No 12

Sex & Crime in Ancient China – Facts or Fiction?

A manuscript from the second century BCE provides insights into the dark side of life in ancient China: twenty-two excerpts from case files and historical didactic texts focusing on particular judicial officials shed light on diverse crimes such as theft and extortion, treason and fornication, murder and manslaughter and on how these offences were tried. But the manuscript raises numerous questions. Quite a few of the cases described would be well suited as plot for a movie, and sometimes a reader might ask himself: Are these records related to real legal cases, or are they mere fiction?

Until the last decades of the previous century, the legal system of early imperial China was only fragmentarily known. However, archaeological excavations carried out in the seventies and eighties revealed spectacular new evidence. Soon it became clear that the legal system of early imperial China was far more complex and modern as previously assumed. While reading the many newly found legal regulations is hardly more exciting than modern law codes are for non-specialists, a particular manuscript found in tomb No. 247 of Zhangjiashan (Hubei province) gives fascinating insight into actual legal cases and daily life at the beginning of the Han dynasty (206 BCE–220 CE). Since no parallel texts are known so far, the manuscript is a truly unique object of research.

Fig. 1: The title Zouyan shu was found on the back of the last bamboo slip of the roll (slip 228v).

The manuscript consisting of 228 bamboo slips contains a collection of twenty-two excerpts from case files and historical didactic texts. Together with mathematical and medical manuscripts, it was put in the tomb of a minor official who died around 186 BCE and by whom the manuscripts were most likely owned. Although the binding cords that once connected altogether at least 1,200 bamboo slips found in the tomb to form several independent manuscript rolls had long decayed, the position of the bamboo slips at the time of excavation made it possible to determine which slips had once belonged to the same roll. As to the collection titled Zouyan shu ('Writings that were submitted to the higher authorities for decision', see figure 1), it is clear that it originally formed one codicological unit (Fig. 2).

The manuscript clearly illustrates the up-to-dateness of criminal proceedings in the early Han dynasty: After a private or ex officio charge had been filed against a person, first of all the accused was heard and witness accounts were recorded. If the accused did not confess to the crime, he had to face diverging witness accounts or the wording of the relevant legal provisions, until the judicial officials were finally in a position to make a well-founded decision. Most of the texts included in the Zouyan shu do however not reflect ordinary case records insofar as they describe specific cases where an appeal was filed to a higher authority (hence the title of the manuscript). This had different reasons: In many cases the officials had doubts about the appropriate sentence, because there either existed no relevant legal provision or provisions were contradictory. The ruling given by the higher authority was often, but not always, recorded as well. In other cases the case files included an explicit request for promotion of the investigating officials.

Fig. 2: The positions of the slips belonging to the Zouyan shu (highlighted in yellow) inside the tomb reveal that the collection must have consisted of one single roll.

Although the Zouyan shu allows us to draw many valuable conclusions as to the legal system of early imperial China, the manuscript raises at the same time new questions. One essential question is about the authenticity of the legal cases described. If for instance a widow fornicates next to the coffin of her recently deceased husband, the question arises if this is actually the description of a real case. Further evidence also suggests that this is not always the case, at least for some of the twenty-two texts. Three of these texts strongly deviate from the usual course of criminal proceedings and clearly show narrative features. Furthermore, two cases refer to well-known historical personalities from periods that were already far back in the past when the manuscript was written. In these didactic texts a renowned and virtuous judge convinces a ruler of the correctness of his judgment by a conclusive reasoning that often exceeds mere strict adherence to legal provisions. In one case the execution of two cooks is prevented. They were to be punished because a hair had been found in the ruler’s roast and a blade of grass in the dish of his wife.

Fig. 3: The beginning of a new case or new procedural steps within particular criminal proceedings were often marked by black dots on the upper end of the bamboo slips.

This quite heterogeneous collection including ‘documents’ which seem to have actually been recorded for different purposes once (letter of recommendation, appeal filed to a higher authority, historical didactic texts, etc.) might well be a personal compilation made by the tomb owner in his lifetime. At least it seems to be somehow connected to his biography, as the most recent of the cases described is dated to the year 196 BCE, which is only two years before the tomb owner retired from office 'due to sickness' (a fact that is recorded in a calendar also found in the tomb). The compilation of fiction, on the one hand, and texts that are possibly authentic or at least based on authentic case files, on the other hand, in one and the same manuscript must have served a particular purpose and presumably also reflects the compiler’s opinion on the legal system in place at that time. As the tomb owner’s own lifetime – from the end of the third to the beginning of the second century BCE – was characterized by the establishment of the first Chinese empire and ensuing reforms and social changes and was thus a time of upheaval, the Zouyan shu possibly also contains an evaluation of these historical – and also judicial – developments. To find out more about the motives behind this compilation, further research is needed. However such research will not only have to analyse the manuscript itself but also the context in which it was found. This particularly includes the other manuscripts that were – certainly not arbitrarily – put in the tomb, and more generally even all the grave goods.

References

Korolkov, Maxim (2011), 'Arguing about Law: Interrogation Procedure under the Qin and Former Han Dynasties', Études chinoises 30, 37–71.
Lau, Ulrich (2002), 'Die Rekonstruktion des Strafprozesses und die Prinzipien der Strafzumessung zu Beginn der Han-Zeit im Lichte des Zouyanshu', in Reinhard Emmerich u. Hans Stumpfeldt (eds), Und folge nun dem, was mein Herz begehrt: Festschrift für Ulrich Unger zum 70. Geburtstag, Hamburger Sinologische Schriften, Hamburg: Ostasien Verlag, 343–395.
Lau, Ulrich und Michael Lüdke (2012), Exemplarische Rechtsfälle vom Beginn der Han-Dynastie: Eine kommentierte Übersetzung des Zouyanshu aus Zhangjiashan/Provinz Hubei, Tokyo: Research Institute for Languages and Cultures of Asia and Africa, Tokyo University of Foreign Studies.
Nylan, Michael (2005/6), 'Notes on a Case of Illicit Sex from Zhangjiashan: a Translation and Commentary', Early China 30 (2005-2006), 25–45.

Description
Jingzhou District Museum, Hubei Province (PR China)
Provenance: Tomb No. 247, Zhangjiashan, Jiangling county, Hubei province (1983/84)
Material: Bamboo; 228 slips

Measurements of the slips: length 286–301 mm, width 4–6 mm