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Remnants of Ch'in Law: Introduction (3) 
作者:[A.F.P. Hulsewe] 来源:[] 2008-07-29
摘要:The following pages indicate what I believe to be important points....

    The following pages indicate what I believe to be important points.I must stress that I am a philologist and an historian,and not a jurist,nor a sociologist.and I will therefore have overlooked or misinterpreted points, which the latter type of scholar would have interpreted in a difierent manner.

   Starting with the judicial material,one is struck by the care bestowed on the investigation of criminal suits.It started with detective work, on which detailed reports were required.A report on the corpse of a man found murdered on the highway describes the exact location of the body,the fatal wounds, the man’s clothes,and even his shoes found at some distance from the body.Another contains the detailed description of a person found hanging on a roof-beam,attempting to discover whether the man had committed suicide or whether he had been murdered and then hung up so as to make his death appear as suicide.A final example of such an investigation is the report on a robbery,where the thieves had entered the house by digging through the pise wall.The report presents numerous measurements for the size of the hole and the location of various objects:it even provides details on the old shoes worn by the thieves, based on a reading of the footprints.

    once caught,a suspect was interrogated.The investigating officials are urged,not to lose their patience when the suspect continued to prevaricate and when it was evident that he was lying;they should not be too quick in applying torture in the form of beating,in order to obtain a confession,only doing so in cases where the statutes permitted this. A confession wrung from a suspect by means of torture was considered inferior.The same warning was voiced some two centuries later:when prisoners could no longer bear the pain,they would produce false confessions.or, as the author put it:“once the stick is applied,(the prosecutor) can obtain anything” For the rest of the trial and the verdict,the texts under discussion do not provide more details, except the rule that after the termination of the trial the accused could ask for another enquiry,a practice also known during the Han period.In the present context it deserves notice that already at this early date there existed a difierence between the written code and the precedents created by the courts,the latter either providing details lacking in the code, or modifying the rules laid down in the statutes by applying heavier punishments than those demanded there.It seems quite likely that such precedents were collected by an agency of the central government (perhaps the Commandant of Justice) and issued together with the code:they can hardly have been local rules.

    Another aspect of the criminal law should be mentioned.In the 4th century B.C.Shang Yang had propagated what seems to have been a new idea,namely that in criminal suits no distinction was to be made between high and low. However.whereas Shang Yang appears to have advocated that the law should be applied impartially to all offenders,the texts under discussion show that position in the hierarchy continued to count,with the result that superiors were often punished more lightly than their subordinates and in particular that the holders of aristocratic rank suffered less than ordinary Commoners and slaves.The principle remained that all offenders were to be punished, but nevertheless a certain gradation was introduced.

    A completely different point concerns manslaughter.The Yun-meng texts show that in the 3rd century B.C.-- and probably already earlier-- a clear distinction was made between wounding or killing a person in a fight, resulting in involuntary unpremeditated manslaughter,and killing somebody intentionally,committing murder with malice aforethought.The two relevant terms occur frequently in Han texts,where a third term is also found:to hurt or kill a person when playing or frolicking,but this word does not occur in the texts under discussion.What we do find,however,are graduated rules for punishing people who in an unpremeditated fight attacked others with a needle or an awl, which was punished by a heavy fine,or who did so with a weapon which they first had to unsheathe,like a dagger or a sword or a halberd,for which they incurred a sentence to a long term of forced labour. Other rules indicate the punishments for pulling out the adversary’s hair,or tearing off an ear or biting.

  Special attention is paid to killing one’s children.In case a father wished to kill his unfilial son,he was not allowed to do so,but he had to ask the authorities to execute him.In the same way,he could request the officials to banish his son for life,going in chains like an ordinary criminal. From other articles it becomes clear that a father or master could kill or mutilate his children or slaves,provided he had first obtained official permission to do so; unauthorized killing,however,was punished by being tattooed and serving a long term as a hard labour convict. This prohibition was especially directed against infanticide,for we read that whereas killing a deformed newborn child was not considered a crime,killing a healthy infant because the family had already too many children was heavily punished;this rule applied both to free persons and to slaves.

    Punishment for theft or robbery was determined in the first place by the money value of the stolen goods,and secondly by the circumstance of the theft  having been committed by a single person or by a band.We therefore find the example of two men who had decided independently to rob the same place.If each of them had continued to act on his own,he was to be punished according to the value of what he had stolen personally,but if they had cooperated,they were both condemned for the total value of the stolen goods.

    The texts pay great attention to receiving stolen goods.Here,as well as elsewhere,no general principle is enunciated,but the texts show plainly that a person to whom stolen goods had been entrusted was only found guilty if it could be shown that he had been aware of the fact that the goods had been stolen.Furthermore,he was punished according to the value of the goods entrusted to him and not for the value of the thief’s actual booty.However,all persons who had known about the robbery and who had joined the thief in wining and dining on the proceeds were subject to the same punishment as the thief.

    The rather complicated matter of the punishments used in Ch’in is analyzed in Appendix I.

    The bulk of the administrative statutes in this collection is directly or indirectly concerned with two subjects:1abour and food,as already remarked above on P.5.

    The editors of these texts have rightly placed an article from the Statute on Agriculture at the very beginning of this collection,stipulating that the local authorities had to report on the state of the grain crop,including the exact area of cultivated and fallow land,and the acreage affected by seasonable rain as well as by rainstorms,inundations,drought or insect plagues.Agriculture was the mainstay of the economy and the size of the crop was of immediate local importance to an official responsible for feeding a host of labourers.

    Of equal importance was the storage of the harvest.The grain had to be stored in heaps of 10,000 bushels.to which the seals of the officials in charge had to be attached.The persons in charge of a granary were punished if there were leaks letting in the rain so that the grain was spoilt, or if the doors could not be tightly closed so that the grain escaped,or if there were more than three rat holes, three mouse holes being counted as one rat hole! There existed a separate Statute on Checks and Controls; checks were made when grain was issued,but particularly when there was a change of personnel.If shortages were discovered,these had to be made good by the men responsible for the granary as well as by those directly in charge.All storage offices had a full set of weights and measures,which had to be checked every year:their loss resulted in punishment for the responsible officials. A separate rule indicates the deviations from the standard that were allowed:between one twentieth and one thirtieth for measures of capacity,but only one hundred and twentieth for weights.Appendix II provides a brief survey of Ch’in-Han weights and measures.   

    There existed rules for the quantities of seed to be used for sowing a standard surface of one mu,differing for the different kinds of grain, these were evidently to be followed by the managers of grain stores when distributing seed-grain to commoners,who eventually had to repay such loans.Other rules were set for the pounding or refining of grain,establishing the quantitites of more or less polished grain to be obtained from treating a certain amount of unhusked cereals;these rules applied perhaps to the work done by female hard labour convicts with the telling appellations of "grain-pounders" and“sifters of white rice”.Of all these and similar activities reports had to be made,sometimes even to the central government.

    Not only the stocks of grain,but also the condition of the government horses and cattle were suject to a regular and strict control.If the cattle were fat, rewards were gtven;if they were thin,the men in charge were punished.Calving cows as well as horses in the courier service were given extra rations.When cows and sheep produced insufficient offspring,the personnel was fined.The government horses were inspected and graded;wounding these animals was punished.When such horses or cattle died,detailed reports had to be made,and their hides,horns and bones had to be handed over.

The origin of the grain in the goverment storehouses must surely be sought in the land-tax,which may have been as high as one fifth of the harvest:local officials were punished for failing to report taxable fields and embezzling the tax. Ultimately,the grain was destined to be distributed as rations:  to officials,to men serving in the army,and to hard-1abour convicts.Several rules were directed against abuses:for instance, no rations were to be issued to persons who had already been provided with food from another source, whereas soldiers were prohibited to sell their rations.All issues had  to be carefully registered, in view of the demand that the number of the recipients had to be reported; the hundreds of wooden strips found in the Edsin-gol defenee lines,mostly dating from the 1st century B.C.furnish excellent examples of this type of meticulous bookkeeping.


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