The inquisition against Su Shih: his sentence as an example of Sung legal practice.

• Author: Hartman, Charles

INTRODUCTION

In the autumn of 1079 the Sung dynasty official and poet Su Shih [UNKNOWN TEXT OMITTED] (1037-1101) stood trial for composing and disseminating writings that criticized Court policy and slandered government officials. Fragments of a Censorate dossier that contained documents relating to the investigation and prosecution of Su Shih survive today and are known as the Wu-t'ai shih-an [UNKNOWN TEXT OMITTED] (Crow Terrace Poetry Case). In a previous article, I have examined the provenance and bibliography of this text and described its value as a literary document for students of Sung political poetry.(1) However, the Wu-t'ai shih-an also contains much to interest students of Sung-dynasty law. The purpose of the present article is to present an integral translation and commentary on a portion of the concluding document in the collection. This document reviews Su Shih's crimes and relates in detail how his sentence was determined. I hope to demonstrate that this sentencing document is a rare fragment of primary source material generated during the judicial process itself and that the detailed explication of this text's considerable legal and bureaucratic technicalities affords the opportunity to examine how Sung jurisprudence, whose outline and theory we now understand in some detail, worked in practice.

A cornerstone of Sung-dynasty law was the division of the legal process into two parts, each to be conducted by different officials or agencies acting in theoretical independence of the other. On the district (hsien administrative level, where the vast majority of routine legal actions originated, the district magistrate presided over both phases of the "trial." The first phase, called t'ui-k'an [UNKNOWN TEXT OMITTED] "investigation of facts," comprised the police investigation into the details of the case and the interrogation of the participants. The centerpiece of t'ui-k'an was the subject's confession and the signing of his formal, written deposition. As in modern China, this confession was crucial to the Sung legal process: the proceedings could not progress to the next phase without it, and the subject was usually given the opportunity to recant an earlier confession that had perhaps been elicited under torture. The second phase of the process was called chien-fa [UNKNOWN TEXT OMITTED] "application of laws," in which legal officers not connected with the investigation of facts examined the law codes and compiled a list of all applicable laws and precedents. The magistrate then issued a judgment in which he reviewed the facts of the case, presented the reasons for his decision, and fixed the punishment.(2)

Unlike a routine judicial matter, however, Su Shih's "trial" was conducted at the highest levels of Sung government. Yet the basic structure of the proceedings was not different from a proceeding at the district level. Emperor Shen-tsung [UNKNOWN TEXT OMITTED] (r. 1068-86), acting through the Council of State (Chung-shu [UNKNOWN TEXT OMITTED] or Cheng-shih t'ang [UNKNOWN TEXT OMITTED]) in his capacity as supreme judicial authority, functioned as magistrate in the case. The Censorate (Yu-shih t'ai [UNKNOWN TEXT OMITTED]) served as the fact-finding (t'ui-k'an) agency; and the High Court of Justice (Ta-li ssu [UNKNOWN TEXT OMITTED]) served as the law-finding (chien-fa) agency.(3)

This separation of the judicial function into fact-finding and law-finding is unmistakable in the organization of the Wu-t'ai shih-an. The major portion of the text is Su Shih's "deposition" (kung-chuang [UNKNOWN TEXT OMITTED]) or confession, the final textual product of fact-finding. Textual remains of the law-finding phase of the process are more difficult to detect. They are embedded, however, in the final document in the Wu-t'ai shih-an, entitled "Report on the Censorate Investigation and Conclusion of the Inquest" (Yu-shih t'ai ken-k'an chieh-an chuang [UNKNOWN TEXT OMITTED]). It is uncertain if the material that follows this heading was ever an integral Censorate document or, as is perhaps more likely, has suffered accidental mutilation during the course of the manuscript's early history or intentional abridgment at the hands of the compiler of the Wu-t'ai shih-an.(4)

This report begins with the statement that the investigation of Su Shih was formally completed and sent to the throne on 25 December 1079. It relates further that an independent, non-Censorate official has confirmed Su Shih's confession and determined that Su Shih does not wish to amend his deposition. Certain minor details are added to the deposition. So far the contents of the document do not belie its title. But from this point, the point at which the present translation begins, the character of the document changes suddenly and totally, from a final report of the fact-finders to a recommendation of the law-finders.

We know from two reliable sources, independent of the Wu-t'ai shih-an, that

the Censorate submitted the case to the High Court of Justice where it was determined that the sentence should be forfeiture of office to replace two years of penal servitude, but since there was an amnesty there should be a full pardon.(5)

The head of the Censorate immediately memorialized the Emperor, protesting this decision and renewing his call for Su Shih's execution.(6) The Emperor (and/or the Council of State) crafted a compromise between the two positions and issued an edict that sentenced Su Shih and formally ended the case.

I believe the present document, from the beginning through section 3.B.2, represents the body of the original law-finding issued by the High Court of Justice. From the testimony cited above from the Hsu tzu-chih t'ungchien ch'ang-pien [UNKNWON TEXT OMITTED] and the Sung hui-yao chi-kao, [UNKNOWN TEXT OMITTED] we know that this lawfinding concluded with a recommendation of full pardon for Su Shih as a result of the amnesty of 11 November 1079.(7) This amnesty was an "ordinary act of grace" (te-yin, [UNKNOWN TEXT OMITTED] literally, "the sound of [imperial] virtue"): it commuted the death sentences in capital cases and freed all those sentenced to punishments of exile or less; it specifically applied to those like Su Shih whose cases were still in the judicial process.(8) In short, if Su Shih was sentenced to anything but death, the amnesty should have set him free. It is significant that the document opens with a mention of this amnesty. This original conclusion of the High Court of Justice would appear to have been replaced in the Wu-t'ai shih-an copy of the document, probably by a Censorate official tidying up the files on the case, with sections 4.A and 4.B that relate the actual compromise sentence of the Emperor.

These circumstances, therefore, would seem to indicate that the text under review is a major portion of a contemporary Sung law-finding. I know of only one other similar text that has survived. Miyazaki Ichisada has called attention to a stone inscription from Kiangsu that contains the records of a 1228 case concerning the misappropriation of land belonging to the Su-chou prefectural school.(9) These records show the same assemblage of citations from statutes, edicts, and regulations that characterize the present document. Other surviving sentences and resolutions of law cases from the Sung, such as the records of demotions in the Chih-kuan [UNKNOWN TEXT OMITTED] section of the Sung hui-yao chi-kao or the p'an collected in the Ch'ing-ming chi do not show the format and detail characteristic of the Suchou inscription and this fragment from the Wu-t'ai shih-an.

Brian McKnight has well described the interlocking and overlapping character of the different categories of Sung legal regulations.(10) The fragment embedded in the Wu-t'ai shih-an reflects this feature of Sung jurisprudence in even starker detail than the Su-chou inscription and affords the opportunity to examine the detailed reasoning and working behind an original Sung law-finding. In addition, Su Shih, the subject of the case, is among the most fascinating and best-known figures in Chinese literary history. And the basic issues of the case - the rights of free association and freedom of speech, the questions of government censorship and criticism of government policy (even if neither Su shih nor his accusers would have formulated them in this way) - give the material a human interest and contemporary flavor totally lacking in the Su-chou material.

STRUCTURE OF THE DOCUMENT

I have divided the document into numbered sections and subsections in an attempt to bring its organization and inner structure into sharper relief. Before proceeding to the translation itself, it may be useful to present an overall outline of the text.

1. A A list of seven minor infractions discovered during the course of the investigation. Only the last is sentenced.

1. A.1 Citation of an edict forbidding use of memorials of gratitude to defame or slander. No punishment specified.

1. A.2 Citation of a universally applicable legal regulation to the effect that when a legal item, in this case the above edict, does not specify a punishment, one sentences in accordance with the statue on doing what ought not to be done (T'ang Code, Article 450).

1. A.3 Citation of Article 450.

1. A.4 Sentence.

1. B At initial Censorate investigations, Su Shih did not depose truthfully.

1. B.1 Citation of statue on failure to depose truthfully during an inquiry ordered by special decree (T'ang Code, Art. 368).

1. B.2 Sentence.

2. A Su Shih composed poetry that ridiculed the Court; at Censorate inquiry he subsequently made a full declaration.

2. A.1 Citation of unrecorded statue against composition of anonymous literary pieces that slander the Court.

2. A.2 Citation of edict extending to criminals who confess during an inquiry the same mitigation of sentence as specified by statute for those who confess before the inquiry begins.

2. A.3 Citation by name from commentary to Sung hsing-t'ung concerning statute...