Criminal Procedure in T'ang China

Criminal Procedure in T'ang China
Author(s): WALLACE JOHNSON and DENIS TWITCHETT

Source: Asia Major, THIRD SERIES, Vol. 6, No. 2 (1993), pp. 113-146
Published by: Academia Sinica
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WA LL AC E J O HNSO N A N D D E N I S T W I T С H E T T
Criminal Procedure in T'ang China
Some ministrative years ago, procedure

ministrative Denis Twitchett
procedure usedused during
duringpublishedthe
the T'ang
T'angan article dynasty on (619-906
dynasty the ad-
(619-906
ad) for handling official documents at the county ( hsien !^) level.1
The main sources for that article were contemporary manuscripts
now in the Otani Collection in Kyoto that deal with the problem of
vagrant households. Now both of us are making a first attempt to
describe the procedures for criminal cases. Unfortunately, no manu-
scripts similar to those used in the article on administrative procedure
have survived that describe the actual conduct of a criminal case.
Lacking primary material for the law in operation, this paper is based
largely on the normative regulations governing criminal procedures
contained in The T'ang Code ( Ku T'ang-lü shu-i hereafter
referred to as Code, and the Statutes ( Ling Ф).2 It might be thought
that The T'ang Institutes (Та T'ang liu-tien of 739 ad would
be of help. But des Rotours has recently shown that, at least to some
extent, the original plan of the Institutes imitated the Rites of Chou
( Chou-li and its compilation, which took sixteen years, intro-
duced wholesale changes. The completed work thus does not have
the reliability or the integrity of the Code and the Statutes .3 Therefore
1 Denis Twitchett, "The Implementation of Law in Early T'ang China," Civiltà

Veneziana : Studi 34 (1978), pp. 57-84. The translated documents deal with vagrant
households; they were originally brought together by Naitõ Kenkichi
Chügoku hõseishi kõshõ ФЙ5Ё$!13Ё%8? (Tokyo: Yùhikaku, 1963), pp. 223-345.
2 Both of these works were compiled before the 757 uprising; the Code originally
in 653 (the surviving version is that of 737), and the Statutes in 624 The Statutes,
however, have not been preserved in their original form. The majority of the
surviving articles collected by Niida Noboru £2#Ш1Э in his Tõryõ shüi
(Tokyo: Tõkyõ daigaku shuppankai, 1964; hereafter, Statutes) are from the 737
revision. Thus both the Code and the Statutes were in force during the first part of
the dynasty. A useful table comparing the Code and the Statutes oí the T'ang period
with those of earlier dynasties is given in Etienne Balazs, Le Traité juridique du
uSouei chou" (Leiden: E. T. Brill, 10C4) PP. 207-11.
3See Robert des Rotours, " Le T'ang liu tien décrit-il exactement les institutions
en usage sous le dynastie des T'ang, n JA 263 (1975), pp. 183-201. See Ta T'ang liu-tien
(rpt Taipei: World Book Co., i960; hereafter 7X7). See also Naitõ, Chügoku hõseishi ,
pp. 64-89, and Denis Twitchett, The Writing of Official History under the T'ang
(Cambridge: Cambridge U.P., 1992), pp. 101-3.
113
W. JOHNSON & D. TWITCHETT
it has only been cited when it can reinforce a point made in the
other two more reliable sources.
Obviously these sources can give us only a partial view of criminal

proceedings.4 Nevertheless, at least the general outlines of the picture
can be drawn, which perhaps can be filled in later if more material is
discovered through archeological finds. Here, none of the enormous
amount of fictionalized "detective" novels centering on Tang period
figures is cited. This material is not contemporary, and its main
purpose is to demonstrate the brilliance of a particular famous magis-
trate rather than to show how a criminal trial was conducted. Trying
to understand the realities of court procedure during the T'ang
dynasty from these stories would be even less fruitful than trying to
gain knowledge of twentieth-century legal practice from reading Perry
Mason novels or watching "Rumpole of the Bailey" on television.
In order to show how criminal procedure operated during T'ang
times, we begin with a discussion of how a case might have been
initiated and follow through the various steps of a trial to its conclusion.
Thereafter, we conclude with some remarks of a general nature about
T'ang society and the administration of law. Two appendices are
attached: appendix A presents charts illustrating the organization of
the judicial and penal systems; and appendix В contains translations
of important articles of the Code and the Statutes dealing with criminal
procedure. Appendix В is arranged under the topics of preliminary
hearing, trial, and punishment. It would help to understand the
criminal process if these translations were read together with the
corresponding sections of the narrative below.5
4 The late Robert van Gulik suggested that more information might be discovered
by going through the biographies of famous judges. But this does not prove to be
so, and he himself states that very little can be found out from the biographies of
Ti Jen-chieh, his famous Judge Dee; see also David McMullen, "The Real Judge
Dee: Ti Jen-chieh and the T'ang Restoration of 705," AM yd ser. 6.1 (1993).
Citations of the statutes are to the page numbers of Niida Noboru's Táiyõ
shut. Citations of the articles of the Code are to T'ang-lu shu-i (Peking: Chung-hua
Book Co., 1983), which uses continuous pagination and in which the articles are
consecutively numbered. When a statute or article is translated in appendix B, the
citation will be preceded by "app." For statutes, "app.wis followed by Statutes,1* then
the chapter number, and the number of the statute within the chapter. For árdeles,
ttapp.w will be followed by "Code" and then the number of the article. In appendix
B, the page number for the edition cited will be at the left margin in both cases.
П4
T'ANG CRIMINAL PROCEDURE
In the material presented below, the Code several times prescribes

punishment for officials. Because of the legal privileges afforded
ranked officials, they were not likely to have been punished.6 However,
lesser officials "outside the current," who were the majority of those
employed at the county level (see appendix A), enjoyed no such
privilege.
THE CRIMINAL ACT
Any person who was a witness to a crime of beating, robbery,

or rape had to seize the criminal if possible and bring him to the
magistrate's office.7 For lesser offenses, it was only necessary to inform
the local officials. Indeed, unwarranted arrest by a witness could be
punished by 30 blows with the light stick. Members of mutual security
groups ( pao ^ or lin were also obligated to help each other.8 If
they ignored a call for help while a crime such as robbery by force or
killing were taking place, they would be beaten with 100 blows of the
heavy stick.9 Moreover, a magistrate who did not send aid when
requested would be punished by one year of penal servitude.10
Once a criminal act had already taken place, an accusation
(kao Ur or su Ш) was probably the most common way that a case
would be brought before the court.11 Such an accusation had to be
6 See Wallace Johnson, The T'ang Code : General Principles, Vol. I (Princeton:
Princeton U.P., 1979), articles 7-11, pp. 83-100. But while punishment could be
avoided, the use of these means became a part of an official's record.
7 Code , 454, p. 529, "Arrest of Criminals by Passers-by." An exception was made
for crimes committed in the market that allowed the market officials themselves to
administer beatings with the light or heavy stick.
8 These mutual security groups go back at least to the Chou li. See the discussion
of their history in Hsiao Kung-chuan, Rural China: Imperial Control in the Nineteenth
Century (Seatde: U. of Washington P., i960), pp. 25-27. Hsiao believes that the Sui
emperor Wen-ti (r. 589-604) was the first to associate these groups with a police
function in 589. It is interesting that while in the Code they are held responsible for
other members of the security group, yet they have no special responsibility for
crimes committed in their area.
9 Code 456, p. 520, "Robbery by Force within a Neighborhood."
ю Ibid. If the crime were robbery by stealth, the penalties would be reduced
two degrees for both the members of the mutual security group and the magistrate.
11 Shiga Shuzõ ШШЗ f- states that the difference between kao and su is that
"5
W. JOHNSON & D, TWITCHETT
made at the county level, at least initially.12 Only if it were rejected

there, could the person making the accusation use other means to
bring the case forward.13
Whether an act was criminal or not depended in many cases
on who committed it and who was the victim. In a few cases, the
victim would be punished for reporting a criminal act. But anyone,
no matter what their position, had an obligation to report a plot to
rebel (тои-/апШЕ1) or an act of great sedition ( ta-ni the first
two of the ten abominations ( shih о +Щ) .14 In fact, failure to do so
was punished by strangulation.15
The relevant statute goes into great detail as to how such
offenses should be reported, giving alternate methods where a person's
local officials might be involved in the plot themselves.16 Even criminals
who had committed a capital offense and were not normally allowed
to make accusations of crimes involving others were permitted to
report plots of rebellion and acts of great sedition.17 Moreover, the
official who received such reports had to make an arrest immediately.
If he delayed even half a day he would receive the same punishment
as those who had failed to report the crime, that is, strangulation.18
The only allowable excuse for not acting promptly was the need first
to assemble men and weapons so as to make the arrest.
Certain lesser offenses also had to be reported. Members of a
the first refers to stating another's guilt and the second to complain of one's own
suffering. See his "Criminal Procedure in the Ch'ing Dynasty," MTB 32 (1974), p. 3,
n. 4. The term sung% which is here translated as accusation, seems to have been
generally used in the Code for any type of criminal case.
12 See app. Statutes 2140. TLT> p. 145, reads slightly differendy.
13 These included sending up memorials to the emperor, making personal
appeals if the imperial entourage passed through an area, and beating or standing
by the petitioner's drum in the capital. See app. Code 358, and app. Statutes 21.40
together with the general discussion in Twitchett, "Implementation of Law," pp.
66-68.
14 The relevant articles are translated in Johnson, T'ang Code , pp. 61-83. There is
a general discussion on pp. 17-23.
15 Code 340, p. 427, "Secret Accusations to the Court of Plots of Rebellion or
Great Sedition." There were lesser penal des for failure to report certain others of
these offenses.
16 See app. Statutes 10.24.

17 Ibid.
18 See app. Code 34a
116
family in which violence, robbery, or a killing had taken place also

had to make an accusation to the official in charge. This general title
might refer to the ward headman, the hamlet headman, the village
headman, or a higher official depending on where the crime took
place. The same obligation also lay with the other members of the
mutual security groups. Were it impossible for either of these to
make an accusation, the responsibility devolved on the neighboring
mutual security group. Failure by any of these to carry out their
responsibility within one day would be punished by 90 blows with the
heavy stick.19 The official in charge, whoever he might be, then had
the duty to bring the crime to the attention of the magistrate. If he
delayed in doing so, his punishment would be 80 blows with the
heavy stick for the first day, increased to 100 blows after three days.20
Once the magistrate had been informed, he had to begin the
investigation and try to make an arrest. His neglect to do so for even
one day would be punished by one year of penal servitude. A similar
obligation lay with supervisory officials and officials in charge to
begin an investigation whenever they had knowledge of offenses within
their areas of jurisdiction.21 If they did not do so, their own punishment
would be only three degrees lower than that of the actual criminal.22
Not all criminal acts, however, had to be reported. Intrafamilial
offenses and those involving a master and his slaves or personal
retainers were regarded differendy from those in which the aggressor
and victim were not related.23 For example, the Code punishes a wife
who strikes her husband by one year of penal servitude, and if she
actually wounded him her punishment would be three degrees above
19 Code 360, p. 449, "Robbery by Force and Killing Persons."

20 Code 361, p. 449, "Supervisory Officials Who Know that a Crime Has Been
Committed."
21 Ibid. Another part of this article requires members of security groups also to
investigate any crime that they know of in their area. Various penalties are assessed
for failure to do so depending upon the seriousness of the crime.
22 Ibid. Censorial officials would be punished even more heavily, receiving a
sentence only two degrees less than the actual criminal.
25 T'ang law took into account group relationships such as the familial and the
religious in judging offenses. Thus not only the class status of the aggressor and
the victim but also their group relationship were important in deciding a criminal
case.
n7
that for the same offense when committed by and against persons of
no relationship.24 But only the husband could lodge a valid accusation
of this offense against a wife.25 And he was not required by law to do
so. Similarly, no third person could report a wife for cursing her
husband's parents or paternal grandparents. And since conviction
for this offense required divorce, no doubt the aggrieved parties
would hesitate before making such an accusation. The son or grandson
in the male line who did not support his parents or paternal grand-
parents would be punished by two years of penal servitude, but only
these senior relatives themselves could make accusation of the crime.26
There were also situations where the Code permitted summary
punishment without a court hearing. Parents could immediately beat
children who did not obey them and would not be punished even if
the children were accidentally killed.27 Similarly a master could punish
his slaves or personal retainers for offenses committed by these latter
without making any application to the court. If the offense were
capital and the master killed the slave in administering punishment,
he incurred no penalty himself.28 Even for other crimes he would be
punished with at most 100 blows with the heavy stick.
Senior family members and masters were also protected from
accusations made against them to the court by family juniors or their
slaves and personal retainers. Anyone who reported the criminal acts
of their parents, or paternal grandparents extending to four gener-
ations, would be punished by strangulation even if the offense were
against him or herself.29 Furthermore, these senior relatives would
24 Code 326, p. 410, "Wives Who Beat or Curse Their Husbands." Concubines
were punished still heavier, reflecting the importance of family status in punishing
an intrafamilial offense.
25 Ibid.
26 Code 348, p. 437, "Violations of Commands by Sons and Grandsons in the
Male Line." The same held for refusal to obey these elders.
27 Code 329, p. 414, "Beating or Cursing One's Paternal Grandparents or Parents."
28 Code 322, p. 406, "Punishment for Beating a Personal Retainer to Death."
29 Code 345, p. 432, "Accusing Paternal Grandparents or Parents to the Court is
Punished by Strangulation." Both the exception made for families not having to
report their members' offenses (except those involving rebellion and sedition)
and the punishment of juniors who accuse seniors are bound up in the concept of
mutual concealment See Johnson, Tang Code , article 37, p. 201, and the
discussion on pp. 33-35.
118
not be punished but treated as if they had made a confession.30

As the relationship between accuser and accused became less,
so did the amount of punishment given to a junior family member
who lodged an accusation against a senior. Thus for accusations
against elders of the second degree of mourning relationship, the
punishment was rather two degrees of penal servitude, or one degree
less than that provided by the offense of which they had been accused.
But again they would be treated as if the family elder had made a
confession. An exception was made if the second-degree elder had
actually beaten the junior who made the accusation. In such cases
the accusation would be accepted by the court.31
The same protection was afforded to the masters of slaves or
personal retainers. If these latter reported their masters to the court
for any offense other than that of plotting rebellion, sedition, or
treason, they would be strangled and the case, again, treated as if
their master had made a confession.32 Even their owners' first-degree
relatives were protected to the extent that accusations against them
were punished by life exile to a distance of 3,000 li. Other relatives
received progressively less protection as their degree of mourning
relationship diminished.
PRELIMINARY HEARINGS
The Code required that when an accusation was made, the

year and month during which the crime had taken place had to be
30 Confession could serve to gain exemption from punishment for a crime, or,
depending upon the circumstances, obtain some decrease of punishment. The
Code even permits those who confess plots of rebellion or sedition to escape
punishment under certain conditions. Interestingly enough, though, the practice
of astrology without permission could not get remission of punishment by confessing.
See the translation of articles 37 and 38 of the Code in Johnson, T'ang Code, pp.
201-14, and the article by W. Allyn Rickett, "Voluntary Surrender and Confession
in Chinese Law: The Problem of Continuity, " JAS 30 4 (1971), pp. 797-814.
31 Code 346, p. 435, "Accusing Relatives of the Second Degree of Mourning of a
Higher Generation or of the Same Generation but Older than Oneself to the
Court."
32 Code 349, p. 438, "Personal Retainers and Slaves Who Accuse Their Masters to
the Court."
119
clearly indicated and the trae circumstances of the offense set forth.33
Failure to do so was punished by fifty blows with the light stick.
Furthermore the accuser would also lay himself open to reciprocal
punishment for false accusation S^Jz^.^But the punishment was
still heavier for an official who accepted such accusations at one
degree less than that provided for the stated crime.35 Miyazaki Ichisada
IS rfï;Ë states that in Sung times there were scrivener shops where
one could have such a written statement ( tz'u or tz'u-tieh ЯЭДйс)
drawn up before presenting it to the yamen.36 Support for some
such system having existed already in the T'ang dynasty is provided
by article 356 of the Code entitled "Adding to the Circumstances in
Making a Written Statement for a Person."87 The least amount of
punishment given in such cases was fifty blows with the light stick
and the punishment could rise as high as life exile to a distance of
3,000 li.
Once an accusation was made, the magistrate subjected the
accuser to hearings ( shen Щ) on three separate days, taking a written
statement from the accuser the first time and oral confirmations on
the second and third occasions.38 On each occasion he issued a
warning about reciprocal punishment for false accusation.39 The stat-
33 See app. Code 355. The penalty was even greater for anyone who made
anonymous accusations; life exile at a distance of 3,000 U as provided by Code 351, p.
439, "Anonymous Accusation of Criminals to the Court." Anyone receiving such a
document was supposed to burn it If he forwarded it to the yamen, the punishment
was one year of penal servitude and if the official accepted it, he would receive two
years of panel servitude. If one improperly memorialized the emperor in this way,
the penalty was three years of penal servitude. Even were the accusation true, the
accused would not be punished.
54 See app. Code 342 and app. Statutes , 30.23.
55 Code 355, p. 444.
36 Ichisada Miyazaki, "The Administration of Justice During the Sung Dynasty,"
in Jerome A. Cohen, Randle Edwards, and Fu-mei Chen, eds., Essays on China's
Legal Tradition (Princeton: Princeton U.P., 1981), pp. 59-60.
37 Code, p. 444.
An exception is listed in app. Statutes 30.23 for envoys traveling on official
business. For such people the three hearings could all be on one day. Certainly
this was so as not to delay them on their duties but also because presumably they
would not require the amount of reflection that an ordinary person would need
before making an accusation.
39 Statutes , p. 776. Essentially the same text is found in TLT ' p. 146. Accusations
involving the first three of the ten abominations were not dealt with in this way.
120
ute provides that a clerk will make a record of testimony for those
who are illiterate. In the case of crimes such as killing, violence,
robbery, and rape, however, the Statutes provide that no such delay
was needed. Such crimes were classified as completely reprehensible
and needed to be expedited.40 The same was true when the
accusation involved plotting treason or committing great sedition,
when the magistrate had to act immediately. And for cases classified
as completely reprehensible, the accused was not liable for reciprocal
punishment for false accusation.
The next step was to arrest the person named in the accusation
so as to ensure his appearance in the coming trial. A limit of thirty
days was allowed for this purpose in more serious cases such as robbery
or killing. If within this period, the accused were not arrested, various
penalties, from fifty blows with the light stick for the village headman
to a possible two years of penal servitude for the magistrate, were
assessed.41
If the agents of the court responsible for the arrest let out
information about the crime that resulted in the accused's escaping,
they received punishment of only one degree less than that specified
for the crime.42 They had the authority to call on any passers-by to
assist them in making the arrest; any able-bodied person who refused
to give such aid would be beaten eighty blows with the heavy stick.43
The use of force was allowed in case of resistance by the accused or if
he attempted to run away. If the accused tried to resist arrest by use
of a club and was killed, those responsible for the arrest would not
be punished.44 On the other hand, they would be heavily punished
for any unnecessary beating or wounding of the prisoner once the
Rather those accused were arrested immediately and a memorial sent to the emperor.
See app. Statutes 30.24.
40 These crimes are among those classed as completely reprehensible. Thus
they are more serious than the other major offenses, but are not at the level of the
ten abominations. We have not been able to find any complete listing of crimes
classified as completely reprehensible.
41 Code 301, p. 379, "Concealment of Robbery within an Area."
4 Code 455, p. 455, "Divulging His Crime to a Criminal Who is Going to Be
Arrested."
45 Code 454, p. 529, "Arrest of Criminals by Passers By."

44 Code 452, p. 527, "Criminals Who Use Weapons to Resist Arrest."
121
arrest had been made.
The statute provides that both the accuser and the accused
were to be held in prison to await trial.45 But the wording was such
that the accuser was usually allowed to furnish a guarantor ^ of his
appearance rather than be imprisoned. The conditions of imprison-
ment while awaiting trial varied considerably with the crime of which
the prisoner was accused, the sex of the accused, or the physical
condition, and especially whether or not he was a member of the
privileged classes or not.46 Men whose crime would be punished by
death wore both the cangue and manacles while in prison. But women
who were accused of a capital offense, as well as males whose punish-
ment would be life exile or penal servitude, did not have to wear
manacles.
Where the punishment would be no more than beating with

the light or heavy stick, no fetters at all were used. This was also the
case for those eighty or older, ten years or younger, those whose
physical condition classified them as disabled,47 and pregnant women
even if these latter were accused of a capital crime.
Members of the bureaucracy were treated much differently,
however. Within the capital, active duty officials of the fifth rank and
higher could not, except for a capital offense, be imprisoned without
a memorial having first been sent up to the emperor.48 The same
privilege was given to titular officials of the second and first ranks.
Even in the provinces, a memorial had to be sent up after such
officials were arrested informing the emperor of the case.
Indeed, no person who possessed any of the rights of deliber-
ation (¿Щ), petition (ch'ingt f), or reduction of punishment ( chien
would be imprisoned at all unless the offense were punished by
life exile or more.49 If an official were imprisoned for an offense
45 Statutes, pp. 776-77.

46 All of these factors could affect also the degree of punishment sentenced for
the same offense. It is interesting, however, that members of the inferior classes
seem to have been treated the same as commoners in so far as trial proceedings
were concerned.
47 Statutes y p. 781.
48 Statutes , p. 784.
49 Statutes , p, 783.
122
which would require disenrollment or resignation from office, he

would only wear shackles on his feet. Even eighth- and ninth-rank
officials as well as those who had the right of redemption of punish-
ment by payment of copper ( shu ffi) would be imprisoned only for
offenses punished by at least penal servitude and then they wore
only the cangue. In all other cases they were allowed to furnish a
guarantor.
There were, as well, separate prisons for such people. All those
who were imprisoned were given a mat to sleep upon, allowed one
bath a month, and during the summer given rice water to drink. If
their families lived at a distance, they were allowed to make payment
for food and clothing given the prisoner when they came to the
magistracy.50 If a prisoner became ill and requested a doctor or
medicine, refusal to grant the request would result in sixty blows
with the heavy stick for the chief jailer.51 When the illness was serious,
fetters had to be removed, and if a family member was needed to
take care of the sick prisoner, this also had to be permitted.
Where a prisoner died as a result of such treatment having
been deliberately refused, the punishment was two years of penal
servitude. If insufficient food was given to the prisoners, this was
punished by fifty blows with the light stick and if a prisoner deliberately
starved to death, the chief jailer was punished by strangulation.52
Furthermore, prefects were instructed to give careful attention to
the condition of the prisoners, and, from time to time, special envoys
were sent out for the same purpose. 53
As mentioned above, magistrates did not have jurisdiction over
crimes against the state.54 Neither did they try any of those persons
50 Statutes, p. 791. However, prisoners were not permitted to have brushes,

paper, wine, or money.
51 Code 473, p. 549, "Allowing Prisoners Clothing, Food, Medical Care and
Medicines."
52 Ibid.
53 Statutes , p. 760. The text in TLT does not contain the characters {fu-ch'iu Ш
0) "examine prisoners" before the word envoy. Niida has added these two characters
from the Tapanese Yõrõ Statutes (717-724 ad) .
54 In any case, political offenses are not a very good source for understanding
the workings of the law. It is rather the ordinary cases of theft, etc. which best
illustrate how a country's criminal law is administered.
123
who had the rights of deliberation or petition.55 Furthermore, outside

of the capital area no official in a county or prefecture could accept
jurisdiction over a case that involved the chief officiai there. The
same held for any imperial envoy at the place to which he had been
sent.56
It was also essential that the official who did the interrogating
and the accused not be related. If they were relatives within the five
degrees of mourning, or if one of them was married to a relative of
the other within the third degree, the interrogation had to be done
by another person.57 The same requirement held if the accused and
the official previously had a student-teacher relationship.
The problem of jurisdiction also arose when criminals com-
mitted crimes in one area and were caught in another. If the two
places were separated by not more than 100 li, the following rules
applied:58
1. Jurisdiction was awarded to the place where the punishment

would be heavier.
2. Were the punishments equal, the jurisdiction in which the

most crimes had been committed would the case.
Where both conditions were equal, jurisdiction would be awarded to

the place where the crimes were first committed.
It should also be noted that not all the persons involved in a
criminal act had to be arrested before a trial could begin. Those
caught first would be tried and sentenced and any necessary adjust-
ments in punishment, dependant on who was the principal and who
the accessories, could wait until the others were tried.59
55 Statute^ P- 782.
56 Code 481, p. 556, "Moving Prisoners to One Location and Sentencing Them
Together."
57 Statutes, p. 786.
58 Code 481, p. 556, "Moving Prisoners to One Location and Sentencing Them
Together."
59 Statutes , p. 775. In many instances, the accessories had their punishment
reduced below that of the principal, hence the importance of establishing the role
of each particular offender. See the translation of article 42, "Where Crimes Are
Committed Collectively the Person Who Formulates the Plan is the Principal," in
124
TRIAL
The only extant information about courtrooms in T'ang times

is given in the pictures showing the examination of dead souls by the
King of Hell in the Canon of the Ten Kings of the Buddhist Hells ( Fo-shuo
shih-wang ching ШЙЙ+Ï^).60 Miyazaki has stated that in the Sung
dynasty trials were not open to the general public.61 On the other
hand, two incidents recorded in the well-known early-thirteenth-
century case book Parallel Cases from under the Pear Tree ( T'ang-yin
pi-shih ^Hš.fcblÍS) support the view that in T'ang times such trials
were open.62 In both of these cases, the criminal accosts persons
coming out of the courtroom for information. It would seem that if
the trials had not been open, these people would not have been at
the hearing. We know that almost all punishments were administered
in full view of the general population. Undoubtedly this was for the
purpose of having the people see justice done as well as to impress
them with fear of the law in case they themselves committed a crime.
But while the physical surroundings of the court are not well
described in the sources available to us, the procedure is fairly well
set out. The examining magistrate first employed the "five hearings"
( -wu-ťing 3£Ш).63 Famous throughout Chinese history as a technique
for eliciting the facts of a case, this method is first mentioned in the
Rites of Chou.64 While questioning a person before him, the magistrate
would look closely for five kinds of behavior: the person's statements,
expression, breathing, reaction to the words of the judge, and eyes.
Johnson, T'ang Code , pp. 225-26. An example of this problem is given in article 44,
p. 229.
60 Sir Aurel M. Stein, Serindia (Oxford: At the Clarendon Press, 1921) 4, plate 93.
See also the discussion in Robert van Gulik, Dee GoongAn: Three Murder Cases Solved
by Judge Dee (rpt. New York: Dover Press, 1949), p. xx, and the analytic article by
Niida Noboru, Chügoku hõseishi kenkyü keihõ (Tokyo: Tòkyo
daigaku shuppankai, 1959), pp. 597-614.
61 Miyazaki, "Justice During the Sung Dynasty," p. 61.
62 Robert van Gulik, Parallel Cases from under the Pear Tree (Leiden: E. J. Brill,
1956), pp. 96, 125. Both of these cases are probably derived from accounts in Hsin
Tangshu ШШ9-
63 Statutes, p. 779. See also the discussion in van Gulik, Parallel Cases, pp. 49-50.
64 Chou li , "Hsiao ssu-k'ou p. 524; Édouard Biot, Le Tcheou-li ou rites des
Tcheou (Paris: L'Imprimerie nationale, 1851) 2, p. 320.
125
W. JOHNSON 8c D. TWITCHETT
Through careful observation, it was thought that the experienced

magistrate could arrive at a knowledge of whether the person was, in
fact, telling the truth.65
This practice seems to be based, at least in part, on the widely
believed theory that when a person is deliberately lying he will show
certain uncontrollable and discernible changes in behavior. Indeed,
as late as the Ch'ing dynasty, Wang Hui-tsu wrote in his famous
magistrate's guide that examination especially of a person's appear-
ance was a great aid in the hearing of criminal cases.66
In addition to the accuser and the accused, witnesses were
also examined and their testimony taken. Indeed, certain classes of
persons could not be convicted without the testimony of at least
three witnesses.67 These included those who had any of the rights of
deliberation, petition, or reduction of punishment, those who were
seventy or older, fifteen or younger, or disabled.
Those who testified were required to tell the truth. If their
testimony resulted in the accused's receiving either a heavier or lighter
punishment than should have been sentenced, they would be pun-
ished.68 A further, technical problem that could interfere with the
understanding of testimony by the magistrate concerned the dialects
and non-Chinese languages spoken in parts of T'ang China. Transla-
tors were used so that the testimony of these people could be taken,
and the Code is concerned that translators be completely accurate,
providing punishment for mistranslation that resulted in a wrong
fiQ
sentence.
65 Herbert Giles who observed many trials during his service in China in the
nineteenth century says that he witnessed examples of this. He also believed that
judicial torture was, in fact, used very rarely. See his "The Penal Code," in Historic
China and Other Sketches (London: George Trubner, 1882), p. 126.
66 Wang Hui-tsu SEÄffl, Hsüeh-chih i-shuo (Precepts for Local Officials),
quoted in van Gulik, Parallel Cases, pp. 58-59. One wonders if this is linked to the
belief in physiognomy, which has a long history in China. And not only in China,
for the nineteenth-century Italian sociologist Cesare Lombroso developed a theory
of criminal identification which was based on certain facial characteristics as
indicating criminal behavior.
67 Code 474, p. 550, "Those Who Have the Rights of the Eight Deliberations,
Petition, or Reduction of Punishment or Are Aged or Juvenile."
68 Codetfj, p. 475, "False Testimony."
69 Ibid. The article makes reference to i-jen ЛА "barbarians," but of course
126
With the accuser, the accused, and all relevant witnesses having
been heard, the first part of the trial ended. By this time, a confession
may have been elicited from the accused, or perhaps the accuser
may have been brought to admit that the accusation had been false.
There is no doubt that such a confession was the most desired way of
bringing a trial to an end. But it was not absolutely necessary.70
Article 476 states that where the illicit goods and the circum-
stances of the case have been exposed and investigated and no rea-
sonable doubt exists a sentence may be passed
down.71 And, of course, in the case of those whose guilt was decided
solely on the basis of sufficient testimony of witnesses, sentence could
be given and the trial brought to a close.
However, many cases certainly could not have been ended in
either of these two ways. Therefore, if the magistrate having repeat-
edly examined both the circumstances and the testimony dealing
with the crime was unable to reach a decision, he then sought the
agreement of his senior officials and included the decision in the
case file in order to proceed with the use of judicial torture
of the persons involved.72
Of course, at the district level there was no higher official
than the magistrate himself. Evidence indicates that he needed the
assent of his colleagues who had official posts and that at a higher
level, in fact, all officials would have to agree before torture could be
administered.73 But what is clear is that some form of agreement was
needed and that torture could not be used before the other methods
described above for deciding the case had been exhausted without
magistrates would be unlikely to understand even the dialects in many of the

places they were stationed during the course of their career and hence the need
to rely on those local assistants who were permanently attached to the yamen.
70 See app. Code 476.
71 Statutes , p. 775, adds that where the illicit goods and the circumstances of the
case have been exposed and investigated, it is not necessary to have all the criminals
in custody. Those already seized may be tried and sentenced first.
72 See Code 476, p. 552.
3 During the Sung dynasty (960-1270), the T'ai-tsung emperor (r. 976-997)
issued a decree stating that not all officials at the prefectural level had to participate
in this decision. See Hsû Tao-lin "Sung-lü chung ti shen-p'an chih-tu"
("The Sung Trial System as Prescribed in the Fundamental Statutes of
the Sung) , Tung-fang tsa chih fu-k'an 4-4 (1970), p. 21.
127
the magistrate himself being punished.74

Specific rules governed the application of judicial torture. The
only instrument permitted was the so-called interrogation stick ШШ
tí, which was approximately 40 inches long and .35 and .22 inches
wide at the large and small ends respectively.75 The magistrate himself
would be punished if other means were used to try to force a confes-
sion.76
The accused could be beaten no more than 200 blows in all
or the punishment prescribed for his offense, whichever was less.77

Moreover, the interrogations had to be at least twenty days apart and
there could be no more than three of them.78 When someone was
beaten, the blows had to be equally divided between the person's
back, buttocks, and upper legs. However, despite these limitations it
seems probable that many persons died under interrogation. But
unless the victim had been deliberately beaten to death, the Code
does not provide for any punishment. In such cases, a report was
sent up to the senior official and an investigation was made. Since
any investigation would reflect poorly on the an official, this probably
restrained the application of torture except where the accused was a
hardened criminal whose death would be accepted by the people in
the area.
The scope of the examination of the accused was limited to

the crime set forth in the accusation.79 If a "shotgun" approach was
used in questioning the accused, the magistrate would himself be
punished under the law on deliberately increasing punishment. But
while following the basic facts of the accusation, the interrogator
could be allowed to uncover offenses other than those specified.
Even if the defendant did not confess, it was not always necessary
to use the full amount of torture permitted. The statute specifies
that in cases where the crimes were not major offenses, and where
74 See Code 476, p. 552.

75 Statutes , p. 793.
6 Code 477, p. 552, "A Prisoner May Not Be Judicially Tortured More than Three
Times."
77 Ibid.
78 Statutes y p. 77 9.
79 See app. Code 480.
128
the doubtful points were few, three interrogations might not be need-
ed.80 This would seem to refer to two circumstances. First, although
the accused may have confessed after receiving less than the maximum
number of blows permitted, and still there remained unanswered
questions, the magistrate was enabled to decide the case. Second,
after the accused had been interrogated once or even twice, other
information may have come to light that would enable the magistrate
either to sentence the defendant or release him.
But where the accused was able to withstand the full amount
of judicial torture allowed under the crime for which he had been
accused without making a confession, the next step was to use the
same procedure on the accuser.81 But not in all cases. For cases
classified as completely reprehensible, that is, where someone had
been killed, or where damage had been done by water or fire, or an
accusation had been laid against a kinsman for theft of family goods,
the original accuser could not be tortured.
But if the accuser, no matter whether through questioning or
judicial torture, could be brought to admit that the accusation was
false, he would then be subject to reciprocal punishment for false
accusation. Since in many cases the accuser had to be cautioned
about this law before the trial could actually begin, it would seem
that its intent in part at least was to prevent persons from making
accusations for frivolous reasons or personal spite without having at
least the minimum amount of evidence sufficient to convince the
magistrate that an arrest should be made.

Basically, this principle of the Code brought upon the false
accuser the same punishment that would have been inflicted upon
the accused had this latter been convicted.82 Thus if the offense were
punished by two and one-half years of penal servitude, the same
sentence would be given to the false accuser. In the case of officials
who might have to resign from office or be punished in other ways
80 Statutes , p. 77 9. Code 353, p. 441, "Offenses Must Be Confessed to the Local

Government Office," states that serious offenses are those punished by penal
servitude or more. Thus the case would have to be reviewed by higher authority.
81 Code 478, p. 554, "Completion of Judicial Torture without a Prisoner Confessing."
82 See Johnson, T'ang Code , article 53, p. 261, and the discussion on p. 15. See
also Code 341-44, pp. 428-31, particularly app. Code 341.
129
that were not applicable to commoners, equivalents were made in

terms of blows with the heavy stick.83
Where an accusation had been made of several crimes, if the
most severe offense proved to be true and the others false, the accuser
would not be punished. But where the accusation of the crime pun-
ished most heavily proved to be false and the offenses punished
more lightly to be true, the accuser would receive the difference
between them as his own punishment Further, if there was a maximum
punishment for a particular crime, only this amount could be inflicted
on the accuser.84
If the accusation were against two or more persons, the accuser
would receive punishment for any of those persons against whom
the accusation had been false, even if it were true for the msyority.85
In the case of such a false accusation made in a memorial to the
throne the relevant article even provides for a minimum punishment

- two years of penal servitude - if the false accusation had been for
a crime carrying less punishment.86 Where the accusation had actually
been laid by person "B" on orders of person "A," both of them would
be punished if such an accusation proved to be false.87 The heavier
punishment would fall on B, but A would receive only one degree
less. Where A had some relationship with the accused, that is, being
a junior or senior relative, or that person's personal retainer or slave,
the use of the intermediary В would not affect the liability of A,
which remained the same as described above. However, the situation
would be reversed for person B, whose sentence would be one degree
less than A received.
Usually two limitations governed reciprocal punishment for

false accusation. Even if the crime were punished by decapitation the
false accuser would be no more than strangled.88 And where the
accused had been sentenced to death, if the sentence had not yet
83 See Tohnson, T'anvCode> article 23, p. 144.

84 See ibid., article «, p. 261.
85 See Code 341, p. 428.
86 Code 357, p. 445, "Ordering a Person to Make an Accusation to the Court that
is without Basis."
87 See Tohnson, T'angCode, article 53, p. 261.

88 Ibid.
130
been carried out, the false accuser would receive a sentence reduced
one degree to life exile at a distance of 3,000 li
But this limitation was not applicable to false accusations of
plotting rebellion or great sedition. Such persons were themselves
decapitated and the accessories, if any, to the accusation were stran-
gled.89 Even if the accusation had been made from the best of motives
- the subcommentary to the Code mentions seeing repairs made to
an imperial mausoleum or army maneuvers and mistaking these for
great sedition or rebellion - the person could only send up a petition
to the emperor, who would then supposedly take these circumstances
into account in deciding the sentence.
On the other hand, these punishments sometimes were
changed by whatever benefits or different punishments that the orig-
inal accused would have received.90 Without going into detail regard-
ing the various rights possessed by different social classes as well as
persons with particular legal statuses, certainly the most common
such benefit was redemption of punishment by payment of copper.91
In some cases, the copper was given to the victims of the false accusa-
tion.92 But in some cases a person might be beaten instead of being
sent into penal servitude, and this changed punishment would also
be inflicted on the false accuser.
Three decisions were possible for any given criminal hearing:

the accused could be pronounced guilty either by weight of the
evidence or because of a confession; he could be released; or the
case could be declared doubtful (¿Ш).
If the result of the trial were to establish the guilt of the
accused, the magistrate had to write a decision ( p'an Щ) on the
case.93 The rules regarding what punishment was assigned were very
rigid. The Constates unequivocally that some article of the Code, the
89 Ibid.
90 Ibid., pp. 23-31.
91 Ibid., article и, p. 93.
93 The writing of theoretical decisions was also a part of the examination
procedure and a great number of these have survived. But, to our knowledge, we
have none from actual criminal cases.
131
Statutes , the Regulations {ko fê), or the Ordinances ( shih ž^Í),94 had to
be cited in passing sentence.95 It was further required that where
more than one article of the Code was applicable, the one providing
for the heaviest punishment had to be sentenced. This could become
quite a complex problem were the guilty person one of those who
had certain rights that allowed the payment of a fine or surrender of
office to replace punishment. In order to force compliance by the
magistrate, the Code had at least three articles that punished any
official who made a mistake in assigning punishment.
But, as has been mentioned many times by others, the Code is
so specific about the offenses covered that not all criminal acts could
possibly be covered. For this reason article 50 permits analogy to be
used to broaden the scope of offenses.96 But when this provision was
used, all decisions had to be reviewed by higher officials. A second
article that broadened the powers of the local magistrate to some
extent was article 450, "Doing What Ought Not to be Done."97 This
permitted the magistrate to sentence the accused to either 40 blows
with the light stick or 80 blows with the heavy stick.
Where there was not sufficient evidence to convict and the
accused was able to withstand judicial torture, he had to be released

upon providing a guarantor.98 Presumably most persons were able
to do so, since the Code does not provide for a circumstance under
which a guarantor cannot be found. But it does punish both the
release of a person who had not secured a guarantor as well as the
refusal to release someone once a guarantor had been found.
Last, the case could be declared doubtful. This meant that
94 On these last, see Denis Twitchett, aA Note on the Tunhuang Fragments of

the Tang Regulations (Ão),w BSOAS 30.2 (1967), pp. 369-81, and idem, "The Fragment
of the T'ang Ordinances of the Department of Waterways Discovered at Tun-huang,n
AM NS 6.1 (1957), pp. 23-79. The Regulations allowed supplements to be added to the
Code and the Statutes. Ordinances dealt with limited ares of administrative law.
95 Code, article 484, p. 561, "Citation of the Code , the Statutes , the Regulations, and
the Ordinances in Sentencing." Statutes , p. 776, allows the criminal to benefit from
any changes which would lighten his punishment for a particular crime but prevents
his receiving a heavier sentence if the punishment were increased after his crime
was committed.
96 See Johnson, T'aneCode , article 50, p. 254, and the discussion on pp. 37-38.
97 Code 450, p. 522.
98 See Code 4 77, p. 552.
132
there was equal evidence both for and against conviction," when
through examination of the circumstances the magistrate was unable
to arrive at a clear decision. In such cases the accused, without regard
to status, was allowed to make redemption by payment of copper to
the amount specified in the Code for the offense and then released.
PUNISHMENT
The Code provides five kinds of punishment: beating with the

light stick, beating with the heavy stick, penal servitude, life exile,
and death. If the punishment was only a beating with the light stick,
the blows had to be distributed equally on the criminal's thighs and
buttocks. When the heavy stick was used, the criminal's back, thighs,
and buttocks each received one-third of the blows.100
Crimes were classified under three categories. These are: crimes
involving the ten abominations; crimes punished by penal servitude
or more, which were classified as major offenses (chung-hai ЖШ);
and crimes punished by beating, either with the light or heavy stick.
Once the case had been decided, the magistrate could administer
beating on his own authority. But all other cases had to be sent up
for review at higher levels and final determination (see appendix A,
chart 2). Any magistrate who did not forward such cases or who
improperly administered such punishments himself incurred a heavy
penalty.101 At any of these levels the punishment could be changed.
As well, it might be decided that the magistrate had mishandled the
case whereupon he himself would become the accused.
We know little about the review of cases at the levels immediately
above the magistrate. What is certain is that there were legal specialists
on the staffs of these offices part of whose duties was to examine the
case records both as to the correct procedures and convincing ev-
99 Code 502, p. 575, "Doubtful Offenses."

100 Code 482, p. 557, "Administering Punishment Not in Accordance with the
Law."
101 Code 485, p. 561, "Not Making Required Reports to Superiors." The punishment
of the magistrate differed with the crime. The procedure to be followed in these
cases is given in Statutes, p. 757.
133
W. JOHNSON &D. TWITCHETT
idence. But where the case was capital, the emperor had to approve
the sentence before it could be carried out: five times if in the
capital jurisdiction, three times if elsewhere.102 And this approval had

to be given on two separate days. An exception was made for the first
four of the ten abominations, which concerned crimes against the
state or parents and paternal grandparents, as well as for slaves who
had killed their masters. For such heinous offenses, the punishment
needed to be approved only once.
One last step still remained before a sentence could be carried
out. This consisted in explaining to the convicted criminal and his
relatives the sentence and seeking the criminal's agreement to submit
to the punishment.103 If such agreement was not forthcoming, the
criminal's reasons for withholding it had to be heard and a further
examination of the case made. Neglect on the part of the official
either to explain the sentence, seek the criminal's submission to it,
or reexamine the case if needed would result in 50 blows with the
light stick for the official himself. For capital crimes, the punishment
was increased to 100 blows with the heavy stick.
But even where the sentence was capital, some hope still re-
mained for the criminal. Between the Beginning of Spring104 and the
fall equinox, there could be no executions, although exceptions were
made in the case of rebels. And even during months when executions
were allowed, there were many individual days when they were not
permitted.105 These periods of time allowed the condemned to hope
that there would be an amnesty before punishment was administered.
There were some 174 great amnesties during the T'ang period, as
well as other lesser acts of grace.106 In this way the whole of the

105 See app. Statutes 30.06, and app. Code 490, "Getting the Prisoner to Accept
His Sentence after Conviction."
104 This was one of the twenty-four divisions of the year and occurred about
February 4 in the western calendar.
105 See app. Code 496, and app. Statutes 30.09. In general, executions were supposed
to occur during the yin period of the year, that is, fall and winter. Other factors,
including Buddhism, played a role as well in limiting the number of days when
executions could take place. A detailed treatment is in A F. P. Hulsewé, Periodieke
executieen slachtverboden (Leiden: E. J. Brill, 1948).
See the discussion in Johnson, T'ang Code, pp. 15-17, and the general historical
134
punishment might be canceled or at least reduced from the death

penalty to life exile.
CONCLUSIONS
The above survey of the criminal procedure shows a very rationed

system of justice. The available material indicates that both the accuser
and the officials involved had to be careful lest they themselves face
punishment. There is no evidence that ordeal ever played a part in
Chinese law. The Chinese did not use a khadi, or wise man, system as
found in Islam or a rhetoric system, as in ancient Greece.107 Instead,
they relied on what might be called the dossier system. That is, all
evidence was recorded, whether given orally or not, and assigned to
a particular person. The dossier had to be kept for a certain period
of time and, if review was required, sent on to higher authorities. By
this means, testimony and witnesses could be checked and rechecked,
if necessary, to ensure accuracy and establish clearly the issues in any
particular case.
The Code served as a protection for the people against the
arbitrariness of officials, as indeed had been argued by the Legalists
a thousand years before the T'ang period. Every punishment had to
be justified by citation of the text. Anonymous accusations were not
allowed, rather a detailed written statement was required. Indeed,
such an accuser would be punished if his identity were discovered.
So would any magistrate who accepted an anonymous accusation.
Further, the accuser was subjected to three hearings about the ac-
cusation during which his testimony was taken down and he was
assured that if his accusation was baseless that he himself would be
punished.
The trial itself was divided into two distinct parts. Initially, the
magistrate tried to reach a decision on the basis of witnesses' testimony
and other evidence. Only if he could not do so and if the accused
treatment by Brian McKnight, The Quality of Mercy: Amnesties and Traditional Chinese
Justice (Honolulu: U.P. of Hawaii, 1981) .
107 From the little that we know, Confucius seems to have favored the khadi
system of no law codes and summary justice.
135
would not confess might torture be used. But this decision had to be
agreed to by the other officials in the yamen.108 Furthermore, once
torture had been used, if the accused were able to withstand it, he
had to be released. Also, certainly the use of torture must have often
elicited false as well as true confessions, as has often been stated. For
this reason then, a conscientious magistrate must have tried to use it
as little as possible. There was, furthermore, also the chance that
death might result from beating with the heavy stick, and this would
reflect poorly on the official who had ordered it.
The criminal process was much affected by the personal status
of the parties involved. Officials of the fifth rank and above could
not even be tried in the ordinary courts. The same was true for
certain others who had the privileges accorded persons who possessed
the rights of any one of the eight deliberations. Even when the trial
was held at the county level, officials down to the seventh rank could
be convicted only by the testimony of witnesses and evidence; they
could not be tortured. This same exemption from judicial torture
was also extended to the aged and the juvenile without any status
qualification. Furthermore, those who were physically or mentally
impaired were also protected against the use of torture to force a
confession.109 Family groups also had special treatment. They were
free, in general, from the obligation to report offenses committed
within their group or by members of their group against outsiders.
Indeed, in most cases, junior members who reported the offenses of
their seniors would themselves be punished. And in certain cases no
person who was not a family member could make a valid accusation
of intra-family offenses.
Also noteworthy was the concept of the doubtful case, which
was in some ways analogous to the "not proven" of present-day Scots
law. Here the evidence was equal on both sides, for innocence as
well as for guilt. Therefore, no matter what the accused's status, he
was allowed to make redemption for the punishment of the crime of
which he had been accused by payment of copper. Of course, the
108 See the discussion by two high officials in fifth-century China as to the value
of torture, translated and discussed in Balazs, Traité juridique, pp. 195-206.
109 See Karl Bünger, "The Punishment of Lunatics and Negligente According to
Classical Chinese Law," Studia Serica в (1950), pp. 1-16.
136
burden of such a fine fell much more heavily on the poorer members
of society, particularly since there were time limits for making such
payments.
Last, to Westerners perhaps the most striking feature of the
criminal procedure is that it was essentially an inquisitorial process.
We are accustomed to an adversarial system with attorneys representing
both parties. The Chinese traditionally despised the role of advocate
and saw such people as parasites who attempted to profit from the
difficulties of others. The magistrate saw himself as someone seeking
the truth, not a partisan for either side. Indeed, the fewer cases that
occurred during his tenure in a particular place the better, since this
was an indication that he was able to promote harmony and morality.
LIST OF ABBREVIATIONS
app. Appendix В
Code T'ang-lü shu-i
Statutes Niida, Tõryõ shúi
TLT T'ang liu-tien Jff /' ft
137
APPENDIX A
Figurei . Administrative Structure of a Superior County
Magistrate ( ling ф; rank 6:3)
Deputy Magistrate ( ch'eng rank 8:4)
REGISTRY
Registrar (chu-pu j ЁЯЁ; rank 9:2)
2 Administrative Clerks
4 Clerks
I I
Service of Finance Service of Law
( ssu-hu W|^) ( ssu-fa
Marshal ( wei Ш"; rank 9:4) Marshal ( wei rank 9:4)
4 Assistants ft 4 Assistants $•
7 Clerks 8 Clerks
i Register Clerk ( chang-shih Hjè) 10 Jailers ( tien-yü Ш!К)
4 Lictors ( wen-shih
io Attendants ( pai-chih ЙЖ)
NOTE: The physical layout, above, suggests the administrative

hierarchy. Italicized posts indicate ranking officials. In
addition, there was an Educational Service with two
designated teachers and 48 students and a Market Office
comprising 7 officers. Exclusive of these, the establishment
of a county administration comprised 5 officials and 53
miscellaneous employees ( tsa-jen SIÍ3E), of whom only 29
had clerical duties; see TLT 30, pp. зоЬ-зЛ. (Based on table
2 in Denis Twitchett, "The Implementation of Law in
Early T'ang China, w Civiltà Veneziana : Studia [1978], 57-84.)
Figure 2. Penalties According to Administrative Level
Penalty Administrative Level Of

Final Decision
light stick (ch'ih ©) County

heavy stick (changé) County
penal servitude (t'u ) County Prefecture
life exile ( liu Ш) County Prefecture Capital
death ( сЫаоШ :, chanffi) County Prefecture Capital Emperor
APPENDIX В: Selected Translations of Statutes and Code
PRELIMINARY HEARINGS
(44^)Code jss u An Accusation to the Court of a Person's Offense Must Clearly Indicate
the Year and Month"
Article 355.1a. An accusation to the court of a person's offense must clearly

indicate the year and the month. The true facts must be set forth without reference
to what is doubtful. Violations will be punished by 50 blows with the light stick.
Article 355.1b. Officials who accept such accusations and act on them will
receive one degree less punishment than that for the offense.
Article 355.2. In cases of killing, robbery, or damage or loss by fire and water,
reference will not be permitted to what is doubtful. However, should such an
accusation prove to be false, there is no reciprocal punishment.
Article 355.3a. Military officials may not improperly accept written statements
of accusations.
Article 355.3b. Where the accusation concerns plotting treason or more, or

robbery, the article above will be followed.
(427) Code 340 "Secret Reports of Plots to Rebel or to Commit Great Sedition"
Article 340.1a. All cases of knowledge of a plot to rebel or of great sedition

being committed must be secretly reported to the nearest official. Those who do
not do so are punished by strangulation.
Article 340.1b. Those who know of a plot to commit great sedition or of a
plot of treason and do not report them are punished by life exile at a distance of
2,000 ü.
Article 340. ic. Those who know of criticism of the emperor or of making
magical incantations and do not report them have their punishment reduced five
degrees below that for the basic crime in each case.
Article 340.2a. If an official receives such a report and does not immediately
seize and arrest the criminals, should a half-day pass, his punishment is the same
as those who do not report the offense in each case.
Article 340.2b. If the matter requires that a plan be devised and so the time
limit is violated, it will not be punished.
(778) Statutes jo. 24
Whenever anybody makes an accusation of treason, this must be done through the
senior official of the place concerned. If the senior official is implicated in the
accusation, it must be done through his deputy. If both the senior official and his
deputy are implicated in the crime the accusation should be lodged through the
neighboring jurisdiction.
139
If the offender ought to be apprehended, the other prefectures should be

informed, so that the local authorities can take and arrest the offender in accordance
with the law.
If the case is one of plotting treason or any more serious offence, it should
be reported in a memorial to the throne, and despatched by express courier.
If there is anybody who claims that he wishes to lay an accusation of plotting
treason or any more serious crime, but is unwilling to speak of the matter [to the
local officials], he shall be permitted to use the postal relay service and be sent to
the capital under escort.
Prisoners who have committed capital crimes, and defense soldiers in garrisons
in the prefectures along the frontiers if they have committed crimes punishable by
life exile, do not come within the limits of eligibility for dispatch to the capital in
such circumstances.
(600 ) Statutes 21.40
All accusations should always begin in the lowest competent court. They should
begin from the office concerned [in the case of an official] or from the place in
which the accuser is registered. If this is far distant, or the way there is obstructed,
then the case should be decided by the nearest office. If the accused will not
accept his decision, he should ask to be granted a statement of non-acceptance [of
the judgment] . When this reaches the Department of State Affairs, the assistants
of the left and right [of its Central Bureau] should carefully scrutinize it. If the
accused again refuses to accept their judgment, they should again issue a statement
of non-acceptance, and the accusation should be laid before the "Three Judicial
Offices."110 If the accused still will not accept their decision, he may then present a
memorial to the throne. If the officer receiving the memorial is not persuaded to
forward it, the accused is permitted to strike the petitioner's drum. If because the
accused is alone and friendless, or very old or young, and unable to plead his case
in person then the accused may stand at the foot of the Lung Stone.111 If the
accused is in confinement and bound, someone else who is personally acquainted
with the facts may stand by the Lung Stone in his place. If a petitioner stands by
the Lung Stone, the gate supervising guard of the left shall report it to the throne;
if he strikes the drum, the gate supervising guard of the right should report it.
110 The san-ssu HW) here refer to the standing judicial panel consisting of a
chief secretary of the Secretariat, a chief secretary of the Chancellery, and the
president of the Censorate. The same term was used for an ad hoc judicial committee
consisting of the vice-presidents of the Supreme Court of Justice, the Board of
Justice, and the Censorate, which was concerned to investigate serious criminal
cases. The standing judicial panel normally reviewed all capital cases.
111 See van Culik, Parallel Cases , p. 42. He thinks that this indicates an earlier
trial by ordeal but gives no evidence to support his view other than that trial by
ordeal existed in Europe.
140
(447)Article 358. "Intercepting the Emperor and Beating the Drum to Make an Accusation"
Article 358.1a. All cases of intercepting the emperor, beating the petitioner's
drum, or sending up a memorial in order to make a personal appeal are punished
by 80 blows with the heavy stick if they prove false.
Commentary : Where circumstances are deliberately added or deleted,
or the appeal conceals something or is fraudulent, the punishment is for sending
up a memorial which is deceitful or untrue.
Article 358.2a. If the person does any harm, the punishment is 100 blows with
the heavy stick.
Article 358.2b. Even where the petition proves to be true, if the person does
any harm, the punishment is 50 blows with the light stick.
Article 358.3. Where relatives accuse each other, it is treated as if the person
had made the accusation himself.
(447) Code 359 "Bypassing the Court in Making a Petition"
Article 359.1. All cases of bypassing the court in making a petition and of
accepting such petition are punished by 40 blows with the light stick in each case.
Article 359.2a. Where a petition should be accepted and an investigation
made, but the petition is rather suppressed and not accepted, the punishment is
50 blows with the light stick. After three such instances the punishment is increased
one degree. For ten such instances the punishment is 90 blows with the heavy
stick.
Article 359.2b. Where a person intercepts the emperor, beats the petitioner's
drum, or sends up a memorial making a petition, if the official in charge does not
immediately accept it, his punishment is increased one degree beyond that for the
offense which is the object of the petition.
Article 359.3. If a person intercepts the emperor to make a petition and
enters the formation, the punishment is 60 blows with the heavy stick.
Commentary: Formation means those leading the imperial procession
carrying the regalia.
(428) Code 342 "Reciprocal Punishment for False Accusation"
Article 342.1a. All cases of false accusation against other persons are sentenced
to reciprocal punishment.
Article 342.1b. If a censorate official commits extortion for his private benefit,
or if the accusation is not true, it is treated the same way.
Commentary. 342.ic(i). Reciprocal punishment is determined by the
punishment of the victim.
342.ic(ii). If the punishment reaches the death penalty and has not yet
been administered, the punishment for the person who made the false accusation
is reduced one degree.
141
W. JOHNSON &D. TWITCHETT
342.ic-(iii). For those who basically are punished by added blows with
the heavy stick or who may redeem punishment by payment of copper, the punish-
ment for the false accusation can only follow the laws on beating with the heavy
stick and redemption by payment of copper.
342.1 c-(iv). Where the false accusation is against an official or a person
who has protection, the ordinary law is followed.
Article 342.2a. If the accusation to the court is of two or more offenses and
the more serious proves to be true; or where the offenses are equally serious but
one of the accusations is true, the punishment is canceled.
Article 342.2b. If the accusation to the court of the more serious offense
proves to be untrue, then there is reciprocal punishment for the other accusations.
Article 342.2c. Where the maximum punishment has been reached, even if
the false accusation is for more, there can be no further reciprocal punishment.
Article 342.3. Where the accusation to the court involves two or more persons,
even if the accusation proves true for the minority, there is still reciprocal punishment
for those where the accusation proves to be untrue.
Commentary: This means that where the accusation to the court involves
two or more persons and it proves to be untrue for one of them, even though the
punishment is less serious it is still reciprocal.
Article 342.4. If a memorial is sent up accusing someone which has already
been decided and the offense proves to be untrue, where the reciprocal punishment
is lighter, the punishment is for submitting documents to the emperor which are
fraudulent or untrue.
TRIAL
(776) Statutes jo. 2j

Article 23.1. Whenever somebody lays an accusation that another person has
committed a crime, he shall be subjected to three hearings ( shen #), except in
cases of plotting treason ( mou~p*an 1Ш&) or more serious offenses. The examining
officials should take a written statement (shou-tz'u §1$) from the accuser and
report this to the authority [with jurisdiction] (tieh kuan-ssu (ScKrJ). On each
occasion they should clearly point out in detail to the accuser that an unfounded
accusation would involve the accuser in reciprocal punishment. Each hearing
should take place on a different day.
Commentary. 23.2. If the accuser is an envoy traveling on official business
he may not be detained so as to take his statement on different days; in such cases
it is permitted to hold all three hearings on the same day.
Article 23.3. The official receiving the accusation should make a record of
his decision after the hearings are completed, and only after this has been done
may the case be submitted to the authority [with jurisdiction].
Article 234. If, however, the case is one classified as completely reprehensible
this rule shall not be applicable.
142
Commentary. 23.5. "Completely reprehensible" refers to homicide, rob-

bery with violence, jail breaking, violent rape of free persons, or other offenses
involving a great deal of urgency.
Article 23.6. If the accuser is illiterate, the clerical officer should write down
the accusation on his behalf.
Article 23.7. If the accused ought to be imprisoned, his accuser should also
be imprisoned, and released after the disposition of the case.
Article 23.8. Where a member of the same neighborhood group lays an
accusation against a fellow member, if the crime is one meriting the death sentence
the accuser should be kept in loose confinement ( san-chin If the crime is
one punishable with life exile or less, he shall be allowed free on the cognisance of
sureties to respond to investigation (tse-pao ts'an-tui
(779) Statutes J0.2J

Article 25.1. All investigating officials trying a case should first carry out the
five types of scrutiny,
Commentary. 25.2 These are: first, scrutiny of the offender's statements;
second, scrutiny of his expression; third, scrutiny of his breathing; fourth, scrutiny
of his reactions to the words of the judge; and fifth, scrutiny of his eyes.
Article 25.3. and investigate thoroughly all the testimony. If there is anything
doubtful in the statement of the facts of the case, and the accused will still not
make his confession of guilt, only then may judicial torture be applied ( k'ao-lüeh Щ
»).
Article 254. Each questioning under torture shall be separated from the
preceding one by 20 days. If before the questionings are finished he is transferred
to another jurisdiction, but still ought to be questioned under torture
Commentary. If a prisoner is transferred to another jurisdiction, a com-
plete copy of the original dossier should be transferred with him. Then this should
be reckoned together with the previous questionings to make up a total of three
occasions.
Article 25.5. If the crime is not a major offense and the doubtful points are
minor, it is not necessary in every case that the accused be questioned three times
under torture.
Article 25.6. If the prisoner dies under torture, a statement of the facts
should always be written and sent to the senior official of the place concerned,
and [the person responsible] investigated in the presence of the disciplinary officials.
fy8i) Statutes 30.27
Whenever a prisoner is being questioned the executive officer in charge of the

case shall personally interrogate him. When the interrogation is concluded ( tz'u-ting
he should order the accused himself to write out his confession. If he does
not understand writing, the clerical officer should write it from dictation. When it
ИЗ
is completed it should be read aloud in the presence of the executive officer.
(775) Statutes 30.21
Whenever a crime has been committed and the act has come to light, where the
illicit gains and the account of the circumstances have been plainly exposed and
proven, even though not all the perpetrators have been arrested, those that have
been apprehended maybe tried first, in accordance with the account of the circum-
stances. After this the other accomplices should be pursued and brought to trial.
(552) Coderò "Examination of the Written Statement in Interrogating a Prisoner"
Article 476.1. In all cases where a prisoner is interrogated the circumstances

must first be considered. Then the written statement and the reasoning must be
examined. This must be done repeatedly. If a decision still has not yet been
reached, then the prisoner is interrogated under torture. A file must be created
and agreement secured. Only then may interrogation under torture be used.
Violations are punished by 60 blows with the heavy stick.
Article 476.2. Where the illicit goods and the circumstances are evident and
verified, and the reasoning is not in doubt, even if the accused will not admit the
crime, it can be sentenced based on the circumstances.
Article 476.3. If even though the crime has already been amnestied it must
be fully investigated, judicial torture is not allowed.
Commentary: This refers to such actions as removal from the community
after an amnesty, or disenrollment or resignation from office.
(566) Code 480 "Interrogation According to the Circumstances of the Accusation"
Article: In all cases, the prison official's interrogation must follow the cir-
cumstances alleged in the accusation to the court. If he goes outside of these
relevant circumstances and particularly seeks information about other crimes, he
will be punished for intentionally decreasing or increasing a person's punishment.
(787) Statutes 30.35
Whenever there is a doubtful trial which cannot be settled, it should be decided

( yen Ш) by the Supreme Court of Justice. If the Supreme Court of Justice is still
doubtful, they should inform the Department of State Affairs (i.e., Board of Justice).
(575) Code 502 "Doubtful Offenses"
Article 502.1. All cases of doubtful offenses ( i-tsui Hü) allow redemption by
payment of copper in each case.
Commentary: Doubtful refers to such things as the testimony as to the
truth or falsity of the accusation is equal and the reasoning for and against the
144
accused's having committed the crime is balanced. Where the facts seem to fit the
case against the accused, there are no witnesses. Or where there are witnesses, the
facts do not seem very certain.
Article 502.2. Where there is a doubtful trial and the legal officers' views as
to handling the case differ, there can be further deliberation given. However,
there cannot be more than three deliberations.
PUNISHMENT
(571) Code 496 "The Death Penalty Is Not To Be Administered after the Beginning of
Spring"
Article 496.1. All cases of administering the death penalty between the Begin-
ning of Spring and the autumn equinox are punished by one year of penal servitude.
Article 496.2a. Even punishment for crimes that need not wait for the correct
season to be administered may not be carried out during a month where the
slaughter of animals is prohibited, or on days when killing is forbidden. The
punishment is 60 blows with the heavy stick in each case.
Article 496.2b. Even if the official waits for the correct season, but there are
violations, the punishment is increased two degrees.
From the Beginning of Spring to the autumn equinox one may not memorialize
the throne requesting permission to carry out the death penalty. One also may not
memorialize the throne requesting permission to carry out the death penalty on
the days of Major Sacrifices, on Days of Abstinence, on the first or fifteenth day of
each lunar month, on the first and last quarters of each lunar month, on the
twenty-four annual Solar Nodes, when the rains have not yet cleared, when the
night has not yet ended in dawn, during the months and days when the butchering
of animals is prohibited, and on rest days.
($ss) Code 490 "Obtaining the Prisoner's Acceptance of His Sentence after Conviction"
Article: In all cases of a conviction which punishes the criminal by penal
servitude or more, the criminal and his relatives are summoned and told the
punishment in order to obtain the prisoner's acceptance of his punishment. If he
does not accept it, his reasoning must be heard and the case reexamined. Violations
are punished by 50 blows with the light stick. In the case of the death penalty,
violations are punished by 100 blows with the heavy stick.

Article 2.1. Whenever an offense is committed, punishments of beating and
below may be summarily carried out by the county. In cases punishable by penal
45
servitude and above the county should decide the case and refer it to the prefecture.
When the prefecture has completed a review of the case, punishment of penal
servitude replaced by beating, cases of those who having been found guilty of a
crime punishable by life exile are punished instead by a summary beating, and
cases where the offender has the right to redeem his punishment by a payment in
copper, then these substitute punishments by beating, or the payment of redemption
may be summarily enforced.
Article 2.2. When the Supreme Court of Justice and the Metropolitan admin-
istrations of Ch'ang-an and Lo-yang have decided cases meriting the punishment
of penal servitude, or crimes committed by officials, in all cases where later there
is a pardon or reduction in punishment this should be reported to the Ministry
(i.e., the Department of State Affairs), and the office of the Ministry (i.e., the
Board of Justice) should scrutinize it in detail. If there is no error, then it should
be reviewed and passed down to the office concerned. If there is anything incorrect
in the judgment, then it should be rectified.
Article 2.3. When the Supreme Court of Justice and the various prefectures
decide a case punishable by life exile or above, if it involves the disenrollment,
resignation, or replacement of punishment by loss of office by the offender, then
all the facts should be compiled together into a dossier and sent to the Ministry. If
when the dossier has been reviewed it is completely in order then the judgment
will be reported to the throne. Should there be anything in the judgment which is
incomplete, if the case arises in the provinces an envoy should be sent to review it,
if it arises in the capital it should be called back to the Board of Justice for review
and final decision.
fy6i) Statutes jo. 06

Article 6.1. In all cases of carrying out executions of the death penalty, if it is
in the capital the office responsible for conducting the execution must memorialize
the case five times. If the case is in the provinces the Board of Justice must
memorialize the case three times.
Commentary. In the capital the case must be memorialized twice on the

day before the execution, and three times on the day of the execution. In the
provinces once on the first day, and twice on the following day. Even if there
should be a provisional edict not permitting the memorializing of cases for review,
the case must still be memorialized for review in accordance with this rule.
Article 6.2. In cases of contumacy or more serious crimes or in cases of

personal retainers or slaves who have killed their master, the case should be
memorialized for review only once.
Article 6.3. In the capital city, or in the temporary residence of the emperor
on progress, on the day of an execution the Service of Foodstuffs shall serve only
vegetarian food, and both the Court of Sacrifices and the Palace Conservatory
shall suspend all musical performances.
146

Criminal Procedure in T'ang China

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Criminal Procedure in T'ang China

Author(s): WALLACE JOHNSON and DENIS TWITCHETT

Criminal Procedure in T'ang China

Some ministrative years ago, procedure

1 Denis Twitchett, "The Implementation of Law in Early T'ang China," Civiltà

Obviously these sources can give us only a partial view of criminal

In the material presented below, the Code several times prescribes

THE CRIMINAL ACT

Any person who was a witness to a crime of beating, robbery,

made at the county level, at least initially.12 Only if it were rejected

16 See app. Statutes 10.24.

family in which violence, robbery, or a killing had taken place also

19 Code 360, p. 449, "Robbery by Force and Killing Persons."

not be punished but treated as if they had made a confession.30

The Code required that when an accusation was made, the

45 Code 454, p. 529, "Arrest of Criminals by Passers By."

arrest had been made.

Where the punishment would be no more than beating with

45 Statutes, pp. 776-77.

which would require disenrollment or resignation from office, he

50 Statutes, p. 791. However, prisoners were not permitted to have brushes,

who had the rights of deliberation or petition.55 Furthermore, outside

1. Jurisdiction was awarded to the place where the punishment

2. Were the punishments equal, the jurisdiction in which the

Where both conditions were equal, jurisdiction would be awarded to

The only extant information about courtrooms in T'ang times

Through careful observation, it was thought that the experienced

magistrates would be unlikely to understand even the dialects in many of the

the magistrate himself being punished.74

or the punishment prescribed for his offense, whichever was less.77

The scope of the examination of the accused was limited to

74 See Code 476, p. 552.

magistrate that an arrest should be made.

80 Statutes , p. 77 9. Code 353, p. 441, "Offenses Must Be Confessed to the Local

that were not applicable to commoners, equivalents were made in

throne the relevant article even provides for a minimum punishment

Usually two limitations governed reciprocal punishment for

83 See Tohnson, T'anvCode> article 23, p. 144.

87 See Tohnson, T'angCode, article 53, p. 261.

Three decisions were possible for any given criminal hearing:

accused was able to withstand judicial torture, he had to be released

94 On these last, see Denis Twitchett, aA Note on the Tunhuang Fragments of

The Code provides five kinds of punishment: beating with the

99 Code 502, p. 575, "Doubtful Offenses."

capital jurisdiction, three times if elsewhere.102 And this approval had

102 Statutes, p. 761.

punishment might be canceled or at least reduced from the death

The above survey of the criminal procedure shows a very rationed

Figurei . Administrative Structure of a Superior County

Magistrate ( ling ф; rank 6:3)

Deputy Magistrate ( ch'eng rank 8:4)

NOTE: The physical layout, above, suggests the administrative

Figure 2. Penalties According to Administrative Level

Penalty Administrative Level Of

light stick (ch'ih ©) County

APPENDIX В: Selected Translations of Statutes and Code

Article 355.1a. An accusation to the court of a person's offense must clearly

Article 355.3b. Where the accusation concerns plotting treason or more, or

Article 340.1a. All cases of knowledge of a plot to rebel or of great sedition

(778) Statutes jo. 24