“Compassion for the Weak”: Juvenile Offenders in the Qing Dynasty Legal System *

The Meaning of “Weak”

When cases were memorialized, they were transmitted to the Board of Punishments, which conducted a thorough review of the case in conjunction with the other members of the Three Judicial Offices 三法司 and then memorialized the throne. ¹⁰ If the board felt that the facts of the case were unclear, that the case had been judged improperly, that the wrong laws had been applied, that there were procedural errors, or that there was any other sort of problematic issue, it would return such an opinion as well as the case record itself to the appropriate governor or governor-general for additional consideration. Such cases were considered “rejected” 题驳 (see Wang, 2009). Among the cases that note procedural errors, those errors mostly pertain to the memorialization process. ¹¹ Some that should have made a formal request did not make a formal request, and some that conversely should not have made a formal request did so anyway. In the case from Jiangsu that opened this discussion, the governor did not provide a formal request for setting aside punishment, and as a result the case was rejected by the board. If we look at the provisions in the Da Qing lüli, memorializing to request exemption from the death penalty was considered a special right enjoyed by those between eight and ten sui. Thirteen-sui Zhang Mazi clearly did not fall within that age range, so the Jiangsu governor was not at fault for not requesting such an exemption. But the board felt that the Jiangsu governor overlooked something that might not have been recorded in the legal code itself but had taken shape through legal practice and in fact had become a leading precedent: the case of Ding Qisanzai.

In the fifth month of the tenth year of the Yongzheng reign (1733), the Jiangxi governor, Xie Min, memorialized the following case: Ding Qisanzai, fourteen sui, and his paternal male third cousin, Ding Gouzai, four years his elder, were carrying loads of dirt. Ding Gouzai took advantage of Ding Qisanzai’s comparative youth and ordered him to take the heavier basket. Ding Gouzai also threw a clump of dirt at him, whereupon Ding Qisanzai threw a presumably quite hard clump of dirt back at him, and it hit Ding Gouzai straight in the lower abdomen and killed him. Ding Qisanzai was sentenced to strangulation after the assizes. But when the case reached the Yongzheng emperor, he issued the following edict: “Ding Qisanzai’s circumstances are forgivable 情有可原. [I] order leniency and a reprieve from the death penalty. In accordance with the substatutes, reduce [the punishment] one degree. Still pursue burial costs, to be given to the family of the deceased” (Wu, 1992 [Qing]: 267). Because of this decree, the Ding Qisanzai case became a precedent that could be analogized to in future cases. But what was the legal principle behind this new precedent? Was it to extend the scope of the category of juveniles eligible for memorialization-for-mercy to include those between eleven and fifteen sui? That is what Wan Nianmao, an imperial censor during the Qianlong era, believed.

In the ninth month of the tenth year of the Qianlong era (1745), the Hubei governor, Yan Sisheng, memorialized the case of Xiong Zongzheng, fifteen sui, who had beaten and killed a fellow clan member named Xiong Jianhou. The governor proposed a sentence of strangulation. While the case was under review at the central level, Wan Nianmao took note of the case. In Wan’s opinion, all cases with underage perpetrators ought to be eligible to invoke the precedent of the Ding Qisanzai case and memorialize the throne for leniency. Then Wan himself, without following the normal procedures, memorialized asking that Xiong Zongzheng be spared the death penalty and be allowed to monetarily redeem his sentence. In response, Qianlong ordered the case to be handed over for discussion at court and ordered the Board of Punishments to carefully explicate the differences in the reasoning used in the Xiong Zongzheng case and that of Ding Qisanzai. Officials at the Board of Punishments felt that the cases differed on two points: first, in the case of Ding Qisanzai it was the victim who was the instigator and bully, the victim who had in essence provoked the violence, whereas in the case of Xiong Zongzheng, it was Xiong who was the first person to act in the wrong; second, Ding Qisanzai had picked up a clod of dirt and thrown it, mistakenly striking the victim and killing him, while Xiong Zongzheng used a lethal weapon 凶器. As a result, “the circumstances of [Xiong Zongzheng’s] case were comparatively serious, making it hard to grant [him] leniency.” The board thus ruled that the Ding Qisanzai case would not apply here, and in the wake of this case the Nine Chief Ministers issued the following policy, “Hereafter, in all cases of homicide perpetrators who are fifteen sui and younger, order the governor- general in question to investigate. For those where the circumstances truly match with those of the Ding Qisanzai case, cite [that case] and make a formal request [for avoidance of the death penalty]. Wait for the emperor’s decision” (Da Qing Gaozong chun [Qianlong] huangdi shilu, 1970: 3540; Wu, 1992 [Qing]: 267). Here we see that circumstances, and not just clear-cut age ranges, became a key factor in determining who was eligible to memorialize for mercy.

The issue of sympathetic circumstances was a complicated one, and in some instances, circumstances could now override previously accepted policies for the young. In another case, from Yanting county, Sichuan, in 1779, Liu Mizi, nine sui, had assaulted and killed Li Zixiang. The governor-general of Sichuan proposed a sentence of strangulation after the assizes, in accordance with the law, and memorialized for mercy. The reply he received was unexpected: despite the offender falling in the eight-to-ten sui age group eligible for memorialization for mercy, that mercy was not granted. It turned out that offender and victim in the case were both nine sui. Trouble had arisen when Liu Mizi asked Li Zixiang for some fava beans and Li Zixiang was not willing to give him any. Liu Mizi was angered and beat up Li Zixiang, who fell down and died. Likely out of indignation over Liu Mizi’s unreasonable actions, and because of a desire to make an example out of Liu, Qianlong issued the following decree:

From now on, in killing in an affray cases where the perpetrators are ten sui and younger, if the victim is four or more years older than the perpetrator, follow the usual practice of memorializing the request [to avoid the death penalty]. If the age difference is three years or less, then [they are] roughly the same age. It cannot be considered a case of the victim having taken advantage of an age difference to bully and humiliate the younger party, or the younger party turning out to have more strength. [In such cases], even if we do not order [offenders to give their life in] compensation, they should be taken into custody for several years. The Board of Punishments shall decide again on a verdict and memorialize a proposed sentence, and Liu Mizi will be handled in accordance with this new substatute. (Wu, 1992 [Qing]: 267)

Not only did the Qianlong emperor fail to mitigate or annul Liu Mizi’s punishment, he put limits on the right of juvenile offenders ten sui and under to have their cases memorialized for imperial leniency 上请—a right that had previously been guaranteed them by the Qing Code. The Board of Punishments quickly complied with the emperor’s decree, creating a new substatute for the code in 1783 that read:

Henceforth, in killing in an affray cases where the perpetrators are ten sui and younger, if the victim is four or more years older than the perpetrator, it can be memorialized to the throne [to ask for imperial leniency]. If the age difference is three years or less, propose a sentence of strangulation after the assizes. It is not permitted to memorialize the throne. In cases of affray killing wherein [the offender is] fifteen sui or younger and has been bullied, carefully verify both that the victim is at least four years older than the offender and that [the victim] was acting violently and in the wrong or if what was involved was a case of unintentional 无心 killing at play. Such cases can cite the Ding Qisanzai precedent and be memorialized, to await an imperial decree. (DLCY, 1970 [1905]: 22.07)

Between the Qianlong emperor’s edict and the new substatute, we have two significant changes to Qing policy on juvenile offenders. First, children eight to ten sui would no longer automatically have the right to have their cases memorialized for mercy unless the victim was significantly older than the offender. Second, some children in the eleven-to-fifteen sui category, a group that originally was not eligible for memorialization for mercy, now could memorialize for mercy, provided that they met both the age difference and wrongful victim behavior requirements. The dividing line of ten sui was becoming increasingly blurred, and the very notion of reducing or mitigating punishments due to fixed age categories was diminishing. This brings us back to a discussion of the meaning of “weak.”

As an adjective, the meaning of ruo 弱 (“weak”) really only becomes clear when used in contrast with qiang 强 (“strong”)—they are relative terms. Thus, in applying the laws on “compassion for the weak,” jurists could not just look at the offender but also had to examine the circumstances of the victim. Only when the actual strength of both parties was taken into consideration and compared would jurists know whether the perpetrator could be counted among the “weak.” The age gap, if any, between offender and victim was an important factor in evaluating the comparative strength and weakness of the two parties. In the cases I have examined, however, often both offender and victim were children.

Officials at all levels, from magistrates up to the emperor himself, clearly paid attention to the issue. Thus, in the Liu Mizi case, the Qianlong emperor provided a long and detailed opinion:

If the perpetrator of the homicide is ten sui or younger, [and] the homicide victim is older than he, the physical strength [of the two parties] is not the same, and thus the death punishment can be mitigated as in the case of Ding Qisanzai. Here both Liu Mizi and the victim, Li Zixiang, were nine sui. Moreover, Liu Mizi’s motive in beating Li Zixiang was perverse—Liu Mizi had demanded [that Li Zixiang give him] fava beans and [Li] had not complied. If we allow [Liu] to avoid the death penalty because of his youth, how is that fair and equitable under either law or reason? Moreover, for a youth of nine sui to be capable of beating a person to death reveals an inherently violent nature. It would be particularly improper to hastily take pity on [such a person] and grant [him] a pardon. In the past, in cases involving killing at play, the Board of Punishments was ordered to incarcerate 监禁 such offenders for several years to pacify their stubborn and intractable spirit 桀骜不驯之气 and then reconsider the issue of reduced punishment. This kind of youth should naturally be handled in the same fashion. (Wu, 1992 [Qing]: 267)

Here the Qianlong emperor gets to the heart of the problem of differentiating between “strong” and “weak.” In a situation where the victim and the offender are the same age, the offender’s vulnerable standing is far from certain. If the law ultimately seeks to be “fair” 平, the principle of “compassion for the weak” could no longer be applied to juvenile criminals who had lost their “weak” status.

Aside from this, to achieve justice, a law that seeks to show compassion for the weak has to engage in some complicated calculations when assessing the relative strength and weakness of offender and victim. For the offender to be considered “weak” in the Qing, he not only had to meet the objective requirement of being four or more years younger than the victim, he also had to be shown to occupy the position of vulnerability in the context of that specific case. In other words, at the time that the conflict erupted between offender and victim, the offender had to be the one in the right, killing the victim only because he fought back after suffered the victim’s unwarranted bullying and harassment. If the victim was not engaged in bullying, harassment, or other unreasonable behavior, if the perpetrator had not really suffered some sort of oppression at the hands of the victim, then the perpetrator would not be able to make use of the legal benefits of memorializing for mercy provided under the principle of “compassion for the weak.”

For example, in a case from 1803, Yan Shisanzai 阎十三仔, fourteen sui, was drawing out some water from the dike of a seventy-six-sui clan relative, Yan Zhengjian, so he could catch some fish (Zhu, 2004 [Qing]: 115–16). Yan Zhengjian feared the young man was going to drain out all of his water, so he scolded Yan Shisanzai and went after him to hit him. As Yan Shisanzai was running away, he picked up a stone and threw it, with the idea of frightening Yan Zhengjian off and stopping him from chasing after him. Unexpectedly, the stone struck Yan Zhengjian just below his left ear and he collapsed to the ground and died. Officials felt that although Yan Zhengjian was the one who went after Yan Shisanzai to beat him, his actions were not unreasonable—after all, he acted only because of Yan Shisanzai’s inappropriate actions and it was not a case of someone older bullying or menacing someone younger or weak. While there was a significant age difference between victim and offender, because Yan Shisanzai did not fit the full requirements for being “weak,” officials simply proposed a sentence of strangulation after the assizes and did not memorialize for mercy on the grounds of his youth.

An 1812 case from Sichuan province follows a similar pattern. Here, Yang Wenzhong, fifteen sui, got into a shouting match with Zhang Zhaoxiong when Zhang started talking about ordering Yang’s mother, Yang Lei Shi, to remarry (Zhu, 2004 [Qing]: 113–14). ¹² As things escalated, Zhang grabbed a stool, but was persuaded by others to put it back down. Yang, on the other hand, grabbed an iron hoe and beat Zhang to the point that he died. While officials believed that Zhang was in the wrong, since it was not a situation of bullying, they sentenced Yang to strangulation after the assizes in accordance with the laws on killing in an affray.

Our discussion of the somewhat meandering revisions to the categories and standards for juvenile offenders gives us insight into the relationship between statutes, precedents, and substatutes in Qing law. The law was meant to uphold the moral principle of “compassion for the weak,” and the cases of Ding Qisanzai, Xiong Zongzheng, and Liu Mizi help us clarify the principle’s true meaning and develop three basic, concrete rules that can be applied when assessing whether a person qualifies as “weak” in the eyes of the law. First, the offender must be fifteen sui or younger. Second, the victim has to be stronger than the offender, with a four-year age difference between offender and victim being enough to prove such a difference in strength. Third, the offender, because of the weakness imparted by meeting the first two objective criteria, suffered bullying at the hands of the victim. Once these three rules were codified into the 1783 substatute (DLCY, 1970 [1905]: A. 22.07), officials used them to determine whether they would memorialize for leniency.

One exception is the way cases involving children seven sui and below were handled. The 1779 decree that children ten sui and younger had to meet certain requirements in order for their case to be memorialized for mercy did not clarify whether it applied to all children ten sui and under or only those in the eight-to-ten sui age range. In other words, it was unclear whether children seven sui and younger, previously exempt from punishment, also had to meet those criteria. Thus, in 1806 the Board of Punishments voiced the following doubts when submitting a memorial to the emperor: seven-sui Du Qi from Dezhou, Shandong, was playing and catching insects together with another boy of the same age, Yan Gou (Xingshi panli, 2005: 572-73). Yan Gou asked Du Qi for a cricket, but Du Qi was not willing to hand one over. Yan Gou then hit Du Qi once on the arm, and Du Qi hit Yan Gou back. Unexpectedly, just then Yan Gou was preparing to go down the mountain they were on, and Du Qi’s blow pushed Yan Gou over the edge of the cliff. Yan Gou suffered grave injuries and died several days later. The Shandong governor proposed a sentence of strangulation after the assizes in accordance with the laws on killing in an affray, but noting that since at the time of the crime Du Qi had only been seven sui, in accordance with the law he ought to be exempt from punishment. In its reply, the Board of Punishments felt that in terms of the various age ranges demarcated in the legal code, those of seven sui were in a different category than those of ten sui. On the other hand, in light of Qianlong’s inclusive 1779 edict, they would have to memorialize the case to the emperor and leave it to his judgment:

Originally the law puts those who commit homicide into different grades depending on whether they are seven sui and below or ten sui and below. [However, after the emperor’s] esteemed edict, there is not a clear distinction between the handling of those ten sui and under who commit homicide and those seven sui and under who commit homicide. From our examination [of our records], our Board has never handled a homicide case with a seven sui juvenile offender. Does the law permit the criminal Du Qi to avoid punishment? Or should he be incarcerated for several years in accordance with the homicide case of nine-sui Liu Mizi? (Xingshi panli, 2005: 572–73)

The Jiaqing emperor believed that in this case Du Qi had engaged in unintentional killing at play and thus this case was substantively different from the Qianlong-era case of Liu Mizi recounted earlier. And given how young Du Qi was, he was especially worthy of compassion and a pardon, which the emperor granted. As a result, the 1783 substatute was modified in 1809, now beginning with the following provision: “In cases where a homicide is committed by someone seven sui and younger, in accordance with the law, permit memorialization requesting exemption from punishment” (Guo, 2012: 144). With this substatute, we find confirmation that the 1783 substatute did not apply to those seven sui and below. It did not matter if the young perpetrator was unreasonable in his actions or irascible, nor did the age difference between offender and victim matter: all children seven sui and below were eligible to avoid punishment. This new substatute was used a few years later in a case from 1812, wherein Ha’ernidu, recently turned six sui, and Maletamale, nine sui, were playing when they got into an argument. Ha’ernidu used a knife to stab Maletamale to death, and Ha’ernidu, in accordance with the law, was exempt from punishment (Zhu, 2004 [Qing]: 118–19).

Grading the Various Categories of “Weak”

When handling a case where fighting between two children led to a homicide, officials could look at age difference or the hows and whys of the case to help assess the relative strength and weakness of the two parties. However, what of homicide cases between a child and a member of one of the other categories of people labeled “weak” by the law—women, the elderly, and the sick?

Let us look first at cases between children and women. An 1812 case from Shaanxi province involved the bullying and humiliating of Liu Shun’er, age fifteen sui, at the hands of Jiang Shi, age thirty-one sui (Zhu, 2004 [Qing]: 117). Liu kicked and injured Jiang, who later died. The Board of Punishments approved the lower courts’ handling of the case wherein Liu would receive a sentence of strangulation after the assizes, with the case to be memorialized to the throne to ask for a reduction in sentence to a monetarily redeemable punishment of exile. In a 1749 case from Shandong province, eleven-sui Liu Xiao’er got into an argument with Little Qiaojie, who threw a clump of dirt at him (Zhu, 2004 [Qing]: 117–18). Liu Xiao’er grabbed up an umbrella with an iron handle and struck back at Little Qiaojie. Unfortunately, Liu Xiao’er’s blow hit Little Qiaojie right on the head and she died. This case was also allowed to be memorialized to ask for a reduction in sentence to a monetarily redeemable sentence of exile. And finally, we have an 1812 case from Zhili in which an angry Zhang Fuyun, thirteen sui, went to have a word with Zhang Xingyu after the latter beat Zhang Fuyun’s father when the father went to ask for repayment of a debt (Zhu, 2004 [Qing]: 118). Not only did Zhang Xingyu’s wife, Wang Shi, scold Zhang Fuyun and stand in his way, but Zhang Xingyu’s son beat Zhang Fuyun with a stick. Zhang Fuyun grabbed the stick and turned to run away, but Wang Shi boxed him in, upbraided him, and attacked him, too. In “a moment of desperation,” Zhang Fuyun raised the stick and struck Wang Shi on the forehead, killing her. This case, too, was permitted to be memorialized for reduced punishment. In none of these cases did the “weak” gender of the victim trump the age of the offender and prevent the young, “weak” offender from memorializing for mercy.

That same year we have a case of a child killing an elderly person (Zhu, 2004 [Qing]: 118). Gao Suishan, fourteen sui, was on the road when he encountered a rainstorm. He took refuge at a small shrine where Gao Geng, an elderly man of over seventy sui, was already waiting out the storm. When Gao Geng saw how wet Gao Suishan’s clothes were, he not only would not let the young man sit with him, but shoved him and beat at him to get him away. When Gao Suishan argued with Gao Geng, Gao Geng grabbed him from behind and tried to throw him to the ground and beat him some more. Gao Suishan was unable to throw the other man off, and in the heat of the moment he bit Gao Geng’s wrist. Gao Geng died twelve days later from the infected wound. The Board of Punishments felt that although Gao Geng was elderly, the violence and inappropriate behavior had started with him, and given that Gao Suishan had been the victim of bullying by the older man, it was a case that could be memorialized to the throne to ask for mercy, in accordance with the 1783 substatute. Again, we see that “weak” status (here, in terms of advanced age) on the part of the victim did not prevent the young, “weak” offender from memorializing for mercy.

In light of these cases, in 1812 the Board of Punishments announced official standards to determine which cases of juveniles killing women and the elderly could be memorialized for mercy. In each case the relative strength and weakness of the two parties would be the standard, with the courts examining which party was in the wrong and which party engaged in the bullying or humiliating behavior:

When handling homicide cases involving juveniles, make a judgment based on whether the youth in question was bullied by the older person. If the victim was not in the wrong or acting violently and it was not a situation of bullying, then even if the perpetrator is fifteen sui or younger, he still should be sentenced to death in accordance with the law, and memorialization for mercy will not be permitted. If the victim really did take advantage of his age to bully the young person and act violently, then even if the victim is a woman or an elderly person, since the offender is not yet of age, memorialization will be permitted in accordance with the substatute. (Zhu, 2004 [Qing]: 117–18)

In essence, one of the key rules about strength and weakness in cases between juvenile offenders and ordinary commoners also applied here: if the victim was in some way the aggressor, the offender should be treated with mercy.

When the victim was a permanently disabled 笃疾 person, the situation was handled a little differently. In 1813 the Shaanxi governor reported a case to the Board of Punishments involving Zhang Bao’er, an underage boy, who stabbed to death a blind man named Liu Zhangbi. The case really arose out of Liu’s bullying of Zhang. The Shaanxi governor used the Ding Qisanzai case as a precedent and proposed that Zhang be permitted to avoid the death penalty and redeem his punishment. But the Board of Punishments felt that for a case of a bullied youth to meet the requirements of the precedent, the circumstances of the youth in question had to be worthy of pity, whereas in this case, the victim had a serious medical condition—he was blind in both eyes—so the board found it a stretch to use the Ding Qisanzai precedent (Zhu, 2004 [Qing]: 116). The implication was that in this case, the victim was more worthy of sympathy than the juvenile defendant. Even if the victim took advantage of his age to bully the defendant, since the child here was the one of sound body, he was not the one in the position of weakness. Here, the “weak” status of the maimed victim did override the “weak” status of the young offender—the only instance wherein another of the “weak” groups was privileged over the young.

Reducing a Penalty to Exile and Permitting Monetary Redemption

When a case involving an eligible, “weak” juvenile offender reached the capital, it was first examined by the Board of Punishments, which would then memorialize the case to the emperor for a final decision. If nothing unexpected happened, the overwhelming majority of such cases were granted mercy by the emperor, with their death penalty reduced one degree to a sentence of exile to 3,000 li 里 and 100 strokes of the heavy bamboo. This sentence could be redeemed, either through the payment of money or its equivalent in grain. Thus, if everything went smoothly, once a child offender’s case qualified for memorialization for mercy, he or she would not have to suffer any corporal punishment and would eventually be able to return home safe and sound.

We should keep in mind, however, that this special privilege of redemption was not granted to juvenile offenders until the Qianlong era. During the Kangxi era, the article on “Redemption by Aged Persons, Youths, and the Disabled” (DLCY, 1970 [1905]: A. 22; Great Qing Code, 1994: 52) had only three substatutes, the second of which reads: “If a person has committed a crime deserving of the death penalty but has avoided the death penalty, and according to the substatutes ought to be sentenced to permanent military exile, do not allow redemption” (Shen Zhiqi, 2000 [Qing]: 64). The Da Qing lü ji zhu provides the following explanation of the substatute: “When a person has committed a crime deserving of the death penalty but has avoided the death penalty, this means that the person has benefitted from a reduction of penalty by one degree due to a substatute enacted out of imperial benevolence, so the sentence ought to be exile. Those who have already avoided the death penalty do not receive a second reduction in punishment” (Shen Zhiqi, 2000 [Qing]: 64). We can see that at this time, then, underage offenders who appealed for imperial exemption from the death penalty were not then eligible for a second instance of mercy (i.e., redemption of the now-reduced punishment). This policy changed beginning with the 1740 edition of the Qing Code. From that point forward, children whose punishment had been reduced to exile were permitted to redeem that punishment (Guo, 2012: 141). As a result, beginning in the Qianlong era, as long as juvenile offenders passed the hurdle of the death penalty issue and had their sentence reduced to some form of exile, and so long as their family could come up with the funds needed for redemption, they were home free.

But what of the funds needed for redemption? As mentioned above, when death sentences were commuted, they were most often reduced to 100 strokes of the heavy bamboo and exile to 3,000 li. According to the charts of redemption payments found in the Qing Code, when the elderly, children, and the disabled redeemed their punishment, the 100 blows of the heavy bamboo was valued at 7.5 fen and the exile to 3,000 li was valued at 4 qian 5 fen, for a total of 5 qian 2.5 fen, the exact same amount required for strangulation or decapitation sentences for those classes of criminals (Da Qing lüli, [Qing]: “All Charts”). But could the average family afford that cost? If we assume that the annual income for a lower-class household in the Qing to be at least 10 taels silver, then 5 qian 2.5 fen was equivalent to a little more than two weeks’ worth of income. The Qing Code allowed redemption in grain, so if we think in terms of commodity prices, 5 taels was the equivalent of 10 shi of rice or 20 shi of millet. The 5 qian 2.5 fen payment would translate to one shi of rice or two shi of millet. With an average yield of about three shi per mu in rice-cultivating areas of southern China (see Shi, 2012), the redemption payment owed by juvenile homicide offenders was roughly equivalent to the annual production of one-third of a mu. Unless the family was suffering from abject poverty, this kind of financial burden would not have been huge. In fact, the redemption payments required of the elderly, children, and the disabled were the lowest of those assigned anyone, including other special categories of defendants. For instance, when criminals were the wives of officials or held another honorable status, to redeem a penalty of exile to 3,000 li and 100 blows of the heavy bamboo, they owed one tael 4 qian and 5 fen (Da Qing lüli, [Qing]: “All Charts”), meaning a total cost twice that required for the elderly, children, and the disabled. For civil and military officials and the like, the redemption payments were even higher: the 100 blows alone were converted to 5 taels, a whopping 67 times the payment assigned to the elderly, children, and the disabled (Da Qing lüli, [Qing]: “All Charts”). From this kind of comparison we can see that the leniency afforded “the weak” exceeded that afforded officials, women of rank, and people of higher status. This was likely due in part to consideration of the long-term income of people of elevated status. However, we should not underestimate the weight of the principle of “compassion for the weak.” It was not just an abstract idea or a vague pledge. It was put into practice in multiple places in the law, such that “the weak” could have a realistic expectation of benefitting from special treatment.

Of course, this kind of special treatment could not be applied indiscriminately. When the Qing Code was being revised in 1788, a substatute that had originally been housed under the article outlawing the use of torture during interrogations of the elderly and the young (Article 404) was moved to the article on the elderly, the young, and the disabled being permitted redemption (Article 22). The substatute now included specific limits on the rights of juvenile offenders to seek redemption:

For anyone seventy or older, or fifteen or younger, or disabled who commits a crime meriting a sentence of exile or less, permit them to redeem their punishment one time and make a detailed record [of it] in the archives. If after the redemption the offender commits another crime, unless the offender was implicated 连累 or [the crime] was committed by mistake (in which case redemption would still be permitted in accordance with the law), if the offender deliberately 有心 committed the crime, it is appropriate to sentence them according to the relevant crime. Do not permit redemption a second time. (Guo, 2012: 143)

Thus, juvenile offenders only had one opportunity to redeem a crime, lest they feel emboldened by their special status to engage in recidivism.

The Line between Kejin and Huanjue

Aside from offenders assigned to the category meriting execution 情实, the Autumn Assizes offered some sort of hope to juvenile offenders in all other categories. But that hope depended on the category to which they had been assigned. First, we should differentiate cases worthy of compassion (kejin 可矜) from cases that would hold until the following year’s assizes (huanjue 缓决). According to a 1767 provision, “In killing in an affray cases involving children, if the victim is younger than the offender, or if a knife was used or there were multiple injuries 重伤, then put it in the category of huanjue. If the offender was the victim of bullying and abuse by someone older and he was not strong enough to resist, but in a moment of desperation struck out and killed the person, then put it in the category of kejin” (Qiushen zhizhang, 2012: 43). In the late Qing, the provision was reformulated as follows: “In cases of homicides committed by children fifteen and below, if the victim is four or more years older than the offender, took advantage of an age difference to bully and humiliate [the offender], and was acting violently and in the wrong, if the offender was not strong enough to resist but struck out in desperation and killed the victim, then consider and discuss kejin. If the victim and offender are the same age, follow the edict on the 1779 case of Liu Mizi killing Li Zixiang in an affray, and discuss reduction in punishment after incarcerating 监禁 the offender for several years, to allow his stubborn and intractable spirit to disappear” (Qiu yan zhi, 2015: 287). In essence, the criteria for kejin classification at the Autumn Assizes were remarkably similar to the criteria for memorialization for mercy.

Among the forty juvenile homicide cases contained in the Qiushen shi huan bijiao cheng’an (Comparison of Leading Qingshi and Huanjue Cases from the Autumn Assizes) and its supplemental volume, all eleven of the cases involving juvenile offenders who had killed other children (or children only recently turned adults) in the course of an affray were put into the category of huanjue. For instance, in an 1874 case, a twelve-sui boy named Liuda Tuzai did not want to play with his companion. The two got into a fight and the companion died. The provincial-level review proposed putting it in the category of kejin, but the Board of Punishments changed it to the category of huanjue (Xuzeng qiushen shi huan bijiao cheng’an, 2015: 366). In another case, from Shandong province in 1844, a child named Dong Tong was grabbed and beaten by a companion. In desperation, Dong Tong grabbed up a knife and stabbed the aggressor, killing him. Even though it was a situation of the victim “taking advantage of an age difference to bully and humiliate” the offender, the victim had just reached sixteen sui and was not quite four years older than Dong Tong. Thus, Dong Tong was also put into the category of huanjue (Qiushen shi huan bijiao cheng’an, 2015: 217). It seemed that the issue of a child killing another child, if it had not been successfully memorialized for mercy before the assizes, was concerning enough to the courts to require the child to remain in custody for at least a year or two.

When a case involved a child offender and an adult victim, assignment to the category of kejin required an evaluation of the relative strength of the two involved parties, taking into consideration the specific circumstances of the case. Namely, unless the victim “took advantage of an age difference to bully and humiliate [the offender] and was acting violently and in the wrong” to the point that the offending child was “not strong enough to resist and struck out in desperation and killed [the victim],” it would have to be handled as a case of huanjue. The following two cases will help explain these principles in action. In 1865, a boy of fifteen sui named Guo Ma came into conflict with a man of fifty-six sui who had come to collect a debt owed by Guo Ma’s elder brother. Guo Ma struck the man with a stone and kicked him, and both injuries were deemed fatal. The victim was unarmed. This meant that although the victim was significantly older than the offender, the victim was the one in the disadvantaged position here. Moreover, there was nothing untoward about the victim’s reason for approaching Guo Ma—it was simply the repayment of a seemingly legitimate debt. As a result, though Guo Ma was a juvenile, he could not be considered “weak,” and thus his crime fell into the huanjue category (Qiushen shi huan bijiao cheng’an, 2015: 222).

In the second case, from 1875, another youth of fifteen sui, Hu Zhifang, encountered a fellow clansman, Hu Yingfu, chopping firewood in a communal clan cemetery. Hu Zhifang went to reprimand and stop Hu Yingfu, but was met with a stream of invectives, at which point the two got into a full-blown argument. Hu Yingfu went after Hu Zhifang with the wood chopper, but Hu Zhifang managed to grab it from him. Hu Yingfu then pounced on Hu Zhifang right as the latter was brandishing the wood chopper in a desperate effort to scare Hu Yingfu back. Hu Yingfu ended up suffering serious injuries from the collision and died. Hu Zhifang was sentenced to strangulation after the assizes according to the laws on killing in an affray. At the Autumn Assizes in 1877, the provincial-level governor-general assigned Hu Zhifang to the category of huanjue on the basis of his having wielded a deadly weapon. ¹⁴ The Board of Punishments held a different opinion: in cases involving juvenile offenders, if the age difference was more than four years and the victim “took advantage of an age difference to bully and humiliate [the offender] and was acting violently and in the wrong,” the case could be memorialized for mercy and reduction to exile in accordance with the Ding Qisanzai case. If the case did not adequately match with that of Ding Qisanzai, an initial sentence of strangulation after the assizes should still be issued, but at the time of the Autumn Assizes, considering the circumstances, the case should be assigned to the category of kejin. Now, in this case, the two parties had an age difference of six years and the victim went after the offender with a wood chopper when the offender reprimanded him for improper behavior. The victim was clearly “acting violently and in the wrong.” As a result, the board moved the case from the huanjue category to that of kejin (Jin huan bijiao cheng’an, 2012: 840–41).

From these cases, we can see that the standards used to differentiate kejin and huanjue, for all intents and purposes, were the same used to determine eligibility for memorializing for mercy. They all followed the same guidelines in determining special treatment: the degree to which the offender was deserving of mercy and the seriousness of the circumstances of the case. If it was a clear case of the juvenile offender being in the “weak” position, then the offender could obtain imperial leniency in the form of a pardon that would make it possible to pay a fine and return home. Others would be detained in jail to await the assizes. Offenders who only partly met the standards for “weakness,” with slightly more serious circumstances than the aforementioned cases, would be relegated to the category of kejin at the assizes and go through just one year of assizes before being granted leniency. Those who committed offenses of a slightly more serious nature would remain in custody, and go through the assizes process again, possibly multiple times. Thus, while the 1779 case of Liu Mizi limited the privilege of children ten sui and under to memorialize for mercy, the Qianlong emperor was not saying that he truly wanted those children to pay with their lives. He was clear that between the categories of memorialization for mercy, kejin, and huanjue, juvenile offenders were offered numerous opportunities to have their cases reduced and remitted: “If [an offender] is sentenced to strangulation after the assizes and is not put into the category of qingshi 情实 [meriting execution], he could be [granted] a reduction in punishment by one degree [to a sentence lower than death] after several years. What, then, is the rush to issue a pardon?” (Wu, 1992 [Qing]: 267). Thus, the emperor’s plan was actually to take a portion of the cases that could have been memorialized for mercy and have them deferred to the Autumn Assizes for judgment, where they would be assigned to the category of huanjue. The several years that a child would spend incarcerated would supposedly wear down any stubborn cruelty or viciousness.

The Line between Huanjue and Qingshi

The dividing line between cases assigned to the category of huanjue and those assigned to the category of qingshi was often the line between life and death. According to the Qiushen shi huan bijiao tiaokuan (Comparison of Provisions for Qingshi and Huanjue [Decisions] at the Autumn Assizes),

In cases of children fifteen sui and younger who commit homicide, aside from cases of premeditated or sudden-intent killing that ought to the placed in the qingshi category, if it is a case of killing in an affray, the circumstances must truly be fierce and malicious 凶暴 [involving] many serious injuries with no feasible excuse, and the victim must be younger or blind or suffering from a serious disease, [while] the offender must have been acting in the wrong and in a bullying and humiliating fashion and repeatedly striking and injuring the victim to be categorized as qingshi. All others should be classified as huanjue. (Qiushen shi huan, 2012: 128)

For child offenders fifteen sui and below, the death penalty would be carried out only if the homicide were of the most cruel and malicious sort. ¹⁵ And even in that kind of situation, officials would often still find grounds for postponement, if not pardon itself. For instance, in an 1844 case from Sichuan province, a girl of ten sui named He Gu got in a fight with a child of eight sui. Her actions were particularly violent, with the crimes to her victim described as “five knife wounds, three of which were fatal, and another wound from an iron tool that damaged the bone” (Qiushen shi huan bijiao cheng’an, 2015: 210). The circumstances of the crime were clearly serious, but officials at the Autumn Assizes still permitted the case to be categorized as huanjue on the grounds that “the injustice arose from strife, [He Gu] was injured first, and they were fighting over the knife” (Qiushen shi huan bijiao cheng’an, 2015: 210).

If we really want to probe into whether the Qing were executing these child offenders, consider the case of Liu Fu’er, which came to the Autumn Assizes in 1826, when he was twelve sui. Back when Liu Fu’er was eleven sui, he got into a fight with another boy of the same age, and that boy died as a result. The circumstances of the case were serious, with Liu Fu’er “hacking at [the victim’s] head with a knife nine times causing grievous injury and immediate death.” These did not seem to be actions that could be treated with leniency. Moreover, the board noted in its discussion of the case, “For cases involving two youths, [if] the offender is fourteen or fifteen sui or below and the circumstances and injuries are all serious, then precedents call for execution [of the offender].” Thus, it would seem entirely appropriate to put Liu Fu’er’s case into the category of qingshi. Yet the Board of Punishments still assigned Liu Fu’er’s case to the category of huanjue, noting “Young boys are ignorant 无知. To take them to the execution grounds to exact punishment would be a situation meriting great compassion” (Qiushen shi huan bijiao tiaokuan, 2012: 221–22). Shen Jiaben, the late-Qing Commissioner for the Reform of the Laws, noted this matter of leniency when he was organizing Autumn Assizes cases. He felt that there ought to be cases from before the Daoguang era where child offenders were put in the qingshi category, but no such cases were to be found (Shen Jiaben, 2012 [Qing]: 1079).

We should keep in mind, though, that Shen Jiaben was writing about child offenders in killing in an affray cases. If the case was instead one of premeditated or sudden-intent killing, the Qiushen shi huan bijiao tiaokuan clearly notes it “should be entered into the category of qingshi” (Qiushen shi huan, 2012: 128). According to Shen, “When the elderly or the young commit crimes of premeditation or sudden intent, the law cannot be lenient. But in common affray cases, [the law] considers showing compassion. One [group] is young and tender [and one group] is old and feeble” (Shen Jiaben, 2012 [Qing]: 1079). Thus, the law showed compassion for those who were in a vulnerable position, but only so long as they were not acting with premeditation or intent. If their actions were premeditated or intentional, then the issue of the relative strength and weakness of the involved parties—something evaluated with such care in affray cases—became a moot point. Such offenders would not receive special treatment under the law.

The number of cases involving intentional homicide by children in the Qing dynasty is very small. I have been able to find only three. The first, from 1868, involved a child of fourteen sui from Sichuan province named Chen Wuwa, who committed the premeditated killing of another child, of twelve sui. This case was categorized as qingshi at the Autumn Assizes. The second, an 1870 case involving a child of fifteen sui named Tang Jiawa killing a child of twelve sui with sudden intent, was also classified as qingshi at the Autumn Assizes. It was only the 1868 case of twelve-sui Sun Guoju, who intentionally killed a younger relative of six sui, ¹⁶ a case in which the victim was the first to act in the wrong, that was considered “to have a hint of pardonability,” and as a result was classified as huanjue at the Autumn Assizes (Qiushen shi huan bijiao cheng’an, 2015: 213).

In sum, the overwhelming majority of children sentenced to the death penalty would eventually have their punishment commuted to exile at the Autumn Assizes. Then in 1740, the Board of Punishments, in reply to a memorialized case from Peng Jiaping, the Judicial Commissioner of Hunan province, formulated an ordinance allowing child offenders whose cases were deemed kejin at the Autumn Assizes to not only have their punishments commuted to exile, but also be permitted to redeem those punishments. When the Qing Code was being revised in 1743, the following language was codified as a substatute under the “Redemption by Aged Persons, Youths, and the Disabled” statute (Great Qing Code, 1994: 52; DLCY, 1970 [1905]: A. 22.05): “Among the criminals who come before the Autumn Assizes each year, those who were fifteen sui and younger at the time of the offense or who are now seventy sui and older and whom the Nine Chief Ministers have proposed to be worthy of compassion and who were granted reduction in punishment to exile will all be allowed to redeem their punishment.” Henceforth, child offenders who were not able to meet the requirements for memorialization for mercy could still follow the path of having their death penalty reduced to exile, redeeming that exile sentence, and returning home. The notion of “sympathizing with the young and showing compassion for the weak” was having greater and greater effect.

Although the child offenders classified as huanjue would remain in custody for several years, in the end they would have their punishment reduced to exile just as the kejin group had. But how were things to be handled if the child offender reached the age of adulthood while awaiting that reduction in sentence? Would redemption still be permitted? These questions were posed to the Board of Punishments in 1820 by the governor of Jiangxi province. Jiangxi officials were dealing with the case of a juvenile criminal named Lin Shitang, who had been twelve sui when he committed the crime in question. Lin had been through the assizes four times, and when he finally was permitted reduction in punishment he was already sixteen sui. Provincial-level officials were unsure whether he was eligible for redemption. The Board of Punishments wrote:

Although the speed with which kejin and huanjue cases are granted reduction to exile is not the same, once they receive imperial favor and have their sentence reduced, they all fall into the same category as those who avoided the death penalty. . . . For criminals whose punishment was reduced to exile through the huanjue [process], [so long as] they were fifteen sui or younger at the time of the crime, they may all redeem their punishment. (Zhu, 2004 [Qing]: 122)

Thus, it did not matter how old an offender was at the time his sentence was commuted, so long as that offender was underage when the crime was committed, he was eligible for redemption.