THE "TREATISE ON PUNISHMENTS" IN THE "LIAO HISTORY"

THE "TREATISE ON PUNISHMENTS" IN THE "LIAO HISTORY"Author(s): Herbert FrankeSource: Central Asiatic Journal, Vol. 27, No. 1/2 (1983), pp. 9-38Published by: Harrassowitz VerlagStable URL: http://www.jstor.org/stable/41927386 .

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THE "TREATISE ON PUNISHMENTS" IN THE LIAO HISTORY

An Annotated Translation

by Herbert Franke

München

Introduction

From August 10 to 14, 1981, a research conference "The Transfor- mation of Chinese Law, T'ang through Ming" was held at Bellagio, Italy under the chairmanship of Professor John D. Langlois, Jr. (Bowdoin College). The conference was funded by the American Council of Learned Societies and the Rockefeller Foundation. I had been commissioned to contribute a paper on law under the Liao dynasty of the Khitans. The title of this paper was "Chinese Law in a Multinational Society: The Case of the Liao (907-1125)". It was accompanied by a translation of the Treatise on Punish- ments {hsing-fa chih) of the Liao History C Liao-shih ). When the conferees discussed the preparation of a conference volume it became clear that it would be impossible to publish the two papers together in the projected volume. Professor Langlois then kindly gave his permission to publish the translation of the hsing-fa chih elsewhere for which I would like to express my gratitude. It is my hope that the translation of this important Chinese text on the law of the Liao dynasty might also be of some interest to the readers of the Central Asiatic Journal .

The existing sources on Liao law and judicature are rather limited. No texts in the Khitan language have survived, and the Chinese sources are not nearly as comprehensive and detailed as we would wish. The Treatise on Punishments in the Liao-shih is by far the most complete source extant. It is, however, not very satisfactory. The authors of the Treatise have, for the most part,



10 HERBERT FRANKE

been content with excerpting subject matter on law and judicature from other chapters of the Liao-shih . Another characteristic of the hsing-fa chih is the moralistic approach. The personality of the individual emperors is seen as responsible for the rise and fall of the legal institutions of the dynasty, and the sometimes excessive cruelty of the system is attributed to the "barbarian" and military elements in Liao society. Only emperors Ching-tsung and Sheng- tsung are given relatively good marks, whereas a person like Mu- tsung appears as an accomplished villain. Nevertheless the Trea- tise is indispensable for a closer study of the transformations of T'ang law in the Liao state and the general problems of law in a multinational society. Modern research on Liao law and institutions has been for long a domain of Japanese scholars among whom Takigawa Masajirõ and Shimada Masao must be mentioned.1

The annotation of our translation has been limited to factual explanations without going into the legal implications. Instead a few general remarks shall be made in this introduction. The legal system of the Liao dynasty was characterized by ethnicity. In the beginning each nationality (Chinese, Khitan, Po-hai, Hsi and the various tribes) lived according to its own legal tradition. For the Chinese and Po-hai this meant T'ang law. The Treatise describes in some detail the repeated attempts of the court to unify the law. Our text illustrates Liao law by quoting many imperial decisions. It must, however, be remembered that many of these cases were political justice following abortive rebellions and therefore cannot be considered as representative of judicature at a lower level. Another feature that emerges clearly from the text is the unpre- dictability and casualness of the sentences and the non-statutory character of the punishments many of which were not sanctioned by T'ang law. This applies also to the various instruments of punishments and torture adopted by the Liao authorities. Whenever a specific punishment for a specific crime that was punishable in T'ang law is mentioned, the Liao punishment is more severe than in T'ang law. Punishments that had been accessory in T'ang law

1 Takigawa Masjirõ and Shimada Masao, Ryõritsu no kenkyü (A Study of Liao Laws) (Tokyo: Osaka yagõ shoten, 1943); Shimada Masao, Ryõsei no kenkyü A Study of Liao Institutions) (Tokyo: Ueda, 1954, repr. Tokyo, 1973).



THE "TREATISE ON PUNISHMENTS" 11

such as tattooing and enslavement became punishments per see under the Liao.

Other elements in Liao law seem to have been rooted in Khitan traditions. This applies, for example, to the cases where uninten- tional burning of the forests of the holy mountain Mu-yeh or the knocking over of a holy flag is mentioned as a capital offence. To kill a criminal by shooting him with whistling arrows was unstatu- tory according to Chinese law, but such arrows play a certain role in Khitan religion. They were used to expel demons in some of the Khitan rituals. Another characteristic of Khitan law was the punishment of theft according to the number of offences whereas in Chinese law the value of the stolen goods determined the punishment. Among the Khitan elements we find also the custom of "free stealing" at the time of the first full moon in the first month of the lunar year.2 The same custom can also be found among the Jurchen who succeeded the Khitans as the ruling group in northern China. Liao law in general has survived the fall of the Liao state; the Jurchen in the state of Chin adopted the existing regulations and ordinances to a great extent in 1115 and later.3

The Treatise on Punishments of the Liao-shih gives an unflat- tering picture of Liao law. It is described as brutal and cruel. This is not at all due to a possible bias on the part of the authors of the Treatise. A similar picture emerges from the casual observations of Sung envoys who travelled to the Liao court in the 11th century. The Sung statesman Su Ch'e (1039-1112) who had been an envoy in 1089 reported after his return: "The rule of the northern court is lenient with the Khitans and harsh with the Chinese (lit. the people of Yen, i.e. the region of modern Peking). . . . The laws and ordinances are not clear, and it is regarded as a normal practice to receive bribes and to sell judgments. This is obviously the normal custom of the barbarians."4 Another Sung politician, Li

2 On "free stealing" see also Rolf A. Stein, "Le Leao Tche", T'oung Pao 35 (1939) 144-147 and Herbert Franke, "Chinese Texts on the Jurchen", Zentralasiatische Studien 9 (1975) 182.

3 For a general survey of Jurchen law see Herbert Franke, "Jurchen Cus- tomary Law and the Chinese Law of the Chin Dynasty", Dieter Eikemeier and Herbert Franke (ed.), State and Law in East Asia. Festschrift Karl Bünaer (Wiesbaden: Otto Harrassowitz. 1981) 215-233.

4 Su Ch'e, Luan-ch'eng chi (Ssu-pu ts'ung-k'an ed.), ch. 41, 13b-14a.



12 HERBERT FRANKE

Wei, who too had been in the Liao state, stated in a memorial submitted in 1064: "The laws of the barbarians are extremely harsh. If a crime is punishable by death, they will certainly slaugh- ter and brutally massacre [the offender]. Their ruler has once said: 'The Khitans are wild animals. They cannot be ruled with written laws like the Chinese'".5

The cruelty of punishments under the Liao is thus attributed by Chinese authors to the "barbarian" character of the Khitans. It is true that the government system of the Liao was not much influ- enced by Confucian ideas of benevolent rule and self-perfection of the individual. This is also shown by the relative rarity of general amnesties under the Liao compared with the T'ang and Sung dy- nasties where amnesties were much more frequent. But it would be wrong to see the brutality of Liao criminal law as the result of an innate barbarism of the Khitans. We should not forget that the Khitans and most of their allies were pastoral nomads. In their homelands practically everybody had a horse, and it is notoriously difficult to arrest a criminal on horseback in a vast country. If, however, the culprit is caught at all, punishments tend to be very cruel and we might even formulate a tentative generalization: the more difficult it is to arrest somebody and the more accessible technical means such as weapons or means of transport are to everybody, the crueller punishments tend to become once the offender is brought to justice. Punishments are seen as a deterrent, a psychological element which also becomes apparent in Chinese legalist thinking. The legal institutions and the application of law under the Liao therefore seem to have been a mixture of Chinese legalist elements and of patterns characteristic of a nomad society.

ABBREVIATIONS

CTKC Ch'i-tan kuo-chih (ed. Wan-yu wen-k'u, Shanghai: Commercial Press. 1937)

LS Liao-shih (Peking: Chung-hua shu-chti, 1974) WF K. A. Wittfogel and Feng Chia-sheng, History of Chinese Society.

Liao (907-1125). The American Philosophical Society Philadelphia. (New York: The Macmillan Company, 1949)

5 Hsil Tzu-chih ťung -chien ch'ang-pien (Taipei: Shih-chieh shu-chü, 1961) ch. 64, 4b-5a.



TREATISE ON PUNISHMENTS

Liao-shih Chapters 61 and 62 (ed. Chung-hua shu-chü, Peking 1974, vol. 3, pp. 935-947)

Chapter 61

The punishments ( hsing ) are something that started with weapons and ended with rites. In primitive times the people had weapons just like wasps have stings, that is, only to protect themselves. Ch'ih-yu was the first to make a rebellion, and among the people arose rapaciousness along with villainy1 - how could one put aside the application of punishments? Emperor Yao clearly enquired from the lower people and then he gave charge to the Three Princes to be zealous about doing meritorious work for the people. Po-i sent down the regulations; for restraining the people there were the punishments.2 Therefore it is said: Punishment started with weapons and ended up with rites.

The former kings followed Heaven and Earth and the Four Seasons when they established the Six Ministries. Autumn corresponds to the officials for punishment in order to symbolize the perfection of things of this season. Autumn receives its emana- tions (ch'i) from Summer, which in turn changes its colors with regard to Spring - this can be known by deduction.3

The Liao established their state by using military means. In order to curb violence and to subdue criminals they gave punishments priority. In the beginning of their state they set up laws. Some of them went beyond the Five Applications and others were outside the Three Accomodations.4 The application of weapons had been expanded, and there was no leisure yet for the application of

1 Shu-ching , "Lü-hsing" 2, trsl. Bernhard Karlgren, "The Book of Docu- ments", BMFEA 22 (1950), 74.

2 This passage is a condensation of Shu-ching , "Lü-hsing" 7 and 8, trsl. Karlgren 74-75.

3 The parallelism between Nature and human activities is a basic idea expressed already in the Rites of Chou ( Chou-li ). For similar passages see e.g. ch. 23 of the Han-shu , A.F.P. Hulsewé, Remnants of Han Law vol. I (Leiden: E. J. Brill, 1955), 321-322.

4 Shu-ching , "Yao-tien" 31, trsl. Karlgren 7.



14 HERBERT FRANKE

rites. Tsu-wu Khaghan5 recognized the virtue of the clan member Ya-li6 and ordered him to become i-li-ch'in1 so that he might handle the punishment of the evil. How would it have been possible that, in the absence of official judges, an unvirtuous person could have done this? T'ai-tsu (907-926) and T'ai-tsung (927-947) or- ganized their territories, and soldiers in armor for years had no rest. Their sternness overcame compassion,8 and their principles were suited to the situation. When their sons and grandsons followed each other, their laws differed in emphasis, but among those who were able to investigate what was fitting to circumstances and to bring things to an end with rites, only two were prominent, Ching-tsung (969-982) and Sheng-tsung (982-1031).

In total the [Liao] had four statutory punishments: Death, exile, penal servitude, [beating with the] heavy stick, For death they had strangulation, decapitation, dismemberment and the like. There were also rules for confiscation. The punishment of exile was in accordance with the seriousness of the offence. [The culprits] were settled in the region of border towns and tribes. If [the exile] should be distant they were expelled beyond the borders, and for still greater distance they were sent as a punishment to outlying countries.9 The punishment of penal servitude was 1. for life, 2. for five years, 3. for one year and a half. Those with servitude for life received five hundred [strokes] and the others in proportion one hundred less. There were also rules for tattooing. The punishment of the heavy stick ranged from fifty to three hundred, and all beatings from fifty upwards were applied with the sand-bag. There were also rules for the wooden sword, the big club and the iron cudgel. The wooden sword and the big club [strokes] were counted by three and ranged from fifteen to thirty.

5 Tsu-wu Khaghan from the Yao-lien tribe ruled over the Khitans in ca. 745: WF 48, 86-87, 472.

6 Ya-li whose name is also written Nieh-li is credited with having civilized the Khitans by teaching them tilling and weaving. He lived in the 8th century; WF 481 n. 93, 489.

7 i-li-cran was originally the Khitan designation ot a tribal chiei; WF 440, 443. The word is probably related to the old Turkish title irkän or irkin ; WF 432, which occurs already in the Orkhon inscriptions.

8 Shu-ching , "Yin-cheng" 7. The translation follows that of James Legge, The Shoo King (repr. Hong Kong 1961) 169.

9 For a case see LS ch. 16, 188.




The counting of the iron cudgel [strokes] was sometimes by five, sometimes by seven. In the case of heavy offences when applying the sand-bag they beat first the upper part of the buttocks and the four limbs.

As torture instruments they had rules for the coarse and the thin sticks, whips and branding-irons. The coarse stick [beatings] were counted by twenty, the thin sticks by three, ranging from thirty to sixty. The count of whipping and branding was for branding by thirty up to three hundred or fifty up to five hundred. This was used for interrogation of somebody who had been accused of actions where he should have submitted but did not confess.

If ranked officials had offended by mistake in their public affairs or if people of seventy or more or of fifteen and less had committed an offence, they were allowed to pay redemption. The redemption money was one thousand cash for one hundred strokes with the heavy stick. There existed also rules for the Eight Deliberations and the Eight Indulgences.10

Rules for confiscation started in the time when T'ai-tsu was ta- ma-hsüeh sha-li 11 and received order from Hen-te-ch'in Khaghan12 to settle the incident where the yü-yüeh Shih-lu13 had come to die. The families and dependents of the chief culprits were attached to a wa-li.u In the time of Empress Dowager Shun-ch'in15 they were taken out and attached to a "Tent" as lang-chün , until Shih-tsung (947-951) decreed to pardon them. Thereafter if imperial inner or

10 On the Eight Deliberations ( pa-i ) see now Wallace Johnson, The Tang Code vol. I General Principles (Princeton NJ: Princeton University Press, 1979) 83-87. I could not find the expression "Eight Indulgences" ( pa-tsung ) in other texts. The meaning must be more or less the same as that of "Eight Deliberations".

11 The term ta-ma-hsüeh sha-li is explained in LS ch. 116, 1534. Its meaning was something like "follower, retainer". See also LS ch. 1,1 and WF 646 n. 15. On the etvmoloerv see WF 433.

12 Hen-te-ch'in Khaghan was Khaghan of the Yao-lien from 901 to 906; WF 135 n.l.

13 Shih-lu whose name is also written as Shu-Ian was the uncle of Tai-tsu. He was yü-yüeh (a high honorific appelation) until 903 when T'ai-tsu succeeded him. On the murder of Shih-lu see WF 226 n.l.

14 wa-li is the name of a tribal unit; WF 432. For the transfer of the formerly free tribesmen to a wa-li after the murder of Shih-lu see also WF 226.

15 This refers to the empress-dowager Ying-t ien who had been married to T'ai-tsu. She died in 953.



16 HERBERT FRANKE

outer relatives or families of hereditary officials were culpable of rebellion or other offences, they were repeatedly confiscated. Other people became families attached to "Tents". It also happened that those who had been confiscated into a ordo16 were individually given as presents to officials.

The wooden sword and the big club were introduced unter T'ai- tsung. The wooden sword had a flat surface and a thick back. It was used for beatings if a high dignitary had committed a heavy offence and [the court] wished to treat him with lenience. The sand-bag was introduced under Mu-tsung (951-969). For this it was the rule to use manufactured leather and to sew it together, six inches long and two inches wide; the handle was about one foot long. The figures for the punishment of servitude can be seen in detail in the institutions of the Ch'ung-hsi reign (1032-1055), and those for the punishment of the stick and below, in the institutions of the Hsien-yung reign (1065-1075). As to the other [punishments] which were irregularly used and for which no fixed rules existed, they cannot all be listed.

In the early years of T'ai-tsu17 all affairs were still in their rough initial stage, and offenders were judged according to the seriousness [of their crime]. Later when he dealt with the seditious faction of his younger brothers,18 laws were set up according to the circumstances. If princes of the imperial family had taken part in a rebellion they were not "strangled by the inspector of fields"19 but

16 kung-fen. The term kung "palace" corresponds to the Altaic word ordo "camp".

17 The translation of the passage from "In the early years of T'ai-tsu. . to "They were a precaution against rebellion by the people" follows the translation in WF 496, except where otherwise noted.

18 These rebellions took place in 911-913; WF 575. 19 The translation "Imperial princes who joined the rebels were not strang-

led by the huntsmen" in WF 496 is wrong. Huntsmen are not mentioned in the text which is a quotation from the Li-chi , "Wen-wang shih-tzu" 10. Cf. the translation by S. Couvreur, Li Ki (Ho Kien Fou: Imprimerie de la Mission Catholique, 1899) vol. I, 484: "Lorsque Tun des parents du prince avait commis un crime capital, l'inspecteur des champs était chargé de les pendre (non dans la place publique, comme les criminels ordinaires, mais dans la campagne)." See also the correct translation of the Li-chi passage by W. Johnson, The Tang Code I, 60: "If one of the relatives of the prince commit a capital crime, the inspector of fields is charged with strangling him."




sometimes killed by being thrown from a cliff.20 Those who committed incest and were of improper conduct were pulled to pieces by five chariots.21 Those who turned against their parents were punished in the same way. Those who offended against superiors (or: the emperor) by slander and vilification were killed by having a hot iron awl thrust into their mouths. Accomplices were punished by beatings in accordance with the seriousness of the crime. The sticks had two degrees: the big one had a weight of five hundred tenths of an ounce (ch'ieri)22 and the small one, three hundred. There existed also the punishments of decapitation, hacking into pieces, burial alive,23 shooting by "devil arrows",24 being hurled from catapults, and dismembering. These belonged to the most severe punishments. They were a precaution against rebellion by the people.

In the times of T'ai-tsung the Po-hai people were all ruled according to Chinese law. For the rest no changes took place. In the fourth year of Hui-ťung (941) a she-li lang-chün20 of the imperial clan had planned to poison the interpreter Chieh-li and others. Two persons had already been affected. It was ordered to give him a severe beating, and to exile him with his wife to the Pa-li-mi River of the Yü-chüeh [tribe];26 those who had manufactured the poison were executed with their whole families.

20 This happened in 913. The rebel princes were forced to jump off a cliff (LS 1,8). The text states explicitly that this was done in order to avoid public execution.

21 See LS ch. 1,8. 22 WF 496 has "Beatings were of two degrees: the heaviest was of five

hundred lashes and the lightest of three hundred lashes". This translation does not account for the words chung ch'ien where in my opinion ch'ien has to be understood as referring to a unit of weight. See also Yang Lien-sheng in Harvard Journal of Asiatic Studies 13 (1950) 228: "the weight of 500 coins".

23 On burying alive see e.g. a case reported for 918 (LS ch. 1,12). 24 kuei-chien are frequently mentioned in the Lb. lhey played a role in

certain rituals, for example in war magic. For a translation see WF 268, where the ritual of killing a condemned criminal at the beginning of a campaign is described. "Devil's arrows" refers certainly to the "whistling arrows", see WF 256-257 n. 56. On this type of arrows see K. Uray- Köhalmi, "Über die pfeifenden Pfeile der innerasiatischen Reiternoma- den", Acta Orient. Hung. III, 1/2 (1953) 45-71.

25 she-li lang-chün was a prestige title for a powerful noble (WF 290 n. 20). 26 Yü-chüeh was the name of a northern tribe in mod. Outer Mongolia (WF

92, with other transcriptions of the name).



18 HERBERT FRANKE

In the second year of T'ien-lu of Shih-tsung (948) T'ien-te, Hsiao Han, Liu Ko and his younger brother P'en-tu planned a rebellion. Tien-te was executed, Han was beaten, and Liu Ko was exiled. P'en-tu was sent as envoy to the state of the Khirghiz. Thus the crime of the four was the same but their punishments were different. In the times of Liao it happened frequently that identical crimes were differently judged.27

In the twelfth year of Ying-li of Mu-tsung (962) Hai-li, a slave of the lang-chün of the Tent of Imperial Maternal Uncles,28 Hsiao Yen, raped a daughter under nubile age of T'u-li who was a foot- soldier ( i-la ).29 Because there was nothing written in the laws [Hai-li] was castrated and, moreover, given to T'u-li as a slave. Henceforth this was written down as an ordinance (ling).

In the sixteenth year (966) the officials were instructed: "When the former rulers travelled and stopped somewhere there had always to be put up a high notice-board informing about the travel of the court. Recently I heard that the ch'u-ku 30 had on purpose put up a low nitice-board in the middle of deep grass, with the result that people entered by mistake and goods were taken away by them. If this should happen again in the future, it will be punished by death!"31 Now the emperor was fond of wine and hunting, and showed no pity in government affairs. All the animal wardens of the Five Quarters, the servants, cooks and wine-masters some-

27 On this rebellion and the leaders see WF 417. The protagonists of the plot came from the imperial clan. Tien-te was the third son of emperor Tai-tsung and a cousin of emperor Shih-tsung. Hsiao Han was a nephew of T'ai-tsung's wife and married to a sister of emperor Shih-tsung. Yeh-lü Liu-ko and Yeh-lü P'en-tu were nephews of T'ai-tsu. On the plot in general see LS ch. 5,64 and also the biographies of Hsiao Han in LS ch. 113, 1505-1506 and of Yeh-lü Liu-ko and his brother in LS ch. 113, 1507-1508.

28 On the "Tents" or camps of the imperial uncles and their subordinate offices see WF 478-479. The rank of lang-chün in the Tent administration cannot have been very high because it is not listed in the description of the Tent administration in LS ch. 45, 713-715. lang-chün perhaps does not mean much more than "retainer".

29 On the Khitan word i -la and its meaning see WF 348 and 550. 30 ch'u-ku wa a tribal title designating according to LS ch. 116, 1547 an

official who interrogated prisoners for the Northern (Khitan) administration. The etymology of the word proposed in WF 431 is to be rejected.

31 This order is also summarized in LS ch. 7, 84.




times returned home without authorization or ran away, because the deer, wild pigs, falcons, pheasants etc. had disappeared or were wounded and perished. If they had exceeded the time specified in the proclamation or did not turn up in time after having been summoned, or if in presence of the emperor they did not act according to his wishes in even a minor way, or if the drinks and food were scarce, or if [the emperor] because of some offence transferred his anger to the innocent, they were on the spot sub- jected to the cruellest punishments.32 These extreme cases were innumerable. Sometimes they were stabbed with daggers, beheaded, beaten, shot at, burned, hands and feet were cut off, shoulders and thighs smashed, shins broken, the mouth slit up and the teeth broken; their corpses were thrown away in the wilder- ness. He also ordered to build an earthen mound in his territory, and those who died were over one hundred people.33 In the capital huge prisons were established for housing prisoners in fetters.

Not long after his accession he was led astray by the words of the shamaness Hsiao-ku that he should take the gall of a man for an elixir to prolong life. For this reason a great number of people was killed. Later [the emperor] realized that he had been deceived and she was shot at with whistling arrows, and trampled to death by horsemen.34

After the death of Hai-li35 [the emperor] took to heavy drinking [lit. drinking for long nights], and animal wardens of the Five Quarters and his personal servants were executed one after the other without interruption. Although he sometimes regretted the excessive punishments pronounced in his fury, and had instructed his high officials to censure him severely, they were awed and timid in court and were seldom able to help. In spite of their admonitions he was unable to comply.

32 lit. "fiery pole and iron comb." For a parallel passage see LS ch. 7, 82 (in the year 965). - Many cases of the cruel treatment of the personnel are recorded in LS ch. 7.

33 The building of a mass tomb for the killed hunters and servants is recorded for 964 in LS ch. 7, 81.

34 On the case of the shamaness Hsiao-ku see LS ch. 7, 74 and WF 256-257. 35 In the lzth month oi ifb7 the emperor had killed his kitchen servant Hai-li

with his own hands and in addition ordered his corpse to be pickled (LS ch. 7, 85).



20 HERBERT FRANKE

When he was about to kill Shou-ko and Nien-ku,36 the Chief Palace Superintendent Yeh-lii I-la-ko37 criticized him and said: "Shou-ko and the others have let perish pheasants under their care; they have run away because they were afraid to be punished. According to the law they should not die." The emperor flew into a rage and had Shou-ko and the others beheaded and dismembered. The officials were given order to take the deer- wardens who had been fettered, altogether 65 men, and 44 who had offended seri- ously were beheaded, and the rest cruelly beaten. Among these were some who should be executed, but because prince Pi-she38 and others criticized this, they were pardoned.

Afterwards the emperor was angry because P'o-te39 had not fed the deer in time so that they became ill and died. He was executed.

In the last year [of his reign, Mu-tsung's] cruelty became even worse. Once he said to the ťai-wei Grand Commandant Hua-ko: "When We make a unjust judgement while drunk, this should again be brought to Our attention when We are sober!"40 But even if somebody was able to speak this way, [the emperor] did eventually not change his mind. This is why he came to grief.41 Although it is said: "Treat harshly only a personal attendant"41*1 and "Above, [punishments] should not extend to the high officials, below, [rites] should not extend to the Hundred Families",4113 how can it be that the institution of penal laws becomes a tool for the sudden whims and the unrestrained will of a ruler over people?

36 See also LS ch. 7, 84. The incident took place in 967. 37 Yeh-lii I-la-ko was a noble camp attendant who became a favorite of

emperor Mu-tsung. He was executed under Mu-tsung's sucessessor in 969 (see text below and WF 257 n. 60). I-la-ko was once liberally rewarded for a hunting exploit while in favor (WF 337).

38 Pi-she was the fifth son of emperor T'ai-tsung (LS ch. 64, 983). On the whole incident see also LS ch. 7, 84.

39 On the case of P'o-te which occurred in 968 see also LS ch. 7, 86 where altogether 8 deer- wardens are mentioned by name.

40 The same text can be found also LS ch. 7, 87. 41 Mu-tsung was murdered by his servants in 969. 41a Perhaps an allusion to the Book of Songs, ode nr. 194, trsl. Bernhard

Karlgren, The Book of Odes (Stockholm: Museum of Far Eastern Anti- quities, 1950), 141. This ode describes the feelings of a frustrated cour- tier.

41b A quotation from the Book of Rites, Li-chi , "Ch'ü-li." Cf. the translation by S. Couvreur (see note 19), vol. I, 53: "Les règles de Pétiquette ne descendent pas jusqu'aux hommes du peuple, le code criminel ne s'élève pas jusqu'aux grands préfets."




Already when Ching-tsung was crown-prince (before 969), he criticized [Mu-tsung's] wrongs. After his accession to the throne, he decapitated the Chief Palace Superintendent Yeh-lü I-la-ko for having failed to control the imperial guards. Hsi-yin, Prince of Chao,42 had of his own in prison taken off his fetters and asked to see [the emperor] in order to explain himself. [The emperor] ad- dressed him thus: "Whether you are honest or not has not yet been made clear - what reason is there for leaving the prison and to explain yourself?"43 He ordered to put him again into fetters. After this he personally revised the sentence [against Hsi-yin], and when this had been done, he summoned [Hsi-yin] and released him.

In the third year of Pao-ning (971), because Mu-tsung had abolished the bell-hall, and people who had a complaint had no- where to complain to, he decreed that it should be re-established. He also ordered to cast a bell on which this decree was written; there the reasons for the abolishment and re-establishment were recorded.44

When the Prince of Wu, Shao,45 was denounced by a slave, the officials asked to interrogate [Shao] under torture. The emperor said: "We know that this is a false accusation. If We start an inquiry We must fear that other people will imitate this." He ordered to behead [the slave] to show his favor.

In the fifth year (973) the close attendant Shih-lu-li knocked a holy flag (shen-tu) over by mistake. The law prescribed death, but

42 Yeh-lü Hsi-yin was an unruly member of the imperial clan (Mu-tsung's cousin). He rebelled in 960 and was imprisoned. In 969 he was pardoned. In 981 he rebelled again and was granted to commit suicide. See his biography in LS ch. 72, 1214-1215 and WF 418.

43 The parallel text in LS ch. 72, 1214 is more explicit: "When he had rebelled again he was put into prison. After the accession of Ching-tsung he heard that there was an anmesty, took away his fetters of his own and came to court. The emperor became angry and said: You are a criminal - how can you leave the prison without authorization?' It was decreed that the jail-keeper should be executed and [Hsi-yin] put back into prison."

44 The bell-hall (chung -yuan) is not mentioned in the LS under that name. LS ch. 8, 91, however, records the establishment of the Court of the Appealing Drum ( wen-ku yuan) for 971. See also LS ch. 18, 221 and WF 474 for the year 1039 and LS ch. 47, 778.

45 Yeh-lü Shao was the third son of T ai-tsu s eldest son P'ei (LS ch. 72, 1211). He has no biography in the LS.



22 HERBERT FRANKE

[Shih-lu-li] was beaten and set free.46 In this way lenience and violence followed each other. But he was negligent in punishing brigands, and it was only at that time that he caught and executed the seditious gang of the Ying-li period.47 His advisers regarded him therefore as deficient.

Sheng-tsung inherited the throne when still young48 and Em- press dowager Jui-chih acted as regent. She paid attention to hearing and deciding [law-suits], and occasionally admonished the emperor to be lenient with regard to statutary law (fa-lit). When the emperor had grown up he devoted himself increasingly to affairs of the state and centered his attention on administration. At that time the laws and ordinances (fa-ling ) for altogether something like ten actions were revised and fixed, which was greatly in accord with the feelings of people; in his application of punishments he was therefore even more able to judge circumspectly. Before that time, when Khitan and Chinese had a fight with each other and somebody got killed, the severity of the law was not equal, but now they were all treated according to the same standard. In the twelfth year of T'ung-ho (994) it was decreed that Khitans who had committed one of the Ten Abominations should also be judged according to Chinese law.49

According to the old laws, the corpse of a prisoner was exhibited on the market for three days. Now it was allowed to bury him after one day and night.

In the twenty-fourth year (1006)50 it was decreed that male and female slaves were not allowed to accuse and confess against their masters except in cases of offence against Plotting Rebellion, Plot- ting Great Sedition,51 and crimes punishable by exile or death. If

46 For a parallel text see LS ch. 8, 93. The Holy Flag had been set up in 964 (LS ch. 7, 81).

47 This was in 973. LS ch. 8, 93 records the execution oí Yeh-lii Hua-ko and others.

48 Sheng-tsung was born in 971 and became emperor in 982. Empress- dowager Ch'eng-t'ien who died in 1009 acted as regent for him.

49 This and the preceding sentence are also translated in WF 231. See also LS ch. 13, 145 for a parallel text.

50 The text from "In the twenty-fourth year. . . to ". . .uniform standard of law" is also translated in WF 232.

51 Plotting Rebellion and Plotting Great bedition are the tirst two of the Ten Abominations.




male or female slaves had committed a crime up to the death penalty, it was allowed to hand them over to the officials, and their master was not allowed to kill them on his own.

Twenty-ninth year (1001): According to the old laws, sons and grandsons of hereditary Prime ministers and commanding prefects families who had committed an offence, were punished with penal servitude or beatings like ordinary people and were only exempted from having their faces tattooed. Now it was decreed that if they had committed an offence punishable only by tattooing they should be treated according to the uniform standard of the law.52

Eighth year of K'ai-t'ai (1019): In cases of theft and robbery of goods worth ten strings of cash, the principal was punished by death. This law was too severe and the [sum] was therefore increased to twenty-five strings; the principal was punished by death and the accessories with exile.

There had been a decree that if the decision in a penal lawsuit was unjust and could not be revised, it was allowed that the censo- rate could bring up the complaint and officials were dispatched for a new investigation. In the old times when the Hall of Judicature and Revision53 decided on complaints, all cases due for renewed memorialization were judged in detail by the Han-lin scholars, the chi-shih-chung 54 and cheng-shih- she- jen .55 Now for the first time [the offices] of Junior President ( shao-ch'ing ) and President (cheng) were established to direct [the Hall of Judicature and Re- vision].56 But probably he [the emperor] feared that they were not thorough, and so he personally had sentences revised. Frequently he sent envoys to visit all circuits and to decide on injustice and

52 See also the text in LS ch. 15, 169 for the year 1011: "It was decreed that if somebody from a clan attached to the Tents had committed an offence he should be tattooed and marked according to the rules for ordinary tribesmen." This shows that the punishment of tattooing belonged to Khitan law rather than Chinese law.

53 ta-li cheng. This office had been introduced in 994 (LS ch. 47, 787). 54 chi-shih-chung was an official title within the Court Council ( [men-hsia

sheng ) mentioned for 984 (LS ch. 47, 776). 55 cheng-shih she-jen was a title within the Secretarial council (LS ch. 47,

775). It is first mentioned for the Pao-ning reign (969-978). 56 On the establishment of the offices of shao-ch'ing and cheng of the Hall of

Judicature and Revision in 994 see LS ch. 13, 145.



24 HERBERT FRANKE

delay, such as Hsing Pao-p'u57 and similar persons. Wherever they went, the people believed that there was no more injustice.

A man of the people of the Five Divisions Tribes had spoiled his armor. His chief Fo-nu58 had him beaten to death. The emperor was angry over this excessive application of the law, and decreed to remove him from his office. The clerks therefore did no longer dare to act cruelly.

The ta-la-kan Nai-fang-shih59 had under the influence of drink spoken about harem affairs, and according to the law should have died. His crime was specially pardoned.

A man of the people of the Five Divisions Tribes had accidental- ly started a fire which spread to the sacred grounds of the Mu-yeh shan.60 He too should have died, but he was beaten and released. This was later incorporated into the laws.

Then it happened that Ti-pa-ko had first stolen property from Wang Ling-ch'ien in Chi prefecture and when he was discovered, he stabbed Ling-ch'ien with a knife, who, however, luckily did not die. The officials decided to sentence him as a thief,61 and he received only the punishment of beating.

Then Na-mu-ku had committed theft in thirteen cases, all under circumstances which could not be pardoned. He was sentenced to public execution. After this, it was decreed that from then on somebody who had three times committed theft or robbery should be marked on his forehead and sent for three years into penal servitude, if four times, he was marked on his face and sent for five years into penal servitude, and if it came to five, he was punished by death. In this way [punishments] were in accordance

57 Hsing Pao-p'u was a Han-lin official who has a biography in LS ch. 80, 1278-1279. He was sent to the circuits in 991 (LS ch. 13, 141).

58 This Fo-nu might be identical with the Commanding Prefect of the T'i- chü tribe who had been given 50 beatings with the light stick for negli- gence in 986 (LS ch. 11. 124). The exact location of the T'i-chü tribe is unkown; they lived perhaps in the region of mod. Sui-yüan, Inner Mon- golia (WF 97).

59 The case of Mai-fang-shih occurred in 983 (LS ch. 10. 108, where the name is written Nai-wan-shih). The text states that he was beaten and released. The title of ta-la-kan held by this person corresponds to the high prestige title tarqan in Turkish and darqan in Mongolian (WF 433).

60 The Mu-veh shan was the holy mountain of the Khitan people. 61 The man was punished as a thief and not for attempted manslaughter.




with the seriousness or lightness [of the crime], which was enough to serve as a warning.

The close attendants Liu-ko and Wu-ku-ssu had formerly followed the wife of the prince of Ch'i62 and run away. Then came an amnesty, and later at the reunion for the emperor's birthday they came forward and confessed. It was thereafter decreed to all close attendants and the guards to come together and to watch them being cut in two at their waists.

Therefore there were no favorized people in the state, the guid- ing principles were respected, the clerks mostly fulfilled their duties, and the people paid attention to the violation of laws. For these reasons [the emperor] was informed that during the T'ung- ho period the prisons in the Southern Capital and the two prefec- tures of I and P'ing were empty. Also in the fifth year of K'ai-t'ai (1016) the prisons in all circuits were empty.63 There existed a spirit of "putting aside punishments".64

It had been the custom that chancellors (shu-mi shih) were never judged [by the emperor] in person except in cases of great importance for the state; instead, law-suits involving them were directed only by the i-li-pi .65 When Hsiao Ho-cho66 and Hsiao P'o67 succeeded each other as chancellors the emperor relied exclusively on their administrative abilities and they began to hear law-suits

62 It is not clear which of the several Princes of Ch'i under the Liao is referred to in this passage.

bó See also Ijö ch. lo, ivo. r or this occasion oiiiciais were promoted and rewarded with gifts.

64 The expression "putting aside punishments is frequently attested in early Chinese source. See e.g. the Han-shu, eulogy for Hsiao-wen ti, trsl. H. H. Dubs, History of the Former Han Dynasty vol. I (Baltimore: Waverly Press, Inc., 1938) 275.

65 i-li-pi was a tribal title. The department of the i-li-pi was responsible for punishments in the Northern Administration (WF 476). The etymology for i-li-pi proposed in WF 432 relates the word to Turkish il "people, tribe, peace" and bag "lord, official".

66 Hsiao Ho-cho has a biography in LS ch. 81, 1286-1287. He was a man from the T'u-lü-pu tribe who received the surname of the Hsiao clan as a special honor. He was made left i-li-pi in 1014 and became later Chancel- lor of the Northern Court. Ha was famous as a diligent administrator and died in 1025.

67 Hsiao Po (986-1035) has a biography in LS ch. 80, 1280-1281. He was made Chancellor of the Northern Court in 1024 and later became also Chancellor of the Southern Court.



26 HERBERT FRANKE

on their own. People at that time changed opinions in order to agree with their practice so that the crafty and clever ones con- formed with those on high. From that time on the customs began to deteriorate. Therefore a decree was issued in the sixth year of T'ai-p'ing (1026) which said:68 "We, taking into consideration that Our state includes Khitan and Chinese, therefore administer them separately through the two Divisions of North and South. This is because We wish to do away with greed and injustice and to elimi- nate disturbances. If there are different laws for the high and the low, grievances are sure to arise. The common people who commit a crime are quite unable to have the officials make a report to the court, while the imperial lineages and the consort lineages often depend on favoritism and offer bribes in order to avoid [punishments]. Thus the laws are flouted. From now on, whenever noble [imperial] relatives are accused of anything, regardless whether big or small, an inquiry shall be conducted by the local officials and a complete report be made to the Northern and Southern Divi- sions, which shall carry out a re-examination and find out the truth in order to present a memorial to the throne. Those who make reports without an inquiry and present memorials [on someone's behalf] after accepting requests for favors, shall be punished according to the offence of the original culprit."

In the seventh year (1027) it was decreed to the metropolitan and local high officials: "If there should be omissions or unbalances as to severity among the paragraphs of the regulations (chih-ťiao) the corresponding paragraphs should be sent up [to the emperor] for deliberation on additions or changes therein."

Chapter 62

Only after the accession of Hsing-tsung (r. 1031-1055) empress- dowager Ch'in-ai70 reached her purpose. Her elder and younger

68 The text of the decree is also translated in WF 483 which has been adopted with small changes.

69 In 1027 a decree concerning the punishment for bribery was issued (LS ch. 16, 184).

70 Empress-dowager Ch'in-ai had been the second wife of emperor Sheng-




brother monopolized power. Feng-chia-nu71 and others followed the wishes of Ch'in-ai and wrongly accused Hsiao Cho-pu72 and others that they had planned rebellion; they implicated also empress-dowager Jen-te, the legal wife [of Sheng-tsung].73 Cho-pu and others, over ten persons, and relatives of Jen-te, altogether over forty people, were tried and punished; they all suffered capital punishment, and in addition their households were enslaved. Jen-te was interned in the Supreme Capital.74 Afterwards somebody was sent out to kill her. She was persecuted and killed without authorization75 so that [people] in the capital and the provinces were full of resentment. Then Ch'in-ai plotted to depose [Hsing- tsung] and to appoint [somebody else] and was therefore sent to Ch'ing-chou.76 When [the emperor] later invited her to come back, he reproached her fully with her previous actions; her cruelties could not be forgiven. But Hsing-tsung loved a good name and was fond of reforms. He was also devoted to Buddhism and frequently proclaimed amnesties, so that many [people condemned to] death or prison were released.

tsung and became the mother of the future emperor Hsing-tsung in 1016 for whom she acted as regent from 1032 to 1034. She died in 1058. On the involved plots around the succession of emperor Sheng-tsung see WF 403, 415 n. 50 and 588 n.l.

71 It is not clear if this Feng-chia-nu is identical with the Yeh-lü Feng-chia- nu who became many years later in 1063 Grand Tutor of the heir-apparent (LS ch. 22, 262).

72 Hsiao Cho-pu had married the second daughter of Ch'in-ai. He was wrongly accused of treason in 1031 and sentenced to commit suicide. See in addition to our text also LS ch. 18, 211 (where the personal name of that Khitan noble is written Tsu-pu-li) and WF 226 n. 122.

73 Empress-dowager Jen-te had been the main wife of the late emperor Sheng-tsung. She is frequently referred to in the sources as Ch'i-t'ien, another of her titles. Hen-te had brought up Hsing-tsung when he was still a boy which aroused great jealousy on the part of Hsing-tsung's mother Ch'in-ai.

74 The Supreme Capital (Shang-ching) of the Liao was located near modern Boro Khoton, Lin-hsi County in northwest Liao-ning province. See also WF 62.

75 According to CTKC ch. 8, 57-58 she was strangled and buried with the rites of a commoner.

76 On Ch ing-chou see WF bS. The town was located northeast oí modern Lin-hsi in Liao-ning province. The mausoleums of emperors Sheng- tsung, Hsing-tsung and Tao-tsung were in the vicinity of Ch'ing-chou. The banishment of empress dowager Ch'in-ai to the mausoleum of her husband took place in 1034 (LS ch. 18, 216).



28 HERBERT FRANKE

In the first year of Ch'ung-hsi (1032) an imperial decree77 ordered that officials in service who committed a public offense were allowed to make redemption. Those who committed a personal crime were subject to the specific laws. If their descendants and family members received bribes without the knowledge of the officials, only the offenders were judged. Previously the Triple Office of the Southern Capital78 [had ordered that] those who manufactured vessels weighing three pounds (chin) by melting coins or took ten strings of cash out of the Southern Capital, or stole property worth five strings of cash from a house that had been set on fire, were to be sentenced to death. Now the death penalty was applied to those who melted over three pounds of bronze or took cash [out of the capital], or stole goods worth twenty strings or more.

In the second year (1033) the officials memorialized: "A decree of the first year (1032) said: 'A person who commits a serious crime and is sentenced to penal servitude for life, is in addition beaten and moreover is tattooed on the face.' That is, he commits one crime but suffers three punishments. Tattooing should be abolished. In the case of officials in service and the families of prime ministers and commanding prefects which have the hereditary prerogative for selection, if their descendants are given sentences up to penal servitude for illicit intercourse,79 it has not yet been investigated whether they should be tattooed or not?" The emperor instructed: "Offenders who have repented and reformed are sometimes persons who can be employed. Once tattooed on their face they are disgraced for life. We greatly pity them."80 Afterwards criminals sentenced to penal servitude for life were tattooed only on the neck. In the case of escaped male and female slaves who had stolen their master's possessions, the masters were not permitted to tattoo their faces without authorization and only allowed to tattoo their arms and necks. In the case of people

77 This and the following passages from "In the first year of Ch'ung-hsi ..." to "... one degree less than death" are translated in WF 499-500. This translation had been adopted with minor changes.

78 The Southern Capital corresponds to modern Peking. 79 Illicit intercourse (chien): WF 500 has "unlawful acts" instead. 80 The Chung-hua shu-chu edition s punctuation marks the end of the quota-

tion from the edict at this point.




who had committed theft or robbery, the first time they were tattooed on the right arm, the second time on the left arm, the third time on the right side of the neck, and the fourth time on the left side. After the fifth offence they were sentenced to death.

In the fifth year (1036) the revised regulations81 were com- pleted. An imperial decree ordered the officials to hold them ready at each audience day,82 and they were also issued and proclaimed throughout all circuits. They included laws and ordinances from Tai-tsu down, collating the old regulations. The punishments were of five kinds,83 namely death, exile, heavy stick and penal servitude in three degrees. In all there were 547 paragraphs.

At that time herdsmen who stealthily altered the government's brand and turned over a horse to someone else, should according to the law be sentenced to death. The emperor said: "Is it not excessive to kill two men84 for one horse?" The punishment was made one degree less than death.85

Also, if elder and younger brothers had committed robbery with violence and should die, and the younger brother had been an accessory to the elder one, and both had no sons, then the younger brother was to receive special pardon.86 As to receiving bribes for subverting the law, counterfeiting imperial orders for the courier service, imitating imperial handwriting,87 and stealing tribute

81 See also LS ch. 18, 217 (1036, fourth month day ting-mao ) for the comple- tion of the revised regulations ( Hsin-ting ťiao-chih).

82 WF 500 has a different translation of this passage: "An imperial decree ordered the authorities to decide upon the audience day for their presen- tation." This translation omits the word fan "each, every" and gives a wrong impression. The point of the passage is that a copy of the regulations should be kept at hand during all audiences for ready reference.

83 WF 500 n. 26 remarks that only four kinds of punishments are listed, whereas the text speaks of five kinds. It seems that the punishment of the light stick has been omitted by mistake from the original text.

84 Two men: This means the thief and the recipient. 85 This edict was issued in 1042 (LS ch. 19, 227). 86 For a parallel text see LS ch. 20, 240 (1049). 87 The text has shu "writing". The parallel text in LS ch. 20, 244 (1052) has

hua "painting" instead. This version is followed by the translation in WF 235: "... a personal imperial servitor, Lu Pao, who had copied a painting by the emperor, was spared the death penalty but was punished by hard labor for life".



30 HERBERT FRANKE

commodities from foreign countries,88 it was the rule to exempt them from death.

The enfeoffed prince T'ieh-pu89 had a house slave Mi-li-chi90 who accused his master for having spoken with resentment against his superiors. He [the slave] was interrogated without result and therefore should be tried reciprocally [for false accusation]. But on the intimation of empress dowager Ch'in-ai, he was eventually not punished; it was also decided not to hand him over to his master, and he was only confiscated.

The commanding prefect of Ning-yüan commandery91 Hsiao Po92 had abducted by force the daughter of the chief hsiang-wen Ti-lu93 of the Wu-ku-ti-lieh94 tribe and made her his wife. He too escaped death because of the intervention of the empress; he was beaten and deprived of his rank.

The mei-li 95 Kou-tan had under the influence of wine killed somebody and run away. At the occasion of the emperor's birthday

88 This refers to a case recorded in LS ch. 18, 221 for 1038 12th month: An official had by cheating taken for himself tribute goods supplied by the Jurchen. The emperor, however, had him only tattooed and exiled because of the offender's administrative abilities.

89 Yeh-lü T'ieh-pu was a son of Sheng-tsung's brother. He was accused in 1063 of having supported Hsing-tsung's brother Chung-yüan in an alleged plot. See for the whole incident LS ch. 22, 262-263 and WF 415, n. 50 and 591.

90 Mi-li-chi seems to be a personal name related to the Mongol tribal name Merkit. It is also attested as the personal name of a deer-keeper killed by Mu-tsune: (LS ch. 6, 78).

91 Ning-yüan corresponds to modern Wu-chai in northwest Shansi province.

92 The name of Hsiao Po indicates that this person was a member of the Liao empresses' clan of Hsiao.

93 hsiang-wen is a title frequently attested in Liao sources. It was applied to the chief of governmental organizations, of an army, a camp, a small tribe or a group of imperial retainers (WF 129 n. 42). The word seems to go back to chin, hsiang-kung "minister-lord", see WF 434. - The personal name Ti-lu occurs also as that of a falconer of Mu-tsung (LS ch. 7, 84).

94 On the Wu-ku-ti-lieh tribe which lived in the Kerulen region of Mongolia see WF 394 n. 94. This group consisted originally of two different tribes, the Wu-ku and the Ti-lieh which were merged in 1096.

95 mei-li is explained as "name of an official of noble descent" in LS ch. 116, 1544. There are several different orthographies for this term ( mo-li , mi- li, etc.). It is also the designation of a tribal subgroup (WF 443-445). The etymology proposed in WF 430 should be abandoned.




he came forward and confessed. He was granted special pardon for his crime.

When the younger imperial sister princess of Ch'in-kuo had birthday, the emperor visited her mansion. There was the musician Chang Sui who had originally been sent by the Sung. The high officials discovered this and informed [the emperor]. He summoned him, he confessed [his guilt] and submitted [to punishment], but then the emperor spontaneously let him free.96

Later it was decreed that if officials in service appropriated privately government property they should be judged according to normal theft. All lang-chün of the various Tents who had shot deer in the imperial reserve [forbidden territories] were sentenced to three hundred blows but no restitution should be exempted from them. The lesser military leaders were sentenced to two hundred [blows] or less; if the offender came from the common people, he was sentenced to three hundred [blows].97 The customs of Sheng-tsung were thus discontinued.98

In the first year of Chťing-ning (1055) of Tao-tsung (r. 1055-1101) it was decreed to the Chief Controllers of all palaces: "All important and secret matters should immediately be reported to Us personally. All other complaints about actions shall be treated according to the laws. If a slanderous letter is handed in, the recipients and those who read it shall all be publicly executed."99

In the second year (1056) it was ordered that senior clerks in all provinces should follow the rules for the tribes;100 they should judge with their subordinates imprisoned offenders and not let it happen that somebody died wrongly in prison. A decree was issued: "In former times death sentences in all routes had to be decided by the court. This was the reason for long delays in decid-

96 A visit of the emperor to the tents of the Ch'in-kuo princess is recorded for 1046 (LS ch. 68, 1067-1068).

97 This was in 1041 (LS ch. 19, 226). At the same time it was also decreed that persons who contested a sentence already decided by a former ruler should be punished (loc. cit.).

98 In an earlier passage of the text Sheng-tsung was praised for his benevolent decisions.

99 For a parallel text see LS ch. 21, 253. 100 See also LS ch. 21, 253.



32 HERBERT FRANKE

ing cases. From now on in all cases of robbery with violence where the facts have been ascertained it shall be permitted to decide them there."101

In the fourth year (1058) a new decree was issued to the i-li- pv}02ä "Recently it was decreed that death penalties in the outer routes could be decided by the local authorities. But We are afraid that they might be unable to find out the truth and that there might be injustices. From now on, even if a confession has been made, it is ordered that court officials shall revise the case. Only after no wrong has been found they might decide; if there is some wrong We must be informed immediately in detail."103

In the first year of Hsien-yung (1065) it was decreed that prisoners without a family should be given provisions.104

In the sixth year (1070)105 the emperor, considering that the customs of Khitan and Chinese were not the same and that the law of the state should not be applied differently, therefore ordered the ťi-yin106 Su107 and the Chancellor I-hsin108 to revise the regulations.109 Those which were in harmony with the laws and ordinances ( lü-ling ) were all recorded, and those which were not, were separately preserved.

At this time the revision officials in going over the old Ch'ung- hsi regulations changed the paragraph that the theft, robbery or

101 The permission to decide on cases of robbery with violence in the local administrations of the routes is also recorded in LS ch. 21, 254.

102 On the office of i-li-pi "tribal judge" see above note 65. 103 For a more detailed version of the edict see LS ch. 21, 256. 104 It was customary in China that inmates of jails were visited by their

relatives and given food. 105 The translation from "In the sixth year . . ." to ". . . and the rest should all

be cancelled" has been taken over from the translation in WF 502. 106 ťi-yin was the Liao designation of dignitaries with high status. The title

is frequently attested. See also WF 438. The word seems to be related to Turkish tigin or tägin "prince".

107 Su was the childhood name of Yeh-lü Liang, a Khitan noble who has become famous for his literary skill. See his biography in LS ch. 96, 1398-1399 and WF 236 n. 69.

108 Yeh-lü I-hsin who has a biography in LS ch. 110, 1483-1486 was a very powerful member of the imperial clan. He plotted against the heir-apparent Chün in 1077 and was interned in Lai-chou in the twelfth month of 1081. In 1083 he was executed for his attempt to flee to the Sung (LS ch. 24, 288). See also WF 131 n. 51 and 592.

109 This passage is also translated in WF 236.




embezzlement of twenty five strings of money was to be punished by death, and increased the amount to fifty strings before applying the death penalty. They also took out two paragraphs that were duplications so that there remained 545 paragraphs. They adopted 173 paragraphs from the laws (lü) and created in addition 71 paragraphs making a total of 789 paragraphs. Adding the newly formu- lated ones, the total reached over one thousand paragraphs which were all arranged according to categories. The [additional regulations] decided on during the Ta-k'ang period (1075-1085) were also compared with the laws (lü) and the [earlier] regulations, and again 36 paragraphs were added. Later, as matters came up, they were continuously compared until the third year of Ta-an (1087) when 67 paragraphs were again added.

Since the paragraphs were so numerous, the officials responsible for litigation were not able to learn them all, and the ignorant people could not know how to avoid [punishment]. The people who violated the laws became numerous and the officials in this connec- tion committed wrongs. Therefore in the fifth year (1089) a decree was issued, aying: "Laws must give the people confidence; then the country will be peaceful. They should be as simple as Heaven and Earth and as unalterable as the Four Seasons so that the people may avoid [punishment] but may not violate [the laws]. Recently the officials were ordered to compile the penal laws but they were unable to implement our purpose clearly. In many cases they made articles through which the people were entrapped in crime. We highly disapprove of this. From now on the old laws should be used again, and the rest should all be cancelled."110

However, from the first year of Ta-k'ang (1075) on the Chancel- lor of the Northern Division Yeh-lü I-hsin and others managed the affairs. The harem maid Tan-teng and others accused the empress Hsüan-i111 wrongly, and I-hsin informed the emperor. He decreed immediately that I-hsin should prosecute, and he accordingly ver- ified the facts. The emperor became furious, and exterminated the musician Chao Wei-i, decapitated Kao Ch'ang-ming and all their

110 The edict of 1089 abolishing the complicated new code and reintroducing the old laws is also mentioned in LS ch. 25, 298. This passage is translated in WF 503.

Ill Hsüan-i was the wife of emperor Tao-tsung.



34 HERBERT FRANKE

families were confiscated. He also granted the empress to commit suicide.112

In the third year (1077) I-hsin again plotted with his gang to ruin the heir-apparent Chao-huai.113 He ordered secretly the right Grand Guardian of the Bodyguard Yeh-lü Ch'a-la114 to accuse the Director of the Affairs of the Chancellery Hsiao Su-sa115 and others, together eight men, that they had plotted to set up the heir apparent [as emperor]. An edict ordered to investigate but as no accusation resulted, Su-sa and Ta-pu-yeh116 were sent to provincial posts, and the guards [officer] Sa-po and other, six men in total, were exiled. An edict ordered that those who denounced the chief plotters of sedition117 should be given important offices and rewarded; if not, they should all be executed. I-hsin instructed the lang-chün of the Bureau of Tablets and Seals,118 Hsiao E-tu-wo,119 to come forward and to confess: "I, your servant, have in the past taken part in the plot of Su-sa and the others", and to write a list of the names to be accused. The emperor believed him. When I-hsin and others conducted the investigation, the heir apparent was beaten and imprisoned in a separate room in the palace. Ta-pu- yeh, Sa-la120 and others, together 35 men, were killed. Also all the sons of Su-sa were killed. Their young children, wives and daugh-

112 On this case see LS ch. 23, 277 and 71, 1205. See also WF 591 and n. 110. The tragic fate of the empress who was a lover of Chinese poetry and music is also described in the Hui-chiao lu of Wang Ting, which includes poems said to have been composed by her. A detailed analysis of these texts and the whole incident is Yao Ts'ung-wu, "Liao Tao-tsung Hsüan-i huang-hou Shih hsiang-tz'u yüan-yüeh ti wen-hua ti fen-hsi", in Wen- shih-che hsüeh-pao 8 (1958) 97-134, reprinted in Liao-shih hui-pien vol. 8 (Taipei: Ting-wen shu-chü, 1973) 773-810. The author sees the whole case as a conflict between Khitan and Chinese cultural values. See also the summary by Wang Gungwu in Revue Bibliographique de Sinologie 4 (1964) 100 no. 198.

113 This is Yeh-lü Chün, later canonized as Shun-tsung. He has a biography in LS ch. 72, 1215-1216. See also LS ch. 23, 279 and WF 421 n. 112, 568 and 592.

114 On Yeh-lü Ch'a-la see also WF 453 n. 438. 115 Hsiao Su-sa has a short biography in LS ch. 99, 1421. 116 On Yeh-lü Ta-pu-yeh who refused to take part in I-hsin's plot against the

prince see LS ch. 69, 1421-1422. He was later killed by I-hsin. 117 mou-ni, the second of the Ten Abominations. 118 On this office see Wr 477. It was one ot the minor court bureaus. 119 Hsiao E-tu-wo has a short biographical notice in LS ch. Ill, 1493. 120 On Yeh-lü Sa-la see the biographical notice in LS ch. 99, 1420. He held




ters, male and female slaves and their family property were all confiscated or given individually as presents to other officials. Yen-ko121 and others forged a letter implicating the heir-apparent of a serious crime and brought this to [imperial] attention. The emperor became very furious, deposed the heir-apparent and transferred him to the Supreme Capital. I-hsin then sent somebody to kill [the prince] in his prison. The emperor did not become aware [of the machinations]; high and low [officials] at the court did no longer observe the written laws.

In the first year of Ch'ien-t'ung (1101) of T'ien-tsu (r. 1101-1125) all those who had been harmed by I-hsin in the third year of Ta- k'ang (1077) were reinstated in their offices and noble ranks, those who had been confiscated were sent back, and those who had been exiled returned to their home districts. As late as the second year (1102) the graves of I-hsin and the others were opened; their cof- fins were broken up and the corpses destroyed. Their sons and grandsons were executed, and the sons and grandsons of the rest of the gang received punishment one degree lower than death, and were transferred to the border. The male and female slaves in their households were all distributed as gifts among those families who had suffered harm [from I-hsin]. As to Yeh-lii Ta-pu-yeh,122 Hsiao Ta-lu-ku123 and others, they were the most wicked and clever ones of the gang and they all escaped through bribery.

high officies in various Liao administrations. After his death he was like all the other victims of I-hsin posthumously reinstated.

121 Yeh-lü Yen-ko has a biography in LS ch. 110, 1487-1488. Although he had taken an active part in I-hsin's plot he was not affected by the death of I-hsin in 1083. In 1079 he had been made chancellor of the Northern Administration and received the high title of ťi-yin> and in 1087 he was appointed as vice-gerent of the Western Capital (Ta-ťung in northern Shansi province). He died of an illness in 1092.

lzz This i en-lu Ta-pu-yeh must not be contused with his namesake who had become a victim of I-hsin (see note 116). The accomplice of I-hsin in his plot, Yeh-lü Ta-pu-yeh, has a biography in the section reserved for vil- lains (LS ch. Ill, 1494). Ta-pu-yeh was of a cruel disposition and frequently tortured people. In spite of his implication in I-hsin's plot he continued to be employed in important functions. In 1111 he became Punitive Commissioner ( chao-ťao shih ) in the Northwest Route where he died of an illness.

123 Hsiao Ta-lu-ku who has a biography in LS ch. Ill, 1493 was personally responsible for the murder of the heir-apparent. Under the pretense that an amnesty had been granted he lured the prince from his house, cut his



36 HERBERT FRANKE

When it happened that their armies were routed or they had to give up a walled town, they were only dismissed from their office; that was all.

The General of the Campaigning Army124 Yeh-lü Nieh-li125 and others, together three persons had committed the offence of shooting deer in the imperial hunting reserve; they were all executed in public. Officials in service and members of the bureaus who had committed a transgression were, in addition to being sentenced to degradation, all ordered into the army. There were no rules for rewards and punishments, discontent and slander arose daily. One great robber followed the other, rebels and deserters formed an uninterrupted line. T'ien-tsu became greatly afraid and increased his control by cruelty, so that punishments like throwing from cliffs, hurling with catapults, piercing with nails and hacking to pieces were revived. It also happened occasionally that corpses [of offenders] were divided up among the five capitals,126 and in extreme cases their hearts were taken out and offered in the ancest- ral temples.127 Although this was the result of T'ien-tsu's lack of policy in saving himself from ruin, and of his cruel disposition, there was also something [in his actions] that had been started by his ancestors.

The earlier generations of Liao in their application of the laws esteemed severity. Even it their descendants had all had the qual- ities of a [good] ruler and known themselves what to choose, there would not have been principles of guidance inherited from their ancestors. But if unfortunately one of them was stupid and cruel and would have adduced [the old principles] to a small extent using them just as a pretext, he could have achieved everything. There- fore under the last generations of Liao the use of punishments was the same as under the earlier generations - what, then, was the

head off, put it into a box and pretended that the prince had died from illness. He always carried a sword because he was afraid that his participation in I-hsin's plot would come to light so that he could commit suicide if summoned to defend himself. He escaped, however, unharmed because of his bribery and died from natural causes.

124 On this office see WF 560. 125 It is not clear if this person is identical with the Yeh-lü Nieh-li mentioned

for 1089 in LS ch. 25, 298 or the one mentioned for 1092 in LS ch. 25, 298. 12G This happened m Ilia (L.IS ch. 27, ÒZI). 127 This is reported for 1115 (LS ch. 28, 333).




difference between rise and fall? It was this: the ruler who founded the state acted with regard to the laws before they were fixed, and so the people did not dare to find out. The ruler who lost the state acted with regard to the laws after they had been fixed, - on what could the people then rely? This is what made the difference. A tradition says: "In a new state, the light code should be used."128 How could he alone exercise power only according to circumstances?

In his later years T'ien-tsu used to hunt without restraint and mostly was unwilling to exert himself [in government]. Among all his sons only Ao-lu-wo129 who was born from the Concubine Wen130 was very worthy. Hsiao Feng-hsien,131 an elder brother of the Concubine Yüan,132 was deeply jealous against him. It happened that Concubine Wen's elder sister had married Yeh-lü Ta-ko-li,133 and her younger sister Yeh-lü Yü-tu.134 Hsiao Feng-hsien wrongly accused Yü-tu and others that he had planned to enthrone the Prince of Chin [Ao-lu-wo] and to give T'ien-tsu the honorific title of Exalted and High Emperor (T'ai-shang huang). Thereupon [the emperor] had Ta-ko-li and his wife massacred, and granted Con- cubine Wen to commit suicide. Ao-lu-wo who had not taken part in

128 This quotation comes from the Rites of Chou. For an English translation of a Han-shu passage quoting the Rites of Chou text see A. F. P. Hulsewé, Remnants of Han Law vol. I, 330.

129 Ao-lu-wo, Prince of Chin, has a biography in LS ch. 72, 1216-1217. He is described as a gentle and civilized person. See also WF 267 for an anec- dote concerning his youth. The plot to enthrone him took place in 1122; it is also described in LS ch. 29, 341-342 and ch. 64, 994-996.

löU Uoncubine Wen wno came irom tne nsiao cían is aescriDea as sKinea m singing and poetry. Her biography in LS ch. 71, 1206-1207 includes a song written by her which criticizes the emperor.

131 Hsiao Feng-hsien was very powerful under emperor Tao-tsung and a brother-in-law of emperor T'ien-tsu. He was granted suicide in 1122 when his alleged attempts to inthrone Ao-lu-wo were discovered (LS ch. 102, 1439-1440). See also WF 569 and 597.

132 Concubine Yüan is said to have been a quiet and gentle person, see her biography in LS ch. 71, 1207.

133 Yeh-lü Ta-ko-li is not mentioned elsewhere in the LS. 134 Yeh-lü Yü-tu has a biography m Lö ch. 10z, 1442-144 à. When the Jur-

chen attacks against Liao became more and more dangerous he defected in 1121 to the Jurchen whom he served for many years. He was eventually executed by the Jurchen for attempted treason in 1133. See also WF 426 n. 182. Yeh-lü Yü-tu has also a biography in Chin-shih ch. 133, 2846-2849.



38 HERBERT FRANKE

the plot could escape. When T'ien-tsu came on his western hunting expedition135 to Feng-sheng prefecture136 he executed Yeh-lü Sa- pa137 and exterminated his faction because Yeh-lü Sa-pa and others wanted to enthrone Ao-lu-wo. But because Ao-lu-wo was a man to whom the people looked up he was granted death [suicide] on the same day. At that time the officials accompanying the [emperor's] voyage, the servitors and soldiers who heard this, all shed tears.

From the time of Hsing-tsung on, when urgent important criminal cases came up and empress Jen-te was killed in her intern- ment, the government of Liao began to decay. Tao-tsung killed empress Hsüan-i and banished heir-apparent Chao-huai, and in the end the heir-apparent suffered injury. T'ien-tsu knew about the injustice committed against his father and hardly escaped death, but now he himself had his son Ao-lu-wo killed. A tradition says: "He who behaves shabbily to those whom he ought to treat well, will behave shabbily to all."138 Thus during the over two hundred years of Liao, blood-relatives destroyed each other. T'ien-tsu's wild cruelty was the worst of all and later resulted in his ruin. Alas!

135 A euphemism for the flight of the emperor. 136 Feng-sheng corresponds to modern Cho-lu in Hopei province between

Peking and Chang-chia-k'ou. 137 Yeh-lü Sa-pa had been one of the supporters of prince Ao-lu-wo. For this

reason he was executed in 1122 (LS ch. 29, 342). On his participation in the attempted coup see also LS ch. 64, 994-996 and ch. 100, 1428.

138 This is a quotation from Mencius VII, A, 44. The translation is James Legge's.



Documents

THE "TREATISE ON PUNISHMENTS" IN THE "LIAO HISTORY"