2. Crime and Punishment | Personal testimony given in four legal cases (3rd–2nd c. BCE)

Yao, Ping; Zhang, Cong Ellen; Ebrey, Patricia Buckley

Chinese Autobiographical Writing: An Anthology of Personal Accounts

2 CRIME AND PUNISHMENT Personal testimony given in four legal cases (3rd–2nd c. BCE)

These accidentally preserved case records include personal testimony written down by scribes, providing glimpses of ordinary people’s lives.

From early times, even ordinary people were asked to tell their own stories or account for themselves in legal disputes. Victims, witnesses, and the accused would give oral testimony of what occurred. Bureaucratic practice necessitated making written records of their testimony, and in rare instances this has survived. Although one must often wonder to what extent coercion shaped the testimony, surviving examples do provide glimpses of how people unable to write presented themselves to others in words.

The earliest surviving case records date to the Qin and Han periods. Although the Han dynasty turned away from the harshest features of Qin Legalism, it retained much of its legal system. Offenses punishable by law ranged from immorality to theft, bodily harm, and defiance of the civil authority. Punishments included exile, hard labor, flogging, castration, and death. The Han law code, like its Qin predecessor, allowed nobles, officials, and their family members to have their penalties reduced by giving up their titles or property. Legal documents unearthed during the second half of the twentieth century show that both dynasties developed complex and sophisticated procedures to ensure full review of the sentencing process.

In this selection, we present four legal cases that record personal testimony by those involved. The first three cases were included in a bamboo strip text discovered in a 217 BCE tomb in Shuihudi, Hubei, for a Qin administrator. The text, titled “Forms for Sealing and Investigating” (Fengzhen shi), consists of twenty-three cases to use as precedents for conducting investigations. These documents recorded personal narratives by the accusers, the accused, and the investigators, and they show that by Qin times, a son’s filial piety had become so imperative that he would be harshly punished if his father filed a formal complaint against him and that Qin women could file criminal reports on their own.

The fourth document is from The Book of Submitted Doubtful Cases (Zouyan shu), a bamboo slip document discovered in 1983 in a Han official’s tomb in Zhangjiashan, Hubei. The book contains twenty-one legal cases dating between 246 and 196 BCE. “Officials Zhuang and Xi Submitting a Doubtful Case” (Hu Zhang Cheng Xi gan yan an) shows that by the early Han, elaborate legal procedures were established to uphold the institution of marriage.

Three First-Person Accounts in Shuihudi Qin Bamboo Strips

1. BANISHING A SON

Transcript: A, a commoner of X Village, said in his denunciation, “Request to have the foot of my own son, C, a commoner of the same village, amputated and to have him banished to a border county in Shu, with the injunction that he must not be allowed to leave the place of banishment. This is my statement.” I inform the head of Feiqiu [modern-day Xingping, Shanxi, first stop from Xianyang to Shu], “The commoner from Xianyang, living in X Village, named C, has been adjudicated because his father, A, requested to have his foot amputated and have him banished to a border county in Shu, with the injunction that to the end of his life he not be allowed to leave the place of banishment. We have banished C according to A’s denunciation. His family members are banished along with him, as the statute stipulated. Now we have amputated C’s foot. We ordered officers and conscripts to carry out the transfer. They will carry travel permits and a case report and hand them over to the county clerk. Be sure to replace the clerks and the conscripts, and do so through successive prefectures up to Chengdu. In Chengdu, the case report is to be presented to the governor. He is to be fed according to the Statutes. Once the Feiqiu staff transfer him, a report is to be made.” This I report to the head.

2. DENOUNCING A SON

Transcript: The commoner A of X Village said in his denunciation, “My, A’s, own son, the commoner C of the same village, is unfilial. I request to have him executed. This I report.” Forthwith the prefectural clerk E was ordered to go and arrest him. Transcript of prefectural clerk E’s report: “Together with the prison bond servant X, I seized C; we caught him in the house of X.” The assistant prefect X interrogated C; in his statement he said, “I am A’s biological son; I have been truly unfilial toward A at home. I am currently not being prosecuted for any other crime.”

3. A STILLBIRTH

Transcript: A, the wife of a commoner of X Village, made a denunciation, saying, “I, A, had been pregnant for six months. Yesterday, in the daytime, I fought with the adult woman C of the same village. C and I grabbed each other by the hair. C threw me on the ground. A fellow villager, the grandee of the first order D, came to the rescue and separated us. As soon as I had reached home, I felt ill and my belly hurt; by the evening, the child was stillborn. Now I have wrapped up the child, and I have come to bring it, to report it in person and to denounce C.” Forthwith an order was given to the prefectural clerk X to go and arrest C. Immediately I inspected the baby’s sex and whether it had grown hair, as well as the condition of the placenta. Furthermore, an order was given to a bondwoman who had several times given birth to inspect the blood coming out of her front part as well as the condition of her wounds. I also interrogated the members of A’s household about A’s situation when she had reached her house, as well as the circumstances of the pain in her belly and of the child’s coming forth.

Transcript of the assistant prefect B’s report: Order was given to the prefectural clerk X and bond servant X to inspect the child that A had brought along. Before, it had been wrapped in a hemp cloth; it had the appearance of congealed blood, as large as a hand; it was not recognizable as a child. When it had been placed in a basin with water and shaken, the clotted blood was recognizable as a child. Its head, body, arms, fingers, and from the thighs down to its feet and toes, all resembled those of a human being. Its eyes, ears, nose, and sex were not yet recognizable. When taken out of the water, it again had the appearance of clotted blood.

Another report [on the examination of the wound] says: An order was given to the bondwomen XX, who had several times given birth, to inspect A. They said, “There is dried blood on the sides of her front part. At present blood is still coming out of her, but [only] a little; it is not menstruation.” One said, “When I once was pregnant and miscarried, I lost blood from my front part the same way as A did.”

SOURCE: Shuihudi Qinmu Zhujian Zhengli Xiaozu, Shuihudi Qinmu zhujian (Beijing: Wenwu Chubanshe, 1978), 155, 156, 161–2. For other translations of these cases, see A. F. P. Hulsewé, Remnants of Ch’in Law (Leiden: Brill, 1985), 195, 196, 205.

Officials Zhuang and Xi Submitting a Doubtful Case

In the tenth year of Emperor Gaozu [197 BCE], on the guisi day of the seventh month, whose first day fell on a xinmao day, Magistrate Zhuang and Assistant Magistrate Xi of Hu County [Henan] dare to submit this case for decision by higher authorities:

The official accusation states, “Judiciary clerk Lan, from Linzi [Shandong], commanded the woman, Nan, to wear a man’s cap of undyed silk, feign illness, and lie inside an official carriage. He appropriated the travel permit of grandee of fifth-order Yu and brought her out of the Hangu Pass without authorization.”

Now, Lan stated, “Nan is a member of the [former] Tian royal family of Qi. She had been ordered to reside in Chang’an. I had been assigned to accompany her on her journey and married her as a legal wife. We were to return to Linzi. We had not yet exited the pass when we were caught.” Everything else is as stated in the official accusation. Nan’s statement was similar to the official accusation and to Lan’s statement.

Lan was cross-examined: “You were not allowed by law to marry Nan as your legal wife but did it anyway and together with her were returning to Linzi. This is a case of ‘coming to lure’ as well as ‘engaging in illicit intercourse.’ Nan is an absconding aristocrat, yet you ‘hid her.’ How do you explain this?”

Lan stated, “I was traveling to the capital on assignment for Nan’s relocation, but then married her as my legal wife. It is not a case of ‘coming to lure.’ The officials consider this to be ‘engaging in illicit intercourse’ as well as ‘hiding Nan as an absconder.’ I am guilty of these charges; I have no excuse to give.”

Lan was cross-examined: “One of the reasons the statutes prohibit people ‘coming from the kingdoms to lure’ is to prevent persons from one kingdom from marrying persons from another kingdom. Although you did not intentionally come to lure, in reality, you lured a person of Han to go to Qi; this, in fact, is ‘coming from the kingdom to lure.’ How do you explain this?”

Lan stated, “I am guilty. I have no explanation to give.”

An inquiry was conducted; it is in the statements.

The case was tried; everything was carefully verified: that Lan had accompanied Nan for her relocation, married her as his legal wife, and together with her was returning to Linzi, and had not yet exited the pass, and was apprehended.

There is no doubt as to what crime Lan is guilty of. He has been detained. We suspended the sentencing and dare to submit this case to higher authorities for decision.

In another case, the private female slave named Qing assisted in the walling of Handan City in Zhao [Hebei]. Shortly after this work was done, she absconded and followed her older brother to the territory of Zhao, and that was judged as absconding and going to the kingdoms.

Now Lan had arrived because he had been assigned to transport a relocated person; then he “lured” Nan.

The commandery official deliberated: “The case of Lan and Qing belong to the same category. Lan’s case should be treated as a case of ‘coming from a kingdom to lure.’”

Another opinion was that “Lan’s case should be treated as ‘engaging in illicit intercourse’ and ‘hiding a person guilty of a crime that matches undergoing tattooing and being made a grain-pounder.’”

In the tenth year of Emperor Gaozu, on the guihai day of the eighth month, whose first day fell on a gengshen day, Gongshang Buhai, the minister of the imperial stables and acting chamberlain for law enforcement, informed the bailiff of Hu County, “Regarding the submitted doubtful case involving judiciary clerk Lan, the submitted doubtful case has been fully investigated and submitted to this court.” The decision: “Lan should be tattooed and made a wall-builder. The other individual should be sentenced according to the statutes and ordinances.”

SOURCE: Zhangjiashan 247 Hao Hanmu Zhujian Zhengli Xiaozu 張家山二四七號漢墓竹簡整理小組, Zhangjiashan Hanmu zhuji (247 hao mu) 張家山漢墓竹簡 (247 號墓) (Beijing: Wenwu Chubanshe, 2006), 93. For another translation of these texts, see Anthony J. Barbieri-Low and Robin Yates, Law, State, and Society in Early Imperial China: A Study with Critical Edition and Translation of the Legal Texts from Zhangjiashan Tomb no. 247 (Leiden: Brill, 2015), 1199–201.