penal servitude. If a domestic animal is killed or wounded, the article above on reducing the punishment one degree for killing or wounding a person but requiring that the lessened value of the animal be repaid is not followed. Rather, the law where damage or loss by water or fire caused by error or accident need not be repaid is followed.28 . . .

Article 432 Burning Government Buildings or Private Homes ARTICLE: 432. Ia—All cases of intentionally burning government buildings, private homes, or goods and articles are punished by three years of penal servitude. 432.1b—If their value is a full five p'i of silk, the punishment is life exile at a distance of 2,000 Ii. Iften p'i of silk, the punishment is strangulation. 432.2—If a person is killed or wounded, the punishment is for intentional killing or wounding. 2 ' SUBCOMMENTARY: This includes all government buildings and private homes without regard to their size or the amount of goods and articles. . . . [7a] If a person is killed or wounded, the punishment is for intentional killing or wounding. This means that if a person is killed because of the fire, the punishment is decapitation, and if a limb is broken the punishment is life exile at a distance of 2,000 Ii. . . .

Article 433 Seeing a Fire without Raising the Alarm or Fighting the Fire ARTICLE: 433.1—All cases of seeing a fire start and not raising the alarm or fighting the fire—both of which are required—are punished as for accidentally starting a fire, reduced two degrees.30 CoMMENTARY:This means that the punishment is reduced from the relevant law on accidentally starting a fire. 28 The first of these rulings quoted here is found in the subcommentary to Article 392 above. The second and controlling ruling is Article 434 below. 2, See Article 306 above. "See Articles 430 and 321 above.

Article 434

497

ARTICLE: 433.2—Those who are on guard at the imperial palace or imperial audience halls or who are guarding prisoners may not leave in order to fight the fire.Violations are punished by one hundred blows with the heavy stick. SUBCOMMENTARY: Anyone who sees a fire start in a public or private building, house, or among goods and articles must raise the alarm to those who are present and in the neighborhood so that they can fight the fire together. If a person does not raise the alarm and fight the fire, the punishment for accidentally starting a fire is reduced two degrees [50] means that if the fire is in a government building or a granary or warehouse, the punishment is reduced two degrees from two years of penal servitude to one year. If the fire starts in the imperial palace or the Altar of the Soil, the punishment is reduced two degrees from three years of penal servitude to two years. If the fire starts in a private home, the punishment is reduced two degrees from fifty to thirty blows with the light stick. Therefore the commentary states: "This means that the punishment is reduced from the relevant law on accidentally starting a fire." It is clear that the reduction of punishment is not applicable to a fire that spreads. Those who are on guard at imperial palaces, imperial audience halls, [7b] granaries, or storehouses, or who are guarding prisoners may not leave in order to fight the fire.Violations are punished by one hundred blows with the heavy stick. So that even if such persons see a fire start they will not be punished if they do not raise the alarm.

Article 434 Repaying the Value for Damage by Water and Fire ARTICLE: In all cases where an intentional crime causes damage or loss by water or fire, the criminal repays the value. If the damage or loss was caused by error or accident, the value need not be repaid. SUBCOMMENTARY: Damage or loss by water or fire means that in all the articles above in which there is reference to damage or loss by water or fire being punished, the person who intentionally committed the crime must repay the value. Where a dike is cut intentionally and the water penetrates into persons' homes, or where there is a fire and government buildings, private homes, or goods and articles are intentionally burned, the damage or loss must be repaid in each case. Where there is reference to accidental fires or where dikes are not repaired, which result in damage or harm, there need not be repayment.

498

Article 435

Article 435 Throwing away or Destroying Objects of the Spirits ARTICLE: 435.1—All cases of throwing away or destroying objects of the great sacrifices and the spirits, as well as the imperial seals, the imperial clothing, or other possessions of the emperor, are punished as for robbery in each 31

case. 435.2—If any of these objects is lost or destroyed by error, punishment is as comparable to robbery. SUBCOMMENTARY: [8a] 32 . . . [8b; 51]

Article 436 Destruction of the Altar Mounds for the Great Sacrifices ARTICLE: 436.1a—AU cases of the destruction of the altar mounds for the great sacrifices when the ceremony is going to take place and when it is guarded are punished by life exile at a distance of 2,000 Zi'.33 436.1b—If such destruction takes place on a day when there is to be no sacrifice, the punishment is one year of penal servitude. 436.2—Punishment for the destruction of the earthen gate is reduced two degrees in each case. SUBCOMMENTARY: The altar mounds of the great sacrifices mean the round altar mounds for the sacrifice to heaven, the square altar mounds for the sacrifice to earth, the welcoming ethers for the five seasons and the lords on high of the five directions. There are mounds for aU of these. When a sacrifice is going to take place, they are guarded. . . . Earthen gate refers to the gate of pounded earth outside the altar mound. If it is destroyed on the day when a ceremony is to take place, the punishment is two and one-half years of penal servitude. If the destruction takes place on a day when there is not to be such a ceremony, the punishment is ninety blows with the heavy stick.Therefore it is stated that the punishment is reduced two degrees

31 See Article 282 below. The difference between being punished for robbery and being punished as comparable to robbery as in the next section was considerable. See Vol. I, p. 261, Article 53. See also a general ruling about the throwing away and destruction of things in Article 445 below. 32 I have omitted a description of various of these sacrifices and objects that repeats that found in Article 6,VoI. I, pp. 70-71, and Articles 105 and 106 above The subcommentary then goes on to discuss in detail the robbery of these objects of the spirits and those belonging to the emperor, which have already been dealt with in Articles 270 and 271 above. 33 On these sacrifices, see the description given in Articles 98 and 99 above.

Article 438

499

in each case. For such destruction that involves the medium and small sacrifices, the punishment is progressively reduced two degrees further.

[9a]

Article 437 Throwing Away or Defacing Tallies, Ensigns, or Official Seals

ARTICLE: 437.1—AH cases of throwing away or defacing tallies, ensigns, or official seals as well as gate keys are punished as comparable to robbery of them in each case.34 437.2—If they are lost or defaced through error, the punishment is reduced two degrees in each case. SUBCOMMENTARY: . . .The Articles on Violence and Robbery [state: "All cases of] robbery of tallies for gates of the imperial palace or an imperial audience hall, or tallies for the dispatch of troops, or transmission tallies are punished by life exile at a distance of 2,000 Ii. Robbery of commissioner's ensigns, or of tallies for the gates of the imperial city, or the capital city are punished by three years of penal servitude. The robbery of other tallies is punished by one year of penal servitude. The robbery of keys to the above gates is punished by a reduction of three degree in each case."35 ["All cases of] robbery of seals for official documents are punished by two years of penal servitude. The robbery of other seals is punished by one hundred blows with the heavy stick."36 Where the tallies, ensigns, official seals, and what is listed below them are defaced through error, the punishment is reduced two degrees in each case.This means reduced two degrees below that for their being defaced.

Article 438 Throwing Away or Defacing Imperial Decrees or Official Documents ARTICLE: 438.1a—All cases of throwing away or defacing an imperial decree or an official document are punished as comparable to robbery.37 438.1b—If they are lost or defaced through error, the punishment is reduced two degrees in each case. "The relevant articles are 274 and 272 above, the texts of which are quoted in the subcommentary. Note that here, however, since the punishment is comparable to rather than actual robbery, it is considerably lighter. On this difference, see Vol. i, p. 261, Article 53. See also a general ruling about the throwing away and destruction of things in Article 445 below. 35 See Article 274 above. K See Article 272 above 37 See note 34. In the section below, the reductions of punishment are from that given in that article. See also a general ruling about the throwing away and destruction of things in Article 445 below.

500

Article 439

COMMENTARY: Defacing means that the characters are unintelligible. If such an imperial decree or official document is used to put a matter into force, the punishment follows the laws on adding to or taking away language in an imperial decree or official document. 38 ARTICLE: 438.2—If a tally, note of transmission, explanation, or official letter is defaced through error or lost, the punishment is sixty blows with the heavy stick. CoMMENTARY:This means that the document has not yet come to the office and is in its original file when it is defaced or lost. [9b] SUBCOMMENTARY: As for throwing away or defacing imperial decrees and official documents, both throwing away and defacing are not necessary to constitute a crime. Defacing means that the characters are unintelligible. Imperial edicts and memorials to the throne are treated the same. Official documents refer to those in official files that are administered by offices as well as such documents as tallies, notes of transmission, explanations, and official letters. . . . [52] Lost means that the person is not aware of the documents being lost or stolen. Defaced by error means that error leads to the documents being defaced or damaged so that the characters are not intelligible. . . . For communications (kuan | | ) and notes of advice (ts'u JfJlJ), even though there is no provision for them in the Code, the punishment is the same as for tallies and notes of transmission.

Article 439 Opening Envelopes Stamped with an Official Seal That Contain Official Documents without Authorization ARTICLE: 439.1a—All cases of opening and reading without authorization an official document that is in an envelope stamped with an official seal are punished by sixty blows with the heavy stick. 439.1b—For imperial decrees, the punishment is eighty blows with the heavy stick. 439.2—If the matter is secret, [10a] the punishment is as for divulging important matters, reduced two degrees in each case. 439.3a—If the document is opened and read by error, the punishment is reduced two degrees in each case. 439.3b—If the documents are not read, there is no punishment. 38 See Article 367 above. The different levels of punishment for that offense are dealt with below.

Article 440

501

SUBCOMMENTARY: Most documents that are sent out by government offices are in envelopes stamped with an official seal. . . . According to the Administrative Regulations: "Divulging an important matter that should be kept secret is punished by strangulation."39 Reduced two degrees, this becomes three years of penal servitude. If the matter is not one of importance that should be kept secret, the punishment is one and one-half years of penal servitude, which reduced two degrees becomes one hundred blows with the heavy stick. If the document is opened and read by error, the punishment is reduced two degrees means that an imperial decree that is read as a result of being opened by error is punished by sixty blows with the heavy stick. For an official document, the punishment is forty blows with the light stick. For reading a document about an important matter that should be kept secret, the punishment is reduced two degrees from three to two years of penal servitude. For matters that are not important but should be kept secret,40 the punishment is reduced from one hundred to eighty blows with the heavy stick. If the documents are not read, there is no punishment means that if a first the envelope is opened by error, but upon realizing what the contents are the document is not read, there is no punishment.

Article 440 Loss of the Registration Documents for Government Property ARTICLE: 440.1—All cases where the custodial official of government property loses the registration documents, which results in losses of such property, calculate the value of such losses and punish him as for robbery where the custodial official was not aware of the circumstances. [10b] SUBCOMMENTARY: All government property is listed on registration documents. . . .According to the Articles on the Public Stables and Granaries: "Where the custodial official is not aware of the robbery, the punishment is twenty blows with the light stick for goods worth five p'i of silk, increased one degree for goods worth each further ten p'i of silk. When the punishment exceeds one hundred blows with the heavy stick, it is increased one degree for each goods worth each further twenty p'i of silk.The maximum punishment is two years of penal servitude."41 M

See Article 109 above "The phrases ying-mi )¾¾ and/ei ta-shih ^^KW' should be reversed following the KHCPTS edition. 41 ArHcIe 210 above. There are two places where the quotation does not agree with the original.The first is where chu-shou 3iTf "custodial official" is written chu-ssu 3ΐ WJ "official in charge," and the second is where the first occurrence of five p'i of silk is written "five ch'th of silk." I have corrected these in the quotation.

502

Article 441

ARTICLE: 440.2—When the chief clerk is replaced, the documents must all be in the correct files to be turned over to his successor. Violations are punished by one hundred blows with the heavy stick. COMMENTARY: Even if he has left office, there is no exemption from punishment. SUBCOMMENTARY: . . . Even if he has left office, the crime is not treated the same as under the General Principle on being exempted from punishment. 42

Article 441 Eating Fruits or Melons from Government or Private Orchards ARTICLE: 441.1a—AU cases of improperly eating such things as fruit or melons from government or private orchards are punished for illicit goods obtained through malfeasance.43 441 .lb—If they are thrown away or destroyed, the punishment is the same. 441 .Ic—If they are carried away, the punishment is comparable to robbery.44 [Ha; 53] SUBCOMMENTARY: Reference to fruit or melons is meant to include all the different kinds of vegetables. . . . If they are carried away, their value is calculated and punished as comparable to robbery. In all cases, their value must be repaid and the fruits or vegetables are returned to the government or their owner. ARTICLE: 441.2—If the official in charge gives them away, his punishment is increased one degree. 441.3—If the fruit or vegetables are carried away by force, the punishment is for robbery. 441.4—If the official in charge makes a report of the crime, he is not punished. 441.5—Consuming government wine or food that should not be consumed is punished the same. SUBCOMMENTARY: If the official in charge of the orchard takes such things as melons and fruit and gives them to others to eat, his punishment is as for illicit goods obtained through malfeasance, increased one degree. This means that for goods worth one ch'ih of silk, the punishment is thirty blows with the light stick, increased one degree for goods worth one p'i of silk. If he gives them to be carried away, the punishment for comparable to robbery is increased one degree. 42 VoI. i, p. 108, Article 16, gives a general exemption from punishment to officials for public offenses discovered after they have left office. "See Article 389 above. "On offenses sentences as comparable, see Vol. i, p. 261, Article 53. The punishments for robbery are given in Article 282 above

Article 443

503

This means that for goods worth one ch'ih of silk, the punishment is seventy blows with the heavy stick, increased one degree for goods worth one p'i of silk. If fruit is carried away by force means that if coercion and physical strength are used so that the person can carry away goods by force, the punishment is as for robbery.The value of the goods is calculated and punished the same as actual robbery. Double the value of the goods must be repaid. For illicit goods worth a full five p'i of silk, the criminal must resign from office.45 If a supervisory or custodial official himself takes fruit by force, his punishment is increased two degrees above that for ordinary robbery. He is disenrolled and must repay double the value of the goods, in accordance with the ordinary law. . . . If the official in charge at the time carries the fruit away without authorization, he is punished the same as a supervisory or custodial official. If a person who is not an official in charge carries the fruit away but not for consumption, the punishment is as for robbery. If force is used, the punishment is as for robbery by force.46

Article 442 Throwing Away or Destroying Utensils, Articles, Trees, and Crops ARTICLE: 442.1—AU cases of throwing away or destroying government or private utensils and articles, or destroying trees and crops are punished as comparable to robbery.47 442.2—If government articles are lost or destroyed by error, the punishment for comparable to robbery is reduced three degrees in each case. SuBCOMMENTARY:The throwing away or destruction of government or private utensils and articles refers to various kinds of utensils, good, and articles that are improperly thrown away or destroyed. . . . If private articles are destroyed by error or accident, in accordance with the article below, their value must be repaid but there is no punishment. 48

Article 443 Destruction of Other Persons' Grave Pillars, Tablets, and Stone Animals [12a] ARTICLE: 443.1a—All cases of the destruction of other persons' grave pillars, tablets, and stone animals are punished by one year of penal servitude. 45

SeeVol. I, p. 127, Article 19. •""See Article 281 above.The punishments are much more severe than for ordinary robbery. 47 See Article 282 above. On comparable crimes, see Vol. I, p. 261, Article 53. See also a general ruling about the throwing away and destruction of things in Article 445 below 4a See Article 445 below.

504

Article 444 443.1b—Destruction of other persons' ancestral tablets increases the pun­ ishment one degree. 443.2—If things for which labor has been expended in their creation are intentionally damaged or destroyed, the value of the labor is calculated and 49 punished as for illicit goods obtained through malfeasance. 443.3—Whatever has been damaged or destroyed must be repaired and set up again. 443.4—Whatever has been damaged or destroyed by error must be re­ paired and set up 5 0 again, but there is no punishment.

SuBCOMMENTARY:The Statutes on Mourning and Burial state: "Officials of the fifth rank and above have grave pillars, while those of the seventh rank and above have tablets. Within the grave areas, there are also stone animals." 31 . . . [54] Where things for which labor has been expended in their creation are inten­ tionally damaged or destroyed, the value of the labor is calculated and punished as illicit goods obtained through malfeasance. This means such things as obser­ vance towers and walls that are intentionally damaged or destroyed.The value of the labor expended in creating them is calculated and punished as for illicit goods obtained through malfeasance.This means that for labor worth ten p'i of silk, the punishment is one year of penal servitude, increased one degree for labor worth each further ten p'i of silk.52 . . .

Article 444 Delaying the Return of Military Equipment ARTICLE: 444.1a—All cases of those who have been issued military equipment and when the assignment is over delay returning it are punished by sixty blows with the heavy stick for the first ten days, increased one degree for each further ten days. For one hundred days the punishment is one year of penal servitude. 444.1b—When one hundred days have been exceeded, the punishment 53 for their private possession is reduced two degrees. 444.2—If the equipment has been thrown away or destroyed, the punish­ 34 ment is comparable to robbery. "See Article 389 above. The punishment is given below in the subcommentary. See also a general ruling about the throwing away and destruction of things in Article 445 below. *'Chih £. should be read Ii j£, following all other editions. ; 'Nnda, Statutes, p. 832. 52 VoI. i, p. 189, Article 34, gives the value of a man's labor as three p'i of silk per day, the same as for the use of draft animals. '3See Article 243 above. Examples of the punishment are given in the subcommentary below. 34 See Article 275 above Examples of the punishment are given in the subcommentary below. For the definition of comparable crimes, see Vol. ι, ρ 261, Article 53.

Article 444

505

SUBCOMMENTARY: Military equipment that has been issued refers to helmets, armor, lances, crossbows, bows, arrows, and the like. . . . As for private possession, the Articles on Unauthorized Levies punish the possession of one suit of armor by life exile, which reduced two degrees would be two and one-half years of penal servitude, and so forth. As for the throwing away or destruction of military equipment, it is sentenced as comparable to robbery. For armor or crossbows, the punishment is life exile at a distance of 2,000 Ii, and for forbidden military weapons, the punishment is two years of penal servitude, and so forth.This is what is meant by the law on robbery. ARTICLE: 444.3a—If the equipment is lost or destroyed by error, the sentence considers it under ten parts. If one part is lost or two parts are destroyed, the punishment is sixty blows with the heavy stick. If two parts are lost or four parts are destroyed, the punishment is eighty blows with the heavy stick. If three parts are lost or six parts are destroyed, the punishment is one hundred blows with the heavy stick. 444.3b—Where there are not a full ten parts, each unit is considered to be a part. 444.3c—There is no punishment for what has been damaged or lost in batde. 444.4—For ceremonial insignia, the punishment is reduced two degrees in each case. SUBCOMMENTARY: In being responsible for government tools and weapons, if they are lost or destroyed by error, the punishment considers them under ten parts. This means that if a person is responsible for one hundred of them, ten constitute one part, and so forth. As for one part being lost or two parts destroyed—suppose a person is responsible for one hundred, of which ten are lost or twenty are destroyed. The punishment is sixty blows with the heavy stick in either case. If two parts are lost or four parts are destroyed, the punishment is [13a] eighty blows with the heavy stick. If three parts are lost or six parts are destroyed, the punishment is one hundred blows with the heavy stick.The number of parts follows the explanation above in each case. But the maximum punishment is one hundred blows with the heavy stick. Where there are not ten tools and weapons, each constitutes one part. This means that if a person is responsible for nine, then there are nine parts, and so forth. But the punishment is still based on whatever part is lost or destroyed. Repayment of the value of the weapons follows the statute." Damage or loss in battle is not punished, nor need the value of what was damaged or lost be repaid. Ceremonial insignia means what is not military equipment. If it is lost or destroyed by error, the law on ten parts is followed in each case, with the punishment •Niida, Statutes, p. 379.

506

Article 445

for military equipment reduced two degrees. If the punishments provided for what is lost and what is destroyed are not the same, then the law carrying the heavier punishment is combined with the law carrying the lighter punishment. 56

Article 445 Throwing Away or Destroying Government or Private Utensils and Articles ARTICLE: 445.1a—All cases of throwing away, destroying, losing, or destroying by error government or private utensils and articles require that their value be repaid in each case. COMMENTARY: This refers to things that are not in granaries or warehouses, but rather in other places of custody. ARTICLE: 445.1b—If the crime is the result of robbery by force, there is no punishment, nor need their value be repaid. 445.2—Even though these things are in granaries or warehouses, if they are thrown away or destroyed intentionally, their value must be repaid. 445.3—Things that cannot be repaid are punished but not replaced. CoMMENTARY:This refers to things such as tallies, official seals, gate keys, government documents, and the like. SUBCOMMENTARY: . . . [13b; 55] . . . Reference to and the like means imperial seals, ensigns, wooden tallies, imperial decrees, and imperial edicts.

Article 446 Recovery of Lost Tallies and Official Seals ARTICLE: 446.1a—All cases of the loss of such things as utensils, articles, tallies, and seals require punishment. However, thirty days is allowed for recovery. If they are not recovered within this time limit, punishment will be sentenced. If they are recovered within this time limit, whether by the person who lost them or by another person, the person who lost them will be exempted from punishment. 57 446.1b—If they are recovered beyond the time limit, thejninishment will be reduced three degrees. 56

SeeVol. I, p. 235,Article 45. Note carefully the explanation given there in the subcommentary. "See the articles beginning with number 438 dealing with the loss of these objects and papers.

Article 446

507

SUBCOMMENTARY: The loss of such things as utensils, articles, tallies, and seals includes imperial seals and gate keys as well. . . . If they are recovered beyond the time limit, the punishment will be reduced three degrees. However, if the sentence has already been memorialized, the punishment will not be reduced. [14a] ARTICLE: 446.2—Official documents and imperial decrees are treated the same if they are recovered within the time limit. SUBCOMMENTARY: If official documents and imperial decrees are recovered within the time limit means that government offices processing cases have a time limit for each of them. According to the Statutes on Public Standards: "Matters of least importance have a five-day time limit, matters of medium importance have a ten-day time limit, and matters of greatest importance have a twenty-day time limit. Thirty days is the time limit for those involving penal servitude or more after the punishment has been accepted by the criminal."58 As for imperial decrees and imperial edicts, which must be sent out the same day, if they must be sent to many places, they have to be copied. According to the Statutes on Public Standards: "For two hundred pages or less,39 the time limit is two days. For more than two hundred pages, one day is added for each two hundred pages, with a maximum of five days for any number." 60 For letters of decree, the maximum is three days. . . . For a matter of great importance, the time limit for copying imperial decrees or imperial edicts is one day.61 If they are delayed or destroyed, the punishment is not lessened. If a recovery period of thirty days were allowed, those who delayed would all claim loss. Therefore, delays cannot be treated the same as losses. If the matter covered in the official document or imperial decree has already been dealt with, then the time on delays is not applicable and loss comes under this thirty-day time limit. [56] ARTICLE: 446.3—Thus even where the documents are thrown away intentionally, if they are recovered within the time limit, the punishment is reduced one degree. SUBCOMMENTARY: As for utensils, articles, tallies, official seals, and what is listed below them, even though they are intentionally thrown away to avoid something, if they are recovered within the time limit, [14b] the basic punishment for loss will be reduced one degree.

58

Nnda, Statutes, p. 595. I follow The T'ang Institutes m leaving out the character man ))S here. "°Niida, Statutes, p. 598. 6 'See Article 111 above. The punishment for delays is fifty blows with the light stick. 55

508

Article 441

Article 447 Requirements for Buried Treasure61 ARTICLE: All cases where articles buried in the past are found on another person's land and they are concealed and not turned over to the authorities, calculate that part which should go to the owner of the land and punish it as for illicit goods obtained through malfeasance, reduced three degrees. 63 COMMENTARY: If ancient objects or those with strange forms are found and not turned over to the authorities, the punishment is the same. SUBCOMMENTARY: If anyone finds objects buried in the past on another person's land, according to the Statutes, they must be divided with the owner of the land.64 . . .Where the commentary states:"If ancient objects or those with strange forms are found and not turned over to the authorities," ancient objects refers to such things as bells and tripods. Objects with strange forms mean those different from the usual shape. . . . QUERY: Suppose there is government land with a house on it rented to a private person who farms it. Or, suppose there is private land with a house on it that is rented to another person who farms it. If articles buried in the past are found on this land, who is to get what share in each case? REPLY: That something should be buried in the earth is not what can be foreseen. If someone rents land and a house from the government and occupies it, then the person living there at the time is considered the owner. [15a] If a worker or a person plowing the land finds something buried in the earth, then he must divide it with the owner who occupies the land. The private land and house each have an original owner. That what is buried was found by the worker had nothing to do with any effort put forth by the renter.The worker should divide what was found with the original owner of the land. The renter is not the original owner, nor did he expend any work, so he should not get a share. 62 This article has been translated into German by Herbert Franke, "Der Schatzfund im chinesischen Recht," Archiv Orientahn 59 (1991)· 140—151.The article has the additional merit of a general discussion of the concept m Chinese law and comparing the two concepts in Chinese and European law 63 See Article 389 above. Reduced three degrees, the maximum punishment is one and onehalf years of penal servitude. "This refers to Article 20 of the Miscellaneous Statutes, which states: "In all cases where objects buried in the past are found on government land they may be kept by the founder. If they are found on another person's land, they must be divided with the owner of the land. Ancient objects or those with strange forms must all be turned over to the authorities who will repay the finder for their value." Nnda, Statutes, p. 855.

Article 449

509

Article 448 Finding Lost Articles ARTICLE: 448.1—All cases of finding lost articles that after a full five days are not turned over to the authorities are punished for being lost.65 Where they would be punished more heavily as illicit goods, then the punishment is as for illicit goods obtained through malfeasance.66 448.2—If the articles belong to private persons, the punishment is as for illicit goods obtained through malfeasance, reduced two degrees. SUBCOMMENTARY: Finding lost articles refers to such things as imperial seals, official seals, tallies, ensigns and various other objects.They must be turned over to the authorities. . . . Where they would be punished more heavily as illicit goods means that if the punishment for treating them as illicit goods would be heavier than that for their loss, then the punishment is as for illicit goods obtained through malfeasance, with a maximum punishment of three years of penal servitude. . . . The articles are returned to the government or their owner.

Article 449 Violation of Statutes ARTICLE: 449.1—All cases of violation of the Statutes are punished by fifty blows with the light stick. 449.2—The violation of Special Regulations is reduced one degree. CoMMENTARY:The statutes has prohibitions and regulations where the Code provides no punishment. [15b] SuBCOMMENTARY:The Statutes has prohibitions and regulations where the Code provides no punishment. This refers to such things as in the Statutes on Ceremony and Regulations, where when going along a road, those of inferior status must give way to those of higher status, and those who are coming give way to those who are going. 67 This is a case where the Statutes have a prohibition or regulation where the Code provides no punishment. . . . [57] The violation of Special Regulations is reduced one degree refers to such cases as the Regulations for the Board of Rites provide that officials of the fifth rank and above wear purple clothing. Officials of the sixth rank and below wear red clothing. Wearing clothing of the color that violates the regulation is punished 65

For the punishments regarding loss, see Articles 435-444. See Article 389 above. 67 Nuda, Statutes, p. 510. M

510

Article 450

by forty blows with the light stick. . . . The articles that violate the regulation are confiscated by the state.

Article 450 Doing What Ought Not To Be Done ARTICLE: 450.1—AU cases of doing what ought not to be done are punished by forty blows with the light stick. COMMENTARY: This refers to where neither the Code nor the Statutes have an article dealing with the behavior, but which it is reasonable should not be done. ARTICLE: 450.2—If it is reasonable that the crime should be punished more heavily, the punishment is eighty blows with the heavy stick. SuBCOMMENTARY:Various less serious crimes need to be dealt with by analogy. The laws cannot set forth all of them. If there is no provision in either the Code nor the Statutes and punishment cannot be made clear by bringing up a lighter or heavier crime, 68 and there is no text to which analogy can be made, then on a provisional basis, the circumstances of the crime are weighed to decide a punishment. So this article was established with a view to supplementing omissions and deficiencies. M

See Article 50,VoI. I, p. 254, on analogy.

11. ARREST AND FLIGHT [ l a ; 57]

CHAPTER

XXVIII

SUBCOMMENTARY: AS for the Articles on arrest and flight, during the time of Marquis Wen of Wei, Li1 K'uei created the Legal Classic in six chapters, of which the laws on arrest were the fourth. At the time of the Latter Wei dynasty, this section was called the Articles onArrest and Judgment. The Latter Chou dynasty called it the Articles on Running Away and Arrest. The Sui dynasty returned to the name of the Articles onArrest and Flight. Now the sections before this have been concerned with deciding punishments. But those who run away may cause a growth in crime and therefore they must be arrested, tied up, and caught in the net of the law. Therefore this section is put next to that on Miscellaneous Articles.

Article 451 Military or Civil Runners Pursuit and Arrest of Criminals ARTICLE: 451.1a—All cases where criminals run away and military (chiang ^ ) or civil runners (H JrI) receive orders to pursue and arrest them, if these runners do not set out but rather delay, or even though they do set out and come upon the runaways with sufficient men and weapons to oppose the criminals, do not fight with them but retreat, will be punished one degree less than the criminals. If the runners do fight with the criminals and then retreat, their punishment will be reduced two degrees below that of the criminals. COMMENTARY: Delay means intentionally to act at their own convenience. ARTICLE: 451.1b—If the men and weapons are not sufficient to oppose the criminals and the runners do not fight with them but retreat, their punishment will be reduced three degrees below that of the criminals. If the runners fight with the criminals and then retreat, they will not be punished. [Ib] SUBCOMMENTARY:According to the Statutes onArrest and Flight:"AU cases where prisoners or conscripts, garrison troops, person undergoing life exile, or persons who have been removed from the exile run away intending to enter a 1

Li S should be read Ii 2^, following the KHCPTS edition.

512

Article 451

life of banditry, . . . if violence or robbery occurs, or a person is killed or wounded, they must be pursued and arrested."2 If criminals run away after the crime is discovered refers to both those who are in prison as well as those who have not yet been put in prison. . . . Receiving orders to pursue and arrest the criminals and yet delaying refers to such actions as intentionally to avoid leaving, or to delay, or falsely claim illness. . . . [58] ARTICLE: 451.2—Even though a person is not a military or civil runner, 3 if he at the time is sent after the criminals, his punishment is reduced one degree below that of the military or civil runners in each case. 451.3a—If within thirty days, those who have been sent in pursuit are able to arrest the criminals themselves, or to seize one-half of them or more, or if not one-half, those whose crimes are punished most heavily, all of these persons who were sent in pursuit will be exempted from [2a] punishment. 451.3b—If the criminals are captured by only one person, the others will all be treated the same. 451.3c—If the criminals are already dead, or they all surrender, the persons sent in pursuit will also be exempted from punishment. If the criminals do not all surrender, the punishment will be only for those who did not surrender. SuBCOMMENTARY:Those who are not military or civil runners mean such persons as had previously been active officials, or honorary officials, who are sent by the prefecture or county to lead the pursuit and arrest the criminals. . . . Persons who are not military or civil runners but who receive an imperial edict sending them are also treated the same as under the law on military and civil runners. However, their punishment is not reduced one degree. If within thirty days the persons who are sent after the criminals have been able themselves to arrest one-half or more of them means that where ten men have run away, they are able to get five or six of them. As for they have not been able to get one-half of the criminals, if they do seize those whose crimes are punished most heavily—suppose criminals sentenced to penal servitude, life exile, and death run away at the same time. The persons sent after the criminals are able to arrest the one under sentence of death but are not able to get the nine others sentenced to penal servitude or life exile. They will be exempted from punishment even though they arrested only one man. If only one person makes the arrests, the others who lost the prisoner will all be exempted from punishment. If the criminals are already dead means either that they have committed suicide or have been killed by other persons. . . . 2

Niida, Statutes, pp. 728-729. This quote combines parts of the first two statutes. Wang Yuan-liang, Explanation of the Text, states that this refers to those who had previously been runners or officials. 3

Article 452

513

ARTICLE: 451.4a—If after the time limit has passed and the runners have been sentenced to [life exile, labor] or redemption by payment of copper, the criminals are arrested by others, or are killed or surrender, the runners punishment will be canceled and reduced three degrees in each case. 451.4b—If the criminals are arrested by others, [2b] or are killed, or give themselves up, the runners' punishment will be reduced two degrees. COMMENTARY: 451.4c—But where the runners' punishment has already been memorialized, it will not be reduced. Other articles on reducing punishment follow this article. SUBCOMMENTARY: Where escaped criminals have been at large for thirty days without being arrested by the pursuit, the persons who had been sent to arrest them who neither have an office nor protection are sent to penal servitude or life exile. Those who have an office or protection make redemption by payment of copper.4 . . . The commentary states: "But where the runners' punishment has already been memorialized, it will not be reduced." This means that if punishments of penal servitude, life exile, beating with the light stick or the heavy stick to which the military and civil runners as well as the others mentioned later have been sentenced as a result of the escaped prisoners' sentences have already been memorialized, they will not be reduced. Other articles where there is reduction of punishment follow this article. This means that for loss of imperial or official seals, or not being aware that a prisoner has escaped, where there is reference to reduction of punishment, if the punishment has already been memorialized, it will not be reduced. 5 Therefore it is stated that other articles follow this article.

Article 452 Criminals Who Use Weapons To Resist Arrest ARTICLE: 452.1—In all cases where a person arresting a criminal and the criminal uses a weapon to resist arrest kills the criminal; or where a person is pursuing a criminal who is running away and kills the criminal, COMMENTARY: It is the same whether the runaway has a weapon or is emptyhanded.

4

On these means whereby actual punishment could be escaped, see Vol. i, p. 93, Article 11, and the discussion on pp. 23 ff. 3 These are Articles 435, 437, and 466, respectively.

514

Article 452

ARTICLE: or if the criminal kills himself because of despair; in none of these cases will the person who arrests the criminal be punished. [3a; 59] SUBCOMMENTARY: The person who arrests the criminal refers to the military and civil runners and the others mentioned later in the article above. 6 . . . Weapons refer to such things as military weapons and clubs.7 . . . The commentary states:"It is the same whether the runaway has a weapon or is empty-handed."This means that it is permitted to kill the runaway no matter whether intentionally or by accident, even if the runaway is empty-handed. The criminal commits suicide because of despair refers to where the criminal having been arrested falls into despair and kills himself or dies by jumping into a pit. In none of these cases will the person who arrests the criminal be punished. ARTICLE: 452.2—If a criminal is empty-handed and resists arrest and is killed, the person who is making the arrest is punished by two years of penal servitude. 452.3a—If the criminal has already been caught and is not resisting arrest and is killed, or a tooth or limb is broken, the person who has made the arrest is punished for killing or wounding in an affray.8 452.3b—If an edge or point of something is used, the punishment is for intentionally killing or wounding. 9 SUBCOMMENTARY: This means that where the criminal is empty-handed, even though there is a struggle to resist arrest, the criminal cannot do harm. So if the criminal is killed, the punishment is two years of penal servitude. Where the criminal has already been caught and has no intentional of resisting arrest, if the criminal is killed, or a tooth or limb is broken, or is wounded, the punishment for killing or wounding in an affray in the Articles on Assaults and Accusations is followed. . . . ARTICLE: 4 5 2 . 3 C — I f the criminal would be punished by death for the original crime, the punishment for killing him is exile with added labor. 452.4a—If in resisting, the criminal beats the person making the arrest, the punishment for the original crime is increased one degree. 452.4b—If the person making the arrest is wounded, the punishment for wounding in an affray is increased two degrees. 452.4c—If the person making the arrest is killed, the punishment is decapitation. [3b] SUBCOMMENTARY: . . .As for when in resisting the criminal beats the person 6

See Article 451 above. 'This definition comes from the commentary to Article 59 above. 'These punishments vary. See Articles 302—306 above. 'See Article 306 above.The punishment is decapitation.

Article 453

515

making the arrest, the punishment for the original crime is increased one degree— suppose the criminal's original crime is punished by three years of penal servitude and he beats the person making the arrest, the punishment then is life exile at a distance of 2,000 Ii. As for the person making the arrest being wounded, the punishment for wounding in an affray is increased two degrees—suppose in resisting arrest, the criminal breaks a tooth or more of the person who is making the arrest. The punishment for an ordinary affray is increased two degrees to two and one-half years of penal servitude. As for the person who is making the arrest being killed, it is immaterial whether that person is of lower or higher status than the criminal. The punishment is decapitation.

Article 453 The Law Regarding Arrests When a Person Has Been Beaten or Hit, or Robbery or Illicit Sexual Intercourse by Force Has Occurred ARTICLE: 453.1a—In all cases where a person has been beaten or hit so as to break a tooth or more, or is wounded, or robbery, or illicit sexual intercourse by force has occurred, even bystanders may arrest the criminal, tie him up, and send him to the authorities. COMMENTARY: The law on resisting arrest follows the article above.10 453.1b—If the illicit sexual intercourse is between persons who are on the same household register, even if it takes place by consent the law on resisting arrest is followed. SUBCOMMENTARY: If one person beats or hits another so as to break a tooth or a limb or more, or a robbery or illicit sexual intercourse by force has occurred, even though bystanders are not members of the household nor relatives of the person, they are permitted to arrest the criminal, tie him up, and send him to the authorities. The law on resisting arrest follows the article immediately above. This means that if the criminal uses a weapon to resist arrest, the person who is making the arrest may kill him. If the criminal runs away, no matter whether he has a weapon or is empty-handed, the person making the arrest also may kill him. Whether the criminal resists arrest or not is always treated the same as in the article immediately above. As for illicit sexual intercourse between persons on the same household register, [4a] the words "same household register" make it clear that it is immaterial whether the persons are of lower or higher status or are relatives. The article immediately above is applicable in arresting them.

'See Article 452 above.

516

Article 454

[60] QUERY: If someone engages in illicit sexual intercourse by consent with a nonrelative and a relative of the first person arrests both parties and sends them to the authorities, then a crime has been committed against the relative. H o w ever, the Code permits the arrest of persons who commit this crime. It is not yet known whether or not a person should arrest the persons who have committed this crime or accuse them to the court. REPLY: If both parties to the crime are relatives of the third person who might arrest them or make an accusation to the court of the crime—then the law on mutual concealment is followed.11 Since the crime involves relatives, no arrest need be made nor an accusation made to the court. If one of the parties is not a relative, then that person should be punished. The relative should benefit from mutual concealment and so should not be accused to the court. However, the relative will be involved in the arrest of the nonrelative. So the person who makes the arrest will not be punished. Rather, both of the persons who have committed illicit sexual intercourse by consent will be punished in accordance with the article.12 ARTICLE: 453.2a—For other crimes, if an arrest is made and the criminal tied up without reporting the circumstances of the crime, the punishment is thirty blows with the light stick. 453.2b—If the criminal is killed or wounded, the punishment is as for intentional killing or wounding. 13 453.1c—If the basic crime would be punished by death, the punishment for the person who kills the criminal while arresting or tieing him up is life exile with added labor. SUBCOMMENTARY: If the circumstances are not reported for other crimes means that aside from the crimes of beating or hitting another person so as to break a tooth or more, or robbery or illicit sexual intercourse by force—or by consent if the parties are on the same household register—the criminals may not be improperly arrested and tied up. . . .

Article 454 Arrest of Criminals by Passersby ARTICLE: 454.1—In all cases where a person is pursuing or arresting a criminal and his strength is not sufficient to restrain him, he may call on passersby. If "See Vol. I, p. 246, Article 46. Note that the complexities of that article are not dealt with here. It also seems to say that cases of incest, the last of the ten abominations, should be ignored by the relatives of the two persons involved. 12 See Articles 410, 413, 414, and 415.The punishment varies depending upon status. "See Article 306 above.

Article 455

517

the passerby is strong enough to help and does not, the punishment is eighty blows with the heavy stick. 454.2—If the passerby is not able to help because of circumstances, he will not be punished. COMMENTARY: Not able to help because of circumstances means separated from the situation by dangers and difficulties, or on a mission, or such duties. SUBCOMMENTARY: Those who are pursuing or arresting a criminal mean military or civil runners or the others mentioned later14 who in accordance with the law pursue and arrest criminals, as well as private persons in the provision of the article who are allowed to arrest and tie up criminals. . . . N o t able to help because of circumstances means to be separated from the place by such things as a river, a gorge, a wall, a fence, a moat, or a pahsade that cannot be gotten over, or to be on a mission. Reference to such duties means an official who is on urgent business, or a private person who is seeking medical help, or rushing to be with a dying relative. Such persons will not be punished.

Article 455 A Person Who Is Going To Arrest a Criminal Divulging His Mission ARTICLE: 455.1a—In all cases where a person who is going to arrest a criminal divulges his mission so that the criminal is able to run away, he is punished one degree less than the criminal. COMMENTARY: 455.1b—If the criminal has committed several crimes, the crime for which he is being arrested is the basis for the punishment. SUBCOMMENTARY: Those who are arresting a criminal mean military or civil runners or the others mentioned later15 who have received orders to arrest the criminal. . . . The commentary states: "Where the criminal has committed several crimes." Suppose one man has committed robbery by force and also has killed a person. Furthermore, he is plotting rebellion. If the person who is sent to arrest him divulges his mission, then he is punished as for plotting rebellion, reduced one degree. If he were making the arrest for robbery by force16 or for killing a person

"See Article 452 above. 15 IbId. '6I believe that the text should read ch'iang §§5 here and again below, even though this emendation does not appear in any extant edition. My reason for this is that the character tsei Bc, "violence," does not make sense. Tsei-tao,"Violence and Robbery," is the name of the section, not the crime that is stated as having been committed.

518

Article 456

and divulged his mission, then his punishment would be as for robbery by force or killing a person, reduced one degree. Plotting rebellion would not matter. Therefore it is stated that the crime for which he is being arrested is the basis for the [61] punishment. ARTICLE: 455.2a—If before sentence is passed the arrest is made, the person will be exempted from punishment. 455.2b—If a person who is allowed mutual concealment is able to make the arrest,17 that will be treated the same. COMMENTARY: In other articles a person who is allowed mutual concealment making the arrest follows this article. ARTICLE: 455.3—If another person makes the arrest or the criminal kills him­ self, or gives himself up, the punishment is reduced degree further. SUBCOMMENTARY: Before sentence is passed means that the person who di­ vulged the mission so that the criminal was able to run away has not yet been sentenced. . . . [5b]

Article 456 Robbery by Force within a Neighborhood Security Group ARTICLE: 456.1a—All cases where within a neighborhood security group' 8 or a village, robbery by force has occurred or someone has been killed and a person raises the alarm but does not go to help, punish him by one hundred blows with the heavy stick. 456.1b—Those who hear the alarm but do not go to help are punished one degree less. 456.1c—Those whose strength or circumstances does not allow them to help must go as fast as possible to the nearest government official. If they do not raise the alarm, they will be punished for not giving help. 456.2—If the official does not immediately send help, he will be punished by one year of penal servitude. 456.3—If the crime committed is robbery by stealth, the punishment is reduced two degrees in each case.

"See Vol. ι p. 246, Article 46, for the argument for this privilege and a list of those who are allowed to benefit from it ''According to the Household Statutes (Niida, Statutes, p. 214), duringT'ang times one hun­ dred households made a village and five villages constituted a locality. Four households were a neighborhood security group, and five were a mutual security group.

Article 457

519

SUBCOMMENTARY: According to the Rites of [Chou]: "Five households make a neighborhood and five neighborhoods make a village."19 . . . Even if he or she does not hear the alarm, if a person hears sounds of a crime taking place and does not go to help, the punishment is reduced one degree to ninety blows with the heavy stick. Those whose strength or circumstances does not allow them to help refers to where they are fewer in number than the persons who committed the violence or robbery, or they are too old, too young, or emaciated and weak. . . .According to the Statutes on Arrests and Flight:"In all cases where there is violence and robbery or when there is any person wounded or killed, a report should be made to the nearest official authorities, the hamlet, ward, military colony, or postal relay station.The place that receives the report should collect together the nearest troops and adult men, and pursue the criminals from the place where the offense was committed and arrest them." 20 . . .

[62]

Article 457 Desertion from the Army during a Campaign

AKTICLE: 457.1a—AU cases of those who desert from the army after having been conscripted to take part in a campaign, or who desert during a campaign, are punished by one year of penal servitude for the first day's absence, increased one degree [6b] for each further day, and with fifteen days punished by strangulation. 457.1b—Desertion in the face of the enemy is punished by decapitation. 457.2—If the officer in charge deliberately connives at the desertion, he receives the same punishment. COMMENTARY: Articles below follow this article. SUBCOMMENTARY: Conscripts refer to guardsmen and ordinary men who have been conscripted. . . . In the face of the enemy refers to facing the enemy across a breast-work and deserting when missiles are exchanged. The punishment is decapitation. If the officer in charge of the men who must fight deliberately connives at the desertion, then he receives the same punishment as the deserters.The deserters are punished by decapitation and the officer in charge by strangulation.21 The commentary states: "Articles below follow this article." This means that

"Chou Ii, "Ti kuan," 232, Biot, I, 337. NiICh, Statutes, p. 729. 2, See the commentary to Vol. I, p. 261, Article 53. There it states that receiving the same punishment cannot cause a person to be decapitated. Strangulation is substituted. 20

520

Article 457

the articles below on troops going to or in a garrison deserting before their tour of duty is finished.22 If the officer in charge deliberately connives at their desertion, he receives the same punishment as the deserters. The number of days that they desert as well as the distance to which they flee are irrelevant for those who desert in the face of the enemy. Those who desert during a campaign and, before a full fifteen days have passed, the army begins to return, punish the days when the army has not yet begun to return according to the law on running away when designated to take part in a campaign. The days after the campaign is over and the army is returning are punished according to this law on deserting. After the conscripts are returning, the sentence follows the law on running away from the army when it is returning. So the days before the army began returning are combined with the days after the army has begun returning and the punishment is for the total number. 23 ARTICLE: 457.3a—Those who go ahead of the army when it is returning are punished five degrees less than for desertion. 457.3b—Those who run away are treated the same as under the law on running away while at home. 24 SUBCOMMENTARY: Even though the army returns victorious, soldiers must remain with their formation. If they do not go together with their company but rather improperly go ahead, they are punished as for deserting the army, reduced five degrees. If they run away, their punishment is the same as that in the law on running away while at home: forty blows with the light stick for the first day, increased one degree for each further ten days, and with a maximum punishment of life exile at a distance of 2,000 /i.25 If a soldier goes ahead of the returning army, for the first day the punishment is one year of penal servitude reduced five degrees to sixty blows with the light stick and with a maximum of one and one-half years of penal servitude. If the number of days is only a few, the punishment follows that for going ahead of the returning army. If the number of days is many, then the punishment follows the law on running away from an army posting. 26

22

See Article 461 below. See Vol. I, p. 235, Article 45. 24 See Article 461 below.The punishment there is thirty blows with the light stick for the first day. 2 'SeeVol. I, p. 268, Article 56. Unless the death penalty is specified in an article, the maximum punishment is life exile at a distance of 3,000 Ii. 26 Tai, Specific Articles, p. 288, is of the opinion that the reason for this complex arrangement is as follows. Going ahead of the returning army is initially punished more heavily. However, the maximum punishment is one and one-half years of penal servitude, which is the maximum punishment of life exile at a distance of 3,000 H, reduced five degrees. The punishment for running away from an army posting, while initially lighter, can reach life exile. So this article is sentenced when the number of days is many. 23

Article 459

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Article 458 Frontier Defense Troops Going to Their Camp ARTICLE: All cases of frontier defense troops who desert while going to their camp or when they have not served their full term of duty at the camp 27 are punished by eighty blows with the heavy stick for the first day, increased one degree for each further three days. COMMENTARY: Garrison troops are considered to be the same. SUBCOMMENTARY: . . . Frontier defense troops who are going to their camp refer to those who are on the road. If they run away or those at a camp desert before their period of service is completed—garrison troops are considered to be the same as frontier defense troops—the punishment for the first day is eighty blows with the heavy stick, increased one degree for each further three days. The text has no provision for a maximum punishment, so it can reach to life exile at a distance of 3,000/i. 28 If the days of desertion have not yet reached the maximum punishment when the term of service on the frontier or in a garrison is completed, then the punishment is the same as for running away while at home. 29 The punishments are combined in sentencing. 30

Article 459 Criminals Who Are Doing Laborfor Punishments of Life Exile or Penal Servitude Running Away ARTICLE: 459.1—All cases of criminals who are doing labor for punishments of life exile or penal servitude running away are punished by forty blows with the light stick for the first day, increased one degree for each further two days.When the punishment has exceeded [63] one hundred blows with the heavy stick, it is increased one degree for each further five days. COMMENTARY: Those who commit crimes punished by life exile or penal servitude that require their being sent to labor, as well as those persons removed from the community, 31 who run away when they have not yet reached the place to which they are sent are considered the same. 27

A term of service is three years. VoI. i, p. 268, Article 56, limits adding punishment to a maximum of life exile. It may not extend to the death penalty unless specifically provided for in the article. 2, See Article 461 below. "See Vol. 1, p. 235, Article 45. "These were persons originally under death sentence but whose punishment had been reduced because of an amnesty. See Vol. I, p. 147, Article 24. 28

522

Article 460

SUBCOMMENTARY: . . .

ARTICLE: 459.2a—If the custodial official is not aware that the criminals have run away, his punishment is reduced three degrees below that of the criminals. If the criminals did not have a full half year of labor remaining, the official in charge is punished by thirty blows with the light stick for the first person, increased one degree for each further three persons, and with a maximum punishment of one hundred blows with the heavy stick. 459.2b—The punishment of the official in charge at the time is reduced three degrees further. 459.2c—If there is deliberate connivance by any of these officials, they receive the same punishment as the criminals in each case. SUBCOMMENTARY: Custodial official means the one who has custodial charge of the prisoners as well as those who are assigned control of persons punished by life exile or who are removed from the community. If they are not aware of the prisoners having run away, their punishment is reduced three degrees below that of the prisoners. This means the prisoners' original punishment reduced three degrees, not the punishment for running away! . . . [8a] The number of days is not the basis of punishment, but rather the number of men who have fled. For the first man the punishment is thirty blows with the light stick, increased one degree for each further three men. This means that for four men who have fled, the punishment is forty blows with the light stick. If the official is not aware that twenty-two men have fled, this reaches the maximum punishment of one hundred blows with the light stick. The official in charge at the time has his punishment reduced three degrees further means that it is reduced three degrees below that of the custodial official. So if he is not aware that twenty-two men have fled, his punishment is limited to seventy blows with the heavy stick. If there is deliberate connivance by any of these officials, they receive the same punishment as the criminals in each case. Reference to in each case means that the custodial official receive the punishment for the original crime of the prisoner that fled.

Article 460 Imperial Guards Who Desert Their Posts ARTICLE: 468.1—AU cases of imperial guards who desert their posts while on duty are punished by one hundred blows with the heavy stick for the first day, increased one degree for each further two days.32 "Militiamen took turns of one month each serving in the imperial guards.

Article 461

523

468.2—If they desert the imperial cortege, the punishment is increased one degree. SUBCOMMENTARY: . . . If they desert for a total of seventeen days, the punishment 33 is life exile at a distance of 3,000 /i. If they desert when their turn at standing 34 duty is over, their punishment is the same as that for running away from home. As for deserting the imperial cortege, because accompanying the imperial cortege is more serious, the punishment is intentionally increased above that for imperial guards. So that for the first day, the punishment is one year of penal servitude, increased one degree for each further two days, and punished by life exile at a distance of 3,000 Ii for fifteen days. QUERY: If a guardsman on duty outside the imperial palace city, or at a govern­ ment office outside the capital city, or who has been sent to the palace of a prince deserts, what is the punishment for these types of crime? [64] REPLY: Outside the imperial palace city includes both the imperial city and the capital city. So if a guardsman deserts, it is not different from an imperial guard deserting. If it were comparable, then the punishment would be reduced three degrees.35 Thus the punishment would be much lighter than that for running away from home. Let it be known: miscellaneous crimes involving guard duty have the punishment reduced three degrees. But where the crime is desertion, the punishment is no different from that for imperial guardsmen.

Article 461 Adult Males and Artisans Who Run Away ARTICLE: 461.1—All adult males {ting-fu T ^ζ) and artisans (tsa-chiang f§EE) who run away while performing labor service,36 as well as artisan bonds­ men and musician bondsmen who run away, are punished by thirty blows with the light stick for the first day, increased one degree for each further ten days, and with a maximum punishment of three years of penal servitude. 461.2a—If the official in charge is not aware of their having run away, he is punished by twenty blows of the light stick for the first man, increased one degree for each further five men, and with a maximum punishment of one hundred blows with the heavy stick.

"See note 28 on this limitation of punishment. M See Article 469 below. There the punishment is forty blows with the light stick for the first day, increasing one degree for each further ten days ''This refers to Article 80 above, where in such cases the punishment is reduced three degrees. ''Generally adult males from twenty-one to fifty-nine years of age were responsible for taxes

524

Article 461 461.2b—If he deliberately connives at their running away, he receives the same punishment in each case.

CoMMENTARY:Musicians of the Court of Imperial Sacrifices are considered the same. SUBCOMMENTARY: Ting means those who must do regular required labor service. 37 Fu means those who are subject to miscellaneous labor services. . . . Artisans and musician bondsmen who run away while at home are also punished by thirty blows with the light stick for the first day, increased one degree for each further then days, and with a maximum punishment of three years of penal servitude. . . . ARTICLE: 461.3—For adult males who have tax or labor service obligations, or where the whole household runs away, the punishment is the same. 461.4—If a person runs away from his army posting, the punishment is increased one degree. 461.5a—If men who do not have tax and labor service obligations run away, or if not the whole household runs away, the punishment is reduced two degrees. 461.5b—If a household composed of women runs away, the punishment is reduced three degrees further. 461.6a—If the village headman as well as the supervisory or custodial official deliberately connives in the crime, they receive the same punishment as the criminals in each case. 461.6b—If they are not aware of the circumstances, they are not punished. SUBCOMMENTARY: Men having tax or labor service obligations refer to some men having tax obligations but not labor service obligations while others have labor service obligations but not tax obligations. 38 . . . If a person runs away from his army posting refers to service such as being a guardsman, a groom, a coachman, or a tapestry weaver. Since all of these are a part of the garrison, [9b] they are called army postings. Weavers are attached to the office of the Chamberlain of the Palace Garrison. Coachmen are attached to the office of the Chamberlain of the Royal Stud, and so on. . . . If those who have an army posting run away, even if it is not the whole household, the pun­ ishment is increased one degree to life exile at a distance of 2,000 Ii. Where the article refers to men who do not have tax and labor service obliga­ tions, it means that the whole household runs away. Where it refers to men who

and twenty days of annual labor services. Artisans were persons with special skills used, for example, by mints See Twitchett, Financial Administration, p. 68. 37 FH refers to adolescent males (chung-nan φ j§) who were assigned grants of land at eighteen and, while not subject to corvee, did have to perform miscellaneous labor services. See the discussion in Twitchett, Financial Administration, pp. 25 ff. 38 See Article 150 above.

Article 462

525

have tax and labor service obligations, it means that not the whole household runs away. Their punishment is reduced two degrees below that for men who have tax and labor service obligations who run away or where a whole household runs away, so that the maximum punishment is two years of penal servitude. If the men who run away do not have tax or labor service obligations and further not the whole household runs away, the maximum punishment is reduced two degrees further to one year of penal servitude. If a household composed of women runs away refers to the whole household running away.The punishment is reduced three degrees further so that altogether there is a reduction of five degrees below that for those who have tax and labor service obligations running away to a maximum punishment of one hundred blows with the heavy stick. If not the whole household of women runs away, punishment is reduced two degrees further to eighty blows with the heavy stick. As for the village headmen as well as supervisory and custodial officials, their counterparts in the militia are treated the same with regard to soldiers. Therefore those who deliberately connive at either household members or soldiers running away receive the same punishment as the criminals. . . . [65] QUERY: If a person who has an army posting runs away to another place where he registers and assumes tax and labor service obligations in accordance with the law, only without stating that he has a military position, what is the punishment? REPLY: Most of the crimes involving running away are concerned with avoiding taxes. For a group that has no tax obligations, we must reprove their shallow wandering about. He must register their household and fulfill taxes and labor service obligations in accordance with the law. If in accordance with the Ordinances he pays taxes and at the place where he is registered fulfills his tax and service obligation, he is not in violation of the taxes and labor services with the civil government. [10a] He only escaped from the work of his army posting and so is punished with regard to that section of the article. If the runaway surrenders himself, his punishment will be reduced two degrees.

Article 462 Drifting Aimlessly to Other Places ARTICLE: 462.1a—All cases of those who do not run away but drift aimlessly to other places are punished by ten blows with the light stick for the first ten days, increased by one degree for each further ten days, and with a maximum punishment of one hundred blows with the heavy stick.39 462.1b—If a person who has official business at another place remains 39 See the article on this subject by Denis Twitchett, "The Implementation of Law in Early T'ang China," pp 57-84. There he translates and discusses some extant documents dealing with the problem of vagrant households and the efforts to return such people to their homes.

526

Article 463 there and does not return after his business is completed, his punishment is the same. 462.1c—If the person is working to gain profit or studying to be an official, he is not punished. 462.2—If his purpose is to avoid taxes, the punishment is for running away.40

SUBCOMMENTARY: Does not run away means a person is not trying to avoid service but simply drifts to another place. . . . If the person is working to gain profit means that he moves his goods about in trade and comes from far away to seek profit. Studying to be an official refers to those who have their books to follow a teacher or taken their travel permit and gone to seek employment. Each of them is following his profession. Therefore they are not punished. If his purpose is to avoid taxes, the punishment is for running away means that because of this he does not return, which results in avoidance of taxes.The punishment follows the law on running away in each case. If the whole household runs away, the maximum punishment is three years of penal servitude. If it is not the whole household that runs away, the punishment is reduced two degrees.

Article 463 Official Bondsmen and Slaves Who Run Away [10b] ARTICLE: 463.1a—All cases of an official bondsman or government slave who runs away are punished by sixty blows with the heavy stick for the first day, increased one degree for each further three days. COMMENTARY: 463.1b—A personal retainer or private slaves receives the same punishment. ARTICLE: 463.2a—If the official in charge is not aware of their running away, he is punished by thirty blows with the light stick for the first such person, increased one degree for each further five persons, and with a maximum punishment of one hundred blows with the heavy stick. 463.2b—If the official deliberately connives at the official bondsman running away, he receives the same punishment. For a slave, his punishment is comparable to robbery. 4 ' 463.3a—Anyone who entices a government or private slave to run away is punished as comparable to robbery. 463.3b—He must repay the value of the slave. *See Article 461 above. The punishment there is much more severe. ""The reason for this is that slaves were considered to be the same as goods and real property and could be valued. Robbery is covered m Article 282 above. On comparable punishments, see Vol. I, p. 261, Article 53.

Article 464

527

SUBCOMMENTARY: . . . Even though a personal retainer takes the daughter of a commoner as a wife, if she runs away, she receives the same punishment as the personal retainer. . . . If an official in charge deliberately connives at an official bondsman running away, he receives the same punishment as the official bondsman. Since the punishment is limited to life exile, it follows the law on adding two hundred blows with the heavy stick.42 Anyone who entices a government or private slave to run away is punished as comparable to robbery refers to where the person does not get the slave himself but leads the slave on to run away being punished as comparable to robbery. If the slave is worth five p'i of silk, the punishment is one year of penal servitude, [66] increased one degree for each further five p'i of silk. Further, the value of the slave must be repaid. However, the crime of deliberate connivance does not require repayment.The article makes no formal provision for enticing an official bondsman or a personal retainer to run away, [Ha] so the punishment is the heavier for doing what ought not to be done or eighty blows with the heavy stick.43

Article 464 Officials Who Desert Their Post without Reason ARTICLE: 464.1—All cases of officials who desert their posts without reason are punished by fifty blows with the light stick for the first day, increased one degree for each further three days. When punishment exceeds one hundred blows with the heavy stick, it increases one degree for each five days. 464.2—For officials who hold important frontier posts, the punishment is increased one degree. SUBCOMMENTARY: This refers to someone who is an official in accordance with the Statutes and the Ordinances, who is at present holding a post, and who deserts his post without reason and without authorization. . . . For fifty-six days, the punishment is life exile at a distance of 3,000 Ii. For officials holding important frontier posts, the Ordinances of the Board of Finance states: "The fifty-nine prefectures of Ling, Sheng, etc. are frontier prefectures, and in these continuous residence on the frontiers is essential."44 The 42 There are two articles involved here. The first is Vol. I, p. 268, Article 56, which limits punishment to life exile unless the death penalty is specifically provided in an article which is not the case here. So the number of days that the official bondsman has been away becomes irrelevant once the punishment of life exile at a distance of 3,000 Ii has been reached The second is Vol I, p. 160, Article 28, which substitutes two hundred blows with the heavy stick for life exile in the case of certain members of the inferior classes. 43 See Article 450 above. 44 SeeTwitchett,.FmaHaaM(immuira/i0H,pp. 147-150.He has there brought together and translated such of these ordinances as have survived.

528

Article 465

punishment is increased one degree means that for ranked officials and those higher, the punishment is sixty blows with the heavy stick for the first day, increased one degree for each further three days.

Article 465 Prisoners Who Fight with Officials and Run Away ARTICLE: 465.1a—All cases of prisoners who fight with officials and run away are punished by life exile at a distance of 2,000 Ii. 465.1b—If they wound a person, the punishment is life exile with added labor. 465.1c—If they kill a person, the punishment is decapitation. Accessories are punished by strangulation. 465.2—If they secredy run away, the punishment is for a person running away from penal servitude. 45 COMMENTARY: 465.3—Those who run away when the crime is discovered but before they have been put in prison receive the same punishment. SUBCOMMENTARY: For those who are prisoners, it is irrelevant whether or not they are guilty of a crime; the essential thing is that they have for some circumstance been put in prison. Those who are under loose confinement are considered the same.46 If they fight with or use force against the officials and run away, they are punished by life exile at a distance of 2,000 Ii. If a person is wounded means that because of fighting, [1 lb] the prisoner wounds the official in charge or those who have made the arrest.The punishment is life exile with added labor. If these persons are killed, the punishment is decapitation and accessories are punished by strangulation. If the prisoner's punishment does not extend to the death penalty, the law on principal and accessories is followed.47 In all these cases, running away when the crime has been discovered increases the punishment. . . . QUERY: Suppose according to the circumstances a person should not be imprisoned, but being wrongly imprisoned by an official, he fights with that official and runs away. What is to be the punishment? 45 See Article 459 above. The minimum punishment is forty blows with the light stick for the first day. "Those kept in loose confinement were not chained as were ordinary prisoners "This has to do with the punishment for wounding not reaching the death penalty following Article 308 above. Also, Article 42 in Vol i, p. 225, specifies that accessories shall be punished one degree less than the principal in a crime.

Article 466

529

REPLY: Where the basic crime does not call for imprisonment but a person is wrongly detained by an official, even if he runs away, this is not the same as a prisoner running away. However, if he fights with and kills or wounds the official, the punishment can only be the same as that under the law on deliberately killing or wounding a person. 48 If he secredy runs away, the punishment is the same as for those who run away while at home. 49 Where a decision has been made to imprison him, even though he has not committed a crime, running away is treated the same as under this article on prisoners.

[67]

Article 466 Custodial Officials Not Being Aware of a Prisoner's Escape

ARTICLE: 466.1 a—In all cases where custodial officials are not aware of a prisoner's escape, they are punished two degrees less than the prisoner. 466.1b—If the prisoner has run away as the result of fighting with the officials, the punishment will be [12a] reduced two degrees further. 466.2a—In all cases one hundred days will be allowed to pursue and arrest the runaway. If other persons arrest the runaway, or the runaway kills himself or surrenders, the punishment will be canceled. 466.2b—If when the time limit has passed, the runaway is arrested, or the runaway kills himself or surrenders, the punishment will be reduced one degree further. SUBCOMMENTARY: Custodial official means one who is especially in charge of prisoners, such as a jailor. If he is not aware of a prisoner's escaping, he is punished two degrees less than the prisoner, or three years of penal servitude for a prisoner under the death sentence.30 If a prisoner fights and uses force to escape, and the official's strength is not enough to overcome the prisoner, his punishment is reduced two degrees further. . . . Reference to reduced means that the official has already been sentenced with the escaped prisoner's punishment. The punishment is reduced. However, if the punishment has already been memorialized, it cannot be reduced. ARTICLE: 466.3—The official standing duty has his punishment reduced three degrees below that of the custodial officials in each case. 48

See Article 306.The punishment for killing is still capital. See Article 461 above.The punishment begins with thirty blows with the light stick for the first day. 50 VoI. I, p. 261, Article 56, provides that both death penalties and all three distances of life exile shall each be a reduction of punishment. Hence three years of penal servitude here for two degrees of reduction. 49

530

Article 467 466.4a—For deliberate connivance, there is no time limit given for arrest of the prisoner. The person receives the prisoner's punishment. 466.4b—If the official's punishment has not yet been sentenced and administered, and he is able himself to arrest the prisoner, or the prisoner kills himself [12b] or surrenders, his punishment will be reduced one degree in each case.

SUBCOMMENTARY: The official who is standing duty means the overseer, the person who has special knowledge of the prisoners. . . . If the official's punishment has not yet been sentenced or decided means that replacement of punishment by office or redemption by payment of copper has not yet been sentenced. Punishments of death, or beating with the light or heavy stick, have not yet been decided. . . . COMMENTARY: 466.5—This means that in this section of the Code where supervisory and custodial officials are punished and the relevant article does not establish a time limit for arresting or searching out the escapees, or where officials are not aware of a crime, or deliberately connive in a crime, this article is always followed. SUBCOMMENTARY: In the articles above on conscripts running away and the custodial official receiving the same punishment if he connives in the crime; 51 or where prisoners punished by life exile or penal servitude run away during the period that they are doing labor;52 no time limit for arresting them is set up. Where the official is not aware of the crime, or deliberately connives at the crime, all such situations follow this article as the law.

[13a]

Article 467 Harboring Runaways from Another Jurisdiction

ARTICLE: 467.1a—All cases of a village headman harboring runaways or drifters from another jurisdiction in the area under his control are punished by forty blows with the light stick for the first such person, increased one degree for each further four persons. COMMENTARY: This means where they have remained for fifteen days or more. The ward headman and the hamlet headman receive the same punishment. Where the members of a household run away or drift to another place, [68] one household is the same as one person with regard to punishment.

51

See Article 457 above. See Article 459 above.

52

Article 467

53 ί

ARTICLE: 467.1b—If this movement takes place within a county, the county magistrate is punished forty blows with the light stick for five persons, increased one degree for each further ten persons. 467.1c—Depending upon the number of counties controlled by a prefecture, a comprehensive calculation determines the punishment for the prefect. COMMENTARY: In all cases, the senior official is the principal and his subordi­ nates are accessories.' 3 ARTICLE: 467.1 d — T h e maximum punishment is two years of penal servitude in each case. 467.2—The punishment is the same where the person is an official bonds­ men, personal retainer, or slave. SUBCOMMENTARY: . . .If he allows runaways or drifters from another jurisdiction to remain in the area under his control, the village headman is punished by forty blows with the light stick for the first such person. This means that they have been allowed to remain for fifteen days or more. Only then is the village head­ man punished. . . . Where the members of a household run away or drift to another place, the number of persons is not relevant to the punishment. O n e household is pun­ ished the same as one man. . . . Depending upon the number of counties controlled by a prefecture, a compre­ hensive calculation determines the punishment means that if a prefecture controls two counties, forty blows with the light stick is the punishment for 10 such persons, and two years of penal servitude is the punishment for 190 persons. If the number of counties controlled is still more, a comprehensive calculation of all of them is the basis for punishment. In all cases, the senior official is the principal and his subordinates are accessories. Thus in the text below it is clear that punishment does not extend to the chief clerk. . . . ARTICLE: 467.3—If a person performing military labor service commits this crime, from the company commander up to the general, each is punished for the area under his command following the laws on robbery and vio­ 54 lence. SUBCOMMENTARY: Reference to military service refers to places where the army is camped or where conscripts are giving military service. . . . The company "Senior official here means the county magistrate or the prefect, depending upon the area. Vol. i, p. 225, Article 42, provides that accessories receive one degree less punishment than the principal in a crime. 54 See Article 301 above.This article equates the responsibility of civil and military officials for robberies on a one-to-one basis. Tai, Specific Articles, p. 172, argues that the same is true here

532

Article 468

commander and vice-commander receive the same punishment as the village headman.The commandant and the battalion commander have their punishment reduced one degree. For the commander and deputy commander of militia, the number of battalions under their command is the basis of punishment. . . .

Article 468 Concealing a Criminal While Knowing the Circumstances ARTICLE: 468.1—All cases of concealing a criminal while knowing the circumstances, or of giving the criminal aid so that he is able to hide or avoid the authorities, are punished by one degree less than the criminal's punishment in each case. CoMMENTARY:This refers to where the crime has been discovered and the criminal is being pursued, or has run away, or is a traitor, and such crimes. [69] SUBCOMMENTARY: Knowing the circumstances and concealing means knowing the circumstances of the criminal, the householder conceals him. Giving aid means to help the criminal by indicating roads whereby the criminal can avoid dangerous places and giving him clothing and food so as to allow the evildoer to conceal himself. The commentary states: "This refers to where the crime has been discovered and the criminal is being pursued."This means that when the crime has not yet been discovered, the person is not yet a criminal. Therefore, it is necessary for the crime to have been discovered and the criminal to be pursued. Only then can it be argued that the person knows the circumstances. "Or is running away, or is a traitor" means that the criminal is fleeing arrest or has betrayed the country. Even if the criminal is not yet being pursued, if his conduct is known and he is given aid in hiding or avoiding the authorities, the punishment is one degree less than that of the criminal, namely, life exile at a distance of 3,000 Ii. Or such crimes refers to fleeing into the mountains and marshes and not submitting when pursued and summoned as being such a crime. 55 COMMENTARY: Concealing, hiding, and giving aid have no time limit. If a family member of a lower generation or of the same generation but younger than other family members conceals or hides a criminal and after this has taken place another family member of a higher generation or of the same generation but older than the first family member learns of this and allows it, only the family member lower in generation or of the same generation but younger will be punished. If a personal retainer or a slave initiates hiding a 'See Article 251 above, where such actions are equated with treason.

Article 468

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criminal and their master later learns of it, the master receives the same punishment. SUBCOMMENTARY: . . . If a family member of a lower generation or of the same generation but younger conceals or hides a criminal and after this has taken place another family member with whom he dwells together and with whom 36 the privilege of mutually concealing offenses is allowed —-a person who there­ fore is a relative of a higher generation or of the same generation but older learns of this and allows it—only the person of a lower generation or of the same generation but younger will be punished. The family member of the higher generation or of the same generation but older will not be punished. If a personal retainer or a slave is the principal in hiding a criminal and their master later learns of it, he receives the same punishment means that he like the personal retainer or slave receives the same punishment as the criminal but reduced one degree. The reason for this is that a master need not conceal the crimes of his personal retainers and slaves.'7 COMMENTARY: If a family member of a higher generation or of the same genera­ tion but older than other family members hides a criminal and after that family member dies, a relative of a lower generation or of the same genera­ tion but younger then continues to hide the criminal, he is punished five degrees less. If after the family member dies, the hiding of the criminal continues, but when the criminal has already gone away, the crime of hiding him is discovered, or if the companion of a person who was allowed mutual con­ cealment of crimes is hidden, in neither case will there be punishment. If that relative was of the fourth degree of mourning or less, then the punishment also follows the principle on reduction of punishment. 5 8 SUBCOMMENTARY: This means that the family member on the day that he con­ cealed the criminal was one who was allowed to benefit from mutual conceal­ ment of crimes. After the family member dies, a relative of a lower generation or of the same generation but younger continues to hide the criminal as before. N o matter how many days this lasts, the relative of a lower generation or of the same generation but younger will be punished five degrees less than the criminal, so that in all he will be punished six degrees less than the criminal. As for after the family member dies, the hiding of the criminal continues but then when the criminal has already gone away, only then is the crime of hiding him discovered, or if the companion of a person whose was allowed mutual concealment of crimes is hidden, in neither case will there be punishment—

56

See Vol. ι, ρ 247, Article 46, on dwelling together and mutual concealment. VoI. I, p. 246, Article 46, specifies this. 58 That is, their punishment will be reduced three degrees 57

534

Article 468

suppose a family member of the third degree of mourning together with others commits robbery. When the crime is discovered, and they are being pursued, all of them come and hide. If a relative of a lower generation or of the same generation but younger exposed the companions, the crime of his relative of the third degree of mourning would also have come to light, and that family member possibly would have been implicated with his companions. Therefore in neither case will the relative of a lower generation or of the same generation but younger be punished. The articles states: "If that relative was of the fourth degree of mourning or less." If such relatives mutually conceal each other's crime, they are punished three degrees less than persons of nonkin status. If a person conceals the companions of a relative of the fourth or fifth degree of mourning, [15a] this principle is also followed, so that in all the punishment is four degrees less than that of the criminals. Therefore it is stated that the [70] principle on reduction of punishment is also followed. COMMENTARY: Criminals are hidden before an amnesty and are not exempted from punishment by the amnesty and continue to be hidden as before after the amnesty. Or, if a person is not known to be a criminal but after he has been allowed to stay, his crime becomes known, yet he is hidden, the punishment follows this article in both cases. SUBCOMMENTARY: As for the criminals being hidden before an amnesty and are not exempted from punishment by the amnesty—suppose the man who is hidden has committed one of the ten abominations. The amnesty does not exempt persons who have committed one of the ten abominations from punishment. After the amnesty the person continues to be hidden as before. . . . COMMENTARY: Where a criminal is transferred about and hidden, if the persons who hide him know the circumstances, then they are punished. If they do not know the circumstances, then they are not punished. SUBCOMMENTARY: As for a criminal being transferred about and hidden—suppose "A" knows the circumstances and hides a criminal. Then he hands him over to "B," who hides the criminal. " B " in turn hands the criminal over to "C," who sends him into hiding. When the criminal is transferred about like this,"B" and "C," who know that he is a criminal, are punished for hiding him. Those who do not know the circumstances have not committed a crime. Therefore it is stated that they are not punished. ARTICLE: 468.2—If a criminal has committed several crimes, the person who conceals the criminal can only be punished for those that are known to

him.

Article 468

535

SuBCOMMENTARY:Where a criminal has committed several crimes refers to where he has killed a person, committed illicit sexual intercourse, and committed robbery. The person who conceals the criminal can only be punished for those crimes that are known to him means that for those crimes that are known to the person who conceals the criminal, his punishment is reduced only one degree below that of the criminal. [15b] QUERY: If a slave conceals a prisoner who has been sentenced to life exile, and the slave's master later learns of it, what is the master's punishment? REPLY: If a slave initiates the concealment of a prisoner who has been sentenced to life exile, then he receives punishment of one degree less or three years of penal servitude.59 This is changed to two hundred blows with the heavy stick.60 If the slave's master later learns of the concealment, he receives the same punishment as his slave, which is also determined by the criminal's punishment. If in principle the master is permitted reduction of punishment, or redemption by payment of copper, each of these is determined by the relevant law affecting the master.61 The punishment of two hundred blows with the heavy stick is reduced and/or redeemed by payment of copper. Should the slave die, and afterward the master conceal the criminal as before, then the master is punished as if he had hidden the criminal himself, that is, not 62 that of the slave.

59 VoI. I, p. 261, Article 56, specifies that one degree of reduction of punishment from any of the three distances of life exile shall be to three years of penal servitude. 60 ThIs follows the punishment specified by Vol. I, p. 210, Article 38. "'See Vol. I, pp. 88-100, Articles 8 - 1 1 . 62 I follow Tai, Specific Articles, p. 297. n. 3.

12. JUDGMENT AND PRISON1 [la; 70]

CHAPTER

XXIX

SuBCOMMENTARY:The name of the Articles on Judgment and Prison began during the Wei dynasty. The Wei dynasty divided Li2 K'uei's laws on prisoners and made this section from it. Coming to the Northern Ch'i dynasty, this section was combined with the Articles on Arrest and renamed the Articles on Arrest and Judgment. Coming to the Latter Chou dynasty, it was again [71] called the Articles on Judgment and Prison. . . .

Article 469 Not Imprisoning Persons Who Should Be Imprisoned ARTICLE: 469.1a—All cases of not imprisoning persons who should be and not putting them in cangues, fetters, and manacles when they should be, or of removing their cangues, fetters, and manacles, are punished by thirty blows with the light stick. If the crime of which the prisoner is accused is punished by penal servitude or more, the punishment progressively increases one degree. 469. Ib—If the means of restraint are changed, the punishment is one degree less than above in each case. [Ib] SUBCOMMENTARY: According to the Statutes on Prison Officials: "Prisoners accused of crimes punishable by death should wear the cangue and manacles. Women and prisoners accused of life exile or less do not have to wear manacles. Those accused of crimes punished by beating with the heavy stick shall be kept in loose confinement (san-chin f£M)·" 3 Another article states:"Prisoners entided to deliberation, petition, or reduction of sentence, who have committed a crime punished by life exile or more, if they are to be disenrolled, to resign from office, or to use office to replace punishment, shall all be kept confined with the leg chain."4 Those who have committed crimes punished by beating with the light stick are not imprisoned. Only if the crime is punished by beating with the heavy stick is the person imprisoned. . . .

'For an overall survey of criminal procedure inT'ang China, see Johnson andTwitchett,"Cnminal Procedure in T'ang China." N o t e particularly the translations from the Statutes, which were made by Twitchett. 2 Li M. should be read Ii ^ , following the K H C P T S edition. 3 Nnda, Statutes, p. 7 8 1 . 4 Ibid„ p. 783.

Article 470

537

If the person has committed a crime punished by penal servitude and is not imprisoned nor put into the cangue or fetters, or the means of restraint are taken off, the punishment is forty blows with the light stick. If the person has committed a crime punished by life exile and is not imprisoned nor put into the cangue or fetters, or the means of restraint are taken off, the punishment is fifty blows with the light stick. If the person has committed a crime punished by death and is not imprisoned nor put into the cangue or fetters, or the means of restraint are taken off, the punished is sixty blows with the heavy stick.This is called progressively increasing the punishment one degree. If the means of restraint are changed, the punishment is reduced one degree in each case means that those who should be in the cangue are put into fetters or those who should be in fetters are put into the cangue. This is called changing the means of restraint. If the prisoner's crime is punished by penal servitude, the punishment is thirty blows with the light stick; if by life exile, the punishment is forty blows with the light stick; if by death, the punishment is sixty blows with the heavy stick. ARTICLE: 469.2—If the prisoners themselves remove the means of restraint or change them, the punishment is the same as above. 469.3—If persons are imprisoned who should not be, or put into cangues, fetters, and chains when they should not be, the punishment is sixty blows with the heavy stick. SUBCOMMENTARY: If the prisoner himself removes the cangue, fetters, or manacles, for a crime punished by penal servitude, the punishment is forty blows with the light stick; if by life exile or more, the punishment progressively increases one degree. . . . [2a] If persons are imprisoned who should not be, or put into cangues, fetters, and manacles when they should not be, means that according to the Statutes, they should not be so treated.The punishment is sixty blows with the heavy stick in each case.

Article 470 Giving Prisoners Edged or Pointed Metal Implements with Which They Can Free Themselves ARTICLE: 470.1 a—All cases of giving prisoners edged or pointed metal implements or other objects that can be used to kill themselves or to free themselves are punished by one hundred blows with the heavy stick. 470.1b—If as a result a prisoner is able to run away or wounds himself or another person, the punishment is one year of penal servitude. 470.1c—If he kills himself or another person, the punishment is two years of penal servitude.

538

Article 470 470. Id—If the prisoner's original crime was punished by life exile or more and the prisoner is able to run away, even if he does not wound or kill anyone, the punishment accords with this.

SUBCOMMENTARY: Edged and pointed metal implements refer to such things as awls and knives. Other objects refer to such things as ropes or saws, things that can be used to kill oneself or free oneself from cangues, fetters, or manacles. Even though the prisoner's relatives or others give them to him and they have not yet been used, the giver is punished by one hundred blows with the heavy stick. If as a result of obtaining an edged or pointed metal implement, etc., the prisoner is able to run away, or wound or do harm to himself, or wound another person, the giver of the object is punished by one year of penal servitude. If the prisoner kills himself or kills another person, [72] the giver of the object is punished by two years of penal servitude. If the prisoner's original crime was punished by life exile or more and because of getting the edged or pointed metal implement or other object he is able to run away, even if no one is killed or wounded, the giver of the object is also punished by two years of penal servitude. ARTICLE: 470.2—If the prisoner runs away before he has been sentenced, and he is able to be recaptured or another person captures him, or the prisoner [2b] surrenders himself or kills himself, the punishment will be reduced one degree in each case. 470.3—If a son or grandson in the male line gives his paternal grandparents or parents objects they can use to free themselves; or a personal retainer or slave gives them to their master, their punishment is the same. SUBCOMMENTARY:This means that the prisoner because of getting the edged or pointed metal implement or other object is able to free himself and run away. Whether the giver of the object is able himself to arrest the runaway before sentence is passed, or another person does so, or the prisoner comes back and surrenders or kills himself, or another person kills the prisoner, it is the same. The punishment is reduced one degree in each case. . . . If a son or grandson in the male line gives objects that can be used to free oneself means that with reference to grandsons in the male line that great grandsons in the male line and great- great grandsons in the male line are treated the same. If they give something to their paternal grandparents or parents, or personal retainers or slaves give something to their master, both cases are punished the same as if they were persons of non-kin status. They also cannot themselves improperly make arrests. If an official goes after and arrests the prisoners and sends them to the authorities, there will be no punishment. But if the sons or grandsons in the male line themselves arrest their

Article 47ί

539

paternal grandparents or parents, it will be treated the same as under the law on 3 accusing them to the court. If the prisoner wounds or kills someone, then runs away and is arrested later, the person who gave any object to the prisoner will be punished for that wounding or killing. His punishment will not be reduced.

Article 471 Criminals Whose Cases Have Ended with Their Being Condemned to Death ARTICLE: 471.1—All cases of criminals whose cases have ended with their being condemned to death and whose relatives or old friends, at the criminal's request, hire or request someone to kill him, or kill him themselves, punish each of them two degrees less than the criminal. 471.2—If the criminal does not request that someone be hired or asked to kill him, nor is his case ended, yet he is killed, all of those involved are punished for killing or wounding in an affray.6 If the punishment reaches the death penalty, life exile with added labor is substituted. SuBCOMMENTARY:This means that the criminal's case has ended with his being condemned to death and the criminal's relatives within the fifth degree of mourn­ ing or old friends, at the criminal's request, hire or request someone to kill him and he is killed. Both the persons who at the criminal's request hired or asked someone to kill him and the one who did kill him, following the relevant laws concerning relatives of a higher and lower generation or persons of high or low status, are punished as for killing, reduced two degrees. 7 If the criminal does not request his relatives or old friends8 to hire or ask someone to kill him, or if the criminal makes such a request while the case has not yet ended and is killed, the person he sent with the request as well as the persons who were hired or asked to kill him are all punished as for killing in an affray, according to whether they are of a higher or lower generation or of higher or lower status than the criminal. If the punishment reaches the death penalty, life exile with added labor is substituted. QUERY:Where the crime is punished by the death penalty, but the case is not yet ended, nor does the accused request that someone be hired or asked to kill him, 5

See Article 345 above. The punishment under that law is strangulation. "See Articles 302-306 above. 'The various laws affecting this situation are in section 10, entitled Miscellaneous Articles.The same is true for the situation set forth immediately below. Tai, Specific Articles, p. 302, points out that this crime also comes under the eighth of the ten abominations, called discord. See Vol. I, p. 61, Article 6, and the discussion on pp. 17 ff. "Chih $H should be read ku ift, following the KHCPTS edition.

540

Article 472

yet the accused's relatives or old friends do hire or ask a person to kill him and the accused is killed, what is their punishment? REPLY: If the case is ended but the accused does not request that someone be hired or asked to kill him, or even though he does make such a request the case is not yet ended, these two crimes are both punished as for killing in an affray. If the punishment reaches the death penalty, life exile with added labor is substi­ tuted. [73] If the case is not yet ended and, further, the accused does not [3b] request that someone be hired or asked to kill him and yet he is improperly killed, all such cases are treated the same as under the law on killing in an affray. If the punishment reaches the death penalty, they are condemned to death and are not sent into life exile with added labor as a substitute. ARTICLE: 471.3—Even if the case is ended, if a son or grandson in the male line kills or has his paternal grandparents or parents killed, or a personal re­ tainer or slave kills or has their master killed, they are punished as for intentional killing in an affray.9 SUBCOMMENTARY: The case is ended means that the death penalty has been sentenced. If a son or grandson in the male line, even though requested by his paternal grandparents or parents, improperly kills them or has them killed, or a personal retainer or slave does the same for their master, all of them are punished for intentional killing. The son or grandson in the male line commits the crime of contumacy. 10 The personal retainer or slave will not be exempted from punishment even by an amnesty. The person who was hired or asked to kill, as above, will be punished as for killing in an affray, reduced two degrees.

Article 472 Custodial Officials Who Instruct Prisoners on How To Change Their Statements ARTICLE: 472.1a—AU custodial officials who take bribes from prisoners and instruct them on how to change their statements, or transmit messages for prisoners, according to how the prisoner's sentence is affected as a result, are punished for subverting the law.11 If the bribe is worth fifteen p'l of silk, the punishment is life exile with added labor. If the bribe is thirty p'i of silk, the punishment is strangulation.

'See Article 306 above. The punishment is decapitation '"This is the fourth of the ten abominations. See Vol ι, ρ 61, Article 6. "See Article 138 above, where these punishments are set out.

Article 472

541

[4a] SUBCOMMENTARY: Custodial official means one who is especially in charge of the prisoners, such as a jailor. If he takes bribes from the prisoners and instructs the prisoners on how to change their documentary statements or takes what is said by officials and witnesses and transmits these reports to persons outside the prison, so that the prisoners' punishment is increased or decreased, he is punished for subverting the law, following the law for those who have no salary subverting the law.12 The punishment for taking a bribe worth one ch'ih of silk is ninety blows with the heavy stick, increased one degree for goods worth each further one p'i of silk. For goods worth fifteen p'i of silk, the punishment is life exile with added labor; for goods worth thirty p'i of silk, strangulation. ARTICLE: 472.1b—If the illicit goods would be punished less severely, or the official did not take a bribe, the punishment is as for intentionally decreasing or increasing a persons punishment, reduced one degree. 13 472.2a—If the prisoner's punishment is not affected, the punishment is fifty blows with the light stick. 472.2b—If a bribe is taken, the punishment is for taking goods and articles within the sphere of jurisdiction. 14 472.3—If the crime was committed by someone other than a custodial official, the punishment is reduced one degree. SUBCOMMENTARY: If the illicit goods would be punished less severely means that the punishment for the illicit goods would be less than that of the prisoner reduced one degree. Or, if the official did not take a bribe but only transmitted messages, which affected the prisoner's being given the death sentence, then the official is sentenced to life exile at a distance of 3,000 Ii. . . . If the prisoner's punishment is not affected, but the official does take a bribe, his punishment is for taking goods and articles within his sphere of jurisdiction. The punishment for a bribe worth one ch'ih of silk is forty blows with the light stick, increased one degree for each further one p'i of silk. Where the bribe is worth eight p'i of silk, the punishment is one year of penal servitude. If the crime is committed by someone other than a custodial official means someone who is not in charge of the prisoners. . . .

,2 See Article 138 above. The punishment for officials who have no salary is reduced one degree, as described below. "See Article 487 below.The punishments vary according to how the prisoner's punishment is affected. "See Article 140 above. The punishment is spelled out in the subcommentary below to this article.

542

[74]

Article 473

Article 473 Giving Prisoners Clothing, Food, Medical Care, and Medicine

ARTICLE: 473.1a—All cases where prisoners should be allowed to request and be given clothing, food, medical care, and medicine, and they are not; or where their family members should be allowed to see them and they are not; or where their cangues, fetters, and manacles should be removed, and they are not, are punished by sixty blows with the heavy stick. 473.1b—If death occurs as a result, the punishment is one year of penal servitude. 473.2a—If rations are decreased, the punishment is fifty blows with the light stick. 473.2b—If death occurs as a result, the punishment is strangulation. SUBCOMMENTARY: According to the Statutes on Prison Officials: "The officials shall provide clothing and rations to any prisoner who is far away from his family, and whose provisions are thus cut off. O n the day when his family members arrive, they shall be required to pay for this according to the amounts that have been provided."13 "If any prisoner is sick, the officer in charge should prepare a report."16 As for these types of request for aid which are allowed, where the official in charge does not make the request or does not give the aid—according to the statute, if the illness is severe, one of the prisoner's family members should be allowed to enter the prison to see him, and this is not permitted. Or, if the prisoner's cangue, fetters, and manacles should be removed and the officer does not allow them to be removed. The official who is responsible is punished by [5a] sixty blows with the heavy stick. If death occurs as a result means the request is not made or that even though the request is made, the clothing, food, medical attention, and medicine are not given. Or, though the illness is severe, the prisoner's family member is not permitted to enter the prison and see him. Or, the cangue, fetters, and manacles are not removed. If death results because of this, the responsible official is punished by one year of penal servitude. . . .

"Nuda, Statutes, p. 791. 16 Ibid., p. 790. The statute goes on to state: "The senior official responsible should make a personal enquiry and verify the true facts, and having done so provide medicine to assist in his cure. If the illness is severe, his fetters, cangue, and chains shall be removed, and in addition one member of his family should be permitted to enter the prison to care for him. Should any prisoner die, if it is from some other cause, then the case must be investigated and a decision reached as to the person responsible in accordance with the statement of circumstances."

Article 414

543

Article 474 Those Who Have the Privileges of the Eight Deliberations, Petition, Reduction of Punishment, or Are Aged or Juvenile ARTICLE: 474.1a—In all cases involving those who have the privileges of the eight deliberations, petition, reduction of punishment, or who are seventy years of age or more, or fifteen years of age or less, or are disabled,17 judicial torture {k'ao-hsitn ^%!?¾ is not allowed. Rather, their guilt is determined by the testimony of a group 18 of witnesses.Violations are punished depending upon whether they were intentional or accidental. 474. Ib—If the witnesses' testimony is not sufficient to determine guilt, the person who made the accusation to the court is not reciprocally punished. 19 SUBCOMMENTARY: . . . [5b] Violations are punished depending upon whether they were intentional or accidental means that where a person should not be but is intentionally judicially tortured, and death results because of the misapplication of judicial torture, the punishment follows the article below on officials who decrease or increase a person's punishment. 20 Where the punishment is not affected but the person has been wrongfully judicially tortured, the law on beating a person who should not have been beaten is followed, and the punishment is as for killing or wounding in an affray.21 Where the punishment reaches the death penalty, life exile with added labor is substituted. But whether intentional or accidental, the punishment is as for killing or wounding in an affray.22 If the witnesses are not a full three persons, then the person who made the accusation to the court will not be reciprocally punished, but neither will the accused be punished. QUERY: Suppose the crime of which an accusation has been made to the court has two witnesses. One witness says that the accused is guilty, one witness says that the accused is not guilty. The testimony then is not sufficient to determine guilt. Is the sentence then for a doubtful offense or not?23 [75] REPLY:The article states: "Guilt is determined by the testimony of a group of witnesses." Reference to a group means three persons or more. But if testimony is not sufficient to determine guilt, the person who made the accusation to the court is not punished reciprocally. In investigating, there are difficulties in "On this privilege, see Articles 8—11, particularly number 11, and the discussion on pp. 23 ff. 18 A group (chung 3c) means three or more persons. See Vol. I, p. 265, Article 55. "On reciprocal punishment, see Article 342 above. 20 See Article 487 below. The punishment for the guilty official varies. 2, See Articles 302-306 above for the different punishments. —Killing or wounding by accident is covered in Article 339 above It provides that the punishment may be redeemed by payment of copper. 25 See Article 502 and my article on doubtful offenses in Chinese Ideas on Nature and Society: Studies in Honour of Derk Bodde (Hong Kong: Hong Kong University Press, 1987).

544

Article 475

understanding. If two witnesses' testimony are that the accused is guilty is still insufficient to determine guilt, how much more then when one witness says that the accused is guilty and one witness says that the accused is not guilty. The accused cannot be punished. The accuser also escapes punishment. If there were no witnesses, then there must be a hearing to examine whether the accusation is true or false, and sentence according to the circumstances.24 If three witnesses say that the accusation is true and two 2 ' witnesses say that it is false, this is called a doubtful offense. However, this is only for those named above. Aside from these persons, judicial torture is used to obtain the true circumstances of a crime. If when the judicial torture is completed, 26 the accused [6a] has not admitted guilt, then the accuser is judicially tortured. Determination of guilt is not dependent upon the testimony of witnesses. ARTICLE: 474.2—Those who according to law are allowed mutual concealment,27 or are eighty years of age or more, ten years of age or less, or are incapacitated, cannot be called as witnesses.28 Violations are punished by the punishment for the criminal reduced three degrees. SUBCOMMENTARY: . . .

Article 475 Prisoners Who Implicate Others as Accomplices ARTICLE: All cases of prisoners who wrongly implicate others as accomplices are punished for false accusation.29 Where the relevant punishment is death, the prisoner will be pumshed by added blows with the heavy stick comparable to life exile or penal servitude,30 or make redemption by payment of copper. SUBCOMMENTARY: Prisoners who wrongly implicate others as accomplices refer to a person whose robbery is discovered wrongly implicating others as having taken part in the robbery. [6b] Or one who has killed a person wrongly implicating another man as having taken part in carrying out the crime. . . . 24

See Articles 340-344 concerning the truth or falsity of accusations TaI, Specific Articles, p. 304, points out that the Sung Code (Sung hsing-lung ^Jf 1 JSt) has three rather than two witnesses saying that the accused is not guilty. However, this reading is not in any extant edition of TlieT'ang Code. In its favor is the statement in Article 502 that the testimony for and against guilt is equal. 26 See Article 477 below. No one could be beaten more than the number of blows for the alleged offense, if it were punished by beating with the heavy stick or less. For more serious crimes, the limit was two hundred blows, spread over three time periods 27 For this group, see Vol l, p. 246,ArOcIe 46. 28 The reason for this is that witnesses could also be judicially tortured. See Article 344 above. 29 See Article 342 above. Save for the death penalty, the accuser received the punishment for the false accusation. w See Vol. i, p. 166, Article 29, for the equivalents in blows to life exile and penal servitude. 25

Article 476

545

Article 476 Examination of the Written Statement in Interrogating a Prisoner ARTICLE: 476.1—In all cases where a prisoner is to be interrogated, the circumstances must first be considered.31 Then the documentary statement (tz'u jf?) and the reasoning must be examined. This must be done repeatedly. If a decision still has not yet been reached, then the prisoner may be interrogated under torture. Such a joint agreement must be included in the case file (li-an t'ung-pan J X ^ I R J ^ I J ) . Only then may interrogation under torture be used.Violations are punished by sixty blows with the heavy stick. SuBCOMMENTARV.According the Statutes on Judicial Ofiicials:"All investigating officials trying a case should first carry out the five types of scrutiny (wu-t'ing 5 Iu), 32 and investigate thoroughly all the testimony. If there is anything doubtful in the statement of the facts of the case, and the accused will still not make his confession of guilt, only then may judicial torture be applied."33 . . . Included in the case file means having secured the agreement of the senior official. Only then may judicial torture be used. If there is only a pretence at an investigation and judicial torture is used on an official's own decision, without the agreement of the senior official, or if improper judicial torture is used without having repeatedly considered the circumstances and repeatedly examined the documentary statement and reasoning, the punishment is sixty blows with the heavy stick. [7a; 76] ARTICLE: 476.2—If the illicit goods and the circumstances of the crime have been investigated and disclosed and no reasonable doubt exists (tsangchuang lu-yen Ii pu-k'o-yi $$Jt^!SlisS-^f- ^T 1¾), even if the accused will not admit his guilt, he can be sentenced based on the evidence. 476.3—If the crime has already been amnestied it must still be fully investigated, but judicial torture is not allowed. CoMMENTARYtThis refers to such actions as removal from the community after an amnesty, or disenrollment or resignation from office.34 SUBCOMMENTARY: The illicit goods and the circumstances of the crime have been investigated and disclosed means that the calculated amount of illicit goods 3,

Nnda, Statutes, p. 781, has a passage recorded in the Sung Code, to the effect that after the interrogation is over, the accused should be ordered to write a confession. If he is illiterate, his oral statement should be taken down by a clerk. 52 The five types of scrutiny go back to the Rites of Chou. Chou-li, "Hsiao ssu-k'ou," p. 524; Biot, υ, 320.They are scrutiny of the accused's statements, expressions, breathing, reactions to the judge's words, and eyes. 33 Nnda, Statutes, p. 779 34 SeeVol. I, p. 119, Article 18, on disenrollment and resignation from office after an amnesty. Where the subcommentary below merely repeats the details of this article, I have not translated it.

546

Article 477

have been seized, and where a person has been killed the true circumstances have been examined. If the illicit goods and the circumstances of the crime are both clearly understood, and the reasoning is not in doubt, even though the accused does not admit guilt, sentence can be passed based on the circumstances. . . .

Article 477 A Prisoner May Not Be Judicially Tortured More than Three Times ARTICLE: 477.1a—In all cases, a prisoner may not be judicially tortured more than three times. The number of blows may not exceed two hundred. Beatings with the heavy stick or less may not exceed the punishment for the crime. 477.1b—If the judicial torture is completed without the accused admitting guilt, a guarantor (pao 1¾)33 is sought and the accused is released. [7b] SUBCOMMENTARY: According to the Statutes on Prison Officials: "Each interrogation under torture shall be separated from the preceding one by twenty days. If before they have been completed, the accused is transferred to another jurisdiction where he still ought to be questioned under torture, then the number of blows already administered in previous interrogations should be calculated in completing the total of three times." 36 .. . Beatings with the heavy stick or less may not exceed the punishment for the crime, . . . but if the crime is punished by one year of penal servitude, the judicial torture may include a full two hundred blows. . . . ARTICLE: 477.2a—If judicial torture exceeds a total of three times, or if the accused is judicially tortured using other methods, 37 the punishment is one hundred blows with the heavy stick. 477.2b—If the number of blows exceeds two hundred, the investigating official is reciprocally punished with the excess. 477.2c—If the accused dies as a result of the beating, the official conducting the interrogation is punished by two years of penal servitude. SUBCOMMENTARY: If judicial torture exceeds a total of three times means that even though two hundred blows are permitted, still there may not be more than three periods of judicial torture. If the accused is judicially tortured using other methods means that the accused is judicially tortured by means other than the legal heavy stick, namely, suspended by rope, or tied up, or beaten with a club. . . . [8a] 35

On guarantors, see Article 386 above. Nnda, Statutes, p. 779. "Judicial torture used the interrogation stick (hsuti-ch'iu chang lftEI|jt).Niida, Statutes,^. 793, gives the measurements as approximately three feet in length, 0.32 inches at the thick end and 0.22 inches at the thin end. The blows were divided between the back, buttocks, and thighs. 36

Article 478

547

ARTICLE: 477.3a—If the accused has a skin disease or another illness and is judicially tortured before he has recovered, the punishment is one hundred blows with the heavy stick. 477.3b—If punishment with the heavy or light stick is administered, the punishment is fifty blows with the light stick. 477.3c—If the accused dies as a result, the punishment is one and one— half years of penal servitude. 477.4a—If the accused is being judicially tortured in accordance with the law and [77] dies unexpectedly, the official conducting the interrogation will not be punished. 477.4b—The senior official and others must conduct an investigation of the death.Violations will be punished by sixty blows with the heavy stick. COMMENTARY: 477.5—If there are mistakes in administering judicial torture, the existence of a case file is not relevant. SUBCOMMENTARY: . . . (If the accused dies,) the senior official and his subordinates must personally conduct an investigation in order to know that death did not result from another cause. All the facts must be written down and put in the file.38 If the senior official and the others do not investigate, the punishment is sixty blows with the heavy stick. The commentary states: "If there are mistakes in administering judicial torture, the existence of a case file is not relevant." This means where there are mistakes in interrogating the accused, or in administering beating with the heavy or light stick, whether or not they have a file is not relevant. Following the Articles on Administrative Regulations, "Where these offenses are committed by mistake, the punishment is reduced three degrees in each case."39

Article 478 Completion ofJudicial Torture without the Accused Confessing ARTICLE: 478.1a—In all cases where judicial torture has been completed without the accused confessing, the accuser is then judicially tortured. 478.1b—If the accusation to the court was made by a family member or relative of a person who was killed or whose house was robbed, he will not be judicially tortured in turn. COMMENTARY: Those who have suffered damage or loss from water or fire are treated the same. 38 Ibid.,p 779, adds that the person responsible for the death must be questioned by the senior official and the censorate official. 39 See Article 92 above. The punishment would be seventy blows with the heavy stick.

548

Article 478

ARTICLE: 478.1c—If judicial torture of the accuser is completed without the accuser confessing, both the accused and the accuser furnish a guarantor and are released.40 478.2—Violations are punished according to whether they are intentional or mistaken. SUBCOMMENTARY: . . . Judicially torturing the accuser means that he receives the same number of blows as the accused. . . . Because the crimes of killing and robbery are punished severely, many are concealed. If the person who made the accusation would be judicially tortured, some would not dare speak about such crimes. . . . Violations are punished according to whether they are intentional or mistaken mean that where the accuser should be judicially tortured and is not, or where the accuser should not be judicially tortured and is, where this is intentional, the punishment follows the law on intentional decrease or increase of punishment. Where it is mistaken, the punishment follows the law on mistaken decrease or increase of punishment. 41 Where the accused and the accuser furnish a guarantor and should be released but are not, punishment follows the law on those who should not be imprisoned but are.42 If they are not allowed to furnish a guarantor, this violation of the [9a] Code is punished following the law on doing what ought not to be done.Where the accused s punishment would have been life exile or more, the punishment is the heavier provided by that law, and where it would have been penal servitude or less, by the lighter.43 QUEKY: The article states that where judicial torture of the accused has been completed without his confessing, the accuser is then judicially tortured. But suppose the accuser is a person who has one or more of the privileges of deliberation, petition, or reduction of punishment. 44 Since such a person cannot be judicially tortured, how is this to be decided? REPLY: When the article says that the accuser is judicially tortured in turn, it is clear that the number of blows must correspond to those received by the accused. If the accused has received a maximum of one hundred blows with the heavy stick and did not confess, the accuser also received one hundred blows. This is called judicially torturing the accuser in turn. Where the accuser has one or more of the privileges of deliberation, petition, and reduction of punishment, he may not be judicially tortured in turn. So he must make payment of

40

On guarantors, see Article 386 above ""See Article 487 below.The punishments vary depending upon whether or not they have been administered to the victim. 42 Article 469 above punishes this by thirty blows with the light stick. 43 See Article 450 above.The two punishments referred to are those provided in this catch-all article. «See Vol. i, pp. 83-100, Articles 7-11, and the discussion on p. 23 ff.

Article 480

549

copper in accordance with the number of blows received by the accused during judicial torture. 45

[78]

Article 479 Prison Officials' Detention of Prisoners for Direct Confrontation

ARTICLE: All cases where a prison official making interrogations detains a prisoner in order to have a confrontation by another person, permit him to send a direct letter to another official, even though that official is not under his authority, to have that person apprehended and sent to him. If when the the other official receives the letter, he does not immediately apprehend that person and send him, he will be punished by fifty blows with the light stick. For delays of three days or more, he will be punished by one hundred blows with the heavy stick. COMMENTARY: Even though the first official is in a lower office, it is still permitted. SUBCOMMENTARY: A prison official who is making interrogations means the official in charge of the investigation. Detaining a prisoner for a direct confrontation refers to the prisoners confederate at present being in another place and the prison official wishes to have that person sent to confront the prisoner. Even though the other official is not under his authority, he is permitted to send a direct letter. Reference to direct letter means that the letter does not have to go [9b] through higher officials but can be sent directly. The commentary states: "Even though the first official is in a lower office, it is still permitted." Suppose the Supreme Court of Justice or a prefecture or county official wants to have a person sent from a department or the Censorate. They may send a direct letter to have that person sent to them. When the direct letter arrives, the person must be sent. . . .

Article 480 Interrogation According to the Circumstances of the Accusation ARTICLE: In all cases, the prison official's interrogation must follow the circumstances in the accusation to the court. If he goes outside of these relevant circumstances and particularly seeks information about other crimes, he will be punished for intentionally decreasing or increasing a person's punishment. 46 45 The commentary to each of the five punishments lists an amount of copper as equivalent. See Vol. i, pp 55-61, Articles 1-5. 46 See Article 487 below.The punishments vary, but note that where the crime was intentional the punishment is much heavier.

550

Article 481

SUBCOMMENTARY: . . . If the prison official goes outside of the relevant circumstances and makes still other investigations about crimes punished by the light stick, the heavy stick, penal servitude, life exile, or death, he will be punished for intentionally decreasing or increasing a person's punishment. If because of the circumstances of the accusation to the court, arrests can be made or searches made, which result in the investigation of other crimes, then they may be investigated. If supervisory or custodial officials know of other crimes in the areas under their authority than those alleged in the circumstances of the accusation to the court, they can initiate a warrant and make further investigations. However, they may not make improper investigations because of the circumstances of the previous accusation to the court. Officials other than those of supervisory or custodial status may not initiate separate investigations aside from the circumstances.

Article 481 [10a]

Moving Prisoners to One Location for Sentencing

ARTICLE: 481.1—All cases where a prison official is making an interrogation and the prisoners and their accomplices are located in different places, permit him to move them to the place where they were first imprisoned and sentence them together.Violations are punished by one hundred blows with the heavy stick. CoMMENTARY:This means that those whose crimes are less serious are moved to where those whose crimes are more serious are. Or where the crimes are punished equally, the smaller number of prisoners is moved to where the larger number is. If the numbers are the same, those who were captured later are moved to where those who were imprisoned first are. If the places where there they are imprisoned are more than one hundred Ii apart, each group is sentenced where their crimes were discovered. SUBCOMMENTARY: . . . Suppose several counties are separated from each other by one hundred Ii. In the eastern county there are criminals who have been imprisoned. In the western county crimes also have been discovered. These crimes are connected and the criminals should be confronted with each other and interrogated. It is permitted to move those whose crime was discovered later to the place where the first group is imprisoned. . . . If the places where they are imprisoned are more than one hundred Ii apart, each group is sentenced where their crimes were discovered. [79] This is for fear that in moving the prisoners, some may be lost. Further, there is concern about the circumstances being disclosed. Therefore they are sentenced where they are. . . .

Article 481

551

ARTICLE: 481.2—If the law would be violated in moving the prisoners, then the investigation should be at the place where they are kept at present and an official letter confirming this should be sent to the next highest administrative level. The place to which the prisoners were brought must keep them and make an investigation. If the prisoners are brought to a place and not kept there or are kept there without a report being sent up, the punishment is the same as for moving the prisoners. SuBCOMMENTARY:Violating the law in moving the prisoners refers to such things as those whose crimes are more serious are moved to the place where those whose crimes are less serious are. Or, the larger number of prisoners is moved to where the smaller number is. Then the investigation is at the place where they are at present. This means the place to which the prisoners were brought must accept them and make an investigation. An official letter must be sent up to the prefecture under which authority they are and an investigation initiated .This means that when two counties have prisoners they communicate with the prefecture, or when two prefectures have prisoners they communicate with the Department [of State, i.e., the Ministry of Justice]. In all cases, the investigation and examination shall follow the circumstances. If the place to which the criminals were brought is not willing to keep them, or does keep them without communicating with the next highest administrative level, then the punishment is the same as for the unauthorized movement of prisoners—one hundred blows with the heavy stick. If the unauthorized movement of the prisoners is to counties that are attached to different prefectures, then the county that has received the prisoners must communicate with the prefecture to which it belongs. The official letter is then transferred to the prefecture from which the prisoners were sent, and the investigation is made in accordance with the law. This type of movement of prisoners refers to where the crimes are discovered in two different jurisdictions. If the crimes are discovered within one jurisdiction, then no matter how far away they were from each other, a direct letter can be sent to have the prisoners sent to him.Violations are punished according to the law above.47

Article 482 Administering Punishment Not in Accordance with the Law ARTICLE: 482. Ia—All cases of administering punishment not in accordance with the law are punished by thirty blows with the light stick. "See Article 479 above.The punishment is fifty blows with the heavy stick if the prisoners are not sent immediately After three days, it rises to one hundred blows with the heavy stick. Note

552

Article 482 482.1b—If death occurs as a result, the punishment is one year of penal servitude. 482.2—If the thickness and length of the heavy stick are not in accordance with the law, the punishment is the same.

SUBCOMMENTARY: According the Statutes on Prison Officials:"In administering beatings with the light stick, the blows shall be divided between the buttocks and thighs. In administering beatings with the heavy stick, the blows should be equally divided between the back, buttocks, and thighs. Beatings administered as judicial torture also follow this rule. "Criminals sentenced to beating with the light stick or less are permitted if they wish to receive the blows equally distributed between the back and thighs."48 The administration of punishment that does not follow this article of the Statutes [Ha] is not in accordance with the law and is punished by thirty blows with the light stick. If death results from administering punishment not in accordance with the law, the punishment is one year of penal servitude. According to the statute: "The heavy stick should have all the knots or nodes shaved smooth, and be three ch'ih,five ts'un (approx. 40 inches) in length.The heavy stick used in interrogating prisoners should be three fen, two Ii (0.32 of one inch) in diameter at the thick end, two fen, two Ii (0.22 of one inch) at the thin end. The heavy stick for regular use should be two fen, seven Ii (0.27 of an inch) at the thick end, and one fen, seven Ii (0.17 of an inch) at the thin end. "The light stick should be two fen (0.2 of an inch) in diameter at the thick end, one fen and a half (0.15 of an inch) at the thin end."49 This means that if the length and thickness of the heavy stick are not in accordance with the statute, the punishment is thirty blows with the light stick. If death occurs as a result, the punishment is one year of penal servitude. Therefore it is stated that the punishment is the same.

the difference between the two laws. Article 479 deals with only one crime, but the confederates of the criminal are in another place. The article here deals with two crimes where the criminals are in different jurisdictions. 48 Niida, Statutes, p. 793. I don't understand the phrase "light stick or less," since there was no corporal punishment lighter than beating with the light stick. Perhaps there is a misprint and heavy stick is meant. •"Ibid.

C H A P T E R XXX

[la; 79]

Article 483 A Supervisory Official Who Beats a Person with the Heavy Stick

ARTICLE: 483.1—All cases of a supervisory officials who because of a public matter himself uses a heavy stick to beat a person to death, or causes them to die from fear, will be punished for accidentally killing a person in each case.1 483.2—If he uses a large stick or the person is beaten or hit by his hands or feet so as to break a tooth or more or cause a wound, the punishment is as for killing or wounding in an affray, reduced two degrees. 2 SuBCOMMENTARY:This refers to officials who commit this act because of being in charge of an office or investigating a case, and not because of any private circumstances. . . . [80] It is the same whether the official himself hits him or has another person do so. [Ib] . . . ARTICLE: 483.3—Even though they are supervisory and custodial officials, by law they should not administer punishment. Where the person should not be judicially tortured but is, they are punished as for killing or wounding in an affray. Where the punishment reaches the death penalty, life exile with added labor is substituted. 483.4—If an edged or pointed weapon is used, the punishment follows the law on killing or wounding in an affray in each case.3 SUBCOMMENTARY: Even though they are supervisory and custodial officials, by law they should not administer punishment means that officials who do not sentence crimes or who are not in control of prisoners may not improperly administer beatings. Suppose a person commits a crime punished by penal servitude or more and should be turned over to the legal officer. The prisoner is not turned over to the legal officer, but rather the clerk of the section that has the prisoner himself administers punishment. 'See Article 339 above. Accidental killing could be redeemed by payment of copper based on the amount needed to redeem the death penalty, which is 120 chin. The payment went to the deceased's family. 2 See Articles 302-306 above. The punishments differed a great deal depending upon status. The main point here is that the official is protected against the death penalty. Since any punishment is reduced two degrees, the most he can suffer is three years of penal servitude. Even in the situation described below, the maximum punishment is life exile with added labor. Only in the last part of the article, where a knife is used, can the official be punished by death. 3 See the definition of a sharp implement in Article 304 above.

554

Article 484

Where the person should not be judicially tortured means that the person has not committed a crime, or even though he has committed a crime, has privi­ leges such as replacement of punishment by office or redemption by payment of copper. . . . QUERY: If a village headman, a ward headman, a hamlet headman, or a clerk, because of a public matter, administers punishment and the person dies. What is the punishment? [2a] REPLY: A village headman, a ward headman, or a hamlet headman can only pursue and restrain criminals.They cannot beat them with either the light or the heavy stick. If they do beat or hit a person because of a public matter, it is reasonable that they should be punished as if for an ordinary affray. A clerk examines requests. It is reasonable that this is not a job where punishments are carried out. If he beats a person because of a public matter, he should be treated the same as a village or other headman.

Article 484 Citation of the Code, the Statutes, the Regulations, and the Ordinances in Sentencing ARTICLE: 484.1—All sentences of crimes must cite a formal provision of the Code, the Statutes, the Regulations, or the Ordinances. Violations are pun­ ished by thirty blows with the light stick. 484.2—If an article covers many offenses, it is permitted to cite only the portion that covers the crime. SUBCOMMENTARY: . . . If there is an error in citation . . . the punishment is thirty blows with the light stick. As for an article covering many offenses, this is illustrated by the General Principle "Where two or more offenses are discovered together, the heavier punishment is sentenced. . . . In repeated crimes concerned with illicit goods, the value of the illicit goods is combined in sentencing." 4 Suppose a man com­ mits the crime of robbery twice, neither one of which involves illicit goods. [81] The official sentencing the crime only cites that part of the article where two or more offenses are discovered together. He does not cite that part of the article dealing with crimes concerned with illicit goods. This is permitted.

4

VoI. ι, ρ 235, Article 45.

Article 485

555

Article 485 Not Making Required Reports to Superiors [2b] ARTICLE: All cases of sentencing a crime where a report must be made to superiors and is not, or a reply must be awaited and is not, but the official sentences the crime and administers punishment on his own responsibility, are punished for being intentional or mistaken in each case, reduced three degrees. SUBCOMMENTARY: According to the Statutes on Prison Officials:"[Whenever an offence is committed,] punishments of beating with the heavy stick or less may be administered by the county. In cases punished by penal servitude or more, the county sentences the case and refers it to the prefecture.When the prefecture has completed a review, punishments of penal servitude, life exile replaced by beating with the heavy stick, cases of those who have the privilege of redeeming punishment by a payment of copper, then in these cases where punishment is administered, the criminals are sent into penal servitude or life exile, or the punishment is redeemed by payment of copper. "When the Supreme Court of Justice and the Metropolitan administrations of Ch'ang-an and Lo-yang have sentenced punishment of penal servitude, or crimes committed by officials, in all cases where later there is a pardon or reduction in punishment this should be reported to the Department (i.e., the Department of State) and the office of the Ministry (i.e., the Board of Justice) should scrutinize it in detail. If there are no errors, then the sentence should be reviewed and passed down to the office concerned. If there is anything incorrect in the judgment, then it should be rectified. "When the Supreme Court of Justice or the various prefectures pass sentence of life exile or more, if it involves disenrollment, resignation, or replacement of punishment by office, then all the facts should be compiled together into a file and sent to the Department. "If when the dossier has been reviewed it is completely in order, then the judgment will be reported to the throne. [Should there be anything in the judgment that is incomplete, if the case arises in the provinces an envoy should be sent to review it, if it arises in the capital it should be called back to the Board of Justice for review and final decision.]" 5 Whatever is not in accord with this statute constitutes the crime of what must be reported to superiors and is not. Where a case has been referred to superiors constitutes the crime of where a reply must be awaited and is not. An official who sentences the crime and administers punishment on his own responsibility is punished for being intentional or mistaken in each case, reduced three degrees. This means that if the official intentionally does not report to superiors or s

Niida, Statutes, p. 757.1 follow Niida in leaving out a section of this statute.

556

Article 486

intentionally does not wait for a reply, he is punished by the sentence for the crime, reduced three degrees. If the official by mistake does not report to superiors, or by mistake does not wait for a reply, following the Articles on Administrative Regulations, mistakes in public affairs have the punishment reduced three degrees further.6 But if he does not wait for a reply about a sentence of death and improperly administers it on his own responsibility, following the article below, he will be punished by life exile at a distance of [3a] 2,000 Zi'.7

Article 486 Sentencing in Accord with an Imperial Deaee or Imperial Edict ARTICLE: In all cases, the use of an imperial decree or imperial edict for sentencing is only a temporary expediency and is not intended to be a permanent regulation. They may not be cited analogically at a later time. If they are improperly cited and cause the punishment to be decreased or increased, the official will be punished for intentionally decreasing or increasing a sentence. 8 SUBCOMMENTARY: At times the Lord of Men finds it fitting to use his power to make judgments by an imperial decree or an imperial edict. H e weighs the circumstances in making decisions for the time. . . .

Article 487 An Official Who Decreases or Increases a Person's Punishment ARTICLE: 487.1a—All cases of an official who decreases or increases a person's punishment, COMMENTARY: This means such things as intentionally to add or subtract from the circumstances sufficiendy to change the punishment. Or, hearing that there will be an amnesty, intentionally sentencing the crime and administering punishment. Or, giving instructions or ordering the prisoner to change his testimony or cause the loss of a true written statement. ARTICLE: If the person is innocent, the official receives the whole of such punishment. 'See Article 92 above. 'See Article 497 below. •Ibid.

Article 487

551

SUBCOMMENTARY: An official increasing a person's punishment means to do so through false testimony or by wrongly bringing in heterodox principles use circumstances to forsake the law and perversely [3b] cause punishment. . . . Reference to such things means that though there is not an amnesty, there is a regulation or ordinance that changes the punishment. Or even if the official does not give instructions on changing testimony he does scare the accused into changing his statement. There are many such circumstances, therefore the words such things are used. . . . [82] COMMENTARY: Even though the official increased the punishment, if the persons are allowed redemption of punishment by payment of copper or if they receive added blows with the heavy stick, the official's punishment can only follow the laws on redemption by payment of copper or added blows with the heavy stick. SUBCOMMENTARY: Suppose the punishment for an official, a person who has protection, or a person who is disabled is increased to life exile. If the persons may make redemption by payment of copper, the official is also allowed to make redemption by payment of copper. 9 Or, suppose the punishment for an official bondsman, a personal retainer, a slave, or the only adult male in a household is increased.10 If the person is punished with added blows with the heavy stick, the official is also allowed to make redemption by payment of copper following the law on added blows with the heavy stick." In none of these cases is the official's office used to replace punishment, nor is he sent into life exile, or to manual labor. These are cases where the official has increased punishment and are not the same as the law dealing with false accusations.12 ARTICLE: 487.1b—If a lighter punishment is increased to a heavier punishment, the official is punished by the excess. 487.2a—If the means of punishment are changed, as beating with the light stick being increased to beating with the heavy stick, or penal servitude being increased to life exile, the official is also punished by the excess. CoMMENTARY:Where penal servitude is increased to life exile, all three kinds of life exile are equivalent to one year of penal servitude with regard to excess. 'See Vol. I, pp. 93-100, 101-102, and 169-176, Articles 11, 13, and 30. '"See Vol. i, pp 249-252 and 156-160, Articles 47 and 27 For the three members of the inferior classes, the reason for punishment was so as not to deprive their masters of their services. For the single adult male in a household, the substitution of beating was in cases where there was an older person alive who needed him for support. "Vol. I, p. 249, Article 47, provides that each ten blows with the heavy stick are made up by two chin of copper. 12 See Article 342 above.

558

Article 487 Where life exile at a closer distance is increased to life exile at a further distance, it is the same as one-half year of penal servitude. Where punishment is increased to life exile with added labor, [4a] the year of added labor is the excess.

ARTICLE: 487.2b—If punishment is increased from beating with the light stick or the heavy stick to penal servitude or life exile, or from penal servitude or life exile to the death penalty, the official is punished by the whole of such punishment. 487.3—If punishment is decreased, the official receives the same punishment. SUBCOMMENTARY: As for where punishment is increased from beating with the light stick or the heavy stick to penal servitude or life exile—suppose punishment is increased from ten blows with the light stick to thirty blows with the light stick, there is an excess of twenty blows. Or, where punishment is increased from one year of penal servitude to one and one-half years of penal servitude, there is an excess of one-half year. The official who increases the punishment is punished himself by the twenty blows with the light stick or the one-half year of penal servitude. As for where punishment is increased from beating with the light stick or the heavy stick to penal servitude or life exile, or from penal servitude or life exile to the death penalty—the commentary states: "The three kinds of life exile are equivalent to one year of penal servitude with regard to excess."This means that when three years of penal servitude are increased to life exile at a distance of 2,000 Ii, 2,500 Ii, or 3,000 Ii, even though the distances are different, all three are called life exile. With regard to manual labor at the place to which the criminals are sent, the three kinds of life exile all carry one year of forced labor in a fixed place.Therefore when penal servitude is increased to life exile, all three kinds of life exile are equivalent to one year of penal servitude with regard to excess. However, an increase from the closer distance of 2,000 Ii to 2,500 Ii or 3,000 Ii is equivalent to one-half year of penal servitude as excess. If punishment is increased from the three kinds of life exile to life exile with added labor, then the year of added labor is considered to be excess.When punishment is increased to life exile with added labor, this increases the labor to two years more than ordinary life exile. So the two years of added labor are considered to be the excess. As for punishment being increased from beating with the light stick or beating with the heavy stick to penal servitude or life exile, or from penal servitude or life exile to the death penalty—suppose punishment is increased from one hundred blows with the light stick to one year of penal servitude. The official is punished with the whole year of penal servitude. If punishment is increased from penal servitude or life exile to the death penalty, this refers to where punishment ranging from one year of penal servitude to three years of life exile is increased to the death penalty. The official is

Article 487

559

punished by the whole of the punishment, that is, by the death penalty. Therefore it is stated that the official receives the whole of such punishment. Decreasing punishment refers to adding and subtracting from the circumstances of the criminal sufficiently to change the crime. If a heavier punishment is decreased to a lighter punishment, the official is punished by the amount of the decrease. If the death penalty is decreased to penal servitude or life exile, or penal servitude or life exile is decreased to beating with the light stick or beating with the heavy stick, the official receives the whole of such punishment. Therefore it is stated that where punishment is decreased, the official receives the same punishment. . . . [83] ARTICLE: 487.4a—If the sentence is mistakenly increased, the official's punishment is reduced three degrees. 487.4b—If the sentence is mistakenly decreased, the official's punishment is reduced five degrees. 487.5—If the punishment has not yet been administered nor the prisoner released, or if when the prisoner has been released he is arrested again, or if the prisoner commits suicide, the official is allowed a reduction of one degree in each case. SUBCOMMENTARY: . . . Suppose punishment by the light stick is mistakenly increased to one hundred blows with the heavy stick. The excess is reduced three degrees. If, for example, the increase is to one year of penal servitude, [4a] then the official receives the whole punishment. But a decrease of three degrees from one year of penal servitude is eighty blows with the heavy stick. For a mistaken decrease, the punishment is reduced five degrees. Suppose there is mistaken decrease of the death penalty, the punishment reduced five degrees is one year of penal servitude. If the punishment has not yet been administered and the prisoner is released means that there is an intentional or mistaken increase of punishment to the death penalty or to beating with the heavy stick, but the punishment has not yet been administered. Or where there has been an intentional or mistaken decrease of the death penalty or less, but the prisoner has not yet been released, or if he has been released is arrested again, or where the criminal commits suicide or something else causes his death, no questions will be asked as to the cause. In each case, a reduction of one degree in the official's punishment is allowed means that regardless of whether the punishment is intentional or mistakenly increased or decreased, the official will be allowed a reduction of one degree of punishment. ARTICLE: 487.6a—If a special commissioner 13 investigates the matter and in go,3

This refers to any number of different commissioners who were sent out to investigate prisoners and their situations. See Nnda, Statutes, pp. 760, 761.

560

Article 487 ing through the evidence {chuang K ) makes a mistake in the circumstances, his punishment will be reduced two degrees further. 487.6b—If the official admits his error but the sentence has already been passed, the punishment follows this law on mistakenly decreasing or increasing punishment. 487.7—If the decrease or increase makes no difference in the punishment administered, the official is not punished.

SUBCOMMENTARY: A special commissioner investigates the matter refers to the various commissioners who specially reinvestigate matters. In going through the evidence to make a mistake in understanding the circumstances means that the commissioner does not get to the basic circumstances or decreases or increases the sentence. His punishment is reduced two degrees further. If the official admits his mistake but the sentence has been passed, the punishment follows this law on mistaken decrease or increase of punishment. This means that the section officer (i.e., the person who held the original hearing on the case) admits his error, but the sentence has already been passed (by the commissioner who reviews the case), the commissioner's punishment follows this law on decrease and increase of punishment. This means that the section officer, depending upon whether he decreased or increased the punishment, has his punishment reduced five degrees or three degrees.14 If the punishment has not yet been administered, nor the prisoner released, or if the prisoner has been released he is arrested again, or if the prisoner commits suicide, in each case, a reduction of one degree of punishment is allowed. If the official admits his error but the sentence has been passed means that the section officer and the other officials examined the file but were not aware of the error. As for the decrease or increase making no difference in the punishment administered, the official is not punished—suppose an official bondsman, a personal retainer, or a government or private slave has committed a crime that should be punished by three years of penal servitude and the sentence is increased to life exile; or where the punishment should be one of the three distances of life exile, it is decreased to three years of penal servitude. The maximum punishment for either of these is two hundred added blows with the heavy stick.15 So even though the punishment has been increased or decreased, the added blows with the heavy stick are not different. . . . QUERY: Suppose a person's original crime is punished by life exile with added labor and his sentence is decreased to one year of penal servitude. If he is released and arrested again, the official's punishment is reduced one degree. But what then is his punishment? ' 4 On this process, see Vol. i, p. 216, Article 40 ''See note 10 above.

Article 488

561

[84] REPLY: If the punishment of life exile with added labor were completely canceled, the official would be punished with the whole of such punishment. But since the criminal has been released and arrested again, the official is pun­ 16 ished by three years of penal servitude. N o w if the decrease had been to one year of penal servitude, then the excess is calculated at five years, which reduced one degree would be four and one-half years of penal servitude. However, this excess punishment cannot be more than the whole punishment, so bringing up a heavier offense to make clear a lighter punishment, the official should be punished by three years of penal servitude. 17

Article 488 [6a]

Incorrect Sentences Preceding an Amnesty

ARTICLE: 488.1a—In all cases where there has been an incorrect sentence before an amnesty, or where a sentence that should have been to a lighter punish­ ment was to a heavier one, it is proper that it should be changed to the lighter punishment. 488.1b—If the sentence should have been to a heavier punishment but was to a lighter one, the law providing the lighter punishment is followed. SUBCOMMENTARY: In sentencing crimes, whether the punishment has been de­ creased or increased or the sentence does not correspond to the crime, where the crime occurs before a grant of mercy, it is feared that the executive official will be opposed to not changing the sentence.Therefore it is made clear that the law providing the lighter sentence is to be sentenced. As for sentencing a lighter pumshment that should be a heavier one—suppose a person kills in an affray his elder male first cousin through the male line. But at the time the sentence is for killing his elder brother, which is contumacy. But after the amnesty, the crime is changed to that of killing an elder first cousin through the male line, so that the proper sentence should be for discord. 18 So if an amnesty did forgive crimes that came under the ten abominations, the sen-

"Tai, Specific Articles, p. 315, n. 4, points out that five must be a mistake for three, which is how the passage appears in the revised edition of the Code contained in the Kokushi taikei (Great collection of documents on Japanese history). Further, Vol. l, p. 268, Article 56, states that a reduction of one degree of punishment from any of the three distances of life exile is to three years of penal servitude. "This follows Vol. ι, ρ 254, Article 50, which covers analogical reasoning. See also the discus­ sion in Vol. I, pp. 37-38. 18 Both contumacy and discord come under the ten abominations, being the fourth and the eighth items. See Vol. I, p. 61, Article 6, and the discussion on pp. 17 6f. However, Article 489 immediately below specifies that crimes that come under contumacy cannot benefit from an amnesty. Discord would depend upon the specifics of the amnesty.

562

Article 488

tence would be to life exile at a distance of 2,000 Ii. But even if the crime is one that is not forgiven by ordinary amnesty, the sentence is to life exile. Further, suppose someone kills a person of non-kin status. But the sentence is for killing a fifth-degree mourning relative of a higher generation or of the same generation but older.19 An amnesty occurs, but it does not affect crimes that come under the ten abominations. Afterward, the crime is changed to be a miscellaneous crime that comes under the death penalty. So the criminal is exempted from the death penalty and removed from the community. Both of these cases are where a lighter punishment is sentenced. Further, suppose a supervisory official takes goods within his sphere of jurisdiction worth fifty p'i of silk. The sentence is for subverting the law and so the punishment is death.20 But after the amnesty, the crime is changed simply to taking goods within his jurisdiction. 2 ' So it does not come within the principle on repayment of the goods. 22 Further, suppose the criminal should be sentenced to life exile at a closer distance, but the sentence is to life exile at a farther distance. Or, the sentence only allows one office to be used to replace punishment while it should have allowed two offices to be so used.23 If the sentence has been memorialized and signed off and the criminal sent into exile has reached the place to which he has been sent and an amnesty occurs, then the criminal is returned to the nearer place of exile. Also the certificate of appointment that was wrongly revoked is returned. 24 If the memorial has not yet been signed off and the criminal [6b] has not yet reached his place of exile, then should there be an amnesty the criminal is pardoned in accordance with the amnesty.25 Where a person should be allowed to make payment of copper and the sentence that should have been to a lighter punishment was to a heavier, regardless of whether the time limit has been exceeded without payment being made, 26 or the amount of copper has been paid within the time limit, should an amnesty occur, the punishment will be changed to the lighter one provided by the law. Whatever excess has been paid is to be returned; whatever has not yet been sent to the authorities will be paid according to the lighter punishment. If within the time limit the amount of copper has not yet been paid and there is an amnesty, after the amnesty the amount of copper need not be paid.27 "This comes under discord; see note 18 above. T h e point of the change after the amnesty is that though the killing comes under miscellaneous crimes punished by death, still the criminal can benefit from an amnesty that reduces his punishment. w See Article 138 above 2, See Article 140 above.The important part here is that punishment under this article does not reach the death penalty. - S e e Vol. I, p. 184, Article 33 23 See Vol. i, p. 112, Article 17 24 Ibid. 25 See Vol. I, p. 150, Article 25. 26 There were time limits for payment of the required amounts of copper used to redeem punishments. O n these limits, see Vol I, p. 55, n. 45. 27 SeeVol. i, p. 184, Article 33.

Article 488

563

Reference to lighter punishment also includes exemption from punishment. According to the Statutes:"lf before the punishment for a crime has been administered a new regulation changes the law: (1) where the regulation increases the punishment for that crime, the regulation in force at the time of crime is followed; (2) where the regulation decreases the punishment for that crime, the law providing the lesser punishment is followed."28 Where the whole punishment is canceled, this is also called the law providing the lesser punishment. As for where the sentence should have been to a heavier punishment but was to a lighter—suppose the crime involves the ten abominations, which punishments are not exempted by ordinary amnesty. But at the time the sentence is to a lighter punishment or to no punishment at all. The punishment sentenced before the amnesty stands. ARTICLE: 488.2—Crimes that are not exempted from punishment by ordinary amnesties follow the ordinary laws. COMMENTARY: Crimes that are not exempted from punishment by ordinary amnesties mean those where sentences of death or life exile are still in force despite the amnesty. Nor are crimes that require disenrollment, resignation from occupied office, or removal from the community affected by the amnesty. SUBCOMMENTARY: AS for crimes that are not exempted from punishment by ordinary amnesty, the text of the amnesty may say:"Regardless of their seriousness, all punishments are canceled by the amnesty." It does not speak of crimes that are not exempted from punishment by ordinary amnesty, so they do not come within the limits of those that can be exempted from punishment.Therefore the article states: "follow the ordinary law." [85] So committing contumacy is still punished by death, and plotting rebellion or great sedition, as well as killing elder second cousins in the male line, fourth-degree mourning relative of a higher generation, or making or keeping ku poison are still punished by life exile. For any of the ten abominations, intentionally killing a person, or collective prosection for rebellion or great sedition, [7a] if the case has been completed, the criminal is still disenrolled. Supervisory or custodial officials who commit illicit sexual intercourse within their areas of jurisdiction, or robbery, or kidnapping, or taking bribes and subverting the law, if the case has been completed and an amnesty occurs, must resign from occupied office. For killing a person where the death penalty is required, should an amnesty occur, the criminal is removed from the community. ARTICLE: 488.3—Thus when the text of the amnesty decides the punishment, it should be for the lighter punishment. Further, it is not permitted to cite the Code analogically to increase the punishment. 28

Nuda, Statutes, p. 776.

564

Article 489 488.4—Violations are punished according as to whether they are intentional or mistaken in each case.

SuBCOMMENTARY:Thus when the text of the amnesty decides the punishment, it should be for the lighter punishment—suppose an amnesty on the sixteenth day of the third month of the ninth year of the Cheng-Kuan era (A. D. 627-649) stated:"Those condemned to the great punishment (death) or less are all exempted from punishment. Crimes that are not exempted from punishment by ordinary amnesty, crimes involving the ten abominations, making magical incantations that confuse a group of people, or plotting treason that is already under way are not included in the amnesty." Thus according to the amnesty, the ten abominations are not exempted from punishment. Though plotting treason is one of the ten abominations, yet if the treason is not yet under way, it is especially exempted from punishment by the amnesty. So even though the punishment is heavy, the amnesty makes it lighter. . . .

Article 489 Knowing That There Will Be an Amnesty and Intentionally Committing a Crime ARTICLE: 489.1—All cases of knowing that there will be an amnesty and intentionally committing a crime, or of committing contumacy,29 or a personal retainer or slave beating or plotting to kill their master, or having illicit sexual intercourse by force with their master—none of these crimes may be pardoned by an amnesty. 489.2—Killing a fourth-degree mourning relative of a higher generation or an older second cousin in the male line, [7b] as well as plotting rebellion, or committing great sedition—even though there is an amnesty, these crimes will be punished by life exile at a distance of 2,000 Ii. SUBCOMMENTARY: Knowing that there will be an amnesty and intentionally committing a crime refers to when the text of the amnesty has not yet been issued, privately to have knowledge of it and intentionally commit a crime. . . . Personal retainers and female retainers are treated the same. . . .

Article 490 Obtaining the Prisoner's Acceptance of His Sentence after Conviction ARTICLE: In all cases of a conviction that punishes the criminal by penal servitude or more, the criminal and his relatives are summoned and told the •"Contumacy is the fifth of the ten abominations, see Vol. I, p. 61,Article 6.The definition of contumacy is given in the commentary there.

Article 491

565

punishment in order to obtain the prisoner's acceptance of his punishment. If he does not accept it, his reasoning must be heard and the case reexamined.Violations are punished by fifty blows with the light stick. In the case of the death penalty, violations are punished by one hundred blows with the heavy stick. SUBCOMMENTARY: Conviction means30 that the punishment is penal servitude or more, and the senior official agrees with the sentence in the case, so that it has already been decided. Where the punishment is penal servitude, life exile, [8a] or death, the criminal and his relatives are summoned and told the punishment in order to obtain the prisoner's acceptance of it. However, it is only the prisoner's acceptance of his punishment that must be obtained; his relatives are only told the punishment, they may not question the prisoner's decision to accept it or not. If the prisoner does not accept his punishment, his reasoning must be heard, based on the evidence that supports his not accepting the punishment and the case reexamined. If the prisoner's family is not told the punishment, or if the prisoner's acceptance of the punishment is not obtained, or if there is no reexamination of the case, the pumshment for any of these is fifty blows with the light stick. In the case of the death penalty, the punishment is one hundred blows with the heavy stick.

[86]

Article 491 Releasing Persons Who Should Have Been Enslaved by the State as a Result of Collective Prosecution

ARTICLE: All cases of releasing persons who should have been enslaved by the state as a result of collective prosecution, or of enslaving those who should not have been enslaved by the state, are punished for sentencing these persons to life exile whether intentionally or by mistake.31 SUBCOMMENTARY: In the Articles on Violence and Robbery, those who plot rebellion or carry out great sedition have their sons who are fifteen years of age or less and their mothers, daughters, wives, and concubines, and their sons' wives and concubines as well, and their great grandsons in the male line, their brothers, and their sisters all enslaved by the state.32 Men who are eighty years of age or incapacitated and women who are sixty years of age or disabled are exempted from punishment. Those who have been adopted into another family,

M

Wei J i should be read wei ff, following the KHCPTS edition. "See Article 487 above. Where the increases or decreases are intentional is described below Where the increase is mistaken, the punishment is reduced three degrees. Where the decrease is mistaken, the punishment is reduced five degrees. 32 See Article 248 above.

566

Article 492

or who have entered the religious life, as well as women whose marriages have not yet taken place, are not punished. If those who should have been enslaved by the state are not, or those who should not have been enslaved by the state are, the officials involved will be punished for sentencing them to life exile whether intentionally or by mistake. This refers to those who are collectively prosecuted for plotting rebellion or committing great sedition being punished by life exile at a distance of 3,000 Ii. Enslavement by the state is a heavy punishment, so the law on life exile at a distance of 3,000 [8b] Ii is used. If the sentence is intentional, then the official's punishment is the same as for intentionally decreasing or increasing the punishment to life exile at a distance of 3,000 Ii. If the sentence is by mistake, then the official's punishment is for mistakenly increasing the punishment to life exile at a distance of 3,000 IiP Reference to released means that sending those who should have been enslaved into life exile is not different from completely releasing them from punishment. If those who should have been sent into life exile are enslaved by the state, the punishment is the same.34

Article 492 Delay in Sending Prisoners into Penal Servitude or Life Exile ARTICLE: All cases of delay for prisoners who must be sent into penal servitude or life exile are punished by thirty blows with the light stick for the first day, increased by one degree for each further three days. When the punishment exceeds one hundred blows with the heavy stick, it is increased one degree for each further ten days, and with a maximum punishment of two years of penal servitude. CoMMENTARY:The punishment for delay may not exceed the punishment of the criminal. SUBCOMMENTARY: . . .According to the Statutes on Prison Officials:"All persons convicted of crimes require that they be sent to do forced labor in a fixed place. In the capital, they should be sent to the Directorate of Works. Women should be sent to the Directorate of Imperial Workshops to do sewing work. In prefectures outside the capital, such criminals should provide official labor for the authorities at the place concerned." 35 When the case is completed, then the criminals must be sent. If there are delays, [the punishment is as described above]. "See Article 487 above. "That is, following Article 487 above, the punishments would be one year and two years of penal servitude respectively 35 Nuda, Statutes, p. 773.

Article 493

567

As for those punished by life exile, according to the Statutes: "Criminals sentenced to life exile shall be despatched to their places of exile once every quarter. If the tally accompanying the order for their assignment arrives during the last thirty days of the quarter, it is permitted for them to be despatched together with the criminals sentenced to life exile assigned during the following 36 quarter." . . . The commentary states: " T h e punishment for delay may not exceed the punish­ ment of the criminal." This means, for example, that if the criminal is punished by one year of penal servitude, the punishment of the official who causes the delay cannot be more than one year of penal servitude.

Article 493 Articles That Must Be Repaid, Paid as Redemption for Punishment, Confiscated by the State, or Turned Over to the State ARTICLE: 493.1—All cases of articles that must be repaid, paid as redemption for punishment, confiscated by the state, or turned over to the state and where the payments are deficient or violate the time limit are punished by ten blows with the light stick for the first day, increased by one degree for each further five days, and with a maximum punishment of one hundred blows with the heavy stick. 493.2—If an official has been disenrolled, or used office to replace punish­ ment so that his certificate of appointment has been revoked, and he has violated the time limit without sending it to the authorities, the punish­ ment is the same. 37 SUBCOMMENTARY: . . . Repaid refers to government or private utensils and articles that have been lost and whose value must be repaid. 38 Redemption of punish­ ment by payment of copper refers to a man who must make payment of copper. 39 Confiscation by the state refers to illicit goods that involve both parties in offenses, and forbidden articles that it is an offense to possess, and which are confiscated by the state. 40 Turned over to the authorities refers to lost articles that are not claimed by any person when the time period for making such claims is over, and which are turned over to the government or to private persons. 41 According to the Statutes on Prison Officials: "All redemption by payment of M

Ibid., p. 770. On disenrollment, see Vol. I, p. 119, Article 18. Article 11, in Vol. i, p. 93, explains the use of office to replace punishment See also the discussion in Vol. I, pp. 23 ff. "See Article 445. 39 The amounts are given in Vol. ι,ρρ. 55-61, Articles 1-5.The time limit for the payments is given on p. 55, η 45. «See Vol. ι, p. 179, Article 32. •"See Article 448 above. The time limit is five days. 37

568

Article 494

copper for the death penalty must be paid within eighty days; for life exile within sixty days; for penal servitude within fifty days; for beating with the heavy stick within forty days; for beating with the light stick within thirty days. . . . Those who repay the value of official goods must do so within one hundred days if their value is fifty p'i of silk or more; within fifty days if their value is thirty p'i of silk [87] or more; within thirty days if their value is twenty p'i of silk or more; and within twenty days if their value is less than twenty p'i of silk."42 . . . Disenrollment and using office to replace punishment refer to committing a crime and being [9b] disenrolled, resigning from office, resigning from occupied office, or using office to replace punishment. 43 For all of these circumstances, the certificate of appointment is revoked.

Article 494 Capital Crimes Committed by Pregnant Women ARTICLE: 494.1a—All cases of capital crimes committed by women who are pregnant when the time comes to administer the punishment, delay carrying out the punishment until one hundred days after she has given birth. 494.1b—If punishment is administered before she has given birth, the punishment is two years of penal servitude. 494.1c—If punishment is administered after she has given birth but before the term of one hundred days has passed, the punishment is one year of penal servitude. 494.2—If punishment is administered to her by mistake, the punishment is reduced two degrees in each case. 494.3—If the term has passed without the administration of punishment, the punishment follows the law on not administering punishment until receiving a reply about the memorial. 44 SUBCOMMENTARY: . . .

Article 495 Judicial Torture or Beating of Pregnant Women [10a] ARTICLE: 495.1a—All cases where women who are pregnant commit a crime and are judicially tortured or beating with the heavy or light stick is administered before she has given birth are punished by one hundred blows with the heavy stick. 42

Niida, Statutes, p. 788. SeeVol. I, pp. 112-144, Articles 17-22. "Except for exceptional circumstances, the death sentence could not be carried out without 43

Article 496

569

495.1b—If the punishment for her wounds would be heavier, the law on persons who should not be judicially tortured is followed.45 495.1c—If she is judicially tortured after she has given birth but before a full hundred days have passed, the punishment is reduced one degree.46 495.2—If judicial torture or beating are administered to her by mistake, the punishment is reduced two degrees in each case. SUBCOMMENTARY: . . . If the punishment for her wounds would be heavier means that if her wounds or injuries would be punished more heavily than one hundred blows with the heavy stick, the law on persons who should not be judicially tortured is followed. This refers to the article above where supervisory officials who beat or judicially torture persons who should not be beaten or judicially tortured are punished as for killing or wounding in an affray.47 If this causes a miscarriage, the punishment is two years of penal servitude. If the woman dies because of the judicial torture or beating, the punishment is life exile with added labor. . . . If the wounds that she received from the judicial torture or beating were the result of a mistake but were administered within the hundred day time limit are punished more heavily than one hundred blows with the heavy stick, the punishment for wounding in an affray is reduced three degrees.

Article 496 The Death Penalty Is Not to Be Administered after the Beginning of Spring [10b] ARTICLE: 496.1—All cases of administering the death penalty between the beginning of spring48 and the autumn equinox are punished by one year of penal servitude. 496.2a—Even punishment for crimes that need not wait for the correct season to be administered may not be carried out during a month where the slaughter of animals is prohibited, or on days when killing is forbidden. The punishment is sixty blows with the heavy stick in each case. [88] 496.2b—Even if the official waits for the correct season, but there are violations, the punishment is increased two degrees. securing the emperor's agreement over a two-day period. See article 496 below. The punishment there is one hundred blows for the first day, increased one degree for each further two days. 45 See Article 483 above. 46 The one-hundred-day term appears in Article 494 above, in connection with the execution of women who are pregnant. "See Articles 302-306 above. 48 The beginning of spring was one of the twenty-four divisions of the calendar in traditional China, which would occur about the fourth of February in our Western system. In addition, there were many other times when executions were forbidden, as shown below in the quotation from the Statutes, some of which reflect Buddhist influence. See also Hulsewe, Periodieke executieen slachtverboden.

570

Article 497

SuBCOMMENTARY:According to the Statutes on Prison OfFicials:"From the beginning of spring until the autumn equinox, it is not allowed to memorialize the throne for permission to administer the death penalty."49Violations are punished by one year of penal servitude. "If contumacy or more serious crimes have been committed, 50 Or, if a slave or personal retainer has killed their master, this statute need not be adhered to. It is not allowed to memorialize the throne requesting permission to carry out executions on days of great sacrifices, on days of abstinence, on the first and fifteenth days of each lunar month, during the first and last quarters of the month, on the twenty-four annual'solar nodes,' on days when the rain has not yet cleared, when the nights are not yet bright, during the months and on the days when it is prohibited to butcher animals, and on rest days." Even punishment for crimes that need not wait for the correct season to be administered may not be carried out during a month where the slaughter of animals is prohibited.This means the first month, the fifth month, and the ninth month. Days when killing is forbidden refer to the ten days of abstinence during each month: the first, eighth, fourteenth, fifteenth, eighteenth, twenty-third, twenty-fourth, twenty-eighth, twenty-ninth, and thirtieth. Thus even punishment for crimes that need not wait for the correct season to be administered may not be carried out during these months or on these days of the month. Where there are violations in administering punishment, the punishment is sixty blows with the heavy stick. Where the correct season must be awaited and there are violations refers to the first month, fifth month, and ninth month and the ten days of abstinence where punishment may not be administered from after the beginning of spring until the autumn equinox. Intentional violations of these seasons and days is punished by two degrees more, or eighty blows with the heavy stick. Where there are intercalary months and the text of the statute speaks of the first month, the fifth month, [Ha] and the ninth month as being times when animals cannot be slaughtered, when any of these is an intercalary month it is considered the same as the regular months and memorials to administer the death penalty are not permitted.

Article 497 A Reply to a Memorial Requesting Permission to Administer the Death Penalty Is Required ARTICLE: 497.1—All cases where a prisoner is executed without having received a reply to the memorial requesting permission to administer the death penalty are punished by life exile at a distance of 2,000 Ii. "Niida, Statutes,^. 765.The statute is continued immediately followingthe sentence on violations. 50 TlIeSe are the first four of the ten abominations. See Vol. I, p. 61, Article 6.

Article 498

571

497.2—If a reply granting such permission in response to memorials has been received, three days must elapse before the punishment is administered. If the death penalty is administered before that time period is over, the punishment is one year of penal servitude. 497.3—When the time period is over, if one day elapses without the death penalty being administered, the punishment is one hundred blows with the heavy stick, increased one degree for each further two days. SUBCOMMENTAEY: Executing a prisoner refers to administering the death penalty after the memorial has been signed. In all cases the emperor must be memorialized three times, and only after the reply has been sent down can the punishment be administered. . . . Reference to day means one hundred fe'o.51 Three days must elapse after the tally accompanying the reply arrives before the punishment can be administered. Outside the capital where there are no water clocks, full revolutions of the Sun constitute the time limit.52

Article 498 [lib]

Sentencing To Allow Redemption by Payment of Copper when Penal Servitude or Life Exile Is Required

ARTICLE: 498.1a—All cases of sentencing to allow redemption by payment of copper when penal servitude or life exile is required, or sentencing to penal servitude or life exile when redemption by payment of copper is required, or not allowing replacement of punishment by office when it should be allowed, or allowing replacement of punishment by office when it should not be allowed, are punished for the original offense with the punishment reduced one degree below that for the violation being intentional or by mistake. COMMENTARY: 498.1b—The death penalty is not reduced. SUBCOMMENTARY: Sentence of sending into penal servitude or life exile means that the person has no office or protection and is not an old man, nor a child, nor impaired. 53 If such a person commits a crime, punishments of beating with the light or heavy stick must be administered or the person must be sent into penal servitude or life exile.

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This follows Vol I, p. 265, Article 55, which gives that definition. On the earliest clepsydras, see Needham, Heavenly Clockwork. 55 On office and protection, see Vol. l, pp. 93-102,Articles 11-13. On age, youth, and impairment, see Article 150, n. 5. 52

572

Article 498

Officials, on the other hand, may redeem their punishment by payment of copper.Those who are allowed to make redemption by payment of copper refer to those who [89] have office, protection, are disabled, or are seventy years of age or more, or fifteen years of age or less. Allowed to use office to replace punishment means that officials of the ninth rank and above who commit crimes punished by penal servitude or more may use office to replace punishment. Officials may not, however, be required to use office to replace punishment. Not being required to use office to replace punishment refers to where the punishment is light and does not cancel the office, or where the crime was committed by accident. 34 These are crimes where the official need not use office to replace punishment and is required to do so. In each case where the original crime should be replaced by office and yet the person is sent into penal servitude or life exile, their punishment is reduced one degree below that for doing so intentionally or by mistake.55 The commentary states: "The death penalty is not reduced."Thus if the person should be punished by death and is allowed to use office to replace punishment or make redemption by payment of copper, or should be allowed to make redemption by payment of copper and really is punished by death, there is no reduction of punishment. [12a] Each case is sentenced following the law on whether it was done intentionally or by mistake.36 ARTICLE: 498.2—If a ranked official is holding an office that does not carry official rank or a minor office and commits a crime punished by beating with the heavy stick or less, whether in his own office or as a supervisory official, the laws on administering punishment are followed.37 SUBCOMMENTARY:A ranked official holding an office that does not carry official rank or a minor office refers to an official with honorary or titular rank who holds an office without official rank or a minor position. If a crime is committed punished by beating with the heavy stick or less in his own office or where he is temporarily acting in a supervisory capacity, punishment is administered in accordance with his holding an office without official rank or a minor office. He may not use official rank to replace punishment. 58 If the crime is punished by penal servitude or more, he may use office to "See Vol. i, p. 141, Article 22. If the punishment is not sufficient to cancel the office, the person may keep the office and make redemption by payment of copper. Article 339 above allows redemption by payment of copper for crimes committed by accident. 55 See Article 487 above. ''That is, the degree of reduction of punishment allowed in this law is canceled. In the case of intentional increase of punishment to the death penalty, the official would then be punished by death s7 That is, he is actually beaten. But read the subcommentary carefully and note that this section deals with officials who hold only honorary or titular rank, not active-duty officials. 58 On this privilege, see Vol i, p. 93, Article 11.

Article 499

573

replace punishment or make redemption by payment of copper.59 For those who have protection that allows them to make redemption by payment of copper, if while holding an office without official rank or a minor office they commit a crime punished by beating with the heavy stick or less, have punishment administered according to their ranked office.

Article 499 Sentencing Decapitation for a Crime That Requires Strangulation ARTICLE: 499.1a—All cases of sentencing a crime that should be punished by strangulation to be punished by decapitation, or sentencing a crime that should be punished by decapitation to be punished by strangulation, are punished by one year of penal servitude. 499.1b—The punishment is the same with regard to suicide. 499.2—If the sentence was by mistake, the punishment is reduced two degrees. 499.3—If the criminal has already been strangled, additional damage done to the body is punished by one hundred blows with the heavy stick. SUBCOMMENTARY: . . .The official's punishment is [12b] because of his having changed the punishment. The punishment is the same with regard to suicide. According to the Statutes on Prison Officials:"Officials of the fifth rank and above who have not committed contumacy or some more serious offense are permitted to commit suicide in their home."60 Where those who should be allowed to commit suicide are punished by strangulation or decapitation, or those who should be punished by strangulation or decapitation are allowed to commit suicide, the punishment is one year of penal servitude. Therefore it is stated that the punishment is the same. If the sentence was by mistake, the punishment is reduced two degrees.This means that where the original circumstances show that the sentence was not intentional, the punishment is ninety blows with the heavy stick. If the criminal has already been strangled and additional damage is done to the body means that after the criminal has already been strangled to death, his ribs are broken or he is cut in two at the waist, and so forth. This is punished by one hundred blows with the heavy stick.

;

'See Vol. i, p. 112, Article 17. "Niida, Statutes, p. 764 Ordinarily, all death sentences were administered in the marketplace. But aside from this group of officials, those of the seventh rank and above, together with members of the imperial clan, and women, if they were not to be decapitated, were all strangled in a place away from public view.

574

Article 500

Article 500 The Official in Charge Allowing a Prisoner Who Should Labor Not To Labor ARTICLE: All cases of an official in charge who allows a prisoner who should labor not to labor, or allows a prisoner who is ill not to make up that number of days when he has recovered, are punished by thirty blows with the light stick when three such days have passed, increased one degree for each further three days.When the punishment exceeds one hundred blows with the heavy stick, it is increased one degree for each further ten days, and with a maximum punishment of two years of penal servitude. COMMENTARY: The official's punishment may not exceed that of the criminal. SUBCOMMENTARY: The official in charge of the prisoners who must labor refers to the official in charge of the prisoners who must do manual labor allowing them not to do so. Or, allowing a prisoner who has been given leave because of illness not to make up those days. . . . [90] The official's punishment may not exceed that of the criminal [13a] means that if the criminal is serving one year of penal servitude, even if the number of days when the criminal does no labor is more than a year, the official's punishment cannot exceed one year. Sentences of two years or less follow this rule. If there are many criminals who do not work, then the official's punishment is for the one who did not work the most.

Article 501 Allowing a Prisoner Who Has Been Condemned to Death To Escape ARTICLE: All cases of a person who connives with a prisoner who has been condemned to death and allows that prisoner to escape, if the prisoner is later arrested, kills himself, or surrenders, reduce that person's punishment below the death penalty.61 The place where the prisoner is arrested, dies, or surrenders must immediately send a courier speedily to report to the place from where the prisoner escaped, so that punishment of the person who connived with the prisoner will be reduced. If there is a post relay station, then a postal relay courier must be sent. If because of delays the person who connived with the prisoner does not get a reduction of punishment, the punishment is as for intentional or mistaken decrease or increase of punishment, reduced one degree. 62

"Otherwise the official would receive the death penalty himself. See Article 466 above. 62 See Article 487 above. Note the great difference between the punishments depending upon whether the changes in sentence were intentional or mistaken.

Article 502

575

SuBCOMMENTARY:This means that an official at the prison where the prisoner who has been condemned to death is connives with him and allows him to escape. Following the article on deliberate connivance, the official also receives 63 the death penalty. If the official is able to arrest the runaway prisoner or the runaway prisoner kills himself or surrenders, the official's punishment will be reduced one degree below the death penalty. This is in accordance with the Articles on Arrest and Flight and the above articles on prisoners freeing them­ selves and running away, where the punishment is reduced one degree. 6 4 The place where the prisoner is captured, or dies, or gives himself up must immediately send a courier speedily to report the capture, so that the official will get a reduction of punishment from the death penalty. Where there is a postal relay station, then a postal relay courier is sent to report it. If the courier or the office delays so that the guilty official does not get a reduction of punish­ ment, then the punishment is whatever has been suffered by the guilty official. . . . The punishment is for intentional or mistaken decrease or increase of punish­ ment reduced one degree means that if the delay was intentional, then the pun­ ishment is reduced one degree below that for intentionally increasing punish­ ment, that is, life exile at a distance of 3,000 Ii. If the delay is because of a mistake, then it is reduced one degree below that for mistakenly increasing punishment, so that altogether the punishment is reduced four degrees, to two years of penal servitude. 63 The official and the courier are punished for what they are responsible for in each case.

Article 502 Doubtful Offenses ARTICLE: 502.1—All cases of doubtful offenses (yi-tsui | $ ϋ ) allow redemption by payment of copper in each case.66 COMMENTARY: Doubtful refers to such things as the testimony about the truth or falsity of the accusation being equal and the reasoning for and against the accused's having committed the crime being balanced. Where the facts seem to fit the case against the accused, there are no witnesses. Or, where there are witnesses, the facts do not seem very certain. ARTICLE: 502.2—If there is a doubtful case and the legal officers' views as to "See Arcicle 466 above. "Articles 470 and 487. 65 Thus following Article 487 above. "That is, pay the amount of copper needed to redeem the punishment for the crime of which the person had been accused. Considering the amount need to redeem punishments, this would certainly not be easy in many cases, and for the peasants who were the vast majority of the population, impossible.

576

Article 502 handling the case differ, there can be further deliberation given.67 H o w ever, there cannot be more than three such deliberations.

SUBCOMMENTARY: A doubtful case refers to there being factors that both support and question the crime's having been committed by the accused, so that it is difficult to understand how to pass sentence. . . . As for redemption of punishment by payment of copper, the commentary states: "Doubtful refers to such things as the testimony about the truth or falsity of the accusation being equal."68 This means that in the case of officials of the eighth rank or lower or commoners, one person says that the testimony is false and another that it is true. Or, that where two or more person testify as to the truth or falsity of the accusation, the numbers are equal. In the case of officials of the seventh rank or lower, conviction depends upon the testimony of a group. The reasoning for and against the accused's having committed the crime being balanced means that there are both positive and negative factors. . . . A doubtful trial means one where there are uncertainties and the legal officials are of different minds about handling the case. In considering the law and discussing the circumstances of the case there are different views. In each such case, the differing views should be communicated so as to let other government agencies consider the case. These other government agencies may have differences, but there cannot be more than three considerations of the case.This refers to persons such as the five executive officers below the vice-director of the Department of State and the five men below the chief minister of the Supreme Court of Justice.The decision as to the trial is by the agreement of the majority; there cannot be further consideration. 67 On the rules set out below, see Vol. I, p. 93, Article 11 .The group referred to means three or more persons according to Article 55, p. 265. See also Article 474 above. "There is also a statute relating to this point in Nuda, Statutes, p. 787. "Whenever there is a doubtful trial that cannot be decided, it should be decided by the Supreme Court of Justice If the Supreme Court of Justice is still doubtful, they should inform the Department of State, i.e., the Ministry of Justice."

Glossary Terms listed in the glossary of Volume I are not repeated. chia-kung person w h o aids in a crime ch 'ing ask permission (of the court) chii-ho begin an investigation major offense chung-hai ch'tin tang large group fan tou ordinary affray fang-shu certificate of manumission hai-hsin malicious intent hsi sha shang kill or w o u n d in play hsia shou strike a blow hu-chu master of the household hun-shu marriage contract hsing carry out a crime kuei-p'i circumvent the law kuo-so passport lan-ju unauthorized entry li-an include in a case file li-chih be in the right liu-nan cause delay or difficulty mi-wu confusion or error pao guarantor pao-ku period of responsibility for an offense p'ing-fu recover (e.g., from an injury) san pu-ch'u three conditions under which a w o m a n cannot be divorced ssu-yueh private agreement t'ou-shou chief principal tsang-chuang lu-yen lipu-k'o-yi illicit goods and the circumstances of the crime have been investigated and disclosed, and no reasonable doubt exists tzu-li su make a statement of a personal grievance wen-shih inquisitor um-t'ing five types of scrutiny yi-tsui doubtful offense yuan-mo original plotter

Bibliography Books and articles that were listed in the bibliography of the first volume are not repeated. Since the first volume of this translation was published in 1979, several studies have appeared that help in reading the Code. The most significant of them is contained in the series published by the Research Society on the Code and the Statutes and entitled Yakuchu Nihon Ritsuryo (Annotated Translations of the Statutes and the Code)? Volumes 2 and 3 of this series contain a variorum edition of the Code.Volumes 5, 6, and 7 are an annotated translation of the first twenty-four of the thirty chapters of the Code into modern Japanese by a group of scholars,led by the distinguished legal historian Shiga Shuzo. Unaccountably, volume 8, which would finish the translation, has not appeared to my knowledge. In the People's Republic of China, the Chung-hua Book Co. of Peking has published a paginated one-volume edition, which lists the articles of the Code by number. For background to the Code, the first of two volumes of The Cambridge History of China dealing with the T'ang dynasty has been published, edited by Denis Twitchett. This volume covers the history of the dynasty. A second volume on institutions and society will be available shortly. While written for a general audience, this series is also of great value to the professional student of China.

Books and Articles de Bary, W m . Theodore. Sources of the Chinese Tradition (Columbia University Press: New York, 1960). Duyvendak.JJ.L., tr. The Book of Lord Shang. London: Arthur Probstain, 1928. Franke, Herbert. "Archaologie und Geschichtsbewusstsein in China," Archaologie und Geschichtsbewusstsein. Munchen: C H . Beck, 1982, pp. 69-83. . "Der Schatzfund im chinesischen Recht," Archiv Orientalni 59 (1991): 140-151. van Gulik, Robert H. T'ang-yin-pi-shih "Parallel Cases from under the Pear-Tree:" A 13th Century Manual ofJurisprudence and Detection. Leiden:EJ.Brill, 1956. Hansen,Valerie. Negotiating Daily Life in Traditional China: How Ordinary People Used Contracts 600-1400. New Haven: Yale University Press, 1995. 1

I wish to express my thanks to Mr Toshiyuki Aokijapanese Librarian of the Harvard-Yenching Library, for his help with the bibliography.

580

Bibliography

Hsiao, Kung-chuan. Rural China: Imperial Control in the Nineteenth Century. Seattle: University of Washington Press, 1960. Hsueh,Yiin-sheng Hifejtfi. T'ang-Ming lit ho-pien ) ^ 5 ¾ ^ a " U t 5 vols. Shanghai: Commercial Press, 1937. Hucker, Charles O. A Dictionary of Official Titles in Imperial China. Stanford: Stanford University Press, 1985. Johnson, Wallace, and Denis Twitchett, "Criminal Procedure in T'ang China," Asia Major,Third Series, 6.2 (1993), pp. 113-146. Ku, Mei-kao, tr. A Chinese Minor for Magistrates .The Hsin-yu ofLu Chia. Canberra: Australian National University Press, 1988. Le Blanc, Charles and Dorothry Borel, eds. Chinese Ideas about Nature and Society: Studies in Honour of Derk Bodde. Hong Kong: Hong Kong University Press, 1987. Liu, Mau-Tsai, et al., tr. "Betrug und Falschung im T'ang-Recht Das 25. Kapitel des Tang-lit shu-yi" Oriens Extremus, 25, 2 (1978): 123-170. MacCormack, Geoffrey, "The Concept of tsang in the T'ang Code," Revue Internationale des droits de I'antiquite 33 (1986): 25-44. . Traditional Chinese Penal Law. Edinburgh: Edinburgh University Press, 1990. ."TheT'ang Code: Early Chinese Law," The Irish furist, 18 (1983): 132150. Needham, Joseph, et al. Heavenly Clockwork: The Great Astronomical Clocks of Medieval China. 2d ed. New York: Cambridge University Press, 1986. Shiga, Shuzo. "Family Property and the Law of Inheritance in Traditional China," in David C. Buxbaum, ed., Chinese Family Law and Social Change in Historical Perspective. Seattle: University of Washington Press, 1978, pp. 109-150. Shiga, Shuzo, et al., trs. Toritsu Sogi | ^ ^ j ^ ^ , V o l s . 5, 6, and 7 of Yakuchu Nihon ritsuryo i ? U 0 ^ f l i ^ p , T o k y o : T o k y o d o , 1975. Sung hsing t'ung ^f.'MMt- Taipei: Wen-hai Ch'u-pan she, 1962. T'ang-lii shu-yi. Peking: Chung-hua Book Co., 1983. Twitchett, Denis. The Cambridge History of ChinaVol. 3: Sui and T'ang China: 589-906 A.D. Cambridge: Cambridge University Press, 1979. ."The Implementation of Law in Early T'ang China," Civilta Veneziana: Studi 34 (1978): 57-84. Unschuld, Paul U. Medidne in China: A History of Pharmaceutics. Berkeley: University of California Press, 1986.

Bibliography

58Ί

Wechsler, Howard. Offerings ofJade and Silk: Ritual and Symbol in the Legitimation of the Tang Dynasty. New Haven: Yale University Press, 1985. Yang, Lien-sheng. "Schedules of Work and Rest in Imperial China," Studies in Chinese Institutional History. Cambridge: Harvard University Press, 1961, pp. 18-42.

Index abstinence (chat): partial (sari), 67, 69; rigorous (chih), 68 accessories (ts'ung), 60, 94, 101, 102, 103, 107, 108, 119, 126, 129, 158, 168, 169, 176, 205, 217, 218, 248, 253, 270, 296, 309, 310, 317-320, 337, 377, 409, 411, 412, 424, 425, 467 accident, 194, 255, 355-357, 360-362, 365, 368, 379, 380, 382, 398, 436, 4 4 9 , 4 5 9 , 4 6 1 , 496,497 accidental killing, 301, 356, 358, 360, 361, 365, 366, 368-370, 378, 380, 381 accusation to the court (kao), 36-38, 252, 259, 260, 295, 315, 325, 360, 361, 385-390, 392, 393, 395-406, 408, 409, 410-413, 430, 445, 516, 543, 547, 549, 550; anonymous, 5; false, 6 adoption, 130-133; of sons w h o reject their adoptive parents, 130; of general bondsman, 132 adoptive parents, 18, 130-131, 392, 393 Altar of the Soil, 16-17, 4 1 , 70 amnesty, 38, 51, 95, 79, 112, 132, 162, 167, 171, 174, 242, 260, 263-265, 269, 270, 321, 332, 406, 407, 408, 468, 534, 540, 545, 556, 557, 5 6 1 564 analogy, 170, 260, 287, 413, 510 animals: domestic, 6, 22, 23, 37 42, 47, 49, 50, 52, 54, 55, 67, 68, 95-98, 101, 112, 114, 116, 178-197, 206, 234, 278, 279-281, 289, 305, 306, 322, 384, 390, 420, 458-460, 4 6 3 465, 468, 503, 504, 569, 570; sacrificial, 6 7 , 6 8 , 7 5 , 112, 114, 116 apocryphal books: chart 79; hou, 78, 79; wei, 78, 79 army, 25, 48, 58, 60, 93, 184, 188, 210,

215-218, 220-226, 228, 233, 241, 282, 284, 285, 289, 324, 405, 406, 519, 520, 524, 525, 531 arrest, 4, 7, 57, 6 1 , 77, 212, 224, 246, 255, 256, 291, 324, 385, 351-352, 392, 403, 405, 416, 437-438, 445, 511-519, 528-530, 532, 536, 5 3 8 539, 559-561, 574-575 astronomical instruments, 78 astronomy, 270 attendance roll [tieri), 64 beacon fires, 57, 58 beating in an affray (tou-ou), 7, 8; an elder brother or sister, 364; parents of department head or county magistrate, 345; a wife or concubine, 359; a wife's children by her former husband, 372 begin an investigation, 260, 577 betting, 466 black magic, 4 Bodde, Derk, xxv breaking prison, 254-256 bribes, 101-102, 106; offering, 108; taking, 107 buried treasure, 47, 508 burning: fields at wrong time of year, 493; government buildings, 496; private homes, 496 camps, 39, 40 canals and ditches, 44 capital city (see also Ch'ang-an), 52, 2 1 , 24, 25, 30, 33, 38, 42-44, 46-48, 57, 59, 6 1 , 64-66, 84, 9 1 , 94, 95, 97-100, 103, 120, 213, 215, 240, 257, 269, 270, 282-284, 313, 321, 351, 404, 408, 409, 413, 415, 418, 422, 426, 479, 499, 523, 555, 566, 568, 571 carry out a crime (hsing), 318, 577

584

Index

causing a person's death or wounds through deception, 451 causing delays and difficulties at customs barrier or ford, 50 certificate of manumission (fang-shu), 133, 577 Ch'ang-an, 18 Ch'ang-sun Wu-chi, 3, 19 children, 5, 17, 35, 123, 130, 131, 139, 152, 156-157, 161-163, 167-168, 170, 222, 243, 246-257, 313, 320, 329, 345, 347, 355, 356, 371-374, 444, 475, 476 China, 10 circumvent the law, 135, 256, 281, 577 cleared area, 26-28 climbing over walls, 43, 44 climbing to high place and looking into imperial palace, 28 Code {la), 3, 4, 5, 10, 11, 23, 37, 86, 107, 110, 118, 119, 120, 124, 134 collective responsibility (lien-tso), lvi, 7, 80; plots of robbery, 319 commanders: who are defending walled cities, 222; who retreat first when in battle, 223 commissioner, 27, 33, 34, 47, 48, 62, 9 2 93, 98-100, 111, 247, 282-283, 343, 351, 423, 422, 430, 459, 499, 559-560 commoners (fan-jen) 7, 9, 10, 2 1 , 34, 40, 42, 44, 50, 115, 132-135, 142, 149, 152, 155-157, 169-174, 194, 209, 244, 250, 251-252, 258, 264-266, 281, 292, 294, 296, 306, 309, 311, 314, 316, 323, 332, 334, 339-340, 348-349, 350, 352-354, 356-358, 361, 362, 380, 381, 383, 387, 4 0 0 402, 407, 434, 440-443, 559, 4 6 5 466, 473, 476-478, 527, 576 communications (kuan), 79, 87 comparable offenses, 27 compensation, 8-9 concealing a criminal, 532 concealing death of parents or husband, 450 concubine, 34-35, 44, 55-56, 9 1 , 1 3 1 132, 134-135, 152-158, 161, 1 6 3 166, 168-169, 172, 239-242, 248,

251, 264, 307-308, 310, 313-316, 355-356 359-362, 367-371, 3 7 5 377, 393, 399, 413, 441-442, 466, 473-477, 479, 565; making the wife a, 20, 155 confession, 5, 130, 265, 392, 395, 397, 399, 400, 403-405, 407, 429, 545 confiscation by the state (mo-kuari), 102, 106, 440 Confucius, 4, 83, 84 confusion, crimes committed by (mi), 19, 27, 161, 276, 484, 577 conscripts, 25, 26, 215-217, 221, 2 2 3 226, 236, 324, 511, 519, 520, 530, 531 contract, 3, 19, 113, 114; of marriage, 152, 153, 577; violating a, 464 contumacy, 272, 540, 561, 563-564, 570, 573 corvee, 121-122 corpses, 272, 354 counterfeiting, 205, 281, 419-425, 428 county seat, 44, 47 courier, 46, 47, 51, 93-96, 99, 214, 215, 220, 283, 351-352, 447, 459, 574, 575 custodial official, 23, 30, 44, 49, 100, 142, 149, 182, 195, 198, 199, 2 0 1 203, 206, 293-295, 299, 300, 306, 311, 388, 406, 410, 438-439, 440, 442, 456-457, 463, 478, 479, 501, 503, 522, 524-525, 529-530, 5 4 0 541, 550, 553, 563 customs barriers, 10, 11, 44-55, 98, 282, 284, 411, 445-447, 479; climbing onto or over, 44; frontier, 11, 54; going around, 46, 47, 50, 54, 55; passing through, 46-53 cutting a dike to steal water, 488 defacing: imperial decrees or official documents, 499; tallies, ensigns, or official seals, 499 destroying: objects of the spirits, 498; utensils, articles, trees, and crops, 503 delay, 50, 51, 95; of army levies, 25, 93, 220; in carrying out official matters, 100; in copying of imperial decrees, 79; by men and artisans, 26, 236; in official matters, 100; in return of mil-

Index itary equipment, 47, 504; in sending prisoners into penal servitude or life exile, 566; deliberate (on a case), 120, 198, 576 deliberate connivance (ku-tsung), 17, 37, 51-53 deliberation (yi), 34, 345, 347-351, 454, 536, 548, 576 department head, 9, 27, 33, 37, 247, 343-345, 347, 401 Department of State, 47, 67, 84, 85, 119, 120 desertion, 43, 224; from army during campaign, 48, 519-521, 523; by imperial guards, 522 destruction: of a corpse, 28, 271; of altar mounds for the great sacrifices, 498 disabled (fei-chi), 114, 123, 152, 239, 240, 242-243, 264, 328, 330, 3 3 3 334, 382, 396, 443, 454, 543, 557, 565, 572 disclosing important matters, 77-78, 500 discord, 269, 272, 360, 374, 561 divorce, 167-168, 174, 313; three conditions preventing, 167, 168, 577 dogs that bite, 190, 192-194, 322 doing what ought not to be done (puying te-wei), 35, 36, 43, 47, 90, 103, 113, 132, 134, 156, 159, 175, 193, 211, 225, 232, 238, 245, 286, 316, 413, 429, 448, 450, 452, 454, 466, 510, 527, 548 domestic animals, 23, 42, 37, 50, 54-55, 101, 114, 116, 181, 187-197, 206, 234, 280-281, 289, 305-306, 322, 420, 458-459, 463-465 doubtful case, 575-576; offense, 5 4 3 544, 577 drugs (see also medicine), 76; poisonous, treating people with, 28, 265 duty, 37, 38, 40, 42-43, 64, 65; assignment of, 31; days on, 26; imperial guardsmen who do not come to serve their turn of, 37-38; night 26 dwelling together, 372-373 emergency exchange documents (t'ieh), 47

585

emperor, 20, 25-27, 30, 3 2 - 3 3 , 35-36, 39, 40, 65-67, 70-77, 8 1 , 83-86, 94, 98-99, 103, 111-112, 119-120, 138, 144, 188, 214-215, 219, 231-232, 269, 275, 279-280, 283, 293, 341-342, 346-347, 384-385, 388-389, 4 1 3 415, 419, 428-430, 433, 445, 498, 571; announcing an appointment to (tsoushou), 59, 60; articles for, 75; boats for, 73, 74; clothing for, 74; criticism of, 92; medicine for, 71, 72; relatives within sixth degree of mourning, 346; time schedule in accompaying, 66 empress, 88, 95, 280, 419-420 encroaching upon streets, lanes, and roads, 43, 469 ensigns, 98-99 entering a person's house at night without reason, 276 envoys, 55; of foreign countries, 78 equal field system {chun-tien), 37 error (wu), crimes committed by, 19, 6 2 63, 76, 80-82, 84-85 examinations, 60—62; in interrogating a prisoner, 545 excess profit, 112—113 exchanging private goods and slaves for government articles, 305 explanations (chieh), 87 extortion, 110, 112,115,119; by officials, 118; by family members of officials, 16, 117; with force, 110-111 failure: to give advance announcement of a great sacrifice, 67; to repair dikes at right time of year, 487 false accusation, 9, 225, 386-390, 3 9 5 396, 398-401, 403, 407-408, 410, 413, 544 false claims of inheritance by those who are not in correct line of descent, 435 false claims to be an official, 4 1 , 437, 455 false combining of households, 135 false testimony, 4 1 , 454, 557 family, 49-50, 83, 107, 113, 117-119, 126-127, 131-134, 136-138, 140, 149-150, 152-155, 157, 163-164, 166,168-169, 173-174, 216, 232, 240,

586

Index

243-244, 264, 267, 356, 360, 381, 400, 547, 565,

251, 257-258, 260, 270, 302-303, 321, 369-370, 373, 375, 459, 471, 532-534, 580

263355380542,

father, 89, 9 1 , 136-137, 158, 161-163, 175, 2 3 9 - 2 4 1 , 246, 255, 315, 3 5 5 365, 371-373, 379, 392-393, 474-476 favors: seeking, 104-107; granting, 104 Filial Piety Classic, 5, 10, 16 finding lost articles, 509 fires inside warehouses, treasuries, or granaries, 493 five types of scrutiny, 545, 577 food: emperor's 20, 73, 76; presented to officials, 76 ford, 44, 50, 51 foreigners, 54, 55, 56; marriage with, 65 forgery, 281, 425, 427-428, 431, 433, 440, 441; of imperial decree, 427 formulate a plan (tsao-yi), 107, 318 fraud, 106, 142, 154-155, 171, 2 2 5 226, 294, 387, 407, 419, 429, 4 3 8 440, 448, 456; in avoiding taxes and labor services, 447 garrison, 25, 43-46, 199, 212, 222-228, 236-237, 282, 284, 511, 520-521, 524 garrisons, 43-45, 117, 226-227, 351 general bondsman (tsa-hu), 18, 2 1 , 132, 171-174, 244, 269, 447, 473-474 God of the Soil, 68 government offices, personnel in, 59; government property, 23-24, 47, 101, 197, 200-204, 207-209, 213, 230, 232, 443, 483; borrowing, 200; loss of registration documents for, 501; wasting, 24, 204 governors, 86, 98, 247 grandparent, 8 9 - 9 1 , 129-130, 158, 159, 161, 163, 166-167, 169, 248, 2 5 0 251, 258-259, 267-269, 274, 315, 345, 354, 356, 363, 365-369, 3 7 7 378, 383, 391-393, 395, 400, 402, 413, 449-450, 455, 459, 538-540 grandson, 89, 9 1 , 129-130, 132-133, 137, 158, 166, 175, 194, 239, 2 4 2 243, 255, 260, 264, 268-269, 2 7 1 -

272, 274, 287, 302, 307-316, 3 6 5 370, 377-378, 392, 393-394, 399, 401, 404, 412-413, 435, 441-442, 466, 475-476, 538, 540, 565 great irreverance (ta pu-ching), 93 guarantor, 453, 546, 548, 577 hearings (shen), 6, 88-90, 333, 544, 556, 560 heir, 131 herdsman, 22, 178-181, 187 hierarchy, 4, 9, 10 hostages, 256-257 household, 121; head of, 121-122, 128; members of, 121-122 household register (c/ii), 17, 121, 127, 134-135, 148, 170, 240, 250-251, 257, 263, 444, 448, 515-516; leaving off members from, 122-126; omitting a household from, 124-126; separate, 129-130 Hsiao Ho, 121 husband, 88, 91, 134, 152-159, 161, 163-164, 166-169, 171, 242-243, 248, 251-252, 258, 267-268, 270, 313, 355, 359-363, 367-376, 378, 383, 391, 393, 395, 399, 449-450, 455, 473-474, 476, 478-479 illegal coining of money, 457 illegal cultivation of other persons' grave plots, 140, 142 illegal cultivation of public or private land, 139 illegal passage through customs barrier, 46, 50, 51 illegal sale of public or private land, 141 illicit goods (tsang), 6, 110, 112; obtained through malfeasance (tso), 53, 101-103, 105-106, 107-108, 111, 114-116, 118, 126 illicit sexual intercourse (chien), 160-161, 165, 167-168, 175-177, 248, 2 7 6 277, 302, 466, 473-479, 515-516, 535, 563; by male slaves with commoners, 476 impaired (ts'an), 123 imperial ancestral temple, 15-17, 41

Index imperial audience hall, 18-30, 32-37, 39-40, 43-44, 202, 204-285, 3 4 1 342, 416, 421-422, 499 imperial boats, 72-73 Imperial Chancellery, 67, 99; Director of, 87 imperial city, 2 1 , 42-43, 44 imperial city gate, 33 imperial clothing, 74-75 imperial cortege, 36, 40, 42 imperial gardens, 20, 41 imperial grave area, 16 imperial harem ladies, 27, 3 0 - 3 1 , 35 imperial kitchen, 20 imperial palace, 17, 19, 21-22, 24-26, 2 8 - 3 1 , 33-34, 36-37, 42-44, 46, 49, 99, 282, 284-285, 341-342, 421-422, 495, 497, 499, 523 imperial palace city, 17, 37, 42 imperial palace gates, 17-18, 32, 40 imperial pavilion, 18-20, 27, 3 0 - 3 1 , 35, 39-40 imperial tombs, 15-17 imperial way, 28-29 incapacitated {tu-chi), 123, 239, 243, 2 6 3 264, 330, 396, 404, 544, 565 inferior class, 50, 133, 157, 168, 261, 266, 305-306, 315, 339, 354, 3 5 6 357, 407, 444 injury, 8 innocent people, 5 inquisitor, 339, 577 interrogation, 50, 98, 325, 545-547, 549-550 investigate (chiu-t'an), 111 judicial torture (k'ao-hsiln), 6, 26, 50, 52, 227, 390-391, 408, 543-549, 552, 568, 569 junior special duty officers, 101-102 kidnapping (ltieh), 300, 302, 307-316, 441-442, 563 killing (sha): accidental (kuo-shih) 7 - 8 ; and being removed from the community, 269; in play (hsi), 302, 378, 379; intentional (ku), 8, 36; three persons in one family, 27, 257

587

Ku poison, 28, 262-265, 563 Kuangtung Province, 38 Kung-tzu Cha, 119 lack of filial piety (pu-hsiao), 91 large group, 270, 577 Legalists, 4 Ling-nan, 38 Lo-chou, 97 locks (gate), 45-46 magic, 4, 263, 267, 269, 274 magistrate, 5, 9, 63, 98, 125, 145-146, 151, 217, 247, 323, 343, 345, 347, 351, 401, 415-416, 487, 500, 531 maimed (ts'an), 123, 152, 330 major offense (chung-hai), 281, 577 malicious intent, 267, 271-272, 287, 378, 577 manumission, 133-134; certificate of (shou-shu), 134 market certificate, 485 marriage, 46, 55, 116, 119, 121, 1 5 2 155, 157-162, 164, 166, 169-178, 181, 243-244, 249, 281, 321, 357, 398, 407, 414, 577; with another man's wife by consent, 166; with a foreigner, 55-56; while parents are in prison, 158; during period of mourning for parents or husband, 157; with a second wife, 20, 154; within sixth degree of mourning, 162; by those with same surname, 160; that violate the Code, 173-174; with woman who has run away, 164; wrongful substitution by bride's family in a, 154 master, 133, 145, 152-153, 157-159, 169-170, 175-176, 196, 250-252, 260, 268-269, 271-272, 274, 2 7 6 277, 310, 318-319, 354-358, 378, 380-381, 391, 400-401, 412-413, 449, 461, 474-478, 533, 535, 538, 540, 564, 570, 577; of the household, 152, 577; who kills a slave who has committed an offense, 354 mediation, 4 medicine, 46, 71-72, 76, 183, 383, 4 6 1 463, 471, 542, 580

588

Index

memoranda to the throne (chuang), 87 memorials to the throne (tsou-ch'ao), 29, 69, 80, 84-85 merit rating of officials, 60 Methods of the God ofTiiunder, 79 Methods of the Great Monad, 79 miscellaneous labor services (tsa yao), 121-122, 148, 231, 448, 524 missions, 87, 101 mistaken claims that a commoner is a slave, 42, 466 mistaken killing of a bystander, 378 mistaken offenses, 37 mother, 83, 89, 9 1 , 94, 152, 161-162, 167, 239-241, 246, 280, 329, 356, 366-367, 370, 373, 392-394, 419, 474, 477, 565 music, 88, 90-91 musician bondsmen (yueh-hu), 172, 244, 247-248, 269, 447, 523-524 mutual concealment, 259, 398, 516, 518, 533 name register (ming-chi), 2 0 - 2 3 , 25-26, 30, 34, 47 name taboos, 83, 91 national mourning, 4 1 , 457 New Year's day, 20 Niida, Noboru, 9 officer in charge, 2 3 - 2 5 , 45, 49-52, 57, 70, 95, 104-105 official bondsmen (kuan-hu), 40-49, 132, 171-172, 244, 269, 352, 443, 462, 526-527, 531, 557, 560 official documents (kuan wen-shu), 80, 82, 94-95, 100 officials, 9, 10, 27, 119; who borrow goods and articles within their area of supervision, 111, 113; who desert their post without reason, 49, 527; who do not follow the time schedule in accompanying the emperor, 65; who do not take bribes beforehand, 109; who encroach upon private land, 19, 142; who exact goods and articles from persons within their area of jurisdiction, 116; who force the market, 112-113; who

improperly set up stone monuments, 102; who know circumstances of crimes committed by their family members, 113; who make use of labor within their area of jurisdiction, 114; who receive presents, 111, 116, 118; who are required to be on duty but are not, 64; who take bribes for favors sought, 106; who take goods and articles within their sphere of jurisdiction, 102, 110, 112-115, 117, 456 omens and portents, 40, 275, 444-445 order, give an, 36, 51, 54, 57, 60, 88, 9 0 - 9 1 , 99, 102-104, 122, 127, 130, 132, 135, 148, 156, 175, 199, 207, 210-211, 214-215, 221, 223-224, 225, 228, 256, 263, 267-269, 2 8 2 283, 308, 319, 336, 366-367, 371, 375, 399-400, 402-403, 411-414, 420, 424, 426, 429, 432-433, 435, 439, 441, 450, 452-453, 455, 458, 481, 497, 511-512, 517, 547, 549, 555, 565, 567 Ordinances (shih), 86, 119-12, 221, 281, 283, 417, 525, 527, 554 ordinary affray ifan-tou), 342-346, 3 4 8 349, 351-353, 361, 363, 375-377, 515, 554, 577 original plotter (yuan-mo), 108, 249, 270, 319, 335-337, 577 outposts, 43—46; frontier walled, 56-58 paper certificate (chih-chuan), 93 parents, 9-10, 88, 9 1 , 94, 129-131, 136, 152, 157-159, 161-163, 166-169, 175-176, 248, 251, 258-259, 264, 267-269, 271-272, 274, 314-315, 322, 331, 345, 347, 366-370, 3 7 7 379, 392-394, 400, 413, 449-450, 455, 459, 478-479, 538-540 passport (kuo-so), 4 7 - 5 1 , 96-97, 577 period of mourning, 70, 8 9 - 9 1 , 134 period of responsibility {pao-ku), 194, 328-329, 333-334, 337, 577 personal retainer (pu-ch'u), 124, 132—135, 155, 170, 172, 239-240, 244, 2 5 0 251, 257-258, 260, 264, 268-272, 274, 307, 308-311, 314-315, 3 1 8 -

Index 319, 349, 352-359, 378, 400-403, 412-413, 417, 466, 473-477, 526-527, 538, 540, 557, 560, 564,

380-381, 441-444, 531-533, 570

petition (ch'ing), 19, 27, 92, 354, 3 8 5 386, 403, 416, 454, 536, 543, 548 petitioner's drum, 413 plot (mou), 8; of great sedition (ta-ni), 77, 239, 241, 245; to kill (sha), 8, 247, 248, 250-253, 266-268, 381, 564; of rebellion (Jan), 77, 211-212, 239, 2 4 0 241, 245-246, 384-385, 392, 397, 400, 403-405, 408-409, 411, 4 2 8 429, 517-518, 563-564, 566; to take bribes, 107, 109; of treason (p'an), 77, 245-246, 392, 405, 408, 428, 564 post horses, 95, 96, 97, 446, 471 postal relay, 93-97, 99, 283 postal relay station, 93, 96-97, 446-447, 473, 519, 575; wrongful entry of a, 43, 472 precedents, 3 prefect, 9, 63, 95, 98, 125-126, 151, 182, 247, 343, 345, 401, 415-416, 487, 531 principal (shou), 23, 77-78, 94, 101-102, 107, 108, 126, 145-147, 149, 151, 153-154, 158, 165, 168-169, 172, 176-177, 180-181, 185, 203-204, 241, 245-246, 248-254, 258, 263, 269-270, 292, 296, 302, 304, 3 0 9 310, 317-320, 324, 335-337, 3 5 7 358, 368-369, 377, 380, 401, 409, 411-412, 424-425, 453, 461, 485, 528, 531, 533, 577; chief, 270, 577 prison, 91 prison official, 389-390, 404, 536, 542, 546, 549-550, 552, 555-557, 570, 573 prisoner, 98, 254-256, 385, 404, 497, 512-513, 522, 528-530, 535-542, 540-542, 544-546, 549-553, 556, 559-560, 564-566, 570-571, 5 7 4 575 private agreement (for marriage), 152— 153, 259, 441, 577 procedure, 4 reciprocal punishment, 386-389, 4 0 8 409

589

reduced value, 97, 115, 192-193, 294, 453, 458-459, 463, 489 Regulations (ko), 59, 86, 92, 94, 121, 186, 188, 196, 231, 237-238, 242, 303, 321, 417, 444-445, 447, 501, 509, 547, 554, 556 relatives, 5, 105, 115-116, 119 reports (tieh), 79 resisting arrest, 255-256, 513-515 robbery (tao), 4, 6, 10, 322; of cattle or horses, 289; committed three times, 320-321, 546, 571; by force (ch'iangtao), 199, 200, 290-291, 294, 297-301, 303-304, 307-308, 310-311, 316, 318-320, 323-324, 327, 334, 381, 416, 453, 456, 463, 503, 506, 5 1 7 518; of an imperial decree, 29, 281; of an imperial seal, 29, 279; of military weapons, 29, 284; of the sacred objects of the spirits, 28, 278, 289; of seals for official documents, 29, 280, 499; by stealth (ch'ieh-tao), 256, 2 9 0 292, 298-299, 303-304, 310-311, 316, 319-320, 397, 416-417, 441, 453, 456, 518 runaways, 48, 49, 523, 525, 526, 574 sacrifices, 28, 46, 6 7 - 7 1 , 116, 157, 172, 185-186, 204-205, 244, 248, 269, 278-279, 286, 289-290, 373, 420, 447, 498-499, 524, 570 sale of personal share land, 137 seals, 98, 199, 207, 279-281, 283, 4 1 9 421, 423-426, 428, 441, 480, 483, 498-501, 507, 509, 513 Secretariat, 79 senior official, 98, 101, 102, 103 senior special duty officer, 101 separate goods, 129, 130, 357, 372, 373 setting traps, 460 ShangYang, 4, 10 Six Strategies of the Great Duke, 79 slave (nu-pei), 114-124, 132-134, 141, 155, 169-172, 174, 195-196, 240, 244, 247-248, 250-251, 257-258, 260, 264, 268-272, 274, 276, 292, 300, 305-316, 318-319, 349, 3 5 2 359, 378, 380-381, 391, 400-403,

590

Index

407, 412-413, 441-444, 446, 462, 465-466, 473, 475-477, 485, 5 2 6 527, 531-533, 535, 538, 540, 557, 560, 564, 570 social control, 4 soldiers, 47, 52, 56, 210-215, 217, 220, 222-223, 225, 237, 239, 241, 2 4 7 248, 343-345, 385, 520, 525 son, 9, 91, 129, 130-134, 136-137, 158, 162, 166, 168, 175, 194, 239-243, 245-246, 255, 260, 264, 268, 269, 271-272, 274, 287, 293, 307-308, 302, 309-315, 356, 364-371, 374, 377-379, 392-394, 399, 401, 404, 407, 412-413, 419-420, 435-436, 441-443, 466, 475-477, 479, 538, 540, 565 Statutes (ling), 6, 9, 30, 59, 68-69, 79, 86, 94-95, 97, 109, 119-121, 1 3 1 138, 150, 156, 161, 182-183, 193, 213-214, 218, 228-231, 233, 243, 245, 251, 281, 283, 293, 404, 411, 415, 417, 419, 422, 434-435, 447, 450, 457, 463, 464, 468, 470-472, 479, 480, 483, 487, 494, 504, 5 0 7 511, 519, 527, 536, 537, 542, 5 4 5 546, 552, 554-555, 563, 566-567, 570, 573, 579 stone monuments, 102-104 strike a blow (hsm-shou), 270, 337-339, 577 subvert the law, 104-106, 108-110, 113, 126 supervisory official (chien-lin), 23-24, 34, 39, 51, 102, 105-106, 108, 110-111, 114-118, 128-129, 164-165, 174, 196, 201, 206, 237-238, 260, 263, 296, 299-300, 306, 339, 350, 417, 442, 449, 463, 465, 479, 553, 562, 569, 572 surrender, 223, 324, 512-513 tally O ) , 32, 47, 79, 81, 87, 98-99 tax register representatives, 100 taxes, 149-152, 205-207, 209, 422, 526; and labor services (k'o-γι), 121-123, 127, 129, 132, 135-136, 144, 146, 149, 236, 447, 525; not allowing rightful

exemption from, 148; required pay­ ment of, 24, 205 ten abominations (shih-o), 4, 258, 2 6 8 269, 297, 332, 534, 561-564 territorial representatives (ch'ao-chi shih), 100 Time Plans of the Yellow Stone Duke, 79 threshold, crossing over, 19-20 throwing away imperial decrees or offi­ cial documents, 499 throwing away tallies, ensigns, or official seals, 499 throwing away objects of the spirits, 498 throwing away utensils, articles, trees, and crops, 503 time limits, 38, 79, 80, 93, 100; on moving to take office, 11, 65, 66 transfers (yi), 79, 81, 87 transmission (chuan), 99 trial procedure, 4 Tseng-tzu, 5 Tunhuang, 3 Twitchett, Denis, Iv, unathorized dispatch of troops, 25, 210, 212 unauthorized entry (lan-ju), 7-8, 15-26, 30, 34-35, 40-41, 43, 577 unauthorized ordainment: as Buddhist priest, 128; as Taoist priest, 128 unrighteousness (pu-yi), 91 urgent military matters, 93-94 village headmen, 118, 124, 126-127, 136, 143-147, 151, 217, 256, 262, 323-324, 416, 524-525, 530-532, 554-555 violation, in carrying out imperial de­ cree, 80 violation, of curfew, 43, 469 violation, of orders by sons and grand­ sons, 399 violation, of statutes, 47, 149, 151, 175, 219, 509 violation, of tombs, 29, 274, 286 ward, 46, headmen, 118 warrant (chuan), 47

Index weapons, 18-20, 22, 26-29, 34-36, 39, 43, 48, 53, 55, 97-99, 178, 185, 203, 212, 220, 223, 227-228, 232-234, 284-285, 292, 294, 325, 328, 331332, 341, 385, 390, 422-423, 505, 511,513-514 widow, 163, 139, 176, 251, 370 wife, 55-56, 88-89, 131-132, 134-135, 137, 153-159, 161-173, 222, 239246, 248, 250-251, 257, 264, 307310, 312-316, 321, 345, 347, 352, 359-363, 367-376, 378, 393, 399, 413, 435-436, 441-442, 466, 473477, 479, 527 Winter Solstice, 20

591

witnesses, 390-391, 454, 541, 543-544, 575 wounding (shang) a person, 235, 255, 303, 325, 327, 333, 379, 382, 383, 462, 489, 496, 529 wounding: by accident (kuo-shih), 7-8; intentionally (few) 36 wounding in play {hsi), 7, 262, 378-379, 382-383 written permit (wen-tieh), 24-25, 46 written statement, 50, 409-410, 545, 556 wrongful claim of commoner to be a slave, 441 wrongful claim to public or private land, 166

A B O U T THE T R A N S L A T O R Wallace Johnson is Professor of East Asian Languages and Cultures at the University of Kansas