18 Cause, Status and Fault in the Traditional Chinese Law of Homicide

GEOFFREY MACCORMACK (ABERDEEN)

Legal systems allocate responsibility for death, injury or damage on the basis of two principal criteria: causation and fault. These criteria are normally presented as though they constitute independent and concurrent requirements of liability.

What is of particular interest is the way in which legal systems use the notion of fault to control that of cause. By this I mean that regard to the degree of fault may sometimes remove difficulties raised by the indirectness of the causal sequence between act and result. The Roman law on damage to property sup­plies a good example. When the jurists were faced with difficult problems of causation, especially those in which the link between the act of the person sought to be made liable and the harm was indirect, they tended to resolve these by reference to fault. Of particular importance in this context was the gravity of the fault, namely, whether the person who instituted the chain of events result­ing in loss had acted with the intention of causing harm, or at least had acted with reckless indifference to the consequences. One instance may be cited from the decisions of the Roman jurists. Where A had deliberately set fire to B’s prop­erty, but the fire spread and also burnt C’s property, A is treated as though he had directly burnt C’s property. C, accordingly, is given against A the direct action granted by the third chapter of the lex Aquilia (the governing statute on damage to property).

In the traditional Chinese penal law of the late imperial period we find the concept of fault utilised by the judicial authorities and the throne in order to jus­tify the severity of the punishment imposed in certain cases where one person’s death had indirectly resulted from another person’s act. What is startling about the Chinese approach, at least to Western eyes, is the way in which fault itself is understood. It is not only a question of intention or recklessness, as in Roman law, curing certain weaknesses in the causal chain, but also a question of fault inferred from the relationship in which the offender stood to the victim. Should the parties stand in a particular relationship, such as that of parent and child or husband and wife, and the death of the senior in the relationship be in some way attributable to an act of the junior, then the junior was treated as blameworthy in the highest degree and exposed to a severe punishment. This point may be put in the following form: in traditional Chinese law the presence of fault was inferred from the relationship of status.

The attitude of the Chinese judicial authorities itself derived from the Confucian, and in particular the Neo-Confucian, conception of the basic bonds by which society was constituted. These bonds were those uniting ruler and sub­ject, parent and child, husband and wife, and senior and junior relative. In each bond one member was senior (ruler, parent, husband) and one junior (subject, child, wife). Although Confucian doctrine held that the senior in the relation­ship was under a duty to show benevolence and kindness towards the junior, the emphasis, especially in the later imperial age, came to be placed more on the duty of respect and obedience owed by the junior to the senior.

Fault thus acquired complex overtones in the reasoning of the Chinese offi­cials concerned with the disposition of homicide cases. Sometimes it was under­stood in the sense of intention to kill, whether premeditated or formed at the time of the act, or intention to cause harm, where the gravity of the fault was measured by the cruelty of the deed, or in terms of a state of mind correspond­ing to the Western categories of carelessness or recklessness. But sometimes it

Cause, Status and Fault in Chinese Law of Homicide 175 was understood in the entirely different sense of failure to observe the behaviour demanded by a particular status, that is, by the kin relationship in which the offender stood to the victim. These two different aspects of fault might in turn have different effects on the interpretation given to the causal connection between the offender’s act and the victim’s death.

We may distinguish the following propositions:

(i) In general the traditional law operated the principle that a person who caused another’s death should forfeit his or her own life in requital. However, in the case where the victim and offender were not related, this principle was applied only where the degree of fault exhibited had been grave, that is, where there had actually been an intention to kill, or where the death had occurred in circumstances of considerable cruelty.

(ii) Weakness in the causal link between act and death might be deemed cured by reference to the offender’s state of mind. For example, the Chinese law, in cases in which death had resulted from a fight, applied a principle according to which the longer the period of time that elapsed between wound and death the less the punishment. Yet this principle was not applied in cases in which there had been an initial intention to kill. In such cases, irrespective of the length of time that had elapsed between act and death, the full punishment (death) was to be imposed on the offender.^[432]

(iii) In cases of very indirect causation, where there was an argument for attributing the death primarily to the act of the victim and not to that of the offender, the latter was still treated as the “cause” of the death and hence made liable,^[433] where he or she stood in a particular relationship of kinship to the vic­tim. In such cases status and the responsibilities imposed by the relationship controlled the interpretation of the causal link. It is this proposition which is illustrated in what follows.

In order to place the “status” cases in the context of the general law, it is use­ful to consider first the way accidental killing was handled where there was no kin relationship between victim and offender.

Two decisions of the Board on accidental killing illustrate the difficulty that it sometimes faced in selecting the operative cause of death from a sequence of events. In a Szechuan case of 1830 Ch’i’s creditor (a member of the imperial clan) went to Ch’i’s house to demand payment of his debt.^[435] Ch’i was away from home but the creditor suspected that he was hiding inside and in anger kicked down the door. Ch’i’s 10-year-old daughter was playing in the house. In alarm at the noise she ran into the courtyard, slipped, fell and killed herself. The Board held that the offender could not be sentenced under the article on accidental killing because death had not resulted from “his hands”, that is, there had been no physical contact between him and the child. However, since the death in the end had been caused by the creditor’s kicking down the door, he should be sen­tenced to a beating of eighty blows with the heavy stick under the article on “doing what ought not to be done where the matter is serious”.^[436] Invocation of this article was predicated upon a distinction drawn between “cause of the trou­ble” and “cause of death”. The Board often relied upon the article to punish a person whom it regarded as having started the trouble, as a result of which a life had been lost.

With this decision may be compared one decided in 1822.^[437] The province of Ili submitted the following facts to the Board. Ho, while riding a horse, passed under the eaves of Wang’s second-hand clothes shop at a time when Wang was taking down clothes hanging from the eaves. The rod on which the clothes were hung fell and hit the horse, causing it to bolt. Ho was thrown off and the horse careered on, eventually colliding with and killing Cheng. The provincial gover­nor reasoned as follows. Ho should be held liable under the article on acciden­tal killing, since the colliding of the horse with Cheng was truly not within his contemplation and so fell within the statutory definition of accidental killing.

Further, since the cause of the horse’s taking flight and bolting was the act of Wang in letting the clothes rod fall on the animal, Wang also should be sen­tenced under the same article.^[438]

The Board rejected the first part of this reasoning. It pointed out that Cheng’s death was caused by the frightening and bolting of the horse, but that the fright­ening and bolting of the horse was a consequence of its being struck by Wang’s rod. On the basis of the principle ts’ui tso so yu (the cause is liable for the offence), Wang alone should be held liable on the ground of accidental killing. Here the Board was prepared to hold the author of the more remote cause of death to be guilty of accidental killing, and to exclude liability on the part of the person who had been riding the horse that directly brought about the death.

When we come to the “status” cases we see not only the same tendency on the part of the authorities to impose liability for the death of a person on someone, but a particular concern to impose a severe punishment, even if not capital, where the death of a senior could in any way be attributed to the act of a junior relative. Even where the relationship between act and death was too remote for the junior to be held liable on the ground of accidental killing, the Board of Punishments was still able to find some other rule under which a capital or near capital sentence could be imposed on the junior.

The connection between cause, fault, and status is best seen in cases in which the death of a parent is attributed to the act of a child. In traditional China the parent-child relationship covered not only that between a parent and a son or daughter but also that between a man’s parents and his wife. The fundamental obligation resting on the child was that of submission and respect. This was interpreted in the sense not only that the child should faithfully carry out all instructions received from a parent, but also that he or she should do nothing to cause offence to the parent. The very fact that a parent became displeased at a child’s behaviour was construed as a breach of the obligation to be filial. Should a parent commit suicide or accidentally die as a result of some act of the child who had caused offence, the death was treated ultimately as flowing from the child’s failure to display proper filial conduct. In effect the real or operative cause was held to be an act remote from that which actually brought about the death. An act, which at most was only part of the chain of events leading to the death, was singled out as the direct cause. In this way the offender could be sen­tenced to the full punishment prescribed by the relevant provision of the penal code, or at best be permitted a small decrease.

We may now turn to some examples of the interpretation given by the judi­cial authorities or the throne to the notion of “cause” in cases in which a child had brought about the death of a parent. The penal code provided that, where a child had disobeyed instructions and so caused a parent to commit suicide, the punishment was to be strangulation after the assizes.¹⁰ In this context the Board of Punishments was prepared to apply a particularly broad understanding of “cause”. In 1821 the province of Shensi submitted the following facts to the Board.¹¹ Yen’s mother, who was prone to fits of insanity, especially when angry, rebuked him for upbraiding his wife. He resented his mother’s interference and ignored her instructions. She thereupon became angry and suffered a fit of mad­ness in the course of which she took poison and died. The governor proposed that Yen, in view of his mother’s insanity, should be allowed a reduction in sen­tence from death to exile.

The Board rejected the governor’s recommendation, stressing the importance of the parent-child relationship and doubting whether the full facts had been uncovered. It observed that Mrs Yen’s suicide, even though flowing from a fit of madness, was in truth caused by her son’s failure to obey her instructions. It pre­ferred this approach to that of the governor who had argued the reverse, namely, that, although the son had disregarded his mother’s instructions, in truth her sacrifice of her life proceeded from her insanity. The case was sent back to the province for further consideration, the report not giving the final outcome. It is interesting to compare the view taken respectively by the gover­nor and the Board of the causal link between the son’s act or omission and the mother’s death. The governor saw the fit of madness as something that in effect broke the chain of causation and justified a reduced sentence, whereas the Board treated the behaviour of the son as the real cause of the mother’s death.

A similar approach was taken in a case submitted from the province of Shansi in 1827, though here the sentence was not quite so severe.¹² Liu, a filial son, gen­tly remonstrated with his mother when she accepted money from a senior clans­man in connection with the sale of the latter’s daughter-in-law. When his mother insisted on keeping the money, he secretly saved up and paid back the equivalent to the clansman. Mrs Liu, on discovering this, felt shamed and ridiculed, and committed suicide. The Board held that, although the son had caused his mother to commit suicide, the circumstances justified the relatively lenient punishment of exile. It observed that, should the son by disobeying his mother’s instructions have driven her to suicide, the sentence would have been capital. He had been filial, but nevertheless the cause of Mrs Liu’s death was the secret return of the money by her son. Hence he should still be sentenced to exile, though not to strangulation.

This is a striking decision since Liu was still held liable for his mother’s death even though the Board could find nothing in his treatment of her that it could condemn as unfilial. The mere fact that her suicide had been prompted, albeit

¹⁰ The text of the sub-statute can be found in Hsueh, supra n.5, § 299.9, and translations in G Boulais, Manuel du code chinois (1924, repr. Taipei, 1966) § 1329; PLF Philastre, Le code anna- mite II (1909, repr. Taipei, 1967) 255, decree IX.

¹¹ HAHL, supra n.6, p. 2194. See also M J Meijer, “Criminal Responsibility for the Suicide of Parents in Ch’ing Law”, in WL Idema (ed), Leyden Studies in Sinology (Leiden, 1981) 120, at 130—1; T’ung-tsu Ch’u, Law and Society in Traditional China (1961, repr. Connecticut, 1980) 49.

¹² HAHL, supra n.6, 2199; Meijer, supra n.11, 121; Ch’u, supra n.11, 50.

Cause, Status and Fault in Chinese Law of Homicide 179 indirectly, by an act of the son was in itself sufficient to impose liability. Although Liu had not actually disobeyed his mother’s instructions, he had acted in a way of which he knew she would not approve. As a result she had experi­enced shame and humiliation, and so resorted to suicide. The very fact that Liu’s action had brought humiliation on his mother was in itself a fault justifying a severe punishment, even though he should escape a capital sentence.

The accidental death of a parent or parent-in-law was sometimes treated in an analogous fashion, as is illustrated by a Shensi case of 1838.^[439] Where a daugh­ter-in-law had not cooked her father-in-law’s food properly, the latter in a rage rushed to beat her, slipped and fell, receiving injuries from which he died. The provincial authorities had proposed a sentence of immediate strangulation sub­ject to the special petition to the throne as prescribed by the sub-statute on the accidental killing of a parent by a child.^[440] The court in effect treated the daugh­ter-in-law as having directly killed her father-in-law. The Board did not go quite so far. It rejected the provincial approach on the ground that this was not a case in which the parent could be said to have been killed by the child, since the father-in-law had slipped and killed himself through his own act. The custom in cases of this kind, it observed, was to apply by analogy the sub-statute on a child disobeying orders and causing a parent to commit suicide, so entailing the pun­ishment of strangulation after the assizes.^[441]

The Board here adopted a more subtle approach than the provincial author­ities. The latter emphasised the relationship between father-in-law and daugh­ter-in-law, under which the latter owed filial respect and submission to the former, and were prepared in the context of accidental killing (kuo-shih sha) to treat the act of the daughter-in-law (the faulty preparation of food) as the actual cause of her father-in-law’s death. The fact that the latter had been provoked to anger and in consequence had slipped and fallen was treated as part of the offender’s initial act. On the other hand, the Board, while equally emphasising the duty of filial respect on the part of the daughter-in-law, did not consider that her initial act had directly caused her father-in-law’s death. In the context of kuo-shih sha the latter’s own actions must be considered to have broken the chain of causation between initial act and death. Nevertheless, the daughter-in­law should not be exempt from liability since the father-in-law’s death was in the end the result of her failure to show proper filial respect. Hence the appro­priate rule to be applied was that on the suicide of parents and not that on acci­dental killing. We have here an example of the Board’s reluctance to be lenient where a parent’s death could in any way be attributed to the act of a child.

We may compare a parent and child case from a different area of law, that concerned with premeditated killing (mou sha), this time illustrating a differ­ence in approach between the Board and the throne. In 1815 the province of Hu-kuang submitted the following facts.^[442] A son had repeatedly urged his mother to risk her life and take revenge on a person who had appropriated fam­ily grave land. His mother visited this individual at his home and then hanged herself in the room she was occupying for the night. The Board treated this as a case in which the son had plotted to kill his mother, arguing that, although death had resulted from her own act in hanging herself, the true cause was the repeated urging by her son that she should risk her life. It therefore recom­mended that the sentence should be the most extreme known to the law, death by slicing, as provided by the code for the premeditated killing of a parent by a child.^[443] The throne, however, thought that the Board had pressed too far the causal connection between the son’s act and the mother’s death. He had not actively contributed to her suicide, as by arranging the rope around her neck, but had merely uttered words of encouragement. Hence his punishment should be reduced to immediate beheading. This is the same punishment as that stipu­lated by the article for the case in which the child had begun to put into execu­tion a plot to kill a parent, even though the latter’s death had not been achieved. Although the son had not actually plotted to kill his mother, he had been reck­less in his regard for her well being by urging her to risk her life. Because of the relationship between victim and offender the Board and the throne were pre­pared to treat the case in the context of the law on the premeditated killing of a parent. They merely differed as to which aspect of that law should be applied to the particular case. We notice again that the causal relationship between act of the son and death of the mother appears to be tenuous.

The relationship of husband and wife also raised considerations of status. The husband was deemed to be the senior, and hence any act of the wife from which his death resulted, albeit indirectly, was likely to be treated as the opera­tive cause, entailing for the wife the full penalty in respect of the death. As in the case of parent and child, the liability of the junior for the suicide of the senior was widely construed. In an 1826 case from Kwangtung Mrs Chung, after ill treatment from her husband, fled in the company of another man, but did not commit adultery with him.^[444] Later her husband saw them together and in shame and anger committed suicide. The provincial authorities had recommended a sentence of exile, this being a decrease of one degree from the punishment of strangulation prescribed by the sub-statute on a wife who engaged in adultery with the result that her husband committed suicide.^[445] The Board considered this too lenient, since the relationship of husband and wife required the law to be severe. In holding that the wife should be sentenced to the full punishment of strangulation after the assizes by analogy with the sub-statute, the Board invoked the principle ts’ui tso so yu (the cause is liable for the offence). They thereby emphasised that the death of the husband was caused by the flight of his wife in consequence of the ill treatment she had received. The fact that her flight had been prompted by his ill treatment was deemed to be irrelevant. Indeed, the Board, according to the report of the case, made no reference at all to this fact as a possible justification for the wife’s behaviour. It was sufficient for liability that in the end her husband’s suicide had resulted from her improper behaviour in fleeing in the company of another man.

In imposing liability for killings arising from adultery or other unlawful sex­ual acts the Board also took a wide view of the causal relationship between the act of the participant in the adultery and the death of the victim. In a Kiangsu case of 1830 Mrs Ma had an adulterous relationship with a Buddhist monk.^[446] Her husband knew of the affair, but was too frightened of the monk to do any­thing. His father, wrongly thinking that he was condoning the adultery, killed him. The problem for the Board was to determine the punishment for Mrs Ma. Should it go beyond that fixed for the adultery itself? The Board treated the facts as falling by analogy within the scope of the sub-statute prescribing a punish­ment of strangulation after the assizes for the wife where her husband had com­mitted suicide on account of her adultery.^[447] In reaching the conclusion that Mrs Ma should be sentenced to strangulation after the assizes, the Board stressed that in the end the cause of the husband’s death was his wife’s act of debauch­ery. At first sight the connection between Mrs Ma’s adultery and the death of her husband at the hands of his father appears to be remote. The reason for the Board’s willingness to see in the behaviour of the wife the real cause of her hus­band’s death was the fact that she had failed to observe the fundamental oblig­ation of chastity imposed by the relationship of husband and wife. It was the nature of the fault that dictated the selection of the legally relevant cause of death. The fault in turn was derived from the status of the wife in relation to her husband, a status that imposed upon her certain obligations, in particular that of chastity.

The material surveyed in this chapter suggests a general conclusion that may be formulated as follows. The authorities in imperial China concerned with the interpretation and application of the penal rules on homicide identified as pri­marily liable the person whose behaviour should morally be treated as the cause of death. This attitude is well illustrated by the cases on parent and child and husband and wife. A child was held liable for the suicide or accidental death of a parent even in circumstances where the causal relationship appeared to be remote. The reasoning of the Board centred upon the fact that the child in some way has been unfilial in not observing proper respect to and care for the parent. It was the moral wrongdoing attributed to the child that fixed him or her as the true cause of the parent’s death. Similarly, where a husband’s death resulted from his wife’s failure to observe her fundamental obligation of chastity, her participation in acts of adultery or other “unchaste” behaviour was treated as the operative cause of death, and she was punished accordingly. Ultimately, as I have suggested, this approach stems from the moral Puritanism endorsed by Neo-Confucianism.