It was both the spirit and the intent of Han Fei’s legalism, as it came, from time to time, to dominate Chinese law, that punishment for all crimes would be harsh and universal.
With seemingly no exceptions, every nation and culture in world history has experimented with cruel and unusual punishment; some still doing so, but most free and democratic societies now banning the practice.
China is unusual in that a state policy of isolation, right up to the mid-1970s, made it difficult for Chinese people and policymakers to compare and evolve their law. A century of considerable political unrest starting in the mid-nineteenth century (and eventually leading to Communism) exacerbated matters.
Confucius urged the Chinese to exercise restraint in the imposition of law upon the people. A couple of hundred years after his death, legal philosophers of China did not like what they saw. Led by political leaders and jurists such as Han Fei and Li Si, a movement called legalism was born in with it, an inhumane, bloody legacy.
The whole point of legalism as it, from time to time, dominated Chinese law, was cruel and unusual punishment. As Li Si wrote 2,200 years ago:
“Only an intelligent ruler is capable of applying heavy punishments to light offenses. If light offenses carry heavy punishments, one can imagine what will be done against a serious offense. Thus, the people will not dare to break the laws.”
As Archdeacon of Hong Kong, John Henry Gray (1823-1890) traveled extensively through China in the mid-1800s. He writes:
“Trials and Chinese courts of law are conducted by torture. The courts ... are open to the general public; but their cruelties for which they are notorious have left them deserted by visitors, so that they are now practically courts of justice with closed doors.”
“District rulers ... and chief justices are the officials ... appointed to preside in courts for the administration of justice in all cases which may come before them, whether of a civil or criminal nature.
“The judge when conducting a trial sits behind a large table, which is covered with a red cloth. The prisoner is made to kneel in front of the table.... He is regarded as guilty until he is proving to be innocent. No one (is) allow to sit at the judge... The prisoner is called upon to plead either guilty or not guilty. As it is a rare thing for Chinese prisoners - mercy been conspicuously absent in the character of their judges - to plead guilty, trials are very numerous. During the course of the trial, the prisoner is asked a great many leading questions which have a tendency to criminate him. Should his answer be evasive, torture is at once resorted to....”
The form of torture is to wind and twist the arms around a pole whilst the accused is beaten, with the torture increasing in the event that the accused “persists in declaring his innocence.”
Witnesses are understandably reluctant to come forward as they, too, are exposed to torture at the discretion of the judge.
Petty crimes such as minor theft, are usually punished by public whipping through the streets of the local community. Another option is caning in the presence of the sentencing judge.
China is famous for its varieties and use of wooden collars and cages, called cangue (pictured, right).
With this form of punishment, a large wooden collar is a fixed around the neck of a convict and it must be worn day and night for a period varying between two weeks to three months. During daylight hours, the offender must stand in a public place. Sometimes, two convicts are set in the same cangue.
Another option for a sentencing judge is having a chain tied around the convict’s neck, to which is attached a heavy stone.
In his teachings, although he would have found the cruelty of the criminal law revulsive, Confucius preached attention to detail. This attention to detail became a commonplace throughout Chinese society. For example, in the construction of houses, and owner had to pay attention and never exceed the number of rooms appropriate to his rank in society. There were specified expectations as to color and figurines.
Detail was not spared even for the harshest penalty in Chinese law circa 1850, reserved for those having confessed or found guilty of treason or sedition.
A fortunate offender would only lose his ears. For others, the criminal codes provided for a “cut and kill” method of capital punishment, on a sliding scale. A number of cuts was set out in law, including the detail. For example, Gray writes that Ling-chee meant finding the convict two across and cutting him alive, into:
“... 120 or 72 or 36 or 24 pieces. Should there be extenuating circumstances, his body, as a mark of imperial clemency, is divided into eight portions only.”
The penal regulations oblige the jailer to cut in a specified order; eye-brows first, then the shoulders, the breasts, the arms, the legs and then, finally, the heart.
This sequence is only for those who have been sentenced to the 24-cut variety of Ling-chee.
The Chinese will often also document the execution in all its glorious detail, leaving behind a bizarre record of time, weights and measures.
Other convicts were exiled to remote areas of China sentenced to hard labour for life. Some had their names and crimes tattooed on their face.
While Gray wrote his book in the 1800s, given the long-standing policy of isolationism, the punishments can be safely assumed to have been tested over centuries and extant in China since at least the days of the Qin Code of 200 BC.
Sadly, the historical record of the Chinese in this regard is no better or worse than that of the English or most other societies (see, for example, The Law's Hall of Horror and Crime and Punishment in Medieval England).
References:
- Duhaime, Lloyd, China - A Legal History, published at duhaime.org/LegalResources/LawMuseum/tabid/345/articleType/ArticleView/articleId/363/China--A-Legal-History.aspx
- Duhaime, Lloyd, Crime and Punishment in Medieval England, published at duhaime.org/LegalResources/LawMuseum/tabid/345/articleType/ArticleView/articleId/120/Crime--Punishment-in-Medieval-England.aspx
- Gray, J. H., China - A History of the Laws, Manners, and Customs of the People (London: Macmillan and Co., 1878).