For a general overview of the Chinese Dynasties see:
The Application of Law and Structure in the Early Chinese Empires
Written codes first emerged in the Warring States period, when tax and service obligations were extended to lower levels of urban society and to peasants in the hinterland. Local officials responsible for enforcing these obligations required written laws and regulations stipulating procedures for keeping accounts, the penalties for crimes, and other aspects of administration. But far from being merely the tools of rational administration or of brutal realpolitik, these codes were embedded within the religious and ritual practices of the societies from which they emerged.
Law and Language
As James Boyd White has elaborated, law is not only a system of rules and sanctions but also a specialized form of language and rhetoric. Legal systems generate their own technical vocabulary and usages, the mastery of which is essential for participation in the legal process.24 Because local Qin and Han officials were also the chief judges in their districts, they were required to learn the distinct linguistic usages of the legal code. Similarly in the central court, those in charge of drafting legal regulations had to become specialists in legal language. However, the links between law and language in early imperial China were not simply a matter of mastering technical language but of controlling society through the regulation of language.
The most elaborate accounts of the relations among law, administration, and language were those under the rubric of "forms and names" (xing ming), as discussed in the Qin text Master Han Fei.25 The ruler is advised to hold himself quiet and allow the ministers to describe the administrative tasks they will accomplish (that is, to "name" themselves). These declarations should be written down to provide a "tally" or "contract" against which performance will be measured. Later, if the claim and performance match, then the official will be rewarded; if not, he will be punished.26 This prescription for the use of contracts and annual verifications in the Master Han Fei corresponds to descriptions of actual administrative practice.
In both theory and practice, the use of rules and punishments is based on the matching of language to reality. Successful law and administration stemmed from the correction of words so that they matched actions. A related idea had appeared earlier in the theory attributed to Confucius of rule through the "rectification of names." In reply to a question of what policy he would advocate for the state of Wei, Confucius stated that he would begin by rectifying names. If names were not correct, then words would not correspond to the world, affairs would not be regulated, rites and music would not flourish, punishments would be incorrect, and the people would not know how to behave. As this list is clearly sequential, the correct use of names is the foundation of the system of rites that in turn makes possible the adequacy of legal punishments and social order.27
This idea developed in several ways, but the one most relevant to a theory of law and language was elaborated in the Gongyang Commentary to the Spring and Autumn Annals. It read the Annals as a coded text in which the choice of title or the mention of a person's name indicated judgments equivalent to a ruler's rewards and punishments. In this interpretation, the text was the blueprint for an imaginary kingdom of Lu, which Confucius ruled as the "uncrowned king" through a legal system consisting entirely of the correct application of names.28 This mode of reading the text explicitly identified the power of rectified language with that of legal judgments. Law, in this tradition of commentary, was the quintessential expression of the social powers of language.
By the first century of Han rule, most scholars at the imperial court had accepted this idea of the Annals as the textual expression of law as perfected language. When asked why Confucius wrote the Spring and Autumn Annals, the historian Sima Qian quotes the classicist scholar of the Annals Dong Zhongshu (ca. 179-104 B.C.): "When the Way of Zhou declined and was abandoned, Confucius was chief magistrate in Lu ... Confucius knew that his words would not be employed and his way not put into practice. He judged the rights and wrongs of 242 years [the span covered in the Annals] to create a standard for the world. He criticized the Son of Heaven, demoted the feudal lords, and punished the high officials, all in order to carry out the tasks of the king." By the Eastern Han, a text attributed to the same Dong Zhong shu taught how to use the coded judgments of the Annals to make actual legal decisions. To the ex¬tent that this and similar texts were used, the identification of the Annals as the textual form of the purified language of law had become a political reality.29
Linking the Annals to Confucius' supposed role as a judge is significant. Law, along with religion and government, is one of the spheres in which language most frequently plays a performative role. The declarations of the judge, like those of the official or the priest, produce social realities. His pronouncement of guilt creates the fact of guilt in a way that the words of ordinary people cannot. When the Annals assigns guilt or innocence, or grants or withholds a certain status, it acts as judge. Parables in the fourth-century B.C. Transmissions of Master Zuo also treated historians as judges. This notion that historians pass judgment on the past is commonplace in the West, but the Gongyang Commentary and its Han followers treat the figure of speech as a literal reality. Confucius' supposed role as a judge and his imposition of punishments was central to the myth that had developed around him by the early Han.30
Law as purified language figured not only in philosophy, commentary, and history but also in the legal texts. The clearest examples of this appear in the Qin legal documents from Yunmeng. Many passages on these strips consist of definitions for technical legal terms. In discussions of the family as a legal entity they gloss terms dealing with the household: "'Household' [hu] means 'those who dwell together' [tong jul. They implicate dependents [Ii, servants and slaves], but dependents do not implicate the household. What is meant by 'people of the house' [shi ren]? What is meant by 'dwelling together' [tong ju]? 'Dwelling together' means only those on the household register. 'People of the house' means the entire household, all those who would be mutually implicated with a criminal." 31
From other Han sources we know that these terms were also part of conventional language. A decree of Emperor Hui (r. 195-188 B.C.) uses tong ju in semantic parallel with the graph jia "family." This shows that the terms were synonyms, both meaning "family" in a loose sense.32 Similarly, hu in Han texts has the sense of "household" or "family." What the legal documents do is impose a technical definition on words and phrases that possessed a range of meanings in conventional speech. In the example above, shared residence rather than blood ties defined the legal "family" for the Qin government, whatever might have been the conventional usages of the period. Similar passages from the strips give technical meanings to other graphs, or stipulate whether a given person or case fits into a particular legal category. These are practical manifestations of the philosophical vision of law as a form of rectified language that imposes social order.
Sima Qian's chapter on legal specialists at the imperial court points out the drawbacks of this vision. Speaking of "cruel officials" who use law to impose state authority on powerful families, he quotes philosophical passages on the limits of law and the counterproductive nature of relying on it. He invokes the by-then standard argument against the Qin empire that the severity of its laws and the ruthlessness with which they were imposed led to Qin's collapse.33 (His animus against rigorous use of the law was not unrelated to his being castrated for arguing that the letter of the law should not be imposed on a general who had been forced to surrender to the Xiongnu.)
Sima Qian then paints a largely negative portrait of officials who employed the full severity of the law. One of the recurring formulas by which he describes them is that they "applied the letter of the law and made no exceptions even for the emperor's in-laws." Others are "too severe in applying the letter of the law" or "manipulate the letter of the law to devise ways to convict people."34 In short, one of the bases of his critique was that law was a rigorous language which gave power to those who mastered its subtleties and permutations but did not always achieve justice as he or others perceived it. Like the texts cited above, Sima Qian's negative view nevertheless defines law as a distinct form of technically regulated and hence powerful language.
The central figure in Sima Qian's chapter is Zhang Tang. This man, who for a period dominated the court of Emperor Wu, was a specialist in the drafting of legal documents. Like others in the chapter, he is accused of excessive severity in imposing the letter of the law and of manipulating the technical language of legal documents to secure the results he desired. However, his biography also contains distinctive features. First, it includes a childhood narrative that identifies him as a prodigy in the use of legal language and procedure.
Once his father went out and left Tang, who was still a child, to mind the house. When he returned he found that a rat had stolen a piece of meat. He was enraged and beat Tang for his negligence. Tang dug up the rat's hole, caught the rat, and recovered the remains of the meat. He proceeded to indict the rat, beat it until it confessed, write out a record of its testimony, compare these with the evidence, and draw up a proposal for punishment. After this he took the rat and the meat out into the courtyard. There he held a trial, presented the charges, and executed the rat. When his father saw what he was doing and examined the documents, he found to his astonishment that the boy had carried out the entire procedure like a veteran prison official.35
Such accounts of childhood deeds that reveal character and future career featured in many early Chinese biographies, notably that of Confucius, who as a child played at laying out ritual vessels. The story of the boy Zhang Tang reads almost as a parody of such accounts, but it also treats law as a distinctive, life-defining activity marked by the preparation of documents and the formal correctness of language. Moreover, it presents the standard forms of investigation and interrogation as described in the Qin legal documents (and deals with the thieving of rats, which similarly figures in Qin laws).
The second notable feature of Zhang Tang's biography is that once he recognized the emperor's fondness for classical studies and literature, he began to support his decisions with quotations from the classics. He even recruited scholars who were thoroughly versed in the Canon of Documents and the Spring and Autumn Annals to act as his secretaries so that he could cite these works to greatest effect. Sima Qian notes that many of these students of the classics became his fiercest "claws and teeth" in the rigorous imposition of penalties.36 Here the theory of Confucius' writing as a mode of legal judgment and the theory of law as a technical language of government converge. The same pattern also figures in other biographies, such as that of the leading classicist scholar of Emperor Wu's court, Gongsun Hong. This demonstrates the close ties between the technical languages of law and of commentary on the classics that developed under the Han.
Another passage that illuminates, from a negative angle, the importance of legal language is the Eastern Han historian and poet Ban Gu's (32-92 A.D.) complaint about the length and complexity of the Han code as it evolved across the centuries. Having supposedly been introduced as a radically simplified version of the Qin code in 200 B.C., by the late first century A.D. it had grown into tens of thousands of articles totaling more than seven million characters. Ban Gu asserted: "[Legal] documents filled tables and cupboards, so even knowledgeable officials could not examine them all. Therefore local officials disagreed, and sometimes the same crime elicited completely different judgments." 37 As in many cultures where elaborate legal systems have evolved, Ban Gu insisted that the search for a rigorous language to cover all cases inevitably broke down due to the multiplication of possibilities.
Law and Punishments
Early imperial law, in the narrowest sense, was a set of rules for behavior and of punishments imposed for their violation. Both Chinese and Western scholars have long noted that early Chinese writers regarded punishment as the defining aspect of law. The monograph on law in Ban Gu's Book of the Han is entitled "The Monograph on Punishments" and devotes its first half to the history of the military as the highest form of punishment.
Early Chinese law was largely a system of criminal law, but legal disputes over property and inheritance can be found in this period. The Han will discovered in a tomb in modern Jiangsu shows official participation in the inheritance of property, a fact already suggested by "grave purchase agreements" buried in tombs. Although these were religious documents intended to secure the position of the deceased in the afterlife, we can now confirm that they were patterned on actual practice. The legal texts also deal with such issues as the disposal of the dowry of a married woman convicted of a crime, the rights of slaves to marry, and the relations of parents and children. Nevertheless, the transmitted discussions of law and the bulk of our evidence deal with criminal law and its punish merits.38
The early imperial state used three primary types of punishments: the death penalty, physical mutilation, and hard labor. Imprisonment was not a punishment in itself but rather a means of detaining suspects and witnesses during the legal process. However, imprisonment could last for a long period if the legal process dragged on, and at least one of the legal specialists described by Sima Qian contrived to hold suspects indefinitely in prison if he thought that the emperor did not desire their execution. Ban Gu also notes that if officials found a case doubtful and could not come to a decision, they would hold people in prison indefinitely.39 Without possessing any legal grounding, protracted imprisonment was a fact of life.
The highest sanction was capital punishment, of which the most common form was beheading. This was often followed by exposing the head, the corpse, or both in the market. Much rarer was the practice of cutting the condemned in half at the waist by using a large blade hinged on a block. For particularly heinous crimes, which included the execution of three or nine (magical numbers indicating totality) sets of relatives, the primary culprit was subject to all punishments: first he was tattooed, then his nose cut off, then both feet, and finally he was beaten to death, after which his head was hung in the market and the corpse chopped to pieces in the same place. The number of crimes punishable by execution in the Han was very high, though amnesties or commutation into military service at the frontier were also frequent outcomes of capital crimes.40
The second category of punishments, mutilation, was much debated and modified over the centuries of Han rule. Originally these punishments had consisted of tattooing the criminal's face, cutting off his nose, amputating one or both feet, and castrating him. In 167 B.C. all of these except castration were formally abolished and replaced by punishments that would not leave the convicted party marked and maimed for life. Tattooing was replaced by shaving the head, wearing an iron collar, and doing labor service. Cutting off the nose or the feet was replaced by a specified number of strokes on the back or buttocks with the bastinado (cane). However, the weight of the bastinado and number of blows usually led to death through abundant bleeding, so what had been proclaimed as an act of mercy in fact represented a significant increase in severity.
The number of strokes and weight of the bastinado were consequently reduced in 156 B.C. and again in 151. But as these punishments grew bearable, officials complained that they could not deter violations. In response, the number of crimes punished by death was increased, so that there were more than a thousand capital crimes in the later Han. Castration may have been abolished as an independent punishment either before or shortly after the abolition of the other mutilating punishments, but it continued to be used sporadically as an exceptional form of deathsentence commutation (which was normally military service at the frontier). It was again abolished in the second decade of the second century A.D. and does not appear to have been used after that date.41
The most common punishment in early imperial China was hard labor ranging from one to five years. Each duration was identified by a particular task, such as "wall building and keeping guard," "gathering firewood for sacrifice," or (for women) "pounding grain." These archaic categories did not describe the actual work performed, however, which included constructing roads and bridges, serving in government workshops, diking rivers, transporting grain, and producing iron. All periods of service were preceded by beating with the bastinado, and the more serious ones involved temporary mutilation. A man sentenced to a five-year term had his head shaved and wore an iron collar, while those sentenced to four years had only the beard and mustache shaved.42
Another type of punishment commonly used in the Qin was banishment. This punishment may have been frequently invoked because Qin had underpopulated and newly conquered regions that benefited from sending people to live there. A striking case appears in the "Models for Sealing [Houses] and Investigating": "A, a commoner of X village, said in his denunciation, 'I request to have the feet of my own son C, a commoner of the same village, fettered and to have him banished to a border prefecture in Shu [Sichuan], with the injunction that he must not be allowed to leave the place of banishment.'" The official approved the request and provided detailed instructions on how the son was to be escorted. Banishment became less common in the Han, except for those reprieved from death sentences and sent to the frontiers.43
In addition to amnesties, many punishments in Qin and Han China were eligible for redemption, a practice to which the Chinese applied the same term as a slave buying his or her freedom. The Qin legal documents frequently refer to the possibility of redemption from banishment, hard labor, mutilation, castration, and even the death penalty.44 In most cases redemption took the form of a surrender of titles or the payment of a fine. If the fine could not be paid, redemption might be imposed in the form of a period of labor service. Fines in the strict sense were levied primarily on officials for failures in the performance of their duties, with the fine being measured in terms of the purchase of suits of armor, as we have seen. In the Han, payments were conventionally made in gold.
It is difficult to generalize about punishments during this period. On the one hand, executions, mutilations, and even the treatment of hair and clothing that substituted for mutilations entailed a strong element of public display of the state's power over the bodies of its people, as well as the separation from the human community of those who committed major crimes. On the other hand, many punishments took the form of an exchange of services, money, or ranks that was carefully articulated in terms of differential relations. Using labor service as a form of punishment, as well as banishing convicts to frontiers or newly conquered regions, shows that punishments also provided human resources to the state. This is not unlike the use of galley slaves and chain gangs in early modern Europe or the United States. Although Han writers insisted on the disastrous consequences of Qin's excessively detailed regulations and cruel punishments, the records from their own period do not suggest that the Han made any significant improvement in these areas.
The essential elements of judicial procedure in early imperial China are fairly well documented. There was no sharp distinction between administrative and legal authority, and in general the chief administrator of a region was also the chief judge: the district magistrate was judge of his district, and the commander of his commandery. A general had the power to punish his troops, even to execute them. Stone inscriptions and textual references tell of specialist legal counselors assisting officials at the local level, but they provide no details.
At the central court, several officials handled legal cases. The superintendent of ceremonies, as chief administrator of the towns associated with the imperial tombs, was high judge for the area around the capital. The primary legal official, however, was the commandant of justice. He acted as judge in all cases pertaining to the imperial house, feudal kings or marquises, and high officials. He also resolved doubtful cases sent up by local officials. Finally, the emperor himself was highest judge, ultimate arbiter, and the source of all laws. While most emperors were happy to delegate to legal officials the actual work of rendering judgments, they could personally intervene or empower specific officials (such as the "cruel clerks" cited above) to act on their behalf.45
The central court also supervised the judicial activities of local officials
One method was granting convicted parties or their families the right to appeal judgments, although we have no records of the procedure. The court also established traveling regional inspectors in 106 B.C. Among the matters that these men examined was the fairness and impartiality of the judgments in each administration. They were particularly charged to search for collusion between local officials and the great families of their districts or commanderies. Most of the legal specialists were ordered to attack these families and curb their influence. The court's worry about such collaboration of its own agents with regional powers was not unfounded. In the cities, the equivalent cases of corruption and collusion usually involved gangsters. Han histories tell of protracted collaboration between local officials and gangsters and of the destruction of these illicit leagues by agents from the court.46
From scattered references, of which the most detailed example is Zhang Tang's prosecution of the rat, scholars have reconstructed a rough picture of the conduct of legal investigations and trials. More detailed information has been obtained from Qin legal documents, particularly the "Models on Sealing and Investigation." These consist of boilerplate forms showing local officials how to write up reports of investigations and trials, which were sent to the central government. While these models may be based on actual cases, they were used as a procedural guide for local officials.
Many of the models insist on a forensic examination of the scene of the crime and the victims, specifying the details to be studied. A model case on a death by hanging gives a detailed description of the house, the location of the body, the type and size of the rope, the disposition and state of the different body parts, the clothes worn by the victim, the size of the beam from which he was hanged, and even the condition of the soil that prevented footprints. This is followed by a general injunction on methods of investigation:
When investigating, it is essential carefully to examine and consider the physical traces. One should go alone to the place where the corpse is and consider the knot of the rope. If at the place of the knot there are traces of a noose, then observe whether the victim's tongue protrudes or not, how far the head and feet are distant from the place of the knot and the ground, and whether he had discharged feces and urine or not. Then untie the rope and observe whether mouth and nose emit a sigh or not. Then observe the condition of the blood congealing along the trace of the rope. Try to free the head from the knot in the rope. If you can free it then [text missing] his clothes and completely observe his body, from underneath the hair on his head down to the perineum. If the tongue does not protrude, if mouth and nose do not emit a sigh, if there is no congealed blood along the trace of the rope, if the knot in the rope is so tight that it cannot be slipped off [text missing] Since he has been dead for a long time, the mouth and nose may not produce a sigh. People who kill themselves must first have had reasons. Question the members of his household so that they will reply as to the reasons.47
Other accounts include the examination of a tunnel used to break into a house, the study of a fetus and the body of the mother when a fight has induced a miscarriage, and the consultation of a medical specialist to determine which diseases could produce a given physical state.
In addition to investigations of the material and bodily traces of a crime, many cases involved accusations by neighbors or family members. Suspects were arrested by the posthouse chief or constabulary, often retired military men who served the local government. The local administrator then interrogated witnesses and accused:
In all cases of interrogating one should first listen fully to their words and note these down, letting each of them set out his or her statement. Although the investigator knows that one is lying, there is no need to question pressingly at each point. When a statement has been completely taken down and does not cohere, then question pressingly on the required points. Having questioned pressingly, one listens to everything, notes down the explanatory statements, and then looks further at other unexplained points and questions pressingly on these. When one has questioned pressingly to the ultimate limits of the case, but the suspect has repeatedly lied, changed testimony, and not confessed, then bastinado those whom the statutes allow to be bastinadoed. When you bastinado, be sure to note down: "Report-Because X repeatedly changed testimony and provided no explanatory statement, X has been interrogated with the bastinado.48
Physical evidence and testimony converged in a grand confrontation of all concerned parties and the investigating official. Each party gave an account, and the investigating official combined these with the physical evidence to provide a coherent and satisfactory version of events. At points where accounts or physical traces conflicted, further questioning was applied. Changes in testimony or internal contradictions provided the leads for further interrogation. Ultimately, the confession of the accused was necessary, and obdurate refusal to confess in the face of the evidence would lead to beatings and perhaps other forms of torture. However, beating was only a last resort, and its use had to be noted in the report.
In this procedure the official remained silent but kept an exact account of the witnesses' words and then matched the accounts for internal consistency and their relation to material evidence. This corresponded to the ruler's use of "forms and names" to control his ministers. Here, the local official stood in the position of the ruler, and the witness in the position of the minister. The witness named himself and gave an account of his actions, which were transformed into writing, just as the aspirant officer did in the presence of the ruler. Meanwhile, the local official sat silently and measured everything against his knowledge of the facts. This model of administration through a hierarchical series of staged personal encounters moving from the local level to the central court was fundamental to early imperial government.
These texts also show the idea in Chinese legal theory and practice that the judge should be a detective. Through his ability to read the hidden meanings of physical traces and human speech, the ideal judge penetrated the veil of confusion and deceit to arrive at a truthful account of events and a just disposition of the concerned parties. This vision of the judge as a sagely reader of signs also figures in a case found in a Han tomb at Zhangjiashan, wherein an official assigned to discover who had contaminated a meal deduced the failings of an entire household.49 The judge as a detective figured prominently in later Chinese theater and fiction, where Judge Di (Dee) or Judge Bao became stock embodiments of the aspiration for truth and justice. As the new Qin and Han materials have revealed, this model of justice as the result of sagely ability to read the meaning of signs had already emerged at the beginning of the imperial period.
Law and Labor
Under the Qin, several categories of lawbreakers, along with other social delinquents such as merchants, were forcibly dispatched to the frontiers. Under the Han, as frontier garrisons were increasingly filled with reprieved convicts, physical transfer to the frontier for military service became conflated with the banishment of criminals. Military action at the frontiers thus became a means of exporting internal violence and pacifying the interior. The army served not only to suppress external enemies of the imperial order but also to expel disruptive members of society to regions that in the Han imagination lay beyond the reach of civilization.50
The evidence for this comes from many sources. In 109 B.C. Emperor Wu recruited men condemned to death for use in an expeditionary army, and further uses of convicts in expeditions are recorded in 105, 104, 100, and 97 B.C., as well as under later emperors. Emperor Wu's decree of 100 B.C. stated that convicts were to establish a base at Wuyuan. Han wooden strips also show that, from the time of Emperor Wu, convicts were stationed in frontier garrisons, and they increased as a percentage of the total forces throughout the Western Han.51
Sending Convicts to the war front
Following the abolition of universal military service by the Eastern Han, the use of convicts dramatically increased. This was not simply an increase in quantity but also a qualitative shift in terms of organization. In 32 A.D., the year after the abolition, the Eastern Han founder Guangwu established the office of the left inspecting commandant of the black turban. Several biographies show that this officer's staff administered punishments. The title also indicates a military role, and in 91 A.D. its holder was indeed sent out on an expedition. A petition referred to a man placed under the commandant as a "reprieved convict," the formula applied to convicts sent to the frontier for military service. Similarly, a memorial requesting the pardon of several former officials called them "reprieved convicts of the left [inspecting] commandant." These show that those placed under this office were convicts who had their death sentences commuted and were sent to the frontier as garrison troops. Thus in addition to those reprieved in the decrees, convicts were routinely sent to the frontiers through this office.52
In addition to this evidence of an office devoted to sending convicts to the frontier, documents indicate that garrisons were manned largely by convicts. In 45 A.D. Guangwu established three camps with associated fields at the frontier and ordered that these be filled with reprieved convicts. When Ban Chao returned to court in 102 A.D. after thirty-one years campaigning in Central Asia, a friend apologized that the veteran commander had not received a higher office. In reply, Ban Chao observed that he was not fit for an office at court: "The officers and soldiers beyond the frontiers are not filial sons and obedient grandsons. They have all been transported to fill the frontier camps because of their crimes.53
A memorial by Yang Zhong in 76 A.D. indicates the scale of this practice. He wrote that, since the beginning of the reign of Emperor Ming in 58 A.D., officials had repeatedly scoured the prisons and condemned innocent men in order to obtain recruits for the frontier; those sent out numbered in the tens of thousands. The "Fundamental Chronicles" and biographies indicate an average of one decree every five years up to 154 A.D. sending pardoned convicts to the frontier. Although no decrees are listed after 154, biographies cite individuals sent as convicts to the frontier after that date. 54
We cannot calculate the exact number of men transported, but one can get an idea of the order of magnitude from figures in the "Monograph on Punishments" in the Book of the Han: "Now in the commanderies and princely states, those executed annually are numbered in the tens of thousands. In the empire there are more than two thousand prisons, and the bodies of the unjustly slain pile one on the other." 55 The phrase "numbered in the tens of thousands" is a literary trope, although it echoes the statement of Yang Zhong. However, the figure of two thousand prisons looks more like a genuine number. If it is correct, and given the high number of crimes punishable by death under Han law, officials could easily have provided tens of thousands of convicts for frontier service. In 87 A.D. an official named Guo Geng sent up a memorial asking that those who committed a capital crime before an amnesty but not captured until afterward ought also to be sent to the frontier. Such men, he argued, numbered in the tens of thousands. He also gave the clearest explanation of the rationale of the system, arguing that it both "preserved life [through pardons] and benefited the frontiers."56 Ban Chao's remark that all the soldiers at the frontier were transported convicts might well have been no exaggeration.
Forced labor was the foundation of the Qin and Han states. Monumental public works such as palaces, temples, and imperial tombs-as well as more overtly utilitarian projects such as canals and roads-required all sorts of skills. Unskilled manual toil figured prominently in leveling ground, moving mountains, piling up earth, and so on. Some tasks were extremely dangerous and resulted in numerous fatalities, particularly in the iron casting foundries that were run by the state monopoly in certain periods. For such types of work, convict labor was essential to the state.57
The early empires employed four types of manual labor: peasant corvee, hired, convict, and slave. Each of these had different legal and social characteristics and was consequently suitable for different types of work. Adult males in free households owed one month's labor per year. Such work was devoted to diverse tasks, and the legal texts mention repairing walls of government buildings, mending roads and bridges, excavating ponds, and digging or dredging canals. Corvee labor was most frequently employed in local projects such as flood control, irrigation, or roads, but it was also used to build imperial tomb mounds, construct walls around the capital, and repair breaks in the dikes of the Yellow River. However, such work crews changed each month, and peasants were unavailable during times of crucial agricultural work. If peasants were forced to work away from their native area, the state provided food and tools. Consequently, the use of corvee labor could lead to costly delays in major projects.
Given these limitations, convict labor became crucial to the state
These men and women could work throughout the year until a project was finished. They could be transported across great distances to projects that might take weeks to reach, because once there, they could remain indefinitely. Most important, they could perform the most arduous and dangerous of jobs which might entail the deaths of thousands of laborers. With so many types of crime, and the entire empire to draw upon, the convict population provided a bottomless supply of expendable labor. Several Han tombs contain wall tiles depicting convicts in neck collars, wooden fetters, and iron manacles. One scene even depicts a group of convicts having their heads shaved.
The labor of convicts was as diverse as that of corvee workers, and in some cases the two groups worked together, although the convicts were distinguished by their shaved heads, red caps, and physical restraints. Many convicts were employed in building the tombs of emperors, which often required years of labor by tens of thousands of men. Inscriptions also show that the Qin employed convicts, some of them skilled artisans who had fallen afoul of the law, in factories that produced weapons. Under the Han, skilled labor was done mostly by wage-labor artisans, while convict labor was largely devoted to state iron and copper mines and metal casting facilities. Estimates based on scattered textual references and archaeological remains indicate that somewhere between ten thou¬sand and fifty thousand convicts were employed in the iron processing facilities of the state monopoly. Such work included the mining and the smelting of iron into ingots at the site to facilitate its being shipped across the empire. These activities were extremely dangerous, and deaths were frequent.
The lives of convicts were hard. They received an adequate diet of about 3400 calories per day for hard physical labor, but it consisted almost entirely of grain. They were beaten for the smallest infraction, although officials faced a stiff fine if convicts died within twenty days of a beating. Any further criminal violation by a convict warranted the death penalty. The physical condition of these men and women can be reconstructed in part from skeletons found in three large convict cemeteries dating from the Qin, the reign of the Han emperor ling (r. 156-141 B.C.), and the late Eastern Han (ca. 86-170 A.D.). All three cemeteries seem to have been used for decades, largely for the remains of those who died while building imperial palaces and tombs. In all three cases more than 90 percent were young men. Seven percent had died from the trauma of sudden blows, almost always to the skull. The jawbones and teeth from the Eastern Han cemetery show a high frequency of advanced gum disease and dental abscesses, probably due to malnutrition. Many of the skeletons still wore their iron collars and leg fetters. The Western Han collars weighed from two and a half to three and a half pounds and had a long spike that would have made it impossible for the convict to bend over very far without impaling himself. Presumably this was removed for certain tasks.
Most of the skeletons were accompanied by notations on brick or some other material with their name and sometimes fuller information on their place of origin, crime, rank, and day of death. These show that convicts were transported from all over the empire to work on these imperial projects. At one major imperial construction site, from one to six people died per day. This seems to have been considered an acceptable rate of mortality, because only once is there a record of an emperor complaining that too many men were dying to build his tomb.58
In addition to corvee workers and convicts, the state also drew on a pool of slave labor created through the enslavement of family members of convicted criminals. Archaeologically recovered Qin documents indicate that the state enslaved the women and children of anyone sentenced to three years of hard labor or worse, as well as those castrated for rape. The children of government slaves were slaves from birth. Finally, thousands of prisoners of war were enslaved to the state. However, slaves in this period were largely employed in domestic duties such as cleaning, cooking, mending, running errands, and caring for animals. References to slaves in agriculture or industry are quite rare. 59
While there is no evidence that slaves worked state-owned land, a Han tomb at Fenghuangshan indicates that about a dozen slaves, mostly female, had been used in private agriculture by the tomb's occupant, and a few texts mention the use of private slaves in largescale craft production. But not a single surviving imperially produced Oin or Han object mentions a slave as its manufacturer; and other than the First Emperor, there is no indication that any emperor employed slaves in building his tomb. This suggests that for wealthy private individuals, who did not have access to convict labor, employing slaves in certain kinds of work could be more efficient than hiring laborers. For the state, however, convicts provided a steady supply of expendable, cheap labor, whereas slaves were permanent property not to be lightly discarded.
This preference for the use of convicts in the greatest imperial construction projects and in the crucial state monopolies shows that while slaves were legally the lowest form of humanity, it was upon convicts' expendable backs that the material foundations of the early imperial state were built.
23. Loewe, Records of Han Administration.
24. White, Heracles' Bow, The Legal Imagination, Justice as Translation.
25. Yates, "New Light on Ancient Chinese Military Texts," pp. 220-222; Wang and Chang, The Philosophical Foundation of Han Fei's Political Theory, pp. 59-60; Makeham, Name and Actuality, pp. 69-75.
26. Lewis, Writing and Authority, p. 33.
27. Lun yu zheng yi, ch. 7, p. 129; ch. 15, p. 271; ch. 16, pp. 280-293; ch. 20, p. 364; Makeham, Name and Actuality, chs. 2-4.
28. Lewis, Writing and Authority, pp. 139-144.
29. Shi ji 130, p. 3297; Han shu 30, p. 1714; Shi ji 122, p. 3139; Queen, From Chronicle to Canon, chs. 6-7.
30. Zuo zhuan zhu, Xu an year 2, pp. 662-63; Xiang year 25, p. 1099; Lewis, Writing and Authority, pp. 13°-131,222-224.
31. Shuihudi Qin mu zhu jian, pp. 160, 238.
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