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

When looking at old objects or texts you should try to avoid the three most common mistakes people make:

  1. One common mistake in looking at old artifacts is to take them as typical of an entire period or even an entire race. In this case it would be a mistake to think that it was common for wives in China to plot their husband’s murder.
  2. Another common mistake is thinking that an object is unimportant because “it isn’t typical.” Of course it is important to investigate the lives of “typical people,” their dignity and their suffering. But Galileo wasn’t typical, nor was Newton. Fact is, we can also learn a lot from people or events that are unusual for their time. The careful way in which the Qing justice system handled this unusually heinous crime says a lot about legal procedure in Qing China.
  3. Finally, people sometimes make the mistake of judging an old object as if it were a modern one. In this case, we might fault the Qing justice system for lacking a Miranda Provision. All such views are examples of the mistake of “anachronism,” that is, judging the past by the standards of the present.

So how should we approach a murder case like this? Well, we should first consider how was it actually produced? What procedures affected the final content? For example, the record shows that the law required magistrates to compile and record facts very carefully, but we should not presume that records were being compiled with modern levels of precision. For example, despite the fact that these case records include depositions; there are no traces of regional dialects in case reports. In other words, whether a case occurred in Sichuan or Guangdong, the testimonies are recorded in the standard dialect. We must assume that individual testimony has been “translated” into what we now refer to as Mandarin so that officials from all regions could understand. What we have then are not verbatim transcripts, but official translations of testimonies and confessions. The experienced reader of these reports soon realizes that while the facts of the main narrative of the case are likely an accurate retelling of events, the compilers of case records have done some significant editing.

Another thing historians do to read critically is to understand a document in period terms. How did people think about such things back then? What biases were built into the justice system? See Hidden Biases: the Role of Filial Piety

What assumptions did a Qing magistrate bring to the adjudication of a case like this? Most legal systems are informed by something one might call “common sense,” but what counts as common sense differs from time to time and between one place and another.

What were the common sense assumptions underlying the magistrate’s decisions? One can think of at least three features of Confucian teaching that probably influenced the magistrates’ attitudes. First, the Mencian theory of crime held that most people will obey the laws if the laws are just. Moreover, if the people own property and have adequate food, clothing, and shelter, they’ll have a stake in the system and will be unlikely to break the law. But if they have nothing, then they have nothing to lose by breaking the law. Mencius put it like this:

As to the people, if they have not a certain livelihood, it follows that they will not have a fixed heart (that is, fixed principles). And if they have not a fixed heart, there is nothing which they will not do, in the way of self-abandonment, of moral deflection, of depravity, and of wild license. When they thus have been involved in crime, to follow them up and punish them; this is to entrap the people. How can such a thing as entrapping the people be done under the rule of a benevolent man?

Therefore an intelligent ruler will regulate the livelihood of the people, so as to make sure that, above, they shall have sufficient wherewith to serve their parents, and, below, sufficient wherewith to support their wives and children; that in good years they shall always be abundantly satisfied, and that in bad years they shall escape the danger of perishing. After this he may urge them, and they will proceed to what is good, for in this case the people will follow after that with ease.

[Translation from James Legge, ed. and trans., The Chinese Classics, 3d ed., 5 vols. (Hong Kong: Hong Kong University Press, 1960), III: 35-36].

In this view, people turn to crime mainly out of desperation. This was why the Chinese government early on had established a kind of welfare system so as to reduce the numbers of desperate people.

Secondly, Confucian tradition looked upon the people as wholesome but also as ignorant and in need of protection. Indeed, in pre-modern times, the larger part of any population, East or West, was comprised of illiterate farmers. For this reason it was the duty of intellectuals, and especially government officers, to look out for the people’s interests on the assumption that they most likely lacked the education and means to look out for themselves. Modern Western scholars sometimes characterize this view as paternalistic.

Thirdly, Confucianism stressed family values, especially the concept of filial piety. Crimes that were infractions against the principle of filial piety might be punished more severely.

These three assumptions affected the processing of capital cases in three ways:

  1. The two-tiered structure of judicial and sentencing (which discouraged capricious sentencing of defendants).
  2. The general predilection of judges to seek leniency.
  3. Crimes against parents tended to be judged more harshly.

These principles inform the editorial comments that judges wrote for homicide cases, most of which were cases of manslaughter. By definition, manslaughter is the result of unplanned, small-scale altercations between individuals who did not bear a long-standing grudge or any intention to kill. Typically, such cases were quickly investigated and tried by Chinese magistrates seeking to apply the values of humanity (ren 仁) and caring for the people.

See how the principle of judiciary leniency was represented in visual art

Accused killers were often depicted in editorial comments in Mencian terms, that is, as otherwise decent people under duress or in extraordinary circumstances who inadvertently caused a death. These depictions were meant to encourage leniency for the vast majority of capital criminals, and so these normally received only provisional death sentences. However, leniency was not recommended in the case of Ms. Zhou and her lover.

Our case is quite different from the thousands of routine cases handled by the Qing justice system each year. For this reason the case of Ms. Zhou and her lover’s conspiracy to kill her husband would appear to represent Chinese law at its most severe. The most common form of punishment for capital crimes in 18th century China (as in 19th century Europe), was strangulation. But Ms. Zhou was sentenced to a “lingering death,” the most severe form of capital punishment allowed by Chinese law. Her lover, Yuan Ren, was sentenced to “immediate decapitation,” the second most severe form of capital punishment. A sentence that was “immediate” would be carried out at the end of the judicial review. In the overwhelming majority of capital cases the sentence was provisional and subject to further review and, therefore, was often reversed.

Historians also evaluate texts in relation to the period context, and the social context in China was changing rapidly during the 18th century. By any measure, eighteenth-century China witnessed unprecedented growth. Needless to say, though the economy grew overall, not everyone was a winner. Wen Shaolong appears to have been one of the losers. Landless and homeless, he made his way to the “frontier” of Sichuan. His two most important assets were his wife and his son. Indeed, the case record reveals that he considered selling his wife to Yuan Ren. Although the selling of wives was illegal in China, sadly it was not uncommon during the eighteenth century.

Yuan Ren on the other hand, appears to have been an economic winner. He owned a distillery and he seems to have had plenty of silver. However, he had no wife, and this meant that he had no heirs. Still, there remain many unanswered questions in this case. It appears that Wen Shaolong had relatives who had some means, so why did they not take him in when he was in straits? Similarly, Yuan Ren was a man of some means. Why was he unable to find a wife? Why would he go to such lengths to pursue Ms. Zhou? Was it love?

Go to the next section: NOW AND THEN

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