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Published online by Cambridge University Press: 23 June 2010
This paper explores in decisions of the Qing Board of Punishments the importance of the identification of the “cause of death” for the allocation of liability in cases of homicide. The Board's preoccupation with the issue of causation is discussed through its use of three formulae which express in different ways the causal link between the elements in the chain of causation culminating in death: yin/you … so zhi (“cause … as a result of which”), zui zuo so you/yin (“offence liable that which causes”), and zhaoxin (“beginning of the trouble”). Some remarks are added on the relationship between the concepts of “causation” and “fault” in the historical development of the traditional Chinese law of homicide.
1 I have examined the causal terms used in legislation in “Two issues concerning causation in the Imperial Chinese legislation on homicide”, Qing Studies in History, 2008, 4, 53–62 (in Chinese).
2 The Song handbook for coroners, entitled Xiyuan jilu by Song Ci, was still influential in the nineteenth century. See McKnight, Brian, The Washing Away of Wrongs: Forensic Medicine in Thirteenth-Century China (Ann Arbor: University of Michigan, 1981)Google Scholar; Will, Pierre-Étienne, “Developing forensic knowledge through cases in the Qing dynasty”’, in Furth, C., Zeitlin, J. and Heng, P. (eds), Thinking with Cases. Specialist Knowledge in Chinese Cultural History (Honolulu: University of Hawai‘i, 2007), 62–101Google Scholar.
3 See further MacCormack, Geoffrey, “Cultural values in traditional Chinese law”, Chinese Culture, XXXII/4, 1991, 1–9 at 7–8Google Scholar; “General principles of liability in the late Ch'ing law of homicide”, Asia Pacific Law Review, 1, 1992, 13–21.
4 On them see Chü, T'ung-Tsu, Law and Society in Traditional China (Westport, Connecticut: Hyperion Press, 1980), 292–3Google Scholar; Bodde, Derk and Morris, Clarence, Law in Imperial China: Exemplified by 190 Ch'ing Dynasty Cases (Philadelphia; University of Pennsylvania Press, 1973 [1967]), 146–51Google Scholar; Wang, Zhiqiang, “Case precedent in Qing China: publishing traditional case law”, Columbia Journal of Asian Law, 19, 2005, 327–30Google Scholar.
5 Shichao, Quan (ed.), Bo'an xinbian, 8 volumes (Taipei: Chengwen, 1968)Google Scholar (hereafter abbreviated as BAXB).
6 Qingqi, Zhu et al. (eds), Xing'an huilan, 11 volumes (Taipei: Chengwen, 1968)Google Scholar (hereafter abbreviated as XAHL).
7 Chao, Wu and Xiyan, He (eds), Xing'an huilan xubian, 10 volumes (Taipei: Wenhai, 1970)Google Scholar. This is hereafter abbreviated as Xubian.
8 Unfortunately, I have not been able to consult the detailed accounts of homicide cases in the original submissions of the district magistrates, preserved in the First Historical Archives in Beijing, on which see Park, Nancy and Anthony, Robert, “Archival research in Qing legal history”, Late Imperial China, 14, 1993, 93–129CrossRefGoogle Scholar.
9 Such standard formulaic patterns may be seen as part of the requirement of “legal language”, under which the reports of officials taking part in the judicial process were to be written according to rules designed to facilitate the identification and clear presentation of the legal issues raised by the facts. On this point see the essays by R. Hegel and T. Buoye in Hegel, Robert and Carlitz, Katherine (eds), Writing and Law in Late Imperial China. Crime, Conflict, and Judgment (Seattle and London: University of Washington Press, 2007)Google Scholar.
10 XAHL, 1931 at 1932.
11 XAHL, 1933 at 1934.
12 XAHL, 2093 at 2095. On the case see further below at n. 46.
13 XAHL, 2259. For the substatute see Yunsheng, Xue (Hsüeh Yun-sheng), Duli cunyi (Doubtful points on reading the substatutes) (Taipei: Chinese Materials and Research Aids Center, 1970), 881 (299.16)Google Scholar.
14 For the substatute see below, n. 54.
15 Xubian, 3235–6. The relevant clause of the substatute dealt with the case in which a person quarrelled with a woman, abused and cursed her, and the woman, as soon as she heard the “filthy words”, committed suicide.
16 Xue Yunsheng, Duli cunyi, 837–8 (no. 290.12); Boulais, Guy, Manuel du code chinois (Taipei: Chengwen, 1966), 560–1Google Scholar (para. 1275); Philastre, P. L. F., Le code annamite, second edition, vol. II (Taipei: Chengwen, 1967), 215Google Scholar, decree IX; Meijer, M. J., “An aspect of retribution in traditional Chinese law”, T'oung Pao, LXVI, 1980, 204–05Google Scholar.
17 XAHL, 1907; Meijer, “An aspect of retribution”, LXVI, 1980, 210. A further factor underpinning the decision is the importance of the relationship between parent and child. Given the emphasis in traditional Chinese society on a child's duty of care towards a parent, the Board was unlikely to be lenient.
18 Boulais, Manuel du code chinois, 698 (para. 1636).
19 XAHL, 2001 at 2002.
20 Xue Yunsheng, Duli cunyi, 878 (no. 299.14); Philastre, Code annamite II, 250–51, decree II; Theiss, Janet, Disgraceful Matters. The Politics of Chastity in Eighteenth-Century China (Berkeley, Los Angeles and London: University of California Press, 2004), 51Google Scholar.
21 Xubian, 3244 at 3245.
22 XAHL, 2005 at 2006.
23 XAHL, 2007.
24 XAHL, 2056–7.
25 XAHL, 2061.
26 XAHL, 4345 at 4346.
27 I have previously said something about this principle in “Ts'ui Tso So Yu: a principle of causality in traditional Chinese jurisprudence”, The Irish Jurist XXV–XXVII, 1990–92, 194–211.
28 On Shen's commentary see Bodde and Morris, Law in Imperial China, 72–3; Chen, Fu-mei Chang, “The influence of Shen Chih-ch'i's Chi-chu commentary upon Ch'ing judicial decisions”, in Cohen, J. A., Edwards, R. R. and Chen, F. C. (eds), Essays on China's Legal Tradition (Princeton, New Jersey: Princeton University Press, 1980), 170–221 at 171–2Google Scholar.
29 Zhiqi, Shen, Da Qing Lü Jiju, vol. II (Beijing: Falü chubanshe, 1998), 690Google Scholar; Philastre, Code annamite II, 224 (but his translation fails to bring out the point of the passage).
30 We may compare an interesting analogue from the Southern Song casebook entitled “Enlightened judgments” (Minggong shupan). One of the judges whose decisions are recorded in the collection (Cai Jiuxuan) states: “In deciding legal cases involving death sentences it is essential to discover the cause (yin) of the dispute which led to the act of the violent criminal. This is the meaning of the phrase “the original situation determines the crime” (yuanqing ding zui) (Minggong shupan qingmingji. Beijing: Zhonghua, 1987, 330, translated by McKnight, Brian, The Enlightened Judgments. Ch'ing-ming Chi. Albany: State University of New York, 1999, 329)Google Scholar. The phrase yuan qing ding zui appears to be a Song version of the Qing principle zui zuo so you.
31 On the relation between fault and cause see further the “General conclusion” below.
32 XAHL, 2045.
33 This substatute, originating under the Ming, was finally settled in 1826: Xue Yunsheng, Duli cunyi, 873–4 (no. 299.5); Philastre, Code annamite II, 251, decree IV.
34 BAXB, 1985 at 1989–90.
35 XAHL, 2002 at 2003. See also a case of 1826 (XAHL, 2005) cited above at note 22 under “beginning of the trouble”, one of 1812 (XAHL, 2006), and one of 1824 (XAHL, 1847).
36 XAHL, 2091.
37 Xubian, 2556, where the Board also relied upon the notion of the trouble beginning from the quarrel.
38 Xubian, 2570.
39 Xubian, 2571.
40 XAHL, 1478. See also Meijer, M. J., “Self-defense”, in Idema, W. L. and Zürcher, E. (eds), Thought and Law in Qin and Han China. Studies Presented to Anthony Hulsewé on the Occasion of His Eightieth Birthday (Leiden: E. J. Brill, 1990), 234–5Google Scholar.
41 XAHL, 4338.
42 XAHL, 2008.
43 Xubian, 2497 at 2499.
44 Xubian, 2566.
45 XAHL, 2010.
46 See above at note 12.
47 XAHL, 2093 at 2095.
48 See article 303 of the Qing code (Jones, William C., The Great Qing Code, Oxford: Clarendon Press, 1994, 287–9Google Scholar) and the consolidated substatute of 1809 on “wind” (Xue Yunsheng, Dali cunyi, 900 (no. 303.7); Boulais, Manuel du code chinois, 591 (para. 1361); Philastre, Code annamite II, 278, decree IV; MacCormack, Geoffrey, “The Pao Ku system of traditional Chinese law”, Chinese Culture XXXV/4, 1994, 26–9Google Scholar and for the nature of “wind” 38–9.
49 XAHL, 4421 at 4422–3.
50 Xubian, 3389.
51 Xue Yunsheng, Dali cunyi, 871–2 (no. 299.3); Boulais, Manuel du code chinois, 578 (para. 1326); Philastre, Code annamite II, 254, decree XIV.
52 Xue Yunsheng, Duli cunyi, 877 (no. 299.10, a substatute finally settled in 1801); Philastre, Code annamite II, 253, decree X.
53 XAHL, 2157–8.
54 Xue Yunsheng, Duli cunyi, 881 (no. 299.18), Meijer, M. J., “The price of a Pai-lou”, T'oung Pao LXVII, 1981, 293–4 (III)Google Scholar.
55 XAHL, 2275.
56 XAHL, 4375. See also a case of 1851, noted above under “beginning of the trouble” at note 15.
57 Xue Yunsheng, Duli cunyi, 882 (no. 299.22, enacted in 1815).
58 Xubian, 3306 at 3313.
59 See above at note 29.
60 See above at note 42.
61 XAHL, 2002–05.
62 Occasionally the formula might be used to express the actual or true cause of death as distinct from the legally relevant cause. See the two cases discussed above in the section on “beginning of the trouble” at notes 13, 15.
63 BAXB, 979 at 987; Meijer, M. J., Murder and Adultery in Late Imperial China (Leiden: Brill, 1991, 15–6)Google Scholar.
64 Xue Yunsheng, Duli cunyi, 1081 (no. 366.1); Sommer, Mather H., Sex, Law, and Society in Imperial China (Stanford, California: Stanford University Press, 2000), 326 ABGoogle Scholar.
65 XAHL, 2078.
66 This is a clause of the consolidated substatute of 1824: Xue Yunsheng, Duli cunyi, 784 (no. 285.1); Meijer, Murder and Adultery, 50 (4).
67 Meijer, Murder and Adultery, 50 (2).
68 BAXB, 1267 at 1269–70.
69 BAXB, 1149 at 1153–4. For the rule under which clemency was granted see Meijer, Murder and Adultery, 89–90. It entered the code as a substatute in 1777 (Xue Yunsheng, Duli cunyi, 788 (no. 285.5); Philastre, Code annamite II, 187, decree VI).
70 Xue Yunsheng, Duli cunyi, 794 (no. 285.13). There is something odd in the account in the text, since under the substatute the wife should be sentenced only for the offence of adultery, for which the punishment was a beating and a period in the cangue.
71 BAXB, 1199 at 1204.
72 BAXB, 1233 at 1238–9.
73 See note 51 above.
74 Xue Yunsheng, Duli cunyi, 1016 (no. 338.3); Boulais, Manuel du code chinois, 649 (para. 1506).
75 XAHL, 2161 at 2162.
76 BAXB, 1053, especially 1055.
77 See above at note 65.
78 BAXB, 1071, and compare Meijer, Murder and Adultery, 54.
79 BAXB, 1101 at 1108–09.
80 XAHL, 1533 (1828); 1579 at 1580 (1831); 1579 (1822).
81 BAXB, 1829 at 1831–4 (1771, where a man had fondled a woman's buttocks and she was later ridiculed by others); XAHL, 2259 (1813); 2264 (1824); 2276 (1812, where a wife was killed by a jealous husband); 2277 (1806, also a wife killed by jealous husband); 2280 (1818, where a woman grappled with a man whose trousers fell down); 2281 (1807); 2287 (1815, where a woman's husband also committed suicide); 4375 (1827); Xubian, 3239 (1851); 3241 (1849).
82 BAXB, 1349 at 1354–6 (1776, where parents committed suicide in consequence of the discovery of a mother's adultery after a son had killed his mother); 1809 at 1815 (1780, where a woman was oppressed with false allegation her husband was a thief); XAHL, 2199 (1827, where a mother was humiliated by her son's behaviour); 2211 (1807, where a nephew stole property from his uncle).
83 BAXB, 1783 at 1784 (1786).
84 XAHL, 2194 (1821).
85 XAHL, 4267 at 4269 (1816).
86 BAXB, 1483 at 1488, 1490 (1746); XAHL, 1911 (1810); 1943 (1810).
87 BAXB, 1501 at 1506 (1753, also reported in XAHL, 2096); 1581 (1776); XAHL, 2087 (1767).
88 XAHL, 1944 (1832); 1992 (1832); 4339 (1836).
89 XAHL, 2066 (1833).
90 BAXB, 2217 (1764); 2309 (1779); XAHL, 1941–42 (1820); 1941 (1813); 1565 (1782); 1582 at 1583 (1811); 2099 (1759).
91 XAHL, 1564 (1814) and compare 1844 (1815). See also an interesting case of 1803 in which A in the course of a fight with his son disturbed the embers of a fire which scattered and set alight a house with the result that three people in one family lost their lives. It was held that, although the cause of the deaths was the fire, the cause of the fire was the scattering of embers arising from A's fight. A should therefore be liable for the death of three persons in a fight, entailing a punishment of immediate strangulation (XAHL, 1839).
92 See further on this principle MacCormack, Geoffrey, “Standards of liability in early law”, The Juridical Review, 1985, 166–77Google Scholar.
93 Karlgren, Bernard, The Book of Documents (Stockholm, 1950), 40, para. 8Google Scholar.
94 The above statements do not take account of the fact that the relationship between victim and perpetrator might alter the sentence, as where a senior relative killed a junior. He received a non-capital sentence, even though the killing had been intentional.
95 Zhangjiashan Hanmu Zhujian (247 haomu) (The Han Slips from Tomb 247 at Zhangjiashan) (Beijing: Wenwu, 2001), 137 (slip 21).
96 Johnson, Wallace, The T'ang Code. Volume II. Specific Articles (Princeton, NJ: Princeton University Press, 1997), 383Google Scholar.
97 Johnson, T'ang Code II, 382.
98 Yonglin, Jiang, The Great Ming Code. Da Ming lü (Seattle and London: University of Washington Press, 2005), 194Google Scholar.
99 Minglü jijie fuli (Ming Code with Commentary and Substatutes) (Taipei: Chengwen, 1969), 4.1508.
100 Jones, Great Qing Code, 278.
101 Da Qing lüli huiji bianlan (Qing Code with Substatutes and Commentaries) (Taipei: Chengwen, 1975), 9, 3726–7; Philastre, Code annamite II, 224 (not quite accurate).
102 Da Qing lüli huiji bianlan, 9.3725; Philastre, Code annamite II, 223.
103 I would like to thank the Bulletin's referee for helpful suggestions to improve this paper.