Female Criminality in Qing Chi

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UNIVERSITY OF CALIFORNIA
Los Angeles
Female Criminality in Qing China:
Adulteress-Murderesses in Legal and Popular Culture,
1644-1912
A dissertation submitted in partial satisfaction of the
requirements for the degree Doctor of Philosophy
in History
by
Sau-chu Alison Yeung
1997
UMI Number: 9726019
UMI Microform 9726019

Copyright 1997, by U M I Company. All rights reserved.
This microform edition is protected against unauthorized

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UMI
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©Copyright
1997
The dissertation of Sau-chu Alison Yeung is approved.
Miriam Silverberg
Francesca Bray
Kathryn Bernhardt, Committee Chair
University of California, Los Angeles

1997
ii
CONTENTS
1. Introduction 1
2. Adultery Cases: Codified Law and Legal Practice 15
3. Adulteress-Murderess: The Gap between the Statute and its Sub-statutes 50
4. The Adulterous Couple: From Bamboo Beating to Death by Justifiable Killing 122
5. Xiaobaicai and Yang Naiwu: The Meanings of Female Criminality 164
6. The New Criminal Code: Legal Reasoning and Moral Teachings 213
7. Conclusion 271
Glossary 283
Bibliography 295
iii
ACKNOWLEDGEMENTS
I want to express my deepest appreciation to my all-women
dissertation committee members--Professors Kathryn Bernhardt,
Francesca Bray, Kathryn Norberg, Miriam Silverberg and Mariko
Tamanoi. Their professional specializations and academic
achievements provide me with a wide range of intellectual
inspiration. Their scholarly commitments assure me that I
could also make humble contribution to academia. My special
thanks go to my adviser Professor Kathryn Bernhardt for giving
me the freedom to explore my research on women and criminal
law, and for giving me useful comments on my writings
throughout my entire graduate career at UCLA.
Financial support for the research year was provided by
the generous support of the Chiang Ching-kou Foundation/JCCS
Dissertation Fellowship in Chinese Studies that made my
research trips to Taiwan and Hong Kong possible. Research
materials were collected with indispensable assistance of the
staff of the Chinese collections at several major libraries
and archives--the East Asian Languages Library and the
reference library at UCLA, the Library of the Institute of
M o d e m History and the Fu Ssu-nien Library at Academia Sinica,
the Law Library and the Rare Books Library at the National
iv
University of Taiwan, the National Central Library in Taipei,
the branch office of the Genealogical Society of Utah in Hong
Kong, the Fung Ping-Shan Library at the University of Hong
Kong, the reference library at the Chinese University of Hong
Kong (CUHK) , the Number One Historical Archives in Beijing,
the National Library of China in Beijing, the libraries at
Peking University and at the China University of Political
Sciences and Law.
I am grateful for the hospitality that made my research
trips in Taipei and Beijing productive and enjoyable.
Professors Angela Leung and Chang Wei-jen at Academia Sinica,
Wei Jingyuan at the People's University of China, Jing
Junjian, Guo Songyi and Du Wanyan at the Chinese Academy of
Social Sciences, Yan Chongnian at the Beijing Academy of
Social Sciences, Li Guilian at Peking University, and Zheng
Qin at the China University of Political Science and Law.
I want to pay tribute to my all-male thesis advisers in
Hong Kong--Professors David Faure and Bernard Luk. My
heartfelt thanks go to my family, friends and colleagues in
Hong Kong for their support at various stages of my graduate
studies.
VITA
1959 B o m , Hong Kong
1982 B .A . , History
The Chinese University of Hong Kong
1982-1987 Highschool History Teacher

Pope Paul VI College, Hong Kong
1987 Diploma-in-Education
1989 M.A., Education

1991 M. A . , History
University of California, Los Angeles
1990-1993 Research Assistant, Teaching Assistant and

reader;
University of California, Los Angela
1993 American Council of Learned Societies

Chiang Ching-kou Foundation/
JCCS Dissertation Fellowship in Chinese Studies
1994 Lecturer
PUBLICATIONS
Journal Article. "Lore of Teacher Education, Voices of
History Education." (June 1996 issue of the Education
Journal) .
Paper Presentation. "The Narratives of Female Criminality: the

Xiaobaicai and Yang Naiwu Case in Late Qing China." Paper
presented at the 34th (1993) International Congress of Asian
and North African Studies, Hong Kong.
S. Watson and Patricia Buckley Ebrey ed. Berkeley, Los

Angeles, London: University of California Press, 1991.
(January 1992 issue of the Journal of -New_His.t_ory.)
vi
ABSTRACT OF THE DISSERTATION
Female Criminality in Qing China:
Adulteress-Murderesses in Legal and Popular Culture,
1644-1912
by
Doctor of Philosophy in History
University of California, Los Angeles, 1997
Professor Kathryn Bernhardt, Chair
This study was guided by three questions: What was the
official construction of female criminality in Qing China and
how did it relate to the formation of idealized womanhood?
How was adultery-murder treated in codified law and in actual
legal practice? How was popular culture different from legal
culture in terms of the construction of female criminality?
Apart from being viewed in Western scholarship as an
ideological statement and an instrument of control, the Qing
has also been as an embodiment of the state's repressive
vii
attitude was epitomized by the state-sponsored cult of widow
chastity which reached its highest point in the eighteenth and
nineteenth centuries, and was also buttressed by the rape laws
which put the rape victim's chastity on trial.
However, the research materials of this dissertation do
not demonstrate a close relationship between the repressive
Neo-Confucianism and legislative changes. Instead, they
document the state1s conscious effort to make adaptations to
social situations and practical problems. The criminal
stipulations and case records demonstrates the adaptability of
the state on illicit sex and adultery-related homicide cases.
The most pressing practical problem that faced the Qing state
was the need to maintain a balance between an insistence on
sexual and human morality on one hand and the principle of
justice on the other.
viu
CHAPTER ONE
INTRODUCTION
This study addresses three major questions. What was the
how did it relate to the formulation of idealized womanhood?
legal practice? How was Qing popular culture different from
legal culture in terms of the construction of female
criminality?
The Qing code has primarily been viewed and studied in
Western scholarship as an ideological statement and
instrument. Traditional Chinese law in general was understood
as a body of ideas that constituted the Confucian dimension of
the Chinese view (Scogin, 1994: 16-18). The Qing code, in
particular, was primarily described as an instrument for state
control and state enforcement of Confucian morality (Alford,
1984: 1185). However, my dissertation demonstrates how Qing
legal culture, including the code, was characterized by
pragmatic concerns which amends the commonly-held notion of a
monolithic state-sponsored morality.
Female criminality in Qing China will be examined in
relation to prevailing notions of femininity. As is well-
known, the official ideology of female virtues was constructed
around the state-sponsored cult of widow fidelity. In
general, the cult grew during and after the Song dynasty,
reaching its highest point in the eighteenth and nineteenth
centuries (Elvin, 1984: 112). It was particularly pronounced
during the last half of the nineteenth century when the state
increased the number of widows it canonized, partly in
response to the demographic changes wrought by the Taiping
Rebellion (1850-1864) and partly in response to what it
perceived as a deterioration of moral standards in local
communities (Mann, 1987: 51).
The Qing state's repressive attitude toward female
sexuality is also evident in its rape laws. On the one hand,
rape was a capital offence, the prescribed punishment for
which was strangulation. The judicial officials regarded the
imposition of the death penalty as a means of "acclaiming the
virtue of chastity and discouraging the debauchery of women"
(Ng, 1987: 64) . By the same token, however, women in the Qing
had to show signs of resistance throughout the crime in order
to prove that they were indeed rape victims. Qing rape laws
also put the victim's chastity on trial because the prescribed
punishment for the rapist varied in relation to the past
reputation of the woman (Ng, 1987: 66).
Women in Qing China were held responsible not only for
their own virtue, but also for the morality of the entire
family. Susan Mann has explored the idea of women as the
custodians of social morality. She argues that in the face of
the rapid social changes in eighteenth-century China, male
writers recreated woman's role as wife, family manager, and
guardian of the inner quarters. Women were given moral
superiority to serve as the guardians of virtue and stability,
much like their later Victorian sisters (Mann, 1991: 205,
222) .
To locate the meanings of adultery and particularly
adultery-murder within this context of the state promotion of
female chastity and the cultivation of feminine virtues, I
situate adulteress-murderesses in Qing legal culture. By
legal culture, I mean the practice of law in the context of
the state's conscious and collective effort to define,
describe and record female criminality. An examination of the
relevant sections and sub-statutes of the Qing Code highlights
our understanding of gender ideology in Qing China. An
analysis of actual case records maps out the ambiguities of
adultery-murder cases as well as the patterns and possible
shifts in the legal rhetoric of adultery-murder.
T H E SOUR C E S
This study draws on varied legal sources. Statutory
provisions and legislative history come from law books and
commentaries. In Duli cunyi (Doubtful Points Accumulated in
Reading the Sub-statutes), Xue Yunsheng (1820-1901) gives a
complete version as well as a critique of the last edition
(1871) of the Qing Code. This study uses the typeset edition
of Duli cunyi because its numbering and titles provides an
easy guide to locate various categories of statutes and their
sub-statutes.
The 1848 edition of Da Qing liili anyu (The Commentary on
the Qing Code) consists of the memorials that gave the reasons
for the statutory changes. Since these memorials were laid
out in chronological order, this arrangement best serves the
purpose of tracking down the legislative history of a
particular sub-statute.
Magistrate handbooks, which appeared in the form of
anecdotes, autobiographies and manuals, are indispensable to
this study because this body of advice literature provides
invaluable information on how the magistrate and his aides
understood and applied the code.
The gap between codified law and its practice is best
understood through a study of the various categories of legal
cases. The leading cases in Xing'an huilan (Conspectus of
Penal Cases) help us to understand the new crime circumstances
and the proliferation of sub-statutes. The reversed cases in
Bo'an xinbian (A Recent Collection of Reversed Cases)
illuminate how and why the Board of Punishments at the central
level reversed judicial decisions proposed by officials at
county and provincial levels. The commonplace case files
under the category of marriage and adultery (hunyin jianqing)
housed at the Number One Historical Archives in Beijing allow
us to trace the shift of language in crime reporting.
Late Qing Western-style Chinese newspapers are also
important to this study. The emerging role of public opinion
affected the development of national events, as seen in my
study of the miscarriage of injustice about Xiaobaicai and
Yang Naiwu and the heated debate concerning the late Qing law
reform. On top of late Qing newspapers, the study also draws
on a rich body of varied sources. The study of Xiaobaicai
case draws on the archival materials, diaries of the officials
involved and popular literature. The study of the late Qing
legal reform draws on the minutes of and the journalistic
reports on the meetings of the Political Consultative body
(Zizhengyuan) , the drafts of the New Criminal Code (Xin
Xinglu) and the related memorials from the governor-generals
and legal treatises from legal experts inside and outside
China.
T H E ISSUES
Despite the state promotion of female chastity, the
penalties for simple adultery were surprisingly mild 1
in the Qing--100 blows of heavy bamboo and one-month cangue.
In his book, Murder and Adultery in Late Imperial China, M.J.
Meijer does not account for this mild punishment but contends
that wide dissatisfaction toward it resulted in the social
custom of private justice. Through an examination of the
practical problems faced by judicial officials in the
adjudication of an adultery case, Chapter two suggests that
the mild punishment was a result of the tension between the
need of the officials to uphold sexual propriety, the need to
protect a woman's and her family's reputation and the need to
be cautious about false accusations.
While simple adultery was considered a relatively minor
offence, adultery-murder was a capital crime and adulteress-
murderesses constituted the largest group of murderesses.2
Chapter three examines the legal treatment of adulterous
murderesses. It first studies the Statute of Killing a Wife's
Paramour and circumstances leading to the creation of new-
statutes in the context of the Qing legal tradition and its
operation. It then compares case records at national and
provincial levels. Finally, it examines the ambiguities
surrounding the judicial interpretation of the mitigating
circumstances faced by the adulterous wife.
The chapter demonstrates that adultery as a woman's crime
against her husband is illuminated by fact that the degree of
the husband's complicity in the adulterous relationship was
given considerable weight in the state's discussion of
adultery-murder and punishment. Moreover, adultery as a
woman's crime against marital fidelity is illuminated by the
fact that the adulteress always was held accountable for a
greater share of responsibility than her paramour.
The chapter also shows that the heavily moralistic
overtones that prevailed in early Qing case files were
replaced by a standardized language and format in the Qianlong
reign (1736-1795) . But the chapter contends that this
emerging standardization of crime reporting could be seen as
a manifestation of the consolidated Qing rule rather than a
shift in the state's perception of adultery-murder.
Similarly, the promulgation of various sub-statutes regarding
the mitigating circumstances faced by the adulterous wife
could be seen as an increasing effort to realize the
overriding principle of differentiation that characterized the
Qing code rather than a deliberate re-definition of the crime
of adultery-murder.
Chapter four shifts the focus from adulteress-murderess
themselves to the question of legal immunity 3 enjoyed by the
husband when he had killed both his wife and her paramour
right at the spot of the adulterous act. When the husband
only killed the adulterer right on the spot but spared the
life of his adulterous wife, the Ming Code left the husband a
choice: he could divorce her by sending her back to her natal
family or by selling her into marriage to another man; or he
could keep her. However, as we shall see, this discretionary
power of the husband in the divorce and sale of the adulterous
wife in the Ming law was replaced with a mandatory sale in the
Qing law.
Meijer calls into the question the huge discrepancy
between the husband's right to a justifiable killing of the
adulterous couple prescribed by the Statute of Killing a
Wife1s Paramour and the mild punishment of the adulterous
couple prescribed by the Statute of Sexual Violations. As
mentioned earlier, Meijer contends that the mild punishment
for adultery resulted in wide dissatisfaction and people
tended to resort to private justice. In his view, the
husband's legal immunity was the state's reactive measure
against social evils of debauchery and the social custom of
private justice in matters of adultery (Meijer, 1991: 123)
Through an examination of the legislative history of the
Statute of Killing a Wife's Paramour, chapter four shows that
the significant changes included the introduction of a
mandatory family dissolution, the extension of the husband's
legal immunity to the parents and grandparents of the husband
and the wife, and shifting the husband's guilt to the
adulterer for killing only the adulterous wife. Unlike
Meijer, who argues that the legislative changes eventually
promoted the social custom of private justice, the chapter
suggests the primary concern of the Qing state was to reach a
balance between the paramount role of the family in moral
development and the practical concern to prevent false
accusation.
Chapter five looks more closely at the problem of false
accusation in adultery-murder through an indepth study of a
celebrated case of miscarriage of justice4. Xiaobaicai and her
paramour, Yang Naiwu, first were convicted of the premeditated
murder of Xiaobaicai's husband in 1874, and later were found
to have been falsely accused at a grand retrial in the capital
in 1877. Based on the archival materials, diaries of the
officials involved, and late Qing newspapers, the chapter
situates the official notion of female criminality in the
wider context of an increasing tension between the central
government and the regional powers. The central state
condemned official misconduct in the adjudication of homicide
cases more than it condemned Xiaobaicai's violation of the so-
called womanly way. Although in the end Xiaobaicai received
a milder punishment than Yang Naiwu, she had long been
10
criticized by the newspapers for having falsely accused Yang
Naiwu and her credibility was seriously undermined.
The chapter contrasts the legal record and the newspaper
accounts with the popular version of the case in ta n d
(rhythmic narration)5. Unlike the official version which put
the credibility of Xiaobaicai in the spotlight, the popular
version sympathized with Xiaobaicai as a victim of the sexual
advances of the magistrate's son and emphasized the ambiguous
love-hate relationship between Xiaobaicai and Yang Naiwu.
Chapter six examines the legal reasoning that led to the
successful abolition of the legal immunity of the husband and
the couple's parents and grandparents prescribed by the
Statute of Killing a Wife's Paramour. The chapter also deals
with the unprecedented discussion on the relationship between
morality and law generated by the proposal to abolish the
fornication section from the Statute of Sexual Violation in
the making of the New Criminal Code. This heated debate about
late Qing legal reform also suggests that Qing China did not
witness a major shift in female criminality. More
importantly, the discussion on female criminality, in the case
of early twentieth China, was a manifestation of the state
concern over national politics and national rejuvenation. The
11
changes to the Statute of Sexual Violations and the Statute of
Killing a Wife's Paramour were part of the state's effort to
abolish extraterriality and to facilitate the process of
shifting individual loyalties from the patriarch of the family
clan to the state.
Chapter seven reiterates the state's appropriation of
moral authority through its insistence on the centrality of
female chastity in family and social morality. However, the
chapter goes beyond ideological concerns and suggests that the
state never relinquished its efforts to make adaptations to
the practical problems arising from the adjudication of
adultery-related crimes.
12
Endnotes
1. In the case of China, both female and male adultery was a

crime against the husband of the adulteress. The adulterer
was punished for his crime against another man, not because he
had committed a crime of infidelity against his own wife.
2. The heightened concern for the crime of adultery and the

involvement of sexual triangles in murder cases also
constitutes a question in the last decades of nineteenth-
century Europe. Mary Hartman, in her Victorian Murderesses:
Women Accused.of Unspeakable Crime, suggests that the study of

murderesses helps to re-examine the notion of the "unsexed"
Victorian woman (Hartman, 1977: 72). She points to the
unequal preoccupation of the judicial authority with adultery
and murder. The prosecution was so absorbed with the possible
proof of adultery that they often failed to explore other
possible motives for murder (Hartman, 1977: 140).
3. For the case of nineteenth-century Europe, one pressing

question is the relationship between the possible severity of
inflicted punishment and legal immunity on one hand and the
views of idealized womanhood on the other. What intrigues me
most is the special favour enjoyed by woman criminals in
nineteenth-century Europe. The fact that European middle-
class women could easily get away with murder is illuminative.
According to Hartman, European society had incorporated the
deviant behaviour of women criminals into the widely acclaimed
notions of idealized woman of the time, and the new images of
blameless and pure middle-class women shaped the judicial and
public opinions of the accused murderesses (Hartman, 1977: 8,
261). Obviously enough, the European case of legal immunity
for murderesses is not applicable to the case of Qing China.
But the legal immunity for the justifiable killing of the
adulterous couple by the husband deserves a close examination
because it helps to elucidate the state definition of the
crime of adultery-
4. In The Trial of Madame Caillaux, Edward Berenson (1992)

shows how a historical event goes beyond localized issues and
individual situations and addresses and becomes part of a set
of intervowen issues about politics and culture.
13
5. It is commonly believed that tanci appeared as a chantable
genre in the sixteenth century. But some scholars date its
first occurrence back to the Yuan Dynasty (1279-1368) . Tanci
is also known as Nanci/Southern Lyrics. In general tanci has
different lengths and could be chanted by one to four persons
in their own dialects. While chanting or singing, the
performers usually sit and play string instruments (Zhongguo
xiqu cidian, 1981: 665)
14
CHAPTER TWO
A D U L T E R Y CASES: CODIFIED L AW A MD LEGAL PRACTICE
At the level of actual practice, codified law was subject
to the interpretation of the magistrate and his aides. This
chapter aims to examine the practical considerations in the
adjudication of an adultery case and, thus, to illustrate the
possible gaps between the codified law and magisterial
practice. Based on the Qing Code and an assortment of
magistrate handbooks, this chapter will be organized around
the development of an adultery case, from the summoning of the
accused to the final judgement.
Magistrate handbooks, written by reputed magistrates,
appeared in the form of anecdotes, autobiographies, manuals
and personal notes. They were recommended to the magistrate
and his aides as supplementary readings to the codified law.
In the following pages, for example, this chapter makes
important reference to handbooks by Wang Huizu (1731-1807)
from the Qianlong reign. Recommended as "the most recent,
handy and easy guide" for the officials at that time, his
books, entitled My Personal .Views.on Administration (Xuezhi
15
yishuo) and Medicine for Administration (Zuozhi yaoyan) , were
well-received by his contemporaries.1
This body of advice literature is indispensable for this
present study because it provides valuable information on how
the magistrate and his aides understood and applied the code.
It also demonstrates how the Qing state allowed a certain
degree of flexibility in an effort to maintain a balance
between high standards of sexual morality and practical
concerns in everyday magisterial administration.
TH E C O D E O N SEXUAL V I O L A T I O N S
According to the Statute on Sexual Violations (fanjian),
when a man was involved with a unmarried woman in consensual
illicit sex (hejian) , both the man and the woman would be
sentenced to 80 blows. The punishment would be increased to
90 blows if the woman was married. When a woman, regardless
of her marital status, was lured into consensual illicit sex
away from home (diaojian) , she and her paramour would be
sentenced to 100 blows.
The husband of the wronged woman might either keep or
sell his adulterous wife. It was, however, illegal for the
16
husband to sell his adulterous wife to her paramour. Should
that happen, the marriage would be declared void and the bride
price confiscated by the government; both the husband and the
adulterer would be sentenced to 80 blows; and the adulteress
sent back to her natal family.
A charge could not be brought when the adulterous couple
was caught outside the site of adultery. Moreover, it could
not be brought by an adulterous woman herself or a non-family
member (zhijian) ,2 When there was a go-between to make
necessary arrangements such as introduction and accommodation
for the adulterous couple, a one degree reduction in
punishment would be given to those who were indicted of
illicit sex. When a case involving illicit sex was settled
privately outside the courtroom, despite obvious evidence of
sexual violations, a two degree reduction in punishment would
be given to the offenders. When the adulteress was pregnant,
she alone would be indicted because pregnancy provided enough
evidence to prove the offence of adultery for the adulteress
but not the adulterer. The adulterer was obligated to be
responsible for raising a child born of illicit sex (DLCY,
366-00: 1079).
17
In theory, the statutes (lu) mapped out the overriding
principles while the sub-statutes (li) dealt with newly-
emergent specific situations. In practice, the judicial
officials privileged the sub-statutes even when there might be
some contradictions between the two (you li ze zhi qi lu) (Da
Qing huidian, 54: 1). The 1726 sub-statute on sexual
violations is a case in point. It stipulated that illicit sex
among the military and illicit sex among civilians (junmin
xiangj ian) would be punishable by 100 blows and one month in
the cangue.3 This sub-statute introduced a uniform punishment
for previously differentiated categories of illicit sex. The
imposition of a relatively heavier punishment indicated the
state's extra effort to condemn illicit sex.
Both the statute and its sub-statutes laid down the
punishments which fit the crime of sex violations. However,
there were a host of complex practical issues that the statute
on sexual violations did not address. It is necessary to look
into other parts of the code and other genres of legal
materials for illumination. There were, for example, several
restrictions about handling cases of simple adultery that are
worth-mentioning. First, the charge of simple adultery had to
be brought either by the husband or those who were entitled to
18
catch adulterers such as the parents-in-law. Simple adultery
was considered as a crime that had to be reported by close
relatives (qingao zui) . Second, even if those who were guilty
of sexual violations (like those who crossed the frontier
without authority) had given themselves up to the magistrate,
they were denied the mitigation of punishment or the legal
impunity normally granted by the section on voluntary
confession by wrongdoers (fanzui zishou) (DLCY, 025-00: 106-
107) .
S U M M O N I N G TH E A C C U S E D
The adjudication of adultery cases has to be examined in
light of the place of women in the practice of the law.
Authors of magistrate handbooks saw the need to show
compassion for women criminals and to emphasize the role of
women in the preservation of the family name.
One major theme of magistrate handbooks was avoidance of
litigation because lawsuits were a burden both to the parties
involved and to the magistrate. In A Book for the Magistrate
(Mulingshu) , Yu Qian (1795-1841) contends that the worst
19
situation for a family would be an involvement by women in
litigation related to family disputes. Litigation about
family matters would, in the first place, violate the
underlying principles of the family code and tear the family
apart. Instead of maintaining the family code of benevolence,
righteousness, propriety, wisdom and trust, litigation might
breed mean-mindedness, disorder, hatred, financial burden and
deceit. Since women were assigned an indispensable role in
the preservation of familial harmony, it was unthinkable to
have a woman present at the case in the courtroom. That would
certainly make the family the laughing stock of the
neighbourhood and among clansmen, and the family reputation
would be damaged. Since it would be a disgrace to the
ancestors and a burden to descendants, a woman was not
supposed to initiate litigation (Xu, 1839: 17: 48).
More importantly, a woman's sons and nephews might even
be penalized for not acting on behalf of the woman in legal
matters, as stipulated in the regulations on punishments
(chufen zeli) (DLCY, 420-01: 1281).
Not only did the Qing state encourage women to stay away
from lawsuits, it wanted women to stay away from the courtroom
as much as possible. The 1736 sub-statute on female
20
wrongdoers (funu fanzui) stipulated that only when women
wrongdoers were involved in serious matters such as sexual
violations, theft and homicide, or when they were the main
perpetrators in other types of offences, could they be
summoned to the court for interrogation. When women
wrongdoers were involved in minor cases, their close male
relatives such as brothers, sons and nephews could testify on
their behalf in court. It was illegal to summon female
wrongdoers when they were involved in cases of embezzlement,
theft and property disputes4 (DLCY, 420-02: 1281) .
Authors of magistrate handbooks also emphasized the
theme of summoning women in their discussion of female
criminals. Yuan Shouding saw a ban on the summoning of women
(wu ling funu shangtang) as a way to cultivate a sense of
shame and to maintain moral teachings. In his view, the
general rule should be to remove from the written summons the
names of women involved in the case under investigation.
Interrogation should only be conducted with those allowed to
appear in the courtroom. When a woman showed up at a yamen
without a summons, she should be denied access to the
courtroom and should not be interrogated. Only in the case of
a serious crime {da'an), should a woman be summoned, and even
21
then, she should be summoned just once and sent home right
after giving testimony. Those women summoned in a rush were
to stay away from the main courtroom and to wait at the outer
door (Xu, 1839: 17: 26).
A discreet attitude toward the summoning of women was so
important that it was regarded as one of the ten golden rules
for yamen legal secretaries by the unknown author of The Ten
shize) . The author also understood the demarcation between a
lawful and an unlawful summons of women criminals to be part
of the legal privilege for women and the state's paternalistic
compassion for their unworldly nature. Since women were
different from men and, thus, ignorant of worldly affairs
(nuliu wuzhi buyu shenjiu) , they were entitled to legal
privileges such as monetary redemption of punishments and
exemption from mandatory appearance in court. The summoning
of female wrongdoers could create difficult situations for
women who were not supposed to show themselves in public
(paotou lumian) . In some cases, the shameful courtroom
situation might even drive women to suicide. Magistrates
needed to be more compassionate towards women, treating them
as if they were their sisters or wives. Women were only to be
22
summoned when they were indispensable to the adjudication of
a case. They were to be released immediately if the offence
they committed was not too serious. They should not be
summoned at all for an ordinary case (such as embezzlement and
property disputes) (Wu, 1851: 5).
Although the Qing Code stipulated that it was lawful to
summon an adulterous woman to court, magistrate handbooks
still exhibited an extraordinary high level of caution. Yuan
Shouding, for instance, suggested that the hearing of adultery
cases could simply begin with those who had brought the charge
and even in the absence of the alleged adulteress. His
reasoning was that it helped to cultivate a sense of shame,
and maintained the moral teachings when women stayed away from
the court (Xu, 1839: 17: 26).
This self-imposed restraint regarding the summoning of
women accused of adultery was echoed by Wang Huizu in his
Medicine For Administra.tj.on (Zuozhi yaoyari) . Wang Huizu saw
the moral purpose behind such restraint and its significance
in the moral development of both a proper and a shrewish
woman. A proper woman might see the withholding of a summons
as a way to respect her reputation, thus she would take more
pride in honouring her chastity. A shrewish woman might take
23
the withholding of a summons as a way to invoke her sense of
shame, thus she would try harder to tame her hot temper.
Since the treatment of women criminals was part of the larger
concern for moral cultivation, Wang Huizu suggested that yamen
officials must justify the motive behind each legal summons.
In order to emphasize that it was indeed the moral duty
of yamen officials to exercise special care with women accused
of crimes, Wang Huizu gave a detailed account of a case which
he had heard from his mentor, Sun Jingqi. The case depicted
how retribution worked on a yamen legal secretary who summoned
a woman of exceptional beauty for his own voyeuristic purpose
rather than for a fair trial of the case. The protagonist was
a legal secretary sumamed Ye who suddenly became very ill.
The illness was prolonged but in a very strange manner.
Finally, Ye realized that the day of retribution had come for
his selfish act. He recalled the time when he had handled a
case in which a gentleman charged a rude young man with
seducing his wife. Although it was lawful to summon both the
man and the woman in a case of sexual violation, Ye first
decided to summon the rude young man alone. Ye later changed
his mind when he learned that the woman was of exceptional
beauty. The woman, however, hanged herself after the summons
24
arrived and the rude young man received capital punishment for
causing the death of another person.
Ye suddenly fell ill because the rude young man appealed
to the Emperor of the Underworld by saying that both his death
sentence and the woman's suicide had resulted from the
unnecessary summons. The City God was in charge of the re
trial and finally convicted Ye of causing the deaths of the
woman and the rude young man. Despite the fact that it was
lawful to summon the woman when the husband accused someone of
seducing his wife, the City God ruled that the wronged woman's
emotional state in this disputed case was indeed aggravated by
the summons issued to exploit her beauty rather than to do her
justice.
The story strongly suggests that a selfish motive behind
a lawful summons would bring about inescapable retribution.
In the case of an illegal summons, the punishment would be
unimaginable. It was therefore imperative, Wang concluded, to
exercise caution while summoning women criminals to the
courtroom (Wang, 1785/1937: 9-10)
25
T R E A T M E N T O F F E M A L E C R IMINALS
In general, women criminals were regarded as a privileged
group; however, women accused of illicit sex were denied
access to most of the legal privileges. As already mentioned,
the code made it illegal to summon women accused of less
serious cases such as embezzlement and property disputes, but
it allowed yamen officials to issue summons when female
wrongdoers were involved in sexual violations, just like those
women accused of grave crimes such as theft and homicide
cases. That is, cases of sexual violations were by no means
considered a minor offence, despite their relatively mild
prescribed punishment of bamboo beating.
In Thr.ee .Chapters on What was Learned from Reading the
Code (Dulu xinde sanjuan) , Liu Heng (1776-1841) drew from
several sections of the Qing Code which dealt with the
entitlements to and restrictions on legal privileges enjoyed
by female criminals. The sections include female wrongdoers
(funu fanzui) , kidnapping and sale of human beings (liie ren
liiemai ren) , redemption of punishments (shuxing) , offenses
committed by government artisans and musicians and by women
(gongyuehu ji furen fanzui) , distinguishing principals and
accessories in joint offenses (gong fanzui fen shoucong), and
26
supervision and arrest (dubu) . These sections stipulated the
privileges for female criminals.
With regards to statutory provisions on the confinement
of women criminals, women accused of sexual violations
received the same treatment as those who were guilty of
capital punishments. The statute on female wrongdoers [funu
fanzui) stipulated that only women accused of sexual
violations and capital crimes could be confined in detention
centres for women. Women accused of other offenses should be
put in the custody of their husbands while awaiting the
hearing. In the case of a husband's absence, the woman should
be placed in the custody of relatives or neighbours (DLCY,
420-00 : 1280) .
Women, together with the elderly over 70 sui, the young
below 15 and the physically or mentally infirmed were
considered as a privileged group and granted monetary
redemption for their offenses in many cases. For women, a
sub- statute (copied from the Ming Code) on the five
punishments stipulated that those who were convicted of sexual
violations, theft and disobedience to senior family members
had to be subjected to the execution of the punishment
prescribed by the law, while other women criminals who were
27
sentenced to blows, penal servitude, exile and military
service were entitled to monetary redemption (DLCY, 001-15:
14) .5 That is, women convicted of sexual violations were
denied access to the legal privilege of monetary redemption
that normally came with the punishment of bamboo beating.
Another sub-statute (1738) on the five punishments
specifically dealt with women criminals convicted of sexual
violations. It specified that these women had to receive the
prescribed punishment of bamboo beating and they were only
allowed to redeem themselves from the cangue (DLCY, 001-14:
14) .6 In order to further denounce the depravity of illicit
sex, actions designed to add humiliation were put in place
during the course of the bamboo beating of the adulterous
woman. The statute on offenses committed by government
artisans and musicians and by women stipulated that a
convicted adulteress would be stripped of her blouse and
allowed to keep only her pants, while other convicted female
criminals did not need to take off any of their clothing when
they received the blows prescribed for other kinds of
wrongdoing (DLCY, 020-00: 75).
Thus the Code treated the adulterous women as a separate
category of female criminals who had to bear the guilt and
28
humiliation they deserved. This departed from the general
impression among authors of magistrate handbooks that the
common practice was to assign the guilt to the husband or the
son when a woman committed an offence (funu you fan, zui zuo
funan; furen fanzui, ze zuo nan) (Wang, 1785/1937: 9; Wu,
1851: 5) . It was time that several sections of the Qing Code-
--the statute on blaspheming the spirits (xiedu shenming) , the
statute on distinguishing principals and accessories in joint
offenses, the regulations on surveillance and arrests (dubu
zeli) and the 1859 sub-statute on the kidnapping and sale of
human beings specified the varied situations in which the
guilt of the woman would be transferred to her husband or male
relatives. However, statutory provisions for an automatic
transfer of guilt from the wife to the husband were absent in
the Qing Code. An examination of these sections of the Qing
Code would show that the guilt of the woman would indeed shift
to the husband or the son when the male household head was
held responsible for the acts of the family members.
First, the statute on blaspheming the spirits stipulated
that the husband or the son would be sentenced to 40 blows for
having allowed the wife or the mother to go to Buddhist or
Taoist temples to burn incense. The woman would be punished
29
only when she had neither a husband nor a son (DLCY, 161-00:
420) .
Second, the statute on distinguishing principals and
accessories in joint offenses stipulated that only the most
superior and eldest family member would be punished if members
of one household committed a crime together (DLCY, 030-00:
119) . When the most superior and eldest member happened to be
a woman, as well as the principal perpetrator of the crime,
the guilt would still fall on the senior man alone. Yet, he
would not be assigned all the guilt when the offence had
inflicted injury or trespass on other persons (qinsun yuren)
(DLCY, 030-00: 119).
Third, the 1859 sub-statute on the kidnapping and sale of
human beings stipulated that when a woman and her husband were
convicted of this crime, her husband alone should be punished
(furen youfan, zui zuo funan) . Only if she did not have a
husband or her husband was totally ignorant of the crime would
the female criminal be sentenced to the punishment fit for the
crime, but even then she would be allowed to file for monetary
redemption (DLCY, 275-02: 727-728).7
In his commentary to the Qing Code, Xue Yunsheng (182 0-
1901) highlighted the inconsistency between the statute on
30
distinguishing principals and accessories in joint offences
and the 1859 sub-statute on the kidnapping and sale of human
beings with regard to the clause "furen youfan, zui zuo
funan". Xue commented that the clause should have been
informed by the principle laid down in the statute on
distinguishing principals and accessories in joint offences
but the principle did not hold in an offence of kidnapping and
sale of human beings. Clearly, the statute on distinguishing
principals and accessories in joint offenses endorsed the
household head's authority and sole legal responsibility in
offenses jointly committed by members of the same household.
This meant that the household head, who was usually a man,
should be responsible for the offenses committed by the wife.
However, this principle was not applicable when the offence
inflicted injury or trespass on other persons. Xue argued
that since an offence of kidnapping and sale of human beings
would do harm to other persons, the household head should not
be responsible for the offence committed by the woman. In
addition, the clause of "furen youfan, zui zuo funan" was
found in the 1859 sub-statute on kidnapping and sale of human
beings but nowhere else. In order to avoid confusion, Xue
suggested removing the clause altogether (DLCY, 275-02: 729).
31
These statutory provisions show that a male household
head should only be responsible for the offenses committed by
his wife or his mother under specific situations, although it
seems that the idea of transferring the guilt of a woman
criminal to her husband or her son in other situations was
accepted by authors of magistrate handbooks. This perception
about women criminals in relation to their male relatives
suggested that women were not legally independent and that
they were not to be held fully responsible for their offenses.
In this fashion, legal privileges for women criminals were
made possible.
Since illicit sex was a crime committed by a woman
against her husband and his family, she had to take up the
guilt she deserved. Women accused of illicit sex would only
be allowed to redeem themselves from the extra punishment of
cangue-wearing. Not only were they denied access to the
monetary redemption available to other female criminals
sentenced to bamboo beating, they had to face the extra
humiliation of baring their breasts in the course of that
beating. The offence of illicit sex was thus a grave one
despite its prescribed mild punishment.
32
THE HEARING
All in all, adjudication of adultery cases was by no
means an easy job for the magistrate. Codified law mapped out
the regulations which governed the treatment of women
criminals who committed the offence of illicit sex. However,
it did not deal with the complexities of the adjudication of
the cases. This gap was filled by magistrate handbooks.
Adultery cases were difficult to handle because of the
tensions between the need of the officials to uphold sexual
propriety, the need to take care not to besmirch a woman and
her family's reputation, and the problem of false accusation.
The magistrate as moral exemplar and his active role in
the moral development of the people were a central theme in
the magistrate handbooks. The unknown author of the Hanging
Mirror for the Magistrate (Lizhi xuanjing) contended that the
magistrate should uphold moral teachings, correct bad social
customs and practice the moral teachings he proclaimed. The
sexual morality of the people, in particular, should be the
responsibility of the magistrate rather than left to the
workings of social custom. The magistrate should admonish the
people on the meanings of moral principles like propriety,
33
decency, and a sense of shame in the relationship between the
sexes.
In order to curb sexual promiscuity and obscenity, the
author continued, it was imperative to take prohibitive
measures. For example, a proper woman should stay away from
bad social influences. Women of the less respectable
professions (sangu liupo) 8 such as Buddhist nuns (nigu) ,
Daoist nuns (daogu) , fortune teller (gruagu) , midwife (renpo) ,
trader (yapo) and matchmaker (meipo) should not be received as
guests. Young women should not go to public places like
temples and the wilderness. Prostitutes should be socially
outcast and castigated.
He further lamented what he saw as the indifferent
attitude of the magistrates toward the problem of illicit sex.
Although the predominant role of the magistrate was to protect
the people from criminals, he should not downplay his role in
the eradication of evil social customs. Most importantly, a
magistrate should not tolerate sexual promiscuity, excusing it
as just part of social custom. Instead, he should make the
eradication of such evil his top priority immediately upon
assuming his post. He should put up a public notice to
condemn crimes of sexual violations and to give heightened
34
attention to a strict adherence to sexual morality. He should
know that penal punishment would take over when moral
education failed in its purpose. It would then be too late
for the people to know the concerns of the magistrate and make
changes accordingly. This should be the way in which moral
teachings were put into practice (Wu, 1976: 255) .
In Medicine for Administration and its sequel My Personal
Views on Administration, Wang Huizu discussed the complexities
involved in the magistrate's effort to change the social
climate under his jurisdiction in accordance with higher moral
principles. Wang emphasized the need of the magistrate to
appreciate local social conditions in the actual practice of
the law. He also saw some undesirable outcomes that emerged
from deliberate efforts at social transformation. Since there
were immense regional variations in social customs, Wang
contended, it was imperative to appreciate social customs
through a development of profound knowledge of the region
under one's jurisdiction, and to strike a reasonable balance
between these local customs and codified law. This balance
was essential to an attainment of excellence in
administration; it was only made possible through a
collaboration between the high level officials and grassroots
35
folk rather than an inflexible insistence on policy. As
suggested by an old saying that there must be numerous reasons
why a particular social custom outlived the others, there was
every reason to study carefully the local culture within one's
jurisdiction (Wang, 1785/1937: 15).
Despite the need to uphold public mores, the magistrate,
Wang argued, should be aware that his efforts might have
unintended results. Scoundrels might observe the preferences
of the magistrate and make special effort to adapt. For
example, when the magistrate banned gambling, the scoundrels
would comply with the confiscation of their gambling dens.
When the magistrate fought against corruption, the scoundrels
would report corruption cases. When the magistrate put out an
irrigation plan to honour the boundaries of land holdings, the
scoundrels would bring forward cases of trespass. When the
magistrate was very strict with affray cases, the scoundrels
would make up stories of assault. When the magistrate
discouraged the practice of keeping bondservants, the
scoundrels would put forward cases of illegal confinement of
free persons. When the magistrate sympathized with
impoverished peasants, the scoundrels would initiate cases of
property disputes. In order to avoid these unintended
36
outcomes, the magistrate should be more flexible in his
attempts to eradicate social evils.
Problems might come up despite the magistrate's best
intentions. In many cases, the problems would outnumber his
achievements. Private yamen secretaries had to watch out for
the good and the bad so that cases of false accusation would
be thoroughly investigated. The magistrate should neither
abandon policies of good intentions due to the fear of
unintended problems nor attempt to make too great an impact on
the local community. Ordinary people could have a quiet life
if the scoundrels would hide themselves and the law could be
implemented (Wang, 1786/1937: 3).
Given these larger concerns for the moral cultivation of
the people, the magistrate should be particularly cautious
with courtroom etiquette. In a treatise on illicit sex in A
New Collection of the Methods to Rule (Zizhi xinshu), Li Yu
(1611-1679) contended that the magistrate should adopt a
dignified manner (chizhong) during both the adjudication of
adultery cases and the preparation of case files because his
role as moral exemplar was part of the moral development of
the uneducated populace.
37
Decent language was also central to courtroom etiquette.
It was also a social indicator of moral development. When the
magistrate adopted indecent language (xieman) while hearing
cases of sexual offence, onlookers would think that the
magistrate himself supported obscene language and graphic
descriptions of sex. This public display of imprudent
language set a bad example for the audience to emulate. Those
who had committed adultery would find no reason to repent
while those who had not might contrive an adultery case just
in order to entertain and please the magistrate ! (Li,
1664/1991: 16: 19-22)
Other authors of magistrate handbooks shared the view
that the hearing of adultery cases should be conducted in a
serious manner. In A Book on Blessings and Good Deeds (Fuhui
quanshu), Huang Liuhong called for a solemn countenance
(surong) and prudent language (zhuangci) throughout the
hearing. The magistrate should neither speak softly to the
accused woman when she entered the courtroom, nor should he
stare at her when she left the courtroom. Otherwise,
onlookers might turn these anecdotal accounts into jokes and
folk lyrics (Huang, 1694: 19: 26). In A Book of Humble
Opinions, on PenaJ— Punishments (Mingxing guanjianlu) , Mu Han
38
emphasized that a laughing face during the adjudication of
adultery cases might discredit the moral force of the
magistrate (Mu, 1848/1989: 52: 627).
Respectable language should also be required for the
preparation of case documents. Li Yu lamented obscene
language in a case file because it failed to report the crimes
of the uneducated populace, becoming instead the confessions
of lustful officials (Li, 1664/1991: 16: 19-22). Gang Yi
suggested that yamen officials should neither use colloquial
expressions absent from the dictionaries nor employ excessive
literary embellishment when they recorded the testimony of the
people involved in a case. The written testimony should be
close to spoken language but it should be distinguished from
the language in popular literature. It should not contain
derogatory remarks about someone's reputation or explicit
references to sexual matters. Instead, the writer should use
the phrase "hunma chengjian" literally meaning "pouring out of
a verbal attack and committing adultery" as a shorthand
reference to derogatory remarks and adultery (Gang, 1889: 1:
13-15) .
Another major problem faced by the magistrate was the
need to be careful not to defame a woman and her family's
39
reputation. Since a woman's name was as important as a man's
success in the civil service examination, maintaining the
reputation of the woman was regarded as one of the Ten Golden
Rules for Yamen Legal Secretaries. The author of this
magistrate handbook argued that adultery cases concerned
female chastity and gentry reputation and, thus, presented a
double-edged problem for the magistrate and his private
secretaries. On one hand, adultery cases were neither to be
tolerated nor mitigated. On the other hand, the magistrate
should try his best to uphold the reputation of the parties
involved because shame could drive people to suicide when
serious damage had been done to their names. Once an adultery
case was brought to the courtroom, the alleged adulterous
couple had already suffered from moral blemish. The
magistrate should therefore preserve the scholarly career of
the man and the reputation of the woman as much as possible
(Wu, 1851: 5).
The impact of humiliation was so great that authors of
magistrate handbooks emphasized the importance of protecting
the emotional states of the parties involved. Mu Han
suggested that the magistrate should command patience in
talking to the outraged husband, particularly when the latter
40
only suspected the adulterous relationship, but failed to give
proof to support the charge against his wife. Even when the
husband was able to show evidence of the adulterous
relationship, it was not advisable to go directly into the
details of the adulterous affair because there was also a
possibility that the husband might be so overwhelmed with
shame that he would even kill himself. As for the adulterous
wife, the magistrate might either say a few words to comfort
her or admonish her in a serious manner, depending on whether
the charge was supported by sufficient evidence. As for the
adulterer, the magistrate might first give him a heavy bamboo
beating and, then, send him back home after securing from him
a promise not to see the adulterous woman again (Mu,
1848/1989: 52: 627).
The problem of proving adultery was also included in the
section on discerning and suspecting adultery (bianyi jian) ,
the author warned the magistrate not to mistake a
gynaecological health problem for a miscarriage because it
would do serious damage to the reputation of an unmarried
woman or widow. The author differentiated a placenta (taiyun)
from a blood lump associated with a tumor. A tumor (zhengjia)
41
might be formed in the abdomen of widows or unmarried women
due to an imbalance in blood circulation (yigi) . Since a yin-
yang harmony (yinyang qihe) and a balance in blood circulation
might be restored after marriage, the pre-existing tumor would
be discharged as a lump of blood as if it were a miscarriage.
However, this kind of blood lump did not carry a placenta and
membrane. Therefore, it should neither be mistaken for a
placenta nor used as evidence for a hasty indictment of
adultery against a remarried widow or a newly-married woman
(Xu, 1976: 262).
Another problem with the adjudication of adultery cases
was the prevalence of falsified rape cases. Indeed, Huang
Liuhong, in a section on hearing cases on sexual violations
quanshu) , argued that almost all adultery cases were brought
forward as rape charges. That posed a difficult task for the
magistrate, given the fact that there was a marked difference
between the mild punishment for simple adultery and the death
penalty for rape. Huang therefore suggested that the
magistrate must pay attention to every detail during the
trial. For example, when consensual sex was falsified as
forcible, the countenance of the married couple might be
42
unnatural and the testimony fragmented. The husband might not
show justifiable fury and would tend to be withdrawn. The
wife would not be shame-ridden and would tend to give
testimony in broken sentences. She might even put her head
down and refrain from confronting her accused rapist directly.
Her demeanour in the courtroom suggested that she did not
resist the sexual assault and thus she was not entitled to
bring a rape charge against the alleged rapist (Huang, 1694:
19: 23) .
With regards to the difficulties of telling whether a
rape charge was genuine, Li Yu was more pessimistic than
Huang. In Li Yu's view, there were numerous scenarios of
false accusation. For example, a rape charge could be
falsified by the shame-ridden adulteress when her adulterous
relationship was discovered by family members, or when she
took up with another man and she wanted to get rid of her
former paramour. The husband could also forge a rape charge
when he wanted to get rid of the adulterer, who could no
longer afford to buy the husband’s tolerance of the adulterous
relationship, or when he could not find other pretexts to seek
revenge.
43
It was true that it was always possible to manufacture
physical evidence and extort testimony from the neighbours, so
Li Yu warned against the likelihood of perjury. For example,
what the neighbours had overheard might not be exactly what
had happened. The clothes found at the crime scene could have
been stolen, and placed there for the purposes of false
accusation.
Li Yu contended that falsified rape charges put the
judicial officials into a no-win situation. The judicial
officials were deceived into sentencing the adulterer to a
capital punishment, cases of false accusation would increase
and justice could not be upheld. But, on one hand, if they
punished the complainant for false accusation, people would be
reluctant to report true instances of adultery and moral
teachings would decline and bad social customs would have
their way (Li, 1664/1991, 16: 19-22).
FINAL JUDGEMENT
The previous section demonstrates that adultery cases
posed an almost unsurmountable challenge for the magistrate in
that he had to strike a balance between honouring the
44
reputation of the parties concerned through a discreet manner
on one hand, and upholding the high standard of sexual
morality through vehement condemnation of deplorable behaviour
on the other. This section will deal with how authors of
magistrate handbooks viewed the implications of the so-called
mild punishment for the offence of consensual illicit sex.
Unlike Huang Liuhong, who thought that the prescribed
punishment stipulated by the code fit the crime, other authors
advocated a more severe punishment both in terms of admonition
and actual sentence.
When the magistrate amassed proof of adultery or saw an
indication of a plan to assault the husband by the adulterous
couple, Mu Han contended that the magistrate should adopt a
s t e m stance because leniency might breed future problems. He
should not show clemency to the adulterous couple and sentence
the adulterous couple to the prescribed punishment. Even
though it was true that the code gave the husband full
discretion to keep or divorce the adulterous wife and in most
cases the husband usually wanted to keep his wife, Mu Han
argued that the magistrate should endorse the husband's
decision only after some kind of consultation and
deliberation. It was because the husband might sell or take
45
revenge upon the wife after he took her back. Similarly, when
the husband was reluctant to take his adulterous wife back,
the magistrate should not make special effort to keep the
family together. It was because it would be difficult for a
lustful woman to repent and lead a quiet life with the husband
thereafter. More importantly, tragedy such as assault and
homicide might happen in the end. The magistrate should be
blamed for closing the case simply by giving the prescribed
punishment to the adulterous couple and asking the husband to
keep his wife (Mu, 1848/1989, 52: 627).
It was obvious that an imposition of punishment could not
solve the complications of the love triangle in an adulterous
relationship. Li Yu argued that unresolved enmity might
eventually lead to homicide and suicide cases. An adultery
charge had turned the husband and the adulterer into
irreconcilable enemies, while the adulterous wife was caught
in the middle. A fatal fight between the husband and the
adulterer might break out anytime after the case was settled
in the court and the shame-ridden adulteress might take her
own life. These adultery-related homicide and suicides, in Li
Yu's view, were the result of the mild punishment of bamboo
46
beating. It was therefore imperative to prescribe a more
severe punishment for the crime of consensual illicit sex.
Li Yu also advocated a more severe punishment--the
repudiation of the wife or a sentence close to death penalty
(jiusi yisheng zhi fa) as a deterrent against sexual
promiscuity. Given the fact that severe punishments were
generally prescribed by other sections of the legal code and
debauchery was regarded as the most hated evil of all, Li Yu
lamented the relatively mild prescribed punishment of bamboo
blows for the offence of consensual illicit sex. This mild
punishment itself, in Li Yu's view, could never serve the
purpose of deterring people from illicit sex. It might even
be regarded as advantageous to the adulterous couple. Since
they knew very well that the husband could bring forward an
adultery charge only when he caught the adulterous couple
right at the spot of adultery, they were ready to take the
chance. They could continue their relationships when the
husband was away or as long as they could successfully hide
their meeting place.
Li Yu contended that the major problem with the adultery
law was that it was not followed by magistrates. He was
disappointed with the fact that magistrates acted as if they
47
were a dumb father-in-law. Given the inability to deal with
the complexities involved, the magistrate tended to adopt an
evasive attitude towards adultery cases by suggesting other
possible causes for the dispute. He might either blame the
defendant for causing the trouble or accuse the complainant
for making a big issue out of it. The prevalence of poor
adjudication of and ambiguous verdicts in adultery cases was
by no means beneficial to the ordinary people. They would not
be deterred from debauchery in face of either a lack of moral
leadership from the lax magistrate or a toleration of illicit
sex from an excessively compassionate magistrate. As a
result, a truly proper woman could not defend her chastity in
the courtroom, nor could a husband be proud of his faithful
wife. While propriety in the relationship between the sexes
was central to human morality, a toleration of illicit sex by
the magistrate meant a violation of human morality. Therefore,
human beings would be likened to animals. Hence, it was
necessary to impose severe punishments for illicit sex 9 (Li,
1664/1991: 16: 19-22).
While Li Yu emphasized the deterrent function of penal
punishment, Huang Liuhong saw the pragmatic concerns of the
law-makers. They were faced with the need to strike a balance
48
between social morality and human sentiments. It was a fact
that human beings were b o m with desires for the opposite sex
(nannii zhi yu) . These sexual desires were contained only
when people were willing to live up to the highly-acclaimed
principle of propriety. However, when one longer wanted
either to stick to one's principles or to be bound by social
mores, there were numerous occasions whereby boundaries in
decency could be crossed. For instance, affection and love
between a man and a woman could be exchanged on social
occasions where they mingled with a stream of guests.
Clandestine dating would be arranged at places where friends
met and people got together. A secluded house or a quiet
verandah would become the lovers' rendezvous point. Huang
contended that the most undesirable consequence of a heavy
punishment for consensual illicit sex was the open disregard
for human sentiments. Lovers would be devastated by the
indictment and the magistrate would go into a painstaking
investigative process of finding proof for the charges. The
investigation might reach the point where the lovers'
rendezvous place would be searched so much so that even the
plain cloth hanging in the secluded house and green duckweed
drifting on the water near the verandah would be rendered as
49
proof of the crime. This kind of investigation was indeed
unnecessary and that itself practically constituted a form of
punishment and, thus, Huang Liuhong did not think that bamboo
beating was too mild for the offence of consensual illicit
sex.
Huang concurred with law-makers in an appreciation of
human sentiments in the making of the law against sexual
violations, but he also believed that the wide dissatisfaction
with the so-called mild punishment rested on legal philosophy.
The Chinese legal tradition was characterized by a belief that
laws were made to punish the petty person and rites were made
to nurture the gentleman. Those who were convicted of illicit
sex were considered as petty persons because they had both
violated the rites and broken the laws. Worse still, they
might be relegated to an animal state because they had
indulged in debauchery and shameless behaviour. In light of
this, it was true that a bamboo beating would not be
sufficient. Huang Liuhong, however, emphasized that bamboo
beating was never meant to be a uniform punishment for
consensual illicit sex. It was therefore too simplistic to
say that the punishments were too mild. Bamboo beating should
be examined in light of a range of differentiated punishments
50
for other kinds of sexual violations. For example, when a
slave and a hired servant were discovered to have had illicit
sex, they would be sentenced to the capital punishments of
decapitation and strangulation, respectively. On the
contrary, although the prescribed punishment for a rape charge
was strangulation, those who attempted but failed to rape a
woman would be sentenced to a lesser punishment of exile and
bamboo blows. In other words, though it seemed that the
prescribed punishment for consensual illicit sex was milder
than that for forcible sex, there were cases in which the
final punishment for consensual illicit sex was the same as
that for forcible sex. Similarly, though the prescribed
punishment for forcible sex was generally heavier than that
for consensual illicit sex, there were cases in which
consensual illicit sex was punished as if it was forcible sex
(Huang, 1694: 19: 21-22). The punishment for illicit sex,
Huang concluded, should be understood in relation to the legal
provision for rape case and, more importantly, in an effort to
maintain a balance between human sentiments and penal
punishment.
51
The magistrate thus faced a number of problems during the
adjudication of adultery cases. These problems came from the
gap between the so-called depraved nature of adultery and the
comparatively mild punishment prescribed by the law, and the
gap between the codified law and its implementation. These
gaps could be seen as sites where the magistrate enjoyed a
relatively high degree of flexibility and latitude for his own
interpretations. The kind of tensions faced by the magistrate
and the judgement that came out of practical considerations
serve to modify our notion of a monolithic and repressive
state policy on sexuality.
The case of Qing case was similar to the medieval
Venetian described by Guido Ruggiero. In his The Boundariss
of Eras.:_Sex Crimes and Sexuality in Renaissance V e n i c e ,
Ruggiero shows that female adultery was considered as a more
serious crime than male adultery. However, the penalties for
adultery were typically restrained and ameliorative (Ruggiero,
1985: 68). This mild punishment for adultery was due to the
primacy of pragmatic concerns over rigid legalistic and
moralistic ones (Ruggiero, 1985: 51).
52
Endnotes
1. In response to the questions from his colleague from

Sichuan, Liu Heng (1776-1841) gave a list of supplementary
readings that the local officials should read other than the
codified law. They included: On_Adminis.txa.tion [Shizheng
pi an) by Lu Xinwu; Some FQxga.tt.eix_ELul.es__o.n Admini s.tration
[Congzheng yigui) by Chen Wengong; Rooks o f Blessings and Good
Deeds [Fuhui quanshu) by Huang Liuhong; My_ELersonal_Yiews_on
and Zuozhi yaoyan) by Wang Huizu. Liu Heng made special

reference to My_£ersonal Views on Administration by Wang Huizu
and Litigation Cases in Luzhou [Luzhou gong'an) by Lan
Dingyuan. The former was regarded as the most recent, handy
and easy guide while the latter was inspirational on how
tricky cases were handled (Liu, 1869/1985 :2: 10) .
2. It seems that the term zhijian has two meanings.

First, according to the footnote to the statute of sexual
violations, the term zhijian meant that the adulterous woman
turned herself into the magistrate and located the paramour
(Hu ed., 1994: 745) . Second, according to the section on rape
and adultery, the term zhijian meant that the adultery charge
was brought by a non-family member [wairen) who should not be
able to produce proof of adultery (Huang, 1694: 19: 19)
3. The term "junmin xiangjian" came from two related terms--

"junmin rendeng" and "xiangdengren" in a Kangxi sub-statute.
Put together in the context of illicit sex, these terms meant
that crime of illicit sex was committed among the military and
among the civilians (Anyu: 25: 3-4) .
4. According to the Ten Golden Rules for Yamen Legal,

S_e.cxetaries, these cases were considered as ordinary cases
[xunchang) .
5. Another kind of special consideration for female wrongdoers

was the granting of temporary or life imprisonment in lieu of
a sentence of exile or death after the assizes (Bodde, 1967:
79) . Despite the fact that imprisonment itself was not a
formal and independent category of punishment, the specificity
53
of the Qing Code made this possible: one of the four
categories of assize cases was huanjue (deferred execution)
and keqin (worthy of compassion) , which meant the commutation
of the death penalty to exile or penal servitude (Bodde, 1967:
138-139). However, privilege was not necessarily granted;
according to Bodde's study of the Conspectus of Penal Cases,
only three of the 20 women offenders were given some kind of
redemption and four were denied the privilege to which they
were entitled (Bodde, 1967: 170-171) . The reason seems to be
the unusual nature of these leading cases. Among the four
women who were denied the privilege, two were heinous
adulterous mothers-in-law who had killed their daughters--law
to conceal their own adultery, one was associated with anti-
dynastic religious groups, and one used some kind of magic
power to cheat sick people out of their money. In order to
warn the public of just how serious murder was under these
circumstances, the judicial officials inflicted the severest
form of punishment through the arbitrary application of the
"appropriate" sub-statutes (Bodde, 1967: 315-316, 317-319,
354-356).
6. Cangue (jia) was one of the supplemental punishments to the

Five Punishments. It was collar-like device made of a heavy
block of wood which restricted the bodily movement of the
offenders. Wearing the cangue for a fixed period of time was
a punishment in the form of public humiliation (Bodde, 1967:
95-96).
7. Similar provisions were also found in the case of women

wrongdoers who hid a fugitive (DLCY, bu 067: 1343).
8. The term "sangu liupo" literally means "three women and six
elder women". In traditional Chinese society, wherein a
proper woman was supposed to perform her domestic duty at
home, these nine categories of women (nigu, daogu, gruagru,
yapo, meipo, shipo, qianpo, yaopo, renpo) in the fields of
commerce, religion and medicine who had to show themselves in
public were considered less respectable. The contemporary
meaning of the term refers to those unproductive and
uneducated women who like to gossip and often times are
trouble-makers.
54
9. Li Yu was so disappointed with the statute of illicit sex
that he turned to the statute of nocturnal entry into domestic
residence without proper cause instead. The true deterrent
came from the legal provision which exonerated the master of
the house from a homicide charge if the killing was completed
right upon the discovery of the nocturnal intruder. Li Yu
emphasized that this was a possible way to correct bad social
custom and protect the inner quarters of women from men.
55
I
Reproduced with permission of the copyright owner. Further reproduction prohibited w ithout permission.
CHAPTER THREE
ADULTERESS-MURDERESS: THE GAP BETWEEN THE STATUTE A N D ITS

SUB-STATUTES
The overwhelming majority of murders committed by women
in Qing China were committed by adulteresses. Using the
microfilm copies through the Genealogical Society of Utah to
conduct a study over 20,000 brief case summaries during the
period 1736-1903 and over 2,000 detailed case descriptions
from the xingke tiben during the period 1738-1740, James Lee,
et al concluded that "the only superior they [Qing women]
occasionally fought against was their husband... women
resorted to murder only when they had an adulterous
relationship and only after careful premeditation" (Lee, 1989:
2,7) .
The prevalence of adultery-murder cases is important in
two ways. On the one hand, it may be viewed as a reflection
of the state's priority in upholding the "way of a woman"
(fudao) , as well as an assertion of a puritanical state
ideology on sexuality. On the other hand, the state's
perception was congruent with the very fact that women's
double transgression of murder and adultery was prevalent in
56
society. In order to demonstrate that ambiguities of the
crime of adultery-murder lie in the gap between the statute
and its sub-statute and the gap between the codified law and
its practice, this chapter will first discuss the crime of
adultery-murder through an examination of both the relevant
statutes regarding the killing of the husband by his wife and
some legal cases on adultery-murder. Then, it will focus on
the ambiguities surrounding the judicial interpretation of the
mitigating circumstances faced by the adulterous wife. The
discussion will draw on three types of cases: the commonplace
cases from the Ming Qing Archive (Ming Qing dang'an,
abbreviated as MQDA) , Conspectus of Penal Cases (Xing'an
huilan, abbreviated as XAHL) and A Recent Collection of
Reversed Cases (Bo'an xinbian, abbreviated as BAXB) . This
chapter will conclude by suggesting that these ambiguities
could be understood as a space in which judicial officials
negotiated the punishment that fit the circumstances, as
opposed to the notion that the criminal justice process was
solely a manifestation of the state's power.
57
W O M E N AND HOMICIDE IN THE Q I N G CODE
The Homicide Section of the Qing Code consists of 14
categories and covers a wide variety of homicides. In the
Qing code, the word sha ("kill") embraces all acts that
directly or indirectly caused the death of another person (Ng,
1990: 97) . This section of the chapter will discuss the
features of the Qing Code that are relevant to our basic
understanding of Qing murderesses.
Homicide a nd Punishment
The general rule of homicide law was that the closer the
degree of mourning relationship1, the more severe the
prescribed punishment. Within the category of the death
penalty were five degrees of punishment. In descending order,
they were death by slicing, immediate decapitation, immediate
strangulation, decapitation after the assizes and
strangulation after the assizes.2 Once put into the category
of "after the assizes", convicted offenders would be detained
in prison until a final decision was made at the assizes held
in Beijing in early autumn.3 They were eventually placed into
one of the four kinds of assizes cases ranging from the actual
58
execution of the death sentence to commutation of the death
penalty to the lesser sentences of life imprisonment or exile
(Bodde, 1967: 93).
In ordinary cases in which the murderer and his/her
victim were not closely related--that is, they did not have a
mourning relationship, the maximum penalty for plotting and
performing a premeditated murder was decapitation after the
assizes (DLCY, 282-00: 775). However, the Statute of
Premeditated Homicide of Parents or Grandparents stipulated
that criminals who were convicted of killing senior family
members (in this case, specifically referring to paternal
grandparents, parents, maternal grandparents, husband,
husband's grandparents and parents) would suffer the most
severe form of corporal punishment, that is, death by slicing.
The statute also specified that even though the criminal died
in prison, slicing of the dead body would not be exempted
(DLCY, 284-00: 780-781).4
This statute of killing one's senior relatives is
particularly relevant to the study of murderesses in several
ways. As will be discussed in other sections of this chapter,
the largest group of murderesses--adulteress-murderesses who
killed their husbands--would be subject to death by slicing,
59
the same punishment for killing their parents. Moreover,
although both men and women were held liable for the death of
their senior family members by precipitating their suicides,
women were more prone to this type of indictment because their
husbands were their seniors as well. Given this relational
context, women and men received equal treatment in relation to
their wrongdoing to senior family members. However, as far as
the conjugal couple is concerned, a reciprocal relationship
did not exist in terms of legal responsibilities for physical
assault. In this respect, murderesses did receive harsher
punishment than murderers.
S p e c i f i c i t y o f the Q i n g C ode an d W o m e n
The Qing Code was characterized, above all, by the
principle of differentiation. In order to deal with all
possible variations of any particular offence and to provide
specific punishment for each crime under specific
circumstances, the Qing Code included numerous specific sub
statutes that further defined and substantiated the statutes.
The 436 statutes, which were mainly copied from the Ming
Code, formed the skeleton of the codified law and were not
subject to change. Changes were, however, made possible with
60
sub-statutes in order to meet the demand from the ever-
changing social circumstances under which crimes were
committed. The total number of sub-statutes increased from
499 in 1644 to 815 in 1727, and reached a peak of 1,892 in
1863. This proliferation of sub-statutes was central to the
legislative history of Qing China.
The creation of concrete sub-statutes was clearly
evidence of the Qing Code's growing specificity (Ng, 1990: 23;
Bodde, 1967: 64-67). This specificity could become an extra
burden to the judicial officials in their everyday practice.
For instance, differentiation and specificity of the Homicide
Law, the motivation for the homicide, the status of the killer
vis a vis the victim, and the situation under which the
homicide was committed, were informed by various categories of
statutes and their sub-statutes (Bodde, 1967: 30). It is
against this specificity of the Qing legal system that the
differential treatment of murderesses is discussed here.
Wife and Husband
An independent statute dealing with a wife's murder of
her husband was absent in the Homicide Section. The crime
was covered instead in three different parts of three basic
61
statutes--premeditated homicide of parents and grandparents,
assault by a wife or concubine, and the killing of a wife's
paramour.
The offence of killing of a husband, first of all, was
incorporated into the statute of Premeditated Homicide of
Parents or Grandparents in the Homicide Section of the Code.
The relationship between wife and husband was parallel to that
of child and parents. In other words, the prescribed penalty
for the premeditated killing of parents, grandparents and
husbands was death by slicing. By contrast, a husband would
not receive the same degree of punishment if he had killed his
wife.
Outside the Homicide Section we can find a minutely
graduated series of punishments for Assault by a Wife or
Concubine of Her Husband in the Affray and Blows Section of
the Code. The Statute of Assault by a Wife or Concubine of
Her Husband stipulated that when death resulted from a wife
striking her husband with an intention to kill, she would be
sentenced to death by slicing, the same degree of punishment
as stipulated in the Statute of Premeditated Homicide of
Parents or Grandparents in the Homicide Section just
mentioned. When death resulted merely from striking without
62
an intention to kill, the prescribed punishment would then be
immediate decapitation; when the assault had resulted in a
permanent infirmity, the penalty would be immediate
strangulation. When only a wound was inflicted, the
punishment would be three degrees more than that for
assaulting a non-kinsman prescribed by the Statute of Affrays
and Blows, which stipulated minutely differentiated
punishments depending on the severity of the wound. If there
was no wound, the woman would receive 100 blows simply for
striking her husband, and the husband could also make a case
for divorce.
On the other hand, the penalty for a husband striking his
wife prescribed by the Statute of Assault by a Wife or
Concubine of Her Husband was much less, showing the absence of
a reciprocal relationship between husband and wife. First of
all, if no wound resulted, a husband went unpunished for
striking his wife. When a wound was inflicted, he would be
granted two degrees of reduction from the punishment
prescribed by the Statute of Affray and Blows, which meant a
much lenient punishment as compared to his wife's punishment
for the same offence. Despite the fact that the husband could
be sentenced to death for an intentional killing of his wife,
63
the prescribed punishment was still three degrees less than
his wife's for the same offence--that is, strangulation after
the assizes instead of death by slicing (DLCY, 315-00: 928) .
Under the category of Killing a Wife1s Paramour in the
Homicide Section of the Code, the statute dealt with the
killing of an adulterous wife as well as the killing of a
husband by an adulterous wife. The statute stipulated that a
husband could go unpunished if he killed his adulterous wife
and her paramour right on the spot where the adulterous couple
was engaged in illicit sex. Furthermore, the prescribed
sentence for the killing of a husband by an adulterous wife
was death by slicing. If her paramour killed her husband, but
she knew nothing of his plan, she would still be sentenced to
strangulation after the assizes (DLCY, 285-00: 783).
Like the Statute of Premeditated Homicide of Parents and
Grandparents and the Statute of Assault by a Wife or
Concubine, the Statute of Killing a Wife's Paramour prescribed
the punishment of death by slicing for a wife's killing of her
husband. Since death by slicing was already the most severe
penalty, it meant that adultery as a cause for the death of
the husband could not result in an extra amount of punishment
of the adulterous wife. Given the obligation to make the
64
punishment fit the crime, judicial officials had to find the
prescribed punishment under the relevant statute. This is why
the Statute of Killing a Wife's Paramour is central to our
discussion here.
T H E C R I M E OF A D U L T E R Y - M U R D E R
Adultery was indeed a dominant reason for women's
violence against their family members, particularly their
husbands. At the same time, it seemed to have given rise to
the perceived danger of women as unrestrained sexual beings.
The double transgression of adultery and homicide hinged on
the notion of sexuality. The moral imperative was that
adultery violated both the exalted standard of ideal womanhood
and familial harmony. Such an official perception of
adultery-murder was reflected in the case files which were
heavily weighted with moralistic overtones. Loaded with the
connotation of excessive and proscribed sex, extra-marital sex
was regarded by the judicial officials as a source of
misfortune (huo) and a violation of human morality (renlun) in
the commonplace cases housed in the Number One Historical
Archives.
65
The 1660 case of a woman suraamed Li in Jiangnan
illustrates well the official perception of adultery-murder.
Woman Li and her paramour, Zhong Tong, killed her husband, who
had stopped tolerating the adultery because Zhong Tong no
longer delivered the promised amount of bribe. Zhong Tong cut
off and buried the head of woman Li's husband in the river
bank, and threw his corpse into the river with the help of his
servant. All ofthe three wrongdoers were arrested and
charged with premeditated homicide. As prescribed in the
code, the paramour was to receive decapitation after the
assizes and the accomplice was to be strangled after the
assizes. Woman Li was convicted of killing a husband who had
once tolerated the adultery and was thus sentenced to
immediate decapitation.
While awaiting an imminent execution of sentence, woman
Li died of a sudden illness in prison. The judicial officials
considered her unanticipated death in prison as a predestined
punishment and a manifestation of divine will. Vehement
denunciation of woman L i 1s heinous behaviour permeates the
entire case file:
Woman Li was a woman with a refractory and lewd

disposition. She plotted with her paramour to kill
and dismember her own husband. This is neither
66
tolerated by Heavenly Principle, nor pardoned by
the law of the Emperor. Woman Li's sudden death in
the prison is indeed a kind of divine retribution
(tianbao) ...Lewd and refractory, woman Li has
violated human morality and has called forth
indignation from both heaven and earth. The
prescribed sentence for the killing of a husband by
an adulterous wife in this case should be
decapitation...A woman as lustful as woman Li
committed the crime of dismemberment, but her dead
body can now be buried intact. How fortunate she
is... Even though woman Li has not received the
punishment of decapitation, her life is suddenly
taken away through heavenly punishment. ..However, a
sense of abhorrence still lingers on because she
still enjoys a natural death. ..Anyway, she has
already been subject to predestined punishment
(MQDA: A36-115).
In other words, a natural death had actually put woman Li
in a better position because she at least passed away in good
shape and her dead body was kept intact for burial. In the
eyes of the judicial officials, this outcome had already been
a sort of manifestation of divine punishment, but indeed
worked in favour of the wrongdoer and, thus, was unfit for a
woman possessed by carnal desires (MQDA: A36-115) .
Similar criticisms were levelled against other supposedly
perverted women. Woman Bao, a successor wife (jigi) , was
involved in an affair with her husband's step-son, Jiang Da (a
son brought in from her husband's principal wife's first
marriage). When their adultery was detected by a biological
67
son of woman Bao's husband and then severely condemned by
woman Bao's husband, they decided to resort to murder. Jiang
Da struck hard at his step-father's head with an iron club and
a chopping knife. Subsequently, woman Bao picked up the
chopping knife and struck again in order to kill her husband.
In 1659, in conjunction with the officials of the Board of
Punishments, the governor-general of Shuntian strongly
criticized woman Bao for her uncivilized and animal-like
atrocity against her husband:
Woman Bao has a lustful disposition...Jiang Da [the

stepson, a monk] was attracted by the beauty of
woman Bao and left the monastery. Disguised in the
name of a mother-son relationship, they behaved
like animals and engaged in illicit sex for a year.
Then the scandal [of adultery] leaked out and Jiang
Da was expelled from the family. His lustful heart
was blazing...Could there be a disaster caused by
the vice of lust as serious as this one!
Fortunately, the criminals were arrested and have
been sentenced to severe punishment. The lustful
woman is sentenced to death by slicing and the
adulterer is to be beheaded. This [really]
delights the human heart (MQDA: A34-72).
The foregoing quotations epitomize the prevailing
moralistic overtones in the case files from the early Qing.
These reports not only carried testimony to support the
judicial decisions proposed by officials at various levels of
68
administration, they also included moral judgment by the
judicial officials regarding the double transgression of
adultery and homicide. The use of hyperbole was particularly
powerful in the officials' condemnation of the danger and
depravity of adultery. For example, adultery-murder was
described as completely damaging to human morality and a
violation of social order (juelun (MQDA: A9-49); mielun fanji
(MQDA: A24-4). Adultery-murder was treated as a grave crime,
so much so that its "depravity was hardly heard of on earth
and the prescribed punishment of decapitation and death by
slicing would not be sufficient enough to redeem the crime"
(shi suo hanwen, zhanzhe gaojie, you you yuhan (MQDA: A22-
109) . An adulteress-murderess was likened to a licentious
female animal (yinpin) (MQDA: A22-109) and was worse than a
wolf (e guo chailang) (MQDA: A9-49) . Any sudden death of the
adulteress-murderess was depicted as a predestined (mingzhu)
and divine (tianzhu) punishment (MQDA: A9-49; A23-162).5
I would suggest that these moralistic overtones could be
regarded as a part of the larger attempt to legitimize alien
rule. These case files were put together by officials at
various levels of administration and were submitted to the
Board of Punishments for the final approval of the Emperor.
69
Interestingly enough, this display of moralistic language
among officialdom disappeared from case files of the Qianlong
reign (1736-1795) by which time the Manchu rule had been
consolidated and the legal system institutionalized. The
Qianlong reign saw the compilation of the Collected Institutes
(Da Qing huidian) , the completion of
regulations of various boards, and a total ban on private
justice. The system of criminal justice was put in place and
the power of the emperor was secured. Judicial officials thus
began to organize the case files differently in order to prove
that they had found punishments to fit each crime.
Judicial officials had to comply with a fixed format of
reporting testimony. Mainly, case files carried factual
information necessary to support the punishment proposed. For
example, narrative order was suggested as follows--home town,
the age, family composition, and the age of the parents if the
wrongdoer was the only son in the family.6 Testimony should
include the exact official titles when those testifying held
public office or had academic qualifications. Even for
ordinary people, specific information had to be given: the
marital status of the woman who testified, the family name of
her husband or her son, and the degree of mourning when kin
70
were involved (Gang, 1889: 1: 13-15). Judicial officials were
allowed only a restricted range of word choice, partly because
of a deliberate restraint on indecent language in the real
courtroom situation, and partly because of a required
adherence to official reference manuals in the daily routine
of official document preparation. For example, a reference
Han liubu chengyu) came out in the early Qianlong reign and
became a reference manual for officials, in general and for
examiners for the civil service examination in particular.7
This reference manual did not mention the kind of hyperbolic
statements prevalent in case files from the early Qing, but
contained expressions which mainly described the connections
between events. For instance, "intimacy was developed from a
long adulterous relationship (jian jiu qingmi) and killing
resulted from adultery" (yin jian zhisha). The main purpose
of these factual expressions was to identify the nature of the
crime and justify the proposed punishment.
The case file of woman Hu highlights the characteristics
of crime reporting in the Qianlong reign. One evening in 1745
in Hanyang of Hubei Province, woman Hu and her paramour, Dai
Chaoying, her husband's clansman, killed woman's Hu's husband,
71
who knew nothing about his wife's adultery. In the officials'
record of woman Hu's testimony, she is reported as saying
[I], a little woman, killed my husband and intended

either to designate an adopted son or to seek
residence in a monastery after his death. In this
way, I could continue the adulterous relationship
with Dai Chaoying [the paramour] at the same time.
Therefore, I initiated the plan to murder my
husband.
Since woman Hu could not meet her paramour, in the words of
the judicial officials, to have illicit sex and lust (jianyin)
and, since her husband constantly scolded and beat her, she
tried to persuade her paramour to kill her husband. Upon her
paramour's refusal, she suggested that they could first
strangle her husband to death and then cover up the crime by
fashioning a natural death by cholera. One night the
adulterous couple jointly killed Woman Hu's husband while he
was sleeping soundly. Woman Hu held the lower portion of her
husband's body in position while her paramour choked him to
death (MQDA: A138-106).
For judicial officials whose paramount duty was to find
a punishment to fit the crime, they were obliged to see that
the case file carried testimony and preliminary approvals at
various levels of administration before it was submitted to
72
the emperor for final endorsement. Given the stipulation in
the Statute of Killing a Wife Paramour which prescribed a
punishment of death by slicing for a wife or a concubine who
jointly planned to kill her own husband due to her adulterous
relationship (yinjian tongmou shasi qinfu), judicial officials
had to extract a confession from the adulterous couple that
the murder of the husband was premeditated and adultery-
related. The testimony of the convicted adulteress-murderess
described the connections between events, that is, the
connection between illicit sex by an adulterous wife and a
premeditated murder of her husband. This became the primary
purpose of crime reporting by judicial officials, who shifted
from the earlier moralistic language to this sort of legal
reasoning.
When case files were prepared in a relatively fixed
format and a uniform legal language, these commonplace cases
no longer give us a rich repertory of hyperbolic examples of
state condemnation of sex crimes. But these commonplace cases
still serve the purpose of enhancing our understanding of
women's positions in Qing China. For example, the testimony
of woman Hu tells the story of an adulterous wife who killed
her husband to free herself from the marriage and to be able
73
to stay with or even marry her paramour. The story of woman
Hu was common to other wilful and desperate women who acted
under the compulsion of sexual passion. Such a suggestion is
made in James Lee's empirical research, mentioned at the
beginning of this chapter. Other than killing the husband,
there were also cases in which adulterous women killed because
they wanted to conceal adultery when it was discovered by
other family members. Another reason why the adulterous wife
committed the crime of murder was that adultery seemed to have
served as an alternative to conjugal sex and as a new mode of
relationship involving illicit or even promiscuous sex.
That was the case for a woman surnamed Rong in Guangxi
who had affairs with two paramours simultaneously. In 1739,
woman Rong met her first paramour, Yang Yi, while she was
gathering wood and he was taking care of his sheep on a
hillside. She was seduced by Yang Yi and later on engaged in
consensual sex with him several times in the wilderness. One
year later (1740), woman Rong ran into her second paramour,
Feng Amu, again on the hillside. They then had frequent
illicit sex at her house. Surprisingly, there appeared to
have been no trace of jealousy between the two paramours. Not
only did they take turns having sexual intercourse with woman
74
Rong at her home, they also greeted each other as brothers.
Finally, woman Rong's husband discovered his wife's
extramarital affairs in 1742. He was seized by anguish and
threatened to kill all of them. Initially, woman Rong told
her second paramour not to come over to her place as
frequently as before. However, he suggested striking first
and then marrying woman Rong. On Feng's initiative, the
adulterous triangle concocted a plan to kill the husband when
he was sound asleep in the middle of the night. One adulterer
seized the husband's hands tightly while another adulterer
strangled him. Meanwhile, woman Rong sat on her husband's
legs and twisted his scrotum (shennang) . To eliminate any
chance of survival, one adulterer circled the husband's neck
tightly with woman Rong's girdle and then buried him (MQDA:
A112-1).
The means of killing should also be given some attention
here. Generally speaking, women killed either by food
poisoning or physical assault such as strangulation with a
piece of rope or striking with a knife. However, there were
cases in which adulterous women resorted to more extreme
methods. In 1822 in Shanxi, an adulterous mother-in-law named
woman Jia beat her adopted daughter-in-law viciously and then
75
tore off the clothes and burnt her private parts with a hot
iron rod. She did this because she wanted to silence her
adopted daughter-in-law, who had bruited about the news of
woman Jia's having a lover iyanghan) (XAHL: 1559-1560).
Based on the ruling of this leading case, the prescribed
sentence for the killing of a daughter-in-law by her
adulterous mother-in-law would depend on the closeness of
relationship. For an adulterous digu (principal mother-in-
law) , as well as an adulterous dimu (principal mother) , the
prescribed sentence for killing of a daughter-in-law was
strangulation after the assizes; for an adulterous jigu (step
mother-in-law) , as well as an adulterous jimu (step-mother) ,
the sentence was heavier: decapitation after the assizes.
Both were only entitled to the assize category of deferred
execution and life imprisonment, which meant a denied access
to the assize category of worthy of compassion (XAHL, 1559-
1560).
Moreover, a distinct feature of womanly assault was the
twisting of the scrotum. Though not necessarily deadly, this
strike seemed to be characteristic of women's attacks upon
husbands or paramours. Based on my statistical survey of the
case files of the Board of Punishments (Xingke tiben) under
76
the Category of Marriage and Adultery (hunyin jianqing)
(housed in the Number One Historical Archives in Beijing)
during the period of 1875-1878, one out of ten adultery-
murders involved the twisting of the husband's scrotum.8 In
these commonplace cases, the twisting of a scrotum was
referred as nieshang, zhuashaxig, qiashang, henqia, qin'an,
kezhu, zhuazhu and jiuzhu. There were cases in which the
adulterous couple twisted the husband's scrotum so tightly
that it burst (zhuapo) or they assaulted it viciously
(lianlu). It contrasted sharply with the strangulation of
children and the poisoning of other family members with
arsenic. With regard to women's subordination by men, the
penis symbolized male sexual power and domination, and yet, at
the time, marked their very vulnerability. In this way, the
twisting of scrotum may be taken as both actual and symbolic
revenge. The notion of women's perception of the penis, be it
worship, envy or hatred, sheds light both on our understanding
of femininity and masculinity.
The 1821 case of woman Li in Sichuan is illuminating in
this regard and thus became a leading case. Woman Li had
sworn never to have illicit sex with her paramour named Chang
Huachun ever again. When he tried to rape her, she inflicted
77
more than thirteen wounds upon him and eventually killed him
by chopping off his scrotum. The fatal wound had a
circumference of nine cun (one cun is almost equivalent to an
inch). The judicial officials queried whether woman Li's
murder of her paramour was justified. They argued
Lying on the bed, Chang Huachun scolded woman Li.

She struck back with a piece of wooden club,
wounding his left leg, left knee cap... Chang fell
onto the ground. Woman Li continued to strike,
wounding his right arm, shoulder and elbow. Chang
began to pull down his pants and cursed woman
Li...After Chang's attempt to have sex with woman
Li failed, he took off his pants and continued to
scold woman Li. He was a man full of lust, but not
frail and timid. How could he have been inflicted
with up to thirteen wounds without striking back?
Up until woman Li cut off the fatal part of his
body (scrotum) , he had not even snatched the knife
to defend and protect himself. This is beyond
reason.
The judicial officials doubted that a woman (nuliu) alone
could have battered a man to death without even hurting
herself slightly in the process. Even though woman Li had
sworn to stop the adultery, she might not be fit to be charged
only with the unauthorized killing of her former paramour
right on the spot of forcible sex. It was possible that woman
Li had a new paramour and thus refused to have consensual sex
with her previous paramour; or, someone who was jealous of the
former paramour had committed adultery with woman Li and then
helped her in the murder. Therefore, the final verdict was
delayed, pending further investigation and evidence (XAHL:
1747-1749).
The foregoing paragraphs have dealt with the complexities
in our understanding of Chinese womanhood. Official
perception of Chinese womanhood was informed by the ways in
which the crime was reported and treated by judicial
officials. The commonplace cases contrast with the leading
cases and both contribute in their own ways to our
understanding of women's transgressions. An examination of
the commonplace cases tells us about how the pattern of crime
reporting shifted over time, while the leading cases
illuminate how the judicial officials negotiated a new
understanding of Chinese women in face of newly-emerging
situations. The commonplace cases in particular tell us why
and how an adulterous woman transgressed bounds of decency as
a subject of passion, despite the standardized language and
format of crime reporting.
The complexities of adultery-homicide need to be further
demonstrated in terms of the relationship between the main
statute and its sub-statutes. The introduction of a sub-
79
statute shows how the judicial officials responded to newly-
emerging situations. The examination of various sub-statutes
shows how law was to be put into practice. In the case of
adultery-homicides, the mitigating circumstances faced by the
adulterous wife were mapped out in the sub-statutes and will
be discussed in the following section.
MITIGATING CIRCUMSTANCES
Several sub-statutes provide for the mitigation of
punishment in the case of the murder of a husband by his
adulterous wife and/or her paramour under variant conditions.
The degree of punishment differed depending on the husband's
complicity in the adulterous relationship and the wife's
complicity in the paramour's murder of her husband. This
section will first examine the 1789 sub-statute, which
differentiated the varied situations in which the tolerance of
the adulterous relationship by the husband was considered in
assigning the guilt to the adulterous couple. Then it will
focus on the sub-statutes of 1750 and 1778, which specifically
dealt with the mitigating circumstances faced by an adulterous
wife.
80
In order to demonstrate the ambiguities in the
interpretations of these mitigating circumstances within the
practice of the law, reversed cases (bo1an) will be used as
examples. These case files had been bounced back to the
provincial level by the Board of Punishments for further
investigation or clarification. This process was instituted
as part of the criminal justice system in which all cases of
capital punishment proposed by officials at the local level
would first be scrutinized by officials at the provincial
level and then reviewed by the Board of Punishments before the
final approval from the emperor. Cases of capital crimes were
first tried by officials at the local level and a punishment
fit for the crime was proposed in accordance with the Qing
Code. Punishments were either called "proposed punishment"
(nizui) or "proposed in accordance to the code" (nilu). These
case files would then be submitted to and scrutinized by
officials at the provincial level. When further interrogation
of offenders confirmed the written testimony, and a re
examination of physical evidence supported the punishment
proposed by officials at the local level, officials at the
provincial level would then put together a judicial decision
called kanyu. The case file from the local level together
81
with the judicial decision from the provincial level would be
sent to the Board of Punishments for review before it was
finally endorsed by the emperor (Zhang, 1994: 287).
The boundaries between various categories of statutes, on
the one hand, and between a particular statute and its sub
statutes, on the other, although appearing to be well-defined
in codified law, were actually blurred within the practice of
the law. An examination of reversed cases allows us to see
how judicial officials from different administrative levels
negotiated the amount of guilt assigned to an adulterous wife
for the killing of her husband by her paramour. Mitigating
circumstances for these adulterous wives were discussed in
light of finding a punishment ranging from a relatively mild
punishment of bamboo beating to a one degree reduction from
capital punishment (that is exile).
The Husband's Tolerance of the Adulterous Relationship
Four sub-statutes, from the years 1735, 1742, 1768 and
1778, differentiated the various situations in which tolerance
of the adulterous relationship by the husband was to be taken
into consideration both in the killing of the husband by the
82
adulterous couple and in the killing of the adulterous couple
by the husband. In 1789, these four sub-statutes merged into
one sub-statute, part of which assigned the guilt to the
adulterous wife for the various situations in which the
husband who tolerated the adulterous relationship was killed.
Normally the punishment for the adulterous wife who killed her
husband herself or knew of the paramour's plot to do so would
be death by slicing when the husband neither knew of nor
tolerated the adultery. However, she would be sentenced to a
lesser punishment-- immediate decapitation--when evidence
proved that the husband had tolerated his wife's adultery.
She would be permitted a further reduction in punishment--
decapitation after the assizes--when the wound inflicted on
the husband was not fatal. When the wife was totally unaware
of her paramour's plot to kill her husband who tolerated the
adulterous relationship, she would not be held legally
accountable for the murder at all and would just be sentenced
under the statute of Allowing or Forcing a Wife or Concubine
to Commit Adultery (zongrong yile) , that is, 90 blows (DLCY,
285-07: 789).
The long, drawn-out case of woman Jiang from the province
of Shanxi in 1771 (BAXB: 1185-1190) was an example in which
83
the mild punishment of blows and cangue-wearing proposed by-
officials at the provincial level was reversed by the Board of
Punishments because the evidence did not prove the complicity
of the husband in the adulterous relationship.
The Board of Punishments overruled the decision proposed
by the provincial officials first by markedly contrasting the
statute and its sub-statute and then by careful investigation
of the evidence. The Board reiterated that the Statute of
Killing a Wife's Paramour stipulated that the adulterous wife
would be sentenced to strangulation after the assizes even
though she did not know of the paramour's plan to commit
murder, but that the 1789 sub-statute, which prescribed 90
blows for the adulterous wife who was totally unaware of the
paramour's murder plan, was only applicable when evidence had
been secured to prove a widely-known report about the
toleration of the adulterous relationship by the husband. The
Board of Punishments went on to argue'that evidence for the
toleration by the husband was lacking in the case of woman
Jiang for the following reasons:
First, although the mother-in-law of woman Jiang knew of
and tolerated the adulterous relationship between woman Jiang
and their employee by the surname of Wu, her complicity in the
84
adulterous relationship did not warrant "mitigating
circumstances" and so could not bring about a reduction of
punishment for the adulterous wife. Since the husband of
woman Jiang was b o m idiotic and their ten-year-old marriage
was never consummated, the mother-in-law intended to take in
Wu as the new husband of woman Jiang. The adulterous
relationship developed after the rejection of this uxorilocal
arrangement by her brother-in-law. The mother-in-law
therefore knew of and tolerated the adulterous relationship.
In a simple adultery case, one could argue that the mother-in-
law's knowledge of her daughter-in-law's adulterous
relationship should be taken as her husband's tolerance of his
wife's illicit sex. However, in an adultery-homicide, the
stance of the mother-in-law was not to be given any weight at
all.
Second, although the husband had once run into the
adulterous couple before Wu initiated the plan to poison the
husband, this encounter could not be counted as evidence of
toleration by the husband because the husband was b o m idiotic
and did not know what constituted a conjugal relationship.
Third, the encounter between the husband and the
adulterous couple was reported by the adulterous couple but
85
was not known to other people. In order to provide the
adulterous couple with a mitigation of punishment, judicial
officials had to amass evidence that the husband's toleration
of his wife's adulterous relationship was pre-existing and
widely-known (rensuo gongzhi) before the adultery-murder.
The judicial decision re-submitted by officials at the
provincial level, and later endorsed by the Board of
Punishment, overrode the earlier decision about the complicity
of the husband and thus changed the mild sentence into a
punishment of strangulation after the assizes for the
adulteress in accordance with the Statute of Killing a Wife's
Paramour.
As illustrated in the case of woman Jiang, evidence of
the husband's toleration of an adulterous relationship was a
significant factor in assessing the guilt of the adulterous
wife for it could exonerate her from a punishment of
strangulation after the assizes. In other cases, in which
solid proof of the husband's toleration had been secured,
there was still the problem of the distinction between
adultery-related fighting and an ordinary affray.
This was the issue at the heart of the 1779 case of woman
Peng from Hubei province (BAXB: 817-824) . Her husband had
86
invited his friend Shen Guoyin to drink and eat with woman
Peng, who was lured into sex with the paramour that evening.
The husband did not mention this to other people; he once
allowed Shen Guoyin to sleep with woman Peng in their bedroom
while he slept in the kitchen. Shen Guoyin constantly gave
clothing to woman Peng and money to the husband. The husband
invited Shen Guoyin to do shopping for his son's wedding and
Shen Guoyin stayed late to drink. The husband asked Shen
Guoyin to stay in the kitchen for the night, but the paramour
refused because he wanted to sleep with woman Peng. Shen
Guoyin yelled at the husband and the husband retaliated. Shen
Guoyin struck the husband with a wooden hammer and woman Peng
came to stop the paramour, at which point he left. Woman Peng
was ashamed of what had happened and therefore did not look
for a doctor immediately. The husband died of the wound and
woman Peng ran away with Shen Guoyin. Officials at the
provincial level did not regard it as a case in which a
paramour killed the husband who had concealed the adulterous
relationship. They regarded it as a fight between the husband
and the paramour about sleeping with woman Peng. The paramour
was therefore to be sentenced to strangulation after the
assizes according to the Statute of Arrays and Blows.
87
Both provincial level officials and the Board of
Punishments ruled that the fight between her paramour and her
husband, which left her husband dead, was an ordinary affray
rather than an adultery-homicide. This was despite the fact
that the fight developed around who could sleep with the
adulterous woman and the fact that the pre-existing adulterous
relationship was tolerated by the husband, meaning that the
paramour would be sentenced to strangulation after the assizes
(according to the Statute of Affrays and Blows) rather than
decapitation after the assizes (according to the Statute of
Killing a Wife's Paramour) . With regards to the guilt
assigned to the adulterous wife, officials at the provincial
level sentenced woman Peng according to the Statute of
Allowing or Forcing the Wife to Commit Adultery, that is, to
90 blows. However, the Board reversed this punishment and
proposed a heavier punishment of a three-year penal servitude
and 100 blows, since she had agreed to run away with the
paramour after the death of the husband.
The interesting thing about the case of woman Peng was
the lack of discussion about whether she knew of the killing
of the husband by the paramour. The combined effect of the
evidence for the husband's toleration of the adulterous
88
relationship and the evidence for the wife's ignorance of the
paramour1s murder plan would have meant for the adulterous
wife the mild punishment of 90 blows, as shown in the example
of woman Chen from the province of Henan in 173 9 (MQDA, A80:
113) . According to the testimony of women Chen, her husband
knew of her adulterous relationship with her paramour, Zhu Si,
but he did not say anything about it. He even suggested that
woman Chen could live with Zhu Si when they were not able to
make ends meet. Zhu Si also wanted woman Chen to run away
with him. She refused, but Zhu Si continued to pester woman
Chen and her husband. Zhu Si finally decided to kill the
husband. After doing so, he told women Chen what he had done.
Woman Chen was so scared that she had no choice but to run
away with him. The testimony of woman Chen was confirmed by
the paramour. Officials at the provincial level proposed to
sentence woman Chen to 90 blows since she was totally unaware
of the paramour's plan to kill the husband who had tolerated
the adulterous relationship. This proposed sentence was
endorsed by the Board of Punishment and approved by the
emperor.
The 1789 sub-statute just stipulated that the adulterous
wife be exonerated from strangulation after the assizes when
89
she was totally unaware of the paramour's plan to kill the
husband and when her husband had tolerated the adulterous
relationship. It did not deal with the question of whether
the adulterous wife still had had feelings for her husband and
had tried to save her husband or had reported the murder to
the local magistrate afterwards. It was only in 1803 when a
leading case first introduced a more severe sentence for the
adulterous wife who did not take legal action against the
paramour after she became aware of her husband's murder. The
ruling was that even when the husband had tolerated the
adulterous relationship and the adulterous wife had not known
of the paramour's plan to kill, if she did not report the
crime to the magistrate, she was to be punished as if the
husband had not tolerated the adulterous relationship. She
was to be sentenced to a one-degree reduction from
strangulation after the assizes, that is, to being a military
slave in a remote area. The Board of Punishments made
reference to the leading case of 1803 in a similar case in
1817 (XAHL: 1633-34). That is, the mitigating circumstances
resulted from the husband's toleration of the adulterous
relationship would be considered in relation to whether the
wife had tried to save her husband.
90
Wives who Tried to Save their Husbands
As will be demonstrated, the adulterous wife's knowledge
of the killing of the husband by the paramour carried
important weight in the assigning of guilt. The mitigating
circumstances faced by the adulterous wife who was unaware of
the paramour's plan to kill the husband were mapped out
specifically in the 1750 and 1778 sub-statutes.
The 1778 sub-statute on Killing a Wife's Paramour
stipulated that the adulteress should be sentenced to
strangulation after the assizes in accordance with the Statute
even if she did not know of the paramour's plan to kill.
However, the governor-general could file a request (jiaqian)
for imperial approval on a reduction of punishment if the
adulterous wife was found to be one of those who still had
feelings (shang you buren zhisi qifu zhi xin zhe) for her
husband by yelling for help right at the crime scene and
reporting the crime to the magistrate immediately afterwards
(DLCY, 285-05: 788).
The clause "shang you buren zhisi qifu zhi xin zhe" can
be literally translated as "a wife who still cared enough that
she could not bear for her husband to be put to death." The
clause first appeared in a Yongzheng edict of 1726. In the
91
tenth month of the third year of the Yongzheng reign (1723-
1735) , the Board of Punishments had submitted for imperial
endorsement a proposed verdict on a case of the killing of a
husband by an adulterer. The adulterer, Liu Zhiyong, was
sentenced to decapitation after the assizes. Woman Wang, who
was ignorant of her paramour's murder plan, was sentenced to
strangulation after the assizes according to the Statute of
Killing a Wife's Paramour. The Yongzheng emperor issued an
edict which reiterated that although the adulterous woman did
not know of the paramour's murder plan, she should still be
sentenced to strangulation after the assizes because her
infidelity caused the death of her husband. This punishment
was prescribed by the Statute of Killing a Wife's Paramour and
was not to be changed. However, woman Wang did immediately
yell for help and then reported the crime. This showed that
she still had feelings for her husband and thus deserved
compassion. If women in Woman Wang's position actually
received the prescribed capital punishment without mitigation,
the severity of the law might discourage them from turning
themselves in to the local authorities. It was therefore
decreed that the adulterous wife would be sentenced to
strangulation after the assizes according to the statute, but
92
that the presiding official should also file a special request
for imperial pardon (Yongzheng, 1993: 549).
Although this 1726 edict was only made into a sub-statute
in 1778, the 1726 edict was itself a law which allowed the
judicial officials to consider the mitigating circumstances
and the subsequent reduction of punishment for an adulterous
wife who did not know of the paramour's plan to kill the
husband. The 1777 case of woman Wang in Shansi province
(BAXB: 1283-1287) provides an illuminating example. The Board
of Punishments endorsed the punishments proposed by provincial
officials for an adultery-murder of the husband by the
paramour according to the Statute of Killing a Wife's
Paramour, that is, decapitation after the assizes for the
paramour and strangulation after the assizes for woman Wang.
The Board also initially endorsed the recommendation by
provincial officials on filing a special request for imperial
approval to exempt the adulteress from the death penalty
because the adulteress "still had feelings for her husband."
But then the Board reconsidered its position, deciding that
judicial decision (kanyu) prepared by the provincial officials
failed to document sufficiently that the adulteress "still had
feelings for her husband."
93
That decision reported that the paramour's murder plan
was motivated by a fear of discovery of the adulterous
relationship by the husband. Using the cold weather as a
pretext, the paramour talked the husband into a kiln and
strangled him. The decision also reported in the testimony
that when the adulteress found the description of an
unidentified male dead body close to that of her husband, she
became suspicious of an adultery-murder by her paramour. She
ran to her husband's uncle and suggested bringing a murder
charge against her paramour. Given this information, the
Board agreed that this testimony provided sufficient
information to support the punishment for the crime committed
by the paramour but insufficient evidence to explain why the
adulteress should be granted a one-degree reduction from the
prescribed punishment of strangulation after the assizes.
As a result of this reversal, it was emphasized in the
amended judicial decision that the adulteress neither knew of
nor helped in the murder of her husband. She therefore
deserved a one degree reduction from the prescribed punishment
of strangulation after the assizes. The mitigating
circumstances were described in fuller detail: while her
husband was away job-hunting, the adulteress was asked by the
94
yamen runners to describe her husband's physical features.
Once she had found that the clothing of the dead man was
similar to that of her husband, she immediately thought of the
possibility of a murder by the paramour. She, then, asked her
husband's uncle to lay a charge against her paramour. This
was the evidence for her "still having feelings for her
husband." This decision was finally accepted by the Board of
Punishments and the emperor.
While the 1726 edict underwent a long process of being
made into an independent sub-statute by 1778, the ruling in a
1750 case from Hunan was quickly made into a sub-statute which
mapped out the mitigating circumstances faced by an adulterous
wife in the case of an unintentional killing of the husband by
the paramour during the apprehension of adultery. The
judicial commissioner from Hunan province made an
inappropriate decision in that the amount of guilt assigned to
the adulterous wife for an unintentional killing of the
husband by the paramour during apprehension of adultery was
equal to that assigned for a premeditated murder of the
husband. The Board of Punishments overruled this
inappropriate decision. In assigning the guilt to the
adulterous wife, the Board saw the need to differentiate a
95
premeditated murder of the husband from the killing of the
husband by the adulterer who resisted arrest. The Board saw
the former as one in which the paramour killed the husband
(mousha benfu) so that he could pursue the adulterous
relationship and the latter as one in which the paramour
killed the husband while resisting apprehension (zhuojian
jubu) . In the case of the killing of a husband by an
adulterer who resisted arrest (which I refer to as adultery-
related murder) , the adulterer was sentenced to the punishment
prescribed by the Statute of Wrongdoers Who Resist Arrest
(zuiren jubu) , that is, decapitation after the assizes for
killing the person who made the arrest (DLCY, 388-00: 1124).
The same punishment was prescribed by the Statute of Killing
a Wife's Paramour for an adulterer when the adulterous couple
successfully plotted a premeditated murder of the husband
(which I refer to as adultery-murder). Unlike the adulterer
who would receive the punishment of decapitation after the
assizes both for an adultery-related murder and an adultery-
murder, the adulterous wife who tried to save her husband
would be subject to a punishment ranging from bamboo beating
to strangulation depending on whether it was an adultery-
related murder or an adultery murder. In the case of an
96
adultery-related murder, the adulterous wife was to be
sentenced to a punishment prescribed by the statute of sexual
violations if she had yelled for help at the crime scene and
given herself up to the magistrate immediately afterwards,
that is, bamboo beating and cangue wearing. For those who did
neither, they were considered both unchaste (shijie) and hard
hearted about the welfare of the husband. Since the bonds of
gratitude and obligation (enyi) had been damaged and the
principle of human sentiments and reason (qingli) had been
violated, they did not deserve clemency and were to be
sentenced to strangulation after the assizes, the normal
penalty for an adulteress unaware of her paramour's plan to
kill her husband (XHAL: 1600).
The resultant 1750 sub-statute stipulated that the
adulteress would be punished according to the Statute of
Sexual Violations (that is, bamboo blows and cangue wearing)
under the following four situations. First, she had already
left the site of adultery where the paramour killed the
husband when he resisted arrest. Second, she was absent from
the crime scene where the paramour killed the husband when he
resisted arrest by the husband who had chased the adulterous
couple outside the site of adultery. Third, she was present
97
at the crime scene where the paramour killed the husband when
he resisted arrest by the husband who had chased the
adulterous couple outside the site of adultery, but she yelled
for help and reported the crime immediately afterwards.
Fourth, the fighting was not directly related to the pre
existing adulterous relationship.
When the adulterous wife neither yelled for help at the
crime scene nor reported the case to the magistrate
afterwards, she would be treated as if she did not know of the
paramour's plan to kill. That is to say, she would be
sentenced to strangulation after the assizes by analogy to the
Statute of Killing a Wife's Paramour (DLCY, 285-13: 794).
The 1750 sub-statute was introduced to mark the division
between an adultery-murder and an adultery-related murder when
the adulterous wife was given a mitigated punishment.
Although the clause "shang you buren zhisi qifu zhi xin zhe"
from the 1726 edict did not appear in the 1750 sub-statute,
the mitigating condition of "yelling for help right at the
crime scene and reporting the crime to the magistrate
immediately afterwards" both appeared in the (1726 edict) 1778
and the 1750 sub-statutes. Taken these statutory provisions
together, an adulterous wife who "yelled for help right at the
98
crime scene and reported the crime to the magistrate
immediately afterwards" might be subject to differentiated
punishments ranging from a mere punishment of bamboo beating
to a reduced punishment from strangulation.
Cases show that judicial officials were too preoccupied
with the notion "still having feelings for her husband" to
give due attention to the demarcation between the 1778 sub
statute (which allowed an exoneration from a death sentence
for an adulterous wife who tried to save her husband in a
premeditated murder by her paramour) and the 1750 sub-statute
(which stipulated differentiated punishments for an adulterous
wife in various situations of adultery-related murder). The
case of woman Lu in 1760 from Guizhou Province (BAXB, 1063-
1069) is a good example. The husband of woman Lu did not know
of the adulterous relationship between his wife and his
clansman, Lu Mingshan. He, however, was increasingly
suspicious of his wife because Lu Mingshan kept them company
as they moved to a new home. Lu Mingshan, upset by the
difficulty in continuing the adulterous relationship from so
far away, decided to kill the husband (dun qi shaji) . While
woman Lu and her two daughters fell behind, Lu Mingshan
stabbed the husband in the chest with a knife. Having heard
99
the noise, woman Lu hurried up to the front and cried her
heart out. However, Lu Mingshan threatened woman Lu with his
knife and forced her and her children to stay with his
brother-in-law. Woman Lu kept the knife and surrendered it to
the local constable (dibao) . Officials at the provincial
level proposed to sentence Lu Mingshan to immediate
decapitation for initiating a plan to murder the husband, and
to sentence woman Lu to bamboo blows and the cangue according
to the 1726 sub-statute on sexual violation (juxrnin
xiangjian) .
This milder punishment was reversed by the Board of
Punishments; strangulation after the assizes as prescribed by
the Statute of Killing a Wife's Paramour was proposed instead.
The Board maintained that woman Lu should be held responsible
for the death of her husband. Regarding the testimony that
woman Lu had immediately broken into tears at the crime scene,
secretly hid the knife used by the paramour, and rushed to the
local constable for help when she was freed from the threat of
the paramour, the Board concluded that woman Lu "still had
feelings for her husband". However, these mitigating
circumstances only allowed the judicial officials to file a
100
special request for a reduced punishment. They did not free
woman Lu of a murder charge altogether.
Changes were made in the second judicial decision
submitted by the provincial officials and were endorsed by the
Board. The emperor finally granted woman Lu a one degree
reduction from strangulation after the assizes to exile, thus
exonerating her from the prescribed death penalty.
Since the case of woman Lu was an adultery-murder case in
which the paramour had deliberately killed the husband, it was
inappropriate for officials at the provincial level to bring
in the 1750 sub- statute, which was meant to deal with
adultery-related murder, the unintentional killing of the
husband by the paramour during apprehension of adultery. This
demarcation between adultery-murder and adultery-related
murder did not stand out in the report by the Board of
Punishments. No wonder confusion regarding the application of
the notion of "still having feelings for the husband" also
occurred among officials from the Board of Punishments.
The 1764 case of Woman Li from Yunnan Province (BAXB:
1127-1134) was a murder case in which provincial officials'
appropriate application of the mitigating condition of "still
having feelings for the husband" was reversed by the Board of
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Punishments. The Board wrongly applied the 1750 sub-statute
to an adultery-murder case.
Officials at the provincial levels reported that woman Li
was first forced to have sex with the adulterer-killer, Yan
Congren. She was later forced into running away with Yan.
The husband did not know of the illicit relationship. Yan
later moved to another county, but he could not stop thinking
of woman Li after the separation. He came back, hid himself
in the forest and hoped to get hold of woman Li when she was
on her way home. He waited for four days, finally seeing “V
woman L i . He pushed her into a bush and took her home by
force. The husband looked for his missing wife and soon found
out what had happened. The husband went to see Yan, who
talked the husband into staying at his place; Yan promised to
send the couple back home. However, he was afraid that he
could not afford their journey back home, so he decided to
kill (dun mou shaji) the husband while he was deeply asleep.
Woman Li woke up and tried to stop Yan by taking the axe away
from him. Woman Li was hurt. She cried herself out beside
her husband's corpse. Yan buried the dead body; Yan's father
sent woman Li away. Woman Li wanted to avenge her husband and
reported the case to the local constable. She told the yamen
102
officials to arrest Yan when she saw him running away.
Officials at the provincial level proposed that woman Li, who
did not know of her paramour's murder plan, should be
sentenced to strangulation after the assizes according to the
Statute of Killing a Wife's Paramour.
The Board of Punishments, however, reversed the death
sentence and suggested that woman Li should be punished for
sexual violations instead. They argued that woman Li was
first lured into an adulterous relationship. Then, she yelled
for help right at the crime scene and reported the crime
immediately after the killing. Thus, it was obvious that she
"still had feelings for her husband."
As a result of the reversal, the provincial officials re
submitted a judicial decision which concurred with the Board's
suggestion that woman Li "still had feelings for her husband".
The original punishment of strangulation was inappropriate for
woman L i : she was to be sentenced to bamboo blows and cangue
wearing instead. This arrangement was endorsed by the Board,
first, through a reiteration of a non-redeemable punishment of
100 bamboo blows, along with a redeemable punishment of month
long cangue wearing prescribed by the sub-statute of sexual
violations, and, then, through a reminder to send the
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adulterous woman back to her father-in-law. This punishment
was finally approved by the emperor.
The notion of the adulteress "still having feelings for
her husband" carried important weight in the practice of the
law. However, it was to be subject to the differentiation
between an adultery-murder and an adultery-related murder.
Since woman Li was involved in a murder case, it had been
appropriate for officials at the provincial level to use the
1778 sub-statute. It was the Board of Punishments who showed
sympathy for the coercion faced by woman Li when they leaped
from the Statute of Killing a Wife's Paramour to the Statute
of Sexual Violations without differentiating a premeditated
murder from an unintentional killing.
Absence of discussion on the nuances of the mitigating
circumstances faced by the adulterous wife occurred in some
reversed adultery-related murder cases in which the Board of
Punishments regarded her as having feelings for her husband,
but still inflicted a much heavier punishment than bamboo
beating and the cangue. It is worth noting that in some cases
provincial officials sentenced the wife to an appropriate
punishment in accordance with the Statute of Sexual
Violations. The Board of Punishments, however, reversed that
104
sentence, imposing a much heavier punishment in accordance
with the Statute of Killing a Wife's Paramour.
The 1770 case of woman Chang from Guangdong Province
(BAXB: 1149-1154) illustrates this point. After her husband
had discovered her affair with their tenant, Wen Akui, he beat
her up and intended to bring the paramour to court. Wen Akui
apologized for his misconduct and agreed to move out.
Adultery was so shameful that the husband did not want to
mention it, let alone take the case to court. One day when
Wen Akui went up the hill to cut down some trees with a knife,
he ran into woman Chang and they had sex in a dark corner of
the valley. The husband came back from the other side of the
hill and saw what was going on. He wanted to catch the
couple, but they ran in different directions. He chased after
Wen Akui and struck him with his fist. Wen Akui retaliated
and they had a fierce fight. Wen Akui ended up killing the
husband and manning away. Woman Chang later went up the hill
to look for her husband and found him dead. She immediately
ran to the nephew of her husband and the local representatives
(dibao) to lay charges against Wen Akui.
Officials at the provincial level sentenced the paramour
to decapitation after the assizes for resisting the arrest and
105
killing the person who was authorized to make the arrest
(zuiren jubu sha suobu zhi ren) . They sentenced Woman Chang
to a redeemable punishment of cangue-wearing and a non-
redeemable punishment of bamboo beating according to the 1750
sub-statute on killing a wife's paramour.9 The Board of
Punishments reversed this relatively mild punishment for Woman
Chang, arguing that her adulterous relationship had led to the
death of her husband, despite her good intentions to bring the
adulterer-killer to justice. The Board suggested that woman
Chang, who was ignorant of the paramour's plan to kill the
husband, should be sentenced to strangulation after the
assizes prescribed by the Statute of Killing a Wife's
Paramour.
The emperor endorsed this recommendation and granted a
one degree reduction of punishment from strangulation after
the assizes to exile according to the 1778 sub-statute (1726
edict). Woman Chang could be exonerated from the death
penalty since she had shown she "still had feelings for her
husband" by immediately seeking help from her husband's nephew
and by bringing a charge against her paramour.
Confusion regarding the stipulations about mitigating
circumstances when an adulterous wife tried to save her
106
husband is best illustrated in the 1775 case of woman Yu from
Zhili (BAXB: 1255-1265). Both provincial officials and the
Board of Punishments made inappropriate application of the
1778 sub-statute (1726 edict) and the 1750 sub-statute. They
were too preoccupied with the interpretation of the intention
to save the husband by the adulterous wife that they failed to
demonstrate an understanding of the nuances in the various
mitigating circumstances mapped out by the 1778 and 1750 sub
statutes. This misinterpretation contradicted the intended
purpose of those sub-statutes, which rendered mitigated
punishments to the adulterous wife who tried to save her
husband's life in adultery-murder and adultery-related murder.
In the first judicial decision, it was reported that the
paramour, Li Bo, first sneaked into the home of woman Yu and
found that the husband was sound asleep. He wanted to have
sex with woman Yu, but she refused. The idea of killing the
husband (dun gi shaji) occurred to Li Bo. He picked up a
brick and struck the husband. Woman Yu wanted to yell for
help and tried to stop Li Bo, but in vain. These moves showed
that she was not an accomplice to the paramour and she still
"had feelings for her husband". Officials at the provincial
level therefore contended that death by slicing would be too
107
harsh a punishment in this case. Interestingly enough,
despite the fact that it was a premeditated murder, officials
at provincial level likened this situation of woman Yu to one
in which the adulterous wife was present at the crime scene
where the paramour killed the husband (while resisting
arrest). Since she neither yelled for help at the crime scene
nor reported the case to the magistrate afterwards, she was
treated as one who did not know of the paramour's plan to kill
and was sentenced to strangulation after the assizes by
analogy to the Statute of Killing a Wife's Paramour according
to the 1750 sub-statute.
The Board of Punishments reversed the proposed sentence
in order to further investigate because it questioned whether
woman Yu really had had feelings for her husband. Since she
did notturn to her father-in-law immediately after the
paramour had run away, and she only confessed upon
interrogation by the neighbours who came to help, the Board of
Punishments suspected that the adulteress was an accomplice in
the adulterer's plan to kill the husband (tongmou shasi
qinfu), a crime deserving of death by slicing.
After further investigation of the reversed case by
officials at the provincial level, a firm confession was
108
secured from the major offenders, including woman Yu. The
elaborated testimony gave fuller details of the mitigating
circumstances faced by woman Yu, thus confirming their earlier
judgement that she "still had feelings for her husband". It
was reported that the paramour's striking the husband to death
happened so suddenly that the adulterous couple did not know
what to do. The paramour put the corpse in the courtyard and
asked woman Yu to forge a robbery case. The paramour ran away
and left the panic-stricken woman Yu alone. At that very
moment, her father-in-law and their neighbours came to ask
woman Yu what the commotion was all about. Woman Yu first
found it difficult to talk about the incident and therefore
did not yell for help. Officials at the provincial level
again found it understandable for a woman to hesitate in
reporting something she was ashamed of. Woman Yu was indeed
shame-stricken and yet she did give a full confession of the
adulterous relationship. Thus, the neighbours were able to
immediately find the paramour. Since woman Yu did not forge
a robbery case as suggested by the paramour, officials at the
provincial level reiterated their earlier opinion that she
"actually still had feelings for her husband". They also
believed she had no intention to cover-up the crime committed
109
by the paramour. Woman Yu denied that she was an accomplice
to the paramour; this the paramour did not disclaim.
Officials at provincial level explained how they found
the appropriate punishment for woman Yu in consideration of
the final report on mitigating circumstances. Given the
confirmed testimony that woman Yu did try to stop the paramour
from striking her husband and did give a full confession
immediately upon the interrogation by the father-in-law, which
led to the arrest of the paramour, officials at the provincial
level concluded that woman Yu had not been the paramour's
accomplice and, therefore, did not deserve the most severe
sentence of death by slicing as prescribed by the Statute of
Killing a Wife's Paramour. The penalty prescribed by the
Statute of Sexual Violations was not suitable for woman Yu
either because she had neither tried her best to yell for help
at the crime scene nor informed her father-in-law and
neighbours of the crime immediately. This display of
insufficient effort to rescue her husband confirmed the
punishment of strangulation after the assizes proposed earlier
by provincial officials.
The Board of Punishment endorsed this judicial reasoning
in the end. Woman Yu was treated as if she was present at the
110
crime scene where the paramour killed her husband (while
resisting arrest) , but she neither yelled for help at the
crime scene nor reported the case to the magistrate
afterwards. Woman Yu was considered to have been ignorant of
the paramour's murder plan and sentenced to strangulation
after the assizes by analogy to the statute of Killing a
Wife's Paramour. The emperor approved this arrangement and
woman Yu was to be strangulated after the assizes.
The 1750 sub-statute differentiated between the situation
whereby the adulteress would be punished directly under the
Statute of Sexual Violations and the situation whereby she
would be punished by analogy to the Statute of Killing a
Wife's Paramour. This analogical application of the Statute
of Killing a Wife's Paramour was different from a direct
application of the statute. Unlike the adulterous wife who
was totally ignorant of the paramour's plan to kill the
husband, an adulterous wife who did not try to save her
husband from the unintentional killing by the paramour during
apprehension of adultery was not to be granted a one-degree
reduction of punishment by the emperor upon a special request
from the governor-generals.
Ill
The confusion that developed around the various
mitigating circumstances faced by the adulterous wife must
have lasted for some time. An attempt to straighten out this
problem was made by a Board of Punishments' memorandum in
1818. The memorandum again emphasized the marked difference
between the 1778 sub-statute (1726 edict) and the 1750 sub
statute regarding the guilt assigned to the adulterous wife.
The 1778 sub-statute was based on a 1726 edict and was to be
understood in light of the Statute of Killing a Wife's
Paramour. While the statute stipulated that the adulterous
wife would be sentenced to death by slicing for her complicity
in the murder of her husband, and strangulation after the
assizes if she was unaware of her paramour's plan to kill the
husband, the 1778 sub-statute allowed the governor-generals to
file a request (jiaqian) for an imperial approval on a reduced
punishment if the adulterous wife was found to still have
feelings for her husband by yelling for help right at the
murder scene and reporting the murder to the magistrate
immediately afterwards. The 1750 sub-statute was, however,
made specifically for cases regarding the apprehension of the
adulterous couple in which the husband was killed by the
paramour who resisted arrest. The adulterous wife would
112
either be sentenced to mere bamboo beating or to a capital
punishment of strangulation after the assizes. The final
sentence depended on whether the adulterous wife had yelled
for help at the crime scene and reported the crime to the
magistrate immediately afterwards (XAHL: 1602).
The case that gave rise to this 1818 memorandum gave an
elaborate account of the mitigating circumstances faced by
woman Wu, who claimed to be absent from the crime scene where
the paramour killed the husband while resisting arrest.
As reported by the governor-general of Sichuan Province,
the husband of woman Wu bumped into woman Wu and her paramour
while they were having sex. The husband was the paramour's
relative of second mourning degree. Woman Wu ran and hid
herself in the bamboo bush outside the house. Inside, there
was a big fight between the husband and the paramour. The
husband finally died of a wound from a wooden hammer, his head
was chopped off with an axe, and his shoulder joints and knee
caps were broken. The paramour put the mutilated body into a
basket and carried it away for burial in the bush. The
younger son of woman Wu saw how his father was beaten to death
by the paramour. He ran out to look for his mother. When
they came back, they only found blood stains on the ground.
113
The paramour came back from the burial just as woman Wu was
about to look for him. He told woman Wu what happened and
made her run away with him. At first, Woman Wu turned him
down, but finally gave in after being coerced. The paramour
left in the middle of the night. The elder son of woman Wu
came back the following morning and was sent by woman Wu to
report the crime to his uncle. The paramour took his own
life. Based on the coroner's report and the testimony, woman
Wu was sentenced according to the Statute of Killing a Wife's
Paramour, despite her lack of knowledge of her paramour's plan
to kill. A request was made for a reduction of punishment
because she still had feelings for her husband.
This proposed sentence was reversed by the provincial
judicial commissioner and the Board of Punishments. Both
argued that this sentence imposed by the governor-general did
not fit the crime. Woman Wu should be punished for sexual
violations if it proved to be a case of the paramour's killing
of the husband after resisting arrest and a case of reporting
the crime immediately by the adulterous wife who had run away
from the crime scene.
The Board went on to suggest that the case file prepared
by the governor-general did not provide sufficient proof for
114
mitigating circumstances whereby woman Wu still had feelings
for her husband. The Board suspected that it was a case of
premeditated murder by the adulterous couple and a case of
perjury by woman Wu for the following reasons:
First, given the magistrate's report that the house of
woman Wu was located in an uninhabited neighbourhood and the
two rooms were made of hay, she should have heard the
commotion and should have stopped the paramour. Instead, she
hid herself in the bamboo bush outside the house.
Second, it was reported in the testimony that the four-
year-old son of woman Wu found his mother in the bamboo bush.
It should not have taken them too long to get back to the
house. They should have bumped into the adulterer who must
have taken some time to mutilate and bury the dead body.
Third, when woman Wu came back from the bamboo bush and
found the house empty but blood stains on the ground, she must
have been sure of her husband's death. Though it was reported
that the nearest neighbour was three li away, she should have
had enough time to rush for help because the paramour was
still away in the bush burying the body of the husband. If she
was really devastated by the loss of her husband (tong fu
115
qingqie) , she should not have stayed at home. Therefore, she
would not have run into the intimidating paramour at all.
Fourth, although woman Wu might not have had a chance to
reach out for help at the early stages, she should have
reported the case to her husband's brother immediately after
the paramour left in the middle of the night so that the
paramour could be apprehended right away. The Board contended
that by the time her elder son came back from work in the
following mourning, it was too late for women Wu to take
action (XAHL: 1603-1604).
The case of woman Wu is illuminative of the fact that
judicial officials played a crucial role in the interpretation
of the specific circumstances in each case before they could
give mitigated punishment to the adulterous wife. More
importantly, these leading and reversed cases show how the
criminal justice process enabled officials at different levels
to negotiate the meanings of these mitigating circumstances in
the practice of law.
116
This chapter has explored the state's perception of
women's double transgression of adultery and murder in Qing
China. Since the prescribed punishment for killing the
husband by his adulterous wife was the same as that for
killing the husband by his wife, our understanding of the
state's perception of the depravity of adultery-murder is
informed by an examination of case files prepared by judicial
officials from various levels of administration. The
prevailing moralistic overtones of the pre-Qianlong case files
saw the state's insistence on the centrality of sexual
morality in social order and human morality. As I have
argued, this moralistic language was part of the larger effort
to consolidate and legitimize the alien rule. Disappearance
of this moralistic overtones in the Qianlong reign meant a
standardization of crime-reporting rather than a shift in the
state's perception of adultery-murder.
It is true that the guilt of the adulterous wife was
subject to the differentiation between a premeditated murder
and an unintentional killing during the apprehension of
adultery, as well as the differentiation between the husband's
toleration of the adulterous relationship and the wife's
117
effort to save the husband. But the promulgation of the
various sub-statutes regarding the mitigating circumstances
faced by the adulterous wife, again, could be treated as an
increasing effort to realize the overriding principle of
differentiation within the existing categories of statutes,
such as sexual violations, killing a wife's paramour, allowing
or forcing a wife to commit adultery. The promulgation and
revision of sub-statutes were the state's effort to prescribe
a range of minutely differentiated punishments for the varied
crime situations. These efforts could be seen more as a
manifestation of state's power rather than a deliberate re
definition of the crime of adultery-murder. This
manifestation of state's power, however, did allow a space in
which judicial officials could negotiate the punishment for
the crime.
118
I . Endnotes
1. In descending order, the five degrees of relationship are

zhancui, qicui, dagong, xiaogong, sima. The mourning period
ranges from three years for a first degree mourning
relationship to three months for a fifth degree mourning
relationship. For example, a son or an unmarried daughter is
in a first degree mourning relationship with his/her parents,
and a wife is in a first degree mourning relationship with her
husband or her parents-in-law (Bodde, 1967: 36).
2. Besides the death penalty, the other four main categories

of punishment were military exile, life exile, penal
servitude, and heavy bamboo and light bamboo (Bodde, 1967: 77-
78) .
3. The Qing criminal justice process involved a series of

complicated procedures such as submission of memorials
regarding the capital crimes by the provincial governors to
the central government, review of the case summaries and their
recommended punishment by an appellate court in the central
government, and the final examination of the capital criminal
cases by the emperor. The Autumn and Court Assizes (qiushen)
were presided over by the emperor in the eighth month of each
year, in order to decide who would receive the death sentence
and who would be subject to mitigating circumstances. Four
categories of assizes cases were deferred execution (huanjue) ,
worthy of compassion (keqin), remaining at home to care for
the parents or to perpetuate the ancestral sacrifices (liuyang
chengsi), and circumstances deserving of capital punishment
{qingshi) (Bodde, 1967: 138-139).
119
4. For Chinese, keeping one's dead body intact for burial is
extremely important. The body is a gift bestowed upon a
person by one1s parents. One should be responsible for taking
good care of it. A popular belief held that one's ancestors
would be upset by a mutilation of the offsprings' body due to
misconduct. An act that displeased one's ancestors was
already considered as unfilial (Meijer, 1991: 5). Through an
insistence on the eventual dismemberment of the convicted
criminals who deserved the severest form of punishment, the
Qing state underscored the extremely heinous nature of those
crimes. According to Bodde (1967: 93), those crimes were:
treason, parricide, multiple homicide of three or more persons
of a same family, and cutting off parts of a living person for
witchcraft purposes.
5. Language in early Qing case file on adultery-murder was

filled with moralistic connotation-- e guo chailan, juelun,
mingzhu, shen zhi su ji ye (MQDA: A9-49; 1649) , jianyin
haiming (MQDA: A16-15; 1653), xiongcan ji yi, huo shi yu yinfu
(MQDA: A24-84; 1656), can'e ji yi, mingzhu, tianzhu, yindu
xiongcan mo ci, shu wei youhun (MQDA: A23-162; 1656), yinpin,
shi suo hanwen zhanzhe gaojie you you yuhan (MQDA: A22-109;
1656), zongyu renxin mielun fanji (MQDA: A24-4; 1656)
6. When a criminal, convicted of a criminal offence, was the

only son in the family or the sole male heir of his deceased
parents, he might be classified under the category of
"remaining at home to care for parents or to perpetuate the
ancestral sacrifices" during the Autumn Assizes. This was an
excellent example of how the Qing Code exemplified the family
values and the Confucian virtue of filial piety (Bodde, 1967:
39, 139).
the; Six Boards (Qingdai liubu chengyu cidian) . Tianjin:

Tianjin Renmin Chubanshe, 1990: the preface.
8. Out of the 1,325 cases under the category of Marriage and

Adultery for those years, 202 cases were adultery-murders
committed by the adulterous couple and 22 cases involved the
twisting of the husband's scrotum.
120
9. Women criminals, together with the aged over 70, the young
below 15 and the physically or mentally infirm were considered
as a privileged group for Confucian humanitarian reasons. In
the case of women, they were granted the privilege of monetary
redemption for those crimes that carried punishments other
than the death penalty and military exile (DLCY, 001-08: 7;
DLCY, 001-15: 14).
121
CHAPTER FOUR
T H E A D U L T E R O U S COUPLE: F R O M B A M B O O B E A T I N G T O D E A T H B Y
JUSTIFIABLE KILLING
The Statute of Killing a Wife's Paramour carried a total
number of 36 sub-statutes, the highest among the 20 statutes
of the Homicide Section and the fifth among the 436 statutes
of the Qing Code.1 When compared to the Ming Code, the number
of sub-statutes under the category of killing a wife's
paramour during the Qing period increased from one to thirty-
six. This proliferation of sub-statutes meant more
specificity in the punishments for adultery-related homicides.
The previous chapter delineated the legal complexities of the
killing of the husband by the adulterous couple. This chapter
will focus on the justifiable killing of the adulterous couple
by the husband right at the site of adultery.2
In his Murder and Adultery in Late Imperial China: A
Study of Law and Morality, M.J. Meijer contends that this
proliferation of the sub-statutes on the section of killing a
wife's paramour meant a deterioration in the effectiveness of
the law during Qing times. His study begins with a question
about the huge discrepancy between the punishment of the
122
adulterous couple prescribed by the Statute of Sexual
Violations and that prescribed by the Statute of Killing a
Wife's Paramour. While the former statute stipulated a
maximum penalty of only bamboo beating and cangue-wearing, the
latter granted the husband legal immunity for the double
homicide of the adulterous couple right at the spot of
adultery. Meijer argues that this legal privilege was a
reactive measure to the social custom of private justice in
matters of adultery. Given the presumably wide
dissatisfaction with the mild punishments prescribed for the
crime of adultery, people tended to take matters into their
own hands. It was to oppose the prevalence of this private
justice that the statute on the killing of a wife's paramour
was first introduced during Ming times. The notion of a
justifiable double murder of the adulterous couple right at
the site of the adultery was meant to limit the husband's
scope of action and to correct bad social habits. That is,
the husband would be punished for an unauthorized killing when
he murdered the adulterous couple either outside the site of
adultery or after they were apprehended. Meijer contends that
the proliferation of the sub-statutes during Qing times failed
to achieve its intended purpose; the social custom of private
123
justice, far from being eradicated, was promoted instead
(Meijer, 1991: 123).
Unlike Meijer, who links the introduction of the
husband's legal immunity in the Ming and the proliferation of
sub-statutes in the Qing to the prevalence of private justice,
I will trace the legislative history of the Statute of Killing
a Wife's Paramour and show that the changes were part of the
state's efforts to reach a balance between the paramount role
of the family in moral development and the prevention of false
accusation. As the husband's right to a justifiable killing
of the adulterous couple was reiterated and further extended
to other family members, it meant that the state increasingly
relied on the family for the preservation of sexual morality.
At the same time, the state saw that an abuse of this legal
privilege could do serious damage to the criminal justice
system. In order to prevent a fabrication of an adulterous
relationship as a pretext for a legal slaughter, law makers
had to specify an appropriate punishment for each emerging
situation of unauthorized killing of the adulterous couple.
Proliferation of the sub-statutes was the result. My
argument also highlights the wide spectrum of differentiated
punishments for illicit sex. In order to maintain a balance
124
between the family's role and the prevention of fabricated
cases, the state needed to create a space in which judicial
officials would be able to negotiate using a range of legal
provisions that best fit each set of specific circumstances.
The primary source for this chapter is the 1848 edition
of the Da Qing luli anyu (The Commentary on the Qing Code,
Meijer translates it as The Considerations of the Qing Code),
edited by Huang Entong. The Commentary on the Qing Code
(hereafter the Anyu or the Commentary) was first put into
print by the Haishan xianguan in 1848. It consists of the
memorials that gave the reasons for the statutory changes.
The Commentary is organized first by the reign of the emperor,
then by the section of the law, and last by the years in which
the changes were made in the Code. Since the content of and
the reason for the changes are laid out in chronological
order, this arrangement best serves the purpose of tracking
down the legislative history of a particular sub-statute.
The Commentary was put together by Huang Entong during
his fifteen-year service in the Statute and Sub-statute Bureau
(Luli guan) . A few copies had been circulated among officials
until the Haishan xianguan proposed putting it into print. In
the preface for the first edition of the Commentary, Huang
125
Entong welcomed the move by the publishing house because he
thought that the law should be known both to the state and to
the people (fazhe guo yu min gongzhizhe ye) (Anyu, the
preface: 2-3).
LEGISLATIVE HISTORY
According to Shen Jiaben, the history of the Statute of
Killing a Wife's Paramour dates back to the Yuan times. The
Yuan Code granted legal immunity to the husband when he killed
his adulterous wife and her paramour at the site of adultery.
If the husband killed only the adulterer and spared the life
of the adulterous wife, or visa versa, he would receive 107
blows (Shen Jiaben, 1910/1964: 910).
In Ming times, the Statute of Killing a Wife's Paramour
dealt with adultery-related homicide, that is, the killing of
the adulterous couple by the husband during the apprehension
of adultery and the killing of the husband by the adulterous
couple. The first part of the Statute laid down the condition
for the justifiable killing of the adulterous couple by the
husband as follows:
126
When the main wife or concubine had committed
adultery with another man and [the husband]
personally apprehended them at the site and killed
at the time both the adulterer and the adulteress,
he shall not be incriminated. When the husband
killed only the adulterer, the adulteress shall be
sentenced in accordance with the lu and if the
husband so desires, she shall be sold into marriage
with another man (Ming Code, 19: 805; translated in
Meijer, 1991: 40) .3
The commentary to the statute emphasized that this legal
provision hinged on the notion of "at the site" (jiansuo) and
"at the time" (dengshi) of adultery. When the husband killed
the adulterous couple who were together but had not yet begun
sex (tiao er wei chengjian) or when the killing took place
outside the site of adultery, the husband would not be treated
according to this statute. He would be sentenced instead by
an analogical application of the Statute of Nocturnal Entry
into Domestic Residence Without Proper Cause as laid down in
the single sub-statute of this section:
When the husband, having subdued and bound the

adulterer and the adulteress, subsequently had
beaten them to death, he shall be sentenced by
analogical application of the 2£i which concerns the
unauthorized homicide as committed by the occupant
of a house upon a person who, during the night, had
intruded into his house when that person had
already been subdued and bound (Ming Code, 19: 804;
Meijer, 1991: 40-41)
127
The Statute of Nocturnal Entry into Domestic Residence
Without Proper Cause (ye wugu ru renjia) prescribed a
punishment of 80 blows when a person entered another person's
house without a proper cause, but it granted legal immunity to
the owner of the house when he killed the nocturnal intruder
immediately upon detecting him. However, he was unauthorized
to assault or kill the nocturnal intruder who did not resist
arrest, the penalty would be a two degree reduction in
punishment prescribed for death from affray. When the assault
resulted in death, the penalty would be 100 blows and three-
year penal servitude (Ming Code, 19: 792). According to this
Statute, the husband would be sentenced 100 blows and three
years of penal servitude for an authorized killing of the
adulterous couple.
While there was only one single sub-statute for the
section on killing a wife's paramour in Ming times, the number
of sub-statutes increased to 36 during the Qing times,
reaching its peak in the Qianlong and Jiaqing reigns.4 The
changes will be analyzed under three major circumstances.
First, for the case of justifiable killing of the adulterous
couple by the husband, the husband's right to a legal immunity
128
was extended to the parents and grandparents of the husband
and the wife. Second, for the case of killing only the
adulterer by the husband during the apprehension of the
adulterous couple, the husband no longer had discretionary
power either to keep or to sell his adulterous wife. A
mandatory sale of the adulterous wife was instituted in the
Qianlong reign. Third, for the case of killing only the
adulterous wife by the husband during the apprehension of the
adulterous couple, the husband was given a reduced punishment,
while the adulterer was assigned a larger share of guilt and,
thus, an aggravated punishment.
J U S T I F I A B L E K I L L I N G OF T H E A D U L T E R O U S CO U P L E
The Statute of Killing a Wife's Paramour granted the
husband legal immunity for killing the adulterous couple when
they were immediately caught right at the site of adultery
(DLCY, 285-00: 783). An examination of the reasoning behind
the statute led to an extension and some restrictions to this
privilege, thus the making and revision of sub-statutes. We
begin with a look at the 1789, 1798 and 1802 sub-statutes,
129
which extended the husband's right to a justifiable killing of
the adulterous couple first to the parents of the married
couple, then to the grandparents, and finally to the husband-
to-be in the case of an adopted daughter-in-law (tongyangxi) .
The 1789 sub-statute was first made possible by a
memorial in 1789 and was last revised in 1798. The memorial
leading to the 1789 sub-statute supported an extension of the
husband's right to a justifiable killing of the adulterous
couple either by the parents of the husband or the parents of
the adulterous wife right at the site of adultery. The
memorial reiterated that the parents of the married couple
were entitled to legal immunity because their legal status was
similar to that of the husband.
Legal provisions for the parents' entitlement can also be
traced back to 1758. The governor-general of Zhejiang filed
a question with the Board of Punishments on whether the
penalty for killing the adulterous couple by the parents of
the husband and the parents of the adulterous wife right at
the site of adultery would be the same as that prescribed for
the killing by the husband. In reply, the Board reiterated
the depravity of adultery and the right to catch adultery by
relatives within the five degrees of mourning relationship,
130
but the Board differentiated those were not authorized to kill
from those who were. Relatives below second degree (qigong)
of mourning relationship were different from the husband and,
thus, would be subject either to penal servitude or the death
penalty, depending on whether the adulterous couple was killed
right on the spot. However, the immense love for their
children and the superior status of the parents should give
them the same legal entitlement as the husband when they
killed their own daughter or daughter-in-law right at the spot
of adultery. This discussion became part of the Board's
policy and had informed the adjudication of similar cases
since 1758.
The year 1789 saw the making of a separate sub-statute on
the killing of the adulterous couple by the parents of the
husband in a wider application of this principle by judicial
officials (Anyu, 56: 53-54). The 1789 sub-statute stipulated
that the parents of the husband and the parents of the wife
would be treated as if they were the husband when they had
killed the adulterous couple while catching adultery. If the
adulterer was a senior relative of mourning degree such as the
husband's uncle, the case should be submitted to the Boards of
131
Punishments and the Nine Chief Ministries 5 for a reduction in
punishment (Anyu, 56: 52-55).
This 1789 sub-statute was subsequently amended according
to the ruling on a 1798 leading case in Sichuan. In the
course of chasing after the adulterous couple, the father had
killed his adulterous daughter right at the site of adultery.
In light of the 1789 sub-statute (and another sub-statute
which will be discussed later in this chapter) , the governor-
general proposed the following sentence for the father and the
adulterer. Like the husband, the father was to be sentenced
to a punishment of 80 blows when he killed only the adulteress
right at the spot of the adultery. This mild punishment was
subject to the condition that a full confession from the
fugitive adulterer be secured. The adulterer would then be
assigned the guilt for the death of the adulterous woman and,
thus, be sentenced to strangulation after the assizes. In his
review of the case, the emperor exonerated the father from
bamboo beating altogether. For ordinary cases of beating
one's innocent children to death, he argued that the parents
had to be sentenced to bamboo beating in order to show the
imperial concern for human lives despite an automatic
exemption at the end. For cases of beating an adulterous
132
daughter in a fit of justifiable fury, the parents should be
pardoned and should not be sentenced to bamboo blows at all.
The imperial edict therefore decreed that the Board of
Punishments should make necessary amendments. They included
the introduction of legal immunity for killing only the
adulteress as well as the extension of the right to the
grandparents.
Thus, the 1798 sub-statute stipulated that the
grandparents and parents of the husband and wife would be
treated as if they were the husband when they killed the
adulterer in the course of apprehending the adulterous couple.
But, unlike the husband, they would go unpunished for killing
only the adulteress (DLCY, 285-28: 805).
In 1802, the legal privilege of the husband was extended
to the family who kept an adopted daughter-in-law
(tongyangxi) . The 1802 sub-statute stipulated that in the
case of killing the adulterous couple during the apprehension
of adultery, the husband-to-be, his grandparents and parents,
and his relatives within the mourning degrees should be
treated as if the adopted daughter-in-law were a wife (DLCY,
285-21: 798) . In support of the enactment of this sub
statute, it was argued that since it was a common practice for
133
poor families to keep an adopted daughter-in-law, who stayed
with the prospective husband's family before the consummation
of marriage, the husband's family should be responsible for
her upbringing. In this light, an adopted daughter-in-law was
likened to a legal wife (Anyu, chapter 83: 34).
The above has mapped out the extension of the husband's
legal privilege in the justifiable killing of the adulterous
couple right at the site of adultery. The legal privilege was
first extended to the parents by the 1789 sub-statute, then to
the grandparents by the 1798 amendment, and finally to the
family who kept an adopted daughter-in-law (tongyangxi) by the
1802 sub-statute. Furthermore, the 1798 amendment gave the
parents and grandparents legal immunity for killing only the
adulteress right at the site of adultery--a kind of privilege
that was not even enjoyed by the husband. Clearly, the power
of the parents and grandparents in catching adultery surpassed
even that of the husband. In this fashion, changes were made
to the code to give the family a paramount role in the
preservation of sexual morality.
Yet at the same time, measures were taken to prevent
false accusation through the imposition of new restrictions on
the rights to apprehend and turn in an adulterous couple. In
134
the early Qing, besides the husband and his relatives within
the mourning degrees, unrelated household inhabitants and
yamen runners were allowed to apprehend an adulterous couple.
The Little Commentary (xiaozhu) to the original Statute of
Killing a Wife's Paramour was made into eleven sub-statutes in
1726,6 one of which dealt with the right to apprehend an
adulterous couple. This 1726 sub-statute stipulated that
parents, uncles, elder brothers and sisters, and grandparents
of the adulterous woman were allowed to do so. Same was true
for all brothers of the husband and his relatives within the
mourning degrees, those who shared a common residence
(tongju) , and those who had the power to make arrest (yingbu) .
The Qing state, however, removed these non-family members
from the list when this sub-statute was amended in 1741.
Those who shared a common residence and those who had the
power to make arrest were stripped of the right to apprehend
an adulterous couple. The memorial which led to the revision
gave reasons for this new restriction. Of course, all
brothers of the husband and his relatives within the mourning
degrees should have the right to seize and report an
adulterous couple to the magistrate. Those people who merely
lived under the same roof, however, neither shared the same
135
family name nor were tied by mourning relationships. They
might abuse their right to apprehend an adulterous couple and
lay a false charge for blackmail purposes. The same logic
could be applied to those who had the power to make arrests.
These were yamen runners according to the definition given in
the section on Arrests and Escapes. Adultery was a matter of
ambiguous nature and it was indeed unreasonable to have given
yamen runners access to the women's inner chambers in the
first place (Anyu, 56: 25-26)
This new restriction meant that the apprehension of the
adulterous couple was strictly a family matter. It was
further elaborated in an 1853 sub-statute, which reiterated
that uncles, brothers and relatives within the mourning
degrees were allowed to apprehend adultery. If they killed
the adulterous couple right at the site of adultery, they were
to be punished for an unauthorized killing of a nocturnal
intruder who did not resist arrest--that is, 100 blows and
three-year penal servitude. If they killed the adulterous
couple not right at the site of adultery, they were to be
punished for an unauthorized killing, that is, strangulation
after the assizes (DLCY, 285-25: 802) .
136
The right to apprehend an adulterous couple thus became
limited to the family members defined by blood ties.
Moreover, the right to apprehend adultery was never meant to
be equivalent to the right to the justifiable killing of the
adulterous couple. The law prescribed a range of
differentiated punishments for the various situations in which
the adulterous couple were killed by the family members who
could apprehend but who were not authorized to kill the
adulterous couple. The severity of punishment depended on
whether the killing was completed immediately at the spot of
adultery (jiansuo dengshi).7 Punishment was further
differentiated when the husband's complicity in the adulterous
relationship and the blood ties in the justifiable killing of
the adulterous couple were taken into consideration.
M A N D A T O R Y SAL E OF T H E A D U L T E R O U S WIFE
For the purposes of preserving legal tradition and
maintaining historical continuity, the statutes were kept
intact as much as possible. When changes had to be made, they
usually were made in the sub-statutes. It is worth noting,
137
therefore, that the Statute of Killing a Wife's Paramour
itself underwent a major change when it was first copied from
the Ming Code and then again when it was revised in the
Qianlong period. For the case of killing only the adulterer
right at the site of adultery, the discretionary power of the
husband in the divorce and sale of the adulterous wife in the
Ming law was replaced with a mandatory family dissolution in
the Qing. This change was instituted in two stages--first
through an enslavement of the adulterous wife in 1726 and then
with the mandatory sale of the adulterous wife in 1741. As
a result, the husband received legal immunity for a
justifiable killing of the adulterer but only at the cost of
a mandatory family dissolution. Clearly, Qing law ended up
upholding husband's right to a justifiable killing of the
adulterous couple, but at the same time decreed a mandatory
family dissolution to prevent false accusation. These changes
confirm my argument that the Qing state attempted to achieve
a balance between an unwavering insistence on the role of the
family in moral rectification on the one hand and an
increasing emphasis on the prevention of false accusation on
the other.
138
For the situation, of killing only the adulterer right at
the spot of adultery, but sparing the life of his adulterous
wife, the Statute of Killing a Wife's Paramour from the Ming
Code granted the husband legal immunity. However, the
adulterous wife was first to be sentenced to the punishment
prescribed by the Statute of Sexual Violations (100 blows of
the heavy bamboo and one month of cangue wearing) and then be
left to her husband who had full discretion either to keep her
or to sell her in marriage to another man (suifu jiamai) .8 In
the 1726 edition of the Qing code, the Statute was modified in
that the adulterous wife was to be sent to official families
as a slave (ruguan weinu) (Anyu, 19: 10) . The 1741 edition of
the Qing Code further amended the Statute and stipulated a
mandatory sale of the adulterous wife by the official
matchmaker under the auspices of the magistrate, followed by
a confiscation of the body price (dangguan jiamai shenjia
ruguan) (DLCY, 285-00: 783).9
Despite these changes, the adulterous wife was first to
be punished according to the Statute of Sexual Violations.
It, therefore, seemed that either the enslavement or the sale
of the adulterous wife was a punishment added to a bamboo
beating. In this light, Meijer laments that these provisions
139
in general "augured little optimism for a more humane attitude
towards the adulteress" (Meijer, 1991: 47). He sees the
mandatory sale of an adulterous wife as a relaxation of the
punishment of their enslavement, but he still contends that
the "punitive aspect prevailed over the intention of the
husband to forgive and keep the woman" (Meijer, 1991: 48).
Unlike Meijer who sees these changes primarily as a
punishment for the adulterous wife, I argue that an immediate
family dissolution was meant to be a punishment for a husband
who overstepped his bounds. An immediate family dissolution
best served as a deterrant against false accusation of
adultery, which the husband could use as a pretext for the
legal slaughter of the adulterer.
The memorial that prompted the change to a mandatory sale
of the adulterous wife illustrates this point well. The
memorial argued that the Statute of Killing a Wife's Paramour
in the Ming Code gave the husband discretionary power in the
divorce and sale of the adulterous wife when he killed only
the adulterer--in other words, the same legal provisions
prescribed by other sections on sexual violations. When the
1726 edition of the Qing Code stipulated an enslavement of the
adulterous wife, this became inconsistent with other sections
140
of the Qing Code such as the Statute of Sexual Violations
(which gave the husband discretionary power either to keep or
to sell his adulterous wife). In order to achieve uniformity
among the statutes, it was necessary to remove the clause of
an enslavement of the adulterous wife from the Statute.
The memorial went on to reiterate that the notion of
legal immunity for the cuckolded husband hinged on the double
adultery. When a husband killed only the man, sparing the
life of his wife during the apprehension of the adulterous
couple, he went unpunished. If the divorce and sale of
adulterous wife was again left to the full discretion of the
husband, it might bring about false accusation of adultery as
a pretext for other malicious purposes. The memorial,
therefore, suggested changing the enslavement of the
adulterous wife to her mandatory sale by the husband in front
of the magistrate and a confiscation of the body price (Anyu,
56: 21).
Family dissolution was first admitted as an appropriate
punishment fit for the husband in the memorial which led to a
1795 sub-statute. This sub-statute provided a clarification
about the treatment of the adulterous wife in those cases
141
where the husband killed only the adulterer, but spared her
life. It specified that the mandatory sale of the adulterous
wife and the confiscation of her body price would be applied
only in that situation. As to the provisions from other sub
statutes, which punished the husband for his unauthorized
killing during the apprehension of adultery but did not
specify a mandatory sale of the adulterous wife, she should be
left to the husband and his relatives, who could decide
whether to keep her or not (DLCY, 285-18: 797).
The memorial explicitly described the mandatory sale of
the adulterous wife as a fit punishment for a husband who had
killed just the adulterer. This is how the memorial put it:
Given that adultery is a matter of ambiguous nature

(aimei) , the husband who is driven by a fit of
justifiable fury (shi chu cangcu, qing you yifen)
would go unpunished for his immediate double
homicide of the adulterous couple right at the spot
of adultery. Had the law granted the husband a
legal immunity for his killing of the adulterer and
at the same time custody of the adulterous wife, it
might open up new grounds for a fabrication of an
adultery charge. The statute thus stipulates a
mandatory sale of the adulterous wife and, thus a
family dissolution as a proper punishment (buxu qi
shijia wanju, ji suoyi zheng qi zui ye) for those
who killed only the adulterer (Anyu, 56: 65).
The memorial went on to explain that an adulterous wife
should only be punished for illicit sex (and not sold) when
142
the husband's action did not qualify him for legal immunity.
It confirms my point that the family dissolution was indeed a
punishment for the husband. According to the memorial,
For variant cases of unauthorized killing of the

adulterer by the husband, such as killing outside
the site of adultery, or killing at the site of
adultery but not immediately upon the apprehension
of the adulterous couple, or killing outside the
site of adultery and not immediately upon
apprehension, the sub-statutes would sentence the
husband to appropriate punishment ranging from
bamboo blows to strangulation. Since these sub
statutes do not specify the legal treatment of the
adulterous wife, judicial officials from various
provinces have wrongly handed down a mandatory sale
as prescribed by the statute on top of the
prescribed punishment for the unjustifiable killing
of the adulterer by the husband. It is, therefore,
necessary to clarify that the adulterous wife
should only be sentenced to bamboo blows for the
wrongdoing of adultery unless a mandatory sale is
specified (Anyu, 56: 65-66).
A mandatory sale of the adulterous wife as a punishment
for the husband was re-confirmed by a 1802 amendment to a 1761
sub-statute. For the situation of killing the onlookers
(pangren) by mistake during the apprehension of the adulterous
couple, this 1761 sub-statute prescribed differentiated
punishments for the husband and the adulterer, and stipulated
a mandatory sale of the adulterous wife in front of the
magistrate (dangguan jiamai). The memorial leading to the
143
1802 amendment removed the mandatory sale of the adulterous
wife from the 1761 sub-statute because this sub-statute was
different from the Statute. It was argued that if the husband
was given full discretion to keep or sell his adulterous wife
after he killed only the adulterer, it might invite false
accusation on the part of the husband. A mandatory sale of
the adulterous wife was, therefore, instituted in the statute
to stop false accusation. As for the situation of killing
onlookers during the apprehension of the adulterous couple
mapped out by the 1761 sub-statute, the husband was to be
sentenced to a punishment of strangulation after the assizes.
It implied that thehusband had received the punishment fit
for his crime and it was notnecessary to impose a mandatory
sale of the adulterous wife. The memorial also saw an absence
of a mandatory sale of an adulterous wife in those sub
statutes which prescribed a punishment of exile or
strangulation for the husband's unauthorized killing during
the apprehension of an adulterous couple. It therefore
proposed to remove the clause of a mandatory sale of the
adulterous wife from the sub-statute and return the adulterous
wife to her husband's relatives (Anyu, 83: 25). As a result,
the 1802 sub-statute stipulated differentiated punishments for
144
killing onlookers by the husband, his relatives and the
adulterer during the apprehension of the adulterous couple
without making reference to the adulterous wife (DLCY, 285-15:
796) .
A mandatory family dissolution thus demonstrates the
state's paramount concern about the potential for the abuse of
the legal privilege by a cuckolded husband. The Statute was
devised to make sure that only genuine cases of justifiable
killing of the adulterous couple by the husband would be
pardoned. A justifiable killing by the husband was best
proved by a double homicide of the adulterous couple (shajian
shashuang) . For the situation in which a husband killed only
the adulterer right at the spot of adultery, it was not a
capital crime and it appeared to be a legal slaughter on the
part of the husband. But still the mandatory sale of the wife
and the damage done to the family was too high a price for the
husband to trade for a legal slaughter.
In other words, family dissolution was the best counter
measure against an abuse of the legal immunity for the
justifiable killing of the adulterous couple. It was true
that the husband was given the unusual power for private
justice in the case of adultery. He was, however, given the
145
dilemma between private justice and family dissolution.
Similarly, he was given the dilemma between a fabrication of
adultery cases for manslaughter and a family dissolution. In
this light, the mandatory sale of the adulterous wife and the
subsequent family dissolution was understood as an effective
measure against fabrication of adultery cases for malicious
purposes.
GUILT ASSIGNED TO THE ADULTERER
As shown in the previous sections, the Qing state granted
the family a paramount role in upholding the moral order and
the husband the primary responsibility in keeping the family
intact. The sanctity of the family union was to be maintained
and any violation of this was to be punished. This was the
reason why the husband would go unpunished only for a double
adultery. As will be illustrated shortly through an
examination of the sub-statutes on killing only the adulterous
wife during the apprehension of the adulterous couple, the
husband would be sentenced to the death penalty for killing
146
his adulterous wife. The legislative changes resulted in a
mitigated punishment for the husband that needs to be
understood in relation to making the punishment more severe
for the adulterer. Shifting the guilt for an unjustifiable
killing of the adulterous wife from the husband to the
adulterer meant that the adulterer would be held largely
responsible for the death of the adulterous wife (and the
violation of the sanctity of the family) .10
For the situation of killing only the adulterous wife
either right at the spot of adultery or in the course of
extorting a confession after the adulterer had run away, a
1726 sub-statute (which was copied from the Little Commentary
to the Statute of Killing a Wife's Paramour in the Ming Code)
treated the husband as if he had beaten his wife to death.
That is, he was to be sentenced to strangulation after the
assizes. This 1726 sub-statute did not assign guilt to the
adulterer, but it was amended in 1741 to shift capital
punishment from the husband to the adulterer and again amended
in 1768 to make the punishment for the adulterer more severe.
The 1741 edition of this sub-statute exonerated the
husband from capital punishment and shifted the guilt to the
adulterer. If the fugitive adulterer admitted the crime of
147
adultery upon arrest, the capital punishment prescribed for
the husband would be reduced to a mild sentence of 80 blows.
The adulterer, who had not been assigned any guilt by the 1726
sub-statute, would be sentenced to strangulation after the
assizes (Anyu, 56: 22).
These legal provisions were merged with the 1726 sub
statute. The resultant 1741 sub-statute stipulated that, if
the husband killed his allegedly adulterous wife but then was
unable to prove her guilt, he would be punished as if he had
beaten his wife to death. If the husband killed the
adulterous wife right at the spot of adultery and the fugitive
adulterer later gave a full confession of adultery upon
arrest, the adulterer would be sentenced to strangulation
after the assizes and the husband would only be sentenced to
a mild punishment of 80 blows. If the husband killed the
adulterous wife not right at the site of adultery (that is,
outside the scene of adultery or a few days after the
discovery of adultery), and the fugitive adulterer later gave
a full confession of adultery, the husband would be sentenced
to penal servitude according to the Statute of Unauthorized
Killing of Offenders Who Did not Resist Arrest (yi jiu juzhi
148
er shansha) , and the adulterer would only be sentenced
according to the Statute of Sexual Violations (Anyu, 56: 23).
We can see the state's pragmatic concerns in the memorial
leading to the 1741 sub-statute. On the one hand, the
memorial reiterated the husband's right to a justifiable
killing of the adulterous couple right at the spot of
adultery. On the other hand, the memorial supported the 1726
sub-statute, which prescribed a death sentence for a husband
who killed only his adulterous wife right at the spot of
adultery or killed his allegedly adulterous wife while
extorting a confession. The state saw the ambiguities of an
adulterous relationship and the intimacies of the conjugal
relationship. The state also saw that it was particularly
easy for the husband to use adultery as a pretext to kill his
wife. When the husband killed only his adulterous wife right
at the spot of adultery, this situation was different from a
double homicide of the adulterous couple right at the spot of
adultery (fei dengshi bingsha) . The husband would no longer
be entitled to legal privilege and should be punished for an
unauthorized killing of his adulterous wife. The 1726 sub
statute therefore stipulated that the husband would be
punished as if he had beaten his wife to death. In light of
149
legal privilege but in fear of the fabrication of adultery
cases for malicious purposes, the punishment prescribed for
the unauthorized killing of the adulterous wife by the husband
was seen as the state's effort to exercise caution in penal
punishment (shenxing) (Anyu, 56: 22-23).
At the same time, the state put heightened emphasis on
the preservation of the moral order. Given the state's
unwavering stance on the husband's legal privilege, the
memorial contended, it was reasonable to be more lenient to
the husband for killing his adulterous wife right at the spot
of adultery so long as he could prove that she had had sex
with her paramour. It therefore proposed to assign the guilt
to the fugitive adulterer who gave a confession upon arrest.
The adulterer was to compensate for the death of the
adulterous woman and, thus, to be sentenced to strangulation
after the assizes. The memorial described the aggravated
punishment for the adulterer as a way for the state to
castigate debauchery and uphold moral teachings (chengchuang
yinxie, you chu fuchi shijiao zhi xin) (Anyu, 56: 22-23) .
The guilt assigned to the adulterer was furthered
aggravated in a 1768 amendment. For the third situation
mapped out in the 1741 sub-statute, where the husband killed
150
the adulterous wife not right at the site of adultery (outside
the scene of adultery or a few days after the discovery of
adultery) , and later the fugitive adulterer gave a full
confession of adultery, the 1768 sub-statute INCREASED the
punishment for the adulterer to 100 blows and three years of
penal servitude. This punishment was heavier than the
original punishment of a mere bamboo beating, prescribed by
the Statute of Sexual Violations. The husband, however, was
to receive the same punishment, that is, penal servitude,
according to the Statute of Unauthorized Killing of Offenders
Who Did not Resist Arrest (DLCY, 285-01: 784).
The memorial leading to this 1768 amendment argued that
the adulterer should be sentenced to a heavier punishment
because he had actually brought about the death of the
adulteress. Although the memorial stressed that the
adulteress was killed by the husband because of her own
downfall, it was the adulterer who actually brought about the
killing (gu zhisi zhi you shi zai jianfu). The guilt for the
husband's murder of his wife was therefore shifted to the
adulterer. The 1768 memorial also saw a parallel between the
killing of the adulteress by the husband and suicide by the
adulteress. That is, the adulterer had to take up the same
151
amount of guilt in both situations. A ruling in a 1764 case
held the adulterer responsible for the suicide of the shame-
ridden adulteress and was finally sentenced to a punishment of
100 blows and three years of penal servitude. It would be
fitting, the memorial concluded, to sentence the adulterer to
the same punishment in the case of the killing of the
adulteress by the husband (Anyu, 56: 39).
An examination of the relevant statutes and sub-statutes
shows that the Qing state neither relinquished its pardon for
a justifiable killing of the adulterous couple by the husband
nor withheld its punishment for an unauthorized killing of the
adulterer or the adulterous wife. When the responsibility for
the death of the adulteress was split between the husband and
the adulterer, the Qing, the Qianlong Reign in particular, saw
an increasingly heavier punishment for the adulterer. That
meant that the sanctity of the family was further secured
against external intrusion.
152
C R I T I Q U E S O F T H E STAT U T E
In his famous Puli cunyi, Xue Yunsheng pointed out that
the proliferation of sub-statutes only created confusion,
despite the intention to prescribe the most appropriate
punishment for each variant circumstance of adultery-murder
(DLCY, 285-11: 793). In general, he endorsed the guiding
legal principle of the justifiable killing of the adulterous
couple by the husband right at the spot of adultery. However,
the issue became complicated when the adulterer was a senior
family member of the husband because the husband was entangled
in conflicting obligations deriving from the conjugal union
and blood ties (DLCY, 285-23: 801). To Xue, the artificial
union between a man and a woman could not be compared to the
natural affinity among brothers and paternal uncles. Xue
commented that it would be more advisable for the husband to
divorce his adulterous wife than to turn his justifiable rage
into a fatal assault on his senior family member. It was true
that incest violated the principles of human relationships.
However, the case of killing a senior family member was even
worse in that regard. Xue contended that the mitigation of
punishment for killing senior family members while catching
adultery in fact distorted the legal principle of the statute.
153
Cases of adultery-homicides increased, Xue concluded, as a
result of a de-emphasis on the clause of divorce in the Ming
Code. This mention of adultery-homicide referred to husbands
who committed murder and adulterous couples who committed
murder.
In his legal treatise on the Statute on Killing a Wife's
Paramour (1910), which will be discussed in detail in another
chapter, Shen Jiaben denounced the Statute of Killing a Wife's
Paramour and advocated a repeal. He contended that among the
many devastating consequences of the right to a justifiable
killing of the adulterous couple by the husband was an
increase in revenge cases. In support of Shen Jiaben's legal
treatise, Dong Kang went on to say that cases of killing the
husband by the wife's paramour or by the adulterous couple
increased considerably as a reaction to the introduction of
this Statute of Killing a Wife's Paramour (Shuntian Shibao, 17
Dec 1910).
* * * *
An examination of the legislative history of the Statute
of Killing a Wife's Paramour saw the Qing's unwavering stance
154
on the legal immunity enjoyed by the cuckolded husband. The
proliferation of sub-statutes was informed by the guiding
principle that the justifiable killing of the adulterous
couple by the husband had to be done "immediately" (dengshi)
"at the site of adultery" (jiansuo). This notion of a double
adultery was evoked in every revision and introduction of sub
statutes. The legal immunity for a justifiable killing of the
adulterous couple by the husband was made possible for the
purpose of moral rectification (zheng fenghua) (Anyu, 19: 11) .
According to Meijer's reading of the phrase "zheng
fenghua", the custom which needed to be rectified was the bad
habit of private justice in matters of adultery (Meijer, 1991:
43) . Meijer emphasizes that the statute of Ming times was
meant to control the husband's scope of action and to correct
bad social habits (Meijer, 1991: 73), but he does not give the
exact wording or the citation from Ming times. He, however,
directly quotes from the commentary to the Qing statute which
stated that the statute was enacted to "rectify the customs of
the people" (zheng fenghua) (Meijer, 1991:43). To Meijer,
"the customs" meant the bad habit of private justice in
matters of adultery. One example is the Guangdong custom of
155
drowning the adulterous couple while they were trapped in a
long huge basket for pigs. Meijer contends that the
proliferation of sub-statutes confused the people with the
intention of the statute. Since any changes had to be made
with a direct reference to the legal principle of the statute,
the notion of legal immunity for the justifiable killing of
the adulterous couple was repeatedly reinstated to the point
that the husband had almost become morally obliged to kill
both the adulterer and adulterous wife.11 Meijer concludes
that the proliferation of sub-statutes implied a collapse of
the intended purpose and resulted in a promotion of
undesirable social custom. When the husband is repeatedly
assured of the right to a justifiable killing, the very
intention of putting a limit on the acts of private justice
was violated. There was, in Meijer's words, a widening chasm
between social reality and the law (Meijer, 1991: 123) .
I agree that the proliferation of sub-statutes on the
Statute of Killing a Wife's Paramour implied the growing
complexities of adultery-homicide and the increasing amount of
judicial attention to the various situations of unauthorized
killing of the adulterous couple. I also agree that the
"relaxation" of the conditions for legal immunity, or even a
156
romanticization of the discovery and homicide of the
adulterous couple (Meijer, 1911:73) could be easily
understood as a gap between the intended purpose of the
statute and the practice of the law.12 But I think that Meijer
has stretched the point in saying that the proliferation of
sub-statutes resulted in a promotion of private justice. We
need to understand the husband's legal immunity laid out in
the first part of the statute in relation to the prescribed
punishment mapped out in the second part of the statute. The
statute dealt with the adjudication of adultery-homicides,
both in terms of homicide of the adulterous couple during the
apprehension of the adulterous couple and the premeditated
murder of the husband by the adulterous couple. That is, the
husband's legal immunity was meant as the state's recognition
of the supremacy of the power enjoyed by the husband and his
immediate family members in the rectification of the evil
practice of debauchery.
A close examination of the sub-statutes shows that the
proliferation of sub-statutes was developed in three trends--
an extension of the husband's legal immunity to other family
members, an introduction of family dissolution as punishment
for a husband who kills the adulterer only, and a shifting of
157
guilt from the husband to the adulterer when the husband kills
only his wife. These changes should be understood as the
state1s attempt to strike a balance between its recognition of
the supremacy of the power enjoyed by the husband in the
rectification of the evil practice of debauchery on the one
hand, and its concern about the fabrication of adultery as a
pretext for legal murder on the other.
This chapter shows that the proliferation of sub
statutes was the state1s attempt to achieve a balance between
these two concerns. It also proves that the proliferation of
sub-statutes served a dual purpose of securing the husband's
right to protect the conjugal union from violation, and of
confirming the husband's duty to keep the family intact.
While the Statute stipulated the conditions for a justifiable
killing of the adulterous couple, the sub-statutes stipulated
differentiated punishments for variant circumstances in order
to define the power of the husband in catching adultery.
However, the husband also had to choose between justifiable
fury and family dissolution.
It would make sense to say that this repeated emphasis on
legal privilege could be understood as heavy reliance on the
family for the upholding of sexual morality rather than a
158
reaction to the prevalence of private justice. It would make
even more sense to understand this unwavering legal principle
in relation to the mild punishment prescribed by the Statute
of Sexual Violations. The huge discrepancy between the legal
immunity granted to the husband for a justifiable killing of
the adulterous couple and the mild punishment prescribed for
simple adultery could be seen as the creation of a wide
spectrum of differentiated punishments for illicit sex. It
could be understood as a space in which the judicial officials
negotiated over the most appropriate punishment to fit each
situation.
159
Endnotes
1. The 36 sub-statutes of the Statute of Killing a Wife's

Paramour ranked after the 61 sub-statutes of the Statute of
Jurisdiction Exercised by Tribunals of Different Levels
under the Section on Trial and Imprisonment, the 49 sub
statutes of the Statute of Penal Servitude, Life Exile and
Transportation under the Section on Terms and General
Principles, the 49 sub-statutes of the Statute of Robbery
Committed with Violence under the Section on Violence and
Theft, and the 44 sub-statutes of the Statute of Illegal
Emigration and Voyage under the Section on Frontier Guard
Posts.
2. Judicial officials faced many problems with cases of

killing the adulterous couple by the husband during the
apprehension of adultery. The major problem was to prove an
adulterous relationship in granting legal immunity to the
(Mingxing guanj ian lu) , Mu Han ridiculed the most irrational

way of proving adultery. That is, if one wanted to know
whether the alleged adulterous couple who was killed by the
husband had in fact had an illicit affair, one could put their
heads into a huge container of water. If it happened that the
two heads faced each other while floating on the water, it was
an indicator of their adulterous relationship (Mu, 1848/1989,
vol 52: 628) .
A treatise in the 1847 edition of the Handbook- nn
Forensic Medicine (Xiyuan lu bianzheng) also warned the
magistrate not to believe the unconfirmed association between
a greenish-black pelvic bone of a woman and her promiscuity.
The treatise discussed the so-called xiumi gu (bone of shame)
mentioned in the bone section (jiangu ge) and the section on
kicking as the cause of death (tishang zhisi). At the end,
the author concurred with the opinion of experienced coroners
like He Fa from Panyu and Li Ming from Gaoyao in Guangdong
Province about the non-existence of the so-called bone of
shame (Wang, 1847: juan 6).
3. Meijer's translation of this Ming statute and its single

sub-statute is based on a Taiwan reprint of a 1889 copy of the
1585 edition of the Ming Code entitled Minglii jijie full. I
give a direct quote of Meijer's translation because I find his
160
translation close to the original text. In order to make sure
that there was only one single sub-statute appended to this
statute, I have checked with the Mingdai luli huibian (Huang
Zhangjian ed., Taipei, 1979) which provides identical
information to that of Minglii jijie full, as cited in Meijer's
book. According to Huang, the sub-statute was enacted between
1501 and the end of the dynasty (Huang, 1979: 61). That is,
there was only one single sub-statute appended to the Statute
of Killing a Wife's Paramour in Ming times.
4. Eighteen out of these thirty-six sub-statutes dealt with

the various circumstances about unauthorized killings in the
apprehension of the adulterous couple.
5. The Nine Ministries (jiuqing) are the chief officials from

the Six Boards, the Court of Revision (Dalisi) , the Censorate
(Duchayuan) , and the Office of Transmission (Tongzhengshi si)
(Bodde, 1964: 137).
6. The first Qing Code was promulgated in the third year of

the Shunzhi reign (1646). Lawmaking efforts continued during
the Kangxi reign with the compilation of the Xianxing zeli
(operative sub-statutes) (1668) and the drafting of a new code
(1707) , but no new edition of the code was promulgated. A new
code, however, was promulgated in the third year of the
Yongzheng reign (1726) (Zheng, 1995: 311-328). That is, the
eleven sub-statutes appended to the Statute of Killing a
Wife's Paramour in 1776 should have come from the previous
work of the Shunzhi and Kangxi codifiers. It was also
possible that these codifiers institutionalized some of the
legal practices from the late Ming. However, with regard to
changes in the codified law, the number of sub-statutes was
increased from one in Ming time to eleven in 1726.
7. A sub-statute of 1802 elaborated the meaning of the notion

of immediacy (dengshi) . It stipulated that for the killing of
the adulterous couple by the husband and his relatives within
the mourning degrees, the notion of "dengshi" would be applied
when the adulterous couple were caught at the site of adultery
and were instantly beaten to death in a fit of fury; the
notion of non-immediacy "fei dengshi" would be applied when
the adulterous couple were not caught at the site of adultery
or were beaten to death sometime after they were caught at the
161
site of adultery (Anyu, 83: 32).
8. Huang Zhangjian ed., Mingdai lull huibian (Consp.e.c.t.us._af

the_Ming_Code). The Institute of History and Philosophy,
Academia Sinica, Taipei, 1979: 803.
9. Meijer translates dangguan jiamai to mean that the woman

was to be sold to another person in front of the magistrate
(p.48). George Thomas Staunton (1966) has translated "dangguan
jiamai" as "sold in marriage"/ "the money paid for her shall
be a forfeiture to government" (p.307). William C. Jones
(1994) translates "dangguan jiamai" as "the official having
jurisdiction will remarry or sell her and the price will be
forfeit to the government" (p.271). Matthew Harvey Sommer
(1994) suggests "dangguan" meant "under official auspice",
"jiamai" meant that a wife whose "divorce was sold." That
meant that the wife was divorced by the husband and sold under
official auspice. Practically, she was sent by the magistrate
to the official matchmaker (guan meiren) who was responsible
for recruiting the prospective husband and negotiating an
appropriate "body price (shenjia) (p.395-398). Taking
together the various translations of the phrase, I conclude
that the notion of "dangguan" was devised as opposed to
"suifu". Instead of leaving it up to the husband's discretion
as to the divorce and sale of his adulterous wife, the
magistrate would be obliged to make sure the transaction had
actually taken place. This arrangement was meant to
institutionalize the mandatory sale of the adulterous wife.
10. Legislative history also saw a more severe punishment for

the adulterer for his violation of the sanctity and integrity
of the family. For example, for the premeditated murder of
the husband by the adulterer, the punishment prescribed by the
statute was decapitation after the assizes. It was increased
to immediate decapitation by the 1741 sub-statute for his
initiative to plot a premeditated murder of the husband or the
abduction of the adulterous woman and the sale of her children
as slaves after the murder (Anyu, 56: 28/ DLCY: 285-06:788).
It was further increased to immediate decapitation and an
exposure of the head by a newly-enacted sub-statute of 1815
for the adulterer's murder of the husband and his senior
relatives within the first mourning degree (Anyu, 83: 43/ DLCY
285-19:798) .
162
11. When I examined the Category of Marriage and Adultery from
the Board of Punishment in the First Historical Archives, I
found that the husband usually beat the adulterous wife and
then locked her up in order to stop her from seeing the
adulterer again. The husband found private means to punish
the adulterous couple after the discovery of adultery and
wanted to keep the family intact because the price of family
dissolution was too high to pay. Meijer also mentions that
there was a great number of cases in which the husband did not
resort to the "obligation" to kill.
12. For Meijer, the relaxation of conditions for legal

immunity granted to the killing of the adulterous couple by
the husband meant a loose interpretation of the site of
adultery (jiansuo) in the adjudication of cases, particularly
during the 18th century. In several leading cases, the site
of adultery was interpreted as the place where the adulterous
couple exchanged their affection through chatting and laughing
if they had long been proven to have had an affair (Meijer,
1991: 57-60) .
For Meijer, the romanticization or the glorification of
the description of the discovery of the adulterous couple by
the
husband meant the development of the term "in a moment of
fury" (yi shi qifen) into another term "righteous anger"
(yifen). This shift in language meant that the state assigned
a "noble motive" to the husband for the apprehension and the
killing of the adulterous couple (55-56).
163
CHAPTER FIVE
X I A O B A I C A I A N D Y A N G NAIWU: T H E M E A N I N G S O F FEMALE
CRIMINALITY
A recurring theme in the previous chapters has been a
heightened state concern about the fabrication of an adultery
case to damage the reputation of one's enemies or to cover up
a malicious reason for a merciless killing. This chapter is
a case study of the most celebrated instance of a fabricated
adultery-homicide in Qing China. It occurred within the
context of the post-Taiping era and lasted from 1874 to 1877.
According to the final sentence meted out during the grand
retrial in Beijing, the false accusation was the result of
judicial misconduct rather than malicious intent on the part
of the involved parties. The story of injustice about a
would-be official named Yang Naiwu was interwoven with a story
of promiscuity and adultery involving an exceptional beauty of
lowly origins nicknamed Xiaobaicai.1
This case has been meticulously studied by William P.
Alford 2 and Madeleine Yue Dong 3. The former situates the
case in the legal system in order to illuminate the nature of
the criminal justice process. The latter adopts a social
perspective in an effort to map out the intricate
164
relationships in the communication between different levels of
communities. Building on these two previous articles, this
chapter will use the Yang Naiwu and Xiaobaicai case to examine
the duality of the official notions of female criminality.
The Zhejiang gentry as well as county and provincial officials
saw the alleged adulteress-murderess nicknamed Xiaobaicai as
an all powerful temptress and they put her reputation on the
spot throughout the entire case. The Board of Punishments,
however, saw Xiaobaicai as a helpless victim of official
misconduct and in the end meted out a lighter sentence for her
than for Yang.
In contrast to this duality in official versions, popular
literature provided the space in which meanings of female
criminality were created by its authors and the audience.
While the press condemned Xiaobaicai for falsely testifying
against Yang Naiwu, the fictional accounts saw her as a
conscientious woman who was torn by deep remorse for the
injustice done to Yang Naiwu. While the Zhejiang gentry
undermined the reputation of Xiaobaicai, the fictional
accounts saw the son of the local magistrate as the culprit
who first seduced Xiaobaicai and then contrived a false
accusation to cover up his premeditated murder of Xiaobaicai's
165
husband. While the Board of Punishments saw Xiaobaicai as a
helpless victim of official misconduct, the popular version
sympathized with her as a helpless victim of the sexual
advances of the son of the local magistrate. All in all, this
chapter demonstrates that the popular version deals with the
intense emotions of an adulterous woman who faced with moral
dilemmas at the crossroads of her life.
A N UNPRECEDENTED CASE
The Yang Naiwu and Xiaobaicai case was one of the most
celebrated legal cases in Qing China.4 It was a famous
miscarriage of justice in the years from 1874 to 1877 in a
small town called Yuhang near Hangzhou in Zhej iang province.
The alleged crime was a premeditated murder by poisoning of a
husband by an adulterous couple. The alleged adulterer-
murderer Yang Naiwu was a juren degree-holder and a would-be
official. He had passed the provincial level of the civil
service examination and was preparing for the metropolitan
examination. He was married and was the former landlord of
the alleged adulteress-murderess, Xiaobaicai, and her husband,
Ge Pinlian. Xiaobaicai (Ge Bi Shi) was an exceptional beauty
166
with a plump figure and fine skin, and was therefore given the
nickname Xiaobaicai, which literally means "little cabbage".
Her husband, Ge Pinlian, was an unpleasant-looking, lowly
bean-curd shop attendant. Yang Naiwu and Xiaobaicai were
accused of the premeditated murder of Ge Pinlian after G e 's
mother filed a lawsuit reporting her son's sudden and
suspicious death. During the trial at the county level,
Xiaobaicai first admitted to adultery with Yang and her
complicity in Yang's plot to poison Ge Pinlian. Yang later
also admitted to the charge and signed a criminal confession
prepared by judicial officials. The magistrate proposed to
sentence Xiaobaicai to a punishment of death by slicing and
Yang Naiwu to a punishment of beheading.
Adjudication of this adultery-murder developed into a
celebrated case, partly because it was unusual for this type
of case to be appealed (shangkong) several times at the
provincial level, and partly because the initial verdict
finally was overturned in a grand retrial in Beijing as a
result of appeals to the capital (jingkongj . A re-examination
of the corpse by the coroner in the retrial at the capital
yielded shocking new evidence: the husband had died of natural
causes rather than arsenic poisoning. The case was closed
167
with a repudiation of the original sentence of death for the
adulterous couple and a sentence which removed the officials
who had so misjudged the case from office.
In an English newspaper which first reported this case
before it was granted a grand retrial at the capital, an
editorial said that "the present case is exciting" and was
interested to see whether this case would be "appealed,
referred, confirmed and dropped as in nine hundred and ninety-
nine other cases" (North China Daily News, 14 Feb 1876).
For the purpose of re-examining the primacy of the legal
system for state control, the Yang Naiwu and Xiaobaicai case
neatly shows that justice could be eventually achieved for an
individual. Alford examines the case to study the intended
purposes and actual workings of the legal system and to
demonstrate that it was a complex institution rather than a
monolithic aggregation of power by the state (Alford, 1984:
1185). Alford's article also shows how the criminal justice
process was affected by the intensification of long-standing
tensions between the provincial and the central governments
after the 14-year long Taiping Rebellion (1851-1864) (Alford,
1984: 1233-1234) .
168
The tensions between the Zhejiang officials and the
central government were particularly evident in the course of
the reinvestigations and retrials (Alford, 1984: 1238-1239).
In 1876, when censors memorialized the throne for a grand
retrial by the Board of Punishments in the capital, they
accused the Zhejiang officials of judicial misbehaviour. In
reference to the sudden death of one of the most important
witnesses, a pharmacist named Qian, censor Li Ciming 5 wrote:
Now Qian Baosheng (pharmacist) is dead. He has

hanged himself, that is what I heard. Since the
Director of Studies of Zhejiang Province (xuezheng)
would have asked the pharmacist to be on the
witness stand at the grand retrial, pharmacist Qian
might have been afraid of being reproved by his
neighbours for not telling the truth. However,
telling the truth would have invited torture and
the formidable wickedness of the officials.
Therefore he rushed to take his own life... Oh
heaven! The Zhejiang Governor, the Director of
Studies of Zhejiang Province, the Hangzhou Prefect,
the Ningbo Prefect, the Yuhang Magistrate and his
son have wronged against heaven! Ghosts and
deities should never allow these misbehaving
officials to run away from judgement (Li, 1963:
4498-4499)!
Alarmed by the danger posed by the rise of regional
interests, the central government felt an urgency to reiterate
its supreme authority over the provinces. Therefore, severe
criticism of foot-dragging and misconduct by local officials
169
also permeated censor Wang Xin's memorial after the final
repudiation of the original verdict in Beijing.
Magistrate Liu could have no way to deny the charge

of using a case of natural death to do wrong
against the innocent for a heinous crime. Governor
Yang and Director of Studies Wu are prominent
officials..., yet they dared to be conceited as
such. ... They covered up the wrongs and the
inconsistency of the testimonies to fool His
Majesty. ..Governor Yang delayed sending off all the
necessary witnesses to Beijing.... Do they still
have the central government (chaoting) on their
mind?... Isn't it because the Empress Dowager is
now the regent and the Emperor is still a minor
that they disobeyed the law and fooled the
rulers?... The central government must not tolerate
this in any way (Zhu, 1958: 346).
As Alford elaborates in his article, these political
influences steered the course of this particular case in the
criminal justice process. Alford's legal concerns are
grounded in a substantial documentation of the political
climate in which the case developed (Alford, 1984: 1233).
Rankin characterized this rise of regional power as part of
the post-Taiping era which witnessed a decisive shift in the
balance between the state and elite society (Rankin, 1986:
92) . This gradual breakdown of the state-societal balance
resulting from massive internal rebellion and mounting foreign
intrusion in the mid-nineteenth century also provides the
170
background for Dong's further elaboration of the relationship
between private networks and the official world in the
unrelenting efforts to achieve a grand retrial at the capital
(Dong, 1993: 101).
Against this background of elite-led concern with
national politics and expansion of the public sphere, the
formation of an alternative voice to the government's in
Western-style newspapers 6 marked a new element in modern
Chinese history, and the expression of public opinion through
the press gathered momentum, particularly in the 1900s
(Rankin, 1986: 92).
This emerging role of public opinion in the Westem-style
newspapers affected the development of the Yang Naiwu and
Xiaobaicai case. Although these newspapers were established
by foreigners, they, like Shanghai xinbao and Shenbao, were
Chinese-language newspapers. The foreigners used these
Westem-style Chinese-language newspapers to increase the
circulation of commercial information and current affairs.
The Shenbao 7, established by British merchants Ernest Major
and C. Woodward in 1872, was particularly active in the
coverage of the case. It was believed that the foreigners
used this case to voice their grievances against the Chinese
171
legal system and thus justify the arrangement of consulate
jurisdiction (Cao, 1991: 81) .
My discussion of Shenbao's coverage of the Xiaobaicai
case is situated in the larger context of the emergence in
China of modem-style newspapers and the growing autonomy of
the public sphere. The emergence of modem-style daily
newspapers with growing circulation and sharp sensitivities
towards current issues occurred in the big cities in the
context of post-Taiping reconstruction. Right from the
founding of Shenbao, a recurrent theme in the editorials was
its break from the old-style newspapers such as the Peking
Gazette (Jingbao), which primarily published memorials and
edicts. These old-style newspapers were criticized for
reporting news only from the central government (chaoting) and
not from the community (liili) (Liang, 1984: 36). This new
ideology was the formation of a platform that allowed the
expression of public opinion about government policies, and it
became a vehicle for channelling opinions from below to the
government above. Shenbao's discussion of the Xiaobaicai case
went on while other current issues like railway construction,
the anti-footbinding campaign, and discriminatory treatment of
Chinese by foreigners were vigorously debated. Rapid growth
172
in the paper's nation-wide circulation from 600 issues in 1872
to 2000 issues in 1876 left scholar-officials the Shenbao's
target readership, but the paper's impact was nonetheless
larger than those figures alone would suggest (Liang, 1984:
36-39).
This non-official voice was appreciated and echoed by
Westem-style English-language newspapers such as the North
China Daily News. In the editorial that summarized the final
sentence at the capital, the North China Daily News
"congratulated the Beijing government upon the proof of
energy" in "establishing a truthful record of the facts and
meting out penalties which are adequate and fitting" (North
China Daily News, 14 April 1877) . The government was
compelled to re-examine the case, partly as a result of the
persistence demonstrated by the appellants, and partly as a
result of the fact that the case "was freely commented on in
the columns of Shunpao (Shenbao) which deserves no small share
of credit for throwing light on the true circumstances" (North
China Daily News, 14 April 1877).
The story of this celebrated case was adapted into
rhythmic narration (tand) in the late Qing. This performing
art was particularly popular in the Jiangnan region and
173
usually took place in tea-houses. I saw the Guangxu (1874-
1908) edition of A Complete Collection of the Yang Naiwu Case
(Yang Naiwu gong'an quanji) by the Tingyulou Zhuren and The
Sequel of the Yang Naiwu Case (Yang Naiwu qi'an houji) by the
Shanghai Publishing House in the catalogue at the National
Library of China in Beijing. I was not able to have the
access to these materials because the librarians could not
locate them. However, I was able to study the contemporary
adaptation of a late Qing tanci script by Li Wenbin.
Apart from tanci in Qing times, the story was made into
different forms of popular literature. For example, a short
story entitled Yang Naiwu was written in 1934;8 an eleven-
scene pingju (one kind of a drama in North China) was
published in 1959 in Beijing; a book entitled A True Account
Xiaobaicai anjian zhenxiang) was written in 1964 and revised
in 1984;9 a fourteen-episode Shanghai television drama was
made in 1987; and a six-episode Taiwanese television drama
came out in 1993. The case has become a contemporary legend
among Chinese in Mainland China, Taiwan and Hong Kong, as is
shown by its presence in popular literature such as folktales,
short stories, novels, plays, full-length feature films,
174
Peking opera, TV dramas and rhythmic narration. I will focus
on the two-volume tanci script, based on Li Wenbin's late Qing
version and still performed by tanci artists Xing Yanchun and
Xing Yanzhi today,10 for this chapter in order to show how the
popularized version of the legal case differed from the
official version. People were vitally interested in the case
and found their own space to give different meanings to it.
T H E CORPSE
The original verdict of premeditated murder of Ge Pinlian
by the adulterous couple, Yang Naiwu and Xiaobaicai, was
repudiated in the grand retrial at the capital on the grounds
of a re-examination of the corpse by the coroner. Even though
the flesh had decomposed during the several years of
petitions, the coroner could tell the actual cause of death
from the coloration of the bones. The bones were a natural
yellow-white hue rather than the unusual greenish-black colour
associated with arsenic poisoning. According to the Handbook
on Forensic Medicine (Xiyuan lu) , the husband therefore had
died of natural causes rather than arsenic poisoning. Yang
Naiwu and Xiaobaicai were acquitted of premeditated murder and
175
the judicial officials at the magisterial and provincial
levels were convicted of official misconduct.
The North China Daily News reported the result of the
autopsy in detail:
We find in the remains of Koh Pin-lien (Ge Pinlian)

that there is no reddish exfoliation on the surface
of the skull; that the upper and lower bones of the
mouth are of a yellow-white colour. It is only in
the neighbourhood of the sternum that a darkish-
yellow is seen, which is due to the infiltration of
the blood; throughout the remainder of the body the
bones, of all sizes, are of a yellowish-white,
showing no signs of the effect of poison, and one
verdict is that death was caused by disease and not
by poison.
It went on to welcome the repudiation of the original verdict
but commented that "there seems no doubt that their (the
presiding judges in the grand trial) decision was perfectly
right; but very certainly their reasons are amusingly wrong"
(North China Daily News, 14 March 1877). This opinion was
informed by Western principles and practice of medical
jurisprudence, which suggested that the evidence of poisoning
was to be found in the decomposed remains of the stomach
rather than the coloration of the bones. Unlike the Handbook
on Forensic Medicine which suggested bones of a darkish-green
colour as the major proof of poisoning, the editor contended
that the very presence of a darkish-yellow colour on the
176
sternum would have been taken as a symptom of poison by
Western doctors.
The North China Daily News called into question the
validity of the autopsy related to this particular case as
well as the scientific grounds upon which the centuries-old
coroner manual was based. The Handbook on Forensic Medicine
was described as a "curious" book full of "twaddle." The
same editorial went into detail on how the Handbook prescribed
burning several pecks of hemp seed to produce oil from which
a human figure could be formed for the coroner to examine the
wounds of a dead person who had died several years previously.
Western and Westem-style Chinese-language newspapers
ridiculed not only Chinese medical jurisprudence but also the
use of torture in the Chinese legal system. Given its
disbelief in Chinese medical jurisprudence, the editorial
board of the North China Daily News attributed the major
source of official misconduct to the illegal use of torture to
extract a confession from the accused. In its very first
report on the case, the North China Daily News contended that
a false confession had been extracted from the accused by
torture. The editorial board prayed for a reversal of the
original verdict and, more importantly, called for the
177
abolition of torture (North China Daily News, 16 Feb 1876).
When the appeal for a retrial before the Board of Punishments
in the capital was approved, the North China Daily News
repeatedly lamented the injustice resulting from the use of
torture. It gave severe sores on Yang Naiwu's knees as the
reason for the long delay in transferring the accused to the
capital for a retrial. It also reported that five doctors
were called in to provide medical treatment for Yang and to
speed his recovery (North China Daily News, 7 March 1876).
Xiaobaicai was reported to have marks of illegal forms of
torture, inflicted by hot irons and scalding water (North
China Daily News, 2 June 1876). The torture that was applied
by the magistrate and later by officials at the provincial
level thus left enduring marks of cruel mistreatment on the
accused (North China Daily News, 14 April 1877).
Under the Qing law, all criminal indictments required the
confession of the accused. In adultery-related cases the
coroner's report and physical evidence only served as
"corroborating evidence". Chinese judicial officials were
fully aware of the difficulties in finding proof to support an
indictment as well as the problems of extracting a confession
from the accused. Apart from the state-endorsed restrictions
178
on the use of torture, magistrate's handbooks were permeated
with useful tips to effectively extract the truth from the
accused without resorting to the use of torture. The case of
Liu Heng is a perfect example.
In Three Chapters.on Personal Notes on the Study of the
Code (Dulu xinde sanjuan) , Liu Heng responded to the question
posed by his colleagues about how to extort a true confession
when the suspects utterly denied all the charges in some
serious cases. In his section on secretly listening in on the
conversation among the key witnesses of a serious case, Liu
Heng suggested that the best way would be to set up a
situation where the judicial officials could secretly listen
in on the conversation among the suspects. This could easily
be set up in the cell of the yamen. One or two trustworthy
subordinates would hide behind the cell before the wrongdoers
were brought into it. The magistrate would have purposely
started the interrogation, which was then interrupted by an
unexpected visit of important guests. The magistrate would
have left the cell to greet the guests and order the
attendants to lock up the cell until the interrogation could
be resumed. Being left alone, the suspects would most
certainly talk among themselves and it would not be difficult
179
to know what had actually happened. Another possible
arrangement would be to take the suspects to the Temple of the
City God (chenghuang miao) . Again a similar kind of set-up
could be arranged. Liu Heng had tried this method of
extracting confessions in the province of Guangdong. For the
case in which Liu Akang denied the charge of robbery, Liu Heng
took the main suspect and other accomplices to the Temple of
the City God and the truth came to light (Liu, 1869/1985: 11) .
In order to get around the use of torture, judicial
officials were encouraged to secretly listen in on
conversations between the accused. This method was taken as
an effective means and was incorporated into popular
literature. As will be discussed later in this chapter, the
most popularized episode of the tanci version of the Yang
Naiwu and Xiaobaicai case included the tapping of the true
confession in an enclosed cell (Xing, 1989: 720-855).
THE TESTIMONY
In their article, "The Beginnings of Mass Culture:
Journalism and Fiction in the Late Ch'ing and Beyond," Leo Ou-
fan Lee and Andrew F. Nathan agree with the commonly-held
180
notion that the year 1895 (that is, the Sino-Japanese War)
marked a watershed in Chinese history as the beginning of a
great awakening. The growth of the periodical press
afterwards was unprecedented. The press almost became the
exclusive source of political information and new ideas for
ordinary people (Lee and Johnson, 1985: 361) . Given the fact
that the Yang and Xiaobaicai case took place almost two
decades before this phenomenal growth of the press, it would
be pushing the argument too far to say that the press
determined the outcome of the case. However, the press did
take an active role in terms of creating a public forum for
discussion and circulation of information.
Without going into details, William Alford acknowledges
the publicizing role of Shenbao in the Yang Naiwu case and
that Yang Naiwu's relationship with Shenbao continued after
the case was closed. According to Alford, Yang moved from
Yuhang to Shanghai and became an editor of Shenbao after the
injustice against him had been redressed (Alford, 1984: 1226).
This was, however, disputed by Yang's daughter. In an article
entitled "Remembering my Father Yang Naiwu's and Xiaobaicai's
Case of Miscarriage of Justice" in A Selected Collection of
Literary and Historical_Sources (Wenshi ziliao jingxuan), Yang
181
Jun said that her father had neither worked in Shanghai nor
worked for the Shenbao. She claimed that her father had
earned a living cultivating mulberries (Yang, 1982: 67).
Building on Alford's work, Dong uses the Shenbao to
examine how a m o d e m Chinese newspaper had created a public
voice. In passing, she mentions that the position of the
newspaper was manifested in gendered terms. She shows that
the so-called voice of the public was actually the voice of
Yang Naiwu, while Xiaobaicai was relegated to a voiceless
object of desire (Dong, 1993: 99-100).
I agree with Dong's notion of a "limited" public voice
created by the Shenbao. Given that, I would argue that the
Shenbao, though it claimed to stand for the public mind, in
general, and impartiality, in particular, is actually speaking
for Yang at the expense of Xiaobaicai. The newspaper blamed
Xiaobaicai for her false testimony against Yang Naiwu. Its
noble claim to impartiality, its loud cry for justice and its
undeniable insistence on the accuracy of proof put Yang and
Xiaobaicai in confrontational, antagonistic and oppositional
positions.
I will demonstrate here how a total reliance on testimony
to prove adultery put Xiaobaicai's credibility on the spot.
182
Since in Qing legal practice testimony was the principal means
used to prove adultery and to convict the alleged murderers in
this particular case, both the judicial officials and the
Shenbao were totally preoccupied with the possibility that
Xiaobaicai had given false testimony against Yang. They did
not seem to question the weight of the testimony of the
alleged adulteress in the adjudication of an adultery case.11
The more they clamoured for accuracy and legalism, the more
they were distracted from the core issue. On what grounds was
Xiaobaicai's false testimony against Yang validated? What
kind of physical evidence was needed to prove the crime of
adultery? Was the alleged adulteress' testimony sufficient to
constitute solid evidence for a sentence of guilty against the
alleged adulterer?
Justice for Yang Naiwu
In response to criticisms such as: "acting like a legal
advisor to Yang," "commenting on world affairs in a blind
folded manner," "condemning people in the world with an
exaggerated tone," and "prying into someone's else business"
(SB, 5 Feb 1876) , the Shenbao stood up to speak for the
impartiality of their own position in the coverage of the Yang
183
Naiwu case in 1876. The Shenbao distinguished itself from
those who launched the criticism; it regarded its critics as
"people of stupidity," "not differentiating the public and the
private," "not asking about right and wrong," and "not
understanding truth and falsehood" (SB, 5 Feb 1876).
The Shenbao reiterated its impartiality, emphasizing the
fact that its editors had not even had a chance to meet Yang.
"The newspaper has reported the case repeatedly because it has
been speaking on behalf of the public debate, with an
intention to talk the Zhejiang officials into an in-depth and
thorough investigation for a fair judgement" (SB, 5 Feb 1876) .
The Shenbao's claim to impartiality was also backed up by
their coverage of varied sources of opinions, including the
petitions for re-trials, letters to the editors, reports of
hearsay and officials' memorials to the emperor.
In addition to championing the cause of impartiality, the
Shenbao advocated the end of secretive, closed-door court
trials. Journalistic reports on trials and criminal
confessions could then permit public discussion. In 1875, the
paper discussed the astounding difference between public court
{gongtang) and private room (sishi) trials, calling for public
court-trials and building up public opinion on the case:
184
Since each local government office has its public
courtroom and the case at hand is serious as such,
why were re-trials conducted in private rooms when
each person should have testified publicly in
courtroom? ...Given the fact that it is impossible
to inquire into the testimony, we cannot help but
publish what we hear from others. Even though some
opinions might be slightly biased, this is an
outcome that the government officials should be
responsible for (SB, 12 Apr 1875).
Despite the fact that the Shenbao claimed to take an
impartial position, their agenda was to redress the injustice
done to Yang. Right after the final repudiation of the
original verdict, the Shenbao reconfirmed its position as "the
onlooker who sees most of the game" (dangjuzhe mi, pangguanzhe
qing) (SB, 7 Apr 1877). The implication is that they were in
a better position to judge. What did the Shenbao see that
those who took part did not?
Having seen letters from Zhejiang province and other
parts of the country unanimously raising the same demand for
justice, the Shenbao seconded the outcry by putting these
letters in print. It also went on to launch an open attack
upon the judges of the case. The newspaper questioned whether
the judicial officials had had this case on their consciences
(tianliang) and whether they had undertaken a thorough
investigation. The paper asked why the judicial officials
185
attempted to sully the reputation of the Shenbao with their
accusation of rumour mongering and why they tried to stop it
from reporting the case (SB, 7 Apr 1877) . All in all, the
Shenbao asserted the correctness of its own judgement about
Xiaobaicai's accusation of Yang.
Insistence on the Accuracy of Testimony
In 1876, the Shenbao published a petition submitted by a
group of Zhejiang gentry to the Censorate demanding a re-trial
of the Yang Naiwu case at the capital. The petition summed up
the authors' major doubts about the verdict and the
contradictions in the testimony. These Zhejiang natives
lobbied on the behalf of Yang and called for a more convincing
trial to clear up the doubt (SB, 4 Feb 1876).
The major doubt for them lay in the evidence given to
prove adultery. The initial testimony in the case file stated
that the adulterous couple was discovered by Ge on 22 Oct
1873. However, the re-trial confessions at the provincial
level stated that Yang neither visited Ge's house on that
particular day nor did Ge discover the adulterous relationship
right on the spot. Given this discrepancy, the Zhejiang
gentry pushed to clear the charge of adultery against Yang by
186
saying that Xiaobaicai had indeed dallied with a manner
(chaiyi) at the local government office named He Chunfang, but
not with Yang Naiwu (SB, 4 Feb 1876).
Second, the Zhejiang gentry argued that the charge of
premeditated murder rested primarily on the question of the
purchase of arsenic from the pharmacist. They argued that the
arsenic transaction recorded on the business book of the
pharmacist was fake. They then suggested that the local
magistrate had tricked the pharmacist into false testimony
inside his guest reception room instead of conducting formal
hearings in the courtroom so that he could have evidence to
prove the defendant's guilt. In order to avoid further
interrogation, the pharmacist signed the false testimony about
selling arsenic to Yang (SB, 4 Feb 1876) .
There were also problems with the date of the supposed
arsenic sale. The initial testimony of the pharmacist stated
that Yang stopped at the pharmacy en route from Hangzhou to
Yuhang after attending an adoption ceremony in his wife's
natal family. However, subsequent testimony mentioned a
different date. The Zhejiang gentry attributed the
discrepancy to a cover-up effort by the local magistrate: the
local magistrate purposely changed the date of the transaction
187
so that Yang could not benefit from exculpatory evidence (SB,
4 Feb 1876) .
The gentry's third doubt related to the charge of
adultery against Yang and the reputation of Xiaobaicai. Her
neighbours testified that she was often out during the day and
that they often heard her door being opened in the middle of
the night. In response, Yang suggested that this behaviour of
Xiaobaicai's was associated with the son of the local
magistrate rather than him. The Zhejiang gentry further
argued that the judicial officials should have checked with
Xiaobaicai 1s neighbours to locate those in Xiaobaicai1s social
circle. In order to put the blame for Yang's ordeal on
Xiaobaicai, the Zhej iang gentry even traced Xiaobaicai's
notoriety back to the days when Xiaobaicai and Ge rented a
room in Yang's house. At that time, Yang had heaped
reproaches upon Xiaobaicai for her misbehaviour and had kicked
the couple out of his house (SB, 4 Feb 1876) .
Also in doubt were some major contradictions in other
testimony against Yang. The Zhejiang gentry looked closely at
the inconsistency in the testimony given by Ge's mother.
According to the original case record, she had filed for a
legal inquiry into the death of her son because she was
188
increasingly suspicious of it being a case of murder,
especially after Xiaobaicai could not answer her questions
straightforwardly. However, later in the trial, the original
petition by Ge's mother was given a new twist. That is,
before the litigation, interrogation of Xiaobaicai by Ge's
mother had already produced a confession about her complicity
in Yang's plan to poison Ge. The Zhejiang gentry had sharp
words about the danger of confusing a shaky suspicion with a
firm accusation (SB, 4 Feb 1876).
Credibility of Xiaobaicai's Testimony
Evidently, these Zhejiang gentry thought that the
officials did not scrutinize the accuracy of the testimony
closely enough. Like those officials, these Zhejiang gentry
thought that the testimony was crucial to the adjudication of
the case. When the Director of Studies of Zhejiang province,
Hu Ruilan, defended his own judgement, he also stressed that
the proof lay in the confessions of the alleged criminals
because adultery-instigated murder of one's husband by
poisoning was so highly secret that it could hardly be
witnessed by others. Wu argued that since Xiaobaicai had
testified against Yang at the county hearing and Yang had
189
confessed to purchasing arsenic from the pharmacist in the
prefectural hearing, these confessions constituted solid
grounds for a guilty sentence (SB, 25 Mar 1876).
I would argue that one very important question was left
out altogether, that is, what were the specific grounds for
making a charge of adultery? It seemed that only Yang's wife
had asked the right question. To refute Xiaobaicai1s
confession of adultery with Yang, Yang's wife pressed the
judicial officials for a stronger cross examination of
Xiaobaicai. Yang's wife suggested that the most convincing
evidence for adultery would be Xiaobaicai's knowledge of
Yang's body. In her petition, Yang's wife argued that if
Xiaobaicai really had had an adulterous relationship with her
husband, she must have known about the hidden birth mark on
his body. To her, the easiest way to check the validity of
the accusation was to have an open, court-room interrogation
of Xiaobaicai on this crucial question. However, her request
was never seriously entertained (SB, 8 Dec 1874).
As the space that the Shehbao devoted to developments in
the case grew, the debate became structured primarily as a
contest between the judicial officials on one hand and
supporters for a fair trial on the other. In order to achieve
190
a reversal of the original verdict against Yang, the petitions
for re-trial spoke against Xiaobaicai. They all emphasized
Xiaobaicai *s notorious reputation and hinted at the existence
of two other possible confederate adulterer-murderers.12
Like the Zhejiang gentry, Yang's wife characterized
Xiaobaicai as an unconscionable and vengeful woman in her 1874
petition. According to her, Xiaobaicai had been nursing a
hatred against Yang while she was a tenant in his house. In
the first place, when Xiaobaicai sought to repudiate her
betrothal to Ge {laihun) , she resented Yang's mediation in the
dispute. Then, Xiaobaicai disliked staying home (bu'an yu
shi) and behaved in a strange manner (zongji keyi) . Yang
reproached Xiaobaicai for her illicit relationship with a
runner at the local government office named He Chunfang.
Xiaobaicai became increasingly angry with Yang. At last,
Xiaobaicai raged at Yang for having terminated her lease and
left after severely complaining (SB, 7 Dec 1874).
Twice within the three-month period of the grand re-trial
in Beijing in 1876, the Shenbao joined those pleading for
Yang's innocence and further discredited Xiaobaicai's
reputation. The newspaper likened Xiaobaicai's "attack" on
Yang's reputation to an arrow shot through a bull's eye (fushi
191
yong yi shedi ye) . It demanded that she be held responsible
for the injustice done to Yang (SB, 18 Apr 1876, SB, 24 Jun
1876) . Her credibility was further undermined by her alleged
history of promiscuity and adultery. It was reported that
since Xiaobaicai saw herself as beautiful as a phoenix, and
was bitter about marrying beneath her to a man as ugly as a
crow (ziyuan caifeng suiya) , she lost her heart to someone
else (qing you suoshu) . For a long time she had been
notorious for her improper behaviour and multiple paramours
(sujin buduan, jian shen huo) (SB, 18 Apr 1876, SB, 24 Jun
1876).
In a feature article based on unverified sources and
entitled "The Hearsay About the Hearing of the Yuhang Case by
the Board of Punishments", Xiaobaicai was reported to have
admitted in her court appearance to having had affairs with
several dozens of men and to have had problems with naming
them all (wo suosizhe, shi you shushi ren, wuke meiju) .
During an interrogation on the cause of her husband's death,
Xiaobaicai said that blood was coming out of her husband's
mouth and she really had no idea whether he had died of
illness or poisoning. When she was asked about the
premeditated poisoning by Yang Naiwu, she seemed to be very
192
confused (SB, 22 May 1876) .
In another feature article, the Shenbao called Xiaobaicai
a local prostitute {tuji) of Yuhang and a personal
acquaintance (sishi) of Ge. Since the term "personal
acquaintance" suggests cohabitation without parental approval,
the clandestine marriage between Xiaobaicai and Ge did not
legally render them husband and wife. In other words,
Xiaobaicai was promiscuous and not lawfully wed to Ge after
all (SB, 27 Aug 1876) .
In the end, the charge of murder was declared null and
void upon the re-examination of the corpse. Although the
double charges of adultery and premeditated murder were both
dropped automatically, the above section has shown that the
Shenbao had already popularized an image of Xiaobaicai as an
adulterous wife and an image of Yang Naiwu as an innocent
victim. Unlike the Shenbao, which blamed Xiaobaicai for
false accusation of Yang Naiwu, the Board of Punishments
absolved Xiaobaicai from a charge of false accusation against
the innocent Yang Naiwu but punished Yang Naiwu for his false
accusation of the innocent He Chunfang.
Here my argument breaks from William Alford's work, which
suggests that the Board of Punishments gave equal attention to
193
Xiaobaicai's two lesser transgressions. One was the false
accusation against Yang "under duress produced by torture."
The other was her "acting in a manner inappropriate for a
married woman" (Alford, 1984: 1225). According to my reading
of the case file, the Board absolved Xiaobaicai from a charge
of false accusation under duress against the innocent Yang,
and saw her instead as a victim of official misconduct. The
Board indeed attributed Xiaobaicai's perjured testimony
against Yang to a woman in fear of torture by abusive
officials. Rather than blaming Xiaobaicai for the false
accusation, the Board was bothered only by her violation of
the so-called womanly way (fudao) . In their view, during the
time that Xiaobaicai and her husband were tenants who shared
the same roof with Yang, Xiaobaicai was not sensitive enough
to stop rumours and suspicions from circulating about her
conduct. Though the Board reprimanded Xiaobaicai's violation
of the so-called womanly way, they did distinguish an
unscrupulous manner from actual adultery, which would lead to
a prescribed punishment of 100 blows and one-month cangue-
wearing. Xiaobaicai was not supposed to be punished severely
(buying zhonglu) and therefore was only sentenced to 80 blows
(XAHL: 5145) .
194
The Board of Punishments was comparatively harsher
towards Yang Naiwu, sentencing him to a heavier punishment of
100 blows and the revocation of his juren degree. The Board
argued that while adultery was not a provable crime for Yang
Naiwu, it was still improper for him to have even had meals
together with Xiaobaicai at the same table and to have taught
her the classics. Moreover, in order to free himself from the
charge of adultery, Yang Naiwu had testified against He
Chunfang for dallying with Xiaobaicai in Ge's place. Yang,
therefore, was punished for false accusation of the innocent
(XAHL: 5145).
The Board of Punishments did not explain the reasons for
its final judgement on the transgression by Yang Naiwu and
Xiaobaicai, and for its preferential treatment of Xiaobaicai
over Yang. This raises the question of how the state treated
female criminality in the context of the official ideology of
female virtue. What was the so-called womanly way? Why was
a violation of the so-called womanly way regarded as a more
serious transgression than a false accusation of an innocent
person? Given the fact that both Yang Naiwu and Xiaobaicai
had confessed under duress produced by torture in the
courtroom, why did the Board of Punishments absolve Xiaobaicai
195
from the charge of false accusation, but punished Yang Naiwu
for that same crime?
The Board framed the reversal of the original verdict
against Yang and Xiaobaicai as the righting of a grave
injustice. Its decision is included in the sub-section on
Failing to Carry out an Accurate Examination of a Corpse
(jianyan shishang bu yi shi) under the section on Trial and
Punishment (duanyu) in A New Supplement to the Conspectus of
Penal Cases. Above all, what permeated the case file was the
sharply-worded reprimand of the rashness of the officials in
the execution of their duties. The Board of Punishments re
asserted the supervisory role of superior officials over
subordinate officials under their jurisdiction, the compelling
need for a detailed investigation of each case, the overriding
importance of having solid evidence before laying a charge,
and prudence in the application of torture. The closing
remarks of the case file epitomize the official rebuke:
For those serious crimes related to human

lives, a fair accusation could only be possible
with a thorough investigation by each official. In
the case of Ge's death, the cover-ups of failed
investigations by the magistrate and the others
almost sent two human lives down the tragic road to
death. This is indeed beyond human sentiment and
reason (XAHL: 5146-5147).
196
In order to underscore the seriousness of this kind of
official misconduct, the Board of Punishments emphasized the
need for severe punishment. All the officials who had taken
part in the miscarriage of justice were removed from office.
The chief investigator, Magistrate Liu, was found to be
particularly liable. Not only was he sentenced to permanent
exile in the far northeastern region of Heilongjiang, he was
also denied the privilege of commuting the punishment into
monetary compensation (XAHL: 5144; Alford, 1984: 1222).
In its representation of the adjudication of an
accusation of official transgression, the legal narrative told
the story of how justice finally reigned and the unjust
accusation and charges were redressed for Yang and Xiaobaicai.
It thus confirmed that the actual operation of the criminal
justice system indeed could reach its intended end. But it is
not particularly helpful in our reaching an understanding of
the Board's final judgement of the transgression by Yang Naiwu
and Xiaobaicai and the preferential treatment for Xiaobaicai
over Yang. The discussion in chapter two is illuminative in
this regard. The study of the magistrate handbooks
demonstrates that the official officials exercised extreme
caution with the adjudication of adultery cases because they
197
saw the need not to damage a woman's reputation in cases of
illicit sex. As compared to the provable crime of false
accusation, Xiaobaicai's violation of the so-called womanly
way was a less serious crime and therefore deserved a lesser
punishment.
T H E CELL
While the re-examination of the corpse and the
repudiation of the original charge of adultery-homicide
captured most of the press publicity, the late Qing tanci
version of the Yang Naiwu and Xiaobaicai case by Li Wenbin
gave a stunning inversion of the major findings of the grand
retrial in Beijing. The most distinctive feature is its
inclusion of a premeditated murder of Xiaobaicai's husband by
the son of the local magistrate, named Liu Zihe. The
seduction of Xiaobaicai and the poisoning of Xiaobaicai1s
husband by Liu Zihe is given as an explanation for the
injustice done to Yang by the local magistrate. In the tanci
version, Liu Zihe and the pharmacist were sentenced to the
death penalty, while Yang Naiwu and Xiaobaicai were not even
given bamboo blows for their lesser transgressions.
198
The same parallel can also be found in other forms of
popular literature-- in a 1934 short story entitled Yang
Naiwu, which was adapted from the tanci script by Li Bokang,
and in a 1959 script of a pingju opera on Yang Naiwu and
Xiaobaicai, which was published by the Academy of the Chinese
Pingju Opera in Beijing. In the preface to his A True Account
of tJhe Case of Yang Naiwu and Xiaobaicai, Wang Banshan
emphasizes that even after a lapse of a century, the story of
Yang Naiwu and Xiaobaicai has been popularized in the forms of
pseudo-histories, tanci, plays, movies and comic books because
people still like to listen, watch and talk about it (Wang,
1986: 1). I would argue that people love to listen, watch
and talk about the tanci version of the Yang Naiwu and
Xiaobaicai case because it is the inversion that appeals to
people, reflecting as it does the ambiguities they face in
their own lives. That is to say, the popular perception of
adultery was informed by the difficulties that people faced in
their daily moral practices.
In these fictional accounts, an inversion of the findings
of the grand retrial came to the surface when Yang Naiwu and
Xiaobaicai were given a chance to see each other on the
evening before the death sentence was carried out. The
199
encounter took place in an enclosed cell (mishi xianghui) . It
was a special arrangement by the Board of Punishments, which
wanted to learn the truth in this controversial case. As
mentioned in an earlier section of this chapter, judicial
officials saw the secret tapping of a conversation between the
accused as an effective way to extract true confessions. The
Board of Punishments provided Yang Naiwu and Xiaobaicai with
their last meal in an enclosed cell. As opposed to the case
record and journalistic reports, which gave full detail of how
the re-examination of the corpse took place publicly, the
tanci script portrayed how all the presiding judges of the
grand retrial secretly listened in on the conversation in a
room adjacent to the cell. The judges themselves were
desperate to find out the truth of the matter--Xiaobaicai's
husband was murdered by Liu Zihe rather than Yang Naiwu. At
the same time they were captured by the intensity of the
emotions that enveloped the falsely accused Yang Naiwu and the
guilt-stricken Xiaobaicai, who had wronged against Yang Naiwu.
Unlike the Shenbao, which questioned the credibility of
Xiaobaicai, tanci artists saw Xiaobaicai as a victim of
"oppressive feudal society" long before communist liberation.
According to contemporary tanci artists Xing Yanchun and Xing
200
Yanzhi, the tanci script of the Yang Naiwu and Xiaobaicai case
was put together by Li Wenbin on the eve of the 1911
Revolution. That was an unprecedented moment for the history
of China as well as for the history of tanci. For the first
time in history, tanci artists used a real case of miscarriage
of justice as a weapon to attack the feudal society (Xing,
1989: preface). Sympathy towards the vulnerability of
Xiaobaicai as an orphan, and as an exceptional beauty in times
of turbulent social upheaval and power abuse by local
officials, permeated the entire tanci script in general and
the encounter between Yang Naiwu and Xiaobaicai on the eve of
the death sentence in particular. In the words of Xiaobaicai,
"I know I am as beautiful as a blossoming flower and a bright
moon, but I also know that those men who chased after me were
womanizers. They treat me as if I were willows by the pond
and grass at the edge of the wall; I was tread on and violated
against my own will" (Xing, 1989: 749).
The very derogatory nickname of Xiaobaicai was clear
evidence of her vulnerability in the male gaze. According to
the yamen runner of the local magistrate, there were several
reasons why she was nicknamed "Little Cabbage." One, she was
gifted with a tiny figure, fine complexion and tender voice.
201
Second, she was fond of matching a green blouse with a white
skirt and this outfit made her look like a little cabbage.
Third and most importantly, she was so fresh looking as a
little cabbage that men wanted to put their hands on her
(Xing, 1989: 7). Xiaobaicai was totally helpless to resist
the forced sex by the magistrate's son. In the words of
Xiaobaicai, "He seduced me in a flattering manner, but I
rejected him with sharp words" (Xing, 1989: 843). Worse
still, her precarious situation was aggravated by isolation
from the outside world. In jail, Xiaobaicai was vulnerable to
the advances of the son of the magistrate and excessive
torture from judicial officials. Trapped in a double bind,
Xiaobaicai made the hard decision to give false testimony
against Yang Naiwu and was t o m by deep remorse.
The tanci script portrays Yang Naiwu as an upright and
conscientious man of letters, wronged by the criminal justice
process. He was depicted as a self-appointed legal craftsman
who articulated the grievances of the poor in his locality.
Yang Naiwu acted as a spokesman for the poor. He was known
for writing petitions and for negotiating with and launching
satirical attacks on the privileged. Yang's persistence in
fighting against social evils was increasingly considered a
202
nuisance to the local officials. Given this, the script
attributes the injustice visited upon Yang to a conspiracy of
vengeance by the local officials.
Since Yang Naiwu was a Confucian scholar who had been
taking care of Xiaobaicai as if she were his daughter and his
student, Xiaobaicai felt indebted to him. Yang Naiwu was most
ready to give a hand when Xiaobaicai and her husband had
problems in their life, particularly when they had no one to
turn to for help when Xiaobaicai's mother-in-law died and when
Xiaobaicai's husband was seriously ill (Xing, 1989: 787-788).
Knowing that she would see Yang Naiwu at the last meal in the
cell, Xiaobaicai was so overwhelmed with guilt that she was
reluctant to see him alone. She blamed herself as a hard
hearted woman (wuqing nu) and felt indebted to Yang Naiwu
(youqing ge) (Xing, 1989: 748) .
Sympathy toward Xiaobaicai was expressed through an
absence of condemnation for her promiscuity and
suggestibility. She was a victim in many ways. Her
adulterous relationship with Yang Naiwu was arranged by her
mother-in-law for money. For the one night stand, Yang Naiwu
in the tanci version uses the term wushui fuqi, which
literally means a husband-wife relationship as brief as water
203
vapour condensed from fog (Xing, 1989: 842). Her illicit sex
with Liu Zihe did not come from her free will but as a result
of an Aphrodite-induced enchantment. For that, Xiaobaicai in
the tanci version uses the term shishen which literally means
"a woman gives her body to a man" and here implies forced sex
(Xing, 1989: 843). The poisoning of Xiaobaicai's husband was
the premeditated plan of the magistrate's son with the
complicity of a pharmacist sumamed Qian (Xing, 1989: 844).
Xiaobaicai was talked into a false accusation against Yang
Naiwu by the wife of the local magistrate. Xiaobaicai was so
ignorant (yiqiao butong) that she believed all the lies told
by the magistrate's family. For example, when a juren scholar
like Yang Naiwu was convicted of a murder charge, he would
only be stripped of his academic title and sentenced to a
maximum penalty of a three-year imprisonment (Xing, 1989:
847) . When Yang Naiwu's sister risked her life to file a
petition for a grand retrial in the capital, Xiaobaicai was
told that it was the wife of the local magistrate who was
trying to rescue her (Xing, 1989: 899).
Despite the emotional and physical devastation from
excessive torture, Yang Naiwu could figure out the reasons for
the official misconduct of the local magistrate and the false
204
testimony of the pharmacist. He was filled with anger at
Xiaobaicai for repaying his kindness with ingratitude. In the
tanci script, he condemned her as a lousy (hunzhang) woman and
cursed her as a woman who deserved a short life (duanming)
(Xing, 1989: 732-733). At the last meal in the cell,
Xiaobaicai's touching account of her reasons for the false
accusation moved Yang Naiwu, who then forgave her. He
lamented how unfortunate for such an honest (zhonghou) and
innocent (tianzhen) woman to be trapped and brought so far
along the road to death. In so doing, the tanci version
excuses Xiaobaicai for her illicit sex and, more importantly,
defends her credibility.
Unlike the legal record, which included a sentence of
bamboo blows for the lesser transgressions committed by Yang
Naiwu and Xiaobaicai, the tanci script adopted a more lenient
attitude. Yang Naiwu was set free immediately after Liu Zihe
confessed to the crime of murder without undergoing any bamboo
blows at all (Xing, 1986: 924).
Xiaobaicai herself was finally fully acquitted with no
punishment. Given that the death of her husband resulted from
the adulterous relationship she had with Liu Zihe, Xiaobaicai
was supposed to share the guilt and be sentenced to death.
205
Ironically, it was her stunning beauty that rescued her from
death. Chun Qinwang (Prince Chun) , who was very taken with
her exceptional beauty, lamented her pending death in front of
the Empress Dowager. Driven partly by jealousy and partly by
curiosity, the Empress Dowager granted Xiaobaicai an imperial
audience. Xiaobaicai's beauty won her heart and she pardoned
the young woman for all her alleged crimes. She also provided
her with a considerable amount of cash to cover travelling
expenses and a gift of pearls. She put down her decision on
Xiaobaicai's palms with red ink, which read "legal immunity
and homecoming (mianzui cigui) ". This handwriting of the
Empress Dowager was itself an imperial edict and it gave
blessings to Xiaobaicai throughout her journey back home
(Xing, 1989: 927-928) .
* * * *
This chapter uses the Xiaobaicai's case to examine the
official as well as the popular perceptions of female
criminality. It allows us to re-think the thesis of the
integration of official ideology and popular culture. While
the idea of popular culture as a means of passive
206
indoctrination in state ideology has been challenged by
scholars of European history such as Carlo Ginzburg and
Michael Schudon, the Xiaobaicai case also demonstrates the
complex relationships between the official perception and the
popular perception of female criminality in the case of Qing
China.
As this chapter demonstrates, the popular perception of
female criminality was neither a neat inversion nor a
reproduction of the official perception. The differing
concerns of the officials from various levels of
administration gave rise to a duality in the official
perception of female criminality. Xiaobaicai was seen at one
and the same time as an all powerful temptress yet also as a
helpless victim of official misconduct. The popular version
also portrayed a vulnerable image of Xiaobaicai, but this
time, as a helpless victim of sexual advances of Liu Zihe.
More importantly, the popular version differed from the case
record and the press in that it gives a vivid and moving
portrayal of the complex emotions that were generated from the
love triangles between Xiaobaicai, her husband, Yang Naiwu and
Liu Zihe.
207
Dong argues in her article that rumours circulated among
the Yuhang local community when people merged the classic
example of the lustful adulterous wife in the Jin pingmei
(Golden Lotus) with the Xiaobaicai case. In so doing, the
local community circulated rumours which had a direct impact
on the adjudication of the case by judicial officials (Dong,
1995: 83-86). However, this chapter shows that the popular
version was neither preoccupied with the unchaste image of an
adulterous wife depicted in the Golden Lotus nor a constant
pursuit of legal justice and the righting of official
misconduct portrayed in the legal record and the press. This
study shows that the popular literature presented a
sympathetic image of an adulterous woman and her precarious
situation. While the legal case record and the press dealt
with the triumph of state control and criminal justice,
authors of the popular literature were trying to confront the
difficult moral dilemmas of ordinary people, dilemmas that had
no place in the official version of the case.
208
Endnotes
1. As noted by William Alford, not one of the many sources

mentions her full name. All instead refer to her as Mrs. Ge
(Ge Bi Shi) or, more typically as Xiaobaicai (Alford, 1984:
1197) .
2. This chapter is based in part on William Alford's article

"Of Arsenic and Old Laws: Looking Anew at Criminal Justice in
Late Imperial China" (Alford, William. 1984). The article was
the only academic work available in English on the Yang Naiwu
and Xiaobaicai case when I first researched this case in 1992.
Alford's amassing of varied primary sources and his meticulous
reconstruction of this celebrated Qing criminal case has laid
a solid groundwork for further research and analysis.
3. Madeleine Yue Dong's article "Communities and

Communication: A Study of the Case of Yang Naiwu, 1873-1877"
was published in 1995 (Dong, Madeleine. 1995). Dong's article
builds from the Alford groundwork but departs from his legal
approach. The three main sections--rumours and the local
community, Shenbao and the elite, and private networks and the
official world--deal with the sociological aspects of how
various modes of communication shaped the course of the case.
4. In The Seven Celebrated Cases of the Qing Dynasty (1990) ,

Zhou Lengqia characterizes these great cases as a product of
a rampantly corrupt officialdom under the Empress Dowager's
regency in the late Qing. Six out of the seven cases took
place in the late nineteenth century during the Tongzhi and
early Guangxu reigns. These celebrated cases were primarily
about injustices done to the innocent by arrogant and self-
serving officials. Some cases, such as the Yang Naiwu and
Xiaobaicai case, the assassin Zhang Hanxiang case, and the
Yang Yulou case, were put on the stage and thus gained
popularity. Like the Yang Naiwu and Xiaobaicai case, the Yang
Yulou case was reported and commented upon both by the Chinese
and English newspapers in the treaty ports. Like the Yang
209
Naiwu and Xiaobaicai case, the assassin Zhang Hanxiang case
gathered phenomenal local popular support in the battle for
justice. These examples show the formation of public opinion
and its pressure on the government in the late Qing.
5. For biographical details, see Hummel, 1975: 493.
6. Liang Jialu has traced the development of Western-style

newspapers in the treaty ports. The 1860s saw the beginning
of commercial newspapers run by foreign businessmen, who
further developed the Western-style newspapers started by
missionaries. The first modern Chinese newspaper in Shanghai
was Shanghai Xinbao (1861) . These modern, Western-style
Chinese newspapers were characterized by the following: the
replacement of the book format by the new tabloid (hakai,
eight-cut) newspaper format, back-to-back printing on white
paper, a fixed layout for each printed sheet with advertising
on the front page and news headlines preceding the report, and
the shift in production from a periodic to a daily basis
(Liang, 1984: 35) .
7. The full name of the Shenbao was the Shenjiang Xinbao,

which was the first modem daily newspaper in Shanghai written
in Chinese. The Shenbao was established in 1872 and went out
of business in 1949. Its 77 years made it the longest-running
newspaper in Shanghai before the establishment of the
Communist government (Liang, 1984: 36-39).
8. Zhu Shoupeng put out a collection of various accounts of

the Yang Naiwu case, which included government documents,
newspapers and Lingyanqiaozi's short story entitled Yang
Naiwu. Even though Zhu neither introduced Lingyanqiaozi nor
mentioned the year the book was written, the colloquial
language in general and the ideas used such as "true love,"
"marriage as a matter of one's personal happiness" gives the
impression that it was fiction from the 193 0s. That
impression was confirmed by a letter from the publishing
house. In reply to my inquiry for background information on
Yang Naiwu, the editor Yang Yunhui kindly sent me the preface
of the book. It says that this vernacular short story was
about a case that had happened sixty years ago in Yuhang.
210
Since we know that the Yang Naiwu case started in 1874, the
short story would have been written in 1934. More
importantly, the preface emphasizes the all-time popularity of
the case and how the case had been made into tanci in the late
Qing. Lingyanqiaozi's story was based on a tanci by Li
Bokang, who not only had a valuable possession in the form of
his version of the story but who won recognition in literary
circles through his famed narration of the Yang Naiwu case as
well.
9. Wang Banshan first wrote this piece in 1965 and revised it

in 1984. In the preface, Wang states that his goal is to
unravel the truth of the case as a corrective to the
"distortion" in the popular literature such as tanci, operas,
movies and comic books.
10. In the preface to the two-volume tanci script, Xing Yanchun

and Xing Yanzhi give a history of how they obtained the late
Qing tanci script by Li Wenbin. Li's script came out in 1911
and was performed by his two sons in the 1920s. A famous
tanci artist named Yan Xueting further popularized L i 1s script
in the 1930s. Xings' father traded one of his own tanci
scripts for Li's tanci script from Yan Xueting's disciples.
Despite the change in the language, it is safe to believe that
the plot of the contemporary version of Li's late Qing script
remained the same (Xing, 1989: preface: 2-4).
11. In Victorian Murderesses; A True History of Thirteen

Respectable .French. and_ English Women Accused Of Unspeakable
Crimes, Mary Hartman identifies a heightened concern for the
crime of adultery in the last decades of the nineteenth
century in Europe. She raises the question of the unequal
preoccupation of the judicial authority towards adultery and
murder during her discussion of the Florence Bravo case in
which an alleged adulteress-murderess ended up being acquitted
because of the absence of any material proof of adultery.
Since the prosecution was so absorbed with the discovery of
adultery, they failed to explore other possible motives for
murder and decided to drop the charge of murder altogether,
even after 23 days of testimony and a sensational court
appearance of the alleged murderess (Hartman, 1977: 140). For
211
the case of Qing China, testimony of the husband alone proved
to be sufficient evidence to lay a charge of adultery against
his wife.
12. The close relationship between a woman's lack of

credibility and her reputation of promiscuity was also
demonstrated in the famous case of Giovanni and Lusanna in
fifteenth-century Florence. In 1455, Lusanna (a new widow
from an artisan family) sought papal intervention to turn her
alleged clandestine marriage with Giovanni (a new groom who
had married the daughter of the most distinguished family in
Florence) into a legal covenant. In order to rebut the
alleged marriage, Giovanni's procurator and witness undermined
Lusanna1s credibility by attacking her promiscuity. They
claimed that there had been a sexual liaison rather than a
marital bond between Lusanna and Giovanni; that their adultery
had begun years before the death of Lusanna’s husband; that
Lusanna had had more than one lover during her first marriage
and had had many suitors during her widowhood; and that
Lusanna had coaxed a promise of marriage out of Giovanni in
the presence of witnesses (Brucker, 1986). Apparently, since
female adultery was a more serious crime than male adultery,
reputation went more to the issue of credibility for women
than for men.
212
CHAPTER SIX
T H E N E W C R I M I N A L CODE: LEGAL REASONING AND M O R A L TEACHINGS
The first decade of the twentieth century was a
historical juncture wherein the Qing leaders launched an
unprecedented full-scale reform for the purpose of national
rejuvenation. Unlike earlier reform movements, which
primarily had brought in Western knowledge and technology, the
late Qing New Policies (xinzheng) (1901-1911) also embraced
Western institutions including constitutional monarchy. The
unmaking of imperial law 1 and the making of the New Criminal
Code (Da Qing xin xinglu) were crucial to this unprecedented
development of constitutional monarchy.
It was a moment when China was confronted with the
insurmountable task of negotiating between the preservation of
age-old tradition and the introduction of Western legal codes.
Central to this negotiation was the relationship between
morality, social customs and the law. This chapter will
contrast the successful removal of the Statute of Killing a
Wife's Paramour with the unsuccessful proposition to abolish
part of the illicit sex section of the Qing Code.
213
The debate about the New Criminal Code, in general,2 and
the illicit sex section, in particular, was characterized as
a fight between legal reasoning (fali) and moral teachings
(lijiao) . This fight was epitomized in newspaper headlines as
an "earth-shaking" event, a "funny" and "unfolding drama", a
"big raging storm" resulting in "undercurrents".
Dramatization of the debate by journalistic reports shows that
it drew an enormous amount of public attention.3
Newspaper headlines described the battle as one between
supporters for propriety (li) and supporters for penal
punishments (xing) , between supporters for the old legal code
and supporters for the new one. Advocates of the New Criminal
Code rallied support in the name of the Association to
Preserve the New Criminal Code (xinlu weichi hui). This
divide between propriety and penal punishment further
developed into the White Ballots Faction (baipiao dang) and
Blue Ballots Faction (lanpiao dang) , as a result of the votes
cast for the amendment to the illicit sex section in the
newly-established Political Consultative Assembly (zizheng
yuan) (ST, 22 Jan 1911).
Although the Political Consultative Assembly was divided
between supporters for moral teachings and those for legal
214
reasoning, this chapter will demonstrate that both camps
actually placed renewed emphasis on the paramount role of the
family in moral development. The reformers1 recourse to
Western legal codes sparked a stronger advocacy of centuries-
old Chinese social customs and human morality. Their attempts
to shift allegiance from the family to the state invited
concerted efforts from both camps to safeguard the sanctity of
the family.
Advocacy for an assimilation of Western legal systems did
not prevent the reformers themselves from recourse to Chinese
notions of legal reasoning and human sentiments. An excellent
example is the legal treatise by Shen Jiaben (1840-1913), the
chief architect of the New Criminal Code. His treatise,
entitled "Killing a Wife's Paramour," made a convincing case
for the abolition of the Statute of Killing a Wife's Paramour.
Despite the fact that the Statute hinged on the paramount role
of the family in moral rectification, the Statute was
discarded without inviting criticisms from those who saw the
paramount role of the family in moral development. On the
contrary, the controversy about the illicit sex section was
fuelled by the existence of sticky issues concerning social
215
customs, family property, and the legal privileges enjoyed by
senior family members.
T HE L A T E Q X N G N E W P O L I C I E S
First instituted in 1903, legal reform was a major
component of the late Qing New Policies. As envisioned by its
advocates, a new criminal code would play an indispensable
role in bringing about a hoped-for early relinquishment of
extraterritoriality and the establishment of a constitutional
monarchy.
A 1903 edict promulgated by Emperor Guangxu laid down the
purpose of legal reform. The edict called for a special
bureau to be set up for the drafting of a "practical and fair"
legal code which "would be well received both by China and the
West." Two months later, Shen Jiaben and Wu Tingfang (1842-
1922) were appointed to lead the special bureau and to reform
the law with reference to "the present situation of foreign
relations and the legal codes of other countries" (Li, 1989:
85) .
The Bureau for the Compilation of Laws (falii bianzuan
guan) , which was responsible for the drafting of the New
216
Criminal Code, was formally established in 1904 as part of the
Ministry on Law (faJbu) (Meijer, 1950: 11). As part of the
reorganization of the administrative system, the Bureau was
renamed as the Bureau for the Revision and Compilation of Laws
(xiuding falu guan) and was usually referred as the Law Bureau
(falii guan) . Since then, the judicial reform came under the
auspices of the Bureau for the Preparation of the Constitution
(xianzheng biancha guan) (Li, 1989: 73, 81).
The drafting of a new criminal and other codes was
central to an unprecedented development of the constitution
and the National Assembly (yiyuan) in Qing China. The
timetable for the drafting of these legal codes was also part
of the timetable for the promulgation of the constitution.
These timetables were laid down in the Checklist on the Nine-
Year Plan for the Promulgation of the Constitution, which was
issued, together with the Outline for the Constitution, in
1908.
According to these timetables, the proposed New Criminal
Code was first to be revised by the joint efforts of the
Ministry on Law (fabu) and the Bureau for the Revision and
Compilation of Laws [which was headed by Shen Jiaben in the
capacity of the Commissioner for the Revision and Compilation
217
of Laws (xiuding falu dachen) ] . It was then to be reviewed
and promulgated by the Bureau for the Preparation of the
Constitution. Most importantly, its implementation was to be
three years ahead of the promulgation of the Constitution and
the election of the National Assembly (Miao, 1989: 6-13) .
As a preparation for setting up the constitution, this
timetable was to be strictly followed by the Bureau for the
Preparation of the Constitution. However, the Bureau was
particularly pressed for time because provincial governors
were reluctant to comment on the first draft of the Qing New
Criminal Code (Da Qing- xin xinglu cao'an) proposed by Shen
Jiaben in 1907. In 1909, the Bureau gave the provincial
governors a push by sending a telegram which read, "According
to the Outline for the Constitution, and the Checklist, the
draft of the New Criminal Code should be reviewed this year. ..
A year has lapsed since the last call for opinions on the
draft. Only a few provinces responded. We are running out of
time and no delay will be allowed" (Dongfang Zazhi, Vol. 21,
March 1909).
Parallel to the drafting of new codes based on Western
models was the revision of the old Qing code. The revision of
the Qing Code was first undertaken by Shen Jiaben in 1904 but
218
was interrupted by the 1906 bureaucratic re-organization.
Later in 1908, the work was resumed and further developed as
an important step towards the full implementation of the New
Criminal Code. In his capacity as the Commissioner for the
Revision and Compilation of Laws, Shen Jiaben memorialized to
seek imperial approval for the redaction of a revised Qing
code, called the "Great Qing Criminal Code Currently in Force"
{Da Qing xianxing xinglu) . Unlike earlier periodic revisions
of the Qing Code, which were organized by the four main
methods of revision {xiugai) , coordination (xiubing),
compilation (xuzuan) and abrogation {shanchu), the compilation
of the revised Qing Code was based on four new principles.
Such principles were the cancellation of the General
Principles (zongmu), the re-organization of names of
punishments {xingming) , the creation of new chapters
{xinzhang) and the cancellation of archaic sub-statutes
(liwen) .
Shen Jiaben emphasized that this revised Qing Code would
play an important role in the transition from the Qing Code to
the New Criminal Code. He meant to convince critics of the
proposed New Criminal Code that the drafting of the New
Criminal Code was built on historical roots {chizhi yi heng)
219
and that its implementation would be a gradual process
(xingzhi yi jian) (Da Qing xianxing xinglu anyu, 1909: the
preface).
Shen Jiaben's memorial for the compilation of the revised
Qing Code was submitted in March 1908. The revised Qing Code
was completed in Oct 1909 (Meijer, 1950: 51) and promulgated
in May 1910 (Meijer, 1950: 54). It would be abrogated after
the New Criminal Code was put in place.
Since the revised Qing Code was seen as a law of
transition, changes such as the abolition of bamboo beating,
the introduction of the notion of equality before the law, and
a reduction in the number of capital offences, were introduced
to pave the way for the adoption of the New Criminal Code
(Meijer, 1950: 57). Another remarkable change was the
simplification of statutes and sub-statutes. The numbers of
statutes and sub-statutes were reduced from 436 and 1,892 in
1870 to 389 and 1,327 respectively (Li, 1989: 116).
The number of sub-statutes for the section on killing a
wife's paramour was reduced from 36 to 26 (Shen, 1909: table
of contents 43) . The revision of the Statute resulted in a
mitigated punishment for a premeditated murder of the husband
by the adulterous couple. The prescribed punishment for the
220
adulteress-murderess was reduced from death by slicing to
immediate decapitation, and the punishment for the adulterer-
murderer was reduced from decapitation after assizes to
strangulation after the assizes. However, the husband would
be still granted legal immunity for his justifiable killing of
the adulterous couple right at the spot of adultery during the
apprehension of adultery (Shen, 1909: Homicide section 14) . As
for the Statute on Sexual Violations, the number of sub
statutes was reduced from 12 to 8 (Shen, 1909: table of
contents 56) . The prescribed punishment of bamboo beating was
replaced with a fine, while consensual illicit sex, both by
married and unmarried women, remained a criminal offence
(Shen, 1909: Sexual Violations 1).
In distinct contrast to the old Qing Code and the revised
version, the first draft of the New Criminal Code neither
carried the old Statute of Killing a Wife's Paramour nor
included a penalty for voluntary illicit sex by an unmarried
woman. The development of these two drastic changes in the
proposed New Criminal Code is crucial to our understanding of
the relationship between morality and the law in the making of
a new era in China.
221
T H E S T A T U T E O F K I L L I N G A WIFE'S P A R A M O U R
As will be examined more closely in the next part of this
chapter, the abolition of part of the illicit sex section of
the Qing Code became part of the bigger issue concerning the
separation of moral teachings from the law. Moreover, it is
interesting to contrast the legislative history of the Statute
of Sexual Violations with that of the Statute of Killing a
Wife's Paramour at the historical juncture wherein the
imperial laws were transformed. While changes to the former
statute grew into a huge controversy, the abolition of the
latter statute did not generate much discussion.4
The homicide section of the first draft of the New
Criminal Code did not include the justifiable killing of the
adulterous couple. This meant that it did not treat adultery-
homicide as a separate category of crime. This clean break
from the Qing Code was indeed significant for it no longer
granted legal privileges to a justifiable double homicide of
the adulterous couple. It also got rid of the whole range of
minutely differentiated punishments prescribed for various
situations of unauthorized killing related to the apprehension
222
of adultery. However, this complete departure from the Qing
Code did not evoke stormy attacks at all. I would argue that
the successful abolition of the Statute of Killing a Wife's
Paramour hinged on recourse to Chinese legal reasoning and
human sentiments, as fully illustrated in the Shen Jiaben's
legal treatise entitled "Killing a Wife's Paramour."
Shen Jiaben's treatise marked a sharp departure from his
predecessors. Unlike Xue Yunsheng, who primarily lamented the
proliferation of sub-statutes as a monstrous obstacle to the
implementation of the Statute, Shen suggested a categorical
rejection of legal immunity for a justifiable double homicide
of the adulterous couple. While Xue dwelt on the definitions
of "immediately (dengshi) " and "at the site of adultery
(jiansuo)", Shen questioned why the husband could overstep his
rights and overreact with fury. Unlike Xue, who saw a
parallel between the Statute of Killing a Wife's Paramour and
the Statute of Nocturnal Entry into a Domestic Residence
without Proper Cause (ye wugu ru renjia), Shen closely
examined the contradictions between the two.
Despite this complete break from his predecessors, Shen
did not make even a single reference to Western examples in
his legal treatise. Instead, Shen packed his legal treatise
223
full of reasons grounded in China's social, political and
legal history. He demonstrated his profound legal knowledge
through a legislative history of the Statute of Killing a
Wife's Paramour in relation to the Statute on Forbearance
among Relatives (qinshu xiangwei rongyin) ,5 the Statute on
Arrests and Escapes, and the Statute on Nocturnal Entry into
Domestic Residence without Proper Cause. Instead of building
on some easy dichotomies between morality and the law, Shen
saw the complex relationship which existed between the
sanctity of family ties and the state's ultimate power over
life and death (Shen, 1964: 909-911).
Legal History
Throughout his essay, Shen Jiaben used Tang law to
critique current law. He contended that a justifiable double
homicide of the adulterous couple must have been a Yuan
invention because the Tang Code did not carry a separate
statute on killing a wife's paramour. Instead such situations
came under two different statutes--the Statute of Arrest and
Escapes and the Statute of Nocturnal Entry into Domestic
Residence without Proper Cause.
224
The former granted legal immunity for killing wrongdoers
only on the grounds of self-defence while making arrest. The
final sentence depended on whether the wrongdoers were armed.
One would go unpunished for killing an armed wrongdoer who
resisted arrest. Otherwise, one would be charged with
unauthorized killing.
Normally, only those who were authorized (yingbu ren)
could arrest wrongdoers. The Statute of Arrests and Escapes
in the Tang Code, however, enabled onlookers to hand over the
wrongdoer to the authorities when someone was assaulted in
cases of rape and theft. This also applied to affray cases
relating to consensual illicit sex by inhabitants from the
same household.
As to the question of whether legal action against
illicit sex among relatives would infringe the principle of
forbearance among relatives, the Official Commentary to the
(Tanglu shuyi) noted that the onlooker should
refrain from such legal action when the adulterous couple and
the onlooker belonged to the same household. Shen saw such
restraint from action partly as an extension of the principle
of forbearance among relatives, and partly as a measure
against the killing of senior family members by their juniors.
225
However, one might lay a charge against the paramour when the
paramour was an outsider. In this way, the adulterous couple
would be punished accordingly while the family member who
layed the charge would not violate the principle of
forbearance among relatives. What this statute did not allow,
Shen emphasized, was the killing of an unarmed adulterer.
Shen next turned his attention to the Statute of
Nocturnal Entry into Domestic Residence without Proper Cause.
Despite the fact that legal immunity was granted both by that
statute and the Statute of Killing a Wife's Paramour, the
circumstances pertaining to these two statutes were different.
Shen argued that a self-defence claim based on the panic
created by a "nocturnal entry without proper cause" did not
apply to the apprehension of adultery. According to the
Commentary to the Ming Code (Jizhu) , he noted, the house owner
would go unpunished for the unauthorized killing of a
nocturnal intruder because he needed to protect himself from
a situation which was panic-ridden. Since in adultery cases,
the apprehension of the adulterous couple was normally planned
in advance, it would not cause panic on the part of the
husband and thus should not be grounds for legal immunity.
226
Again, Shen examined the Tang Code, which did not grant
legal immunity to the house owner who knew that the nocturnal
intruder did not intend harm. When the house owner was proven
to have killed the intruder who did not intend harm, he would
be subject to the Statute of Arrays and Blows but was given a
two-degree reduction.
As for a nocturnal intruder who planned to resume an
adulterous relationship, the question arose as to whether the
house owner, who knew of the pre-existing adulterous
relationship, would be granted legal immunity for killing the
intruder. The Commentary to the Tang Code (Tanglu shuyi)
reiterated that legal immunity was granted only when evidence
showed that the nocturnal intruder had the intention to do
harm. Strictly speaking, it was unlawful to kill an
acquaintance who was involved in an adulterous relationship.
However, given the difficulties in discerning the motives of
a nocturnal intruder, the Commentary went on to argue that a
pre-existing adulterous relationship did not rule out other
malicious reasons for the intrusion. Intent to resume an
adulterous relationship could also be considered as intent to
do harm, and therefore the house owner should be granted legal
immunity.
227
Despite his emphasis on the house owner's prior knowledge
of the intruder's intent, Shen argued that the statute hinged
on the notion of "nocturnal entry without proper cause." When
the intruder got lost, or when the intruder was drunk, an
elderly person, an underage person, a sick person, or a woman,
he/she was obviously unable to do harm. Yet, they still had
to be penalized for "nocturnal entry without proper cause".
This led to a two-degree reduction in the punishment
prescribed by the Statute of Affrays and Blows on the part of
the house owner. From this, Shen argued that the punishment
for an unauthorized killing depended on idea of "nocturnal
entry without proper cause" more than on the question of
"whether the intruder intended harm."
In the end, Shen concluded, the statute on nocturnal
entry was never meant to deal with the various situations
concerning the killing of the adulterous couple. For example,
the apprehension and the killing of the adulterous couple
might not always take place at night. Furthermore, the idea
of nocturnal entry could not be applied to the lady of the
house who was romantically involved with the nocturnal
intruder.
228
Shen gave a historical and comparative study of the
Statute of Killing a Wife's Paramour in relation to the
Statute of Arrest and Escapes and the Statute of Nocturnal
Entry into Domestic Residence without Proper Cause, thereby
undermining the historical roots of and the legal basis for
the Statute of Killing a Wife's Paramour. Shen lamented that
both Ming and Qing legal scholars failed to make the necessary
remedy to the problems of the Statute of Killing a Wife's
Paramour. The Ming codifiers attempted to limit the scope of
justifiable killing through an introduction of new
restrictions into the commentaries.6 These commentaries were
then made into sub-statutes by the Qing codifiers, but the
proliferation of sub-statutes only made the statute itself
more problematic.
Legal Reasoning
Shen argued that the granting of legal immunity violated
the principles of legal reasoning. He contended that legal
reasoning was built on a number of principles. First there
was the principle of righteousness (yi), which meant in this
situation that the prescribed punishment should fit the crime.
229
The punishments prescribed for the crime of sexual violations
changed from penal servitude to bamboo blows during the period
between the Tang and the Qing. For example, a sentence of a
one-and-a-half-year penal servitude was prescribed by the Tang
Code, but it was reduced to a lesser punishment of bamboo
blows in the Yuan Code. The Ming and the Qing Code introduced
two degrees of bamboo blows for the crime of sexual
violations. Obviously, an adulterous couple did not deserve
a death sentence. It should therefore be unlawful to kill the
adulterous couple. It was indeed unrighteous to grant legal
immunity for the killing of the adulterous couple by the
husband.
Legal reasoning was also characterized by the principle
of differentiation (xu). Given the range of minutely
differentiated punishments for various crime situations, Shen
questioned why legal immunity would be granted for the killing
of an adulterous couple who only deserved bamboo blows,
especially when even an unauthorized killing of even a
criminal who was guilty of a capital crime would lead to a
punishment of bamboo blows.
Shen thus emphasized that even the personal safety of
inmates guilty of a crime deserving capital punishment was
230
protected from abusive practices. For torturing inmates to
death, prison attendants would be sentenced according to the
Statute on Wrongdoers who Resist Arrest. For helping inmates
who were guilty of capital crime to commit suicide, prison
attendants would be held responsible for the death and,
therefore, sentenced according to the Statute of Affrays and
Blows. Needless to say, similar protection would be warranted
for wrongdoers who committed less serious crimes under normal
circumstances. Shen questioned why there was a lack of legal
protection for an adulterous couple who only deserved a
punishment of bamboo blows. The justifiable killing of the
adulterous couple by the husband indeed violated the principle
of differentiation that informed other sections of the Qing
Code.
Legal reasoning was also built on the principle of
propriety (li). For Shen, both the husband and the wife had
to abide by the principle of propriety. For a woman, leading
a lascivious life was a breach of propriety. That was
misconduct considered by the code as one of the seven grounds
upon which to divorce a wife (qichu) .7 The husband would be
sentenced to bamboo blows if he insisted on divorcing his wife
under one of the three situations that protected the wife (san
231
Jbugu) .s An adulterous wife and a seriously ill wife, however,
would not be entitled to the protection provided by these
factors in the Tang Code.
Despite the fact the husband had every right to divorce
his adulterous wife, adultery was never a capital crime. Shen
lamented that the Ming Code made the Yuan notion of
justifiable double homicide of the adulterous couple into an
independent statute and yet at the same time modified the Tang
Code so that a husband could no longer divorce his adulterous
wife if one of the three situations that inhibited a divorce
applied.9 Therein lies the major contradiction between the
Statute of Divorce and the Statute of Killing a Wife's
Paramour.
For a gentleman, even when he abided by all the legal
provisions in the decision to divorce his adulterous wife, it
would still be considered improper to dishonour her because a
gentleman should protect the name of his divorced wife in the
same way that he respected his friend upon the termination of
that relationship. The principle of propriety shaped the
divorce law as well as the homicide law. To kill an innocent
violated the principle of propriety and thus dishonoured legal
reasoning.
232
Shen contended that legal reasoning was also informed by
human sentiments {qing) which privileged life over merciless
killing. It was, therefore, utterly unreasonable to grant
legal immunity for killing right at the crime scene. It was
even more inconceivable when it occurred among family members.
That was why the Tang Code had allowed relatives to conceal
each other1s crimes through the Statute of Forbearance among
Relatives. Fighting and merciless killing among family
members damaged kinship ties and conjugal affection. When
human sentiments were upset, legal reasoning was violated.
National Politics
Shen examined the political impact of the Statute of
Killing a Wife's Paramour on a national rather than an
international level. Merciless killing of the adulterous
couple was a form of private justice, which was an
infringement of the state's ultimate power over life and
death. The state tried to stop unruly people from an
unrestrained display of brutality, yet it also granted legal
immunity to an act of killing. It could, therefore, have a
bad influence on the largely uneducated populace. They might
233
see this legal privilege as an indiscriminate power to kill
and they might even take pride in revenge. Given the
ambiguities in adultery cases, it was unlikely to stop false
accusation. Even when the charges were supported by physical
evidence, it was indeed appalling to have fierce fighting
which might result in malicious attacks like decapitation and
disembowelment.
Social Morality
In the face of what he perceived to be degenerating
social morality, Shen renewed his claims that it was necessary
for the state to promote the virtues of righteousness and
benevolence. It was obvious that an act of killing was by no
means benevolent. Merciless killing might prevail if it was
not banned by the state. When the state acquiesced in
merciless killing as such, it almost equalled a sanction on an
act of killing.
People1s Livelihood
People's livelihood would be affected by the
misconception resulting from the legal immunity granted to the
husband for his unauthorized killing of the adulterous couple.
234
As mentioned earlier, one could at most plead innocent for
killing an armed wrongdoer who resisted arrest in robbery
cases. Beating the robber to death right on the spot of
robbery itself made one liable to penal servitude. The
Statute of Killing a Wife's Paramour was, however, an
exception.
Licentiousness produced corrupting influences and was to
be corrected through severe punishment. But it was, after
all, only one of many social evils and was by no means the
gravest sort of crime. Unfortunately, people might take
advantage of the justifiable killing of the adulterous couple.
It gave rise to a popular saying about the necessity for a
double homicide of the adulterous couple in order to plead for
legal immunity. When the husband ended up killing his wife's
paramour during the apprehension of the adulterous couple, he
was obliged to kill his unfaithful wife as well. It seemed to
have made it necessary to kill the adulterous wife despite her
earnest plea for pardon and her remorse. Worse still, there
were circumstances whereby the husband killed his innocent
wife to cover up the truth of the killing. As a result,
society was plagued with injustice and saw an unnecessary loss
of human life.
235
As illustrated in this section, Shen's discussion was
entirely grounded in legal reasoning and human sentiments as
given in the Chinese context. It was received as a
masterpiece by law reformers during the late Qing legal
reforms (Li, 1989: 116) . It is beyond the scope of this
chapter to decide whether this approach contributed to the
successful abolition of the category of adultery-homicide from
the homicide section of the Qing Code. However, it is certain
that his arguments were grounded exclusively in China's own
experience and history. Unlike the advocates who had to face
tough resistance to the changes made to the Statute of Sexual
Violations, Shen made a convincing case to remove the Statute
of Killing a Wife's Paramour without making a single reference
to external factors and Western examples.10
THE NEW LAW ON SEXUAL VIOLATIONS
The first draft of the New Criminal Code (Da Qing xin
xinglu cao'an) was proposed by Shen Jiaben in 1907. It
consisted of the General Principles (zongze) and the Chapters
236
(fenze) , making a total of 53 chapters and 387 sections. The
original Statute of Sexual Violations was put into Chapter 23
under a new title "Crimes of Sexual Violations and Bigamy"
(guanyu jianfei ji chonghun) . The 12 sections in the chapter
prescribed punishments for various kinds of illicit sex and
the sale of pornography. The first draft of the New Criminal
Code penalized the offence of adultery with a punishment much
heavier than that prescribed by the Qing Code.
Section 278 stipulated that for an adulterous
relationship with a married woman, both the man and the woman
would be subject to a maximum penalty of a fourth-degree
confinement or penal servitude, that is, one to three years
(WXTK: 9911).u Section 282 further stipulated that only the
husband was allowed to lay an adultery charge. However, this
legal entitlement would be stripped from a husband who
tolerated or obtained monetary gain from his wife1s adulterous
relationship (WXTK: 9912).
The revised draft (1909) of the New Criminal Code
(Xiuzheng xinglu cao'an) made changes in response to vehement
attacks against the first draft. For example, the first draft
was criticized for not prescribing a specific punishment for
incest. The revised draft increased the maximum penalty for
237
adultery from a fourth-degree confinement (i.e. one year to
three years) to a third-degree confinement (i.e. three to five
years) (Lao, 1927/1964: 10). The imposition of a heavier
punishment was meant to accommodate incest cases. The first
draft was also criticized for only allowing the husband to lay
an adultery charge. The revised draft accordingly extended
the husband's right to relatives of first-degree mourning
relationship--in other words, parents and parents-in-1aws.
Given the increased penalty for adultery, it might come
as somewhat of a surprise that the first draft of the New
Criminal Code did not contain a provision on fornication. As
we shall shortly see, that failure provoked such a heated
debate that the revised draft was appended with the Interim
Provisions (zanxing zhangcheng) in 1909. For the case of
having illicit sex with an unmarried woman, Article 4 of the
Interim Provisions stipulated a maximum penalty of either a
fifth-degree imprisonment, that is, between one month and one
year, or a fine of 100 yuan. Again, only relatives in a
first-degree mourning relationship with the fornicating woman
were allowed to lay a charge against the fornicating couple.
This right was nullified if they had had prior knowledge of
238
the adulterous relationship and tacitly consented to it (WXTK:
9917).
This article, together with the other four Interim
Provisions, was a compromise made by the Bureau for the
Preparation of the Constitution to win support from those who
championed moral teaching as the main purpose of the law. In
response to vehement attacks, the Interim Provisions addressed
a host of controversial issues regarding the relationship
between human morality, social customs and the law.12
Article 4 of the Interim Provisions was finally merged
with the adultery section in the main text of the New Criminal
Code. That meant the reformers' attempts to decriminalize
fornication were in vain (Lao, 1927/1964: 87). According to
an edict decreed on 25 Jan 1911, the revised draft, including
the General Principles, the Chapters and the Interim
Provisions, was supposed to be promulgated as the New Criminal
Code in 1911 as part of the programme of constitutional
government, and amendments could be made when the Political
Consultative Assembly was convened again for the next session
(Lao, 1927/1964: epilogue; Meijer, 1950: 118).
Among a range of disputed issues, the legal treatment of
fornication generated enormous discussion. On 8 Jan 1911, the
239
voting at the Political Consultative Assembly in Beijing was
telling. The Assembly voted down the proposition which would
have prohibited junior family members from pleading innocent
on the grounds of self-defense in the case of killing
relatives of first-degree mourning relationship. But in
contrast, 78 councillors (the White Ballots Faction) voted for
the inclusion of a fornication section and only 42 councillors
(the Blue Ballots Faction) voted for the decriminalization of
fornication. As a result, the proposition to merge Article 4
of the Interim Provisions with the adultery section was passed
by a wide margin of 36 votes (ST, 9 Jan 1911) . These results
seems to suggest that sexual morality was even more important
than generational seniority in the eyes of the councillors.
FAMILY IDEOLOGY RESTATED
As opposed to the Qing Code, in which the Statute of
Sexual Violations stipulated punishments for a range of sexual
offences from fornication to rape, the Chapter on Sexual
Violations and Bigamy in the first draft of the New Criminal
Code saw an omission of any punishment for fornication. The
240
commentary (anyu) saw this omission as a departure from the
past legal treatment of illicit sex in that the penal
punishments were separated from moral teachings (WXTK: 9911).
The reformers drew a parallel between illicit sex on one
hand and heavy drinking and idleness on the other. That is,
these behaviours were social evils (shehui guojia zhi hai)
rather than criminal offences. They were not under legal
jurisdiction, and should be left to the workings of moral
teachings (lijiao) and public opinion (yulun). A lifting of
legal sanction, therefore, would not necessarily lead to an
increase in the occurrence of these actions (WXTK: 9911).
Moreover, depending on whether the woman was single or
married, the penalty for illicit sex had been increased from
77 and 87 blows in the Yuan Dynasty to 80 and 90 blows in the
Ming times. The imposition of an increasingly severe
punishment on a social evil was actually a violation of the
principles of the law (xingfa lilun) . That was the reason why
changes were made to the existing categories of sexual
violations (WXTK: 9911).
The proposed Chapter on Sexual Violations and Bigamy only
dealt with rape and adultery cases, excluding fornication
altogether. That implied a decriminalization of fornication.
241
For many, this change was perceived as detrimental to the
social morality of China. Lao Naixuan (1843-1921) was a
leading campaigner for moral teachings. He wrote extensively
on the relationship between the importation of Western legal
systems and the preservation of Chinese social customs. His
articles (Xiuzheng xinglu cao'an and Shengming guanjian
shuatie) , which were included in his anthology An Anthology on
.the -Revision of__the. Hew. .Criminal. Code (Xin xinglu xiuzheng an
huilu ), will be discussed shortly.
In face of vehement criticism, supporters for an
abolition of the fornication section defended their cause.
Yang Du (1875-1931) , who was the law commissioner, was upfront
in his support for the new criminal code as a way to speed the
end of extraterritoriality. At the opening session of the
Political Consultative Assembly, he called for a replacement
of family ideology (jiazu zhuyi) with state ideology (guojia
zhuyi) , and a resultant shift of allegiance from the family
patriarch to the state.13
While Yang Du was straightforward in his need for a head-
on confrontation with the opponents of the New Criminal Code
, Dong Kang (1867-1947) tried to convince opponents through a
242
renewed emphasis on age-old parental powers to uphold social
morality.
Preservation of Social Customs
Lao Naixuan criticized the proposed New Criminal Code for
its violation of the intended purposes of the imperial edicts
and its disregard for the moral aspects of the Qing Code. He
argued that while theoretically, the law was not exactly
equivalent to moral teachings, the two in fact manifested the
same substance in different forms. It was, therefore,
ridiculous for the reformers to say that the law did not have
its place among moral issues. Chinese laws, for centuries,
were seen as a supplement to moral teachings. A combination
of both social norms and legal sanctions was necessary to the
maintenance of moral order. This belief was widely shared in
society, confirmed by the fact that provincial governors
earnestly pleaded for the upholding of moral teachings in
their memorials on the new code (Lao, 1927/1964: 31).
Lao warned that a complete removal of the punishment for
fornication would never ease the minds of the people. That
was because both adultery and fornication were considered as
a family disgrace. The rage felt by parents and parents-in-
243
law over fornication might be even greater than felt by the
husband over adultery. Therefore, it could be argued that
fornication by unmarried women (chunu) and widows was a graver
crime than simple adultery, despite the heavier punishment for
adultery over fornication by a ten-blow difference in the Qing
Code. The virtue of female chastity, which was an essential
component of Chinese social customs, ought to be taken into
consideration in legal reform. The two drafts, on the
contrary, suggested an increasing disparity in the treatment
of adultery and fornication. This created a greater
discrepancy between the old and the new codes, and widened the
gap between penal punishments and moral teachings (Lao,
1927/1964: 23) .
Lao Naixuan was particularly alarmed by the gradual
demise of family ideology, which was partly a result of the
reformers1 deliberate omission of the fornication section in
the New Criminal Code. The change was meant to abolish the
legal privileges that senior relatives held over juniors. The
Qing Code granted legal immunity to a father who killed his
unmarried daughter upon the discovery of fornication and
stipulated that her paramour would be convicted of the crime.
Had the reformers managed to abolish the fornication section
244
and remove legal privileges from senior relatives, the
paramour would have b o m no legal responsibility while the
father would have been charged with a capital crime. Human
morality would have been turned upside down, public outrage
would have developed into riots, and social order would have
been jeopardized (Lao, 1927/1964: 13).
In distinct contrast to Lao Naixuan, Yang Du, who
advocated complete legal reform, argued that moral teachings
changed over time. What made him stand out from the rest of
the legal reformers was his idea to replace family ideology
with state ideology. He argued that the familial and social
stability which had long been maintained by the rule of the
patriarch was increasingly jeopardized by external factors and
international involvement. China had to bring people of the
whole country together to face the outside world.
The notion of "all under heaven (tianxia.) " had been
prevalent in China for centuries. This notion saw no national
boundaries, only family groupings and clan communities. With
the Son of Heaven at the apex, the clansmen, the patriarch and
the government officials had to be responsible to their
immediate superiors. Chinese law and morality therefore
rested on the idea that the family was the basic unit of
245
society. The family patriarch derived his power from
seniority. He had the obligation to provide for the whole
family and yet enjoyed legislative and judicial rights over
them. These rights were endorsed by the state and formed the
basis for collective legal responsibility.
Like China, other countries saw the family as the basic
unit of society in terms of provisions of primary nourishment
for the people of the state. Unlike China, however, people of
other countries eventually came under the direct rule of the
state. The wealth and strength of the state in turn were
enhanced. Triumph of this state ideology was tied into
education, the law and moral teachings.
In light of the theory of constitutional monarchy, Yang
continued, the monarch was analogous to the patriarch while
the people were analogous to members of the clan. The people
were subject to the direct rule of the monarch without the
intermediary patriarchs who used to have legislative and
judicial powers. As a result, people from above and below
were united by a single purpose to deal with the outside
world. This was the model which would enable China to turn
filial sons, worthy grandsons, and economically dependent
246
female clansmen into loyal and productive members of the
state.
For Yang Du, the main question concerning the New
Criminal Code was whether the family or the state was the
premise on which a society was built. That would be the
premise on which China forged ahead with the constitutional
movement and national rejuvenation.14 A complete reform, which
included law, education and politics, was imperative because
an incomplete reform would only impede the country from moving
ahead (Liu, 1986: 532-533).
Arguing against a social catastrophe envisioned by those
who championed moral teachings, Dong Kang, who advocated an
abolition of the fornication section, reiterated that parents
under the new codes still would have the power either to
admonish their fornicating daughter privately, or to take
action in a court of law straightaway. They could file a
civil compliant on the misconduct of fornication by their
unmarried daughter in accordance with the Chapter on Powers of
the Parents (Qinquan zhang) in the New Civil Code (Minlii) or
the Statute on Disobedience of the Sons and Grandchildren in
the Qing Code. The New Civil Code stipulated that parents
could bring their unworthy children to the local court (chuji
247
shenpan ting) when necessary. An indictment would result in
a maximum sentence of a six-month imprisonment (ST, 17 Dec
1910).
Unlike Yang Du's sweeping statements on the role of the
family, Dong Kang's practical approach drew the reformers'
position closer to that of their critics. Dong Kang
emphasized that the abolition of the fornication section from
the criminal law would not undermine the power of the parents
because they could always initiate a charge against their
unworthy children through civil proceedings. Dong Kang even
argued that civil proceedings allowed a relatively faster
handling of the case and, thus, were preferable to criminal
prosecution.
Like other reformers who never denied the importance of
moral teachings, Dong Kang spelled out the fact that an
abolition of the fornication section in fact came from a heavy
reliance on the importance of moral teachings. Reformers had
always placed emphasis on family influence. That, combined
with general education and public opinions, were more
effective than legal sanctions in moral rectification. They
proposed to remove the fornication section simply because
indecent behaviour could neither be banned nor eradicated
248
through legal means. Since the fornication section existed
only on paper and was rarely put into force, the law reformers
suggested removing it altogether.
Dong Kong contended that the New Criminal Code exalted
female chastity as usual. The removal of penal punishments
for fornication by the new code was meant to place renewed
emphasis on family education and state promotion of the female
ethical code. Rectification of moral standards was primarily
carried out through inculcating female virtues starting in
childhood, and by giving out state awards and erecting
honorific arches for chaste widows to exalt their exemplary
conduct.
Dong Kang argued that the reformers always tried to
uphold moral standards, as seen in the introduction of a
monetary fine for convicted cases of fornication prescribed by
the Interim Provisions. Monetary fines provided the judge
with an additional option, which might be a more effective
means of rectifying conduct, particularly for those who
thought that material property mattered most. It never meant
to have the parents pay the fine for their culpable children
out of communal property. It would therefore be a mistake for
the magistrate to hand down a monetary fine to an offender
249
when he/she still lived off of the communal funds of the
family (ST, 17-18 Dec 1910).
The Relinquishment of Extraterritoriality
Article XII of the 1903 Commercial Treaty with Britain
(the Mackay Treaty or the Treaty of Shanghai) stated that
"China having expressed a strong desire to reform her judicial
system and to bring it into accord with that of Western
Powers, Britain agrees to give every assistance to such
reforms, and she will also be prepared to relinquish her
extraterritorial rights when she is satisfied that the state
of the Chinese laws, the arrangement for their administration,
and other considerations warrant her in so doing (Woodhead,
1929/1980: 6)." Article XI of the Commercial Treaty with
Japan outlined the Japanese policy of following the example of
Britain in the relinquishment of extraterritorial privileges.
In order to achieve a speedy relinquishment of
extraterritorial privileges, Yang Du and other reformers were
eager to bring the codes in accord with those of the Western
powers. Since the legal codes of Western powers did not carry
a fornication section, an inclusion of a fornication section
in the main text of the New Criminal Code proved that the new
250
Chinese judicial system was still not in accord with those of
Western powers.
Yang Du admitted that the Law Bureau was fully aware of
the fact that an abolition of the fornication section did not
fit the social conditions in the China of his day. The
Commission decided not to include a fornication section in the
main text of the New Criminal Code simply because they were
afraid that it might delay the negotiation with the Western
powers. The Law Bureau finally resorted to introducing a
fornication section into the Interim Provisions as an
expedient measure for a speedy relinquishment of
extraterritorial rights. The Interim Provisions had the same
legal standing as the main text. They were introduced to
uphold moral teachings, fill the gaps of the New Criminal
Code, and serve as a medium to facilitate transition from the
old code to the new code. The Law Bureau promised to move the
Interim Provisions back into the main text within a few years'
time after attaining Western approval (ST, 18 Dec 1910) .
For Lao Naixuan, the idea of reforming and bringing the
Chinese judicial system into accord with that of Western
powers and that of Japan was to bring the Chinese judicial
system closer to that of the Western powers rather than a
251
complete assimilation of Western laws. The very frightening
implication of a direct importation of Western systems of law
was the separation of morality from the law and the disposal
of old Chinese moral teachings. Lao did not see a significant
relationship between an abolition of the fornication section
and the relinquishment of extraterritorial rights. The
relinquishment of extraterritorial rights should depend on
whether the Chinese judicial system took on a course of change
in areas such as the introduction of Western legal models, the
abolition of capital punishments and torture,
institutionalization of an independent judiciary and prison
reform. It was inconceivable for China to do away with the
minute variations in the prescribed punishments for different
categories of crimes in the Qing Code.
Dong Kang made reference to the 1903 commercial treaties,
but he did not deal with the question of whether the New
Criminal Code only aimed at wining Western approval and thus
relinquishment of extraterritoriality. Instead, he respected
Lao Naixuan's genuine concern for the preservation of social
customs and morality and gave fuller details on how the New
Criminal Code could uphold and advance morality on the one
hand and take care of practical issues on the other. Dong
252
Kang characterized the draft of the New Criminal Code as a
combination of the best parts of the Western and Chinese legal
systems. It was a serious effort first to uphold and then to
advance family morality in a civilization fit for the
abolition of extraterritorial rights. Dong Kang argued that
the New Criminal Code would reach a balance between the
prevailing ideas about the family and ideas about the
individual. For example, moral teachings still informed the
punishments for proscribed sex such as rape, adultery and
prostitution. The current issue was a distinction between
forcible sex and consensual sex. Unlike rape which was a
violation of female chastity by forcible sex, fornication was
consensual sex between unmarried persons and was not to be
considered as a criminal offence.
Dong Kang admitted that the New Criminal Code was tied
closely to the preparation of the constitution and the
convening of the National Assembly. These changes came from
a concerted effort in legal reform and national rejuvenation
over time. The Xuantong Emperor (1909-1911), his predecessors
and the reformers saw the attainment of equality in the matter
of jurisdiction and the early relinquishment of
extraterritorial rights as their mission.
253
However, Dong Kang did not deal with the issue of the
assimilation of Western codes. Instead, he used Western ideas
in his refutation of the legal grounds for the two degrees of
the punishment of bamboo blows for adultery prescribed by the
Qing Code. The outcome of the equation, which differentiated
the greater evil of adultery from the lesser wrongdoing of
fornication, was determined by whether it caused greater harm
to a greater number of persons. This consideration of whether
an act of wrongdoing had caused harm to the relatives of the
victim would result in an unnecessary proliferation of
infinite differentiated punishments for crimes against the
individual such as homicide and assault, theft and robbery
(ST, 17-18 Dec 1910) .
Women's Rights
Both sides of the debate did not dispute the impropriety
of consensual sex between unmarried persons. Fornication was
considered as a misconduct of unmarried persons that
jeopardized the reputation of the woman's family. This shared
belief remained unchallenged throughout the fight over the
proposed New Criminal Code . An abolition of the fornication
254
section did not entail a re-definition of female chastity.
Women, whether married or single, were to be in the custody of
family heads.
As mentioned earlier, an abolition of the fornication
section was to mean a heavier emphasis on the role of family
education and public opinion in inculcating female virtues.
It was never meant to promote the autonomy of women. It
would, of course, be anachronistic to expect the Qing
contemporaries to have made a clean break from the past and to
have focused solely on the issue of women's rights. What was
noteworthy was how the question of women's rights was used in
the debate right before the Political Consultative Assembly
cast their vote on the amendment of the fornication section.
The relationship between the advancement of women's
rights and the abolition of the fornication section was never
foregrounded by the advocates of the New Criminal Code. In
the Political Consultative Assembly, the opponents of the New
Criminal Code commented on the likelihood of promoting
women's rights in China. Chen Shukai saw that societal
attitudes towards fornicating women and marriage based on love
depended on whether women's rights were respected (zunzhong
nuguan) and women were treated as equals to men {shiru
255
pingdeng) . In the West, the popularization of women's
education enabled women to acquire the same educational level
as men. Thus women were more equipped to correct their own
weaknesses and would not be easily swindled. This was the
basis from which women's rights were advanced. Unlike the
West, China fell behind in the popularization of general
education and Chinese women lacked social exposure, making
them easy prey for men. Chen emphasized that social
conditions in China were not ready for legal codes originally
made for a more advanced society. Alien legal codes would be
more harmful than less perfect laws. It was, therefore, more
appropriate for China to keep the fornication section in order
to maintain the social order (Zizheng yuan, 1911: 92) .
In response to privileging larger social needs over
women's rights, Lei Fen (1876-1918) , who supported an
abolition of the fornication section, suggested situating the
problem in a historical rather than a social perspective. Lei
contended that China did not need to make reference to Western
experiences in terms of educational level and women's rights.
It was true that although Western powers did better in terms
of women's position, inequalities between the sexes still
prevailed. Yet, fornication was not considered as a crime.
256
Like the West, China witnessed inequalities between the sexes,
though to a different degree. That is why, for centuries,
China maintained a two-degree punishment for illicit sex,
depending on whether the woman was married or not. This
heavier punishment for married women itself was an indicator
of inequalities between the sexes. It was a historical
development over time rather than a contemporary social
problem (Zizheng yuan, 1911: 104).
Lei also put the fornication section in a legal rather
than a moral/social perspective. The New Criminal Code was
built on a premise of public law (gongfa) rather than private
law (sifa) . The purpose of public law was two-fold. That is,
to maintain law and order and to safeguard individual
freedoms. When law and order were violated, either the victim
or the public prosecutor could file a lawsuit. This
procedure, which allowed criminal prosecution, was very
different from the charges initiated by the wrongdoer's
relatives. The fornication section had long been an example
of the latter (Zizheng yuan, 1911: 95). These privileges for
senior relatives to bring a fornication charge could be
understood as the state's effort to uphold social morality.
On the one hand, it instituted the guardianship of senior
257
family members over their unmarried daughters. On the other
hand, it alerted the people of the possible devastation done
to the reputation of the parties involved in fornication
cases.
Lei went on to argue that the upholding of moral
teachings would be more effective in the hands of the people
rather than through legislation. For instance, when senior
family members acquiesced to misconduct and decided not to
press charges, the state could do nothing about it. This
inability to put the espoused legislation into practice
undermined the state's credibility. More importantly, Lei
pressured the assembly with the question of whether a father
and elder brothers or a state's laws were more effective in
the moral development of unmarried women. He asserted that
admonition by the father and elder brothers would be more
effective than a legal sanction in matters of fornication
(Zizheng yuan, 1911: 106) .
The above section has shown that the two sides had
different views on the priorities of national interests,
social order and the credibility of the state. Yet, they
converged on the need to put women under parental and public
supervision. In this regard, an abolition of the fornication
258
section was not built on the dichotomy between Western legal
codes and Chinese legal codes. Reformers drew on both sources
to buttress the law reform as a pillar of the rejuvenated
constitutional government and as a stepping-stone for an early
relinquishment of extraterritorial rights. At one end of
their range of strategies, they boldly suggested a universal
social development from family ideology to state ideology. At
the other end, they used the expedient of law reform for a
speedy abolition of extraterritorial rights.
POLITICS OF LAW REFORM
The newspapers of the times like Shenbao and Shuntian
Shibao gave extensive coverage to the debate on the New
Criminal Code. The role of the press was more than the
processing and circulation of information. It became an
important factor in the formation of the two opposition
forces. Not only were readers influenced by the
straightforward stance of the press, the demarcation between
the two forces became more pronounced. Uniformly in favour of
259
the New Criminal Code, the press rendered vivid images of the
actors and lent drama to the debate.
The opponents of the New Criminal Code were portrayed
either as idiots or savage people. They lacked legal
knowledge, capitalized on the fight over legal reform for self
interest, or resorted to violent confrontation. For example,
Councillor Wan Shen was nicknamed "Enemies of Ten Thousand
People (Wanrendi)" and "Maniac by the Surname of Wan
{Wanfengzi) ." Councillor Gao Lingxiao's (1868-1943) remote,
rural hometown was the reason for his lacking a concept of the
nation; his alliance with Lao was understood as a trade-off
for favouritism. Lao Naixuan turned desperate in his campaign
against the New Criminal Code, and orderly discussion was put
into disarray by hot-tempered opponents.15
This open disdain for the opponents of the New Criminal
Code was in contrast to a warm embrace of the advocates of
the New Criminal Code. An editorial in Shenbao on 13 Dec
1910, is a case in point. The editorial condemned the
Confucianist attack on the New Criminal Code as an "inhumane"
move because the attack undermined China's determination to
adopt less severe punishment and to remove age-old evil
courtroom practices such as racking tortures. The newspapers
260
were also sensitive to the response of the foreigners who
championed humanitarian values and rehabilitation of convicted
criminals. It was reported that foreigners who refused the
jurisdiction of Chinese law held rigorous discussions among
themselves on the New Criminal Code. The editorial hinted at
a measurable impact of the pending New Criminal Code on the
international level.
In a 24 Dec 1910 article headlined "Why Has Lao Naixuan
Had to Be Like This?", the Shenbao ridiculed the leading
opponent of the New Criminal Code for his unreasonable
objection to the law reform at the expense of national
interests. The article first criticised Lao for his inability
to support his attack on the New Criminal Code by solid legal
research. It then characterised the opposing force as a group
of "trapped" followers who had drawn together as a result of
Lao's persuasive lobbying. It argued that the majority of the
councillors of the Political Consultative Assembly were in
support of the New Criminal Code. These councillors belonged
to the "new faction" because they saw China's need for
complete reform.
Support for the New Criminal Code thus prevailed in the
editorials, letters to the editors and even in the straight
261
news stories of Shenbao and Shuntian Shibao. One obvious
example was the kind of announcement-like journalistic report
for the up-coming activities of the newly-founded Association
to Preserve the New Criminal Code. A full text which
described the mission of the Association and its appeal for
public support appeared in Shenbao on the birth of the
Association. Under the headline, "The Raging War Between the
Qing Code and the New Criminal Code," on 15 Dec 1910, the text
read:
The New Criminal Code was submitted to the

Political Consultative Assembly but some of the
councillors mobilized against the introduction of
the New Criminal Code. For us (the Association to
Preserve the New Criminal Code), the law reform
aims to protect people's life and property and it
paves the way for the early relinquishment of
extraterritorial rights. The future of China would
be jeopardized if we allow those stubborn, mean,
legally uninformed councillors to sabotage the
country and the people. We therefore set up the
Association to Preserve the New Criminal Code.
Provincial officials and gentry-merchants coming
from and residing in Beijing were cordially invited
to attend our meeting at one o'clock in the
afternoon on the tenth day of this month.
Full details of this meeting appeared in both Shuntian
Shibao and Shenbao. Headlined "The Association to Preserve
the New Criminal Code," the reports gave an impression that
262
the meeting was a big success with an attendance of over 300
people. The report also outlined the main argument of the key
speakers including the founder of the association, Zhou
Zhenlin (1875-1964). The report welcomed the legal and
realistic approach that the Association took to law reform
because law reform was part of the constitutional age and
served the needs of the people. Supporters for the New
Criminal Code also dismissed the question of an increasingly
stiff competition between state ideology and family ideology.
They emphasised that the legal reform was informed by these
two ideologies. The New Criminal Code rested on state
ideology while the New Civil Code built on family ideology.
The meeting unanimously passed a resolution in favour of a
speedy mobilization of legal expertise among the members for
a survey campaign in the Political Consultative Assembly. The
result of the interviews was to be advertised in the
newspapers (ST, 17 Dec 1910; SB, 24 Dec 1910).
The follow-up of this pledge to lobby the Assembly was
reported in Shenbao on 22 Dec 1910. Association's members who
signed up for the campaign were quick to work out a detailed
plan for dismantling the force opposed to the New Criminal
Code . It was decided that five work units would be
263
designated and immediately assigned to the mission. Lao
Naixuan was singled out as an important target. It was also
reported that the Association had won quick support from the
Political Consultative Assembly. New faces from the Political
Consultative Assembly joined the task-force. These new
supporters for the New Criminal Code and their pledge of a
dislike for Lao was welcomed as a "smart idea (jianjie zhi
zhuoyi)" while Lao Naixuan was referred to as an "old cunning
guy (laojian juhua) ."
A continuation of competition between the two opposing
forces resulting from this row over the New Criminal Code was
understandable. The striking development, however, was that
the demarcation was marked by the position each force took on
the abolition of the fornication section. The split was
termed "undercurrents after the closing sessions of the
Political Consultative Assembly" by Shenbao on 23 Jan 1911.
The "undercurrent" referred to the gearing up for up
coming party politics as a result of an intensification of the
tension between the two big factions-- the "Blue Ballots
Faction" and the "White Ballots Faction". Members of the Blue
Ballots Faction were those who voted for the abolition of the
fornication section. The leading figures were Wang Rongbao
264
(1878-1933), Lu Zongyu (1876-1941), Lei Fen and Ji Zhongyin.
Members of the White Ballots Faction were those who voted for
an inclusion of a fornication section in the New Criminal
Code. The leading figures were Lao Naixuan, Xu Dinglin (1857-
1915) and Yu Banghua. The two factions carried the momentum
from the debate on an abolition of the fornication section
into other battles such as submitting a memorial on the New
Criminal Code and the approval of the budget. The Shenbao
condemned the aggravation of the row as a violation of the
people's opinion and ridicule of the constitutional system.
* * ★ *
The successful abolition of the Statute of Killing a
Wife's Paramour marked a turning point in the legislative
history of female criminality. Adultery-homicide was no
longer treated as a distinct category. Mitigating factors
which favoured the husband were removed from the homicide
section.
The reformers, though espousing an assimilation of
Western laws, made constant references to Chinese social
conditions and moral precepts. Shen Jiaben's legal treatise
265
was a classic example. In the battle over the abolition of
the fornication section, Shen and other reformers tended to
make more references to Western experiences and their legal
codes. Like those who opposed the abolition of the
fornication section, these reformers confirmed the paramount
importance of parental (as well as societal) supervision of
the moral development of their unmarried daughters.
Despite the forces of change, the meanings of female
criminality did not take a major shift. The debate, however,
unravelled the complexities of the centuries-old problem of
female chastity. In the end, the moral precepts and female
code were to be heavily guarded both by the family and the
state, especially when the state had to enter a new phase in
national politics and the international arena.
266
Endnotes
1. In a speech given at the 21st session of the Political

Consultative Assembly in early Dec 1910, Yang Du characterized
the five major changes of the proposed New Criminal Code.
They were the re-naming of the categories of punishment, the
abolition of analogy, the abolition of differentiated
punishments for capital crimes, a reduction in the number of
capital crimes, and the introduction of correctional services
(Liu, 1986: 527).
2. One major characteristic of the proposed New Criminal Code

was an attempt to separate moral teachings from the law.
That resulted in heated discussion over the following
sections: the Ten Abominations, Forbearance among
Relatives, Accusation by Juniors Against Senior Relatives,
Wrongdoers Permitted to Remain at Home to Care for Parents,
Stealing Between Relatives, Assaults Between Relatives,
Violation of Tombs, Disobedience Against Parents and
Grandparents, and Sexual Violations.
3. The battle was characterized as "earth-shaking"

(Shenbao/will be abbreviated as SB, 13 Dec 1910) , "a big
fierce fight" (SB, 15 Dec 1910) , "a big raging storm"
(Shuntian Shibao/will be abbreviated as ST, 20 Dec 1910) , "a
big debate" (SB, 23 Dec 1910), "a heated discussion between
Propriety and Penal Punishments" (SB, 13 Jan 1911) , "a funny
drama" (SB, 14 Jan 1911) , "a heated discussion" (SB, 14 Jan
1911) , "a scene of a new drama" (SB, 15 Jan 1911) , "an
unfinished drama" (SB, 17 Jan 1911) , "an undercurrent after
the closing of the Political Consultative Assembly" (SB, 23
Jan 1911) , and finally a fight between "Blue Ballots Faction
and White Ballots Faction" (ST, 22 Jan 1911).
4. According to Dong Kang, the majority opinions from the

Bureau for the Preparation of the Constitution concurred with
removal of the Statute on Killing a Wife's Paramour. This
consensus was also shared by Lao Naixuan, the leading opponent
of the New Criminal Code.
267
5. Under the General Titles (mingli) of the Qing Code, there
was the principle of forbearance among relatives. That meant
that a person would go unpunished if he/she did not report a
crime committed by his/her relatives. These relatives include
those who lived in the same household, relatives in the third
degree of mourning, grandparents, grandchildren, parents-in-
law, son-in-law, wives of grandchildren, brothers of the
husband, and wives of the brothers (DLCY) .
6. That is, legal immunity would not be granted when the

intercourse was not completed, or when the adulterer was
subdued after the intercourse was completed, or when the
adulterer was arrested outside the spot of adultery.
7. Chapter Fourteen of the Tang Code stipulated the seven

grounds to divorce a wife: inability to bear sons, adultery,
failure to serve her in-laws properly, loquacity, a thievish
nature, jealousy and serious illness (The. Commentary to the
Tang Code Tanglu. shuji, Taiwan 1980 reprint: 184).
8. The husband was not allowed to divorce a wife if one of

these factors applied: the wife had mourned her husband's
parents for three years, the husband had risen from poverty to
riches during the time of his marriage, the wife had no family
of her own to go to (Zhang, The Commentary to the Tang Code,
Taiwan 1980 reprint: 185).
9. The information provided by the single sub-statute of the

Statute on Divorce (chuqi) was opposite to what was mentioned
by Shen Jiaben. The sub-statute which was copied from the
Ming Code stipulated that adulterous wives would not be
entitled to the three situations that protected the wife from
unjustifiable divorce by her husband (DLCY).
10. Shen also suggested not including a fornication section in

the main text of the New Criminal Code, first by making
reference to European legal codes and foreigners' opinions,
and then by making reference to the Confucian notions of
morality and penal punishment. Shen argued that foreigners
would find the fornication section most eye-catching and
repugnant. Fornication should not be covered in the criminal
code because it was a matter of social morality and education,
and not law. To Shen, the Confucian saying of "matching with
268
penal punishment and matching with propriety (qizhi yixing,
you qizhi yili) " meant that the two belonged to different
categories (Lao, 1927/1964: 29).
11. According to the Qingchao xu wenxian tongkao (abbreviated

as WXTK hereafter) , one of the major law reforms was the
abolition of corporal punishment. The five categories of main
penal punishments proposed by the first draft of the New
Criminal Code were as follows:
1. death penalty;
2. life imprisonment;
3 . imprisonment
first degree (10 years to 15 years),
second degree (5 years to 10 years),
third degree (3 years to 5 years),
fourth degree (1 year to 3 years),
fifth degree (1 month to 1 year);
4. less than one-month detention
5. monetary fine (WXTK: 9897).
12. The other four articles of the Interim Provisions were as

follows:
The first article stated that other than strangulation,
decapitation was the alternative method of the death penalty.
The second and third articles stated that the death penalty
would also be prescribed for wrongdoing against senior family
members such as theft and violations of tombs by mistake or in
the course of internal uprisings or outside invasion. The
fifth article stated that the claim to self defense was not
applicable to junior family members in relation to their
seniors (WXTK: 9918).
13. He first defended the proposed New Criminal Code on 2

December 1910, then on 8 Jan 1911 when the amendment of the
fornication section was put to the vote.
14. For the purpose of national rejuvenation, allegiance of

government officials should be shifted from the family to the
state. To that end, clansmen should be trained to earn a
livelihood. They should enjoy rights such as the freedom of
trade, freedom of residence and freedom of speech, but they
269
also had obligations to pay tax and be drafted. These rights
and obligations marked the beginning of leaving the family
behind and becoming a member of the state.
15. Shenbao on 17 Dec 1910 headlined "A Sequel to the Row over
the New Criminal Code"; Shuntian Shibao on 20 Dec 1910 and
Shenbao on 22 Dec 1910 headlined "The Row over the New
Criminal Code."
270
CHAPTER SEVEN
CONCLUSION
This study began by asking three questions: What was the
how did it relate to the formulation of idealized womanhood?
legal practice? How was popular culture different from legal
culture in terms of the construction of female criminality?
Apart from being viewed in Western scholarship as an
ideological statement and an instrument of control, the Qing
code has also been seen as an embodiment of the state1s
repressive attitude toward female sexuality. As is well-
known, this repressive attitude was epitomized by the state-
sponsored cult of widow chastity which reached its highest
point in the eighteenth and nineteenth centuries, and was also
buttressed by the rape laws which put the rape victims1s
chastity on trial. However, the research materials of this
study do not demonstrate a close relationship between the
repressive Neo-Confucianism and legislative changes. Instead,
they document the state's conscious effort to make adaptations
to social situations and practical problems.
271
Phillip Huang has illustrated the adaptability of the
state in his analysis of civil stipulations in the Qing code
(Huang, 1994). This study demonstrates that it is also true
for criminal stipulations on illicit sex and adultery-related
homicide cases. The most pressing practical problem that
faced the Qing state was the need to maintain a balance
between an insistence on sexual and human morality on one hand
and the principle of justice on the other.
Like its predecessors, the Qing state saw the centrality
of sexual morality and family morality in the preservation of
social morality. It therefore placed paramount importance on
the role of the family in the eradication of debauchery. The
Statute of Sexual Violations allowed the husband or his
parents in the absence of the husband to bring forth an
adultery charge against the wife or the daughter-in-law. More
importantly, the Statute of Killing a Wife's Paramour granted
the husband legal immunity for killing his wife and her
paramour right at the site of adultery. The study of the
Statute of Killing a Wife's Paramour has demonstrated that the
Qing state gave heightened emphasis to the role of the family
in the eradication of debauchery through an extension of the
husband's legal privilege to the parents and grandparents of
272
the husband and the wife in 1789, and to the family who kept
an adopted daughter-in-law in 1802. A 1768 amendment also
resulted in shifting the greater amount of guilt for only
killing his adulterous wife from the husband to the adulterer.
The state's firm stance in the preservation of moral
order was best seen in the severe punishment it prescribed for
the premeditated murder of the husband by his adulterous wife
and her paramour. Apart from granting legal immunity to the
husband, the Statute of Killing a Wife's Paramour sentenced
the adulteress-murderess to the most severe punishment of
death by slicing. The state's insistence on upholding moral
order was seen in its quick move to establish a moral exemplar
in the treatment of adulteress-murderesses in early Qing. An
examination of the commonplace case records shows that the
judicial officials resorted to heavily moralistic overtones in
the preparation of case files on adulteress-murderesses.
However, at the same time, the Qing state paid equally
significant attention to a host of practical problems and made
necessary adaptations accordingly. For example, the
moralistic overtones were replaced by a legalistic language
and a fixed format in the Qianlong reign (1736-1795) when a
consolidated Qing rule did not see the need to use a display
273
of moralistic overtones as a means of legitimation. In other
words, the prevalence of heavily moralistic overtones in early
Qing case files and the emergence of standardized crime
reporting in the high point of Qing rule primarily came from
pragmatic concerns.
This study sees the legislative changes neither as merely
a manifestation of an increasingly repressive attitude toward
sexual morality or as a deliberate shift in the official
ideology of female criminality. Instead, it suggests that the
promulgation and revision of sub-statutes be understood as the
state's effort to demonstrate the principle of differentiation
that characterized Qing legal practice as a whole. In
consideration of the degree of the husband's complicity in the
adulterous relationship and the degree of the wife's
complicity in the premeditated murder, the codifiers
prescribed a range of differentiated punishments so that the
judicial officials could have a space to negotiate a
punishment fit for the crime.
As already mentioned, the prescribed punishment for a
convicted adulteress-murderess was death by slicing. The
study of the sub-statutes and the commonplace case files shows
that the Qing state did not refrain from levying that
274
punishment. The only major change in the treatment of
adulteress-murderess was the 1726 introduction of a reduced
punishment for those adulterous women who were found to have
had feelings for their husbands. The mitigating circumstances
for an adulterous wife referred to the situation in which she
was proved to have yelled for help right at the murder scene
and reported the crime to the magistrate immediately
afterwards. The 1726 edict demanded that judicial officials
first sentence her to strangulation after the assizes as if
she did not know of her paramour's plan to kill, and then to
file a request for imperial pardon. For the Yongzheng emperor
(1723-1735) , the aim of this legislative change was to
encourage adulteress-murderesses to turn themselves in to the
local authorities. Again, the introduction of these
mitigating circumstances provides another example of the
state1s adaptations to pragmatic concerns.
One major reason for the state's constant efforts to make
adaptations was the insurmountable task of bridging the gap
between the codified law and its practice. For example, the
study of reversed cases regarding the various mitigating
circumstances faced by the adulteress-murderess shows that
judicial officials often mistook a premeditated murder of the
275
husband by the adulterer (adultery-murder) for an
unintentional killing of the husband by the adulterer during
the apprehension of the adultery (adultery-related murder) .
This mistake could result in a comparatively light final
sentence that ranged from an exile to a bamboo beating and
cangue.
The possibility of false accusation also posed a pressing
problem for the judicial officials in the adjudication of
adultery-related cases. Given the debauchery and ambiguous
nature of adultery matters, the Qing state had to deal with
the practical problems of proving simple adultery and deciding
who had the right to bring forth an adultery charge. As the
study of the magistrate handbooks has demonstrated, the major
practical problem with the adjudication of simple adultery
cases was the tension between the need of the judicial
officials to uphold sexual propriety, the need to protect a
woman's and her family's reputation, and the need to face the
problem of false accusation. In response to these problems,
the Statute of Sexual Violations stipulated that an adultery
charge could be brought neither by an adulterous woman herself
or a non-family member. Moreover, even when both the
adulterous woman and her paramour were caught right at the
276
site of adultery and were finally convicted of adultery, they
would only receive a punishment of 100 blows and one-month
cangue. This mild punishment shows that the state was not
preoccupied only with rigidly legalistic and moralistic
concerns. Pragmatic considerations, such as the tremendous
pressure that faced an alleged adulteress and her family, were
equally important. The alleged adulteress, in particular,
would be overwhelmed with shame during courtroom interrogation
and the extra humiliation during bamboo beating if convicted.
The problem of false accusation was particularly alarming
in cases of the justifiable killing of the adulterous couple
by the husband. And the Qing state witnessed a heightened
emphasis on the prevention of fabricating an adulterous
relationship as an excuse to kill. The Statute of Killing a
Wife1s Paramour therefore underwent significant changes both
in the statute itself and in the sub-statutes.
The Statute underwent a major change when it was copied
from the Ming Code and then again when it was revised in the
Qianlong period. Since changes were usually made to the sub
statutes, this rare instance of introducing changes to the
statute itself is illuminative. For cases of killing the
adulterer right at the spot of adultery but sparing the life
277
of the adulterous wife, the Ming Code left the husband a
choice: he could divorce her by sending her back to her natal
family or by selling her into marriage to another man, or he
could keep her. However, this discretionary power of the
husband over his adulterous wife provided by the Ming statute
was replaced first with an enslavement of the adulterous wife
in 1726 and then with a mandatory sale in 1741. This
mandatory sale of the adulterous wife meant an immediate
family dissolution and that became a punishment of the husband
for his unauthorized killing of the adulterer.
In order to further avoid an abuse of the husband's legal
immunity, those who shared a common residence and those who
had the power to make arrest were stripped of the right to
apprehend an adulterous couple in 1741. This 1741 amendment
made the apprehension of the adulterous couple strictly a
family matter. In so doing, the Qing state tried to stop the
malicious intent to use the husband's right to a justifiable
killing of the adulterous couple as a pretext for legal
slaughter.
The study of the Xiaobaicai's case has demonstrated that
the criminal justice process of Qing China enabled an
individual to seek redress in case of a miscarriage of
278
justice. After a three-year long petition, the alleged
adulterous couple, who was falsely accused of a premeditated
murder of the husband, was finally acquitted in the grand
retrial in 1877. Despite the fact that the Xiaobaicai's case
took place in the post-Taiping Rebellion (1850-1864) era,
which was perceived as a deterioration of moral standards in
local communities, the official version of the case neither
made special effort to inculcate female virtues nor to condemn
female criminality. The Board of Punishments did reprimand
Xiaobaicai's violation of the so-called womanly way because
she was not sensitive enough to stop the rumours from
circulating about her conduct. Yet, the Board saw Xiaobaicai
as a victim of judicial misconduct and thus sentenced her to
a punishment less than that for Yang Naiwu. The views of the
Zhej iang gentry and the press were different: they put the
credibility of Xiaobaicai on the spot and blamed her for
having falsely accused Yang Naiwu. This duality in the
perception of female criminality was shaped by their different
practical concerns— to tighten control over the rising
regional powers on the part of the central government and to
criticize the defects of the judicial system on the part of
the Zhej iang gentry and the press.
279
With regards to the question of the integration of
official culture and popular culture, the Xiaobaicai's case
has also provided an excellent example of how the popular
version of female criminality differed from the official
record and journalistic reports. The tanci script
foregrounded the complexities of human sentiments and moral
dilemmas. A sympathetic attitude for the plight of an
adulterous woman permeated an assortment of popular literature
from the late Qing to contemporary times.
The major difference between the official version of the
Xiaobaicai case and its popular version was the portrayal of
the critical moments when Xiaobaicai had to make difficult
decisions about her relationships with Yang Naiwu and the son
of the local magistrate. Instead of depicting a promiscuous
image, the tanci script saw Xiaobaicai as an adulterous woman
who was betrayed by the son of the local magistrate and was
torn by remorse for having falsely accused Yang Naiwu. This
popular perception of female criminality was informed by the
difficulties that ordinary people faced in the moral practices
of their everyday life.
The state's effort to make adaptations to changing social
realities was best seen in its full-scale law reform (1901-
280
1911) in the late Qing. Shen Jiaben's (1840-1913) legal
treatise, which had successfully called for an abolition of
the husband's legal immunity for the killing of the adulterous
couple, was grounded in a host of pragmatic considerations
ranging from legal reasoning to the people's livelihood. The
law reformers, however, faced tremendous obstacles in their
attempt to introduce changes to the law on illicit sex. While
the Qing code had penalized simple adultery both for a married
woman (youfu) and a woman who did not have a husband (wufu) ,
the proposed New Criminal Code (1907) suggested not to punish
fornication by unmarried women. This change, together with an
introduction of Western models of legal codes, meant an
assimilation of Western legal systems. The embrace of Western
legal models was driven by an imminent need to achieve a
speedy relinquishment of extraterriality and thus to save the
country from foreign encroachment. However, this move would
bring about a complete overhaul of the legal system and
therefore raised an important question of the relationship
between human morality and law. The study of the proposed New
Criminal Code demonstrates that law reformers were engaged in
a unprecedentedly public debate on the relationship between an
assimilation of Western legal models and the preservation of
281
social custom. The inclusion of a punishment for fornication
by unmarried women in the Interim Provisions was an excellent
example of how the Qing state had adapted to the needs of the
various political forces. It was hoped that the proposed New
Criminal Code would win approval from Western countries and at
the same time pacify opponents at home.
The debate also gives a nice round-up to the main theme
of this study. Those who championed moral teachings won the
battle in safeguarding the paramount role of the family in
moral development and sexual morality. Women, both married
and unmarried were to remain under the close supervision of
their immediate families. At the same time, those who
championed moral teachings and those who advocated for an
assimilation of Western legal codes had to admit that law must
be seen as an idea as well as an institution. The
institutional dimensions were subject to changes in response
to the changing social situations and political circumstances.
282
GLOSSARY
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anyu gcfg
baipiao dang
bakai Aifl
bianyi jian
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bo’an mm
buan yu shi
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buying zhonglu
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mzuc&b
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chizhong Jfit
Chufen zeli M frM M
chuji shenpan ting
chunu MtC
Chun Qinwang ®PH3i
Congzheng yigui $£®GE§M
cun if
283
Da Qing huidian
Da Qing luli anyu
Da Qing xianxing xinglu
Da Qing xin xinglu cao’an
da’an
dagong jO fc
Dalisi
dangguan jiamai shenjia ruguan
dangjuzhe mi, pangguanzhe qing
daogu
dengshi
diaojian
dibao VfeM.
digu W &
dimu IffiM
Dong Kang Iffflf
Dongfang zazhi
duanming ifrnp
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dubu # 1 §
Duchayuan
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dun mou shaji
dun qi shaji
en ©
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fabu j£nl$
falu bianzuan guan
falu guan ^
fali j&JII
284
fanjian 2 E H
fanzui zishou ^BfiEiilf
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fei dengshi bingsha
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fenze frW i
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fudao $ m l
Fuhui quanshu fgl£§Hlr
funu fanzui $ § ^ E H
funu youfan, zui zuo funan
fushi yong yi shedi ye
Gao Lingxiao WSlW-

Gaoyao iHiH
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gesheng mingdao zhanjiao zhongan qingce |Ff|
gong fanzui fen shoucong
gongfa
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guagu # £ £
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guojia zhuyi W^L^cM
Hangzhou t/vM
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Hu Ruilan
285
Huang Entong
Huang Liuhong tIt/v SI
huanjue yongyuan jianjin
huanjue
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hunyin jianqing WSmW
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Reproduced with permission o f the copyright owner. Further reproduction prohibited without permission.
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liie ren luemai ren B&AB&SIA

liili fHJJI
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Luzhou gong'an
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Man Han liubu chengyu
meipo
mianzui cigui
mielun fanji iSfrfiMBIfi
Ming Qing dang’an
Mingxing guanjianlu
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pingju ffiM
qia’an
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qianpo JEtcil
qiashang IIH1I
qichu -fcrtB
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qiyi & M
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Female Criminality in Qing China:

Adulteress-Murderesses in Legal and Popular Culture,

A dissertation submitted in partial satisfaction of the

requirements for the degree Doctor of Philosophy

Sau-chu Alison Yeung

UMI Microform 9726019

This microform edition is protected against unauthorized

Sau-chu Alison Yeung

Kathryn Bernhardt, Committee Chair

University of California, Los Angeles

2. Adultery Cases: Codified Law and Legal Practice 15

3. Adulteress-Murderess: The Gap between the Statute and its Sub-statutes 50

5. Xiaobaicai and Yang Naiwu: The Meanings of Female Criminality 164

I want to express my deepest appreciation to my all-women

dissertation committee members--Professors Kathryn Bernhardt,

Francesca Bray, Kathryn Norberg, Miriam Silverberg and Mariko

Tamanoi. Their professional specializations and academic

achievements provide me with a wide range of intellectual

inspiration. Their scholarly commitments assure me that I

could also make humble contribution to academia. My special

thanks go to my adviser Professor Kathryn Bernhardt for giving

me the freedom to explore my research on women and criminal

law, and for giving me useful comments on my writings

throughout my entire graduate career at UCLA.

Financial support for the research year was provided by

the generous support of the Chiang Ching-kou Foundation/JCCS

Dissertation Fellowship in Chinese Studies that made my

research trips to Taiwan and Hong Kong possible. Research

materials were collected with indispensable assistance of the

staff of the Chinese collections at several major libraries

and archives--the East Asian Languages Library and the

reference library at UCLA, the Library of the Institute of

M o d e m History and the Fu Ssu-nien Library at Academia Sinica,

the branch office of the Genealogical Society of Utah in Hong

Kong, the Fung Ping-Shan Library at the University of Hong

Kong, the reference library at the Chinese University of Hong

Kong (CUHK) , the Number One Historical Archives in Beijing,

the National Library of China in Beijing, the libraries at

Peking University and at the China University of Political

Sciences and Law.

I am grateful for the hospitality that made my research

trips in Taipei and Beijing productive and enjoyable.

Professors Angela Leung and Chang Wei-jen at Academia Sinica,

Wei Jingyuan at the People's University of China, Jing

Junjian, Guo Songyi and Du Wanyan at the Chinese Academy of

Social Sciences, Yan Chongnian at the Beijing Academy of

Social Sciences, Li Guilian at Peking University, and Zheng

Qin at the China University of Political Science and Law.

I want to pay tribute to my all-male thesis advisers in

Hong Kong--Professors David Faure and Bernard Luk. My

heartfelt thanks go to my family, friends and colleagues in

Hong Kong for their support at various stages of my graduate

1982-1987 Highschool History Teacher

1989 M.A., Education

1990-1993 Research Assistant, Teaching Assistant and