The Law Deriving from Monarch, the Monarchy Power Overtopping Law

  • Jinfan Zhang
Chapter

Abstract

In Ancient China, the absolute monarchy centered on the king had been established ever since China entered into the class society and the states were founded; therefore, it was of a long standing. It was recorded in the documents of Shang (1600 B.C.–1046 B.C.) and Zhou dynasties (1046 B.C.–771 B.C.) that the words of “Yu Yi Ren” (Tian Zi: the son of Heaven or the emperor) was particularly used by the king to refer to himself and to symbolize his supreme position and absolute privilege. All the national activities, such as punitive expeditions, sacrifices, etc., were named “Wang Shi” (the king’s affairs) to suggest that the king was the state, and that the king and the state were an organic whole. In the oracle inscriptions of the Shang Dynasty on tortoise shells or animal bones, the words like “Wang Ming” (the king’s commands), “Wang Ling” (the king’s orders), and “Wang Hu” (the king’s words) could be found repeatedly, which had indicated that the national affairs were conducted according to the orders of king who not only had the supreme administrative and military power, but the supreme legislative and judicial power.

Keywords

Qing Dynasty Song Dynasty Ming Dynasty Tang Dynasty Imperial Power 
These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.

6.1 The Power of Absolute Monarchy and the Legal System in the Pre-Qin Periods

In Ancient China, the absolute monarchy centered on the king had been established ever since China entered into the class society and the states were founded; therefore, it was of a long standing. It was recorded in the documents of Shang (1600 B.C.–1046 B.C.) and Zhou dynasties (1046 B.C.–771 B.C.) that the words of “Yu Yi Ren” (Tian Zi: the son of Heaven or the emperor) was particularly used by the king to refer to himself and to symbolize his supreme position and absolute privilege. All the national activities, such as punitive expeditions, sacrifices, etc., were named “Wang Shi” (the king’s affairs) to suggest that the king was the state, and that the king and the state were an organic whole. In the oracle inscriptions of the Shang Dynasty on tortoise shells or animal bones, the words like “Wang Ming” (the king’s commands), “Wang Ling” (the king’s orders), and “Wang Hu” (the king’s words) could be found repeatedly, which had indicated that the national affairs were conducted according to the orders of king who not only had the supreme administrative and military power, but the supreme legislative and judicial power.

During Xia and Shang dynasties, the king had taken the advantage of “Tian Dao” (The Way of Heaven), in which “Tian Ming” (the mandate of Heaven) was preached about so as to strengthen the authority of their royalty. In Western Zhou Dynasty (1122 B.C.–771 B.C.), though the doctrine of “Tian Ming” (the mandate of Heaven) was infused with “Yi De Pei Tian” (matching heaven with virtue), the concept of “Tian” (heaven) was still mainly used to refer to the monarchial power. During Eastern Zhou Dynasty (770 B.C.–256 B.C.), a theory was put forward by the philosophers of many schools of thoughts, which had suggested that the sages and the monarchs “could form a Triad with ‘Tian’ (heaven) and ‘Di’ (earth)”, which had further made the monarch a super character. For instance, Xunzi said, “The gentleman is the triadic partner of ‘Tian’ (heaven) and ‘Di’ (earth), the summation of the myriad of things, and the parents of the people. If there were no gentleman, ‘Tian’ (heaven) and ‘Di’ (earth) would have lacked any principles of order.”1 Though the philosophers of many schools of thoughts had different emphases in their theories, they had a common goal, that was, to serve the politics of the absolute monarchy. In Lun Liu Jia Yao Zhi (Discussion on the Main Points of the Six Schools), Sima Tan had pointed out that “the six schools, including ‘Yin Yang’ (the two opposing principles in nature, the former feminine and negative, the latter masculine and positive), Confucianism, Mohism, School of Ming (a school which stressed the research of the relationships between concepts and facts), Legalism and Daoism, are all for the ruling of the state. However, because of the different views which they have held, they are different from each other in emphasis.”2 Moreover, the clan system, which was produced on the soil of Chinese culture, had laid a solid foundation for the establishment of absolute monarchy. In terms of legal systems, its implement and practical application in the dynasties of Xia, Shang and Zhou had all centered on the will of the monarchs. As a result, the law was overtopped by the imperial power, and both law and punishment were made by the rulers. For example, the law of the Xia Dynasty was generously referred to as Yu Xing (The Penal Code of Yu), which was named after the emperor. It was recorded in “Zhao Gong Liu Nian” (The Sixth Year of Lu Zhao Gong) in Zuo Zhuan (The Chronicle of Zuo) that “when the government of Xia had fallen into disorder, the penal law code of Yu was made”. According to “Xing Fa Zhi (The Record of the Criminal Law)” in Han Shu (History of the Former Han Dynasty), “after Yu succeeded Yao and Shun, the corporal punishment was applied because of the decaying of virtue”. Obviously, the penalty (or law) in Xia Dynasty was believed to be made by Yu so as to deal with the social changes which had brought about “the social disorder” and “the decaying of virtue” at that time. The penal law code was named after Yu to show that the law code was made by Yu, and at the same time it had shown the great respect which the Xia people had for their ancestor as well as for the first king of the country.

The law of Shang Dynasty was generously named “Tang Xing” (The Penal Code of Tang). It was recorded in “Liu Nian” (The Sixth Year of Lu Zhao Gong) in Zuo Zhuan (The Chronicle of Zuo) that “when the government of Shang had fallen into disorder, the penal law code of Tang was made.” Here, “Tang” referred to the name of the first monarch of the Shang Dynasty, Cheng Tang. The reason for naming the penal law code after the monarch of Tang was the same as that for the naming of penal law code of Yu. Moreover, the important military orders and legal provisions in the dynasties of Xia, Shang and Zhou were all issued in the forms of “Ming” (command) and “Shi” (standard) from the monarchs. For instance, in “Gan Shi” (the military order issued at Gan) in Shang Shu (The Book of Historical Document), the military order which Xia Qi had issued before an expedition was recorded: “you who obey my orders, shall be rewarded before (the spirits of) my ancestors; and you who disobey my orders, shall be put to death before the altar of the spirits of the land, and I will also put to death your children,” which had shown that it was the king of Xia who had the rights to give military orders, or decrees, and who had the power to kill people. Still in “Tang Shi” (an order issued by the king Tang of Shang Dynasty when attacking the state of Xia) in Shang Shu (The Book of Historical Document), the military orders given by Cheng Tang before launching the attack on Xia State were almost the same as that in “Gan Shi” (the military order issued at Gan): “if you do not obey the words which I have thus spoken to you, I will put you and your children to death—you shall find no pardon.” The instructions of Pan Geng recorded in “Pan Geng” in Shang Shu (The Book of Historical Document) were also a case in point: “it is I who decide your life and death”, “I am the only one to make the plans, the only one. …to err in the application of punishments”, and “I will cut off their noses, or utterly exterminate them”. Till East Zhou Dynasty, “Gao” (imperial mandate), “Shi” (standard), and “Ming” (command) issued by the monarchs of Zhou were all the legal forms with supreme authority.

In addition to the legislative power, the monarchs in ancient times also were endowed with the supreme judicial power. In the oracle inscriptions of the Shang Dynasty on tortoise shells or animal bones, there were the words of divination: “the divination (shows) the decision which the king has made is not right”, “the divination (shows) the decision which the king has made is right”, and “this oracle is to divine whether the man shall be punished”. All these words had indicated that the king had the judicial power to make the final decisions. During the period of Western Zhou Dynasty, the rulers were in fact also the supreme arbiters dealing with the legal disputes between the states. “It was stated in ‘Zhang Qiu’ (the Regulations for Jailers) in the chapter of “Qiu Guan” (Ministry of Penalty) in Zhou Li (The Rites of Zhou Dynasty) that “on the day of execution, the names of the condemned are reported to the king, and then the condemned are sent to the officials of the imperial court”. With the development of the state machine of Zhou dynasty, under the leadership of the monarch, the central judicial organizations headed by “Si Kou” (the minister of justice) and “Shi Shi” (the official in charge of criminal affairs) were established, and the local judicial organizations, named “Xiang Shi”, “Sui Shi”, “Xian Shi”, “Fang Shi”, and “Ya Shi”, had also been set up to deal with the judicial affairs.

The relationship between political power and law in ancient times was convincingly demonstrated in the historical records of the dynasties of Xia, Shang and Zhou: the political power dominated the law and the law was submitted to the political power, which was determined by the autocratic political system and maintained by the economic, military, patriarchal, and religious power kept in the hands of monarchs. For example, the financial power was monopolized by the king himself, and especially, the means of production—the lands and the producers (the slaves) was monopolized. Seemingly, the means of production and the slaves were controlled in a state-owned form which was in fact the form owned by the king, as was described in the saying that “under the wide Heaven, all is the king’s land. And within the sea-boundaries of the land, all are the king’s servants.”3 Although the means of production and the slaves were distributed to the noblemen by the king, the ownership, however, was not transferred, and such a mode of production in ancient Asia had laid the material foundation for the autocratic monarchy.

Besides, the great military power was also held by the king. Take the Western Zhou Dynasty as an example: the king owned six troops, the dukes or princes of a bigger state owned three, those of a medium size owned two, and those of a small size owned one. The king had the rights to send a punitive expedition against those who had disobeyed his orders.

Under the hierarchical clan system, the King of Zhou was also the head of Zhou Family, thus, the imperial and the clan power were integrated with each other, the imperial family and the state were closely related, and the grades of the ranks in clans paralleled those in politics. As a result, the pyramids-shaped political ranks were developed, within which “the king makes the duke his servant; the duke, the senior officials; the senior officials, the (junior) officials”,4 and “states are established by ‘Tian Zi’ (the son of Heaven or the emperor); collateral families are established by the princes; ‘Ce Shi’ (side rooms: refers to concubinage) was instituted by the ministers. Moreover, ‘Da Fu’ (senior official in ancient China) had ‘Er Zong’ (an official in ancient China) as their subordinates; the (junior) officials have their sons and younger brothers as their servants”.5 The rights and the obligations of different imperial clans varied according to their ranks, but they must observe the regulations without overstepping them. From this point, it could be inferred that the clan power was the backbone of imperial power, and only by applying the two power systems, namely, the political and the clan system was it possible for the king of Zhou to keep his imperial power.

Additionally, the king’s power was also greatly strengthened with the help of theocracy. During the dynasties of Xia, Shang, and Zhou, because the productivity was low and the scientific technology was not advanced enough to explain some complicated natural phenomena, the people held the nature in awe. On this account, the kings during this time had purposely taken the advantage of religion to explain the major political activities and to strengthen their imperial powers. For instance, in the military order of Xia Qi before the attacking of You Hushi, it was recorded that “‘Tian’ (heaven) is about to destroy him and bring his appointment (to Hu) to an end; therefore, I am now reverently executing the punishment appointed by ‘Tian’ (heaven).”6 In his military order of punitive expedition against Xia Jie, Cheng Tang also announced that “for the many crimes of the sovereign of Xia, ‘Tian’ (heaven) has issued orders to destroy him. …so I, the only man, am to carry out the punishment appointed by ‘Tian’ (heaven).”7 Moreover, the infliction of punishment was also carried out in the name of heavenly punishments: “‘Tian’ (heaven) punishes the guilty - are there not ‘Wu Xing’ (the five forms of punishments in ancient China, i.e. “Mo”: tattooing on the face or forehead of the offenders with indelible ink, “Yi”: cutting off the nose, “Fei”: cutting off the left or right foot or both feet, “Gong”: castration, and “Da Bi”: the capital punishment) to be severally enforced for that purpose?”8 In “Da Yu Mo” (The Counsels of Great Yu) in Shang Shu (The Book of Historical Document), when explaining the principle of “Tian Ming” (the Mandate of Heaven), it was stated that “great Heaven has endowed you its favor, and bestowed on you its appointment. Suddenly you have possessed all within the four seas, and become the ruler of all under heaven”. Those kings of the Shang Dynasty had closely related the worshipping of “Tian” (heaven) to the worshipping of their imperial ancestors, and they had propagated that the God of Heaven was the God of Ancestors of their family, and that the God of Heaven was the God in “Tian” (heaven), and the King of Shang was the God on “Di” (earth). Thus, the religious power was closely connected with the imperial power, which had brought a mysterious color to the aristocracy in the slavery society. However, after the establishment of the Zhou administration, the doctrine of “Tian Dao” (The Way of Heaven) preached in the Shang Dynasty was completely abandoned on account of the changing historical circumstances. The king of Zhou had stopped to endorse the idea that the king was the descendants of the God of Heaven, yet they had propagated that “Tian” (heaven) only helped the virtuous, therefore, the reason for the successful replacement of Shang by Zhou was that the king of Zhou had accepted the principle of “Yi De Pei Tian” (matching heaven with virtue).

In short, the autocratic kingship was the synthetic embodiment of the absolute power of theocracy, clan, military, economy and judicature, and it was also the supreme power of the state. Besides, the king, except being submissive to God, was free from any restraint, and the law was not only the will of the noble class headed by the king, but also an instrument for governing the country according to the king’s will. So, the law was not a tool to restrain the absolute power of the king in ancient China, but had become another tool of tyrannical despotism, which was different from the systems in ancient Greek and Rome. In the times of slavery in ancient China, although statute laws were made, they were never publicized to the society so as to keep them in secret to show that “if the penalty is unknown by people, its power is unfathomable, and the people will hold the rulers in awe”.9 Thus, such a secret state of the statute laws was beneficial for the noblemen, especially for the king, to “deliberate on affairs” with random applications and to maintain the interests of noblemen and the ruling of the government. In the three dynasties of Xia, Shang and Zhou, because the relatives of the rulers and the members of the ruling class were integrated, the state and the families were closely related, and both the national law and the family rules were consistent with and complementary to each other, in adjusting the complicated social relationships, either the national law or the family rules could be applied. For example, the custom that “designating the eldest son as the heir, whether he is able or virtuous; designating the son as the heir, whether he is the eldest”10 had become a rule both for the family and the state, which should be strictly followed in both the succession of the throne and the succession of the head of patriarch. As to the clan member who had done something harmful to the state interests, he would be punished by both the national law and the family rule, and often “an execution in the ancestral temple” would be carried out.11 The extensive application of domestic customary laws was the remaining traces of clan systems, which had already been eradicated in ancient Greek and Rome where commodity economy was well developed.

6.2 The Systematization and Legislation of Imperial Power

The theories in defense of the imperial power were further developed ever since Qin and Han dynasties. For example, in Qin Dynasty, based on the theory that “under the wide heaven, all is the king’s land; and within the sea-boundaries of the land, all are the king’s servants”,12 another principle was put forward: “Within ‘Liu He’ (the six directions: the world or universe), all is the king’s land; within the lands where there are human beings, all are the king’s subjects”.13 In a word, the two major components in the world—the land and the people, all belonged to the emperor; therefore, the word “emperor” had a connotation of “possessing everything in the country”. After succeeding to the throne, Emperor Han Gaozu said to his father in an ironic tone of settling accounts with him: “you always say I am a scoundrel, unable to purchase my own estate, and not as good as my younger brother. See what I have had today. Now, who has got more wealth, my brother or I?”14 Clearly, this was nothing but a declaration that all of the wealth in the world was the private property of the Emperor himself. Similar to the idea that the emperor had the supreme rights of ownership, another thought that “the subjects were blessed by the emperor” was prevalent among the people, according to which, everything that the subjects had was bestowed by the emperor, even the execution of the death penalty of the subjects was called “Ci Si” (the death blessed by the emperor), and the people who had been given the death penalty were obliged to “Xie En” (thank the emperor for the blessing), which was by no means strange in the logic thinking of the ancient people, because they had believed that the emperor had the supreme ownership of the people and the wealth in the world; therefore, he also had the supreme authority of random disposition, and he could dispose of them at will, which had not only endowed the emperor with an absolute privilege, but also had provided a theoretical basis for the emperor to abuse his power tyrannically.

In Han Dynasty, the theory of “the interactions between ‘Tian’ (heaven) and ‘Ren’ (human beings) was put forward by Dong Zhongshu, he said, “‘Tian’ (heaven) has given birth to ‘Ren’ (human beings), … and has selected an emperor for the good of them, and this is ‘Tian Ming’ (the Mandate of Heaven)”; “‘Tian Zi’ (the son of Heaven or the emperor) is entrusted with the ‘Tian Ming’ (the Mandate of Heaven) to govern the country”,15 and “‘Tian Zi’ (the son of Heaven or the emperor) is following the order of ‘Tian’ (heaven), therefore, the people should follow the orders of ‘Tian Zi’ (the son of Heaven or the emperor)”.16 According to Dong Zhongshu, only the emperor had represented the inevitability of nature and society; so if people wanted to observe the law and to accept the inevitability of nature, they must follow the orders of the emperor. Hence, the doctrines of “Tian Ming” (the Mandate of Heaven) and “Feng Tian Cheng Yun” (the divine rights of rulers) had always been preached in the feudal society in order to defend the sanctity and rationality of imperial power.

Based on the theories of “San Gang” (three cardinal guides) and “Wu Chang” (five constant virtues), a completely far-flung network of politics and moral principles was built by Dong Zhongshu, from which no one could escape. Being in a subordinate position in the network, the independent value of the individual was always ignored. From the point of “Tian Li” (heavenly principles), the feudal order of absolute monarchy was further affirmed by the Confucian scholars in the Song Dynasty, and it was argued that “the relationship between father and son is the same as that between the sovereign (the superior) and the ministers (the inferior). Therefore, it is a universal truth under ‘Tian’ (heaven), which had guided everything in ‘Tian’ (heaven) and ‘Di’ (Earth)”.17 Besides, an ideological environment was also created for the necessity of absolute monarchy by popularizing the moral values of “promoting ‘Tian Li’ (heavenly principles) but eradicating human desires”.

6.2.1 The Systematization of Imperial Power

After the annex of the six states and unification of China, an imperial system was instituted by the ruler of Qin, who had named himself “Shi Huang Di” (the First Emperor), thus, the systematization of absolute monarchy was initiated.

In order to show the special sovereign status of the emperor, from the “First Emperor of Qin”, a series of words were exclusively coined for the emperor: the commands of the emperor were referred to as “Zhi” (regulations) and the orders of the emperor were “Zhao” (decree); the emperor referred to himself as “Zhen” (I, the emperor), and the subjects addressed the emperor as “Bi Xia” (Your Majesty); the emperor’s inspection visits to some places were “Xing”; his whereabouts was “Xing Zai Suo”; his residence was “Jin Zhong”. These words which were monopolized by the emperor were basically used in the whole feudal society. For example, in Han Dynasty, “the title of ‘Tian Zi’ (the son of Heaven or the emperor) is ‘Huang Di’ (the emperor). He refers to himself as ‘Zhen’. The subjects address him as ‘Bi Xia’ (Your Majesty). His orders are ‘Zhi Zhao’ (decrees). He was addressed by the historiographers as ‘Shang’(the superior); his carriages, horses, clothes, weapons and personal effects are generally named ‘Cheng Yu’; his whereabouts is ‘Xing Zai’; his food is ‘Yu’; his orders are either called ‘Ce Shu’ or called ‘Zhi Shu’, ‘Zhao Shu’ and ‘Jie Shu’”.18

According to the book of Yi Zhi Ling (The Regulations of Ritual Ceremonies) written in the year of Kai Yuan of the Tang Dynasty, the emperor was generally addressed by people at home and abroad as “Huang Di” (the emperor) or “Tian Zi ”(the son of Heaven or the emperor); he was generally called “Zhi Zun” (the most revered) by the ministers; he was called “Bi Xia” in the ministers’ memorials; his inspection visits were “Che Jia”, and so forth.19 Besides, it was regulated that:

From the crown prince down to every male within the sea-boundaries of the land, all referred to themselves as ‘Chen’ (subjects) when speaking to the emperor; from the empress down to every female including the grandma-empress, and the dowager empress within the sea-boundaries of the land, all referred to themselves as ‘Qie (concubine) when speaking to the emperor; from ‘Liu Gong’ (the place where empress lived, it may refer to the concubines of emperor) down to every female within the sea-boundaries of the land, all referred themselves as ‘Qie’ (concubine) when speaking to the empress. In their memorials, the officials referred to the grandma-empress, the dowager empress, and the empress as ‘Dian Xia’ (Her Highness) and they referred to themselves as ‘Chen’ (subjects). The officials and the officials in the palace of crown prince addressed the crown prince as ‘Dian Xia (Your Highness, or His Highness) (same to the one in memorials). When referring to themselves, the officials used their own names and the eunuchs used the word ‘Chen’ (subjects).20

Moreover, in order to show respect to the imperial authority, taboos and titles in the style of official documents were systemized: in all the documents, the characters of “the emperor” shall be topped on the page, and in the languages of the common people, the name of the emperor was a taboo. It was regulated in “Gong Shi Ling” (the order for the forms official documents) in the year of Kai Yuan that “when writing historical books or recording historical events, if it was unavoidable to mention the names of the emperors, incomplete strokes of characters should be used or the characters should be changed.”21 In addition, it could be found in Tang Lv Shu Yi (The Comments on Tang Code) that:

If the officials have accidentally broken the taboo for the reference of the imperial ancestors when making reports or presenting memorials to the emperor, they shall be punished by ‘Zhang’ (flogging with heavy sticks) for eighty strokes; if they have broken the taboo by a slip of tongue when discussing affairs in court with the emperor or by mistakes when writing other official documents, they shall be punished by ‘Chi’ (flogging with light sticks) for fifty strokes; if some people have deliberately used the names of the imperial ancestors, they shall be punished by penal servitude for three years; if the names which they use sound the same as the ones of the imperial ancestors but have different characters, or the names they use have the same character as that of the imperial ancestors’, they are free from punishments.22

Emperor Taizong (Li Shimin) in Tang dynasty had a liberal attitude toward the taboo of names. He said, “It is better to simplify the matters in accordance with the regulations of ceremonies. We do this for following the regulations applied in the past and also for making new regulations for the future. If the two words of ‘Shi’ and ‘Min’ (Emperor Taizong’s name) are not put together in the names or titles of people, or in official or private documents, they shall not be avoided as taboos.”23

In ancient times, the emperors primarily dealt with the national affairs by holding courts. In this regard, the systems of “Chao Yi” (imperial court consultation) and “Chao Hui” (imperial court convention) were developed.

The system of “Chao Yi” (imperial court consultation) was developed from the gentile council, which had allowed the experienced and the knowledgeable people to discuss national affairs irregularly with the officials in court so as to make correct policies. After the imperial system was instituted by Qin Shi Huang (the first emperor of Qin), though it was regulated that “the things under heaven, whether they are important or small, are all decided by the emperor”, still the emperor would “hold consultation” with ministers when there were affairs with regard to national defense and administration. The system of “Chao Yi” (imperial court consultation) was continuously retained by the emperors after Qin Shi Huang (the first emperor of Qin), but the authority of holding court consultation lay in the emperor, and any ministers were forbidden to hold the consultation without the permission of the emperor. It was one of the features of “Chao Yi” (imperial court consultation) for the emperor “to solicit opinions from all sides and make decisions on all state policies by himself”. The purpose of “soliciting opinions from all sides” was to prevent the ministers from concealing the truth from the emperor and to collect useful advices for the emperor’s administration, and the conduct of “making decisions on all state policies by the emperor himself” had fully reflected the sovereign control and the supreme authority of the imperial powers. For instance: at the beginning of Qin, a memorial requiring the emperor to confer the titles of the King of Yan, the King of Qi, and the King of Chu upon the princes was presented to the emperor by “Cheng Xiang” (the Prime Minister) Wang Wan and other officials, and during the court consultation, “all ministers agreed on the proposal” except a “Ting Wei” (the supreme official in charge of judicature) named Li Si. Then, the conferment was cancelled,24 because Qin Shi Huang (the first emperor of Qin) believed that “the opinion put forward by Li Si was rational”. In this regard, “Chao Yi” (imperial court consultation) was by no means a democratic consultation for restraining the imperial power; on the contrary, it was an effective method for the imperial dictatorship.

The system of “Chao Yi” (imperial court consultation) was a system for the emperor to deal with the national affairs in court and hold regular audiences.

The evidence of the emperor’s exercising the imperial power was “Xi Fu” (the imperial jade seal and tally), and the documents for publicizing the decisions and the instructions of the emperor on the national affairs were named “Zhao” (decree), “Chi” (instruction), and “Ling” (order or ordinance). If the officials who were in charge of editing “Chi” (instruction) had made any mistakes, they would be punished in accordance with law. It was regulated in “Gong Shi Ling” (the order for the forms official documents) written in the year of Kaiyuan that:

In all cases where the meaning or logic of the texts is not changed by the mistakes of omissions or wordiness in the drafts of ‘Chi’ (instructions), the mistakes shall be examined and clarified by the officials in charge before making corrections with no need of presenting memorials to the emperor. If the mistakes of omissions or wordiness are found in the ordinary official documents, they shall be reported to the officials in charge before making the correction.25

However, “those who have found mistakes that may change the meaning or logic of the texts in the imperial decrees and who have corrected them without presenting memorials to the emperor shall be punished by “Zhang” (flogging with heavy sticks) for eighty strokes”; those who had found the mistakes either in the meaning or logic of ordinary official documents, and “have corrected them without reporting to his leaders will be punished by ‘Chi’ (flogging with light sticks) for forty strokes, and those who have found mistakes in the drafts of imperial decrees or in the ordinary official documents and who have still issued them without presenting memorials to the emperor or without reporting to his leaders shall be punished by the same penalty”. But if the words in the drafts of imperial decrees or the official documents were deliberately conversed or revised, the penalties given to the offenders shall be “increased two degrees”. The above regulations were particularly made for maintaining the imperial power, but they were also helpful for ensuring the proper implementation and the effect of the official documents.

In order to ensure that the throne could be succeeded within the same imperial family for thousands of years, a system of succession to the throne by the crown prince was instituted. At the beginning of Han dynasty, Shu Suntong, who had learned the lesson from the history of the Qin Dynasty, suggested to Emperor Gaozu (Liu Bang) that a system of succession by the crown prince should be adopted. He said, “Because Fusu had not been appointed the crone prince by Qin at the beginning, Hu Hai then took the opportunity and seized the power through his fraudulent conducts, and Qin was thus annexed, which was what Your Majesty has seen.”26 Since then, the rulers of Han had realized that “the crown prince is the foundation of the state, and if this foundation is shaken, the whole state will be in chaos”.27 In the history of feudal politics and legal system, the succession to the throne was always the most important matter with regard to the imperial family and the feudal system, which was full of the struggle for scrambling for power. From Hu Hai’s illegal seizing of the power in the Qin Dynasty to the Xuan Wumen Coup in the Tang Dynasty (599 A.D.–649 A.D.), and to the struggle for the succession to the throne at the end of Emperor Kangxi’s reign, the similar struggle for scrambling for the imperial power had recurred and never stopped in history.

Other equally important systems were also used and legalized under the imperial system about the management of imperial harems, the ancestral temples of the imperial family and the mausoleums of the emperors and their families. Every regulation which was included in each system was made in order to show the supreme authority of the imperial power and to strengthen the sovereign control.

From its first establishment in the reign of Qin Shi Huang (the first emperor of Qin) to its being finally overthrown in Xin Hai Revolution (or Revolution of 1911), the imperial system had lasted for more than 2,000 years, which was extremely rare in the history of the world. Therefore, the influence the imperial system on Chinese social development, politics, economy and culture had been strong and profound. At the beginning, the imperial system had played a positive role not only in unifying the multinational forces and strengthening the country, but also in resisting the foreign aggressions and developing the economy and culture of the feudal times. However, the unrestrained sovereign power warranted by the imperial system had inevitably resulted in the corruption of imperial government, which in turn had fettered the development of society, bounded people’s intelligence and wisdom, and even had plunged people’s lives into an abyss of misery. Soon after the unification of China in Qin Dynasty, “no matter how hard the peasants had worked in the fields, the grain which they had produced was not enough for the provisions and funds for troops; no matter how hard the women had worked on looms, the cloth which they had produced were not enough for the clothes”, and “the wealth under the Heaven was all collected and given to the emperor”.28 Consequently, a massive peasant uprising broke out at the end of the Qin Dynasty.

From the later period of the Ming dynasty to the early period of the Qing, a philosopher of the Enlightenment, namely Huang Zongxi, had bitterly attacked the autocratic power in his book Ming Yi Dai Fang Lu (Waiting for Dawn). He said, “The emperor has appropriated all the benefits and wealth under the heaven for himself, but brought all sorts of harmfulness under the heaven to his people”. Moreover, the emperor had taken the national property as “his personal property”, and under the guidance of egoism, the emperor “has killed people in the world and separated the children from their families” in the name of “starting an undertaking for his descendents”. In addition, once he had seized the power, he “would exhaust all the wealth of the world and separate all the children from their families” just for “his own self-indulgence”, which was simply viewed by him as an “price paid by the undertaking”. So, the emperor was regarded as “the foe” by all the people, and “had been believed to have brought great harm to the people under heaven”.29

6.2.2 The Legalization of the Imperial Power

Through the establishment of all sorts of systems, the emperors were given the autocratic power “to decide all state policies by themselves”, which was legalized with the help of all kinds of legislations.

Firstly, the status of the emperor and the ministers was established in the form of law so as to maintain the ranks of the superiority of the ruler and the inferiority of the subjects and to take strict precautions against the illegal overstepping.

Take the Tang Dynasty (599 A.D.–649 A.D.) as an example. There were clear stipulations in Tang Lv (Tang Code) that “if the sumptuary regulations on houses, carriages, clothes, tombs, stone animals, and other objects are violated or the limitations are broken, the offenders shall be punished by ‘Zhang’ (flogging with heavy sticks) for hundred strokes, though they might be pardoned, the usurpation shall be demolished”. “In all cases where the chief manager borrows or loans carriages or clothing of the emperor to other people for their personal use without authorization, he and the people who have borrowed the objects shall be punished by penal servitude for three years respectively; if the chief managers have borrowed or loaned other belongings of the emperor to other people for their personal usage without being authorized, he and the people who have borrowed the belongings shall be punished by penal servitude for one year respectively; if the chief manager has loaned the belongings of the emperor to the people in the same official department for official usage, the penalties given to him and to those who have borrowed the belongings shall be reduced one degree respectively”. As to the envoys of the emperor, the subjects shall show their respect to them and shall strictly comply with the imperial orders which those envoys have issued. And if “the subjects have violated the ranks of the high and low, shown offences to the envoys, or have refused to follow the imperial orders with offensive remarks, they shall be punished by strangulation”.

When dealing with the military, political, and judicial affairs, the officials must present memorials to the emperor to report the issues that ought to be reported in accordance with law. They were not allowed to deal with the affairs without authorization. It was stipulated in Tang Lv (Tang Code) that “those who have not memorialized matters that ought to be memorialized, or who have memorialized matters that ought not to have been memorialized shall be punished by ‘Zhang’ (flogging with heavy sticks) for eighty strokes” When participating in sacrifices, worships, court audiences, or the escorts of the emperor, if “the officials have made mistakes in carrying out rituals or misbehave in ceremonies, they shall be punished by ‘Chi’ (flogging with light sticks) for forty strokes”. Besides, “the officials who have delayed in escorting the ‘carriage’ of the emperor, or who have returned from the escort earlier, shall be punished by ‘Chi’ (flogging with light sticks) for strokes times. If they have delayed for three days or they have returned three days earlier, their penalty shall be increased one degree. If the stokes of beating which they are given have exceeded one hundred, their penalty shall be increased one degree for delaying ten days or for returning ten days earlier. The punishment shall be limited to penal servitude for two years. The officials of ‘Wu Pin’ (the fifth rank) and above are responsible for escorting the ‘carriage’ of the emperor, and the penalty of the offenders shall be increased one degree”.

In Qin Dynasty, the offence of “disclosing the secrets in the imperial palace” was established, which was adopted in Tang Lv (Tang Code), and it was stipulated that those who “have exchanged words with the maids in the imperial palace”, or who had personally “delivered massages, belongings or clothing from the maids to the outside of the imperial palace, or who had delivered the messages, belongings or clothing from outside to the maids inside the imperial palace”, shall be punished by strangulation.

Secondly, the crimes against the imperial government and the personal safety of the emperor were severely punished.

In Tang Lv (Tang Code), among the most serious crimes of “Shi E” (The Ten Abominations), the following was involved in the offences against the emperor:

The first is ‘Mou Fan’ (plotting rebellion or plotting to endanger “She Ji”: the country); the second is ‘Mou Da Ni’ (great sedition); the third is ‘Mou Pan’ (plotting treason, or, plotting to betray one’s own country, or to go over to another country) … ; the six is ‘Da Bu Jing’ (being greatly irreverent: to steal the objects for the Great Sacrifices to the spirits or the clothing or the personal belongings of the emperor; to steal or counterfeit the imperial seals, mistakenly not to follow the correct prescriptions when preparing imperial medicine or to make a mistake in writing or attaching the label; mistakenly to violate the dietary prescriptions when preparing the imperial food; or mistakenly to fail to make imperial touring boats sturdy).

According to the explanation in Tang Lv Shu Yi (The Comments on Tang Code), “plotting” particularly referred to the “intention of rebellion”, the “intention of betraying the emperor”, and the “intention of wickedness”, but not the actual remarks or the actions against the emperor. Since the subjects were not allowed to make any mistakes when dealing with the imperial affairs, though some wrongdoings included in “great irreverence” may be caused by mistakes, those wrongdoings were undoubtedly included in “Shi E” (The Ten Abominations). Because the crimes of “Mou Fan” (plotting rebellion or plotting to endanger “She Ji”: the country) and “Mou Da Ni” (great sedition) could endanger the imperial government, the penalties for these crimes were always the severest. In addition, people who were related to or friendly with those who had committed such offences would also be punished so as to “eradicate the evil and the wickedness”. It was ruled in Tang Lv (Tang Code) that:

Those who are involved in ‘Mou Fan’ (plotting rebellion or plotting to endanger “She Ji”: the country) and ‘Mou Da Ni’ (great sedition) shall be punished by decapitation and their sons who are 16 years old or older shall all be punished by strangulation. Their sons who are 15 years of age or younger and their mothers, daughters, wives and concubines, paternal grandfathers, grandchildren, brothers, sisters, and ‘Bu Qu’ (the private army) shall be punished by serving in official departments, and their personal property, land and houses shall be confiscated. Nevertheless, the males in their families who are 80 years old or who are ‘Du Ji’ (the incapacitated); or females who are 60 years old or who are ‘Fei Ji’ (the crippled) shall be exempted from the punishment. Their uncles or uncles’ sons shall be punished by life exile of 3,000 li, whether they are in the same household registration. Although their remarks have failed to agitate or persuade people to follow them, those who are involved in ‘Mou Fan’ (plotting rebellion or plotting to endanger “She Ji”: the country) shall still be punished by decapitation. Their parents, sons, and daughters shall be punished together by life exile of 3000 li, but their personal property shall be exempted from confiscation. Those who are involved in ‘Mou Da Ni’ (great sedition) shall be punished by strangulation.

The penalties for the offence of plotting rebellion included in the Ming and the Qing codes were even severer than those in Tang Lv (Tang Code).

According to Tang Lv (Tang Code), the sons or grandsons were usually forbidden to sue their parents or paternal grandparents, and “Bu Qu” (the private army) or “Nu Bi” (the slave girls and maidservants) were forbidden to sue their masters, however, if the sons or grandsons had sued their parents or paternal grandparents, or “Bu Qu” (the private army) or “Nu Bi” (the slave girls and maidservants) had sued their masters for “Mou Fan” (plotting rebellion or plotting to endanger “She Ji”: the country), “Da Ni” (great sedition), or “Mou Pan” (plotting treason, or, plotting to betray one’s own country, or to go over to another country), they not only had the rights to report, but also were protected, which was explained in Tang Lv Shu Yi (The Comments on Tang Code):

Those who are involved in ‘Mou Fan’ (plotting rebellion or plotting to endanger “She Ji”: the country), ‘Da Ni’ (great sedition), or ‘Mou Pan’ (plotting treason, or, plotting to betray one’s own country, or to go over to another country) against the emperor are not considered the subjects of the emperor; therefore, the offenders’ sons or grandsons who have sued their parents or paternal grandparents for such crimes are exempted from punishments. Wherever the sun and moon shines, all the people are the king’s servants, hence, although ‘Bu Qu’ (the private army) and ‘Nu Bi’ (the slave girls and maidservants) are all the properties of their masters, their masters are not considered the subjects of the emperor whenever they are involved in the crimes of ‘Mou Fan’ (plotting rebellion or plotting to endanger “She Ji”: the country), ‘Da Ni’ (great sedition), or ‘Mou Pan’ (plotting treason, or, plotting to betray one’s own country, or to go over to another country). In this case, ‘Bu Qu’ (the private army) and ‘Nu Bi’ (the slave girls and maidservants) are permitted to sue their masters.

If the crimes against the relatives of the emperor had been committed, the penalties would still be severer than that for the ordinary offences. For example,

Those who have struck the emperor’s distant relatives (excluded from “Wu Fu”: the five degrees of mourning) shall be punished by penal servitude for one year; those who have caused injuries shall be punished by penal servitude for two years; those who have caused serious injuries shall have their punishments increased two degrees severer than those for the ordinary affrays and batteries; those who have struck the emperor’s relatives of ‘Si Ma’ (the person wearing the mourning apparel of soft sackcloth in the fifth mourning degree) or above shall have their punishment successively increased one degree, and those who have caused the death of the emperor’s relatives shall be punished by decapitation.

From the comprehensive survey of the ancient Chinese society, it could be seen that not only a set of complete and elaborate imperial systems were established with the aim to strengthen the autocratic ruling, but also a series of laws were made so as to make the emperor’s sovereign power “legalized” and to ensure that the emperor could “exercise the exclusive power to rule the world without any restrictions”.30

Thirdly, to affirm the emperor’s supreme power over the state.
  1. 1.

    The emperor could make laws at his own will. There were two primary categories of legislation in ancient China: one was the compilation of code laws, which was the basic legislation in the past dynasties and was characterized by being comparatively stable; the other was the compilation of the imperial decrees, regulations, and legal cases, which had functioned as the supplementary laws, and which were more flexible and more representative of the emperor’s will. For example, in Han Dynasty, the law was used as the basic law, while the “Ling” (order or ordinance), “Bi” (analogy), and “Li” (precedent) were the supplementary laws. “Ling” (order or ordinance) referred to the imperial orders, and it was defined as “the revised or the added part of the imperial decrees, excluded from the statute law”.31 The emperor’s imperial orders could not only overtop the law, but also take the place of some stipulations of the law, and could be added up as the new stipulations of the law. For this reason, when the “Ting Wei” (the supreme official in charge of judicature) in Han dynasty named Du Zhou was asked the question that “you are a judicial officer supposed to judge legal cases for the emperor, but what you actually do is merely making decisions in accordance with the emperor’s will, but not in accordance with ‘Fa’ (law). Is this what a judicial officer ought to do?” He clearly answered: “How ‘Fa’ (law) and ‘Ling’ (order or ordinance) are made? The ideas approved by the previous emperors are made into ‘Fa’; the words written by the present emperor are made into ‘Ling’. The decisions made by the emperors could only properly handle the situations at that time, so, what is the point of adopting the ‘Fa’ which belonged to the past?”32 What he said was a true reflection about the whole feudal legal system. With the extremalization of the centralization of feudal monarchy, among the various forms of law, “Chi Ling” (instructions and orders) signed by the emperors and “Qing Ding Li” (the precedents by imperial order) became more and more important, which could be seen in “Ling” (the orders or ordinances) of Tang, “Chi” (instruction) of Song, the “Gao” (imperial mandate) of Ming, and “Li” (precedent) of Qing. Since the supreme legislative power was practically in the emperor’s hands and the emperor’s will was expressed in the form of law, the law must have undoubtedly focused its main goal and core content on the maintenance of the supreme imperial power. Besides, since the emperors’ wills were made into law, the national law was also entitled to “Qing Ding” (being approved by the emperor) so as to indicate that laws were made by the emperors. As a result, the special privileges of those emperors had not only overtopped, but also totally dominated all forms of laws without any legal restraints. In history, among the tremendous amount of legal codes, there were no particular laws for restraining the imperial power of emperor until the Constitution was written in the later period of the Qing Dynasty. Even in Qin Ding Xian Fa Da Gang (Outline of Constitution by Imperial Order), it was still regulated that, “the emperor’s dignity is sacred and inviolable”. In the long-lasting feudal society of China, the law was made just to control the subjects, and its ultimate goal was to rule the people. Nevertheless, in order to govern the common people, the officials should also be administered, because only in this way could the functions of bureaucratic machines be perfectly operated. If in the pre-Qin period, the national law had been mixed together with the family rules, then until the late Qing Dynasty, the national law was still viewed as an “ancestral family rule”. Therefore, Huang Zongxi had sharply criticized that the law in this autocratic regime was “the law of one family”, but not “the law of China”.

     
Because the law was a tool used by emperors to govern the people, to stop the violence, to punish the wicked, and to establish imperial governments, in history, the ambitious emperors had not only paid much attention to legislation, but also even presided over legislation by themselves. Take Emperor Zhu Yuanzhang of the Ming Dynasty as an example, before he was on the throne, in the tenth month of the first year of Wu, Zhu Yuanzhang had ordered Li Shanchang and other officials to draft a law, and he had pointed out that “the law should be concise and proper”, and that “if we fish with a net with very fine meshes, no big fish will be left in the lake, and if there are very strict stipulations in the law, no subjects could survive in the country”. He suggested to Li Shanchang and other officials that every day they should “report the newly drafted stipulations to him”, so that he could personally “make decisions after careful consideration”.33 Till the 30th year of Hongwu (Emperor Zhu Yuanzhang), the law code of Ming was finally completed. Liu Weiqian, who was in charge of the revision of the law code stated in Jin Ming Lv Biao (A Memorial to the Emperor about Ming Code) that the law code of Ming had been revised and amended by Zhu Yuanzhang himself:

The copies of every completed chapter were memorialized to the emperor, and then were posted on the walls of the west palace. The emperor made revisions and comments on the copies by himself. … because of the emperor’s profound insights, it is possible for this law code to both verify ‘Tian Li’ (heavenly principles) and reflect the people’s will, so it will become a yardstick applicable for hundreds of dynasties.

Moreover, Zhu Yuanzhang had collected the legal cases of the officials and the common people and compiled them into Yu Zhi Da Gao (The Imperial Grand Decrees), Yu Zhi Da Gao Xu Pian (The Sequel of the Imperial Grand Decrees), Yu Zhi Da Gao San Pian (Three Articles of the Imperial Grand Decrees), and Da Gao Wu Chen (Grand Decrees to Military Officials). And totally, there were 236 articles included in those books, which were compiled so as to “warn the ignorant and the stubborn” and to let the subjects know the ways of “pursuing good fortune and avoiding disaster”. Those grand decrees had played a very important role in the legal system at the beginning of the Ming Dynasty.

In Da Qing Lv Li (The Laws and Precedents of Great Qing), which was enacted in the fifth year of Emperor Qianlong, either the articles, the explanations, or the notes, were all examined and approved by the Emperor himself. Because Emperor Zhu Yuanzhang and Emperor Qianglong had respectively worked on Ming Code and Da Qing Lv Li (The Laws and Precedents of Great Qing) with painstaking efforts and careful considerations, the two legal codes were announced to be statute laws, with no further modifications made, but with only supplementary legal cases added up to it to make it more perfect.
  1. 2.

    The emperors had the supreme administrative power of the state. In the autocratic system of the feudal society, the emperors were the monarchs of the state, who were endowed with supreme administrative powers.

     

Firstly, “Zhao” (decree), “Ling” (order or ordinance), “Zhi” (regulation), and “Chi” (instruction) were issued by the emperors to control the administrative activities of the state. As early as Qin Shi Huang (the first emperor of Qin), “Ming” (command) was enacted as “Zhi” (regulation), and “Ling” (order or ordinance) as “Zhao” (decree). After the Qin Dynasty, there emerged the forms like “Chi” (instruction) and “Ge” (injunction). And they were the most authoritative documents guiding the administrative activities of the state, so whether in the central or local governments, the activities must be carried out according to them. Additionally, those documents were also the forms of laws which had great legal effects. Shang Yang once pointed out that “if there is an intelligent ruler or a loyal minister born in this age who is able to lead his country, then he should not be forgetful of the law for even one moment”.34 Therefore, in each dynasty, the emperor had supplemented the insufficiency of the national statue laws by issuing “Zhao” (decree), “Ling” (order or ordinance), “Zhi” (regulation), and “Chi” (instructions). Since they were perfect embodiments of the wills of the emperors, a crime of “ostensibly complying with the imperial orders but disobeying in private” was written into the law of Qin dynasty. It was recorded in Fa Lv Za Chao (Miscellaneous Excerpts of Laws) in “Qin Jian” (bamboo writing slips in Qin Dynasty) that “the officials who have ostensibly obeyed the imperial orders but secretly disobeyed them shall be punished by exiling to the border areas serving as laborers. …, besides, they shall be permanently removed from office”. The time limit for delivering the imperial orders was also stipulated in the law of Qin: “if the orders are urgent, they shall be delivered immediately”; “if they are not urgent, they shall be delivered within a day”, and if the orders were delayed, “punishments shall be given in accordance with the law”. In Tang Lv (Tang Code), there were also stipulations about “making mistakes in drafting the imperial decrees”, according to which, the officials who had found mistakes in the texts of imperial decrees shall report them to the emperor in memorials and shall not correct the mistakes without authorization; otherwise, they shall be punished.

Secondly, “Chao Yi” (imperial court consultation) was held so as to gather the officials to have discussions about the military or the administrative affairs. “Chao Yi” (imperial court consultation) in the dynasties of Qin and Han was held to make strategic decisions. During the consultations, the officials discussed the issues about crowning the emperor, choosing the heir to the throne, handling the affairs of ancestral temples, and about the sacrifices, the ceremonies, the conferment, the rewards, the legal system, the affairs of boarder areas, and punishment and imprisonment of officials, etc. After the discussions, the emperors’ final decisions were written into “Zhao” (decree), “Ling” (order or ordinance), “Zhi” (regulation), and “Chi” (instruction) and were delivered to relevant official departments to be carried out.

During the dynasties of Sui and Tang, the court meetings presided over by the emperors, which were referred to as “Chang Can”, were held so as to make strategic decisions. They were held every day or every two days, and the participants were usually civil officials who were “Wu Pin” (the fifth ranks) or above. In the court meetings, the affairs in national defense and administration, or the affairs mentioned in the memorials presented by the officials would be proposed and discussed. During the middle of the Tang Dynasty, the court meetings which involved “Zhong Shu Men Xia” (the supreme organization in charge of the state affairs in ancient China) and “Shang Shu” (the minister) of each department, and which were held in Ting Ying Hall by the emperor were the most important imperial conferences. At the meetings, motions were proposed by “Zai Xiang” (the Prime Minister), and approved orally by the emperor, and finally the resolutions proposed by “Zai Xiang” (the Prime Minister) were written down and memorialized for the emperor’s approval before being carried out.

In Ming Dynasty, if confronted with important military and civil affairs, the emperors would hold and preside over court meetings before making decisions. In the years of Zhengtong (Emperor Zhu Qizhen, 1436 A.D.–1449 A.D.), according to the issues being discussed, discussions were held by the chief ministers of departments, and then the results were presented in memorials to the emperor for resolutions. If the resolutions were disapproved of by the emperor, they would be sent back to the ministers to be further discussed.

Before the Manchus entered Shan Hai Guan Pass, the Council of Princes and Ministers which was attended by the Manchu nobles, was the most important institution for handling the affairs in national defense and administration. After the Manchus entered Shan Hai Guan Pass, the Council of Princes and Ministers was cancelled and changed into “Jiu Qing Hui” (The Council of the Nine Chamberlains) as a result of the increasing imperial power and the adoption of political strategies for weakening the power of the “Ba Qi” (the Eight Banners: banners, a division of Manchu nationality and the emperor’s clan). “Jiu Qing Hui” (The Council of the Nine Chamberlains) were hardly comparable with the Council of Princes and Ministers either in compositions, nature, or function.

In short, “Chao Yi” (imperial court consultation), convened or presided over by the emperors, was an important institution for researching and making decisions about the national administrative affairs. However, “Chao Yi” (imperial court consultation) had not imposed any restraints on the emperor, on the contrary, the issues, such as whether “Chao Yi” (imperial court consultation) needed to be held, what needed to be discussed during the consultation, and what kind of final resolutions needed to be given, were all decided by the emperor himself, which, on this account, had provided a necessary condition for the emperor to “solicit opinions from all sides” and to “make decisions on state policies by himself”. Thus, “Chao Yi” (imperial court consultation) was an important way for the emperor to direct the administrative activities. Compared with the tours of inspection by the emperors, “Chao Yi” (imperial court consultation) was held more frequently and regularly.

Thirdly, to appoint and supervise officials to perform the function of administrative management instruments. Because the officials were very important instruments to perform the functions and power of the state with human individualities, and the bureaucratic organizations were the backbones of the feudal autocratic systems, on the one hand, the emperors had appointed a great many of officials to be in charge of the military, punishment, financial and agricultural departments; on the other hand, they had taken many measures to manage and control the officials so as to let them play their roles by careful selection and supervision.

During Qin and Han dynasties, the officials were primarily selected by recommendations from the common people. According to the law of Qin, “if the common people are considered competent, they can be officials”, however, “if the selected people have conducted wrongdoings, they shall be punished according to the crimes which they have committed”. In Han Dynasty, the officials were usually appointed, and thus, a series of regulations on the methods, rules, and the time limit of appointment were made. In order to ensure the centralization of authority, in the reign of Emperor Wen of Han dynasty, it was provided that the officials with the salary of 2,000 dan (the unit of measurement in ancient China) of grain shall be appointed by the central government. During the reign of Emperor Jing of Han dynasty, the rights of appointing all the officials were taken back to the central government. In the period of Emperor Wu of Han dynasty, the officials’ avoidance system was adopted, according to which, “Ci Shi” (feudal provincial or prefectural governor), “Jun Shou” (the governor of prefecture) and “Guo Xiang” (the official in charge of civil affairs) shall withdraw from the provinces and the prefectures where they were born, and “Xian Ling” (the county magistrates), “Cheng” (the assistant officials), and “Wei” (a military officer) shall withdraw from the counties where they were born. In Eastern Han Dynasty (25 A.D.–220 A.D.), in order to prevent the threat to the emperor, restrictions were imposed on appointing the imperial relatives and on their official ranks. However, most of these regulations on appointing officials were abolished at the end of the Eastern Han Dynasty as a result of the decline of the centralization of powers.

In the periods of Sui and Tang dynasty, “Ke Ju” (the imperial examination) for selecting officials was implemented, and it was continued in the dynasties after Tang because it had provided the important support to the feudal bureaucratic politics. The imperial examination scheme was divided into three examinations: “Xiang Shi” (the provincial examination), “Hui Shi” (the metropolitan examination), and “Dian Shi” (the final imperial examination). “Dian Shi” (the final imperial examination) was presided over by the emperor himself, so it was also called “Ting Shi” (the final court examination). Since the examinees were examined by the emperors himself, those who had passed the final examination were also called “Tian Zi Men Sheng” (the students of the emperor). Thus, through the final imperial examinations, the emperors had further controlled the rights of the appointment of officials. Except the final imperial examinations, the emperors could also select more officials through “En Yin” (the appointments of the descendants of those who had made great contributions to the state) or through the recommendation of other officials.

In order to keep control of the officials, to bring the roles of the bureaucrats into full play, and to guarantee the operation of administrative institutions, the system of official examination and supervision was established and adopted in different dynasties. Either in the system of “Da Ji” (the officials were assessed once every 3 years) adopted in Qin and Han dynasties, or in “Ba Fa” (Eight Regulations, namely, greed, ruthlessness, passiveness, imprudence, agedness, sickness, fickleness and incompetence) adopted in Ming and Qing dynasties, the final dismissal, promotion, rewarding or punishment of the officials were all controlled by the emperor himself.

Apart from the methods mentioned above, the supervisory institutions personally controlled by the emperors also performed the task of administrative supervision, which had acted in coordination with the system of official examination and supervision, but their only difference was that the former carried out supervisions regularly, but the latter irregularly.

Fourthly, the officials were strictly forbidden to attach themselves to bigwigs or to gang up to endanger the imperial power. Thus, in order to prevent the imperial power from being weakened, throughout the dynasties of Qin, Han, Ming and Qing, strict preventive measures and harsh punishments were carried out to prohibit the organization of the cliques of officials. In the reign of Qin Shi Huang (the first emperor of Qin), in the settling of the two cases of “Lao Ai” and “Lv Buwei”, thousands of families were involved and harshly punished, the scope of which was surprisingly wide. At the beginning of Han dynasty, particular policies were carried out so as to strengthen the central power and weaken the local power, so, regulations were made to have those who had attached themselves to bigwigs or ganged up punished harshly. If the officials “have rendered fame to each other or recommended higher positions to each other”, or “ganged up for evil doings”, they could be punished either by removing their official titles for the lenient punishments or by the death penalties executed in market-places for the harsher punishments. After learning from the historical lessons that the imperial power was weakened as a result of the gang-up of bureaucrats at the end of the Tang Dynasty, in the dynasties of Ming and Qing, the crime of “organizing treacherous cliques” was written into the legal codes, according to which “any official who has threatened politics by forming treacherous cliques shall be decapitated. Besides, their wives shall be enslaved, and their property shall be confiscated”.35 The local officials from “Ba Qi” (the Eight Banners: banners, a division of Manchu nationality and the emperor’s clan) who went to the capital on business, were also forbidden to visit the princes (the heads) of their own “Qi” (Banners); otherwise, they would be punished.36 In order to prevent the ministers from organizing treacherous cliques by private recommendation, it was rigorously stipulated in law that only the emperors had the right to select officials, and “if the high officials have selected the junior officials without authorization, they shall be punished by decapitation”.37 Moreover, “the relatives of the ministers should not be removed from the office or be appointed without special authorization from the emperor”; otherwise, the offenders would be punished by death penalty. Meanwhile, it was also stipulated that: “if any local government officials were proved to be guilty of malpractices or of betraying the government, or of disclosing the secrets in the imperial palace by associating with eunuchs in palace or with the court attendant officials of the emperor, they shall be punished by decapitation, and their wives and sons shall be punished by exile to a distance of 2,000 li.”38

Finally, the policies were changed from restraining the power of “Cheng Xiang” (the Prime Minister) to its abolishing. The position of “Cheng Xiang” was implemented in the period of Warring States (475 B.C.–221 B.C.), and it had been existing for more than one thousand years throughout the dynasties of Qin, Han, Sui, and Tang before it was finally abolished in the reign of Emperor Zhu Yuanzhang. “Cheng Xiang” (the Prime Minister) was the supreme chief executive in the central government and the head of different officials. Moreover, “Cheng Xiang” (the Prime Minister) was not only an important assistant of the emperor, but also a balancing power for restraining the emperor from exercising his imperial power. Therefore, on the one hand, the emperor had to rely on “Cheng Xiang” to deal with the administrative affairs and to mediate the relationship between different departments; on the other hand, he had to fight against the interference of “Cheng Xiang” in his exercise of imperial power. Sometimes the emperor even had to inflict punishments on “Cheng Xiang” for the interference. For example, altogether 13 “Cheng Xiang” were appointed during the 54-year-long reign of Emperor Wu of Han, among them, Li Cai and Yan Qinqu “have committed suicide for feeling guilty”; Zhao Zhou, Gongsun He, and Liu Qumao “were imprisoned to death”; Wei Wan, Dou Ying, Xu Chang, and Xue Ze were removed from offices for malpractices (Ying was punished by the death penalty executed in the marked-place after being removed from office). When Che Qianqiu was appointed “Cheng Xiang”, Huo Guang became the “Fu Zheng Da Jiang Jun” (Assisting Senior General), for this reason, his position of “Cheng Xiang” existed only in name. Among the 13 people who had held the post of “Cheng Xiang”, only three still remained in the position of “Cheng Xiang” when they died, and this was because Tian Fen was the uncle of the emperor, Gongsun Hong had never “argued in the court” and always “complied with the orders of the emperor”, and Shi Qin “was a man without great strategies except for his profound knowledge”. Generally speaking, the power of “Cheng Xiang” (the Prime Minister) were not only divided, but also weakened ever since the post was created. In Tang Dynasty, a system which consisted of several prime ministers was adopted, according to which, the ministers participating in the court meetings were all named “Cheng Xiang”, so sometimes the number of “Cheng Xiang” could be as many as a dozen or so. At the beginning of Ming Dynasty, “Cheng Xiang” were given the authority to make important national policies, to issue official orders, and to directly lead “Liu Bu” (The Six Boards: Board of Personnel, Board of Revenues, Board of Rites, Board of War, Board of Punishments, Board of Works) and other departments. Therefore, to some extent, such power of “Cheng Xiang” had restrained the emperor from exercising his imperial power, which must have become the reason why Emperor Zhu Yuanzhang had wanted to have the “Cheng Xiang” system abolished. But before the abolishment, Emperor Zhu Yuanzhang had created public opinion and said, “Most of the “Cheng Xiang” in the past dynasties have abused and usurped their powers”. Furthermore, he had attributed the extinctions of the Qin, Han, Tang, Song, and Yuan dynasties to “the dictatorship and interference with the administrations by the prime ministers’”.39 After that, various measures were taken by Emperor Zhu YuanZhang to weaken the power of “Cheng Xiang”. In the 13th year of Hongwu (1330 A.D.), Emperor Zhu Yuanzhang had used “Zuo Cheng Xiang” (the second prime minister) Hui Weiyong’s rebellion as an excuse, killed his associates, and then seized the opportunity and abolished the position of “Cheng Xiang”. Finally, the power of “Cheng Xiang” was deprived and seized in the emperor’s own hands. As a result, the long-existing conflicts between the imperial power and the power of “Cheng Xiang” ended up with the emperor’s victory.
  1. 3.

    The emperor held the supreme military power of the state. The military forces were not only a principal constituent of the feudal state institutions, but also the backbone of the autocratic system and a decisive factor in the stability of political power. It had been proved in the history of the feudal politics that the fragmentation of military force was a major reason for the weakened centralization of power, and that the disintegration of military troops had always been a sign of the extinction of a dynasty. Therefore, on the one hand, the emperors in the past dynasties had all made every effort to set up troops that could carry out duties home and abroad; on the other hand, they had also exerted their best to concentrate the military power and to put the power of military control into their own hands, which they had regarded as major steps in strengthening the absolute monarchy.

     

During Qin and Han dynasties, the emperor was the supreme military commander, and the senior generals, like “Guo Wei”(an officer in charge of domestic and foreign affairs in the state of Qin), “Tai Wei” (the minister of defense), “Jiang Jun”( the great general), “Wei Wei”( an officer in charge of defending the emperor’s residence), “Zhong Wei”( an officer in charge of defending the capital), and “Jun Wei”(an officer in charge of the military affairs in a prefecture), etc. were all appointed or dismissed by the emperor himself. And the troops should not be deployed without the emperor’s commands which were testified by “He Fu” (a tally shaped into two halves for evidence).

It was stipulated in Tang Lv (Tang Code) that the emperor’s permissions were needed when dispatching an army of 10 soldiers and “an army of ten soldiers shall not be dispatched until the two halves of a tally shaped into a bronze fish match with each other, or until the two halves of an imperial seal on the document match with each other. If troops are urgently needed to be mobilized, but there is not enough time to get the emperor’s permission, the troops can be sent but the deployment shall be reported promptly”.40 If troops were moved without authorization, the offenders shall be punished according to the number of soldiers they had moved: “if more than ten soldiers have been dispatched without authorization, the offenders shall be punished by penal servitude for one year; if less than one hundred, the offenders shall be punished by penal servitude for one year and a half; if more than one hundred, the offenders’ punishments shall be increased one degree; if ten hundred, the offenders shall be punished by strangulation”.41 Although documents of dispatching the troops had been received from “Bing Bu” (Board of War), the generals still should present memorials to the emperor before dispatching any soldier; otherwise, the commanders should be severely punished according to the number of soldiers they had deployed without authorization. The troops could be moved in urgent cases, but it should be reported to the emperor without delay:

If the rebel forces have launched a sudden attack, or within cities or towns where foot or cavalry troops are stationed, there are people who are engaged in rebellions or treasons, or there are people cooperating from within, so the matters are urgent, or the distance is great, the troops should be quickly deployed, … if the command for the deployment of the troops is delayed, or if the command is given, but the deployment of the troops and horses are delayed, the offenders shall be punished by the same punishment for having ‘transferred the troops without authorization’ according to the number of soldiers involved, and if the report of the deployment of the troops is delayed, the penalty given to the offenders shall be reduced one degree according to the number of the deployed soldiers.42

By learning from his past personal experience, Emperor Zhao Kuangying of the Song Dynasty had realized that “if the military power is seized, the society will be prosperous, but if the military power is lost, the society will decline”.43 For this reason, he had divided the military power into three parts: the power of controlling the army, the power of deploying the army, and the power of commanding the army, and then he had divided the different powers to three parts—“Dian Qian Si” (the Palace Command), together with “Shi We Ma Jun Si” (the Metropolitan Cavalry Command) and “Shi Wei Bu Jun Si” (the Metropolitan Infantry Command) had the power of controlling the army, “Shu Mi Yuan” (Privy Council) had the power of deploying the army, and the generals were temporally dispatched to command the army. Each of the three units was responsible to the emperor, and none of them had the exclusively military power to set up a separatist regime by forces, hence, the military power was ensured to be controlled by the emperor. Because the professional troops were tightly controlled by the emperor, moreover, and besides the military personnel were successfully prevented from interfering with politics, the institutions of the imperial government were able to function smoothly.

In Ming Dynasty, although the concentration of the military power was strengthened, nevertheless, because the eunuchs had been involved in the controlling of the military troops, it had reflected the characteristics of the times, namely, the extreme corruption of autocratic politics.

In Qing Dynasty, the emperors had exercised the supreme leadership of “Ba Qi” (the Eight Banners: banners, a division of Manchu nationality and the emperor’s clan), the green camp army, the Mongolian cavalry soldiers, the local soldiers, and the soldiers of alien tribes.
  1. 4.

    The emperor held the supreme judicial power. As early as the times after the unification of the Qin Dynasty, Qin Shi Huang (the first emperor of Qin) had read over and made comments on the documents, settled cases, carried out the punishments and granted rewards according to concrete situations. During the periods of the Western Han and Eastern Han dynasties, the emperors had often attended the court hearings by themselves. For example, Emperor Xuan of Han had “always gone to the courts to settle the cases by himself”.44 In order to try the major cases, a provisional judicial organization was ordered to be set up according to an imperial decree issued by Emperor Ai of Han, which was named “Za Zhi” (the office for handling the miscellaneous cases). For instance, during his reign, “a ‘Ting Wei’ (the supreme official in charge of judicature) named Liang Xiang, ‘Cheng Xiang Zhang Shi’ (the assistant of the Prime Minister), ‘Yu Shi Zhong Cheng’ (Grand Censor), and five other senior officials with the payment of 2,000 dan (the unit of measurement in ancient China) of grain as salaries had constituted a ‘Za Zhi’ (the office for handling the miscellaneous cases) and worked together on the case of the Prince of Dongping named Liu Yun.”45 Actually, the trials were just a form, because the decisions of the miscellaneous cases were all made in accordance with the emperor’s will. In the period of “San Guo” (Three Kingdoms), Western and Eastern Jin, and Southern and Northern Dynasties, there were many records in books about the attendance of the emperors to the trials. In the third year of Taihe, Emperor Mingdi of Wei had changed the name of a temple from “Ping Wang” into “Ting Song” (Hearing Litigations), and the emperor himself had frequently been to the temple to hear litigations. In the second year of Yong Chu, Emperor Songwu of Southern Dynasty had been to Hua Lin Garden and Ting Xian Temple and conducted five trials. In the seventh year of Da Ming, he personally went to the places of Mo Ling county in Jian Kang, Nan Yu Zhou (Nan Yu subprefecture), and Jiang Ning to hear litigations. During the years of Jian De, Emperor Wu of the Northern Zhou often “tried cases in Zheng Wu Palace from morning to night, until it was too dark, and candles had to be lit”.46

     

In Tang Dynasty, if there were major doubtful cases or major petitions, the emperors might issue decrees to order the ministers of “Da Li Si” (The Court of Judicial Review), “Shang Shu” (the minister) of “Xing Bu” (Board of Punishment), and “Yu Shi Zhong Cheng” (Grand Censor) to conduct joint trials, which were referred to as “San Si Tui Shi” (the joint trial of three departments). According to Tang Lv (Tang Code), the final decisions of the doubtful or major cases, or the cases involving noblemen, bureaucrats or the death penalty, should be made by the emperor himself. Therefore, the emperors had seized the judicial power in his hands through the judicial processes of “Yi” (cases involving eight privileged groups were not to be tried directly by judicial organs, but to be reported to and decided by the emperor, and thus the accused would usually be pardoned or remitted), “Qing” (cases involving officials above the fifth rank shall be reported to and decided by the emperor, the punishment other than death penalty would be remitted by one degree) and “Jian” (except for death penalty, other punishments on officials above the seventh rank and their families could be remitted by one degree), “Shu” (redemption), “Guan Dang” (redeeming one’s official position for the atonement for a crime), “Mian” (dismissing from official position), “Hui Shen” (the joint trial), “San Fu Zou” (the triple review), “Wu Fu Zou” (the quintuple review), the interrogation of prisoner, the grand amnesty, and the prudent infliction of punishment. Besides, the emperors could also issue some particular decrees for some special cases to make convictions, implement punishments and control the judicature. This special judicial process was a reflection of the judicial privileges of the emperor, and other officials did not have any rights to quote from the issued decrees to make court decisions without authorization. It was regulated in Tang Lv (Tang Code) that “the decrees and official documents issued by the emperor are for accommodating to the circumstances. Therefore, they are just for temporary use, and can neither be applied permanently, nor be cited as examples or standards for the settlement of other cases. If they are cited so that the guilty are exonerated and the innocent are implicated, the offenders shall be punished for intentional offences or negligence”.47

Even though the execution of the death penalty had been approved by the emperor after going through the judicial procedure of “San Fu Zou” (the triple reviews) or “Wu Fu Zou” (the quintuple reviews), it could not be carried out immediately until 3 days later; otherwise, the offenders would be punished:

Those who have executed the prisoners punishable by death penalty before the case is reviewed shall be punished by exile to a distance of 2,000 li. Even though the memorials concerning the prisoners punishable by the death penalty are approved by the emperor, the prisoners shall not be executed until three days later. Those who have executed the prisoners before the time limit shall be punished for penal servitude for one year, and those who have delayed the execution of the death penalty for one day shall be punished by ‘Zhang’ (flogging with heavy sticks) for one hundred strokes; for a delay of two days, the penalty shall be increased one degree.48

At the beginning of North Song Dynasty (960 A.D.–1127 A.D.), a judicial organization called “Shen Xing Yuan” (The Case Review Court) was set up in the imperial palace to further strengthen the emperor’s control over the judicial power. Any case which had been tried by “Da Li Si” (The Court of Judicial Review) should be transferred to “Xing Bu” (Board of Punishment) for reviewing, then to “Shen Xing Yuan” (The Case Review Court) for deliberation before an imperial decision was made. When the judicial system was reformed in the reign of Emperor Shenzong of Song, “Shen Xing Yuan” (The Case Review Court) was abolished because of the overlapping of organizations. As the supreme judge, the emperor not only had personally tried the doubtful cases in the capital, but had appointed judges to hear the major cases to have them reported to him. The cases settled by the emperor were referred to as “Zhao Yu”, and the court in which “Zhao Yu” was tried was called “Zhi Kan Yuan” (The Provisional Superior Court). During the reign of Emperor Huizong of Song, the decisions made by the emperor himself had even “replaced the old regulations”, which had shown the emperor’s privilege in “deciding the life and death of the people” and “implementing lenient or severe punishments”. As to the cases settled by the emperor, if anybody had criticized them on the pretext that they were against the “common law”, and had refused to carry them out, they would be punished for the crime of great irreverence; if anybody had reported to “Shang Shu Sheng” (The Department of Secretary) the inappropriateness of the imperial settlements, he would be punished for the crime of “violating the imperial decisions”, and if “the imperial settlements have been delayed to be implemented by the officials for one hour, the officials shall be punished by ‘Zhang’ (flogging with heavy sticks) for one hundred strokes; delayed for one day, they shall be punished by penal servitude for two years; delayed for two days, the penalty shall be increased one degree. …delayed for three days, they shall be punished by great irreverence”.49

In Song Dynasty, the amnesty system prevailed. The amnesties were given a multitude of names, for example, “Da She” (the grand amnesty), “Qu She” (the partial amnesty), “De Yin” (the virtuous pardon), and “Shu Jue” (the clarified court decision), etc. In Song Dynasty, within the 230 years, there were totally 301 amnesties. The randomly granted amnesties in Song Dynasty were not only in conflict with the principle of stressing law, but also had interfered with and brought damage to the policy of ruling by law. Besides, they had demonstrated that the emperors of the Song Dynasty had absolute rights over people’s life and death.

In Ming Dynasty, Emperor Zhu Yuanzhang not only tried the important cases of the central government agencies, but also took the jobs of other departments into his own hands to try the civil and criminal cases that should be judged by the local governments. Since the cases were judged by him according to his own likes and dislikes, it had often led to “the frequent change of the regulations”, with the result that “rewards were granted in the morning but punishments were enforced at night” and that “punishments were inflicted at one moment but amnesties were announced at the next”. Consequently, it had proved that the emperors had the rights not only to issue any laws and decrees, but also to abolish them.

In Qing Dynasty, the trial system of the Ming Dynasty called “Yuan Shen” (The Joint Trial) was succeeded and developed into “Qiu Shen” (the Autumn Assizes), or namely, “Jiu Qing Hui Shen” (Joint Hearing by Jiu Qing: the nine heads of central government departments in feudal China), which was endowed with supreme authority to settle the major cases concerning the reviewed death penalties reported by the local courts. The cases which was tried in “Qiu Shen” (the Autumn Assizes) were divided into four categories, namely, “Qing Shi” (circumstances deserving capital punishment), “Huan Jue” (deferred execution), “Ke Jin” (worthy of compassion), and “Liu Yang Cheng Si” (remaining at home to care for the parents or to perpetuate the ancestral sacrifices). Those cases should be reported to the emperor for final decisions before the punishments were carried out. “Qiu Shen” (the Autumn Assizes) was rendered as a great ceremony to show the emperors’ solicitude for people’s lives and to judge cases in accordance with the law, but, in fact, it had further tightened the emperor’s control over the judicial power, which could be proved by the comments on “Qiu Shen” made by the emperors since the reign of Emperor Kangxi. For example, in the 40th year of his reign, Emperor Kangxi showed his serious concern about “Qiu Shen” and his hope to control it in a decree. He said, “I have reviewed the cases of “Qiu Shen” (the Autumn Assizes) and have found many mistakes in the expressions of the charges which have been badly neglected by the officials in court. So, “Xing Bu” (Board of Punishment) should be especially blamed for its carelessness and should be punished.”50 In an imperial decree issued on May 27th of the third year, Emperor Yongzheng said, “I have been concerning about the punishment and judgment since I was on the throne. Whenever I am presented the memorials concerning the decisions of legal cases, they will be reviewed repeatedly for fear that mistakes should be made.”51 In the 14th year of Emperor Qianlong, a decree was issued:

Whenever it is the time to carry out the capital punishment, I will check off the names repeatedly, sometimes as many as five or six times, until I have everything clear. Before the execution of the capital punishment, I will discuss the cases with the ministers and deliberate them carefully before making any decisions. It is actually far more than three reviews.52

In addition to the control over the supreme power of legislation, administration, military, and judicature, the supreme supervisory power was also controlled by the emperors through the operations of the supervisory institutions, which had been acting as the emperors’ eyes and ears. Either the officials in the central government or the officials in the local government were all supervised by the supervisory institutions. Usually, supervisors did not have very high ranks; however, since their power was attached to the imperial power, moreover, they “could present memorials to the emperor to get the imperial decisions if the matters were important, but they had the rights to make quick decisions themselves if the matters were minor”, they became immensely powerful. As to the economic power of the state, it was also seized in the hands of the emperors, because those emperors had viewed “everything in the world” as “the great properties” of their own. Deng Zirong once commented that “under the heaven, all is the king’s land; and at home and abroad, all is the emperor’s wealth.”53 We could learn from above that the saying that “the matters under the heaven, whether they are important or not, are all determined by the emperor” was really in accordance with the actual historical realities in China under the autocratic system.54

6.3 The Conflicts Between the Imperial Power and Law

The law made in the feudal times was a tool not only to rule the country, but also to maintain the imperial authority, to set up the idol of the emperor among the people, to unite the people and to make people obedient to the emperor. During the feudal times when “‘Zhen’ (I, the emperor) is the country”, to be loyal to the emperor meant to be loyal to the country, and to die for the emperor meant to die for the country. For this reason, the process of strengthening the imperial power was also the process of the consolidation of the highly centralized state power of despotism.

Since “whatever the emperor has said is law”, and the emperor was regarded as “the hopes of the state”, and he was by no means be restrained by law. For this reason, the rise and the fall of the order of legal system had entirely depended on the virtue and abilities of the emperor. If the emperor was wise and liberal, to some extent, the feudal legal system would be maintained, the society would be stable and the economy would be developed. However, in the feudal times of China, there were few wise and liberal emperors, but many fatuous and dissolute ones. During Tang Dynasty, altogether there were 21 emperors, but only Emperor Taizong could be referred to as an enlightened sovereign, and most of the emperors were fatuous and self-indulgent who had “regarded the flattery and lies that their worshipers had paid to them as the greatest compliments, but the sincere words as heresies”. They had “shown despise to the virtuous and the able, and only promoted the wicked and the immoral”. Under the rules of those emperors, the order of legal system was inevitably trampled on, let alone judging the cases in accordance with law.

When the emperors had grasped all the financial, material, and human resources in his hands, it meant that the emperors had great energy in store, which might either be used to develop the country and build the state or be used to bring about great pain and suffering to the society. For example, after the unification of China, Qin Shi Huang (the first emperor of Qin) had indulged himself in governing the state and the people at will, and continued to enslave the people and construct palaces and the mausoleum for himself ever since he was on the throne. In his reign, “men were forced to serve in the army and women were forced to be engaged in transportation. Consequently, the people had no means of livelihood, and a great many of them had hanged themselves on the trees along the roads, and the dead bodies could be seen everywhere.”55 Another example was that in the reign of Emperor Yang of the Sui Dynasty, heavy corvee taxes were imposed upon people for the endless extortion of money. As a result, “the people often died of hard labor, and the families were ruined by the heavy burden of debts”.56 At the times when the weak small-scale peasant economy was dominating, it was very harmful to the social productivity, meanwhile, it would inevitably bring crisis to the ruling itself.

Because absolute power would always bring about absolute corruption, most of the emperors in the past dynasties would be involved in the vortexes of politics, where they were close to the villainous but estranged from the virtuous. As a result, “the virtuous have often been suppressed and can not bring their abilities into full play, whereas, the villainous have often taken the opportunities to spread slanders and to shift the blame towards the virtuous. On this account, few people would like to engage in any great undertakings”.57

Montesquieu once said, “All the people with power may abuse it easily, which is a lasting and unchangeable experience.”58 And it was only after the balancing system of the imperial power and the law itself was successfully overcome that the extreme development of the autocratic imperial power was finally achieved. The establishment and the abolishment of the post of “Cheng Xiang” (the Prime Minister) was a good case in point.

Nevertheless, the law was both the embodiment of the state will and the guarantee for the permanent interests of the state. Its function of resolving social conflicts and establishing social order was also applicable to restricting the imperial power from being abused. However, the successful enforcement of law would have both relied much on the devoted, unselfish and decent officials who could carry out the law impartially and on the enlightened emperors who could not only show respect to the law, but also accept people’s advices. Unfortunately, most of the philosophers in the feudal times had preached that “the imperial power is superior to the law”, and that “the power is solely possessed by the rulers.”59 Disapprovingly, the legalists and the bureaucrats who had advocated the ruling of law had proposed that the imperial power should be restricted within the scope of law. Guan Zi had said, “The law is superior to the rulers,”60 and he suggested that “the ruler should follow the law and the regulations first before he may require his people to do so”,61 namely, the ruler should set an example in obeying the law, so that “the law is abided by everyone, including the rulers, the ministers, the superior, the inferior, the noble, and the humble”. In Eastern Han Dynasty, Zhang Min believed that “the rulers should follow the rules of the ‘Tian’ (heaven) and ‘Di’ (Earth), conform to the rules of four seasons, set up standards for the sages, and observe the classic doctrines and the law”.62 In Western Jin Dynasty, it was pointed out by Liu Song that “the law is what the king and the subjects should commonly observe”.63 During the dynasties of Han and Tang, the famous judges like Zhang Shizhi and Dai Zhou had tried to restrict the conflicts between the imperial power and the observation of law in the scope of the order of the legal systems according to their standpoint of ruling by law. For example, one day, when Emperor Wen of the Han dynasty was on Zhong Wei Bridge, his horse shied as a man was walking under the bridge. Then a “Ting Wei” (the supreme official in charge of judicature) named Zhang Shizhi punished the man with a fine for “frightening ‘the carriage of the emperor’”. Yet when a harsher punishment was asked to be enforced by Emperor Wen, Zhang Shizhi then presented a memorial to the emperor, saying that “the law is made both for ‘Tian Zi’ (the son of Heaven or the emperor) and the people in the world. Now according to the law, such a punishment shall be given to this man. If a harsher one had been given, the people would lose their faith in the law.” Then he also said, “The position of ‘Ting Wei’ (the supreme official in charge of judicature) is the symbol of impartiality and justice. If the cases are judged partially by ‘Ting Wei’, the other officials may follow suit and give lenient or harsher sentences at will, and then how will people know what to do? I hope Your Majesty could carefully think about it”.64 Emperor Wen was finally convinced by what he said. At the beginning of Tang Dynasty, as to the situation where most of the appointed officials had faked their qualifications and records of service, a particular decree was issued by Emperor Li Shimin, which ruled that if they had not confessed, they would be punished by the capital penalty. Soon, the faked personal documents of an official named Liu Xiong in Wen Zhou were discovered, and then he was “imposed the punishment of exile on in accordance with the law” by the minister of “Da Li Si” (The Court of Judicial Review) named Dai Zhou. Emperor Li Shimin said, “The decree has been issued to tell the people that if the crimes are not confessed, the offenders shall be punished by the death penalty. Now you have changed the punishment to exile, and it will make people lose faith in me”. Dai Zhou then replied “I could do nothing if Your Majesty wants to have that man killed immediately. However, the case now is being dealt with by the judicial institution, and I dare not violate the law.” The emperor then said, “You are telling people that you are observing the law, but are you trying to let people lose faith in me?” In reply, Dai Zhou said, “The law is referred to as the publicized regulations of the state, and it is made to win the trust of people. What Your Majesty has said is out of your personal joy or anger; therefore, it is not right if people are killed because Your Majesty is angry. Now if the case is permitted to be judged in accordance with the law by Your Majesty, it is proper to restrain your ‘minor’ anger and to win the ‘great’ trust of the people. But if Your Majesty yields to your own ‘minor’ anger but loses the ‘great’ trust, I will feel sorry for Your Majesty”. Finally, Emperor Li Shimin was persuaded and said, “It is true that there are faults in my law, but now they have been rectified by you. So, what else should I worry about?”65

From the two cases mentioned above we could see that even if the emperor had the power of killing and enforcing punishments at will, as long as the cases were brought into the judicial processes and were dealt with by the impartial and fair-minded judges, restraints could be imposed upon the imperial powers by the application of the law. In history, the Han and Tang dynasties had always been referred to as the times of peace and prosperity, and the major reason for this was that the relationship between the law and the imperial power were properly developed. However, the cases of the imperial power being restrained by law were very rare in the feudal times, and it was practically impossible to change the fact that the law was not only made by the monarchs, it was also the dependency of the imperial power. Mostly, in history, the cases were that the emperors had just wantonly violated or even trampled on law by virtue of the supreme power in their hands. Emperor Wen of the Sui dynasty, who had proposed that “the law should not be violated”, had required that “the prisoners be beaten to death with the heavy sticks in June”. Nevertheless, according to the Confucian theory that punishment should be carried out in autumn and winter, the Minister of “Da Li Si” (The Court of Judicial Review) presented a memorial to the emperor to show his opposition: “summer is the season for everything to grow on earth, but not the season for killing”. Yet Emperor Wen answered, “‘it is true that June is the season for everything to grow, but there are still thunderbolts during this time, which is an expression of ‘Tian Dao’ (The Way of Heaven), and which has shown the anger of ‘Tian’ (Heaven). Now I am following ‘Tian Dao’ (The Way of Heaven), is there anything wrong?’ Consequently, the prisoners were then killed according to the emperor’s order.”66 In his old age, Emperor Wen had “executed laws even more strictly, and in the end he had become very moody and was overindulged in killing”.67

The remonstration system in the feudal times was also designed to correct the monarchs’ mistakes and to restrain the abuse of the imperial power. The remonstration system was very popular in Tang Dynasty, but in Ming and Qing dynasties it had lost its independence because of “Ke Dao He Yi” (the amalgamation of the supervisory institutions). Generally speaking, the remonstration system had not significantly affected the supremacy of the imperial power. Since it was believed that “the emperor was born to be dependent on by the subjects; the subjects were born to serve the emperor”, and that “the ministers have to depend on the emperor to live on”,68 no matter how sincere the ministers were when they were remonstrating with the emperor, what they had said would be definitely regarded as the violation of the imperial power. It was once stated by Han Feizi that “though the wisest have attempted to persuade the sages …, he is not necessarily be welcomed upon his first arrival”69; “the weights and measures, however accurate, are not always adopted; the doctrines and principles, however perfect, are not always practiced.”70 In fact, these phenomena had not existed just in the reigns of the emperors who had ruined their own country, they were the common failings of the autocratic monarchs, and the only difference was the seriousness in degrees. In fact, those who had used blunt words to remonstrate their emperors were doomed by their miserable ending, and usually, “those who had remonstrated with the emperor would be killed, and those who had flattered the emperor would be promoted”.71

In short, it was one of the legal traditions in ancient China that the law was not only made by the monarchs, but also was dominated by the imperial power, and that the law had provided protections for the imperial power which had in turn overtopped the law. Such a tradition had its deep social, historical, and cultural origins, and its conservativeness had hindered the social development. The far-sighted people in each dynasty had tried to solve this problem by integrating theories with practices. For example, Huang Zongxi had sharply criticized that the most corrupt practices of the autocratic system was that all of the political, military, legislative and judicial power were concentrated in the hands of the monarchs, and that the likes and dislikes of the monarchs had become the standards for judging the merits and faults of the people. He put forward his proposal of reformation that the “law of emperor” should be replaced by the “law of the world”; the centralized power should be divided and the autocracy should be changed into autonomy. When criticizing the autocratic system, Huang Zongxi had run the risk of blaspheming the imperial power, however, he had not thoroughly negated the monarchical system, but only focused on restraining the monarchical power in order that the emperor “should not do things merely to benefit himself, but should do things to benefit the people; should not do things merely to avoid himself being harmed, but should do things to avoid the people being harmed”.72 However, in the Chinese feudal autocratic system, it was impossible for Huang Zongxi’s proposal of reformation to produce any real effects, on the contrary; he had become the victim of “Wen Zi Yu” (literary inquisition) in the Qing dynasty. Obviously, ruled by the extremely autocratic system of the Qing dynasty, the law had become a dependency of the imperial power. In the debate about whether “the imperial power dominates law” or “the law dominates the imperial power” conducted in the constitutionalism in the late period of the Qing dynasty, it was finally agreed that “the major power belongs to the imperial court, but all the political affairs shall be publicized and discussed by the public”.73 The ultimate goal of the legal and political reforms undertaken in the modern times was to solve the problems in the relationship between the law and the power, or, in other words, to decide which of them was in a dominant position. On account of the autocratic system which had long lasted in China and the inertia which this system had brought along, the difficulty of solving this problem was increased. However, just as what was said in a poem, “hills verdant cannot block my view and the eastward the rivers continue to flow”. Upon the land that had bred the Chinese nation, a nation which is ruled by law will certainly emerge.

Footnotes

  1. 1.

    “Wang Zhi” (The Royal Regulations) in Xunzi.

  2. 2.

    “Tai Shi Gong Zi Xu” (Preface by Tai Shigong himself) in Shi Ji (The Records of the Grand Historian).

  3. 3.

    “Bei Shan” (Decade of Bei Shan) in “Xiao Ya” (Minor Odes of the Kingdom) in Shi Jing (The Book of Songs).

  4. 4.

    “Zhao Gong Qi Nian” (The 7th Year of Lu Zhao Gong) in Zuo Zhuan (The Chronicle of Zuo).

  5. 5.

    “Huan Gong Er Nian” (The Second Year of Duke of Huan) in Zuo Zhuan (The Chronicle of Zuo).

  6. 6.

    “Gan Shi” (the military order issued at Gan) in Shang Shu (The Book of Historical Document).

  7. 7.

    “Tang Shi” (an order issued by the king Tang of Shang Dynasty when attacking the state of Xia) in Shang Shu (The Book of Historical Document).

  8. 8.

    “Gao Tao Mo” (Counsels of Gaotao) in Shang Shu (The Book of Historical Document).

  9. 9.

    “Zhao Gong Liu Nian” (The 6th Year of Lu Zhao Gong) in Zuo Zhuan (The Chronicle of Zuo), annotated by Kong Yingda.

  10. 10.

    “Yin Gong Yuan Nian” (The First Year of Duke of Yin) in Gong Yang Zhuan (The Biography of Gongyang).

  11. 11.

    “Cheng Gong San Nian” (The Third Year of Duke of Cheng) in Zuo Zhuan (The Chronicle of Zuo).

  12. 12.

    “Bei Shan” (Decade of Bei Shan) in “Xiao Ya” (Minor Odes of the Kingdom) in Shi Jing (The Book of Songs).

  13. 13.

    “Qin Shi Huang Ben Ji” (Records of Qin Shi Huang) in Shi Ji (The Records of the Grand Historian).

  14. 14.

    “Han Gaozu Ben Ji” (Records of Emperor Han Gaozu) in Shi Ji (The Records of the Grand Historian).

  15. 15.

    “Yao Shun Tang Wu” (Yao, Shun, Shang Tang and King Wu of Zhou) in Chun Qiu Fan Lu (The Luxuriant Dew of Spring and Autumn Annals).

  16. 16.

    “Wei Ren Zhe Tian” (The Mandate of Heaven) in Chun Qiu Fan Lu (The Luxuriant Dew of Spring and Autumn Annals).

  17. 17.

    Yi Shu (The Posthumous Papers), Vol. 5.

  18. 18.

    Cai Han, Du Duan (Making Arbitrary Decisions), Vol. 1.

  19. 19.

    Noboru Niida, Tang Ling Shi Yi (An Interpretation of the Orders of Tang Dynasty), translated by Li Jing et al., Chang Chun Publishing House, 1989, p. 400.

  20. 20.

    Noboru Niida, Tang Ling Shi Yi (An Interpretation of the Orders of Tang Dynasty), translated by Li Jing et al., Chang Chun Publishing House, pp. 400–401.

  21. 21.

    Ibid., p. 504.

  22. 22.

    “Taboos in Presenting Memorials” in “Zhi Zhi (The State Office System)” in Tang Lv Shu Yi (The Comments on Tang Code).

  23. 23.

    “Li Yue” (Rites and Music) in Zhen Guan Zheng Yao (Essentials about Politics from Zhen Guan Reign).

  24. 24.

    “Qin Shi Huang Ben Ji” (Records of Qin Shi Huang) in Shi Ji (The Records of the Grand Historian).

  25. 25.

    Noboru Niida, Tang Ling Shi Yi (An Interpretation of the Orders of Tang Dynasty), translated by Li Jing et al., Chang Chun Publishing House, p. 534.

  26. 26.

    “Su Suntong Zhuan” (The Biography of Su Suntong) in Han Shu (The History of Former Han Dynasty).

  27. 27.

    Ibid.

  28. 28.

    “Ping Zhun Shu” (On Fair Trade) in Shi Ji (The Records of the Grand Historian).

  29. 29.

    “Yuan Jun” (On Monarchs) in Ming Yi Dai Fang Lu (Waiting for Dawn).

  30. 30.

    “Li Si Lie Zhuan” (The Biography of Li Si) in Shi Ji (The Records of the Grand Historian).

  31. 31.

    “Xuan Di Ji” (The Biography of Emperor Xuan) in Han Shu (The History of Former Han Dynasty), annotated by Wen Ying.

  32. 32.

    “Du Zhou Zhuan” (The Biography of Du Zhou) in Han Shu (The History of Former Han Dynasty).

  33. 33.

    “Xing Fa Zhi” (The Record of the Criminal Law) in Ming Shi (The History of Ming Dynasty).

  34. 34.

    “Shen Fa” (Prudent Enforcement of Law) in Shang Jun Shu (The Book of Lord Shang).

  35. 35.

    “Jian Dang” (Cliques of Traitors) in “Li Lv” (Statute on the Regulation of officials) in Da Ming Lv Ji Jie Fu Li (Great Ming Code with Collected Commentaries and Appended Sub-statutes).

  36. 36.

    “Li Lv” (Statute on the Regulation of officials) in Da Ming Lv Ji Jie Fu Li (Great Ming Code with Collected Commentaries and Appended Sub-statutes).

  37. 37.

    “Unauthorized Selection of Officials by High Officials” in “Li Lv” (Statute on the Regulation of officials) in Da Ming Lv Ji Jie Fu Li (Great Ming Code with Collected Commentaries and Appended Sub-statutes).

  38. 38.

    “Jiao Jie Jin Shi Guan Yuan” (Colluding with Imperial Attendants) in “Li Lv” (Statute on the Regulation of officials) in Da Ming Lv Ji Jie Fu Li (Great Ming Code with Collected Commentaries and Appended Sub-statutes).

  39. 39.

    Ming Shi Ji Shi Ben Mo (Historical Records of Ming Dynasty), Vol. 13.

  40. 40.

    Noboru Niida, Tang Ling Shi Yi (An Interpretation of the Orders of Tang Dynasty), translated by Li Jing, et al. Chang Chun Publishing House, p. 136.

  41. 41.

    “Shan Fa Bing” (Dispatching Military Troops without Authorization) in “Shan Xing Lv” (Laws for the Punishment of the Conducts Unauthorized by Imperial Decrees) in Tang Lv Shu Yi (The Comments on Tang Code).

  42. 42.

    “Shan Fa Bing” (Dispatching Military Troops without Authorization) in “Shan Xing Lv” (Laws for the Punishment of the Conducts Unauthorized by Imperial Decrees) in Tang Lv Shu Yi (The Comments on Tang Code).

  43. 43.

    Fan Jun, “Wu Dai Lun” (On the Five Dynasties) in Xiang Xi Ji (Collections of Xiang Xi), Vol. 4.

  44. 44.

    “Xing Fa Zhi” (The Record of the Criminal Law) in Han Shu (The History of Former Han Dynasty).

  45. 45.

    “Wang Jia Zhuan” (The Biography of Wang Jia) in Han Shu (The History of Former Han Dynasty).

  46. 46.

    “Wu Di Ji” (Records of Emperor Wu) in Zhou Shu (The Book of Zhou Dynasty).

  47. 47.

    “Zhe Yin Zhi Chi Duan Zui” (Citing the Imperial Decrees in Making Judgments) in “Duan Yu” (Trials and Punishments) in Tang Lv Shu Yi (The Comments on Tang Code).

  48. 48.

    “Si Qiu Fu Zou Bao Jue” (Memorials to the Emperor about Convicts Sentenced to Death) in “Duan Yu” (Trials and Punishments) in Tang Lv Shu Yi (The Comments on Tang Code).

  49. 49.

    “Xing Fa Zhi” (The Record of the Criminal Law) in Song Shi (The History of Song Dynasty).

  50. 50.

    “Sheng Zu Ben Ji” (Records of Emperor Sheng Zu) in Qing Shi Gao (The History of Qing Dynasty).

  51. 51.

    “Shizong Xian Huang Di Shang Yu” (Imperial Edicts of Emperor Shizong) in Da Qing Lv Li Tong Kao Jiao Zhu (Notes on the Textual Research of the Laws and Precedents of Great Qing), China University of Political Science and Law Press, 1992, p. 200.

  52. 52.

    Qin Ding Tai Gui (The Rules for the Censorate by Imperial Order), Vol. 14.

  53. 53.

    “Gui Chong Jing Chuan Fu Deng Zi Rong Zhuan” (The Biography of Gui Chongjing and Deng Zirong) in Jiu Tang Shu (The History of Old Tang Dynasty).

  54. 54.

    “Qin Shi Huang Ben Ji” (Records of Qin Shi Huang) in Shi Ji (The Records of the Grand Historian).

  55. 55.

    “Yan An Zhuan” (The Biography of Yan An) in Han Shu (The History of Former Han Dynasty).

  56. 56.

    “Shi Huo Zhi” (Records of Food and Commerce) in Sui Shu (The History of Sui Dynasty).

  57. 57.

    “Zhi Guan Yi” (State Officials, Part 1) in Xu Wen Xian Tong Kao (A General Textual Research of the Extended Documents).

  58. 58.

    Montesquieu, Fa Yi (The Spirit of the Laws), The Commercial Press, 1993, p. 154.

  59. 59.

    “Xiu Quan” (On the Usage of Power) in Shang Jun Shu (The Book of Lord Shang).

  60. 60.

    “Fa Fa” (On Observing the Law) in Guan Zi (The Book of Master Guan).

  61. 61.

    Ibid.

  62. 62.

    “Zhang Min Zhuan” (Biography of Zhang Min) in Hou Han Shu (The History of Latter Han Dynasty).

  63. 63.

    “Xing Fa Zhi” (The Record of the Criminal Law) in Jin Shu (The History of Jin Dynasty).

  64. 64.

    “Zhang Shizhi Zhuan” (The Biography of Zhang Shizhi) in Han Shu (The History of Former Han Dynasty).

  65. 65.

    “Gong Ping” (Impartiality) in Zhen Guan Zheng Yao (Essentials about Politics from Zhen Guan Reign).

  66. 66.

    “Xing Fa Zhi” (The Record of the Criminal Law) in Sui Shu (The History of Sui Dynasty).

  67. 67.

    “Gaozu Ji” (The Biography of Emperor Gaozu) in Sui Shu (The History of Sui Dynasty).

  68. 68.

    “Jun Chen” (Kings and Ministers) in Guan Zi (The Book of Master Guan).

  69. 69.

    “Nan Yan” (On the Difficulty of Offering Advice) in Han Feizi.

  70. 70.

    Ibid.

  71. 71.

    “Ba Guan” (Eight Observations) in Guan Zi (The Book of Master Guan).

  72. 72.

    “Yuan Jun” (On Monarchs) in Ming Yi Dai Fang Lu (Waiting for Dawn).

  73. 73.

    Fa Zheng Qian Shuo Bao (Introduction of Laws and Politics), Vol. 17, published in the third year of Xuantong, p. 19.

Copyright information

© Springer-Verlag Berlin Heidelberg 2014

Authors and Affiliations

  • Jinfan Zhang
    • 1
  1. 1.China University of Political Science and LawBeijingPeople’s Republic of China

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