by Li Feng
The payments that the Han officials actually received were related to this system but not directly calculated based on it. Sources suggest that officials at the level of 2,000 shi received some 12,000 coins annually, and officials at the level of equivalent to 800 shi received 9,200 coins in the later first century BC. A century later, in the early Eastern Han, the Three Excellencies received a monthly 350 hu of unhusked grain, and the payments for officials of 2,000 shi was 120 hu, 1,000 shi was 90 hu, 600 shi was 70 hu, and 100 shi was 16 hu of grain. Officials were allowed to receive a half of the amount in cash payment. Compared to the Western Han, the texts say that the payment for salary level of 1,000 shi and below was increased and for 2,000 shi and above was decreased. There was the debate as to whether the Han officials could live on their salaries, but Bielenstein concluded that at least by the scales of payment in early Eastern Han, they were adequately paid.
* * *
The official history of the Western Han Dynasty (Hanshu) gives the total number of officials in the service of the Han Empire as 130,285 in 5 BC, including both local officials down to the level of county staff and those who were in the capital, starting with the Chancellor, the latter group being estimated to have been close to 30,000. Besides these civil servants, there were still a large number of military officers who spent their lives in various garrisons and camps throughout the Han Empire. If the above numbers are accurate, and there is no ground to suggest they are not, the total number of officials in service of the Han Empire would have been at least ten times larger than the number of officials employed by the Roman Empire, which only in its thoroughly bureaucratic later centuries had reached the level of Han officials in the capital alone. Looking at the comparison the other way around, while the Romans only needed to govern the semi-independent cities located on the sea coasts or along the main transportation lines in order to exercise indirect control over the largely rural population, the Han Empire had to put a huge bureaucracy in action in order to reach close to the villages. This was particularly true in the newly conquered inland regions such as the southwest inhabited by the various indigenous groups whose control virtually depended on the extension of the network of commanderies and counties.
Bureaucracy is not only the complex congregation of officials, but it is also defined by routine and standardized administrative procedures. An important archaeological discovery made in Yinwan in eastern Jiangsu in 1993 afforded us a keen view into the operation of Han bureaucracy at the local level through what might have been copied out of the governor’s office in the Donghai Commandery between 16 and 11 BC. Among the documents written on wooden and bamboo strips totaling 156 pieces, was first of all a copy of a standard “Annul Report” submitted by the commandery to the central government in Chang’an. The report gives the number of counties and dukedoms as well as of administrative units at each of the three levels below the county including 170 districts (xiang), 688 sub-districts (ting), and 2,534 villages (li). Then the report describes the territory of the Donghai Commandery and gives the grand total of its officials as 2,203 and population as 1,394,195 with detailed age and sex breakdowns. The fiscal situation of the commandery is reported favorably as having a surplus of 1,120,859,115 coins, only slightly lower than the annual spending of the commandery. Accompanying the report were “Registers of Officials” which give detailed account of the number of individuals on the official payroll from the Grand Administrator to the heads of the sub-districts. For instance, Haixi County is reported to have had 107 officials in various roles who were paid out of the commandery’s annual budget. What is even more interesting is a document named “Curriculum Vitae of Major Officials.” This document records the career tracks of the three major officials in each county, the Magistrate, the Assistant, and the Commandant.
Scholars are free to debate the accuracy of some of the figures offered by these buried documents, but few can escape the conclusion that the Han Empire had indeed developed a highly elaborate system of bureaucracy that extended from Chang’an to each individual village in the corners of the empire, ensured by standard procedures to gather and deliver information to the capital. This information in turn enabled the Han central government to mobilize resources in the most efficient way to pursue its political and military goals. Basing himself on the figures provided by the documents from Yinwan and calculating by the number of commanderies and kingdoms reported in the official history, Michael Loewe concluded that the grand total of officials reported in the official history of the Western Han Dynasty for the year of 5 BC, cited above, was largely accurate.2
There were multiple sources that the Han Empire drew on to support its large bureaucracy. Each year, the Grand Administrator of a commandery was required to recommend a small group of young men of outstanding moral and personal quality, called the “Filial and Incorrupt,” to the central government where after a short internship they would be appointed to serve in local administration. After the establishment of the Confucian curriculum by Emperor Wu in 136 BC, the imperial university in the capital began to produce an ever-increasing number of graduates qualified for official service and the number exceeded 10,000 each year by the beginning of the Eastern Han. Still on a constant basis, officials of the level of ministers in the central government or the Grand Administrators in the commanderies were allowed to place one of their sons in official service of the empire. But in a more general sense, the process of great expansion offered tremendous opportunities for young spirits to test their personal limits in military adventures or in civil service in the borderlands. It also offered an ever-growing number of offices added to the bureaucratic body of the empire. Without a doubt, the Han Empire was the most intensively governed area on the surface of the earth in the centuries before the Christian era.
The Zhangjiashan Legal Statutes and Social Orders under the Han Empire
Social order emerges from and was maintained through the implementation of the legal system, which in the Han case remained relatively stable over the four centuries. The official history of the Western Han Dynasty includes a chapter titled “Treatise of Law” which describes the origin of Han law. According to this, when Liu Bang arrived in the former Qin capital, he simply abandoned the harsh punishments practiced by the Qin Empire and promised “Three Articles” as basic rules for conduct which seem to have simply said that those who kill will be killed and those who injure or rob others will compensate their crimes. Then, it was his minister Xiao He who carefully examined the Qin statutes and selected and established the so-called “Nine Articles” which then served as the cornerstone of the Han Empire. Since none of these articles were transmitted in the received texts, the relevant account has been questioned by modern scholars.3 The “Treatise of Law” was rooted in the intellectual soil of the early Eastern Han that had already been deeply plowed by Confucian values and ethics. In this respect, although it might not tell us much about the actual practice of the legal system in Han for which we now have better sources (see below), it can probably tell us about how the rule of law was understood by the Han government and Han elites in the largely Confucian mainstream, being different from the Legalist agenda.
There, law and punishment are likened to thunder and lightning of Heaven, thus gaining a divine and natural origin which justified their uses, similar to rites that are the manifestation of the natural orders. On the other hand, punishments are considered “regrettable necessities” to maintain social order, undesirable and even unappreciated, and the degree of virtue of a government can be measured by the number of laws it enacted and punishments it used to keep its citizens in order.4 Therefore, good emperors are said to have concerned themselves mainly with the reduction of corporal, particularly mutilating, punishments rather than increasing them.5 Thus, it is reported that under Emperor Wen, the punishment of amputation of the left foot was replaced by 500 strokes, and the amputation of the nose and tattooing of the face changed to 300 strokes, on the grounds that such punishments deprived offenders of
the opportunity to reform themselves, and hence to return to normal lives. Under Emperor Jing, punishments of both degrees were further reduced by 100 strokes because many died before the right number of strokes was met. Despite its Confucian overtone, the “Treatise of Law” also offers bits of information about the number of Han laws in practice – under Emperor Wu, statutes and ordinances reached the total number of 359 articles, in which statutes related to the death penalty numbered 409, which included as many as 1,882 sample cases. These numbers seem to contradict the idea, suggested by the same text, that the Han legal system was set up for the minimum punishment of its people.
Overall it can be said that the Han legal system had its origins in the Qin Empire with the universal ranking system as its point of reference. Both systems went through modifications as necessary for adapting to the new reality in the Han Empire, such as the existence of a privileged aristocratic order. They provided the essential frameworks in which Han society operated.
In 1983–4, from a small tomb in Zhangjiashan in the district of the Jiangling City in Hubei Province, a total of 1,236 bamboo strips were excavated, including some 500 strips that carry Han legal statutes dating to the second year of Empress Dowager Lü (186 BC). The “Second-year Statutes” as they are commonly called by scholars include a total of twenty-seven articles, being the actual legal codes used in early centuries of Han (Fig. 13.1). Relevant to criminal offenses are the “Statutes on Murder” and “Statutes on Robbery” together with a number of articles about legal procedures such as the “Statutes on Reports,” “Statutes on Arrest,” “Statutes on Reduction of Punishment.” An important group of the Zhangjiashan articles concerns the economic activities in the empire,6 and another group of articles concerns rather the conduct of the government.7 Related to the last group is a very interesting article called the “Statutes on Scribes” which describes the training and use of scribes at different levels of the government. Some articles have their counterparts among the Qin legal statutes from Shuihudi (discussed in Chapter 11), but doubtless the scope of the Zhangjiashan statutes is much wider.8 It should also be noted that some of the terms were written with respect to the special circumstances of early Han such as terms regarding the defection of guards of local cities to the regional kings. On the other hand, it is likely that by all accounts the twenty-seven articles represent the core part, though maybe not the whole range, of Han laws that continued to be in use throughout the Han Dynasty.
Fig. 13.1 Strips of Han law from Zhangjiashan: 1, 2, “Statutes on Land”; 3, “Statutes on Currency”; 4, “Statutes on Robbery”; 5, unidentified; 6, “Statutes on Inspection.”
A closer look at the “Statutes on Murder” offers us a good sense about the definition of crimes and the propriety of punishment. For instance, according to Han law, murder or killing during combat is subject to the punishment of public execution, but killing by mistake or during a game can be given parole on payment of a fine. If the victim was not dead, the offender would be punished by tattooing his face and convicting as a “Wall Builder” (chengdan) or “Grain Pounder” (chong);9 but if dead, even the co-conspirator is subject to public execution. In cases of injuring people, if the injured died within twenty days, it is the same as killing. Injuring on purpose or self-injuring in order to avoid due services is punished by tattooing the face and turning into “Wall Builder” or “Grain Pounder.” Injuring during combat, in the case where a weapon, hammer, or metal tool was used, leads to the punishment of having the hair shaved and turning into the two types of convicts mentioned above; in the case where a weapon or metal tool was not used, the punishment is shaving off the beard. In other words, in judging a case where the crime led to the physical injury or death of the victim, the offender’s intention, the consequence, and the place and means by which the crime was committed all had to be carefully weighed.
For our main purpose in this chapter, the Zhangjiashan legal statutes offer a unique window through which we can see how social distinctions were constructed in Han society and what special rights and privileges were enjoyed by different social groups in front of Han law. The “Treatise of Law” lists four different orders in the lowest stratum of Han society from the bottom up as: (1) “Wall Builder” and “Grain Pounder,” (2) “Gatherer of Fuel for the Spirits” (guixin) and “White-Rice Sorter” (baican),10 (3) male and female slaves, (4) commoners. In the Zhangjiashan legal statutes, the treatment of the four orders by law is clearly differentiated. An interesting point here concerns the social status of slaves, and hence the nature of slavery in the Han Empire, a long-debated question in the study of Early China.11 For instance, the statutes state that if a “Gatherer of Fuel for the Spirits” or “White-Rice Sorter” attacked a commoner, they are punished by tattooing the face and convicting as one of the harsher type of laborers, “Wall Builder” or “Grain Pounder”; but if a slave attacked a commoner, he/she is punished by tattooing the face and being transferred to a different owner. Overall, the Zhangjiashan legal statutes suggest that slaves were of a significantly higher order than the two degrees of convicts forced to engage in hard labor. Their social dependence on their masters to whom they perform service is beyond question, but they are not criminals and could not be punished with forced labor. Once they are slaves, they abandon social responsibilities for their parents; therefore, the “Statutes of Report” say that when a slave is sued for “not being filial” such a report will be dismissed. The “Statutes on Miscellaneous Offenses” determine that when a free woman marries a slave, her children will be sent to another family as slaves; but children born from illicit sex between a male slave and a commoner woman can obtain the status as commoners. If a master had illicit sex with a female slave who is wife of another family’s slave, children born of that relationship will be slaves of the other family. In a recent study Robin Yates redefined the slave in the early Chinese empire as a socially non-person (or socially dead person) who could not possess property of his/her own; all he/she possessed was the property of his/her master.12 In this regard, the overall treatment or social perception of slaves in the Han Empire might have been very different from that in the Roman Empire, and the difference might have had much to do with the different sources of slavery. In the Han Empire the great majority of slaves were ethnic Han who were sold by their families or by themselves into slavery,13 while in the Roman Empire, slavery was the fruit of Roman conquest.
The citizen body above the level of commoners (non-rank-holders) was differentiated by the so-called “Twenty Ranks” which provided the foundation of social order in the Han Empire. The system was completely taken over by the Han Empire from Qin. The “Statutes on Household” from Zhangjiashan stipulate specific areas of land and number of houses granted to rank-holders at each level with rank 1 (gongshi) at the bottom of the social ladder who received 150 mu of land and 1.5 residences, and rank 19 (guanneihou) and rank 20 (chehou) on the top who received, respectively, 9,500 mu of land plus 95 residences, and 105 residences (land area not specified for rank 20). It can always be questioned as to whether such rigid standards were implemented in Han society and whether, if the figures represent the maximum properties people at different ranks could possess, such figures were strictly guarded. But these stipulations in Han law could certainly be used by people who knew them to defend themselves against others in legal matters. And in law people of different ranks were not supposed to be treated equally. For instance, the “Statutes on Murder” state clearly that if a man of lower rank attacked a man of superior rank, the fine for the violation was four pieces of gold; the fine for violating a man of the same or lower rank was only two pieces of gold. The “Statutes on Reduction of Punishments” then determine that a person of rank 2 and his wife who had committed crimes subject to corporal punishments by tattooing the face and turning into a “Wall Builder” or “Grain Pounder” are allowed to receive the lighter degree of punishment – head-shaving and serving as “Gatherer of Fuel for the Spirits” and “White-Rice Sorter.”
But this privilege for reduction of punishment seems to have been given to families of rank 2 and above, but was not applicable to those of rank 1 and the commoners still below it.
In short, the Zhangjiashan legal statutes offer us a unique window to look into the social history of the Han Empire. In addition to the “Second-year Statutes,” the same tomb also contained a collection of twenty-two cases of lawsuit that shed further light on the actual legal procedures of the Qin and early Han Empires (Box 13.2). In a more general sense, the Zhangjiashan legal strips provide us with a solid ground for understanding social values and distinctions in the Han Empire.
* * *
Box 13.2 Example from the “Discussion of Crimes” (Zouyanshu) from Zhangjiashan
The Zouyanshu from Zhangjiashan tomb no. 247, discovered in December 1983, is a collection of twenty-two actual criminal cases that the respective commandery legal officers felt difficult to judge and therefore submitted to the office of Superintendant of Trial for verdicts. These cases were edited into a reference book around 195 BC and were widely circulated and studied by officials throughout the Han Empire. The cases included in the book offer important new insight into the workings of the Han legal bureaucracy.
Case 1
In the eleventh year [of Emperor Gao, 196 BC], eighth month which began on the jiashen-day (#21), on the jichou-day (#26), the Governor of Yidao (Barbarian Circuit), Jie, and the Assistant Jia dare to propose:
In the sixth month, on the wuzi-day (#25), the crossbow-soldier Jiu brought in an adult male [named] Wuyou who was called to serve as a garrison soldier under the Commander (Yao), but who, having already received the letter, had fled before reaching the post. Wuyou said: “As Manyi (barbarian) adult male [I] paid an annual poll-tax of 56 coins to be exempted from labor service, and I should not serve as a garrison soldier; therefore, when Commander Yao summoned me to serve as a garrison soldier, I fled before arrival. The rest are as Jiu [reported].” Yao (the Commander) said: “The Commandant of South Commandery has issued order to conscript garrison soldiers, and the “Statute on Barbarians” does not say not to enroll them as garrison soldiers; therefore [I] dispatched him, not knowing that he has fled. The rest are as Wuyou [said].” We interrogated Wuyou: “According to the Statute, male adults of Manyi [are allowed to] pay an annual tribute sum poll-tax for labor service, but it does not say not to enroll them as garrison soldiers. Even if you should not serve as a garrison soldier, once Yao dispatched you, you are a garrison soldier. Now you have fled, how [do you] explain?” Wuyou said: “Our chief has paid tribute money every year as poll-tax, and it is meant to be exemption from [labor service]. The [record] must have been kept by the officials. I do not understand?” [We] asked [the officials] and it was like he said. [We] inquire: “Wuyou is a male adult of Manyi who paid tribute sum every year as poll-tax for labor service. When Yao dispatched him to be a garrison soldier, [he] fled and was captured. All is clear. [We] suspect that he is guilty of crime, pending other arguments, and [we] dare to propose the case, and make this report.”
