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The inquisition against Su Shih: his sentence as an example of Sung legal practice.

INTRODUCTION

In the autumn of 1079 the Sung dynasty official and poet Su Shih [UNKNOWN TEXT OMITTED] (1037-1101) stood trial for composing and disseminating writings that criticized Court policy and slandered government officials. Fragments of a Censorate dossier that contained documents relating to the investigation and prosecution of Su Shih survive today and are known as the Wu-t'ai shih-an [UNKNOWN TEXT OMITTED] (Crow Terrace Poetry Case). In a previous article, I have examined the provenance and bibliography of this text and described its value as a literary document for students of Sung political poetry.(1) However, the Wu-t'ai shih-an also contains much to interest students of Sung-dynasty law. The purpose of the present article is to present an integral translation and commentary on a portion of the concluding document in the collection. This document reviews Su Shih's crimes and relates in detail how his sentence was determined. I hope to demonstrate that this sentencing document is a rare fragment of primary source material generated during the judicial process itself and that the detailed explication of this text's considerable legal and bureaucratic technicalities affords the opportunity to examine how Sung jurisprudence, whose outline and theory we now understand in some detail, worked in practice.

A cornerstone of Sung-dynasty law was the division of the legal process into two parts, each to be conducted by different officials or agencies acting in theoretical independence of the other. On the district (hsien administrative level, where the vast majority of routine legal actions originated, the district magistrate presided over both phases of the "trial." The first phase, called t'ui-k'an [UNKNOWN TEXT OMITTED] "investigation of facts," comprised the police investigation into the details of the case and the interrogation of the participants. The centerpiece of t'ui-k'an was the subject's confession and the signing of his formal, written deposition. As in modern China, this confession was crucial to the Sung legal process: the proceedings could not progress to the next phase without it, and the subject was usually given the opportunity to recant an earlier confession that had perhaps been elicited under torture. The second phase of the process was called chien-fa [UNKNOWN TEXT OMITTED] "application of laws," in which legal officers not connected with the investigation of facts examined the law codes and compiled a list of all applicable laws and precedents. The magistrate then issued a judgment in which he reviewed the facts of the case, presented the reasons for his decision, and fixed the punishment.(2)

Unlike a routine judicial matter, however, Su Shih's "trial" was conducted at the highest levels of Sung government. Yet the basic structure of the proceedings was not different from a proceeding at the district level. Emperor Shen-tsung [UNKNOWN TEXT OMITTED] (r. 1068-86), acting through the Council of State (Chung-shu [UNKNOWN TEXT OMITTED] or Cheng-shih t'ang [UNKNOWN TEXT OMITTED]) in his capacity as supreme judicial authority, functioned as magistrate in the case. The Censorate (Yu-shih t'ai [UNKNOWN TEXT OMITTED]) served as the fact-finding (t'ui-k'an) agency; and the High Court of Justice (Ta-li ssu [UNKNOWN TEXT OMITTED]) served as the law-finding (chien-fa) agency.(3)

This separation of the judicial function into fact-finding and law-finding is unmistakable in the organization of the Wu-t'ai shih-an. The major portion of the text is Su Shih's "deposition" (kung-chuang [UNKNOWN TEXT OMITTED]) or confession, the final textual product of fact-finding. Textual remains of the law-finding phase of the process are more difficult to detect. They are embedded, however, in the final document in the Wu-t'ai shih-an, entitled "Report on the Censorate Investigation and Conclusion of the Inquest" (Yu-shih t'ai ken-k'an chieh-an chuang [UNKNOWN TEXT OMITTED]). It is uncertain if the material that follows this heading was ever an integral Censorate document or, as is perhaps more likely, has suffered accidental mutilation during the course of the manuscript's early history or intentional abridgment at the hands of the compiler of the Wu-t'ai shih-an.(4)

This report begins with the statement that the investigation of Su Shih was formally completed and sent to the throne on 25 December 1079. It relates further that an independent, non-Censorate official has confirmed Su Shih's confession and determined that Su Shih does not wish to amend his deposition. Certain minor details are added to the deposition. So far the contents of the document do not belie its title. But from this point, the point at which the present translation begins, the character of the document changes suddenly and totally, from a final report of the fact-finders to a recommendation of the law-finders.

We know from two reliable sources, independent of the Wu-t'ai shih-an, that

the Censorate submitted the case to the High Court of Justice where it was determined that the sentence should be forfeiture of office to replace two years of penal servitude, but since there was an amnesty there should be a full pardon.(5)

The head of the Censorate immediately memorialized the Emperor, protesting this decision and renewing his call for Su Shih's execution.(6) The Emperor (and/or the Council of State) crafted a compromise between the two positions and issued an edict that sentenced Su Shih and formally ended the case.

I believe the present document, from the beginning through section 3.B.2, represents the body of the original law-finding issued by the High Court of Justice. From the testimony cited above from the Hsu tzu-chih t'ungchien ch'ang-pien [UNKNWON TEXT OMITTED] and the Sung hui-yao chi-kao, [UNKNOWN TEXT OMITTED] we know that this lawfinding concluded with a recommendation of full pardon for Su Shih as a result of the amnesty of 11 November 1079.(7) This amnesty was an "ordinary act of grace" (te-yin, [UNKNOWN TEXT OMITTED] literally, "the sound of [imperial] virtue"): it commuted the death sentences in capital cases and freed all those sentenced to punishments of exile or less; it specifically applied to those like Su Shih whose cases were still in the judicial process.(8) In short, if Su Shih was sentenced to anything but death, the amnesty should have set him free. It is significant that the document opens with a mention of this amnesty. This original conclusion of the High Court of Justice would appear to have been replaced in the Wu-t'ai shih-an copy of the document, probably by a Censorate official tidying up the files on the case, with sections 4.A and 4.B that relate the actual compromise sentence of the Emperor.

These circumstances, therefore, would seem to indicate that the text under review is a major portion of a contemporary Sung law-finding. I know of only one other similar text that has survived. Miyazaki Ichisada has called attention to a stone inscription from Kiangsu that contains the records of a 1228 case concerning the misappropriation of land belonging to the Su-chou prefectural school.(9) These records show the same assemblage of citations from statutes, edicts, and regulations that characterize the present document. Other surviving sentences and resolutions of law cases from the Sung, such as the records of demotions in the Chih-kuan [UNKNOWN TEXT OMITTED] section of the Sung hui-yao chi-kao or the p'an collected in the Ch'ing-ming chi do not show the format and detail characteristic of the Suchou inscription and this fragment from the Wu-t'ai shih-an.

Brian McKnight has well described the interlocking and overlapping character of the different categories of Sung legal regulations.(10) The fragment embedded in the Wu-t'ai shih-an reflects this feature of Sung jurisprudence in even starker detail than the Su-chou inscription and affords the opportunity to examine the detailed reasoning and working behind an original Sung law-finding. In addition, Su Shih, the subject of the case, is among the most fascinating and best-known figures in Chinese literary history. And the basic issues of the case - the rights of free association and freedom of speech, the questions of government censorship and criticism of government policy (even if neither Su shih nor his accusers would have formulated them in this way) - give the material a human interest and contemporary flavor totally lacking in the Su-chou material.

STRUCTURE OF THE DOCUMENT

I have divided the document into numbered sections and subsections in an attempt to bring its organization and inner structure into sharper relief. Before proceeding to the translation itself, it may be useful to present an overall outline of the text.

1.A A list of seven minor infractions discovered during the course of the investigation. Only the last is sentenced.

1.A.1 Citation of an edict forbidding use of memorials of gratitude to defame or slander. No punishment specified.

1.A.2 Citation of a universally applicable legal regulation to the effect that when a legal item, in this case the above edict, does not specify a punishment, one sentences in accordance with the statue on doing what ought not to be done (T'ang Code, Article 450).

1.A.3 Citation of Article 450.

1.A.4 Sentence.

1.B At initial Censorate investigations, Su Shih did not depose truthfully.

1.B.1 Citation of statue on failure to depose truthfully during an inquiry ordered by special decree (T'ang Code, Art. 368).

1.B.2 Sentence.

2.A Su Shih composed poetry that ridiculed the Court; at Censorate inquiry he subsequently made a full declaration.

2.A.1 Citation of unrecorded statue against composition of anonymous literary pieces that slander the Court.

2.A.2 Citation of edict extending to criminals who confess during an inquiry the same mitigation of sentence as specified by statute for those who confess before the inquiry begins.

2.A.3 Citation by name from commentary to Sung hsing-t'ung concerning statute mentioned in preceding subsection (T'ang Code, Art. 37).

2.A.4 Sentence, by use of analogy.

3.A Su Shih caused his satirical and slanderous literary pieces to be printed and circulated.

3.A.1 Citation from edict amending statute cited at 2.A.1 providing for petition of Imperial decision in cases of serious violation.

3.A.2 Citation of statute (T'ang Code, Art. 17) specifying terms of redemption of penal servitude by forfeiture of office for an official of Su Shih's present rank.

3.A.3 Citation of edict allowing officials who hold "assignment office" to count that office separately for purposes of redemption of penal servitude.

3.B List of Su Shih's currently held offices and his highest previously held office.

3.B.1 Suggested final sentence.

3.B.2 Citation of edict to effect that an Imperial decision may be requested concerning uncertain cases of punishment involving use of analogy.

4.A List of previously cited legal regulations requiring or recommending solicitation of Imperial decision.

4.B The Emperor's decision, fixing Su Shih's sentence and ending the case.

Here we should recall several basic features of Sunglaw. The emperor was the source of all legal authority and had power to override or amend any legal regulation; or as Brian McKnight has well formulated the idea, "any expression of the imperial will could alter fundamental law."(11) The "fundamental law" referred to here comprised the penal "statutes" (lu [UNKNOOW TEXT OMITTED]) contained in the Sung Penal Conspectus (Sung hsing-t'ung [UNKNOWN TEXT OMITTED]), promulgated in 963, but which was virtually identical to the T'ang Statutes with Commentary (T'ang-lu shu-i [UNKNOWN TEXT OMITTED]), the T'ang Code. These statutes could be amended by imperial edict (ch'ih [UNKNOWN TEXT OMITTED]) or by the issuance of other categories of legal regulations, such as ordinances (ling [UNKNOWN TEXT OMITTED]), regulations (ko [UNKNOWN TEXT OMITTED] ), or specifications (shih [UNKNOWN TEXT OMITTED]). The sentencing document from the Wu-t'ai shih-an cites only statutes, edicts, and possibly an ordinance. Finally, unlike the Anglo-American system of jurisprudence, in Sung China only the severest of multiple infractions was sentenced. Thus, based on the Censorate investigation, the High Court of Justice found Su Shih guilty of four crimes, but only the last was sentenced.

TRANSLATION

[1.A] Item [number one]. From 1070 through Yuan-feng 3 (error for Yuan-feng 2, i.e., 1079), 11th month, 15th day (11 November 1079), prior to the Act of Imperial Grace [Su Shih] (1) had Wang Shen send money to Assistant Director of the Palace Library Liu. Subsequently, [Su Shih] (2) kept several paintings [belonging to] the Buddhist Master Ssu. Moreover, (3) he borrowed one hundred strings of cash from Wang Shen. Moreover, (4) on behalf of a maidservant, who wished to become a nun, and a monk, with whom he was acquainted, he arranged for Wang Shen to procure [ordination certificates] from the Bureau of Sacrifices. Moreover, (5) he gave paintings to Wang Shen to have them mounted. Moreover, (6) he sent a poem to Li Ch'ing-ch'en in which he expressed the desire that his own (i.e., Su's) disquisitions should be included in the national history. Moreover, (7) in his memorial of gratitude to His Majesty for receiving the prefectship of Hu-chou he criticized the [government's] employment of officials, stirred up trouble, and agitated the people.

[1.A.1] According to Imperial Edict: "Officials may not avail themselves of memorials expressing gratitude to His Majesty to express rash defamations and slander; [offenders] shall be impeached in the Censorate."

[1.A.2] Also, according to an item in the universally applicable legal regulations, when no legal item clearly designates the name of the punishment, then one follows the statute on doing what ought not to be done in order to determine the severity [of punishment].

[1.A.3] According to the Statutes: "When doing what ought not to be done, if the principle of the offense is serious, the punishment is eighty blows with the heavy stick."

[1.A.4] In sum, eighty blows with the heavy stick. A private offense.

[1.B] Furtherrnore, [Su Shih] came to the Censorate on repeated occasions and gave depositions that were not in accordance with the truth.

[1.B.1] According to the Statutes: "When a special decree has been sent down concerning an inquiry, a case, or an investigation, and the reply is not in accordance with the truth, the punishment is one year of penal servitude [. . .]. If the matter has not yet been memorialized, the punishment is reduced one degree in each case."

[1.B.2] In sum, one hundred bows of the heavy stick. A private offense.

[2.A] Item [number two]. [Su Shih] composed poetry and other literary pieces that ridiculed and satirized the Court administration for mistakes, failings, and for other matters. When he arrived at the Censorate, he was subjected to inquiry, and subsequently drafted in writing his reasons and made a full declaration.

[2.A.1] According to the Statutes: "When one composes anonymous literary pieces that slander and defame the Court administration and the inner and outer officials, the punishment is two years penal servitude."

[2.A.2] According to Imperial Edict: "When a criminal has been detained on the basis of suspicions and the illicit goods and the specific circumstances of the crime have not yet been revealed, and when as a result of an officially held inquiry, he confesses, then one shall follow [the statute whereby the criminal, knowing] that a case or inquiry is about to take place, confesses."

[2.A.3] According to the Penal Conspectus: "When the criminal, [knowing] that a case or an inquiry will take place, confesses, his punishment for the offense is reduced two degrees."

[2.A.4] In sum, by analogy, one year of penal servitude. A private offense. Since this is the lighter [offense], there is no need to request an Imperial decision.

[3.A] Item [number three]. [Su Shih] composed poetry and many other literary pieces that he sent to Wang Shen and others, with the result that they were printed from wooden blocks and circulated. Each piece ridiculed and satirized the Court and slandered and defamed the inner and outer officials.

[3.A.1] According to Imperial Edict: "When one composes anonymous literary pieces that mock and slander the court administration and the inner and outer officials, the punishment is two years penal servitude. When the circumstances are serious, the Emperor shall be petitioned for a decision."

[3.A.2] According to the Statutes: "All cases involving those who commit private offences use [demotion in] office to replace penal servitude[. . .]. One office of the ninth rank and above replaces one year of penal servitude."

[3.A.3] According to Imperial Edict: "Those who hold supplemental assignments in the Academies and Institutes are permitted, for the purposes of considering these as one titular office, to use either the titular office or the assignment office, and a provisional [memorial shall be sent up] to obtain the Imperial decision."

[3.B] In this case, Su Shih currently holds office as Vice Director of the Bureau of Sacrifices and Auxiliary in the Historiography Office; he moreover has held previous appointment as Erudite in the Court of Imperial Sacrifices.

[3.B.1] Su Shih, in sum, revokes two titular offices and is to be compelled by edict to cease official functions.

[3.B.2] According to Imperial Edict: "When determining a punishment by analogy, if there is concern the punishment may not be appropriate, one petitions for an Imperial decision."

[4.A] Seeing that Su Shih's offense is serious, that [his punishment] involves use of analogy, and moreover that [there is the question of] use of titular office or assignment office, the Imperial decision has been received:

[4.B] Su Shih is to be punished by being appointed Honorary Vice-Director of the Bureau of Waterways taking office as Military Training [Vice-]Commissioner for Huang-chou; his activities are restricted to that prefecture; he is not to affix his signature to official documents.(12)

COMMENTARY

1. A

The document is divided into three sections. Each details, in increasing order of severity, crimes committed by Su Shih that the investigation has revealed. This opening section lists seven miscellaneous infractions not covered by specific statutes, but which the legal authorities at the High Court of Justice obviously felt serious enough to be sentenced under Article 450 of the T'ang Code, "Doing What Ought Not To Be Done." Su Shih's deposition in the Wu-t'ai shih-an contains further information that allows us to reconstruct the particulars of these transgressions.(13)

1) In 1075, one Liu Hsun [UNKNOWN TEXT OMITTTED], Assistant Director of the Palace Library (Pi-shu ch'eng [UNKNOW TEXT OMITTED]), pleading poverty, appealed to Su Shih for money. Su said he had no cash to loan Liu but sent instead a rhinoceros horn in his possession to Wang Shen [UNKNOWN TEXT OMITTED] (1036?-1103?) with the message that the horn belonged to Liu, who was interested in selling it for thirty strings of cash. Wang refused the horn, but still sent the money to Liu.

Wang Shen was a rich nobleman who had married into the imperial family. He was a long-time patron of Su Shih, apparently financed the printing of the Ch'ien-t'ang chi [UNKNOWN TEXT OMITTED], Su Shih's collection of poetry critical of government policy, and was, with Su Shih, tried and punished for this offense.(14)

2) Also in 1075, a Buddhist Master Ssu [UNKNOWN TEXT OMITTED] from the Hsiang-kuo Temple [UNKNOWN TEXT OMITTED] in the capital asked Su Shih to acquire for him through Wang Shen two "purple robe certificates" (tzu-i [UNKNOWN TEXT OMITTED]), official government documents that identified the bearer as a monk of intermediate status. In exchange for this service, Master Ssu gave to Su Shih seven paintings to deliver to Wang. By mutual agreement, Su kept two of these paintings for himself and passed the others on to Wang. Item four below concerns a similar transaction. Normally, the "purple robe" was awarded after examination. The emperor however could award the certificate in lieu of examination, upon petition by the monk through the Bureau of Sacrifices. It is possible that Wang was using his connections to the imperial house to procure "purple robes" in this manner for Buddhist friends of Su Shih. Neither Su's nor Wang's actions, however, seem to have violated any of the regulations specifically covering the issuing of these documents, and the inclusion of items two and four in this list of miscellaneous infractions seems intended simply to document the prolonged and tangled financial connections between Su and Wang.(15)

3) In 1073, Su borrowed 200 strings of cash from Wang to finance the wedding of his niece. In autumn of the same year, he borrowed another 100 strings. This latter sum was never repaid.

4) In 1076, Su, now in Hang-chou, wrote to Wang asking him to procure unspecified certificates from the Bureau of Sacrifices for a maidservant who wished to become a nun and for a Buddhist monk of his acquaintance in Hang-chou. By the autumn of 1077, Su had still not received the documents, so he asked Wang Kung [UNKNOWN TEXT OMITTED] who was travelling to the capital, personally to request them of Wang Shen. Wang did so, writing that Wang Shen had agreed, but that the documents were still not forthcoming.

5) In 1075, Su Shih entrusted thirty-six scrolls, "all with inscriptions by rang masters," to Wang Shen for mounting. Wang paid for all materials and labor.

6) In the autumn of 1077, Li Ch'ing-ch'en [UNKNOWN TEXT OMITTED] (1032-1102) was appointed Junior Compiler in the Historiography Institute (Kuo-shih-yuan pien-hsiu kuan [UNKNOWN TEXT OMITTED]) . At a party in Hsu-chou to see him off, Su Shih composed two poems. In the second of these, he compared himself to Chia [UNKNOWN TEXT OMITTED] (200-168 B.C.), the Han scholar, whose essay "On the Faults of Ch'in" (Kuo Ch'in lun [UNKNOWN TEXT OMITTED] ) Ssu-ma Ch'ien took into the Shih chi. Su Shih acknowledged in his disposition that

at the Court of Emperor Jen-tsung [UNKNOWN TEXT OMITTED] I presented twenty-five essays that discoursed on historical issues. Chia I was a man of Han Wen-ti's time who wrote an essay on the faults of Ch'in that was taken into the Shih chi. I rashly compared myself to Chia I, hoping that Li Ch'ing-ch'en would include my essays in the national history. Therefore I presented this poem to Li Ch'ing ch'en.(16)

It is probable that this poem is singled out for notice among the miscellaneous infractions because, although it contained no slander or criticism of government policy, it was nevertheless something Su "ought not to have done."

7) The last infraction on this list concerns the critical remarks in Su Shih's "Memorial Expressing Gratitude to His Majesty for Appointment as Prefect of Hu-chou," the first text cited in the indictments that initiated the case against him.(17) Memorials of gratitude (hsieh-piao [UNKNOWN TEXT OMITTED]) were pro forma but nevertheless required, in which the recipients of provincial posts thanked the emperor for their appointments. They were written after the official arrived on location at his new post.

1.A.1

It is highly probable that the imperial edict invoked in this subsection was promulgated by Emperor Shen-tsung in the early years of the Wang An-shih reform, in order to suppress opposition to the New Policies. A legal text of 1102 quotes the Compiled Edicts of Hsining (Hsi-ning pien ch'ih [UNKNOWN TEXT OMITTED]), a collection of edicts issued during the Hsi-ning period (1068-77) and edited by Wang An-shih in 1074, to the effect that

no official shall utilize memorials of gratitude unduly to make false accusations and defamations or to gloss over past transgressions; the Censorate is deputed to investigate and report [on such cases].(18)

The Ch'ing-yuan t'iao-fa shih-lei also contains another closely related edict, which, although not cited in the case against Su Shih, contains language reminiscent of the original indictments against him.

Any official who introduces a matter for imperial discussion, then twists the topic around in order to make inflammatory statements, proclaiming them in the capital and the provinces and agitating the social order, shall be sentenced according to the statute on violating an imperial edict.(19)

Either this edict did not yet exist at the time of Su Shih's trial, or the framers of the sentence felt that the first clause specifying that the violation occur in the context of an official remonstrance to the throne did not apply in Su Shih's case.

1.A.2

Universally applicable legal regulations (hai-hsing t'iao-kuan [UNKNOWN TEXT OMITTED]) were regulations applicable in all governmental units.(20)

1.A.3

This subsection cites Article 450 of the T'ang Code, "Doing What Ought Not to be Done."(21) Ordinary violations of this statute resulted in forty blows of the light stick; serious infractions, as in this case, produced eighty blows of the heavy stick.

1.A.4

This subsection determines the final sentence for the seven infractions listed in l.A. It may be useful to review the legal reasoning in subsections 1.A.1 through 1.A.4. Only the seventh crime - utilizing the memorial of gratitude to "agitate the people" - is specifically prohibited by a legal regulation, in this case the imperial edict cited in 1.A.1. But violation of this edict carries no specified punishment, so the framers of Su Shih's sentence decided on punishment by using a universally applicable legal regulation as a bridge to Article 450: when a legal item does not specify punishment, one establishes the severity of punishment according to the guidelines of Article 450 of the T'ang-Sung code - forty blows of the light stick vs. eighty blows of the heavy stick. Su Shih's violation is judged to be "serious," so he received the latter punishment.

The distinction between "private offense" (ssu-tsui [UNKNOWN TEXT OMITTED]) and "public offense" (kung-tsui [UNKNOWN TEXT OMITTED]) was basic to T'ang-Sung law. The distinction rested not solely on offenses committed in private life vs. public office but on that between crimes committed for private gain as opposed to those where no such selfish, "private" motive was involved. Thus offenses committed in public office that resulted in private advantage to the official were judged to be "private offenses."(22) Private offenses were viewed as more serious than public offenses and often resulted in stiffer sentences.

This section fixes the punishment for Su Shih's initial failure to disclose the full truth during the Censorate investigation. The statute cited in subsection 1.B.1 is Article 368 from the T'ang Code, "Not Being Truthful in Replying to an Imperial Decree or in Sending up a Memorial to the Emperor."(23) The "special decree" in this case is the initial imperial order that began the investigation of Su Shih. Since Su Shih's case was "imperially mandated" (chao-yu [UNKNOWN TEXT OMITTED]) and since he did not initially cooperate with this investigation, this failure is here considered a violation of an imperial decree.(24) However, Article 368 provides for a lessening of punishment if the offender cooperates prior to the submission of the memorial that concludes the investigation. Su Shih thus qualifies for a one-degree diminution of the sentence from one year of penal servitude to 100 blows of the heavy stick. There is one-degree difference between the lowest penal servitude sentence (one year) and the highest heavy-stick sentence (100 blows).

2.A

As we shall shortly see, the crimes specified in section 2.A and section 3.A are closely related and were sentenced under obviously related legal regulations. The distinction between the two sections seems to be: 2.A sentences the crime of composing the slanderous texts; section 3.A sentences the crime of their publication and dissemination.

2.A.1

The statute cited in this subsection, clearly the central statute involved in the sentencing of Su Shih, does not appear in the existing editions of either the T'ang or the Sung code. Both codes, however, contain a statute (Article 351 ) against anonymous accusations of criminal wrongdoing, and it is clear that this unknown statute is partially related in spirit to Article 351. Anonymous accusations remained an important concern in successive law codes through the Ch'ing.(25)

The T'ang and Sung codes also contain a statute forbidding the writing or dissemination of "portentous writings" (yao-shu [UNKNOWN TEXT OMITTED]) that "confuse the masses" (huo-chung [UNKNOWN TEXT OMITTED]). The commentary reveals that this statute was primarily directed against those who used prophecies or "the words of ghosts and spirits falsely to bespeak good or evil omens in a manner that involves non-compliance toward the sovereign" (she yu pu-shun [UNKNOWN TEXT OMITTED]).(26) A memorial dated 1039 by the Sung official Wu Yu [UNKNOWN TEXT OMITTED] (1004-58) reveals the sensitivity of the Sung Court forty years before Su Shih's trial to the potential of anonymous portents to stir up political discontent.

Your servant humbly observes that in recent years there has been a profusion of d, by reference to the well-known principle of Chinese law that confession of the crime may diminish the sentence imposed, reduce the sentence stipulated in the statute cited at 2.A.1 Article 37 of the T'ang Code, entitled "Confession of Crimes that Have Not Yet Been Discovered," is a long and intricate disquisition on this principle.(31) However, since no language in the statutes of Article 37 refers directly to Su Shih's situation - confession after an investigation has been in progress but before its conclusion - the "law-finders" of the High Court of Justice made recourse to another well-known principle of Chinese law, that of "analogy" (pi [UNKNOWN TEXT OMITTED]), cited in 2.A.4.

The effect of the imperial edict cited in 2.A.2 is to extend the benefits of confession to those who confess as a result of an investigation. Although this edict is framed in terms of crimes that involve material gain - "illicit goods" - it will be applied by analogy to Su Shih case in 2.A.4.(32)

2.A.3

It should be noted here that the sentencing document cites the Penal Conspectus (Hsing-t'ung), not the "statutes" (lu), because the language quoted in this subsection is abridged from the subcommentary to Article 37.5a, not from the statute itself. The full text of this subcommentary reads:

Criminals who know that someone will accuse them or that a case or an inquiry will take place and so confess of their own accord, as well as persons who have taken flight or whose treasonous actions are already under way who return and confess when the matter is discovered - each shall obtain a reduction of sentence by two degrees.(33)

2.A.4

In this summation of item 2, the "law-finders" of the High Court of Justice have, through the principle of analogy, applied the provisions of the edict cited in 2.A.2 and the subcommentary cited in 2.A.3 to obtain a two-degree reduction for the crime specified in 2.A.1. This two-degree reduction results in a change of the sentence for this crime from two years to one year of penal servitude.

The reference in this subsection to the "lighter offense" probably refers to the practice in T'ang-Sung law of sentencing only the heavier of multiple offenses. The drafters of this document find Su Shih guilty of four offenses: misusing the memorial of gratitude to defame other offlcials (1.A), falsely deposing during the initial investigation (1.B), composing literary pieces that satirized the Court (2.A), and publishing these satirical writings (3.A). The last is judged the "heavy" offense and is the only offense sentenced.(34)

3.A

The third section of the sentencing document concerns the publication and dissemination of satirical and slanderous writings.

3.A.1

The wording of this edict is identical to the statute cited in 2.A.1, save for the addition of the last phrase, "When the circumstances are serious, the Emperor shall be petitioned for a decision." Since there is no indication of textual error at this point in the Wu-t'ai shih-an, one is forced to conclude that this sentence of the edict was a later amendment to the earlier statute. The purpose is obviously to give the throne the option to increase the punishment beyond two years penal servitude when the circumstances of the infraction were judged particularly serious. The flexibility to tailor the severity of the sentence to the particular circumstances of the crime is a basic principle of Chinese law.

3.A.2

This statute is from Article 17 of the T'ang Code, "Using Office to Replace Penal Servitude," which details how officials of various grades may redeem punishment of penal servitude by forfeiture of official rank. Such redemption was one of the basic privileges of Chinese officials. The higher the official rank, the more years of penal servitude that could be redeemed:

All cases involving those who commit private offenses use [demotion in] office to replace penal servitude. One office of the fifth rank and above replaces two years of penal servitude. One office of the ninth rank and above replaces one year of penal servitude.(35)

3.A.3

Chinese officials might simultaneously hold several different classes of official ranks and titles. For the purposes of legal redemption as detailed in Article 17 of the T'ang Code, these titles were divided into two categories: 1) active-duty office (chih-shih kuan [UNKNOWN TEXT OMITTED]), prestige office (san-kuan [UNKNOWN TEXT OMITTED]), and guard office (wei-kuan [UNKNOWN TEXT OMITTED]) were grouped into one category, and 2) honorary office (hsun-kuan [UNKNOWN TEXT OMITTED]) constituted the other. In other words, a guilty official was required to relinquish the highest of any offices he held in the first category; any remaining offices he held in this category could not count toward redemption. But if he also held honorary office, that office could then be applied toward a further "buy-down" of his punishment.(36)

The Sung imperial edict cited in this subsection attempted to adapt into this T'ang system the Sung practice of granting some officials an "assignment office" (chih [UNKNOWN TEXT OMITTED]) in addition to their regular titular office (kuan [UNKNOWN TEXT OMITTED]). Sung assignment offices were concurrent, nominal appointments to the literary institutes and academies of the capital.(37) The purport of the edict cited in this subsection is apparently to allow Sung officials who held assignment office to consider this office as a second, separate office for the purpose of redemption. The Ch'ing-yuan t'iao-fa shih-lei contains an edict that, if not the actual edict cited in this subsection, is certainly related to it.

All those who use office to redeem penal servitude first relinquish currently held office and then the highest previously held office. Those who resign from office (mien-kuan [UNKNOWN TEXT OMITTED]) resign currently held office as well as their highest previously held office. Those who resign from occupied office (mien so-chu kuan [UNKNOWN TEXT OMITTED]) resign only currently held office.

Those who carry assignment office use their assignment office to count as one separate [titular] office. They may use the titular office or the assignment office and request the Emperor for a decision.(38)

3.B

This section relates the edicts and statutes cited in 3.A to the specific offices Su Shih held at this time: Vice Director of the Bureau of Sacrifices (Tz'u-pu yuan-wai-lang [UNKNOWN TEXT OMITTED]) and Auxiliary in the Office of Historiography (Chih shih-kuan [UNKNOWN TEXT OMITTED]). The former is a titular office, designating Su Shih's personal rank for purposes of salary determination - level 7a (cheng ch'i p'in [UNKNOWN TEXT OMITTED]); the latter is an assignment office and was unranked. Neither concerns his ch'aich'ien [UNKNOWN TEXT OMITTED] or "commission," the functional office that Su Shih last held, prefect of Hu-chou, since he had been relieved of this office at the time of his arrest. In shon, the demotion of Su Shih's rank contained in the sentence is solely a demotion in personal rank.(39) He held no "commission," a position with actual duties, between his removal as prefect of Hu-chou in 1079 and his appointment as prefect of Teng-chou in 1085. His highest previously held personal rank office was Erudite in the Court of Imperial Sacrifices (T'ai-ch'ang poshih [UNKNOWN TEXT OMITTED]), graded at 8a (cheng pa p'in [UNKNOWN TEXT OMITTED]).

3.B.1

In order to redeem two years of penal servitude, Article 17 of the T'ang Code requires the criminal to relinquish one office of grade five or above or two offices between grades nine and six. For Su Shih, Article 17 in conjunction with the edict cited in subsection 3.A.3 meant that he relinquished his currently held office as Vice Director of the Bureau of Sacrifices as well as his highest previously held office as Erudite in the Court of Imperial Sacrifices. Apparently, the law finders were unsure how to deal with Su Shih's assignment office as Auxiliary in the Historiography Office. Simply put, did the edict cited in 3.A.3 allow Su Shih to count this assignment office as one of the two titular offices he was required to relinquish, thus preserving his personal rank at level 8a by virtue of his previously held office of Erudite in the Court of Imperial Sacrifices? Or must he relinquish both titular offices, causing an even further demotion in personal rank?(40)

This legal regulation, cited here as an edict, reproduces verbatim an item designated as an ordinance (ling) in the Ch'ing-yuan t'iao-fa shih-lei:

Whenever there is no directly applicable legal item that covers the crime being sentenced and when the punishment is determined by analogy, if there is concern the punishment may not be appropriate, one petitions for an Imperial decision.(41)

4.A

This section summarizes those previously cited legal regulations that indicate the need for an imperial decision:

3.A.1 The Emperor is to be petitioned for a decision "when the circumstances are serious" in a case of anonymous literary pieces that slander the Court.

3.A.3 A provisional memorial to obtain the imperial decision is necessary to settle the issue of use of assignment office versus titular office for the purpose of redemption of penal servitude.

3.B.2 A petition for imperial decision is necessary when, in a case where punishment is determined by use of analogy, there is concern the punishment may not be appropriate.

4.B

This concluding section details the results of the imperial decision and is the final sentence that concluded the case against Su Shih. This sentence was conveyed by imperial edict. The independent transmittal of this edict in the Sung hui-yao allows us to confirm the details of the sentence.(42) Penetrating beneath the bureaucratic and legal formulation of the sentence, we find that the Emperor has resolved each of the three questions the law-finders put to him.

In effect, the sentence is a masterful compromise. The original indictments against Su Shih had called for the death penalty, and this call was renewed when the High Court of Justice ruled that Su Shih's crimes should be pardoned as a result of the amnesty of November 1079. In fact, as we have seen, Article 133 of the Vietnamese Le Code called for death by decapitation for severe infractions of the statute against defamation of the Court. And Su Shih himself feared initially that if the affair went badly for him, he might face the death penalty.

But from Su Shih's demeanor immediately upon release from Censorate detention, we know that, far from feeling remorse, he felt rather as though he had "gotten off."(43) The Emperor, as was his self-declared intention all along, did not regard Su Shih's crime as a "serious" infraction of the statute against defamation, so he concurred in the normal punishment of two years penal servitude, to be redeemed by relinquishing two titular offices. It is clear Su Shih relinquished his "currently held office" as Vice Director of the Bureau of Sacrifices. But the sentence of two years penal servitude required that he relinquish a second office, either the assignment office in the Historiography Office or his "previously held office" as Erudite in the Court of Imperial Sacrifices, at the discretion of the Emperor. Although the assignment office was unranked, its surrender would have offset and thus protected further reduction in personal rank that loss of his former Erudite post at level 8a would have entailed.

It would seem that Su Shih's office as Vice-Commissioner of Military Training (T'uan-lien fu shih [UNKNOWN TEXT OMITTED] which carried rank of 8b (fs'ung pa p'in [UNKNOWN TEXT OMITTED]), was not a functional office (i.e., a real job), but rather his personal rank office, despite the order to take up physical residence at Huang-chou. There are instances during this period of demoted officials who were appointed Vice-Commissioner of Military Training for a given prefecture but ordered to take up residence in another prefecture.(44) In these cases, the Vice-Commissioner of Military Training can hardly have been a functional office. Furthermore, Su Shih clearly had no official duties in Huang-chou and was even expressly forbidden to sign official documents. Lastly, the 8b rank of this office was the precise rank Su Shih should have received as a result of the loss of the Erudite office at level 8a. In short, it seems Su Shih lost all three offices - his currently held titular office, his highest previously held titular office, and his assignment office.

On the other hand, a Vice-Director of the Bureau of Waterways (Shui-pu yuan-wai-lang [UNKNOWN TEXT OMITTED]) carried rank of 7a, the same personal rank Su Shih held as Vice Director of the Bureau of Sacrifices before the trial. It is difficult in this context to determine the force of the qualification of this title as chien-chiao [UNKNOWN TEXT OMITTED]. Both Hucker and Kracke agree that the term designated in the Sung a kind of supplementary "honorary" appointment, and the list of nineteen "honorary offices" (chien-chiao kuan) in the Sung-shih confirms this understanding.(45) Vice-director of the Bureau of Waterways is the lowest-ranking of these nineteen honorary posts.

Now, Umehara Kaoru has noted in the structure of the Sung bureaucracy the existence of established courses or promotion tracks through the system. For example, rank 7a could be designated by no fewer than twenty-four titular offices, all vice-directorships (yuan-wai-lang). Yet each track carried implications as to social status, method of entry into the service, past career performance, and expectations of future career prospects.(46) Su Shih's progress from Erudite in the Court of Imperial Sacrifices to Vice-Director of the Bureau of Sacrifices placed him in the middle of the mainstream of these promotion tracks - a routine, respectable career.

Vice-Director of the Bureau of Waterways, on the other hand, was a specific track reserved for officials who had been reinstated after punishment for graft or other crimes.(47) However, the "honorary" status of Su Shih's appointment to this office is unique in the demotion edicts of this period.(48) In brief, it seems Emperor Shen-tsung compensated Su Shih for his loss of all three offices and the resulting demotion to rank 8b by building into the sentence the first elements of his rehabilitation.(49) Appointment as Vice-Commissioner of Military Training carried rank of 8b, a clear demotion from his former rank at 7a. Yet the "honorary" office, even though it designated his official misconduct, made it possible for him to resume his official career with no loss of personal rank: his "honorary" 7a rank would become his actual personal rank once his confinement at Huang-chou was over.(50)

The terms of the sentence also specify that Su Shih's "activities were to be restricted to that province." This phrase paraphrases the term an-chih [UNKNOWN TEXT OMITTED] "to be peaceably established." This is the middle of three terms that specified various degrees of confinement to designated jurisdictions - a form of house arrest, in modern parlance. The lightest of these was chu-chu [UNKNOWN TEXT OMITTED] "to dwell in a fixed location." The most severe was pien-kuan [UNKNOWN TEXT OMITTED] " surveillance and restriction."(51) A regulation in the Ch'ing-yuan t'iao-fa shih-lei reveals that the common requirement of those condemned to "peaceable establishment" and severer forms of confinement was not to leave the jurisdiction:

All those who have been punished by demotions in rank from peaceable establishment (an-chih) through exile are subject to regular inspection and verification of their presence in their prefectures of confinement so as to prevent them from leaving the prefectural city. The names of those who flee or who are missing must be reported to the Department of State Affairs.(52)

It is certain that Su Shih was subject to this surveillance. Shortly after arriving in Huang-chou, he declined an invitation to visit friends across the river in Wu-ch'ang [UNKNOWN TEXT OMITTED], writing "I am afraid some busybody will blow the matter out of proportion and say that I have dared to leave my an-chih jurisdiction; and if word reaches the capital, it will be no small matter."(53)

Finally, the last phrase of the sentence, "he is not to affix his signature to official documents" (pu te ch'ien-shu kung shih [UNKNOWN TEXT OMITTED]) probably refers in a broad manner to the many notary functions an active-duty official had to perform. The phrase ch'ien-shu "to affix one's signature to a document" occurs in the titles of a number of officials with specific notary functions in several agencies of Sung government.(54) And the stipulation that a demoted official is "not to affix his signature to provincial affairs" (pu ch'ien-shu chou shih [UNKNOWN TEXT OMITTED]) occurs in other punishment demotions during this period.(55)

CONCLUSION

Conclusions about the significance of this law-finding from Su Shih's case may be divided into two areas: first, its value as evidence for questions concerning the development of Sung dynasty law; and second, its effect on the life and career of Su Shih.

Students of Sung law agree that a major feature in the development of Sung legal practice was an increasing reliance on imperial edicts (ch'ih) at the expense of the statutes (la) codified in the Sung Penal Conspectus.(56) The crucial period in this transition was the reign of Emperor Shen-tsung, specifically the middle years of the 1070s, when a new format for compendia of legal regulations was devised.(57) Peter Seidel calls attention to a passage from the Sung-shih that describes the prominence of the edict in this new format:

Anything in the twelve sections [of the Sung Penal Conspectus] that touched upon the light stick, the heavy stick, penal servitude, exile, or death (i.e., the five punishments), the fixing of the name of the punishment and the lightness of severity of the same, was the concern of the imperial edicts.(58)

This passage would seem to indicate that crimes were to be sentenced in accordance with the latest issued imperial edict that touched upon the specific crime, instead of the sentence specified under the statute in the Sung Penal Conspectus.

Now, this situation is mirrored exactly in the sentence crafted for Su Shih. Although there was a statute in force against slandering the court in anonymous writings (cited in 2.A.1), and although this statute was cited against part of his crime, he was sentenced according to an imperial edict that slightly amended that statute (cited in 3.A.1). The actual sentence in this case turns out to be identical in both statute and edict - two years penal servitude - but the construction of the sentencing document so as to make the edict the deciding applicable legal regulation certainly reflects the spirit of Shen-tsung's legal reforms.

The proliferation of edicts during the last half of the eleventh century presented formidable problems of access and organization for the practicing law-finder. One reaction to this swift expansion of written law was the tendency to defer the increasingly difficult choice of which edict to apply in a given case and request an imperial decision.(59) This reaction is apparent in Su Shih's sentence. As we have seen above, the law-finders three times (3.A.1; 3.A.3; 3.B.2) make reference to edicts that call for an imperial decision - although, admittedly this circumspection may have also arisen from the delicate political nature of the case.

Finally, leaving aside for a moment the Sung legal and bureaucratic technicalities of the Wu-t'ai shih-an, the modern reader is bound to ask whether, based on this evidence, Su Shih "got a fair trial." To such a simple and ultimately naive question the simple and ultimately naive answer would have to be yes. We should remember that in the modern Anglo-American system of jurisprudence, the wrong-doer must be first charged with violation of a specific law before the trial may proceed. The Sung system was different. Allegations of wrong-doing were first investigated, and only when this investigation was complete, were violations of specific laws cited and sentenced. By separating the fact-finding and law-finding functions, which remain unified in the Anglo-American system, the theoreticians of Sung jurisprudence hoped to ensure the fairness of the entire procedure. Corruption entered the system when this separation of functions was not maintained, specifically when the fact-finders found facts and "polished" confessions that could then only lead to preordained law-findings.(60)

There is evidence of this corruption of process in Su Shih's trial. One of the original Censorate indictments against Su Shih alluded to Article 122 of the T'ang Code "Denunciation of the Imperial Chariot," prohibiting critical comments directed against the emperor and specifying death by decapitation for severe infractions. Although fully justified by the standards of Anglo-American law, this early suggestion of which statute Su Shih's actions might have violated was an obvious him to the High Court of Justice as to how the Censorate would like the case resolved; such a suggestion ran counter to Sung legal theory and practice. Likewise, the Censorate call for the death penalty after the High Court of Justice had found law on the case demonstrates the Censorate's intent to refocus attention, even at that late date in the proceedings, on Article 122.(62)

In spite of these pressures, the document studied above would suggest that, given the context of the Sung legal system, the High Court of Justice acted remarkably well to ensure that Su Shih "got a fair trial." The law-finders dismissed consideration of Article 122, which the Censorate had inappropriately suggested. They also declined to suggest separate prosecution for the minor infractions listed in section 1.A and discovered during the fact-finding. They chose instead to pursue the middle ground, invoking appropriate edicts and statutes against the obvious crimes Su Shih had committed - misusing the memorial of gratitude, initially withholding information during an official inquiry, and writing and publishing texts that defamed the court and other officials. Maintaining an obvious distance from the fact-finders at the Censorate, they both crafted their finding to afford the Emperor the discretion to settle the case as he wished and also tactfully cited the law to suggest the limits under which he should do so.

(1) "Poetry and Politics in 1079: The Crow Terrace Poetry Case of Su Shih," Chinese Literature: Essays, Articles, Reviews 12 (1990): 15-44. The expression "Crow Terrace" as a euphemism for the Censorate dates from the Han dynasty, when the cypress trees in the Censorate courtyard attracted thousands of nesting crows. See Han shu (Peking: Chung-hua, 1962), 83.3405. The present paper concerns only the legal aspects of the document under review and does not concern other issues involved in Su Shih's trial. It does not address the larger moral issue of Su Shih's ultimate guilt or innocence. Modern Su Shih biographers who have used the Wu-t'ai shih-an as source material, for instance, Lin Yutang (The Gay Genius [New York: John Day, 1947], 187-204), routinely assume Su Shih's moral superiority over his accusers and accept at face value Su Shih's assertions after the trial that his writings fell within the bounds of acceptable criticism. Whatever the truth of such assumptions and assertions, they are outside the scope of this article. I am at present preparing a larger study that will address in detail the historical, ethical, and literary issues of Su Shih's trial. I would like gratefully to acknowledge the assistance of the National Endowment for the Humanities, whose fellowship supported the initial research for this article. (2) This synopsis is based on Miyazaki Ichisada, "So-Gen jidai no hosei to saiban kiko" (Law and Judicial System in the Sung-Yuan Period), Toho gakuho 24 (1954): 115-225, esp. pp. 136-53. A revised English version of this material appeared as "The Administration of Justice During the Sung Dynasty," in Essays on China's Legal Tradition, ed. Jerome Alan Cohen, R. Randle Edwards, and Fu-mei Chang Chen (Princeton: Princeton Univ. Press, 1980), 56-75. See also Hsu Taolin, "Sung lu chung te shen-p'an chih-tu" (The Sung Trial System as Prescribed in the Fundamental Statutes of the Sung). Tung-fang tsa-chihfu-k'an 4.4 (1970): 18-28, and especially "Chu-yen fen-szu k'ao" (Note on the Separate Function of Investigation and Decision), Tung-fang tsa-chihfu-k'an 5.5 (1971): 40-45, translated into English as "Separation Between Fact-Finding (Trial) and Law-Finding (Sentencing) in Sung Criminal Proceedings," Sung Studies Newsletter 6 (1972): 3-18. (3) This Sung-dynasty separation of the legal functions of the Censorate and High Court of Justice disappeared from the Chinese legal system in the Yuan but was preserved in the legal institutions of traditional Vietnam. See Nguyen Ngoc Huy, "The Penal Code of Vietnam's Le Dynasty," in State and Law in East Asia: Festschrift Karl Bunger, ed. Dieter Eikemeier and Herbert Franke (Wiesbaden: Harrassowitz, 1981), 239-40. (4) As I have shown in my earlier article ("Poetry and Politics," 17-18, esp. n. 6), although all the material in the Wu-t'ai shih-an derives from the original Censorate dossier on the case, the surviving material in no way represents the complete, original dossier. The present text is rather a later reconstruction of the dossier based on the fragmentary materials then available to an unknown editor not overly concerned with legal niceties. (5) Li Tao, Hsu Tzu-chih t'ung-chien ch'ang-pien (Che-chiang shu-chu 1881 ed., rpt. 5 vols., Shanghai: Ku-chi, 1986), 301.13a; this text also appears in Sung hui-yao chi-kao (rpt. Peking: Chung-hua, 1957), chih-kuan, 66.10b (= p. 3873b). (6) The original text has not survived; passages are quoted in Hsu tzu-chih t'ung-chien ch'ang-pien, 301.13a-14a. (7) This amnesty was declared on the occasion of the approaching death of the Queen Mother, Empress nee Ts'ao (1016-79), wife of Emperor Jen-tsung (r. 1023-63); see Hsu tzu-chih t'ung-chien ch'ang-pien, 300.13b and Shen Chia-pen, Li-tai hsing-fa k'ao, 4 vols. (rpt. Peking: Chung-hua, 1985), 2:631. (8) Brian E. McKnight, The Quality of Mercy: Amnesties and Traditional Chinese Justice (Honolulu: Univ. of Hawaii Press, 1981), 74-76. (9) Miyazaki, "So-Gen jidai no hosei to saiban kiko," 139-40, and "The Administration of Justice," 63-64. For the text of the stone inscription, see Chiang-su chin-shih chih (Monograph on the Epigraphy of Kiangsu Province) (Kiangsu, 1927), 15.31a-38b, esp. 32a/b. (10) "From Statute to Precedent: An Introduction to Sung Law and Its Transformation," in Law and the State in Traditional East Asia, ed. Brian E. McKnight (Honolulu: Univ. of Hawaii Press, 1987), 111-31. (11) "From Statute to Precedent," 117. (12) Wu-t'ai shih-an (Ch'an-hua-an ts'ung-shu [UNKNOWN TEXT OMITTED] ed.), 43a-44b. (13) Wu-t'ai shih-an, 8ab, 11a-12b. (14) See Hartman, "Poetry and Politics," 20, 22 n. 25. (15) For regulations on the documentation of Buddhist and Taois monks in the Sung, see W. Eichhorn, Beitrag zur rechtlichen Stellung des Buddhismus und Taoismus im Sung-Staat: Ubersetzung der Sektion "Taoismus und Buddhismus" aus dem Ch'ing -yuan T'iao-fa shih-lei (Leiden: Brill, 1968), 6-28; and Kenneth K. S. Ch'en, Buddhism in China (Princeton: Princeton Univ. Press, 1964), 241-48. (16) Wu-t'ai shih-an, 15b-16a. For the poems see Wang Wen-kao, ed., Su Shih shih chi (rpt. Peking: Chung-hua, 1982), 15.761-63. (17) See Hartman, "Poetry and Politics," 16. (18) Sung hui-yao chi-kao, I-chih, 7.8a (= p. 1962c). On the Hsi-ning pien ch'ih, see Shen Chia-pen, Li-tai hsing-fa k'ao, 2:991-92. The memorial of 1102 notes that since officials are not required to send copies of their "memorials of gratitude" to the Censorate, that agency has had difficulty enforcing this edict. The recent reassignment of the Yuan-yu partisans has once again given them the opportunity to write "memorials of gratitude" that contain slanderous condemnations of the Shao-sheng (1094-98) government. The memorial proposes that the existing edict be amended to require officials to send copies of their memorials of gratitude to the Censorate; the edict was so amended. This edict appears in similar form in the Ch'ing-yuan t'iaofa shih-lei [UNKNOWN TEXT OMITTED] (Classified Laws of the Ch'ing-yu'an Period), which describes the laws in effect during the period 1195-1200: "All officials who submit memorials that arbitrarily contain false accusations or defamations or gloss over past transgressions shall be sentenced to one hundred blows of the heavy stick." See Hsieh Shen-fu, ed., Ch'ing-yuan t'iao-fa shih-lei (rpt. Taipei: Hsin-wen-feng, 1976), 30. One will note that sometime between 1102 and the end of the twelfth century the scope of this edict was broadened and a specific punishment attached. (19) Ch'ing-ydan t'iao-fa shih-lei, 30. Article 112 in the T'ang Code (T'ang-lu shu-i [Peking: Chung-hua, 1983], 197-98; Sung Hsing-t'ung [Peking: Chung-hua, 1984], 157) sentenced those who willfully opposed an imperial order to two years' penal servitude, inadvertent violators to 100 blows of the heavy stick. (20) For hai-hsing [UNKNOWN TEXT OMITTED] as a Sung term denoting items in the four categories of Sung legal provisions (edicts, ordinances, regulations, and specifications) that were applicable everywhere in the state, see Chao Sheng (?-1236+), Ch'ao-yeh lei-yao (TSCC ed.), 4.41. (21) T'ang-lu shu-i, 522; Sung hsing-t'ung, 447. (22) For a detailed description of this distinction see the commentary to T'ang Code, Article 17: T'ang-lu shu-i, 44ff.; Sung hsing-t'ung, 26ff.; tr. Wallace Johnson, The rang Code, vol. I: General Principles (Princeton: Princeton Univ. Press, 1979), 112ff. (23) T'ang-lu shu-i, 459; Sung hsing-t'ung, 389. (24) Sung-shih (Peking: Chung-hua, 1977), 200.4997 defines imperially mandated cases as "investigations of great treachery and evil, and so events not often witnessed." (25) T'ang-lu shu-i, 439 40; Sung hsing-t'ung, 370-73; George Thomas Staunton, tr., Ta tsing leu lee; Being the Fundamental Laws, and a Selection from the Supplementary Statutes, of the Penal Code of China (London: T. Cadell and W. Davies, 1810), 360-61; P.-L.-F. Philastre, tr., Le Code Annamite, 2 vols. (Paris: Ernest Leroux, 1909), 2:395-99. (26) T'ang-lu shu-i, 345; Sung hsing-t'ung, 289-90. (27) Hsu Tzu-chih t'ung-chien ch'ang-pien, 123.7a; Chao Juyu (1140-96), Kuo-ch'ao chu-ch'en tsou-i (rpt. Taipei: Wenhai, 1970), 98.9b (= p. 3302). (28) Hsu Tao-lin, "Sung-lu i-wen chi-chu" (Missing Passages from Sung Statutes, Collected and Annotated), Tung-fang tsa-chih fu-k'an 4.3 (September 1970): 18-22. (29) Ta Van Tai and Nguyen Ngoc Huy, The Le Code: Law in Traditional Vietnam, 3 vols. (Athens, Ohio: Ohio Univ. Press, 1987), 1:12-20. (30) The Le Code, 1:143. Cf. also Raymond Deloustal, "La Justice dans l'ancien Annam," BEFEO 9 (1909): 778. (31) T'ang-lu shu-i, 101-6; Sung hsing-t'ung, 71-78; tr. Johnson, The T'ang Code, 201-10; this material was first translated and studied by George Kennedy, Die Rolle des Gestandnisses im chinesischen Gesetz (Berlin, n.p.: 1939). (320 For a study of tsang [UNKNOWN TEXT OMITTED] "illicit goods," see Geoffrey MacCormack, "The Concept of Tsang in the T'ang Code," Revue internationale des droits de l'antiquite 33 (1986): 25-44. (33) T'ang-lu shu-i, 104; Sung hsing-t'ung, 74; cf. Johnson, 207. (34) See Article 45 of the rang Code, "The Heavier of Two Punishments Is Sentenced," for details: T'ang-lu shu-i, 123-30; Sung hsing-t'ung, 89-94; Johnson, 235-46. (35) T'ang-lu shu-i, 44; Sung hsing-t'ung, 26; Johnson, 112-13. (36) T'ang-lu shu-i, 45-46; Sung hsing-t'ung, 26-27; Johnson, 114-17. (37) Charles O. Hucker, A Dictionary of Official Titles in Imperial China (Stanford: Stanford Univ. Press, 1985), 499, calls them "nominal supernumerary appointments." For a detailed study of the Sung system of assignment offices see Umehara Kaoru, Sodai kanryo seido kenkyu (Studies in the Sung Bureaucratic System) (Kyoto: Dohosha, 1985), 329-422; also useful is Li Ch'ang-hsien, "Sung-tai wen-kuan t'ieh-chih chih-tu" (The System of Civil Assigmment Offices in the Sung), Wen shih 30: 109-35. (38) Ch'ing-yuan t'iao-fa shih-lei, 540 41. On the distinction between resignation from office and resignation from occupied office, see Johnson, 26-27. (39) For an analysis of the Sung personal rank system, see Winston W. Lo, An Introduction to the Civil Service of Sung China (Honolulu: Univ. of Hawaii Press, 1987), 141-70. For the grades of offices in the personal rank system, see Sungshih, 168.4014-17; and Umeharu, Sodai kanryo seido kenkyu, 37-79. (40) Precisely this point is made in the Ho-nan Shao-shih wenchien ch'ien-lu [UNKNOWN TEXT OMITTED] of 1151: in former times, before assignment offices were terminated in 1080, assignment appointments added income to official salaries and provided an extra buffer of protection to officials who fell afoul of the law; these benefits ended with the reform of the assignment office system in 1080. See Li Ch'ang-hsien, 127. (41) Ch'ing-yuan t'iao-fa shih-lei, 498. (42) Sung hui-yao chi-kao, chih-kuan, 66.10 a/b (= p. 3873a/b). The Sung hui-yao text of Su Shih's sentence indicates that the character fu [UNKNOWN TEXT OMITTED] has been dropped from the Wu-t'ai shih-an text: he was appointed Vice-Commissioner of Military Training for Huang-chou, not Commissioner. Su Shih's own memorial of gratitude from Huang-chou confirms the full details of his sentence, and these concur exactly with the Sung hui-yao text. See K'ung Fan-li, ed.. Su Shih wen chi (Peking: Chung-hua, 1986), 23.654. (43) See his two poems written upon release from detention, Su Shih shih chi, 19.1005-6; Burton Watson, tr., Su Tung-p'o (New York: Columbia Univ. Press, 1965), 73; Lin Yutang, Gay Genius, 203-4. (44) Sung hui-yao chi-kao, chih-kuan, 65.35b (= p. 3864b), 65.40b (p. 3866d, twice), 66.19a (= p. 3877c). (45) Hucker, 146; Edward A. Kracke, Jr., Translations of Sung Civil Service Titles (rpt., Taipei: Chinese Materials Center, Inc., 1978), xii, 4; Sung-shih, 169.4062-63. (46) Sodai kanryo seido kenkyu, 3-184. This material has been summarized into a lucid English article: Umehara Kaoru, "Civil and Military Officials in the Sung: The Chi-lu-kuan System," Acta Asiatica 50 (1986): 1-30. See especially the chart of the various career tracks on pp. 4-5. (47) Sodai kanryo seido kenkyu, 56 and reference at n. 139 to Sung-shih, 169.4025. (48) This statement is based on a review of the edicts of demotion for the years 1047-86, contained in Sung hui-yao chi-kao, chih-kuan, 65.1a (= p. 3847a) through 66.31d (= p. 3883d). (49) Winston Lo notes with reference to a related appointment pattern that honorary appointments to provincial positions were sometimes given as the first sign of rehabilitation to officials who had suffered total disbarment from office; see Introduction to the Civil Service of Sung China, 112. (50) This in fact happened. In the summer of 1085 Su Shih was appointed prefect of Teng-chou with the personal rank of ch'ao-feng lang [UNKNOWN TEXT OMITTED], equivalent to rank 7a. See Su Shih wen chi, 23.659. (51) For these three grades of confinement, see Chao Sheng, Ch'ao-yeh lei-yao, 5.54 and the references in Shen Chia-pen, Li-tai hsing-fa k'ao, 1:277-79. The latter's notes show that during the reign of Shen-tsung the combination of demotion in personal rank, appointment as Vice-Commissioner of Military Training to a specific prefecture, and an-chih confinement to either that prefecture or another prefecture was a common form of punishment for officials. He notes that an-chih "was not exile, penal servitude, or demotion, yet it resembled all these." (52) Ch'ing-yuan t'iao-fa shih-lei, 522. (53) Su Shih wen chi, 53.1567. (54) Hucker, 154. (55) Sung hui-yao chi kao, chih-kuan, 65.1b (= p. 3847b), 65.9a (= p. 3851a), 65.24b (= p. 3858d), and 65.26b (= p. 3859d). (56) Miyazaki, "The Administration of Justice," 57; McKnight, "From Statute to Precedent," 113-14; and particularly, Peter Seidel, "Das Zurucktreten des Gesetzbuches zugunsten der Erlasse im Recht der Sung-Zeit" in State and Law in East Asia: Festschrift Karl Bunger, 207-14. (57) On this new format, see McKnight, "From Statute to Precedent," 122-23. (58) Sung-shih, 199.4964; Seidel, 210. (59) See McKnight, "From Statute to Precedent," 125. (60) See Hsu Tao-lin, "Chu-yen fen-szu k'ao" (cited in note 2 above), 44 and "Separation between Fact-finding (Trial) and Law-finding (Sentencing) in Sung Criminal Proceedings," 13-15. (61) Wu-t'ai shih-an, 2b; T'ang lu shu-i, 207-8; Sung hsing-t'ung, 166. (62) Su Shih's conviction under Article 122, one of the "ten abominations" (shih-o [UNKNOWN TEXT OMITTED]) would have deprived him of all benefits of the amnesty of 11 November 1079 and resulted in an immediate death sentence. See Hartman, "Poetry and Politics," 18-19.
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Author:Hartman, Charles
Publication:The Journal of the American Oriental Society
Date:Apr 1, 1993
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