MAGISTRATE ZHU: His glittering career in the capital Kaifeng stalled due to a terrible error of judgement, the 30-year old Magistrate Zhu has accepted a posting to a remote district in Sichuan near to the border with Tibet in the hope of regaining his honour and restarting his career. Thinking his time in the district seat of Tranquil Mountain will hardly be a test for his formidable legal skills and that all he need do is bide his time until his short tenure is up and then to return to Kaifeng, he finds Tranquil Mountain to be not quite as tranquil as expected. The tea-growing district is not as wealthy as it had once been and discontent is rife. Furthermore, a shocking murder has occurred that seemingly defies natural explanation, and there is a complicated legal dispute that has been festering for years in regard to a beguiling young seamstress named Jade Moon that demands his immediate attention. Then, to cap it all, when an important government official disappears, the almost universally hated Tea Inspector Fang, Magistrate Zhu quickly realises that, rather than be straightforward and comfortable, his tenure in Tranquil Mountain might instead be the death of him.

JADE MOON: Life has not been easy for this 19 -year old seamstress. Losing her adored father – an expert barbarian archer – at a young age, Jade Moon’s mother decided a new start was needed, moving them the vast distance south from the northern border to begin a new life in Tranquil Mountain. Unfortunately, on arrival their resources were all spent. In order to set up in business and buy tools raw materials, her mother, Madame Tang, made the fateful decision to contract with the local noble family Zhou for Jade Moon to enter into the Zhou household as a concubine when she reached the age of seventeen in exchange for some much-needed cash. But then, days before her seventeenth birthday, bandits came to Tranquil Mountain. Seeing no option but to take up her father’s bow, and utilising all the skills he had taught her, Jade Moon saved the day by shooting an arrow through the bandit-leader’s heart. Many thought her a heroine for what she had done. Some even thought her possessed by a goddess. Whatever the truth, Madame Tang took the opportunity to now renege on the contract she had made and not to send her daughter to the Zhou household on her birthday, thereby provoking a bitter legal dispute – a dispute that two long years later awaits the attention of the fascinating (to Jade Moon at least) Magistrate Zhu.

HORSE (SENIOR CONSTABLE HE): The son of Blacksmith He and considered by his father to be too clumsy to follow in the family business, Horse had the good fortune to taken under the wing of the late Constable Wang. As the first of the constables to be recruited, and as the oldest being 18 years of age, Horse is senior at the time of Magistrate Zhu’s arrival. He is big, strong and eminently sensible, and asks – to Magistrate Zhu’s amazement – the most interesting questions. He is widely respected throughout Tranquil Mountain and considers himself a friend to Jade Moon.

FAST DENG and SLOW DENG (CONSTABLES DENG): No one in Tranquil Mountain quite knows how these two clever and devious seventeen-year old twins pulled a fast one over the late Magistrate Qian and got themselves employed as constables. As the sons of Butcher Deng they are not due to inherit the family business. That is intended for their elder brother Pork Chop. So it was widely assumed – their moral centres somewhat compromised – that they were heading for a life of crime until Magistrate Qian for some reason saw fit to recruit them. Sharp, witty, and always looking for a way to make it rich, Fast Deng and Slow Deng are so named as Fast Deng was the first into the world, with Slow Deng arriving just after, much as still happens now whenever they have somewhere to go.

LITTLE OX (CONSTABLE WU): A favourite of all the children in Tranquil Mountain, Little Ox is famous for walking the long way back to town from Chengdu on his own after the sudden death of his father, braving all manner of goblins, ogres, witches and evil spirits along the lonely forest and mountain trails. Finding his mother also dead on returning to Tranquil Mountain, Little Ox was lucky to be recruited as a constable, his best friend Horse having spoken to Magistrate Qian on his behalf. The youngest of all the constables, not quite seventeen, Little Ox is strong, brave, quiet and thoughtful.

At the time of the Song Dynasty (960 – 1279CE), China was the most advanced, most populous state in the world. The population was close to 100 million with about a million living in the capital Kaifeng alone – a figure that would not be reached by London until the end of the 17^th Century. Due to the chaos of the two centuries that preceded the Song, there had been a general movement of the population from the millet and wheat growing north to the rice growing south. This migration continued during the Song and permanently shifted the ‘gravity’ of China to where it remains to this day.

The Song Dynasty is usually split by historians into two periods: the Northern Song (960 – 1126CE) and the Southern Song (1127 – 1279CE). The first emperor of the Song, Taizu, was a former palace general who understood too well the threat posed by a powerful military force and independent regional armies in regard to the creation of a stable regime. On accession to the throne, he therefore pensioned off his own senior commanders and placed the military under civilian control, ushering in a time where the civil principle (wén) was promoted over the military principle (wŭ). This often led to a policy of appeasing the powerful neighbours to the north – the barbarian Tanguts (Xi Xia) and Khitan (Liao) – by the negotiation of treaties that involved the making of substantial annual payments.

However, open warfare was not always to be avoided and during the Northern Song the size of the army rose to well over a million men and the military budget would exceed three quarters of the state revenue. In the year 1115, to the north of the Khitans, arose another people, the Jurchens (Jin). The Song formed an alliance with the Jurchens, hoping they would help with the struggle against their old foes the Khitans and the Tanguts. Unfortunately, this alliance would prove disastrous. In the year 1126, the Jurchens turned upon the Song and sacked the capital Kaifeng, taking the Emperor Huizong captive. He was to die in captivity in the year 1135. The Song was forced to transfer their capital south to Hangzhou and managed to stabilise the border about the Huai River. This then began the period of the Southern Song which was only ended in the year 1279 with the conquest of China by the Mongols.

It was during the Song, in line with pre-eminence given to the civil over the military, that there emerged the scholar-official class. Scholar-officials would form a social, political and cultural elite the like of which was not to be seen in any other civilization and would certainly differentiate China from every other society in Asia.

During the earlier Sui and Tang Dynasties an examination system had been used to select candidates for the civil service. During the Song this examination system was greatly expanded. The prestige of these examinations became very high as rapid promotion within the civil service, and therefore career and social success, depended on passing. By the end of the Song, hundreds of thousands of men were taking the examinations each year in the hope of passing and securing the relatively few civil service posts that in turn would lead to a life of privilege and wealth. The scholar-officials would dominate Chinese society until the cessation of the examination system in the year 1905 and the collapse of the Qing Dynasty in 1911.

The replacement of the old aristocratic elite of earlier dynasties by the scholar-officials was only one aspect that was ‘revolutionary’ about the Song. Though Confucian values were in the ascendant, and it was during the Song that the conservative movement that would become known as Neo-Confucianism came into being, there was also tremendous industrial and commercial expansion. Prior to the Song, the merchant class had been considered parasitical to society by Confucian thought. Now, though, this was not the case. Trade, both domestic and foreign, was actively encouraged. Domestically, this led to the setting up of many commercial ventures with credit widely available, the opening up of 24 hour markets in the major cities, and the setting up of trade guilds. Internationally, this led to a massive expansion of maritime trade. Diplomatic missions were even sent to other Asian countries to persuade their traders to come to China. The national revenue from taxes during the Song was as much as nine times that of the future Ming Dynasty (1368 – 1644CE). Traditional industries such as silk, lacquer and ceramics reached their highest levels of technical perfection during the Song, with these highly manufactured goods, as well as large amounts of bronze coinage, often exported. In terms of imports, the people of the Song could never get enough of consumables, such as spices, drugs, aromatics and perfumes.

Allied to the expansion of the economy under the Song was the introduction of the world’s first paper money. Paper money first emerged in Sichuan initially as promissory notes issued by traders. Due to a shortage of bronze coins the government allowed only iron coins to be circulated in Sichuan. However, with these iron coins far too heavy to transport over great distance, Sichuanese merchants came to rely on promissory notes instead. The government eventually took over the monopoly on these notes in the year 1023 with the founding of the Bureau of Exchange Medium. By the end of the 11^th Century paper money was in circulation all over China.

The Song was not only a time of great industrial and commercial expansion but also of technological advancement. By the year 1078 the output of iron was six times greater than it had been at the end of the 9^th Century. This iron went into the making of arms and armour as well as into the production of tools and of nails for the numerous ships that were now plying the inland waterways and the seas. The year 1119 saw the first reported use of the compass. The need to compete with first the Tanguts and Khitans, and then the Jurchen and the Mongols, saw a rapid evolution in military technology and in the use of gunpowder in particular, primarily in the introduction of firearms, firebombs, rocket-assisted arrows and basic fragmentation bombs.

It should be no surprise to any that the rise of the scholar-official elite occurred at the same time as a massive expansion in the book-printing industry. The earliest printing of books seems to have occurred in the 7^th and 8^th Centuries under the Tang Dynasty. However, then the majority of the printed works were religious in nature and printing was monopolised by either the state or by monasteries. By the 9^th Century the private printing industry had become to grow in importance, especially in Sichuan, and by the time of the Song all manner of books were being printed. These books were not just the Classics, but also histories, dictionaries and occult works as well as technical books on agronomy, astronomy, mathematics and medicine. During the Song, literacy levels may have risen to as much as 1 in 10, with both men and women from the elite families being able to read. The printing of medical books assisted in the promotion of public health and many officials actually chose to study medicine. An imperial pharmacy was established in the year 1076 which controlled the prices and availability of medicinal drugs. There was also a great concentration on the field of women’s medicine which was seen as an attractive specialism for many physicians of the time.

The position of women under the Song was complicated. During the earlier Tang Dynasty, women had actually taken part in court politics – there had in fact been a woman empress, Wu Zetian (624 – 705CE) – and participated in sports such as archery and polo. But, with the rise of the Neo-Confucian movement during the Song, women were encouraged to be more modest and refined, and to devote all their energies to the care of their husbands, children, and extended family. In the elite households, the men’s and women’s quarters became separated. It was considered improper for a woman to remarry on the death of her husband. The Song was also the time when footbinding began to spread across China. Once a practice probably confined to palace dancers during the 10^th and 11^th Centuries, by the time of the Southern Song it had become fashionable for the women of elite families to bind their daughters’ feet.

On the other hand, women’s property rights were relatively secure during the Song. Many women could read and write and would assist in the education of their children. And for those whose husbands were officials, they would often act as ‘advisors’ to assist their husbands in their careers. It was not unknown for women to manage commercial ventures, or to be employed as local midwives, or even to enter into religious service as nuns, for example, and work for the good of the people. And, though remarriage for a widow was frowned upon by the Neo-Confucians, and that legally only a husband could ask for a divorce, there are many stated cases from the Song where widows did remarry and where judges did allow wives a requested divorce.

Finally, it is worth noting the Song Dynasty was a time of relative good governance. There were no real tyrants among the emperors and many of the scholar-officials devoted their lives not to their own personal advancement but to the good of the people and the state.

To quote one historian, Dieter Kuhn, ‘…at the height of its prosperity the Song was one of the most human, cultured and intellectual societies in Chinese history, and perhaps in all of world history.’

Chinese dynastic law was a curious compromise between two competing ideologies: Confucianism and Legalism.

Confucius (551 – 479 BCE) looked on the law with some disdain. He thought that the law only had a minor role to play in the governing of society. More important for the wellbeing of society, he thought, was the observance of proper rituals or lĭ – essentially a code of propriety. For Confucius, punishment was necessary sometimes, but the most important means of governing society was virtue. If a government is virtuous, then the people – whether by nature basically good or bad – will be persuaded to be virtuous themselves. As virtue persuades, law compels – law therefore the instrument of a tyrannical, rather than a virtuous, government.

For Confucius, the rules of lĭ were created by the ancient sages who properly comprehended human nature and the cosmic order. By contrast, laws are written by modern men as a means to achieve political power and control.

Confucianism states there are five major relationships: father and son, ruler and subject, husband and wife, elder brother and younger brother, and friend and friend. The maintenance of these relationships is considered essential for a stable society. The rules of lĭ uphold these relationships and describe how each person should behave according to their status. For example, the ideal ruler is benevolent, the ideal subject is loyal; the ideal husband is righteous, the ideal wife is submissive; and so on. Law, by contrast, applies to everyone equally, regardless of status and place in society, destroying these major relationships by not distinguishing between them.

If society is governed by lĭ then it will be harmonious because, as the rules of lĭ are unwritten, the rules of lĭ can be interpreted to meet any situation that might arise. Law, on the other hand, is no better than those who create it. Furthermore, the people, who know the written law, will always find ways to circumvent it.

Legalism takes a much more cynical view of human nature. Though a few people might indeed be by nature good, the majority are governed by self-interest and cannot be persuaded to be moral by moral leadership alone. Therefore, if society is to be properly governed then strict laws must be published and enacted (fă), and applied equally to all regardless of status or position in society, with a system of rewards and punishments to induce the people to do as the government desires.

Under the legalist ideology, law then becomes the basis of a stable government. Because the law is written and known to all, the law can be used as an exact measure of the behaviour of the people. Contrast this to the rules of lĭ which are not written and which are subject to arbitrary interpretation. It is not that legalists objected to social distinctions, it was just that they considered such distinctions unimportant and irrelevant to the business of government. In essence then, for the legalists, rule of law (fă) was superior to the rule of men.

The argument between the opposing ideologies of Confucianism and Legalism raged for about three hundred years from around 500 to 230 BCE. It is probable that the first manifestation of the legalist position appeared in 536BCE with the inscribing – ordered by the Prime Minister of the state of Zheng, Zi Chan – of the Xíng shū, or ‘Books of Punishment’ on a set of bronze tripod vessels, the vessels representing authority. It could then be said that the argument between the opposing ideologies was won by the legalists with the unification of China under the Qin Dynasty in 221BCE. A harsh legalist regime was imposed by Ying Zheng, who took the title Qin Shi Huangdi, ‘The First August Emperor’ of the Qin. The law, the Qin Code, was so harsh that the people were soon seething with rebellion. Confucian books were ordered burned and 460 scholars were, apparently, buried alive – though this is now disputed by modern scholars. The Qin Dynasty collapsed in 207BCE to be replaced with the Han Dynasty which was to rule for the next 400 years.

Though the law under the Han dynasty – the Han Code – has been lost, it is known that it adopted precedents from the Qin Dynasty. However, under the first Han emperor, Gaozu, Confucianism had made a return. Also added to the mix were Daoist cosmological ideas, the primal forces of yīn and yáng (the dark and the light, the feminine and the masculine), as well as the concept of the five elements: wood, fire, earth, metal and water. Also of importance was the understanding that as all parts of the universe were interdependent, it was incumbent on the individual to conform to the rules so as not to upset the cosmic balance. This mixture of traditional Confucianism, Daoist and other cosmological philosophies came to be known as ‘Imperial Confucianism’, and the Han Code, when it was promulgated in about 200BCE, was a combination of both Legalist and Imperial Confucian ideologies.

Unlike the Han Code, the law of the Tang Dynasty (618-907CE), the Tang Code, has survived in its entirety. The Tang Code was promulgated in the first year of the reign of the Emperor Gaozu (619CE). But the code was expanded and revised until the most celebrated version was promulgated in the year 653CE. It is important to note that though the Tang Code has survived in its entirety there was a large body of other (supplemental) written law – statutes, regulations and ordinances – that have not completely survived. Furthermore, there was a lot of legal activity that occurred outside of the Tang Code, primarily the formation of, and the mediation of, commercial contracts and loans between private persons.

The influence of Imperial Confucianism on the Tang Code can be seen in two ways. Firstly, there was the need to maintain cosmic harmony. The Tang Code represents the yīn or the dark side of social control as opposed to the yáng which represents the light – ritual, morality and education. There was therefore a restriction on the number of death penalties, of which there were only two, strangulation and decapitation, as the number two is a yīn number. Executions could also only be performed when the yīn influence was in the ascendant which was during the autumn and winter seasons. The number five is also prevalent within the Tang Code, representing the five elements, such as the ‘five punishments’ (death, exile, penal servitude, beating with the heavy rod, and beating with the light rod) and the five degrees of family relationships.

Secondly, the Confucian concept of lĭ as discussed above is reflected in the Tang Code in that a person’s social or political status affected that person’s liability for punishment. For example, if a slave hit a common person then the slave’s punishment would be far greater than of a common person who had hit a slave. Moreover, if the offending party under the law was related to the Emperor or was a person of very high status then they would be given special dispensation under the law by way of the ‘Eight Deliberations’. It should be noted, given the Confucian insistence on filial piety, that there was hardly a greater crime in the Tang Dynasty than for a son to hit his father, whereas for a father to hit a son was not a crime at all.

It is difficult to underestimate the importance that the Tang Code would have, not only on the next thousand years of Chinese legal history but also on the rest of East Asia. The Tang Code served as a model for law codes enacted in Japan, Korea and Vietnam.

The Song Dynasty was established in the year 960CE after a period of disunity following the collapse of the Tang Dynasty. The Song Dynasty chose to adopt the Tang Code rather than create a new code from scratch, probably because the Tang Code was considered such a great achievement. The Song Code was first promulgated in the year 963CE. However, the supplemental law of the Tang Dynasty – the statutes, regulations and ordinances – were not adopted. The Song Dynasty chose to adopt its own statutes, regulations and ordinances to overlay the Song Code to reflect the many changes within society. Moreover, because the economy developed so quickly under the Song, it was necessary for new law written as imperial edicts to be issued on a regular basis. In addition to this supplemental law, legal compilations were created to help officials to find the correct applicable law as well as collections of judicial precedents.

It is this law, the Song Code, that our Magistrate Zhu enforces.

Except for a short period during the 11^th Century, it was illegal for private individuals during the Song Dynasty to print or copy the Song Code or even possess any of the code provisions. This was because it was considered that the law belonged exclusively to the Emperor and that if the people knew the law they would do whatever they could to circumvent it. This philosophy of secrecy would change in China but not until the Ming Dynasty.

The basic administrative unit of China during the Song Dynasty was the district (of which there were about 1200 in China at the time my fictional character Magistrate Zhu was working) which was also where the lowest court was situated. The district magistrate presided over the district court and also functioned as the district’s chief administrative officer. Therefore, not only was the magistrate the chief judge in the district, he was also responsible – among many other things – for the collection of taxes.

The district magistrate would usually work out of the district office or yámén. The yámén consisted of six sections. It was the punishment section that received legal complaints, which could be civil or criminal in nature, for the whole district. Attached to the punishment section would be the detention house (jail) and the archives. The magistrate would be supported by wardens and jailers to manage the detention house and a host of clerks to look after the archives. It should be noted that incarceration in a detention house was not used as a form of punishment. People were only confined in the detention house when they were awaiting trial or sentencing.

During the Song Dynasty the magistrate would not normally act as detective. Instead, sheriffs were employed to keep the peace, respond to reports of crimes and then investigate those crimes. Unlike earlier dynasties, the importance of separating the investigative and judicial functions was recognised in the Song Dynasty. These district sheriffs would have teams of constables working for them, otherwise known as archers. Also in support would be military inspectors and locally garrisoned soldiers. The constables were known as archers because their basic weapon was the bow, though they would carry other weapons as well such as spears clubs and even swords if they could afford them. Constables had a very bad reputation and were often considered as no better than criminals by the people. Unfortunately torture and beatings were allowed to gain information from subjects during the course of an investigation. Though, by a law of 1023, no more than twenty beatings were to be given to a subject, in practice sheriffs and constables – and sometimes even magistrates in trying to obtain a confession – showed no such restraint. Both police and military officials had the power to arrest those suspected of committing a crime. However, anyone could bring a criminal complaint or even capture a suspect in the hope of receiving a reward.

To avoid problems such as potential corruption, magistrates were almost always appointed to a district far from their home. For the very same reason, a magistrate’s tenure would also be short, usually lasting no more than two and half years, before they were moved on somewhere else. This system, though in itself well-meaning, would often cause problems in that the magistrate would never have time to learn much about the people of the district over which he was presiding and might even have difficulty understanding the local dialect.

The district court was usually open to all forms of litigation except during the farming season when the court would not hear minor disputes. This was so as not to interfere with the important work done by workers on farms during sowing and harvest times. In a book published in the year 1117 a district magistrate named Li Yuan-Bi gave us a detailed description of how he conducted his work. For litigation to commence a written complaint first had to be presented to the court. If the plaintiff could not write, then he/she would first consult a properly licensed scrivener. The scrivener would write the petition for the plaintiff if he considered the case had merit. Magistrate Li Yuan-Bi expected all received complaints to be deposited in his complaint box early every morning. The complaints would then be examined by the clerks of the punishment section to determine if each had a valid course of action. If so, they were then passed to Magistrate Li. After reading the complaint, Magistrate Li would dictate to the clerks a summons for all the parties involved in each complaint to attend the yámén by the mid-morning of an appointed day.

To reach a judgement, the magistrate first had to investigate the facts by interviewing all the parties concerned – plaintiffs, witnesses, and defendants – as well as reviewing all the material evidence and then, secondly, had to apply the law. Trials were not open to the public during the Song Dynasty. This was to change with the future Ming and Qing Dynasties. Also, defendants were not allowed any legal support or to call their own witnesses. Magistrates acted as both prosecution and defence.

For defendants, there was no presumption of innocence. Though there is nothing explicit within the Song Code that refers to the guilt or innocence of those defendants brought before a magistrate, it is clear from the case histories that for defendants to be brought at all before a magistrate it was considered that they had to be guilty of something. It was widely assumed at the time that no good or innocent person would ever get involved with the law. So, in practice, as guilt was often assumed, those defendants who protested their innocence would offer suffer the most severe beatings. It is also important to understand that no matter how compelling the material evidence against a defendant, by the Song Dynasty it had been customary in China for many years that no case was considered legally proven until the defendant had confessed to the crime. The use of judicial torture to extract confessions could often lead to serious injury or death for defendants as well as produce ‘unsafe’ confessions. It is also most likely that those who are innocent or weak were more likely to ‘confess’ under torture than hardened criminals.

However, the wiser magistrates understood very well the problem of relying on confessions extracted under torture. Indeed, those found guilty of the most serious of offences were able to appeal to a higher court, say the prefectural court, and repudiate their confession. Furthermore, a district magistrate could not sentence those defendants who had committed the worst of crimes. All capital cases, once the district magistrate had completed his initial investigation and the interrogation of the witnesses and defendants, had to be referred to a prefectural court for review and sentencing, together with the district magistrate’s completed file and preliminary opinion. If the prefectural court found that the district magistrate had made mistakes, or had relied upon a false confession, then the magistrate could find himself being severely criticised and even punished.

As soon as the defendant had made their confession and it had been transcribed by a clerk and read back to the defendant, the defendant would then sign the confession or make a mark. Only then would the first stage of the trial be considered concluded.

The next stage was to determine the applicable law. It is now that the law clerks came into their own. The clerks would research the relevant articles within the Song Code, as well as any supplemental law including compilations of case precedents, and present these to the magistrate for consideration. Unfortunately, though there is a lot of material preserved regarding criminal cases from the Qing Dynasty, there is little known in regard to how magistrates came to their decisions during earlier dynasties. Some notable collections of early cases have survived though, notably the Parallel Cases from Under the Pear Tree (Tang Yin Bi Shi) and especially the Collection of Enlightened Judgements (Qingming Ji) dating from the late Song Dynasty that was rediscovered in the mid-1980s. Using all the materials given him by the clerks, the magistrate would write his judgement, giving a brief outline of the case and the reasons for his decision. In civil cases, the magistrate would state the rights and any obligations of the plaintiff and defendant.

Due to their considered relative unimportance, all civil cases were meant to be determined at the district level. In reality, though, if a party felt particularly aggrieved, civil cases could be appealed at higher courts. In criminal cases, as already stated, a defendant could repudiate a confession and appeal to a higher court. It was not unknown for some cases to reach as far as the Emperor for final judgement. In fact some appeals might even be made to the magistrates, judges and courts of the afterlife….

Finally, in regard to civil disputes, many would have been resolved without recourse to being put before a magistrate. Not necessarily trusting the judicial process, plaintiffs would often allow their disputes to be resolved through the agency of traders’ guilds, or independent mediation, or with the intercession of village or family elders. Similarly, in regard to homicides, village elders would have almost certainly resorted to dealing with matters themselves from time to time, not wanting to bear the trouble or the cost of having a judicial investigation team descend upon them, or to be dragged as witnesses before a district magistrate in a forbidding yámén possibly some great distance away.