Introduction: Importance of causation
All legal systems self-evidently have to consider issues of causation. The inquiry into “cause and effect” is nowhere more important than in cases of homicide, where the individual identified as the cause of death may, if other conditions are satisfied, be required to pay with his life. The traditional Chinese law of homicide, as stated in a variety of legislative actsFootnote 1 and expounded in decisions of the highest court, paid particular attention to the precise cause of an individual's death. At a practical level this is seen in the careful forensic examination of the body and its locus to determine whether or not death was due to natural causes.Footnote 2 Once it was clear, as a matter of fact, that the death was due to some act of violence or the like, the further question arose: who was to be held liable for this act? Correct identification of the person or persons to be held liable was important for two reasons. First, there was the general principle, derived from the value attached in Chinese culture to human life, which required that the person who had brought about another's death should lose his own life in requital.Footnote 3 The second, more complex, reason concerned the application of the appropriate law prescribing punishment for homicide. The extent of punishment depended not only upon the precise circumstances under which the death had occurred (whether deliberately, in a fight or a game, and so on), but upon the relationship between the victim and the perpetrator of the act.
In order to determine precisely which rule was relevant in a case of homicide, it was necessary to examine the full circumstances of the death, in particular the physical context in which it had occurred and the blood relationship between the victim and any persons involved in the death. The notion of “involvement” in death was itself complicated and required investigation of matters such as: which person, if any, had formed the intention to kill, which had participated in the act bringing about death, had one person instigated another to kill, or had one person driven another to suicide? One may say that the answer to these questions also constituted the answer to the question: who had caused the death? Yet the exact connotation of cause in any given case will vary according to the type or degree of involvement. The statement that A caused B's death implies a wide range of variation in the relationship of cause and effect. It was one thing, for example, to strike and kill a person, quite another to oppress a person to the extent that he or she committed suicide. Yet in both cases the striker or the oppressor may be said to have caused the death.
In order to understand the way in which the Qing courts sought to resolve issues of causation, it is helpful to distinguish between “physical cause” and “legal cause”. The former expresses the act which directly brought about a person's death. The latter, which may also in the context of homicide be denominated “the real cause of death”, is composed of three elements: (i) a physical act forming part of the chain of causation culminating in death; (ii) identification of that act by the law as the real cause of death; and (iii) the treatment of the individual who performed that act as the person liable for the death and so subject to the punishment prescribed for the kind of homicide in question.
The “physical” and the “legal” cause may concur, as where one person stabs another in the course of a fight. The law here treats the individual who committed the physical act directly bringing about the death of the victim as the legal cause of death and hence as the person to forfeit his life. But the physical need not be the same as the legal cause. The person held liable may not be the one who physically caused the death, or may be held liable in addition to the latter. Obvious examples are supplied by the rules on instigation or suicide. A person who commits suicide physically brings about his or her own death, yet the legal cause of death is the person, if any, who oppressed the victim, so inducing the suicide. Likewise, a person who instigates another to kill a third person is liable as having “caused” the death (together with the actual killer), even though he took no physical part in bringing about the death.
The law has to establish liability for death in many different contexts and to many different degrees. One may have a sequence of acts, perpetrated by different individuals, culminating in a person's death. The law typically isolates one of the acts constituting the “chain of causation” as the “legal cause” of death and imposes liability accordingly. But it may also single out another act as a “contributory cause” and impose a lesser degree of liability. Not only do cases involving plotting with others to kill or instigating another to kill illustrate this phenomenon, but we also find on occasion the courts holding liable and so imposing punishment on the person found to have “started the trouble”, that is, performed the first of the acts constituting the “chain of causation”.
Broadly speaking, all homicide cases were handled initially by the magistrate of the district in which the death occurred, then submitted to the governor of the province for review by his judicial officers, and from there sent to the country's highest court, the Board of Punishments, in the capital for a final decision, subject to the approval of the Throne for capital sentences. The following discussion is based upon summaries of the decisions of the Board from the eighteenth and nineteenth centuries found in three case collections:Footnote 4
(1) Bo'an xinbian (A New Collection of Reversed Cases),Footnote 5
(2) Xing'an huilan (Conspectus of Penal Cases) and its supplements,Footnote 6
(3) Xing'an huilan xubian (Continuation of Conspectus of Penal Cases).Footnote 7
Between them these collections cover cases from the years 1736 to 1885.Footnote 8
From the reports of homicide cases preserved in these collections, we can see the importance attached by the provincial authorities and the Board to the meticulous tracing of cause and effect through the regular employment of certain technical expressions. We find in the judgments three common linguistic patterns or formulae.Footnote 9 First, the standard term used to express the causal link between the elements in the chain of causation culminating in death are you, youyu and, most importantly, yin/you (yu) … so zhi. The idea expressed here, elliptically in the terms you or youyu, more fully in the phrase yin/you(yu) … so zhi, is the existence of a cause which entails a particular result. The latter may be one of the elements in the chain or it may be the particular act which finally culminates in death. Two intensives are commonly found qualifying the phrase: jiu (“in the end”) and shi (“truly”). Both terms draw attention to the specific factor in the series of events held to be relevant in the ascertainment of liability for a homicide, which is to be identified as the cause of death.
Second, the phrase zui zuo so you/yin (“offence liable that which causes”) is used to emphasize the fact that, in a complex situation, it is necessary to ascertain the real (here equals “legal”) cause of death, so that the homicide can be properly classified and the correct punishment imposed. The facts have to be thoroughly probed to establish whether the death arose, for example, from a fight, a game or an accident. The way in which the homicide was classified determined the extent of the punishment of the person held to have caused the death.
Third, the phrase “beginning of the trouble (zhaoxin)” may be used with a sense similar to that of zui zuo so you/yin. It expresses the state of affairs which ultimately gives rise to the death, be it a game, a fight or an accident. In this way the homicide is correctly classified and the liability of the perpetrator made clear. Alternatively, the phrase may refer to the act of an individual which is treated as setting in motion the chain of events culminating in someone's death. In this context, the Board may be concerned to impose some punishment, even though the individual in question is not identified as the cause of death.
The three formulae are not mutually exclusive. They may all be found in the same context. In particular, you/yin … so zhi may be employed in the same sequence of reasoning as “beginning of the trouble” or zui zuo so you/yin. As the most general in its scope, the phrase you/yin … so zhi is normally used to express the sequence of thought that attributes a particular result (death) to a particular cause. The other two formulae have a more specific connotation. The phrase “beginning of the trouble” crystallizes one element of the chain of causation, singled out by the Board either because it wishes to impose liability on the person found to have initiated the chain of events culminating in someone's death, or because it needed to clarify the proper classification of the offence. The phrase zui zuo so you/yin draws particular attention to the state of affairs held by the Board to be most relevant to the determination of the cause of death. We study in turn the use in the reasoning of the Board of each of these three formulae.
I. “Beginning of the trouble” (zhaoxin)
The notion of “beginning of the trouble” is invoked in a number of ways to help the resolution of a causative issue arising from a homicide. The prominence of the notion in the legal reasoning of the Board lies precisely in the elasticity it permits in the assignment of liability and punishment. We may distinguish four kinds of use: (i) justification for the application of article 386 on “doing what ought not to be done, where the matter is serious”; (ii) identification of a further cause (in addition to the direct or immediate cause of death) warranting the imposition of liability; (iii) justification for a more serious punishment than that prescribed by the apparently relevant rules; and (iv) elucidation of the correct classification of the homicide.
(i) Application of article 386
Article 386, the so-called “catch-all” provision, is not specifically concerned with homicide. It punished a wide range of behaviour judged by the courts to be improper, imposing a beating of eighty blows with the heavy stick for serious misbehaviour, and forty blows with the light stick for minor misdemeanours. In the context of homicide we find the section of the article on serious misbehaviour applied in cases of persons found to have “begun the trouble”, even if they have not significantly contributed to the death. Three cases illustrate this approach.
In a case of 1799, A and B quarrelled over the latter's refusal to honour an agreement to buy the former's field and compensate A for the interest on the borrowed price. A with others then resolved to take crops from the field in lieu of interest. In the resulting fight one person on each side was killed. The Board found that a third person, C, had first suggested the taking of the crops, but had not taken part in the fight. It sentenced C to a beating of eighty blows under the article on “what ought not to be done”, on the ground that he had begun the trouble (zhi qi xin).Footnote 10
In a case from 1828, A and B quarrelled, cursed each other, and then separated. C, an enemy of B, heard B continue to curse A and went to inform A, with the result that A confronted B in his house. A and B fought and A was killed. The Board held that C should be sentenced to eighty blows under the article on “what ought not to be done”, should wear the cangue for a month, and lose his rank as a military graduate, on the ground that his words had stirred up the trouble (zhao xin) leading to the loss of a person's life.Footnote 11
A case of 1824 presents an elaborate piece of reasoning predicated upon the principle zui zuo so you. A and B quarrelled because A refused B's request to continue with public work on which they were both engaged. A raised his hoe to strike B. B used a stick to deflect the blow, with the result that the head of the hoe struck a bystander, C, who received a wound from which he died. The Board found that, in accordance with the principle zui zuo so you, A, who started the beating, should be identified as the cause of death and sentenced to loss of life in requital, while B, who had initiated the quarrel, should be sentenced under the article on “what ought not to be done”, since he had begun the trouble (zhaoxin) from which resulted the loss of a person's life.Footnote 12
(ii) Location of further cause
In some cases it was clear that the victim had been killed by one person or had committed suicide. Yet the Board found it was a third person who had “begun the trouble” and so should bear the greater share of the responsibility for the death. In a case of 1813, A solicited woman B for intercourse (tiaoxi). She refused, but on her way home slipped and dirtied her clothes. Her father, suspecting that she had had intercourse, beat and wounded her. She then committed suicide. The Board held that woman B's death was truly caused by her father's treatment (shi you … so zhi). However, it added that the “beginning of the trouble” (zhaoxin) lay in the initial soliciting for intercourse (tiaoxi). Consequently it sentenced A to exile by analogy with the substatute of 1781, dealing with soliciting intercourse, settlement of the affair, the subsequent ridiculing of the victim by third persons, and her final suicide.Footnote 13
A similar line of reasoning (here also utilizing the principle zui zuo so you) was deployed in a case of 1851, predicated upon a distinction between the immediate and the real (or legal) cause of death. The Board is concerned that proper recognition of and liability for the latter cause should be made. A unexpectedly came upon woman B using a privy. She upbraided him, they quarrelled and abused each other. Afterwards A told the girl's father that he had not taught his daughter proper behaviour. These words came to the knowledge of woman B's fiancé, who broke off the engagement. She thereupon committed suicide. The Board found that, although the death had truly been caused (shi you … so zhi) by the ending of the engagement, the origin of this lay ultimately in A's quarrelling and brawling. The “beginning of the trouble” (xinzhao) lay in the incident of abuse and cursing. Under the principle zui zuo so you, A should be identified as the real cause of death and sentenced by analogy with the substatute of 1785Footnote 14 to exile, with a decrease of one degree to penal servitude for three years.Footnote 15
(iii) Justification for more severe punishment
The Board or the Throne may cite the notion of “beginning of the trouble” as a reason for applying or not applying a particular statutory rule. In either case the result is to displace a lighter punishment in favour of one more severe. Three cases illustrate this point in different ways. In 1815 A and B quarrelled and fought. A's father intervened in an attempt to make peace, was abused, and then used his hoe to wound B. A struck B with a rock and killed him. Subsequently, A's father, fearing punishment, killed himself. The provincial authorities had proposed that A should have his punishment decreased from strangulation to exile under a substatute, finally settled in 1801, which provided inter alia that, where a person who had inflicted a mortal blow and subsequently feared punishment committed suicide, his death was to be treated as sufficient requital for the death of the victim; the person who had struck the blow causing death might have his punishment reduced from strangulation to exile.Footnote 16 The Board rejected the application of the substatute, emphasizing that the father's suicide arose from (you) the son taking the lead in starting the trouble (zhaoxin). It would not be equitable for the son to obtain his life as a result of an act which had led to his father's suicide. He should still be sentenced to strangulation after the assizes under article 290 on killing in the course of a fight (dousha). Here the emphasis on “beginning of the trouble” allows the father's suicide to be traced to the son's act in quarrelling with and killing the victim, and so justifies the exclusion of the offender from the benefit of a rule substituting exile for death.Footnote 17
The second case, from 1803, concerned a fatality on a ferry. Several passengers engaged in a game of gambling. When A wished to continue, B, who had initially proposed the game, quarrelled with him. They struggled. A lost his footing and fell into the river. In trying to get back, he pulled on the side of the boat. Another passenger, C, fearing that the boat would capsize, struck his hands and forced him back into the river, where he drowned. The Board, while sentencing C to strangulation as the person who had killed A in a fight, proposed that B should merely be sentenced to a beating and a period in the cangue under one of the substatutes punishing gambling.Footnote 18 The imperial edict, however, observed that B had been the one first to propose gambling, and moreover had been the one to push A, so that he fell into the river. The cause of A's death began with B (zhi si zhi you qi yu (B)). Hence B should be sentenced to a beating of 100 blows and exile to 3,000 li by analogy with the article (290) providing this punishment for the person who had originally formed a plot to beat another.Footnote 19 The Throne is able, through the notion of “beginning of the trouble”, to draw a tighter link between A's death and B's acts than that postulated by the Board. In this way, a more severe sentence was justified.
The third case occurred in 1839. A attempted to seduce woman B with the result that she committed suicide by jumping into a well. Three of her daughters also jumped into the well, two of them dying. A substatute, finally settled in 1803, provided that a man who attempted to entice a woman into illicit sexual intercourse, as a result of which she committed suicide, was to be sentenced to strangulation after the assizes.Footnote 20 The problem for the Board was whether this was a suitable punishment in a case in which three lives in one family had been lost. In holding that it was not, the Board adduced the fact that the offender's enticement of woman B to commit illicit sexual intercourse was the beginning of the trouble (zhao xin), as a result of which (zhi) three lives in one family were lost. A's depraved behaviour had such serious consequences that an edict ordering immediate execution should be requested.Footnote 21
(iv) Classification of homicide
In dealing with homicide cases, the most important task faced by the Board was the correct classification of the death. Only after this had been done could the court decide on the correct punishment to be applied. Where the facts in a given case were complex, the notion of “beginning of the trouble” was helpful in determining which state of affairs should be held as decisive for the classification of the homicide. In a case of 1826, we find the notion of “beginning of the trouble” combined with the principle zui zuo so you to elucidate the correct classification of the offence. A and others pursued B and others with the intention of beating them. The pursued came to a river and jumped into a small boat. The boat capsized, B lost his footing, fell into the river, and drowned. The Board emphasized that the beginning of the trouble lay in the fight, the drowning arose from the pursuit, and the principle zhi zuo so you should be applied (xin ji zhao yu zhengdou, ni si you bei jiu, zui zuo so you). Hence the case should be subsumed directly under the law of dousha (killing in a fight), for which the punishment was strangulation after the assizes. The Board was concerned to reject the suggestion of the provincial authorities that the punishment should be reduced to exile on the ground that the pursuer (A) had not anticipated the overturning of the boat.Footnote 22 The provincial reasoning would have treated the facts as approximating to “accident” rather than to a fight, and so justified a non-capital sentence.
We may compare an earlier case of 1803 in which A and B had quarrelled over the latter's failure to pay a debt. When they happened to meet on a ferry, A pursued B and attempted to seize him. As a result both fell into the river and B drowned. The provincial authorities proposed that A should be sentenced under the law of guoshisha (accidental killing). The Board, in rejecting this conclusion, laid down the general rule: if there is first anger and a quarrel, followed by a later attempt on the part of one participant to seize the other, with the result that the latter falls into a river and drowns, the trouble begins from the fight (xin zhao yu dou). Hence the offender must be sentenced under dousha and not guoshisha. Footnote 23
In other cases the Board also invoked the notion of “beginning of the trouble” in order to repel an attempt by the provincial authorities to subsume the facts under the head of guoshisha (accidental killing) instead of dousha (killing in a fight) or xisha (killing in a game). The classification was crucial on the one hand, because guoshisha entailed merely a payment by the offender to the family of the deceased, whereas both dousha and xisha entailed a capital sentence, and, on the other, because xisha was a less serious capital offence than dousha and so might more readily permit commutation of the death penalty. In a case of 1761, A was in the process of having sexual intercourse with woman B, when C entered the room. Startled, A raised himself in such a way that he struck woman B in the stomach, inflicting an injury from which she died. The governor general proposed that the case should be treated as accidental killing (guoshisha) or, at worst, as killing in a game (xisha). The Board rejected this approach and argued that A should be sentenced to strangulation after the assizes under the law on dousha (killing in a fight). Although the facts did not disclose a situation in which woman B had resisted, or of fighting, in the end the cause (yin) of her death was the fact that A raised his body and dug into her stomach. The wound inflicted was as if a beating had been given. The Board made two points concerning the “beginning of the trouble”: (i) the trouble arose on account of illicit sexual intercourse from which death resulted (xin zhao yin jian zhi bi ren ming), a matter more serious than the loss of life in the course of a game; and (ii) the trouble did not originally arise from a game (xin yuan fei you xi).Footnote 24
In a case from 1833, A, who had a tobacco pipe in his girdle, played at being a horse with B and C. A was the head of the horse, B the body, and C the rider. A stumbled and fell to the ground, B and C collapsed onto A. The pipe in A's girdle ran into B's nose, inflicting an injury from which he died. The provincial authorities treated the case as falling under the head of guoshisha (accidental killing), but the Board held it should fall under xisha (killing in a game). In support of this conclusion, it emphasized that the trouble originally arose from a game (xin zhao yu xi).Footnote 25
Sometimes, however, although the “beginning of the trouble” suggested one classification, subsequent facts, including those from which the victim's death arose, might show that the classification had shifted. In another case from 1833, A and B had been larking about, throwing water at each other. A then ran off, hid, and was pursued by B. A jumped from a pile of grain. B, in pursuit, slipped, fell, and was crushed by the falling grain, receiving wounds from which he died. In holding that this should be classified as a case of guoshisha (accidental killing), the Board reasoned as follows. Although the trouble began from a game (xin sui zhao yu xi), B's act in fleeing and jumping from the pile of grain was driven by his desire to avoid the water. At this point the intention of playing had been abandoned. Here a conclusion suggested by the way in which the trouble began (that the case should be treated as one of xisha) was displaced by a consideration of further facts, showing that the game had come to an end prior to the death.Footnote 26
II. Zui zuo so you/yin Footnote 27
We may commence with an illuminating observation in Shen Zhiqi's influential Jiju commentary on the Qing code, which first appeared in 1715.Footnote 28 In the portion of the commentary dealing with guoshisha, we find the words: “One can pity the circumstances of guoshi (accident). But the person killed or injured, how has he been at fault (gu)? (According to the principle) zui zuo so yin, there cannot be complete exemption from liability. Therefore in each case the sentence is to follow that on killing or wounding in a fight … and payment of redemption (is permitted)”.Footnote 29 A previous portion of the commentary has already emphasized that the perpetrator has himself been without fault (bugu), but has merely brought about (zhi) the death.Footnote 30
These remarks posit an interesting contrast between “fault” and “cause”. Neither the perpetrator nor the victim has been at fault, but the former cannot be held entirely exempt, since in the end he has caused the latter's death. To justify this conclusion, Shen invokes the principle zui zuo so yin. In its broadest sense, the principle states that the liability must be imposed on the person who caused the death. The context is not here one of the determination of which particular “cause” of death is disclosed by the facts, but of the notion of cause in general. The law must pay attention to the “cause” of death, as well as to the question of “fault”.Footnote 31
Shen had invoked the principle in a general discussion of liability on account of accidental killing (guoshisha). In a case from 1822, the Board cited the principle to justify the imposition of liability for guoshisha on one of the two persons “involved” in the accident. A on horseback rode by B's shop at a time when B was taking down clothes from a rod placed under the eaves. The rod fell, hit the horse, and caused it to bolt. A was thrown from the horse, which careered on, struck, and killed C. The provincial authorities held both A and B liable under the article on guoshisha for the payment of redemption to the family of C. The Board, however, disagreed and held that only B should be liable. It reasoned the collision of the horse with C and the latter's death arose from (you yu) the frightening and bolting of the horse, but the frightening and bolting was caused by (ze … so zhi) B's clothes rod hitting the horse. In accordance with the principle zui zuo so you, B should be held liable for the death. The principle is cited to make plain that responsibility must rest with the person whose act really caused the death of another; that is, constituted the legal cause.Footnote 32
The principle is invoked by the Board in several other contexts in order to bolster a decision which assigns liability to the individual held to have been the real (legal) cause of death.
(i) Abuse of power and physical coercion
The principle may be invoked to explain why the person who oppresses or coerces another is held liable, where the latter dies in consequence of the oppression. In a case of 1767, A on an errand passed by B's house at night. B, thinking he was a thief, with the help of neighbours, tied A up and suspended him by the neck from a beam, where he was beaten. A, who could not support his body, slipped and was strangled. The provincial authorities, after first erroneously attempting to subsume the case under a law on the false accusation of theft, accepted the Board's decision that the governing law was article 312 of the code, which prescribed a punishment of strangulation for one who abused his power, coerced, tied up, and beat another, so that the latter died. However, they found on the facts that B's death was truly caused (you) by suicide. Hence they proposed a sentence of military exile under a particular substatute dealing with beating and oppression, where the victim has received a mortal wound, but there are still traces of suicide.Footnote 33 The Board disagreed with the province's analysis. It stated that the basic idea of the code was that, where force had been applied to a person, irrespective of its kind, if it resulted in death the perpetrator should be sentenced to strangulation in accordance with the principle zui zuo so yin. The point the Board wished to emphasize was that the application of force was the cause of death and therefore the person who applied it should give his life in requital. The substatute cited by the province applied only to a case in which the victim truly had committed suicide. Here it was clear that the tying up of B was the cause (you) of his not being able to support himself. The real cause (you) of his death was the tying up.Footnote 34
(ii) Beating and pursuing
The principle is invoked in several cases in which a person who is being pursued falls and dies or drowns while trying to escape. It locates responsibility as the real cause of death in the person who pursues, not in the victim who might arguably be regarded as dying through an accident or from suicide. This is well illustrated by a case of 1814 in which the Board cited earlier decisions dealing with two persons quarrelling, one beating or seeking to beat the other, the other fleeing and, to escape pursuit, diving into a river, where he attempted to swim but drowned. In these cases the Board stated the pursuer was held liable to forfeit his life (by strangulation) under article 290 of the code on dousha (killing in a fight). It reasoned that the cause of death (you yu) was not suicide, but drowning. The cause (you yu) of drowning was the pursuit, which in turn was founded on the initial quarrel and fight. Under the principle zui zuo so you, responsibility must be located in the real cause of death, here identified as the fight.Footnote 35
A similar line of reasoning, derived from the principle zui zuo so you, was applied to justify a sentence of strangulation on account of dousha in a case of 1822 in which the person being pursued dislodged a rock which struck and killed a third person,Footnote 36 in a case of 1845 where the person pursued was held liable under dousha after the pursuer fell, broke his leg and later died,Footnote 37 in a case of 1863 in which the person pursued fell down a well and died at a time when the pursuer had already desisted from the pursuit, although the victim had not known this,Footnote 38 and in a case of 1870 in which the pursuer was a law officer (a constable).Footnote 39
Sometimes, however, the Board refused to apply the principle in a pursuing, slipping, and dying case. In a case of 1833, A, while guarding B's ancestral grave site, saw C cut down a tree on the site. He pursued C, who ran along a river bank, slipped, fell in the water, and drowned. The Board held that this was not a case in which the principle identified the cause of death as a fight, since, although there was a pursuit, there had been no preliminary quarrel or beating. Further, persons should be encouraged to pursue and capture thieves. Hence, it proposed that there should be no liability by analogy with article 388 on the pursuit of escaping criminals.Footnote 40 In a case of 1836, after a quarrel, A, while in pursuit of B, tripped over a rope, fell on the stake to which it was tied, and received a wound from which he died. The provincial authorities, applying the principle zui zuo so you, held that A should be sentenced under dousha with a reduction of one degree to exile. The Board objected on the ground that the position of the pursuer should be distinguished from that of the person pursued. The circumstances of A's death went beyond what could reasonably be anticipated as arising from the quarrel and so B should not be sentenced under dousha. Instead, the Board, following earlier decisions, proposed that B should be sentenced to a beating with the heavy stick under article 386 on “what ought not to be done”.Footnote 41
(iii) Grappling, pushing and resisting
The principle is invoked in various situations arising from fights in which a complicating factor introduces an element of doubt as to the “cause” in respect of which liability for a death should be assigned. These situations involve parties to a quarrel grappling with each other, pushing each other, or taking physical steps by way of resistance. The Board gave a broad remit to the principle in a case of 1824 in which A and B, clutching and gripping each other, fell into water, with the result that B drowned. A was held liable under dousha. Each had grabbed the other's queue, refusing to let go, but B had intentionally jumped into the river. B's falling and drowning was not in fact caused by (you) A's pulling him into the river, but by his own wish to risk his life. Nevertheless, this wish in turn was caused by (yin … so zhi) the quarrel. According to the principle zui zuo so you, once there is a quarrel, even where it is the victim who clutches the offender and from his own act falls into the river and drowns, the latter should still be sentenced to strangulation under dousha. The notion of “cause” is here again given priority over that of “fault” (constituted by B's intentional act of jumping in the river).Footnote 42
In a case from the period 1838–40, A and B met on a narrow path. B, being drunk, cursed and would not make way. A moved towards B to tug at him, but B turned, ran off, fell down the bank and killed himself. The provincial authorities, taking the view that there had been no actual fight, requested a reduction of the sentence of death under dousha to exile. The Board rejected the request on the ground that there was evidence of a quarrel. B's act in running off had been prompted by his wish to avoid a physical collision with A. Hence, in accordance with the principle zui zuo so you, A ought to be sentenced to lose his life.Footnote 43 In a case of 1855, A and B wrestled with each other. A, in struggling to free himself, caused both to fall down a cliff, with the result that he received injuries from which he died. The Board found that the cause of A's death was his attempt to free himself from the clutches of B (yin … so zhi) in the course of a fight. Under the principle zui zuo so you, B should be sentenced to lose his life under the article on dousha. Footnote 44
In a case of 1814, A and B (aged 75) quarrelled. B struck A, who did not dodge but in return pushed B. B, who was unsteady on his feet, fell, but did not receive an obvious injury at that time. During the night he died from breathing difficulties. The Board found that, although B did not die from A's push, in the end the blocking of his throat with phlegm was caused by the push and his consequent fall (you … so zhi). Under the principle zui zuo so you, A should be sentenced to strangulation on the ground of dousha. Footnote 45
A case from 1824, already considered in the context of “beginning of the trouble”,Footnote 46 raised a problem of a third person being injured and killed through the resistance of one of the participants in a fight. In the course of a quarrel, A raised his hoe to beat B. B used a stick to deflect the blow and knocked the head of the hoe against a bystander, C, who received a wound from which he died. The provincial authorities had proposed that B should be sentenced to lose his life in requital since C's death had resulted from (youyu) his resistance to A. The Board, while accepting this fact, held that the province's reasoning did not go far enough. B's act of resistance was caused by (yin) the threat to beat from A. Furthermore the person resisting, unlike the one beating, had the intention of avoiding the infliction of an injury. The court should consider the bearing of the principle zui zuo so you, under which the one who first resorted to beating (that is, A) should be sentenced to loss of life on the ground of wusha (killing by mistake, treated here in the same way as dousha). Only if one considered that the wound suffered by C arose from the act of resistance (as where it was disproportionate) would liability for the death be transferred to B.Footnote 47
(iv) “Wind” (feng)
A causal problem arose where a person who had been wounded died sometime after the infliction of the injury. Was the wound to be treated as the cause of death and so involve the offender in liability for homicide rather than merely for wounding? The solution adopted by traditional Chinese law, known generally as the baogu system as in article 303 of the Qing code, was to specify a time limit, the extent of which varied according to the nature of the wound, within which the death must occur if the offender was to be treated as guilty of homicide. Where the victim died within the prescribed period, a distinction was drawn between death from the wound and death from another cause. In the latter event the offender remained liable merely for wounding. It is in this context that the Qing law introduced the concept of “wind” (feng), understood in the sense of infection, stroke or fit. Pre-Qing law had treated death from “wind”, introduced through the wound, as equivalent to death from the wound itself. Thus, where the victim's wound became infected, or he suffered a stroke induced by the wound, with the result that death occurred, no reduction of sentence on the ground of “wind” was permitted. The Qing introduced a number of substatutes under which “wind” was treated as a cause of death, separate from the wound. In all cases where death could be attributed to the onset of “wind”, whether the victim died within the specified time limit or not, the liability of the offender was reduced and the applicable punishment decreased.Footnote 48
Once “wind” came to be treated as a “cause” of death, separate from the wound, a further complication ensued. It was necessary that the “wind” be shown to have been introduced through the wound after its infliction (as where it had become infected). Where the onset of “wind” (as in the case of a fit) and the striking of a blow were simultaneous, then, in accordance with a note inserted in article 303, the victim's death was still to be sentenced as dousha, as generally in the pre-Qing law. The application of these complex rules naturally caused the courts some difficulty. The critical issue was the exact cause of death. Once this had been ascertained, the correct statutory provision could be applied. The Board sometimes invokes in its reasoning the principle zui zuo so zhi to press home the causal link between the circumstance inducing death and the rule prescribing punishment.
In a case of 1854, A struck B on the cheek, inflicting a bruise and swelling but leaving the skin unbroken. B immediately suffered a “wind disorder”, characterized by trembling and an inability to speak or move, and died after the lapse of twenty-eight days. The Board accepted, first, that “wind” had been induced by the blow on the cheek, but, second, that this was not a case which fell within the substatute on death resulting from “wind”, since “wind” had not subsequently entered the body through the wound. Death was truly caused by the beating (shi you yu … so zhi), which itself caused (you) the “wind”. Under the principle zui zuo so you, the sentence should still be under the article on dousha, not the substatute on “wind”, since the principle identifies the article on dousha as the statutory principle relevant to the case and not (as the province had thought) the substatutute on “wind”.Footnote 49
With this case may be contrasted one from 1855. A struck B (a boy aged 8) with his shoe. Although B's skin was not broken, through terror he went into convulsions and died seven days later. Here the Board found that, although “wind” had not entered through an opening in a wound, death had in truth been caused by (you) the blow and concomitant terror. The latter occurred on account of (yin) the wound, with the result that (zhi) there was internal production and movement of “wind”. This was no different from a case in which death had resulted from “wind” entering through the opening of a wound. The principle zui zuo so you is cited to underlie the connection between the “wind” (as cause of death) and the substatute on “wind” under which the sentence was still strangulation.Footnote 50 This case is probably to be distinguished from the earlier one on the ground that the victim's death should not be attributed to the blow as such but to the separate factor of terror, which produced the convulsions identified as “wind”.
(v) Suicide
We find the principle cited by the Board in two kinds of case falling under this heading: that in which the husband, affronted by his wife's behaviour, commits suicide, and that in which a woman commits suicide on the ground of verbal abuse to which she has been subjected. The first situation occurs in a case from 1826. Woman A, objecting to the way her husband treated her, agreed to run away with B, although she did not commit adultery with him. Her husband, subsequently seeing them together, in shame and anger swallowed poison and died. The provincial authorities proposed that woman A should be sentenced to exile, by analogy with the substatute, finally settled in 1805, prescribing strangulation after the assizes for a wife who committed adultery, with the result that her husband killed himself.Footnote 51 The reduced sentence was justified on the ground that there had in fact been no adultery. The Board rejected the provincial approach on the ground that it had cited the incorrect substatute. That relevant to the present case was the one providing inter alia that, where the beginning of the trouble was a quarrel over a trivial affair, with no evidence of actual oppression, and the husband committed suicide, the wife was to be sentenced to strangulation after the assizes.Footnote 52 The Board, noting that a wife's fleeing with another man was a much more serious affair than a quarrel over some trifle, cited the principle to make clear the causal connection between the death and the particular substatute. It emphasized again that the cause of the husband's suicide was strictly the wife's elopement (zheng yin … so zhi). A wife who had caused her husband to commit suicide through her act of fleeing with another man was within the scope of the substatuute on quarrelling and so should be sentenced to strangulation.Footnote 53
The second situation arises from a series of eighteenth-century substatutes enacted to impose liability on persons whose “filthy words” resulted in another's suicide. In a few of the many cases concerned with such liability, we find the principle invoked as part of the Board's reasoning in establishing the appropriate sentence for the offender. These cases presented some fact which precluded the straightforward application of the substatutes. In a case of 1820, A, speaking to B, made joking remarks (xinüe) about C's mother, with the result that C in shame and anger committed suicide. The relevant substatute, enacted in 1785,Footnote 54 imposed a punishment of exile on persons who made such remarks, where the object of them committed suicide as soon as she heard. The difficulty in this case was that it was the woman's son who committed suicide, not the woman who was the subject of the obscenity. Hence the Board, while citing the principle zui zuo so you to locate liability in A as the cause of death, held that his punishment should be decreased to penal servitude.Footnote 55
A similar approach was adopted in two other cases. In 1831 an uncle in the course of a quarrel with his nephew outside the latter's house said he was scheming adultery. The nephew's wife, the only woman in the house, heard them and interpreted them as referring to her, whereupon in shame and anger she committed suicide. The Board, although the substatute of 1785 contained no provision which covered the facts of the present case, invoked the zui principle to justify the imposition of liability and held that the uncle should by analogy with the substatute be sentenced to penal servitude.Footnote 56
A different problem arose in a case of 1868. A, quarrelling with woman B, used words suggesting she was not a refined woman. In anger, she first killed her young son and then herself. The substatute apparently applicable was one concerned with the suicide of both a woman and her husband in consequence of “filthy words” uttered in the course of a quarrel.Footnote 57 The principal difficulty here was that one of the two deaths was brought about by the person who committed suicide. Nevertheless, the Board under the zui principle found that A was to be held liable for both deaths and sentenced him by analogy with the substatute to strangulation after the assizes.Footnote 58
(vi) Conclusion
We began our discussion of the principle zui zuo so you with a citation from Shen Zhiqi, according to which the principle expressed at the most general level the importance of causation as a necessary and sufficient condition of liability.Footnote 59 Where one person has caused another's death, whatever the circumstances, the former must be held liable and sentenced to punishment. By way of conclusion, we cite the observations of the Board in a case of 1814, which both emphasize the importance of the principle in the context of causation and pinpoint those areas of the law of homicide giving rise to problems of causation.
First, the Board considers the ambit of article 290 prescribing the punishment of strangulation after the assizes for dousha (killing in a fight). How far does the notion of “fight” or “quarrel” extend? The article is said to apply where there is an initial fight and (i) death results from (you yu) a wound inflicted by one participant on another, (ii) where there is no wound, but death is caused by one party pursuing another, who falls into water and drowns (you yu … so zhi), (iii) where one party is pulled and struggles to get free with the result (zhi) that someone slips, falls, and dies, or (iv) one party is being beaten, dodges, slips, and receives an internal injury causing (yiner) loss of life. The Board in this context againFootnote 60 significantly points to the distinction between “intention” and “cause”. Although the person held liable for dousha did not have the intention of killing, in fact he caused the victim's death (shi you zhi so you). Since one person's life has been lost, another life must be given in requital. This is the meaning of the principle zui zuo so you (the person who caused the death is the one to be made liable for the offence).
The Board then continues by stating that the meaning of sha (kill) itself is broad. Generally all that is necessary for there to be sha is that a person's death be caused (zhi si ren). For example, in the case of accidental killing (guoshisha) there is still liability. Nor is it necessary that death should occur through the infliction of a blow. Cases in which a person commits suicide because of the pressure exerted by another also count as sha. Here the death is caused by (you yu) the decision on the part of the victim to end his life, not a blow inflicted by the person exerting pressure. In cases such as guoshisha or suicide on account of intimidation, it is not necessary that the person held liable give his life in requital.
It is particularly necessary to be clear whether a person has lost his life through suicide in consequence of intimidation or through participation in a fight (the former requires loss of life in requital, the latter does not). Thus, where A is threatening to beat B and B falls into water and drowns, if the death is caused by the fight (yin … zhi), then the affair falls entirely under the law of dousha. The death cannot be treated as caused by (you yu) suicide. Generally, where A beats and pursues B who, while fleeing, falls into a river and drowns, the death is not caused by suicide or accident (you yu) but by the drowning which in turn is caused by the pursuit (you yu). The appropriate sentence is that supplied by the article on dousha. Footnote 61
III. The general causal formula you … so zhi
We have already noted examples of the use of this formula in the preceding sections. Its function is to state a particular relationship of cause and effect, that is, to identify a certain state of affairs as the real (or legal) cause of a person's death.Footnote 62 We may refer to “a particular relationship” because the formula expresses not just any relationship of cause and effect, but one which constitutes a “conclusion of law”. When the judicial authority says that a certain state of affairs is, or is deemed to be, the cause of an individual's death, it is stating that such a state of affairs is in law the cause of death. From such a conclusion follows a further important consequence, the identity of the article or substatute of the code which is to govern the case. Typically, the Board finds it necessary to express a conclusion as to causation in cases where there is some complicating factor which disturbs or overrules what appears to be the obvious or commonsense relationship of cause and effect. The use of the formula is well illustrated by a series of cases dealing with homicide on account of adultery.
When a person's death was attributable in some way to another's adultery or debauched behaviour, the latter's punishment might be increased beyond that appropriate for the specific offence of adultery (or other debauched behaviour). Conversely, a person who killed an adulterer might be treated more leniently than the formal law prescribed. In all such cases the provincial authorities and the Board emphasized the causal connection between the victim's death and his own debauched behaviour or that of another person. We may consider the cases under the following sub-headings.
(i) Liability of the adulterous woman for the death of the lover's wife or other person
In a case of 1770, A committed adultery with woman B and wished her to become his wife. Accordingly, he formed a complicated plan to kill his wife, woman C, have her body mistaken for that of woman B, and pass off woman B as his original wife (woman C). Woman B knew of the plan and helped in details, but did not participate in the actual act of homicide (the drowning of woman C by A). The provincial authorities initially proposed that woman B should be sentenced to exile under article 282 of the code, establishing this punishment for an accessory who had participated in a plot to kill, but had not taken part in the act of killing. The Board disagreed on the ground that woman B's behaviour warranted a more severe sentence and ordered the province to reconsider. The latter then found that, although woman B had only participated in the plot and not the act of killing, still the death of woman C at the hands of her husband was truly caused by woman B's depraved behaviour with him (zhi si … shi yin). Accordingly, woman B should be sentenced to strangulation after the assizes under the provision of the same article dealing with accessories who had both participated in the plot and taken part in the act of killing.Footnote 63
In a case of 1822, A planned to kill his adulterous daughter, woman B, and gave her a poisoned cake. She divided this in half and gave one piece to a young child, who ate it and died. The provincial authorities proposed that woman B should be sentenced merely to a beating and a period in the cangue under the substatute on adultery enacted in 1725.Footnote 64 The Board, however, observed that the death of the child as well as the father's offence and punishment in the end were caused by woman B's adultery (you … so zhi). Therefore her punishment should be increased to a beating and penal servitude for one year.Footnote 65
(ii) Liability of the lover for the death of the adulterous woman
In a case of 1774, woman A engaged in adultery with B. C, a five months mourning relative of D, woman A's husband, surprised them in the act and beat both. B escaped, but woman A suffered wounds from which she died. The question before the court was, what liability should be assigned to B? The provincial authorities proposed that B should be sentenced to penal servitude under the substatute on seizing the adulterers not at the place of adultery and killing the adulterous wife.Footnote 66 The Board objected that this was not equitable, since, as the province itself had found, the beating and death of woman A was truly caused by B's adultery with her (you … so zhi). B should be sentenced to strangulation after the assizes by analogy with the clauseFootnote 67 of the same substatute dealing with the seizure of the adulterous couple at the place of adultery by the husband and the killing of the adulterous woman.Footnote 68
(iii) Liability of the adulterous woman for the death of the husband
In a case of 1769, A several times committed adultery with woman B whose husband, C, knew of the affair but thought it had ended. Seeing them again engaged in intercourse, C pursued A, they fought, and C was killed. The provincial authorities found that woman B lacked the intention of causing her husband's death and should be sentenced only to a beating and a period in the cangue under the substatute of 1725. The Board disagreed on the ground that in the end her husband's death was caused by woman B's adultery (yin … so zhi). Accordingly, she should be sentenced to strangulation after the assizes under article 285 providing this punishment for the wife where her lover killed her husband, even though she was unaware of the circumstances. The Throne, however, in view of the circumstances of the case, exercised clemency and reprieved woman B from death, sentencing her to exile.Footnote 69
In several other cases the Board rejected the province's original suggestion that an adulterous woman should be sentenced only on the ground of adultery, since another's death in the end could be attributed to her debauched behaviour. In a case of 1771, woman A's lover, B, plotted to kill her husband, C, but she was not aware of the plot. At the time when B killed C, woman A remonstrated with him, and after his escape informed the authorities. The province recommended that she be sentenced to penal servitude under a substatute of 1749, which provided inter alia that, where the adulterer lacked the intention of killing the husband, but was surprised by the latter and killed him in a panic while resisting capture, and the wife was either not present or, if present, attempted to help her husband, and afterwards informed the authorities, she was to be sentenced only for the offence of adultery.Footnote 70 The Board found this substatute to be irrelevant, since this was not a case in which the adulterer had killed the husband in a panic while resisting capture. It referred the case back to the province, which now held: although woman A had the intention of not enduring her husband's death, in the end C's death was caused by woman A's adultery with B (you … so zhi). Hence she should be sentenced to strangulation after the assizes under article 285, which prescribed this punishment where the lover killed the husband and the wife was unaware of the circumstances.Footnote 71
In a case of 1774, A repeatedly committed adultery with woman B at C's house. Woman B's husband, D, went to look for her at her mother's house. Woman B's mother wished her to marry someone else and accordingly gave D poisoned tea from which he died. The question of woman B's liability arose. The provincial authorities proposed that she be sentenced only on the ground of her adultery under the substatute of 1725. The Board, however, disagreed on the ground that the poisoning of D at the hands of woman B's mother had truly been caused by woman B's fondness for adultery (yin … so zhi). Furthermore, woman B's conduct had resulted in (zhi) her mother incurring heavy punishment. She should be sentenced to strangulation after the assizes by analogy with article 285 (above).Footnote 72
In a case of 1830, woman A committed adultery with B. Her husband, C, was afraid of B and dared not intervene. C's father, D, wrongly thinking that C had condoned the adultery, killed him. The provincial authorities, finding no article or substatute of the code directly in point, requested clarification from the Board. The Board cited a number of laws: (i) a substatute, finally revised in 1804, dealing with the suicide of a woman's parents or husband on account of her adultery;Footnote 73 (ii) a substatute, finally settled in 1809, dealing with parents who are killed by another on account of a child's adultery;Footnote 74 and (iii) the clause of article 285 dealing with the killing of the husband by the lover, where the wife does not know the circumstances. The Board noted the difference between the parents and the husband in the substatutes: the punishment for the wife was immediate strangulation, where a parent committed suicide or was killed on account of her adultery, but only strangulation after the assizes, should her husband kill himself. The Board observed that, if, on account of (yin) his wife committing adultery, the result (zhi) was that her husband was killed, she should not be sentenced to immediate strangulation by analogy with the law governing the death of a parent. Still, the death of C in the end was caused by woman A's adultery (yin … so zhi). She should be sentenced to strangulation after the assizes by analogy with the substatute on a husband committing suicide on account of his wife's adultery.Footnote 75
(iv) Decreased liability of the killer on the ground of the debauched behaviour of the victim
In a case of 1750, A threw a stone at and killed B who was attempting to rape his wife, unaware that B was in fact his elder brother. The provincial authorities, in view of the kinship relationship between victim and killer, initially took a strict approach. Although B's death was in fact caused by his own licentious behaviour (zhi si … you) in breach of natural relationships (lun), equally by A's righteous anger (so zhi), still A should be sentenced to death by slicing under article 318 for the deliberate killing of an elder brother. On this being considered inappropriate by the Board, the province went to the other extreme and proposed that there should be no liability for the killing under article 285 on killing the adulterer caught in flagrante delicto. However, a sentence of exile was still imposed since A had attempted to conceal the death and burn his brother's body (a lesser punishment than that of beheading imposed under article 276 for the destruction of the corpse of a senior relative).Footnote 76
A case of 1761 considered the following facts. A, B's hired workman, committed adultery with B's concubine, woman C. When B found out, he ordered woman C to commit suicide. On her refusal, with the help of a younger cousin, he buried her alive. The provincial authorities initially proposed a sentence of penal servitude for three years for B under article 315 on a husband beating and killing a concubine. The Board emphasized that the killing here was caused by (you) righteous anger at the woman's adultery. It should therefore be sentenced under a substatute, finally consolidated in 1824, imposing a punishment of penal servitude for three years on a husband who, hearing of the adultery of his wife, several days later kills her.Footnote 77 It sent the case back to the province for further consideration. In their second submission the provincial authorities observed that the trouble truly began from the adulterous behaviour (xin shi zhao yu tongjian). B's act thus proceeded from (you) his just anger, and so he should be sentenced to penal servitude under the substatute on adultery and not the article on beating and killing a concubine. This meant that, since the victim was the offender's concubine and not his wife, the punishment was reduced to penal servitude for two years. The Board confirmed the provincial recommendation.Footnote 78
In a case of 1763, A committed an act of sodomy on a boy, B (aged 16), against the latter's will. After A on a subsequent occasion again wished to have intercourse with him, B devised a plan to kill A and put this into execution. The provincial authorities initially proposed that A should be sentenced to beheading after the assizes in accordance with article 290 on gusha (intentional killing). The Board considered there had not been sufficient appreciation of the facts. If B had truly been sodomized and cherished hatred, then A constituted an offender who had committed an act of debauchery and this was not an ordinary case of premeditated killing (mousha). The province was required to reconsider the case. In its second submission, the province concluded that there was no doubt that B sought revenge on account of the previous act of sodomy. Although the killing did not take place on the spot at the time of this act, the source of trouble (zhao xin) truly arose from (you) the original sodomy and the resulting anger as cause (so zhi). Therefore A should be sentenced to strangulation after the assizes under article 388 on a person who killed an unresisting offender.Footnote 79
(v) Other cases
The formula is employed by the Board in numerous other contexts where there was some obscurity or difficulty in tracing the causal connection between the death of the victim and the act of the person held liable. The material is noted here merely in summary form: suicide, either where the liability of one who “assisted” was in question,Footnote 80 where a woman had committed suicide on account of being subjected to “filthy words” or unwarranted proposals,Footnote 81 or where an individual subjected to some sort of intimidation or pressure had killed himself;Footnote 82 madness, where a person who had killed another claimed to be mad,Footnote 83 a mad person committed suicide,Footnote 84 or the madness of one person drove another to suicide;Footnote 85 killing in a fight, where problems might arise as to which wound was the cause of death,Footnote 86 or there was a doubt as to whether the circumstances amounted to dousha (killing in a fight), guoshisha (accidental killing)Footnote 87 or gusha (intentional killing),Footnote 88 or whether there was liability even though the facts did not constitute guoshisha;Footnote 89 identification of the person who caused the death;Footnote 90 and mousha (plotting to kill), where problems might arise as to what constituted “active assistance” on the part of an accessory.Footnote 91
General conclusion
We have studied the use by the courts of three causal formulae: “the beginning of the trouble” (zhaoxin), zui zuo so you/yin, and you … so zhi (or variant). The most general (you … so zhi) is that most frequently found, clearly because it expresses in a simple fashion the relationship between cause and effect in any given case. It takes a certain event which it identifies as cause and another (often, though not always, death) which it identifies as the result. Since any case of homicide postulates a causal connection between the death of the victim and an act of the person held liable, we have to ask why the explicit causal formula you … so zhi – often prefaced with shi (truly) or jiu (in the end) – is found only in a minority of the reported cases. The answer lies in the complexity of the facts. Where there is some factor which obscures the connection between the act of the person held liable and the death, the Board may need to emphasize the underlying causal connection in order to justify its decision as to liability and sentence. A good example of this usage is provided by the cases dealing with liability on account of illicit sexual intercourse.
The phrase “beginning of the trouble” does not explicitly state the existence of a causal relationship between two events. Rather, it points to the first of a series of events that may be said to constitute a “chain of causation”. The latter refers to a set of linked events singled out by the courts as that relevant to the allocation of responsibility in cases of homicide. By tracing back the elements of the chain from the death to the “beginning of the trouble”, the courts are able to answer such questions as, who was the real cause of death, who, even if not the real cause, set in motion a chain of events culminating in death and so deserved punishment, or how should the homicide be classified?
The phrase zui zuo so you/yin cannot be analysed in the same way as the other two formulae. It is not used to state a specific causal relationship or to refer to a “chain of causation”. Rather, it expresses a fundamental assumption or principle of the criminal law. To say in the context of homicide that “liability for the offence is that which causes” is to say that in allocating liability and imposing punishment the most important task for the court is to identify the true cause of the death. This shows that the focus in any homicide investigation must primarily be upon identification of the real cause, that is, of the state of affairs which the law deems to be the cause (not necessarily the act directly bringing about death). At the same time, the principle suggests that “cause” is a more significant factor in the allocation of liability than “fault”. In particular, liability should be imposed whenever someone has “caused” another's death, even though he/she neither intended to kill nor was in any other way at fault.
So significant does the emphasis on causation appear in judgments of the Board that we are tempted to ask, is there support here for the now generally discredited theory that early or primitive law was characterized by a principle of absolute liability? Under such a principle, a person who caused another's death was held liable simply on account of his act. His mental state, whether he had intended to kill, or even whether he had failed to exercise due care, was irrelevant.Footnote 92 In fact, although early Chinese law possibly operated with a principle pointing to death as the punishment for a person who brought about the loss of another's life, the earliest sources already indicate that the principle was to be qualified by reference to the perpetrator's state of mind. A document entitled Kangshi from the first decades of the Western Zhou dynasty (1056–771 bc) already advises the ruler that, where a subject has committed a great offence, should it be only by mishap, he cannot be put to death.Footnote 93
The development of the law of homicide in the empire took as its basis for the imposition of liability the factor of causation, but paid attention to the factor of fault at the level of sentencing. In Qing law, the sentence in homicide cases was proportional to the level of fault displayed by the perpetrator. For example, intentional homicide attracted the punishment of beheading, while killing in the course of a fight or a game attracted that of strangulation. The difference lay not only in the manner of execution but in the greater possibility of eventual reprieve for cases punished by strangulation. Some kinds of homicide attracted a non-capital sentence, even though there had been fault; the causal connection between the act of the perpetrator and the death of the victim might be so “indirect” as to preclude a capital sentence. Thus, where a person committed suicide, the obvious cause of death was the victim's own act. Hence the sentence of the person at fault, the one who had driven the victim to suicide, was normally not capital.Footnote 94
To illustrate the interplay of the principles of causation and fault, we may take the development of the law with respect to two kinds of homicide: killing by accident extending to killing by negligence (guoshisha), and killing in the course of a game (xisha). Both kinds of homicide are treated in the same way in the Han code of 186 bc, which states: “In cases of violent, unprovoked killing (zeisha) or killing in a fight (dousha), the killer is to be beheaded (‘abandoned in the market’), while in cases of accidental killing (guoshisha) or killing in a game (xisha) the punishment of death is to be redeemed”.Footnote 95 It appears from this law that both accidental killing and killing in a game were to be treated in the same way. There was liability since someone had been killed. Yet the perpetrator was to be allowed to redeem the punishment of death by a payment of money (whether to the state or the family of the victim is not specified). The reason for leniency is that there was neither an unprovoked attack nor a fight in which the perpetrator had an intention to harm another. In other words, the possibility of redemption is at this time grounded upon the absence of a certain kind of fault (intention to harm).
The position has already changed by the time of the Tang code in the eighth century ad. Article 339Footnote 96 preserves the same rule for guoshisha (payment redeeming the death penalty payable to the family of the victim), but article 338Footnote 97 compares xisha to dousha and provides that in the former case the punishment is to be either one or two degrees less than that for the latter. The punishment for dousha is strangulation. Hence that for xisha was either exile or penal servitude (depending upon the circumstances of the game). The comparison with dousha suggests that the legislators conceived the element of contest in a game as a species of fault.
A further significant change is apparent in the Ming code. Article 315 (3)Footnote 98 provides that guoshisha is to be treated as comparable to dousha, but that redemption is to be paid in accordance with the code. The commentaryFootnote 99 notes that the sentence to be imposed by the court is strangulation (as for dousha), but that redemption of the death penalty is to be allowed. The same article also deals with xisha, providing that it is to be punished in the same way as dousha, that is, the person who kills in a game is to be punished with strangulation.
The Qing code (article 292)Footnote 100 follows the Ming both for guoshisha and xisha, but its commentary gives a further indication of the reasoning behind the approach of the legislators. Explaining the ruling for guoshisha, the commentary emphasizes the aspect of causation. Although the perpetrator has not been at fault, he has still brought about the death of an innocent person. The circumstances are not the same as those of xisha. Hence, under the principle zui zuo so you, the sentence should still be strangulation in accordance with the article on dousha, but redemption is to be permitted.Footnote 101 By contrast, the commentary, when dealing with xisha verges more towards an explanation that reflects the notion of fault. It points out that, although the participants in the sport are not quarrelling but agree to engage in the activity, the matter is still capable of bringing about death or injury. The legislators, when speaking of “game”, have in mind sports that import some element of violence, such as boxing or wrestling. When the participants embark upon such a sport they know that there is a risk of death or injury. Consequently, should one be wounded or killed, the situation is no different from that of “beating” (ou). For this reason the case is to be treated in the same way as wounding or killing in a fight.Footnote 102
We can perhaps say that in the case of both guoshisha and xisha the element of causation, over the course of time, came to be increasingly emphasized, in the sense that the death of a person in an accident or a game in principle required the forfeiture of the perpetrator's life. Hence the formal sentence in both cases in Ming and Qing law was strangulation. However, the element of fault was instrumental in the determination of the sentence. Where there was no fault or only minimal fault, the punishment of strangulation might be redeemed by payment of a sum of money to the family of the deceased. Where there was fault, in the sense of a knowing engagement that might bring harm to a participant, the sentence of strangulation was actually to be passed and implemented (subject to the possibility of commutation in the review process).Footnote 103
