Academic journal article The Journal of the American Oriental Society

The Inquisition against Su Shih: His Sentence as an Example of Sung Legal Practice

Academic journal article The Journal of the American Oriental Society

The Inquisition against Su Shih: His Sentence as an Example of Sung Legal Practice

Article excerpt

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. …

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