CASE 7:  Homicide and the Law in 18th Century China

Capital case records were official documents that served a specific legal function and were not meant for public use or consumption. This does not mean that they did not have a social function. One function of case records was to document the most serious criminal cases and demonstrate that the sentence had been arrived at impartially and only after careful consideration of the evidence. This meant that the document would typically cite applicable statutes, forensic evidence, and testimony. If the accused were found guilty, it would assign specific punishments according to Qing law.One reason for the concern with fairness was the understanding that the public would be hard to govern if they felt the justice system was unfair. Classical writers in China early on warned of this possibility:

If you want only murder law-abiding people, or murder people who have surrendered (in battle), or if you punish the innocent, then these calamities will all revert back to yourself.

大殺服民, 僇(戮)降人,  刑無罪,  過(禍)皆自反也。

If executions and prohibitions do not suit (the crime), then the harm will revert back to you.

誅禁不當,  反受其央(殃)。

Source: Jingfa 13, 22, 33, 35.

In eighteenth-century China, all homicide cases were to be carried out according to the same procedures so as to ensure fairness. Once a district magistrate received notice that a homicide had occurred and his investigation had begun, he had five days in which to send a preliminary report. Within ten days an accurate and detailed report of the circumstances of the crime had to be filed. Afterwards witnesses and accused criminals would be rounded up and brought to court for interrogation. Prefectural officials and provincial officials often personally conducted trials and interrogated witnesses and accused criminals, but central government officials relied on transcripts and written documentation.

The system provided multiple checks to prevent perfunctory sentencing. For example, if witnesses altered testimony or a confessed killer recanted, the case would be returned for retrial. Family members also had the right to appeal decisions and to introduce new evidence at higher levels of review. Finally, higher level officials could remand a case if they found the narrative of the crime implausible or suspected misfeasance on the part of lower level officials. All this was to ensure that the populace perceived the judicial system as fair.

Read about a review official’s critique of the higher court’s decision in a 9th Century Murder Case Review.

Fairness did not imply leniency. When witnesses or the accused stuck to a dubious version of events, they were presented with material evidence that contradicted their version of events and threatened with torture. As in Europe at that time, or in some Western countries today, the use of torture was legal. Unlike in early modern Europe, torture in China was carefully regulated by law: the size, weight, and use of instruments of torture were clearly defined. Magistrates were required to report the use of torture, and it was meant only as a last resort. Qing judicial officials recognized that statements made under torture could be unreliable and they warned that torture was no substitute for a thorough investigation. But the law required a confession to convict someone of a capital crime, so when the evidence was overwhelming and the accused refused to confess, torture was employed.

Go to the next section: CRITICAL ASSESSMENT

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