In order to speed up communications, the First Emperor also ordered for the standardisation of axle lengths. Ruts were inevitable in all but the newest and sturdiest of roads, but the Qin law established that all carts and chariots would have wheels the same distance apart. It may seem unimportant, but if everyone kept to the same ruts, passage would be smoother and ultimately quicker and safer. The length of the axles, like other measurements, was set at a measurement divided by six, since six was the alchemical number associated with the element Water, which the First Emperor regarded as his divine protector.5
Now that the Mandate of Heaven had been confirmed, the First Emperor also implemented the official veneration of Water. The boiling rapids of the Yellow River were now renamed the River of Power, and water’s ruling colour, the black of hidden depths, was used as the defining hue of the new empire. Flags were black, uniform adornments were black, and the magical number associated with black, the number six, became used as the common denominator of state calculations and measurements. Black, of course, was also the ruling colour of the Ying family, dating back to the times of legend when the First Emperor’s ancestor had received a black flag from an ancient ruler. Although the Legalists claimed to have no interest in matters of the supernatural, someone at court was still superstitious enough to promote such gestures to tradition.
One passage in the Record of the Historian still divides scholars, since it claims that the First Emperor renamed his subjects ‘the black-headed people.’ The term becomes relatively common in later dynastic histories, and is often presumed to refer to the Qin dynasty’s ruling colour – perhaps loyal subjects of the First Emperor were entitled to where black hats or bandanas. Another possibility may have more to do with the racial attitudes of Qin’s western frontier. The ‘black-headed people’ may have been named in direct opposition to the people with brown or reddish hair on the barbarian frontier – although the upstart Qin was acknowledged as the ruler of the civilised world, it still defined the Us and Them of its boundaries in terms of the many half-forgotten conflicts of its days as a borderland garrison.
The broad strokes of the First Emperor’s initial decrees are borne out by many hundreds of other forms of state control. Historians have always known of the road building and unities of weights and measures. The modern Chinese language owes at least part of its appearance to the reforms of the First Emperor. But it is only recently that we have begun to truly appreciate what life was like under the First Emperor. For once the empire was unified and rule was established, all under heaven was forced to abide by the thing that the Legalists prized above everything else: their laws.
One particular individual is more important than any other in aiding our understanding of the Qin legal system. His name was Xi, literally ‘Happy’, and he was born at roughly the same time as Ying Zheng himself. Aged 18, he joined the Qin government as a scribe in the early days of the ascendancy of Li Si, and was promoted to prefectural clerk during the period that Lü Buwei’s scribes completed the bulk of the work on the Annals. In 235, amid the paranoia of the anti-immigrant debate in Qin, court opinion favoured local men for a time, leading to Xi’s appointment as a court judge when he was only 27 years old. Judge Xi served the Qin government in this capacity for nearly two decades, before his early death in his forties. He is not mentioned in the Record of the Historian, nor in the Intrigues of the Warring States. There is no record of him going into battle, and he is not remembered for any particular legal precedent or famous cases. In fact, Judge Xi was completely forgotten for two millennia, until 1975, when workers digging a drainage canal in China’s Hebei province unwittingly smashed their shovels into his grave. When rescue archaeologists sifted through the remains, they discovered that Judge Xi had been buried with an entire library. As befitted an eminent judiciary official, Judge Xi went into the afterlife armed with a complete set of the Qin legal codes, and administrative documents, a veritable forest of bamboo strips, their leather bindings long since decayed.
These codes, it is presumed, were the culmination of a long tradition of scholarship – we should not assume that they were created in a frenzy of legislation during the lifetime of the First Emperor, but rather compiled and modified over several centuries. However, as Qin editions, they still tell us much about life in the Qin state.
Although Legalism has gained a reputation as a Machiavellian philosophy of the acquisition of power for its own sake and at all costs, the letter of its law is remarkably egalitarian. Apologists for Legalism might argue that although it is a system of fascist dogma, at least all are equal before it. However, even in Legalism’s earliest days, Lord Shang was forced to compromise his beliefs – the successor king who brought about the death of Lord Shang should not have been permitted to live under the full force of Shang’s laws. It would seem that by the time of Ying Zheng, the brutal codes of Legalism had already developed a new, pragmatic appendix. A Legalist state lived for the law itself, the laws defined the very models of behaviour, and served also as the acquisitory engines of more power and wealth. Criminals were allowed, indeed encouraged to buy their way out of sentences, since the payment of a fine was of more use to the state than a vengeful punitive injury such as castration, mutilation or tattooing. In this, Qin was not unique, and nor were other states in antiquity. Long before the rise of Qin, similar codes of conduct had been established elsewhere, in Mesopotamia for example, where law was also established for economic reasons.6 Such get-out clauses even affected the more draconian crimes – if a convict was sentenced to hard labour or slavery, he was encouraged to hire proxies to carry out his sentence for him. The Qin government would relieve a man of his enslavement if he could provide four others (or the price of four others) to take his place. It was a win/win situation for the Qin state, since at worst it would gain one new labourer on state enterprises, whereas at best it would gain four, all for the bringing of ‘justice’ to a single case.7 Similarly, bondservants could redeem themselves by providing two alternate adults to do their work. Aging bondservants or minors could be swapped for an able-bodied, healthy adult. Persons of higher social rank were able to demote themselves by two grades in order to redeem a family member from a crime, making social standing itself part of the currency of justice.
Althought the First Emperor maintained that all the nations were now unified, he was unable to avoid bad feeling against him among the conquered peoples. There are allusions in the Record of the Historian to a series of purges in the conquered states, as the Qin authorities hunted down anyone who whispered of resistance. Justice appears to have been particularly rough in Yan, the Land of the Swallows, since it was the nerve centre of the Red Prince’s conspiracy, and rightly believed to be a hotbed of anti-Qin feeling.
One man who fled the Land of Swallows was Gao Jianli, the musician who had played while Jing Ke had sung his farewell song at the border six years earlier. With Qin investigators ruthlessly gathering details of any surviving conspirators, Gao Jianli adopted a new name and hid any indicators of his past life. Despite being a renowned musician, he swore never to play again, and eventually found a job as a barman in the home of a noble family.
His professional pride, however, was something he was unable to hide, and eventually he was overheard muttering that his master’s entertainers were poor excuses for musicians. Following audience demands to prove it, he donned his best robes, retrived his dulcimer, and played for the crowd. His performance was so widely regarded that he was promoted to the highest available office in his new employment, and recommenced his musical career.
News of this eventually reached the Qin investigators, who established that the mystery musician was indeed Gao Jianli, infamous accomplice of the assassin Jing Ke. He was dragged before the First Emperor, who was suitably charmed with his musical skills to grant him a pardon and keep him as an entertainer. To keep Gao Jianli from acting on his rebellious impulses, the musician was blinded with acid. However, this was not enough to prevent him attempting to avenge Jing Ke and his c
ountry. At some later date, perhaps 220 or 219, the eyeless musician had lulled the First Emperor into a false sense of security, and found himself playing his dulcimer close enough to be within reach. Sensing that it was now or never, Gao Jianli leapt up, hefted his instrument, and clubbed the First Emperor with it, revealing that one end had been filled with lead in order to turn it into a weapon. The First Emperor easily evaded the desperate attack of the blinded musician, and Gao Jianli was immediately executed. But another assassination attempt so soon after the first left the First Emperor unwilling to allow any subjects from the conquered nations into his inner sanctum.8
This directive, probably barked out in the heat of the moment, only seems to have applied to new arrivals: it is unlikely that the First Emperor’s bedmates were suddenly restricted to Qin girls, for example. Nor did it apply to his advisers, since his trusted inner circle comprised Li Si (a native of the Land of the Immaculate), the brothers Meng Tian and Meng Yi (born and bred in Qin, but with ancestors from the Land of the Devout) and Zhao Gao, from the Land of Latecoming. However, the advisers, while deferent to their ruler, seem to have quarrelled among themselves.
The Meng brothers enjoyed a high status born of their family’s long military service to the Qin royal family. At some point in the past, however, they had been instrumental in uncovering an unspecified scandal, in which Zhao Gao was implicated. Although the details are unclear, it left Zhao Gao and Meng Yi at each other’s throats for the rest of their lives. The incident may have even led to Zhao Gao’s punitive castration – he is recorded as a eunuch in the Record of the Historian, but it is not specified whether he was castrated early in life to become the king’s personal servant, or later on. He is also recorded as the father of at least one child, possibly through adoption or through conception achieved before his unfortunate emasculation. Whatever the truth of the matter, Zhao Gao enjoyed a charmed status as the king’s life-long associate, perhaps even step-brother. In the early days of the imperial administration, many believed that the military class were now on the wane, and Zhao Gao may have enjoyed his relative rise in status as administration and policy-making began to enjoy greater importance. His gradually increasing powers would make him a powerful enemy, and one with an eye on ruining the Meng family for good. By luck or judgement, the advisers began to polarise into two factions: one of Zhao Gao and Li Si, the other comprising the Meng brothers and their friend, the heir apparent Prince Fusu.9
The stark difference between official harmony and real-life tension was not restricted to the First Emperor’s immediate circle. While the laws of the Qin state purported to represent all citizens equally, it was clear that some (the rich) were more equal than others. The difference with a Legalist state was that the existence of such loopholes was not a crime in itself – instead, the brutal pragmatism of Legalism acknowledged that it was possible to buy one’s way out of trouble.
Evidence of such problems can be found in the grave of Judge Xi. The archaeologists did not merely find laws. They also found detailed procedural documents, outlining the models for the interrogation of suspects and witnesses. Qin legal officials were advised to take separate statements from suspects and witnesses, and not to influence their initial claims.
When his statement has been completely noted down, and it cannot be understood, then insist on the points [which need] insisting. When, having insisted, one has again fully listened and noted down the explanatory statements, one looks again at other unexplained points and insists again on these.10
The facetious logic of the Legalist procedures was open to abuse. If a suspect’s story was still not acceptable, his interrogators were authorised to torture him until his statement was satisfactory. While the documents are crystal clear on the procedure, they offer no suggestion as to what might happen if an interrogator and his suspect disagreed on the nature of truth itself. In an even more sinister turn of events, although Qin officials were discouraged from using torture, the laws imply that it is theoretically acceptable to use it in their extraction of agreeable statements from witnesses, and not merely the accused.
Judge Xi’s rulebooks contain several model cases, presumably based, like their modern equivalents, on real legal decisions. The stories they present show us much about life under the Qin – during his tenure, Judge Xi had to deal with problems of a deceptively modern nature, thefts, crimes of passion and disputes over contracts. Qin rules on public conduct display hallmarks of a land in a state of constant war. Scaremongers and propagandists who spoke in favour of enemy states were to be cut in two. Incest was a capital offence, even between half-siblings. A woman was not considered to be a guilty party if two men fought over her and one of them was killed. In the case of a slave raping his mistress, the slave would be executed.
Others are even more alien to modern eyes. There is the case of an ‘absconder’, drafted in to serve on a work gang building a Qin palace, who deserted his post. After living a fugitive existence for five months, he eventually turned himself in as part of a plea-bargain for a more lenient sentence.11 Similar attempts to offset the severity of punishment are reported in another case, in which a nobleman turns himself in for a crime of robbery, offering instead to implicate his accomplice – tellingly, however, the accomplice is a commoner, and therefore presumably less able to buy his way out of trouble.
A notweworthy point in the cases is the nature of the arresting officials. Although Qin had armies and militia, the onus for much everyday policing lay with one’s neighbours. In one case, a man makes a citizen’s arrest of a murderer, hoping thereby to gain some leeway when he himself confesses to earlier stealing an ox. In another, investigators are called to the scene where robbers have tunnelled into a man’s house and stolen a gown made by his wife; the procedural records note that the robbers’ footprints appeared to be of old shoes, and also that the man’s estimate of the value of the gown was, to some extent, corroborated after his neighbours were interrogated.12
Judge Xi’s lists of legal precedents included the case of criminals caught smelting low-grade metals into moulds to make counterfeit coins; a horse-thief identified by foolishly donning the expensive and distinctive clothes he finds in the stolen saddlebag; and a uniquely grisly case in which a soldier, expecting to claim a reward by presenting the head of a slain enemy, finds that a passing ruffian has made off with the head, hoping thereby to claim the money for himself.
In an even more chilling glimpse of Qin attitudes, we find a case in Judge Xi’s collection where two local militiamen quarrel over the rights to an enemy’s head, only to have their interrogator realise that members of their platoon are missing, and appear to have been murdered and beheaded so that their traitorous colleagues could pretend that their heads were those of enemy soldiers.13
One case involves a village headman applying for permission to mutilate a woman. The woman in question is a slave who refuses to follow orders, whose owner wished to mark her with tattoos and cut off her nose as a punishment. The savagery of this unnamed slave’s treatment is bad enough, but it is also notable that Judge Xi’s legal precedents are not concerned with preventing her punishment, merely in the necessary documentation required to carry it out.14
When the cases are piled up and considered one after the other, we can truly see the results of generations of Legalism. Criminality in the First Emperor’s state was a difficult state to escape. Once convicted of a crime, real or imagined, a man would see his income and ranks chipped away until he had nothing left. Nor was there much chance of escaping the cycle, convicts were unable to hold political office, and anyone agreeing to sponsor a convict would be fined themselves.15
Confucius might have attracted ridicule with his hopeful notions of kindness to others and human goodness, but in refusing to recognise such a spark of life, Legalism reduced its adherents to animals. Presumably, somewhere in a distant palace, life was not so bad, but to the average inhabitant of Qin, life was a constant round of compulsory government service, timid interact
ions with neighbours who could turn one in, and constant fear of bucking the status quo. It is perhaps no surprise that one of the First Emperor’s greatest modern admirers was Chairman Mao, who imposed similarly restrictive conditions on the populace of modern China.
Judge Xi’s legal documents also contained detailed examinations of crime scene investigations. A discussion of a roadside corpse carefully notes the position and angle of entry wounds, estimating the size and type of the blade that made them. 2200 years ago, a man was murdered within a hundred feet of a police post. He was pale, of average height, with shoulder-length black hair. His body was found lying in the road, still clad in his jacket and trousers of low-quality hemp cloth. His shoes were some distance away – he seems to have lost one when running, and the other when his assailant caught up with him. Blows had been struck to his chin and temple, but he was killed by a weapon, probably an adze with a four-inch blade, that struck him once on the neck and twice on the back. On examination of the body, the Qin coroner found two distinguishing marks – old moxibustion scars on the corpse’s belly. The body was impounded, the clothes and shoes tagged and logged, and interrogators sent to the local police post to ask if they had noticed anything. An investigator also called on the occupant of a nearby farmhouse, to ask if he had heard the sounds of a struggle, or someone calling for help. We do not know how this case ended, but details of its investigation were used as a teaching aid by men like Judge Xi.16
The nature of Qin forensics would impress any modern law enforcer, except for the harsh fact that the models are designed not to seek justice, but to assign blame and exact punishments. A Qin investigator is encouraged to look for motive in all deaths, even suicides. If there is no note, he must interrogate friends and relatives in search of a reason, if there is no readily available reason, he is to treat the case as murder, and make sure someone pays for it.17
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