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Published online by Cambridge University Press: 30 August 2016
This article seeks to show that the frequent invocation by the Qing Board of Punishments of the adage that liu yang represents an exercise of imperial benevolence outside the law is not a mere formality without substantive meaning, but rather reflects the role played by the adage in the reasoning by which permission to remain at home to support an elderly or sick parent was granted or withheld. The Board may argue either that “benevolence” supplies a reason for a grant of liu yang in a given case or, on the contrary, that “benevolence” should not be extended to permit such a result. In addition, the article examines the role of the concepts of “pity” and “filial piety” in relation to the operation of “benevolence”.
1 See, for example, Derk Bodde and Clarence Morris, Law in Imperial China: Exemplified in 190 Ch'ing Dynasty Cases (Philadelphia: University of Pennsylvania Press, 1973 [1967]), 223, n. 2; R. Randle Edwards, “The role of case precedent in the Qing judicial process as reflected in appellate rulings”, in C. Stephen Hsu (ed), Understanding China's Legal System: Essays in Honor of Jerome A. Cohen (New York and London: New York University Press, 2003), 187.
2 Several different expressions are used in the legal sources to express the element of compassion or pity that underlies the institution of liu yang: ce (grief, affliction, compassion), jin (have compassion for), min (be sad, sympathize, be compassionate), jinxu (have pity for), and jinmin (have compassion for). The basic idea present in all these terms is that of sorrow and compassion for the plight of the parents of a son who has committed a capital offence and whose execution or exile will deprive them of their only means of support.
3 Wu Chao and He Yiyan, Xing'an huilan xubian (Continuation of Conspectus of Legal Cases), 10 vols (Taipei: Wen Hai, 1970 [1884]), 1, 308–9. This work is hereafter cited as Xubian.
4 Jianfan, Wu, “The system in the Qing Dynasty whereby commutation or suspension of penalties was granted to some convicted convicts so as to enable them to take care of their old or sick parents”, Cass Journal of Law 23/5, 2001, 126–36 (in Chinese)Google Scholar.
5 Tung-Tsu Ch’ü, Law and Society in Traditional China (Westport, CT: Hyperion Press, 1980 [1961]), 76. For the text of the edict see Shen Jiaben, Lidai xingfa kao (Studies of Penal Law in Successive Dynasties), 4 vols (Beijing: Zhonghua shuju, 1985 [1913–29]), 4, 1797.
6 Ch’ü, Law and Society, 77. The law appears to go back to a decree of 488 ce. See Wei Shou, Weishu (History of the (Northern) Wei Dynasty), 8 vols (Beijing: Zhonghua shuju, 1974 [554]), 8, 2879, 2885.
7 Wallace Johnson, The T'ang Code. Volume I, General Principles (Princeton, NJ: Princeton University Press, 1979), 154–5.
8 Johnson, T'ang Code I, 157.
9 Jiang Yonglin, The Great Ming Code/Da Ming lü (Seattle and Washington: University of Washington Press, 2005), 28–9.
10 Gao Ju, Ming lü jijie fuli (Ming Code with Substatutes and Commentary), 5 vols (Taipei: Ch'eng-Wen, 1969 [1610]), 1, 267.
11 Gao Ju, Ming lü jijie fuli, 1, 268.
12 Wang Qiao and Wang Kentang, Da Ming lü fuli jianshi (Commentary on the Great Ming Code with Substatutes) [1612], in Yang Yifan (ed.), Zhongguo lüxue wenxian (Juristic Commentaries on the Chinese Penal Codes), Vol. II, Parts I–V (Heilongjiang renmin chubanshe, 2005), 4, 137–8.
13 Gao Ju, Ming lü jijie fuli, 1, 268.
14 William C. Jones, The Great Qing Code (Oxford: Clarendon Press, 1994), 49.
15 Shen Zhiqi, Da Qing lü jizhu (Commentary on the Qing Code), 2 vols (Beijing: Falü chubanshe, 1998 [1909]), 1, 49; P.L.F. Philastre, Le code annamite, 20 vols (Taipei: Ch'eng-Wen, 1967 [1909]), 1, 163.
16 Two decisions from the emperor Shizong during the Jurchen Jin dynasty (1115–1234) hold that the very act of committing a homicide shows that the offender has not had filial regard for his parents and is therefore not a son who should be allowed the benefit of remaining at home to look after them: Tuotuo, Jinshi (History of the Jin Dynasty), 8 vols (Beijing: Zhonghua shuju, 1975 [1355], 1, 159 and 3, 1019; Ch’ü, Law and Society, 77. For examples of the influence of filial piety in the reasoning of the Qing Board of Punishments see below at notes 27, 39, and 55.
17 Two formulations using the term “benevolence” are commonly found: fa wai zhi ren (benevolence which is outside the law), where ren functions as a concept, and fa wai shi ren (demonstrate benevolence outside the law), where ren refers to the performance of an act. The import of the two phrases is essentially the same.
18 See Tom Buoye, “Cun liuyang qin: Qingchao sixing fuge de jingyan (Convicted caregivvers: late imperial lessons in death penalty decisions)”, in Zhang Zhongqiu (ed), Zhonghua Faxi Guoji Yantaohui Wenji (China's Legal System. Collected Essays from an International Academic Conference) (Beijing: Zhongguo Zhengfa Daxue Chubanshe, 2007), 250–9.
19 Bodde, “Age, youth, and infirmity”, 139–40.
20 Only rarely does the citation of the maxim by the Board appear, as it does in some statements by legal commentators (see Xue Yunsheng's opening remarks in his commentary on substatute 18.7, dealing with the position where the victim of a homicide is also an only son: Du li cunyi (Doubtful Points on Reading the Substatutes), 5 vols (Taipei: Chinese Materials and Research Aids Center, 1970 [1903]), 2, 66) to be purely formulaic, that is, to express a well-understood, even commonplace, sentiment that adds nothing of significance to the particular discussion. For an example, see a case of 1844, concerning a widow who had kept her chastity for more than 20 years, in which the Board's opening remark on liu yang as “benevolence outside the law” played no role in its subsequent reasoning: Xubian, 1, 283–5 at 284.
21 Jones, Great Qing Code, 304.
22 Xue, Du li cunyi, 4, 957 (319.10).
23 The statutory law governing homicide distinguished between sentences of immediate decapitation or strangulation and decapitation or strangulation after the assizes. Where a statute or substatute added the words “after the assizes” to the specification of the sentence, the case was to be subjected to an elaborate process of review in the autumn following the final decision of the Board of Punishments. At the “autumn assizes” homicide cases were classified under one of a number of heads, the most important of which were “facts verified” and “deferred execution”. In the former case the offender was to be executed once the formal permission of the emperor had been obtained; in the latter case the offender was detained in prison pending further consideration of the circumstances of the homicide and might in the end have his death sentence commuted to exile. On the “autumn assizes” in general see Meijer, M.J., “The autumn assizes in Ch'ing law”, T'oung Pao LXX, 1984, 1–17 CrossRefGoogle Scholar.
24 Xue, Du li cunyi, 2, 69–70 (18.14); earlier version in Philastre, Code annamite I, 160 (DVII).
25 An example would be killing by mistake.
26 This is an interpretation of a somewhat difficult passage.
27 Zhu Qingqi et al., Xing'an huilan (Conspectus of Penal Cases) 11 vols (Taipei: Ch'eng Wen, 1968 [1834, 1886]), 1, 296–7. This work is hereafter cited as XAHL. In view of the prohibition of the use of the decision as a precedent, it is unclear whether this case formed the basis of the substatute of 1822 (above) which dealt with sons who wounded and killed a parent by mistake.
28 The Three Judicial Offices were the Board itself (Xingbu), the Censorate (Dachayuan), and the Supreme Court (Dalisi). In cases of homicide, officials from the Board in conjunction with officials from the Censorate and Supreme Court assembled to finalize recommendations to the throne.
29 Xue, Du li cunyi, 4, 936 (317.7).
30 XAHL, 1, 291; Bodde and Morris, Law in Imperial China, 223–8.
31 Article 284: Jones, Great Qing Code, 269.
32 For this substatute see above at n. 24.
33 XAHL, 1, 294–6.
34 XAHL, 1, 323–4.
35 Qing huidian shili (Institutes of the Qing with Supplementary Regulations and Substatutes), 12 vols (Beijing: Zhonghua shuju, 1991 [1899]), 9, 92–3 (732.3b–4b).
36 Xue, Du li cunyi, 2, 62. An abridged version appears in Guy Boulais, Manuel du code chinois (Taipei: Ch'eng Wen, 1966 [1924]), 59 (para. 99).
37 The version of the substatute translated by Philastre, Code annamite, I, 163 (DII) still uses these words.
38 XAHL, 1, 303–4.
39 XAHL, 1, 301.
40 XAHL, 9, 3987–8.
41 XAHL, 1, 367.
42 XAHL, 9, 3985.
43 On “general circulars” see Chen, Fu-mei Chang, “Provincial documents of laws and regulations in the Ch'ing Dynasty”, Ch'ing-shih wen-ti 3.6 (December 1976), 71–2Google Scholar.
44 The memorial recommended that all relevant enquiries should be made at the time of the initial inquest into the death of the victim, when the state of mind of the offender's family members and neighbours was less likely to be prone to deceit and abuse.
45 The substatute does not appear in Xue's Da li cunyi. See Qing huidian, 9, 991 (732.2b–3a).
46 Quan Shichao, Bo'an xinbian (A New Collection of Reversed Cases) [1781, 1861], in Yang Yifan (ed.), Lidai panli pandu (Collection of Precedents from Various Dynasties), 12 vols (Zhongguo shehui kexue chubanshe, 2005), 7, 12–5.
47 XAHL, 1, 366–7.
48 Xubian, 1, 27–30.
49 Xue, Du li cunyi, 2, 61–2 (18.1); Philastre, Code annamite, 1, 163 DI.
50 Xubian, 1, 230–3.
51 Xubian, 1, 239.
52 Xubian, 1, 249–50.
53 Xubian, 1, 250–1. I have not been able to identify in Xue's Du li cunyi the particular substatute cited by the Board.
54 Xue, Du li cunyi, 2, 66–67 (18.7); Boulais, Manuel du code chinois, 60 (para. 101), giving an abridged version.
55 XAHL, 1, 354.
56 XAHL, 1, 360; Edwards, “The role of case precedent”, 202. The Board also suspected that the allegation of epilepsy was a collusive attempt at deceit.
57 I would like to thank one of the reviewers of this paper for drawing my attention to this point and citing an article by Wei Shumin, which unfortunately I have not been able to consult: “Between the monarch and his subjects: the political history of the Emperor's edicts on autumn trials during the Qianlong period of the Qing Dynasty”, Ming Qing Shi 2013/2, 18–25 Google Scholar.
58 I am grateful to the Bulletin’s two anonymous reviewers for the suggestions they have made to improve this paper.