Imperial Laws
Imperial Laws
Tang Code. Based on the northern Zhou Code of 564, the legal code of the Tang dynasty (618-907) was first compiled in 624 and frequently modified in the following decades. The code was revised in 637 with a decrease in the number of offenses entailing death or exile. The most important change was the integration of an authoritative commentary in 653. This commentary not only provided clarification of the highly elliptical articles of the code but also introduced further rules not in the original text. The final redaction of the code in 737 dealt with both criminal and administrative concerns, including primary laws. The final format of the Tang code included 502 articles organized into 12 books: 1) general principles and regulations; 2) laws concerning the passing into or through prohibited areas (imperial court, town gates, city walls, frontier garri-sons, and so forth); 3) offenses committed by officials in the exercise of their duties; 4) statutes relating to ordinary families (land, taxation, marriage, and so forth); 5) laws concerning state property; 6) laws relating to the maintaining of armies; 7) offenses against individuals and against property; 8) offenses committed in the course of argument; 9) falsification and counterfeiting; 10) various laws of special natures; 11) laws concerning guilty individuals; and 12) laws relating to the management of justice.
Song Code. The Song dynasty (960-1279) adopted the Tang code, including some statutes that were out-of-date even during the earlier dynasty. One of these antiquated articles concerned the system of land tenure. Under this statute, land granted with certain conditions to families by the emperor could not be sold. In both the Tang and Song times, land granted by the state was in fact bought and sold by families, but the Song code still included the regulations forbidding such alienations. Therefore, the Song code in this respect adopted rules that had not been applied for many decades.
Taihe Lu. Before the Mongol conquest of China, the strength of the native Chinese legal tradition was clearly apparent. When the Song empire lost control of the northern provinces to a nomadic people who founded the Jin dynasty (1115-1234), the invaders adopted a law code known as the Taihe Lu, modeled after that of the Tang court. The Mongols who overthrew the Jin dynasty and established their empire in North China began to implement the Taihe Lu until Kublai Khan abolished it in 1271.
Chiyuan Xinge. After the repeal of the Taihe Lu, Mongolian customary laws represented the major elements of official statutes until 1291. In that year the emperor bowed to pressure and agreed to issue an important collection of laws known as the Chiyuan Xinge, applicable to the Chinese people. Although arranged systematically according to subject matter, the Chiyuan Xinge was not a penal code because many of its rules did not prescribe punishment for offenses. Encouraged by Chinese scholars, the Yuan court later issued several important codifications of legal material, combining administrative with penal measures, but they did not follow the format of either the Tang or Song penal codes. The Mongols adopted the Chinese laws and changed them to comply with their needs. Discrimination was obvious in their laws. A Chinese, for example, was prohibited from retaliating if assaulted by a Mongol. The Mongols were allowed to possess arms while the Chinese were not. Legal cases involving both Mongols and Chinese were dealt with in special courts where Mongols did have some advantages.
Great Ming Ordinance. The Darning Ling (Great Ming Ordinance) issued in 1368 contained both administrative and penal rules in 145 articles, providing a clear and simple statement of the law to guide people. An important feature of this ordinance was the classification of government responsibilities. The Ming dynasty (1368-1644) did not issue the first regular penal code until 1374.
Ming Legal Code. In 1397 the Darning Lu (Ming Legal Code) was issued, following the Tang code in its division of the material. Of its 606 articles only 31 were new; the rest were taken directly from the Tang code or from other legislation. Similar to the Darning Ling, the Ming Legal Code was arranged by subject matter according to the divisions of governmental authority represented by the six ministries or boards. The first part was the general principles section, followed by six main specific-offense sections. The section on administrative law included the rules specifying punishments for breach of duty by officials. The section of civil law consisted of the rules on family, marriage, land, taxes, loans, and public markets. The section of ritual law had the penal rules concerning sacrifices and ceremonies. The section of military law contained the rules on royal palaces, imperial guards, the frontier, horses and cattle, and postal services. The section on penal law covered offenses against individuals, such as killing, physical injury, insult, property damage, theft, sexual assaults, and violations committed by those responsible for maintaining justice. Finally, the section on public works primarily dealt with construction and the management of rivers.
Five Punishments. Various forms of punishment existed in imperial China. Both the Tang code and the Song code used the Five Punishments. Initially enumerated in 653, the five punishments included: 1) Beating with a light stick (five degrees: ten to fifty blows); 2) Beating with a heavy stick (five degrees: sixty to one hundred blows); 3) Penal Servitude (five degrees: one to three years); 4) Life exile (three degrees: at distances of two hundred to three thousand // [three // = one mile]); and 5) Death (two degrees: strangulation and decapitation).
THE YUAN CODE
The Mongol legal code had strict provisions concerning the fate of criminals and captives, as is seen in the following decree:
After a bandit has surrendered himself to the government, the government official who accepts his surrender shall under no circumstances accept as gifts captured men and women. .. . If these people do not have any relatives and have consequently no place to go, the official should match them as husbands and wives so that they can establish their own households. All people who have been detained by bandits are to be set free.
A government official in charge of barbarian affairs who willfully marries a confiscated woman under his custody will receive eighty-seven blows by a wooden stick and be dismissed from his office. The woman in question will receive forty-seven blows by the same instrument.
Source: Yuan Shi (History of Yuan), in. The Essences of Chinese Civilization* edited by Dun J. Li (Princeton, N.J.: D. Van Nostrand, 1967).
Penal Servitude. Penal servitude included hard labor for the offender and removal from his place of origin to another area for a fixed term of years. In Ming times, persons sentenced to penal servitude were sent from the province of their conviction to another province, where they worked in the iron or salt industries. Each person was forced to smelt four pounds of iron or to produce, through boiling, the same amount of salt every day. The condemned were not sent from their own province to another province randomly; for each province of origin there was a specific counterpart province to which persons were sent.
Military Exile. Military exile began to be clearly discernible from ordinary exile in Song times. It was further elaborated in Yuan times and came to be clearly systematized as a major punishment during the Ming dynasty. Originally, military exile was primarily a substitute for ordinary exile in the case of officers or soldiers who committed crimes, consisting of lifetime military service at some distant frontier garrison or military colony. Later, unauthorized sellers of salt, dishonest recipients of land or grain, instigators of false accusations, unregistered citizens, and many civilians underwent military exile. As a result, such punishment became preva-lent for all criminals, and its scope was expanded to include service at army posts along the frontiers. More than ten varieties of military exile were listed in the 1585 edition of the Ming Code.
Discrimination in Punishment. In the Yuan penal code the most severe punishments were reserved for the Chinese. For example, only the Chinese were to be tattooed for the crime of theft. Mongols and Semu were tried according to Mongol law, while the Chinese were tried according to Chinese law. A Chinese who murdered a Mongol would be sentenced to death and had to pay the funeral expenses, while a Mongol who killed a Chinese was punished by a mere fine.
Sources
Derk Bodde, Law in Imperial China (Cambridge, Mass.: Harvard University Press, 1967).
Hok-lam Chan, Legitimation in Imperial China: Discussion under the Jurchen-chin Dynasty (1115-1234) (Seattle: University of Washington Press, 1984).
Paul Heng-chao Chen, Chinese Legal Tradition under the Mongols: The Code of 1291 as Reconstructed (Princeton, N.J.: Princeton University Press, 1979).
Wallace Johnson, trans., The Tang Code, volume 1: General Principles (Princeton, N J.: Princeton University Press, 1979).
Brian E. McKnight, Law and Order in Sung China (Cambridge: Cambridge University Press, 1992).