SOURCE: Benjamin E. Wallacker, "The Poet as Jurist: Po chü-i and a Case of Conjugal Homicide," in Harvard Journal of Asiatic Studies, Vol. 41, No. 2, 1981, pp. 507-26.

[In the following essay, Wallacker examines Po Chü-i 's written opinion on the case of Yao Wen-hsiu, for which Po had to decide how severe a penalty to impose on a wife-murderer. Chinese characters have been deleted from this essay.]

Chinese criminal law has for a long time looked not only to the wrongdoer's act, but also to the state of his mind when he committed the act. Various degrees of culpability for the same act were distinguished by the Chinese according to whether the mind of the actor was more or less intent upon achieving the forbidden result. The Chinese forbore from bringing down upon the inadvertent killer, for example, the same weight of punishment laid upon his deliberate and purposeful brother. One who killed through mistake, accident, or carelessness might look to the law for consideration of such factors in mitigation of his punishment. Hulsewé and Bünger have each in fact used the technical term "negligence" in their studies of varying criminal liability in early Chinese law.¹ Niida Noboru lists no fewer than six species of homicide recognized in T'ang times,² and it was between two of these six, tou-sha, "killing in the course of an affray," and kusha, "intentional killing," that the poet and civil servant Po Chü-i (772-846) was bid to draw the line of demarcation in 822. Po Chü-i at the time occupied the post of Grand Secretary of the Grand Secretariate, in which capacity he served as advisor to the Emperor on legal as well as governmental matters. For the crime of killing in an affray a convicted defendant was liable to sentence of death by strangulation; for intentional killing, he was decapitated.

"Decapitation," says Wallace Johnson, "was considered to be the more severe of the two death penalties because it damaged the body. According to the tenets of filial piety, the body should be kept whole because it came from one's parents."³ The difference between the two crimes may, however, have gone further than the contrasting modes of capital punishment prescribed for each of them. Intentional killing was classed with the Ten Abominations, shih, at least as regards the penalty of disenrollment, ch'u ming, as being beyond the reach of those amnesties so frequently declared by Chinese rulers to invigorate their reigns.⁴ Thus, whether a person was convicted of having slain with intent on the one hand, or in the course of a fight on the other, may have determined whether he lived or died for his crime.

The case in which the question was presented to Po Chü-i concerned a certain Yao Wen-hsiu, whose name I have not found elsewhere recorded, who killed his wife A-Wang. That Yao Wen-hsiu had beaten A-Wang to death was conceded, but had he killed in a fight or had he killed with intent? Had an altercation simply got out of control, or had Yao Wen-hsiu carried through a purposeful murder? The case reached Po chü-i only after it had been considered both by the Supreme Court of Justice (Ta-li ssu) and by the Ministry of Justice (Hsing-pu).⁵

Po chü-i drafted a lengthy analytical opinion on the case of Yao Wen-hsiu to which we now turn.

Petition in discussion on [the case of] Yao Wenhsiu beating and killing his wife. Presented on the tenth day of the fifth month of the second year of Ch'ang-ch'ing.

According to the decision of the Ministry of Justice as well as the Supreme Court of Justice, "The controlling statute is, 'A killing that does not result from an affray and struggle but with no occasion is termed intentional killing.' [In the case] now [before us], because Yao Wen-hsiu killed with occasion, [the crime] was not intentional killing."⁶

Po chü-i opens his opinion with a quotation, apparently verbatim, from the decision issued by the legal authorities. The Court, confirmed by the Ministry, had based its decision upon a specific rule of law. The rule cited as controlling the case is referred to here as lü, "statute," but it appears in the T'ang Code in a portion of the text headed by the phrase shu-i, or Subcommentary.

The area of criminal law within which falls the rule cited as authority by the Court concerns the difference between the penalty meted out for killing committed in the course of an affray or fight and that imposed for killing committed with intent. Article 306 of the T'ang Code provided the penalty of strangulation for killing in a fight. Use of a blade during the fight, however, increased the gravity of the crime and its punishment. That is, one who killed during a fight was punished as though guilty of intentional killing if he had used a knife. Both the person who used a knife in a fight and the person guilty of intentional killing were punished by decapitation.⁷

A second rule of statutory law in Article 306 of the T'ang Code provides a lighter penalty for the crime of inflicting bodily injury during a fight than for the same act done with intent. The rule is evidently quite analogous to the homicide rule just given in that criminal liability was lighter if the defendant inflicted the injury during a fight. This second rule relating to the circumstance of a fight as a factor which lessened criminal liability contains a condition which applies both to wounding and to killing in a fight. Even though the killing or wounding be the result of a fight, the statute declares, if the fight is broken off for a time, then the defendant shall be punished according to the law for intentional killing or wounding. Statutory recognition of an apparent "cooling-off period" indicates that T'ang law regarded a fight as an event necessarily accompanied by hot blood, a point heavily relied upon by Po chü-i in his argument below.

The Subcommentary, composed by Chang-sun Wuchi and his colleagues for presentation to Kao-tsung in 653,⁸ explains the imposition of a lighter penalty for homicide during a fight under Article 306 as deriving from the absence in the mind of the offender of the will to kill at the beginning of the fatal incident. The Subcommentary continues by giving the very definition of intentional killing which was cited by the Court in its decision on the case of Yao Wen-hsiu.⁹

Having given the finding on the case of Yao Wen-hsiu reached by the Supreme Court of Justice and the Ministry of Justice, Po chü-i now introduces what may be termed a dissent.

According to the holding of Judicial Inspector of the Supreme Court of Justice Ts'ui Yüan-shih, "The controlling statute is, 'Mutuality in struggle constitutes an affray; mutuality in blows constitutes an assault.' When such fighting, one with another, results in a death, then only do we designate it killing in the courses of an affray…."

Ts'ui Yüan-shih, was one of three younger brothers of Ts'ui Yüan-lüeh, President of the Supreme Court of Justice at some time during the reign of Mutsung.¹⁰ His office of Judicial Inspector (Ta-li ssuchih) is explicitly stated in T'ung-tien to have been charged with the "consultative discussion" of "doubtful cases.""¹¹

The question arises whether it was standard procedure to send along a dissenting view on a case, such as the one here prepared by Ts'ui Yüan-shih. The decision that Yao Wen-hsiu was not guilty of intentional killing was jointly and, it would appear, finally reached by the Supreme Court of Justice and the Ministry of Justice. Yet Po chü-i had access to the opinion of a single functionary of the Court. Ts'ui Yüan-shih's view of the case of Yao Wen-hsiu had surely been taken into account by the Court and the Ministry before they issued their decision. Ts'ui Yüan-shih's analysis had, that is, been an ingredient in the deliberations which led to the official decision. For Po Chü-i to look at the dissent in reaching his own conclusion was truly to reopen the case. Ts'ui Yüan-shih's dissent had been weighed and rejected by the Court and the Ministry, but now it was being given a second consideration. Certainly Po chü-i's reopening of the case might well be taken as an attack upon the authority of the Supreme Court of Justice. As we shall see below, it may indeed have been so taken.

The decision of the Supreme Court of Justice and the Ministry of Justice was based, as we have seen, on a specific rule of the T'ang Code. Likewise, the dissenting opinion of Ts'ui Yüan-shih rested on a rule of law, which he cites from the opening portion of the Subcommentary to the first Code section dealing with the penalties for fighting.¹² The Subcommentary here seemed to Ts'ui Yüan-shih to stress the factor of mutuality as a necessary element in an altercation if the word tou, "fight, affray," or the word ou, "assault, a blow," is to be applied. In point of fact, the word hsiang does not demand mutuality or reciprocity of action, merely the presence of two parties to the action. The action may flow wholly in one direction, from one person as actor to the other as one acted upon. The Subcommentary might be construed as defining the word tou to mean "one struggling with another" and ou as "one striking another." Because of the ambiguity of the word hsiang the question is left open whether the violence here described by the law is one-sided or two-sided, an attack or a contest. Ts'ui Yüan-shih's use of the word chiao, which is rendered above "one with another," shows, however, that he construed the definitions of the Subcommentary necessarily to include the factor of reciprocity. The word chiao, though it does not rule out the possibility of action flowing in one direction, is much stronger than hsiang in its implication of interrelatedness between the two parties such that an action by one evokes response from the other. Ts'ui Yüan-shih has placed upon a Subcommentary gloss which is equivocal on the question of reciprocity a construction which makes reciprocity a necessary element.

Only when the death in question has resulted from fighting which is two-sided, says Ts'ui Yüan-shih, does one properly apply the term tou-sha, "killing in the course of an affray." The term means, for Ts'ui Yüan-shih, that the death was the outcome of a violent encounter characterized by at least a high likelihood of exchange of injurious violence.

Po chü-i goes on to quote more of the dissent of Ts'ui Yüan-shih.

"[In the case] now [before us], A-Wang suffered such a savage beating that she was brought to death. As to Yao Wen-hsiu, at the inquest his person was wholly without bruise or wound; so one may not use the term 'mutuality in blows.'"

Here is confirmation of the fact that Ts'ui Yüan-shih takes hsiang chi, "mutuality in blows," to demand twosidedness. The examination of the body of Yao Wenhsiu, conducted evidently as part of the official inquiry into A-Wang's death, had revealed no signs of his having been struck. He was unscathed. With no marks of struggle on his body, Ts'ui Yüan-shih argues, Yao Wen-hsiu cannot maintain the claim that he and his wife had engaged in an episode of "mutuality in blows." There had indeed been "one striking another," but husband and wife had not been "striking one another."

Ts'ui Yüan-shih's dissent, as quoted by Po chü-i, concludes:

"A-Wang was already dead that very night. Again how can one use the term 'mutuality in struggle'? This was definitely not an affray and struggle. Further, [the defendant] had stored up antipathy and enmity. This then was intentional killing."

Ts'ui Yüan-shih forcefully closes his argument in dissent by observing that A-Wang's having died the night of the beating, while Yao Wen-hsiu emerged unscathed, effectively negates the assertion that there had been a true struggle. And if it be conceded that there had occurred no fight, in the sense of an exchange of blows, then it follows that the defendant must have felt deep resentment of his wife. His ill will may have been adduced in testimonial evidence, but Ts'ui Yüanshih might have inferred its existence from the coincidence of the savage beating suffered by A-Wang and the fact that Yao Wen-hsiu was unharmed.

If, first, there was clearly no true struggle, and if, second, the beating was so severe as to cause death that same night, then Yao Wen-hsiu must have been motivated by deep malice. Had the beating been instantaneously fatal, as from a chance blow to the temple, then the factor of inadvertence might be introduced. However, the picture that emerges of Yao Wenhsiu's abuse of his wife is one of methodical administration of blows whose cumulative effect turned out to be, not surprisingly, fatal within hours of the event.

Ts'ui Yüan-shih's dissent ends with the flat declaration that Yao Wen-hsiu's slaying of his wife was in fact intentional killing, this in direct opposition to the decision of the Supreme Court of Justice and the Ministry of Justice that the crime was not intentional killing.

It is to be noted that the single question on which the Court decision and the dissent directly oppose each other is whether or not the crime of Yao Wen-hsiu was intentional killing. In reaching their opposing conclusions neither side addresses the assumptions and arguments made in support of the other's conclusion. That is, the Supreme Court finds that Yao Wen-hsiu had "occasion." Therefore he did not commit an intentional killing. But the Court does not claim that there had been a true fight. Ts'ui Yüan-shih in his dissent does not deny that Yao Wen-hsiu had "occasion," but he does deny that there had been a true fight. And because there had been no fight, Ts'ui Yüan-shih finds the crime to have been intentional killing.

Having quoted the decision of the Supreme Court of Justice and the Ministry of Justice along with the dissent of Ts'ui Yüan-shih, Judicial Inspector of the Supreme Court, Po chü-i proceeds to make his own analysis.

Let us take up, to the right (i.e., supra), the statutory Subcommentary which says, "A killing that does not result from a struggle and affray but with no occasion is termed intentional killing."¹³ In this talk of "occasion," what is meant is the "occasion" of a struggle and affray. It is not, so to speak, "other occasions."

The word shih, Po chü-i argues, denotes in the context of the rule relied upon by the Court-Ministry decision the specific provocative incident, the immediate spark which sets off a fight. Shih is not to be taken in the sense of remote or indirect cause, surely not in the meaning of hidden motivation.¹⁴

[In the case] now [before us], it is the holding of the Supreme Court of Justice and the Ministry of Justice that because Yao Wen-hsiu was angry at his wife's having erred, he was therefore not "without occasion." If so, if there was "occasion" and as a result he assaulted her and she died, then this was not intentional killing.

In his paraphrase of the Court-Ministry decision Po chü-i sets out the argument that because Yao Wenhsiu had been provoked by the misbehavior of his wife, he was not "without occasion." And, following to the end the logic of the Court-Ministry opinion, Po chü-i says that if the fatal assault of A-Wang was done pursuant to that "occasion," then Yao Wen-hsiu may not be found guilty of intentional killing.

If this [be the true reading of the Court-Ministry view], then they have made use only of the pair of words "without occasion" and have not brought in the words preceding, "struggle and affray."

As Po chü-i sees it, the Court-Ministry opinion has missed the significance of the juxtaposition in the rule of "struggle and affray" with the concept of "occasion." The latter is not to be understood apart from its contextual association with the former. Indeed it appears that there was, for Po chü-i, a conjunctive, not disjunctive, relation between the two elements. That is, Po chü-i would see the rule as requiring, for a finding of killing in a fight, both the occasion for that specific fight and the fight itself. To put it the other way round, he would find intentional killing in the absence either of an occasion or of a fight thus occasioned.

Having failed to grasp the linkage between the two elements, the Court-Ministry was without a firm base from which to interpret the term "occasion." Hence they permitted themselves to take it in the broadest possible way, so as to include remote and indirect causation as well as immediate and direct causation. Po chü-i predicts the consequences of accepting so unrestricted a definition of "occasion":

To [let the law operate] like this is to bring it about that any person in the empire will be able to kill another person because of an "occasion," and then, having killed him, say, "I had occasion and I killed. It was not intentional killing." Is such a thing permissible? Furthermore, is there any person in the empire who, "without occasion," would kill another person? It is abundantly clear that "occasion" means the "occasion" of a struggle and affray, not "other occasions."

Po chü-i has now reduced to absurdity the broad and inclusive reading of "occasion" upon which the Court-Ministry opinion rests. If "occasion" is taken simply to denote motivating cause, then it is inconceivable that any voluntary homicide be done "without occasion," because no one kills without reason. There is always a reason, but it may be remote and only tenuously related to events at the actual moment of killing.

Again, generally when one speaks of death by assault in an affray, one means that the "occasion" [for the affray] was never loathing and rancor. It was by chance that they came to struggle and fight one another: an assault, a striking, and no one having imagined it, a death. When [a killing] is like this, it is not intentional killing because fundamentally at its source the heart to kill was absent.¹⁵

The emotion which accompanies the commission of killing in the course of an affray, Po chü-i says, must not be antipathy which has long accumulated and ripened. Indeed, there must be absent any desire to kill at the onset of the conflict. The process which Po chü-i describes is the familiar escalation of violence which characterizes the true fight. Typically a quarrel of words may move one of the parties to physical action, which action stings the other to retaliate in more than full measure, which retaliation evokes yet stronger response. One who has killed in a fight might in all candor plead that he did not know how it happened and that he was shocked in the aftermath to realize he had killed the other person.

[In the case] now [before us], Yao Wen-hsiu's enmity towards his wife was deep-seated, and he had long harbored resentment. He assaulted and beat her so savagely that she died that very night. If one examines those facts and circumstances it was not by chance. If this not be intentional killing, then what would be intentional killing?

Even from the physical evidence alone one might infer the existence in Yao Wen-hsiu's mind of long-standing hatred and deep malice for his wife. The facts, as Po chü-i would have us review them, were these: Yao Wen-hsiu beat his wife with such severity that she died soon after. Unless one presumes otherwise, the cause of death was the beating. Yao Wen-hsiu himself bore no signs of having sustained a violent attack at the hands of his wife. Therefore the beating must have been one-sided. Yao Wen-hsiu beat his wife, as we might say, methodically, even cold-bloodedly. None of his blows could be excused as being snap responses to stinging physical attack by his wife for there were no marks of her blows on his person.

Yet the physical evidence was surely not so strong as to permit Po chü-i to infer, without stating it to be an inference, that Yao Wen-hsiu's "enmity towards his wife was deep-seated, and he had long harbored resentment." Facts concerning Yao Wen-hsiu's feelings about his wife prior to the beating must have been brought out in course of the initial investigative procedure. Ts'ui Yüan-shih, it will be remembered, closed his dissent with the assertion that Yao Wen-hsiu had "stored up antipathy and enmity." We can only speculate that perhaps Yao Wen-hsiu himself was forced to admit to his festering ill will. Maybe other witnesses were called to attest to the state of their marriage. Possibly the bad feeling between them was common knowledge.

Whatever the source of the nonphysical evidence, when taken by Po chü-i together with the physical evidence, it firmly establishes the existence of those "other occasions," those remote causes, which he has excluded from the legal scope of the word shih, "occasion." Yao Wen-hsiu had, to be sure, "occasion" to kill his wife, but the "occasion" was one of indirect and remote causation. And the very existence of such remote causation makes a showing of adequate immediate causation proportionately difficult.

Po chü-i continues:

If [we hold that a killing in which there is] an antecedent causal struggle and scolding is not an intentional killing, then take a case of a plot to kill a person where [the killer] first draws [the victim] into a mutual scolding which then becomes struggling back and forth, and the struggle having begun [the killer] takes an instrument and assaults and kills [the victim]; then he says, "I killed because of an occasion; it was not intentional killing." Again, is such a thing permissible?

To accept as sufficient grounds for a finding of unintentional homicide the mere fact that there had occurred prior to the killing an exchange of verbal abuse is to open the way for a devious plotter of murder to stage such an encounter. He will pick a fight, let the fight escalate into hateful denunciation, push it to physical contact, and then take up an object and with it kill his victim. Afterwards he will plead that the killing had been in pursuit of an "occasion." Clearly an "occasion" thus provoked by the killer is not what Po chü-i requires to fulfill the legal definition. The "occasion" may not be indirect and remote, much less prearranged. It must be direct, proximate, and spontaneous.

If the rationale of causal struggle would not be permitted [even if there had been one],¹⁶ then [surely it cannot be permitted in the case of] A-Wang who had already died so that there was no way [the facts of the case] could be distinguished and made clear. Yao Wen-hsiu himself states that there had been a mutual struggle, but what evidence has he?

The fact that a dispute preceded a killing would not, as Po chü-i understood the rule of law upon which the Court-Ministry relied, in and of itself remove the crime from the category of intentional killing. Therefore, even if it could be proved that a dispute had taken place, that the death was "because of a struggle," it would not suffice to relieve the wrongdoer of liability for the more serious charge. And if it be true, Po chü-i says, that a presumption of there having been a dispute and struggle would not satisfy the law, then surely Yao Wen-hsiu could not hope to prevail merely on his own testimony that mutual struggle preceded the death of his wife.

Before leaving the problem of the rule of law cited in the Court-Ministry decision and analyzed by Po chü-i, we may note as confirmation of Po's analysis the interpretation of the rule contained in a memorial of Chou Ting, President of the Supreme Court of Justice, written in the first year of the reign of the Sung emperor Hui-tsung, 1101.¹⁷ Chou Ting opens his memorial with the observation that the statutes provide for strangulation of one guilty of killing committed in the course of an affray and for decapitation of one guilty of intentional killing.¹⁸ Despite the clear-cut distinction between the two species of homicide, Chou Ting goes on to say, many jurists find it difficult to deal with cases which lie along the border. The problem, Chou Ting says, derives from the rule which we have seen cited by the Court-Ministry in their decision on the case of Yao Wen-hsiu.¹⁹

The question lies in the meaning of the expression wu shih erh sha, says Chou Ting. Does it refer to the killing of another person in the absence of an "occasion" for a two-sided (so I take the expression pi-tz 'u) struggle and affray? Suppose, for the sake of argument, the expression is taken to mean not necessarily the "occasion" for a struggle and affray, but merely a killing in furtherance of some "other occasion," and that on that account the crime is deemed not to be intentional killing. If the presence or absence of "occasion," no matter how broadly defined, is the only factor upon which the rule turns, then how is it that the rule does not read differently?

"Why does it not say, 'Have occasion and kill another, and you will be strangled,' and instead say, 'In an affray kill another, and you will be strangled?' And why does it not say, 'Lack occasion and kill another, and you will be decapitated,' and instead read, 'Intentionally kill another, and you will be decapitated?'"²⁰

To return to Po chü-i, he now shifts his argument:

Furthermore, as to the cases of assault killings committed by Liu Shih-hsin and Lo Ch'üan-ju cited by the Supreme Court of Justice and accepted as decisions of prior Courts so as not to deem as intentional killing [the case of Yao Wen-hsiu], I fear that the facts and circumstances [of those cases] and the case of Yao Wen-hsiu are not the same.²¹

Liu Shih-hsin and Lo Ch'üan-ju, whose names I have not been able to find elsewhere, were apparently parties to decisions in which assault killings were found not to have been committed with intent. They had evidently been cited in the Court-Ministry decision, but Po chü-i denies their applicability as precedents in the matter of Yao Wen-hsiu. He says, quite simply, that the facts are different, and then he goes on:

But supposing they were roughly the same, what harm would there be? A wrong decision will become a precedent, and it will be inadequate as reliable authority.²²

A faulty decision, Po chü-i says, becomes a faulty precedent, a wrongful and unreliable authority upon which to base future decisions. The facts and circumstances of the Yao Wen-hsiu case cannot be allowed to serve as a standard against which to measure cases in which it is sought to impose the criminal liability of killing committed in the course of an affray.

Your servant submits that at trial what we prize is scrutiny of the facts; of law what we require is that it stand the test of time.

Here Po chü-i has set up, by implication, the eternal contrast between the realm of facts and the realm of law, between the concrete and the ideal, the specific and the general, the evanescent, everchanging parade of real-life occurrences and the law, which by its nature must be lasting, predictable, only gradually to adapt. How is the law to provide justice and yet maintain its stability in the face of the kaleidoscope of fact patterns which it is asked to sort? The solution is found, of course, in the intelligent and sensitive use of the tools of juristic science. Such use requires the closest scrutiny of the facts of each case. In the case at hand the true facts of Yao Wen-hsiu's killing of his wife must be brought out. Was there a fight? Had there been the occasion for a fight?

As the exact and true facts must be brought out in litigation, so in applying the law we must so design our rules that they will serve as standards across time, reliable and workable patterns of prescribed conduct and sanction. If we make the Yao Wen-hsiu case part of the law of killing committed in the course of an affray, we will have made an abrupt change in the law based upon distortion of the facts of the case, and we will have created law which cannot long stand. We will have made so broad and inclusive the category of killing in an affray as to open the door to willful wrongdoers in the future. To close that door we will have to amend soon what we do here today. And so will we do violence to the law itself by subjecting it to uncertain meandering.

Po chü-i now gives an ominous picture of the future:

If Ts'ui Yüan-shih's opinion is not accepted but the Supreme Court of Justice's holding is implemented, then I fear that henceforth those who die by assault will have the wrong done them extended, and from now on those who intentionally kill a man will achieve their design.

Po chü-i lays out here two distinct wrongs which will flow from adoption of the decision handed up by the Supreme Court of Justice and concurred in by the Ministry of Justice. First, victims of such beatings as the one suffered by A-Wang will have their misery exacerbated and extended by the fact that their murderer will not have received punishment appropriate to his crime. The wrong done to them will have been compounded by not having been redressed. Second, the perpetrator of such a beating will have gleaned a net gain because the punishment he suffers will be less than he deserves. There will be a double wrong in that the victim will be left in a position of loss, and the killer will be left in a position of gain. The scales of justice will remain off balance, unrestored to the middle point.

Thus ends Po chü-i's opinion on the case of Yao Wen-hsiu. It is followed in the text by an eight-word formal close, which may be given a rough and tentative rendering as follows:

Respectfully, assimilated to consultative deliberation, in detail filed as preceding.²³

The two most significant words in the passage are ts 'an-cho "consultative deliberation," a clear reference to the ts 'an-cho yüan, a formal legal review function instituted and then abolished during the short reign of Mu-tsung. Of the two accounts dealing with the Office of Consultative Deliberation, the earlier is by Li Chao, whose book T'ang kuo-shih-pu, or simply Kuoshih-pu, of three scrolls, includes material from K'aiyüan (713-41) through the reign of Mu-tsung, Ch'angch'ing (821-24), during which latter era Li Chao himself lived.

The Li Chao account reads as follows:

At the beginning of Ch'ang-ch'ing, Mu-tsung, who deemed penal law to be a grave matter, would order that each great case which had been decided as to crime and punishment by the [judicial] authorities, be then given to a Grand Secretary of the Department of the Imperial Chancellery [or] a Grand Secretary of the Grand Secretariate for consultative deliberation upon lessening or increasing it. The Hundred Officials called it the Office of Consultative Deliberation.²⁴

It is likely that Ou-yang Hsiu, author of a second account of the establishment of the Office of Consultative Deliberation, to which he added the story of its abolition, made use of Li Chao's material for his Hsin T' ang shu version, written some two hundred years later.²⁵ Ou-yang Hsiu adds to Li Chao's account the observation that Mutsung, born in 795 and therefore no mere youth on the throne, was t'ung hun, "callow and dim." However, Ou-yang Hsiu continues, Mu-tsung was well enough aware of the importance of the law to give it his sober attention. Of the two offices mentioned in the Li Chao account as providing persons called upon "consultivately to deliberate," Ou-yang Hsiu omits the first. Also he explicitly states that the Emperor was in the habit of ordering one, giving the numeral, of his Grand Secretaries of the Grand Secretariate consultatively to deliberate and to lighten or make more weighty the penalty imposed by the legal authorities. Ou-yang Hsiu says the institution was given the sobriquet Office of Consultative Deliberation.

Opposition to Mu-tsung's practice of soliciting formal review of legal cases from his Grand Secretaries of the Grand Secretariate was given voice by the Vice-President of the Supreme Court of Justice, Ts'ui Ch'i, in a memorial to the throne. Ts'ui Ch'i declared in his memorial that the legal system of the T'ang state had been solidly established by the great founders of the dynasty, Kao-tsu and T'ai-tsung, over two hundred years earlier. From antiquity, he continued, it had been recognized that the state had a duty to make clearly and widely known the provisions of the laws to all the people by posting them in every town and village.

Ts'ui Ch'i has made two points here: The judicial authority of the throne was fixed and delimited by the founders of the dynasty; and it is a cardinal principle of legal administration, observed since Chou times, that the people be informed of the penalties imposed for specific violations of the law. Ts'ui Ch'i goes on:

When the [judicial] authorities have determined the crime and punishment, [this new office] discusses its lenience or severity. In this way the "giving and taking away" (i.e., the setting of punishments for crimes) being tied to the human factor [of the criminal acts], the law offices will be unable to uphold their duties.

Th'ui Ch'i closes his memorial with the recommendation that the Office of Consultative Deliberation, offensive to the Confucian doctrine of rectification of names, be abolished.²⁶ Mu-tsung acquiesced. The function was discontinued, at least in its formal aspect. The objection of Ts'ui Ch'i was that the newly established function called "consultative deliberation" had intruded into the chain of legal authority. The office had been placed above the preexisting structure and thereby had rendered the Supreme Court of Justice, whose interests Ts'ui Ch'i represented, unable, as he said, to preserve its assigned role. As we have seen above, the Ministry of Justice traditionally served as reviewing authority of decisions reached by the Supreme Court of Justice. It was empowered to return for appropriate reconsideration such of those decisions as it found wanting. Ts'ui Ch'i did not mention the Ministry of Justice; he refers alone to his own Court as the constitutional conservator of the law. Perhaps he viewed the relation between the Court and the Ministry as coordinate, not hierarchical. And indeed, the Supreme Court may have been empowered, even in the face of dissent by the Ministry, to sustain its decision after due reconsideration.

The Office of Consultative Deliberation, however, had the power to vary the sentences imposed by the court in accord with the results of its own deliberations. Therefore the legal opinions of others had been set above the legal opinions of the highest judicial office. And these others, as we have seen, were high civil officials of the government seconded, as it were, to serve in a judicial function.

The abolition of the Office of Consultative Deliberation meant a return to the traditional mode of palace review. Inasmuch as the Emperor was accustomed traditionally to refer cases to the same high civil officials, the question arises: why was one practice acceptable to the Court and not the other. The answer lies perhaps in the fact that the Emperor in his sovereign role as executor of legal decisions, even when he altered those decisions, was exercising an executive, not a judicial, function. But when Mu-tsung established an office of judicial review within the executive domain, the Court resented the intrusion.

In conclusion, we may observe that the legal reasoning contained in Po chü-i's piece makes it eminently worthy of attention. As an extended example of cogent juristic argument from so early a date it is a rarity, standing in sharp contrast to the materials preserved and translated in the T'ang-yin-pi-shih: "Parallel Cases From Under the Pear-tree " by Robert van Gulik.²⁷ Despite van Gulik's subtitle, "A 13th Century Manual of Jurisprudence and Detection," there is very little of the former and an overwhelming preponderance of the latter in the gross of court cases there reported. The judge is detective much more than jurist, fact finder more than lawgiver. As Franz Schrmann perceptively observed in his review of van Gulik's translation:

The point of many—if not most—of the seventy-two double cases in the TYPS is that a wise magistrate refuses to judge a case on superficial grounds, but digs into the matter until he comes up with the real solution…. The TYPS seems to me to be somewhat like the pocket books on "real court cases" that one finds in any book store today. They are not found next to the law books but on the same shelf with the mysteries. We know from Sung popular literature how much in demand crime stories were at the time, and I suppose that these… books were compiled more for purposes of entertainment and perhaps general didactic purposes (advice to magistrates) rather than as usable casebooks of law.²⁸

Returning to Yao Wen-hsiu, the imperial disposition of his case was published with the text of the Po chü-i opinion and is translated by Waley (page 141):

Yao Wên-hsiu killed his wife and is therefore guilty of one of the Ten Major Offences. To treat him with indulgence would be to encourage violence. In cases where the relevant passage in the Code is capable of alternative explanations, judgment should be given in accordance with what is reasonable. Po chü-i's report is to be accepted. We rule that the defendant is to be thrashed and then executed.

Two points must be made with respect to the imperial order. First, the killing by Yao Wen-hsiu of his wife would not statutorily fall within the Ten Abominations (called by Waley the Ten Major Offences), all of which involve threats to the very substance of the social order, viewed as a hierarchy. A husband killing his wife would of course be seen as a crime committed by a superior against an inferior. It may be that the brutality of the Yao Wen-hsiu case, as presented in the record, and the convincing arguments of Po chü-i that the killing had been done with intent, combined to move the emperor to include it figuratively among the Ten Abominations. Moreover, as I have mentioned above, intentional killing itself was sometimes classed with the Ten Abominations as being beyond the reach of pardon.

Second, Yao Wen-hsiu may not have suffered capital punishment after all. A reform of 782 provided that only perpetrators of the four most grave of the Ten Abominations were to be punished according to the law demanding execution. All others under sentence of death were to be punished by "one round [of beating] with the heavy stick and put to death." It seems that the offender, provided he survived the prescribed sixty strokes of "one round," was only nominally, not actually, "put to death."²⁹

Notes

¹ A. F. P. Hulsewé, Remnants of Han Law (Leiden: Brill, 1955), pp. 251-84; Karl Bünger, "The Punishment of Lunatics and Negligents According to Classical Chinese Law," Studia Serica, 9.2 (1950), 1-16.

² Niida Noboru, Chūgoku hō seishi kenkyū (Tokyo: Tokyo Univ. Press, 1959), I, 248, reprint of an article in TG (Tokyo), 11.2 (1940).

³ Wallace S. Johnson, The T'ang Code (Princeton: Princeton Univ. Press, 1979), pp. 59-60, n. 74.

⁴T'ang lü shu-i (Changsha: Commercial Press, 1939), 2.44-45, translated in Johnson, p. 119, as Article 18.

⁵ I employ terms cognate to those used by Robert des Rotours, Traité des fonctionnaires et traité de l'armee (Leiden: Brill, 1948), pp. 113-23 and 404-8. Inferences as to the respective roles of the two legal institutions, the Court and the Ministry, can be drawn from an examination of two measures, dating from 809 and 821, intended to expedite judicial process. These are in Chiu T'ang shu (Po-na-pen ed.), 50.14a and 50.15a, translated in Uchida Tomoo, Yakuchū zoku Chügoku rekidai keihöshi (Tokyo: Söbunsha, 1970), pp. 229-30 and 237-38, and in Karl Bünger, Quellen zur Rechtsgeschichte der T'ang-Zeit, Monumenta Serica Monograph 9 (Peking, 1946), pp. 130, 135. A timetable is set down in the edict of 809 by which the Supreme Court of Justice is given no more than twenty days for the process of investigating and deciding upon a case coming under its jurisdiction. Next, the Ministry of Justice is given ten days in which to conduct a review of the Court's work. Should the review produce discrepancies of opinion sufficient to remand, the case is sent back to the Court for up to fifteen days. Finally, the Ministry has seven days for its second review. Although the reform recommended in 821 does not mention remand by the Ministry to the Court, it does confirm the fact that it was the role of the Ministry to review the work of the Court and then to transmit the results to the throne. According to the T'ang monographs on officialdom, Chiu T'ang shu, 44.13a and Hsin T'ang shu (Po-na-pen e d.), 48.10b (the latter translated in des Rotours, p. 404), it was those cases of grave moment, involving sentences of death or life exile, that underwent review by the Ministry and then by the throne. Palace review was customarily delegated by the Emperor to those high-ranking officials like Po chü-i who met in "[la grande salle] du grand secrétariat impérial et de la chancellerie impériale," as des Rotours, p. 13, translates chung-shu men-hsia.

⁶Po-shih ch'ang-ch'ing chi (SPTK ed.), 43.14a-16a. Arthur Waley, The Life and Times of Po chü-i (London: George Allen & Unwin, 1949), pp. 140-41, summarizes but does not translate the Po chü-i opinion on the case of Yao Wen-hsiu. He notes that the opinion is a "document of considerable interest to students of law." Po chü-i's piece is printed, with certain omissions, in Wen-hsien t'ung-k'ao, compiled by Ma Tuanlin, who flourished during the transition from Sung to Yüan, (Shih-t'ung ed., Taipei: Hsin-hsing shu-chü, 1959), 170.1473a-b, from which it was taken by Shen Chiapen, 1840-1913, for his study on intentional killing, contained in Shen Chi-i hsien-sheng i-shu (rpt. Taipei: Wen-hai ch'u-pan she, 1964), p. 901.

⁷T'ang lü shu-i, 21.482-83. The same rule appears in the Annamese code, translated by Raymond Deloustal, "La Justice dans l'ancien Annam," BEFEO, 12.6 (1912), 3-4: "Ceux qui, dans une rixe, auront tué quelqu'un en lui portant des coups, seront punis de la strangulation. Ceux qui, au cours d'une rixe, auront tué quelqu'un en faisant usage d'une arme aiguë et tranchante, ainsi que les meurtriers volontaires, seront décapités. La faute de ceux qui, bien que les faits se soient produits à l'occasion d'une rixe, auront commis un meurtre en faisant usage d'armes aiguës et tranchantes, sera assimilée au meurtre volontaire."

⁸ Paul Pelliot, "Notes de bibliographie chinoise: II, Le Droit chinois," BEFEO, 9 (1909), 125-26. The surviving T'ang Code is "the text as promulgated in 737, with later interpolations, and not, as had been commonly assumed, the earlier version of 653." This finding we owe to Niida and Makino, as pointed out by Denis Twitchett, "Niida Noboru and Chinese Legal History," AM, NS 13 (1967), 219-20.

⁹ There are minor differences in wording. The Subcommentary version lacks the nominalizer che; and while it omits the verb wei after ming, "name," it has shih, "this [is]," preceding it. A variant definition of intentional killing, which omits entirely any mention of the factor of shih, "occasion," is found in the Subcommentary to Article 18, cited above in n. 3: "Intentionally to kill a man means an intentional killing, not resulting from an affray."

¹⁰Chiu T' ang shu, 163.4b; Hsin T'ang shu, 160.6b-7a. Ts'ui Yüan-shih's biography follows that of his older brother, but it does not mention his appointment as Judicial Inspector. Indeed, the earliest date given in the biography is twenty years after the reign of Mu-tsung.

¹¹T'ung-tien (Shih-t'ung ed., Taipei: Hsin-hsing shuchü, 1969), 25.152a.

¹²T'ang lü shu-i, 21.479.

¹³ Here again there are slight differences in the wording of the rule both from our existing version of the Subcommentary and from Po chü-i's earlier citation of the Court decision.

¹⁴ I find the English word "occasion" a rendering more satisfactory than its etymological cousin "incident" used by Arthur Waley in his narrative summary. "Occasion" carries with it a stronger sense of causation than "incident."

¹⁵ The notion of intent in Chinese law has often, as here, been expressed in terms of hsin, "heart, mind," or i, "idea, thought." Certain offenders have been described as lacking, "at bottom," pen, or "at the source," yüan, the thought to do evil.

¹⁶Wen-hsien t'ung-k'ao, 170.1473a-b omits, it would appear inadvertently, the words…. They are not restored by Shen Chia-pen.

¹⁷ The piece is in Wen-hsien t'ung-k'ao, 167.1452a, and is quoted therefrom by Shen Chia-pen immediately after the Po chü-i opinion on the case of Yao Wen-hsiu.

¹⁸ Chou Ting then seems to say that when a pair of people are engaged in mutual struggle and strife we call it "intent." As Shen Chia-pen noted, there is something very wrong, in view of Chou Ting's clear contrast between "intent" and "fight" as attributes of homicide. Ku must be an error for tou.

¹⁹ Chou Ting cites as his source for the rule the Hsingt'ung very likely denoting the Sung hsing-t'ung (Bureau of Laws edition of T'ien-i Library copy, 1918), 21.5a-b. The possibility cannot be discounted, however, that he was quoting from the first book of law codification designated by the term, the Ta-chung hsinglü t'ung-lei by Chang Lu compiled during the reign of Hsüan-ti (847-60), and apparently no longer extant. It is from the Chang Lu work that the genre takes its name by abbreviation. Sec Shih-wu chi-yüan (Taipei: Hsin-hsing shu-chü, 1969), p. 699, and Chang Wejen, An Annotated Bibliography of Chinese Legal History, chung-kuo fa-chih-shih shu-mu, Institute of History and Philology, Academia Sinica, Special Publications, No. 67 (Taipei: 1976), p. 7.

²⁰ Chou Ting's suggestion to the throne is that lower tribunals be required to determine as a matter of fact whether there had been a fight in cases alleging them to have occurred, before sending them up to the higher authorities. He specifically excepted from the category of qualifying fights those in which the parties had ceased their dispute and parted company only to return later to violence. If a break in time had intervened, the incident could not be reckoned an "angry quarrel." It is a reaffirmation of the "cooling-off period" principle.

²¹ I take the word shih here as carrying a meaning quite distinct from its legal sense of "occasion." Po chü-i appears to use it as an informal designation of the "cases" of Liu and Lo.

²²Wen-hsien t'ung-k'ao, and Shen Chia-pen, omit the material on judicial precedent, that is, this paragraph and the one preceding in my translation.

²³Wen-hsien t'ung-k'ao, and Shen Chia-pen, omit the eight-word close.

²⁴ I have quoted the text as it appears in the T'ang-tai ts'ung-shu (1850 ed.), 4.62a, (1911 ed.), 4.1 la. A variant tradition is represented by the version in Pi-chi hsiaoshuo ta-kuan, in Ssu-pu chi-yao, Tzu-pu (Taipei: Hsinhsing shu-chü, 1960), 1, 89. Omission of ju after ch'u is an error. The sense of the passage is destroyed if the sentence of the Court is open only to lessening its severity, not to increasing it. It is on the basis of the words i yüan, "one member," here, along with similar wording in the second account of the establishment of the Office, that the conclusion may be drawn that the Emperor used to refer each case to a single consultant drawn from among the holders of the title Grand Secretary of the Grand Secretariate. These officers, together with Grand Secretaries of the Imperial Chancellery, mentioned first in the version given in the text but omitted in other versions, were precisely the ones who were accustomed to sit in the chung-shu men-hsia (see n. 4). Po chü-i was a Grand Secretary of the Grand Imperial Secretariate from the tenth month of the first year of Ch'ang-ch'ing (821) until the seventh month of the second year. See Chiu T'ang shu, 16.12a and 16.16a. The corresponding sections of Hsin T'ang shu do not mention the appointment. The Yao Wen-hsiu case is not discussed in Po chü-i's biography in the sections covering the period, Chiu T'ang shu, 166.5a-b, Hsin T'ang shu, 119.5b. Nor is it taken up by Eugen Feifel, "Biography of Po chü-i," MS, 17 (1958), 296-97, or in the same author's Po Chü-i as a Censor ('S-Gravenhage: Mouton, 1961), pp. 20-21. The Yao Wen-hsiu piece is chronologically catalogued in Hanabusa Hideki, Haku Kyoi kenkyü (Kyoto: Sekai Shish sha, 1971), p. 122. The only other person I have found acting in a "consultative deliberative" function is Yang Ssu-fu, whose biography in Chiu T'ang shu, 176.4a, records his occupancy of the office Grand Secretary of the Grand Imperial Secretariate during the reign of Mutsung. For the case in which he was involved, see Ts'e-fu yüan-kuei (Taipei: chung-hua shu-chü, 1967), 616.7408.

²⁵ Ou-yang Hsiu was an admirer of Li Chao's Kuoshih-pu, and he acknowledged his use of it as a model for his own Kuei-t'ien lu in a preface to that work, according to Ssu-k'u ch'üan-shu tsung-mu (Shanghai: Commercial Press, 1933), p. 2903.

²⁶ What would seem to have been pu cheng, "not rectified," about the term ts'an-cho yüan was that the name of the Office gave no hint of its extraordinary authority, superior to that of the Supreme Court of Justice and the Ministry of Justice. Ts'ui Ch'i objects of course not merely to the name but to the function itself.

²⁷Sinica Leidensia, 10 (Leiden: Brill, 1956).

²⁸JAS, 17 (1958), 268-69. Another reviewer, John C. H. Wu, himself a lawyer, cites only two of the cases, both from Han times, to illustrate his assessment of the book as "not lacking cases which involved subtle and equitable interpretation and application of the laws," and as containing "cases highly illustrative of good legal reasoning." MS, 17 (1948), 474-78.

²⁹ See Karl Bünger, Quellen, pp. 166-67, and Uchida Tomoo, Yakuchū zoku Chūgoku rekidai keih shi, pp. 290-91, for translations of Hsin T'ang shu, 56.6b. See also T'ung-tien, 165.875a, and T'ang hui-yao (Taipei: Shih-chieh shu-chuü, 1963), 39.711.