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Assessment and awarding of compensation to victims of injury and loss are among the main duties performed by courts in many different legal systems. In Western law, it constitutes a central purpose of tort law, which in itself is one of the fundamental branches of law. Did Chinese law have a specific approach to the question of compensation, which singularizes it from other legal systems? From the points of view both of statute law and judicial practice, my primary concern is to investigate whether compensation was granted to victims of injury or death under the Ming and Qing laws.
Studies of this kind necessarily raise the question of the nature of Chinese legal categories with respect to those of Western legal tradition. Determining whether traditional Chinese law already contained the seeds of a modern law of torts, and whether the related institutions pertain more to private or to criminal law, unfortunately shows itself to be a very cumbersome and perhaps an inconclusive task. Here there are two sorts of difficulties. The first, which goes beyond the sole ambit of the present study, pertains to the question of the commensurability of Chinese law with Western categories. The second, specific to the present issue, has its roots in the uncertainty of Western legal categories themselves. Although it is rather easy to identify what tort law is, its true nature and relationship to criminal law spark everlasting debates.Footnote 1 It is also worthy to note that the delineation of an autonomous ambit of civil compensation in Common Law is the result of recent evolutions. In Anglo-American law, actions for wrongful death were determined by statute law not earlier than in the middle of the nineteenth century.Footnote 2 If a systematic comparison between China and the West seems difficult to make, that is not to say that any kind of comparison would be irrelevant. Discussing Chinese law with regard to Western law enables one to single out its own uniqueness. Starting from Chinese categories as they appear in statute law, jurisprudence and legal reasoning performed by officials is nonetheless complicated by the absence of an equivalent term for “compensation” in Chinese legal vocabulary. The term peichang 賠償 already existed in traditional Chinese law, but it mostly referred to the compensation of economic loss, especially when a good was stolen. By default, I will here use the term “compensation” in a more specific way, to indicate all kinds of mechanisms that required an offender to pay for personal injuries or death, despite the fact that these institutions do not amount to modern compensation. Although compensation only approximates the Chinese, it will constitute a good starting point to determine the very nature of Chinese legal categories. I will eventually discuss whether it is relevant to portray them with reference to the law of torts.
At a first glance, compensation of a personal damage seems not to have been a main concern in traditional Chinese law, even if several articles of the codes of the Ming (1368–1644) and Qing (1644–1911) periods granted the victim or the victim's family compensation paid by the perpetrator of severe injuries or homicide. In late imperial China, rules on compensation, which I will expose in the present study, can be roughly described as the reinterpretation of mechanisms transplanted into Chinese law during the Yuan dynasty (1271–1368) in light of the tenets of Chinese legal tradition. The central institution on compensation codified in the Ming and Qing codes, the compensation paid for funeral expenses (maizangyin 埋葬銀), was of Mongolian origin, but it lost its original features since it was integrated into the Ming legal system. Despite the borrowing of such an alien institution, Chinese law remained structured by principles inherited from the Tang dynasty (618–908). Under the Ming and the Qing dynasties, the main, if not the only, duty of magistrates was to mete out righteous punishment. Magistrates were required by the law to allocate compensation only when the perpetrator of homicide was not sentenced to death. Insofar as the perpetrator did not lose his own life in requital for the victim's death, allocating compensation to the victim was not considered unfair. This principle was all the more central in Chinese law, and obligation to pay compensation was obviously an outgrowth of the rules punishing homicide. Even the “period of responsibility for an offense” (baogu 保辜), which was the most common mechanism granting damages in cases of injury, was actually a stage in the adjudicative process of homicide cases (ming'an 命案). Persons involved in an affray were required to provide care to their victims, and it was in their interest that the victim fully recovered, because the perpetrator was subject to capital punishment if the victim died as a direct consequence of the injuries. The reason why rules on compensation seem to be of minor importance in Chinese law is, therefore, the direct consequence of their integration to a more comprehensive and complex legal system dedicated to the adjudication of homicide cases.
A study on compensation in Chinese law is also complicated by the intertwinement of possibly antagonist objectives pursued both by the administration and individuals while, at the same time, administration of justice was not conducted without contradictions. Although many judgments highlighted the necessity to assuage the grievance suffered by the victim and the bereaved family by condemning the offender to an appropriate punishment, the ambit of the death penalty was limited to murders and violent homicides, in order to preserve human life, even the lives of criminals. Compensation was often used as a means to restore a balanced position between situations of the two families, beyond the concern for an undifferentiated implementation of the death penalty to every homicide cases. Moreover, when adjudicating homicide cases, imperial administration was sometimes behaving more as an arbitrator between the parties than as the relentless figure of harsh state justice. This focus on the pacification of a dispute resulting from a homicide should not been overlooked when tackling the issue of compensation. This category of case was not only a matter of mere enforcement of statute law, it also confronted several contradictory interests and required the magistrate to implement law in consideration of these interests. To a certain extent, it blurs the cardinal distinction in Chinese procedural law between petty matters (xi shi 細事), which includes disputes on household, marriage, debt or affray, and major cases (zhongda anjian 重大案件). In a single case, a magistrate had to mete out a punishment under the monitoring of the central administration, and might also award compensation, a decision for which he had a much wider autonomy, because it was potentially seen as a petty matter. One should finally note that from time to time, parties resorted to extrajudicial process to settle these issues, in infringement with statute law, which prohibited private agreements for homicide cases. When studied through the issue of compensation, homicide cases thus provide a good exemplification of the interplay among several layers of normativity and the intertwined, if not conflicting, relations that could have existed between state legality and alternative dispute resolution processes. A study on the compensation of personal injuries and death under the Ming and Qing dynasties therefore requires the investigation of the entire range of the legal scope, from statute law to answers (pi 批) and judgments (pan 判) rendered by local magistrates, and far beyond, to its interactions with out-of-court settlement of disputes.
To conduct this investigation, I will first focus on legal categories as they were described in statute law and construed in Chinese jurisprudence (Section I). This legal framework enabled magistrates to address specific issues, although in many situations, plaintiffs resorted to extrajudicial processes rather than making a court claim (Section II).
I. Compensation of Personal Injuries and Death in Statute Law: The Framework Drawn by Chinese Jurisprudence
The legal framework provided in the Ming and Qing codes mainly relied on principles already enshrined in the Tang code, which were later slightly amended during the Yuan dynasty. The persistent occurrence of institutions inherited from the Yuan law should not be misinterpreted: influence of Mongolian law remained marginal and did not fundamentally alter the traditional concept of compensation in Chinese law. Mongolian legal institutions incorporated in Chinese codes, such as the indemnity paid for funeral expenses, were reinterpreted according to Chinese legal culture, and lost the function they had in Mongolian law. Nevertheless, the institutionalization of mechanisms of compensation in statute law obliged magistrates to refer constantly to these issues in order to comply with law. As a consequence, the payment of compensation in situations required by law became a part of the administrative routine, as magistrates were compelled to monitor the effective payment to the victim. If compared with the Tang code, compensation in Ming and Qing statutes had a more prominent place, although the spirit of the legislation remained the same. In order to provide a comprehensive report of the institution, I will briefly recall their origin as depicted in the Tang code and the changes that occurred during the Yuan dynasty, before presenting the legal framework established in the Ming and Qing codes.
A. In the Tang Code
The Chinese legal tradition as reflected in the Tang code relied on several mechanisms and principles. One should first note that principles as fixed in the Tang code have a longer history that could be traced at least to the Qin (221–206 BCE) and Han (206 BCE–220 CE) dynasties. In Qin and Han statutes, mentions of compensation were even scarcer than in the Tang code and were mostly related to compensation of goods, either private or public.Footnote 3
One statute illustrates the fact that punishment excluded compensation. When a ferry sank causing drowning of the passengers, officials in charge of the ferry were sentenced to shaving (nai 耐), a corporal punishment under Qin law. If people were only injured or if cattle were killed, officials were authorized to redeem the punishment with money. Should there be loss of goods, the captain and the crew were held accountable for the loss. When such an incident resulted in damages to both people and goods, persons held liable were only sentenced to punishment but did not have to compensate.Footnote 4
There are likewise very few provisions in the Tang code related to the compensation awarded to the family of whom one of the members had been killed by another person. Second, as a general rule, the perpetrator of a homicide was condemned to death, except when objective elements lowered his liability. Several situations were seen as mitigating circumstances and enabled the person who killed to avoid the death penalty. For example, the person who killed in self-defense or in similar circumstances, such as killing a person entering one's house without reason at night (article 269) or killing a criminal resisting arrest (article 452) was exempt from punishment.Footnote 5 The general rule also had exceptions based on the social status of the one who killed, such as the superior who beat an inferior to death, who might have been granted an exemption from capital punishment.Footnote 6 If one considers the general situation in which only persons of non-kin status (fanren 凡人) were involved, the perpetrator of a homicide had to redeem the death of the victim with his own life (changming 償命), as a manifestation of a balanced justice, with the exception of situations equated with self-defense. As the victim was at fault, it would have been inappropriate to seek requital. Chinese law determined a rather comprehensive equivalency between the seriousness of the injury inflicted on the victim and the punishment served by the offender. The gradation may have led to the death penalty when the victim died. It was, therefore, fundamental to ascertain that death was the direct result of the wounds received, especially when the victim did not die on the spot. Chinese law implemented a period of responsibility for an offense (baogu) to determine whether the offender should be considered liable for the death of the victim under the law. If the victim died within a certain time, which varied from 10 to 50 days according to the means used to inflict the wounds, the punishment would be that for killing a person.Footnote 7 Otherwise, the offender was only punished for the wounds that he actually caused. The institution is seen as an incitement to provide care to the injured person, as that person's healing directly influenced the punishment eventually served by the offender. It was, therefore, generally considered a mechanism of compensation.Footnote 8
Criminal liability in Chinese law was also of a subjective nature, especially in cases of homicide. Intentional homicide (gusha 故殺)Footnote 9 and premeditated murder (mousha 謀殺)Footnote 10 were therefore liable to result in punishment by decapitation. As intention to kill (shaxin 殺心) was absent in a homicide in an affray (dou'ou sha 鬥毆殺), the offender was sentenced to strangulation, a punishment one degree lower than decapitation.Footnote 11 Finally, the three other categories of homicide—homicide by mistake (wusha 誤殺),Footnote 12 homicide while playing (xisha 戲殺),Footnote 13 and homicide by negligence (guoshi sha 過失殺)Footnote 14 —did not lead to the death penalty for the offender, as there was no intention to harm the person who eventually died. Determination of the right punishment was the main concern of the code, and little attention was given to the question of compensation paid to the victim. Under a few legal circumstances, an offender was authorized to redeem punishment by payment of copper. According to an ordinance dating back to the Tang and later inserted into the code of the Song dynasty, the copper paid for redemption (shu 贖) was given to the family of the victimFootnote 15 : “In all cases of beating or wounding a person or making a false accusation for which the accused is punished, the copper is given to the family of the victim which had been falsely accused or wounded if the criminal is authorized to redeem his punishment. When two persons hurt each other and are punished, or if persons who live together hurt each other, the copper is confiscated.”
The code does not provide any list of crimes that could be redeemed, and it requires laborious work to determine situations for which the law granted exemption of corporal punishment. The most explicit rule was that of article 339 of the Tang code, which stipulates that ‟In all cases of homicide or injury caused by negligence, one must allow redemption of punishment by payment of copper.” The rule included several exceptions, so that not all cases of homicide by negligence could be redeemed under Tang law. In addition to homicides involving persons bounded by hierarchical or kin relations, homicide by negligence because of a robbery and homicide by negligence caused by imprudence during public works were also excluded from the benefit of redemption. The offender was respectively condemned to exile with additional labor and to 1.5 years of penal servitude, with no possibility to redeem.Footnote 16 Several other provisions of the code assimilated specific situations to that of homicide by negligence. First of all, for five crimes— a person being killed or wounded by a domestic animal on which the owner did not put an identifying mark or tie up according to the law (art. 207),Footnote 17 nondestruction of spoiled meat resulting in the death of a person who had eaten it voluntarily (art. 263),Footnote 18 recklessly driving carts or racing horses through the streets because of an urgent matter, which then resulted in a homicide (art. 392),Footnote 19 unintentionally causing disorder in a marketplace resulting in the death of a person (art. 423),Footnote 20 and a supervisory official beating a person to death because of a public matter (art. 483),Footnote 21 —the law authorized offenders to redeem their punishment according to the statute on homicide by negligence. For the last four provisions, commentaries of the code explicitly ascertained that the money redeemed was to be paid to the family of the victim (tong ru bei shangsha zhi jia 銅入被傷殺之家).
Some categories of persons might have also been allowed to redeem their punishment in consideration of their personal status or of their age. First, people falling under the rule of the Eight Deliberations (bayi 八議)—such as relatives of the emperor or high dignitaries—or officials of the ninth rank and above, were authorized to redeem a punishment of life exile or less.Footnote 22 Under this rule, several homicide cases sentenced to a punishment lesser than death—such as homicide while playing or homicide committed by a superior on an inferior—as well as injuries, entered into the framework of the redemption when the offender was granted a special privilege by law. Second, people who were 70 years of age or over, 15 years of age or less, or disabled, were regarded with sympathy, and, therefore, were allowed redemption by payment of copper when punishment was exile or less.Footnote 23
This general overview of the Tang code enables one to draw the following conclusions. Compensation of personal injuries and death was of minor importance and far from systematic in Chinese law under the Tang dynasty. With the exception of the treatment provided during the period of responsibility for an offense, a victim of injuries or the bereaved family only received compensation when offenders were allowed to redeem their punishment. This kind of compensation presented many loopholes from the point of view of the victim. First, no compensation was paid to victims when the offender was sentenced to a corporal punishment. Even when the offender avoided any punishment, that person was not necessarily compelled to pay compensation. For example, the law said nothing in the case of amnesty or exemption from punishment decided by imperial decree for persons entitled to legal privileges. Finally, the amount of money received by the victim or the victim's family was never determined in consideration of the reality of the loss suffered, but according to the severity of the punishment to be redeemed.Footnote 24 If one puts aside the exemption of punishments judged on the grounds of amnesties or decrees—which were ad hoc resolutions solemnly decided by the emperor—compensation was paid each time a criminal avoided the corporal punishment that criminal deserved, as a result of the benevolent policy of the government.
B. Compensation in the Law of the Yuan Dynasty
When they ruled China, the Mongols imposed regulations pertaining to their own legal tradition and simultaneously preserved the general framework of Chinese legal institutions. Innovations were especially obvious in family law and for rules governing harm to the person.Footnote 25 Formerly, Mongolian law gave priority to compensation, whereas corporal punishments were implemented with relative moderation. This situation contrasted with Chinese legal culture, built on a complex penalty system considered the best means to deter people from criminal behavior. Compensation was considered to redeem to the right to revenge against one of the killer's relatives and, because the family of the victim received the money, the right to revenge was extinguished. Compensation was also a means to re-establish positive bonds between the two families by creating a compelling matrimonial allianceFootnote 26 : “Ministers decided: according to Mongolian rules, the criminal's daughter is confiscated to give to the family who is entitled to take revenge. If he does not have a daughter, four bars of gold shall be confiscated.”
Several of these mechanisms were incorporated into Chinese law under the Yuan dynasty and had a lingering influence on its evolution under the Ming and Qing dynasties. First, if no general rule obliged an offender to pay compensation for every injury that person caused, we can find mentions of specific compensation in cases of severe damages suffered by a victim. Therefore, the offender had to pay compensation to the victim amounting to the expenses incurred for the healing (yiyao zhi zi 醫藥之貲) when the offender wounded an eye during an affray.Footnote 27 In cases of invalidism, crippling, or severe illness caused by the wounds, the offender had to provide for the support of the victim (yangji zhi zi 養濟之資 or yangshan zhi zi 養贍之貲).Footnote 28 The amount of money was fixed by law and not estimated in consideration of the damage.
The “silver for the burning and burying expenses” (shaomaiyin 燒埋銀), which amount was 50 taels of silver, is the most important institution established by the Yuan, especially in consideration of its subsequent influence on Chinese law.Footnote 29 The liability, although not completely objective, was nonetheless largely independent of the offender's criminal intent. Several provisions or judgments outlined the obligation to pay compensation even in absence of intent to kill and even without any wrongdoing. Therefore, an offender could have been exempted from any criminal liability while still having to pay compensation, such as in cases of homicide committed by a person who was mentally ill or by those who were 15 years of age or younger.Footnote 30 The offender might avoid paying compensation when the victim was found guilty of personal misconduct, such as when a man killed his wife's paramour.Footnote 31 And even when the murderer was sentenced to death, the murderer's family was still required to pay compensation on the murderer's behalf. The rule exemplifies the complex process of cross-influences experimented with between the Mongolian and Chinese legal traditions under Yuan rule. By sentencing the murderer to both the death penalty and the payment of compensation, the Yuan merged two institutions that primarily differed in their goals. The accretion of corporal punishment and compensation was obviously thought to be a means to combine the deterrent effect associated with punishments and the preservation of the economic interest of the victim's family. Such an addition eventually led to a loss of the balance between the two parties, because it imposed an excessive load on the offender's family. As will be discussed, Ming and Qing jurists disapproved of any decision combining corporal punishment and compensation. Finally, one rule, fundamental for the later evolution of the Chinese law, determined the conditions for the equivalence between corporal punishments and compensation. When the perpetrator of a homicide benefitted from an amnesty, he had to pay twice the amount of compensation.Footnote 32 The rule denotes a Chinese influence—amnesty was actually alien to the Mongolian tradition—because compensation was here considered a penalty meted out by the state rather than through the prism of economic and social relations between two families.
It is beyond question that Mongolian law impacted the framework of compensation in Chinese law. Nevertheless, rules implemented during the Yuan dynasty simultaneously disclose a pervasive influence of Chinese legal principles. Although Mongolian law strengthened the position of compensation in Chinese statute law, its features already proceeded from a mixture of the two legal cultures. Elements of subjective liability determined from time to time whether compensation was to be paid, whereas in Mongolian genuine compensation, little attention was paid to the misconduct of the one who caused the damage. Furthermore, under the influence of Chinese law, compensation lost several of its fundamental characteristics to become a mere substitutive penalty for corporal punishments.
C. The Ming/Qing Rules on Compensation
A rapid comparison between the Tang code and those of the Ming and Qing periods suggests that compensation was much more developed in the latter ones. This trend is mainly rooted in the input of the Yuan legislation. Some institutions, such as paying the funeral expenses, were obviously derived from a Mongolian counterpart. Nonetheless, the newly incorporated legal mechanisms contradicted some principles inherent to Chinese law. Fundamentally, Chinese jurists construed them as punishments and gauged their place in the code in terms of their severity relative to other punishments. As a consequence, because compensatory damages inherited from Mongolian law were interpreted as an aggravation of an already existing corporal punishment, several of them raised questions in terms of balance between punishments and crimes. Meanwhile, jurists hardly considered them as a whole and discussions about a sole category related to compensation in law are not found in legal treatises. This situation and intellectual framework resulted in adaptations of the rules on compensation of injuries or death enacted during the early Ming period all during late imperial China. If the general trend of the evolution was that of a progressive emancipation from the institutions inherited from the Yuan, which were interpreted in light of the Chinese legal culture, Chinese jurists did not proceed to a comprehensive overhaul. Despite recurrent criticisms, none of the compensatory damages were abrogated or fell into disuse. Chinese jurists rather attempted to rebuild a new coherence by allocating to some of the several mechanisms inherited from the Yuan a place congruent with other principles enshrined in the code. Meanwhile, others remained more problematic until the end of the Qing era. As will be discussed, although many authors complained about the excessive severity of provisions that supplemented the death penalty with compensation, Chinese legislators did not completely address this issue.
Concerning injuries, the Ming and Qing law mainly relied on the period of responsibility for an offense (baogu), as bequeathed by the Tang. Law did not undergo major change on this point. Influence of Mongolian law is rather evident toward rules stipulating that when a person suffered severe injuries—such as when one of the person's eyes became blind, or sexual organs were destroyed—as a result of wounds caused during an affray, half of the property of the offender was given to the victim for support. Such a demand did not exist in the Tang code and may be rooted in rules of the Yuan period requiring that the offender who caused severe wounds had to provide for the support of the victim.Footnote 33 The new method of calculating the sum to be paid still did not take account of the actual loss of the victim. The few rules found in the code did not make the punishment served by the offender excessive, according to Chinese standards. Under statute 325 of the Ming code, confiscation of half of the property was required, in addition to a condemnation to exile to 3000 li.Footnote 34 In the Qing code, a senior or a superior who caused severe injuries to a junior or an inferior was also compelled to give half of his property to provide for the victim (yangshan 養贍).Footnote 35 Conversely, a junior who caused equivalent injuries to a senior was exempted from such an obligation, because that person was condemned to strangulation.Footnote 36 Chinese jurists highlighted that confiscation was only enforced when the offenders did not pay with their own life for their crimes (bu diming 不抵命).Footnote 37
The situation was more intricate concerning compensation paid to the victim of a homicide. It was henceforth organized through three main institutions, among which the “silver for the burning and burying expenses”—which name was changed to “funeral expenses” (maizang yin 埋葬銀) in the Ming code—had the most prominent place. Besides, the Ming carried on implementing redemption of punishment, whose purpose and place among the Ming institutions evolved from the Tang period. Under specific circumstances, the money redeemed was granted to the victim or the victim's family. The Ming law finally introduced the confiscation of the entire property of the offender, which was given to the family of the deceased person in cases of extremely severe offenses or under special circumstances. As I will further evidence, compensation paid to family of the victim of homicide involved a highly complex and coherent set of rules, whose theoretical underpinnings were nonetheless very different from those of Western laws. Compensation, despite the reassessment of its position in statute law undergone during the Mongolian rule, was progressively remolded to fit into the Chinese legal apparatus. Although compensation remained a secondary concern compared with the necessity of determining a rightful punishment, the situation of the victim was not completely overlooked. Rather than considering it in terms of mere economic loss, Chinese law emphasized the balance between the situations of the two families in terms of requital for a life. In homicide cases, the state was responsible for punishing the offenders in place of the bereaved family, and for the sake of public order, justice could not neglect the pain undergone by the victim's relatives. Judgments that parties believed to be unfair might have caused incessant litigation before the court.
The confiscation of the property does not completely fit into such a framework insofar as it broke the balance between punishments when it was levied in addition to the death penalty. We should distinguish here between several situations. In the Ming and Qing codes, confiscation of a criminal's property in addition to the death penalty generally occurred in cases of serious crimes against the emperor or the state, especially those within the scope of the Ten Sacrileges (shi'e 十惡).Footnote 38 Likewise, property of those who had committed a homicide falling into the category of atrocities (budao 不道), one of the Ten Sacrileges, was confiscated and given to the victims.Footnote 39 When an atrocity did not cause another person to die, such as when gu poison was made but not used, property was forfeited to the administration.Footnote 40 It is noteworthy that a new rule enacted in 1763 stipulated that in cases of killing two persons from one household, half of the property was given to the family of the deceased.Footnote 41 Confiscation of the property was indeed an aggravation of the punishment and was therefore proportionate to the seriousness of the offense. This was coherent with other dispositions of the code. One may also note that when two or more persons from one household were killed, seizure of property was a means to restore justice. Nonetheless, it was not beyond any criticism. First, confiscation of the offenders' property given to victims was absent in the Tang code, which necessarily opened the door to questions about its insertion within the Chinese legal order.Footnote 42 Moreover, few provisions of the code obviously contradicted the search for a balanced position between the offender and the victim. Statute 359 on false accusations stipulated that if the victim were sentenced to death and executed as a result of a false accusation, or if one of the victim's relatives who accompanied that person to the place of exile died on the road, the false accuser was sentenced to strangulation and half of that offender's property was forfeited to the victim.Footnote 43 Confiscation of the property in addition to one life in requital was believed to be too harsh, and was condemned as such by Chinese jurists. Even Shen Zhiqi, who was generally less apt than Xue Yusnsheng to blame discrepancies in the code, noticed that the false accuser was treated with the utmost harshness.Footnote 44
However, this was the exception, and laws on compensation other than confiscation of property were progressively reformed to befit principles underpinning Chinese law in a more consistent way. To comprehend this evolution, one needs to start from the rules enacted during the early Ming (1367) in the Ordinance of the Great Ming (Da Ming ling 大明令) and in the first editions of the Great Ming Code (Da Ming lü 大明律). They constitute the first attempt to lay the foundations of a restored legal order rooted in Chinese tradition and expunged from the Mongolian noxious influence.Footnote 45 Despite this ambitious political program proclaimed by Zhu Yuanzhang 朱元璋 (r. 1368–98), the range of the actual reforms was far from meeting with these requirements, and the legislation of the first Ming era rested on that of the former dynasty, as exemplified in an ordinance regulating the condition of compensation in case of homicide.” In any case where a person has to redeem with his own life the death of the victim he killed, ten taels of silver shall be paid for the funeral expenses. If he has not to redeem, twenty taels shall be paid. When a person shall redeem with his own life but benefit from an amnesty, twenty taels shall also be paid.”Footnote 46
These rules were close to those of the Yuan law; the compensation was to be paid even when the offender was sentenced to death. Only the amount of the compensation changed. Chinese law encountered profound adjustments before a new code was promulgated at the end of the reign of Zhu Yuanzhang. The code finalized in the 30th year of Hongwu period (1397) gives evidence of the progressive evolution of the Ming statute law, because several institutions inherited from the Yuan dynasty were reinterpreted in a way more congruent with Chinese legal tradition. Rules on compensation represent a good exemplification of this trend. In the code promulgated in 1397, the scope of compensation was greatly reduced when compared with that of the ordinance enacted in 1367. Allowance was not as general as it had been previously. Only four provisions of the code mentioned compensation, targeting seven specific crimes. Rules included in ordinances enacted under Zhu Yuanzhang's reign remained in effect unless being abrogated. Actually, ordinances either were incorporated in later editions of the Great Ming Code or progressively fell into disuse.Footnote 47 It is nevertheless difficult to ascertain whether the ordinance on funeral expenses was formally abolished; however, it is likely that such a general statement lost any legal effect, because a new code was promulgated in 1397. It would somehow have been paradoxical to enact specific rules on the payment of funeral expenses if the general rule was still effective. One can rely on more convincing evidence to ascertain that the rule was obsolete, at least since the middle of the Ming dynasty. In his Joint Edition of the Tang and Ming Codes (Tang Ming lü hebian 唐明律合編), Xue Yunsheng 薛允升 (1820–1901) quoted in full the ordinance as it was drafted in the 1500s edition of the Itemized Regulations for Pronouncing Judgments (Wenxing tiaoli 問刑條例). The new rule amended the most general clause and only governed the situation in which the perpetrator of a homicide was released from punishment as a consequence of an amnesty:Footnote 48 “When criminals who have to redeem the death of the victim they killed with their own life are amnestied, they shall pay twenty taels to the family of the person who was killed. If they are poor, only half of the amount is paid.”
The text no longer mentioned the payment of compensation in all homicide cases, but only in cases of targeted offenders who were amnestied. Xue Yunsheng also referred to a commentary on the ordinance, which dated back to the early sixteenth century and quoted the first version of the ordinance. He also confirmed that it did not have legal effect any more at that time.Footnote 49
The Ming law separated from the spirit of the Mongolian law, but meanwhile maintained, at least nominally, the law regarding payment of funeral expenses. The major change consisted in the loosening of the strict relationship between the obligation to pay compensation and the death of the victim, which was in effect during the Yuan era. Besides, the nature of the wrongdoing perpetrated, as well as the punishment the criminal was liable to, also determined whether an offender had to pay. Meanwhile, the Ming originated an important hiatus with the Tang law. As was already argued, according to the Tang code, compensation was granted only when offenders were allowed to redeem their punishment, whatever it was. From the Ming dynasty onwards, the rule can be reformulated as follows: compensation was to be paid once a person who caused another person to die avoided the death penalty under the law. The scope of this rule did not include situations in which the perpetrator and the victim were kin or were bound by hierarchical relations. In several sources, statements can be found confirming that the rule was well acknowledged among the Qing judiciary. The clearest formulation I have found in Qing legal materials is provided in a memorial (shuotie 說帖) recorded in the Conspectus of Judicial Cases (Xing'an huilan 刑案匯覽)Footnote 50 : “In statute law, criminals who have to redeem the death of the victim with their own life but who either benefit from a diminution of the degree of penalty due to an amnesty or who do not pay with their own life according to law – which means that they are sentenced to military exile, life exile, penal servitude or beating – shall pay funeral expenses without exception.”Footnote 51
As a rule, if people had any kind of responsibility—no matter how direct it was—in another person's unfair death, they had to compensate, whether with their own life in case of severe offense, or with lighter punishment and/or money regarding mitigating circumstances specific to the case. The line between having or not having responsibility in someone's death was small, and sometimes not clear, but it remained nonetheless a cornerstone for this issue in Chinese jurisprudence under the Ming and Qing dynasties. Two examples excerpted from the Conspectus of Judicial Cases provide some landmarks to follow the legal reasoning put forth by the Qing officials. In the first one, Wang Enchang was taking his clothes down with a pronged stick when the rope broke, which caused the clothes to fall on He Yun's horse. He Yun lost control over his horse, which galloped and ran down Zheng Xiang who died on the spot. Although neither Wang Enchang nor He Yun directly caused Zheng Xiang's death, both of them were held liable on the grounds of homicide by negligence.Footnote 52 In a second case, the board reasserted that when a victim died after the term of the period of responsibility, the offender did not have to pay compensation, because the offender did not cause the death. The situation was different when perpetrators of homicide were released from death only in consideration of mitigating circumstances. The one who caused the homicide still had to pay.Footnote 53
One should also bear in mind that although punishment for homicide was harsher in the Ming code when compared with the Tang code—for example, homicide while playing led to a sentence of penal servitude under the Tang law and to strangulation in the Ming code— many of the sentences of death were only nominal and not executed at the term of the judicial process, a phenomenon amplified under the Qing dynasty. The Ming and then the Qing developed several institutions to moderate the severity of statute law, a trend in the line with the belief that a virtuous government should preserve life.Footnote 54 As a consequence, although the code was supposed to secure the principle of the requital for a life, the whole legal system instituted several mechanisms that prevented the execution of the criminal. Two institutions epitomize this general trend: the Autumn Assizes (qiushen 秋審) and the authorization for criminals to remain at home to care for relatives (liuyang 留養). The Autumn Assizes were created under the Ming dynasty and developed under the Qing dynasty to review all the sentences of death that were pronounced with delay (jianhou 監候) and not executed immediately (lijue 立決). Many of the sentences reviewed during the Autumn Assizes were related to homicide cases, for which all sentences were pronounced with delay. According to legal treatises drafted at the end of the Qing dynasty, punishment for homicides while playing and for homicides in affray committed without an outburst of violence was generally reduced to exile.Footnote 55 As homicides during affray represented the majority of homicide cases adjudicated by courts, it is likely that many perpetrators of homicide were not sentenced to death.
Although the frame of Article Eighteen authorizing criminals to remain home to provide for their parents was narrower than that of the Autumn Assizes, it was a quite common channel used by the imperial administration to release criminals from the death penalty. If conditions to benefit from this institution were quite strict under the Tang and Ming laws, the Qing expanded its range to new situations. As a rule, a male criminal whose ascendants were elderly (70 years of age or over), ill, or required care, and for whom the family had no other male having reached the age of majority, was authorized to remain home to provide for his parents, except when he had committed a capital crime not eligible for general amnesty.Footnote 56
For all the situations in which a criminal was released from death as a consequence of emperor's benevolence, compensation was to be paid to the victim's family.Footnote 57 Judicial decisions confirm that the rule was strictly observed and once a killer was exempted from the death penalty as a consequence of a measure of benevolence, magistrates required payment of the victim's funeral expenses.
Several other provisions in the code also mention funeral expenses, mainly when the offender avoided the death penalty because that offender did not have any intention to kill. They were statutes punishing killing with carriages or horses,Footnote 58 killing with spring bows,Footnote 59 using coercion to cause others to die,Footnote 60 and causing others to die by administering penalties not in accordance with the law.Footnote 61 In the situation of the one who, having deliberately slung bullets, shot arrows, or thrown bricks or stones toward urban areas or places where people lived, caused others to die, the law did not award funeral expenses to the victim's relatives despite these offenses being very close to the four crimes previously mentioned.Footnote 62 Wang Kentang 王肯堂 (1549–1613), one of the most prominent jurists of the late Ming provides the following laconic explanationFootnote 63 : “Even if this is a crime that causes death, the funeral expenses are not perceived, because the killing does not occur in front of offender's eyes so that it is not comparable with conducting horses or carriages at full gallop.”
Several decades afterwards, Shen Zhiqi 沈之奇’s commentary on the statute on killing with carriages or horses enlightens Wang's interpretation:Footnote 64 “In this provision when death is caused, if compared with the previous one, the sentence is aggravated by the payment of funeral expenses. When riding at full gallop, eyes can see other people and death is caused by the absence of skill to control. The situation is different with that of slinging bullets or shooting arrows. It is the reason why punishment is harsher.”
When homicide was caused while driving horses or driving carriages, the liability of the driver was heavier, as he should have possessed the skill to control his vehicle; on the other hand, a shooter might be standing at a position too far from his victim to be able to avert the incident. The understanding of the condition of liability was the opposite when no injury was inflicted. The driver was not sentenced, as no tangible event evidenced that he did not possess the ability to control his vehicle, whereas the shooter manifested his recklessness by deliberately shooting in the direction of urban areas or places where people lived. He was, therefore, sentenced to 100 blows with a heavy stick. As a consequence, and to take account of this slight difference between the two liabilities, the shooter did not pay compensation under the Ming law. Shen's commentary enlightens that payment of funeral expenses was comprehended in terms of the offender's subjective liability, and was seen as an aggravation of the corporal punishment provided by the law. Since the Qianlong period (1736–1796), the legislator waived these byzantine distinctions and inserted a commentary in little characters at the end of statute 295 (318 in the Ming code) specifying that funeral expenses were to be paid if the victim died. Later, under the Jiaqing's reign (1796–1821), a substatute required the one who caused the death of other person by spilling poison in order to kill animals in a place where people circulated to pay the funeral expenses in conformity with the rule of statute 295.Footnote 65 This evidences that, under the Qing law, laws regarding funeral expenses were streamlined and generalized to all situations in which a wrongdoer killed other people with recklessness.
The understanding that payment of funeral expenses was an aggravation of punishment is also obvious in commentaries on statute 322 in the Ming code, which punished the use of coercion to cause others to die or to commit suicide. Chinese jurists were unanimous in their criticisms of a provision that they considered unnecessary and unfair. In Xue Yunsheng's view, the Tang code did not charge people engaging in such behaviors with a crime, because the cause of the death was suicide. Furthermore, he stated that when the code did not cover a potential criminal act, it was possible to refer to statute 410 on “doing what ought not to be done” and then to sentence the offender to a beating.Footnote 66 Most importantly, Chinese jurists outlined the excessive severity of the punishment, because of the additional obligation to pay compensation. Wang Kentang complained about the severity of the requirement of payment of funeral expenses, which amounted to 3 years of work during penal servitude.Footnote 67 The constant grievance against payment of funeral expenses was that it added a punishment to another punishment, here 100 strokes with a heavy stick. Through these critics, one can observe that compensation and corporal punishments were considered of the same nature, placed along a common scale of penal sanctions.
Finally, one needs to consider the redemption of punishment, inherited from the Tang, but which encountered several changes under the Ming and Qing dynasties.Footnote 68 At the beginning of the dynasty, redemption according to statutes (lüshu 律贖) was limited to few categories of persons, such as officials; those who were aged, juvenile, or disabled; public artisans; and musicians only if the crime they committed was liable to exile and or a lesser punishment. Redemption was also authorized for homicide by negligence. Progressively, redemption according to substatutes (lishu 例贖) expanded the benefice of the redemption to wider categories of persons—insofar as they were able to pay a large amount of money—and to new crimes, even if homicides other than those committed by negligence remained excluded from the ambit of the redemption.Footnote 69 This prohibition was still in effect under the Qing.Footnote 70 In the line of the Tang code, the money paid for the redemption was given to the victim or the victim's family in cases of wounds or homicide by negligence (gei fu qi jia 給付其家).Footnote 71 Meanwhile, the Ming and then the Qing made minor adjustments to the scope of crimes punished by reference to homicide by negligence. The situation remained unchanged for only two crimes: homicide caused by a domestic animal neither marked nor tied up,Footnote 72 and recklessly driving carts or racing horses through the streets because of an urgent matter.Footnote 73 Besides, the Ming abolished as crimes the nondestruction of spoiled meat resulting in the death of a person who had eaten it voluntarily and causing by error disorder in a marketplace resulting in the death of a person, for both of which crimes the offender had been authorized to redeem punishment under the Tang code.Footnote 74 Officials beating a person to death because of a public matter were henceforth condemned to pay funeral expenses instead of redemption, which only entailed minor changes. On the other hand, the Ming expanded the scope of the redemption by assimilating new situations to that of homicide by negligence, such as death provoked by incompetent physicians (art. 320) and death of a person resulting from improper measures during public works (art. 449). The Qing broadened anew the ambit of redemption to several crimes. They mainly proceeded by the addition of little commentaries after statutesFootnote 75 and through the promulgation of new substatutes.Footnote 76
Therefore, the two institutions for redemption and funeral expenses were very similar in their function, which was to provide compensation to the family of the deceased. One should note that the scope of redemption was wider than that payment of funeral expenses, as it also operated in cases of injuries. As already seen, punishments sentenced for wounds inflicted by negligence were also redeemable, in addition to the money given during the period of responsibility for an offense (baogu). I have argued that the superposition of the two institutions was somehow a consequence of the multilayered influences that shaped the legal system of the Ming dynasty. Nonetheless, Chinese jurists attempted to take advantage of this erratic legacy to rebuild coherence among these rules, despite contradictions that existed between payment of funeral expenses and some tenets of Chinese legal tradition. Xue Yunsheng outlined these contradictions in his commentary of the statute on killing with spring bows, in which he drew a parallel between redemption and payment of funeral expenses. As he noted, redemption, as inherited from the Tang and implemented since the Ming, completely released the offender from corporal punishments. He then questioned why funeral expenses were to be paid in cases of killing with spring bows, when the offender was already liable to exile or penal servitude, which was sufficient punishment (bigu 蔽辜).Footnote 77 Actually, Xue Yunsheng overemphasized the incommensurability of payment of funeral expenses with the standards of Chinese justice. A commentary inserted in the Great Qing Code Newly Edited with Criminal Cases and Commentaries (Da Qing lüli xing'an zuan jicheng 大清律例刑案新纂集成) after the statute on killing with spring bows addresses issues raised by Xue Yunsheng.Footnote 78 It compares this last crime with homicide by negligence. Whereas in homicide by negligence the killing is unforeseeable, in the statute on killing with spring bows, homicide results from the reckless behavior of the offender, who deliberately shot toward places where people live. Had he shot in a deserted place, circumstances would have qualified that act as homicide by negligence. The corporal punishment suffered by the perpetrator of killing with spring bow—in addition to the payment of funeral expenses—was therefore justified by his carelessness.Footnote 79 At the end of a process brought to completion during the Qing dynasty, compensation was streamlined to fit into Chinese penal system.
As a consequence, compensation had less to do with the actual loss suffered by the victim. This point raises the question of the standards used to determine the amount of money paid to the victims. As already asserted, the offender who was released from the death penalty had to pay 20 taels of silver for funeral expenses, an amount halved when the offender was too poor to pay or when that offender was condemned both to pay compensation and to a corporal punishment. These standards set at the beginning of the Ming era remained the same until the end of the nineteenth century, while prices evolved all during this period. I will later discuss the consequences on legal practices. The price of the redemption was a little bit higher than the one for funeral expenses: 12.42 ounces of silver.Footnote 80 The difference was more the consequence of historical constraints and of the erratic currency policy implemented by the Ming government than the result of the assessment of the damage suffered by victims. Prices fixed in the code promulgated in 1397 were quite high (42 ligatures corresponding to 42 taels of silver), but although the government imposed the payment in paper currency, its regular depreciation all during the fifteenth century caused a rapid decrease of the value actually paid for the redeeming of punishments. As redemption was originally an institution displaying the emperor's benevolence toward categories of people deserving leniency, the low price paid by elders or youth was not considered a real issue by officials, except for in cases of homicide by negligence, for which the money had to be given to an innocent family.Footnote 81 As stated in a memorial of 1465, the situation was unfair for the victims. Because of the devaluation of paper currency, the legal price did not even amount to one tenth of the price of a donkey.Footnote 82 Because it was deemed impossible to tamper with prices fixed by the founder of the dynasty, the Board of Punishments proposed to fix a combined conversion of the 42 ligatures into silver, on the basis of exchange rates between paper currency and silver for two tenths, namely 33 ligatures and 600 coins, and on the basis of exchange rates between copper coins and silver for the remaining 8 ligatures and 400 coins, which amounts to 12 taels of silver, 4 copper coins and two tenths of a coin, the sum of money later codified in Ming ordinancesFootnote 83 and in the Qing Code.Footnote 84 The prices of the redemption in cases of wounds inflicted by negligence were later codified in tables devoted to the redemption and inserted into the code. These ranged from 0.354 taels in cases of light wounds, to 10.655 taels when the victim remained crippled or became an invalid as the result of severe injuries. The code was thus providing clear standards to gauge compensation, but only when injuries were caused by negligence.
Nevertheless, several issues regarding the allocation of compensation remained unclear in statute law and, therefore, needed to be address in justice. Plurality of offenders or victims was one of these questions. An instructive memorial recorded in the Conspectus of Judicial Cases detailed the solution to adopt when one person wounded several others by negligence. The first judge referred to the Collected Commentaries of the Great Qing Code (Da Qing lüli jizhu 大清律例集注), a treaty on the code edited by Wan Weihan 萬維翰 in 1766. Wan Weihan recommended that the amount of money paid by the offender should be shared equally between the two victims. The official of the Board of Punishments argued that it would be unfair, as the victims would not obtain the money awarded according to the law. Because the offender was not condemned to corporal punishment, it would be reasonable to ask that offender to pay twice.Footnote 85 Solutions discussed here enlighten again the crucial need to find a balanced position between the situation of the offender and that of the victim.
Finally, one should consider an important consequence involved as a result of the whole legal framework. Because compensation was a penalty that could increase a corporal punishment, officials inferred that the appraisal of the harshness of the punishment pronounced should result from the addition of both compensation and corporal punishment. Considering the need for a balance between the situations of the offender and the victim's family, it followed that the one condemned to death should not pay compensation in addition. The sentence would have been out of proportion.
II. Compensation of Personal Injuries and Death in Everyday Justice: The Magistrate, the State Law, and the Local Order
The place of compensation in Chinese legal order and among the wide range of duties local magistrates had to perform when administering justice is complex. It is difficult to single out compensation as a legal concept by itself. The several institutions awarding compensation do not constitute a comprehensive attempt to address the issue of compensation of victims. As a consequence, these mechanisms overlapped the existing categories of the code, such as the distinction between petty matters and major cases. This opposition, which is more of procedural than of a substantive nature was very important in Chinese law, as it drew the line between cases coming within the sole competency of local magistrate (zili anjian 自理案件) and those subject to review by higher authorities.Footnote 86 Because affrays remained petty matters so long as the victim did not suffer severe injuries, compensation paid for medical expenses during the period of responsibility for an offense subsequently also belonged to this category.
On the other hand, payment of funeral expenses or of the money for redeeming of punishment was part of the criminal process and was, therefore, reviewed by high judicial authorities. A study of routine memorial to the Board of Punishments (xingke tiben 刑科題本) related to homicide cases reveals that all officials gave heed to the effective payment of compensation. It was part of the administrative routine to supervise it, and every memorial mentioned the obligation to pay when the offender was released from the death penalty. One substatute enacted in 1763 specifically organized the demand of payment under the responsibility of local magistrates.Footnote 87 Substatute 24-1 organized the enforcement by committal each time it was necessary to regain possession of stolen goods or to secure compensation. The offender was committed to prison until able to pay the required amount of money. Nevertheless, when offenders did not have enough wealth, they were released after 1 year and freed from obligation to pay. In a memorial, Hu Wenbo 胡文伯 (1696–1778), Judicial Commissioner of the Jiangsu Province, argued that the rule was too lenient, as it enabled offenders to unfairly avoid their legal obligations.Footnote 88 He therefore recommended that magistrates investigate on the offenders’ property and whether they was able to pay compensation. Leaders of local communities, such as registration unit heads (paitou 牌頭) or village headmen, neighbors, and relatives of the offender were required to vouch for that offender's economic situation under the form of a bond of confirmation (ganjie 甘結) and were liable for any concealment. Local archives evidence that these regulations were implemented with great care. Materials from the district of Baodi confirm that local magistrates systematically recorded bonds of confirmation when an offender had to pay funeral expenses. They were thereafter sent to the provincial authorities, and mentions of these documents also appear in routine memoranda to the Board of Punishments. Meanwhile, in many of the documents I have consulted, the offender was actually too poor to pay compensation.Footnote 89 Magistrates had a fair amount of leeway when enforcing the payment of funeral expenses. In another case, the brother of the offender paid as compensation the 5 taels he eventually succeeded in collecting despite his own poverty.Footnote 90 In addition to information about the current economic ability of large sections of the Chinese people, these documents also demonstrate that the financial liability was not limited to the offender, but might extend to the offender's relatives. It is critical to understand that magistrates had a wholesale appreciation of the impact of their decisions, considering the intertwined economic and social relations that existed within Chinese clans.
In addition to this rather clearly defined ambit of compensation adjudicated according to statute law, Chinese institutions gave room to local magistrates to award compensation in recognition of hardship resulting from injuries or from the death of a relative. This issue is situated in the midst of issues coming within the sole competency of local magistrates as defined. Magistrates were autonomous in their decision to award compensation or not to the victim. This situation did not necessarily entail arbitrariness, as magistrates were constrained by law and the concern that an unfair judgment would have caused incessant disputes between the parties. Through a combined study of local archives and collections of responses (pi 批) and judgments (pan 判) delivered by local magistrates, I will set forth principles that framed the conduct of justice. There was coherence among all the decisions available so that magistrates rarely resorted to their mere subjective sense of justice to adjudicate these kinds of disputes. They abided by the spirit, if not by the letter of the law and the tenets it enshrined. Principles that streamlined compensation in statute law were still influencing magistrates in their so-called sphere of autonomy.
If one first considers responses to claims for damages in cases of injury, the code provided a general framework that magistrates adjusted to take account of specific situations. When a plaintiff lodged a claim for injuries, as a rule, the magistrate ordered the offender to provide care to the injured person. We can draw on a very mundane dispute that occurred in 1855 to illustrate how local magistrates usually handled such issues. Zhang Wankui stabbed Yang Chenghuan, who sustained serious injuries. In a document entitled baogu, Zhang Wankui acknowledged that if Yang Chenghuan died during the period of responsibility, he would be condemned to death in requital (qinggan diming 情甘抵命).Footnote 91 This obligation to pay for medical expenses results from the rule of statute 303 (zeling fanren yizhi 責令犯人醫治). Because the injuries were serious, Zhang Wankui was kept in confinement until the recovery of the victim. He was thereafter punished with penal servitude. However, Yang Chenghuan was not awarded damages for his pain or the loss he suffered as a consequence of his wounds. In the case of minor injuries, the offender was sometime admonished and had to pledge that he would not behave as such in the future.Footnote 92 Nevertheless, in a majority of disputes over assaults for which the wounds were minor and already healed, the magistrate authorized the parties involved to enter into mediation under the control of their relatives or village headmen.Footnote 93 Documents stored in local archives do not provide any information on the result of mediations conducted at the village level, although they often mention a global settlement of the dispute in order to stop litigation (xisong 息訟). Insofar as wounds were light and no severe punishment was to be served, local magistrates did not hesitate to resort to extrajudicial mediation to settle a dispute. Assaults solely pertained to the category of petty matters in this respect. This does not mean that magistrates completely overlooked these kinds of issues. They did not handle them personally to the extent they did not risk causing major disruption to public order.
Many of the criminal cases originated in petty matters that had not been properly settled. The occurrence of such aftermaths is well documented for disputes over property, but should be generalized to other categories of antagonism.Footnote 94 Homicide cases could, themselves, cause further disputes, even feuds, if not settled properly in justice. From the victims’ viewpoint, offenders should be put to death in requital, although Chinese law provided several opportunities for perpetrators of homicide to avoid death. Compensation was a means to assuage the victim and the relatives’ pain when the offender was released from the death penalty.
As far as can be inferred from existing documentation, magistrates were attentive to the effective payment of compensation and to the execution of decisions awarding damages to victims. Documents from the Shuntian prefecture show that because offenders were condemned to pay compensation, magistrates dispatched guards of the yamen to collect the money by issuing an order (piao 票).Footnote 95 Offenders were expected to complete the payment, lit. to proffer (cheng jiao 呈繳), otherwise magistrates would have enforced their decisions in a more forcible way. A case not related to compensation evidences that magistrates spared no effort in enforcing their decisions condemning one party to clear one's debt. For example, Li Jingceng, the debtor, first acknowledged his debt in a bond of confirmation, but he refused to pay. One month later, the magistrate condemned Li Jingceng to wear the cangue, so he promised again to fulfill his obligation. Nevertheless, the dispute lingered on for several months as Li Jinceng only discharged part of his debt. The magistrate eventually compelled Li Jingceng's brother to pay off the debt under the supervision of a guarantor.Footnote 96 Local magistrates had available a large range of means, including physical coercion, to make offenders pay. Other documents can incidentally attest that magistrates performed this duty with diligence. A homicide case recorded in a routine memorial to the Board of Punishments thus occurred while a guard of the yamen was killed as he was sent to urge payment of a debt.Footnote 97 I also found a few occurrences of homicides that originated in the nonpayment of compensation awarded in court. That shows, even if it is difficult to firmly ascertain this point, that judgments condemning the offender to payment of compensation were rather well enforced and did not cause major disputes.
Nevertheless, a large range of situations remained ignored by law, and were problematic in terms of balance between the offender and the victim, especially when the economic loss suffered by a victim was important. Magistrates had to face circumstances in which a plaintiff considered that a person had caused the death of the plaintiff's relative even if that person was not liable under the law. Magistrates were meanwhile confronted with persons in great distress and unable to make a living. Magistrates were often dubious about the plaintiffs’ very motivations, suspecting them to try to take advantage of accidents to make a profit. I will here examine how officials managed to adjudicate these claims, and the extent to which their decisions were coherent with statute law. As already discussed, the major restraint to compensation in cases of homicide was the prohibition laid down in statute law to sentence an offender concurrently to the death penalty and payment of compensation. As a consequence, persons whose relative were murdered had few chances to gain compensation, because the offender was condemned to death. Statements of this nature sometimes occur in judgments rendered by local magistrates. For example, Fan Zengxiang 樊增祥 (1846–1931), while he was magistrate of Weinan 渭南 (Shaanxi Province), rejected the request of Madame Liu née Yang to be awarded compensation for the death of her husband, Liu Xianjia. The offender, Liu Quande, had already been sentenced to death and executed, and his son was only 12 years of age, and had no responsibility in Liu Xianjia's death. Fan Zengxiang rhetorically questioned if Madame Liu was seeking the extermination of their family. In his view, the death penalty was sufficient to assuage the victim's pain.Footnote 98 Actually, we found very few examples of demand for compensation in murder cases, and attention remained largely centered on the question of the death penalty. Nevertheless, magistrates sometimes faced situations in which this principle contradicted the duty of benevolence toward indigents, even if the issue was seldom, if ever, dealt with in justice. The following case, also adjudicated by Fan Zengxiang, is therefore important for understanding how magistrates apprehended such issues.Footnote 99
Miss Guan née Sun, was a 49-year-old widow. With the help of a go-between, she entered into an agreement with Wang Xinkuan, a 25-year-old adult. Wang Xinkuan agreed both to marry Miss Guan Sun's daughter, Guan Cui'er—who was at that time a 9-year-old girl—when she would reach the age of majority, and to enter his wife's family from that day on. This kind of practice, called ruzhui 入贅, was a means for elderly parents without a son to gain the support of a healthy man in return of the promise of their daughter's betrothal. But only a few days later, Wang Xingkuan sexually assaulted Miss Guan Sun. She resisted and screamed, and Wang Xingkuan killed his bride-to-be in the subsequent scuffle while Miss Guan Shun suffered minor wounds. Panicked when perceiving the consequences of his behavior, he preferred committing suicide to facing human justice. Fan Zengxiang first stated that Wang Xinkuan completely deserved his fate, in light of the crime he had committed. In addition, he blamed Miss Guan Sun and the go-between for the foolish agreement they had concluded, but meanwhile, he empathized with Miss Guan Sun, as she was unable to pay for the funeral of her daughter. Because of Wang Xinkuan's wrongdoings, she was ruined and deprived of any kind of support and without anyone to provide for her, which was unfair in the utmost. Fan Zengxiang observed that everything resulted from failures in Wang Xinkuan's education, for which his elder relatives should be held liable. As a consequence, he condemned two of the offender's uncles each to pay 10 ligatures of coins to Miss Guan Sun. In addition, the go-between had to wear the cangue and to pay 20 ligatures to provide for the victim. Further investigation would ascertain whether Wang Xinkuan possessed properties, of which half would subsequently be seized for the benefit of Miss Guan Sun.
Through this brief summary of the case, we can observe that Fan Zengxiang's decision did not contravene principles entrenched in statute law. Although Wang Xinkuan died, his death resulted from suicide and not from a judicial decision. More than considering the loss resulting from Cui'er's homicide, Fan Zengxiang worried about Miss Guan Sun’s plight, an old widow without any source of income and whose 9-year-old daughter had just died. The most effective and substantial amount of compensation was that paid by the go-between and Wang Xinkuan's relatives. The decision rendered by Fan Zengxiang is representative of legal reasoning performed by Ming and Qing magistrates faced with violent deaths in situations in which the accused person did not directly cause the death of the victim. In the present case, the go-between and Wang Xinkuan's two uncles did not use violence against the victims, but their behaviors were deemed to have somehow caused the damage that they were obliged to indemnify. One may consider that Fan Zengxiang's sentence was nothing but the expression of his personal ethical sense of justice, and shares few characteristics with an actual judgment, considering the lack of legal basis for such decisions. In other words, this decision may be a common example of Qadi justice or of didactic justice, to use the terms coined by Shiga Shūzō.Footnote 100 Although I will not deny that Chinese magistrates usually sought decisions acceptable to both parties, as convincingly demonstrated by Shiga Shūzō, I emphasize that decisions awarding compensation were highly coherent with legal principles entrenched in the code. That is to say that a majority of judgments rendered by local magistrates were not the result of arbitrary decisions, but the adjustment of legal norms to situations that were not directly addressed in the code.
According to the Ming and Qing codes, compensation amounted to at least 10 taels of silver in cases of either using coercion to cause others to die or to commit suicide (art. 322) or under several circumstances in which the homicide was caused by a fault but without intention to harm the victim. In cases of homicide by negligence, it was possible to redeem the punishment by paying 12 taels of silver, 4 copper coins and two tenths to the victim. The tiny difference between the two monetary amounts was the consequence of the lawmaking process specific to the Ming, as I have already mentioned. In addition to compensation, offenders were also condemned to corporal punishment in consideration of their criminal liability, except for in cases of homicide by negligence, because in those cases offenders were unaware of the results of their behavior. In this set of rules, statute 322 of the Ming Code was the one for which legal definitions lacked firm grounds. The rule dates back to the beginning of the Ming era, at a time when the founder of the dynasty gave rise to innovations punishing those who, such as officials, gentry, or landlords, took advantage of their position to bully commoners. Statute 322 especially targeted those who harassed the victim, usually to force the victitm to pay a debt or to enter into an agreement involuntarily, to the point of causing the victim to commit suicide. Liability seems tenuous to Chinese jurists, as suicide was not a cause of death punishable in Chinese legal tradition.Footnote 101 Persons prosecuted under this statute did not directly cause death by a positive deed, but used power or coercion (wei 威) that provoked sentiments of fear or anger in the victim's mind, causing the victim to commit suicide.Footnote 102 The victim became desperate and was pushed over the edge.Footnote 103 These legal conditions were highly subjective and difficult to ascertain. Moreover, magistrates were facing plaintiffs who put the blame for their relative's suicide or accidental death on others (tulai 圖賴), expecting therefore to receive compensation.Footnote 104 Nevertheless, because the institution was integrated into the Ming and Qing legal orders, officials disregarded its recent character and strived to secure the coherence of the rule with other principles of the code. Subsequently, new legal consequences grew from the article in combination with other rules codified in statute law. This enabled magistrates to award compensation to victims of homicide in situations not covered by the code, but still in accordance with the spirit of the code. Several features of the decisions awarding compensation show that their legal basis had roots in the code, and that this kind of compensation was only an outgrowth of the funeral expenses paid according to the code. In this kind of decision, magistrates assumed that they adjudicated in compliance with statutes.Footnote 105 The penal nature of such compensation is also obvious, and few of its characteristics are similar to remedies awarded in Western civil suits. First, it is important to note that in a great majority of judgments that I have examined, the sentence was lenient if compared with the ones magistrates could have pronounced for acts punishable according to statute law. That is to say that the compensation was no more than 10 taels and corporal punishment, which was no harsher than 100 blows with a heavy stick. These decisions were highly consistent with the general principles on compensation that I have already depicted. All things considered, the liability of the person accused was not evident enough to sentence that person on the basis of statute 322. Chinese officials used similar legal reasoning when the behavior of a person had a very tenuous relationship with the occurrence of the casualty.Footnote 106 There were no sufficient legal grounds to condemn the offender for homicide by negligence, but as a tiny fault existed, compensation was awarded. The liability was thus gauged according to the criminal rules of the code.
I will now describe several cases to show how local magistrates adjudicated such issues. It is first worthy to note that if the principles were clearly settled in Ming decisions, the situation slightly evolved under the Qing dynasty and was not as straightforward as it had been in the Ming period. I will here describe principles that framed Ming officials’ judgments, and depict how they operated in the Qing context.
There were striking similarities in legal reasoning performed by Ming judges and decisions collected into casebooks. The whole constituted a coherent legal framework to decide whether compensation should be granted. When local magistrates judged that the circumstances of a case did not meet with the legal requirement of statute 322, they consistently considered whether the situation of the victim deserved compassion. Magistrates might first allude to the victim's spiritual grievance caused by sudden death. Compensation paid for the funeral expenses was deemed to assuage the soul of the one who suffered a wrong (yi xu yuan hun 以恤冤魂).Footnote 107 In another case, the same judge ordered the payment of 1 tael of silver for the ceremony organized to summon the spirit of a man who had disappeared after his boat had sunk.Footnote 108 Concern about the destiny of the grieved soul was commonly shared by many officials in late imperial China. The economic condition of the bereaved and the necessity to alleviate their resentment against the one they accused of having caused the death of their parent was the second issue that cases often dealt with. For example, Zhang Kentang 張肯堂 (?–1651) once granted compensation to a father in consideration of the sadness he endured for the loss of his daughter.Footnote 109 As a rule, when the surviving parents were poor and unable to provide for themselves, Ming judges generally condemned the accused person to pay compensation, even when the complaint was obviously deceitful. In a case he adjudicated when he was prefectural judge at Xinghua (Fujian province), Qi Biaojia 祁彪佳 (1602–45) concluded that the accusation was false and motivated by gain.Footnote 110 In an aforementioned case judged by Zhang Kentang, the father obtained compensation for his daughter's death although he had repeatedly lodged complaints before different courts and was condemned to a beating for his stubbornness. Poor widows and orphans were likely to benefit from magistrates’ benevolence in any circumstance. At the same time, magistrates accepted a great variety of indirect causes that could justify the payment of compensation. Had a more direct causation existed, the offender would have been prosecuted for negligence or use of coercion to cause someone to die. Factual causation for such a kind of liability was often far from evident, and a mere violation of a general moral duty may have sufficed to entail the payment of compensation. In the worst case, no fault at all was required. Several examples will allow the reader to evidence how judges proceeded. In a majority of cases, the death of the victim originated from a dispute during which a fight might have occurred resulting in wounds, although this was not necessary. The death could have been the consequence of anger, the suicide of the victim, or, sometimes, a mere accident. Nevertheless, inasmuch the defendant neither used coercion nor was that defendant a person with authority, it was impossible to condemn the defendant on the grounds of statute 322.Footnote 111 There were also situations in which a superior infringed a moral duty he was bound by in consideration of his social status. In a first case, Sun Shoujie hired Yao Zhiwang, a musician, for his daughter's wedding ceremony. Yao Zhiwang got drunk, fell from a car, and died. Sun Shoujie was thereafter suited by Yao Zhiwang's young brother and condemned to pay 3 taels as funeral expenses, as it was his responsibility to prevent his employee from drinking too much.Footnote 112 A similar statement was made by Mao Yilu 毛一鷺 (?–1629) in a case in which Wang Xi, the owner of a distillery, refused to give charity to Jiang Shan, his former employee who had became a beggar after Wang Xi fired him because of his age. Mao Yilu blamed Wang Xi for his greediness and absence of humanity.Footnote 113 Finally, in one last case already mentioned, no fault at all was assigned to the one condemned to pay compensation. Two merchants were sailing to transport wares when their boat capsized. Only one of them safely returned to shore; the other one disappeared. The magistrate evoked the duty of those who face common difficulties in the same boat (tongchuan gongnan zhi yi 同船共難之義) as a basis of his decision.Footnote 114
Under the Qing, justice was still plagued by false accusations, mainly motivated by the plaintiffs’ avidity. Local magistrates were more prone to reject groundless demands for compensation. Casebooks are full of complaints against common people who used all kinds of tricks to deceive justice. At the beginning of the Qing era, a case adjudicated by Xu Shilin 徐士林 (1684–1741) exemplifies the shift of the magistrates’ attitude toward such issues.Footnote 115 It was congruent with what can be observed all during the dynasty, and echoed Fang Zengxiang's decisions at the end of the nineteenth century.Footnote 116 Meanwhile, Qing officials continued awarding damages in situations similar to that encountered in the Ming era. In one document of the Shuntian's archives dating from 1813, Miss Zhou née Wang asked his son, Zhou Sicong, to destroy Zhou Liang's thatched hut to urge him to pay a debt. Zhou Liang committed suicide. The magistrate considered that the circumstances of the case did not meet with the requirement of statute 299, and condemned the offender to eighty strokes of beating for doing what ought not be done (statute 386).Footnote 117 Miss Zhou was additionally asked to pay 10 taels as funeral indemnities, but was later released from this obligation, as she was too poor.Footnote 118 In another decision, rendered in 1818, the magistrate of Baodi ordered Wang Qixiang to pay 4 taels for the death of Sun Fu, which he indirectly caused. In this case, Sun Fu was driving a little cart to sell pots when he bumped into Wang Qixiang, whose cart was stopped on the roadside, preventing Sun Fu from going further. Wang Qixiang's mule was scared, ran over Sun Fu, and trampled his stomach. Wang Qixiang was punished by forty strokes of beating with the light stick for having done what ought not to be done and, in addition, he was condemned to pay the funeral expenses.Footnote 119
The major difference that can be found between Ming and Qing's material roots is in monetary issues faced by the Qing. The Qing failed to guarantee a fixed exchange rate between copper currency and silver bullion. Although it was officially 1,000 wen for 1 tael of silver, it actually fluctuated from approximately 700 to, 2,000 wen, depending on the time and location.Footnote 120 Meanwhile, use of copper cash for private transactions spread at the end of the eighteenth century and replaced silver bullion among commoners.Footnote 121 There was the same trend in decisions collected in casebooks: although prices were formulated in taels of silver until the mid-Qing era, most of local magistrates used ligature of copper cashes as a standard during the late Qing era. In the same period, China experienced a sharp price inflation, so that the actual value of silver was divided by three and that of copper currency was divided by six to seven during the 300 years of the dynasty.Footnote 122 Although the codified amount of funeral expenses remained strictly the same, congruent records in casebooks reveal that funerals may actually have cost dozens of ligatures.Footnote 123 Families had to pay specialists to perform several rites.Footnote 124
At the end of the Qing era, magistrates were more prone to adapt their judgment to the situation of the plaintiff rather than following the legal amount provided in the code. In acting in such a way, one might argue that they did not infringe law, because they did not refer to the silver standard. As a consequence, the amount for funeral expenses granted according to the legal tariff, which maximum was 30 taels, may have been lower than the money awarded in less serious cases. Nevertheless, rigidity of statute law resulted in its inability to meet with plaintiff's expectations. Payment of funeral expenses was meant to assuage the victim's grievance when it was not possible to condemn the person who caused a homicide to a severe punishment. Insofar as the legal tariff was partly fictive, the victim's relatives were incited to resort to other means to settle such disputes. I will now examine other kinds of situations in which compensation was negotiated out of courts.
Mediation was a central mechanism in Chinese local justice, which parties in a dispute were able to resort to, willingly or under the pressure of magistrates.Footnote 125 In cases of wounds resulting from a fight, magistrates ordered the payment of medical expenses, but if the victim recovered, they required the parties to settle the dispute through mediation.Footnote 126 Mediation was also a common process for reaching an agreement after a person, who had caused another to die, was found not guilty. A decision rendered in the district of Ba, Sichuan province, evidences that magistrates allocated a specific space to mediation for the resolution of disputes related to compensation. In a case adjudicated in 1776, Yan Zhengchao was quarreling with Yan Weishao, his younger cousin on the father's side, over the property of a pipe, when he ran through Weishao's father kitchen, slipped on a knife and died from his wounds. The case was reported to the magistrate, who authorized the autopsy of the corpse. Even so, clansmen of the two parties organized mediation, and the magistrate eventually decided to not conduct the autopsy and thus to ratify the outcome of the mediation. According to the deliberation, Yan Rongsheng, Weishao's father, had to pay 5,000 wen as compensation.Footnote 127 The person who was compelled to pay had neither killed the victim nor directly caused his death. This situation is very similar to those previously encountered in Ming casebooks, in which magistrates often awarded compensation for such kinds of indirect liability. The outcome reached by the mediation is here congruent with decisions that magistrates often rendered in these issues.
Moreover, other kinds of documents suggest that recourse to out-of-court procedures to settle disputes over compensation was an alternative available to the parties. Recent research has highlighted the importance of private agreements in the study of legal relations in the Chinese population.Footnote 128 These agreements may sometimes have been used as an instrument to fix and evidence the outcome of mediation. During recent years, thousands of these documents have been edited and published, providing first-hand materials for the study of out-of-court agreements. The collection of materials from Huizhou stands out through its diversity and comprehensiveness, including both official and unofficial documents.Footnote 129 According to one agreement, while Fang Zaoxuan was quarreling with Fang Shiyuan, a clansman of the generation of his father, he inadvertently caused the death of Fang Shiyuan's son. Fellow clansmen of the parties conducted a mediation, which decided that Fang Zaoxuan would have to pay 450 taels of silver. However, because Fang Zaoxuan was too poor to fulfill such a commitment, other clansmen agreed to substitute the amount of silver Fang Zaoxuan was not able to pay.Footnote 130 The agreement did not refer to any claim before the court that would have preceded mediation, and it is likely that the magistrate had not been informed about the violent death of Fang Shiyuan's son.
This kind of situation eventually infringed on the state's monopoly on the adjudication of homicide cases. Statute 300 of the Great Qing Code punished those making private settlements (sihe 私和) when a relative was killed. Nevertheless, different sources suggest that such settlements were common among the population, and that these practices ended with difficulty. First, many routine memoranda to the Board of Punishments targeted people who settled agreements without referring to magistrates. Frequently, these agreements were discovered incidentally, on the occasion of another dispute, especially when the agreement was not faithfully implemented. Most of the cases related to private agreements occurring after a homicide caused during an affray, a crime for which officials commonly commuted a death sentence into life exile during the Autumn Assizes. As already ascertained, the offender whose life was spared had to pay funeral indemnity. A common understanding among the population may have prevailed that these cases of homicide did not necessarily entail requital for a life, contrary to murder, especially murder motivated by hatred. Provided that the homicide was not heinous, the perpetrator may have found some support among the local society to enter into negotiations with the family of the victim. Private agreements were not only a matter of two individuals, but necessitated the involvement of several go-betweens. The success of the concealment of the nature of the homicide also may have involved bribing people endowed with authority, such as a community head (dibao 地保 or baozhang 保長),Footnote 131 whose duty, among others, was to report all suspect deaths to the tribunal. Unlike what can be observed in magistrates’ decisions, there was no standardization of the amount paid by the offender. The average amount did increase with price inflation; however, there were still obvious differences, depending on the location and personal wealth of both victims and offenders. For example, in one case adjudicated in Shanxi province, an agreement settled in 1788 provided the victim's kin 50 taels of silver,Footnote 132 whereas 20 years later in Guizhou province, the compensation paid was only of 15 taels.Footnote 133 These agreements were eventually learned of to the extent that they were discovered and prosecuted. Aside from the memoranda to the Board of Punishments, other documents evidenced that magistrates firmly condemned those who entered into mediations and encroached upon the scope of the law. In one Huangyan case, the magistrate rejected a claim made for the payment of compensation for someone's death obtained through a private settlement. He reminded the plaintiff that such agreements infringed the code, and threatened to punish her, whether on the grounds of statute 300 if her statement were true, or according to statute 336 (wugao 誣告) if her accusation were false. The magistrate thus rejected the plaint and likely did not conduct further investigations on the homicide.Footnote 134 One can find similar statements by Fan Zengxiang.Footnote 135 Whatever the attitude of magistrates toward such private agreements, it seems that parties from time to time had recourse to mediation to settle disputes over homicides rather than lodging a complaint before the court. Although it is difficult to ascertain the popularity of the practice, by nature suspicious and secret, several sources suggest that many homicide cases did not reach a tribunal but were privately resolved. At the very end of the Qing period, investigations conducted on judicial practices in effect all over the empire, such as the First Report of an Investigation of Judicial Practices in Guangdong Province, evidence the importance of private settlements in homicide cases.Footnote 136 Other material can also confirm the entrenchment of this institution among local societies.Footnote 137 It seems to me that its prevalence originates in the lack of concern for private interests in Chinese law. Given that the state's only response to homicide was of a penal nature, and because the legal amount required for funeral expenses was far from what would have been needed to meet the actual needs of the bereaved, there was room for private settlements.
Conclusion
I have demonstrated in this article that the Chinese legal tradition was reluctant to order the payment of compensation as reparation for the damage suffered by the victim. In cases of injury, the wrongdoer was only required to provide for medical treatment. Wrongdoers were, however, strongly encouraged to care for their victims, because the severity of punishment was dependent on the physical recovery of the injured party at the end of a period fixed by the Code (bao gu 保辜). Similarly, in cases of homicide, Chinese law did not provide for civil remedies to the family of the victim, except in situations in which perpetrators were allowed to redeem their crime with money. A well-established principle of Chinese law states that the one condemned to corporal punishment should not indemnify. From the Yuan dynasty onwards, under the influence of Mongolian law, Chinese law progressively integrated some compensatory mechanisms, such as the funeral indemnity (shaomai yin 燒埋銀), but did not break with the general principle described. If one turns to the Qing legal system, which reinterpreted institutions inherited from the Yuan according to Chinese legal thought, the following points can be stressed. First, compensation was rather well developed in Qing law, in comparison with Tang law. Second, the obligation to pay compensation mainly occurred in homicide cases, with the exception of cases of intentional homicide or premeditated murder or homicide during an affray or a game when, in consideration of the circumstances of the crime, the offender was not entitled to a mitigation of punishment. This means that several situations were excluded from the scope of compensation. Third, criminal matters were given much more serious attention than civil ones. The main, if not the only, duty of magistrates was to mete out the right punishment, and they were required by the law to allocate compensation only when the perpetrator of a homicide was not sentenced to death. Insofar as perpetrators did not lose their own lives in requital for a victim's death, allocating compensation to the victim was not considered unfair.
Compensation in Chinese law was firmly grounded in statutes and was thus greatly influenced by principles entrenched in the code. As a consequence, Chinese jurists understood compensation as a penalty, which aggravated corporal punishments. It is, therefore, difficult to assimilate compensation in imperial China with damages in tort law. The amount of money granted to the victim was not calculated according to actual damage, but was a fixed legal tariff. Moreover, compensation was not systematically awarded to victims or their families, especially when the offender was sentenced to death. Chinese law did not make any distinction between criminal and civil law. There was only one body of law, which purported to punish criminal behavior and to maintain social stability, a prerequisite of the virtuous government. When addressing the issue of civil law in China, these fundamental features of Chinese legal culture should not been overlooked. Even if statute law was not much concerned with compensation, magistrates were facing plaintiffs eager to make offenders pay for the damage they had suffered. Magistrates mainly relied on general principles that they found in the code, to adjudicate such cases. Their decisions were thus highly coherent and pursued the same goals as those fixed by the code. Judgments were shaped by several concerns, some of them very remote from requirements for fair compensation for the actual damage. In imperial Chinese law, compensation of the loss was a far more complex issue than a mere indemnification of an economic loss. Meanwhile, victims and offenders may have attempted to reach private agreements that would enable victims to obtain compensation greater than those awarded in court, and offenders to avoid any punishment. How common these agreements were is difficult to ascertain, although several kind of materials evidence their entrenchment in local practices. However, these agreements remained illegal, and were punished as such when they were discovered. Even if their existence discloses the gap that could have existed between goals pursued by statute law and common people's expectations, and despite their importance in daily life, they should not be considered pertaining to the ambit of law.
